THE BANKRUPTCY ACT, 1869. (32 & 33 Vict., cap. 71.) AN ACT TO CONSOLIDATE AND AMEND THE LAW OF BANKRUPTCY. [9th August, 1869.] WHEREAS it is expedient to consolidate and amend the law relating to Bankruptcy: Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: PRELIMINARY. 1. This Act may be cited as "The Bankruptcy Act, 1869." Application of Act. 2. This Act shall not, except in so far as is expressly provided, apply to Scotland or Ireland. (a) Commencement of Act. 3. This Act shall not come into operation until the first day of January, one thousand eight hundred and seventy, which date is herein-after referred to as the commencement of this Act. Interpretation of Certain Terms in the Act. 4. In this Act, if not inconsistent with the context, (a) As to the enforcement of orders of the English Courts of Bankruptcy in Scotland and Ireland, sec. 73. B the following terms have the meanings herein-after respectively assigned to them; that is to say, "The Court" (a) shall mean the Court having jurisdiction in bankruptcy as by this Act provided: "The registrar" shall mean the registrar of "the Court" as above defined: "Prescribed" shall mean prescribed by rules of Court to be made as in this Act provided: 66 'Property" shall mean and include money, goods, things in action, land, and every description of property, whether real or personal; also, obligations, easements, and every description of estate, interest, and profit, present or future, vested or contingent, arising out of or incident to property as above defined: "Debt provable in bankruptcy" shall include any debt or liability (b) by this Act made provable in bankruptcy: "Person" shall include a body corporate: (c) "Trader" shall, for the purposes of this Act, mean the several persons in that behalf mentioned in the first schedule to this Act annexed. Exclusion of Companies and Large Partnerships. 5. A partnership, association, or company corporate, or registered under "The Companies Act, 1862," shall not be adjudged bankrupt under this Act. (a) Sec. 59. (6) As to the interpretation of the word "liability,” sec. 31. (c) Sec. 80 (7). PART I. ADJUDICATION AND VESTING OF PROPERTY. ADJUDICATION. Petition for Adjudication in Bankruptcy. 6. A single creditor, or two or more creditors if the debt due to such single creditor, or the aggregate amount of debts due to such several creditors, from any debtor, amount to a sum of not less than fifty pounds (a), may present a petition (b) to the Court, praying that the debtor be adjudged a bankrupt, and alleging, as the ground for such adjudication, any one or more of the following acts or defaults, herein-after deemed to be and included under the expression "acts of bankruptcy :" (1.) That the debtor has, in England or elsewhere, made a conveyance or assignment of his pro perty to a trustee or trustees for the benefit of his creditors generally: (2.) That the debtor has, in England or elsewhere, made a fraudulent conveyance, gift, delivery, or transfer of his property, or of any part thereof: (c) (a) This is a modification of sec. 89 of the Bankruptcy Act, 1861. (6) The petition must be accompanied by an affidavit verifying the statements therein: see sec. 80 (1). As to the power of petitioning against one or more of the partners of a firm without including the others, see sec. 100. (c) These two acts of bankruptcy, which apply alike to traders and non-traders, may be jointly considered, inasmuch as the first, which is new, seems merely to amount to an expression of the principle involved in the old Bankrupt Law relating to fraudulent conveyances, viz., that the term "fraudulent conveyance" applied equally to those dispositions of property which were fraudulent at Common Law or in Equity, or as coming within the operation of the 13 Eliz., c. 5 (see Twyne's Case, I Smith's L. C. and Notes), and those which were only fraudulent as having for their object (3.) That the debtor has, with intent to defeat or delay his creditors, done any of the following things—namely, departed out of England, or, being out of England, remained out of England (a); or, being a trader, departed from a distribution of his assets by an insolvent debtor in a manner not warranted by law Siebert v. Spooner, I M. and W., 714; Stewart v. Moody, 1 C. M. and R., 777. See also Bankruptcy Act, 1849, s. 67, and Bankruptcy Act, 1861, s. 70. It was held under the I Jac. I, c. 15, s. 2, that a fraudulent conveyance executed in a foreign country was not an act of bankruptcy, inasmuch