1873 บ. MAULE. with the file. The registrar took out the declaration and handed it to Gaches, observing that it was useless to file it, there being RANSFORD already a declaration of insolvency on the file; and he recommended Gaches to telegraph to Wallingford & Day to that effect. Gaches went away, taking the declaration with him. Wallingford & Day sent a clerk to Gaches on the following day (Sunday), and Gaches arranged with him to go to St. Ives early the next morning to see one Watts, a solicitor there, by whom the first declaration of insolvency had been filed. Gaches accordingly saw Watts, and obtained from him an authority to take that declaration off the file. Gaches returned to Peterborough on Monday, the 14th, with the authority signed by Watts and the declaration of insolvency signed by Stocken and Harris, and left them with the registrar's clerk at the office at 10.30 a.m. Mr. Gaches stated that he was acting as agent for Wallingford & Day, and had no authority from them to take back the second declaration after he had handed it to the clerk. The document in question, which was produced, bore the following indorsement of the clerk, "Filed 14th October, 1872, at 10.30 a.m.," the 12th, which was the date first put, having been erased by drawing a pen through it. Tuck, the registrar's clerk, who was called for the plaintiff, deposed to the following effect :-I had charge of the bankruptcy proceedings. I receive all papers, except when the registrar is in. If no question arises, I file them. I call filing them putting them on the file. The file comes with pasteboard backs. I acted in the bankruptcy of Stocken & Harris in receiving certain documents. I received the first declaration (of the 11th of October) from a clerk in the office, named Eaton. I put it on the file directly I received it. I believe I put the strings through it. I do not always put the strings through the papers: I sometimes merely put them into the case. I indorsed the first declaration, "Filed 11th October, 1872, 3.40." This refers to the time Eaton stated he had received it. On the 12th I received another declaration of inability to pay from George Gaches. He brought it about 10.30. I remarked there was a declaration already filed. He said he would call again and see the registrar. I was called into the registrar's room between 12 and 12.30 the same day. I 1873 V. MAULE. brought in the file of the proceedings in Stocken & Harris's case. RANSFORD I put it on the registrar's desk. The second declaration was in the case when I took it in. On Monday, the 14th, Gaches came again. He brought back the second declaration and the authority to withdraw the first. I either strung it [the second declaration} upon the file or put it in the case. I made no indorsement upon it at that time. I made one two days afterwards. I made the minute, "Filed 12th October, 1872." I afterwards altered it to the 14th. I did so because it was the day upon which it was brought back to me to be filed. On cross-examination this witness said: I placed the second declaration on the file on Monday, the 14th. Sometimes I put in the documents before I put them on the file; sometimes I do not. The registrar, who was called for the defendant, said: The first declaration was filed on the 11th of October by the string being put through it, at 3.40. On the 12th, on my attendance at the office, the second declaration was shewn to me. I was informed by my clerk that the solicitor would see me upon it. He came in shortly afterwards. As he was only an agent, I suggested that he should communicate with the gentlemen who instructed him, that there was already a declaration upon the file. He took the second declaration away with him. On Monday, the 14th, he attended with the same document and the authority. He requested me to file that document with the authority. I filed the second document and the authority between 10.30 and 11 o'clock on the 14th. I believe that the string was put through with my own hand. I declined to take the first declaration off the file without an order of the court. Documents which are not required to be filed are left, and sometimes are without the string being put through them. Only such documents as a declaration of insolvency would be filed at once by being attached to the file with the string passed through it. That is the invariable rule in the office. On cross-examination this witness said: I attend particularly to the bankruptcy business; but the clerk attends as well. If no question arises upon a document, it would be filed in my absence: the clerk would file it. I believe I put the second declaration upon the file in the presence of Gaches. I received the second declaration either from Gaches or my clerk on Monday, the 14th. I considered the second declaration was left subject to be submitted to me for my direction. I considered that it was regular to return the second declaration on the Saturday, it being left for a temporary purpose. The seizure took place at 9.45 on Monday, the 14th of October. The adjudication was on the 16th of October; and the appointment of the plaintiff as trustee took place on the 4th of November. For the defendant, it was contended that the second declaration was not "filed" pursuant to the 16th of the Rules of Procedure of 1869, until the string or tape by which documents are attached to the file was passed through it. On the other