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1820.

LLOYD

v.

HEATHCOTE.

Mr. Serjt. Taddy now shewed cause. The main question is, whether the bankrupt began to keep house, with an intent to defraud or delay his creditors. It is quite clear that he caused himself to be denied to the collector, who must be considered as a creditor, as the assessments demanded by him constituted a debt due from the bankrupt at the time. As to whether it amounted to an absenting himself was not raised at the trial. It is not necessary that there should be a denial to a creditor;-if there be a beginning to keep house it is sufficient. In Bayly v. Schofield (a), it was held, that if a trader under an arrest for debt, escape from the officer, and remain in another person's house until dark, and then return home, and give directions to be denied to any one that called, it constituted one or more act or acts of bankruptcy, under the meaning of the words of the statute, " beginning to to keep house," or "otherwise absenting himself." And Mr. Justice Le Blanc there said (b), "a denial is not one of the acts of bankruptcy enumerated in the statute. It has indeed been received as conclusive evidence, if unexplained, of an limited amount unduly refused or withheld, should in certain cases, be more easily and speedily recovered, it was enacted, that after the passing of that act, if any one duly rated to a church rate, the validity whereof has not been questioned in any Ecclesiastical Court, should refuse or neglect to pay the same sum at which he was so rated, it should be lawful for any one Justice of the Peace of the same county, &c. where the church was situated, in respect whereof such rate should have been made, upon the complaint of any churchwarden or churchwardens, who ought to receive and collect the same, by warrant under the hand and seal of such Justice, to convene before any two or more of such Justices, any person so refusing or neglecting to pay such rate, and to examine upon oath into the merits of the said complaint, and by order under their hands and seals, to direct the payment of what was due and payable in respect of such rate, so as the sum ordered and directed to be paid as aforesaid, do not exceed 107. over and above the reasonable costs and charges, to be ascertained by such Justices; and upon refusal or neglect of such party to pay according to such order, it should be lawful for any one of such Justices, by warrant under his hand and seal, to levy the money thereby ordered to be paid, together with the amount of such costs and charges, by distress and sale of the goods of such offender, rendering only the overplus to him, the necessary charges of distraining being thereout first deducted and allowed by the said Justices.

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act of bankruptcy, by beginning to keep house; but it is not
the only evidence by which an act of bankruptcy may be
established. It may be proved also, by evidence of his absent-
ing himself, or of his keeping his house with intent to delay
his creditors;" and Mr. Justice Bayley observed, (a) that
an actual denial to a creditor is not essential to constitute an
act of bankruptcy by beginning to keep house." Here,
there can be no doubt as to the intent; and in Dudley v.
Vaughan (b) it was determined, that if a trader withdraws
from one part of his house where he had before usually sat,
and where there was free access to him, to a more retired
part of it, to avoid personal applications for money, by
means whereof his creditors were prevented from impor-
tuning him, it is a beginning to keep house, within the
meaning of the statute. So, here, it appeared that the
bankrupt went from his house to the yard. The intent
to delay creditors is strengthened by an act of denial,
although such denial does not of itself constitute an act
of bankruptcy. So, in Robertson v. Liddell (c) it was held,
that
an intention to delay creditors, although no delay
takes place, is an act of bankruptcy, and a denial is usually
given in evidence, not to shew the fact of the creditors being
delayed, but as evidence to explain the equivocal act of the
trader's keeping in his house, and to shew that he began to
keep house with intent to delay his creditors. But this case
is undistinguishable in principle from that of Jeffs v.
Smith; and whether process could be immediately sued out
or not, to recover the arrears of the church and highway rates,
the collector was equally a creditor, whatever the nature of
his remedy might be, provided the rates were due at the
time they were demanded, and they constituted a debt from
the moment of the assessment. The bankrupt caused him-
self to be denied to a person who had a legal demand, and
who was no less a creditor than another, because he had no
immediate remedy or mode of enforcing it, and whether he
(e) 1 Maul. & Selw. 354.- -(b) 1 Campb. 271.- -(c) 9 East, 487.

1820.

LLOYD

v.

HEATHCOTE.

1820.

LLOYD

V.

called to collect taxes due to the crown, or rates for the benefit of the public, it makes no difference whatever. The statutes relative to bankrupts make no distinction between HEATHCOTE. debts recoverable immediately at law, and those which may become payable in future, for by the 7 Geo. 1. c. 31. s. 1. bills and notes, although not due at the time of issuing a commission, are proveable under it, on deducting a rebate of interest; and by the 49 Geo. 3. c. 121. s. 9. all bonâ fide debts not payable at the time of the bankruptcy, may be proved on those terms. So, by the 5 Geo. 2. c. 30. s. 22. persons having such securities may become petitioning creditors, though they may not have the immediate means of suing out execution. Here, there was not only a manifest intent by the bankrupt to delay his creditors, and of his beginning to keep house for that purpose, but a sufficient absenting himself to constitute an act of bankruptcy within the meaning of the statute.

