or his general agent, which the auctioneer is not. At all events, the auctioneer, under such conditions, has no authority to receive the purchase money by means of a bill of exchange.

A lessee of lands subject to a covenant against certain obnoxious trades, with a proviso for re-entry, granted under-leases of houses erected on the land, not containing a similar covenant and proviso: it was holden (c), that a purchaser by auction of houses on the same land, and of the improved ground-rents of the houses so underlet, might recover his deposit, this omission in the under-leases not having been mentioned in the conditions of sale. In an action against the vendor of an estate to recover the deposit on a contract for the purchase, if the defendant, on notice, produce the contract, the plaintiff need not prove its execution (d); for an instrument produced on notice by a party claiming an interest under it, does not require to be so proved.

(c) Waring v. Hoggart, 1 Ry. & M. 39. (d) Bradshaw v. Bennett, M. & Rob.

143; 5 C. & P. 48.

CHAPTER VII.

BANKRUPT.

I. Of the Alterations made in the Bankrupt Laws by Stat. 6 Geo. IV. c. 16; 1 & 2 Will. IV. c. 56, establishing a Court of Bankruptcy, and other Statutes, p. 183.

II. Of Persons liable to be Bankrupts, p. 187.

III. Of Persons not liable to be Bankrupts, p. 189.

IV. Of the several Acts of Bankruptcy, p. 189; and of the Bankruptcy of Persons having Privilege of Parliament, p. 211.

V. Of the Petitioning Creditor's Debt, p. 212.

VI. Of Property in Possession of the Bankrupt as reputed Owner, p. 217.

VII. Of Warrants of Attorney, Conveyances, and Payments made by and to Bankrupts, p. 231.

VIII. Of Actions which may be brought by the Assignees of a Bankrupt, and in what manner they ought to sue, p. 238.

IX. Of Actions by the Bankrupt, p. 245.

X. Of the Pleadings, p. 246.

XI. Of the Evidence and Witnesses, p. 262.

I. Of the Alterations made in the Bankrupt Laws by Stat. 6 Geo. IV. c. 16; 1 & 2 Will. IV. c. 56, establishing a Court of Bankruptcy, and other Statutes.

THE legislature having deemed it expedient to amend the laws relating to bankrupts, and to simplify the language thereof, and to consolidate the same in one act, and to make other provisions respecting bankrupts, by a statute, (which passed on the 2nd of May, 1825, to take effect on the 1st of September in that year,) repealed the following statutes :

34 & 35 Hen. VIII. c. 4.

13 Eliz. c. 7.

1 Jac. I. c. 15.

21 Jac. I. c.

19.

13 & 14 Car. II. c. 24.
10 Ann. c. 15.

7 Geo. I. c. 31.

5 Geo. II. c. 30.

The statute of 6 Geo. IV. c. 16, in many of its provisions, corresponds with the enactments of former statutes, and therefore, in the following pages, such of the decisions as have been made on the construction of those statutes, and are likely to occur again, will be re-inserted.

By stat. 1 & 2 Will. IV. c. 56, and by H. M. letters patent, in pursuance of that statute, a Court of Bankruptcy was established, consisting, at first, of a chief judge and three other judges (a), and six commissioners (b). It is a court of law and equity, and has all the powers and privileges incident to a court of record (c). The judges form a court of review, and have superintendence and control in all matters of bankruptcy (d), co-extensive with, but not exceeding (e), the chancellor's former jurisdiction, and subject to an appeal (ƒ) to the chancellor on matters of law and equity, or on the refusal or admission of evidence only. Whether a man be a trader is a question of fact on which an appeal does not lie (g).

The six commissioners are formed into two subdivision (h) courts, consisting of three commissioners for each court, and have all the powers (i) which former commissioners had, provided that no single commissioner shall have power to commit (k) any bankrupt or other person examined before him, otherwise than to the custody of an officer of the court, to be detained and brought up within three days before Subdivision (1) Court or Court of Review. In every case where the lord chancellor had, by any former act, power to issue a commission, he, M. R., V. C., and each of the masters in chancery acting under a special appointment from the lord chancellor, may issue a fiat (m), in lieu of a commission authorising the creditor to prosecute his complaint in the Court of Bankruptcy, or elsewhere, before such persons as shall be appointed in the fiat, who are to have like power as if appointed by commission under great seal. The provisions (n) of former acts, and all rules and

(a) The number of judges has since been reduced. See stat. 3 & 4 Will. IV. c. 47, s. 7; 5 & 6 Will. IV. c. 29, s. 21. (b) Stat. 1 & 2 Will. IV. c. 56. (c) Sect. 1, and declaratory enactment in 5 & 6 Will. IV. c. 29, s. 25.

(d) 1 & 2 Will. IV. c. 56, s. 2. (e) Exp. Lucas, 1 Mont. & Ayr. 103. (f) Sect. 3; Exp. Keys, 1 Mont. & Ayr. 226, 240.

(g) Exp. Hinton, 2 Dea. & Ch. 407.

(h) Sect. 6.

(i) Sect. 7. See also 5 & 6 Will. IV. c. 29, s. 23, 4.

(k) See 5 & 6 Will. IV. c. 29, s. 25, and R. v. Faulkner, 2 Cr. M. & R. 525. (1) Exp. Lampon, 1 Mont. & Ayr. 245. See enlarged powers of subdivision courts in 5 & 6 Will. IV. c. 29, s. 23, 4, 5. (m) 1 & 2 Will. IV. c. 56, s. 12. (n) Sect. 16.

orders then in force, extend to this act, and fiats issued under it, to all purposes, as if such fiat were a commission under the great seal, except as otherwise directed by this act.-Traders disputing (o) the adjudication are, within a limited time, to present a petition for reversal to the Court of Review, who are to decide thereon, having power, if they think fit, to direct issues for a trial by jury before the chief judge, or one or more of the other judges, of matters of facts affecting the validity of the adjudication.

