1841.

DOE

d.

STURT

บ.

MOBBS.

my father's handwriting upon it; I made out this account. by the authority of my father, acting as the receiver of rents for Mr. Sturt, and this account was, in the usual course of business, rendered to Mr. Sturt. The account is not signed."

Lord DENMAN, C. J.-This is an unsigned account, written by the clerk of the receiver of rents, and rendered to the employer. I think it is receivable in evidence.

The evidence was received (a).

Lord DENMAN, C. J.-You must apply this evidence to the land now in question.

Platt.-I shall show that the rent stated in these accounts to have been received from Mr. Scott, was paid for the ground now in dispute.

That evidence was given, and it was proved that the lessor of the plaintiff and his father had received rent for the ground in question ever since the year 1794.

Verdict for the plaintiff.

Platt, B. Andrews, and Barstow, for the plaintiff.
Erle, Godson, C. Clark, and Horrie, for the defendant.
[Attornies-Holme, Frampton & Young, and Smith & Allistons.]

In the ensuing term, Erle applied for a new trial, but the Court refused a rule.

(a) See the cases of Brune, Esq. v. Thompson, post, p. 34 ; Doe d. Bodenham v. Colcombe, post;

and Doe d. Lichfield (Earl) v. Stacey, 6 C. & P. 139.

Sittings in London after Trinity Term, 1841.

BEFORE LORD DENMAN, C. J.

1841.

CARRUTHERS v. GRAHAM and Others.

TROVER for plate, books, china, linen, and carriages. Pleas-first, not guilty; and second, that the plaintiff was not possessed.

It was opened by Platt, for the plaintiff, that this action was brought to try the validity of a fiat in bankruptcy, which had been sued out against the plaintiff, under which the defendant, Graham, was the official assignee, and the other defendants the creditors' assignees.

Notice had been given of disputing the validity of the fiat, and also the petitioning creditor's debt, trading, and act of bankruptcy.

On the part of the defendant, Mr. Edward Pontifex, one of the petitioning creditors, was called to prove the petitioning creditor's debt. He stated that he had assigned his debt.

Platt, for the plaintiff.—I submit that the petitioning creditor is not a competent witness. He has a direct interest in supporting the fiat; and it has even been doubted whether the petitioning creditor is a competent witness to prove the petitioning creditor's debt, even in a criminal prosecution (a). The effect of his evidence would be (as far as the petitioning creditor's debt is concerned), to prevent the plaintiff from upsetting the fiat. In the case of Green v. Jones (b), it was held by Lord Ellenborough, that, in an action by the assignees of a bankrupt, the petitioning

will make no difference.

To let in the examination of

a witness taken
bef

before the Mas-
ter, as evidence
under the stat.
1 Will. 4, c. 22,
on the ground
that the witness

is abroad, evidence must be given to satisfy the judge that

the witness is

actually out of the jurisdiction

of the Court at

the time of the

trial; and it will not be sufficient to prove that on the evening be

fore the trial the witness was

with his luggage

on board a

ship bound

for Montreal, the ship being then three quarters of a mile below Gravesend, waiting for her captain to come on board.

(a) See the case of Rex v. Walters, 5 C. & P. 138.

(b) 2 Camp. 411.

1841.

CARRUTHERS

ข.

GRAHAM.

creditor was not a competent witness to support a commission of bankruptcy, although he might be called on the other side to prove it invalid; and his Lordship observes, that the petitioning creditor "enters into a bond to the Lord Chancellor, conditioned to establish the several facts upon which the validity of the commission depends, and to cause it to be effectually executed. He has, therefore, a clear and direct interest in the question at issue." That decision related to a commission of bankrupt, but under the stat. 6 Geo.4, c.16, s. 13, the petitioning creditor, before a fiat in bankruptcy is issued, must now "give bond to the Lord Chancellor in the penalty of £200, to be conditioned for proving his or their debt or debts, as well before the commissioners as upon any trial of law, in case the due issuing forth of the commission be contested, and also for proving the party to have committed an act of bankruptcy at the time of taking out such commission, and to proceed on such commission." And by the 16th section of the Bankruptcy Court Act, 1 & 2 Will. 4, c. 56, all "laws, statutes, rules, and orders" then in force relating to bankruptcy, are to extend to fiats in bankruptcy, so far as they are applicable thereto.

