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on or about the month of March 1839, and for interest thereon, from the receipt thereof to the day of payment.

Pleas: first, non-assumpsit ; secondly, that the plaintiffs were not, nor are, assignees of the estate and effects of the said Francis Leete, a bankrupt, in manner and form as the plaintiffs have alleged.

With this plea the following notice was given : —

" In the Common Pleas. — Between George Porter and William Turquand, assignees of the estate and effects of Francis Leete, a bankrupt, plaintiffs, and John Walker, defendant.

" I hereby give you notice that I dispute the act of bankruptcy upon which the above-named Francis Leete was declared a bankrupt, and in which bankruptcy the above-named plaintiffs were chosen assignees. And I further give you notice that the plaintiffs will be held responsible for all acts or doings whatsoever at their suit. Dated the 2d day of January 1840. “To Messrs. Brooksbank. Yours, &c. and Farn, plaintiff's at James Sawyer, torneys or agents.

Defendant's attorney,

3. Bow Lane, Cheapside." At the trial before Littledale J. at the last assizes for the county of Essex, the following facts appeared.

On the 21st of February 1839, Leete, who kept the Crown Inn at Chipping Ongar, executed an assignment of his furniture and other effects there, except the stock in trade, which Leete continued to use, his ready money and book debts, to the defendant (to whom he was indebted in 391. 10s., borrowed in December 1838), in trust to sell and to pay his own debts, and return the surplus to Leete. The sale took place in March, and produced 2931. 11s. 70.; the fiat issued in April 1839. No evidence was given of a petitioning creditor's debt.

On the part of the defendant, it was contended that

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WALKER.

the assignment was not an act of bankruptcy, and Carr v. Burdiss (a) was cited. It was also contended that it was incumbent on the plaintiffs, under the second issue, to prove a good petitioning creditor's debt. The learned judge was of opinion that, inasmuch as the assignment would necessarily put an end to Leete's business, it amounted to an act of bankruptcy, provided he was insolvent at the time, otherwise not; and also that, under the evidence given, it was clearly not competent to the defendant to call upon the plaintiffs to give evidence of any matters necessary to constitute the bankruptcy, except the act of bankruptcy, but his lordship said that the defendant's counsel might mention the point to the Court. A verdict having been found for the plaintiffs, damages 221l. 14s. 1d.

Channell Serjt., in Easter term following, moved to enter a nonsuit, on the ground that the second plea put the plaintiff's upon proof of all the matters necessary to support a fiat; Butler v. Hobson. (6) It will not be contended that a fiat can be supported without a good petitioning creditor's debt, Moss v. Smith (c); and eren if the want of a specific notice to dispute the petitioning creditor's debt were considered as an admission that such a debt existed as would support the fiat awarded in April, it does not follow that any such debt existed in February, when the assignment relied upon as the act of bankruptcy took place. Upon this latter point the Court were divided in Norman v. Booth (d): it will

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(6) 4 New Cases, 290. ; 6 Scott, 798., 7 Dowl. P. C. 157.

(c) i Campb. 489.; and see Bingley v. Maddison, in B.R., M. T. 1783, Cooke, B. L. 24.; Beardmore v. Shaw, 1 N. R.

263. ; Rose v. Rowcroft, 4 Campb. 245.; Douthat, ex parte, 4 B. & Ald. 67.: Wydown & cast, 14 Ves. 80. 83.

(d) 10 B. & C. 703.; and see Phillips v. Hopwood, 1 B. 4; Ad. 619. 621.

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therefore be desirable that this point should be further considered, independently of the question whether the effect of the second plea is to render any further notice unnecessary. A rule nisi having been granted,

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Platt (with whom were Thesiger and Petersdorff,) now shewed cause. This case turns upon the legal operation of the fortieth section of 6 G. 4. c. 16., by which it is enacted, “ that in any action by or against any assignee, or in any action against any commissioner, &c., no proof shall be required at the trial, of the petitioning creditor's debt or debts, or of the trading or act or acts of bankruptcy respectively, unless the other party in such action shall, if defendant, at or before pleading, or if plaintiff, before issue joined, give notice in writing to such assignee, commissioner, &c., that he intends to dispute some, and which, of such matters." The object of the legislature was to lessen the proof at the trial, by confining it to the real matters in dispute between the parties. The trading, the petitioning creditor's debt, and the act of bankruptcy, are to be taken to be admitted, unless specific notice be given to dispute them. [Tindal C. J. That is undoubtedly so, with respect to the title of the assignees to sue; but you would carry it further, and would make the absence of notice an admission of a petitioning creditor's debt subsisting at any time at which the plaintiffs may be able to prove an act of bankruptcy.] If the plaintiffs were bound to prove a petitioning creditor's debt subsisting on the 21st of February, they might have been called upon to prove that Leete was at that time a trader. In Trimley v. Unwin (a), a notice “ to dispute the bankruptcy" generally, was held to be insufficient, and a nonsuit for

