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CHAP. VII.

BANKRUPT.

I. Of the Alterations made in the Bankrupt Laws by

Stat. 6 Geo. 4. c. 16.; 18 2 W. 4. c. 56. esta

blishing a Court of Bankruptcy, and other Statutes. II. Of Persons liable to be Bankrupts. III. Of Persons not liable to be Bankrupts. IV. Of the several Acts of Bankruptcy. V. Of Property in Possession of the Bankrupt as reputed

Owner. VI. Of Warrants of Attorney, Conveyances, and Payments

made by and to Bankrupts. VII. Of Actions which may be brought by the Assignees of

a Bankrupt, and in what manner they ought to sue. VIII. Of Actions by the Bankrupt.

IX. Of the Pleudings.
X. Of the Evidence and Witnesses.

I. Of the Alterations made in the Bankrupt Laws by Stat.

6 Geo. 4. c. 16.; 1 & 2 W. 4. c. 56. establishing a Court of Bankruptcy, and other Statutes.

THE legislature having deemed it expedient to amend the laws relating to bankrupts, and to simplify the language thereof, and to consolidate the same in one act, and to make other provisions respecting bankrupts, by a statute, (which passed on the 2nd of May, 1825, to take effect on the 1st of September in that year,) (1) repealed the following statutes :

(1) A commission sued out on Sept. 8th, 1825, upon an act of bankruptcy committed in the July preceding, not supported. Maggs

34 & 35 H. 8. c. 4. 13 Eliz. c. 7.

1 Jac. 1. c. 15. 21 Jac. 1. c. 19. 13 & 14 Car. 2. c. 24. 10 Anne, c. 15. 7 G. 1. c. 31. 5 G. 2. c. 30. 19 G. 2. c. 32. 24 G. 2. c. 57. 4 G. 3. c. 33.

36 G. 3. c. 90.
37 G. 3. c. 124.
45 G. 3. c. 124.
46 G. 3. c. 135.
49 G. 3. c. 121.
56 G. 3. c. 137.

1 G. 4. c. 115.
3 G. 4. c. 74.
3 G. 4. c. 81.
5 G. 4. c. 98.

The statute of 6 Geo. 4. in many of its provisions corresponds with the enactments of former statutes, and therefore, in the following pages, such of the decisions as have been made on the construction of those statutes, and are likely to occur again, will be re-inserted.

In January, 1832, a Court of Bankruptcy was established, consisting now of three judges, and six commissioners. It is a court of law and equity, and has all the powers and privileges incident to a court of record. The three judges form a court of review, and have superintendance and control in

a Stat. 1 & 2 W. 4. c. 56.

bs. 1. and declaratory enactment in

5 & 6 W. 4. c. 29. s. 25.

v. Hunt, 4 Bing. 212; Hewson v. Heard, 9 B. & C. 754. S. P. Palmer v. Moore, 9 B. & C. 754. S. P. So where the trading had ceased before the 1st of September, 1825. Surtees v. Ellison, 9 B. & C. 750. See also exp. Chambers, 2 Mont. & Ayr. 440. But where the act of bankruptcy was committed in March, 1825, and the commission issued in July following, the Court held that the commission might be supported; for there were certain statutes in force, in March, 1825, when the act of bankruptcy was committed, and the same statutes were in force in July when the commission issued. Philips v. Hopwood, 10 B. & C. 39. Acts of trading before the stat. 6 Geo. 4, came into operation have been holden to be admissible in evidence, to shew quo animo acts of trading after the statute were done. Worth v. Budd, 2 B. & Ad. 172. Plaintiff having proved under a commission of bankrupt in 1816, was holden to be estopped from suing for the same debt, after the passing of the 6th Geo. 4. c. 16. although that statute had repealed the 49 Geo. 3. c. 121. which makes proof of a debt an election not to sue. Adames v. Bridger, 8 Bingh. 314. A commission may be supported on a debt accruing before the bankrupt became a trader and an act of bankruptcy committed after he has ceased to be a trader. Bailie v. Grant, D. P. 9 Bingh. 121.

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all matters of bankruptcy", co-extensive with, but not exceedingd the chancellor's former jurisdiction, and subject to an appeale to the chancellor on matters of law and equity, or on the refusal or admission of evidence only. Whether a man be a trader is a question of fact on which an appeal does not lief

The six commissioners are formed into two subdivision courts, consisting of three commissioners for each court, and have all the powersh which former commissioners had, provided that no single commissioner shall have power to commiti any bankrupt or other person examined before him, otherwise than to the custody of an officer of the court, to be detained and brought up within three days before Subdivisionk Court or Court of Review. In every case where the lord chancellor had, by any former act, power to issue a commission, he, M. R., V. Č. and each of the masters in chancery acting under a special appointment from the lord chancellor, may issue a fiat', in lieu of a commission, authorising the creditor to prosecute his complaint in the Court of Bankruptcy, or elsewhere, before such persons as shall be appointed in the fiat, who are to have like power as if appointed by commission under great seal. The provisions of former acts, and all rules and orders then in force, extend to this act, and fiats issued under it, to all purposes, as if such fiat were a commission under the great seal, except as otherwise directed by this act. Traders disputingo the adjudication are, within a limited time, to present a petition for reversal to the Court of Review, who are to decide thereon, having power, if they think fit, to direct issues for a trial by jury before the chief judge, or one or more of the other judges, of matters of facts affecting the validity of the adjudication.

