stances is not conclusive evidence that he contemplated bankruptcy. A., a trader, purchased goods from B. on the 8th Oct. for exportation, but finding that he must stop payment, and that he could not apply the goods to the purpose for which they were bought, he returned them on the 16th Oct. to B., and on the 17th he stopped payment; though expecting remittances from abroad more than sufficient to pay his debts, he had no doubt that his creditors would give him time. They, however, refusing, he was made bankrupt on 2nd Nov. Under these circumstances it was held, that the jury were warranted in finding that the delivery of the goods was not made in contemplation of bankruptcy. Fidgeon v. Sharp, 1 Marsh. 196, and see Wheelright v. Jackson, 5 Taunt. 109, Moore v. Barthrop, 1 B. and C. 5. In order to constitute a fraudulent preference, the transaction on the part of the trader must be voluntary, and it is immaterial whether the creditor had or had not an act of bankruptcy in contemplation at the time the creditor pressed for payment or security, and thereby obtained such payment or security. Hartshorn v. Slodden, 2 B. and P. 583, Crosby v. Crouch, 11 East, 261. Nor will it render such a transaction fraudulent, that it was conducted under circumstances of secrecy. If the creditor were entitled to demand, and demanding, to receive a security in goods for a running debt, upon what principle is he obliged to insist upon the transaction being conducted by his debtor with any particular circumstances of publicity, and which might be in other respects injurious to the general credit of such debtor? Per Lord Ellenborough, 11 East, 261. If a trader give a preference to a creditor under an apprehension, however groundless, of legal process, such preference is valid. Thompson v. Freeman, 1 T. R. 155. And where a creditor, knowing his debtor to be in distressed circumstances, and not able to pay his debts, applied to him for a security, and took part of his stock in trade for that purpose, it was held no undue preference, though the creditor did not threaten a suit in case of refusal. Smith v. Payne, 6 T. R. 152. So where A., a shopkeeper, procured B. to discount accommodation bills drawn by him and accepted by third persons, and B. afterwards required A. to give him a collateral security for the payment of the bills, upon which A. secretly deposited with him a quantity of goods from his shop, to be sold for B.'s benefit, if the bills should not be paid, and Soon after A. became bankrupt, and the bills were dishonoured, it was held that the depositing of the goods in this manner, as a security, was not a preference in contemplation of bankruptcy. Crosby v. Crouch, 2 Campb. 166, 11 East, 256, S. C. The consideration upon which a payment, made to an importunate creditor, of a debt actually due, has been allowed to be valid, has not been that he might resort to a suit to enforce

payment, but that his demand repels the presumption that the bankrupt, upon the eve of bankruptcy, made a distinction among his creditors, and spontaneously favoured one of them to the prejudice of the rest. A demand of farther security for a debt not yet due has the same effect, and in neither case is there any fraud upon the bankrupt laws, on which ground alone transactions previous to the bankruptcy can be set aside. Per Lord Ellenborough, Ibid. Again, where a trader, at the instance of his creditor, gave goods out of his shop, in part payment of a bond not then due, the transaction was held valid. Hartshorn v. Slodden, 2 B. and P. 582, 11 East, 260. And again, where a trader, without solicitation, and in contemplation of stopping payment, put three cheques into the hands of his clerk, to be delivered to a creditor at the counting-house of the latter, but, before the delivery, the creditor called upon the trader and demanded payment of his debt, it was ruled that the intention of making a voluntary preference not having been consummated, the payment stood good. Bayley v. Ballard, 1. Camph. 416, but see Singleton v. Butler, 2 B. and P. 283, post. A debtor being insolvent and in prison went under a day rule to receive a sum of money due to him from a fire office; a creditor met him there and demanded and received, out of the money received, payment of his debt, having no notice of the debtor's insolvency and imprisonment. Eight days afterwards a commission issued against the debtor. It was held that this was no fraudulent preference. Churchill v. Crease, 5 Bingh. 177. A trader had property to a considerable amount standing in the custom-house in his own name, but in fact purchased on account of A. A bill deposited with A. by the trader, as a security, appearing to be a forgery, A. insisted on having the property transferred to himself, which was done on the 14th and 15th of January. On the 17th the trader became bankrupt. Lord Ellenborough said that the question for the jury was, whether the transfer was voluntary, or made under the apprehension that a degree of force, civil or criminal, was about to be applied. De Tastet v. Carroll, 1 Stark. 88, and see Atkins v. Seward, Manning's Index, 62, 63. But where a trader being pressed by a creditor for payment, or security, one or other of which he said he would have, gave a bill of sale of certain wools and cloths in a mill, apparently the whole of his stock, and immediately left his business, and home, and became bankrupt, it was held that, inasmuch as the act done did not redeem the trader, even from any present difficulty, which is the ordinary motive for such an act when really done under the pressure of a threat, it was evidence that it was not done under such a pressure but voluntarily, and with a view to prefer the particular creditor in contemplation of bankruptcy. Thornton v. Hargreaves, 7 East, 544. The ac