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want of proof of the requisites to constitute the bankruptcy was set aside. In Norman v. Booth (a), Lord Tenterden and Parke J. expressed a decided opinion against the objection now raised. In Macbeath v. Coates (), no notice having been given to dispute the title, it was held that the validity of the commission could not be questioned, although no sufficient petitioning creditor's debt appeared on the face of the proceedings. [Tindal C. J. That was under the ninetysecond section. (c)] The language of the ninetieth section is equally strong.

(a) 10 B. & C. 703. In bankruptcy to have been comthat case, (in which, as it oc- mitted, a defendant who, at curred before the new rules of the risk of costs, had denied pleading, there was no plea the existence of any act of specifically denying the title of bankruptcy, would seldom be the assignees, as here,) Parke J. prepared to prove a second act says, “ as the defendants did not of bankruptcy; and also to give any notice, they admitted prove that, at the time of such all that was necessary to sup- second act of bankruptcy, a port the commission; and when good petitioning creditor's debt the plaintiffs proved one act of existed. bankruptcy, we are not to pre- (6) 4 Bingh. 34. S. C. per sume that there was any other. nom. Mackbeath v. Cooke, 12 If, indeed, the defendant had B. Moore, 122.; and see Buck. given evidence of an act of ton v. Frost, 8 A. & E. 844. bankruptcy committed between (c) By which it is enacted, the time of the sale and the that if the bankrupt shall not, issuing of the commission, that within the respective periods of might have driven the plain- two ortwelve months there mentiffs to the proof that the peti- tioned, have given notice of his tioning creditors' debt existed intention to dispute the comat the time of the act of bank - mission, and have proceeded ruptcy on which they relied. thereon with due diligence, the But in the absence of any such deposition of the petitioning evidence on the part of the creditor's debt, trading, and act defendant, I think that the of bankruptcy, shall be concluplaintiffs proved all that could sive evidence of the matters be required of them.” In Nor- · therein respectively contained, man v. Booth no notice to dis. in all actions at law, or suits in pute had been given. In a case equity, brought by the assignees, where notice had been given to for any debt or demand for dispute the act of bankruptcy which the bankrupt might have only, supposing two acts of maintained any action or suit."

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Channell Serjt. (with whom was James) in support of the rule. The only difficulty in this case is raised by the conflicting opinions expressed by Lord Tenterden and Parke J., and by Bayley and Littledale JJ., in Norman v. Booth. (a) Under the second plea upon this record, the plaintiffs have been called upon to prove merely. what the notice requires; though in Butler v. Hobson (6), this Court held that a plea, that the plaintiff was not assignee, put in issue the petitioning creditor's debt and the act of bankruptcy. There, not only the plea but the notice also, impugned the petitioning creditor's debt and the act of bankruptcy. But in Scott v. Thomas (c) no such notice appears to have been given. The present case is to be looked at as if the plea of non assumpsit alone had stood upon the record. The promise in the declaration, which that plea puts in issue, is in respect of money had and received by the defendant after the bankruptcy. If the plaintiff had sued for money had and received before the bankruptcy, the defendant might have pleaded a set-off. (a) Upon this issue it lay upon the plaintiffs to shew that money had been received by the defendant after the bankruptcy. The fiat was in April : the sale took place on the 16th of March, and the proceeds of the sale came into the hands of the defendant on the 18th of March,

The act of bankruptcy was committed on the 21st of February, and it is not contended that it is not necessary that a good petitioning creditor's debt should have existed at that time; but no proof is offered of the exist

(a) Suprà, 688. (6) Ibid.

(c) In that case it appears to have been assumed without discussion, that under the plea traversing that the plaintiff was assignee the plaintiff was bound to shew a good title as assignee,

in omnibus ; and the only ques-
tion raised was, whether the
proof given of the petitioning
creditor's debt, and the act of
bankruptcy were sufficient. 6
Carr. & P. 611.

(a) As to which see Wood v.
Smith, 4 M. & W. 525.

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