Before this payment was made Harris had received a notice given to him by Martin, which notice, following the language of the act of the 1 & 2 Vict. c. 110, required immediate payment of the debt; and the act specifies that if the party do not, within twenty-one days after personal service of the affidavit, pay the debt, or secure, or compound for, the same, to the satisfaction of the creditor, or enter into a bond for such sum, with two sufficient sureties, as a commissioner of the court of Bankruptcy shall approve of, to pay the same, then that there shall be an act of bankruptcy deemed to have been committed on the twenty-second day after the service of tne affidavit, provided a fiat be sued out within a certain time.

Therefore, on the 5th of April, when Harris made this payment, he knew that, at any rate, on the 6th, he would be in a situation that Martin might, at any time within two months afterwards, sue out a fiat against him unless he performed one of the three conditions, none of which was he able to fulfil. Harris could not pay the debt, for he had exhausted all his money; he could not secure or compound for the same to the satisfaction of the particular creditor; for he knew that Martin, in [164] giving the notice, had shewn that he was unwilling to accept, and had determined not to accept, the composition which had been previously offered; he could not enter into a bond with two sufficient sureties such as the court of Bankruptcy should approve; because there was not time to perform that condition.

That being the state of the case, it further appears, that on the 21st of March, a notice had been given to the auctioneer, not to go on with the sale. It is impossible, under these circumstances, that Harris should not know that it was the intention of Martin to proceed adversely to him, and to issue the fiat.

Then the question is, whether this was not money paid in contemplation of bankruptcy; that is, under such circumstances that any prudent man taking a reasonable view of his situation, and the surrounding circumstances at the time, might fairly expect bankruptcy would follow; and I think we must say, that here there was such a contemplation of bankruptcy, and therefore that the case should be submitted to the consideration of another jury to exercise their judgment on that point.

I am not, however, prepared to say that the direction is of that description, that we can make any distinction between this and the ordinary case, where a cause is sent down again by reason of the verdict being against evidence. The learned judge indeed told the jury that in order to find this a payment made in contemplation of bankruptcy, they must be satisfied that bankruptcy was inevitable; but I do not think that the word "inevitable" was there used simpliciter, but rather secundum subjectam materiam, that is, with respect to this act of bankruptcy, which depended not on the act of himself, but on an act by a third person, in invitum.

I think what was passing in the mind of the judge, and what the jury might reasonably understand the substance of the whole direction taken together to be, is this, "if you think there is evidence that he had [165] bankruptcy in his view, then you must find for the assignees. But supposing you do not think that, yet, if you are satisfied he thought that bankruptcy was inevitable, still you must find for the assignees." Although taking particular parts of the summing up, the point of inevitable expectation of bankruptcy is perhaps put rather strongly, yet, looking at the whole together, I cannot call it a misdirection.

COLTMAN J. I am of the same opinion. I think the jury have come to an erroneous decision on the matter of fact, and though strong observations appear to have been made on those facts by the Lord Chief Baron, I am not prepared to say he did not, on the whole, make the jury understand correctly the nature of the point they had to decide; for he closes his summing up by saying, "If you think on the other hand he did not intend to commit bankruptcy at the time, and did not conceive that Mr. Martin would proceed to make him a bankrupt, then you ought to find for the defendant." That is his closing sentence; and that is correct. One can easily understand what may have led the jury to the conclusion they drew; viz. they imagined that Mr. Martin had dealt harshly; and they probably thought that the offer which Harris had originally made of 7s. 6d. in the pound to each of the creditors was a fair offer. That is a ground on which a jury might naturally act, yet it is not one that can be supported in point of law; for though Harris pays no more than 7s. 6d. in the pound to Mr. Muskett, which is the composition he is willing to pay to every one, yet, under the circumstances of the case, this payment cannot be exempted from falling within the consideration of the law as a fraudulent preference.

ERSKINE J. concurred.