Kelly, Montagu Chambers, and Butt, for the defendants. -By the 13th section of the Bankrupt Act, 6 Geo. 4, c. 16, the bond of the petitioning creditor is not to be assigned to the party who is sought to be made bankrupt, merely because the petitioning creditor cannot support the fiat. The words of the section are, "but if such debt or debts shall not be really due, or if, after such commission taken out, it be not proved that the party had committed an act of bankruptcy at the time of the issuing of the commission, and it shall also appear that such commission was taken out fraudulently or maliciously, the Lord Chancellor shall and may, upon petition of the party or parties against whom the commission was so taken out, examine into the same, and order satisfaction to be made to him or them for

the damages by him or them sustained; and for the better recovery thereof, may assign such bond or bonds to the party or parties so petitioning, who may sue for the same in his or their name or names." In the case of Wright v. Lainson and Another (a), which was an action against the Sheriff of Middlesex for a false return of nulla bona to a writ of fieri facias, the defendants wished to set up the bankruptcy of the person against whom the writ of fieri facias had been sued out; and, to prove the petitioning creditor's debt, they called the petitioning creditor. His evidence was objected to, but was received by Lord Abinger, subject to a motion in the Court of Exchequer; and that Court afterwards intimated an opinion that the evidence was properly received.

Platt. This case is very different from that of Wright v. Lainson. The sheriff in that case was not indemnified by the assignees, and the counsel for the sheriff, in arguing the case of Wright v. Lainson, say that the "trial at law," mentioned in the 13th section of the Bankrupt Act, 6 Geo. 4, c. 16, "cannot mean a trial at law between parties over whom the assignees have no control whatever. It must mean a trial where the assignees are parties, or where the Court directs an issue to try the bankruptcy, where, if the bankruptcy were not proved, it might be made a ground for a petition for a supersedeas." The case of Wright v. Lainson went off upon another ground, and on this point Lord Abinger merely says, that, "as at present advised," the Court were with the defendant's counsel.

Lord DENMAN, C. J.-I think that in this case the petitioning creditor is not a competent witness.

Mr. Edward Pontifex was not examined, and other evidence was given of the petitioning creditor's debt.

(a) 2 M. & W. 39.

1841.

CARRUTHERS

v.

GRAHAM.

1841.

CARRUTHERS

v.

GRAHAM.

On the part of the plaintiff, it was proposed to put in the examination of Mr. Frederick Fraser Carruthers, taken before Sir Fortunatus Dwarris, one of the Masters of the Court, pursuant to a rule of Court of the 5th of June, 1841 (a).

To let in this evidence, Mr. Edward Paterson was called; he said, "I saw Mr. F. F. Carruthers on board the ship Diomede, which was bound for Montreal. I left him on board that ship at three o'clock yesterday afternoon; he had his luggage on board. I saw the ship as late as seven yesterday evening, at between half and three-quarters of a mile below Gravesend. The vessel was waiting for the captain."

Lord DENMAN, C. J.-I think that this is not sufficient. Evidence should be given to satisfy me that this witness is not within the jurisdiction of this Court at the time of the present trial (6).

The evidence was rejected.

Verdict for the defendants.

Platt and Hoggins, for the plaintiff.

Kelly, Montagu Chambers, and Butt, for the defendants. [Attornies-W. Paterson, and Bartlett & Beddome.]

In the ensuing term, Platt applied for a new trial, but the Court refused a rule.

(a) For the discussion on that rule, see 10 Law Journ. N. S., Q. B. 364.

(b) By the stat. 1 Will. 4, c. 22, s. 10, it is enacted, "That no examination or deposition to be taken by virtue of this act shall be read in evidence at any trial without the

consent of the party against whom the same may be offered, unless it shall appear to the satisfaction of the judge that the examinant or deponent is beyond the jurisdiction of the Court, or dead, or unable from permanent sickness or other permanent infirmity to attend the