ostensible reasons for it (y). So, if done to avoid an arrest (z), even although merely for the purpose of gaining the term (a); or if done to avoid the importunity of creditors (b); or if done under a pretence which is false (c); or if a trader receive his creditor, and leave his house under a pretence of going for money to pay him, but, instead of doing so, go to a billiard table, and do not return for many hours afterwards (d); or make an appointment to meet and pay his creditor, and fail to keep it (e): these, and the like, are circumstances from which it may be fairly presumed that a trader's intention was to delay his creditors, for the necessary consequence of them was, that the creditors must have been delayed by them. But even where such a presumption is raised by circumstances attending the act, it may nevertheless be rebutted by evidence shewing that the trader did not at the time entertain the intention imputed to him. As, for instance, if he prove that, upon departing the realm, he left a partner behind him in England (ƒ); or that his presence abroad was absolutely necessary, in order to look after his concerns there (g): or that, previous to his departure, he made arrangements that the interests of his creditors should be attended to during his absence (h); or that he advertised in the public papers that he was going, that his ship would sail within the month, and that he would take charge of shipments (i); or in the case of a denial to a creditor, that the creditor called on a Sunday (k); or that he was denied because he called whilst the trader was at dinner, or engaged in some particular business, or at any other unseasonable hour (1); or because the trader was sick (m); or that the creditor called at the private house of the trader, and was there desired to go to the counting house, because the trader never received persons on business at his private house (n); all these and the like circumstances may be given in evidence, to rebut the presumption of the trader's intention, arising from circumstances accompanying the act, such as those above mentioned. And the act must be done with intent to defeat or delay creditors; for if done to avoid performing a mere duty, as to avoid an arrest upon an excommunicato capiendo or the service of process to enforce a decree in Chancery, (unless a decree for the payment of (y) See Woodier's case, Bull. N. P. 39: Raikes v. Poreau, Cooke, 85: and dict. per Lawrence, J., in Fowler v. Padget, 7 T. R. 156. (2) Williams v. Nunn, 1 Taunt. 270: Holroyd v. Gwynne, 2 Taunt. 176: Warner v. Barber, 1 Holt, 175: Chenoweth v. Hay, 1 M. & S. 676: Harvey v. Ramsbottom, 2 D. & R. 142; 1 B. & C. 55: Er p. Bamford, 15 Ves. 459. (a) Maylin v. Eyloe, 2 Str. 809. (b) Ramsbottom v. Lewis, 1 Camp. 279: Dudley v. Vaughan, Id. 271: but see Vincent v. Prater, 4 Taunt. 603. R. 306. (f) Ramsbottom v. Lewis, 1 Camp. 272. (g) Ex p. Mutrie, 5 Ves. 574: Warner v. Barber, 1 Holt, 175: and see Fowler v. Padget, 7 T. R. 509. (h) Ramsbottom v. Lewis, 1 Camp. 277: and see Windham v. Paterson, 1 Stark. 144. (i) Ex p. Osborne, 2 Ves. & B. 177. (k) Ex p. Preston, 2 Ves. & B. 311; 2 Rose, 21. (1) Smith v. Currie, 3 Camp. 349: Shaw v. Thompson, 1 Holt, 159: Exp. Hall, 1 Atk. 201. (m) Bull. N. P. 39. (n) Round v. Byde, Cooke, 110, 111. money (0),) or to avoid an attachment upon an award for not delivering goods pursuant thereto (p), it will not of itself constitute an act of bankruptcy, unless accompanied by circumstances from which also an intent to defeat or delay creditors may fairly be presumed. 13. Lying in Prison twenty-one days.] By stat. 6 Geo. 4, c. 16, s. 5, it is enacted, "that if any such trader, having been arrested or committed to prison for debt, or on any attachment for nonpayment of money, shall, upon such or any other arrest or commitment for debt or nonpayment of money, or upon any detention for debt, lie in prison for twenty-one days, or, having been arrested or committed to prison for any other cause, shall lie in prison for twenty-one days after any detainer for debt lodged against him, and not discharged, every such trader shall be thereby deemed to have committed an act of bankruptcy A clause similar to this was in stats. 1 Jac. 1, c. 15, s. 2, and 21 Jac. 1, c. 19, s. 2, varying from it principally in the period of the imprisonment required by them to constitute an act of bankruptcy, and in the clause of relation, which is altogether omitted in the present statute: the period of imprisonment in stat. 1 Jac. 1, c. 15, s. 2, is six months; in stat. 21 Jac. 1, c. 19, s. 2, two months; and in this act, twenty-one days. But by this section of the present act, it is provided, "that if any such trader be in prison at the time of the commencement of this act, such trader shall not be deemed to have committed an act of bankruptcy, until he shall have lain in prison for the period of two months.' The day of arrest or commitment is reckoned inclusive (q); and the docket may be struck, and the fiat issued, on the last of the twenty-one days, if the act of bankruptcy is actually completed before the date of the fiat (r). This act of bankruptcy not being completed till the twenty-one days are expired, does not elate back to the first day of the arrest or imprisonment, as under