Obrázky stránek
PDF
ePub

accordance with the Act; that is to say, an assignment of property, or deed of or agreement for a composition, deed of inspectorship, letter of licence, and any agreement or instrument entered into for the purpose of carrying on, winding up, or disposing of a debtor's business with a view to the payment of his debts. And every trustee under any such instrument is now required to transmit, in January in each year, an account of his receipts and payments as such trustee to the Board of Trade (n).

make ar

Provision was made by several bankruptcy statutes Statutory of the present reign for rendering arrangements for provisions to composition or liquidation, made between a debtor and rangements binding on all a majority of his creditors in number and value, binding on all his creditors, without the necessity of their taking proceedings in bankruptcy against him (o). But under Bankruptcy the present Bankruptcy Act, no composition or Act, 1883. scheme of arrangement with creditors can be initiated until proceedings have been taken in bankruptcy by the presentation of a bankruptcy petition, the making of a receiving order by the Court, and the holding of a first meeting of creditors in consequence thereof (p). It is thought therefore that the provisions of the Act relating to the acceptance by creditors of a composition, or their assent to a scheme of arrangement, will be more properly dealt with in the chapter on Bankruptcy.

Under the present law, then, an agreement between Agreement to

the place of business or residence of the debtor, who is a party to such an instrument, is outside the London bankruptcy district, a copy of the instrument is transmitted by the registrar to the registrar of the county court of the district in which such place of business or residence is situate, and is filed by the latter in a local register, also open to public search; s. 13.

(n) Stat. 53 & 54 Vict. c. 71, s. 25 (2 b); see rules thereunder, W. N. 13th Dec., 1890.

C.

(0) See stats. 7 & 8 Vict.

70; 12 & 13 Vict. c. 106, s. 224; 24 & 25 Vict. c. 134, s. 192; 32 & 33 Vict. c. 71, ss. 125, 126.

(p) See stats. 46 & 47 Vict. c. 52, ss. 5, 15, 18, amended by 53 & 54 Vict. c. 71, s. 3.

accept composition.

a man and any two or more of his creditors, that they shall accept the payment of a composition in satisfaction of the debts due to them (q), is binding, if made without any fraud on the part of the debtor, upon those creditors who enter into it (r); provided that the agreement, if in writing, be duly registered and stamped under the Deeds of Arrangement Act, 1887 (s). But no agreement for the acceptance of a composition, or otherwise for the liquidation of a debtor's affairs, can now be made to bind any creditor, who does not assent thereto, except in proceedings under the Bankruptcy Act, 1883 (t). Thus, if a debtor make any such arrangement with the majority of his creditors, and commit any act of bankruptcy in carrying out the terms of the arrangement, a creditor, who has not assented thereto, may take proceedings to have the debtor's estate administered in bankruptcy (u). But a creditor who has acquiesced in and taken some benefit under an arrangement for composition, will not be permitted to commence proceedings in bankruptcy against the debtor, founded upon an act of bankruptcy committed in carrying out the arrangement (x). The acts of bankruptcy are enumerated in the next chapter (y).

The payment of a composition is sometimes guaranteed by some friends of the debtor as his sureties (~), and when payment is made, a release of all demands is given

(q) See ante, pp. 158, 215. The agreement by each individual to give up part of his claim is a sufficient consideration to support such an agreement; Parke, B., 4 Ex. 760; Jessel, M. R., 19 Ch. D. 400.

(r) Norman v. Thompson, 4 Ex. 755; Carey v. Barrett, 4 C. P. D. 379; see Ex parte Milner, 15 Q. B. D. 605.

(s) See ante, p. 218.

(t) Stat. 46 & 47 Vict. c. 52.
(u) Ex parte Dixon, 13 Q. B.

D. 118; Ex parte Oram, 15 Q. B. D. 399. Such proceedings must be taken within three months after the act of bankruptcy, or the arrangement cannot be set aside on that account; stat. 46 & 47 Vict. c. 52, s. 6; and see next chapter.

(x) Ex parte Alsop, 1 De G. F. & J. 289; Ex parte Stray, L. R. 2 Ch. 374.

(y) Post, pp. 224-7.

(z) See Ex parte Hudson, Re Walton, 22 Ch. D. 773.

by the creditors. If, however, a man's creditors should agree to accept a composition to be paid within some specified time, and the composition should not be punctually paid, the creditors will no longer be restrained from proceeding to enforce the full payment of their debts (a). Such creditors as hold security for their debts should openly stipulate that their securities are not to be affected (b); and such a stipulation will be sufficient to preserve them (c). But any secret agreement between the debtor and a creditor, by which he is to have any advantage over the others, in order to induce him to agree to the composition, is evidently a fraud on the other creditors, and as such is absolutely void (d), and prevents the creditor who is party to it from suing for his share in the composition (e).

(a) Cranley v. Hillary, 2 M. & S. 120; Mellish, L. J., Re Hatton, L. R. 7 Ch. 723, 726.

a

(b) As to the position of a creditor, who has retained security for part of his debt and received his share of the composition for the balance, see Société Générale de Paris

v. Geen, 8 App. Cas. 606; Baines v. Wright, 16 Q. B. D. 330.

