appointment of assignees, dated the 18th March, 1842, were put in.

To prove the trading, evidence was given that Mrs. Birch, for several years before the fiat issued, had kept a boarding-house, and supplied wine by a bottle at a time to such of her inmates as required it; and that, in the latter end of 1841, she laid in a stock of twenty dozen of port wine and twelve dozen of sherry.

Humfrey, for the plaintiffs, proposed to put in a paper in the handwriting of the bankrupt, which purported to be an account between her and Miss Scott, who, for several years before the fiat had issued, was one of the inmates in her boarding-house. The account purported to extend from December, 1840, to May, 1841.

Kelly, for the defendant.-I submit that this account is not receivable in evidence, unless it can be shewn to have been in existence before the bankruptcy.

Humfrey. The case of Sinclair v. Baggaley is an authority to shew that the date in an account is primâ facie evidence of the time of its existence (a), and all the dates in this account are long before the bankruptcy.

(a) In the case of Sinclair, assignee of Gee, a bankrupt, v. Baggaley, 4 M. & W. 312, which was an action for goods sold and delivered by the bankrupt, with a plea of set-off, it was held that a written paper, containing a statement of mutual accounts between the defendant and the bankrupt, by whom it was signed, bearing date previous to the bankruptcy, and showing a balance due to the defendant, was primâ facie evidence in this action that it was written at the time it bore date: and Lord Abinger, C. B., said, "It has never yet been held, or even

contended, that where a paper is
adduced in evidence against a bank-
rupt or his assignee, the document it-
self is not primâ facie evidence that it
was made at the time it bears date,
and I never yet knew an instance
where the defendant was called
upon to prove the actual date."

In the case of Anderson v. Wes-
ton and Badcock, 8 Scott, 583,
which was an action against the
defendants as the drawers of a bill
of exchange, it was held that a bill
of exchange must, in the absence
of evidence to raise a presump-
tion to the contrary, be taken to

1842.

GIBSON

v.

KING.

1842.

GIBSON

บ.

KING.

ALDERSON, B.-This paper, I think, does not on the face of it purport to have been made out before the bankruptcy. It is an account from December, 1840, to May, 1841; but it may very well have been made out after the bankruptcy.

As further evidence of the trading, Humfrey, for the plaintiffs, proposed to put in a book containing accounts between the bankrupt and Miss Scott of different dates, but all before the bankruptcy: the word "settled" being written in different parts of the book in the bankrupt's handwriting.

ALDERSON, B.-This book may have been made up years after the acts were done. You must shew that the accounts tendered in evidence existed before the bankruptcy. The decision of the Court of Exchequer, of which I was a member, in Sinclair v. Baggaley, has been greatly doubted.

The book was not given in evidence (b).

As to the act of bankruptcy, evidence was given with a

view of shewing an act of bankruptcy on the 19th of February, 1842, and another on the 3rd of March, 1842. With respect to the defendant's possession of the watches and plate, which were the subject of this action, three examinations of the defendant under the fiat were put in, and from them it appeared that he had at various times, commencing in the year 1836, advanced money to the bankrupt to the amount of more than 2000l.; and that, on the 12th of February, 1842, he commenced an action against her to recover the amount due to him, in which judgment was suffered to go by default, and in which final judgment was signed on the 28th of that month; and that, on the same day, the bankrupt induced him to lend her £55 on the deposit of the watches and plate, which were the subject of the present action; that he did then lend her the sum of £55 and received those articles as a security; and that, on the 1st of March, 1842, he sued out a writ of fieri facias against the bankrupt on the judgment he had recovered, under which the sheriff levied on her goods on the same day.

Humfrey, for the plaintiffs, proposed to go into evidence with a view of shewing that the defendant was not in circumstances to have advanced such large sums as were mentioned by him in his examinations; and he proposed to commence this head of evidence in the year 1836.

Kelly. I submit that the state of the defendant's circumstances in 1836 cannot be relevant on an inquiry as to whether he advanced the bankrupt a loan of £55 in 1842.

Humfrey. I put it as shewing the improbability of the statements in his examinations.

E. James, on the same side. The question will be, whether the bankrupt's suffering judgment to go by default in the action, which the defendant brought against her, is not

VOL. I.

HH

N. P.

1842.

GIBSON

บ.

KING.

1842.

GIBSON

v.

KING.

of itself an act of bankruptcy. It is a procuring her goods to be taken in execution, which is an act of bankruptcy; and I submit that, as far as the trader is concerned, the act is complete from the time the debtor allows the creditor to send in the execution.

ALDERSON, B.-It seems to me that a person allowing judgment to go by default suffers his goods to be taken in execution rather than procures them to be so: to constitute an act of bankruptcy there must be a procuring the goods to be taken in execution, and that procuring has no effect as an act of bankruptcy till the goods are actually taken.

Kelly. That was on the 1st of March, and the loan of the £55 by the defendant was on the previous day.

ALDERSON, B.-You have pleaded that the plaintiffs are not assignees, and on that issue they may give evidence of any act of bankruptcy before the issuing of the fiat; but if you will give up that issue, I will reject the evidence.

Kelly. I cannot do that.

ALDERSON, B.-I think that the evidence is admissible to shew the execution fraudulent, on the issue that the plaintiffs are not assignees.

The evidence was given.

Kelly, for the defendant, submitted that on this evidence the bankrupt was not a trader within the meaning of the bankrupt laws, and that the case of Smith and Another, assignees of Roberts, v. Scott (c), ought to be reconsidered.

(c) 2 Moo. & Sc. 35.-In that case it was held, that one who keeps a

lodging-house, supplying the guests with provisions at a small profit,

ALDERSON, B.-You may go to the Court on that point.

Verdict for the plaintiffs.

Humfrey and E. James, for the plaintiffs.

Kelly and Pashley, for the defendant.

1842.

GIBSON

v.

KING.

[Attornies-H. Lloyd, and W. H. King.]

On a subsequent day Kelly applied to the Court for a new trial, or to enter a nonsuit; but the Court refused a rule.

(such provisions not forming any common stock of the house, but being set apart for the particular individual or family for whom they are procured), is an hotel keeper within the meaning of the stat. 6 Geo. 4, c. 16, s. 2, and, as such,

subject to the bankrupt law. In
that case, the house was not licensed
as an hotel, and there was nothing
in the external appearance of the
house to indicate its character, save
a bill in the window on which was
written "Lodgings to let."

Third Sitting at Westminster in Michaelmas Term, 1842.

BEFORE MR. BARON ALDERSON.

CHAPMAN, Public Officer of the Newcastle, Shields,
and Sunderland Union Joint-Stock Banking Company,
v. BROWN.

ASSUMPSIT by the plaintiff, as public officer of the
above-named banking company, upon a bill of exchange
for 12647. 28. of which the company were indorsees.
bill having been drawn by the Northern Coal Mining Com-
pany on the defendant, and accepted by him, payable to

The

return day of the distringas, the plaintiff ought to apply for speedy execution, may not be delayed till the next term.

Nov. 21st.

In the Exche

quer, if a cause be tried at the third sitting in term, and

there be not four days re

maining in the

term after the
in order that he