1832. DOE dem. v. AUSTIN. the tenant, nor any one claiming by him, can controvert the landlord's title. He cannot put another person in possession, but must deliver up the premises to his own landlord. This, I believe, has been the rule for the last twenty-five years, and I remember was so laid down by Buller J. upon the Western circuit." Rule discharged. June 6. GARLICK, Assignee of LEE, a Bankrupt, v. An insolvent's ASSUMPSIT for money had and received by De petition is said to be filed when it reaches its place of final custody, and not when it the hands of the officer of the court. fendants to Plaintiff's use. At the trial before Littledale J., York Spring assizes 1881, a verdict was found for the Plaintiff, subject to the opinion of the Court on the following case : The Plaintiff was the assignee of the estate and effects first comes to of William Thompson Lee, a bankrupt; the Defendants were creditors of the said bankrupt, and had received from him a warrant of attorney, dated the 7th of October 1829. Judgment was afterwards entered up, and execution sued out on the same. The sheriff levied on the 13th of October 1829; the sale of the property was begun on the 26th of October; and continued on the 27th, 28th, and 29th of October. The officer sold on the 26th of October to the amount of 180l. 1s. 11d.; on the 27th of October, to the amount of 3941. 7s. 8d.; and on the 28th of October, to the amount of 415l. 3s. 9d. He paid out of the proceeds 261. for king's taxes without authority from the Defendants; and on the 26th of October, gave the Defendants a cheque, dated that day, for 180l.; a cheque on and dated the 27th of of October, for 3007.; a cheque on and dated the 28th of October, for 150l.; a cheque on and dated the 29th of October, for 350l.; and, on the same day, paid to the Defendants 40%. in cash. The sales began each day at eleven, and finished at half-past two. The three first days sales amounted to 989l. 13s. 4d., and on the morning of the 29th, the sheriff had only to sell 317. to complete the amount of levy. By twelve or half-past twelve o'clock in the forenoon, the sheriff had sold about 35l., and by one o'clock 150l. The cheques, dated the 26th, 27th, and 28th of October, were not presented or paid till the 31st of October, and the cheque dated the 29th of October was not presented or paid till the 3d of November, but all were duly honored. The officer had not funds in the bankers' hands till the 30th of October. Goods were sold on the 26th and 27th of October to the amount of 100%. on credit, and were not paid for till after the sale was closed. The trading, act of bankruptcy, and petitioning creditor's debt were proved. The commission was dated the 24th of November 1829. The act of bankruptcy was a petition by the bankrupt to the insolvent court for his discharge; it was dated the 28th of October 1829, but was not signed by the bankrupt till after four o'clock in the afternoon of that day. An assignment of his property to the provisional assignee of the insolvent court was executed in prison at the same time. After signing the petition, the bankrupt had nothing more to do with it, and it remained in the custody of the officer of the insolvent court. Mr. Dance, the officer, took the petition and assignment away with him, and brought it into the office the next day, the 29th, about two o'clock in the afternoon; and, in answer to the question, When was the 1832. GARLICK V. SANGSTER. 1832. GARLICK ข. the petition filed? said, he could not answer the question, but would state the practice of the Court. That after it is signed, it is carried to the public office in Lincolns' SANGSTER. Inn Fields, attested, numbered, and handed to the officer of the town department, with whom it remains. That, in this case, he did not return to the office on the 28th of October after the petition was signed; and, in consequence of the number of petitions, and the business occasioned thereby, he did not get to the office the following day before two o'clock, and could not, in consequence of the numerous petitions, have numbered and attested it before the 30th of October, when it was handed to the officer of the town department, with whom it has remained since. The bankrupt was never discharged under the insolvent debtors' act. The case was argued on several grounds, but the decision of the Court turns entirely upon the time of filing the petition; as to which Spankie Serjt., for the Plaintiff, contended that the creditor having by the act of signing the petition done all that the statute requires on his part, it must be taken to be filed when he has delivered it, so signed, into the hands of the officer of the Court. In that sense, therefore, the petition was filed on the 28th, prior to the completion of the execution on which the Defendant relies. Attestation is not necessary to the validity of such an instrument; Com. Dig. Faits; and the duty of the officer of the Court to place it in a proper custody is independent of the act required by the legislature on the part of the creditor, namely, placing the petition duly signed in the hands of the officer. From the decision in Rex v. Wade (a) it may be inferred that the rules of a friendly (a) 1 B. & Adol. 861. society society are filed within the meaning of 33 G. 3. c. 54. when they are placed in the hands of the clerk of the peace. Wilde Serjt. contrà. The petition is not filed till it has reached a place of legal custody where it may be accessible to public search. As far as the discharge of the creditor's duty is concerned, it may indeed be deemed to be filed when placed in the hands of the officer; but to defeat the rights of others, it is not filed till by being placed in a permanent custody it becomes a record of which the public has notice; as, of the issuing of a commission by its passing the great seal. Ex parte Ereeman (b), Watkins v. Maund. (c) In Rex v. Wade the question as to filing was not decided. TINDAL C. J. It is unnecessary to give an opinion on much that has been urged in argument. On the construction which I put on the act of parliament, the act of bankruptcy was not complete till the 29th of October at two o'clock, when Dance took the proceedings to the office where they were to be filed; but the sale under the execution was complete by twelve o'clock on that day. The words in section 13. of the act are, "That the filing of the petition of every person in actual custody, who shall be subject to the laws concerning bankrupts, and who shall apply by petition to the said Court for his or her discharge from custody, according to this act, shall be accounted and adjudged an act of bankruptcy from the time of filing such petition." And it is urged that the instrument was virtually filed as soon as Dance had it in his possession. But it is manifest, on this case, that Dance was not the person in whose custody it was to remain, for (a) 1 F. Beames, 34. VOL. IX E (b) 3 Campb. 308. after 1832. GARLICK v. SANGSTER. 1832. GARLICK V. SANGSTER. after such an instrument is signed Dance says, it is carried to the public office in Lincoln's Inn Fields, attested, numbered, and handed to the officer of the town department, with whom it remains. So that he does not consider it filed till it is carried to the office and delivered there. The case of Rex v. Wade has been referred to. All that the Court says in that case is, that in the construction of 33 G. 3. c. 54. “filing must be understood to mean depositing for the purpose of being filed, the society doing all that is incumbent on them;" but the instrument here cannot be said to be filed until it arrives at its destination. PARK J. Filing means putting in the proper place of deposit, and Dance was not the officer with whom this instrument was to have been deposited. So when affidavits are filed at a Judge's chambers, the placing them in the hands of the clerk does not complete the deposit in the place of legal custody, and till they arrive there they are not filed. GASELEE J. Two o'clock on the 29th is the earliest time at which this instrument can be said to have been filed, and that renders it unnecessary to give an opinion on any other point in the case. BOSANQUET J. I am of the same opinion. The sheriff had completed his levy by twelve o'clock on the 29th, and the question is, whether the act of bankruptcy was before or after that time, for when the amount of the debt has been levied, the debtor is discharged. The 7 G. 4. c. 57. s. 10. directs, "That it shall be lawful for any person who shall be in actual custody, to apply by petition in a summary way to the said Court, for his or her discharge from such custody, according to the provisions of this act. And such pri soner |