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THS 



INSOLVENT ACT OF 1875. 



WITH AM 



INTRODUCTORY CHAPTER ; 

NOTES, FORMS. TARIFFS 



OF 



ONTARIO, QUEBEC, AND NEW BRUNSWICK; 



• AND A 



FULL INDEX 



BT 



JAMES D. EDGAR and F. H. CHRYSLER, 

Barriatera-at-Law. 



TORONTO: 
OOPP, CLARK k Co., PRINTERS, COLBORNE STREBT. 

1875. 



E4^ 



Entered according to Act of the Parliament of Canada, in the year one thousand 
eicht hundred and seventy-five, by Copp, Clark & Co., Toronto, Ontario, 
in the Office of the Minister of Agriculture. 



PREFACE. 



An cxi)erience of eleven years has rondoi-cd the mercantile ami 
legal classes familiar with the operation of an insolvency law ; while 
the decisions of Canadian Courts since 1804 liavo also thrown much 
light upon both its principles and jiractice. No former annotations 
of Canadian Insolvent Acts have yet approached the conipleteneaii 
which the authors claim for this volume. The very latest English 
cases, all the Ontario, Quel>ec, New Brunswick and Nova Scotia 
reported decisions, and some American ones, have l)ecn cited where 
applicable. In Ontario the profession are still without rules to regu- 
late the practice or pro%'ide forms in insolvency, and for that reason 
particular attention has been dniwn to the course of procedure as laid 
down in the Statute, and Practical Forms have been given in addition 
to those provided in its Ap|)endlx. 

The List of Official Assignees for the whole of Canada, as appointe<l 
under the new Act, has been given in ftill. The Rules and Ortlers 
regulating the practice in insolvency in the Province of Quebec are 
included in the work as being of dii*ect application in one Province, 
and of some value for reference in the aKsence of binding Rules in 
the rest of the Dominion. Legal practitionere will appreciate the 
advantage of the publication of the Tariffs of Ontario, Quebec and 
New BrunsMdck. 

References to the Act, Notes, and Forms will be foxmd to be 
much facilitated by the completeness of the Index ; and for valuable 
assistance Id this and other parts of the work the authors are in- 
debted to Mr. Trevelyau Ridout, Student-at-law. 



Toronto, TRiNmr Term, 1875. 




TABLE OF CONTENTS. 



Sviroms OF Apt ^ 

List or Casks 

XT 

Introductory Chaitbr 

Act, with Notbs •« 

o3 

Appkkdix of Forms .-« 

pRAcncAL Forms . -„ 

List of Official Assig.^kks j^g 

RuLK AKD Orders (Quebec) ,g2 

Tariff (Quebec) " " ^^ 

Tariff (Ontario) ,^^ 

Tariff (New Brunswick) jj2 

Index 

195 



SYNOPSIS OF INSOLVENT ACT OF 1875 



DIVISION I 
Appmoatio'* of Act. 33. 

Whu art! Trsuicra under tbii Act, 33. 

Proviso, 34. 

As to iMrrsons having been Traders, 40 

Inter] irctation ; County, District, 40. 

Official Assignee, 40. 

Assignee, 40. 

Official(;azette. 41. 

Court, 41. 

Judge, 41. 

Debtor, 41. 

Insolvent, 41. 

Notary, 41. 

Creditor, 41. 

As to voting, composition, Ac, 42. 

Collocated, 41,'. 

Partnerships and companies, 42. 

When a Debtor dekmid 15SOLVKNT. 

Acts of Insolvency, acknowledging InaolTency, 42, 43 

Absconding, 43. 

Concealment, 43- 

Secreting effects, 44. 

Fraudulently assigning, 44. 

Conniving at seizure, 46. 

Being imprisoned, 47. 

Making default to appear, 47. 

Disobeying rule, 47. 

Or decree, Ac, 47. 

Making assignment otherwise than under this Act, Ac, 47- 

Allowing execution to be unsatisfied, 48. 

Proviso as to costs, 4S. 

Dbmand or Assignment. 

When Creditors may demand an Assignment, 49. 

Form, 49. 

Affidavit required, 49. 

Creditors demanding assignment must elect a domicile, 49. 




SYNorSIS OV ACt. 



^ 



Judge may annul (irmanil if claitna do not amount to $500, 4c., 51. 

Or if stoppage be only tomiMtrary, 61. 

Proviso as to costa, 51. 

Judge may enlarge time for conteatation or assignment, 61. 

Proviso, 5'2. 

When debtor's estate to become subject to liquidation, 0? 

Time for commencing pruccvdings limited, 52. 



DIVISION II 

Writb or ATTArnii«!«T. 

Affidavits by parties demanding, 53 

Writs of Attachment, 53. 

Form. 53. 

Concurrent writs, 53. 

Korms of proceeiUng, 53. 

Service of writ, how made, 55. 

And of concurrent writs, 55. 

Duty of Assignee executing writ, 56. 

Assignee may break open house, &c., 56. 



DIVISION III. 

A.%!IIO!4MKNTS AND PboCEBDIMOS TBEREON. 

Assignment, when and to whom it may be made, 56. 

Form of Assignment, 58. 

Property and powers of Insolvent vested in Official Assignee, to whooi 

assignment is made and first writ issued, 68. 
Censervatory proceedings, 58. 
Certain property excepted from seizure, 59. 
Insolvent to furnish statement uf his liabilities, assets, &ti., 63. 
What it must show, 63. 

Petition by Insolvent to set aside attachment, 63. 
Hearing in such case, 64. 
Registration of assigimient and transfer, 65. 
First meeting of Creditors, how called, 65. 
Form, 65. 

Notice to each Creditor by mail, 66. 
Proviso, 66. 



I 



DIVISION IV. 

KlAMIKATIOH or IXSOLTXKTS. 

Who shall preside at meetings, 66. 

Insolvent to attend and be examined as to cause of failure especially, 66 

Attestation, kc., of examination, 66. 



vm 



INSOLVENT ACT OF ItT*. 



Iiianlvont lubjcct t<> further cxaminAtion, 67. 
Kcfuaal to answer, kc, to \te contempt >*( Court, 67> 
Kxaniination of wifu or husband of insolvent, 67. 



DIVISION V. 



AnIIONKIW and TvsPRCTORH. 



Api>(>intnicnt Oiiicial Assignee, 68. 

Ontario, 68. 

Quelxic, 68. 

District, what to l)c, (J8. 

Security given hy Ofiicial Assignee, 68. 

ilucr>vcry luulci (Jourt, (*8. 

Additional sucurity, 6i). 

KosiiouHibility, &u., of Otlicial Assignee, 60. 

Apixtintniunt of, and puvurity given Ity, Assignee, not Official, 61). 

What Creditors only shall vote at luvetings, 70. 

Claims not to be divided for voting, 70. 

Transfer of entute by Otiicial Assignee, 72. 

Notice of Aiipdintnient, 7*2. 

Assignee not to act as agent of a Creditor, '^72. 

Kzception, 72. 

Place for meetings, 72. 

Inspectors, their api)ointment, kc, by Creditors, 72. 

Remuneration of Iu8]>ector8 ; they and Assignee not to purchase Insol- 
vent's property, 7.3. 

Disposal of CHtate of Insolvent, 73. 

Objection to proposed motle of disposal of estate, 73. 

Hearing by Court or Judge, 74. 

Powers of Insolvent vested in Assignee, 74. 

Proviso : as to sale of entire r '.tate, 74. 

Assignee to sue for debts due Insolvent, kc, 74. 

If Insolvent sues for the same after assignment or attachment, 75. 

Partnership dissolved by insolvency of a partner, 76. 

Register to be kept by Official Assignee, 77. 

Assignee to open separate account with each estate, 77. 

Deposit of Register by non-oifieial Assignee, 78. 

Assignees under this or any former Act must obtain discharge, and pay 
over balance to Receiver-General, with sworn account, 78. 

Assigne: to be paid only by commission on amount realized, 78. 

And actual necessary disbursements, 78. 

As to employing counsel, kc, 78. 

Remuneration of superseded Assignee, 79. ''■ 

Assignee to call meetings on refjuisition, 79. 

Deposit and withdrawal of moneys of estate in Bank, 79. 

Interest on deposits, 79. 



■TK0P81S or ACT. 



r«Q«Uy ftir nontUatributioii nf toch int«re«i, 79. 

,AiMi^i<*e t4> pr«Mluc« iMUik UhjIu at aK-«tiii^, kc, 79. 

PuniHhmont for false «atr7 in sttcli pus book, 80. 

Estate, in whom vested on death of Assignee, 80. 

Finnl aoroant and ilischarge of Assignee, 80. 

Oltligatittn of Assignee, kc, '^. 

Powt-r nf Jutlge, 80. 

Penalty in case of neglect to present such petition, 81 . 

Provisions of section 47, to apply to Asaignevs under former Acfj, 81. 

X 



^^^•. 



DIVISION VL 

CoiirORITin!* AMD DiaCHAROB. 

Meeting to consider composition and discharge, how and when called, 81. 

Notice of meeting, 82. 

Diitchargc may l»c approved or not, 82. 

Proct-cdings when consent is obtainc«l, 82. 

Certificate and what it shall contain, 82. 

Further certificate, 83. 

Probable ratio of dividend to be stated, 83. 

Application for continuation of discharge, 83. 

Nt>tice, 84. 

Notice how given, 84. 

Op|K)8ition allowed, 84. 

Confirmation of discharge, 84. 

Affidavit by Insolvent to be produced, 84. 

When In8ol-'«!nt shall not be entitled to confinnation of discharge, 86. 

Proper iMwks must have been kept, 85. 

Proviso, as to certain provinces. 85. 

Proviso, aa to fraud and frandulent preferenoea, 85. 

Powers of Court or Judge, 86. 

In certain cases character of discharge may be modified, 86. 

May be suspended or made second class. 87. 

If dividend is leas than 33 per cent, discharge may be refasad or suf' 

pcnded, 88. 
Deed of composition maj be conditional, 88. » 

If condition be not fullillad, 8&. 

Rank of creditors thereafter, 89. r 

Deed of reconveyance by Assignee to Insolvent, 93. 
Its effect, 93. 
« If deed of composition be otmtestad, 93. ,,,:% 

Form of deed, 93. x 

Effect of confirmaiion of discharge — ^what claims affected, 94. 
Holders of negotiable paper unknown to Insolvent, 94. 
Discharge not to affect secondary liabilities, 95. 
Discharge under this Act not to apply to curtain debti or liabilitiet, 96. 






INSOLVENT ACT OF 1875. 

But creditors may accept a divit'end, 96. 

Application to Court or Judge for discharge if not obtained from credi- 
tors, 96, 97. 
Proceedings on such application and powers of the Court or Judge, 97. 
Suspension or classification of second class, 98. 
Discharge, &c., obtained by fraud to be void, 98. 



DIVISION VII. 
8AI.B OT Debts. 

Sale of debts the collection of which would be too onerous, 98. 

Proviso, 99. 

Creditor maybe authorized to take any special proceeding at his owit 

risk, 99. 
Proviso, 99. 

Rights of purchasers of debts due Insolvent, 99. 
No warranty, 99. 



DIVISION VIII. 

LSASBS. 

Lease of properly more valuable than rent to be sold ; on what condi* 

tions, 100. 
Other casea of lease, how dealt with, 100. 
Lessor claiming damages for termination of the lease, 101. 
How damages to be estimated, 101. 
Preferential claim of landlord limited in the several Provinces, 101. 



DIVISION IX. 

Sals of Heal Estate. 

Sale of real estate of Insolvent, 102. 
In Quebec, 102. 

Proviso : postponement of sale by consent of Creditors, &c., 103. 
Effects of sales of real estate, 103. 
Form of deed and terms, 104. 

Sales in Quebec may be subject to certain charges, 104. 
Folle Enchere, 104. 

Certificate of Registrar, 105. *■ 

Code cf Civil Procedure to apply, 105. 
Order x.f distribi'tion, 105. 
Assignee's commission, 105. 

Baknce, 105. ' '\;^ * ' 

In Quebec privileged Creditors may require sale of property subject to' 
their privileged clums, 105. 



STNOPSia OP ACT. 



XI 



DIVISION X. 

t)lVIDBNI>a. 

Accounts, statements and dividends by Assignee, 106. 

What claims shall rank on the estate, 106. 

Case of contingent claims provided for, 109. 

Arbitration. If award be rejected, 109. 

Rank and privilege of Creditors, 110. 

Proviso as to Creditors holding security, 1 10. 

Seizure in execution after appointment of Assignee : its effects, 110. 

Proviso as to C(»st8, 111. 

As to Creditors holding security for their claims, 112. 

Security not matured and Insolvent only secondarily liable, 113. 

If the security is on real estate or shipping, 114. 

Proceedings on filing of a secured claim, 115. 

Rank of several items of a Creditor's claim, 1 15. 

Oath of a Creditor as to non-payment of his claim, 115. 

Insolvent owing debts as a partner, 1 15. 

Allowance to Insolvent, how made, 116. 

As to costs in suits against Insolvent after notice under this Act, 117. 

Privilege of clerks, &c., for wages, 117. 

They may be employed, 117. 

Notice of dividend sheet and payment, 118. 

Contestation of claims by Assignee under Inspector's instnictions, 118. 

Claims not filed, how dealt with, 118. 

Claims on dividends objected to, how determined, 119, 

Hearing and decision thereon, 119. 

Judgment Executory, 119. 

Creditors or Inspectors may order contestation of claims, &c., 120. 

If there be any property of Insolvent under seizure at time of assigmuent 

or attachment, proceedings, 120. 
Unclaimed dividends, how dealt with, 121. 
Balance of estate (if any) to be paid over to Insolvent, 12K 
Notice pending delay, 122. 
Notices of meetings, &.c., how given, 122. 
Cases unprovided for, 122. 

How questions shall be decided at meeting, 122. 
What matters may be voted upon at first meeting of Creditors, 123. 
Form and proof of claims, 123. 
Affidavits, before whom sworn, 124. 
Surrender of security by Creditor and effect thereof, 125. 
Set-off, how allowed, 125. 
Service of papers under this Act, 126. 

Commission for examiusktion of witnesses, 126. ■> .j 

Subpoenas to witnesses, 126. 
Service of process, Ac, 127. 
Disobedience of writs and process, how punishable, 127. 



!l 






Xll 



INSOLVENT ACT OF 1875. 



Proof of default, 127. 

Expenses must be tendered to person summoned as witness, &c., 128. 

Forms under this Act, 128. 

Foreign discharges not to bar debts contracted in Canada, 128. 

As to amendments in proceedings under this Act, 129. 

Provision in case of death of Insolvent, 129. 

Representatives, how far liable, 129. 

Costs, on what property and in what order chargeable, 129. 

As to assets chargeable with mortgages, &c., 130. 

Provisions as to letters addressed to Insolvent by post, 130. 

Disqualification of Judge, 131. 

What Judge to act in such case, 131. 

Prothonotary to preside (in Quebec) in absence of Judge, 131. 

Rules of practice and tariff of fees in Province of Quebec, how to be 

made, 131, 132. 
And in other Provinces, 132. 
Present rules to remain until altered, 133. 
Assignee to be subject to summary jurisdiction of Court, 133. 
Obedience, how enforced, 133. 
Registration of marriage contracts of traders in Quebec, 134. 



DIVISION XI. 

Imprisonment for Debt. 

Insolvent in jail or on the limits, may apply to Judge for discharge, 134. 

Proceedings thereon, 134. 

Examinations of Insolvent and witnesses, 135. 

Judge may discharge him if the examination be satisfactory, 135. 

Proviso, 135, 

Minutes of examination to be kept, 135. 

Postponement in certain cases, 135. 

As to any subsequent proceedings, 136. 

Proviso, 136. 



I 



DIVISION XII. 
Appxai- 

Appeal from any order of the Judge in Province of Quebec, 137> 

In other Provinces, 137. 

Appeal to be prosecuted within eight days, 138. ' 

If appellant does not proceed, 138. 

Reservation of amount of dividend contested, 139. 



SYNOPSIS OP ACT. 



XUl 



DIVISION XIII. 

Fkiuds and Fkaopulbnt Preferences. 

OratuitouB contracts within three months of Insolvency presumed fraudu- 
lent, 139. 

Certain other contracts voidable, 141. 

Contracts made with intent to defraud Creditors to be void, 141. 

Fraudulent preferential sales, &c., to be void, 143. 

Presumption of fraud, 143. 

Certain payments of debtor void, 148. 

Proviso, 148. 

Transfer of certain debts by Insolvent void, 149. 

Purchasing goods on credit by persons knowing themselves unable to pay, 
to be fraud, and how punishable, 150. 

Proviso, 150. 

Fraud must be proved, 152. 

Award of Imprisonment, 152. 

Assignees to be deemed agents for certain purposes, 32-33 V., c. 21, 152. 

Punishment of Assignee making wilful misstatements, 152. 

Certain acts by Insolvent to be misdemeanors, 152. 

Not fully discovering or not delivering property, books, papers, Ac, 153. 

Removing property, 153. 

Not denouncing false claims, 153. 

False schedule, 153. 

Withholding books, &c., 153. 

Palsif j'Ing books, 154. 

Stating fictitious losses, 154. 

Disposing of goods not paid for, 154. . 

Offences against this Act how tried, 154. 

Creditors taking consideration for granting discharge, 154. 

Penalty, 155. 

Punishment of Insolvent receiving money, &c., and not handing the same 
to Assignee, 155. , 

Imprisonment for disobeying order, 155. 

Certain documents to be evidence, 155. 



DIVISION XIV. 
Building and Jury Fund. 

Contribution to Building and Jury Fund in Quebec, 155. 
Governor in Council has certain powers, 156. 



;,'\ . i 



DIVISION XV. 
P«ocEDURK IN Case of Incorporated Compaioui. 
Provisions for Incorporated Companies, 156. 
Preliminary notice, 156. 
Inquiry by Assignee, 156. 



xiv INSOLVENT ACT OF 1876. 

Company to exhibit books, &c., 156. 

Refusal to be contempt of Court, IIC. 

After servi-e of order. Company to hold property in trust, 15T. 

Meeting of creditors may be called, 157. 

Resolutions thereat, 157. 

To be submitted to Judge, 157. 

Powers of Judge in relation thereto, 157. 

Order may be made by Judge, 158. 

Receiver may be appointed, 158. 

To render account, 158. 

Further meeting within six months, 158. 

Farther delay may be granted, 158. 

If demands are unsatisfied, estate of Company may be wound up, 

158, 159. 
Jcdge may modify order, 159. 
OflScers of company may be examined, 159. 
Remuneration of Assignee and Receiver, 159. 
Company may make assignment pending delay, 169. 



DIVISION XVI. 

UsyKBAL Provisions. 

Commencement of foregoing provisions, 159. » 

Insolvent Acts of 1864 and 18' 59 and Acts amending them, Acts of B. C. 

and P. E. I. continued to ist Sept. and then repealed, saving certain 

proceedings and matters, 160. 
Proviso, 161. 
Procedure under this Act to apply and supersede that under said 

Acts, 161. 
Securities to remain valid, 161. 
Inconsistent Acts repealed, 161. 
Act to apply to all the Provinces of Canada, 161. 
Certain Provisions of 32-33 Vic, c. 16, to apply to Manitoba until lit 

September, 1875, 161. 
Court and Judge, what to mean, 161. 
Short titie, 161. 



LIST OF CASES. 



■A. PAOE. 

Abbott V. Burbage 147 

Acraman, Ex p 124 

Adam, Ex p 39 

Adams v. McCall 145 

Adcook, Walter v 91 

Addis V. Knight 116 

Ainsworth, In re, Ex p. Baylcy. . 151 

Alderson v. Temple 149 

Aldred, Constable v 46 

Aldridge v. Ireland 43 

Alexander, Kxp 71, 72 

Alexander v. Vaughan 38 

Allan V. Clarkson 141,145 

Allan V. Garratt 91 

Allan V. Kilbee 116 

Allen V. Bonnett 46, 143, 147 

Allen V. Cannon 38 

Alsop, Ex p 48 

Alton V. Harrison 143, 146 

Anderson, Doddesworth v 38 

Anderson, Re 87 

Andrews, Doe v 100 

Andrews v. Palmer 76 

Angle, Ex p 71 

Anon 37, 39, 76 

Ansell, Day, Re 38 

Apothecaries Co. v. Greenough . . 34 

Arbouin v. Hanbury 46 

Archer, Mayo v 38 

Archibald v. Haldan, 69, 113, 133,147 

Armitage v. Baker 92 

Amiston, Oldis v 92 

Ash, In re 46 

Ashton, Re 61 

Atkinson, Ex p 35, 37, 39 

Atkinson v. Brindell 146 

Austen, Waugh v 76 

Austin V. Gordon 95 

Ayton, Reed v 46 

B. 

Badcock, Ex p 71 

Bage, Ex p 72 

Bagshaw, Ex p 36 

Bs^ell V, Hamilton .*.... 40 

Bailey, Gumming v 44 

Bailey, Rossi v. 91 



Bailey, Ex p 45, 146 

Bailey v. Bowcn 91 

Bailey v. Dillon 95 

Baillie v. (Jrant 40, 52 

Baker, Armitage v 92 

Baker, Homer 61 

Baker, Leonard v 95 

Baker, Palmer v 95 

Baker, In re 113, 116 

Baker v. Painter 92 

Balden v. Peel 92 

Baldwin v. Peterman 121 

Ball, Neatev 61 

Ball, Stewart V 39 

Bamford, Ex p 40, 44 

Bamford v. Bacon 48, 60 

Bank of Australia v. Flower 113 

Bank of Australia v. Harris, 141, 147 
Bank British North America, 

Roe V 61 

Bank Montreal v. McWhirter . . 141 
Bank of New Brunswick v. 

Inspectors 120 

Bannatyne v. Leader 46 

Banner v. Johnson 108 

Banon, Ex p., In re Edwards . . 133 

Barber, Hearmann v 38 

Barber, Warner v 44 

Barclay, Hidson v 92 

Barker, Wood v 142 

Barkworth, Marshall v 48 

Barnard, Rankin v 142 

Barned's Banking Co., In re 108 

Baron, Bamford v 48, 50 

Barrie, Campbell v . 141, 148 

Bartholomew v. Sherwood 38 

Bartlett, Re 36 

Barton, Strachan v 146 

Bartsch, Kitchen v 60 

BascOio, Ex p 73 

Bass V. Gilbert 108 

Bass, Hobson v 108 

Batchelor v. Lawrence 108 

Bate, Ex p 39 

Bates, Ex p 71 

Bandeman, Ex p 116 

Baxter, McLaren v 91 

Bayley, Ex p., In re Ainsworth . 161 



XVI 



INSOLVENT ACT OF 1876. 



PAOF. 

Beard, In ro 55 

Beaumont, lie 108 

Bccher v. Blackburn 57 

Beck V. Beverley 95 

Beckham v. Drake 60 

Bedfonl, Comptun v 45 

Beer, Exp 107 

Be^R, Hingham t Gl 

Bcjean, In re 137 

Belcher v. Gunmow 47 

BeU, Ex p 36 

Bell, Fisher v 92 

Bell, Hamilton v 61 

Bell, Newland v 37 

Bell V. Simpson 45, 146 

Beiton V. Hodges 39 

Bentield v. Solomons 76 

Bcnham v. Broadhurst 91 

Benthall, Rutty v 90 

Ben tley V. Griffin 39 

Bentley, Exp 113 

Bemey v. Davidson 46 

Bemey v. Vyner . 46 

Berry, Scott v 91 

Bertbelot, In re 67 

Besford v. Saunders 95 

Bessette, In re 44 

Bettely v. Stainsby 107 

Bevan, Doe v 100 

Beverly, Beck v 95 

Beyer, Kreitchman v 76 

Bibbins v. Manti' , 76 

Bibby, Lari)ent v 92 

Bice V. Dickson 126 

Bills V. Smith 146 

Binks v. Binks 76 

Birbeck, Eyre v 51 

Birch, Ex p 36 

Birch, Heany v 37 

Birch V. Sharland 95 

Bird V. Sedgwick 38 

Bird, Wright V 38 

Birdwood v. Raphael 125 

Birkett, Ex p 43 

Birka v. Clarke 91 

Bishop V. Church 126 

Britlestone v. Cook 146 

Blackburn, Ex p 149 

Blackburn, Becher v 57 

Blackmore, Ex p 37 

Blake, Revell v 64 

Blakely, Ordnance Co., In re . . 114 

Blencowe, Ex p 54 

Blumberg v. Ro»e 91 

Borland, Ex p 146 

Borland, Ex p.. Re Cherry 148 

Bolnois v. Mann 91 

Bolton V. Sowerby 35, 39 



PAOB. 

Bend V. Weston 91 

Bonnett, Allen v 46, 143, 147 

ilookei, Van Casteel v 4fi 

Bob wall, Re, Kx p. Glass 87 

Botsford, In re 72, 103 

Bourne, Kx p 51 

Bf)urne, Fitzpatrick v 91 

l^nitts, Gibson v 146> 

liowen, Bai ley V 91 

Bowker v, . ?urdakin 46 

Bowman, Jackson v 143 

Bowman, Randall v 112 

Boyd, Ex p 47 

Boydel v. Champneys 95 

Bradshaw, Ex p 34 

Bradshaw, Richardson v 34 

Braginton, Ex p.. In re Maude. . 116 

Braham, Brix v 95 

Brand, Whitfield v 61 

Brandon, Milliken v 38 

Bray, (iibson v 61 

Brett, Re 67 

Brett, Ex p.. In re Howe 114 

Brewer v. Dew 60 

Bridgman's Trust, In re 59 

Brindell, Atkinson v 146 

Bristowe, In re 54 

Brix v. Braham 95 

Broadhurst, Benhara v 91 

Brook, Mclnnes v 50, 51 

Brook, Exp 110 

Brooke, Ex p 50 

Brooke v. Pearson 142 

Brooks V. Jennings 91 

Brooks, Kerakooae v 89 

Brown, Evans v 60 

Brown, Griffith v 102 

Brown v. Kimpton 145 

Brown, Rose v 112 

Browne, Patten v 39 

Brundrett, Morgan v 146 

Brundrit, Ex p., In re Caldwell . 151 

Bryson v. Wylie 61 

Buchanan v. Smith 89 

Buckland v. Papillon 60, 100 

Budd, Dodge &, In re 113 

Buist, Fair &, Re Ill 

Bulmer v. Hunter 143 

Bunnell, Dickenson v 95 

Bunnell, Walker v 60 

Bunny, Ex p 44 

Burbage, Abbott v 147 

Burdakin, Bowker v 46 

Burdiss, Carr v 147 

Burgess, Ex p 35, 36, 39, 54 

Burgess, Tappenden v 48- 

Burke v •McWhirter 136- 

Bums V. Steel 56 



LIST OP CAf^il. 



XTII 



10 
50 
142 
91 
89 
60 
102 
145 
112 
39 
146 
151 
61 
89 
100 
113 
111 
143 
95 
60 
44 
147 
46 
147 
J9,54 
48. 
IBS 
5ft 



PAGE. 

'Buni^iilo, South StaflTonUhire 

l;;iilway i 'o. v 10!> 

Burniu^liL'H v. ElUm }MJ 

Ilurrowoa, v. De lMa<(uiere 110 

ButKr V. Holison. . 64 

Buttortill, Kx I) 71 

Buvolot V. Mill* 91 



Buxton, Luniax v. 



149 



Cnil.ll, Maco v 142 

Ca.lLll, Vyiicr v 40 

Cal.hvtn,i:.x i» 124 

C'al.hvtll, \W, Kx p. Bruntlrit . . 151 

Oalthrop, III re 50, .V 

Caiuenm v. Kager 7<» 

('aiiicroii v. Smith 54 

Cuiaerdii v. llollaml iW 

(y'ainiiliuU, llv JoJin 70 

Cauiplicll V. Barrie 141, 148 

Oaniphcll, Joy V Gl 

Cannon v. Duneer 37, liS 

Cannan v. Smith 45 

Cannan, Sniitli v 45, 146 

Cannan v. Wood 146 

Cannon, Allan v 38 

Carmichael, Wilkins v 126 

Came, Ex p., In re Whitfonl .. 116 

Can- V. Bunliss 147 

Canington, Kx p 39 

Cartle, Kx p 39 

Carter v. iXan 35, 37, 39 

Carter, Nimes v 148 

Gary v. Dawson 110 

Case, In re, Kx p. Napier 118 

Castricjue, Ilderton v 91 

Catholie Publishing Co., Re ... . 156 

Caudy, Ex p 71 

Cazenove, (ioldsmid v 113 

Chattey, lu re 1 13, 1 16 

Chalmers, Davidson v 60 

Chalmers, Perry v 60 

Chambers, Midland BankingCo.v. 113 

Chambers, Williams v 60 

Champneys, Boydel v 95 

Chantler, Newton v 45 

Chapman, (Iraham v 45, 146 

Chapman v. Lamphire 35 

Chapman v. Tanner 112 

Chappie V. Cooj>er 39 

Charlemont, Watson v 98 

Charles, Ex p 108 

Cheeseborough, Re 149 

Chenowet v. Hay 43 

Cherry, Re, Ex p. Borland 148 

Cherry, Ex p., In re Matthews, 139,148 
Chesterfield CoUiery Co. ▼. 

Hawkins 91 

B 



riiippondale v. Tomlinson 60 

Chisholin, Wilnon v 75 

Church, Bishop v 126 

Churcher v. ( 'ousins 148 

ChnrihtT v. .lohnnon 149 

City Bmk v. Kucky 108 

City Bank v. Smith 147 

Claphanj, Pozer v 34 

Claridgo, Whilniore v 45, 147 

Clark V. \Vi.-.dom 35 

Clarke, Birks v 91 

Clarke, Ward v 43 

Clarkson, Allen v 141, 145 

Clarkson, Harniau v 36 

Cleghorn, In re 120 

Ckland, Ex p 36, 37, 38 

Cleniow V. Converse 146 

Clurm, Re, Ex ji. Morrison.. 98, 136 

Cobb V. Symonds 38 

( "ockburn. Ex p 91 

Colin, Ex p 44 

Cole, In re. Ex p. Mutton 62 

Cole, Hollan.l v 100 

Cole, King v 39 

Coleman, Oriental Bank v 45 

Coleuure, Ex p 45, 142, 147 

Coles V. Turner 91 

Colkett V. Freeman 43 

CoUver V. Shaw 65 

Collyer, I^x p 117 

Collins, Crawshay v 116 

Colt V. NetU-rville 38 

Columbine v. Penhall 34, 143 

Commercial Unitwi Insurance Co., 

Smith v 60 

Compton v. Bedford 45 

Constable, Aldred v 46 

Converse, Clemow v 146 

Converse v. Michie Ill 

Conway v. Ntwh 43 

('ook, Butteslone v 146 

Cook v. Pritchard 146 

Cooper, Re 37 

Coojjer, Chappie v 39 

Cooper, Nicholson v 34 

C/Opeland, Ex p 71 

CoiHiland V. Stevens 100 

Corbert, McWhirter v 133 

Corby, Wilson v 75 

Coslett, Ex p 71 

Cotter v. Mason 60, 61 

Cotton V. James 43 

Couch, Crosby v 149 

Cousins, Churcher v 148 

Cowen, In re 90 

Cox, Porter v 76 

Crabb, Ex p 34, 43 

Crabtree, Ex p., Re Taylor .... 87 



XVlll 



INSOTAENT ACT OP mii. 






PAOB. 

CriuinT, Smith v 44 

CriiiikHliaw, llowlnnil ft, Ko .... 7<> 

Cnivoii, Kx p., Hi: ( 'ravin 147 

(iriiviii, \U\ Kx p. TiMiipuHt. . 4G, 147 

Criivcn V. K(Iiij<»M(Im(>ii 144} 

tir iwrtliav V. ( '<»llins llti 

Crispin, Kx p .*W 

Cr<>inl>it> V. .lackHou 133 

CroniWfU, Kx p 37 

Crosbie v. Tooko 10(» 

Crosby v. Couch 14!) 

Cross, Kx i> <>1 

Crossloy v. Klwortliy 141, 143 

Crowthi'r, Howard v GO 

Crutwell, H niton v 45, 14G 

Cuiinning v. Hailey 44 

(/uniniing v. Ikoebtiuk 6<) 

Cunii!, O'Brien v 39 

Curtis V. .lucubs 146 

D. 

Daniel, Re 61 

Dart, Kx p 38 

Danl)erry, Kx p 34, 37 

Dangleisli v. Tennent 98 

Davidson, Ke 139 

Davidson, Herney v 46 

Davidson v. ('halniers 60 

Davidson v. Napier 116 

Davies, In re, I'^x p. Williams . . 112 

Davies, (Mord v 110 

Davis, Kx p 109 

Davis V. Snell 73 

Davis V. Williams 13:^ 

Davison, Kx p 71 

Dawson, Cary v 110 

Deacon, Kx p., In re Deacon. ... 90 

Dean. Carter v 35, 37, 39 

De B.'.tciuiere, Bnnowes v 110 

Dechapeaurouge, Kx p 71 

Demartos, Worsely v 48 

Denew, Kx p 39 

Denew, Carman v 37, 38 

Denny v. Hancock 139 

Dering, Ex p 35 

DeSilva, Smith v 116 

Dew, Brewer v 60 

Dowdney, Ex p 40, 43, 54 

Dickenson v. Bunnell 95 

Dicker, Payne v 76 

Dickson, Bice v 126 

Dillon, Bailey v 95 

Disputed Adjudication, Re . . 45, 48 

Dobaon, Ex p 151 

Doddesworth v. Anderson 38 

Dodds, Hood v 98, 136, 139 

Dodge & Budd, In re 113 

Doe V. Andrews 100 



I PAOR. 

Doo V. Revnn UK) 

•* V. Keeling ',VJ 

" V. Lawri'iice 40 

" V. iN.w.U |(H» 

" V. Smith 100 

Dornford, Kx p 151 

Dmglas, K.-, Kx p. HnowbaW .. 40 

Douglas, Htnry v 112 

I tnnelas, Mai'kay v 143 

Dowlinir, r ml v 35, 36 

Down, Fowler v (JO 

Downes, Kx p 114 

Doylf, Kx p 71 

I)rake, Ik-ckham v ()0 

Dredge v. Watson 83, 93 

Drew, Fonnan v 45 

Dufaur, Re 58 

Dufrene, Ex p 47, 52 

Duniius, Kx p 61 

Dumble v. White 69 

Dummett, McLean v 39 

Duncan, Rivas v 35 

Duncan v. Smart 34 

Dunn v. Dunn 112 

Dutton v. Morrison 43, 48 

Dutton, Tomlin v 90 

E. 

