Page images
PDF
EPUB

answer all such questions. The debtor is of course bound, on the day appointed for his public examination, and on any adjournment of such examination, to attend the court; and, a note of his examination having been taken down in writing, such note is read over to and signed by the debtor, and is afterwards open to the inspection of any of his creditors, and may be used in evidence against him. When the court is satisfied that the affairs of the debtor have been sufficiently investigated, it makes an order declaring that the public examination is concluded. But such order will not be made until after the day appointed for the first meeting of the creditors (a).

The bankrupt, besides submitting his statement of affairs, and besides attending on his public examination and on any adjournment thereof, is required also to attend the meetings of his creditors; to wait on the official receiver or trustee ; to execute necessary powers and instruments; to furnish an inventory of his property; and, generally, to do everything in relation to his property and the distribution of its proceeds amongst his creditors which may reasonably be required by the trustee, or which may be ordered by the court (b).

Moreover, the bankrupt will be guilty of a misdemeanor, --and under the provisions for the punishment of fraudulent debtors contained in the Debtors Act, 1869 (e), as modified by the Bankruptcy Act, 1883 (d), and by the Bankruptcy Act, 1890 (e), will be liable, on conviction at the assizes or quarter sessions, to be imprisoned for any time not exceeding two years, with or without hard labour, if he shall be guilty of any of the following acts,--that is to say: 1. If he does not, to the best of his knowledge and belief, discover to his trustee all his property, and the mode in which he has disposed of

(a) Act of 1883, s. 17; In re Angerstein (1872), L. R. 7 Ch. App. 662.

(b Sect. 24.

(c) 32 & 33 Vict. c. 62.
(d) Sects. 163–167.
(e) Sect. 26.

any part thereof, except in the ordinary way of his trade (if any), or in the ordinary expenses of his family; 2. If he does not deliver up all such part of his property as is in his custody or control, and which he is required by law to deliver up; 3. If he does not deliver up all books, documents, papers, and writings in his custody or control, which relate to his property or affairs; 4. If, after the presentation of a petition, or within four months before, he conceals any part of his property to the value of 101. or upwards, or conceals any debt due to or from him; 5. If, within the same period, he removes any part of his property to the value of 101. or upwards; 6. If he makes any material omission in any statement relating to his affairs; 7. If, knowing or believing that a false debt has been proved against his estate, he fails for the period of a month to inform his trustee thereof; 8. If, after the presentation of a petition, he prevents the production of any book or document, affecting or relating to his property or affairs; 9. If, after the presentation of a petition, or within four months before, he (either as party or privy) conceals, destroys, mutilates, or falsifies any book or document affecting or relating to his property or affairs; 10. If, within the same period, he makes, or is privy to the making of any false entry in any such book or document; 11. If, within the same period, he parts with, alters, or makes any omission in any such document; 12. If, after presentation of a petition, or at any meeting of his creditors held within four months before, he attempts to account for any part of his property by fictitious losses or expenses; 13. If, within four months next before a petition, he, by false representation or other fraud, has obtained property on credit, and has not paid for the same; 14. If, within the same period, he has obtained under the false pretence of carrying on business and dealing in the ordinary way of his trade, any property on credit and has not paid for the same; 15. If, within the same period, he has pawned, pledged, or disposed of, otherwise than in the

ordinary way of his trade, any property which he has obtained on credit, and has not paid for; 16. If he is guilty of any false representation or other fraud, for the purpose of obtaining the consent of his creditors, or any of them, to any agreement with reference to his affairs, or to his bankruptcy or liquidation (ƒ).

Moreover, any such bankrupt or person against whom a receiving order has been made (or indeed any person), is deemed guilty of a misdemeanor, and is liable on conviction to imprisonment for one year, with or without hard labour, who (with intent to defraud his creditors) does any of the following things, viz. :-1. If, in incurring any debt or liability, he obtains credit under false pretences, or by means of any other fraud; 2. If he makes or causes to be made, any gift, delivery, or transfer of, or any charge on, his property; 3. If he conceals or removes any part of his property, within two months before the date of any unsatisfied judgment, or order for payment of money, obtained against him (). And in the following case, a bankrupt, or person against whom a receiving order has been made, will be guilty of felony, and be liable to two years' imprisonment with or without hard labour, that is to say, if, after the presentation of the petition (or four months before), he has, with intent to defraud his creditors, quitted (or attempted, or made preparation, to quit) England, and has taken (or attempted to take) with him any part of his property, to the amount of 207. or upwards, which ought by law to be divided among his creditors (h).