Mr. Serjt. Lens, in support of the rule.-As to whether there was a sufficient absenting himself by the bankrupt, to constitute an act of bankruptcy, requires further evidence, and that point was not raised at the trial. It has never been decided, that a person can be deemed to have absented himself, by merely going from one part of his premises to another. The cases cited as to this point, do not prove the position contended for; and in Bayly v. Schofield the trader had escaped into another person's house, and the judgment of the Court was founded expressly on that circumstance. But here, his merely going from his house to his yard was not an absenting himself to delay his creditors. The only point in question therefore, is, whether the collector of the rates, who stands in the situation of an officer having a particular remedy afforded him by the statutes, in case of default of payment of such rates, can be considered as a creditor in the present instance. He had at first only a power to demand payment, and in case of refusal to pay the sums assessed within ten days from the time of

such demand, to levy the same by distress, under the 13 Geo.3.
c. 78. in default of which, the party refusing might be com-
mitted to prison until the sums so assessed were paid; and
the 53 Geo. 3. c. 127. contains a similar provision, as on com-
plaint of the churchwarden to a Magistrate of a person neg-
lecting to pay, such Magistrate may after order, issue his war-
rant to levy the sum due by distress and sale. The pay-
ment of these sums therefore, could not be enforced either
by distress or otherwise, until the expiration of ten days
from the time the demand was made, or after the order was
issued, and they cannot be said to be due, or constitute a
debt, until the provisions of those statutes had been complied
with in this respect. It is therefore, in the nature of an
inchoate debt, creating a mere liability to pay in the first
instance; and if the person on whom the demand is made
happens to be from home, no proceedings can be taken
against his goods or person, either by distress or otherwise,
until the expiration of the time limited by those statutes.
In Jeffs v. Smith, it was a debt due to the King, and the
Crown might have sued immediately, without the interval of
ten days, or waiting for the order of a Magistrate. The
statutes which have been referred to as applicable to cases
of bankruptcy, are inapplicable to the present question, for
in Ex parte Levi (a) it is stated, that the denial must be to a
creditor who has a debt at that time due, and that a denial
to the holder of a security payable at a future day, will not
be sufficient to constitute an act of bankruptcy, although the
security be such as may be proved under the commission, by
7 Geo. 1. c. 31. So, the 49 Geo. 3. extends only to the
proving such debts under the commission. A petitioning
creditor must have a debt which can be enforced by law.
As, therefore, the collector could not enforce payment of
the assessments on the day he called, he could not be deemed
a creditor of the bankrupt, for he could not then sue him
or have his remedy by distress. The denial to him, there-

(a) 7 Vin. Abr. 61, pl. 14, tit. Creditor and Bankrupt.

1820.

LLOYD

v.

HEATHCOTE.

1820.

LLOYD

v.

HEATHCOTE.

fore, did not afford any evidence of the bankrupt's keeping house with intent to delay a creditor, although it might be otherwise if such an intention had been proved.

Lord Chief Justice DALLAS.-A denial to a creditor does not of itself constitute an act of bankruptcy, but is only presumptive evidence of a beginning to keep house, which, if coupled with an intent to delay creditors, most clearly amounts to such an act. It has therefore been properly admitted in the course of the argument, that if there were a beginning to keep house with such an intent, it would have amounted to an act of bankruptcy. The learned Judge thought at the trial, that the denial to the collector of the rates in question was equivalent to a denial to a creditor, and the Jury found that there was a beginning to keep house, so as to constitute a specific act of bankruptcy. The case is therefore reduced to this single question, whether the collector was a creditor or not; viz. whether the sum he demanded from the bankrupt for the assessments in question, can be considered as a debt due at the time of making the demand, and it must be presumed that there was a debt due unless the contrary were shewn. I shall therefore confine myself to the act of bankruptcy as left to the Jury at the trial, as I think a denial to a creditor is evidence of a beginning to keep house, although it appears from the facts, as reported by the learned Judge, that there was sufficient evidence to constitute an act of bankruptcy by the party's absenting himself for the purpose of delaying his creditors. But I abstain from giving any positive opinion on this point. The order of denial was general, as it extended to any person that might happen to call. This denial, therefore, must necessarily extend to creditors, as well as those who were not so, and in Round v. Byde (a), it was decided, that a denial to a creditor in consequence of a general order to be denied to every person, was sufficient to constitute an (a) Cooke's Bankrupt Laws, page 91.

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