rupts, upon an act of bankruptcy committed on the 6th November, and the assignees brought this action to recover the value of the goods thus purchased by the defendants. The jury found a verdict for the plaintiffs, daimages 9301. Bompas, Serjt., moved for a rule nisi to reduce the damages to the amount of the sales which took place subsequent to the act of bankruptcy. Ward v. Clarke (a) was a case like the present in many of its circumstances, and Lord Tenterden, C. J., there observed, ، Where there is an unknown act of bankruptcy, and transactions have taken place bonâ fide in the ordinary course of dealing, it appeared to me unjust to vitiate these transactions on the ground of a fact unknown to the party, and I accordingly considered, in a decided case where goods had been bought in the usual way in a shop, that the transaction was valid. The Court afterwards confirmed that decision (Cash v. Young, 2 B. & C. 413). The question, therefore, seems to me to be, not whether the purchase by the defendants was fraudulent, but whether it was in the ordinary course of trade and dealing. In considering that, you may look to the antecedent transactions between the parties, although I think that these cannot be impeached in the present action; and from them it appears that the defendants have several times bought from the bankrupts at very low prices.' In accordance with this doctrine, the mere sale of the goods for less than the full price, is not of itself sufficient to invalidate the sale, but some fraud must appear. Baxter v. Pritchard (b). When men in embarrassed circumstances sell goods at a reduced price for the purpose of obtaining ready money, it only raises an impression in the purchaser's mind that the seller is desirous of raising money quickly; but it does not necessarily follow that the purchaser must be acquainted with the seller's intention of defrauding his creditors, and here the defendants knew nothing whatever about the bankrupts. [Tindal, C. J.— Suppose a purchaser shuts his eyes, and is determined not to know any thing about the real owner? Here the defendants, by making a little inquiry, could have ascertained to whom the goods belonged.] The name of the street where the bankrupts carried on their business did not appear on the parcels of goods which were sold before the act of bankruptcy was committed. And in the same case of Ward v. Clarke, it was held that transactions which occurred before the act of bankruptcy, and before the petitioning creditor's debt occurred, could not be impeached. A question also arises on the construction of sec. 82, 6 G. 4, c. 16. The issue is taken on the averment that the payments were not really and bonâ fide made by the defendants to the plaintiffs. Here there was no doubt but that the payments were really and bonâ fide made, and that being so, it is immaterial whether the sale was fraudulent. The word sale does not appear in the section, and seems to have been studiously omitted, and it was the intention of the Legislature that the assignees should not recover the goods, and also retain the payments made to the bankrupts in respect of them. The former stat. 46 G. 3, c. 135, sec. 1, protects "all conveyances by, all payments by and to, and all contracts and other dealings and transactions by and with, any bankrupt,” bonâ fide made or entered into more than two months before the commission. TINDAL, C. J.-This motion only seeks to retain the amount of the pur- Com. Pleas. DEVAS v. VENABLES. Com. Pleas. DEVAS v. VENABLES. chases made before the act of bankruptcy, as it is admitted that the assignees are entitled to a verdict upon the transactions which occurred after the act of bankruptcy. The question which was left to the jury arose principally upon the fifth plea, upon which the precise issue is, whether the payments were really and bond fide made by the defendants to the bankrupts, in manner and form as in the plea alleged. It is contended for the defendants, that the late Bankrupt Act has altered the law affecting this question. I thought at the trial that the words "really and bonâ fide" did not import the same thing; if it were so, the words "bonâ fide" would not have been added; and it seemed to me that the way was to consider whether the payments were made honestly and fairly in the course of an honest transaction, on a bona fide contract. I told the jury that this would depend upon two points: first, whether the bankrupts make these sales with intent to defraud their creditors, and the jury found that they did; secondly, I asked them whether the defendants had the knowledge, or the means of knowledge, of the circumstances within their reach, so that men of common prudence would have made inquiries. I advised the jury to look narrowly into the evidence upon this point, and I left it to them much in the same way that I should have left the evidence in a criminal case. The jury found their verdict for the plaintiffs, and I presume that they supposed that enough had