[166] MAULE J. I am of the same opinion. I think that the direction of the judge was not erroneous. The specific act of bankruptcy proved is one of a peculiar nature, depending, not on what had been done or omitted by the bankrupt alone, but on what, if done at all, would be done by some one else. The learned judge, in effect, puts this to the jury. "If you are of opinion that Harris thought he could not help Mr. Martin making that an act of bankruptcy, which it would be at the option of Mr. Martin to make an act of bankruptcy or not, then the payment was in contemplation of bankruptcy." That appears to me to be quite correct. He used, indeed, the term "inevitable." That has been put as if that were meant by the judge, and understood by the jury, as a statement that unless an act of bankruptcy must absolutely and necessarily happen, and unless the bankrupt knew that, this was no payment in contemplation of bankruptcy. I do not think that is the fair meaning of the expression. It means, if he intended to do something himself which would amount to an act of bankruptcy, or if he knew he could not prevent another person from taking a step which would make him a bankrupt, then he must be held to have contemplated bankruptcy; that in either of these circumstances there was a fraudulent preference in contemplation of bankruptcy. I think that is explained by the passage my brother Coltman has read from the judge's summing up. He used the phrase, "if he knew he could not prevent Mr. Martin from proceeding to make him a bankrupt, and it cannot be said, I think, that he did not know that; and therefore it cannot be said the judge was incorrect. Probably if his lordship had pressed the fact to the jury in the way it has been pressed to this court, the jury might have come to a different conclusion. All that he has done, or rather has omitted to do, is, that he has not given an opinion on the matter of fact to the jury; but that is no misdirection ; that is an [167] error which may be rectified when the case goes before another jury. Rule absolute, on payment of costs.

The cause was tried a second time before Tindal C. J., at the summer assizes for 1841, when the jury again found a verdict for the defendant.

Nov. 5.-Sir T. Wilde Serjt., in Michaelmas term 1841, obtained a rule for a second new trial upon the ground, that by 1 & 2 Vict. c. 110, s. 8, the twenty-one days, at the expiration of which the trader, not having complied with the requisites of the act, is to be taken to have committed an act of bankruptcy, are to be calculated inclusively of the day on which the notice is given; and that, consequently, the payment was made after an act of bankruptcy; and, secondly, that the verdict was against the evidence which clearly established a fraudulent preference.

Channell Serjt. now shewed cause. First, the verdict was sufficiently supported by the evidence. The composition was perfectly fair. The only question is, whether the payment was made by Harris in contemplation of bankruptcy; and two juries having found that it was not, the court will not send the case to a third trial. There was nothing to shew that Harris must have contemplated bankruptcy at the time. It is true the plaintiff Martin, as a creditor, had filed his affidavit under the act, and served a copy, with notice, upon Harris, and if the latter did not do certain acts within the twenty-one days prescribed by the act, it was competent to the creditor to make his debtor a bankrupt, by issuing a fiat at any time within two months. But it does not follow that the creditor would take this step, and that the fiat would issue. The debtor might or might [168] not be aware that he had exposed himself to peril; but at any rate he could not know whether the creditor would take advantage of his situation. The right to obtain a fiat seems to be confined to the creditor who makes the affidavit. [Tindal C. J. That may be doubtful. The section says, that if the trader does not do certain things, he "shall be deemed to have committed an act of bankruptcy on the twenty-second day after service of such affidavit and notice, provided a fiat shall issue within two months;" so that if there is an act of bankruptcy, it would seem that any party might obtain the fiat.] Still the question would be, whether the bankrupt must necessarily have contemplated bankruptcy, as he could not know whether any creditor would obtain a fiat. [Tindal C. J. It increases the field against him at any rate.] The mere possibility, or even the probability, that a fiat would issue, would not be sufficient.