Eager, Cameron v 76 

Eat<m V. Shannon 55 

Eckhardt v. Wilson 48 

Edmarson, Craven v 146 

Edmonstone, Secretary of State v. 35 

Edwards, Ex p 35 

Eflwards, In re. Ex p. Barron . . 133 

Edwards v. (iljni 146 

Eilwards, Simmons v 143 

Egyptian Trading Co., Ex p., In 

re Kelsor 114 

Elce, Ijancaster v 92 

Elliott, White v 60 

EUis, Ex p 59 

Ellis, Hopkins v 43 

Ellis V. McHenry 95, 129 

EUiscm, Surtees v 43 

EJmslie & Co., In re 108 

Elston V. Rose 64 

Elton, Burroughes v 96 

Elworthy, Crossley v 141, 143 

Emary, Rixon v 90 

Emerson, Ex p.. Re Hawkins . . 62 

Emerson, Johnson v 50 

Emery, Ex p 36 

England, Quantrock v 54 

Eurojjean Central Railway Co. v. 

Westall 91 

Evans v. Brown 60 

Eyre v. Birbeck 61 



T.18T OP CA8E8. 



six 



F. PAOK. 

Fihoy V. .Toi-kHon 3r> 

Kair \ Itiiist, lUs HI 

Fairii.l.l, Wriglit v (JO 

Faliiiniitli V. IVuroiH) 10/ 

Famll V. uNiill ».') 

Fehlinrin. Marks v 148 

Fuiitnii, Trufiniui v 0.') 

Ffsiiiiiu'VtT, Kiliuson v 14t» 

Finch, Kx p IKi 

Fiinlljiy, N'an Waj^iuT v 11*2 

Finniiigliaiii v. Maud 108 

FiaiitT, Kx !»., lit re Axh 4(> 

FisliLT V. IWII yj 

Fit/.|iatrii-k v. llourue 91 

Fleiiiiiiu, I'.'tt IS V 31> 

FK'trlur, llarinaii v 46 

Flint. Kty v 120 

Fluok V. Joufs 14.') 

Fli.wtr, Kx p 108 

Flower, llidfe &, I'ank of Austra- 

liusia V 11.1 

Fo«.r.l, Kx p 4.') 

Foote, WimmU V 5>2 

For.lv. Olilii 142 

Foriiiaii V. Wren 05 

Fowler V. Down 00 

Fowkr V. I'iwlget 43 

Fox V. Hanlmry 1 1(! 

Fox, \Vel>U V CO 

Foxley, Kxp 147 

Franks, Kx p .39 

Fraser, In re 1)8 

Fraser v. licvy 40 

Freein.in, Colkett v 4.3 

Freeman v. I'eniiugton 70 

Freuniiui v. I'ojhj 46, 143 

Frere, Ex p 59 

G. 

Gale V. Halfiinight .37 

Oallimore, Kx p 36, 37 

Gann v. .Tohnson 139 

Gardiner, Kx p 36, .39 

Garland, Ex p 40 

Garland. Lester v 142 

Garratt & Co., In re 91, 151 

Garratt, Allan v 91 

Gass, Re 146 

General Roiling Stock Co., Ro . . 108 

Gibbins v. Phillips 46, 145 

Gibba, Ex p 36, 38 

Gibson & Short, Re 34 

Gibson v. Bray 61 

Gibson v. King 36 

Gibson v. Thompson 37 

Gibson v. Tring 47 



rxnr. 

Gilimm, (Jrcsty V Ul 

(iil^on V. ItouttH 146 

(iiddin^'H V. Penning 91 

(Jill»crt, a-ut-s V 1U8 

(iiilM-rt V. Lewis 7fl 

(Jirling. Weils v 54 

(iithy, Tr.ii^hton v 89 

< ilatiti !i KUiott, Kx p 87 

( lien, Kx p 90 

(Jlyn, Kdwards V 146 

(ilyn, I'lit.uid V 140 

(ioid.mnid v. C.ixenovo 113 

(lolloj^hy V. (iraliam 98 

(ioildricke V. Taylor 146 

(Idoilmtn, Miiekav v 95 

(Juodtitlo V. N..rth 108 

Goodwin V. Noble 100 

(Jonlou, Austin V 95 

Gordon v. Uos.s 113 

( iordon V. Vcuing 144 

(iore V. Lloyd 47 

( ioring V. Warner 100 

(loss, Robertson v 90 

(touth watte Kx p. . 50 

(Jrixham v. C'hapman 4n, 146 

(Jraliam, Gollogliy v 98 

( Iraliain v. Mulcaster 1 16 

Grant, liailey v 40, 52 

(Jrant, Ingliss v 38 

Grant v. Mills 112 

Gr.ay, Holt &. Ue 86, 88, 150 

Gr.iy V. Leckham 109 

Great Western Ry. v. Mason . . 107 

(Jreen, Loa<l v 61 

Green, MuUett v 61 

(Jreen, Isaacs v 91 

(Jreen v. Swan 93 

(Jreen, Stephenson v 95 

(ireenberg v. Ward 91 

Greenough, Ajx^thecaries Co. v. . 34 

Greenway, Ex p 54 

(Jregnier, Kx p 71 

Gresty v. (iibson 91 

Grey, Ex p 71 

Grihble, Martin v 90 

Griffin, lientley v 39 

GritHth v. Brown 102 

Gnffith.s, Kx p 107 

Griffiths, Lord Mostyn v 35, 36 

(jrrimsdale, Ex p 71 

Groom v. Watts 145 

(rrovea v. McArdle 64 

(jJrumniitt, Ex p.. Re (jrummitt, . 87 

Grummitt v. Grummitt 87 

Gunmow, Belcher v 47 

Guthrie, Hewison v 125 

Gwynne, Holroyd v 37 



XX 



INSOI.VKNT A( T Ol' ls75. 



H. tfAOK 

HjiIkIi. Mjiw.I.ii V 98 

II:iil:Ii, K.iuiu>ii v 41 

liul.Uii. Archik-ild v., m, ll.'t, \X\ 

HI 

Hale V. Small 3.'. 

Hiiltknight, i ;alo v .'{7 

Halifax, K\ p 43 

Hall. Kx p »8 

Hall, Th.miiut v. . .14. 37, 58, \)% 13(1 

Hall. It«-, K\ |>. K'Hku II 'J 

Haila^'liaii, Itniiiclliu V *Xt 

Hall.tt, Shar|. v 7« 

Haiiiiltuti, ll;t;rwi'll V 4(> 

Haiiiiitnii V. \W\\ (il 

Haiuiltoii, Lixton v 70 

Hamilton. Miumhi v 102 

Hiimmoiui. Kx p 37, 35> 

Ham|»xoii. Kx |t 117 

Haiilxiiy, Arlxiuiii v 4<i 

Haiil»ury. Fox v 110 

Hano«H'k, iKiiiiy v 1,S» 

Hancock v. llaywtMNl 110 

Hantonl. .lonen v Lll 

Hanki-y, Vernon v 12i» 

Hanson, Metealfe V 1 10 

HarU-r. .Ione» v 40, 147 

Hanlcaiitle, Turner v .SO 

HaiMling, Ex p 10« 

37 

108 

30 

40 



Hare, He 

Haignive*, Powlcs v. 

Harnian v. ClarkiMm 

Harnian v. Fletcher. , 

Harris v. Rickett 45, Hf) 



Harris, Bank of Australasia v., 



141 
147 
140 
151 



Harrison, Alton v 143, 

Hain^on, Kx p 

Harrison, Tuer v 145 

Hart. Uiiv. 40 

Hartshorn v. Slcnhleu 145 

Flarvey, Ex p 37 

Haselgrove v. House 89 



98 
59 
45 
02 



Hawilen v. Haigh 

Hawke, Langley v 

Hawker, Ex p.. In re Keely .... 
Hawkins, Re, Ex p. Emerson . . 
Hawkins, Chesterfieltl Colliery 

Co. V 91 

Hawkins, Kitchen v 90 

Hay, Chenowet v 43 

Haycock, Rose v 45 

HayJeu, In re Ill 

Hayes, Ex p 108 

Haywood, Hancock v 110 

Heaue v. Rogers 35, 30, 38 

Hcany v. Birch 37 

Hearmann v. Barb<:r 38 

Hegan v. Jones 137 



H.nlry, I'aym^ v 141. 147 

Henly v. Mayor <»f l.ynM 133 

Mt'iiry V. iKmts'laa 112 

Hti III It V. Saver «Ht 

Hfiiialian, Titeker t W 

HewiMon V. (liithriv I2.'V 

Htwit V. .Mantel 70 

Hiilson V. Kirelay !»2 

llif,'K'iiil>otli.un V. Holmo 143 

Hit%'inH, Exp 71 

HimtihH. .Mar>h v 1>2 

Hi^'limore V. MoU«»y .. 34 

Hill. Kx j. KM 

Hill V. Nl.M»ro 137 

Hint<in, Kx IK 113 

H itrluMick V. Seilgwick 38 

HoMitm.He, Kx p 108 

HoIkhoii V. ll;l!W 108 

Holmon, Butler v 64 

lloi'kin, TaiH! v 48 

lloilg. H, iwiton V 31» 

Hodgson V. Siilney 00 

HotLson V. Smith 13S 

Hong, Kc 48 

lloL'k'arth V. Taylor 90 

Holhuiil, ('anien>n V Wi 

Hollan.l V. I"..le 100 

Hollin^'H, New|)«»rt V 01 

1 lolliiigworth, Took« r 60 

HoUoway. Re 43 

Holme, Hig,L,'inlM>tham T 143 

Holrov<l V. (fwvnne 37 

Holio'v.l V. Whitebea.1 44 

Holt it (iray. Re 86, 88, IfiO 

Houestede, I'liillipa T. 46 

Ho<..lv. l>o.l.ls 98, 130, 1,?9 

Hooil, Kives.-»y v 61 

Hoc»per V. Smith 45 

Hope, Mutual Life A«itranoe 

Co 156 

H.)pe, T>T. 11 V 142 

Hopkin.s V. Ellis 43 

HopjKT V. Richmond 52 

Hour V. Baker , . 61 

House, Haselgrove r 89 

Houstim, Exp, 108 

Howard V. Crowther 60 

Howanl V. Jemmeit 60 

Howe, In re, Ex p. Brett 114 

Hughes, Nireb v 35, 3!> 

Hume, Me< Iregor v 148 

Hunt, Ex p 43 

Hunt V. Mortimer 145 

Hunter, Ex p 107 

Hunter, Bulnier t 143 

Hurst, Re 114 

Hutchinson, Meyera ▼ 138 

Hulton V. CratweU 45, 146 



LIMT OP CABK8. 



XXt 



I. rAQi- 

Ililfrton V. r.ixtri'iue 91 

lltUit-.i. V. .I.w.ll UI 

lUiiiKwortli. 'riioriitoii v 'M 

InxliHH V. < iniiit liH 

liiiiiiiii, Itc 87 

Irflim.l, AMri.!t:e v 43 

iHaiicM V. < irtvu 91 



J. 

Jackiiian V. Mitrlu-ll .... 

•Iiicksuii V. Itowiiian 

.liukHiiii, K;i!u V V 

•IttckHiMi, ( 'ruiiiltie v 

Jacdii, Whitcuiiiit V 

Jat'olis. ( 'tirtiji V 

.laeolismi v. l.;viiilK-rt . . . . 

•JaiiU'H, ( 'iirtuii V 

Jaiui'.Huii V. Kirr 

•Farvis, SuiiiuiLnivtt v 

Jny, Wiilir V 

JeiniiKit, Howard v 

Joilllillu;4, ilrnokd V 

Jewell, llili-rtoii V 

JohiiMon V. Knivntiin 

JnhiiM'iii V. < >sriit<>ii 

J«t|iiiHi)ii V. Sjiiller 

.lolm V. Skatte , 

Johii.sdii, Kx i> , 

Johnson, Itiuiner v , 

Joliusoii, (Jaiin V 

Joliiisoii V. Kf.HiiiiiK'ytT . 
Johnson, Chuixhor v. ... 

Johnson, Kx \> 

Johnstone, Kx p 

Jonts V. Harl)c'r 

Joins, Kuwi.s V 

Jonis, Hcgan v 

Jones, Fliiok v 

Jones V. ifanfnnl 

Jowett, WimhI V 

Joy V. Canipliell 

Julius, Wethercll v 



.. 4«, 



142 
14» 

;c» 

00 

1)1 

43 
VMl 
37 
lUS 
UO 
UI 
UI 

r»o 

U2 
107 
107 
108 
lOS 
13U 
|4«> 
14U 
1.'>I 

43 
147 

U.-) 
137 
14r) 

(il 

UO 



Keeling, Doe v 37 

Keely, In re, Kx p. Hawkc .... 4.") 
Kel.xon. In re. Ex p. Egyptian 

Trading To '. 114 

Keinphill, In ro 77 

Kenneilv v. Smith 35 

Kent V." Ililey 143 

Kent V. Thomas 110 

Kent V. Tomlin.son 90 

Kerakoose V. HriM>ks 89 

Kerr, Jainiesou v i:i3 

Kerr, lloyal Cau.-idian Bank v. . . 140 

14(5, 1 18 

Kevan v. Mawson 45 



rtoK. 

Kev V. Hint !*-» 

Kifl..e, .Mian v 116 

Kilnrr. Kx p 44. 48 

Kinijiton, iWown v I4fl 

Kinder, NNilliaum \ . .* 76 

Kinj^, ( iiltxon v 36 

Kin^' V. SitnmondH 96 

Kin^' V. < 'ole 39 

Kin>;, Kx p., Uiehmonil Mill 

Hotel Co 90 

Kiii« V. Smith US. |>7 

Kirney v. Smith 'W 

Kiteh'en \. lUrts-h tiO 

Kitchen y. Ilawkina 90 

Knijiht, .Addis v 116 

Knight, ThompMon V 90 

Kreitchnian v. Ileyer 76 

L. 

Lahertouehe, I'antou v 1.18 

liju'on y. Litlen 146 

L:itom-, Latliaui v 91 

Kami), lie 8I». IJO. 123 

Kami., .Marshall V 45, I4.\ 149 

Kamliert, Jaeolison V 91 

Kaniphire, ( 'liapman v 35 

Kaneaster v. Klee !*2 

Kaiij^ley y. Ha\yke 50 

Kanu'Htidle, l!e 122 

Kariviere, lie 1 18 

Karpent v. Hihhy 92 

Larne, May y 04 

Lilham y. Kafone 91 

Litoueht;, Itylands v 76 

Katta. Ue, Kx p. Uoyal lUnk of 

Australia 155 

Liiyender, Kx p 37 

Kayie y. Phillips 39 

Law y. Skinner 45 

Law, J(»ury y 91 

Lawrence, lie 130 

Lawrence, Batchelor v 108 

Lawrence, Doe y 40 

I^awrie v. .MoMahon 139 

Lawsou Bros., In re 92 

Layton, Manstield y .37, 38 

Tioader, Hannatyne v 46 

l.A;amy, Mcl!ready v 64 

Lee, kx p 54 

Lee V. Hart 46 

Lee V. Oldinu 61 

Lees y. Whitely 48 

Leigh V. Pendlelmry 92 

Leonard \. Baker 95 

Leroche v. ^\'akeman 60 

I^.ster V. f Jarland 142 

I^yett, Exp 1 16 

Lewis, Kamshottom v 44 



XXII 



1N«ULVKNT ACT Or IITA. 



Ijt'win. (JillMTt V "jn 

Ia'W ii» V. .lime* «.•.% 

Ih'Vv, KiiiMi !• V 44( 

l,i<l<'l.'ll, KoImtUuii V 4:1 

iJU'cil, l^iriiti V 1441 

hilliui'iic, l!i- 4<'t 

Ijik'imi v. Sliarp 4'>, 4H, I4<i 

l.iii>.'liiiin V. I((7,'gii (W 

liitti t Ill II' 37 

liivi'MJvy V. H(M>il 01 

liloV'l, <i'>ic V 47 

M..V.I, M.Cnitli V JH 

l.hiini C.i.il * lroii('(» 107 

Ijtiiul V. (imil Ill 

Loltl.lN V. hlixtuil I I'.l 

liOiiiliiii Si I'roviiiL'inl Telegraph 

«'..., In 10 4iO 

liOiiK. I'"x p 451 

l^inl MiiHt.vii V. (irillitliM .... 3r>, 34i 

liOWiliMiH Scttli-iiieiit, Itu UO 

l.»)\vi', Wliitfikir V 90 

Low iiiIl'h v. 'raylnr Hi 

liiK'c, Moitru ^:, Ku 74 

Lucky. City Hunk v KW 

Liiptoti, IkiunstU'ii V 14!) 

liUxtoii V. Iliiiiiiltoii 70 

Lyiiili. .Miitli. iH V 144, I4H 

Lyun, Viiriiiifiton v Cu 

Lyouri, Uu Juli;i 3U 

M. 

Maco V. {'!i.lell 142 

.VliurFiirliiiK!. l{c Gl, «W 

Mackay v. Itiiinsay .'{.'> 

Markay v. ( looilhon !).'> 

Maokay v. Douglas 143 

Mackfii/.io, lie i>8 

Macklcy v. I'attt'iidi-n UK) 

Maclean v. I hininiutt ... X) 

Maguu V. ivaiikin UK) 

Magciinis, i']x ]> 37 

MajoribankH, Kx p 146 

Mann, liolnois v 91 

Mantel, l>il)l»ins V 76 

Mantel, llewit v 76 

Marks, In re 151 

Mark.s v. Feldnian 148 

Marsh v. Uiggin.s 9*2 

Marsh v. Sweeny 145 

Marshall, Re 36 

Marshall, Exp 48 

Marshall v. Hnttan 39 

Marshall v. Lamb 46, 145, 149 

Marshall v. Uarkworth 48 

Martin v. Nightingale 38 

Martin v. Willyains 4,' 

Martin, Tlmnias v 51 

Martin v. Gribble 90 



Mnrtiinruil, lleilrumi v KIH 

MniMtii, ( 'tmU't V (iO, 01 

.MiiMoii V. Ilainiltuii lO^ 

Mii««iii V. <;. w. u. Co, 107 

Mii»«»i«', Slinw V Sli, 93 

.Mntlieiit V. Lynch 1(1. I IH 

MnthcH K. r. Hank v. , 4H, .'.I, 55 

Mattlit Mm, sharp v 14, M 

MiitthewH, In It', Kx p. Chcrrv.. 

\-M, IIS 

Mnttiuw?*, Kn 11 1 46 

Miunl, Kerningliain v KIH 

Mamie, Kx p., Ke Itrnginton. ... 116 

Mai..le. Wright v 67 

M.'Mir. Mx p 43 

.M.uiHon, Kevaii v 45 

ViJiy V. Lirne M 

May, .Mu( kl'iw v 43 

Mayo V. .\reher 38 

Mjiyor of Lyme, lleiily v 133 

Mavon, Kx p 40 

Meiir. Kx p 39 

Meillieiit'H ( 'ase 54 

Meggott V. -Mills 43 

Melhourn, Kx p 77 

Mellon V. NieholU 38, 75 

.Men.lel, Kx p 71 

Mereerv. IVterson ... 44J, 14'J, 116 

Merrick v. Sherwood .'{9 

Metcalfe v. Hanson 110 

Mew, l!e, Kx p. I Mall 87 

Meyers v. Hntcliin.son 138 

Meyniot, Kx p 38 

Mieliie, Con verse v Ill 

Middleton. Waugh v J)*-' 

Mi*lland Banking Co. v. (.'ham- 

Ikts 113 

Miles, Kx J. 73 

Milliken V. Brandon 38 

Mills, Buvelotv 91 

Mills, (irant v Il'2 

Mills V. Hughes .3."), .39 

Mills, Meggott V 43 

Mitchell, Kx p 58 

Mitchell, Jackman v I 12 

Mitford V. Mitford 112 

Motlatt &; Sheriff of York, Re .. 121 

Molinenx, Ex p 71 

Molloy, Higlnnore v 34 

Montreal Ins. Co. v. MeOillivray 36 

Mootly, Stewart v 45, 48 

Moojen, Motion v 76 

McM.re, Hill v 1.37 

Moore V. Liice 54 

Moreland, Ex p, 71 

Morgan v. Steble 60 

Morgan, In re 102 

Morgan, Ex p 91, 92 



un or 



xxai 



rM>K. 

Moru'in, rtiiln'rU v ttA 

Mor^MIV. lilliMlaH 100 

M«)rg:iii V. |tniii<irett 146 

Morli-y, UiiliertMoii v 45 

Moi rix, Kx p 71 

M«iri'ii>uii, Kx i» Ad 

MorriK. II, l»u?toii v 4n. 4S 

Morriaoii. Kx {i., llv L'lunu. ^a, 130 

MorMf. Kx II 71 I 

Mortiiiifr. II nut v 14.> 

M«MM, III ru l>l 

M«>.HM, MiilUr V (Ml 

Motion V. Mmtjon 7*J 

Moiilo. Kx p 37. ay 

Moult. Kx p il:{ 

Mu< klow \ . May 4;i 

MiilcaMtcr. < iruliaiQ V I Itf 

MiilUr V. M0.H8 tiU 

Mullitt V. « ;m;n 61 

M11II1118, Whorler v 76 

Miiiiironl, Kx p 107 

Miiiiifonl, Kainlall V 76 

Murray, \V«MHllumsv v 46, 147 

Mutrie, Kx p 44 

Mutton, Kx p.. Re Cole 62 

Mc. 

Mf Anile, < Jn.viH v 64 

MfUuri'.ifs Tnistu, lie 143 

Ml-< 'all, AdaniH v 14o 

Mf< 'riM<ly V. lA'.-vmy W 

Mcl>oiiiii-ll, MrKfUzie v 7t» 

Mctiillivray, Montix*al Insarance 

Co. V 3«i 

MH iruth V. I.loytl 35 

Mel iivgor V. Hume 148 

Meiinirk, M<-U«h1 V 102 

MeHeiiry, Kills v OH. 129 

Mcliiiiis V. Brook 5«), '>1 

MeKeiiziu V. MoDonnell 76 

McUmn V. Ik*xter 91 

McUan V. Mclxllan 98 

McLellan, Melx-an v 98 

McIa.mI v. Mc< ;uirk 102 

Mclxo 1, Mc-guire v i:« 

MeMahoii, I^axvrie v KW 

Mc( >\van, Stevenson v 136 

Mc(^nirc v. McLeod 133 

MeiUe, In re 92 

McWhirter, Bank of Montreal v. 141 

MeW hitter, Burke v 133 

McWhirter v C. Banh 146 

MoWhir. r v. ^nnme 14.'», 147 

McWhiritr v. Corbet 133 

N. 

Napier, Ex p 117 

Napier, Davidson v 116 



TAOK. 

N«.h. Conway y 4» 

Ned V. Smith I '2 

Nwder. Hall ■_ !>• 

Neirim-k^. Kx n !!.». ."w 

XttUrville. Colt V :«« 

Newall. Kx p '^^ 

NtwI.-in.l V. Ik 11 •**7 

Ne\» mark, Ke '•** 

Newiihain V. SteveiiHon 1*^ 

New|Mirt V. lioilin|j;H |»l 

New t^iii V. Newton '^^ 

New t4>ii V. 'VriiHi 37 

Newton V. < haiitler 45 

New U.n V. Ontario Hank .. 140,145 
New Zcalaiitl lianking I'oriMua- 

tion "•'^ 

Nieholls. Mellon v 3H, 75 

Nieliolsoii V. < "iKHKr 34 

XieholwMi, Wiutiel.l V |>2 

NiKiitiiiKitle, Nlartin v 'M 

Nohlc. < mmmIw in V KW 

North K. Kv. <'o., Oxlailo v 108 

North, i ;.H«Uitle v HW 

North, Parker v I<>7 

Nuniitt V. ( 'arter • ■*>* 

Nunn. WilliaiiiH v 3H, 44 

Xutt. Kx p :J7. 40 

(). 

O'Brien v. Currie '^9 

nffonl V. l>avie» HO 

«»!.!.„. K„r.l V 112 

oMiug, l^e V <Jl 

< Jlilis V. Aniiston •*2 

t <>'l>>^hlen. Kx p '^8 

> O'Neill. F.irrell v »5 

I (hitario Bank. Newton v. .. 137, 145 

i «>K«ilIy V. Il4.3e 103 

Oriental liaiik v. Coleman 45 

I OslMimc. Kx p '^'i 

i < htlxirne. Silk v <M> 

I Osi-nton. .Johnson v. . ^ 

, Oulton Bros., In re 1*^ 

threns. lie i:W. 1.39, 144, ir^O 

Oxlaile V. North K. Hy. Co. . . . 108 

! P. 

I Pailpet, Fowler v 43 

Painter. Baker v 02 

Palmer. Antlrewa v. . . 76 

Palmer v. Baker 95 

Pant^^m .*. lAl>ertouche 138 

P.-»l>illon. Bucklanil v GO, KKl 

Parker v. Norton 107 

j Parker. Wells v 39 

I Park\-ns, Ex p 34 

; Parr, Be 86, 138 

; Parsons, Be 37 



XXIV 



INSOLVENT ACT OF 1875. 



PAnR. 

Palninr v. Vauf^han 37 

Patten v. lirowno 39 

PatteiKloii, Macklty v 100 

PatttTBon, Wiiiilhain v 44 

Patel V. Dowling Sry, 3ti 

Payne v. DicUcr 70 

Payne v. Hendry 141, 147 

Peaeh, Watson v 61 

Pearse, Ite . 87 

Pearson, Ex ]) 71 

Pearson, J^rooke v 142 

Pell, Balden v 92 

Pendlehury, l.eigli v 92 

Penbill, Colinnhine v 34, 143 i 

Pennell v. IJeynolds 45, 140 I 

Penning, ( biddings v 91 

Pennington, Freeman v 70 

Penrose, Falnioutli v 107 

Pentrequinea Fuel Co., He 124 

Perkes, Exp 72 

Perry v. Chalmers 00 

Perryer, Ex p 71 

Petennan, Balilwin v 121 

Peters v. Fleming 39 

Peterson, Mereer v 40, 142, 140 

Phillips, (Jibhins v 40, 145 

Phillips V. Honestede 40 

Phillips, Lavie v 39 

Phillips V. Pick ford 95 

Phipi)s, Ex p 34, 35 

Pickford, Phillips v 95 

Pindie, Slater v Ill 

Pinkerton v. Koss 37 

Plunier, Taylor v (JO 

Phimmer, In re 113 

Poland V. (!lyn Uo 

Ponsford V. \Vatson 48 

Poole, F:x p 143 

Pope, Freeman v 40, 1 43 

Porter v. Cox 70 

Port V. Turner 34 

Porter, Ex p 48 

Powell, Doe V 100 

Powles V. Hargravcs 108 

Pozer V. Claphiim 34 

Preston, Ex p 39 

Price, Sellen v 91 

Priddy, Ex p 39 

Pulchard, Cook v 140 

Pyke, Re 133 



Quantrock v. England 54 

R. 

Ramsay, Mackay v 35 

Ramsbottom v. Lewis 44 

Ramsden v, Lupton 149 



PAOB 

Randall v. Bowman 112 

Randall v. Mumford 76 

Hankin v. Barnard 142 

Rankin, Mugee v 100 

Hapliail, Binlwood v 125 

Bawling.'!, Be 91 

Bawhng.s, Exp 92 

BawsoiiA'. Haigh 44 

Reed v. Ayton 46 

Re*n\, Ex p., Re Tweddell 46 

Be(;ves v. Watts 91 

Benshaw's Trusts, Be 59 

Bevell V. Blake 64 

Bevnolds, Pennell v 45, 146 

Bhodes, Ex p 44 

Bhodes, Morgan v 100 

Bice, Ex p 124 

Bichards«m, I^x p 40 

Richardson v. Bradshaw 34 

Richmond Hill Hotel Co., Re, 

Ex 1). King 90 

Riclimond, Hopper v 52 

Riokett, Haj-ris v 45, 145 

R idgc, Ex p 36 

Riley, Kent V 143 

Ptivas V. Duncan 35 

Bixon V. Emary 90 

Bolierts, Ex p 73 

Roberts v. Teasdale 51 

Roberts v. Morgan 95 

Roliertson v. Liddell 43 

Robertson v. Morley 45 

Robertson v. (losa 90 

Rol)son V. Warren 95 

Rocke, Ex p.. Be Hall 112 

Roe V. Royal C. Bank 01 

Roe V. Bank British N. America 01 

Roe V. Smith 144 

Roebuck, Gumming v 00 

Rogers, Heane v 35, 30, 38 

Rogers v. Spence 00 

Rolfe & Bank of Australasia v. 

Flower 113 

BoUe, Royallv 01 

Romellio v. Hallaghan 95 

Roots, r:x p 90 

Rose V. Haycock 45 

Rose, Elston v 04 

Rose, Blamberg v 91 

Rose, O'Reilly v 103 

Rose V. Brown 1 12 

Ross, Pinkei'ton v 37 

Ross, In re ^ 1 1 

Ross, Gordon v 113 

Rossi V. Bailey 91 

Rowe, Ex p 71 

Rowland & Crankshaw, Re .... 76 
Rowles, Sanderson v 38 



LIST OF CASES. 



XXV 



Roy.il Bank of Australia, Kc 

Latta l">r) 

Rnyid r. liaiik v. Kcir, 140, 14(!, 1-4S 
Royal (/. liaiik v. Mathcsou, 18,04,").") 

Royal ( '. Hank v. Roe (il 

Royal ('. liaiik, McWhirtor v. . . 146 

Rovall V. litille ()1 

Rulioril, lOx !> ]r»l 

RussiU's I'olicy Trusts, Itc .... <)() 

Rutlx rfonl, 'rii(tini»s()n v 94, 08 

Rutliu, Marshal v Hi) 

Rutty V. Bcnthall 90 

Rylauds v. Latouchc .... 70 

S. 

Salkdd, Kx p 37 

Santlers, i-^x \) 117 

San<lurri(Hi, J^x p 108 

Sainltr.s()n v. Rowles 38 

Saunders, Hcsford v 95 

Sayur, Herbert v (50 

Solunuk, Kx j)., Re Viner 124 

Scott V. Berry 91 

Scott, Smith V 30 

Scott V. Surnian 00 

Scott V. Tlunnas 44 

Scudaniore, Kx p 48 

Seckham, < iray v 109 

Secord & Sharp v. Matthews. . 44, 54 

Secretary of State v. Ednionstone 35 

Sedgwick, liird v 38 

Sedgwick, Hitchcock v 38 

Sell.v, Exp 151 

Sellen v. I'rice 91 

Shannon, l']aton v 55 

Sharland, l>ircii v 95 

Sharland v. Spencc 90 

Sharp V. Hallott 70 

Sharj), Lindoii v 45, 48, 146 

Sliaff V. Matthews 44, 54 

Sharpc, In re 40, 49 

Shaw, Re 61 

Shaw, Collver v .... 65 

Shaw V. Massie 80, 93 

Sherilf of York, Molfatt &, Re . . 121 

Sherwood, Rarthf)lomew v 38 

Sherwood, Merrick v 39 

Sidney, Hodgson v 00 

.Siebert v. Sjjooner 45, 48, 140 

Sikes, Simpson v 51 

Silk V. Osborne ()0 

Simmonds, King v 30 

Simmons v. Edwards 143 

Simpson, Ex p 45, 145 

Simpson, Bell v 45, 140 

Simpson v. Sikes 51 

Sir Thomas Littleton's Case .... ,37 

Skafle, Johnson v 107 



rAdc 

Skinner, Law v 46 

Slann, Ex ]• 48 

Slater V. I'iu.ler Ill 

Slodden, llartshoiTi v 146 

Slojjcr, Stuart v 35, 37 

Small, Ex p 35 

Small, Hale v 35 

Smart, Duncan v 34 

Smith V. Scott 36 

Smith, Kennedy v 35 

Smith, Kirney v . . 35 

Smith V. Cramer 44 

iSmitli V. Carman 45, 146 

Smith, H()<ii>er v 45 

Smith, Carman v 45 

Smith V. Tomins 48 

Smith, l{e 57 

Smith V. Commercial U. Ins. Co. 60 

Smith, Buchanan v 89 

Smith, King v 95, 97 

Smith, Doe v 100 

Smith, W(Mlev V 107 

Smith, Neal V 112 

Smith V. HeSilva 116 

Smitli V. Hodsou 126 

Smith, Roe V 144 

Smith, P.ills v 146 

Smith, Thuais v 146 

Smith, City Bank v 147 

Snell, Davis v 75 

Snowljall, Ex p., Re Dotiglas. ... 46 

Soames, Ex p 126 

Solomons, l'>eniield v 76 

South Stallordshire Railway Co. 

V. Burnside 109 

Sowerby, Re 124 

SowerVjy, Bolton v 35, 39 

Sowry V. }aiw 91 

Sparrow, Ex p .... 45 

Spence, Rogers v 60 

Spence, Sharland v 90 

Spillcr, Johnson v 107 

tSpooner, Siebert v 45, 48, 146 

Sjiottiswooilc, Ex p 113 

Springett, Re 35 

Squire, Ex p 43 

S([uire v. Watt 48 

Stainsbv, Bettely v 107 

Stamp, Ex p 39 

Stanborough, Ex p 116 

Stancr, Re 86 

Stanger v. Wilkins 146 

StansHeltl v. Layton 37, 38 

Steate, Morgan v 00 

Stedman v. Martumaul 108 

Steel, Burns v 56 

Stephens, Copeland v 100 

Stephenson v. Green 95 



XXVI 



INSOLVENT ACT OF 1875. 



PAdi;. 

StevoiiH, l']x ]) 34 

Steveiiy, Williiima v 35 

Stevenson, Wilson v 1 KJ 

Stevenson v. McOwan 130 

Stevenson, Ncwnham v 148 

Stewart, lie 130 

Stewait V. I '.all 3!> 

Stewart v. Moody 45, 48 

Straeliiin v. liarton 14(5 

Stralian, I'aiil & Hates, He 124 

Stuait v. Sloper 35, 37 

Sunnneiset v. Jarvis 37 

Surnian, Seott v 60 

Surtees, Ex j) 71 

Surtoes v. Kllison 43 

Sutton, Kx {) 64 

Sutton v. Weely 30 

Swan, ( Ireen v 93 

Sweeny, Marsh v 145 

Swinhuine, Wallis v 108 

SydelK)thani, Hx p 3!) 

