held to be a beginning to keep house. And after a general order to be denied to creditors, it will be no excuse that the trader was confined to his bed, for the 5 Moore, 363, denial will be referrible to the previous orders. Lazarus v. Without general orders, however, it is no act of bankruptcy if a person refuse to see his creditors at unseasonable hours; as where a creditor persisted in calling at 3 Campbell, 349, Smith v. dinner-time. So if he be under any domestic affliction, Currie. or be engaged with company, or on business. So again, if the visit be made on a Sunday, although the creditor may have called by express appointment in order to receive his money. If a banker stop payment, yet keep his shop open, Deacon, p. 60. and do not conceal himself, he does not thereby commit an act of bankruptcy; and the shutting up of a banker's shop by one partner, does not make a co-partner residing in another place a bankrupt. The next acts are, 66 or suffer himself to be arrested "for any debt not due (r); or yield himself to prison; "or suffer himself to be outlawed." 2 Rose, 21, ex parte Preston. Sect. 3. 7 Viner, 61, ex One was arrested for 28 l.; and though he had money sufficient to pay the debt, yet chose rather to go to prison, in order, as he declared, to force his creditors to come to a composition: held an act of bankruptcy. parte Barton. A bonâ fide surrender in discharge of bail will not come Deacon, p. 61. within the act of yielding himself to prison, for that is a duty. "Or procure himself to be arrested, or his goods, money, or chattels, to be attached, sequestered, or Sect. 3. (r) The suffering himself to be arrested on a bill of exchange not due, or indeed for any debt solvendum in future, (if the intention is to defeat or delay a creditor) would, it is apprehended, come within the meaning of the statute. Deacon on Bankruptcy, p. 61. taken in execution; or make, or cause to be made, "either within this realm or elsewhere, any fraudulent " grant or conveyance (s) of any of his lands, tenements, goods or chattels; or make, or cause to be made, any "fraudulent surrender of any of his copyhold lands or "tenements; or make, or cause to be made, any frau"dulent gift, delivery or transfer, of any of his goods or chattels." The arrest, we find, must be voluntary, on the same principle as the departure from home. With regard to the conveyance of lands, &c. it is very important to consider whether an undue preference has been given to one particular creditor; and there is very strong evidence to believe this, when the bankrupt remains in possession of his property after the conveyance. Whether the deed be made for the purpose of securing a present debt, or to indemnify a surety, who may probably become a creditor, makes no difference, the undue preference being the same. Should the bankrupt assign the whole of his property for the benefit of all his creditors, and all of them assent to the deed, there will be no act of bankruptcy; but if there be a dissentient, he may be a petitioning creditor; although it is clear law, that no creditor, a party to the deed, can avail himself of it as an act of bankruptcy, being estopped from so Tope v. Hockin. doing. It was held to make no difference, where there was a dissentient creditor, that the creditors who actually entered into the deed changed their minds, without the privity of the bankrupt, under a proviso which enabled the trustees to avoid it if they should think fit, for that which had been done was a complete and irrevocable act of bankruptcy; and the Court said, that this was not like a proviso that the deed should be void, 7 Barnewall & Cresswell, 101, 4 East, 230, Tappenden v. Burgess. (s) Which must be by deed. Barnewall & Tucker. if all the creditors did not assent to it. Next, if part of the trader's property be assigned over, it becomes a matter of question whether this is a fraudulent preference; for a solvent trader may, beyond question, assign part of his property for the liquidation of a debt, as he may think proper. A great criterion is, whether the assignment be made in contemplation of bankruptcy; and this must be gathered from the circumstances of each case, which it is the province of a jury to judge of. A conveyance to the fairest creditor is void, if the person Alderson, 382, assign it fraudulently. And where the bankrupt carried Pulling v. on his trade for three years after a conveyance to particular creditors, but was proved to be in insolvent circumstances at the time of its execution: "Such a deed," said Ch. J. Abbott, "given under such circumstances, "would make bankruptcy inevitable, and a man must "be supposed to contemplate the consequence of his own acts." But although the party be insolvent, yet if he execute a deed in favour of trustees, not his creditors, whereby a settlement might be the more easily entered into, to cover the pecuniary engagements he is under, it will not be an act of bankruptcy, there being, at the same time, no imputation of fraud. And where a merchant, some time before his bankruptcy, sold and conveyed particular goods in the hands of his factors, upon trust to pay certain debts, which trust was carried forthwith into execution, it was held a good assignment, Jacob v. Shepand no act of bankruptcy. 