The argument upon the other point, viz.: whether the twenty-one days mentioned in the 1 & 2 Vict. c. 110, s. 8, were to be reckoned inclusively or exclusively of the day on which the notice was given, is omitted, as the judgment of the court did not

turn upon it. The learned serjt.,-who contended that the day of the notice was not to be reckoned in the twenty-one days,-cited Webb v. Fairmanor (3 M. & W. 473), Blunt v. Heslop (8 A. & E. 577, 3 N. & P. 553), Young v. Higgon (6 M. & W. 49), and In re Higham (9 D. P. C. 203), and distinguished Glassington v. Rawlins (6 East, 407), Ex parte Rose (4 Deac. 125), and Ex parte Whitby (id. 139, 1 Mont. & Chit. 671).

Talfourd Serjt. in support of the rule. The payment in this case, if made voluntarily and in contemplation of bankruptcy, was clearly a fraudulent preference in law. [169] The fairness of the composition is not the test, as to whether a payment amounts to a fraudulent preference. The principles of the rule upon which the doctrine of fraudulent preference is based, are laid down by Lord Mansfield C. J. in Alderson v. Temple (4 Burr. 2235. S. C. 1 W. Bl. 660), and also in Harman v. Fisher (1 Cowp. 117. S. C. Lofft. 472). Although the question of fraudulent preference may be one for the jury, yet it is one on the very verge of the law, and may properly be reviewed by a judicial tribunal and the court will not scruple to send down a case to a third trial, where they clearly see that the verdict is against law (c). It is clear that, under the circumstances of this case, Harris must have contemplated bankruptcy at the time the payment was made; and such was the decided opinion of this court in granting the former new trial in this case. The rule as to what shall constitute a sufficient contemplation of bankruptcy to make a voluntary payment amount to a fraudulent preference, is laid down in Poland v. Glyn (d), Gibbins v. Phillips (7 B. & C. 529, 2 Mann. & Ry. 238), Belcher v. Prittie (10 Bing. 408, 4 Moore & Sc. 295). In the latter case, although the payment was confirmed under the circumstances, the question was very fully discussed. In Gibson v. Bouts (3 Scott, 229), Tindal C. J. says, "Contemplation of bankruptcy I take to mean, where the party believes bankruptcy to be the necessary result of his condition, and such belief is operating upon his mind at the time of making the payment." And Bosanquet J. adds, "If a man, believing himself to be in danger of bankruptcy, voluntarily hands over money for the purpose of securing a favoured creditor, that, in my opinion, [170] is a payment made in contemplation of bankruptcy, within the meaning of the law as laid down upon the subject of fraudulent preference."

Upon the second point he was proceeding to argue that the day on which the notice was given, was to be included in the twenty-one days under the 1 & 2 Vict. c. 110, and consequently that they had expired on the 5th of April, the day on which the payment to the defendant was made, and, that, therefore, such payment was made after an act of bankruptcy. (Channell Serjt. Even in that case the payment would be protected by the 6 G. 4, c. 16, s. 82 (a), being, if not a fraudulent preference, a payment bonâ fide made by the bankrupt before the issuing of the fiat, without notice to the creditor of any prior act of bankruptcy.) It may perhaps be put, that the payment in this case was made during the very progress of the act of bankruptcy. [Erskine J. I think the act of bankruptcy must be taken to have been committed, either wholly before or wholly after the payment.] The argument on this point certainly is, that the act was committed before the payment, but even in that case there may be a payment which may well be said not to be made bonâ fide; though it may not amount to a fraudulent preference.

TINDAL C. J. I think the expression "payments really and bonâ fide made” in the eighty-second section [171] of 6 G. 4, c. 16, must mean payments of money not

(c) See Goodwin v. Gibbons, 4 Burr. 2108.

(d) 4 Bingh. 22, n., 12 B. Moore 109, n., S. C. 2 D. & R. 311; but as to this latter report, see the observations of Best C. J., 12 B. Moore, 109, and Park J., ib. 112.