ceptor of a bill of exchange two days before the expiration of the time for which the bill was originally drawn, called upon the indorser, and informed him privately that he was insolvent, the indorser insisted on being paid the amount of the bill, offering at the same time to become security to the creditors for so much as the estate should produce, whereupon the acceptor paid it, and four days after became bankrupt. It appeared also, that the bill had been altered so as to make it fall due before this transaction, but without the indorser's knowledge. These circumstances were held to afford evidence of a fraudulent preference. Singleton v. Butler, 2 B. and P. 283, see Bayley v. Ballard, 1 Campb. 416, supra. Where a trader, being pressed, conveyed estates in trust to sell and pay the pressing creditor, with a further trust to pay debts. to certain relatives, it was held a preference in contemplation of bankruptcy. Morgan v. Horseman, 3 Taunt. 241.

A sale of part of a trader's effects may be an act of bankruptcy, if the sale be in fact fraudulent, without reference to its being made in contemplation of bankruptcy. Thus if a sale take place under such circumstances that the buyer as a man of business and understanding ought to suspect and believe that the seller means by it to get money for himself in fraud of his creditor, it is fraudulent and an act of bankruptcy. Cook v. Caldecott, 1 M. and M. 522.

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Evidence of act of bankruptcy-lying in prison.] This act of bankruptcy does not relate to the first day of the imprisonment. Higgins v. M'Adam, 3 Young and Jar. 1. Moser v. Newman, 6 Bingh. 556. See Tucker v. Burrow, M. and M. 137. In order to render a lying in prison twenty-one days an act of bankruptcy, the arrest must be for a subsisting legal debt. Eden, 35. A penalty due to the crown has been considered. a sufficient debt. Cobb v. Symonds, 5 B. und A. 516. The time of lying in prison commences from the first arrest, the day of arrest being included. Glassington v. Rawlins, 3 East, 407, Stark. 73. Where bail is put in, and the defendant surrenders in discharge of his bail, the time is computed from the surrender, Tribe v. Webber, Willes, 464; but, where the bankrupt was arrested in Kent on the 31st March, and on the 8th May brought by habeas corpus to be bailed, and on the road to the judge's chambers, was permitted to call at his attorney's house, which was out of the county of Kent, whence he was carried directly to a judge's chambers, to be bailed, and was bailed accordingly, and immediately surrendered by the bail, it was held, that the act of bankruptcy had relation to the 31st March. Ross v. Green, 1 Burr. 437. If the defendant is suffered to go at large after the arrest, and afterwards returns into custody, the time is computed from the return. Barnard v. Palmer, 1 Campb. 509. Where the defendant, at

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the time of the arrest, was sick, and consequently suffered to remain some time in his own house, the key of which was kept by the officer's follower not named in the warrant, the time was held to run from the arrest. Stevens v. Jackson, 4 Campb. 164, 6 Taunt. 106, S. C. And so where the party has the benefit of day rules during the period. Soames v. Watts, 1 C. and P. 400. If a commission issues before the time expire, it cannot be supported, though it would be no objection that the requisite time had not expired when the docket was struck. Gordon v. Wilkinson, 8 T. R. 507, Wydown's case, 14 Ves. 80, Ex-parte Dufresne, 1 V. and B. 51. The arrest may be proved by an examined copy of the writ, and return of cepi corpus, or by proof of the writ, the warrant, and the arrest, vide ante, p. 304. The fact of lying for the twenty-one days in prison may be proved by the production of the prison books. Salte v. Thomas, 3 B. and P. 188, ante, p. 112. The cause of the com-' mitment may be proved by production of the committitur. Ibid.