as the operation of the bankrupt laws was confined to England (see sec. 2 of the present Act), and that, therefore, an act of bankruptcy of which the Court could take cognizance could not be committed elsewhere-Inglis v. Grant, 5 T.R., 530. By the Bankruptcy Act, 1849, s. 67, conveyances by traders "either within this realm or elsewhere" were brought within the operation of the statute, but there is no equivalent for these words in sec. 70 of the Bankruptcy Act, 1861, with respect to conveyances by non-traders. The words of the present section, in England or elsewhere, remove any doubt which may have previously existed as to the effect of a deed executed by a non-trader out of the realm. It is also to be observed that the present enactment with respect to conveyances by debtors of their property (as to which see the Interpretation Clause, sec. 4) is disencumbered of the "intent to defeat or delay creditors," which words occur in both sections of the repealed Acts above referred to. The intent which must formerly have been the subject of proof, direct or by implication -see judgment of Lord Denman, C.J., in Roach v. Great Western Railway Company, I Q.B., 60, Ex parte Osborne, 2 V. and B., 177-is now no longer in terms made a condition of bankruptcy; but it is apprehended that the rule applicable to the altered state of the law may be thus stated that whatever disposition of his property by a debtor, whether trader or non-trader, is calculated to defeat or delay creditors, will (irrespective of the intent) be fraudulent within the meaning of the statute and an act of bankruptcy. (a) This is a re-enactment of sec. 67 of the Bankruptcy Act, 1849, s. 67, as to traders, and sec. 70 of the Bankruptcy Act, 1861, as to non-traders, in both of which "departing the realm" are the terms employed. It was decided, under the former Bankruptcy Acts, that these words were satisfied by a departure from England to Ireland – Williams v. Nunn, I Taunt., 269; the word "realm" as there employed signifying, in fact, nothing more than the extent of the jurisdiction of the Courts of this country. his dwelling house, or otherwise absented himself; or begun to keep house; or suffered himself to be outlawed: (a) (4.) That the debtor has filed, in the prescribed manner (6), in the Court a declaration admitting his inability to pay his debts: (c) (5.) That execution (d) issued against the debtor on any legal process, for the purpose of obtaining payment of not less than fifty pounds, has in the case of a trader been levied by seizure and sale of his goods: (e) (a) This is a repetition of other enactments of sec. 67 of the Bankruptcy Act, 1849. (b) See p. 119. (c) This is in lieu of secs. 72, 86, and 98 of the Bankruptcy Act, 1861, under the two latter of which a debtor was enabled to petition against himself. See p. 125. (d) See sec. 87. (e) By sec. 73 of the Bankruptcy Act, 1861, any execution levied by seizure and sale of any of the goods and chattels of a trader debtor, "upon any judgment recovered in any action personal" for the recovery of a debt or demand "exceeding fifty pounds," constituted an act of bankruptcy "from the date of the seizure of such goods and chattels." The present enactment is satisfied by the issuing of an execution on any legal process, which more comprehensive terms seem to include judgments in real actions — see 23 and 24 Vict., c. 126 (Common Law Procedure Act, 1860), ss. 26, 27-ejectment, 15 and 16 Vict., c. 76 (Common Law Procedure Act, 1852, ss. 185, 186), and also the enforcement of decrees and orders in Chancery, rules of Courts of Common Law, and orders in lunacy, whereby any sum of money, or costs, charges, or expenses are payable to any person; and which, under the I and 2 Vict., c. 110, s. 18, have the effect of judgments in the Superior Courts of Common Law, and the persons to whom such moneys are payable are deemed judgment creditors within the meaning of the Act. An order of the Probate Court for the payment of money is not, however, constituted a judgment debt by sec. 25 of the 20 and 21 Vict., c. 77-Pratt v. Bull, 32 L.J., ch. 21; (on appeal, ibid 141;) nor does sec. 52 of the 20 and 21 Vict., c. 85, so constitute an order of the Divorce Court - Ex parte Holden, 9 Jur., N.S., 948. These sections confer upon the respective Courts the same powers of enforcing orders, decrees, and judgments as are vested in the Court of Chancery, i.e., by process of contempt and sequestration, which latter writ, when issued on final process |