« PreviousContinue »
occupation (where nothing is bought and sold, and where therefore an extensive credit for the stock in trade is not necessary to be had) will make a man a regular bankrupt; as that of a husbandman, a gardener, and the like, who are paid for their work and labour.(9) Also an innkeeper cannot, as such, be a bankrupt :(r) for his gain or livelihood does not arise from buying and selling in the way of merchandise, but greatly from the use of his rooms and furniture, his attendance, and the like: and though he may buy corn and victuals, to sell again at a profit, yet that no more makes him a trader than a schoolmaster or other person is, that keeps a boarding-house, and makes considerable gains by buying and selling what he spends in the house; and such a one is clearly not within the statutes.(8) But where persons buy goods, and make them up into salable commodities, as shoemakers, smiths, and the like; here, though part of the gain is by bodily labour, and not by buying and selling, yet they are within the statutes of bankrupts :(t) for the labour is only in melioration of the commodity, and rendering it more fit for sale.
One single act of buying and selling will not make a man a trader ;s but a repeated practice, and profit by it. Buying and selling bank-stock, or other government securities, will not make a man a bankrupt; they not being goods, wares, or merchandise, within the intent of the statute, by which a profit may be fairly made.(u) Neither will buying and selling under particular restraints, or for particular purposes; as, if *a commissioner of the navy uses to buy victuals for the fleet, and dispose of the surplus and refuse, he is not
[*477 thereby made a trader within the statutes.(w) An infant, though a trader, cannot be made a bankrupt; for an infant can owe nothing but for necessaries : and the statutes of bankruptcy create no new debts, but only give a speedier and more effectual remedy for recovering such as were before due: and no person can be made a bankrupt for debts which he is not liable at law to pay.(x) But a feme-covert in London, being a sole trader according to the custom, is liable to a commission of bankrupt.(y)
(9) Cro. Car. 31.
Cro. Car. 549. Skinn. 291.
Skinn. 292.3 Mod. 330.
(*) 2 P. Wms. 308.
by buying and selling” is enough to support it, though the bankrupt is described as a waterman, (ex parte Herbert, 2 Ves. & Bea. 400;) for no clearer information can be received from the expression “dealer and chapman” than would be conveyed by the description of the bankrupt as one who “gained his livelihood by buying and selling;" which general statement will admit the finding of any particular trading. Hale vs. Small, 2 Brod. & Bing. 27. S. C. 2 Wils. Cha. Ca. 86.-Chitty.
3 It has been decided that a single purchase, made with intent to sell again, is enough to constitute a trading, so as to bring the party within the purview and operation of the bankrupt-laws. Holroyd vs. Gwynne, 2 Taunt. 176. Newland vs. Bell, Holt's N. P. C. 223. This, however, must be qualified. Lord Ellenborough held that a fisherman who bought fish at sea from other boats for the purpose of making up his own cargo, which he carried ashore and sold, was a trader within the meaning of the bankrupt-laws, (Heanny vs. Birch, 3 Camp. 233;) but lord Eldon, adverting to this decision, expressed his opinion to be, that, although it would be immaterial whether the acts were few or many, if the fisherman went out for the purpose of buying fish, that would make him a general trader: still, if the case were no more than that a person who went to sea to fish, and, not obtaining a sufficient cargo, buys a few fish to make it up, it would be hasty to say that such a partial buying would amount to a general trading. Such a case, his lordship added, must always depend upon its own particular circumstances, and be properly the subject of a trial at law. It was further observed, that a farmer, who is converting his apples—the fruit of his orchard-into cider, and, finding he has not a sufficient supply from his own orchard, makes up the deficiency by purchasing apples from his neighbours, or the owner and worker of a coal-mine, who buys small articles, as bread, cheese, &c., in order to sell them again to his own pitmen, does not thereby render himself a trader within the bankrupt-laws. Ex parte Gallimore, 2 Rose, 427. 428.
But, it seems quite clear, the question of law is not now governed by the quantum of the trading: it is a settled rule that if any stranger may be supplied with the commodity which is sold, and it is not sold as a favour to any particular person, there the person so selling is subject to the bankrupt-laws. Patman vs. Vaughan, 1 T. R. 573. Wright vs. Bird, Price. 22.-Cutty.
2. Having thus considered who may, and who may not, be made a bankrupt, we are to ivquire, secondly, by what acts a man may become a bankrupt. ** bankrupt is “a trader who secretes himself, or does certain other acts tending to defraud his creditors." We have hitherto been employed in explaining tho former part of this description, “a trader;" let us now attend to the latter, “who secretes himself, or does certain other acts tending to defraud his creditors.” And, in general, whenever such a trader, as is before described, bath endeavoured to avoid his creditors, or evade their just demands, this hath been declared by the legislature to be an act of bankruptcy, upon which a commission may be sued out. For, in this extrajudicial method of proceeding, which is allowed merely for the benefit of commerce, the law is extremely watchful to detect a man whose circumstances are declining, in the first instance, or at least as early as possible; that the creditors may receive as large a proportion of their debts as may be; and that a man may not go on wantonly wasting his substance, and then claim the benefit of the statutes, when he has nothing left to distribute.