66 1 Broderip & Bingham, 408, Berney v. DaviId. 482, Berney v. Vyner. son. 1 Burrow, 478, herd, cited. The remaining in possession is not always primâ facie evidence of fraud; for goods may be bulky, or at a distance, or in such a situation as that possession can only 7 Term Reports, be given by a symbol, as a copper halfpenny. A case occurred where one partner made a fraudulent grant to another by deed; this, although it was an act of bankruptcy in the assignor, was not, as had been contended, such an act in the assignee, although as to 68. Whitwell v. 1 Espinasse, 68, the assignee it would be void. It is now, however, expressly declared by the 4th section, that the conveyance of all the trader's property to trustees, for the benefit of creditors, shall not be deemed an act of bankruptcy, unless a commission issue within six months. But the deed must be executed by every trustee within fifteen days after the trader has executed it, and notice must be given in the Gazette, and two London newspapers; or if the party do not reside within forty miles of London, in the Gazette, one London, and one provincial newspaper; and in either case, within two months after the execution of the deed. Sect. 5. More acts of bankruptcy are mentioned in the 5th section (t); but these differ from the acts which have been already mentioned in this way, that the intention of the debtor is no longer considered, but the act itself is a sufficient indication of insolvency. Thus if any trader, arrested or committed to prison for debt, or on any attachment for non-payment of money, shall lie in prison for twenty-one days after such arrest or commitment, or upon any detention for debt, or if sent to prison for any other cause, shall lie in prison for twenty-one days after a detainer for debt lodged against him, and not discharged, it shall be on his part an act of bankruptcy. The custody in this case need not be a public gaol, in order to satisfy the word "prison" in the Act; 6 Taunton, 106, for where a bankrupt was dangerously ill, and the sheStevens v. Jack-riff's officer, from motives of humanity, left him in his own house, in the custody of a follower not named in the warrant, the Court were quite clear that it was a legal custody. son. The computation of time is according to the ordinary rule, that where it is to be made from an act done, the (t) See section 73 of the Act. day when such act is done is to be included; so that the twenty-one days will include the day of the arrest, 3 East, 407, and the act will not be complete until the expiration Rawlins. Glassington v. of the whole of the last day. Deacon, p. 81. 1 Campbell, 509, Barnard v. The imprisonment must not be broken; so that where a person arrested was permitted to go at large, but subsequently returned into custody, the time was reckoned from the day of the return, and not from the original arrest. But this necessity for a continuous imprisonment Palmer. cannot be evaded by a mere ceremony of getting bail for the purpose of a change of custody. A man was arrested for debt in Kent, on March 31; was brought up by habeas corpus, to be turned over, on the 6th May; 1 Burrow, 437, he called at his attorney's house, out of Kent, and thence Rose v. Green. went to a Judge's chamber, where he was bailed, and then immediately surrendered to the King's Bench prison the Court held that he was a bankrupt from the day of the arrest. Beames, 51, If the act of bankruptcy be not complete before the commission has issued, no subsequent lying in prison 1 Vesey & will cure the defect; but a docket may be struck before Dufrene, ex the expiration of the twenty-one days; and there will parte. be no valid objection on that ground, provided that the commission do not issue until after the twenty-one days. Lastly, the arrest must have been lawful; and although it may become so by some subsequent proceeding of the creditor, yet being illegal at its commencement, as in the case of an executor who takes out probate after. an arrest, that will not operate to make it a valid arrest for the purpose of creating this act of bankruptcy: for were it so, third persons, no parties to the suit, might See Deacon, be prejudiced, as they might be defeated of their rights to various payments made before the probate. And it must be for a debt actually incurred, and due. A lying in prison on account of inability to pay Exche FF 77. |