the former statutes (s); and to making a lying in prison an act of bankruptcy, the trading must be before the imprisonment (†). In order to constitute this act of bankruptcy, however, there must be an uninterrupted imprisonment of twenty-one days under the arrest or commitment. Therefore, if a man arrested be bailed out before the expiration of twenty-one days, and afterwards render in discharge of his bail, and remain in custody twenty-one days or upwards, this act of bankruptcy consists entirely of the imprisonment subsequent to the render, and the time commences on the day of the render, and not on that of the original arrest (u). If a trader arrested by a sheriff's officer be allowed to go at large for a few days, and then return into custody, and be removed by habeas into the custody of the marshal, and remain there the requisite time, 9. (0) Com. Dig. Bankrupt C.: 1 Coke, (p) Per Wilies, C. J., in Linwood v. Eade, 1 Atk. 196. (9) Glassington v. Rawlins, 3 East, 407. (r) Erp. Dufrene, 1 V. & B. 51. (8) Higgins v. M'Adam, 3 Y. & J. 1: Moser v Newman, 6 Bing. 556. (t) Er p. Lynch, Mont. 453. (u) Ec p. Dufrene, 1 Ves. & B. 51: Tribe v. Webster, Willes, 464. the uninterrupted imprisonment commences upon his return into custody (x). Where a trader was arrested, but, being too ill to be removed, was allowed to remain in his house in custody of the bailiff's follower, and was afterwards removed to a lock-up house, as soon as it could be accomplished with safety, it was holden that the imprisonment commenced at the time of the arrest, because there had been in fact a continued imprisonment from that time (y). So, where a man was arrested, and sham bail put in for him, merely for the purpose of having him removed to the prison of the court, and he was removed accordingly, the lying in prison was holden to commence on the day of the arrest, and not on the day of the render; for there was, in fact, no interruption of the imprisonment, but a mere transfer of the prisoner from one custody to another (z). So also, having the benefit of the day-rules is not an interruption of the imprisonment; for if the party is not actually within the walls, he is attended by an officer, or on security for the day, and bound to return in the evening (a). Where the arrest or commitment for a debt, it must be a legal debt; and therefore lying in prison upon an arrest at the suit of an executor, before probate, is not an act of bankruptcy (b). Formerly a person in custody for a crime (unless in custody under the commissioner's warrant, for not answering (c), or the like) could not commit an act of bankruptcy by lying in prison; even although he at the same time were detained for debt, and remained in prison twenty-one days after such detainer (d); but this is now altered by the above section of the present statute, which, after mentioning an arrest and commitment for debt, says, "or having been arrested and committed to prison for any other cause, shall lie in prison for twenty-one days after any detainer for debt lodged against him," &c. And it has been recently holden, that lying in prison, detained for the nonpayment of Exchequer penalties for smuggling, was an act of bankruptcy (e). 14. Or, if any such trader, having been arrested, committed, or detained for debt, shall escape out of prison or custody, every such trader shall be deemed to have thereby committed an act of bankruptcy from the time of such arrest, commitment, or detention.] It must be an escape in fact, and not merely that which might be deemed an escape in contemplation of law. And therefore, where a prisoner, arrested in Kent, and brought up by habeas, was allowed to call at his attorney's in the City, by the officer who accompained him, before he brought him to the judge's chambers, this, though an escape in law, was holden not to be such an escape as would constitute an act of bankruptcy, the prisoner having been substantially in custody the whole of the time (f). The words "being so ar (z) Barnard v. Palmer, 1 Camp. 509. W) Stevens v. Jackson, 4 Camp. 164; 1 Marsh, 469; 6 Taunt. 106. (2) Rose v. Green, 1 Burr. 437. (c) R. v. Page, 7 Price, 616. (d) Ex p. Bowes, 4 Ves. 168: and see Ex p. Hylliard, 1 Atk. 147. (e) Cobb v. Symonds, 1 D. & R. 111; 5 B. & A. 516. (f) Rose v. Green, 1 Burr. 437. rested, committed, or detained," have reference to those immediately preceding them in the section, and comprised in the 13th act of bankruptcy (ante, p. 60). 15. Filing a Declaration of Insolvency.] By stat. 6 Geo. 4, c. 16, s. 6, if any such trader shall file, in the office of the Lord Chancellor's secretary of bankrupts, a declaration in writing, signed by such trader, and attested by an attorney or solicitor, that he is insolvent, and unable to meet his engagements, the said secretary of bankrupts, or his deputy, shall sign a memorandum that such declaration hath been filed, which memorandum shall be authority for the printer of the London Gazette to insert an advertisement of such declaration therein; and every such declaration shall, after such advertisement inserted as aforesaid, be an act of bankruptcy committed by such trader at the time when such declaration was filed; but no commission shall issue thereupon, unless it be sued out within two calendar months