(c) Nichols v. Morris, 3 B. & A. 41; Ex parte Glendinning, Buck, 517; Lee v. Lockhart, 3 Mylne & Craig, 302; Cullingworth v. Lloyd, 2 Beav. 385, and the cases collected, p. 395; Bush v. Ship

man, 14 Sim. 239.

(d) Leicester v. Rose, 4 East, 372; Knight v. Hunt, 5 Bing. 432; Pendlebury v. Walker, 4 You. & Coll. 424; Alsager v. Spalding, 4 N. C. 407; Higgins v. Pitt, 4 Ex. 312; Pfleger v. Brown, 28 Beav. 391; Mare v. Warner, 3 Giff. 100; Mare v. Earle, 3 Giff. 108. See also Ex parte Barrow, Re Andrews, 18 Ch. D. 464, 471; Ex parte Milner, 15 Q. B. D. 605.

(e) Howden v. Haigh, 11 A. & E. 1033; Ex parte Oliver, 4 De G. and Sm. 354. See Atkinson v. Denby, 7 H. & N. 934.

Discharge

bankruptcy.

CHAPTER IV.

OF BANKRUPTCY.

UNDER some circumstances a debtor is discharged by from debt by law from his debt without any actual payment, or without payment of more than a part of it. This occurs in the case of bankruptcy. When a man is made bankrupt, he gives up all his property to his creditors, to be divided rateably amongst them; and, if his behaviour has been free from serious blame, he obtains a discharge from past liabilities. Bankruptcy was formerly considered as a crime, and in the earliest Bankruptcy Acts the bankrupt was called "the offender" (a). But in modern times bankruptcy has been looked upon as the proper remedy for traders in embarrassed circumstances; and persons not engaged in trade have been enabled to avail themselves of this resource.

Bankruptcy

statutes of Hen. VIII. and Eliz.

Statutes of
James I.

The law of bankruptcy was introduced by stat. 34 & 35 Hen. VIII. c. 4, " An Act against such persons as do make bankrupt." But the provisions of this Act were almost entirely altered by stat. 13 Eliz. c. 7, "An Act touching orders for bankrupts," in which persons liable to become bankrupt were for the first time defined as traders (b). The bankruptcy law was again re-cast by stats. 1 Jac. I. c. 15, and 21 Jac. I. c. 19. These statutes were amended by many others, passed at various times (c); but they continued to form the foundation of the law of bankruptcy, until they were

(a) 2 Black. Comm. 471; see stats. 34 & 35 Hen. VIII. c. 4; 13 Eliz. c. 7; 1 Jac. I. c. 15.

(b) 2 Black. Comm. 474.
(c) See stat. 6 Geo. IV. c. 16,

s. 1.

repealed, together with all the Acts amending them, by statutes passed in the years 1824 and 1825 (d). . The bankruptcy law was entirely reconstituted in the years 1825 (e), 1849 (ƒ), 1869 (g), and 1883 (h); and is now contained in the Bankruptcy Act, 1883 (h), amended principally by Acts of 1888 (i) and 1890 (k), and in the Bankruptcy Rules, 1886 (7) and 1890 (m), made under powers given by the Act of 1883 (n).

made between

As a general rule, all debtors are now liable to be Persons submade bankrupt. This has been the law since the ject to bankruptcy laws. Bankruptcy Act, 1861, came into operation (o). Before that time traders only were subject to the bankruptcy laws. Under the Acts of 1861 and 1869, however, Difference though all debtors were liable to become bankrupt, traders and traders might be made bankrupt for certain causes, non-traders by the Acts of which were not acts of bankruptcy in the case of other 1861 and persons (p); and the provisions of the Act of 1869 1869; with regard to the avoidance of voluntary settlements, and covenants for future settlement, applied to traders only (q). In the Bankruptcy Act, 1883, no difference but none appears to be made between traders and other debtors, made by the Act of 1883. except in the "reputed ownership" clause, which seems to be applicable only to persons carrying on some trade or business (r). An alien or denizen is within the Alien or bankrupt law (s). And a married woman carrying on trade for her separate use by the custom of London (t),

(d) Stats. 5 Geo. IV. c. 98; 6 Geo. IV. c. 16.

(e) Stat. 6 Geo. IV. c. 16.
(f) Stat. 12 & 13 Vict. c. 106.
(g) Stat. 32 & 33 Vict. c. 71.
(h) Stat. 46 & 47 Vict. c. 52.
(1) Stat. 51 & 52 Vict. c. 62.
(k) Stat. 53 & 54 Vict. c. 71.
(1) W. N. 30th Oct. 1886, sup-
plement.

(m) W. N. 13th Dec. 1890.
(n) Stat 46 & 47 Vict. c. 52, s.

127.

(o) See stats. 24 and 25 Vict. c. 134, s. 69; 32 & 33 Vict. c.

71, s. 6; 46 and 47 Vict. c. 52,
s. 4.

(p) See stats. 24 & 25 Vict.
c. 134, ss. 70-73; 32 & 33 Vict.
c. 71, s. 6.

(q) Stat. 32 & 33 Vict. c. 71, s. 91.

(r) Stat. 46 & 47 Vict. c. 52, s. 44; ante, p. 100.

(s) Ex parte Crispin, L. R. 8 Ch. 374, 379: see Re Pearson, 1892, 2 Q. B. 263.

(t) Ex parte Carrington, 1 Atk.

206.

denizen.

Married
woman.

« PředchozíPokračovat »