from dwel ling-house. home to avoid al call in vain for his debt. (1) Thus, where a man goes Departure from home, leaving word with his clerk what time the same day he shall return home, and actually does return at the appointed time, this is not an act of bankruptcy, though a creditor called for money in his absence, and his clerk, by his directions, told the creditor that he would not let him have it, and that he should go out of the way till dinnertime; for a man, who intends to delay a creditor, does not usually name the hour when he is on the same day to be met with at home. (2) So, if he absents himself from his Leaving house in order to avoid harsh language from some of his creditors, whom he had appointed to come to his counting tercation. house, and examine his books; for the motive was not to delay the creditors, but to avoid altercation with them. (3) It is laid down in some of the books (4), that there is a Absconddifference between absconding to avoid a debt, and ab- avoid a ing to sconding to avoid a duty only; and that a departure, occa- duty. sioned by the fears of being attached for the non-performance of an award, or to avoid an arrest upon a writ of excommunicato capiendo, is not an act of bankruptcy. But this position, it is apprehended, must now receive some qualification; for if the absence is indefinite, and no provision is made for payment of debts, nor any directions left for creditors where he may be found by them, such a departure would now be held to fall within that class of cases, which establish that a man is taken to intend, what is the necessary consequence of his own acts. (5) 4. Otherwise Absenting himself. Where a man has a Otherwise counting-house distinct from his dwelling-house, and leaves absenting himself. the former without the animus revertendi; though he may remain afterwards two or three days at his dwelling-house, he begins to absent himself from the time he leaves his counting-house; and the act of bankruptcy is complete by (1) Per Lord Ellenborough, 9 East, 492. Robertson v. Liddell. (2) Vincent v. Prater, 4 Taunt. 603. (3) Ibid. (4) Lingood v. Eade, 1 Atk.196. 2 Com. Dig. 5. (5) Ante, page 45. has no settled home. Otherwise such departure from it. (1) Indeed, it may frequently absenting. happen, that a trader has neither dwelling-house, nor counting-house,-in which case his withdrawing himself from the usual place where he is to be found, or where he transacts his business, will be sufficient to constitute an act of bankruptcy, within the meaning of the words "otherwise absenting himself," which are not confined to any Where he particular place. Therefore, if a man, who has no settled home, takes up a temporary abode at a public-house in the town to which his business carries him, and leaves it for fear of his creditors, this will be considered an act of bankruptcy. (2) So, if a man, who has no known place of abode, is in the habit of attending the Royal Exchange to transact his business, and leaves it on the approach of his creditors, desiring a friend to say he is not there; or breaks an appointment he has made with a creditor to meet him there to pay his debt-either of these cases will be an act of bankruptcy. (3) So also, where the proprietor of a theatre retired behind the scenes to avoid a sheriff's officer, a theatre. giving orders at the same time to be denied to him, — this was held to be such an absenting himself, as would come within the meaning of the present statute. (4) And if a man, after being arrested for debt, escapes to the house of another person, and is there denied to the officer who pursues him, this will also be an act of bankruptcy. (5) But Not where where a trader, being informed by the attorney of the peconcerted. titioning creditor, that he had delivered a warrant to a sheriff's officer to arrest him, and the attorney advised him to repair to his office to avoid the publicity of being arrested in the street, which he did, and remained there a considerable time, this was holden not an act of bankruptcy; Retiring behind the scenes of Conceal ing himself in the house of a friend. absence house. though if the recommendation had not been by the attorney Keeping of the petitioning creditor, the case would perhaps have borne a different complexion. (1) A mere breach of engagement also, to meet a creditor at a given place is not, in itself, evidence of an act of bankruptcy, without proof that the absence was with a view to delay the creditor. (2) Where two partners left their shop, and told their shopman that they were going out to endeavour to get some bills discounted, and directed him to say that they were not in the way, or to make some excuse for them in case a creditor should call; and a jury found that they absented themselves with an intent to delay their creditor, the Court of Common Pleas held they were warranted in such conclusion. (3) 5. Beginning to Keep House. This act of bankruptcy is generally made out, by proving the party to have been denied by his own orders to a creditor, who calls for payment of his debt, the party himself being at home at the time. The mere denial, however, is not of itself the act of bankruptcy; but only primâ facie evidence of the party keeping his house, with intent to delay his creditors; and this may be proved in many other ways, besides being denied to a creditor; though it seems to have been for some time held, that an actual denial was indispensable in proof to establish this act of bankruptcy. (4) But as it is the intent to delay, and not the actual delay, which must accompany the beginning to keep house, there is no obligation to prove that the intention was effected, if there are circumstances enough to show, what the intention really was. Therefore the intention of keeping house being clearly proved by other evidence, there is no necessity to superadd the proof of denial to a creditor; a species of evidence, indeed, which (1) Mills v. Elton, 3 Pri. 142. (2) Tucker v. Jones, 2 Bing. 2. (3) Deffle v. Desanges, 8 Taunt. 