The defendant did not, however, make any objection to Exch. of Pleas, them on this account, when they were tendered to him.

A witness called for the plaintiffs stated, in cross-examination, that although, on the face of the contract, the option of delivering the shares on or before the day specified in the contract, appeared to be, as stated in the declaration, with the seller; yet that, according to the usage in such contracts, those terms were considered to give the option to the buyer, and the defendant might therefore have called upon the bankrupt to complete the sale of the shares at any time before the 31st of March (a). Evidence was

and transfer to the said C. D.
share, numbered of and in
the undertaking called The Great
Western Railway; to hold unto
the said C. D., his executors, ad-
ministrators, and assigns, (or suc-
cessors and assigns), subject to
the several conditions on which I
held the same immediately before
the execution hereof; and I, the
said C. D., do hereby agree to ac-
cept and take the said share, sub-
ject to the conditions aforesaid.
As witness our hands and seals,
the
such sale the deed or conveyance
(being executed by the seller and
purchaser) shall be kept by the
said company, or by some secre-
tary or clerk of the said company,
who shall enter in some book to
be kept for that purpose a memo-
rial of such transfer and sale, and
indorse the entry of such memorial
on such said deed of sale or trans-
fer, for which entry and indorse-
ment the sum of 2s. 6d., and no
more, shall be paid to the said
company; and the said company,
or some secretary or clerk as
aforesaid, is hereby required to

day of . And on every

make such entry or memorial ac-
cordingly, and on demand to make
an indorsement of such transfer
on the back of the certificate of
each share so sold, and deliver the
same to the purchaser for his se-
curity, for which indorsement no
more than 2s. 6d. shall be paid;
and each indorsement, being sign-
ed by such secretary or clerk,
shall be considered in every re-
spect the same as a new certificate;
and until such memorial shall
have been made and entered as
before directed, the seller thereof
shall be held and remain liable
for all future calls, and the pur-
chaser shall have no part or share
of the profits of the said under-
taking, nor any interest in respect
of such shares paid to him, nor
any vote in respect thereof, as a
proprietor of the said undertak-
ing."

(a) On the argument, it was
contended that this evidence
shewed that the contract was
misdescribed in the declaration,
and that the variance being a ma-
terial one, could not have been
amended; but as it did not ap-

1838.

HARE

V.

WARING.

1838.

HARE

v.

WARING.

Exch. of Pleas, also given for the purpose of impeaching the bankruptcy, by shewing (under the third plea) that the denial which constituted the alleged act of bankruptcy, had been concerted between the bankrupt and the plaintiff Hare, in order to benefit the general body of creditors by issuing a fiat. This evidence was objected to on the part of the plaintiffs, on the ground that by the 92d section of the Bankrupt Act, 6 Geo. 4, c. 16, the depositions in such a case as the present were conclusive evidence of the act of bankruptcy; and Fox v. Mahoney (a) was cited. The learned Judge, however,received the evidence, reserving the question as to its admissibility for the opinion of the Court, and the jury found, on this issue, that the act of bankruptcy was concerted. But it was further contended for the defendant, that the mere direction by the bankrupt to deny him, without proof of actual denial, or other evidence of his keeping house, was not an act of bankruptcy. The learned Judge left it to the jury to say whether, on the 13th of January, the bankrupt began to keep his house with intent to delay his creditors, and the jury having found that he did, a verdict was taken for the plaintiffs on the second issue. Under his Lordship's direction, a verdict was also entered for the plaintiffs on the first and sixth issues, and for the defendant on the third and seventh; leave being given to the plaintiffs and defendant respectively to move to enter a verdict for each of them, on such of these special pleas (the third, sixth, and seventh,) as the Court should think ought to have been found otherwise.

In Michaelmas Term, cross rules were accordingly obtained, pursuant to the leave reserved, by Erle for the plaintiffs, and Bompas, Serjt., for the defendant. In

pear, on the report of the learned
Judge, that this objection was
taken at the trial, the Court re-
fused to entertain it, inasmuch
as, if then taken, it might have

been answered by evidence contradicting the alleged usage. See post, p. 375.

(a) 2 C. & J. 325.

1838.

the present term, these rules came on to be argued toge- Exch. of Pleas, ther, by

Erle, J. Greenwood, and Butt, for the plaintiffs.—I. The first question is, whether a valid act of bankruptcy has been proved to have been committed by the bankrupt Jones. That question involves two points; first, whether the conduct of Jones on the 13th of January amounted in law to an act of bankruptcy,-which arises on the second issue; next, whether, if it did, the legal effect of it was avoided by the finding of the jury that it was concerted between the bankrupt and the plaintiff Hare; and whether evidence of such concert was not excluded by the 92nd section of the Bankrupt Act.

