dence of the fine, he being appointed to give out copies of the agreements between the parties which are entered of record: Gilb. Evid. 21. (a) And upon inquiry, which we have caused to be made by the officers of our court as to the practice in the Inrolment Office of the Court of Chancery (an inquiry which was made upon the authority of the case of Worsley v. Filisker (b), referred to in the argument), it has been certified to us to be the invariable practice that the officer, at the time of making the inrolment, delivers back to the party the original deed, with the certificate of inrolment indorsed thereon, in the same form as the present memorandum. The case of Kinnersley v. Orpe (c) is a strong confirmation of the sufficiency of the evidence of the inrolment. In that case it was held, that a memorandum of an inrolment on the margin of a lease of lands within the duchy of Lancaster (d), signed "A. B. auditor," was sufficient proof of the act of inrolment, even in favour of the lessee under the duchy. (e) And the case there put by Buller J. appears decisive of the present point: "I cannot distinguish," he says, "this case from that of a bargain and sale. The act of parliament in that case does not provide that the indorsement by the officer shall be evidence of the inrolment, and yet it is constantly admitted." And neither in the case of Kinnersley v. Orpe, nor in the case put by Buller J., does it appear that proof of the handwriting of the officer was held necessary: it was treated as an official act. We therefore think the proof of the inrolment must be held sufficient; and, if so, then the second objection which has been made, viz., that the inrolment of the model-deed, as it is called, was not proved, falls to the ground; for that deed was inrolled in the same (a) And see Plowd. 110. b. ; Bac. Abr. Evidence (F). (b) 2 Roll. Rep. 119. (c) 1 Dougl. 56. (d) Suprà, 583, 589. n. 1840. DoE dem. WILLIAMS v. LLOYD manner as this lease and release, and is referred to the body of the release, which was both proved and inrolled, and which model-deed, therefore, must be taken to form part of that deed of release when the same is afterwards produced. Upon the whole, therefore, we think the rule which has been obtained for entering a nonsuit, must be discharged. Rule discharged. June 26. by assignees PORTER and Another, Assignees of LEETE, a In assumpsit ASSUMPSIT for money had and received by the defendant, after the bankruptcy, to the use of the plaintiffs, as assignees, and upon an account stated between the defendant and the plaintiffs, as assignees. for money ceived to their In the (further and better) particulars of the plaintiffs' demand, it was stated that the action was brought to recover 2211. 14s. 1d., the balance due from the defendant to the plaintiffs, as assignees, after deducting plaintiffs were 71. 17s. 6d. paid for rent and taxes, being the produce, not assignees, and gave noafter deducting as aforesaid, of the sale of the banktice to dispute rupt's effects, at which the defendant acted as auctioneer, the act of bankruptcy upon which the party was declared a bankrupt. The plaintiffs proved an act of bankruptcy and the receipt of money belonging to the estate, between the act of bankruptcy and the fiat: Held, that in the absence of proof of any other act of bankruptcy, the defendant, by giving notice to dispute the act of bankruptcy only, must be taken to have admitted a trading and a petitioning creditor's debt, coexistent with the act of bankruptcy proved. Ruled, at nisi prius, by Littledale J., that an assignment by an innkeeper of all the furniture and other effects at the inn (except his stock in trade, money, and book-debts) to a creditor, in trust to sell and pay himself, returning the surplus to the innkeeper, inasmuch as it disabled the latter from carrying on his business, amounted to an act of bankruptcy, if the party were insolvent at the time of the assignment; which ruling was not afterwards questioned. on or about the month of March 1839, and for interest thereon, from the receipt thereof to the day of pay ment. 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 and Farn, plaintiff's at torneys or agents. Yours, &c. James Sawyer, 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, Lecte, 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 397. 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 2937. 11s. 7d.; 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 1840. PORTER V. WALKER. 1840. PORTER บ. 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 2211. 14s. 1d. Channell Serjt., in Easter term following, moved to enter a nonsuit, on the ground that the second plea put the plaintiffs upon proof of all the matters necessary to support a fiat; Butler v. Hobson. (b) It will not be contended that a fiat can be supported without a good petitioning creditor's debt, Moss v. Smith (c); and even 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 (a) 5 Tyrwh.136., 1 Cro. M. & R. 443. (b) 4 New Cases, 290. ; 6 Scott, 798., 7 Dowl. P. C. 157. (c) 1 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's case, 14 Ves. 80. 83. (d) 10 B. & C. 703.; and see Phillips v. Hopwood, 1 B. & Ad. 619.621. 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, 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 (a) 6B. & C. 537. ; and see S. C. per nom. Trimleys v. Uwins, 9 D. & R. 548. 1840. PORTER v. WALKER. |