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TABLE

OF

CONTENTS.

A.

ABATEMENT.

See PRACTICE.

ACT OF BANKRUPTCY.

1. Unless a Denial to a Creditor is in Consequence of a Direction from the Debtor, a subsequent Approbation of it by him will not make it an Act of Bankruptcy. Ex parte Foster. Page 50 2. Commission on a concerted Act of Bankruptcy, though carried on bona fide, and without Collusion, superseded with Costs. Ex parte Gouthwaite. 3. A Witness is not bound, upon the Commissioners' Summons for that Purpose, to attend, and prove the Act of Bankruptcy or the Trading; but the Chancellor, upon an Application to him, will order the Attendance. Ex parte Jones. 39

87

4. The Bankrupt's agreeing to an Act of Bankruptcy, unless he concerts it, is no Objection to the Commission. Ex parte Oliver.

Page 67. N. 5. Although the Act of Bankruptcy must be committed in this Country, yet a Letter from a Trader, who has gone abroad in the Course of his Trade, connected with Circumstances here, may be sufficient Evidence of such Act. Ex parte Hague. 150 6. A Trader who has no settled Home, or Counting-house, but takes up a temporary Abode at a Public-house, at a Place to which his Business carries him, commits an Act of Bankruptcy by departing from such Dwelling-house, with Intent to delay his Creditors. Holroyd v. Gwynne. 113 7. If a Trader keeps House, and causes himself to be denied to a

Tax

213

Tax-gatherer, who calls for Taxes, it is an Act of Bankruptcy. Jeff's v. Smith. Page 117 8. Assignment by Partners, by Deed, of all their Property, in Trust for their Creditors, with a Proviso to be void, if all the Creditors for above £20 should not execute, or a Commission of Bankrupt should issue within a certain Time, is an Act of Bankruptcy: Secus when the Deed being joint and not several, one never executed. Dutton v. Morrison. 9. An Act of Bankruptcy subsequent to the striking of the Docket, but previous to the sealing of the Commission, (and for that Purpose a Fraction of a Day is admitted,) will sustain the Commission. Ex parte Du Frene. 10. Although a Commission is taken out on a concerted Act of Bankruptcy, it may be sustained by any Act that can be proved antecedent to the Commission. ibid. 11. An Act of Bankruptcy by lying in Prison, is complete at the End of two lunar Months. The Day of Arrest is included, unless where the Party has been bailed: and then, the Day of the Surrender. The Act operates by Relation, from the first Day of the two Months. ibid. 334. 12. Commissioners permitted under particular Circumstances, to receive Afhdavit of the Act of Bankruptcy, made before a Master extraordinary. Ex parte Wood. 298

333

13. The Chancellor has Jurisdiction to order the Trustees, in a Deed of Assignment of all the Trader's Effects, to produce it before the Commissioners, for the Purpose of proving an Act of Bankruptcy. But if the petitioning Creditor has acted under the Deed, although he may not have executed it, he cannot avail himself of it as an Act of Bankruptcy, and will be liable for the Costs of the Commission. Er parte Cawkwell. Page 313

14. A Deed whereby a Debtor, under the Pressure of an hostile Creditor, conveys real Estates in Trust to sell and pay that Creditor, with a further Trust to pay Debts to certain Relatives, in order to give them an undue Preference, is an Act of Bankruptcy. Horseman.

Morgan v. 354

15. A Trader who is denied by his own Orders to a Creditor, in the Habit of calling upon him to demand a Debt when he is at Dinner, does not commit an Act of Bankruptcy, if his Intent be to avoid Interruption at that Hour, and not to delay the Creditor, although the Creditor be thereby delayed. Smith v. Currie. 364 16. Proof of an Act of Bankruptcy is a sufficient Proceeding under the General Order. Ex parte Freeman.

380

17. A Departure from the Realm, occasioning the Delay of Creditors, is not an Act of Bankruptcy, unless at the Time of Departure there was

an

an Intention to delay. The Deposition of the Witness proving such Act, should state such Intention or Circumstances, from which the Court will necessarily infer it. The Departure of a Man in embarrassed Circumstances is strong, but not conclusive, Evidence of Intention. Ex parte Osborne, 387. And the Cases collected in the Note. Page 392 18. A Creditor is not a competent Witness to prove the Act of Bankruptcy. ibid. but see the Note. 19. Although the Act of Bankruptcy may not have been concerted, yet if the Commission is clearly the Commission of the Bankrupt, and he evidently has the Management and Direction of it, the Court will not hesitate instantly to supersede it. Ex parte Downes. Ex parte Ansley.

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3. In such Action, the Allegation that the Commission was duly superseded can only be sustained by the Production of the Writ of Supersedeas, and not by the Chancellor's Order, directing it to issue.

ibid. 4. A. and B. Partners, gave a joint and several Bond to C., who afterwards becomes indebted to A. B. becomes Bankrupt; C. proves the Bond under the Commission, and then brings a joint Action against A. and B., to which B. pleads his Certificate. A. being, by this Form of Action, precluded from setting off his separate Debt, applies for, and obtains, an Injunction against C.'s proceeding in the joint Ac tion. Bradley v. Millar.

273-395

5. In an Action by a Bankrupt

against his Assignees, although they are not named as such on the Record, Notice must be given under 49 Geo. III. c. 121, s. 10, or the Commission and Proceedings will be sufficient Evidence of the Trading, Act of Bankruptcy,

and

359

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under the Order, in the Nature of a Decree, upon a Bill for an Account in Equity. Ex parte Farlow. Page 421

ANNUITY.

See PROOF.

ARREST.

See PROTECTION.

ASSIGNEE.

See ACTION.

1. When a Bankrupt has, in an Action against his Assignees, established that there was no Act of Bankruptcy, the Court will not, unless under very special Circumstances, delay superseding the Commission, till after another Trial. It is not a sufficient Ground, that the Assignees have Evidence to support the Commission, which they were prevented from producing by Surprise.

4. Assignees are not, under 5 Geo.
II. c. 30, entitled to detain from
the Bankrupt any Part of his Wear-
ing-apparel, on the Ground of its
being unnecessary; he himself being
the Party to determine that, at the
Risk of an Indictment: nor to re-
fuse him the Inspection of his
Books, previous to his last Examina-
tion, on the Ground that such In-
spection is with a fraudulent Ob-
ject. Ex parte Ross. Page 33
5. A Testator directs, that his Estate
and Effects shall be laid out in the
Public Funds, in the Names of
Trustees, who are to pay the Di-
vidends from Time to Time, into
his Son's Hands, or to his Order
and on his Receipt; to the Intent
that the same, or any Part thereof,
should not be grantable or assign-
able, by Way of Anticipation. On
the Bankruptcy of the Son, his As-
signees under the Commission are
entitled to this Interest. Brandon
v. Robinson.
6. The Act is imperative, that an As-
signee shall be charged £20 per
Cent. for Money wilfully retained
in his Hands. Ex parte Bray. 144

197

2. In an Action brought by the Bankrupt against his Assignees, they must, independently of the Notice under Sir Samuel Romilly's Act, be presumed to know, that the Bankruptcy is disputed, and ought to be prepared with Evidence to sup-7. The Election of Assignees must

port it. Ex parte Dick.

Vide ACTION 5.

51

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be made by those Creditors, however few, who are in a Condition to vote; although those not in that Condition might have made a different Choice. Ex parte Butterfill.

192 8. An Assignee, having purchased Goods at a Sale under the Commission, becomes Bankrupt: ordered,

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