next after the insertion of such advertisement, and unless such advertisement shall have been inserted in the London Gazette within eight days after such declaration was filed; and no docket shall be struck upon such act of bankruptcy, before the expiration of four days next after insertion of such advertisement, in case such commission is to be executed in London, or before the expiration of eight days next after such insertion, in case such commission is to be executed in the country; and the Gazette containing such advertisement shall be evidence to be received of such declaration having been filed. And by sect. 7, no commission under which the adjudication shall be grounded on the act of bankruptcy, being the filing of such declaration, shall be deemed invalid by reason of such declaration having been concerted or agreed upon between the bankrupt and any creditor or other person. 16. Filing Affidavit of Debt by Creditor.] By 1 & 2 Vict. c. 110, s. 8, if any single creditor, or any two or more creditors being partners, whose debt shall amount to £100 or upwards, or any two creditors whose debt shall amount to £150, or upwards, or any three or more creditors whose debts shall amount to £200, or upwards, of any trader within the meaning of the laws now in force respecting bankrupts, shall file an affidavit or affidavits in her majesty's court of bankruptcy, that such debt or debts is or are justly due to him or them respectively, and that such debtor, as he or they verily believe, is such trader as aforesaid, and shall cause him to be served personally with a copy of such affidavit or affidavits and with a notice in writing requiring immediate payment of such debt or debts, and if such trader shall not, within twenty-one days after personal service of such affidavit or affidavits and notice, pay such debt or debts or secure or compound for the same to the satisfaction of such creditor or creditors, or enter into a bond in such sum, and with such two sufficient sureties as a commissioner of the Court of Bankruptcy shall approve of, to pay such sum or sums as shall be recovered in any action or actions which shall have been brought, or shall thereafter be brought for the recovery of the same, together with such costs as shall be given in the same, or to render himself to the custody of the gaoler of the court in which such action shall have been, or may be brought according to the practice of such court, or within such time and in such manner as the said court or any judge thereof shall direct after judgment shall have been recovered in such action, every such trader shall have been deemed to have committed an act of bankruptcy on the 22nd day after service of such affidavit or affidavits and notice, provided a fiat in bankruptcy shall issue against such trader within two calendar months from the filing of such affidavit or affidavits, but not otherwise. The affidavit may be sworn before a Master Extraordinary in Chancery, and is to be filed in the Registrar's Office of the Court of Bankruptcy (g); the affidavit must be filed before the notice is given to the creditor; where the notice was given before affidavit filed, the Court refused the application of the trader to take the affidavit off the file (h). 17. Filing Petition in Insolvent Debtors' Court.] By 1 & 2 Vict. c. 110, s. 39, the filing of the petition of every person in actual custody who shall be subject to the laws concerning bankrupts, and who shall apply by petition to the Insolvent Debtor's Court for his discharge from custody, according to this act, shall be accounted and adjudged an act of bankruptcy from the time of filing such petition; and any fiat in bankruptcy issuing against such person, and under which he shall be declared bankrupt before the time appointed by the said court, and advertised in the London Gazette, for such prisoner to be brought up and dealt with according to this act, or at any time within two calendar months from the time of making any such order as aforesaid [namely, the order for vesting the estate of the trader in the provisional assignee of the Insolvent Debtors' Court]; whether upon the petition of such prisoner or the petition of any such creditor as aforesaid; shall have the effect of divesting the said real and personal estate and effects of such person out of the provisional assignee. Provided always, that the filing of such petition shall not be deemed an act of bankruptcy unless such person be so declared bankrupt before the time so advertised as aforesaid or within such two calendar months, as aforesaid: but that every such order as aforesaid, shall be good and valid notwithstanding any fiat in Bankruptcy under which such person shall be declared bankrupt after the time so advertised as aforesaid, and after the expiration of such two calendar months as aforesaid. The petition is considered as filed when it reaches its place of final custody, and not when it is delivered to an officer of the Court, part of whose duty it is to hand it over to another officer for final deposit (i). 18. Paying or securing Petitioning Creditor's Debt.] By stat. 6 Geo. 4, c. 16, s. 8, if any such trader, liable by virtue of this act to (g) Er p. Hall, 3 Dea. 405. (i) Garlick v. Sangster, 9 Bing. 46; 2 M. & Scott, 68. |