To learn what the particular acts of bankruptcy are which render a man a bankrupt, we must consult the several statutes and the resolutions formed by the *478)
courts thereon. *Among these may therefore be reckoned, 1. Depart
ing from the realm, whereby a man withdraws himself from the jurisdiction and coercion of the law, with intent to defraud his creditors.(z) 2. Departing from his own house with intent to secrete himself and avoid his creditors. a) 3. Keeping in his own house privately, so as not to be seen or spoken with by his creditors, except for just and necessary cause; which is likewise construed to be an intention to defraud his creditors by avoiding the process of the law.() 4. Procuring or suffering himself willingly to be arrested, or outlawed, or imprisoned, without just and lawful cause; which is likewise deemed an attempt to defraud his creditors.(c) 5. Procuring his money, goods, chattels, and effects to be attached or sequestered by any legal process; which is another plain and direct endeavour to disappoint his creditors of their security.(d) 6. Making any fraudulent conveyance to a friend, or secret trustee, of his lands, tenements, goods, or chattels; which is an act of the same suspicious nature with the last.(e) 7. Procuring any protection, not being himself privileged by parliament, in order to screen his person from arrests; which also is an endeavour to elude the justice of the law. (f) 8. Endeavouring or desiring, by any petition to the king, or bill exhibited in any of the king's courts against any creditors, to compel them to take less than their just debts; or to procrastinate the time of payment originally contracted for; which are an acknowledgment of either bis poverty or his knavery (9) 9. Lying in prison for two months or more, upon arrest or other detention for debt, without finding bail in order to obtain his liberty.(h) For the inability to procure bail argues a strong deficiency in his credit, owing either to his suspected poverty, or ill character; and his neglect to do it, if able, can arise only from a fraudulent intention; in either of k479]
which cases it is high time for his creditors to look to themselves, and
compel a distribution of his effects. 10. Escaping from prison after an arrest for a just debt of 1001. or upwards.() For no man would break prison that was able and desirous to procure bail; which brings it within the reason of the last case. 11. Neglecting to make satisfaction for any just debt to the amount of 1001. within two months after service of legal process for such debt upon any trader having privilege of parliament.(k)*
* The English Bankrupt Law Consolidation Act of 1849 (12 & 13 Vict. c. 106, s. 69) has increased the number of enumerated cases to fifteen, and modified six of these as set forth in the text. It is not deemed necessary to encumber the note with them. By the act of Congress Aug. 19, 1841, (5 Story, 2829,) the enumerated acts on which a man
These are the several acts of bankruptcy expressly defined by the statutes relating to this title: which being so numerous, and the whole law of bankrupts being an innovation on the common law, our courts of justice have been tender of extending or multiplying acts of bankruptcy by any construction or implication. And therefore Sir John Holt held(l) that a man removing his goods privately, to prevent their being seized in execution, was no 'act of bankruptcy. For the statutes mention only fraudulent gifts to third persons, and procuring them to be seized by sham process in order to defraud creditors: but this, though a palpable fraud, yet falling within neither of those cases, cannot be adjudged an act of bankruptcy. So also it has been determined expressly that a banker's stopping, or refusing payment is no act of bankruptcy; for it is not within the description of any of the statutes, and there may be good reasons for his so doing, as suspicion of forgery, and the like: and if, in consequence of such refusal, he is arrested, and puts in bail, still it is no act of bankruptcy :(m) but, if he goes to prison, and lies there two months, then, and not before, he is become a bankrupt.
We have seen who may be a bankrupt, and what acts will make him so: let us next consider,
3. The proceedings on a commission of bankrupt; so far as they affect the bankrupt himself. And these depend entirely *on the several statutes of bankruptcy; all which I shall endeavour to blend together and [*480 digest into a concise methodical order.