Symomla, Cobb v 38 

T. 

Tanner, Chapman v 42 

Tape v. Hoekin 48 

Tap]jeiulou v. Burgess 48 

Taylor, J':x j) 40, 50 

Taylor, IJe, l':x p. Crabtree .... 87 

Taylor, (ioodricke v 146 

Taylor, Hoggarth v 90 

Tayloi", ix)wndes v 70 

Taylor v. I'lumer 60 

Taylor, Tetley v 92 

Taylor, Wortliington v 64, 67 

Teasdale, IJoberta v 51 

Tempest, Ex p., lie Craven. . 46, 147 

Tempest, lOx p 98 

Temple, Alderson v 149 

Tenneut, Dangleish v 98 

Tetley v. Taylor 92 

Tetley v. Wanless 90 

ThonIa.s, Re 57, 67 

Thomas v. Hall . . 34, 37, 58, 98, 136 

Thomas, Seott v 44 

Thomas v. Martin 51 

Thomas, Kent v 110 

Thompson, Ex p 71 

Thoini)son, Re, Exp. Wilmot, 90,107 

Thompson, (libson v 37 

Thompson, Whitwell v 46 

Thompson v. Knight 90 

Thompson v. Rutherford .... 94, 98 

Thome, McWhirter v 145, 147 

Thome v. Torrance 112 

Thornton, Ex p 116 

Thornton v. Illingworth 39 

Thornton, Willoughby v 40 



PAOR. 

Thoroia, Exp 39 

Thuais v. Smith 140 

Thwaites, Wood v 43 

Tomins, Smith v 48 

Todert(m, Yale v 112 

Tomlin v. Duttcm 90 

Tomlins(m, Kx p 120 

Tomlinson, Chij)])cndale v 60 

'I'ondinson, Kent v 90 

Tooke, Crosbie v 10(^ 

Tooko v. Ifoliingworth 60 

Torrance, Tiiorne v 112 

Torrance v. Winterbottom 75 

Tread well, Wbyte v Ill 

Tribe v. Web])er 47 

Trigg, Newton v 37 

Tring, ( iibson v 47 

Troughton v. ( Jitley 89 

Truemau, lOx p 116 

Trueman v. Feiiton 95 

Tucker, Hernahan v 89 

Tucker, ^\'arburg v 110 

'I'uer V. Harrison 145 

Turner, Coles v 91 

Turner v. Hardcastlc 36 

Turner, Port v 34 

Tweddell, lie. Ex p. Reed 46 

Tyrell v. Ho])e 142 

Tyrwhitt & Rising, Re 37 

U. 

UdaU, Ex p., Re Mew 87 

V. 

Valentine v. Vau^han 37 

VanCasteel v. Booker 40 

Van Wagner v. Eindlay 112 

Vaughan, Alexander v 38 

Vaughan, I'alman v 37 

Vaughan, Valentine v 37 

Vernon v. Hankey 125 

Veysey, Ex p 39 

Viner, Re, Ex p. Schenck 124 

Vinerv. Cadell 40 

Vizard's Trusts, In re 61 

Vyner, Beruer v 46 

W. 

Wakeman, Herdche v 60 

Walker v. Bunnell 60 

Wallis, In re 87, 147 

Wallis V. Swi'.iburne 108 

Walter v. Adcock 91 

Wanless, Tetiey v 90 

Warburg v. Tucker 110 

Ward V. Clarke 43 

Ward, Greeuberg v 91 



■% 




LIST OF CASES. 



XXVU 



PAGE. 

Waring, Fa- p 108 

Warner v. ruirbcr 4-t 

Warner, ( ioring v 100 

Warren, IJohson v 95 

Watrton, Kx p 31) 

Watson, I'onsforil v 48 

Wathoii V. I'eaohe 01 

Watson, Dredge v, 83, 03 

Watson V. Chiirleniont 98 

Watt, S(|uire v 48 

Watts, Ueuves v 91 

Watts, ( irooni v » 145 

Waud, Young v 40, 140 

Waiigli V. Ansti n 70 

Wangh V. Middluton 92 

Wel)l> V. I'Vix 00 

Weld)er, Tribe v 47 

Weely, Sutton v 30 

Wells V. (Jirling 54 

Wells V. linker 39 

Wensky, Ivv p 48, 140 

West, Ivx p 39 

West;ill, lOuropean Central Kail- 
way Co. V 91 

Weston, Bond v 91 

Wetlierell v. .Tidiua GO 

Wheeler v. :\Iallais 70 

Wliitcourt V. Jacob 00 

White, Dunible v 09 

White V. l':iliott 00 

Whitehead, Holroyd v 44 

Whiteley, Lees v 48 

Whitlield V. Brand 01 

Whitford, Jure, Exp. Came .. 110 

Whitniore v. Claridge 45, 147 

Whittuker v. Lowe 90 

Whittle, He 37 

Whitwell V. Thompson 40 

Whyte V. Trea-lwell Ill 

Wiglield V. Nicholson 92 

Wiggins, Ex p 01 

Wilkins v. Carmichael 120 

Wilkins, Stanger v 140 

Wilks, Ex p 35, 30, 37 

Williams v. Stevens 35 

Williams v. Nunn 38, 44 

Williams v. Chambers GO 

Williams v. Kinder 70 



PACK. 

WilliamH, Tn re 107 

Williams, Ex j)., lie Davies .... 112 

William.s, Davis v 133 

WilHamson, Ex p 38 

Willis, He 109 

Willoiigliby V. Thornton 40 

Willyanis, .Martin v 45 

Wilmot, Ex p., lie Th(mipson, 90,107 

Wilson, Ex p 34 

Wilson, Ke 58 

Wilson, Eckhardt v 48 

Wilson v. ( 'orby 75 

Wilson v. Chisholm 75 

Wilson v. Stevenson 116 

Windham v. Patterson 44 

\\'interbottom, Torrance v 75 

Wisdom, Clark v 35 

\V(>lstenh()line, lie 38 

Wood, He 45 

Wood V. liarker 142 

^Vood, ( 'annan v 140 

Wood v. Jowett 95 

Wood v. Thwaites 43 

Woodhouse, He, Ex p. Morgan. . 91 

Woodhouse v. Murray 40, 147 

Woods v. Foote 92 

Wooley, Ex p 71 

Wooley V. Smith 107 

Worsely v. Demartos 48 

Worthington v. Taylor 04, 07 

Wreford. Ex p 140, 149 

Wright V. Bird 38 

Wright V. Fairiiehl 0() 

Wright V. Maude 67 

Wultf V. Jay 108 

Wydown's Case 43 

Wylie, Bryson v 61 

^V^yudham, Ex p 34 

Y. 

Yale V. Toderton 112 

Yarriugton v. Lyon 67 

Young, Cordon v 144 

Young v. Waud 40, 14(5 

I 

Z. 

Zwilohenbart, Ex p 48 



INTRODUCTORY CHAPTER. 



In the enactment of a bankrupt law the jn-oblem phieed before a 
h'irislature i.s to hohl an even bahmce between tlie ri-'hts of the 
creditor on the one sMc and the ri<,'lits, as well as the misfoi-tnnes, 
of the d(!btor, on the other. The Canadian Pai'lianient has, in the 
Insolvent Act of 1875, restricted the privil('^'<'s of the debtor class, 
and has thus aj»i)eased much of the clamor that was arising against 
the renewal of any insolvency laws. The right Avhich a trader had, 
under the Act of 1809, of making a voluntary assignment, and, of his 
o\\Ti mere motion, casting his estate into bankruptcy, was generally 
felt to coiifer upon him a power liable to abuse. It was only too 
common for a debtor to hold out a threat of assignment as a lever 
to secure extension of time, or comi)Osition of his liabilities, or both. 
In fact, creditors who sought to recover their claims by actions at law 
were continiially met by a threat to assign if they ventured to press 
their legal remedies. Witli the dread of assignments, which most 
creditors feel, there was generally an acquiescence in whatever terms 
the debtor offered. The Legislature has, therefore, made a gi'eat 
concession to the creditor class when voluntary assignments have 
been abolished. 

An assignment may still be made by a trader debtor, but not 
unless and until a formal demand to do so shall have been made 
upon him by a creditor, who must first till an affidavit that he is not 
in collusion with the debtor. A similar affidavit is required from 
the creditor at whose instance a writ of attachment may be issued 
to place an estate in compulsory liquidation. Tlie affidavit against 
collusion is evidently intended to place the barrier of perjury in tlie 
way of a debtor procuring himself to be forced into bankniptcy by a 
friendly creditor, for an improi)er object. 

Hitherto it was no obstacle in the way of an insolvent securing a 
discharge or " whitewash," that his assets wer» utterly out of propor- 
tion to his liabilities. No inducement, therefore, existed for a debtor 
to cease trading in the earlier stages of his difficulties, so that his 






XXX 



croilitors mi,i,'lit roceivo a productivo estate to wind np. ^n the 
eontraiy a too saiii^uiiu^ hope to snnnoiirit niisforttUKSs, or a vain 
effort to conceal them, led most insolvents to persist in tradinij so 
long as any laisiness credit remained. To discourage debtors from 
this iniinonil waste of other people's property, the new Act has the 
following provision :—" Whenever it appears that the estate of an 
insolvent has not paid, or is not likely to realize for the creditors a 
diviilend of thirty-three cents in the dollar on the unsecured claims, 
and snlficieiit account ix not given for the deficiency, the Court or 
Judge may, in its or his discretion, suspend or refuse altogether the 
discharge of the insolvent." (Sec. 58.) 

At first sight this clause might appear too stiingont, becatxse volun- 
tary assignments are abolished, and a trader cannot himself fix the 
date for his becoming bankrupt, and thus assign in time to secure a 
certain per centage as dividend. It has been contended that this 
provision punishes an insolvent for a circumstance entirely beyond 
his control. Yet that cannot be the proper interpretation. If an 
insolvent can sxiccessfully comply with other I'equisites to o)>tain a 
discharge (See sees. 56 and 57 Act of 1875), and his estate pays 
thirty-three cents in the dollar above the expenses of winding up, 
he is primd facie an honest debtor, and the burden of proof of the 
contrary would rest upon creditors who oppose a discharge. If, 
however, an esttxte pays less than thirty-three per cent, dividend, 
the burden will very properly rest upon the insolvent to " give a 
suflicient account for the deficiency'' before getting his discharge. 
No business man should be encouraged to continue trading when his 
assets are only thirty-three per cent, of his liabilities. He cannot 
assign, but he can call his creditors together and give them a state- 
ment of his affairs, under sec. 3, sub-sec. a. They may then either 
agree upon a composition, or take proceedings to place the estate in 
insolvency. If they take neither of these steps, hv' encourage the 
debtor to continue trading to his further loss, it is probable that, by 
showing the course he had taken in this respect, he would be held 
by any Judge to liave given a " sufficient account of the deficiency." 
To guard against any surprise upon creditors by their being separ- 
ately induced to sign a consent to Dischai-ge, or Deed of Composition 
and Discharge, it is now provided that a special meeting of creditors 
shall be called to tfike the proposed arrangement into consideration. 
The proceedings of tliis meeting — even the action of the minority — 



INTRODUCTORY CHAPTER. 



XXXI 



must l)e fullv rojxn-ted to the Judge foi* his infonnution and guid- 
ance, when the application for continuation of Discharg** is hrought 
before him. 

Confinnation of a Discharge was Iiithorto more a convenience than 
a necessity ; biit tuuler the sixty-first section of the new Act it M 
essential, in order to give i-elief from liabilities. Without Confirma- 
tion anv Discharge that may be now obtained from creditoi-s is incom- 
plete! and inoperative. 

Official assignees are now to 1>g appointed by the Governor-in- 
Council instead of by the local Boards of Trade or, as in some ca.sc»» 
by the County Court Judge ; and Writs of Attachment are to lie no 
longer directeil to a sheriii' but to an official assignee, who makes the 
necessary seizure, and transfei-s the estate to the creditoi-s' assignee, 
or if none appointed, he continues the control of the estate. 

An important change has been made by extending the provisions 
of the Act to incorporated trading companies ; although it remain.s 
to 1)0 seen whether the same practice and proceedings apj»licable to 
individual insolvents will prove suitable for companies. Lender the 
English Act of 18G2, a company could be wound up by the Court 
of Chancery at the instance of either creditors or contributories, 
while only creditors can initiate proceedings under the Canadian 
Statute. However, when hostile proceedings in insolvency ai-e once 
commenced against a company they may assign to an official assignee. 
The Act of 1875 hsis not gone the length of providing machinery for 
dissolving a company when its aftaii'S have been wound up, and thus 
putting an end to its corporate existence. If all the cajjital stock be 
paid up, and all the as.sets exhausted in paying liabilities, it would 
be better in the public interests that the corporation should be 
dissolved, than that a discharge should be granted it, which could 
only have the effect of misleading the world. On the other hand, if 
a company, forced into insolvency, should by moans of assets and 
making calls on stock be able to pay its iebts, with liability to calls 
still existing on its unpaid stock — it is only reasonable that contribu- 
tories should have an opportunity for relief by having the company 
dissolved. 

The tendency of the Insolvent Act of 1875 may be deemed, to 
some extent, reactionary in its severity upon the debtor class, yet it 
is leniency itself by comparison with the bankrupt laws of other 
countries and other days. 



xxxu 



1S80LVKNT ACT OF 1875. 



At oiu'o tlif; moat ancu'iit niul the most Hovoro of l)atikni|)tcy liws 
"wns tho code of curly Jiomo. Accor«liii;j to the usual intju-prctation 
of the hiw of tho twelve tahhss the oro(litoi*s of an insolvent debtor 
mi,i,dit, Jifter some preliminaiy formal iti«\s, out his hody in j)iec( s, 
eae'.i of them taiviM^' a share |)r«)iM)rti«>ne<l to his deht ; ami thor,«i 
wliose elenn-ncy forhad this fenM-ious exercise of lei^al lii^hts, found it 
milder and moni i>roHtal»le form of cha.stisement in their |HMvil»';LCe of 
suhjectin;,' the debtor to chains, strijies, and hard laliour, or of 
realizini^, hy a sale of himself, his wife an«l children, into a stsito of 
slavery. Kven in Roman jurisurudence this severity was mitii,'ii.ted 
in favor of debtors who made a complete and fair cessio bonornm iji 
favor of jjjeneral creditors ; and |>ei*sonal immunity from death or 
slavery was accorded to those who made an entire surrt^nder. 

In Scotland, where a most simple and practical system of bank- 
ruptcy is now in opemtion, all insolvents were at one time caU(;d 
Di/h'our.s; and were i-ei^arded as fraudiilcnt debtora. In the bc^ijinninj^ 
of the seventeenth centviry the unfortunate ili/coar was clad in a 
pai*ty-coloured garment, one-half yellow and the other brown, and 
in this attire was exposed, at intervals, upon the public pillory. 
Although this practice long ago fell into disuse, it was not abolished 
by law until 1836. 

The derivation of the English word " bankrupt" is probably cor- 
rectly given from bancus, a counter, and ruptns, broken, the custom 
having been with our indignant ancestors to " break the counters" of 
the insolvent Lombards, who still persisted in trading among them. 
Lord Coke, however, prefen-ed to derive the term from some e(piiva- 
lent French or Italian ex})ression ; and his patriotism induced him 
to add, '* there is little doubt that the name, as well as the wicked- 
ness of bankrupts, was derived from foreign nations" (4. Inst. 277). 

The Lombards did not long enjoy the distinction of being the only 
bankrupts. The Statute .34 tfe 35 Henry VIII. c. 4, was soon passed, 
and was entitled " An Act against such Persons as do nuike Bank- 
rupt." In the preamble the consequences of the evil ensamplo of 
foreigners were depicted in the following language — " Whereas divei* 
and sundry persons, ci'aftily obtaining into their hands great sub- 
stance of other men's goods, do suddenly flee to parts unknown, or 
keep their houses, not minding to pay or restore to any of their 
creditors their debts and duties, but at their own wills and pleasures 
consume the substance obtained by cre<lit of other men for their own 
pleasure and delicate living, against all reason, equity, and good 



INTRODUCTORY CIIAI'TKR, 



XXXIU 



consciL'nce." The ^ruivaiicos lioro iloscrilicil l»y thn wi.sdom of imrlia- 
mont as so prcviiloiit uiulor llciiry tlir Eighth, hoimu i\liiu).st e<iiially 
to porviule society in Victoriii'.s r«'ij,'ii. 

The saino Act (32 (»«'<>. III. c. 1,) wliit'lj iiitroihiced into U|)i)or 
Canada tlio laws of KniJilaiKl, as tlicy stood on tlir; lotli (^ctol)er 
17U2, JUS tho rulo of decision in all conti-ovtM-sifs ivlativo to |»i-(»|H'rty 
or civil riljIit.H, cxccijitcd tho laws n(.s|K'ctin;^ tho niainttMiaiicc of the 
poor, €Hi/t resjtcrtinfj bankrHpts. Th(! only authority of any Kn;,'liHh 
atatutory provisions as to bankiniptcy, or decisions foniidod upon 
that statuto law, consists, tJKM'oforo, in their analoiry to our own law 
on the sulijoct, and tlu^ assistance they thus allord in its interpretation. 

A Itankrupt law was Hrst introduced into Ontario l»y the Statute 
7 Vic, c. 10, entitled "An Act to nipeal an Ordinance of Lower 
Canada, entitled * An ordinance concernintj bankrupts, ami the wlndii- 
istratlon and distribution of their estates awl effects,^ antl to make 
provision for the same object t]a*oui,'h()ut the Province of Canada." 

This Act Wiis assented to on the "Jth December, 1843, and was 
only to continue in force for and (hiring the term of two yeai's, and 
from thence to the end of tho then next ensuing Session of Pailia- 
ment. The certificate, whicli the bankrupt might receive thereunder> 
had tho effect of discharging liim from all debt?; due by him at the 
date of the commission, and from all claims and demands made 
provable under the commission. The provisions of this Act extended 
only to tradei"s, and tho term " trader" was very strictly defined. 

After the passing of this Act, the portion of the community who 
were non-tradere naturally became desirous that they should also 
receive some protection against their creditors when they were willing 
to give \ip eveiything they had to pay their debts. The result of 
this feeling was the enactment of an Insolvency Law during the very 
next Session of Parliament (8 Vic, c 48), whereby a pei-son who 
was not a trader witliin tho meaning of 7 Vic, c 10, might obtain 
at first an interim, and then a final order protecting his person from 
being taken or detained under any process whatever in respect of 
debts due to his scheduled creditors. 

During the operation of the Insolvent Act of 18G4, which applied 
in Ontiirio to non-traders, tlie Act of 8 Vic (Con. Stats. U. C, chap. 
18), fell into ei ire disuse ; ]>ut, as was anticipated, it has been again 
invoked for the protection of non-traders, to whom neither the Acts 
of 1869 nor 1875 apply. 






XXXIV 



INSOLVENT ACT OP 1875. 



While tho Rin!>ru]>t Act was in force, Ix'tween the years 1843 
jind 1S49, there were intmy iiiHt.inces of tnulent exectitin<; assign- 
mciitii for the iN'iiotit of creditors, iit their nMjuest. for the |iur|Mwe of 
avoidiii;^ tho ex|K'iiHe and delay attending; |»n)ceediI^»^ in ljs»nkniptcy. 
And in some of thes<! inxUmces it ha|»|MMietl that, uot«'ithst:inding 
the complete yieldinj^f np of all tlu'ir pr<)|>»»rty by such fnulers, some 
of their ei-eiUtoi-s afterwards decliiud Weiouiiii;; jwrties to such assign- 
ments. These tmdei-H, when the Hankniptey Act wxs no lon>(er in 
force, found that they had, without any eulpuhle neglim?nop, allowed 
tho opfiortunity of takin;» the heneHt of its provisions to |kiss. In 
oitler to afford ivlief in siuli cases 14 *k 15 Vic. c. 116, was |tasaed. 
Its aim wa-s to enablo tradei-s coniing within the al»ovc description to 
avail themselvcH of tho Insolvency Act, 8 Vic, c. 48, in the same 
manner as non tmdei-s niij^ht have done. It tdst> enactwl that tlie 
Final Oi*der gninted tnuler the last nientionetl Act should, as to such 
|>ei*son8, o|>erate as a dischar<,'o of all (h-hts due up to the date of their 
several as.siginnents, as fully and coniplotoly jus a cei-titicate under the 
Bankruptcy Act would liavc! done. This was in adilition to the 
protection affonled by the Final Order a'piinst all process*. 

Tlie Select Connnittoc of tho House of Commons, who were 
appointetl in 18G8 to enquire into and i-eport upon the In.*iolvency 
Laws in force in the several Provinces of the Dominion, thus stated 
the j)osition, at that period, of legislation on the question : 

" In New Bnuiswick there is no bankrupt or in.solvent law what" 
ever, nor .ire there any provisions of law under which the estate and 
effects of a ])ei"son unable to pay his debts can be distributed among 
his ci"eilitors, otherwise than by the ordinary me:\ns of executions 
issued at the suit of those ol)taining judgnient.s, nor, under which the 
preferences and liens to w Inch executions give rise under the common 
law and statute law can be avoided or set aside for the benefit of 
creditors generally. 

" In Nova Scotia an Act is in force for the relief of Insolvent 
debtore, but its operation is limited. It is rather a remetlial measurt?, 
intended to supplement and mitigate the law of imprisonment for 
debt, than a complete system of insolvent or bankrupt law, having 
for its object the discovery and realization of the assets of an insolvent 
and his discharge from liability in consideration of the surrender of 
his proj>erty. 

"This Act, cap. 137 of the Revised Statutes of Nova Scotia, third 
series, permits a person imprisoned upon any writ of meme process. 



iNTRODuiTonr cnAPTnn 



XXXV 



pxocution, or ntUicIiin«-ut, for non-payiijciit <»f monov, isHiiing out of 
tijo rtupremo Court, to |»otitioii for his (ILsc'liaixo. Aiul mjkju complj- 
iiij; with the romlition |n-«wtiilHMl by tho Act, ho hiwa right to obtain 
ati onlor <lis('h;irj,nn«; him fixmi custody, in th«< Huit or proceoiling in 
which tho wurrrmt for hi.s iniprisoniuout i.ssuo<l. These conditionM 
reiuhir ncccshiiry a tliscovory by the Insolvent uiuKt oath of the |»n>- 
purty he |kxs.sc*«>s, an<l of tho debts ho hiis iticurn'il, and ro«|uiro of 
him. a.s a preliminary to his i*olea.se, tlie exoeiition of a deed of iLssi^i- 
nient in trust, for the lienefit of tho (h'l>tor upon whoso suit he was 
arrestotl. Tlio effect of the onU-r for his discharw seems only to 
reh'ase him fram the restniint tipon his lilierty, actually ini])08ed 
upon him in the suit or pif)cecdin,i{ in which the order is maiie. And 
the a8.si<,'nment in trust soems only calculated to ensuiv to the Itcnefit 
of the creditor, who is plaintilf in each case, 

"The Act, thei-efoiv. seems to ulibrd to any creditor cffectivo 
meatis for compelling; payment of the d«!bt due him ; but its tendency 
must bo to imjtede or entirely prevent the distriltution of assets 
among creditors genemlly. And it affoids no means by which, ou 
any conditions whatever, a debtor once insolviiut, can l>e enabled to 
continue his business with any ho{>o of ultiiaato success. 

" Tn tlie Pronnceof Quebec no in.solvent law is in existence, except 
the Insolvent Act of 1804 ; although one of the principles u|)on which 
every system of iKinkrupt law i-ests is a leading feature of its common 
law. The right of tlie cixMlitors of an insolvent to a ju.st distribution 
of his assets among them all, has always been recognized by the Bar 
of Lower Canada ; although the means under the common law of 
enforcing that right, were cumbrous and expensive. The effects of 
the (.lebtor could only be realizcil under execution, and by this pi-ocess 
only the miuimiim price of the goods sold was obtained." 



I' 

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tc 



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kt 
te 

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i*ei 
or 



THE 



INSOLVENT ACT OP 1875; 



A 



38 VICTORIA, CUAP. 16. 



AN ACT RESPECTING INSOLVENCY. 

[Asitentcil to 8th April, 1S75.] 

TTER INlAJEiSTY, by ami with the atlvice and consent i»rcambif. 

of the Senate and House of Commons of Cimada, enacts 
liH follows : 

I, This Act shall ai>i»ly to tnuleni and to trading co- 
partnerships an«l to trading comiKUiics whether inoorjionited 
or not, t'xcvi)t Incorjwrated BiUiks, Insurance, Railway and 
Telegi-aph Companies. 

The following persons and partnerships or companies, 
exercising like trades, callings or employments, shall Ik; held 
to be traders within the meaning of this Act : 

AiK)thecaries, auctioneers, bankers, brokers, brickmak- who are 
ers, buildei"s, caryenters, carriers, cattle or sheep siilesmen, unay'r tiiiH 
coach proprietoi'S, dyers, fiUlers, kee|>ers of inns, taverns, ^^'' 
hotels, saloons, or cotfee houses, Ume bumei-s, livery stable 
keei>ers, market gaiileners, millers, miners, packers, prin- 
ters, quarrymen, sh^ire brokers, shipowners, shipwrights, 
stock-brokera, stock-jobbers, victuallers, warehousemen, 
wharfingers, i)ei-sons insuring ships or their freights, or 
other matters, against perils of the sea, persons using the 
ti'ade of merchandise by way of bargaining, exchange, bar- 
tering, commission, consignment or otherwise, in gross or by 
retail, and persons who, either for themselves, or as agents 
or factors for others, seek their living by buying and selling 
3 



of A( t. 



I'i 



34 



INSOLVENT ACT OP 1875. 



W^ 



m 



I: 



or buying and letting foi* hire goods or commodities, or by 
the workmanship or the conversion of goods or commodities, 
Proviso. or trees ; but a farmer, grazier, common laborer or work- 
man for hire shall not, nor shall a member of any partner- 
ship, association or company, which cannot be adjudged 
insolvent under this act, be deemed as such a trader for the 
purposes of this Act. 

The Act of 1869 only extended to private traders, and to unincorporated 
trading companies and co-partnerships ; and the Insolvent law is now, for the 
first tiriic, made to embrace incorporated companies. By section 147 a special 
procedure is appointed for insolvency proceedings in the case of such companies 
as are not excepted by this section. 

The Insolvent Act of 1864 extended to all debtors, whether traders or not, in 
Upper Canada, but in Ijower Canada included only traders. The Act of 1869 
was confined to traders only ; but that Act did not, in any way, define the term, 
and the definition now given is borrowed almost literally from the English 
Bankruptcy law, where the meaning of the term has been gradually extended by 
the Legislature. The distinction there observed between the classes of traders 
specifically designated and those coming only within the general definition, ia 
this : the persons to whom these specific denominations are applicable come 
within the Act, however little business they may transact in that capacity ; but 
the other commercial classes only come within it if their business holds a 
prominent position iu their avowed means of living (Doria, 113). 

Apothecaries. — .1 vargeon con.pounding his own medicines for the patients 
on whom he attends professionally is not a trader ; but otherw* le, if he sell 
them to any chance customers who apply for them. To establish a trading as 
an apothecary on the part of a surgeon, it is necessary to show that he supplied 
drugs generally to all customers for the purpose of gaining his living, and that 
he did not merely vend them as ancillary to his profession {Ex parte Dawheny, 
2 Dea. 72 ; S. C. 3 M. & A. 16 j The Apothecaries Company v, Greenough, 1 Q. 
B. 799 ; Nicholson v. Cooper, 31 L. T. Rep. 184 Ex. ; Ex parte Crabb, 25 L. J. 
45 Bank). 

Auctioneers. — A party holding himself out to the world by stating to sev- 
eral persons that he was an auctioneer, and occupying an office with his name 
and business announced by a sign, and circulating cards to the same effect, was 
held to be a trader (Ex parte Parkins, 32 L. T. Rep. 50. See Pozer •^. Clapham, 

Stuart, 122). 

• 
Bankers. — It is not material that bankers do not keep an open banking 
house or books, as bankers ordinarily keep them, providing they are in the 
habit of receiving money generally as bankers (Ex parte Wilson, 1 Atk. 218 ; 
Ex parte Bradshaw, Ibid. ; Ex parte Wyndham, 1 M. D. & D. 146 ; Duncan v. 
Smart, 35 Q. B. U. C. 532). As to the manner in which transactions by 
bankers are viewed by the Court, see Be Gibson <fe Sturt (The St. Alban's Bank, 
15 L. T. Rep. 95). 

Barbers.— A barber held not a trader (Thomas v. Hall, 6 P. R. U. C. 276). 

Brokers.— This word includes not only brokers concerned in the purchase 
and sale of merchandise, but also ship-brokers (Pott v. Turner, 6 Ring. 702) ; 
pawnbrokers (Highmore v. Molloy, 1 Atk. 206); assurance-brokers (^ parte 
Stevens, 4 Madd. 256) ; bill-brokers (Richardson v. Bradshaw, 1 Atk. 128; ^ 
parte Phipps, 2 Dea. 487). See also Golumbiney. Penhall (13 Q. B. Rep. 128 ; 
15 L. T. Rep, 189), wh9re it was held that if a person r.epresent to the world 



AN ACT RESPECTING INSOLVEXCT. 



35 



that he receives bills to (liscomit and that such is his usual course of Vjusiness, 
he i3 a l)ill-broker. (See also Re. Parsons 6, L. T. Rep. N. S. 61). Distraining 
brokers are also included (Re Bartlett, 14 L. T. Pop. 404) A man dealing in 
accommodation bills will not constitute a trading as a bill-broker, when there 
is no i)roof that the party had a counting-house or capital for carrying on the 
alleged business (Ex parte Phippsy 2 Dea. 487). 

BiiicKMAKERS. — Before the English statute 5 & 6 Vict. c. 122, the cases of 
Ex parte Burijeas (2 Gl. & J. 183), Heane v. Rogers (9 B. k C. 577), and Paul 
V. DowUtxj (1 M. & M. 267) had established that a brickmaker was not a 
trader, and even now it is held in England that if the bricks be made on a per- 
son's owa. estate and he sell them as a mode of enjoying the natural produce of 
the estate, he is not a trader ; but, otherwise, if he buy the brick-earth as a 
chattel, and purchase the other necessary materials and sell the bricks made 
with that earth (Ex parte Atkinson, 1 M.' D. & D, 308). 

Builders. — This term appears to be limited to those striving to make a profit 
as builders, and does not include parties building upon their own land, although 
they may sell houses when com])leted (Clark v. Wisdom, 5 Esp. 145 ; William* 
V. Stcuens, 2 Camp. 300) ; but when a person takes ground and builds upon it 
as a speculation, he has been held to be a trader, and even a single instance of 
this kind, coupled with an intent to continue, has been held sufficient (Ex parte 
Neirlncks, 2 M. & A. 384 ; Ex parte Wilks, id. 667). When, however, a party 
possessed of considerable property endeavored to increase the value by building 
largely upon it, and took ground upon building leases, such transaction being 
isolated, and not part of a ge eral system of business, it was held not to consti- 
tute a trading (Stuart v. Slopcr, 3 Ex. R. 700 ; Ex parte Edtvards, 1 M. D. & D. 
3; S. 0. 18 L. J. Ex. 321). See also McGrath v. Lloyd, I L. C. Jur. 17; 
Kennedy v. Smith, 6 L. C. Rep. 260 ; Fahey v. Jackson, 7 L. C. Rop. 27 ; 
Mackay v. Rutherford Ramsay, Ind. 113.) 

Carpenters, Shipwrights.— The only two cases upon the subject of carpen- 
ters ai'e contradictory (Kirncy v. Smith, 1 Lord Raym. 741 ; and Chapman y. 
Lahiphire, 6 Mod. 155). It is considered that a carpenter buying the raw 
materials and manufacturing them is a trader, but one who does not do so would 
probably be considered a " workman for hire " within the meaning of the pro- 
viso at the end of this section. 

Carriers. — This term will include a large class of persons and companies who 
carry goods or passengers for him, but railway companies are specially exempted 
from the operation of the Act. (See Lord Mostyn v. Griffiths, 32 L. T. Rep. 
276 n. ; H. M. Secretary of State v. Edmonston et at, 6 L. C. Jur. 322 ; Rivers 
v. Duncan, Robertson's Dig, 226.) 

Cattle or Sheep Salesmen. — The question which commonly arises in these 
cases is, whether the party uses the occupation generally for hire, or by way of 
making a profit upon the market price, or whether he merely buys and sells in 
the way usual with small farmers who may occasionally take a neighbour's stock 
to market and sell them without thereby becoming cattle or sheep *ialesmen. 
(See Mills v. Hughes, Willes' Rep. 588 ; Bolton v. Sowerby, 11 ij-.^t, 274 ; 
Ex parte Small, 2 Wils. C. P. 35 ; Hale v. SmaU, 3 Moore, 6 ; 2 B. B. & M. 
415 ; Re Springett, 2 Leg. Obs., 28.) 

CowKEEPERs. — Most farmers are cowkeepers, and the keeping of cows as a 
portion of the stock on the farm, notwithstanding that the farmer disposes of 
the milk to retail dealers, will not, in all cases, constitute him a trader (Ex parte 
Bering, De Gex, 398 ; 16 L. J. Bank. 1 ; Carter v. Bean, 1 S. Wanst. 64). 

Keepers '>f Inns, Taverns, Hotels, Saloons or Coffee-Hocsbs. — The 
keeper of a private lodging-house who seeks a profit on provisions furnished to 
his lodgers, has been held subject to the bankrupt law as an hotel-keeper ; but 
a lodging-house keeper not proved to have bought and sold provisions is not a 



36 



INSOLVENT ACT OF 1675. 



trader {Ex parte WllL^, 2 M. & A. 6G7). A lodging-liousc keeper merely supply- 
mg coals find candles and tritiing articles, is not thereby a trader ; nor is a 
schoolmaster taking in hoarders ; hut, otherwise, if he take in hoarders not 
connected with his school (Siiilth v. Srotf, 9 King. 14 ; J'Jx parte Birch, 2 M. D. 
& D. 059 ; Gihsun v. Kiiiij, 10 M. & W. G(J7 ; Kiwj v. Shnmiml'i, 12 Jur. 903). 
The word .sa!uoiii is not included in the schijdule to the lOnglish Act from which 
this section is taken. It had Ijeun held under the former Act that an innkeeper 
was not a trader [Harman v. Vlarknon, 22 C. P. U. 0. 291). 

