E. OPERATION OF ASSIGNMENT UPON 3. And one instance of buying and PROPERTY IN THE HANDS OF BANK-selling is sufficient. Ibid. RUPT. (a) As vendee. (b) As indorsee. (c) As reputed owner. (e) Where no beneficial interest. F. ASSIGNEes. (a) Authority of assignees. G. TRANSACTIONS WITH BANKRUPT, (a) Payments to bankrupt. H. RIGHTS AND DUTIES OF BANK RUPT. (a) Allowance. ́(b) Interest in after-acquired property. (c) Protection from arrest. I. CERTIFICATE. A. TRADING. And see Holroyd v. Gwynne, 2 Taunt. 176. 4. A clerk in the custom-house, employed by merchants to receive money on debentures, with which he discounts bills on his own account, is not a scrivener within the meaning of the bankrupt laws. Hamson, assignee of Pingo, v. Harrison, 2 Esp. 555. Kenyon, C. J. 1797. 5. Nor an attorney receiving and placing out the money of his client in the usual course of business. Ralph Adams and others v. Malkin and another, 3 Campb. 534. Gibbs, C. J. 1814. S. C. published at length in a separate pamphlet by Hurd. 6. An attorney who is a depositary of money, to be laid out in securities at his own discretion, and has a compensation distinct from his fees for drawing conveyances, is a scrivener. Hutchinson and another, assignees of Wardell, a bankrupt, v. Gascoigne, Esq. Holt, 507. Wood, Baron, York Lent assizes, 57 Geo. 3. 1817. 7. Secus, where the attorney makes his charges in respect of the deeds, securities, &c. and not as commission on the moneys in his hands. Hurd v. Brydges and another, Holt. 654. Dallas, J. 1817. 8. An executor, carrying on trade for the benefit of testator's children, may be a bankrupt. Viner, administratrix, v. Cadell, 3 Esp. 88. Eldon, C. J. 1800. Acc. Hankey v. Towgood, Co. B. L. 75. And see ex parte Garland, 10 Ves. 110. 9. The mere circumstance of a per1. A schoolmaster who buys books and son's not having any transactions in shoes, and retails them to his scholars business during a particular period, will at an advanced price, is not a trader. not exempt him from the operation of Valentine v. Vaughan, Peake, 76. Ken- the bankrupt laws, where, by soliciting yon, C. J. 1791. orders, &c. he evinces his intention of continuing to trade. Wharam v. Routledge, 5 Esp. 235. Ellenborough, C. J. 1805. S. P. obiter; Skinner 292, and 3 Mod. 330. 95. And see Doe v. Keeling, 1 M. and S. 2. A person who keeps and kills more pigs than are required for his own consumption, with a view of profit from a re-sale, is a trader. Newland v. Bell, Holt. 221. Gibbs, C. J. 1816. See Stewart v. Ball, 2 N. R. 79. 10. And where a fisherman has occasionally bought and sold fish, as incidental to his business, it will be presumed, whilst he remains a fisherman, that he carries on business in the same way. Heanny and another, assignees of Marchand, v. Birch and another, Sheriff's E of London, 3 Campb. 233. Ellenborough, C. J. 1812. 11. A person who buys timber, which he works into houses which he builds C. J. 1804. B. (b) Beginning to keep house. 18. A denial to several persons, whom and sells, is not a trader. Clark v. the witness believes, from their frequent Wisdom, 5 Esp. 147. Ellenborough, calling, to be creditors, is evidence to go to the jury. Jameson, assignee of White, 12. Nor a person who builds a theatre v. Eamer et alt. Sheriff's of London, 1 to be held in shares, for which he is to Esp. 381. Kenyon, C. J. 1795. be paid according to measure and value, 19. A denial to a creditor who calls he being himself a share-holder. Wil-for payment, but does not ask to see the liams v. Stevens, 2 Campb. 300. debtor, is not an act of bankruptcy. borough, C. J. 1809. Dudley v. Vaughan, 1 Campb. 271. Ellenborough, C. J. 1808. Ellen 13. Nor one who erects public baths, upon land granted for this purpose, to 20. Nor a refusal to see a creditor himself and another, as joint tenants. merely on the ground of his calling at Ibid. the trader's dinner hour. Smith and another assignee of Williams v. Currie, 3 Campb. 349. Ellenborough, C. J. And see Sutton v. Weeley, 7 East, 442; S. C. 3 Smith, 445; Holroyd v. Gwynne, 2 Taunt. 176. B. ACT OF BANKRUPTCY. B. (a) Departing the realm. 14. If a subject, or denizen, domiciled in Ireland, leave his family there, and come to England to settle his affairs, and return to Ireland abruptly to avoid an arrest, it is an act of bankruptcy. Williams v. Nunn and another, 1 Campb. 