And, first, there must be a petition to the lord chancellor by one creditor to the amount of 1001., or by two to the amount of 1501., or by three or more to the amount of 2001., which debts must be proved by affidavit ;(n) upon which he grants a commission to such discreet persons as to him shall seem good, who are then styled commissioners of bankrupt.(0) The petitioners, to prevent malicious applications, must be bound in a security of 2001. to make the party amends in case they do not prove him a bankrupt. And if, on the other hand, they receive any money or effects from the bankrupt as a recompense for suing out the commission, so as to receive more than their ratable dividends of the bankrupt's estate, they forfeit not only what they shall have so received, but their whole debt.' These provisions are made, as well to secure persons in good credit from being damnified by malicious petitions, as to prevent knavisk combinations between the creditors and bankrupt, in order to obtain the benefit of a commission. When the commission is awarded and issued, the commissioners are to meet at their own expense, and to take an oath for the due execution of their commission, and to be allowed a sum not exceeding 20s. per diem each, at every sitting, And no commission of bankrupt shall abate or bo void upon any demise of the crown.(p)
When the commissioners have received their commission, they are first to receive proof of the person's being a trader and having committed some act of bankruptcy, and then to declare him a bankrupt, if proved so, and to give notice thereof in the Gazette, and at the same time to appoint three meetings. At one of these meetings an election must be made of assignees, or persons to whom the bankrupt's estate shall be assigned, and in whom it shall be vested for the benefit of the creditors; which assignees are to be chosen by the major
(4) Lord Raym. 725.
( )3 Stat. 13 Eliz. c. 7.
could be declared a bankrupt by the action of his creditors were,-1. Departing from the State, District, or Territory of which he is an inhabitant, with intent to defraud his creditors. 2. Concealing himself to avoid being arrested. 3. Willingly or fraudulently procuring himself to be arrested, or, 4. His goods and chattels, lands or tenements, to be attached, distreined, sequestered, or taken in execution. 5. Removing his goods, chattels, and effects, or concealing them to prevent their being levied upon or taken in execution, or by other process. 6. Making any fraudulent conveyance, assignment, sale, gift, or other transfer of his lands, tenements, goods, or chattels, credits, or evidences of debt: with a proviso, however, that any person so declared a bankrupt, at the instance of a creditor, shall be entitled, if he demands it, to a trial by jury.-SHARSW DOD.
*part in value of the creditors who shall then have proved their debts,
but may be originally appointed by the commissioners, and afterwards approved or rejected by the creditors: but no creditor shall be admitted to voto in the choice of assignees whose debt on the balance of accounts does not amount to 101. And at the third meeting, at furthest, which must be on the forty-second day after the advertisement in the Gazette, (unless the time be en. larged by the lord chancellor,) the bankrupt, upon notice also personally served upon him or left at his usual place of abode, must surrender himself personally to the commissioners; which surrender (if voluntary) protects him from all arrests till his final examination is past: and he must thenceforth in all respects conform to the directions of the statutes of bankruptcy; or, in default of either surrender or conformity, shall be guilty of felony without benefit of clergy, and shall suffer death, and bis goods and estate shall be distributed among
In case the bankrupt absconds, or is likely to run away, between the time of the commission issued and the last day of surrender, he may, by warrant from any judge or justice of the peace, be apprehended and committed to the county gaol, in order to be forthcoming to the commissioners, who are also em. powered immediately to grant a warrant for seizing his goods and papers.(r)
When the bankrupt appears, the commissioners are to examine him touching all matters relating to his trade and effects. They may also summon before them and examine the bankrupt's wife,(s) and any other person whatsoever, as to all matters relating to the bankrupt's affairs. And in case any of them shall refuse to answer, or shall not answer fully, to any lawful question, or shall refuse to subscribo such their examination, the commissioners may commit them to prison without bail till they submit themselves and make and sign a full answer: the commissioners specifying in their warrant of commitment the question so refused to be answered. And any gaoler permitting such person to escape or go out of prison shall forfeit 5001. to the creditors.(t) *482]
*The bankrupt, upon this examination, is bound upon pain of death
to make a full discovery of all his estate and effects, as well in expectancy as possession, and how he has disposed of the same; together with all books and writings relating thereto: and is to deliver up all in his own power to the commissioners, (except the necessary apparel of himself, his wife, and his children ;) or, in case he conceals or embezzles any effects to the amount of 201., or withholds any books or writings, with intent to defraud his creditors, he shall be guilty of felony without benefit of clergy, and his goods and estates shall be divided among his creditors.(u) And, unless it shall appear that his inability to pay his debts arose from some casual loss, he may, upon conviction by indictment of such gross misconduct and negligence, be set upon the pillory for two hours, and have one of his ears nailed to the same and cut off.(v)
After the time allowed to the bankrupt for such discovery is expired, any other person voluntarily discovering any part of his estate, before unknown to the assignees, shall be entitled to five per cent. out of the effects so discovered, and such further reward as the assignees and commissioners shall think proper. And any trustee wilfully concealing the estate of any bankrupt, after the expiration of two-and-forty days, shall forfeit 1001., and double the value of the estate concealed, to the creditors.(w)
Hitherto every thing is in favour of the creditors, and the law seems to be pretty rigid and severe against the bankrupt; but, in case he proves honest, it makes him full amends for all this rigour and severity. For, if the bankrupt hath made an ingenuous discovery, (of the truth and sufficiency of which there remains no reason to doubt,) and hath conformed in all points to the directions of the law; and if, in consequence thereof, the creditors, or four parts in fire of them in number and value, (but none of them creditors for less than 201.,) Stat. 5 Geo. II. c. 30.
selves within four days, are punished with death; also all who concenl the effects of a bankrupt, or set up a pretended
debt to defraud his creditors. Mod. Un. Hist. xxviij. 320. (*) Stat. » Geo. II. c. 30. By the laws of Naples, all fraudu (w) Stat. 5 Geo. II. c. 30. 'wat bankrupts, particularly such as do not surrender them
Stat. 5 Geo. II < 30. • Stat. 21 Jac. i. c. 19.
