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turns are not
3 W.4. c. 14. $ 30. “If the annual statements directed by the said act passed
in the ninth year of his late majesty king George the fourth If annual re
to be prepared and transmitted by the trustees of a savings bank, made pursuant shall not be prepared and transmitted to the commissioners for to 9 G. 4. c. 92. the reduction of the national debt, within the time limited by the § 46. name of said act, it shall and may be lawful for the said commissioners, savings bank to
or for the comptroller general, or assistant comptroller acting be published in Gazette.
under the said commissioners, and they and he is and are hereby severally required, forthwith to publish in the London Gazette, and also in any newspapers published in the county in which the savings bank is established, the name of every such savings bank so neglecting or making default in transmitting such annual statement as aforesaid, in such form and words, for the information of the depositors, and under such regulations, as the said commissioners or the said comptroller general, or assistant comptroller
shall from time to time think fit." Statement of
§ 31. “ It shall and may be lawful for the commissioners for expenses may the reduction of the national debt, or the comptroller general, he required from trustees
or assistant comptroller acting under the said commissioners, if or managers.
they or he shall think fit, to require from time to time, of and from the trustees or managers of any savings bank, a detailed statement of all the expenses whatever incurred by the said trustees or managers in the management or otherwise of the said
savings bank." When money
$ 32. “Whenever it shall appear in any annual statement that is in the hands
any sum of money, of or belonging to a savings bank, is in the of a treasurer, bis certificate
hands of any treasurer or other person, the said annual stateto accompany
ment shall be accompanied with a certificate, signed by such trea. the statement. surer or other person, that the sum of money therein mentioned
is in his possession.” Re-enrol- $ 33. “Provided always, and it is hereby enacted, that nothing ment of rules
contained in this act respecting savings banks, shall render it not necessary.
necessary to have the rules and regulations of savings banks again enrolled, if the same have been before enrolled according
to law." 9 G. 4. c. 92.,
Ø 34. “The provisions of the said act, made and passed in as amended by the ninth year of his late majesty king George the fourth, ani this act, extended to
of this act, shall extend to all savings banks established or be “2 Guernsey, &c.
after to be established in the islands of Guernsey and Jersey, ud
Isle of Man." Limits of the $ 35. “ This act shall extend to Great Britain and ). innd,
and Berwick-upon-Tweed, and the islands of Guernsey and ! velja and Isle of Man."
Bankrupt. [As to perjury by bankrupts, and non-surrender and em
bezzlement, see Vol. III. (Criminal Law,) p. 77.] I. Derivation and Description of a Bankrupt : and hercin,
of a Trading and Act of Bankruptcy. [6 G. 4. c. 16.] II. Apprehension of Persons interrupting the Commissioners.
[1 & 2 G. 4. c. 115. $21.] III. Apprehension of Bankrupt for non-attendance on Com
I. Derivation and Description of a Bankrupt. LORD Coke says that banque in French signifies the same as Derivation.
mensa in Latin ; and that route is a sign or mark; as we say a cart rout is the sign or mark where the cart hath gone; and that metaphorically a bankrupt or banqueroute, is taken for him that hath wasted his estate, and removed his banque, so as there is left but a mention thereof. 4 Inst. 277.
And it is observable that the title of the first English statute concerning this offence, stat. 34 & 35 H. 8. c.4., An act against such persons as do make bankrupt, is a literal translation of the French words qui font banque route.
But as the first bankers came to us from Italy, it seemeth more probable that they brought their name along with them; and consequently that the word bankrupt or banqueroute cometh from the Italian banco rotto, the bench being broken. The banker himself was so called from the bench or table which he used with his name inscribed, and when he failed, his bench was broken. Which word rotto is what remaineth in that country of the Latin ruptus ; all which, both word and metaphor, we preserve in our language, when we say that a person is bankrupt, or that such a one is broken.
But whatever be the derivation of the word, a bankrupt has been defined to be a trader who secretes himself, or does certain other acts, tending to defraud his creditors. Throughout the three first statutes the bankrupt is uniformly called an offender, and the original policy of the bankrupt laws seems to have been to prevent and defeat the frauds of criminal debtors. The bankrupt being deemed an offender, and being completely divested of the disposition of his property, those statutes at the first would naturally be considered penal statutes. As trade however increased, the risks and calamities incident to commercial speculation were found to augment proportionably, and at length a bankrupt ceased to be considered as a criminal. Accordingly, the fourth statute on the subject (21 J. 1. c. 19.) stated, at its very commencement, that “ All and singular the aforesaid statutes and laws heretofore made against bankrupts, and for relief of creditors, shall be in all things largely and beneficially construed and expounded, for the aid, help, and relief of the creditors of such per. son or persons as already be, or hereafter shall become, bankrupt;"
and at this day the bankrupt laws are considered to be a system calculated for the benefit of trade, and founded on the principles of humanity, as well as justice. To that end they confer some privileges not only on the creditors, but also on the bankrupt or debtor himself; on the creditors, by compelling the bankrupt to give up all his effects to their use, without any fraudulent concealment; on the debtor, by exempting him from the rigour of the general law, whereby his person might be confined at the discretion of his creditor, though he in truth should be destitute of any means to discharge the debt; whereas the system of laws in relation to bankrupts, taking into consideration the sudden and unavoidable accidents to which men in trade are liable, has secured to them personal freedom and some pecuniary emoluments, upon condition that they surrender up their whole estate for the benefit of those who, in confidence of the bankrupt's solvency, have become his creditors.