Lime Buhnek^?. — ^It was doubted before tliis class of traders Avcre introduced 
by name whetlier they were not exempt from the operation of the baidcruj)t 
laws, where the lime was manufactured by the occupier of land from the soil 
thereof (Ncivloiiy. Ncicton, (Jooke's V>. L. 8th Ed. p. 71 ; Ex parte Jlkl'je, 1 Hose, 
316. See Doria, 122 ; see Brlekinaktrs). 

Shipwrights.— See Carpenters. 

Stock-Brokers. — The buying and selling by a person of shares for a company 
of which he was manager and secretary, does not coii.stitute him a broker witliin 
the meaning of this section (Ex jiarte Cleland, IG L. T. N.S. 403). Nor will a 
dealing in shares for private friends while manager, for which he received no 
brokerage (Ihld). 

Persons Insuring Ships or their Freights, or other Matters, against 
Perils of the Sea. — These ])evsons have under the former Act been held to be 
traders by the Court in the Province of Quebec (McUiUh^raij vT" Montreal Iiui. 
Co. 8 L. 0. Hep. 401. See Brokers, ante ; and also Ex parte Bell, 15 Ves. 355). 

GENERAL DEFINITIONS. 

The Statute, in addition, states the following general definitions : 

1. Persons using the trade of merchandise by way of bargaining, exchringe, 

bartering, commission, consignment, or otherwise, in gross or by retail. 

2. Persons who, either for themselves or as agents or factors for others, seek 

their living by buying and selling ; or 

3. By buying and letting for hire goods or commodities ; or 

4. By the workmanship, or the conversion of goods or commodities, or trees. 

A trading, to be witliin the meaning of the Act, must be a substantive aiul 
independent trading (Paul v. DowI'ukj, 1 Moo. & M. 2G3 ; Hcanc v. Bogcrs, 9 
B. & C. 578 ; Ex parte Burgess, 2 G. & J. 183 ; Neicton v. Neicton, Cooke's B. 
L. 71 ; Ex parte likhje, 1 Rose, 31G ; Ex parte Gardiner, I Rose, 377 ; Ex parte 
Gihbs, 2 Rose, 38). As when brickmaking is carried on independently as a 
trade, that is, if a man buy brick earth as a chattel, and purchasing the other 
necessary materials, makes bricks and sells them, that will constitute him a 
trader (Sutton v. Weeley, 7 East, 442 ; Ex parte. Bagshaw, 33 L. T. Rep. 276). 
When, however, the alleged trading is ancillary only to the enjoyment of the 
land, it is not a trading within the Act, as if a man dig brick earth upon his own 
estate, from which he makes bricks, and sells them as a mode of enjoying 
the profits of the land (Ex parte GalUmore, 2 Rose, 424). See also Ex parte 
Emern, (4 D. M. & G. 901 ; S. C. D. M. & G. B. C. 379,) and Lord Mostyn v. 
Griffiths, (33 L. T. Rep. 276, n.) But if the owner of an iron mine be in the 
habit of buying ore in large quantities to mix with the ore of his mine in order 
to work it to the best advantage, and to sell the iron so worked up, he is a 
trader subject to the bankrupt law (Turner v. Hardee stle, 5 L, T. Rep. N.S. 
748). Payment by the lessee of slate rock of the worknen employed in exca- 
vating the slates by charging them for tools and gunpowder for blasting, does 
not constitute a trading. It is only a mode of paying wages (Ex parte Cleland, 
16 L. T. Rep. N.S. 403). The lessee of a farm upon which is a lime kiln, who 
digs the chalk from his farm and sells it, is not a trader (Ex parte Ridge, 1 Rose, 
316 J Ex parte Burgess, 2 G. & J. 183). Nor is the lessee of a coal mine digging 



AN ACT RESPECTING INSOLVENCY. 



37 



liis own coal and selling it, a trailer as a coal-owner, he not being a coal mer- 
chant (Anon. 18 L. T. Id ji. 43). Nor is a farmer tlealing witli liis* farm jiroduce, 
a3 hy stilling liis own ilour, i\ tv.ulcr (Stan.iji<ld v. Ldijton, 17 I-.. T. Hop. 20). 
liut ho is u, trador if ho k(^eps a roorii in his house for tlie sale of tlour and pork, 
anil pnrchase and sell {Il>hl). When the buyiiig and selling is merely incidental 
to tlie oocnpation of the party in some non-trading pursuit, and is coniined to a 
linuted class of purchasers, he is not thereby a trailer witliin this section (Carter 
V. Di'tni, 1 Swanst. Ci) ; tHhsnn v. Thoiupotn, 3 Kelt. 4")! ; Sir Thoiniti^ Littleton' n 
case, 1 Vent. 270). A schoolmaster who sells shoes or books for a jn-olit, to hia 
own scludars oidy, is not a trader {V<i foiling' v. Vamjhan, I'eakc, 70; ICC. 
(^hron. 140). The dealing to l)e a trading must not be an iniMilental transaction 
{Ifc Ti/nrfiit am] JUsi)i(/, \k,vin.. Bank. 1'2S ; Doi' v. Kcrfiiiff, 1 M. & S. 5)1) ; Xfw- 
'mi V. TrJf/'j, 1 8alk. 10'.)). l>ut the editor and proprietor of a newspaper is a 
trader (AV Cooper, Doria, Bank. 12!)). The jtublisher of ancMSjiaper buying 
the whole daily impression from the proprietors, re-selling it at a prolit, and. 
bearing tlio loss of such as remain unsold, was held to be a trader (2 MurnhnU, 
23G ; 2' yi-ow, 472 ; see Piuh-rlon v. lio^% 33 Q. B. U. C. oOH). A surgeon who 
conlines the sale of his drugs to his patients is not a trader [Ex ]>nrte Dduheuji, 
2 Dea. 72) ; nor a commissioner of the navy who used to buy stores for the Heet 
and disi)ose of the surphus and refuse (1 Salk. 110 ; Skin. 2!)1) ; nor the tenant 
of a coal mine, or owner of a colliery who buys small articles and sells them to 
his own pitmen (Ex parte Callimoi^., 2 Rose, 420) ; nor an executor of a trader 
disposing of his testator's stock (Ex parti'. Xntt, Atk. 102) ; nor alisherman who 
occasionally buys fish to make up a cargo for market (Ex parte Gnllimore, 2 
Hose, 428. See also, Sammcrsett v. Jarris, 3 B. & B. 2; 6 Moore, 50; 
Heanqi v. Birch, 1 Rose, 356 ; Ex parte SalMd, 3 M. D. & D. 125 ; 1 
Christian, B. L. 49 ; Potman v. Vauijhun, 1 T. R. 572). 

There must be an intention to trade generally, and this is acted upon as 
law to the present day. The question of trading depends, not on tlie quantum 
of dealing, but the intention ; and it is enough it" a man will sell to any one who 
comes to buy (Ex parte Maijeinm, 1 Rose, 84 ; 1 Christian, B. L. 52 ; Cannan 
V. Denew, 10 Bing. 292 ; Ex jmrte Harreii, 1 Dea. 571 ; S. C. 2 M. k A. 593 ; Ex 
parte Salkeld, 3 M. D. & D. 125 ; Gale v. Halfkniijht, 3 Stark, 50 ; Ex parte 
Moule, 14 Ves. 002). A single instance of trading coupled with a general intent 
is sufficient (Ex parte With, 2 M. & A. 667 ; Ilolrnijd v. Gwynne, 2 Taunt. 476 ; 
Ex parte Larender, 4 Dea. & C. 487 ; Ex jtarte Xutt, 1 Atk. 102). The pubh- 
cation and sale of a single work, apart from a general intention of printing and 
publishing, do not constitute a trading (Pe Hare, 34 L. T. Reji. 15. See also, 
Re Whittle, 18 L. T. Rep. 10 ; Ex parte Hammond, De Cex, 93 ; Stanifield v. 
Lay to It, 7 L. T. Rep. 20). 

According to tlie -words of the statute, a trading to be within the Act, 
should be tlie mode by which a livelihood is sought ; therefore every one who 
buys and sells is not necessarily a trader ; nor is a mercantile act, although 
resulting in a profit, alone sufficient to constitute a trading (Neioland v. Beel, 
Holt, 221 ; Ex parte. Atkinson, 1 M. D. & D. 308 ; but sec Stuart v. Sloper, 3 
Ex. Ch. Rep. 700). The true crite!-ion to decide the question of trading is not 
whether the party bought and sold to increase his income, but whether he did 
so to gain his Hvelihood (Ex parte Cromwell, 1 M. D. & D. 158). In reference to 
the occasional purchase and sale of a horse, Lord Eldon, C, said that the law3 
were never meant to attach upon such occasional transactions (Ex parte Black- 
more, 6 Bro. 2 A. ; see Gale v. Halfkniijht, 3 Stark. 56 ; Be L. ICC, Chron. 
87 ; Stuart v. Sloper, 3 Ex. Rep. 700 ; Ex parte Neirincks, 2 M. & A. 384 ; S. C. 
1 Dea. 78 ; Thomas v. Hall, 6 P. R. 175). 

" Persons who either for themselves or as agents for others, seek their living 
by buying and selling or buying and letting for hire goods or commodities." 

The words "-buying and selling," as also the v,-ords "buying and letting for 
hire," govern the substantives " goods or commodities " {Ex parte Cleland, 16 



38 



INSOLVENT ACT OP 1876. 



L. T. Rep. N.S. 403). Government Stock (Ee. WohtenhoTin, cited in Colt v. 
XtUerrill, 2 P. Wnis. .'508) ; or an interest in land, (2 Wils. 100,) has l)eon held 
not to come within the meaning of "goods or commodities " (Cullon, p. 17) ; 
neither are shares in joijit stock companies (Ex jiartc Ckland, 1(5 L. T. Rep. 
N.S. 403). It is doul)tful whether obtaining orders to sell on commission, tlie 
gooils being furnislied and accounts rcnflered by tlic principal, Cimstitntes an 
agent or factor within this clause {Ilcarmdiiii v. Barber, 14 C B. llcp. 583). 

" By the workmansliip or the conversion of goods and commodities or trees." 
Persons who buy the raw materials of trade, and sell them ag.ain under an<ither 
form, or imi>roved l>y the labour of manufacture, were always considered traders 
by the law of England ; such as l)akers, lirewers, butchers, shoemakers, smiths, 
tanners, tailors, nnllincrs, goldsmitlis, locksmiths, nailers, plund)ers, paper- 
makers, &c., wiio purchase the raw mab.rial, and sell for a profit after a certain 
amount of binlily labour has been expended upon it (Eden, B. L. 8). These words 
a})i)ear to have been intrfnluced to meet the case of persons who do not buy and 
sell, and yet have other men's goods entrusted to them, such as bleachers and 
fullers, d\-er3, lacemakers, and stockmakers, wlu) make for others and the like, 
but ilo not include those who use woi'kmanship on goods as part of the profits 
of land, as farmers making cheese or cider (Jlcane v. Hosiers, 9 B. & C. oiiO). 
The addition of the word " trees" to this clause is evidently to render it clear 
that the large class of persons engaged in the manufacture of timber and lumber 
are traders within the Act. 

It has been held in England that it is not necessary that the trading sliouM be 
"in" England. It is suiiicieut if it be "to" England if an act of bankruptcy 
be conmiitted there (Alexander y. Vaiu/han, Cowp. Rep. 398; Doddesworth v . 
Anderson, llaym. R. 375 ; E.o parte Williamson, 1 Atk. 82 ; Williams v. Nimn, 
1 Taunt. 270 ; Hitchcock v. Sedi/wick, 2 Vern. 156 ; Bird v. Sedijivick, 1 Salk. 
109; Allen v. Cannon, 4 B. & Aid. 418; Inijliss v. Grant, 5 T. R. 530. Re 
Ansill Day, 6 L. T. Rep. N.S. 62; Ex parte O'Lorjlilen-, L. R. 6 Oh. App. 406). 
But he camiot be made bankrui)t upon an alleged act of bankruptcy committed 
abroad (Ex parte Crispin, 8 L. R. Oh, 374 ; 42 L. J. Bank. 65 ; 21 W. 11. 491). 

In the case of Mellon v. Nicliolls, (27 Q. B. U. C. 167,) the question whether 
the act extended to a foreigner, neither resident nor domiciled in Canada, was 
raised but not decided. 

A fraudulent trailing, got up to make a person a bankrupt, will not support a 
fiat (Ex parte Dart, 2 D. & 0. 543 ; Ex parte Hall, M. & C. 445, 479). A 
buying in connection with others with a \'iew to carry on a system of fraud, is 
not a trailing, but if a party represent himself as a dealer, buying goods and 
offering goods in exchange, it is a question for a jury whether he did not buy to 
sell again (Milliken v. Brandon, 1 Oar. & P. 380). 

The legality or illegality of a trading does not affect the question ; it has been 
held that a trader may become bankrupt, although he has not taken out a 
license necessary to legalize his trade (Sanderson v. Boivles, 4 Burr. 2065 ; 
Martin v. Niijhiin(jale, 11 Moore, 305). Ev^en a smuggler might become bank- 
rupt (Ex parte Meymot, I Atk. 199 ; Cobb v. Symonds, 1 D. & R. 111). 



• PERSONS NOT TRADERS. 

"A farmer, grazier, common labourer, or workman for hire shall not bo 
deemed as such a trader for the purposes of this Act." . 

Asa farmer a man cannot be an insolvent, but as a dealer in goods he may ; 
but the dealing must not be with farm produce only (Stansfield v. Layton, 17 L.. 
T. Rep. 20) ; it must be a trading distinct and separate from his business of a 
farmer (Ex parte Newall, 3 Dea. 333 ; Cannan v. ^Deneiv, 10 Bing. 292 ; Bar- 
tholomew V. Sherioood, 1 T. R. 572, N. ; cited in Wriqht v. Bird, 1 Price, 20 ; 
Ex parte Gibbs, 2 Rose, 38 ; Mayo v. Archer, 1 Str. 513 ; Cooke, B. L. 67, 69, 



AN ACT RESPECTING INSOLVENCY. 



39 



73 ; Steicart v. Ball, 2 N. R. 78 ; Patten v. Browne, 7 Taunt. 409 ; Anon, 14 
L. '^. Rep. 294; Ex parte Hammond, I)c Gex, 93 ; Welh v. Parkvr, I T. R. 34 ; 
Ex parte Gardner, 1 Rose, 377 ; Ex jmrtt Bunjess, 2 G. & J. 183 ; Ex parte 
Atkinson, 1 M. D. & D. 300 ; Ex parte Deneio, L)e Gex, 598 ; IG L. T. Bank. 1). 

Grazikr. — A grazier is specially exempted from tlie operation of the statute, 
but may be brought within the scope of tlie law as a trader, by one or more 
instances of buying and selling cattle, and with some evidence of an intention so 
to deal generally, or of circumstances from wliich such an intention might be 
inferred (Doria, 138). A drover who is now a trader is one who seeks his living 
by purchasing sheep or cattle, and afte.' depasturing them or not upon the land 
of another, selling them either at the -same place or driving them to another, 
and then selling them ; but a grazier, as distinguished from a ilrover, is a person 
who purchases sheep and cattle to sell again and fattens them upon his own 
land (Doria, 183. See Mills v. Hughes, Willis R. 588; Bolton v. Sowerhy, 11 
East. 274 ; Carter v. Dean, 1 Swanst. 64). 

Infants. — It is well settled by a long series of decisions that an infant is not 
liable to the bankrupt laws (Ex parte Adam, 1 V. & B. 493 ; O'Brien v. Currie, 
3 Car. & P. 283 ; Ex parte Watson, IG Ves. 205) ; because his contracts, unless 
for necessaries, arc void (Chappie v. Cooper, 13 M. & W. ; Peters v. Fleming, 6 
M. & W. 42 ; S. C. r. L T. Rep. 223 ; Thornton v. Illingirorth, 2 B. & C. 824). 
See also, Belton v. ^lodges, 2 Moo. & Sc. 49G ; S. C. 9 Bing. 365 ; Ex parte 
Sydehotham, 1 Atk. 146 ; Whitlock's case, Sel. C. C. 46 ; King v. Cole, Lord 
Raymond, 443 ; Ex parte Moule, 14 Ves. 602 ; Ex parte Watson, 16 Ves. 265). 
There are modem authorities, however, which support the principle that an 
infant may be a trader liable to the bankrupt laws, when he trades and holds 
himself out to the world as sui juris (Maclean v. Dummelt, 22 L. T. N.S. 710 ; 
Ex parte Bates, 2 M. D. & D, 337 ; Ex parte West, 1 Bank. & Ins. Rep. 58 ; 
S. C. 21 L. T. Rep. 277 ; Ex parte Carter, 15 Jur. 984 ; 1 D. M. & G. 212 ; S. C. 
D. M. & G. B. 0. 12 ; 21 L. T. Rep. 108 ; Ex parte Thorold, 3 M. D. & D. 385 ; 
Ex parte Veysey, 3 Ih. 420). 

Married Women. — As a general rule, apart from the enabling statutes, 
which have extended the jjowers of married women, they are not capable of 
making binding contracts, or legally competent to contract (Marshall v. Rutten, 
8 T. R. 845 ; Bentley v. Oriffin, 5 Taunt. 356). But in some cases a feme coverte 
may be considered as a feme sole with respect to her contracts, and sue and be 
sued notwithstanding coverture ; as, for instance, being a sole trader by 
custom, and in every such case she is subject to the bankrupt laws as a trader 
(Ex parte Preston, Green, 8 ; Cooke B. L. 40 ; Ex parte Carrington, 1 Atk. 206 ; 
Lavie v. Phillipps, 3 Burr. 1776). But it has been held in England that a 
conunission cannot issue against a married woman upon a trading prior to mar- 
riage (Ex parte Mear, 2 B. C. C. 266 ; Ex parte Franks, 7 Bing. 762). In 
Ontario the statute 35 Vict. c. 16s. 2, provides that "all proceeds or profits 
from any occupation or trade which a married woman carries on separately 
from her husband, shall be free from the debts or dispositions of her husband, 
and shall be held and enjoyed by such married woman, and disposed of without 
her husband's consent, as freely as if she were a feme sole." And it was said 
by the Court in the case of Merrick v. Sherwood (22 U. C. C. P. 467) that the 
effect of the whole Act was to give to the creditors of a married woman remedies 
against her, co-extensive with those given to her against all persons indebted to 
her, or with whom she may contract. In an American case (Re Julia Lyons, 
reported 10 Can. L. J. N. S. 179) it was held that in a State where the statute 
law makes a married woman, living apart from her husband, liable to be sued 
in aU actions as if sole, she may be proceeded against under the bankrupt law. 
It would seem that a married woman in Ontario, trading apart from her hus- 
band, would bp within this Act, and liable to be made bankrupt. 

Lunatics. — A lunatic may be a bankrupt, provided the act of bankruptcy be 
committed during a lucid interv^al (Ex parte Priddey, Cooke 48 ; Anon. 13 Ves. 
590 ; Ex parte Stamp, 1 De Gex, 345). 



I 



40 



INSOLVENT ACT OF 1876. 



Executors. — An executor, or other person, who carries on business as trustee 
in pursu.ance of the will of a, decoasoil trader, may he a bankrupt in rcaiKict of 
such Imainess (A'j; parh' Garluml, 10 Vea. 110; I'hirrv. Coihll, 3 Eaj). 88 ; Ex 

{mrtc Nult, 1 Atk. 102 ; Ex parti' Ilk-hard-on, 3 Ma(hl. 1.S8) ; but not merely 
)y selling off the deceased's stock-in-trade, although he be obliged to purchase 
articles to mix with it in order to make it Baleal)le {Ex park Nutt, 1 Atk. 102 ; 
Cooke, 78, 79). Sec. 27 of the Insolvent Act of 18G5 ditl not enable the credi- 
tors of a deceased person to ])ut his executors or atlministrators into insolvency 
in their representative character (In re Sharpc, 20 C. P. U. C. 82). 

A man once a trader is liable to the bankruptcy laws until all his debts are 
paid, whether contracted during the jieriod of his trading ( WilloHijhhji v. Thorn- 
ton, 1 Sel. N. P. 175 ; Ex parti' Ih'wdnvy, 15 Ves. 495 ; Ex parte liamforil, 15 
Ves. 458 ; Doe v. Lawrence, 2 Car. & P. 134), or incurred before that time, and 
in no way connected with his trading (liaiUie v. Grant, 9 Bing. 121 ; 2 M. & 
Sc. 193 ; 6 Kligh, 459, appealed to the House of Lords) ; but by the last clause 
of this section infra, no proceedings in li<[uidation shall be taken against such 
trader, based upon any «lebt or debts contracted after he has so ceased to trade. 

It is a question whether the limit of three months after an act of bankruptcy, 
that has been laid down as the time within which })roceedings must be com- 
menced (see below, sec. 8), can be held to apjdy to the case of a trader ceasing 
to meet his commercial liabilities generally as they become due. From the 
moment a trader ceases to meet his liabilities when due, he would seem to be 
committii'g a continuing act of bankruptcy, that is not removed until either 
the debts 'ire paid, or barred by the Statutes of Limitations. 

A trad'.T who has ceased to trade before 1st September, 18G4, cannot be pro- 
ceeded 'jrgainst under this Act. But it is not necessary for the plaintiff 
expressly to state, in his affidavits for the attachment, that the defendant was a 
trader since the act came into force {Bagwell v. Hamilton, 10 U. C. L. J. 305). 

All such pereons, co-partnerships, or companies, having 
been tradei-s as aforesaid, and having incurred debts as 
such, which have not been barred by the Statutes of Limita- 
tions or prescribed, shall be held to be traders within the 
meaning of this Act ; but no proceedings in liquidation 
shall be taken against such trader, based upon any debt or 
debts contracted after he has so ceased to trade. 

This provision was first enacted by 34 Vic. c. 25 s. 1, in order to remove the 
ambiguity of former statutes, which left the meanuig of the word "trader" 
quite undefined. 



As to per- 
sons having 
been 
traders. 



iiiterpieta- 2. The word " County" shall mean a county or imion of 
County. counties, and the word " district " shall mean a district, as 

defined for judicial purposes by the Legislature of the 

Pro\ance wherein the same is situate. 

a. " Official Assignee " shall mean the person or persons 
appointed by the Governor in Council as hereinafter pro- 
vided, to act as Assignee or Joint Assignee under this Act 
in any County or District. "Assignee" shall mean either 
the Official Assignee or the Assignee appointed by the 
creditors, as the context may require. '■ '■■ \ 



Official 
Assignee. 



Assignee. 



AX ACT RESPECTIXG IXSOLVEXCY. 41 

h. " Official Gazette " sluill mean tlie Gazette p\iV)lishcd offlciai 
under tlie autliority of the Goveniinent of the Province 
where the proc(K»ilin^ in Bankruptcy or [nsolvency are 
earned on, or used as the official means of conmuuiication 
between the Lieutenant-Governor and the people, and if no 
such Gazette is published, then it shall mean any news- 
j»api'r i)ublishe<l in the County, District, or Province which 
shall be designated by the Court or Judge for publishing 
the notices re(piii-ed by this Act, 

c. The word " Court " shall mean the Superior Court in Court, 
the Province of Queljec, the Court of Queen's Bench in the 
Province of Manitoba, and the County Courts in the Pro- 
vinces of Ontario, New Brunswick, British Coliunbia, and 
Prince Edward Island, and also in Nova Hcotia whenever 
County Courts shall have been established in that Province, 

and until such County Courts are established it shall mean 
the Cotirt of Probate of that Province. 

d. Tlie word " Judge " shall mean a Judge of the said Judge. 
Courts respectively having juiTsdiction in the County or 
District where proceetlings shall be had under this Act, and 
shall also include a Junior and Deputy Judge when such 

are appointed. 

e. The word " Debtor " shall mean any pei-son or pei*sons, Debtor. 
co-i)artnership, company, or corjKu-ation having liabilities 

and being subject to the j)rovisions of this Act. 

/. The word ''Insolvent" shall mean a debtor subject to insolvenb 
the provisions of tliis Act, unableito meet his engagements, 
or who shall have made an assignment of his estate for the 
benefit of his creditors. 

g. The words " befoi-e Notaries," or " before a Notary," Xotary. 
shall mean executed in notarial fonn, according to the laws 
of the Province of Quebec. 

h. The word " Creditor " shall mean every pei-son, co- Creditor, 
pai-tnei-ship, or company to whom the Insolvent is liable, 
whether primai-ily or secondarily, and whether as principal 
or surety ; but in reference to proceedings at meetings in 
insolvency, to the right of Yoting, to the execution of a deed 
of composition and discharge, the consent to a discharge of 



42 



INSOLVENT ACT OF 1675. 



affectLMl by 
nomiiosi- 
tioD, iic. 



an Insolvent, or niiy other consent or action with regard to 
Astovoting, tJio manajjenient aiid (lisijosal of tlie estate of an Insolvent, 
tiou, &c. the word "Creditor" shall mean a pci*son, co-partnership, 
or company whose unsecured claim.j to an amount of one 
hundred dollars or upwards have been proved in the man- 
ner provided by this Act, and the proportion of claims in 
value requii'ed to give validity to any such })roccoding or 
action shall be formed of all claims so proved, wluither 
above or under one himdred doUara, and of no others ; and 
with regard to any deed of composition and dis<iharge, or 
the consent to a discharge of tlie Insolvent, no creditor 
whose claim is not affected by such discharge shall be 
tors^nr"*''^' reckoned as one of the reciuired number of creditors, nor 
shall his claim be reckonetl as forming part of the pro- 
portion of claims requiretl to give effect to such com- 
position and discharge. For all the purposes of this Act, 
the required amount of the creditor's claim shall be over 
and above any set-off or contra claim of the debtor against 
such creditor, and every affidavit of indebtedness made by 
any creditor shall be constnied as made in this sense. 

By section 118 of the Act of 1869, the majority in value required to give 
validity was formed only of claims above one hundred dollars in the first 
instance, and the votes of creilitors holding claims for less than one hundred 
dollars were not counted unless the requisite proportion had not been oljt.ained 
(section 119, Act of 1869) ; now, all claims, whether under one hundred dollars 
or not, are to be reckoned, except in case of composition and discharge (section 
52 infra. See section 102 and note.) 

i. The word " Collocatetl" shall mean ranked or placed in 
the dividend sheet for sonie dividend or sum of money. 

j. In the case of any partnerehip or any comjiany, incor- 
porated or not, the woixl "he," "him, or "his," used in 
relation to any solvent or creditor, shall mean " the part- 
nership," or " the company," or " of the partnership," or " of 
the company " (as the case may be), unless the context 
requires another interi)ret«,tion to give such effect as the 
purposes of this Act require, to the provision in which the 
word occurs. 



Collocated. 



Partner- 
Bhips ami 
Cumpauics. 



Acts of In- 3 ^ debtor shall be deemed insolvent : 

solvency. i . . 

Acts of bankruptcy are statutory tests of insolvency, upon proof of any 
one of which, together with the other legal requisites, process may issue with 
the view of giving a speedy and equal relief to all creditors (Dor. 151). The 



AN ACT RF.SrECTINO INSOLVENCY. 



43 



»ct of l>ankruptcy and the trading ncc<l not bo contcmiioranfiouR, and tlic former 
may be conunitted after the p.irty lias (-east il t(» trade {Surtmi v. KIUmih, 9 
B. &C. 750; Mnniottv. MdU, I Ilaym. 'JS7 ; S. C. 12 Mod. I.")'.)), pn.vi.lcd it 
is during the ex iHttjnce of a petitioning creditor's debt {Ex part r Dnrdnnj, 15 
Ves. 49."» ; see Ex )>arh' Blrkctt, 2 Rose, 71 ; Watd v. Clarke, M(K). k .M. 497); 
although, under bcc. 2, uiite, no proceedings in litpiidntion shall be taken 
against a trader, hnscd upon any del»t f»r debts contracted after he h.-is ceased to 
trade. In England the biinkruptoy relates l)ack to the day upon which tlie act 
was committed, and the del)tor is deemed to have been subject to the pro- 
visions of the statute from tliat day ; but UTider our statute there is no relation 
back, a distinction which must be kept in mind in reading cases decided upon 
the English law. Nothing can be deemed an act of bankruptcy, except m hat 
is expressly declared to be so by statute (Dutton v. MorrlMm, 17 Ves. VX\ ; Ex 
parte Maror, I'J \'cs. .'»42) ; and, when once clearly committed, it cannot bo 
explained away by sub3e<(uent circumstances, or gotten rid of within the time 
limited (sec. 8) for taking proceedings upon it (Ifopkiiis v. Ellis, 1 Salk. 110; 
Colkett V. Freeman, 2 T. R. oD ; Woo<l v. Thwaifen, 3 Esp. 24") ; Mucktow v. 
Mat/, 1 Taunt. 47U ; Ex parte Crabh, 25 L. J. Rank. 45), except by paying or 
compounding with creilitors. The act of baidtruiitcy must be actually com- 
mitted. Notice of inteJition to commit an act of bankruptcy is not 8i\ilicient 
(Ex parte Halifax, 2 M. D. & D. 544 ; Couwnn v. Xaxh, 1 ('. H. Rep. U4.S). A 
man cannot commit an act of bankruptcy by tlie ccmduct of his ageut without 
his knowledge {Cotton v. James, Moo. & M. 275 ; 3 C. & P. 505). 

a. If he lia.s called a meeting of his creditora for the pur- Arknow- 
pose of compounding with them, or if he hius exhibited a solvency. 
statement showing his inability to meet his liabilities, or if 

he has otherwise acknowledged his insolvency. 

This clause is new, and has been introduced because of the Act doing away 
with voluntary assignments, and corresponds in principle with the filing of a 
declaration of insolvency, which in England constitutes an act of bankruptcy 
(See Ex parte Hunt, 3 De G. & S. 572 ; Ex parte Johnstone, 4 De G. & S. 204). 

b. If he absconds or is immediately about to abscond from Absconding. 
any Pro^•ince in Canada with intent to defraud any creditor, 

or to defeat or delay tlie remedy of any creditor, or to avoid 
being arrested or served with legal process ; or if, being out 
of any such Province in Canada, he so remains with a like 
intent ; or if he conceals himself within the limits of Canada Conceai- 

. , ,., . ment. 

With a like uitent. 

This clause and the three subsequent ones constitute the different acts, 
referred to in them, proofs of insolvency when coupled with the intent to defeat 
or delay or to defraud creditors. 

The intention to defraud, defeat, or delay creditors is the main ingredient. 
If this intention actually existed at the time the act was committed, it is little 
matter whether a creditor was thereby defeated or delayed, or not {Robertson 
V. Lidilell, 9 East. 487 ; Wrjduwn's case, 14 Ves. 86 ; Chenowetv. Hay, 1 M. & S. 
676 ; Aldridge v. Ireland, 1 Taunt. 273 ; Colkett v. Freeman, 2 T. R. 59 ; Jie 
Hollowaif, 1 Bank. & Ins. R. 244). On the other hand, a creditor being in fact 
delayed by the act, is not of itself evidence of the debtor's intention in committing 
it (Ex parte Onborne, 2 Ves. & B. 177 ; Fowler v. Padtjet, 7 T. R. 509 ; 2 Chris- 
tian B. L. 451). The intent can only be evidenced by the debtor's acts or 



111 



m 



44 



INSOLVENT ACT OP 1J74. 



a<liiUMioii!i. If a mnn n<1iiiit tliiit ho C(>niiiutto<l the act with such an intont, 
it ia aliiitHt ooiu'lusivi- » viiloiioo of it, ami ran «o:irct'ly lie t-xjilaint-^l awav ("t'O 
I%iiii:„,ii V. /Itii'jh, '2 I5iiig. !•!(). Anytliing Haiti or writt'.n l«y the KanKrunt 
liefore hiH liankruptov, tcntliiig to Hhow thu intont uf an a**! c«|ttivocal in itself, 
is n>liaiH.Hal)lo {Sniitii v. Craiuir, I Woott, 541 ; S'-i,ft v. T'uoutaA, 6 Car. & P. 
Oil). If the nccfSH.iry foiiseiiuciioo of the iKhtor's act l»e that hi« creditors 
mu*t W' therehy deframlcd, detVatod, or delayid, this is i»rc*inuiitive evi«lcnce 
of hix intention to do ho {/!<tiiishi)ffiiin v. Lurl-i, I Cainp. -~\) ; Hofrvifd v. 
Whihhta.l, :i ('ami.. •''>'J<> : Z^'-^' /""/' A'/Vh^*-, 2 Doa. ?i'i:t ; 3 Mon. k A. I'irl; Kx 
jHtfti' Jiiiin/onl, 15 Ves. 4I!> ; WiHtnina v. Xnint, 1 Taunt. 270». Tlie ]»rf8unip- 
tion rai.<e«i l»y circunistancis atti'ndiiig tlie act may l»e rvl»nttf<l l»y evid«.-iico 
that the dohtor «liil not at the tiim: ontcrtain the intention imimteil to him. 
For in.stanee, he may inovu tliat u[">n leaving the emintry he U-ft a partner 
behind him {Itumx^iDthnn v. /a'w'is, nhi supra) ; or that hi^ presence out <»f the 
Province \vi\a ahsolutoly necisHary in order to look after hi* otncems there (Ex 
pnrti' Mutrli; 5 Ves. 570 ; Warm r v. Jlarlxr, I Holt, IT5» ; or that previous to 
hi.s dejwrture he made arnviijjfeiiieiits that the interests* uf his cre<lit<»rs should 
be attended to in his altstiioe (Jtunisfioltom v. Lticis, ubi ttipra ; and see Wind- 
ham V. Pathrmn, 1 Stiuk. U4 ; 2 llo.so, 4GG). 

