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1827.

DRIVER

V. Hood.

use of Hood; and, therefore, it was not requisite to allege any demand in the affidavit of debt. There is no case expressly in point with the present; but there are decisions similar in principle, and which shew this affidavit to be sufficient. In Imlay v. Ellefsen (a), it was held, that an affidavit of debt under a Judge's order, disclosing circumstances which shewed that the plaintiff had been damnified to such an amount, was sufficient, although it improperly stated that the defendant was indebted to that amount, and disclosed the special circumstances. Here, the affidavit discloses circumstances which shew that Driver was damnified to the amount sworn to be due to him from Hood. So, in Jenkins v. Law (6), it was held, that an affidavit of debt “ for damages awarded, and for costs and expenses taxed and allowed,” was sufficiently certain, because the Court would infer that the award and taxation were such as would support the action. Here, the affidavit shews that money was awarded under the order of reference, the rule of Court and the award, and alleges that the same money is owing by virtue of the said order, rule and award.

Comyn, contrà, was stopped by the Court, and,

Per Curiam.-The award made the money payable upon demand; therefore, a demand was necessary in order to give the plaintiff a right of action, and the affidavit to hold to bail is bad for not alleging such a demand. This rule, consequently, must be made absolute; but the defendant must undertake not to bring any action for the arrest.

Rule absolute (c).

(a) 2 East, 453.
(6) 1 Bos. & Pul. 365.
(c) And see Birks v. Trippet, 1

Saund. 33; and the cases collected
in the notes (2) and (b) there.

1827.

Where a

traders ac

Bernasconi and others, surviving assignees of A. H.

CHAMBERS, the elder, and A. H. CHAMBERS, the

younger, bankrupts, v. The Earl of GlenGALL. In an action DECLARATION in assumpsit by plaintiffs as surviving by assignees of a bankrupt, assignees of the estate and effects of the bankrupts, “ acif the defendant does not

cording to the force, form, and effect of the statute made and give notice now in force concerning bankrupts." The first count was to dispute the trading, &c., upon a bill of exchange, dated 8th November, 1826, drawn he cannot dis

on defendant by John Ebers, payable three months after pute the validity of the date, to the order of himself, which bill defendant commission itself.

accepted and made payable when due at George Hicks's,

20, Somerset-street. Averment, that Ebers indorsed the commission stated that

bill to plaintiffs, and that at maturity the bill was shewn 4. and B., and presented to Hicks for payment, and dishonoured. bankers, being

Second count the same, only omitting the special according to the ceptance, and the presentment for payment. Third and the 6 Geo. 4, fourth counts similar to first and second, but on another c. 16, some time since

bill of exchange for 1001. of the same date, with counts became bank- for money lent, paid, had and received, and on an account rupts, within the intent and stated. Plea, non-assumpsit and issue thereon. At the meaning of trial before Lord Tenterden, C. J., at the adjourned sitthat statute :" - Held, a suf- tings, at Westminster, after last Trinity term (a), the ficient allega

case on the part of the plaintiffs was this :—the comtion that the bankrupts had mission of bankrupt against the Messrs. Chambers was traded, and had committed

It bore date 19th November, 1825, and re

cited that “A. C., the elder, and A. C., the younger, bankruptcy, since the

bankers, being traders according to the provisions of passing, and

an act passed in the 6th year of Geo. 4, about within the operation of since have become bankrupts, within the intent and that statute.

meaning of the said statute.” The assignment to the plaintiffs was then put in. It bore date “ 2d February, one thousand eight hundred and twenty — 7 Geo. 4.” Ebers, the drawer and indorser of the bills, proved that he

put in.

an act of

(a) Counsel for the plaintiffs, the defendant, Gurney and Chitty. Scarlett, A. G., and

'; for

1827.

BERNASCONI

V.

had given a consideration for the acceptance; and upon his cross examination stated that the Messrs. Chambers had ceased to trade as bankers so long ago as November, 1824. No notice had been given on the part of the defendant to dispute the validity of any of the proceedings under the commission; it was nevertheless objected by the defendant's counsel, that as the commission described the bankrupts as “ bankers” only, not adding the words dealers and chapmen,” and as it was in evidence that they had ceased to be “ bankers,” in November, 1824, long before the date of the commission, and long before the act of parliament, under the authority of which that commission issued, came into operation, it was impossible that there could have been either a trading, or an act of bankruptcy by the Messrs. Chambers, whereon to found the commission : and Maggs v. Hunt (a), was cited as an authority in point. It was further contended, that under the circumstances above mentioned, it was not competent for the plaintiffs to give evidence of any other trading than in the character of bankers; and in support of that position Hale v. Small (6) was referred to.