The description of a bankrupt by stat. 6 G. 4. c. 16. is as
follows: 6 G. 4. c. 16.
82. All bankers, brokers, underwriters, and persons using the What persons
trade or profession of a scrivener, receiving other men's monies shall be deemed or estates into their trust or custody, and persons insuring ships traders, liable
or their freight, or other matters against perils of the sea, wareto become bankrupt. housemen, wharfingers, packers, builders, carpenters, shipwrights
, victuallers, calenderers, stage-coach proprietors, brewers, maltsters, dyers, printers, bleachers, fullers, keepers of inns, taverns, hotels, or coffee-houses, cattle or sheep salesmen, and all persons using the trade of merchandize by way of bargaining, exchange, bartering, commission, consignment, or otherwise in gross or by retail; and all persons who either for themselves, or as agents or factors for others, seek their living by buying and selling, or by buying and letting for hire, or by the workmanship of goods or commodities, shall be deemed traders liable to become bankrupt; provided that no farmer, grazier, common labourer, or workman for hire, receiver-general of the taxes, or member of or subscriber to any incorporated commercial or trading companies established by charter or act of parliament, shall be deemed as such a trader
liable by virtue of this act to become bankrupt. Acts of bank- § 3. enacts, that if any such trader shall depart this realm, or ruptcy ; vix, de- being out of the realm shall remain abroad, or depart from his parting realm
dwelling-house, or otherwise absent himself, or begin to keep his or dwellinghouse ; absent- house, or suffer himself to be arrested for any debt not due, or ing; beginning yield himself to prison, or suffer himself to be outlawed, or proto keep house; cure himself to be arrested, or his goods, money, or chattels to be yielding to pri- attached, sequestered, or taken in execution, or make or cause to son ; fraudulent be made, either within the united realm or elsewhere, any frauduoutlawry; ar
lent grant or conveyance of any of his lands, tenements, goods, or rest; attachment; execu- chattels, or make or cause to be made any fraudulent surrender tion ; deed ; de- of any of his copyhold lands or tenements, or make or cause to be livery or trans- made any fraudulent gift, delivery, or transfer of any of his goods fer.
or chattels ; every such trader doing, suffering, procuring, executing, permitting, making, or causing to be made any of the acts, deeds, or matters aforesaid, with intent to defeat or delay his cre: ditors, shall be deemed to have thereby committed
bankruptcy. Conveyance of § 4. enacts, that where any such trader shall, after this act all a trader's have come into effect, execute any conveyance or assignme
an act of
deed, to a trustee or trustees, of all his estate and effects for the 6G. 4. c. 16. benefit of all the creditors of such trader, the execution of such deed shall not be deemed an act of bankruptcy, unless a commis- property not an sion issue against such trader within six calendar months from the ruptcy, unless execution thereof by such trader ; provided that such deed shall a commission be executed by every such trustee within fifteen days after the issue within six execution thereof by the said trader, and that the execution by months. such trader, and by every such trustee, be attested by an attorney Proviso as to or solicitor; and that notice be given within two months after the the execution, execution thereof by such trader, in case such trader reside in and notice in
the Gazette and Lordon, or within forty miles thereof, in the London Gazette, and
newspapers. also in two London daily newspapers ; and in case such trader does not reside within forty miles of London, then in the London Gazette, and also in one London daily newspaper, and one provincial newspaper published near to such trader's residence ; and such Dotice shall contain the date and execution of such deed, and the name and place of abode respectively of every such trustee, and of such attorney or solicitor.
