1820. BENSON v. MAITLAND. been any recognition or adoption by the assured of the mode in which the broker adjusted and settled the loss with the defendant, that might have altered the case: but, in the absence of any such recognition or adoption, the question must be governed by general principles; and I am decidedly and clearly of opinion that the plaintiffs are entitled to recover. In the cases which have been cited circumstances existed which plainly distinguish them from the present. The plaintiffs had the verdict; and a bill of exceptions, which was tendered by the defendant's counsel, was afterwards abandoned. But in the ensuing term a motion was made to set aside the verdict and have a new trial, and also to open the consolidation rule, on the ground that the present case differed from other causes on the same policy which were stated in the consolidation rule; the amount between the broker and the underwriter being against the underwriter to the full extent of the sum claimed in the present cause; whereas in the others the account was in favour of the underwriter either in whole or in part. The court intimated a very strong opinion in favour of the plaintiffs; but, conceiving that the question as a matter of usage must be capable of full and entire proof on another trial, they suspended their judgment in this case, and allowed the underwriters to open the rule, and defend in two other cases. Lens, Taddy, Serjts., and Campbell, for the plaintiffs. 210 1820. OXFORD CIRCUIT. SUMMER ASSIZES, 1 GEORGE IV. WORCESTER. Coram BEST, J. Wednesday, An indictment against a bankrupt under Stat. 5 Geo. 2. c. 30. for not making a full disclosure of his estate, should truly set out the TH REX V. BURRASTON. HIS was an indictment against the prisoner on the statute 5 Geo. 2. c. 30. for not making a full and true disclosure and discovery of his estate and effects. In the indictment it was averred that "afterwards, to wit on, &c. a notice in writing signed by notice requir- the major part of the commissioners was, according ing him to surrender. Therefore where the indictment averred that the notice required the bankrupt to surrender &c. pursuant to stat. 5 Geo. 2. to the direction of the statute delivered to the said William Burraston personally, to wit at, &c. that the said commission of bankrupt had issued against him and that he had been declared bankrupt, and the said William Burraston was, by the said commissioners last mentioned, thereby summoned and entitled &c. and on the production of the notice it appeared, that the title to the 49 Geo. 3. was substituted for that of the 5 Geo. 2.: held that the variance was fatal. 1820. REX ย. required personally to be and appear and surrender himself to and before the major part of the commissioners in the said commission named, on the 1st day of April, in the 59th year of the reign Burraston: of King George the 3d, the 2d day of April in the same year, and the 27th day of April in the same year, at 12 o'clock at noon of each of the said days, at the Hop Pole Inn, in the city and county of Worcester, then and there to be examined, and to make a full disclosure and discovery of all his estate and effects, according to the directions of the several statutes made and then in force concerning bankrupts, and particularly the statute passed in the 5 Geo. 2. entitled An Act to prevent the committing of frauds by Bankrupts.'” On the production of the notice it appeared that the title to the 49 Geo. 3. viz. "An Act to alter and amend the Laws relating to Bankrupts,” had been substituted for that of the 5 Geo. 2.; whereupon, Campbell for the prisoner, insisted that this was a fatal variance, and BEST, J. (after communicating with Mr. Justice Richardson) allowed the objection, and directed the prisoner to be acquitted. An allegation of personal service of The notice was personally served upon the bankrupt at his dwelling house, and the indictment alleged a personal service, without stating the notice should, it seems, be accompanied by an averment that the bankrupt was at the time a prisoner. 1820. REX v. whether the bankrupt was at the time in confinement or not. It was objected, that as the statute 5 Geo. 2. c. 1. (a) pointed out two modes of serBURRASTON. Vice, viz. one at the usual place of abode of the bankrupt, and the other a personal service in the event of his being in prison, the indictment should also have alleged that the bankrupt was a prisoner at the time of the service. BEST, J. was inclined to think the objection valid. Russell and Ryan for the prosecution. Taunton, Campbell and Chilton, for the prisoner. (a) This act is repealed by the 6 Geo. 4. c. 16. but the section in question is re-enacted by the 112th chapter of the latter statute. |