Upon the reversal of any adjudication, chancellor may order fiat to be rescindedP, and such order shall have the validity of a supersedeas of a former commission under existing laws. The chancellor is empowered 4 to appoint official assignees, not exceeding thirty, one of which is to be, in all cases, an assignee of each bankrupt's estate, with the assignees

CS. 2.
d Exp. Lucas, 1 Mont. & Ayr. 103.
e S. 3. Exp. Keys, 1 Mont. & Ayr.

226. 240.
f Exp. Hinton, 2 Dea. & Ch. 407.
g S. 6.
h S. 7. See also 5 & 6 W. 4. c. 29.

s. 23, 4. i See 5 & 6 W. 4. c. 29. s. 25. and

R. v. Faulkner, 2 Cr. M. & R. 525.

k Exp, Lampon, 1 Mont & Ayr. 245.

See enlarged powers of subdivision
courts in 5 & 6 W. 4. c. 29, s. 23,

4, 5.
IS. 12
n S. 16.
o S. 17.
p S. 19.
q S. 25.

chosen by the creditors. Real and personal estate is to be received by official assignee alone, except where otherwise directed by court. The personal estate9 of bankrupt, present and future, becomes vested in the assignees without any deed, by virtue of their appointment; and so in case of death or removal, in new assignee. So present and future real estate', in united kingdom or colonies, vests in assignees without any deed of conveyance, with a provisos, that in cases where the conveyance would require to be registered, a certificate of appointment of assignees shall be registered.

It must be remarked here, that the statute for abolishing fines and recoveries, 3 & 4 W. 4. c. 74. expressly repeals the stat. 6 Geo. 4. c. 16. s. 65. so far as relates to estates tail, and to that extent also virtually repeals the 26th section of the 1st and 2nd W. 4. c. 56. and empowerst any commissioner acting in any fiat, by deed, enrolled within six months after its execution, to dispose of the lands of any bankrupt, tenant in tail, to any purchaser, for the benefit of his creditors, and to create, by such disposition, as large an estate as the bankrupt himself could have done under the act. The statute 1 and 2 W. 4. c. 56. is still in force in respect of real estates of which a bankrupt is seised in fee; and, indeed, also respecting his estates tail, until they are conveyed by the commissioners. But the commissioners appear to be the proper parties to convey the bankrupt's estate tail, under the statute 3 and 4 W. 4. c. 74. s. 56. and the assignees the proper parties to convey the bankrupt's estates in fee simple, under the 1 and 2 W. 4. c. 564. By stat. 3 and 4 W. 4. c. 74. s. 67. assignees are empowered to recover rents of the lands of a bankrupt, of which the commissioner has power to make disposition, and to enforce covenants, as if entitled to the reversion, until such disposition made, or until it is ascertained that such disposition is not required. This clause applies to all copyhold lands; but as to lands of any other tenure, to such only as the commissioner may dispose of after the bankrupt's death.

Formerly a commission might have been superseded, on the ground of concert between the petitioning creditor, his solicitor, or agent, or any of them, and the bankrupt, &c.; but that is now abolishedá. A subsequent statute y directs, that the records and proceedings under former commissions shall be removed into the Court of Bankruptcy. Any one judge may, upon application, direct any commissionz heretofore issued to be entered on record. A similar provision is made with respect to fiatsa, adjudications of bankruptcy, appointments of assignees, depositions, or other proceedings, which must be strictly attended to; for unless the fiats, &c. are duly entered of record, pursuant to this provision, they cannot be received in evidence in any court of law or equityb. In the case of the death of witnesses, the depositions so entered of record, or duly authenticated copies, may be read in evidence. The ninth section enacts, that upon the produce tion in evidence of any commission, fiat, adjudication, assignment, appointment of assignees, certificate, depositions, or other proceeding in bankruptcy, purporting to be sealed with the seal of the Court of Bankruptcy, or of any writing purporting to be a copy of any such document, and purporting to be sealed as aforesaid, the same shall be received as evidence of such documents respectively, and of the same having been so entered of record, without any proof thereof: provided that all fiats, and proceedings under the same, which may have been entered of record before the passing of this act, shall and may, upon the production thereof, with the certificate thereon, purporting to be signed by the person so appointed to enter proceedings in bankruptcy, or by his deputy, be received as evidence of the same having been duly entered of record.

9 S. 25.

will find the other provisions of this r S. 26.

act relating to bankrupt's real ess S. 27.

tates. t 3 & 4 W, 4. c. 74, s. 56.

x S. 42, and post. u dee Cru. Dig. vol. 1, p. 88. 4th ed. y 2 & 3 W. 4. c. 114. s. 1.

by H. H. White, where the reader

II. Of Persons liable to be Bankrupts.

Any person being a trader, and capable of contracting in the way of trade, may become a bankrupt. Lord Hardwicke, Ch. refused to supersede a commission (2) which had been taken out against a clergyman, who was proved to have been a trader and had committed an act of bankruptcy, although it was urged, that clergymen were prohibited from trading, by stat. 21 H. 8. c. 13. s. 5. and that all contracts made by them

2 S. 4.
a S. 5.

b 2 & 3 W. 4. c. 114. s. 8.
CS. 7.

(2) The reader should be reminded, that the commission is now abolished, and the fiat is substituted in its place by 1 & 2 W. 4. c. 56. s. 12; it is, however, necessary to retain the word throughout this chapter, with reference to the old law on this subject.

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