671. Capper v. Desanges, 3 Moore, 4. (4) Garratt v. Moule, 5 T. R. 575. 74. Leaving shop, and desiring a servant to make excuse. As to necessity of denial. Keeping house. Cases of Must be by previous di rections, and to a creditor, whose debt is due. need never be resorted to, except for the purpose of explaining conduct that might otherwise be deemed equivocal. For instance, if a trader gives general orders to be denied, then the fact of a creditor calling and being denied will be important evidence, not only of the beginning to keep house, but also to show what the intention of the party was in giving such orders. Or, if he direct his servant to deny him to some individual by name, then it will be essential to prove that that individual was a creditor; and if there is no other evidence of keeping house, then that such person actually called and was denied. Thus the necessity of proving an actual denial to a creditor occurs only, where there is otherwise no evidence of keeping house, or of what the intention of the party is in keeping house. Where it is said, therefore, in some of the books (1), that there must be an actual denial, as well as an order to deny, to constitute an act of bankruptcy, this must be understood to apply to cases, where there is no other proof of the party beginning to keep house. But it is proposed to consider first the cases, where the denial to a creditor forms the principal ingredient in the proof, of the party beginning to keep house, before we treat of those, where other circumstances have been admitted, to establish this particular act of bankruptcy. In the first place, the denial must be in consequence of previous directions from the debtor; for, unless it is so, no subsequent approbation of it by him will render it an act of bankruptcy. (2) The denial, too, must be to a creditor, whose debt is then due; for if he is only a creditor by a note payable at a future day, a denial to such a creditor will not be an act of bankruptcy (3); since, no creditor can be said to be defeated, or delayed, in the recovery of a debt, where there is no debt which he can legally demand the payment of. In such a case, however, it is conceived, if (1) Jackmor v. Nightingale, Bull. N. P. 40. 1 C. B. L. 79. (2) Ex parte Foster, 1 Rose, 50. (3) 7 Vin. Ab. 61. pl. 14, Ex parte Levy. the order to be denied was given under an apprehension, Keeping that other creditors, whose debts were due, would call,-then house. the actual denial, being proof (at all events) of keeping house, would, coupled with proof of the intent of the party in ordering himself to be denied, constitute, as it should seem, a perfect act of bankruptcy. need not The better opinion seems to be, that the denial need not Denial be to the creditor himself; but that it will be sufficient, be to the if made to the clerk of the creditor, or any other person creditor coming on his behalf, and by his authority, to demand the himself: debt,-upon proof that the trader knew him to be such clerk, lector of terial whe or agent (1); though Lord Camden, at Nisi Prius, once beld the contrary. (2) So a denial to a tax-gatherer, who to a taxcalls for taxes, is also an act of bankruptcy; for the tax- gatherer; gather is an agent on behalf of the crown, and the crown cannot be said, in this instance, not to be a creditor. (3) So also a denial to the collector of the church and highway to col rates will be an act of bankruptcy, for he may be equally churchconsidered a creditor,—the debt in this case being created rates. by the assessment, and when the assessment is made, the debt then becoming due and demandable. (4) And whether Immathe creditor calls for payment of his debt, or security for it, or to buy goods to the amount in order to cover it,—a denial will be equally an act of bankruptcy; for the statute does not contemplate the object of the creditor in calling, satisfacbut the intention of the debtor in being denied. (5) But tion. if the trader knows, that the creditor is coming upon some other business, and not for payment or satisfaction of his debt, and refuses to see him,-then, the moment his knowledge of that purpose is proved, his intention to delay will be negatived. (6) And it has been ruled at Nisi Prius, Denial to that a denial to a bailiff, who had previously arrested the a bailiff (1) Brandey v. Mundec, B. N. P. 39. Ex parte Bamford, 15 Ves. 449. 83. (2) Barrow v. Foster, C. B. L. (3) Jeffs v. Smith, 2 Taunt. 117. (4) Lloyd v. Heathcote, 2 Brod. (5) Ex parte Harris, 2 Rose, 67. ther cre ditor calls for pay ment, or after arrest; |