hand, it was contended that the solicitor had fulfilled his duty when he delivered the declaration to the clerk in the office with the intention that it should be then and there filed, and that what took place afterwards was wholly immaterial. A verdict was, by consent, entered for the defendant, with leave to the plaintiff to move to enter the verdict for him if the Court. should be of opinion that the document was filed on the 12th of October. O'Malley, Q.C., in Easter Term last, obtained a rule nisi. June 19. Metcalfe, Q.C., and Purcell shewed cause. The declaration of inability to pay was not filed in time to frustrate the defendants' execution. One of the acts of bankruptcy provided for by s. 6 of the Bankruptcy Act, 1869, 32 & 33 Vict. c. 71, is (subs. 4), "That the debtor has filed in the prescribed manner in the Court a declaration admitting his inability to pay his debts;" and the "prescribed manner" is as follows:-" A declaration by a debtor admitting his inability to pay his debts shall be dated, signed, and witnessed according to the form in the schedule, and shall be filed in the London Bankruptcy Court, if the debtor shall reside or carry on business within the district of that Court; and, where the debtor neither resides nor carries on business within the district of that Court, it shall be filed in the court within the district of which the debtor resides or carries on business:" Rule 16 of the Rules of Procedure, 1869. The 9th rule provides that "all proceedings of the Court shall remain of record in the Court, so as to VOL. VIII. 3 F 2 1873 RANSFORD v. MAULE. 1873 form a complete record of each matter, and they shall not be RANSFORD removed for any purpose, except for the use of the officers of the v. MAULE. Court, or by special direction of the judge or registrar," &c. There O'Malley, Q.C., in support of the rule. To file is said by Richardson to be, "to put upon a file, thread, string, or wire, or other similar substance; to pass such file through anything." Johnson has a similar definition. Webster defines it thus:-"To string, to fasten, as papers, on a line or wire, for preservation;" and he gives for example, "Declarations and affidavits must be filed; an original writ may be filed after judgment." He goes on further, "To arrange or insert in a bundle, as papers, indorsing the title on each paper. This is now the more common mode of filing papers in public and private offices." The old mode of filing common bail was by delivering what was called a bail-piece to the proper officer: Tidd's Practice, 9th ed. 240. Our common experience is that affidavits, whether used in Court or at chambers, are filed by the mere act of delivery to the officer of the Court or the judge's clerk; and they are afterwards tied up in bundles for convenience of reference. The second declaration here was filed the moment it was delivered by Gaches to the clerk at the registrar's office with the intention of its being filed. The act of the registrar in subsequently delivering the document back to the solicitor was irregular, and cannot alter the character of the transaction so as to affect the rights of the trustee and the creditors. If the inten tion of the registrar or his clerk could in any way qualify the act of the person who delivered the document to be filed, that should have gone to the jury. Besides, the debtor is the person who files the declaration of insolvency: the moment he has caused it to be left at the office, he has done all he can do to make a perfect act of bankruptcy. And when Gaches had delivered the document to the registrar's clerk, he had done all that he was intrusted to do; he had no authority to take it away again. The original indorsement shews that the clerk's first and correct impression was that the filing took place on the 12th of October. (1) Cur, adv. vult. June 20. The judgment of the Court (Keating, Brett, and Denman, JJ.) was delivered by KEATING, J. This case was argued before us yesterday by Mr. Metcalfe and Mr. O'Malley. The rule was, to enter a verdict for the plaintiff, on the ground that the declaration of inability to pay by Stocken and Harris was sufficiently filed on the 12th of October. The question arose upon an issue directed to try whether certain goods which had been seized by the sheriff under an execution at the suit of the defendant were at the time of seizure the property of the plaintiff as trustee in bankruptcy of Stocken and Harris; and, in order to determine that question, it became neces (1) In Rex v. Wade, 1 B. & Ad. 861, it was held that the rules of a friendly society are filed within the meaning of 33 Geo. 3, c. 54, when they are placed in the hands of the clerk of the peace. So, in Garlick v. Sangster, 9 Bing. 46, it was held that an insolvent's petition could not be said to have been filed until it had reached its place of final custody. In that case, in order to defeat an execution, the act of bankruptcy relied on was the filing of a petition in the Insolvent Debtors Court. The bankruptcy took place on the 16th of October, but the sale (which was then the dividing line) was not completed until 12 at noon of the 29th. The petition was signed by the insolvent, in prison, on the 28th, after 4 o'clock in the afternoon, and then delivered to Mr. Dance, the official assignee of the court. Mr. Dance, who was called to prove the fact, could not 1873 RANSFORD v. MAULE. |