1846.

ΜΑΥ

V.

be that, if the injury was solely occasioned by the wil- Queen's Bench. fulness of the plaintiff after warning, that may be a ground of defence, by plea in confession and avoidance: but it is unnecessary to give any opinion as to this; for we think that the declaration is good upon the face of it, and shews a primâ facie liability in the defendant.

It was said, indeed, further, on the part of the defendant, that, the monkey being an animal feræ naturæ, he would not be answerable for injuries committed by it, if it escaped and went at large without any default on the part of the defendant, during the time it had so escaped and was at large, because at that time it would not be in his keeping nor under his controul: but we cannot allow any weight to this objection: for, in the first place, there is no statement in the declaration that the monkey had escaped, and it is expressly averred that the injury occurred whilst the defendant kept it: we are besides of opinion, as already stated, that the defendant, if he would keep it, was bound to keep it secure at all events.

The rule therefore will be discharged.

Rule discharged (a).

BURDETT.

cow, that doth damage, where the owner knows of it, he must at his peril keep him up safe from doing hurt, for though he use his diligence to keep him up, if he escape and do harm, the owner is liable to answer da mages." 1 Hale's P. C. 430. Part I. c. 33.

(a) See Jackson v. Smithson, 15 M. & W. 56s. Also, Card v. Case, in C. B., Feb. 9. 1848.

Volume IX. 1846.

Tuesday, June 2d.

Under stat. 5
& 6 Vict. c. 122.,
if a trader,
summoned by
his creditor

under sect. 11,
and being in-
debted to him
in 149/. 4s.,
signs an admis-
sion that he is
indebted to
such creditor in

149., and there
is nothing to
shew that the
4s. was inten-
tionally

omitted, such

PENNELL and Others, Assignees of BRADSHAW, a
Bankrupt, against RHODES and CRUCKNELL.

THIS

HIS was a feigned issue to try the right of the plaintiffs, as assignees of Bradshaw, to certain goods seized in execution by the defendants. A verdict was found for the plaintiffs by consent, subject to the opinion of this Court upon a special case, the material parts of which are as follows.

The plaintiffs are the official and trade assignees of the bankrupt. The fiat issued, March 27th, 1844, on a debt due to one Cyrus Jay from the bankrupt, who was a trader within the statutes concerning bankrupts. trader does not on 5th February 1844, and from thence up to and upon 3d March 1844, and thence hitherto, save as after mentioned, the bankrupt was indebted to the dething required fendants as copartners in trade, in the way of their business as woollen warehousemen, in the sum of 1491. 4s. for principal money on a bill of exchange, dated October 2nd 1843, due 5th February 1844, and specified in the affidavit after mentioned. For the reco

commit an act of bankruptcy if he omits to perform any

by sect. 13 or sect. 15 from

parties refusing to admit debts

on summons, or

admitting them in part.

the trader,

having, on summons, given an admission according to

stat. 5 & 6 Vict.

c. 122., agrees

very

of that debt the defendants instituted proceedings under stat. 5 & 6 Vict. c. 122., as after detailed.

On February 7th, 1844, defendants served Bradshaw with the credi- with particulars of demand, and a notice requiring paytor to deposit

bills with him

as a security,

and submit to a Judge's order for payment of the debt by instalments, with which terms the creditor is satisfied, no act of bankruptcy is committed though more than fourteen days elapse between the filing of the admission and the day appointed for fulfilling the stipulated terms, provided the agreement itself be made within the fourteen days; for in such case the trader has compounded for the demand in due time, to the satisfaction of the creditor, within the meaning of sect. 14.

1846.

PENNELL

V.

RHODES.

ment of the said debt of 1497. 4s., in the form specified Queen's Bench. in stat. 5 & 6 Vict. c. 122., sched. A., No. 2 (a). And, on February 8th, they filed an affidavit in the Court of Bankruptcy (Bradshaw residing within the jurisdiction), in the form specified in sched. A., No. 1 (a). On the same 8th February, a summons, in the form specified in sched. A., No. 3 (a), was issued under the hand of a Commissioner at the instance of the defendants, and served upon Bradshaw. It stated that Bradshaw was thereby required to appear before the Court of Bankruptcy, the purpose being to ascertain whether or not he admitted the demand of the defendants, who claimed of him 1497. 4s. for a debt, or any or what part thereof, or whether he verily believed that he had a good defence to the said demand, or to any and what part thereof.

On February 15th, 1844, the admission, hereinafter set forth, of the said debt or demand was made and signed by the bankrupt elsewhere than before the said Court of Bankruptcy, with reference to the provisions of stat. 5 & 6 Vict. c. 122. s. 17.; there being then present on behalf of the said James Bradshaw, Mr. Daniel Davies, an attorney &c. (The case stated the presence and attestation of an attorney, conformably to the last mentioned clause.) The admission was as follows (b).

(a) Referred to by sect. 11.

