Page images
PDF
EPUB

A

TREATISE

ON THE

LAW OF BANKRUPTS,

AS ALTERED AND AMENDED

BY

STATUTE 6 GEO. IV. c. 16.

WITH

A COLLECTION OF PRECEDENTS FRAMED AND ADAPTED
TO THE STATUTE.

BY JAMES 'ESPINASSE, B.A.

OF BALLIOL COLLEGE, OXFORD; AND OF GRAY'S INN.

[blocks in formation]

LAW-PRINTER TO THE KING'S MOST EXCELLENT MAJESTY;
FOR JOSEPH BUTTERWORTH AND SON,
LAW-BOOKSELLERS, 43. Fleet-street.

1825.

[graphic][subsumed][subsumed]

PREFACE.

THE following Treatise owes its origin, to an observation which the Author heard casually made in conversation, upon the subject of the then new bankrupt act, 5 Geo. 4. c.98., which was to come into operation in the course of a few months. It proceeded from a solicitor of considerable experience, who observed, that the profession would labour under great difficulty, as to the mode of conducting the proceedings in bankruptcy when that period should arrive: in ascertaining what alteration would be found necessary in the practice under the former statutes: and that it would be attended with much utility, if the task were undertaken, of reducing the new Act of parliament into a form adapted to the ancient and usual course of proceeding. It was obvious to the Author, that the stat. 5 Geo. 4. c.98. having repealed every antecedent act upon the subject, the whole course of future proceedings was to be governed by it alone; as it was intended to comprise an entire system of the bankrupt law. The Act was intituled "An Act to consolidate and amend the bankrupt laws," and there was none to be found in the statute book, which had a better claim to the title which it assumed. It was, in principle, a model for future legislation; it showed what ability and precision could effect, in the repeal of a mass of statutes enacted at different periods, which proposing to explain and amend, only tended to confuse, and which were so numerous, and so dispersed, that to have arranged them would seem to require the work of years;

yet by an able and well directed page and a half, were twenty acts of parliament blotted from the statute book, while every thing efficient which they contained, was embodied and compressed into little more than thirty pages; and this, not the work of one who abridges without knowledge, and selects without discrimination; every clause, and provision of the former statutes, the utility of which had been tried, "and the effect of which had been found beneficial, were adopted into that Act, and additions made from the decisions which had taken place in the several courts, giving to them the authority of legislative enactment.

To all the merit which the Author ascribes to the statute 5 Geo. 4. c.98., the present statute has a full and equal title. The first was repealed before it came into operation, and the latter is nearly a literal transcript of it; they are in fact, the same Act of parliament, with some alterations introduced into the latter, which now forms the existing law upon the subject.

[ocr errors]

*

The statute 6 Geo. 4. c.16. has, to a great extent, altered the course of the former proceedings, and in the general law introduced some important amendments; but the Author presumed to think, that where this statute adopted in terms, or words of the same import, any section or clause of a former statute, it was intended to adopt all the decisions which had taken place on it; and as it is declared "that the Act shall be construed beneficially for creditors; and that nothing therein contained, shall alter the present practice in bankruptcy, except where any such alteration is expressly declared;" he ventured to conclude, that in the spirit of that clause, he was at liberty to adopt such rules, as well of construction, as of practice, as had before governed the proceedings under bankruptcies.

In compiling the following Treatise, the Author was called upon to exercise the greatest attention, and to use the

Section 135.

utmost discrimination. He proposed to himself a task, not of mere compilation of existing decisions, collected from Indexes without difficulty, and arranged without care: he had to reject those which had ceased to be law with the statutes upon which they were founded; and to adopt as law that, which former decisions had declared to be not so. Of this description are the numerous decisions on contingent debts; the relation of the petitioning creditor's debt to the period of the commission of an act of bankruptcy, and some others. The law with respect to these cases has, by the operation of this statute, undergone a total change.

The task of selection was difficult, and to discriminate between such cases as the statute had rendered dead letter, and those which remained, required no ordinary care. But the Author thought himself called upon to exercise a further duty, in not giving to the world a large volume of ill digested matter, or one swoln by repetition into an inconvenient form. He searched for principles where he could find them: he adopted them as such, and gave them in language, which, while he studied brevity, he hoped would not detract from precision. In the selection necessary for his purpose, he conceived himself warranted in rejecting that tribe of cases, which decide no general principle, from being buried in such a multiplicity of facts, as it could scarcely be supposed possible, should ever again concur; and with the same feeling, he shunned the repetition of cases, which though differing in circumstances, in principle are the same. It had been easy for the Author, by having recourse to the unworthy means resorted to by mere compilers, to have pillaged the printed sheets of other authors, and have made a large book of shreds and scraps,

the disjecta membra of others who had written on the bankrupt laws; but writing with a view to character in his profession, every line of this treatise is original, and nothing has blotted his pages but his own thoughts and conclusions,

« PreviousContinue »