The mere intention on tlie part of a debtor to ilispose of his property, and 
tlie a]iprehen.4ion of hi.s sole creditor that he will nt>t then, although jK-rfectly 
al>le, and owing no one cIhc, pay the creditor his debt, doe* not bring the 
debt«>r within this clause (Sharp and Si'curtl v. jUuUheir*, 5 Prac. Rep. C. C. 
10 ; S. C. 5 Can. L. J. N.S. 1>7). 

It is held that a person going abroad for a legitimate pnrjxwo, and remaining 
abroail without matving any provision for the payment of Im debts, or sending 
money for that purjM.se, is remaining abroad with intent to delay his creditors ; 
although he constantly stated in his letters his intention to come home in a 
month or six weeks, but lixed no delinite time (Ex jHirtt Cohtt, 2 L. T. N.S, 90, 
Bank). 

See also note to section 8 below, as to efTect upon this act of bankruptcy of 
the limitition of three montlis for commencement of priMxedings. 

If the intent to delay creditors can be proved, either in the ilcporture from 
the ctmutry, or in the remaining abroad, or can bo inferretl as the necessarj' 
and foreseen consequence of the tlelay actually proiluoed, an act of liankniptcy 
will be provecl (Kden's B. L. 1(5). A petition cannot l>c snstaineil by proof of 
residence abroad wh»,'re the departure was for a fair an^l prv.jK-r purpose, and 
not witii a view of defrauding creditors. But it is otherwise if apprehension 
of arrest lie coujjled with a justitia])le motive ( Warner v. Barh^r, Holt, 175). If 
a trader, after going abroad in the first instance for a p.t>|)er object, prfttract 
his residence abroail for an unreasonable time, assigning no cause for his 
absence, and leaving no funds, nor making any arrangements for the payment 
of his debts, the inference will be that he remains abroad with intent to delay 
his creditors (Cummimj v. liailnj, 6 Biug. ,370 ; Ex partf Kifh'rr. 3 M. 4. A. 722 ; 
Ex jxtrte Rhoiles, 5 Jur. 580, C\\. ) In Ex parte Bunn>/ it was held that a trader 
remaining abroa^l with intent, &c., committed an act of bankruptcy ilf die in 
diem, whether his going abroad was or was not an act of bankruptcy (1 De G. & 
J. 309 ; S. C. De li. & J. Bank. 119). 



Secreting ef- 
fects. 



Prandulent- 
assigning. 



c. Or if he secretes, or is immetliately about to secrete, 
any part of his estate and effects with intent to defraud his 
creditoi-s, or to defeat or delay their deniiuids or any of 
them ; 

d. Or if he assigns, removes, or disposes of. or is about or 
attempts to assign, remove, or dispose of, ^ny of his pro- 



AX ACT RESPECTIXO INSOLVENCY. 



45 



I)crty with intent to Ucframl, dufuat, or dohiy hia crciUtors, 
or any of thviu ; 

Suction G of the Knglish Banknipti-y Act of 18(59 dofiiu's the act of haiik- 
rujitiy coutiUi^)Iatt.><i \>y this clatiAu : " Tliiit tliu iluhtar \ian iti Hnglaiul or else- 
will re iiiinlc a traiululeut ctmvc-yanco, gift, delivery, or truuitfcr of his |iro|K;rty 
or any part thtreof. " 

The words of our Act appear to corres])ond very closely in meaning with 
these, liiit tliey include the attempt to niaku a fraudulent assignment, a« well 
as the complete act. IVoiK-rty is a word of tins wideat possihle KJgnilication in 
law, and endiraces every description of e-ntate, real or j«ir>»onal, niovahle or 
inimovaitle, without regard to its nature or tenure. It is defined l>y the Kng- 
lish Act a.s meaning ar.d including money, goodn, things in action, land, and 
every description «>f i>r<>jK.rty, whether real or personal ; also obligations, ease- 
ments, and every dcscnption of e.state, interest, and prollt, present or future, 
vested or contingent, ori.^ing out of or incident to property, aa alM>ve iletincd. 
Any conveyance or tninsfer which has the efl'ect of defeating or delaying 
creditors, no matter what the motive may l)o for such conveyance, must l»e 
taken to have lK.en mode with that intent, and is therefore fraudulent as 
against creditors (Si'tnirt v. Mmxlij, 1 K'. .M. k II. 777 ; (inifntm v. C/i'ipman, 
V2 C. B. iJep. 85 ; 8. C. '2\ L. J. ('. 1'. 173) ; and it has heen ho hehl under 
the present English Act In re Wood (L. 11. 7, C'h. App. .'JO'J). As Mhere the 
conveyance was of all a trailers' stock to secure an antecedent debt or previous 
advances, even though the exjicctation of a further advance may have ijcen the 
primary motive for tne transfer. The reason is that the trader gets no present 
e([uivalent for his stock (see Lindon v. Slmrp, (} M. & (r. 81)5 ; Smith v. Ciiw- 
>ian, 2 Q. B. Kep. 35 ; Tfie Orhntal Bank v. Colt man, 4 L. T, Rep. N.S. 9) ; 
and where an assignment must have the effect of defeating or delajnng other 
creditors, the intent to defraud may he inferred {Xcninii v. ChanfUr, 7 East. 
13S) ; and even though the debtor i.s under arrest at the suit of the itartieular 
creditor to whom the bill of sale was given (llt'uf., Ex parte Simpioti, De Gex 
Hep. 9). When a tnuler mak^.-s an assignment of all his effects, or of all except 
a very small portion, 't is an act of l)aukruptcy without actual fraud {Sirftert v. 
Spooinr, 1 M. & \V. 714 ; see Jlutton v. Crutwtll, I K. & B. 15 ; Ex jtartf 
Buih'ii, 5 D. M. & G. 38<>, and cases there cited) ; but when one charge upon 
projierty is paid off by funds raised by substituting another in onler to release 
the property for the benelit of the estate, the second transaction is not an act 
of bankruptcy ( Whiluicre v. Clar'vJgc, 9 L. T. Rep. N.S. 431, Ex. Ch.) If the 
necessary result of an assignment of chattels be the stoppage of bu^iiness, as 
well as to prevent payment of other creditors, it will be an act of bankruptcy 
(Re Lilburne, 12 L. T. Kep. N.S. 209 ; liolnrtxim v. J/or/r//, IG L. T. Rep. N.S. 
7). A colourable exception of a part of the trader's property will not prevent 
this doctrine from applj^ing (Ex parti' Fuonl, cited in Burr. 477 ; Conijiton v. 
Bedford, 1 \V. Bl. Kep. 3G2 ; Prnnell y. Ifei/nohh, 11 C. B. Rep. N.S. 709). 
As when household go^nls and debts which were inconsiderable were exi .e«i 
(Laio V. Skinner, 2 BL Rep. 996 ; IIooi)fr v. Smith, 1 W. Bl. Rep. 442 ; or oome 
shares in a bank (Cannan v. Smith, 2 Q. B. Rep. 35), or a pension which would not 
pass to the assignee (Ex parte Hawker, In re Kieli/, 7 L. R. Ch. 214). But when a 
substantial equivalent for the assignment is obtained at the time, it will not 
constitute an act of bankruptcy (lione v. Haycock, 1. Ad. &, E. 4G0 ; Ex parte 
Sparrow, 2 D. M. & G. 907 ; B>ll v. Simpson, 29 L. T. Rep. 202 Ex. ; Ex parte 
Colemere, 13 L. T. Rep. N.S. G21 L. C. ; Marlin v. WiUiinm«, 20 L. T. Kep. 
N.S. 350 ; Kevan v. 2Iavcson, 24 L. T. N.S. 395). The party seeking to make 
it an act of bsmkruptcy must show some fact from which fraud can \>e inferred 
(Rose V. Haycock, 1 Ad. &. E. 460). Nor will it be an act of bankruptcy where 
the security is given in pursuance of a parol undertaking made at the' time of 
the advance (Re a iliapnted adjudication, 4 L. T, Rep. N.S. 809 ; Harris v. 
Rickett, 4 H. & N. 1 ; Htttton v. Crutwell, 1 E, & B. 15) ; but the promise to 



il 



ll 



46 



IN80LVr;KT ACT OF 1875. 



give Bccurity must he an abuoluto one {Kx p<irtf Finher, In rt. A»h, 7 L. Tl. Ch, 
App. iYM\) ; nor whtro a Bfcurity Wiw <liKcov«'r«)(l to l)« invalid, ami a new one 
was Hulmtitiituil (Kx parte Taylor, 5 1). M. & <>. .TJ'2 ; hiiu alno thu camn in our 
own C'oiirtH, eituil in note to Hcutionx \'M) I.S4 %i\fra). It Iiin \)mi\\ lulil tliat an 
aMHiunniuiit hy a triwlvr, hy wnv of mortgago of iiin Htock ami iinploincnta of 
tratli-, wliero such lissignmont tfiK's not inoluilu onu-half of all Iuh utiVctfi, in not 
per HP an act of hankniptoy, although hin ))unint>H8 may he Htopptil tiiorchy 
( Yoinxj V. Wnuil, H Kxch. Ken. i;34). TnwlcrK v«;rl)ally plutlgoil tlioir giMxIs, 
which formed HuliHtantially tliu whole of their property, oh Hecurity for a pre* 
vioualy contracted deht to a creditor who already had poiBesHion of tiio uoods, 
and a lien on them for (uoney advanced. The dvhtors were, in fact, innolvent, 
hut the Jury found that the tranitaction waa entirely huiul^lulc Held, that the 
pledge waa not "a fraudulent cuuvcyance, gift, delivery, or trauafer" (PhUUjja v. 
IfonvaUde, 8 L. 11. Kxch. 20). 

An assignment of part of a trader's cfTecta to a particular creditor carries with 
it no intrinsic cvitleuce of fraud. A trader must, in the course of his business, 
have p(»wer to make over |iArts of his property, eitlier for past tlehts or future 
advances. Hut when such an act is done in contemplation of haukruptey, with 
intent to give the assignee an advantage over other creditors, it is contrary to 
the spirit of the law, and ia not only void, hut, whetiier it he hy deed, or gift, 
delivery, or transfer of proijcrty, is an act of bankruptcy (KcUai. B. L. 29). 
What will constitute an act of l"'nkruptcy of this character must depend very 
much upon the circumstances each case. If the conveyance or transfer is 
voluntary, and in ct;.;tvmplation of hankniptcy, it is fraudulent (Gihh'ms v. 
Phillips, 7 B. & C. r)2i) ; Reed v. Ayton. Holt, 503 ; Arhonin v. Kanhurii, Holt, 
575 ; Marshall \. Lamb, 5 Q. B. Ken. 115 ; Aldredv. Constable, 4 Q. B. llep. 
674 ; Van Cnatcelv. Booker, 2 Ex. llep. C91) ; hut if given to |)re3ervo credit 
{J far man v. Fletcher, Cowp, 117; Bannatyne. v. Leadi-r, 10 Sim. 359), or in 
pursuance of a previous agreement made for a substantial consideratitm (Mirctr 
v. Peterson, 16 L. T. llep. N.S. 792 Ex. ; 18 L. T. Rep. N.S. Ex. 30; Allen 
V. Bonmtt, 23 L. T. Rep. N.S. 233 ; L. R. 5 Ch. App. 577 ; Ex parte Jiecd, In 
re Twi'ddi'll, 14 L. R. Et^. 58<>), it will l>e sustained. A settlement not founded 
upon valuable ccmsideration may ho, set aside witlumt proof of an actual 
intention to defeat and delay cretlitors, if the circumstances are such that the 
settlement would have that effect (Freeman v. Pope, L. R. 5 Ch. App. 538). A 
sale by a trader of his gootls at a less price than they are worth does not con- 
stitute per ae an act of banknn)tcy (Lee v. Hart, 10 Ex. Ch. 555), even when 
the trader intends to abscontl wnth the proceeds (Fraser v. Levy, 6 H. &. N. 16) ; 
but if the purchaser is privy to such intention, it constitutes a fraudulent 
transfer. It is a fraud upon the creditors of a firm for a partner therein, who 
knows that the firm is insolvent, to assign the partnership assets as security for 
hia own ])rivate deht, or for future advances to he made to himself. Such an 
assicnmeut necessarily tends to defeat the creditors of the partnership, and ia 
void as an act of bankruptcy. Upon the question whether the execution of a 
deed is an act of bankruptcy, one part of it cannot he separated from the rest 
(Ex parte Snowball, Re Doiujlas, 20 W. R. 786 ; Jones v. Harber L. R. 6 Q. B. 
77 ; Ex parte Tempest, Re Craven, L. R. 6 Ch. 70 ; Woodhouse v. Murray, L. R. 
2 Q. B. 634). When one partner makes a fraudulent grant by deed to another 
partner, it ia an act of bankruptcy in the former, but not in the latter { Whitwell 
V. Thompson, 1 Esp. 68. See also Bowkerv. Prudakin, 11 M. & W. 128 ; Ex 
parte Mayou, 11 Jur. N.S. 433 ; Berney v. Davidson, 4 Moore, 126; Berney v. 
Vyner, 4 Moore 322). A power of attorney is revoked by bankruptcy as against 
the assignee (Ex parte Snoioball, In re Douglas, 7 L. R. Ch. 534). 

Conniving e. Or if with such intent he has procured his money, 

at seizm-e i i i i i • i i • i 

under exe- goods, chattels, lands or property to be seized, levied on, or 
taken under or by any process or execution having operation 



AX ACT RE8PKCTIX0 IX9f)LVENCY 



47 



whoro the ilehtor resi«lt»H or has |»n)|»frty, fotmdotl upon 

II (l«'iniin«l in itH nutiiiv pntvaMc iui(l«*r tlim Act, iiiid tor u 

Hum «'Xft»f».Iiiij^ two huiiilntl ilollarH, and if sufh proooHn ih 

in fon'c iind not «li.schai"y»'«l by jKiynu-nt or in ttny manner 

provided fur hy lu*v ; 

An Act of hanknintcy l»y pmcoring gncxU tn l>o taken ''n execution in nofe 
o«>iuniitti'<l till actual avizurv. and when «<> coniniittcd i» unt unrri(!<l l)Rck by 
relntioM to an earliir iN-ri<Hl {Itrlrhrx. diiinmitw, II .lur. 'JH<$ ; S. ('. KJ L. J. 
Q. B. I'm; (iihMon v. 7Viw;/, I Car. A M. 4«>'J). Thi' nitre nllowiug a jutlgiucnt 
to go l»y default, un«Icr wjiich ju<lgnient the debtor'n gootla arc taken in execu- 
tion, is, in itself, no itmcuring the goudB to W' taken in execution ho an tu con* 
atitute an act of hankmptcy {(iUtJ-m v. Trimj, ubi miprn). It is held that 
"procuring" means Uiking the initiative, ami causing the thiny to he done in 
the ordinary sense of the wonl. There must Ik; in the act an uitciit to delay 
or defraud the creditors. Where there was an honest and proper motive on 
the part of the debt«>r in gr.inting a jadcmcnt, no act of bankruptcy in com- 
mitte«l {Oore v. IJo^,l, 13 L. J. 360 Exch. : S. C. 12 M. & W., 4GH) ; and pro- 
ceedings nuist have l>een token at the inhUincc or with the concurrence of the 
ins<ilvent {Ex pm-te Bu>/il, 31 I* J. Bank, o; 6 L. T. N.S. 142). 

y. Or if ho lijis lieen actually imprisoned or u|>on the gaol ndnRim- 

limits for more than thirty days in a civil action founded 

on contract for the sum of two hundre<I dollars or upwards, 

and still is so imprisoueil or on the limits ; or if in case of 

such imprisonment he has escaped out of prison or from 

custotly or from the limits ; 

In oriler to constitute this act of hankmptcy there must l)e an uninterrupted 
imprisonment for more than thirty days. If a man arrested be bailed out 
before the expiniiion of the thirty days, and aften^-ards render in discharge of 
his bail, and remain in custody thereafter, the thirty days will begin to run on 
the day of the render, ami not on the day of the original arrest {Ex parte 
Dujnne, 1 Ves. & B. 51 ; Tribe v. Webber, Willis, AM). 

a. Or if ho wilfully nejjlects or refuses to api)ear on any Making de- 

1 1 • • t.- . 1 • 1 X fault to ap- 

inile or oitler requmng his appearance, to be examined as to iKsar. 
his debts under any statute or law in that behalf ; 

h. Or if he wilfully refu.ses or neglects to obey or comply Disobeying 
with any such rule or ortler made for jjayment of his debts "' 
or of any part of them ; 

f. Or if ho wilfiilly neglects or refuses ic obey or comply or decree, 
with an order or decree of the Coiui; of Chancery or of any 
of the Judges thereof, for pajrment of money ; 

j. Or if he has made any general conveyance or assign- Making as- 
ment of his proi)erty ^ ^,he benefit of his creditors, other- othcrwUe* 
wise than in the manner prescribed by this Act ; or if, ttAc"? " 
being unable to meet his liabilities in full, he makes any 



48 



INSOLVENT ACT OF 1875. 



sale or conveyance of the whole or the m.iin part of his 
stock in trade or of his assets, without the consent of his 
creditors, or without satisfying their claims. 

A general asaiguiuont w;is made to a creditor, who agreed to pay a composi- 
tion of forty cents in the dollar. The composition was paid to all the creditors 
excejjt one, who refused to accept it, and issued execution. Held, that the 

'oceedings oould only be avoided by putting the debtor in insolvency when 
..le transaction was hund Jide (S'luirc v. Watt, '2d Q. B. U. C. 328. See also 26 
Con. Stats. U. C. a. 18. ; see Doria Bank. 155 ; see Jloyal Canadian Batik v. 
Maihenuii, C U. 0. L. J, N, 8, 9). 

It has been held in one of the first decisions under the Act of 18G4, in Ui)per 
Canada, that this clause does not apply to assignments made before the 1st 
September, 18G4 (Re JIo(/'j, in County Court, York and Peel). It is immaterial 
that such a deed was executed fumd Jide with the intention of assisting the 
creditors. The principles upon which such a conveyance is declared to be an 
act of bankruptcy are, first, because the debtor necessarily deprives himself of 
the power of carrying on his trade, and, secondly, because it is an attempt to 
make a distribution of his etlects diflerent from what the bankrupt law directs ; 
and if it is made to creditors as security for a pre-existing debt, then it is 
fraudulent and void for the further reason that such a conveyance must either 
be fraudulently kept secret, or produce an immediate bankruptcy (Button v. 
Morrison, 17 Ves. 193 ; WurseJij v. Demattox, 1 Burr, 481 ; Lindun v. Sharp, fi 
M. & G. 895 ; Ex parte Sciidamore, 3 Ves. 84). The necessary consequence of 
such an act being to defeat and delay creditors, the law presumes the intention 
to do so (Stewart v. Moody, 1 Cr. M. & R. 777 ; Siebert v. Spooner, 1 M. & W. 
714 ; Ex parte Zwilchenhart, De (lex, 273. See also Eckhardt v. Wilson, 8 
T. 11. 140; Smith v. Ti»ims, 4 L. T. Rep. N.S. 829). And even if the assign- 
ment be defeated ])y the creditors failing to assent thereto, it it an act of bank- 
ruptcy (Lees V. Whitebj, 14 L. T. Rep. N.S. 472 ; Ex parte Slann, G L. T. 
N.S. Bank. 400.) So, also, where the conveyance was ineffectual because 
unstamped (Ex parte Wenslei/, I De G. J. & S. 273 ; S. C. 7 L. T. Rep. N.S. 
548 ; Ex parte Potter, 11 L. f. Rep. N.S. 435 ; 34 L. J. 46, Bank; Ponsford v. 
Watson, 17 L. T. Rep. N.S. 511 ; L. R. 3 C. P. 107 ; Ex parte Squire, 19 L. T. 
Rep. N.S. 272 ; L. Rep. 4 Ch. App. 47). A creditor assenting to a trust deed 
may not set it up as an act of bankruptcy (Ex parte Alsop, 1 D. F. & J. 289 ; 
iBawford v. Baron, 2 T. R. 594 ; Ex parte Kilncr, Buck. 104 ; Marshall v. 
Barkworth, 1 Nev. & M. 279 ; Ex parte Marshall, 4 B. & Ad. 508) ; and even 
a verbal assent by a creditor has in England been held insufficient to prevent 
him taking advantage of an assignment as an act of bankruptcy (Re a disputed, 
adjuilication, 1 L. T. Rep. N.S. 449 ; see 4 L. T. Rep. N.S. 809) ; but not if 
the deed contain clauses in favour of a particular creditor of which the creditor 
applying was ignorant at the time he gave his assent thereto (Ex parte Marshall, 
I M. D. & D. 575 ; see also I'appenden v. Banjess, 4 East. 230 ; Tap>t v. Hockin, 
7 B. & C. 101). 

Aiiowingex- Jc. Or if he permits any execution issued against him 

ecution to , i • i ,» i • i i i i 

bouusatis- Under which any oi his chattels, land, or pi'operty are 
seized, leAded upon, or taken in execution, to remain unsatis- 
fied till within four days of the time fixed by the Sheriff or 
officer for the sale thereof, or for fifteen days after such 
seizure; subject, however, to the privileged claim of the 
Proviso as seizing creditor for the costs of such execution, and also to 
° ^"'^ ■ his claim for the costs of the judgment under which such 



'n Ml \ 



AN ACT RESPECTING INSOLVENCY. 



49 



execution has issued, which shall constitute a lien upon the 
effects seized, or shall not do so, according to the law as it 
existed previous to the passing of this Act, in the Pro\'ince 
in which the execution shall issue. 

The creditors of a deceased debtor cannot under this section put his executors 
or administrators into insolvency in the representative character (In re Sharpe, 
20 U. C. C. P. 82). 



^.n 



11 

fe 



h 



e 
o 



4. If a debtor ceases to meet his liabilities generally a.s When credi- 
they become due, any one or more of his creditors for unse- mand a a 
cured claims of not less than one hundred dollars each, and 
amounting in the aggregate to five hundred dollars, may Fonn. 
make a demand upon him either personally or at his chief 
place of business, or at his domicile upon some grown up quired? ** 
person of his family or in his employ (Form A.) requiring 
him to make an assignment of his estate and effects for 
the benefit of his creditors. But the said demand shall not 
be made until the creditor or creditors making the same 
shall have filed with the clerk or prothonotary of the court 
in which the proceedings in liquidation (if any) will be 
carried on, his or their aflidavit verif3ring his or their debt 
or debts, and that he or they is not or are not acting in col- 
lusion with the debtor, or to procure him any undue 
advantage against his creditors. 

The creditor or creditors making such demand of assign- Creditors 
ment shall in such demand elect and appoint a domicile or assiKnnient 
domiciles, respectively, within the district or county in domicile.^ 
which such affidavit is filed, at which service of any answer, 
notice, or proceeding may be served on him or them ; and 
the said clerk or prothonotary shall keep the original and 
give a certified copy to the creditor or creditors ; and such 
copy shall be annexed to the notice served on the debtor. 

This clause corresponds with section 14 of the Act of 1869. It varies from 
it in requiring the claim of each creditor to be not less than one hundred dollars ; 
in requiring the claims to be unsecured ; in requiring an affidavit verifying the 
debt and denying coUusion, to be filed and served with the demand ; and in 
requiring the creditors to appoint a domicile where papers may be served. A 
trader having ceased to meet his liabilities, a demand was served on him on 
the 31st January, requiring him to make an assignment. On February 6th 
(the oth being on Sunday) an order was granted for an attachment, which was 
issued. One of the affidavits filed on application for the attachment was sworn 
to on February 4th ; on an application to set aside the writ and all proceedings 
for irregularity, it was considered — 1. That the order for the iaauing of the 



' I, 



50 



INSOLVENT ACT OF 1876, 



1,1 



;:!:li: 



mv 



writ was not made too soon ; 2. That it was immaterial that one of the affidavitH 
was made within the five days allowed for petitioning under sec. 3, sub-sec. 3, 
Insolvent Act of ISiii, or for making an assignment in accordance with the 
demand ; 3. That the writ of attachment should have been endorsed with a 
statement that the same was issued liy order of the Judge of the (bounty Court ; 
but an amendment was allowed on payment of costs by plaintitls (Mclimes v. 
Brook, I L. J. U. C. N.S. 162). 

"Debtor." — The word debtor is defined by sec. 2 (c). 

"Ceases to meet hih LiAi5iLtTiE.H genekai,lv as they become due." By 
the Bankruptcy Act of 1809, sec. 9, a debtor's summons, M'hich is the step 
under the English practice corresponding with the service of a demand here, 
may be issued upon proof " that a debt sutKcicnt to supp(n-t a petition in bank- 
ruptcy is due to him from the person against whom the summons is sought, and 
that the creditor has failed to obtain payment of his del)t after using reason- 
able efforts to do so." It is hard to say what will be suflicient to constitute 
a "ceasing to meet liabilities generally," and no case has been reported which 
1' fixed its meaning ; but, as by see. 5 the demand may be set aside if the 
stoppage is only temporary, was not caused by fraud, or by the insutheiency of 
assets, these or one of these tests should Ijc applied in determining under this 
section whether there has been a failure to meet liabilities generally. 

"Creditou" is defined by sec. 2 {h.) above, and iiiclades co-partnershijis and 
companies, as well as persons to whom the debtor is liable, whether primarily 
or secondarily, and whether as principal or surety. .Care must be taken by the. 
creditor or creditors serving such demand, and by their legal adviser, that 
there is reasonable and probable cause for so doing. A perfectly solvent person 
may be much injured in business and reputation by an unfounded demand 
under this clause. The debtor may apply to set aside the demand upon petition 
under sec. 5, and l>ring evidence to prove the unfounded nature of the demand ; 
yet all that the Judge is empowered to do, should the demand be set aside, is 
to condemn the creditors in treble costs. It is presumed that the fact of a 
Judge awarding treble costs against the creditors would not prevent their being 
liable in an action of damages for maliciously abusing the provisions of the Act. 
Before the trader could bring such action he should petition against the demand 
and have it set aside. It seems that the attorney of the creditor v.'ould be 
personally liable for abuse of this proceeding (Johnson v. Emerson, 40 L. J. 
Ex. 201). It is presumed that under sees. 38 and 39 the assignee of an insol- 
vent could take proceedings to place the estate of a debtor to the estate repre- 
sented by him in liquidation. There is no provision in the section for the 
demand being made by the clerk or duly authorized agent, or for making the 
affidavit by an agent as under sec. 9, and it is doubtful whether the assignee of 
a debt could take proceedings under this section (Ex i)arte Taylor, 3 De G. 
& J. 480 ; 33 L. T. Rep. 32), even when not procured for the purpose (see 
sec. 5). When the creditor is a corporation, the demand, it is apprehended, 
should be signed by the President and Secretary, or other official authorized to 
sign for the company, in the usual way, and seale^J wath the corporate seal. 
The affidavit must be made by a person competent to speak to the facts therein 
set out (see In re Calthrop, L. R. 3 Cli. App. 252). 

' * Shall File an Affidavit. " — The affidavit must verify the debt. The debt, 
it is conceived, must be one provable in bankruptcy (see note to sec. 9 infra). 
By sec. 14, an assignment made in pursuance of a demand under this section 
may be set aside for a substantial insufficiency in this affidavit, by any creditor 
on petition. The clerk of the court is to keep the original affidavit and give a 
certified copy to annex to the demand served. Sec. 105 designates the persona 
who may take affidavits to be used in proceedings in insolvency. 

It has been held that an act of bankruptcy concerted between the bankrupt 
and the applying creditor would not support a fiat (Ex parte Oouthwatte, 1 
Rose, 87 ; Ex parte Brooks, 1 Buck, 257 ; Bam/ord v. Baron, 2 T. R. 594 n. ;. 



AN ACT RESPECTING INSOLVENCY. 



51 



Eyre V. Birhock, 2 T. R. 505 n). But a creditor not privy to such concerted 
act might avail himself of it (Ex parte. Bourne, 16 Ves. 145). The bank- 
rupt's agreeing to an act of bankruptcy at the suggestion of a frien<l, without 
any concert with the creditors, was lield to be no objection to the adjudication 
{Roberts v. Teasdale, Peake, N. P. 27 ; Simpson v. Sikes, 6 M. & S. 295). 



•em 



S, If the debtor on whom such demand is n'.;',de contends Judsp may 

annul de- 

that the same was not made in conformity wiili this Act, or mnmi if 

claims do 

that the claims of snch creditor or creditoi-s do not amonnt not amount 
to one hundred doUars each or to five hundred dollars in 
the aggregate, or that they were procured in whole or in 
part for tlie purpose of enabling such creditor or creditors 
to take proceedings under this Act, or that the stoppage of Or if stop- 
payment by such debtor was only temporary, and that it temporary. 
was not caused by any fraud or fraudulent intent, or by 
the insufficiency of the assets of such debtor to meet his 
liabilities, he may, after notice to such creditor or creditors, 
but only within five days from such demand, present a 
petition to the Judge, praying that no further proceedings 
under this Act may be taken upon such demand, and, after 
hearing the parties and such evidence as may be adduced 
before him, the Judge may grant, or reject the prayer of his 
petition, with or withoiit cost against either party ; but if it Proviso : as 
appears to the Judge that such demand has been made with- 
out reasonable grounds, and merely as a means of enforcing 
payment under colour of proceeding under this Act, he may 
condemn the creditor or creditors making it to pay treble 
costs. 

This section differs very little from sec. 15 of the Insolvent Act of 1869. The 
Act of 1869, sec. 143, declared the word "day" to mean a judicial day, but 
there is no definition of the term in this Act (see Mclnnes v. Brook 1 L. J. 
U. C. N.S. 162). A petition by an insolvent to stay proceedings under the 
Insolvent Act of 1869, made after the expiration of five days from the demand 
of an assignment, on the ground that the insolvent had executed a deed of 
assignment to an official assignee, was held to be too late ( Thomas dit Tranche- 
montagne v. Martin, 17 L. 0. Jur. 11). It is doubtful whether the expression 
"treble costs" will have the technical meaning which it formerly bore in Eng- 
land ascribed to it here. See Archbold'a Practice, 483. ;■ « • 



0. If at the time of such demand the debtor was absent Judge may 

from the Province wherein such service was made, applica- for colftlstet 

tion or as- 
signment. 



tion may be made after due notice to the creditor or credi *"*" "' **' 



tors, within the said period of five days, to the Judge on his 



I 






52 INSOLVENT ACT OF 1875. 

behalf, for an enlargement of the time for either contesting 
such demand or for making an assignment ; and thereupon, 
if such debtor has not returned to such Province, the Judge 
may make an order enlarging such period and fixing the 
delay within which such contestation or assignment shall be 
made ; but such enlargement of time may be refused by the 
Judge if it be made to appear to his satisfaction that the 
same would be prejudicial to the interests of the creditors. 

7, If such petition be rejected, or if, while such petition 
eatate'to be- is pending, the debtor, without the leave of the Judge or 
otherwise than on the terms prescribed by him, continues 
his trade, or proceeds with the realization of his assets, or if 
no such petition be presented within the aforesaid time, and 
the debtor during the same time neglects to make an assign- 
ment of his estate and eflfects for the benefit of his creditors, 
as hei'einafter provided, his estate shall become subject to 
liquidation under this Act. 

This section differs from sec. 17 of the Act of 1869 by the addition of the 
qualifying clause, "without the leave of the Judge or otherwise than on the 
terms prescribed by him." As the section stood before, it was the duty of the 
debtor, upon presenting a petition, to stop trade at once, or he rendered himself 
liable to compulsory liquidation ; but he must now forthwith apply to the Judge 
for leave to continue his trade during the pendency of the petition, and the 
Judge may prescribe such terms as will tend to preserve the estate unimpaired 
for the benefit of creditors, if the petition should fail. 



Proviso. 



When 
debtor's 



.ject to 
liquidation. 



Time for 8t No such proceedings as aforesaid shall be taken under 

proceedings this Act to place the estate of an Insolvent in liquidation, 
unless the same are taken within three months next after 
the act or omission relied upon as subjecting such estate 
thereto ; nor after a writ of attachment in liquidation has 
been issued, while it remains in force ; nor after an assign- 
ment has been made under this Act. 

In order to justify proceedings to place an estate in compulsory liquidation, 
it would seem that the act of bankruptcy relied upon must have been committed 
during the exi,'once of the debt of the creditor making the application (Bailie 
v. Chant, 9 Bing. 121 ; 2 M. & Scott, 193). If committed even on the same 
day that the application is made it will be sufficient (Ex parte Dufrene, 1 Ves. & 
B. 51 ; Hopper v. Richmotid, 1 Stark, 507). 

Although this section provides that proceedings must be taken within three 
months after the act or omission relied upon, it should be remarked that as to 
the second act of bankruptcy mentioned in sec. 3, it may be a continuing one — 
de die in diem ; for, any one remaining abroad or concealing himself within the 
Province with intent to defeat or delay his creditors, commita a continuous act 



WRITS OF ATTACHMENT, &c. 



53 



of bankruptcy until he comes back, or discovers himself. It ia probable that 
the acts of negligence in sec. 3, marked g, h, and i. , are continuous acts of bank- 
ruptcy, as long as the debtor neglects to comply with the rules or orders 
therein mentioned. 



i\\ 



WRITS OF ATTACHMENT, &c. 

9, Any creditor upon his affidavit, or that of his clerk, or Affldavitsby 
other duly authorized agent, that a trader is indebted to manding 
him in a sum provable in insolvency of not less thiin two 
hundred dollars, over and above the value of any security 
which he holds for the same, and provided the affidavit or 
affidavits filed disclose such facts and circumstances as will 
satisfy the Judge or Prothonotary of the Superior or County 
Court, in the county, province, or district, as the case may 
be, in which such trader has his chief or one of his princi- 
pal places of business, that such trader is insolvent, and 
that his estate has become subject to liquidation under the 
provisions of this Act, and that he does not act in the 
premises in collusion with such trader nor to procure him ^'"j* "^ '^y 
any undue advantage against his creditors (Form B), shall 
be entitled to a writ of attachment '(Form C) against the 
estate and effects of such trader, addressed to the Official 
Assignee of the county or district in which such writ shall 
issue, requiring such Official Assignee to seize and attach 
the estate and effects of such trader, and to summon him to 
appear before the Court or a Judge thereof on a day therein 
mentioned, to answer the jiremises. Concurrent writs of Concurrent 
attachment may be issued when required, addressed to the 
Official Assignee of other counties or districts in any pnrt 
of the Dominion other than the county or district in which 
the same shall be issued. Such writs shall be sxibject as 
nearly as can be to the rules of procedure of the Couit in porms of 
ordinary suits, as to their issue and return, and as to all Proceeding, 
proceedings subsequent thereto before any Court or Judge. .. 