(a) Which enacts, "That all payments really and bonâ fide made, or which shall hereafter be made, by any bankrupt, or by any person on his behalf, before the date and issuing of the commission against such bankrupt, to any creditor of such bankrupt (such payment not being a fraudulent preference of such creditor), shall be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed, and such creditor shall not be liable to refund the same to the assignees of such bankrupt, provided the person so dealing with the said bankrupt had not, at the time of such payment by such bankrupt, notice of any act of bankruptcy by such bankrupt committed.

intended to be reclaimed by the party; and it is clear there was no such intention in this case.

I must confess I have great reluctance in sending down any cause to a third trial; but cases may occur in which we cannot help feeling that justice has not been done. In the present instance there certainly appears to have been a struggle on the part of the jury against the bankrupt laws. But, without saying more to prejudice the case, I think it ought to go down again to trial, on payment of costs.

COLTMAN J. The question of fraudulent preference may really be considered as hardly other than a question of law. The jury were, perhaps, misled by what they may have thought the honesty of the case; but, being substantially a point of law, I agree there ought to be a new trial.

ERSKINE J. concurred.

Rule absolute, on payment of costs.

[172] HARTLEY v. MANSON. May 5, 1842.

[S. C. 1 D. N. S. 711; 11 L. J. C. P. 199.]

By the stamp act (55 G. 3, c. 184, sched. Part 1), a warrant of attorney is required to have an ad valorem stamp, except where it is given for securing a sum of money for which the party giving it is in custody, when a one pound stamp is sufficient. Where a warrant of attorney was given under such circumstances: Held, not necessary that it should appear on the face of it that the party was in custody.-Held also, that an interlineation in the instrument made by consent of both parties, after execution, stating the party to be "now a prisoner in the custody of the sheriff of K., was not an alteration in a material part of the instrument, so as to render a new stamp necessary (a).-Semble, that if, by reason of the insufficiency of the stamp, the warrant of attorney had been invalid, the court would not have granted a rule nisi to set it aside, inasmuch as the plaintiff might remove the objection before he would be required to shew cause against such rule (vide tamen post, 178 (b)).

Atcherley Serjt. applied for a rule to set aside the warrant of attorney, judgment, and execution, in this case, and to discharge the defendant out of custody. The following facts were stated from the affidavits. On the 13th of November 1839, the defendant being in the custody of a sheriff's officer, for 3701. at the suit of the plaintiff, executed a warrant of attorney, duly attested, for securing to the plaintiff that sum and costs; the defendant was therein described as "of the Grove, Woolwich, in the county of Kent;" the warrant of attorney was stamped with a 11. stamp. The defendant was then [173] discharged. On the following day the defendant received a note from the plaintiff, stating that the warrant of attorney required "a little formal addition;" and the plaintiff's clerk together with the attesting attorney, called upon the defendant in the afternoon of the same day with the warrant of attorney, and the former said it was necessary to insert the words, "but now a prisoner in the custody of the sheriff of the said county of Kent," after the word "Kent" in the description of the defendant in the warrant of attorney. The attesting attorney said he thought the alteration would invalidate the warrant of attorney, but the suggested alteration was made by the plaintiff's clerk. The defendant and the attesting attorney traced over their respective signatures with a dry pen, and the warrant of attorney was re-delivered by the defendant, no alteration having been made in the date. The attesting attorney had not been required by the defendant to attend or act for him on

(a) As to this latter point, vide Markham v. Gonaston, Cro. El. 626, which was an action on the case for destroying the effect of a bond by filling up blanks; S. C. 2 Roll. Abr. 29, 30, 13 Vin. Abr. 40. It appears from the report of the same case in Sir F. Moore, 547, pl. 730, that though the plaintiff recovered in the action on the case,--having been nonsuited in the action on the bond, upon non est factum pleaded, by reason of the alterations, he brought a second action on the bond, in which action, to a plea of issint non est factum, he replied that the blanks were filled up by the consent of obligors and obligee, and recovered. And see Anon. Select Cases in Chancery in Lord King's Time, 24, 13 Vin. Abr. 103, pl. 12.