Upon the reversal of any adjudication, chancellor may order fiat to be rescinded (p), and such order shall have the validity of a supersedeas of a former commission under existing laws. The chancellor is empowered (q) to appoint official assignees, not exceeding thirty, to act in all bankruptcies prosecuted in the Court of Bankruptcy, one of whom is to be, in all cases, an assignee of each bankrupt's estate, with the assignees chosen by the creditors; and the personal estate and effects, and the rents of the real estate, and the proceeds of sale of all the estate and effects, real and personal, of the bankrupt are to be received by such official assignee alone, except where otherwise directed by court. The personal estate (r) of the bankrupt, present and future, becomes vested in the assignees without any deed, by virtue of their appointment; and so, in case of death or removal, in the new assignees. So present and future real estate (s), in United Kingdom or colonies, vests in assignees without any deed of conveyance, with a proviso (t), that in cases where the conveyance would require to be registered, a certificate of appointment of assignees shall be registered. Where the bankrupt had purchased the office of under marshal of the city of London, it was holden (u), that this was an office which did not concern the administration of justice, and that the assignees might lawfully sell it. But where the East India Company had made a grant, not under seal, of a retiring pension to a military officer of the company, it was holden (x), that this pension did not, upon his bankruptcy, pass to his assignees.

It must be remarked here, that the statute for abolishing fines and recoveries, 3 & 4 Will. IV. c. 74, expressly repeals the stat. 6 Geo. IV. c. 16, s. 65, so far as relates to estates tail; and to that extent also virtually repeals the 26th section of the 1st and 2nd Will. IV. c. 56, and empowers (y) any commissioner acting in any fiat, by deed, enrolled within six months after its execution, to dispose of the lands of any bankrupt, tenant in tail, to any purchaser, for the benefit of his creditors, and to create, by such disposition, as large an estate as the bankrupt himself could have

1 & 2 Will. IV. c. 56, s. 17. (p) Sect. 19. (g) Sect. 22.

Sect. 25.
Sect. 26.

Sect. 27.

(u) Exp. Butler, 1 Atk. 210.

(x) Gibson v. East India Co., 5 Bingh. N. C. 262, in which case the doctrine cited, ante, p. 66, from the case of Church v. Imperial Gas Co., was recognized. (y) 3 & 4 Will. IV. c. 74, s. 56.

done under the act. The statute 1 & 2 Will. IV. c. 56 is still in force in respect of real estates of which a bankrupt is seised in fee; and, indeed, also respecting his estates tail (z), until they are conveyed by the commissioners. But the commissioners appear to be the proper parties to convey the bankrupt's estate tail, under the statute 3 & 4 Will. IV. c. 74, s. 56; and the assignees the proper parties to convey the bankrupt's estates in fee simple, under the 1 & 2 Will. IV. c. 56 (a). By stat. 3 & 4 Will. IV. c. 74, s. 67, assignees are empowered to recover rents of the lands of a bankrupt, of which the commissioner has power to make disposition, and to enforce covenants, as if entitled to the reversion, until such disposition made, or until it is ascertained that such disposition is not required. This clause applies to all copyhold lands; but as to lands of any other tenure, to such only as the commissioner may dispose of after the bankrupt's death. By stat. 6 Geo. IV. c. 16, s. 77, all powers vested in any bankrupt which he might legally execute for his own benefit (except the right of nomination to any vacant ecclesiastical benefice) may be executed by the assignees for the benefit of the creditors, in such manner as the bankrupt might have executed the same.

Formerly a commission might have been superseded, on the ground that it had been concerted between the petitioning creditor, his solicitor, or agent, or any of them, and the bankrupt, &c.; but by stat. 1 & 2 Will. IV. c. 56, s. 42, no commission of bankrupt shall be superseded, nor any fiat annulled, nor any adjudication reversed, by reason only that the commission, fiat, or adjudication has been concerted by and between the petitioning creditor, his solicitor, or agent, or any of them, and the bankrupt, his solicitor, or agent, or any of them. This statute does not give validity to fiats founded on concerted acts of bankruptcy, and therefore the execution of a deed, whereby a trader assigns all his property to a trustee for the benefit of all his creditors, is not an act of bankruptcy, sufficient to support a fiat, founded on the petition of a creditor who was either a party or privy to such deed (b). But by the 7th section of 6 Geo. IV. c. 16, one species of act of bankruptcy, viz. a declaration of insolvency, though concerted between the bankrupt and a creditor, is rendered valid by express en

actment.

A subsequent statute (c) directs, that the records and proceedings under former commissions shall be removed into the Court of Bankruptcy. Any one judge may, upon application, direct any

(z) See Exp. Somerville, 1 Mont. & Ayr. 408; 3 Deac. & Ch. 668.

(a) See Cru. Dig. vol. i. p. 88, 4th ed. by H. H. White, where the reader will find the other provisions of this act relating to bankrupts' real estates.

(b) Marshall v. Barkworth, 4 B. & Ad. 508; 1 Nev. & M. 279, recognizing Bamford v. Baron, 2 T. R. 594, n. post, p. 201.

(c) 2 & 3 Will. IV. c. 114, s. 1.