By the Act of 1869, a slightly diflFerent procedure was provided for the 
Province of Quebec from that established for the other provinces. Now, how- 
ever, the same practice as to the issuing writs of attachment is provided for 
all the provinces. 

Any Creditor. — The interpretation clause, sec. 2, says the word "creditor " 
"shall be held to mean every person, corporation, or company to whom the in- 
solvent is liable, whether primarily or secondarily, and whether as principal or 
surety. " He must be a creditor for a sum provable in insolvency. It has been held 



^ 



54 



INSOLVENT ACT OP 1875 



If! 

ii 



w, il 



i 



that the assignee of a bond could not be an applying creditor within the meaning 
of the English Act {Ex parte Lee, 1 P. W. 782; Me, llir„t' s caac, 2 Str. 899; 
Ex parte Sutton, \\ Ves. 1G.'{). A debt barred l)y the Statutes of Limitations 
is insudiciont (Qnantrork v. England, 2 W. Bl. 703 ; Ex parte Dewdney, 15 Ves. 
479) ; so is a debt founded upon an illegal consideration ( Wella v. GlrHnp, 1 
Brod. & B. 447). The debt must not be a claim for damages, unless ascertained 
and fixed by judgment ; therefore interest, even on a bill (tf exchange, cannot 
be the subject of an applying creditor's debt, unless expressed to be payable 
on the face of the instnnnent, and it cannot be added to the principal to make 
up the amount required to constitute the creditor's debt (Cameron v. Smith, 2 
B. & A. HO") ; Ex parte Greemvai/, Buck. 412 ; Ex parte Buri/ens, 8 Taun. 660 ; 
2 Moore, 745). 

Unascertained damages claimed against an insolvent for a tort cannot be the 
debt relied on by an applying creditor ; nor, on tlie other hand, does a discharge 
under this Act operate to free a man from any debt due as damages for certain 
personal wrongs (see below sec. 63). 

The Affidavits. — The former Act required the affidavit of the creditor to be 
aubytantiated liy the affidavit of two credible witnesses. This is no longer 
necessary ; but as facts and circumstances sufficient to satisfy the Judge must 
be disclosed, it will still be prudent to strengthen the case of the applying 
creditor by the affidavits of other witnesses, especially as the writ may be set 
aside under sec. 18, for insufficiency in the affidavits. 

In entitling the affidavits, the names of the plaintiff and defendant should 
appear in accordance with form B {Sharp A Secord v. Matthews, 5 Prac. Rep. 
U. C. 1(>;. When one petitioning creditor applies and fails to proceed, it is not 
competent for another creditor to apply for adjudication on that petition {In re 
Bristoire, 3 L. R. Chy. 247). A limited company can maintain a petition in 
bankruptcy for an adjudication, and the secretary of the company can make the 
necessary oath {In re Calthorp, 3 L. II. Chy. 252). 

Under the Insolvent Acts, a creditor, whose debt is immatured, may com- 
mence proceedings against his debtor, who is insolvent, in like manner as he 
might have done if his deljt had been overdue at the time. But in a case 
where it appeared that the debtor did not owe more than one hundred dollars 
beyond the creditor's debt, none of which was at the time due, the Court 
directed that he should be allowed further time to show, if he could, that he 
was not in fact insolvent, and so not liable to have his estate placed in com- 
pulsory liquidation (/« re Moore v. Luce, 18 C. P. U. C. 446). 

The obligation to pay a sum of money under an order of a court of equity, 
although placed for some pxirposes on the same footing as a judgment at law, 
is not a sufficient petitioning creditor's debt {Ex parte Blencowe, 1 L. R. 
Ch. 393). 

It does not appear whether a demand is necessaiy in every case before appli- 
cation is made for assignment, but as this section does not expressly require 
that demand be served, it is probable that the Judges will issue writs of attach- 
ment, as heretofore, upon being satisfied of the debtor's insolvency, Avithout 
demand. The demand seems to be intended as an inquisitorial proceeding, to 
call upon the debtor to show his solvency, or else make an assignment, or 
become liable to attachment. ^ 

Wliat are the facts and circumstances which should satisfy the Judge ? By 
sec. 19 of the Act of 1869, the affidavit was required to set out "the insolvency 
of the person indebted, and any fact or facts which, under that Act, subject 
the estate of such debtor to compulsory liquidation. " By sec. 20 of that Act, 
which regulated the procedure in the Provinces other than Quebec, it was said 
that the affidavits must set out facts and circumstances to satisfy the Judge 
that the debtor was insolvent with, 'he meaning of the Act, and that his estate 
had become liable to compulsory liquidation {Royal Canadian Bank v. Matheson, 



WRITS OF ATTACHMENT, Ac. 



55 



6 U. C. L. J. 9). In this section the words " within the inenninf; of the Act "' 
have ht'f'n omitted, ami \>y sec. *-!(/. ) the word "insolvent" is declared t<» 
mean a ilebtor suhject to tlie provisicHis of this Act, ami unahlc to meet his 
engagements. The form of athdavit, clanse 3, fonn li, roiinires a statement of 
the filets wliich render the debtor insolvent ; and it would still aj>])ear neces- 
sary that a si>ecitic act of bankruptcy should he clearly established, or non- 
compliance with a demand which had not been successfully impeached. (See 
in this eoimection .sec. 18 and note thereto, and lioijal Canadian Bank v. 
Matlumn, G U. C. L. J. !)). 

10. The service of :i writ of attaolimcnt issued against a Servic^of 
debtor under this Act may he made upon liim as jirovided made, 
for the service of an ordinary writ of summons in tlie 
Province wliere the service is to he made, and if such debtor 
remains without sucli Province, or conceals himself within 
such Province, or has no domicile in any Province of the 
Dominion, or absconds from his domicile, in every such case 
service shall be made by such notice or advertisement as 
the Judge, or in the Province of Quebec the Judge or Pro- 
thonotary, may order. 

Concurrent writs of attachment is.sued against a debtor And of con- 

, - . , , . . , , , . ••iirrtut 

may be executed without being previously served upon him, writa. 
except in cases whei*e such debtor has his domicile or a 
place of business in the county or district in wliich the 
same is to be executed, when the writ may be served at 
such domicile or place of business. 

This section is similar to sec. 21 of the Act of 1869. The direction as to the 
mode of service is new, as is also the jjower given to the Judge to tUrect service 
by advertisement. 

It has been held that a Judge in insolvency has power to rescind an onler 
made by him for substitutional service of a writ of attachment (Eaton v. Shannon, 
17 C. P. U. C. 592). 

Under the fonner Act it was also decided that when a trader in Ontario 
became insolvent, and an attachment in insolvency issued to the Sheriff of the 
county in which he resided, the County Court Judge had jurisdiction to issue 
another attachment to the Sheriif of any county in Canada in which the 
Insolvent had property (in rt Beard, 15 Grant, 441). 



11. Writs of attachment shall be made returnable forth- Time for re- 
with after the execution thereof. And immediately upon Noti.;e of 
the receipt of a writ of attachment issued under this Act, 
the Official Assignee shall give notice of the issuing thereof 
by advertisement (Form D). • -- - 

By sec. 22 of the Act of \869, writs were returnable after the expiry of three 
days from the service thereof, with an allowance of one day additiimal for every 
iifteeu miles iii distance from the residence of the debtor to the place of return. 



66 



INSOLVENT ACT OP 1875. 



Duty of t*i, Tlio Olficiiil Assignee by himself or by such Deputy 

cxt'i iitiiig (whicli word bhull in this Act include Deputies) as ho may 
tippuiiit hIuiII, under such writ of attachment, seize and 
attach all the estate, pro}>erty, and effects of the Insolvent, 
within the limits of the county or district for which he is 
appointed, inchuling his books of accounts, moneys, securi- 
ties for moneys, and all his office or busiiiess pai>ers, docu- 
ments, and vouchera of every kind and dcscri^jtiou ; and 
shiill return with the writ a rejjort under oath stating in 
general terms his proceedings on such writ. 

\Vlicn the guanlian make? a reaaonahle claim to gotvls seized under execu- 
tion, on aimlicatiou of the Sheriff an interpleader issue will be directed {Buriu 
V. Steel, 2 L J. U. C. N.S. 181)). 

Assignre jJJ, If the Official Assignee or his Deputy is unable to 

iiKiy break . ^ t. •/ 

open iiouse, obtain access to the interior of the house, shop, store, ware- 
house or other premises of the insolvent named in the writ, 
by reason of the same being locked, barred, or fastened, 
such Official Assignee or De})uty is hereby authorized 
forcibly to open the Siime in the presence of at least one 
witness, and to attach the property found therein. 

The words " in the presence," &c., to the end, are new. See sec. 24 of the 
Act of 18G9. 



M' 



AssigniTiRnt, 
wlien and 
to whom it 
may be 
made, etc. 



ASSIUNMENTS, AND PROCEEDINGS THEREON. 

14, A delator on whom a demand is made by a creditor 
or creditors who has or have filed the affidavit required, or 
against whom a writ of attachment has issued, as provided 
by this Act, may make an assignment of his estate to the 
Official Assignee appointed for the county or district whei'ein 
he has his domicile, or wherein he has his chief place of 
business, if he does not i-eside in the county or district 
wherein he carries on his business ; and in case there is no 
Official Assig.^ee in the county or district where he resides 
or wherein he cai-ries on his business, then to the Official 
Assignee for the nearest adjoining county or district ; but 
such assignment or writ of attachment may be set aside 
or annulled by the Court or Judge for want of, or for a sub- 
stantial insufficiency in, the affidavit required by section 
four, or by section nine, on summary petition of any creditor 



ASSION'MENTS, AND PROCEEDINGS THRREON. 57 

to the amount of not loss than ono hundred dolhii-s beyond 
the amount of any security wliieli ho holds — of which peti- 
tion notice shall have been given to tho debtor anil to the 
creditor who made tho demand of assignment or who issued 
the writ of attachment, within eight diiys from the publica- 
tion of the notice thereof in tho OtHcial Gazette. 

This Act has alxilished the system of voluntary assignments which obtained 
under former Acta, and an assignment is now only permitted after demand, or 
writ of attachment issued. 'J'he olHcial assimieo should, before accepting an 
assignment, be satisfied that tho provisions of section 4 or of section 9, as the 
case may be, have been complied with. In the former case, it is presumed the 
production of a demand with a certified copy of the adidavit annexed, and in 
the latter of the cojiy of the writ of attachment served or evidence of the 
issuing of the original writ, should bo rc(piired. An a8.signment, it has been 
held, is not valid unless acejjted by tho assignee {Bfcfier v. Blackburn, 23 
C. P. U. C. 207 ; Yanhujlun v. Lijon, 12 (Jrant, 308). Under the Act of 1869, 
a difficulty sometimes arose from a deljtor making an assignment after writ of 
attachment had issued, from a conllict of autliority between the interim assignee 
and the guardian. A similar question may still arise between official assignees, 
where the debtor, carrying on business in two different counties, makes an as- 
signment to a dill'erent official assignee from the one to whom a writ of attach- 
ment has already issued. As a further check upon fraudulent or collusive 
assignments, the Legislature has provided by this secticm that a creditor may 
apply wpon petition to set aside the writ or assignment. The only ground upon 
which the proceedings to enforce compulsory li(iuidation may be contested by a 
creditor, mentioned in this section is "for want of or for a substantial insuffi- 
ciency in the affitlavit required by sec. 4 or by sec. 9," from which it would 
Bcem that these affidavits cannot be contradicted by the petitioning creditor 
under this clause. As to the time within which the application must be made, 
when it is to set aside a writ of attachment, notice must be given within eight 
days from the publication of the notice under sec. 1 1 ; whereas, when an assign- 
ment is attacked, the eight days are to be counted from the publication of the 
notice required by sec. 20, because there is no other public notification of an 
assignment provided for. AVhcther an assignment is valid when there is no 
estate or effects, is a question which has been much discussed in considering 
former Acts ; but as no assignment can be made without the active concur- 
rence of one creditor at least, it is not likely to be of much importance under 
the new Act. As it may, however, be sometimes a matter of doubt when there 
are large privileged or secured claims, the following cases are referred to : 

The question of the necessity for producing assets was raised, but not de- 
cided, in Re Smith (4 Prac. & (Jhr. Ifep. U. C. 91). It was contended, on the 
one side, that because the preamble of the Act of 1864 recites that it is ex- 

Sedient to make provision for the settlement of the "estates "of insolvent 
ebtors, where there is no estate there could be no jurisdiction. On tho other 
side, it was said, that the first section extended the application of the Act to 
"all persons." In Re Brett (unreported), on the ajiplication for a discharge, 
the late Judge Harrison, County Court Judge for York and Peel, decided that 
the absence of assets was, in itself, no bar to obtaining a discharge. The point 
now seems to be authoritatively decided (Re Thomas, 15 Grant, 196). This 
was an appeal from an order of a County Court Judge, absolutely refusing 
to grant a discharge on two grounds, one of which was, that the insolvent had 
no estate. Vaukoughnet, C, thought the County Court Judge wrong in the 
reasons assigned for refusing the certificate, and says: — "The want of assets 
does not appear to me to be, in itself, a sufficient reason for refusing the 
discharge." 






i - 



5S 



INSOLVENT ACT OP 1975. 



K'l; 



But when a voluntary asMignmont w:is mado as a mere fraa«lulcnt «lcvico to 
avoiil |i.-iyment "f n <liO>t, there lieiiig no iVHst;t», it wa» c<>ri-«iil»>rv«l siiHieient to 
warrant tlicJmlge ill itfusiiij,' II tliHeli;ii>,'e( 77i'>//j(j.<v. //<i//, t> P. U. I'.l'. I7*J). If 
an insolvent very Mlmitly l)ef(>ie lie applies umler the voluntary a«ti^unent 
eLiuscs (li8i><>3c> of all IiIh property for the piirpoHe, amonj; itthcr tliiuga, of de- 
fraying the ex|KiiHcs of Ilia Holieitor in passing him thnmgh the court, and 
therehy leave notiiing whatever for IiIh ereilitor.s, hi^ application m.iy lie refused 
(AV Dufivir, « I., r. N.S. !<).") ; !{,< \Yit»»n, (> L. T. N.S. 'J-kSi. The fraud 
ui>on eredit4>r8 in using the assets to fee a solieit(»r, instead of brining them 
in, seems to l»e tlie groiiml of these deeisioiis ; and set? R< Xttrimtrk, 6 
L. T. N. S. 755 ; Ex parte Murri/ion, 10 Jur. N. S. 787 ; Ex paiit Mitchdl, 
1 I)e <;. 257. 

When some of the partners an! domieiled in one county and others in a 
different county, tlie assigiinieiit should l>e made by all jointly, and all pr<»cecd- 
iniTs carried on in the county wliore the husiiiess of the firm is trani<iact4.-d (In 
ry Mackenzie it iif. 31 Q. B. U, C. 1). 



Form of 
assit^iiipnt. 



Property 
and powiTS 
of Insolvent 
veiti'd in 
Offlciiil 
Assignee to 
whom as- 
siKniiit nt U 
nuiie unci 
first writ 
i!isue<t. 



Conser\-a- 
tory |)ro- 
(■eedings. 



I IF 

I In 



tii. The assigiimnnt mentioned in the next precetiing 
section may bo in the form E ; and in the Province of 
Quebec the deed of jussignment may be received by a notary 
in the authentic form. 

10. Whenever an Insolvent shall have made an assign- 
ment, au<l in case no assignment shall have been made, but 
a writ or concurrent writs of attachment sliall have issued 
as provided for by this Act, such assignment or such writ or 
writs of attachment, as the case may be, shall vest in the 
Official Assignee of the county or district wherein the same 
shall have issued, all right, power, title juid interest which 
the Insolvent has in and to any ival or personal projMjrty, 
including his books of accounts, all vouchers, letters, ac- 
counts, titles to property and other papers and documents 
relating to his business and estate, all moneys and negotiable 
pai>ei-s, stocks, bonds and other securities, and generally all 
assets of any kind or description whatst>ever which he may 
be possessed of or entitled to up to the time of his obtaining a 
discharije from his liabilities, under the stimo charges and obli- 
gations as he was liable to with reganl to the siime ; and the 
Assignee shall hold the same in trust for the benefit of the 
Insolvent and his creditors, and subject to the orders of the 
Court or Judge ; and he may upon such ortlerand before any 
meeting of the creditors, institute any conservatory process 
or any proceeding that mxy bg neeessi^ry for the protection 
of the estate ; he may also, upon such orvler, sell and dis- 
pose of any part of the estate and eliects of the Insolvent 



I 



A8SIGNMRNTH, AND I'UOCOEDlNnS TIIRIIEOX. 



69 



bbli- 
the 
the 
the 



wliioh may l*o of a |KM-isliHhlo nature ; Huch nshigniiiout or Ceruin 

writ or writs of nttiichraont hIiuII not, however, vest in the exirpud 

Assiynee svidi real and |M'i-s(»nal |in)i>c'rty uk arc exoiii|»t from MjUure. 

seizure and sale under execution, hy virtue of the sevvnU 

Statutes in that case made and proviiKul in the Hevcrid Pro- 

viriff's of the Dominion respectively, nor the property which 

the Insolvent may hold as trustee for otluirs. 

Tliia sootiun varies verj' consitlernMy from sootion 10 of the Act of I860, upon 
wliicli it is fituniled. That section only ineluiliMl voluntary as«igiinient«, and 
by SCO. 29 of that Act tiie a])iMiiiitiiieiit of an asfiignuo afUr writ of nttachment 
iasueil, was dvclan»l to have the same eifcot as to vesting property of the 
insolvent. 

The worila "all right, power, title and interest," kc, are comprehensive 
enough to include powers vested iu the insolvent as trustee or otherwise for the 
benetit of others, which, hy sec. 40 of the Act of I8t!!>, were specially ex- 
cepted from tlie o]K.Tation of an assignment. There is no sei-tion corresptmding 
to sec. 40 «)f that Act. but the last clause of this section excepts proiK;rty which 
tiie insolvent may hold as trustee for others. 

It is probable that the penenal jurisdiction of the Court of Chancery in all 
matters relating to trusts wiiuhl place it in the power of that i.'ourt to api>oint 
a new trustee in case of the bankruptcy of a former one ; although it was 
thought necessary to clothe the Court in Kngland with that power by statute 
(6 Geo. IV. c. 16, s. 79 ; 12 & 1.3 Vic. c. 106, s. I'M). These provisions, how- 
ever, do not render it imi»erativc on the Court to remove a trustee from the 
trust upon his bankruptcy ; but he will be removed if his bankruptcy in the 
smallest degree endangers the trust {la re Bridijmnn'n Trust, 6 Jur. N.S. 1065). 
In case of the bankruptcy of a trustee, the Court of Chancery may a{ii>oint a 
receiver to act in his stea<l (Ex jxirtr Ellis, 1 Atk. 101 ; Lamjley v. Jlairkc, 5 
Mad. 46. See In re Renehaw'a TruM, L. R. 4 Ch. App. 78.3). 

The powers which, by sec. 40 of the Act of 1869, were conferred upon the 
assignee, were restrictetl to those which the insolvent miglit legally execute 
for his own Ix-'uetit, and a doubt may arise as to whether, under this section, 
the assignee is invested with powers which the insolvent might otherwise 
execute for the benetit of others. 

The general rule as to the eCFect of the appointment of an assignee is, that 
all property of the bankrupt, re.al and personal, in jiosscssion, rem.iinder, 
reversion, or in action merely (see below sees. 39 and 40 of this Act), to which he 
was entitled at the date of the assignment, or of the issue of a writ of attach- 
ment, or which he may become possessed of or entitled to up to the time of his 
obtaining his discharge under this Act, is vested in the assignee by virtue of 
his appointment. The exceptions are mentioned in this section, and are 
(1) such real and personal proi>erty as are exempt from seizure and sale under 
execution ; (2) property held by the insolvent as trustee for others. 

Property which has been placed in the hands of a man for a specific purpose 
will not pass to his assigne^i upon his bankruptcy. As where bills of exchange 
were remitted to bankers in London with permission to discount them for a 
particular purpose, and they were not in fact discounted ])efore the bankruptcy 
of the banker to whom they were remitted, they were ordered to be delivered 
up to the assignees (Ex parte Frere, Mon. & McA. 202). If goods be sent to a 
factor to be disposed of, who afterwards becomes a bankrupt, and the goods 
remain distinguishable from the general mass of his property, the principal 
may receive the gootls in specie, and is not obliged to prove his debt ; and even 
if the goods be sold and reduced into money, if it be distinguishable from the 



ti'h 



60 



INSOLVENT AOT OF 1878. 



faotor'H otlior proi)erty, tlie law is tho iiaiiio ( TooW v. ffoUintjworth, B T. R. 
2ir>). If All (txuciitor liuui»iiiL'!i haiikruitt, tho antignuu cannot aci/u tlio iiit'citic 
eUVcts of tliu testator, not vvvn in money wliicli can hv Hpocitionlly AHcurtiiincd 
to l)(loin» to the tcstntor an<l not t<> tlio bankrupt (llitvnnl v. Jemnifft, 3 Hurr. 
13!)*). Si!« alMo Tn>)lor v. Pltnner, 3 M. & S. 575 ; Scott v. Sunumi, Willos, 400 ; 
Whitcomh V. Jacoh, Sulk. 10(» ; an«l CotUr v. Musou, 30 Q. B. U. C. 181). 

AIho, whoru a bankrupt was allowed by hi.<i assignoos to remain in poHsession 
of liiH house ami furniture, in onler to assint in settling tho RiTiiirs of the bank- 
rupt estate, ami the bankrupt traded and bocame bankrupt a second time, it 
waH hohlen tliat the furniture, &c., still remained tlio property of ti>e ansi^noes, 
an<ler the lir.it commiHHion, and did not itass under tho sucoml assignment 
{Walhr V. Biirnell, Doug. 317, and see Muller v. Moss, 1 M. & S. 335). 

A be(iuRiit to a hanknipt, if he should obtain his certificate, nasses to his 
assignees (Davidson v. Chalmera ; Perry v. Chalmers, 10 L, T. N.o. 217). 

Where, after a deed of assignment for hcnefit of credittirs by two itartners, 
ono becotiieH )*aiikrupt, the trustees under the deed are entitled only tu the 
joint estate of the debtors, and not to the separatu estate of either debtor (Re 
Lowden's SeUlement, 10 L. T. N.S. 2C1). 

Although all the property acquired by a bankrupt up to tho time of his dis- 
chargo passes to his assignees, as well as the right of aotion respecting it (see 
below sees. 39 and 40), he may maintain an action for his personal labour, per- 
formed after the issuing of tho writ of attachment (6'A/y<;)f/K/(j/e V. Tomlinson, 
4 Doug. 318; Cook Bank. 428 ; Silk v. Oshorne, 1 Ksp. 140 ; and Heo Willinms 
V. Chambers, 11 Jur. 708 ; S. C. 10 Q. B. 337) ; and he miiy maintain an action 
with relation to after-acfjuired property ( Webb v. Fox, 7 T. 11. 301 ; Fowler v. 
Down, 1 B. & P. 44 ; Evans v. Brown, 1 Esp. 170; Lerochev. Wakemau, Peake, 
190), or sue upm a contract made with him (Camming v. lioeburk, Holt, 172) ; 
unless tho assignees interfere {Kitchen v. Bartsch, 7 East. 53 ; Herbert v. Sayer, 
2 Dow. & L. 49). 

Unliquidated dimagcs which accrued before bankruptcy, by non-per- 
formauco of a cotitract, passed to tho assignee under the words ' ' all the 
present and future personal estate " ( Wriijht v. Fairfield, 2 B. & Ad. 727). 
Causes of action for wrongs j)urelj' personal will not pass (Hmvard v. Crmvlher, 
8 M. & W. (iOl), as for liliel, assault, or seduction. (See L^m/rrsv. Sjn/ire, 13 
M. & W. 571, alKrmedin 12 CI. & Fin. 700 ; BecUuimv. Drah; M M. & W. 846, 
reversed in 11 M. & W, 315, and the reversal affirmed in the House of Lords, 
2 H. L. Cas. 622, 13 Jur. 921). And it seems that the ju-oceeds of a jiulgment 
obtained for such a cause of action would belong to tho insolvent ( I17ii<« v. 
Elliott, 30 Q. B. U. C. 253). A right of action for trover to goods of the insol- 
vent passes to tho assignee, but special damage resulting from such conversion, 
as that insolvent has been injured in his business, will not pass (Smith v. Com- 
mercial Union Ins. Co. 33 U. C. R. 535. See also Breiver v. Dau, 11 M. & \V. 
62 ; Hodijson v. Sidney, L. R. 1 Exch. 313 ; Morgan v. Stebk, L. R. 7 Q. B. 
611 ; Wetherell v. Julius, 10 C. B. 267). 

All property which an insolvent becomes entitled to up to the time of his 
discharge passes to the assignee, but the insolvent is not discharged from any 
debts he may incur after the voluntary assignment or the issue of the writ. 

It is probable that the option to take a lease would pass to the assignee under 
this clause, and might be sold by him and assigned to the purchaser, unless the 
lease is to contain a proviso against alienation (See Buckland v. Papillon, 1 
L. R. Eq. 477). 

A legatee, entitled under a will to such share as testator's widow should 
appoint, and in default to one-fifth of a moiety, by a deed under the Bankrupt 
Act, 18G1, assigned all his " estjite .ind efTects" to trustees for creditors. The 
widow having subsequently appointed to tie legatee the same share he would 



"f, 



InKl 



ASSIONMEXTS, AND PROCKEDIKOS TIIKKEoN. 



61 



have tnken in default of ajiitointment, it wm huM tliat the a|)tK)int<Ml nhnro did 
tuit iKiMS to tho truBtcefl under the dv««l of aMii^ntnfiit (/n rt Viutrd'a TriuU, 1 
L. U. Kq. G(i7, full(iwiii({ Lfe v. OhliH>f, 2 Jur. N.S. 8M). 

The a88ignn)t*iit will nut dinplace • xdicitor'a lien for cnntii, or entitle the 
asaigiac to poHHtMiiion of the paiieri. Whore a |>artnL-r of n tmdiii^' finii wliicb 
ha<l Ik-couiu Inuiknipt was alii'» one of the firm of solicitom whom tho trading 
linn ha«l eniployid in the conduct of Huitji which were jHiidinu at the time of 
hankniptcv, and the asaigiieeii in l»ankru|tt<.-y haii retained otlici' aolicitorH, it 
waa held that tlu- ai8i|i(uee« in l>ankru|itcy were not entitled to an onler for a 
delivery up to the aHfli^^necs of the {Ki|icni in tho soliuitor'H ])OH8e8iiioii, Hul)ject 
t<» their existiiij,' lieu (/« r* J/ox*, 'J L. U. Kq. 34.'>). A payment made hy an 
insolvent after the issue of a writ of attaehnient against him, on account of a 
draft disc(»unted l>y linkers for him, and which was dishou mred hy iion- 
acceptance, is recoveral»lo l>ack hy the uificial aattignee, though the hankers 
were ignorant of the insolvency when they received the money from him (A'o« 
V. Hoi/al CaiiadiHn Bunk, 19 C. 1'. U. C. 347, followed by Rot v. Bank qf 
Brituh. Xorth America, '20 U. C. C. P. 351). 

An assignment mailc by a copartnemhip vesta in the assignee tho scparato 
•states of the partners as well as the ciijiartnership estate ; and tho removal of 
the assignee at a meeting uf the cre«litor8 has the effect of removing him with 
respect to the separate estat<;s as well as the copartuerbhip estate (In re Mac- 
farlane et al, 1'2 L. C. Jur. 239). 

" Which he may be Pos.se8srd or." — These wortls are introduced into tho Act 
for the lirst time, as the Act uf 1869 only used the words "which he has or 
may become entitled to." What may l»e the precise effect of these words it ia 
ditticult to say. The wonls are certainly much more comprehensive than 
before. Whether they will be construed as introducing tho English doctrine 
of reputed ownership (as to which see sec. 15 of the English Act of 1809 ; Dor. 
pp. 4(55 etc. Ifoi/it/l V. Bolle, 1 Ves. 348 ; s. c. 1 Atk. Hio ; Joif v. Campbell, 
1 Sch. & Lcf. 328: Load v. Green, 15 M. ft W. 210; WhUfiefd v. Brand, 16 
M. & W. 28() ; Ex part- Cross, 18 L. T. Kep. 348 ; Horn v. Baker, 9 East. 215 ; 
Re Daniil, 25 L. T. Rep. 188 ; Ex parte Lonj, 31 L. T. Kep. 270), that all 
goods and chattels, at tho commencement of the bankruptcy, in the pos-session, 
order, or disposition of the bankrupt by the consent and permission of the true 
owner, of which g(K>ds the bankrupt is rcput*.-«l or ost nsiblo owner, are part of 
the estate of the bankrupt, and divisible among the gtmcral body of creditors. 
It is presumed that the registration of a chattel mortgage or bill of sale under 
the several statutes in that behalf in the different provinces will protect the 
true owner of proiKjrty from the claim of the assignee of an insolvent who has 
had the possession as ostensible owner. (See Con. Stat. U. C c. 45. Consult 
also sees. 130-134 in/ra, and notes thereto ; Dor. 470, 471 ; Pvoche & H. 22 etc.) 

Notoriety of usage in the particular trade may rebut the presumption of 
ownership (Horn v. Baker, 9 East. 215; Ex parte Whigins, 2 D. & Ch. 269; 
Linfjham v. Begijf, 1 Bos. & P. 82 ; MulleU v. Green, 8 C. & P. 382). So where 
the true ownership was public and notorious {Re Shaw, 18 L. T. Rep. N.S. 355 ; 
Newport v. HoUings, 3 C. & P. 223 ; Waison v. Peache, 1 Scott, 149) ; where 
the course of trade is such that the trader must have the goods of other people 
in his possession, such possession does not hold out a fahe credit to tlie world 
(Bn/son v. Wylie, 1 B. ft P. 83, n. ; Ex parte Dumas, I Atk. 232; 2 Vca. 586; 
Cotter v. Ma.^on, 30 Q. B. U. C. 181); as in the case of factors, goldsmiths, 
bankers, watchmakers with whom watches are left to be repaired (Hamilton v. 
Bell, 10 Exch. R. 545). Goo^ls sent on terms of sale or return, and which have 
not actually been deliveretl, do not pass to the assignee {Re Ashton, 19 L. T. 
Rep. 191 ; see Neate v. Ball. 2 East. 117 ; JAvemy v. Hood, Camp. 83) ; nor 
goods so sent which arrive such a short time before bankruptcy that a reason- 
able time for the purchaser to select those which he wrished to retain had not 
elapsed {Gibson v. Bray, 8 Taunt. 76). Goods ou hire under special agreement 



ni 






62 



INSOLVENT ACT OF 1S75. 






II 



arc not in the order anil disposition of the debtor {Ex parte Emerson, Re 
Hawkins, 20 W. R. 110; 41 L. J. R. Bank. 20). 

•' Under the same Charges and Oeligations as he was liable to with 
REGARD TO THE .SAML." — These are the only words which refer to the rights of 
those having liens or pledges upon proporty of the insolvent, as to wliich a 
special proviso was inserted in sec. 10 of the Act of 1869, and would seem to 
leave, in favour of and against these classes of persons, the same rights and 
remedies with respect to the assignee, as there would have been had no insol- 
vency occurred, except where sec. 74 as to landlords, sec. 83 as to judguicnt 
creditors, and sees. 84, 85, and 80 as to mortgagees, or sec. 91 as to employees, 
may provide a sj)ecial right or remedy. See these sections and notes tliereto. 
M., wlio was holder of goods under an unregistered bill of sale from C, paid 
out a Sheriff who was in possession of the goods, and took possession thereof 
in ignorance of the fact that O. had been adjudicated bankrupt ; subsequently 
M. gave up possession of the goods. Held, that the sum paid the Sheriff should 
be repaid to M. (Ex jMtte MuUkju, In re Cole, L. R.. 14 Eq. 178). 

The power given to institute conservatory proceedings is similar to that given 
to the interim assignee or^aardian by sec. 33 of the Act of 1869. The power 
to disjjose of goods of a perishable nature is new. 

By 23 Vic. c. 25, the articles exempt from seizure in the Province of Ontario 
are the following : — 

1 . The bedding and bedsteads in ordinary use by the debtor and his family ; 

2. The necessary and ordinary wearing apparel of the debtor and his family ; 

3. One stove and jjipes, and one crane and its appendages, and one pair of 
andirons, one set cooking utensils, one pair of tongs and shovel, one table, six 
chairs, six knives, six forks, six plates, six teacups, six saucers, one sugar basin, 
one milk jug, one teapot, six spoons, all spinning wheels and weaving looms in 
domestic use, and ten volumes of books, one axe, one saw, one gun, six traps, 
and such fishing tackle and seines as are in commoa usu ; 

4. All necessary fuel, meat, fish, flour, and vegetables actually provided for 
family use, not more than sutlicient for the ordinary consimiption of the debtor 
and his family for thirty days, and not exceeding in value the sum of forty 
dollars ; 

5. One cow, four sheep, two hogs, and food therefor for thirty days ; 

6. The tools or implements of, or chattels ordinarily used in, the debtor's 
occupation to the value of sixty dollars. 

In the Province of Quebec (Code Civ. Pro. art. 556) the following is the list 
of exemptions : — 

1 . The bed, bedding, and bedsteads in ordinary use by the debtor and his 
family ; 

2. The necessary and ordinary wearing apparel of the debtor and his family ; 

3. One stove and pipes, and one crane and its appendages, one pair of 
andirons, one set of cooking utensils, one pair of tongs and shovel, one table, 
six chairs, six knives, six forks, six plates, six teacups, six saucers, one sugar 
basin, one milk jug, one teapot, six spoons, all spinning wheels and weavmg 
looms in domestic use, and ten volumes of books, one axe, one saw, one gun, six 
traps, and such f .?hing nets and seines as are in common use ; 

4. Fuel and food, not more than sufficient for thirty days, and not exceeding 
in value the sum of twenty dollars ; 

5. One cow, four sheep, two hogs, and food therefor for thirty days ; 

6. Tools and implements or other chattels ordinarily, used in the debtor's 
occupation to the value of thii Ly dollars ; 

7. Bees to the extent of fifteen hives. 



1 1 f-.h 



>;! 