$ 5. enacts, that if any such trader having been arrested or Lying in prison; committed to prison for debt, or on any attachment for non-pay. ment of money, shall, upon such or any other arrest or commitment for debt or non-payment of money, or upon any detention for debt, lie in prison for twenty-one days; or having been arrested, or committed to prison for any other cause, shall lie in prison for twenty-one days after any detainer for debt lodged against him, and not discharged, every such trader shall be deemed to have deemed act of thereby committed an act of bankruptcy from the time of such bankruptcy. arrest, commitment, or detention ; provided that if any such trader Proviso as to
lying in prison. shall be in prison at the time of the commencement of this act, snch trader shall not be deemed to have committed an act of bankruptcy by lying in prison, until he shall have lain in prison for the period of two months. (a)
$ 6. enacts, that if any such trader shall file, in the office of the Declaration of lord chancellor's secretary of bankrupts, a declaration in writing, insolvency left signed by such trader, and attested by an attorney or solicitor, office, an act of that he is insolvent, or unable to meet his engagements, the said bankruptcy. secretary of bankrupts, or his deputy, shall sign a memorandum that such declaration hath been filed, which memorandum shall Advertisement be authority to the printer of the London Gazette to insert an ad- to be inserted vertisement of such declaration therein ; and every such declara. in Gazette. tion shall
, after such advertisement inserted as aforesaid, be an act of bankruptcy committed by such trader at the time when such declaration was filed; but no commission shall issue there. When commisupon unless it be sued out within two calendar months next after sion to issue. the insertion of such advertisement, and unless such advertisement
(a) The computation of the period of imprisonment includes the day of the arrest. Glassington v. Rawlins, 3 East, 407. But if bail be given at first, the time must be accounted from the time of the going to prison, and not from the time of the arrest. Fribe v. Webber, Willes, 464. No commission can be sued out till the requisite time has expired, Gordon v. Wilkinson, 8 T. R. 507., though it is no objection that it has not expired when the docket was struck. Ex parte Dufrene, 11. B. 51. This act of bankruptcy does not relate back to ihe first day of arrest
, as under the former statutes. Higgins v. McAdam, 3 Young & Jerv. 1. Moser v. Newman, 6 Bingh. 556.
a town and
mission. Gazette evi
may either be
6 G. 4. c. 16. shall have been inserted in the London Gazette within eight days
after such declaration was filed; and no docket shall be struck Form of strik. ing docket in
upon such act of bankruptcy before the expiration of four days
next after the insertion of such advertisement, in case such comcountry com. mission is to be executed in London, or before the expiration of
eight days next after such insertion, in case such commission is to
be executed in the country; and the gazette containing such addence,
vertisement shall be evidence to be received of such declaration
having been filed. (a) Trader com- $ 8. enacts, that if any such trader, liable by virtue of this act pounding with
to become bankrupt, shall, after a docket struck against him, pay petitioning creditor an act of
to the person or persons who struck the same, or any of them, bankruptcy.
money, or give or deliver to any such person any satisfaction or security for his debt, or any part thereof, whereby such person may receive more in the pound in respect of his debt than
the other creditors, such payment, gift, delivery, satisfaction, or Commission security shall be an act of bankruptcy; and if any commission
shall have issued upon the docket so struck as aforesaid, the lord superseded or
chancellor may either declare such commission to be valid, and continued.
direct the same to be proceeded in, or may order it to be superseded, and a new commission may issue, and such commission may
be supported either by proof of such last-mentioned or any other Creditor so act of bankruptcy; and every person so receiving such money, compounding gift, delivery, satisfaction, or security as aforesaid, shall forfeit his
whole debt, and also repay or deliver up such money, gift,
satisfaction, or security as aforesaid, or the full value thereof, Penalty,
to such person or persons as the commissioners acting under such original commission, or any new commission, shall appoint, for the
benefit of the creditors of such bankrupt. Traders having $ 9. enacts, that if any such trader having privilege of parlia. privilege of ment shall commit any of the aforesaid acts of bankruptcy, a parliament. commission of bankrupt may issue against him, and the commisProceedings. sioners and all other persons acting under such commission may
proceed thereon in like manner as against other bankrupts, but such person shall not be subject to be arrested or imprisoned during the time of such privilege, except in cases hereby made
felony. Trader having § 10. enacts, that if any creditor or creditors of any such privilege of par- trader having privilege of parliament to such amount as is hereinliament, not
after declared requisite to support a commission, shall file an paying or com- affidavit or affidavits in any court of record at Westminster that pounding to satisfaction of
such debt or debts is or are justly due to him or them respectively, creditor, and and that such debtor, as he or they verily believe, is such trader also entering an as aforesaid ; and shall sue out of the same court a summons, or appearance to an original bill and summons against such trader, and serve him the action with, with a copy of such summons, if such trader shall not, within one an act of bank- calendar month after personal service of such summons, pay, ruptcy. secure, or compound for such debt or debts, to the satisfaction of
such creditor or creditors, or enter into a bond in such sum, and with two sufficient sureties, as any of the judges of the court out of which such summons shall issue shall approve of, to pay such
Trader taking benefit of insolvent act.
(a) By the insolvent act 7 G. 4. c. 57. § 13., the filing a petition to take the benefit of the act is declared an act of bankruptcy, if the party be declared a bankrupt within a certain time from the filing.