Stat. 5 Geo. II. c. 30.
(T) Stat. 21 Jac. I. c. 19.
will sign a certificate to that purport; the commissioners are then to authen ticate such certificate under their hands and seals, and to transmit it to the lord chancellor; and he, or two of the judges whom he shall appoint, on oath *made by the bankrupt that such certificate was obtained without fraud,
[*483 may allow the same; or disallow it, upon cause shown by any of the creditors of tbe bankrupt.(x)
If no cause be shown to the contrary, the certificate is allowed of course; and then the bankrupt is entitled to a decent and reasonable allowance out of his effects, for his future support and maintenance, and to put him in a way of honest industry. This allowance is also in proportion to his former good behaviour in the early discovery of the decline of his affairs, and thereby giving bis creditors a larger dividend. For, if his effects will not pay one-half of his debts, or ten shillings in the pound, he is left to the discretion of the commissioners and assignees to have a competent sum allowed him, not exceeding three per cent.; but if they pay ten shillings in the pound, he is to be allowed five per cent.; if twelve shillings and sixpence, then seven and a half per cent.; and if fifteen shillings in the pound, then the bankrupt shall be allowed ten per cent.; provided that such allowance do not in the first case exceed 2001., in the second 2501., and in the third 3001.(y).
Besides this allowance, he has also an indemnity granted him of being free and discharged forever from all debts owing by him at the time he became a bankrupt; even though judgment shall have been obtained against him, and he lies in prison upon execution for such debts; and for that, among other purposes, all proceedings on commissions of bankrupt are, on petition, to be entered of record, as a perpetual bar against actions to be commenced on this account: though, in general, the production of the certificate, properly allowed, shall be sufficient evidence of all previous proceedings.(z) Thus *the bankrupt becomes a clear man again; and, by the assistance of his allowance and
[*484 bis own industry, may become a useful member of the commonwealth ; which - is the rather to be expected, as he cannot be entitled to these benefits unless his failures have been owing to misfortunes rather than to misconduct and extravagance.
For no allowance or indemnity shall be given to a bankrupt unless his certificate be signed and allowed as before mentioned; and also, if any creditor produces a fictitious debt, and the bankrupt does not make discovery of it, but suffers the fair creditors to be imposed upon, he loses all title to these advantages.(a) Neither can he claim them if he has given with any of his children above 1001. for a marriage portion, unless he had at that time sufficient left to pay all his debts; or if he has lost at any one time 5l., or in the whole 1001., within a twelvemonth before he became bankrupt, by any manner of gaming or wagering whatsoever; or within the same time has losť the value of 1001. by stock-jobbing. Also, to prevent the too common practice of frequent or fraudulent or careless breaking, a mark is set upon such as have been once cleared by a commission of bankrupt, or have compounded with their creditors, or have been delivered by an act of insolvency: which is an occasional act, frequently passed by the legislature: whereby all persons whatsoever, who are either in too low a way of dealing to become bankrupts, or, not being in a mercantile state of life, are not included within the laws of bankruptcy, are discharged from all suits and imprisonment, upon delivering up all their estate and effects to their creditors upon oath, at the sessions or assizes ; in which case their perjury or fraud is usually, as in case of bankrupts, punished with death. Persons who have been once cleared by any of these methods, and afterwards become bankrupts again, unless they pay full *fifteen shillings in the pound, are only
[*485 thereby indemnified as to the confinement of their bodies; but any future 1) Stat. 5 Geo. II. c. 30.
causa ei fuerit relictum, pula menstruum vel annum, ali Stat. 5 Geo. 11. c. 30. By the Roman law of cession, if mentorum nomine, non oportet propter hoc bona ejus iterati the debtor acquired any considerable property subsequent wnundari: nec enim fraudandus est ali nentis cottidiani to the giving up of his all, it was liable to the demands of his Creditors, (i8. 12, 3, 4;) but this did not extend to such allowance as we left to him on the score of compassion for the maintenance of himself and family. Si quid misericordiæ VOL. I.-449
Ibid. 1. 6.
(*) Stat. 5 Geo. II. c. 30.