(b) Stat. 5 & 6 Vict. c. 122., "for the amendment of the law of bankruptcy," enacts (8. 12.): “That, upon the appearance of any such trader so summoned as aforesaid, it shall be lawful for such court to require such trader to state whether or not he admits the demand of such creditor so sworn to as aforesaid, or any and what part thereof, and if such trader shall admit such demand or any part thereof to reduce such admission into writing, in the form specified in the schedule hereunto annexed (B. No. 1.), and such admission so reduced into writing such trader is hereby required to sign, and the same is thereupon to be filed in such court." The

Volume IX. 1846.

PENNELL

V.

RHODES.

I, the undersigned James Bradshaw, of 13 Mary-leBone Street, in the county of Middlesex, do hereby confess that I am indebted to Messrs. Rhodes & Crucknell,

same clause empowers the Court to allow the trader on his appearance to make a deposition (which shall be filed) in the form specified by sched. B., No. 2., "that he verily believes he has a good defence to the said emand, or to some and what part thereof."

Sect. 13 enacts: That if any such trader so summoned as aforesaid shall not come before such Court at the time appointed (having no lawful impediment &c.), "or if any such trader, upon his appearance to such summons," "shall refuse to admit such demand, and shall not make a deposition, in the form hereinbefore mentioned, that he believes he has a good defence to such demand, then," "if such trader shall not, within fourteen days after personal service of such summons, or within such enlarged time as may be granted to him in that behalf, pay, secure, or compound for such demand to the satisfaction of such creditor, or enter into a bond, in such sum and with two sufficient sureties as such Court shall approve of, to pay such sum as shall be recovered in any action which shall have been brought or shall thereafter be brought for the recovering the same," with costs &c., "every such trader shall be deemed to have committed an act of bankruptcy on the fifteenth day after service of such summons, provided a fiat in bankruptcy shall issue against such trader within two months from the filing of such affidavit" (as mentioned in s. 11).

Sect. 14 enacts: "That if any such trader so summoned as aforesaid upon his said appearance shall sign an admission of such demand in the form aforesaid, and shall not, within fourteen days next after filing of such admission, pay, or tender and offer to pay, to such creditor the amount of such demand, or secure or compound for the same to the satisfaction of the creditor, every such trader shall be deemed to have committed an act of bankruptcy on the fifteenth day after the filing of such admission, provided a fiat in bankruptcy shall issue against such trader within two months from the filing of such affidavit."

Sect. 15 enacts: "That if any such trader so summoned as aforesaid shall upon his said appearance sign an admission for part only of such demand in the form aforesaid, and shall not make a deposition in the form hereinbefore required that he believes he has a good defence to the residue of such demand, then and in such case, if such trader, as to the sum so admitted, shall not, within fourteen days next after the filing of such admission, pay, or tender and offer to pay, to such creditor the sum so admitted, or secure or compound for the same to the satisfaction of the creditor, and as to the residue of such demand shall not, within fourteen days after personal service of such summons, or within such enlarged

of

in the sum of one hundred and forty nine Queen's Bench.

pounds. Dated the 15th day of February, 1844.

1846.

"Witness Daniel

"Davies, Attorney," &c.

James Bradshaw,"

The admission was, on the same day, duly filed. No further or other admission, deposition or other proceeding whatever was had, made or entered into, and no further or other step was taken in the said Court of Bankruptcy by the said bankrupt, until the said fiat issued: there was no enlargement of the time for complying with the said summons, and in fact no enlargement of time for any purpose whatever. The bankrupt (except as hereinafter appears) did not pay or tender or offer to pay, or in any manner secure or compound for,

PENNELL

V.

RHODES.

time as may be granted to him in that behalf, pay, secure, or compound for the same to the satisfaction of such creditor, or enter into a bond," &c. to pay such sum as shall be recovered &c. (as in sect. 13), "every such trader shall be deemed to have committed an act of bankruptcy on the fifteenth day after service of such summons, provided a fiat in bankruptcy shall issue against such trader within two months from the filing of such affidavit."

Sect. 16 enacts: That, if the trader summoned "shall, upon his appearance before such court, refuse to sign the admission in that behalf required as aforesaid, whatever may be the nature of his statement, or whether he makes any statement or not, it shall be deemed, for the purposes of this act, that every such trader thereby refuses to admit such demand." Provided always, that it shall be lawful for the Court, on reasonable cause shewn, to enlarge the time for calling upon the party to state whether or not he admits &c.

Sect. 17 enacts: "That an admission of any debt made after such summons as aforesaid, and signed by any such trader elsewhere than before such court, may be filed in such court, and shall be of the same force and effect to all intents and purposes as an admission signed by such trader so summoned as aforesaid on his appearance in such court," provided there be present some attorney named by and attending at the request of such party, to inform him of the effect of such admission, and that such attorney subscribe his name as a witness, &c., and that such admission be made in the form of the annexed schedule (C).