« EelmineJätka »
civil process, are no longer protected from the liability to be made bankrupts (m); and aliens, denizens, and persons naturalized, are as amenable to the law of bankruptcy as natural-born subjects (n). But the debtor must be domiciled in England (0); or must, at all events, have had (within a year before the date of the presentation of the petition) his residence or place of business in England (p), in order to be made a bankrupt.
II. Under what circumstances, and in what manner, a debtor may be made a bankrupt.—Bankruptcy proceedings may be taken either by a creditor or creditors, or by the debtor himself, the first step in each case being the filing of a petition praying for a receiving order (9). But in the case of a creditor's petition, it is essential that the debtor shall have committed, within three months prior to the presentation of the petition, one or more of the following nine acts of bankruptcy, viz. : (1) That he has, in England or elsewhere, made a conveyance or assignment of his property to a trustee or trustees for the benefit of
his creditors generally (); (2) That he has, in England . or elsewhere, made a fraudulent conveyance, gift, delivery,
or transfer of his property, or of any part thereof ; (3) That, in England or elsewhere, he has made any conveyance or transfer of his property, or any part thereof, or created any charge thereon, which would, under the Bankruptcy Act, 1883, or any other Act, be void as a fraudulent preference if he were adjudged bankrupt ; (4) That he has, with intent to defeat or delay his
(m) Duke of Newcastle v. Morris (1870), L. R. 4 H. L. 661 ; 34 & 35 Vict. (1871) c. 50, ss. 6–8; Act of 1883, ss. 32, 33; In re Russell (1872), L. R. 7 Ch. App. 519.
(n) Allen v. Cannon (1821), 4 B. & Ald. 418.
(0) Ex parte Cunningham (1884), 13 Q. B. D. 418.
(p) Cooke v. Vogeler & Co.,  A. C. 102; In re Bright (1902), 18 T. L. R. 37.
(9) Forms in Appendix to General Rules, 1886 ; No. 4, Debtor's Petition ; No. 10, Creditor's Petition.
(r) In re Phillips, Ex parte Barton,  2 Q. B. 329.
creditors, done any of the following things, viz., departed out of England ; or, being out of England, remained out of England ; or departed from his dwelling-house, or otherwise absented himself ; or begun to keep house (s); (5) That execution issued against him has been levied by seizure and sale of his goods, under process in an action in any court or in any civil proceeding in the High Court ; (6) That execution issued against him has been levied by seizure of his goods under such process as lastmentioned, and the goods (without having been actually sold by the sheriff) have been held by him for twenty-one days (t); (7) That the debtor has filed in the court a declaration admitting his inability to pay his debts, or has presented a bankruptcy petition against himself (u); (8) That a creditor has obtained a final judgment against him for any amount, and, execution thereon not having been stayed, has served on him in England (or, by leave of the court, elsewhere) a “ bankruptcy notice” under the Act, requiring him to pay the judgment debt in accordance with the terms of the judgment, or to secure or compound for it to the satisfaction of the creditor or of the court, and he has not,-within seven days after service of the notice in case the service is effected in England, and, in case the service is effected elsewhere, then within the time limited in that behalf by the order giving leave to effect the service,-either complied with the requirements of the notice or satisfied the court that he has a counter-claim, set-off, or cross-demand which equals or exceeds the amount of the judgment debt, and which he could not set up in the action in which the judgment was obtained ; and (9) That the debtor has given notice to any of his creditors that he has suspended, or is about to suspend, payment of his debts. And here it is to be noted (as being in some sense a tenth act of bankruptcy), that, on an application under the Debtors Act, 1869 (32 & 33 Vict. c. 62), s. 5, made by a judgment creditor for an order of committal against the judgment debtor, the court may (in lieu of committing) make a receiving order against the debtor, providing the creditor consent thereto ; and in such a case, the debtor is deemed to have committed an act of bankruptcy at the time such order is made (v). .
(8) Er parte Meyer, In re Stephany (1871), L. R. 7 Ch. App. 188 ; Ex parte Coates, In re Skelton (1877), 5 Ch. D. 979.
(t) Act of 1890, s. 1.
(u) Ex parte Duignan, In re Bissell (1872), L. R. 6 Ch. App
As regards the first and second of the nine acts of bankruptcy, it should be observed, that the character of the transaction, as being innocent or fraudulent, is to be determined exclusively by its effects upon the creditors of the debtor. So that any transfer is fraudulent, which is void under the statute 133 Eliz. (1571) c. 5; or which substantially conveys the debtor's whole property in consideration of a pre-existing debt (.) ; or which conveys even a portion of his property in consideration of such a debt, if made voluntarily and in contemplation of bankruptcy, or if it otherwise has the effect of defeating or delaying the creditors (y).