ASSIGNMENTS, AND PROCEEDINGS THEREON. 



63 



:nt 



In New Brunswick and Prince Edward's Island, wearing apparel and kitchen 
utensils to the amount of fifteen pounds, and iu Nova Scotia to the value of 
forty dollars, are thus exempted. 



11. The Insolvent shall, witliin ten days of the date of insolvent to 

" " ' • r \ furnish 

the assi<mment, or from the date of the service of the atuteinentlof 
writ of attachment, or, if the same be contested, within ten tics, asaets, 
days from the date of the judgment rejecting the petition to 
have it quashed, furnish the Assignee with a correct state- 
ment (Form F) of all Ids liabilities, direct or indirect, contin- 
gent or otherwise, indicating the nature and amount thereof, 
together with tlie names, additions, and residences of his 
creditors and the securities held by them, in so far as may 
be known to him. Tlie Insolvent shall also furnish, within 
the same delay, a statement of all the propei-ty and assets 
vested in the Assignee by the deed of assignment or by the 
writ or Avrits of attachment issued against him, and such 
statement f" 11 in all cases include a full, clear, and specific ^hatit 
account of the causes to which he attributes his insolvency, "'ustshow, 
and the deficiency of his assets to meet his liabilities. The 
Insolvent may at any time correct or supplement the state- 
ments so made by him of his liabilities and of his property 
and assets. 

Sec. 3 of the Act of 1869 required the interim assignee to prepare a statement 
of the affairs of the insolvent, and directed the insolvent to assist the assignee 
in doing so. The form V is the same as form B under the former Act. The 
declaration made under oath, as to the correctness of such statement, required 
by the foimer Act, is provided for by sec. 23 infra. And in case of failure by 
the assig- ee to perform any of the acts lawfully required of him, he may bg 
committed by the Judge for contempt of court (sec. 25 infra.) If the insolvent 
fraudulently omits any portion of his assets' from his schedule, he may also be 
punished criminally (sec 140). 

18. The Insolvent may present a petition to the Judge at Petition by 
any time within five days from the service of the writ of sot aside 
u,.^achment; and may thereby pi ay for the setting aside of ^ *- *'"^'* 
the attachment made under such writ, on the ground that 
the party at whose suit the writ was issued lias no claim 
against him, or that his claim does not amount to two hun- 
dred dollars beyond the value of any security which he 
holds, or is not provable in insolvency, or that his estate 
has not become subject to liquidation ; or if the writ of 
attachment has issued against a debtor by reason of his , - 



ill! 



64 



INSOLVENT ACT OP 1875. 



I'lii; 



!ii' 



Hearing in 
such case. 



neglect to satisfy a writ of execution against him as herein- 
before provided, then on any of the above grounds, or on 
the ground that such neglect was caiised by a temporary 
embari'assment, and that it was not caused by any fraud or 
fraudulent intent, or by the insufficiency of the assets of 
such debtor to meet his liabilities ; and such petition shall 
be heard and determined by the Judge in a summary man- 
ner, and conformably to the evidence adduced before him 
thereon ; and the judgment, subject to appeal as hereinafter 
provided, shall be final and conclusive. 

This section corresponds with sec. 26 of the Act of 1869, but differs from it 
in some important particulars. That section did not permit a debtor to petition 
against a writ of attachment who had already petitioned against the demand 
upon which it was founded. As there is no exception made in this section, it 
is presumed that there is not now any objection to contesting the writ even 
when the demand has already been contested. 

The time for the presentment of the petition is now within five days from the 
service of the writ of attachment, instead of being, as formerly, within three 
days from the return day of the writ. 

The grounds uponwldch the attachment may be set aside are : — 

1. That the party at whose suit the writ was issued has no claim against 
the insolvent. 

2. Tliat his claim does not amount to two hundred dollars beyond the value 
of any security which he holds. 

3. That his claim is not one provable in bankruptcy. (As to what claims are 
provable in l)ankruptcy, see note to section 80). 

4. That his estate has not become subject to liquidation. This is the only 
ground mentioned in sec. 26 of the former Act for setting aside the writ, except 
in the case of neglect to satisfy a writ of execution, when the writ might be set 
aside on the ground, 

5. That such neglect was caused by a temporary embarrassment, and not ])y 
any fraud or fraudulent intent, or by the insufficiency of the assets of the 
debtor, 

* These various grounds upon which a writ may be set aside by a debtor form 
a useful criterion for the practitioner as well as for the Judge in determining 
whether, under sec. 9, there is sufficient material to justify the issuing of a 
writ. (See note to sec. 9). 

A debtor to the insolvent's estate, when sued by the assignee, may allege 
that the claim sued for never passed to the assignee, because the person said 
to be an insolvent was not a trader (Orooi^ea v. McArdle, 33 Q. B. U. O. 263), and 
the adjudication of the Judge under this and preceding sections is not an 
estoppel as against a debtor to the estate. (See Revell v. Blake, L. 11. 7 0. P. 
314 ; Re Elston v. Rose, L. R. 4 Q. B. 4 ; Butler v. Hobson, 4 Bing. N.O. 290.) 

When a writ of attachment was issued under the Insolvent Act of 1864, the 
defendant was not allowed to appear in the cause after five days from the 
return day of the writ, though his motion was supported by affidavits that it 
was through an error on the part of the attorneys, the Court holding that they 
had no discretion (May v. Lame et al. 10 L. O. Jur. 113). It lies upon 
petitioner to establish that his stoppage is only temporary, and that his assets 
are sufficient to meet his liabilities (McGready et al. v. Learny, 11 L. C. Jur. 
193 ; see Worthington v. Taylor, 10 L. J , U. 0. 333). 



I (4 



ASSIGNMENTS, AND PROCEEDINGS THEREON. 



65 



set 



11). A copy of the deed of assifjnment or a copy of the RegiBtration 
"writ of attachment, as the case may be, certified by tlie mentiuid 

. . , 1 • transfer. 

Assigiiee or tlie clerk of the court, shall forthwith be regis- 
tered in the registry office of the county wherein the Insol- 
vent resides, and also in every county or registration district 
wherein he may liave any real estate ; in the Province o 
Quebec such deed of assignment or writ of attachment shall 
be accompanied by a description of the real estate belonging 
to the Insolvent, and shall be registered in the county or 
registration district wherein the same is situate, with a 
notice that the same has, by such assignment or writ of 
attachment, been transferred to the Assignee. 

The Act of 1869 provided for the registration only of the deeds of assignment 
and transfer. Now the writ of attachment is to be registered. Formerly 
registration was only required in case the insolvent possessed real estate. Under 
sec. 12 of the -Act of 1869, the deeds were to be registered by duplicate ; now 
they are directed to be registered by certified copy. 

DifHcult questions may arise as to the registration of deeds of assignment 
under tliis clause. As no particular description or detail of the property or 
effects assigned need be inserted in such deed or writ, except in the Province of 
Quebec, a search to ascertain if such a deed is registered against a particular 
lot of land would be of no avail. In Ontario, however, by sec. 31 of the 
Registry Act of 1868, the Registrar is required to keep an alphabetical index 
exhibiting ;-he names of the different grantors, and any person invefi tigating a 
title would be able to ascertain whether the apparent owner had trausfeiTed it 
by a deed of assignment under this act. 

An assignee in insolvency does not, by prior registration of the instrument 
appointing him assignee, acquire priority over a prior vendee of the insolvent 
■{Gollver v. Shaio, 19 Grant, 599). 

!?0. Immediately after the assignment shall have been First meet- 
made, or in the case of an attachment, immediately after the tors. 
delay within which tlie attachment can be contested or 
immediately after the contestation has been rejected, or with 
the consent of the Insolvent immediately after the writ shall 
have been returned, the Official Assignee shall forthwith 
call a meeting of the creditors of the Insolvent to be held at 
the place and on the day and hour to be mentioned, notice 
of which meeting, in the Form Gr, shall be published at least Form, 
twice in the Official Gazette, the first publication of which 
notice shall be at least three weeks before the day fixed for 
such meeting. ■ ' -. ,; ' r f. 

Three weeks' notice is now required, instead of two, as under sec. 117 of the 
late Act ; and a saving in expense is effected by dispensing with publication of 






66 



INSOLVENT ACT OP 1875. 



the notice in a local paper, unless the assignee has not been able to obtain from 
the insolvent a list of his creditors (sec. 21). 

A meeting of creditors duly convened may be lawfully adjourned to a subse- 
quent day, without repeating the atlvertisements and notices re<[uired by the 
Insolvent Act for meetings of creditors (12 L. C. Jur. 241 ; In re MucFailane 
ttal.) 

In a case where shares in a limited company had been twice transferred by 
the company until they came into the lianila of a bund Jiilc purcliaser for value, 
although the first trausfer had been made after baukrui)tcy to the widow of the 
bankru]»t, but the company had not received any notice of the bankruptcy 
(which, ho\ ver, was only given by advertisement in the Gazette), the title of 
the purchaser was held to prevail against that of tlie assignee in bankruptcy, 
who had taken no step for live years to assert his right {In re London and Pro- 
vincial Tekgraph Company, 9 Eij^, 653 ; see also In re Jiunsell's Policy Trusts, 
L. R. 15 Eq. 20). 

Notice to 21, The Assignee shall also fomvard by mail, at least ten 

tor by mail, days before the meeting takes place, a notice in writing to 
every creditor mentioned in the original or any corrected or 
supplementary list or statement furnished by the Insolvent, 
or who may be known to him to be a creditor, and give 
such other notice as the circumstances of the case may 
Proviso. require. But in case the Assignee is unable to obtain such 
list, then ten days notice shall be given by advertisement in 
one local or the nearest jjublished newspaper. 



EXAMINATION OF INSOLVENTS. 

23, The creditors at their first meeting held at the time 
and place fixed for that purpose, may appoint one of them- 
selves as chairman of the meeting; and at all subsequent 
meetings the Assignee shall be chairman. 

23, The Insolvent shall be bound to attend at the first 
meeting of his creditors, and after making such con-ections 
as he may deem proper to his statements of liabilities and 
assets, shall attest the same under oath. He may also be 
examined under oath before the Assignee, by or on behalf 
of any creditor touching his afiairs ; and more especially as 
to the causes of his insolvency and the deficiency of his 
assets to meet his liabilities. 
The last clause is new. See sec. 3, Act of 1869. 



Who shall 
preside at 
meetings. 



Insolvent to 
attend and 
be examined 
as to cause 
of failure 
especially. 



Attestation, f^^ The Insolvent shall sign his examination or declare 

Ac, of ex- ° 

amination. the reasons why he refuses to sign, and the examinati jn 



shall be attested by the Assignee. 



!F 



EXAMINATION OF INSOLVENTS. 



87 



The o^her provisions of the Act being complied with, a discharge cannot be 
refused to the insolvent because of the neglect of the assignee to give notice as 
required l)y this section {Per Vankoughnet, C, in appeal, Jie Thomas, 15 
Grant, 196), 

3«5, The Insolvent shall at all times, until he shall have insolvent 
obtained a confirmation of his discharge, bo subject to the fuitheT ex- 
order of the Court or Judge, and to such otlier examination 
as the Judge, the Assignee, the Inspectors hereinafter men- 
tioned, or the creditors may require ; and he shall, at the 
expense of the estate, execute all proper writings and instru- 
ments, and perform all acts required by the Court or Judge 
touching his estate ; and in case the Insolvent refuses to be Ref„gai to 
sworn or to answer such questions as may be put to him, or to brcon" ' 
to sign his answers or the writings or instruments, or refuses ^?^^ **' 
to perfomi any of the acts lawfully required of him, such 
Insolvent may be committed and punished by the Court or 
Judge as for a contempt of court. 

This section is new. 

It was held In re Berthelot, reported in La Revue Legale 3, p. 122, that a 
Judge in the Province of Quebec has no jurisdiction over matters in insolvency 
which have been commenced in Ontario, where the bankrupt had his domicile, 
even though the assignee resided in the Province of Quebec ; and that the Judge 
who has jurisdiction is the Judge as to the insolvent's domicile. 



f 



ll 



il 



m 



30, The Court or Judge may also on the application of Examinar 
the Assignee, of the Inspectors, or of any creditor, order or husband 
any other person, including the husband or wife of the In- ° "*'*° "^^ 
solvent, to appear before the Court or Judge or the Assignee, 
to answer any question which may be put to him or her 
touching the afiairs of the Insolvent and his conduct in the 
management of his estate ; and in case of refusal to appear 
and to answer the questions submitted, such person may be 
committed and punished by the Court or Judge as for a con- 
tempt of court. ■ 

See sees, 112 and 1 14 of the Act of 1869. 

A witness appearing upon an order granted by the Judge, under this clause, 
is not boimii to be sworn until his expenses are paid. But the insolvent who 
appears by virtue of the same order is not entitled to claim payment of his 
expenses before being sworn, and he may be examined before as well as at or 
after the meeting mentioned in section 109, above ( Worthingtan v. Taylor, 10 
L. J. U. C. 394). 

If the witnesa be required to produce any deed, document, or writing, that 
should be specially referred to in the summons ( Wright v. Mavdt, 10 M. & W. 



m 



n^n^ 



68 



INSOLVENT ACT OP 1875. 



527). But no power to order the production of documents ia given hy this 
section, as there is by sec. DO of the English Act. 



Appoint- 
ment of Of- 
llcial As- 
signee. 

Ontario. 

Quoben. 



District, 
what to he. 



Security 
given by 
Official 
Assignee. 



ASSIGNEES AND INSPECTORS. 

27, The Governor in Council may appoint in the several 
Provinces of Canada, except the Province of Quebec, one or 
more persons to be Official Assignee or As.signees or Joint 
Official Assignee in and for every county ; and in the Pro- 
vince of Quebec, such appointment of an Official Assignee, 
or Official Assignees, or Joint Official Assignee, shall be 
made in and for each judicial district in the Province, except 
that in each of the Judicial Districts of Quebec, Montreal, 
and St. Francis respectively, such appointment may be made 
either for the whole district or for one or more electoral dis- 
tricts in the same ; and the word " district " shall mean 
either a judicial or an electoral district as the context may 
require. 

28. Each person so appointed Assignee or Joint Assignee 
shall hold office during pleasure, and before acting as such 
shall give security for the due fulfilment and discharge of 
his duties in a sum of two thousand dollars, if the popula- 
tion of the county or district for which he is appointed 
does not exceed one hundred thousand inhabitants, and in 
the sum of six thousand dollars if the population exceeds 
one hundred thousand, — such security to be given to Her 
Majesty for Her benefit and for the benefit of the creditors 
of any estate which may come into his possession under 
this Act ; and in case any such Assignee fails to pay over 
the moneys received by him or to account for the estate, or 
any part thereof, the amount for which such Assignee may 
be in default may b? recovered from his sureties by Her 
Llajesty or by the creditors or subsequent Assignee entitled 
to the same, by adopting, in the several Provinces, such 
proceedings as are required to recover from the sureties of a 
sheriff or other public officer. 

The security is to be given for the benefit of creditors, and the breach of dnty 
for which the sureties may be made liable is the failure to pay over moneys 
received, or to account for the estate or any part thereof. It would seem that 
only creditors or the subseqent assignee can make the security available, and 
only for moneys received by the assignee by virtue of his office. 



Recovery 

under 

Court. 



i 



■ I 



ASSIGNEES AND INSPECTORS. 



69 



See, aa to the mo<lc of proceeding against a Sheriff in Ontario, 27 and 28 
Vic. c. 28. 

a. Tho Official Assignee may also be required to give in Aiiditionni 
any case of Insolvency such further security as, on petition 

of a creditor, the Court or Judge may order, — sucli additional 
security being for the special benetit of the creditors of the 
estate for which the same shall have been given. 

b. The Official Assignee shall be an officer of the Couii; R.si)onsi- 

1 . ..,..., ,. . - I'll- liility. *c-. 

having juriscuctiou m the county or district for wJiicli lie is of ()iBiial 

appointed. He shall as such be subject to its summary 

jurisdiction and to- the summar}' jurisdiction of a Judge 

thereof, and be accountable for the moneys, property and 

estates coming into his pos.session as such Assignee, in the 

same manner as sheriffs and other officers of the court are. 

The tjrovision as to additional security existed in the former Act, but it 
might, uniler that Act, be retjuired \*nth()ut the order of the Judge, by resoln- 
tion 01 creditors (see sec. 39, Act of 1869). 

An assignee in insolvency, sued for trespass in taking and selling goods, is not 
entitled to notice of action, nor is he a public officer within c. 1*2G, C. S. U. C. 
{Archibald v. llahlan, 30 Q. B. U. C. 30). Wlien the plaintiff claimed the 
right to the possession of the goods of the insolvent under a chattel mortgage, 
it was held that he was not precluded by this section from bringing an action 
at law against the assignee (Archibald v. JIaldan, nbi siqira). 

But where goods were mortgaged, and, after possession taken by the as- 
signee, were t aken away by the mortgagee, held that mortgagee should have 
proceeded under Insolvent Act, and that he was liable in trespass for taking 
them (Duinble v. White, 32 Q. B. U. C. GOl. See sec. 125 and note). 



t 



III 



30. The creditors at their first meeting or at any subse- Appoint- 
quent meeting called for that purpose, may appoint an security 
Assignee who shall give security to Her Majesty in manner, Assignee' 
form and effect, as provided in the next preceding section, 
for tlic due performance of his duties, to such an amount as 
may be fixed by the creditoi-s at such meeting. In default 
of such appointment the Official Assignee shall remain the 
Assignee of the estate, and shall have and exercise all the 
powers vested by this Act in the Assignee. The creditors 
may also at any meeting called for that purpose, remove any 
Assignee and appoint another in his stead. A certified 
copy of any resolution of the creditors appointing an Assignee 
shall be transmitted in eveiy case to the Clerk of the Court 
wherein the proceedings are pending, to remain of record in 
his office. 



70 



INSOLVENT ACT OP 1875. 



Whnt rrodi- No croditor slinll vote at any mooting unless present por^ 

tors only II ill 1 • 

simii vdieat 8<>"iilly, 01' rcpinsontcd l)y some jkji-sou having a written 
mee ngs. authority, to 1h; filed with the Assignee, to act at any or all 
such nic(!tings on his l)ehalf, and no more thati one pei'son 
shall vote as a crcditor on any claim for the same debt ; per- 
sons purchasing claims against an estate after insolvency, 
shall not bo entitled to vote in respect of such claims, but 
shall, in all other i*es[)ect8, have the same rights as other 
creditors ; and no claim after being jiroved shall be divided 
and transferred to another ixii-son or party to increase the 
number of votes at any meeting : each claim shall continue 
to have one vote only in number. 



Claims not 
to be (livid- 
fid for Vot- 
ing. 



Aa to who are crdun.ira entitled to vote, see sec. 2 (h.) supra; as to mode of 
calling the meeting, ace sec. 101 ; and as to the mode of voting, sec. 102 Infra. 
The claims of creditors must be proved in the manner provided by sections 104 
and 105 I)efore they are entitled to vote. Under section 5 of the Act of 18G9, 
if no creditors attended the meeting, no adjournment being made, the interim 
assignee became assignee, and there was no provision for calling another meeting 
for the purjiose of appointing an assignee ; this, however, may now be done, 
and the olhcial assignee remains assignee of the estate unless or xintil such 
meeting is called. The official assignee is to retain the estate until security is 
perfected by the newly-ajjpointed assignee, sec. 30. The appointment of an 
assignee must be by resolution in writing, a copy of which, duly ccrtilied, is to 
be transmitted to the clerk of the court. It would seem that the nixmber of 
creditors present at the meeting for the appointment of an assignee is not 
material ; it has been held that if one only be present, he may elect himself 
(Cooke, 28G). 

The assignee, whom the creditors are empowered to nominate imder this 
section, may be resident out of the county within which the insolvent has his 
place of business, and he need be neither a creditor nor an official assignee. 

At a meeting of creditors held for the purpose of giving their advice upon 
the appointment of an official assignee of a partnership estate, it was held that 
the creditors of the individual partners, as well as the creditors of the tinn, 
had the right to vote in the choice of an assignee (Luxtori v. Hamilton <t Davis, 
10 L. J. U. C. 334). 

At the first meeting of creditors to choose an assignee, it has been considered 
necessary to entitle the representative of a creditor to vote, that he should be 
appointed under a duly authenticated letter of attorney (lie John Campbell, 1 
L. J. U. 0. N.S. 135). 

Although no neglect or irregularity in any of the proceedings antecedent to 
the appointment of an assignee shall \ntiate the subsequent assignment, it will 
proliably be held that an omission of any such proceedings would render the 
assignment one made " otherwise than in the manner prescribed by this Act," 
and an act of bankruptcy upon which proceedings in compulsory liquidation 
miglit be taken by a creditor. 

As the assignee is subject to &et summary jurisdiction of the Judge (see 
below, sec. 125), he may be reiuoved from the charge of an estate, as well as 
from his official situation, imder this section. It may be well in this place to 
consider fully the principles upon which assignees have beeu removed uuder 
the EngUsh practice. 






I" I I 



ASaiONEES AND INSPECTORS. 



71 



Loril Hanlwickc Btatcil tho nilo an to renioval to he, that the a^pigneen oxight 
to bu contiuuod unless tliu potitioiutrs seeking their removal ooiihl show tlmt 
there was some objection with regard to the Huhstancc or the integrity of the 
persons who are chosen assignees (A'.c pdrtv drfijii'K r, I Atk. !H) ; as where the 
party chosen has an interest adverse to that of ti>e general hody of creditors 
{Er parte (^(iinh/, M. & McA. H)S) ; or is an accounting party to the estate 
(Kj: parte lintt'^', 1 Bank k Ins. Kei). 28')). 

The Court will set aside tho choice of tho creditors, and direct a new one to 
he maile, if the parties voting in the choice he not entitled to vote (/i'-c parte 
Jtowc, l)e<r. Ivep. Ill), or, if a person, who is liable to account to the bank- 
rupt's estate, be the only one who has jtroved, and elect himself {Ex parte 
irriuiKdale, 28 L. T. Rep. '207) ; or if the bankrupt have interfered in the choice 
{Ex parti- Malho'Ux, 3 M. & A. 70.S) ; or may exercise an undue influence over 
the i)arty chosen (Ex parte Mor.i<', Deir. 478) ; or if the choice have been pro- 
curetl by frauil (Ex partee Snrtern, 12 Ves. 10). In the livst cited case, Lord 
KMon said, " It is a general rule tiiat the ai»pointment of assignees will not be 
disturbed when chosen by those who can make imme<liate proof, although 
those who may not have been prepared to do so would have turnetl the scale 
(»CQ o.hn Ex parte Waollri/, Hi. &J. .St>(5 ; Ex parte Ihittectill, 1 Rose IDo). 
But where the majority of the creditors were accidentally excluded from voting 
iu the choice (Ex parte DechapeanraiKje M. & M. (J. A. 174) ; or had not suffi- 
cient notice to enable them to be ])resent (Ex parte ^forrl<, 1 Dea. 498), a new 
choice will be directed. So also where the assignee had been chosen without 
his consent or knowledge and declined to act (Ex parte I\arsoii, 3 Dea. 324). 
If an assignee appoints a s(dieitor who is related to the insolvent, and refuses 
to remove him, he may be himself removed (Ex parte Jiate-^, 1 DeM. & G. 452). 
If an iissignee be guilty of any misconduct, or misbehave himself in the trust 
reposed in him, he will be removed and ordered to pay the costs consequent 
upon his removal (Ex parte AiKjIe, 4 1). & C. 118). So an assignee may be re- 
moved where he improperly connives at the insertion in the insolvent's balance 
sheet of a petitioner's debt, or when the assignee becomes insolvent (Ex parte 
Perriier, 1 M. I). & D. 276 ; Ex parte Surters, 12 Ves. 10) ; but the petition 
must be presented promptly (Ex parte Caslett, 1 Moll. G2). Mere poverty, 
though of itself not a sufficient ground of removal, yet if attendeil by sus- 
picious circumstances, as the use of fictitious votes in the assignee's election, 
will warrant a removal (Ex parte Copelavd, 1 M. & A. .30;")). As stated already, 
the Court will remove an accounting party to the estate from the office of as- 
signee (Ex parte MeiiM, 4 1). & C. 725 ; but see Ex parte Doi/le, 2 iVIoU. 149). 
^\ here an asisignee, acting under a liouil fide belief that all the other creditors 
were to be compounded with, agreed with the bankrupt to compromise his own 
debt, the court declined to remove him (Ex parte Dacison, 2 Bank & Ina. 
Rep. 89). 

If an assignee abscond, or become permanently resident out of the country, 
another will be chosen in his place (Ex parte Hliju'ins, 1 Ba. & Be. 218 ; Ex 
parte Grey, 13 Ves. 274). By the English Act of 1861, sec. 124, continued re- 
sidence out of England for three months, is a sufficient reason for removing an 
assignee. 

Assignees will not he permitted, cither directly or indirectly, to bccoine pur- 
chasers of any of the insolvent's property (Ex parte Badcork, M. & McA. 231, 
238) ; and any assignee so purchasing without leave of the Court, will be re- 
moved, and ordered to account for the profits (Ex parte Alexander, 1 Dea. 273) ; 
but see (Ex parte Thomson, 9 L. J. Chy. 17), where the purchase of a small 
portion only of the estate by the assignee did not justify his removal. 

Where there was no doubt of the respectability of an assignee, and the 
creditors were desirous of continuing him in his otHce, an had given their 
sanction to the application, he was permitted to bid at the sale of the bank- 
rupt's estate (Ex parte Moreland, M. & McA. 76 ; Anon. 2 Russell, 350). 



Ill 



72 



INSOl^VENT ACT OF 1879. 



If an a8iiigncc wish t<> |>urc-h!iHo at any Halo of tlio insolvont'ii pntpc-rty, he 
must tint petition tliu Court to bu tliMcliargnl from liis otKou (Air ptirU Alfx- 
aiutfr, I iK^a. -73), wlu-n tlio court will iiuiko tlio onltT, Init the |ictitioner 
must pay his own costs of thu pi-titioii (h'x /xirff /'« /•/>•!, 3 M. I). & I». ;W5). 
This ](otition niunt )>c' Mirvol on tho itisolvcut, iind in Knit,'lau«l, whi-rv there 
is oftun nioru than ono iiNHii^nuu, upon tho co-unsii^nuu (t'x jutrU tkf/t, 4 Maiid. 
45U) ; here nu iluultt tho inspector hIiouIiI bu nutitied. 

The ilutics of -■ aigneo are to confornj himself to the law ; au<l the per- 
forniancc of tl cs may be Miimiiiarily enf<irciMl by the .huLt'. and a re- 

moved assi^ne. .'na Hubject to tliis jtiri^diotion until he h:ui fully a(.vouutcd 

for his actii and conduct while he rcutaiued aMttignee (//i re B'A«/unly £! U. C. 
C. r. 05). 



Transfer of 
ei4t:iti? liy 
Offliiiil A8- 
Miguee. 



Notice of 

appoittt- 

meut. 



Assijniee 
not to act as 
ageiitii uf li 
creditor. 



Exception. 



Place for 
meetings. 



Inspectors, 
their aj)- 
polntiiient, 
ic. , by cred- 
itors. 



J50. As soon as the .security i-»'(piinMl from the Assignee 
ajiiH)iutt;;l l)y tho creditors shiill have het-n t'liriiLshtil hy him, 
it shall be tlie duty of the Ottieial Assignee to account to 
him for all the estate and property of the Insolvent which 
has conie into his j)OHsesHion, and to j>ay over ami deliver to 
him all such estate and property, including all .*.nni.s of 
money, books, bills, notes and docunient.s whatsoever be- 
longing to the estate, and to execute in his favour a deed of 
assignment in the Form H. 

!(1. Every Assignee, on his becoming such, shall give 
notice of his api)ointment as such by advertisement iu the 
Fonn I, and by a copy thereof scnit to each cretlitor by jKist 
and |Mjst-paid. 

3'i, No Assignee shall act as the attorney or agent of 
any creditor in reference to any claim or deimmd of such 
creditor on an insolvent estate of which he Is the Assignee. 

33* An Assignee may, however, on l^ing autLorize<l by 
the Judge, Jict ixs tlie attorney or agent of a creditor when 
the action to be taken is in the interest of the estsitc or of 
the creditors generally. 

34, The creditors may, from time to .time, at any meet- 
ing, determine where subsequent meetings shall be held ; 
and, until they shall have passed a resolution to that effect, 
all meetint's of the creditors shall ho held at the office of the 
Assignee, unless otherwise ordered by the Judge. 

So. The creditors at any meeting may appoint one or 
more Inspectors, who shall superintend and direct the pro- 
ceedings of the Assignee in the managemeut aad winding 



▲SSIONERH AND INSPKCTORH. 



73 



(pc 



up of tlio ostiito ; ami iIm-v may also at amy sult.s«»quent 
iiMM'tiii;^ licM for that |>urjM).sc, rcvoko tlio uppoiiitiiKUit of 
any or uil tlio said Iii.siH'ctorH ; ami upon Huch rovooation, 
or in case of death, r«.si;;nati(m, or ubsriico from the Pro- 
vince of such Ins|KH;tors, may appoint others in their Htead ; 
and siu'li In.siK*ctors may Vhj paid m h remuruiration as the R.-miinira- 
creditors may determine ; and whenever anything is allowed Hi^-<t<in»: 

* 1 1 T I II I tiH-y «n<l 

or dn-eeted to he <lone by tin' Inspectors, it may or shall he AsiiKiK «• ii«>t 
1 11 1 « ' •<• 1 II . , to |>iir>hait<- 

(lon<^ by the sole InsjK'ctor, it only om* has heen aj)pointcd. Ihb-Ivimu' 
lint no Assi^^nee, as Insp«'ctor of any insolvcuit estate, shall 
purclm.so directly or indirectly any part of the stock-in- 
trade, debts, ur lUMetd of any description, of Huch insolvent 
estate. 

Tho provisions of this clause are higlily iniportaiit. Iii.s^)ect<>ritbip of thin 
kind is unknown in the English ))ankni|>tcy laws, umk'r winch insjK-otors are 
only api)ointc'<l in cn^a there are joint and ucparuto crcilitors of the i)ankrupt, 
to h>ok after tho intere.st8 of the sepurutu or of tho joint creditors as a eLisf 
( If}j- IKirtc Milrs, 2 llosc, G8 ; Ex pitrte liusano, 1 Rose, 2GG ; Ex jntrle Hobrrtji, 
29 L. T. Hep. 31K)). 



•50, The creditoi-s may, at any meeting, pass any reaolu- ^'*P^i **' 
tion or order directing the Assignee how to disi)0se of the I'lioivent. 
estate, real or jiereonal, of the insolvent ; and, in default of 
their doing so, the Assignee shall be subject to the direc- 
tions, ordei-s and instructions he may from time to time 
receive from the Inspectors, with regard to the mode, terms 
and conditions on which he may dispose of tho whole or any 
part of the estate. 

3T. Any one or more creditors whoso claims in the oi.jectionti 
ag}n"ey:ate exceed tive hundi-ed dollax'S, who may be dissatis- ""><<« "f "i'"- 
fied with the resolutions ailopted or orders made by the estate, 
creditors or the Inspectors, or with any action of the 
Assignee for the disposal of the estate or any part thereof, 
or for postponing the disj)osal of the same, or with reference 
to any matter connected with the management or winding 
\ ^ jf the estate, may, within twenty-four hours thereafter, 
give to the Assignee notice that he or they will apply to 
the Court or Judge, on the day and at the hour fixed in 
such notice, and not being later than forty-eight hours after 
such notice shall have been given, or as soon thereafter 
as the parties may be heard before such Court or Judge, to 



w -i 



74 



IX80IAKNT ACT OF 1875. 



Ki'uiiriKiiy rescind Hiicli rf'KoIutidfiH or onU'in. A.iul it kIiuII iMMiiwfiil 

I null or 

JiHiKti. for tlu) Coiirt or Ju«lj;<% jift«»r hearing tlin InM|»('(;t<)rH, the 
AHHi;,Mioe, 1111(1 crnlitoi-H jiit'sont at tlio tiiim and \thu:o. ho 
fixod, to approvo, rnseind or modify tli«' snid rt'MolutioiiM or 
oi'd«'rs. Ill Ciisf of tlu^ appUratioii iM'iii;^ rcfusjid, tlir party 
applyin;^ h1i;i!I pay all costs occasioned thcrtd.y, otherwise 
the costs and the expenses shall he at the dimsrotion of the 
Judge. 

Thin clivusc in imw, Mid ^ives t<» n niirority of eroditnrH who may l»o (linsatis- 
lioil, a voiy valualtlo Hafeguiird iigiiiiiHt iiapropor inaiiaguineiit of thu u^itate. 



PowcrH of 
iDHiilvcnt 
vtiHti^il in 

AMrliglUlU. 



ProviHi) ns 
to Hale of 
entire 
tiiitatti. 



*|H 



•W. The AHsi<^neo sliall exercise all the rights and powers 
of the Insolvent in reference to liis property and estate. 
And ho shall wind up the estate of the Insolvent, by the 
sale, in the ordinary mode in which such salens are made, of 
all bank or other stocks, and of all movabhj projierty be- 
longing to him, by the collection of all debts or by the sale 
of the estate of the Insolvent, or any part thereof, if such 
bo found more ailvantageous, at such price and on such 
terms as to the payuient thereof as may seem most advan- 
tageous : 

Provided that no sale of the estate eii bloc shall bo made 
■without the previous sanction of the creditors given at a 
meeting called for that purpose ; and provided also that no 
such sale shall affect, diminish, impair or j)Ostpone the pay- 
ment of any mortgage or privileged claim on the estate or 
property of the IiLsolveut, or on any portion th(ireof. 

suTtbrdebts 39. The Assignee, in his own name as such, shall have 
ven/'Ti!* *^® exclusive right to sue for the recovery of all debts due 
to or claimed by the Insolvent of every kind and nature 
whatsoever; for rescinding agi'eements, deeds and instru- 
ments made in fraud of creditore, and for the recovery back 
of moneys alleged to have been paid in fraud of creditors, 
and to take, Ijoth in the prosecution and defence of all suits, 
all the proceedings that the Insolvent might have taken for 
the benefit of the estate, or that any creditor might have 
taken for the benefit of the creditoi-s generally ; and may 
intervene and represent the Insolvent in all suits or pro- 
ceedings by or against him, which are ])ending at the time 



scrra axd inhpectoiw. 