GLENGALI..

(u) 4 Bing. 212, where it was issued against a trader, describing held, that as the General Bank

a dealer in cattle, and rupt Act, 6 Geo. 4, c. 16, which seeking his trade of living by repealed all former bankrupt acts, buying and selling,” without the came into operation 1st Septem- words “ dealer and chapman," ber, 1825, a commission sued out and at the trial of an action of 8th September, 1825, against A. trespass brought by him against B., upon an act of bankruptcy the assignees under the commiscommitted by him the July pre- sion, evidence was received of a ceding, could not be supported. dealing in hops, and a verdict was

(6) 8 Taunt. 730; 3 J. B. found for the defendants as such Moore, 58, where it was held, assignees, which was afterwards that if a bankrupt be described in set aside, and a new trial granted, a commission as a dealer in cattle on the ground that it might opeonly, evidence cannot be adduced rate as a surprise on the plaintiff: to prove that he was a dealer in -Held, on a second trial, that hops. But see the same case more such evidence was properly adfully stated; 4 J. B. Moore, 415; mitted, as the words “ dealer in 2 Brod. & Bing. 25, thus:--Where cattle," were descriptive of the a commission of bankrupt was person only; and that the ge

him as

1827.

BERNASCONI

v. GLENGALL.

Lastly, it was objected that as the assignment bore date in eighteen hundred and twenty, and the commission did not issue till 1825, the former could have no connection with the latter, and could convey no authority to the plaintiffs to sue as assignees. The Lord Chief Justice overruled all the objections, and the plaintiffs had a verdict, with liberty for the defendant to move to enter a nonsuit, or for a new trial.

as

Gurney now moved accordingly, relying upon the first and last objections taken at the trial. First, the commission is bad. It describes the bankrupts merely

“ bankers, being traders according to the provisions of the 6 Geo. 4, c. 16;" it does not state that they traded as bankers, since that act came into operation ; nor could it, for the fact was proved to be otherwise ; therefore, there was no evidence of a trading under that act. Again, it states that the bankrupts, at some recent but uncertain period, became bankrupts within the intent and meaning of the act; it is too much to infer from so loose a statement that the act of bankruptcy was committed after the act came into operation; for such a statement would be equally well borne out by evidence of acts committed by the parties, such as would have rendered them liable to be made bankrupts under the new act, years before it came into operation : therefore, there was no evidence of an act of bankruptcy within that act. Secondly, the assignment is a nullity, and conveyed no title to the plaintiffs as assignees. It was dated in 1820, and therefore could not possibly apply to a commission sued out in 1825. [Lord Tenterden,

It was dated in eighteen hundred and twenty neral statement that the bank- in the commission in this case, rupt got his living by “buying “being traders according to the and selling," was sufficient to provisions of the statute,” formed admit evidence of any trading a sufficiently general statement to whatever. Upon the same prin- render evidence of any species of ciple it would seem that the words trading admissible.

C. J.

1827.

V.

in words at full length, with a blank after the word “twenty;" which is not inconsistent with the date BERNASCONI of the year of the reign, following, 7 Geo. 4. Bayley J.

GLENGALL. The title of the plaintiffs as assignées could not properly be brought in question; they had acted as assignees, and the bills were indorsed to them; they had no occasion to prove themselves assignees at all. Lord Tenterden, C. J. The defendant gave no notice to dispute the trading or the act of bankruptcy, pursuant to the 90th section of the act, he was, therefore, not entitled to call upon the plaintiffs to prove them). That section does not make the depositions conclusive evidence of the trading and act of bankruptcy, as the 92d section, under different circumstances, does; it only provides that no proof shall be required; which does not preclude the defendant from disputing the validity of the commission itself.

Lord TENTERDEN, C. J.-The 90th section of the act provides, that unless notice of an intention to dispute the trading, &c., be given, no proof of them shall be required. I now really doubt whether I was right in allowing the defendant's counsel to shew that the bankrupts had ceased to trade as bankers in 1824, because the intention of the statute seems perfectly plain, to make the production and proof of the commission and assignment sufficient evidence of the trading, &c., where no notice of an intention to dispute them has been given. But the question is, whether, looking at this commission now, the Court can say that it is void. It is a commission under the great seal, and it recites that the parties to whom it applies, became bankrupts within the intent and meaning of the General Bankrupt Act then in force. Such an allegation can only import that they committed an act of bankruptcy since the passing of that act; because it would be impossible that they should so become bankrupts, unless that had been the

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