1842. GIBSON V. MUSKETT. is a payment made in contemplation of bankruptcy, within the meaning of the law as laid down upon the subject of fraudulent preference." Upon the second point he was proceeding to argue that the day on which the notice was given, was to be included in the twenty-one days under the 1 & 2 Vict. c. 110., and consequently that they had expired on the 5th of April, the day on which the payment to the defendant was made, and, that, therefore, such payment was made after an act of bankruptcy. (Channell Serjt. Even in that case the payment would be protected by the 6 G. 4. c. 16. s. 82. (a), being, if not a fraudulent preference, a payment bonâ fide made by the bankrupt before the issuing of the fiat, without notice to the creditor of any prior act of bankruptcy.) It may perhaps be put, that the payment in this case was made during the very progress of the act of bankruptcy. [Erskine J. I think the act of bankruptcy must be taken to have been committed, either wholly before or wholly after the payment.] The argument on this point certainly is, that the act was committed before the payment, but even in that case there may be a payment which may well be said not to be made bonâ fide; though it may not amount to a fraudulent preference.. TINDAL C. J. I think the expression "payments really and bonâ fide made" in the eighty-second section (a) Which enacts, "That all payments really and bonâ fide made, or which shall hereafter be made, by any bankrupt, or by any person on his behalf, before the date and issuing of the commission against such bankrupt, to any creditor of such bankrupt (such payment not being a fraudulent preference of such creditor), shall be deemed valid, notwithstand ing any prior act of bankruptcy by such bankrupt committed, and such creditor shall not be liable to refund the same to the assignees of such bankrupt, provided the person so dealing with the said bankrupt had not, at the time of such payment by such bankrupt, notice of any act of bankruptcy by such bankrupt committed." of 6 G. 4. c. 16. must mean payments of money not intended to be reclaimed by the party; and it is clear there was no such intention in this case. I must confess I have great reluctance in sending down any cause to a third trial; but cases may occur in which we cannot help feeling that justice has not been done. In the present instance there certainly appears to have been a struggle on the part of the jury against the bankrupt laws. But, without saying more to prejudice the case, I think it ought to go down again to trial, on payment of costs. COLTMAN J. The question of fraudulent preference may really be considered as hardly other than a question of law. The jury were, perhaps, misled by what they may have thought the honesty of the case; but, being substantially a point of law, I agree there ought to be a new trial. ERSKINE J. Concurred. Rule absolute, on payment of costs. 1842. GIBSON บ. MUSKETT. 1842. May 5. By the stamp attorney is re- HARTLEY V. MANSON. TCHERLEY Serjt. applied for a rule to set aside the warrant of attorney, judgment, and execution, in this case, and to discharge the defendant out of custody. The following facts were stated from the affidavits. On the 13th of November 1839, the defendant being in the custody of a sheriff's officer, for 370l. at the suit of the plaintiff, executed a warrant of attorney, duly attested, for securing to the plaintiff that sum and costs; the defendant was therein described as "of the Grove, Woolwich, in the county of Kent;" the warrant of attorney for which the was stamped with a 17. stamp. The defendant was then party giving cept where it is given for securing a sum of money it is in custody, when a one pound stamp is sufficient. Where a warrant of attorney was given under such circumstances: Held, not necessary that it should appear on the face of it that the party was in custody. Held also, that an interlineation in the instrument, made by consent of both parties, after execution, stating the party to be " now a prisoner in the custody of the sheriff of K.," was not an alteration in a material part of the instrument, so as to render a new stamp necessary. (a) Semble, that if, by reason of the insufficiency of the stamp, the warrant of attorney had been invalid, the court would not have granted a rule nisi to set it aside, inasmuch as the plaintiff might remove the objection before he would be required to shew cause against such rule. (6) (a) As to this latter point, vide Markham v. Gonaston. Cro. El. 626., which was an action on the case for destroying the effect of a bond by filling up blanks; S. C. 2 Roll. Abr. 29, 30., 13 Vin. Abr. 40. It appears from the report of the same case in Sir F. Moore, 547. pl. 730., that though the plaintiff recovered in the action on the case, having been nonsuited in the action on the bond, upon non est factum pleaded, by reason of the alterations, he brought a second action on the bond, in which action, to a plea of issint non est factum, he replied that the blanks were filled up by the consent of obligors and obligee, and recovered. And see Anon. Select Cases in Chancery in Lord King's Time, 24., 13 Vin. Abr. 103. pl. 12. That the defence should be specially pleaded, see Anon. Sir F. Moore, 66. pl. 179. (b) Vide tamen post, 178.(b) discharged. On the following day the defendant received a note from the plaintiff, stating that the warrant of attorney required "a little formal addition;" and the plaintiff's clerk together with the attesting attorney, called upon the defendant in the afternoon of the same day with the warrant of attorney, and the former said it was necessary to insert the words, "but now a prisoner in the custody of the sheriff of the said county of Kent,” after the word "Kent" in the description of the defendant in the warrant of attorney. The attesting attorney said he thought the alteration would invalidate the warrant of attorney, but the suggested alteration was made by the plaintiff's clerk. The defendant and the attesting attorney traced over their respective signatures with a dry pen, and the warrant of attorney was re-delivered by the defendant, no alteration having been made in the date. The attesting attorney had not been required by the defendant to attend or act for him on this occasion. Judgment had been entered up on the warrant of attorney, and the defendant, on the 15th of April 1841, was charged in execution under it, and had been in custody ever since. The learned serjeant contended:- First, the warrant of attorney was invalid in its original condition, for not stating, upon the face of it, that the defendant was then in custody. By the stamp act (55 G. 3. c. 184.) sched. part I. tit. Warrant of Attorney, the same duty is imposed on a warrant of attorney as on a bond for the security of money, which is an ad valorem duty; but there is an exception "where the warrant of attorney shall be given for securing any sum or sums of money, for which the person giving the same shall be in custody under an arrest;" in which case a 17. stamp is sufficient. But, as it does not appear on the instrument, that the defendant was in custody, an ad valorem stamp was necessary; and, without it, the warrant of attorney was void. 1842. HARTLEY V. MANSON. 1842. HARTLEY V. Secondly, at the time of the re-execution of the warrant of attorney on the 14th, the defendant was not in custody, and therefore an ad valorem stamp was then MANSON. clearly necessary. [Tindal C.J. These are merely objections as to the amount of the stamp; but of what use would it be to grant a rule? the plaintiff would go to the stamp office and set it right, pending the rule. In Burton v. Kirkby (a), where a judgment had been entered up on a warrant of attorney given on an insufficient stamp, this court held that the objection was cured by procuring the instrument to be stamped, although the defendant had applied to the court to set aside the judgment.] Thirdly, the warrant of attorney was not duly attested under the stat. 1 & 2 Vict. c. 110. s. 9. on the 14th of November, -the attesting attorney not having been required to act by the defendant. In Bailey v. Bellamy (b) a warrant of attorney to confess judgment for 1000l. was executed by the defendant, and duly attested by an attorney on his behalf; an alteration was afterwards made, by consent, in the sum, by substituting 2000., and the defendant retraced his signature with a dry pen, and re-delivered the instrument. The attorney. who was present wrote his initials opposite to the alterations, and drew a dry pen over the alteration, and over each letter of his own signature, and the court held that the warrant of attorney was not duly attested. Fourthly, assuming the warrant of attorney to be valid on the 13th, the alteration made in it afterwards would render it void, being made in a material part. As it stood at first, parol evidence would have been requisite to shew that the defendant was in custody when the warrant of attorney was originally executed. (a) 7 Taunt. 174. (b) 9 Dowl. P. C. 507. |