1. The direction given by Jones that he should be generally denied was evidence of a beginning to keep house. That evidence was left to the jury, and they found that he did begin to keep house with intent to delay his creditors. It was entirely a question for the jury quo animo the direction was given. The denial itself would be a much more equivocal act than the general direction to deny, which must include creditors as well as other persons. It is directly laid down by Dallas, C. J., and the other Judges of the Court of Common Pleas, in Lloyd v. Heathcote (a), that a general order to deny the party is of itself evidence of a beginning to keep house: the question with what intention that is done is entirely for the determination of the jury.

2. It is difficult to reconcile the finding on the second issue with that on the third. On the former there is a finding that an act of bankruptcy, which must be taken to mean a valid act, was committed; on the latter, if it be entered for the defendant, there will appear to be an admission that the act of bankruptcy, on which the fiat was

(a) 2 Brod. & Bing. 388.

HARE

v.

WARING.

Exch. of Pleas, founded, was concerted and void, and there is no sugges

1838.

HARE

v.

WARING.

tion of any other act of bankruptcy: there will therefore be an inconsistency on the record. [Parke, B.-No; the finding on the second issue is, that it was an act of bankruptcy which, per se, would be valid; on the third, that it was concerted; there is no inconsistency in that; but the result is, that if a concerted act of bankruptcy is a nullity, the fiat cannot be supported. The only matter in issue on the third plea is, whether the act of bankruptcy which is ear-marked by the proceedings, was concerted. If concert no longer invalidates a commission, then that plea would appear to be bad non obstante veredicto; that is, assuming that the depositions are conclusive evidence.] It was certainly held, in Marshall v. Barkworth (a), that notwithstanding the provisions of the 1 & 2 Will. 4, c. 56, s. 42, a concerted act of bankruptcy, by assignment of the trader's effects, still invalidates a commission founded on it, as against the parties to the concert. But inasmuch as the legislature no longer contemplates bankruptcy in the light of a criminal act, as formerly, but on the contrary, has expressly sanctioned the concerting of one particular act of bankruptcy, viz. the filing of a declaration of insolvency, it seems difficult to say that mere concert, not with any fraudulent intention, but with the purpose of benefiting the general body of the creditors, is sufficient to invalidate the bankruptcy. If it be not, the third plea is bad, notwithstanding the finding of the jury on it.

3. But the evidence of concert ought not to have been received, the depositions being in this case conclusive evidence of the act of bankruptcy stated in them. The words of the 6 Geo. 4, c. 16, s. 92 are, that if the bankrupt does not, within two calendar months after the adjudication, give notice of his intention to dispute the commission, &c., "the depositions taken before the commissioners at

(a) 4 B. & Ad. 508; 1 Nev. & M. 279.

1838.

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the time of or previous to the adjudication of the petitioning Exch. of Pleas, creditor's debt, and of the trading and act or acts of bankruptcy, shall be conclusive evidence of the matter therein contained, in all actions brought by the assignees for any debt or demand for which the bankrupt might have sustained any action." Now, it is clear that the bankrupt, if no bankruptcy had intervened before the 31st March, might have sued the defendant on this contract: the same cause of action would have vested in him as has vested in the assignees the bankruptcy does no more than transfer to them the title to sue. The words of the statute are to be construed thus-that if, on the face of the depositions, a valid act of bankruptcy appears, it shall be taken to be conclusively proved for all purposes. It will be said for the defendant, that the depositions are only conclusive evidence of the facts stated therein, and do not exclude evidence to take away the effect of those facts by reason of fraud or otherwise; but it is submitted that the true construction is, that on those facts being stated to the jury, they shall be taken to be conclusively proved, and that the adverse party cannot annihilate the effect of them by adding the fact of concert, and so preventing the facts which appear on the evidence from being facts at all for the purposes of the cause. The object of the clause was to prevent debtors to the bankrupt's estate from constantly harassing the assignees by compelling them, on every occasion, to prove the bankruptcy: and the subsequent sections, which enable the debtor to pay the debt into Court when sued by the assignees, and declare that payment to them shall be a discharge although the commission be superseded, render it wholly immaterial to him whether the bankruptcy be valid or not. The authorities are in favour of the plaintiff on this point. In Young v. Timmins (a), it was held, that where the petitioning creditor's

(a) 1 C. & J. 148; 1 Tyrwh. 15.