transpired to put a prudent and honest man upon his guard, and I entirely concur in their verdict. The case turned principally on the evidence of the witness Kirby, who appears to have been concerned in a wicked scheme to enable the bankrupts to make a purse; but it did not appear that the defendants were acquainted with that fact. This witness stated that he took lodgings and deposited goods belonging to the bankrupts in two upper rooms and the kitchen; the goods were removed by a stranger to the lodgings at an early hour in the morning. He then called upon May, one of the defendants, and told him he had a lot of goods to sell under price; May afterwards came to the lodgings and agreed to buy a parcel of the goods at 25 per cent. under the cost price. The witness informed May that the goods were not his own. It appears that the parcels were sent to May's house between seven and eight o'clock in the morning, when Kirby was paid for them. A second purchase, under similar circumstances, took place a few days afterwards, which was followed by other transactions, and some of the goods had the wholesale and retail marks appended to them. Under these circumstances, I am by no means dissatisfied with the finding of the jury. PARK, J.-I am clearly of opinion that the verdict was right. VAUGHAN, J.-The first question is, whether the bankrupts intended to commit a fraud on their creditors? It is impossible to doubt but that such was their intention. As to the construction of the statute, I agree in the opinion which my Lord Chief Justice has expressed. Rule refused. Com. Pleas Jan. Lith.. DOE, d. THRING, v. ROE. CHANNELL moved for judgment against the casual ejector. tion in ejectment The notice Where a declara- at the foot of the declaration required the tenant to appear in mas Term last, and judgment might have been obtained against him in that Term. In the Court of King's Bench the rule is, that under such circumstances this motion may be made in the Term following the Term which is stated in the notice. TINDAL, C. J.-The party may have searched the office, to see if judgment was obtained in Michaelmas Term, and finding that it was not, he may suppose the proceedings were at an end. You may take a rule nisi. Rule nisi granted (a). (a) The rule is similar in the Exchequer. See Doe d. Reeve v. Roe, 1 Gale 15. Ex parte STEVENS. TALFOURD, Serjt., moved that the officer of the Court should receive the certificate of an acknowledgment, made by a married woman, under stat. 3 & 4 Wil. 4, c. 74, sec. 85. The acknowledgment was taken in 1834, and the certificate and affidavit of the due taking were sent from Norfolk to London to be filed; but in consequence of an informality in the proceedings, they were returned to the country, and in the same year the acknowledgment was regularly taken, but through inadvertence, the documents were mislaid in the attorney's office, and had remained there until the present time. The parties, who were all alive, were now desirous that the certificate and affidavit should be filed, in pursuance of the statute. Per Curiam. Under the circumstances which have been stated, the certificate and affidavit may be filed. PHILIP v. ARDEN. HODGES moved for judgment as in case of a nonsuit. The plaintiff had given notice of trial for Hilary Term, 1836, but having made default, the defendant moved for the costs of the day for not proceeding to trial, which were duly paid; but the plaintiff had not since taken any further steps to bring the cause to trial. It now appeared, by affidavit, that notice of the present motion had been given to the plaintiff's attornies, and that stated, in reply to an inquiry whether they intended to instruct counsel, that they did not intend to oppose the motion, but that the defendant's attorney might make the rule absolute. they TINDAL, C. J.-Under these circumstances, you may take a rule absolute. Rule absolute (a). (a) See Moseley v. Clarke, 2 Dow. P. C. 66. Whalley v. Fellowes, 1 Hodges, 77. but judgment against the casual ejector was not moved until Hilary Term, the rule for such judgment is nisi only. Com. Pleas. Jan. 27th. In moving for judgment against the casual ejector, it appeared that the tenants in pos DOE d. STONE v. ROE. R. V. RICHARDS moved for judgment against the casual ejector. The affidavit stated, in the usual terms, that the deponent had served the tenants in possession of the premises, with a true copy of the declaration in session of the pre- ejectment; but instead of shewing that the declaration and notice had been read over and explained to them, it was stated "that the tenants having expected to be served with the said proceeding, expressed their knowledge of the intent and meaning of the declaration and notice." mises, expressed their knowledge of the intent and meaning of the declaration in ejectment which was served upon them: Held, that it was unnecessary to shew that the declaration and notice was read over and explained. TINDAL, C. J.