152, 80 c. Chambre, J. 1807. 1813. Acc. Bull. N. P. 39. N. But the intention of the creditor in calling is immaterial; White ex parte 3 V. and B. 129. Rose. 21. A trader withdraws from his counting-house to his parlour for the purpose of avoiding the importunities of his creditors. This is an act of bankruptcy. Dudley v. Vaughan, ubi supra. And see Bayley v. Schofield, 1 M. and S. 338; Bignold v. Waterhouse, 1 M. and S. 255. 22. A direction to a servant to deny the trader to any one who should come And the court of C. P. discharged a whilst he was at dinner, or engaged in rule for setting aside verdict. 1 Taunt. business, is not an act of bankruptcy. Shew and another v. Thomson, Holt, Gibbs, C. J. 1816. 270. N. It is there stated that the bank-159. rupt's family resided in England, which circumstance was particularly adverted to by the court. Ibid. 277. 15. A trader going to France, to look after his concerns there, does not commit an act of bankruptcy, though his creditors be thereby delayed. Warner and another v. Barber, Holt. 175. Gibbs, C. J. 1816. 16. Secus, if the fear of arrest concur with his other motive. Ibid. 17. Where the delaying of creditors is the necessary consequence of the trader's absenting himself, it amounts to an act of bankruptcy. Ramsbottom and others v. Lewis and others, 1 Campb. 279. Ellenborough, C. J. 1808. And see Woodier's case, Bull. N. P. 39, post, B. (d) 28. B. (c) Absenting himself. 23. If a trader, on absenting himself from his house, state, that writs are out against him, it is not necessary to shew that any writ had in fact issued. Wilson et alt. assignees of Warner v. Norman, 1 Esp. 334. Kenyon, C. J. 1795. S. C. Mont. B. L. app. 162. And see Robertson v. Liddell, 9 East, 487; S. C. 3 Smith, 347, 50; Holroyd v. Gwynne, 2 Taunt. 176. 24. A trader, on being applied to for payment, leaves his house under pretence of getting money, but goes to a billiard table, and remains there the whole evening. This is an act of bank ruptcy. Bigg, assignee of Fisher, v. 31. Secus of an agreement to sell, not Spooner, 2 Esp. 651. Kenyon, C. J. under seal. Ibid. 1798. 32. A. and B. are partners and insol25. A. in London, is in partnership vent. An assignment to B. from A. in with B. in Manchester. A. goes to trust for the wife of B., who is the Manchester; and after remaining there daughter of A., is no act of bankruptcy two days, secretly leaves the Manchester by B., though a party to the deed, counting-house with B. This is an act Ibid. of bankruptcy by both. W. Spencer v. Billing, 3 Campb. 312. Ellenborough, C. J. 1812. And see Bayly v. Schofield, 1 M. and S. 338. 26. A trader remaining abroad, with intent to delay his creditors, commits an act of bankruptcy. And the court of K. B. refused a 33. An agreement whereby an insolvent undertakes to pay a composition by instalments, and authorizes the creditors in case of default to take possession of all his goods, is not an act of bankruptcy. Jolly et alt. assignees of Norton, v. Walle, 3 Esp. 228. Kenyon, C. J. 1800. 34. An assignment by deed of all the rule to set aside a verdict for the plain-effects for the benefit of creditors with a tiffs. Ibid. proviso to be void if all the creditors do not execute, but that in the mean B. (d) Departing from dwelling-house. time the acts of the trustees shall be 27. A departure with the intent to delay creditors, is a sufficient act of bankruptcy, though no creditor be actually delayed. Hammond et alt. assignees of Gadsden, v. Hicks, 5 Esp. 139. Mansfield, C. J. 1804. And the court of C. P. discharged a rule for setting aside verdict. Ibid. good, is an act of bankruptcy. Bach and another, assignees of Burrows and Winn, bankrupts, v. Cooch, 4 Campb. 232. Gibbs, C. J. 1815. 35. A. assigns all his stock by a deed, to which B. is a party. B. cannot sue out a commission upon this act of bankruptcy. Jackson and others, assignees, of Robinson, v. Irwin and others, 2 Campb. 49. Ellenborough, C. J. 1809. 28. So if a trader goes away without leaving any direction for carrying on his business. Holroyd and others, assignees 36. So where A., though not a party of Hale, v. Whitehead and others, 3 to the deed, approved of acts done under Campb. 