Lastly, the court may, on the application of the official receiver or of the trustee, after the receiving order has been made, summon before it the bankrupt, or his wife, or any other person known or suspected to have in his possession any of the estate or effects belonging to the bankrupt, or supposed to be indebted to him, or thought capable of

(f) Debtors Act, 1869, s. 11; Act of 1890, s. 26.

(g) Debtors Act, 1869, s. 13. (h) Ibid., s. 12.

giving information as to him, his dealings or property; and, in case of such person not appearing (having no lawful impediment allowed by the court), the court may direct him to be arrested and brought before it; and, on his appearing, voluntarily or otherwise, may examine him, either by word of mouth or by written interrogatories, concerning the bankrupt, his dealings or property ().

IV. The effect of the bankruptcy on the property of the bankrupt.-Upon a receiving order being made, the property of the bankrupt (as we have seen) vests immediately in the official receiver until a trustee is appointed (k). By force of his appointment, and subject to the exceptions which will presently be mentioned, the trustee takes, for the benefit of the creditors, all the lands, tenements, and hereditaments of the bankrupt, together with all his personal estate and effects, present and in expectancy, and wherever situate, in other words, all such "property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or which (with the exceptions about to be noticed) may be acquired by or devolve on him before his discharge (); and also all powers which he is entitled to exercise for his own benefit, except the right of nomination to any vacant ecclesiastical benefice (m). Moreover, in certain cases, the property even of strangers, if found in the bankrupt's possession, vests in the trustee. For it is one of the enactments of the bankrupt law (introduced to protect creditors from fraud and fallacious appearances), that where a bankrupt shall, at the commencement of the bankruptcy, have in his possession, order, or disposition in his trade or business, by consent and permission of the true owner, any goods under such circumstances that he (the bankrupt) is the

(i) Act of 1883, s. 27; Ex parte Reynolds (1882), 20 Ch. D. 294.

(k) Act of 1883, ss. 9, 12; In re Parker (1885), 15 Q. B. D. 196.

(7) Act of 1883, s. 44. (See Ex parte Dewhurst (1871), L. R. 7 Ch. App. 185.)

(m) Badham 7 Bing. 695.

V. Mee (1831),

reputed owner thereof, they shall be deemed to form part of the property of the bankrupt divisible amongst his creditors, things in action (other than trade or business. debts) being, however, expressly excluded from this order and disposition clause (n). And it is to be observed, that goods and chattels comprised in a mortgage deed (as, e.g., a duly registered bill of sale) may be, and usually are, held to remain in the order and disposition of the debtor ; the clause in the Bills of Sale Act, 1878 (0), which prohibited this construction, having been repealed by the Bills. of Sale Act, 1882 (p), although it is difficult to see the justice of such a provision, more especially as the provision does not now apply to a registered bill of sale given otherwise than by way of mortgage.

On the other hand, there passes not to the trustee any property which the bankrupt may earn purely by his personal labour or services, after the bankruptcy has commenced (9); nor his right of action for a personal wrong, e.g., slander (r); nor any property held by the bankrupt in the capacity of trustee for others (s); nor any appointment to an office which cannot legally be sold (t); nor the right to receive military or other pay under the Crown (u). Nevertheless, the court may (with the sanction of the chief officer of the department to which the bankrupt belongs or belonged) order portions of such pay

(n) Act of 1883, s. 44 (iii); Ex parte Union Bank of Manchester (1871), L. R. 12 Eq, 354; In re Sillence (1877), 7 Ch. D. 70; In re Blanshard (1878), 8 Ch. D. 601; Ex parte Nottingham Bank (1885), 15 Q. B. D. 441; Colonial Bank v. Whinney (1885), 30 Ch. D. 261; 11 App. Ca. 426.

(0) Supra, p. 186.

(p) 45 & 46 Vict. c. 43, s. 15; Swift v. Pannell (1883), 24 Ch. D. 210.

(q) Elliott v. Clayton (1851),

16 Q. B. 581; Emden v. Carte (1881), 17 Ch. D. 768; Ex parte Benwell (1884), 14 Q. B. D. 301; In re Rogers, Ex parte Collins, [1894] 1 Q. B. 425.

(r) Rogers v. Spence (1844), 13 M. & W. 571; Ex parte Vine, In re Wilson (1878), 8 Ch. D. 364.

(s) Act of 1883, s. 44.

(t) M'Bean V. Deane (1885), 30 Ch. D. 520.

(u) Gibson v. East India Company (1839), 5 Bing. N. C. 262.

« EelmineJätka »