Evidence of act of bankruptcy-filing petition to take the benefit of the insolvent act.] This act of bankruptcy is introduced in the insolvent act, 7 Geo. IV. c. 57, and is not contained in the new bankrupt act. The office copy of the petition is made evidence of the act of bankruptcy, but it is not to be an act of bankruptcy, unless the party be declared bankrupt before the time advertised in the gazette for hearing the petition, or within two calendar months from the filing of it, within which time it will have the effect of avoiding the assignment under the insolvent act.

Evidence of the commission and assignment, &c.] By 6 Geo. IV. c. 16, s. 96, it is enacted, that in all commissions issued after this act shall have taken effect, no commission of bank. ruptcy, adjudication of bankruptcy by the commissioners, or assignment of the personal estate of the bankrupt, or certificate of conformity, shall be received as evidence in any court of law or equity, unless the same shall have been first so entered of record as aforesaid (see sect. 95), and the Lord Chancellor may, upon petition, direct any depositions, proceedings, or other matter relating to commissions of bankruptcy, to be entered of record as aforesaid. Provided, that upon the production in evidence of any instrument so directed to be entered of record, having the certificate thereon purporting to be signed by the person so appointed to enter the same, or his deputy, the same shall, without any proof of such signature, be received as evidence of such instrument having been so entered on record as aforesaid.

And by section 97 it is enacted, that in every action, suit, or issue, office copies of any original instrument, or writing, filed in the office, or officially in the possession of the Lord

Chancellor's secretary of bankrupts, shall be evidence to be received of every such original instrument or writing respectively.

The commission is proved by producing it under the great seal, with the certificate of enrolment thereon, as mentioned above. The assignment ought, in strictness, to be proved by production of the deed with the certificate of enrolment, and evidence of the execution by the commissioners, but by the general courtesy of practice in the Courts, it is admitted, unless notice to dispute it has been given. Tucker v. Barrow, 1 M. and M. 137. Read v. Cooper, 5 Taunt. 89, Eden, 353. However, in the case of Hunt v. Connor, 2 Chitty, Coll. Stat. 110, Lord Tenterden was inclined to think the bargain and sale (where necessary to be proved, in actions relating to the bankrupt's real property) must be produced and proved in the same manner as other deeds; and see Gomersal v. Serle, 2 Y. and J. 5. The new bankrupt act is silent as to the time of enrolment, but by 27 Hen. VIII. c. 16, the deed must be enrolled within six months after its date, or it becomes null and void. Thomas v. Popham, Dyer, 218 (b). The title of the assignees does not relate back to the date of the bargain and sale, but only to the time of enrolment, and therefore, in ejectment, where the demise is laid between the date of the indenture and the enrolment, the assignees cannot recover. Perry v. Bowers, T. Jones, 196. The indorsement on the bargain and sale signed by the proper officer will be conclusive evidence of the enrolment, and of the time when it was enrolled. Kinnersley v. Orpe, Dougl.56. R. v. Hooper, 3 Price, 495.

If, in pursuance of the new act, sec. 96, the Chancellor has directed any depositions, proceedings, or other matters relating to the commission to be entered of record, as the officer is not authorised to make copies, it will of course be necessary in such cases to have an examined copy of the record. Eden, 353, 2 Phill. Ev. 326.

By 6 Geo. IV. c. 16, s. 98, all commissions, conveyances, and other instruments relating to the estates of bankrupts, are from 1st Sept. 1825, exempted from stamp duty.

Evilence with regard to the title of assignees under joint and separate commissions, &c.] Where separate commissions have been issued against several persons, and the same persons are appointed assignees under each, they may describe themselves as assignees of those bankrupts generally, and may give evidence of a joint demand due to all the bankrupts, Scott v. Franklin, 15 East, 428, Streatfield v. Halliday, 3 T. R. 779, 2 Saund. 47, o (n), but in such action they cannot recover also for separate demands due to each of the bankrupts. Hancock v. Haywood, 3 T. R. 433. And where there are separate commissions against several partners, and different assignees under

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