530. Gibbs, C. J. 1814. it. Back and another, assignees of BurS. C. recognized in Robertson v. Lid-rows and Winn, bankrupts, v. Gooch, dell, 9 East, 487, 494, where all the 4 Campb. 232. Holt, 13. Gibbs, C. J.. cases are collected. S. C. 3 Smith,|1815. 347. And see Williams v. Nunn, 1 Taunt. 270; Bayly v. Schofield, 1 M. and S. 338. B. (e) Fraudulent conveyance. 29. A fraudulent conveyance cannot be read to support the commission, if unstamped. Whitwell and others, assignees, &c. v. Dimsdale and others, Peake, 168. Kenyon, C. J. 1792. 30. A conveyance by deed from an insolvent trader to his child, though void, yet being also fraudulent, is an act of bankruptcy. Whitwell and others, assignees of Stevens and Hattersley, v. Thompson, 1 Esp. 68. Kenyon, C. J. 1793. 37. S. P. Hicks and another, assignees of Penford, v. Burfelt, 4 Campb. 235, n. Chambre, J. Winchester, 1812. And see Bamford v. Baron, 2 T. R. 594. n. 38. But he may act as an assignee under a commission taken out upon it by another creditor. Jackson v. Irwin, 2 Campb. 49. And see Tappendal v. Burges, 4 East, 430, 5, 6; Dutton v. Morrison, 17 Ves. 193. B. (f) Lying in prison. 39. A commission issued before the two months have elapsed, is not rendered valid by the party's continuing in prison during the remainder of that period. Glassington, assignee of Dickie, | Bla. 441; S. P. ex parte Bourne, 16 Ves. v. Rawlins and others, 4 Esp. 221. 145; S. P. cont. Branley v. Mundee, Lawrence, J. 1803. Bull. N. P. 39. And see ex parte Edmonson, 7 Ves. 303. S. P. Gordon v. Wilkinson, 8 T. R. 507. Sed vide Hope v. Gill, Beawes, L. M. 498; Hill v. Shish, 2 Show. 512, 9; Wydown's case, 14 Ves. 80, 3. 40. But a commission issued fifty-six days inclusively after the arrest is good. Ibid. Upon this ground the court of K. B. granted a new trial, 3 East, 407. And see TIME, 2. N. There is a mistake of dates in the Nisi Prius Report; as the commission must have issued on the ninth instead of the fifth. 45. Secus where the creditors are not parties to the contrivance; though they have expressed a wish that a commission should issue. Roberts and others, assignees, v. Teasdale, Peake, 27. Kenyon, C. J. 1790. And the court of K. B. set aside a verdict found for the defendant contrary to the direction of the C. J. Ibid. S. P. Cawley v. Hopkins, Co. B. L. 84, 95, ex parte, Bourne, 16 Ves. 145. 46. But a denial concerted with the trader's attorney, who is also attorney to the creditor, and as such takes him to the 41. A trader is arrested on the fourth, trader's house, will not support a comand is allowed to be at large till the mission, although the creditor himself eighth, when he returns into custody. be not privy to the arrangement. ProsOn the tenth he is removed by habeas ser v. Smith, Holt, 442. Burrough, J. into K. B., and remains there two months. 1816. The bankruptcy has relation to the 47. Nor an assignment of all the eighth. John Barnard the younger, v. trader's effects to his foreman, concerted Palmer and another, assignees of John with such attorney. Ibid. Lochart Barnard, 1 Campb. 509. Ellen borough, C. J. 1808. And see Coles v. Wright, 4 Taunt. 198. 42. But if, after an arrest, he is too ill to be immediately removed, and he remains some days in his house, and is then carried to prison, the relation is to the first arrest. Stevens v. Jackson and another, 4 Campb. 164. Gibbs, C. J. 1815. B. (g) Whether purged. 43. A denial to a creditor is not purged by his being admitted in consequence of his importunity. Wood et alt. assignees of Pearce, v. Thwaites, Esp. 245. Le Blanc, J. 1800. And see Hopkins v. Ellis, 1 Salk. 110; Colkett v. Freeman, 2 T. R. 94. B. (h) Concerted. C. PETITIONIng creditor. 48. It was ruled, that a sale of goods upon an unexpired credit, constituted a sufficient debt to support a commission under 5 Geo. 2. cap. 30. sect. 22. Henbest and others, assignees, &c. v. Brown, Peake, 54. Kenyon, C. J. 1791. 49. But this decision has been overturned. Hoskins, assignee of Deyton, v. Duperoy, 6 Esp. 55. Ellenborough, C. J. 1806. S. C. after a second trial, 9 East, 498, 500. And see Parslow v. Dearlove, 4 East, 3438; S. C. 1 Smith, 281; Sarratt v. Austin, 4 Taunt. 200; White, ex parte, 3 V. and B. 130. 50. A factor selling goods to a trader in his own name, though not at his own risk, is a good petitioning creditor. 