That the defence should be specially pleaded, see Anon. Sir F. Moore, 66, pl. 179.

this occasion. Judgment had been entered up on the warrant of attorney, and the defendant, on the 15th of April 1841, was charged in execution under it, and had been in custody ever since.

The learned serjeant contended:-First, the warrant of attorney was invalid in its original condition, for not stating, upon the face of it, that the defendant was then in custody. By the stamp act (55 G. 3, c. 184), sched. Part I. tit. Warrant of Attorney, the same duty is imposed on a warrant of attorney as on a bond for the security of money, which is an ad valorem duty; but there is an exception "where the warrant of attorney shall be given for securing any sum or sums of money, for which the person giving the same shall be in custody under an arrest ;" in which case a 11. stamp is sufficient. But, as it does not appear on the instrument, that the defendant was in custody, an ad valorem stamp was necessary; and, without it, the warrant of attorney was void.

[174] Secondly, at the time of the re-execution of the warrant of attorney on the 14th, the defendant was not in custody, and therefore an ad valorem stamp was then clearly necessary. [Tindal C. J. These are merely objections as to the amount of the stamp; but of what use would it be to grant a rule? the plaintiff would go to the stamp office and set it right, pending the rule. In Burton v. Kirkby (7 Taunt. 174), where a judgment had been entered up on a warrant of attorney given on an insufficient stamp, this court held that the objection was cured by procuring the instrument to be stamped, although the defendant had applied to the court to set aside the judgment.]

Thirdly, the warrant of attorney was not duly attested under the stat. 1 & 2 Vict. c. 110, s. 9, on the 14th of November, the attesting attorney not having been required to act by the defendant. In Bailey v. Bellamy (9 Dowl. P. C. 507) a warrant of attorney to confess judgment for 10001. was executed by the defendant, and duly attested by an attorney on his behalf; an alteration was afterwards made, by consent, in the sum, by substituting 20001., and the defendant retraced his signature with a dry pen, and re-delivered the instrument. The attorney who was present wrote his initials opposite to the alterations, and drew a dry pen over the alterations, and over each letter of his own signature, and the court held that the warrant of attorney was not duly attested.

Fourthly, assuming the warrant of attorney to be valid on the 13th, the alteration made in it afterwards would render it void, being made in a material part. As it stood at first, parol evidence would have been requisite to shew that the defendant was in custody when the warrant of attorney was originally executed.

[175] TINDAL C. J. I see no sufficient ground of objection against this warrant of attorney to induce the court to grant the rule prayed for.

I am disposed to think that the warrant of attorney was good on the 13th of November; the only objection against it in its original shape being that it had an improper stamp, not indeed with reference to the actual situation of the defendant at that time, but on the ground that his situation did not appear, as it is contended it ought to have done, on the face of the warrant of attorney. But admitting that to be an objection, it is a sufficient answer to say the court would not be inclined to grant a rule to set aside a warrant of attorney merely on the ground of its bearing an imperfect stamp, because while the rule was pending the parties might set the matter right by going to the stamp office and paying the penalty. But, as I have before stated, I think that-rebus sic stantibus-in the state of affairs on the 13th of November, this was a good warrant of attorney.

Then the question arises whether a material alteration has been made in the instrument since that time, so as to vitiate it. The authorities are strong to shew that if a deed be altered in an immaterial part, by a stranger (a), or in a material part

(a) For this position Comyns cites 11 Co. 27 a. (Henry Pijot's case), where, in a bail-bond, the words "sheriff of the county of Oxford" were added after the execution. The defendant pleaded non est factum, without demanding oyer of the bond or condition. The court gave judgment for the plaintiff upon a special verdict, on the ground that for any thing which appeared to the court, the alteration may have been made in a point not material. Had oyer been demanded, it would have appeared that the bond, as originally drawn, was void, as being a bail-bond made to the sheriff otherwise than by his name of office; Guybon v. Whitetost, Cro. El. 800; Noel v. Cooper, Palmer, 378; Kirkebridge v. Wilson, 2 Lev. 123.