Order of discharge.

Rights of un certificated bankrupt.

any creditors against allowing the certificate; and the court might either allow the same or refuse or suspend the allowance thereof, or annex such conditions thereto as the justice of the case might require (s). The certificates were by this act divided into three classes. If the bankruptcy had arisen from unavoidable losses and misfortunes, the bankrupt was entitled to a certificate of the first class. If the bankruptcy had not wholly arisen from unavoidable losses and misfortunes, he was entitled to a certificate of the second class. And if the bankruptcy had not arisen from unavoidable losses or misfortunes, he was only entitled to a certificate of the third class (t). But all classification of certificates is now abolished (u); and the bankrupt, if he has properly conducted himself, is entitled to an order of discharge, which will discharge him from all debts, claims or demands, provable under his bankruptcy (x). All contracts or securities to induce any creditor to forbear opposition to the order of discharge, or to forbear to petition for a rehearing of or to appeal against the same, are void; but no such security, if a negotiable security, shall be void as against a bona fide holder thereof for value without notice of the consideration for which it was given (y).

Until the bankrupt obtains his discharge all the real and personal property which may descend, revert, or be devised or bequeathed or come to him, becomes vested in his assignees (z). But an uncertificated bankrupt might maintain an action for his personal labour performed after the bankruptcy (a), and he might also sue

(s) Stat. 12 & 13 Vict. c. 106, s. 198.

(t) Stat. 12 & 13 Vict. c. 106, sched. Z.

(u) Stat. 24 & 25 Vict. c. 134, s. 157.

(x) Stat. 24 & 25 Viet. c. 134,

s. 161.

(y) Sect. 166.

(z) Stat. 12 & 13 Vict. c. 106, ss. 141, 142.

(a) Silk v. Osborn, 1 Esp. R.

140.

in respect of contracts made with himself, and also in respect of any after-acquired property, if the assignees or creditors did not interfere (b). The court, however, is now empowered in certain cases of misconduct, either to refuse or suspend the order of discharge, or to grant the same subject to any conditions touching any salary, pay, emoluments, profits, wages, earnings or income, which may afterwards become due to the bankrupt, and touching his after-acquired property (c).

ceedings on

All the proceedings in bankruptcy are entered of Entry of prorecord in the Court of Bankruptcy (d); and every pro- record. ceeding or order in bankruptcy appearing to be sealed with the seal of any court having jurisdiction in bankruptcy, or any writing purporting to be a copy of any such document, and purporting to be so sealed, is at all times, and on behalf of all persons, to be admitted into all courts whatever as evidence of such documents respectively, and of such proceedings and orders having respectively taken place or been made, and to be deemed respectively records of such court, without any further proof thereof (e). And all courts, judges, justices and other officers are bound to take judicial notice of the signature of any commissioner or registrar of the courts and of the seal of the courts, subscribed or attached to any judicial or official proceeding or document, to be made or signed under the provisions of the bankrupt acts (f).

(b) Webb v. Fox, 7 T. Rep. 391; Drayton v. Dale, 2 Barn. & Cress. 293; Crofton v. Poole, 1 Barn. & Adol. 568.

(c) Stat. 24 & 25 Vict. c. 134, s. 159.

(d) Stat. 12 & 13 Vict. c. 106, s. 6.

(e) Stat. 24 & 25 Vict. c. 134, s. 203.

(f) Sect. 204.

Stat. 1 & 2
Vict. c. 110.

Discharge from prison.

CHAPTER V.

OF BANKRUPTCY OF NON-TRADERS.

BEFORE the Bankruptcy Act, 1861, a person not in trade could not be made a bankrupt. He might, however, have become insolvent. Insolvency, strictly speaking, means a general inability to meet pecuniary engagements (a). But the term was very commonly and conveniently applied to the means of getting rid of such engagements afforded by certain acts of parliament passed for the relief of insolvent debtors.

The principal act for the relief of insolvent debtors in England was the statute 1 & 2 Vict. c. 110, the former sections of which are, however, occupied in abolishing arrest on mesne process in civil actions, and in extending the remedies of judgment creditors against the property of their debtors. So far as the act related to insolvent debtors, it was for the most part a reprint, with some important additions, of a previous statute for the same purpose (b), by which the laws then existing on the subject were amended and consolidated. The relief afforded to the debtor was his discharge from prison; and the act accordingly only applied to persons in actual custody within the walls of a prison in England. Any such person in custody upon any process whatsoever, for or by reason of any debt, damages, costs, sum or sums of money, or in consequence of contempt of any court whatsoever for non-payment of money or costs, taxed or untaxed, might at any time within the space

(a) Biddlecombe v. Bond, 4 Adol. & Ell. 332.

(b) Stat. 7 Geo. IV. c. 57, con

tinued and amended by stat. 11 Geo. IV. & 1 Will. IV. c. 38.

of fourteen days next after the commencement of his actual custody, or afterwards by permission of the court, apply by petition to the Court for the Relief of Insolvent Debtors for his discharge from such custody, according to the provisions of the act (c). In the country the petition was referred for hearing to the County Court of the district within which the insolvent was in custody (d). The insolvent himself was formerly the only person who could put the machinery of the act in motion; but afterwards the creditor at whose suit the prisoner was committed to prison or charged in execution might, if not satisfied within twenty-one days next after such prisoner should have been so committed or charged in execution, himself petition the court for his share of the relief (e), which consisted in the real and personal estate and effects of the prisoner being vested in the provisional assignee of the court for the benefit of his creditors.

On the filing of the petition either of the debtor or of Vesting order. the creditor, a vesting order, as it was termed, was made by the court. By this order all the real and personal estate and effects of the prisoner, both within this realm and abroad (except his wearing apparel, bedding and other such necessaries of himself and his family, and his working tools and implements, not exceeding in the whole the value of twenty pounds), and all the future estate to which he might become entitled until his final discharge, were vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England (f). The court might subsequently Assignees.

35.

(c) Stat. 1 & 2 Vict. c. 110, s.

(d) Stat. 10 & 11 Vict. c. 102, s. 10.

(e) Sect. 36. In this case, however, the Insolvent Court had no adequate means of compelling the

prisoner to file a schedule of his
property; Hollis v. Bryant, 12
Sim. 492, 501.

(f) Stat. 1 & 2 Vict. c. 110,
s. 37; Ford v. Dabbs, 5 Man. &
Gr. 309.

Beneficed clergyman.

Officer.

have appointed any proper person or persons to be assignees of such estate and effects, in whom the same accordingly vested on the acceptance of the appointment being signified by him or them to the court (g). The estate and effects of the prisoner were then sold and converted into money by the assignees in the manner directed by the act (h). And the court had power to order that any property of the prisoner might be mortgaged, instead of being sold, if it should appear to the court that his debts could be discharged by such means (i). If the insolvent were a beneficed clergyman, the assignees might have obtained a sequestration of the profits of the benefice for the payment of his debts (k). And if the insolvent were or had been an officer under government, or in the service of the East India Company, a portion of his pay, half-pay, salary, emoluments or pension might, with the written consent of the chief officer of the department to which he belonged or had belonged, be ordered to be paid to the assignees (1). The produce of the insolvent's estate was then divided by the assignees rateably amongst the creVoluntary pre- ditors (m). And if any prisoner should before or after his imprisonment, being in insolvent circumstances, have voluntarily conveyed, charged or made over any of his estate to or in trust for any creditor or creditors, every such transaction was declared to be fraudulent and void as against the assignees, if made within three months before the commencement of the party's imprisonment, or with the view or intention on his part of petitioning the court for his discharge under the act (n).

ference.