51. Secus afterthe principal has inter 44. A concerted denial will not sup-fered. Ibid. port a commission. Stewart et alt. as- 52. And an admission made by such signees, v. Richman, 1 Esp. 108. Kenyon, a creditor of the nature of the claim C. J. 1794. upon which he has in fact sued out a S. P. Field and Bellamy, Bull. N. P. commission, may be given in evidence 39; S. P. Cawley v. Hopkins, Co. B. L. for the purpose of invalidating the com84, 95; S. P. dub. Hooper v. Smith, 1mission in a collateral action. Young and Barley v. Smith and Phillips, Sheriffs philus Biddulph, 4 Esp. 104. Le Blanc, of London, 6 Esp. 121. Mansfield, C. J. 1802. J. 1806. 60. Semble, that a warrant of attorney 53. But semble, that upon a sale of is debitum in præsenti, sufficient to supgoods for present bill, the jury may, in port a commission, though it appear by some cases, presume that a bill has in the defeazance to be given merely as a fact been given. Hoskins v. Duperoy, security against the running acceptances ubi supra. of the conusor. Miles and another v. 54. In an action for a false return to a Rawlyns and another, Sheriff of Midfi.fa. where the defence rests on the dieser, 4 Esp. 194. Ellenborough, C. J. validity of a commission, and the as-1802. signees are in substance to defendants, 61. A party who has received a dia declaration by one of them who was vidend under a composition deed, exethe petitioning creditor, made subse-cuted after an act of bankruptcy, of quently to the commission, that the which he was ignorant, is a good petibankrupt did not owe him 100%., is evi-tioning creditor. Doe and Pitcher v. dence for the plaintiff. Dowden v. Anderson, 1 Stark. 262. Ellenborough, Fowle, esq., 4 Campb. 38. Dampier, C. J. 1816. J. 1814. 55. A debt must have accrued to the petitioning creditor before the party ceased to be a trader. Dawe and others v. Holdsworth and others, Peake, 64. Kenyon, C. J. 1791. And the court refused a rule to set aside nonsuit. Ibid. 62. Secus, If the assignment be the act of bankruptcy relied on. Ibid. 63. A. B. and C. cannot be petitioning creditors, in respect of a bill drawn S. P. Meggott v. Mills, 12 Mod. 157; by them, and accepted by the bankrupt, S. C. 1 Lord Raym. 286, 7; S. C. anon. if it appears that A. engaged to provide Comb. 463. 56. But if the debt was contracted whilst the bankrupt was in trade, it is sufficient, although it have since merged in a higher security. Ibid. S. P. Ambrose v. Clendon, Cas. temp. Hardw. 267, 8; S. C. 2 Stra. 1042. 57. But where the bankrupt contracts a further debt after he leaves off trade, and pays money without any direction as to its application, the payment shall be set against the old debt. Ibid. S. P. Meggot v. Mills, 1 Lord Raym. 286,7; Anon. but S. C. and S. P. Comb. 463. 58. An acknowledgment made by the bankrupt, at any time before the suing out of the commission, is sufficient evidence of the petitioning creditor's debt. Dowton, et alt. v. Cross, esq. Sheriff of Bedfordshire, 1 Esp. 168. Kenyon, C. J. 1794. And see Brett v. Levett, 13 East, 213, 214; Chapman v. Gardner, 2 H. Bla. 279. post. 68, 69, 78, 79. 59. Payment of money to petitioning creditor, after the suing out of a commission, renders the commission supersedeable, under 5 Geo. 2. cap. 30. sect. 24. but not ipso facto void. Garratt, et alt. assignees of Sadler v. Sir Theo for the acceptances when they should become due, although such engagement were made in fraud of his partner. Richmond v. Heapy and another, 1 Stark. 102. Ellenborough, C. J. 1816. 64. A debt owing to the creditor jointly with another person, who does not expressly concur in the petition, will not support a commission. Brickland (or Buckland) and others, assignees of Mason, v. Newsome, late Sheriff of Surrey, 1 Campb. 474. Ellenborough, C. J. Guildford, 1808. And the court of C. P. set aside a nominal verdict for the plaintiff. Ibid. and one Taunt. 477. 65. A factor who sells goods, without naming his principal, is a good petitioning creditor, inasmuch as he might have sued the vendee. Sadler, assignee of Knight, v. Leigh and another, 4 Campb. 195. Ellenborough, C. J. 1815. And see AGENT, C. (a); F. 66. But as soon as the principal interposes, the right of the factor ceases. Ibid. |