-I think that is sufficient. Rule granted (a). Jan. 24th. Where a witness met the drawer of a bill at the the that it became due, and asked him whether he had heard of the dishonour of the bill, and he re (a) See Doe d. Downes v. Roe, 1 Har. & W. 671. NORRIS v. SALOMONSON. ACTION on a Bill of Exchange by the indorsee against the drawer.-Plea, that the defendant had received no notice of the dishonour of the bill. atre the evening At the trial before Mr. Serjeant Arabin, at the Sheriff's Court in London, a witness was called, who stated, that on the evening of the day on which the bill became due, he met the defendant at the theatre, when he asked him if he had heard of the dishonour of the bill? He replied, that he had received a very civil letter upon the subject of the dishonour, and that he should call and pay the bill. The witness could not recollect the precise words which were used by the defendant. The learned judge was of opinion that this was sufficient proof of the notice of dishonour, and a verdict was found for the plaintiff. plied that he had, and intended to call and pay it, it defendant could was held that the not object that he had no notice of the dishonour of the bill. Gurney moved to set aside the verdict, and to enter a nonsuit, on the ground of misdirection. He submitted, upon the authority of Hartley v. Case (a), that there was no evidence to prove the notice of dishonour. TINDAL, C. J.-This comes within that class of cases where strict notice of dishonour is waived by the defendant's own conduct (b). I think we ought not to disturb the verdict. The other Judges concurred. Rule refused (b). (a) 4 Barn, & Cress. 339. (b) See Phipson v. Kneller, 4 Cowp. 285. Jan. 28th. The Court refused to grant a new trial in the She POWER v. HORTON. THOMAS obtained a rule nisi, calling upon the plaintiff to shew cause The action was brought to recover riff's Court, upon the amount of a builder's bill, and at the trial, before the under-sheriff of the ground that the under-sheriff refused to allow the defendant's attorney to cross-examine some of the plaintiff's witnesses, it appearing that the cross-examination was unnecessary. Semble, that the Court will not require an under-sheriff to make an affidavit of circumstances which occurred at the trial. Warwick, a verdict was found for the plaintiff, for 51. 16s. 6d. The ground upon which the rule was moved, was that the under-sheriff refused to allow the defendant's attorney to cross-examine the plaintiff's witnesses. Gale shewed cause, upon an affidavit made by the plaintiff's attorney and one of the witnesses, which stated that the under-sheriff had refused to allow the defendant's attorney to cross-examine certain labourers item by item, as to the reasonableness of the plaintiff's charges, these witnesses being examined for the mere purpose of proving that the work had been done; the reasonableness of the charges was proved by surveyors who had been subjected to cross-examination. It also appeared that the defendant called witnesses, who were examined as to the unreasonableness of the charges. The undersheriff, upon an application being made to him, expressed his willingness to make an affidavit of the facts which occurred at the trial, if he should be required by the Court to do so. Thomas was heard in support of the rule. TINDAL, C. J.-No doubt, if the under-sheriff misconducted himself at the trial, the Court would interfere, but this is not a case of that description. It seems that the under-sheriff did prevent some cross-examination, but we must allow him to exercise some discretion in the management of a cause. Here, it appears that witnesses were called for the defendant, and the plaintiff nevertheless obtained a verdict. The rule must be discharged. PARK, J.-I am of the same opinion. The under-sheriff would frequently be placed in a disagreeable situation if he were required to make an affidavit of the facts which occurred at the trial. VAUGHAN, J., Concurred. Com. Pleas. v. HORTON. Rule discharged. BEESLEY'S BAIL. ANDREW'S, Serjt., opposed the bail upon the ground that one of the bail was the drawer of the bill of exchange, the subject of the action, defendant being the acceptor. He contended that the plaintiff, as indorsee, already had the drawer's security, he being liable to be sued on the bill. The bail states, in his affidavit, that W. H. Watson, in support of the bail. he is worth the sum required, over and cludes his liability on this particular bill. to found this objection: it differs from the case of an acceptor becoming bail for the drawer, because the acceptor is there primarily liable to pay the bill. BOSANQUET, J., referred to Harris v. Manley (a), Mitchell's bail (b), Barnesdall v. Stretton (c), and other cases referred to in Arch. Prac., 168, 3rd edition. (a) 2 Bos. & Pul. 526. (e) 2 Chitty Rep. 79. (b) 1 Chitty Rep. 287. Cur, adv. vult.. Jan. 11th. In an action against the accep exchange, it is no tor of a bill of objection to bail that he is the drawer of the bill. |