Such being the different acts of bankruptcy, one of which must have been committed before a petition can be filed by a creditor, we may next notice that there must be a debt owing to the creditor amounting to 501. or upwards ; but any two or more creditors whose debts in the aggregate amount to 501. may be the petitioning creditors. The debt must be a liquidated sum due either at law or in equity (3), and payable either immediately or at some certain future time; it must, of course, be an actionable debt (a) ; and if the debt of the petitioner should be a secured debt, then the creditor must, in his petition, state
() Act of 1883, ss. 4, 6.
(.) Worsley v. De Matto8 (1758), 1 Burr. 467 ; Ex parte Ellis (1876), 2 Ch. D. 797 ; Ex parte Chaplin (1884), 26 Ch. D. 319.
(y) Alton v. ilarrison (1869), L. R. 4 Ch. App. 622.
(z) Éx parte Blencowe (1866), L. R. 1 Ch. App. 393.
(a) Ex parte Sturt, In re Pearcy (1871), L. R. 13 Eg. 309.
that he is willing to give up his security for the benefit of the creditors in the event of an adjudication of banktuptcy, or else he must give an estimate of the value of the security, and then he is deemed to be a petitioning creditor in respect only of the balance of his debt. The petition, which must be on oath (b), is to be filed either in the county court (which has, for this purpose, all the jurisdiction of the High Court) or in the High Court (c), according to the following distinctions, that is to say :-If the debtor against or by whom a bankruptcy petition is presented has resided or carried on business within the London bankruptcy district for the greater part of the six months immediately preceding the presentation of the petition, or for a longer period during those six months than in the district of any county court, or if he is not resident in England, or if the petitioning creditor is unable to ascertain the residence of the debtor, the petition must be presented to the High Court. In any other case, the petition must be presented to the county court for the district in which the debtor has resided or carried on business, for the longest period during the six months immediately preceding the presentation of the petition.
The petition (unless indeed it is filed by the debtor himself) must be duly served on the debtor ; and, in order to prevent his avoiding such service, the debtor may (in a proper case) be arrested under the Bankruptcy Act, 1883 (d), as amended by sect. 7 of the Bankruptcy Act, 1890 (e).
Upon the hearing of the petition, unless it is dismissed, a receiving order will be made. But at any time after the presentation of the petition, the court may make an interim receiving order ; and after such order, no creditor may commence any action or other proceeding against the debtor or his property, and the court may even stay any
(6) Act of 1883, s. 7.
(c) Sect. 95; Reg. Gen. 145 (October, 1886).
(d) 46 & 47 Vict. c. 52, s. 25. (€) 53 & 54 Vict. c. 71.
pending action or execution or other legal process (+). Notice of the receiving order is sent to the official receiver and to the Board of Trade, and is advertised ; and the effect of it is, to constitute the official receiver interim receiver of the property of the debtor. Such official receiver may (sect. 12) appoint a special manager until a trustee is appointed.
Within seven days from the date of the receiving order made on the petition (if the same is a creditor's petition), and within three days from that date (if the petition is that of the debtor himself), the debtor makes out and submits to the official receiver a statement of his affairs, showing the particulars of his assets and liabilities (g) ; and as soon as conveniently may be after such receiving order has been made and advertised as already mentioned, the official receiver is to summon a general meeting (usually called the first meeting) of the creditors, of which seven days' notice is given in the London Gazette (h), and in a local paper. This notice is, in the general case, for a day not later than fourteen days from the date of such receiving order (e); and the official receiver sends to each of the creditors mentioned in the debtor's statement of affairs a summary of that statement (k).
At this meeting the creditors consider whether the debtor shall be made a bankrupt or not, or whether, supposing any composition be offered by the debtor, it shall be accepted or not, a subject which will be dealt with later (!). If they at such first meeting, or at any adjournment thereof, by ordinary resolution, resolve that the debtor be adjudged bankrupt,—or if they pass no resolution, or do not even meet,--the court adjudges the debtor a bankrupt ; and thereupon the property of the bankrupt beconies divisible among his creditors, and for
(s) Act of 1883, ss. 5, 9, 10; (h) Sect. 15; First Schedule. Ex parte Anderson (1870), L. R. (i) First Schedule, rule 1. 5 Ch. App. 473.
(k) Ibid., rule 3. (g) Sect. 16.
(l) Pp. 220 et seq.