75 



of liiH ap|K>ititiiiont, ami on Imm apitlinition iiiiiy hiivo IiIh 
naiiM> ins<>i-to(l tlu'i-fin in tin* |»l«c« of tlmt <»f tin* IiiMoIvrnt. 
And if, after an lUiHi^^nnirnt lia-s Wh-ii nta«l«>, or a >^'rit of 
attachniont liiut isHiml un<l<*r this Act, an«l U'foro ho hiwi 
ohUiincd his (li.schar;'o nniler thiM Act, the insfjlvent mwh '^ inHoivrnt 

" ' Hrii'K for tlio 

out anv writ, or institutos or continues any itnx'tMMlinf; of Hum.' mtor 
any kind or natiin' whatsoever, ho shall L'ivr to the op|M)site <'ruiUi;h- 

' ' llU'Ut. 

party stich H»M'urity fi»r costM as shall ln'onlorrd hy tho Court 
hefon* which such suit or pnxr<f«lin^ is |M'n«liM<^', In-fort' such 
party shall Ihj ImjuiuI to Hp]ionr or plead to the samo, or tiiko 
any further proceeding tli(>rt'iii. 

A. and B., trmlera, ina4lv an OMii^nicnt under the Insolvent Act. A fud^pnont 
at law having la-en ohtained u^'ainst A. his intereHt in tliu partnerHhip OHHots 
wiM Hold for a nonn'nal considcratiun t^i C, who hiul notice of the inHolvencv 
proceed ingH. ('. then entered into iM«i«ei«iinn of and otIierwiHe interfered with 
the |)artnert)hip gotxlM, so as to hinder the ]daintitrs from exeoiitin^ the duties 
of their ollice ; an injunction was CTanteil. on a]>p!ication of the aHHignees, to 
restrain the defemUint from further interference. {WiUun v. Corby, 11 
Grant, D'J). 

An ohjection was raised to an application under this provision hy an oflTicial 
assigiiee to ho allowed to intervene and represent the insolvent in a suit wherein 
the inH(»lvcnt was plaintiff, on the ground that the insolvent ]iIaintitT was a 
foroijinor, neither resident nor domiciled in Canada. Tlie point is of nmch 
importance, antl was rai.sed, though not decide«l, in .)/» l/nii v. Xichnllx (27 Q. B. 
U.tJ. 107). It was considere<l necessarj', in the English Act of 18(>1, sec. 'J77, 
to enact tliat it should extend to aliens and tlenizena, hoth to make them si * ject 
thereto and to entitle them to all the benefits given therehy. 

To a suit for foreclosure against the assignee of the estate of a l)ankrupt 
mortgagor, the bankrupt is not a necc-isary party (Torrance v. Winlerbottoni, 
2 (Jrant, 487). 

A bill filed by one of the creditors of an insolvent to recover property alleged 
to belong to the insolvent's estate, on the mere allegation that the assignee in 
insolvency refused to sue without an indemnity against tlie costs of the suit, 
ami that the plaintiff, through p«iverty, was unable to give such indemnity, is 
demurrable (DacUs v. i>neH, 2 De<;. F. k J. 463). 

Even the charge of frauil, in a bill file<l against a bankrupt and his assignees, 
seeking to set aside certain conveyances as having been fraudulently procured 
by the bankrupt before the bankruptcy, <loe3 not justify the making the bank- 
rupt a party (Uilhtrt v. Lftrii, 2 J. & H. 452). 

In the same case it was also held that, although a dccr^^e declaring the deeds 
to be fraudulent would in a sense moke the bankrupt a trustee of the property, 
this was not .sufhcient to make him a projier i>arty to the suit. 

Following Gilbert v. Leici^, a «lemurrer by an insolvent, on the ground that he 
was not a proper l)arty, was allowed in Wiltton v. Clmholm (11 Grant, 471), 
where a bill was lileil by assignees under the Insolvent Act to set aside a settle- 
ment executed by the insolvent, on the m."irriage of his daughter, with a secret 
trust in his own favour, the bill also charging that the insolvent defendant was 
in the enjoyment of the proj)erty. It is remarked in the judgment that *' one 
reason given for allowing parties to a fraud to be made defendants in certain 
coses, though no reUef except costs is prayed against them is, that the plaintiff 



76 



INSOLVKNT ACT OF 1875. 



may l)o assured of his costs," and it imist bo atlmittcd that this reason can 
seldom be ap[)licat)lo to the case of a baTdirui)t. 

As a f^eiieral rule, a .suit in Chancery is not abate<l l)y tli(! ])laintiH"H Ijank- 
niptcy, but becomes dercetive only (McKnah' v. Mc/j./ikII, 15 (Irant, 44'J). To 
cure the defect, tiie assignee sliould become a party (Story K((. 1*1. sees. 
32y .*i:{l ; Mitford Kq. I'l. HI ; U'Dh/uH v. Mum/on/, l» Ves. 424); and the 
Court, ui)on special ai>[)lieation, will dismiss the bill (but, n-i it seems, without 
costs) unless the plaintilV make his assijfiieeH, or upon noti(;e, tliey mako tliem- 
Belves parties within a limitcid time ( WU/'uiinx v. K'ukIit, 4 V'(!S. .'W7 ; Wheeler 

V. Mdllim, 4 Madd. 171 ; Porter v. C'w, 5 Madd. 80 ; Sharp v. Unllell, 2 Sim. & 
Stu. 4!)(5), or a bankrupt or insolvent may proceed, if the suit is neces.iary for 
his jtrotection (Anon. I Atk. 2(i;{ ; 1 Maild. U. 42;")), or if his assignees do not 
think fit to prosecute the suit, and he conceives that it is for his advantage to 
do so {Loirnde.'i v. Tai/lnr, I .\la<ld. 42:5; 2 Rose U. (!. ;{(;."> bTi) but it seems 
that he must ])etition for leave to use the name of the assignee for the jnirpose 
of tlie proceeding, he inilemnifying them (5 Ves. 587 51)0 ; Ileiijiehl v. Soloinon/i, 
9 Ves. 77 ; 3 Madd. 1()8) unless he set:ks his personal protection only against a 
demand which cannot be proved, or vvliich the persfui making the demand may 
not think lit to prove, or from which he may not be discharged (Mitford \'a[. 

VI. 81 ). But see Pdi/nc v. DHrr ( L. 11. (J ('h. Aj)]). 578), -where it was ludd that a 
bankrupt camiot file a bill Avithout ajjplying to the Cjourt of J>.'inkruptcy, and 
that leave to amend a bill liled witiiout authority shouhl have been refused witli 
costs. (See also Motion v. Moojen, L. It. 14 Va[. 202 ; Cdiiieroii v. /'Jui/er, 9 
U. C. L. J. liChi). If through oversight the assi^uee is not nuide a party, the pro- 
ceedings do not appear to \>v, wholly void {JiuJ:.s v. Ji'inlM, 2 lili. 5!).'} ; J'l/lauds 
V. Lntoarhe, 2 lUi. 5(;(; ; Freeman v. Pennlii'jlon, 3 DeO. F. & J. 2It()), but the 
Court may make such order as the justice of the case requires. At law, suits 
commenced by a bankrupt were always aUowed to be carried on in his name for 
the benefit of the estate without the assignee becoming a party (liililnuH v. 
Mantel, 2 Wils. 358 ; Jfeimt v. Maiitd, lb. 372 ; Kretchman v. lieiier, 1 'V. li. 
4G3 ; WaiKjk v. Amlen, 3 T. 11. 437 ; Andrews v. Palmer, 4 B. & Aid. 252). 



Partnorsiiip .|0 jf r^ partner in an unincorporated trading' company 

dissolved Ijy ^■"■» 1 ^ I n I J 

in8oiv(!ii(y or coi^artnershi;) becomes insolvent witliin the meaniui' of 

ofapartucr. _ ^ ... 

this Act, and an Assi^'neo is appointed to tlio estate of such 
Insolvent, such partnership shall thereby bo held to be dis- 
solved ; and the Assignee shall have all the riglits of action 
and remedies against the other partners in sucli comj) my 
or co-par< nership which the said Insolvent partner could 
have or exercise by law or in equity against his co-partners 
after the dissolution of the firm; and may avail liiiusolf of 
sucli rights of action and remedies, as if such co-partnership 
or company had expired by efflux of time. 

The enactment here that a partner diip becomes disso!'ed by the bankruptcy 
of a member of the firm ia merely the repetition of a well understood doctrine 
of the English law. 

C. entered into an agreement with R.. that II. should buy antl sell goods on 
behalf of C, and that the business should be carried on as U. & Co., ii. being 
paid by a salary and a percentage on profits. The business was managed by 
It., but O. had bought goods for it. Each Ijccame bankrupt, an' was held 
that the ])ook debts and stock-in-trade of 11. & Co. were joint estate of the two 
{Li re Mowlaud d: Crankuhaw, L. II. I Chy. App. 421). 



ASSIGNEES AND INSPECTORS. 



77 



One mcmhcr of a firm was adjudicated l)aiikrii)t under the English Act of 
1801, the others heing out of the jurisdiction, and tliere was no joint adjudica- 
tion. The joint ereditor.s proved (lel)Ls to many times the amount of the separate 
debts, and aj)[)ointiid as assignees one joint creditor and the nominee of another. 
Separate estate was got in to an amount sutHeient for payment of a hirge divi- 
dend on tiie se[)Uiate debts ; l)iit no joint estate had been gi> in. A separate 
creilitor, with the assent of nearly all the other separate creditor.",, api)li(!d for 
an order that a Tueeting of separate creilitors might be held for apitointing an 
inspector to protect tiieir interests ; and it was hehl that the st!parat(i creditors 
ought to be at liberty to a))jioint one, but that he must not take any steps 
without tiie sanction of the registrar [Ex jxirfe Mi.lfjourn, in re Mclhourn, L. II. 
6 Ch. App. 83')). 

K., a partner in the firm of K. & Co., being entitled by the articles of part- 
nership, and desiring to withdraw a sum of money from the capital of the firm, 
whi(;h was in a state of ins(dvency, bills of exchange to that amount in three 
sets wei'e bought by and made payable to the order of the firm, and tlie first set 
of bills were endorsed by K. & Co. and delivered to K. K. died without 
receiving payment of the bills, and the first set were lost. The surviving i)art- 
ncrs executed a creditor's deed, and tl>e secon<l set of bills, not having been 
endorsed, were claimed by the trustees of the deed as partnership assets, and 
by K's executors as his separate estate. By arrangement the bills were endorsed 
to stakeholders, and the money was' paid int(> court. Held, that K. was not 
entitled to withdraw the money when the firm was insolvent, and that as the 
money had not actually reached his hands, it belonged to the joint creditors 
{In re Kcnqitner, L. It. 8 Efj. 280). 



41, Every Oflicial Assignee, or Assignee appointed by 
the cr(!ditors, shall, in every case in which ho acts as snch, 
keep a register showing the name of each Insolvent who hfis 
made an assignment, or against whom a writ of attachment 
has issued, his residence, place of business, and the nature 
of his trade or business, the date of the assignment, or of 
the issue of the writ of attachment, the amount of liabili- 
ties acknowledged by the Insolvent in his schedule of 
liabilities, the amount of claims proved, the amount of c>" 
position, or of dividends paid, and whether a discharge has 
been granted within one year or not, the amount of divi- 
dends renuiining impaid after throe months from the declara- 
tion of the last dividend, with such other information as 
the Assignee may deem of general interest with referenc 
to each estate, — -which register shall be open to the inspec- 
tion of the public, within ofiice hours, at the office of such 
Assignee; and the Official Assignee, or the Assignee, as 
soon as he takes charge of any estate, shall open a sep^-^ate 
book for each such estate, showing a debtor and creditor 
account of all his receipts and disbursements on account 
thereof. 



Re^intor to 
\w k(!|it by 
OfJW'ial 
Asai;'uee. 



Assignee to 
opun sepa- 
rate ac- 
count witSi 
each estate. 



•': i 



: i 



d: ' 


■ I ;- •' :- 1 


■ ■ t 


- 1 


,: 1' 


■;- i 1- 

j '■ ' 






78 



INSOLVENT ACT Of 1876. 






n 



m 



Df»posit fif 

Non-Dlflciiil 
Aiisigiiuu, 



AssiKTifns 
uiKlcr tills or 
any foiirier 
Act must 
ol)t;iiii ilis- 

j)ay over 
baliiiic(!8 to 
Il^citivcr- 
0«ni^riil with 

HWdl'll uu- 

couut. 



Assignee to 
be J aid only 
by coiuiiiis- 
sion on 
amount 
realized, 



And actual 
nee. :ary 
dlKOurae- 
meutis. 



As to em- 
ploying 
oouuHel, tc. 



And ovory Assigtuio, other tlian an OlTiciul Assignee, 
siuill, within ono mouth uftor lio sliall have avouihI u[) the 
estate of any Insolvent, ami obtained his dischai'g(!, (l(^[K)sit 
the r(!;,M.ster Iccqit by him as aforesaid, with reference to such 
estate, in the oflice of the Ollicial Assignee of tlie county or 
district, where it shall remain for th<! like purposes, and 
un(h;r the same provisions as the register kept V)y the Ollicial 
Assignee. 

ASS I(J NEKS' ACJCOUNTS, COMMISSION, &c. 

43. Every Assigncje under this Act Bliall, within thirty 
days after ol>taining his discharge, and every AssigiKie under 
any iVct hereby n^pfstled, shall, within th'rty days after 
obtaining his dischai-ge, or tlie closing of his accounts as 
such, or within tliirty days after the coming into force of 
this Act, if he has obtaincid his discharge or closed his 
accounts b(;f<>ro its coming into force, pay over to the 
lieceiver-General all moneys belonging to the e.state then 
in his hands, not required fur any purpose authorizcid by 
this Act ov any Act hereby re{)ealed, as the case may be, 
with a sworn statement and account of such monc^ys, and 
that they are all ho has in his hands, under a penalty of not 
exceeding ten dollars for each day on which he shall neglect 
or de'lay such payment ; and ho shall be a debtor to Her 
Majesty for such moneys, and may be compelled as such to 
account for and i)ay over the same. 

43, The A.ssig)i(!e .shall bo ciutitled to a commission on 
the net proceeds of the estate of the Insolvent of every kind, 
of five per cent, on the amount realized not exceeding one 
thousand dollars, the further sum of two and a half per cent, 
on the amount realized in excess of one thousand dollars 
and not exceeding five thousand ('ollat.s, and a further sum 
of one and a quarter per cent, on the amount realized iu 
excess of five thousand dollars — which said commission 
shall be in lieu of all fees and charges for all his services 
and disbursements in relation to the estate, exclusive of 
actual expenses in going to seize and sell, and of dLsburse- 
ments necessarily made in the care and removal of property : 

No Assignee shall employ any counsel or attorney at law 
V, i.thout the consent of the Inspectors, or of the creditors ; 



ASSIGNEES' ACeOUXTS, COMMISSION, Ac. 



79 



but oxponsos incurred by einj)loviiig such counsel or attor- 
ney with such conscsnt, shall Ix; paid out of the estate, if not 
recovered from any party lialjle tlierefur : 

TIk! romuncratiou of the Ollicial Assis^nee, when lie is n'm'incrd- 

'^ ' _ turn <it 

sup(,'i'S(;(led by an Assittuee ai)t)()iuted by the creditors, shall hmi.(is.(I.mI 
Ijc hxed by the Court or Judge, and taxed Ijy the [)roper 
oflicex', and shall be; tin; first char;,'(; u]»on the estate. 

See, as to the uoata of counsel and attorneys, &c., sec. OG in/ra, and notes. 
Compare sec. 52, Act of 18(59, 



44. The Assignee shall call meetings of creditors when- 
Hvor required iji writing so to do by the Insjujctors or by 
five cnsditors or by the Judge;, and Ik; shall state succinctly 
in the notice calling any meeting, the purpose thereof. 

45. The Assignee shall deposit at interest in some char- 
tered bank, to be indicat(;d l)y the Inspectors or by the 
Judge, all sums oi' money which ho may have in his hands 
belonging to the (istate, wlumever sucli sums amount to 
one hundred dollars. Such dep(jsit shall not be; made in 
the name of the Assignee generally, on pain of dismissal, 
but a separate deposit account shall In; kept for each estate 
of the moneys b(!longing to such estate, in the name of the 
Assignee and of the Inspectors (if any), and such moneys 
shall be withdrawn only on tin; joint cho(|ae of the Assignee 
and of one of the Ins[)ectors, if there Ije any. 

The interest accruing on such deposits shall ajjpertain to 
the estate, and shall be distributed in the same manner and 
subject to the same rights and privileges as the ca[)ital from 
which such interest accrued. 

If in any account or dividend sliset made subsequent to 
any deposit in a bank, the Assignee omits to account for or 
divide the interest then accrued thereon, he shall forfeit and 
pay to the estate to which such interest appertains, a sum 
equal oo three times the amount of such interest ; and he 
may be constrained so to do by the Judge upon summary 
petition and by imprisonment, as for a contempt of court. 

At every meeting of creditors, the Assignee shall produce 

a bank pass book, showing the amount of dejiosits made for 

■ the estate, the dates at which such deposit shall have been 



Assigiitif to 
call meet- 
iii^.s 1)1) re- 
(|uir<iliiiii. 



Dfjiusit 1111(1 
witliilmwiil 
of iiiDiicysoJ' 
t'Htatf ill 
bunk. 



Interest on 
dcjjosits. 



Pcn.alty for 
iion-ciistri- 
liiitiiin c)f 
Hiich iiiter- 
est. 



AssJKnce to 
])riKlu(;(', 
bank buck 
lit QiectiDgn, 



( ! 



' II; 



(i: 



nji 



80 



INSOLVENT ACT OF 1875. 



til 



I'llliislilliciit 
for fiilHu 
entry in 
Hiich pasB 
Itook. 



KHlat« in 
whom vrst- 
«<! on ll(^■lt^l 
III" Afiaignec. 



I''inal ac- 
';ount iuid 
discliarge of 



Obligation 
of AsHignee. 



Prttfer of 
Judge. 



niado, flio .'iTnonntH witlidniwii !i?i<l datos of Hiicli witlidiiiwal, 
of wliicli prodiiclioii in'Uitiori shall ho iiiadcf in ili(f iiiiiiiit(f.s 
of Miicli incv.iiw^, and tli(! aljsfsiicf! of Hiicli iiiniitioii shall ho 
pi'liiifl fdcie (!vid(;ii(;(! that it was not prodnwid thcsrciat. Tho 
Assignocj shall also |ji'odno(! such puss book wli(!nov(U* so 
ordered by tho Jud^(5 at tho ro(|ii'!st of tho fnHpootoi'S or of 
u croditoi', iuid on his nifiisal to do so ho shall ho treated as 
hein^ in contemi)t of court. 

The Assii^nei! who shall make oi' oau'^e to l»e ma<lo any 
false entry in sneh pass hook with a view to (hnieive the 
Ins|>ectors, creditors, or .]n{\'^i\ shall l»o J^uilty of a misde- 
mcianor, and shall he liahh;, at the discretion of the (J(jurt 
before which Ik; shall be convicted, to punishment by 
imjirisonrru^nt for a term not (!xc(!e(lin<( thi-e(; years, or to any 
greater punishmcuit attaduid to the offence l>y any statute. 

4ft. Upon the death of an Assi;,mee or Oflicial Assi-^neo, 
or upon l»is nsmoval from office, or upon his dischari,'<i, the 
estate shall remain undcsr the control of th(i .J ud^'e uiitil the 
appointment of anoth(!r Assignee or Oflicial Assignee, aH 
tho case may l>n, when tlie estate shiiU become vested in 
such other Assignee or Oflicial Assignee. 

4T. After the declaration of a final dividend, or if after 
usin;; due dili<;f!nco the Assi'OKJO has been tinablo to realize 
any assets to be divifled, the Assignee shall prc^pare his 
final account, and present a petition to the Ju<lg(! for liis 
discharge, after giving notice of sucli petition to the Insol- 
vent, and also to th(j Inspectors, If any have been appointed, 
or to the ci editors by circular, if no Inspectors have l)een 
appoint(!d ; and he sliall j)roduce and file with such pcstition 
a bank c(!rti(icate of tho de])osit of any dividends remaining 
unclaimed, and of any balance in his hands ; and a state- 
ment allowing the nominal and estimntiid value of the assets 
of the Insolvcmt, the amount of claims proved, dividing 
them into ordinary, privihjged or secured, and hypothecary 
claims, the amount of dividends or of composition paid to 
the creditors of tlio estate, and the entire exponf j of winding 
up tlie same. And the Judge, after causing tho account to 
be audited by the Inspectors, or by some creditor or crcjdi- 
tors named by bim for the purpose, and after hearing the 



T n 



AHHIONIOKS' ACCOUNTS, COMMISSION, ti:. 



81 



partioH, may f^v.uit conditionally, or unconditionally, the 
prayf^' of such ))(itition, or may refuHo it. 

4S. Any AHsi;,'nf!o wlio n<^<,docts to prosont .su(;li a poti- Prn.iityin 
tion witiiin SIX niontliK ait(M' tho df^oiaratioii oi a iinal divi- let to iir<!- 
dond, or within thivc. months aft(T hn Hhall liavo boon potition. 
roquirod })y the Inspectors or l)y any cnulitor of tho ostato, 
aft(!r it shall have bcion ascortainod that thoro are no assets 
whorowitli to declare a dividend, shall incur a penalty not 
exceeding one liuiidnjd dollars. 

(2.) The provisions of the next precedin'' s(!ction shall Provision* 

\ ' I . of «<■<;. 47 to 

ar)i)lv to all i)ersons who have acted or are actinj; as 'U'l'iy •" As- 

' 1 / * '/ Higiifcs un- 

Assiunof's und(!r " The /tutolvent Act of 18(>'.)" or in either <i'i' lomifr 
of the Provinc(!H of Quelicc or Ontario und<ir the Act for- 
merly in force therein, called and known as " The Insolve^it 
Actof IHilJf" or any Act or Acts auK^ndingorcontiiuiing tho 
same, or eitlnir of them ; and any such person, who iiejjjlectH 
to p)'(!S(!nt such a petition as therein mentioned within the 
following df'lays resi)ectively, shall incur a penalty of one 
hundrcid dollai-s, that is to say :— 

(a.) In case a final dividend has been declared l)efore tho 
coming into force of this Act, or in case the Assignee has 
Vjeen una})le to realize any assets to be divided, then within 
three months after this Act has come into force : 

(6.) In case a final dividend is declai-ed aft<!r the coming 
into force of this Act, then within six months after the 
declaration of such final dividend. 

COMPOSITION AND DLSCMAlUiE. 
40. If at the first meeting of the creditors, or at any 
time thereafter, the Insolvent files with the Assignee a Meeting to 
coiLsent in writing to his discharge, or a deed of com[)osition cIInfp'HltioB 
ami discharge, signed by at least a niajority in number of llHarge" how 
the creditors who have then respectively jjroved claims of mailed''*" 
one hundred dollars and upwards, or if at such first or at 
any subsequent meeting an offer in writing be made by the 
Insolvent to compound with his creditors, specifying the 
terms and conditions of the j)rof>osed composition, and such 
ofi'er be a))pioved of by a majority in luimber of such 
creditors present at snch meeting, the Assignee shall call 
6 



! • 



i :■' 







m 



wir- 



82 



m 



Notice of 
i/ii;i:tiiiK. 



may ))f ap- 
proved or 
nut. 



Propfic«11ng8 
whf;n ron- 
Hent is ob- 
taiued. 



Cf.rtifloafe, 
and what it 
shall eou- 
tain. 



INHOLVKNT ACT OP 1875. 

another ineoting of tho croditorH to tako suoli consoTit oi 
Buch (leod or otYvr of coiripositiou and discliiirg(! into con- 
sideration ; ami in (.'very case Hucli decsd of composition or 
offer of composition sliall bo on condition, wli(!tli(!r the .same 
})(', exjtres.sfid or not, that if the sarrK! )>('. earrifsd out, the 
Insolvent shall pay the costs incurnjd in insolvency, includ- 
ing those for the confirmation of sucli composition. 

50. Such meriting shall he called liy at l(!ast one adver- 
tistsment puhlisli(;d in the (Jj/ktal (Jazettn stating the time, 
place, and object of tin; meeting, and also by a hitter or 
card postpaid, addnjssed by mail, at lea.st ten (hiys bcifore 
the rxieeting, to each of the cniditors nuaitioned in tho list 
of creditors fnrnislKjd by tho Insolvent, and to all other 
ci'oditors who may hav(! ])rov(;d their claims, altho\igh not 
nientiorifid in the said list, indicating in substance, in addi- 
tion to tin; tim«!, phice, an<l objcict of the nuicting, the tciim.s 
and conditions <jf the propc.stid composition and discharge; 
and such meeting shall not take place less than fifteen dayH 
after the first publication of the said advertis(;ment. 

51- Th(j creditors present at tlie metiting to take into 
consi(l(iration the propo.sed di.schargfi, oi' com|»osition and 
discharge, may, by resolution to that eH'ect, expi-css their 
approval thereof or <li.ssent therefrom ; and any creditoi* may 
at any time before or during the sai<l meeting, file with the 
Assignee his objections in writing to the proposed discharge, 
or com[)osition and dischai'ge. 

5^. If at the close of tho meeting or at any time there- 
after the Insolvent has obtained the a8.sent to his discharge, 
or to the proposed conijKisition and discharge, of a majority 
in number of his ci-editors who have proved claims to the 
amount of one hundred dollars and ujtwards, and who rep- 
resent at least thnje-fourths in value of all the claims of one 
hundred dollars and upwai'ds whlcli have been proved, the 
Assignee shall annex to tho deed or consent to a discharge, 
or to the deed or ofTer of composition and discharge, a certifi- 
cate to that effect, in which he shall stfitc the total number 
and total amount of claims of one; hundred dollars and 
upwards which have been proved, the number of creditors 



rl 



COMPOSITION AND DISCnARGK. 



83 



who have ^Ivin thoir written assont to th(; (Hschargo or to 

tho |)r()j)OH(Ml composition uidI <liscliar^o of tint Iiisolvont, 

and tho ainoiint <jf proviMl claims of one. liiimlrod (li)llars 

and upwanl.s which they represent. The Assi;j[nee shall 

furth(!r annex to snch certificate a cupy of any resohition Furth t rer- 

ado[)to(l at the nieetin;(s of creditors in reference to the dis- 

char;^o, or to the proi)oscd composition and discharge, and 

all thr; ohj(;(;ti(>nH which may have l)e<ui filed with him to 

such dischar;^e or composition and disidiarf^n, to^^ether with 

a certificate a.s to the amount of ciaiinH of the creditors who 

shall have a;(r(;ed to oi* opposcid snch resolution, or who may 

have filed ol)j(;ctionH in wiitin;^ to snch discharije or proposed 

comjiosiLion and dischar^^e, iiidicacin<( the aiiionnt of snch 

claims of on(r hundred dollars and uj)wards which have l)cen 

prov(!d, arnl whether from their natur<; they will l)e ali'ected 

hy th(i f)ropos('d discharj^e or composition and dischar^'o. 

The Assi^^nee nhall furtiier staU; in Huch certificate the 
ratio of divid(Mid actually declare<l ami likely to he realized „ 

•' / rr«)h.il>li- 

out of the estate for th«j unsecured creditors, and shall, niti..«.f«tiv:- 

<li;liil to \te 

without (hilay, transmit sncli cei-tificate to the clerk or pro- 8Ut«<l. 
thonotory of the (y'ourt in the county or district wherein the 
proceedin;,'s are carried on. 

Tli«; [)roviHif)iiH of Una section and tin; other Hcctioiirt of tliJH Act relating to 
ooniposiLion and diMefiarge, are materially ditrerent from tlumo of the Act of 
lh<)'.>. The only proviHion in that Aet .similar to the one in thi.s section, 
rcfpiiiirif^ a certilicatt; from the a-snignee, was, that nmU^r Kuction lOfJ of that 
Act, the Judge mi;^ht re([uire frorn the as.signee a report as to the conduct ot 
the iuB(jlvent and the state of hiu Ixk^Ls and ali'airH. 

The mode of ascertaining the jiroportion of creditors necessary to a valid 
discharge under thi.s section dill'ers in two j)arti(:ular8 : 1. Umler tliis HCctiou 
there must he a majority in numhcr of criMlitors who have jtrovcd ; formerly it 
was tlie majority in niiinherof the creditors, whether all hnrl proved or not. 
Under sec. 94 ol the Act of 1801), the words were " who are r('Hj)ectively 
creditors ;'" in this section the words are " who have proved > ..tims." '2. They 
are recpiireil to represent at least three-fourths in value of all the clainjs of one 
hundred dollars and upwards which have hcen proved ; whereas formerly they 
were to represent thiee-fourths in value of the hahilities of the insolvent, sub- 
ject to l»c computed in asc<jrtaining such proportion. It was said in Difli/p v. 
Watnun (3.'i (^ B. U. (J. 173) that thoso words were a restricti'm in favour of 
the debtor, in order to prevent tiiese claims, which came uinier the l(N)th 
.leetion (secti<)n G3 infra}, from being reckoned ag.iinst him in determining 
whether he was to be discharged from his ordinary liabilities or not. 



5*l- An Insolvent who h^s procured a consent to his dir- .Aj-piiratioii 
charge, or the execution of a deed or composition and iri.!..n<if 
<liijcharge, and the certificate of the Asignee, within the 



I 



d 



< T 



84 



INSOLVENT ACT OF 1876. 



Nfitlne. 
Koriu J 



meiviiirig of this Act, may filo in tli« otlici? of th<5 Court the 
constiiit or (l(M)(l of coiniMwitiou and (liscliiir<^i\ with such 
cortiti(!ato iinnoxod, aii<l may then j^ivc; noticf! (Form J.) of 
the Hiimo hoiii;:^ so fihsd, ami of his intention to apply )ty 
petition, to the ('ourt in the Provinc<!s of QiKflxn; iiiid Nova 
Scotia, or in the Provinces of Ontario, New lirunswick, 
Prhice Edward Island, liritish ('(»lnml)ia, and Maniioha, 
(and in Nova Scotia, when (Jounty .Judges are ap[)ointed 
there,) to the Judge, on a day named in such notice 
(which, however, shall not be before the day on which a 
dividend may he declared under this Act,) for a confirmation 
Notice how of the <lischarge effected thereby ; and such notice shall l>e 
given by one advertisement in the Ojfficia', (Jazelte, and also 
by letter or card postpaid, acldressed to each of the creditors 
by mail, at least one month before presenting the petition 
to the Court or Judge ; and upon such application, any 
creditor of the Insolvent, or the Assignc^e undcu* the authority 
of the creditors, may appear and opjHiso such conlirmation. 



ttiveu. 



()l)poBition 
ull 



lowed . 



Confirma- 
tion of dis- 
charge. 



Affidavit of 
Insolvent 
to he pro- 
(luuud. 



54- If it appears that all the notices and formalities 
required by law have been given and observed, and that no 
objections have been mad(! to the proposed dischaj'ge or 
composition and discharge, the Court or Judge may, without 
further notice and on the petition of the Insolvent, confirm 
his discharge or the proposed composition and discharge ; 
but in case it appears that objections have been made to 
such discharge or composition and discharge, the ap])lication 
of the Insolvent shall not Ije heard until at least three days' 
notice shall have been given of the same by the Insolvent 
to the Assignee, the Inspectors, and to the creditors who shall 
have objected to the said discharge, or proposed composition 
and discharge. 

55. The Court or Judge shall not confirm the discharge 
or proposeil composition and discharge of the Insolvent, 
unless he shall have produced with his application an affi- 
davit in the Form K., showing that no one of the creditors 
who have signed the Siime, has been induced to do so by any 
preferential paj ment, promise of payment or advantage what- 
soever made, secured or promised to him by or on behalf of 
tlie Insolvent, and a certificate from the Assignee that he has 



COMPOSITION AND DISCnAROR. 



85 



dolivcrcd ii sworn Htatoincnt of lii.s liiihililics uiul assets na 
requirtil \>y this Act. 

Siii. 'rii(» Iiis()lv(!nt sliiill not Ix; (Uitillcd to a coiidrriiatiou wii.'n iim 

of his tlischar^c, or of a (h^ed of coniitositioii and dischuri^t!, sinii not in* 

if it appoars to tho Coiirt or JudL(e tluit ho lias not ol)tain<Ml I,I,iii,,„ft. 

the jiHSJMit of tlio proportion of liis cn^ditors in niiiidicr (I'/nly,.. 

an<l valiu! rtMpiin'd l)y this Act to ^'rant sudi discharge 

or enter into such th-cd of composition anil dischai'gc, or 

that ho has hccn j,'uilty of any fraud or frauchdcuit prcfo- 

rcnco witliin tho incauint^ f)f this Act, or of fraud or evil 

jiraeticc in jtrocurini; the coiisiMit of the creditors to the dis- 

cliargi!, t»r tiu-ir e.vticution of Mie (h;ed of composition and 

diseharj,'*', as the case raay b(!, or of frau(hdent nitiMition 

and concealment of some portion of his (\state <n- »'ffects, or of 

evasion, prevarication or false swearinij ui»on exaunnatiou 

as to his estate and eflects, or that tho Insolvent hivs not 

kept an account book showin;' his receipts and disl)ui'se- Proper 

lioiiks iiiusf. 
nients oi cash, and such otlier hooks oi account as are li;ivi> bc.n 

suitable for his trade, or that if having at any time k(^pt 

such book or ])ooks, lu; has refiisc^d to produce or deliver 

them to the Assignee, or is wilfully in d(?fault to obey any 

provision of this Act, or any order of the Court or Judge ; 

but in the Provinces of Ontario and Quebec, tho omission _ , . 

'^ ' Proviso as to 

to keep such books before the eomio'' into force of th<? '''.''"'" ^''^"' 
Insolvent Act of 18(54, and in the Pi'ovinces of New Bruns- 
wick and Nova Scotia, Kuch omissicm previous to the coming 
into force of the Insolvent Act of 18G0, and in the Pro- 
vinces of British (yolund)ia. Prince Edward Island, or 
Manitoba, such omission, previous to the coming into force 
of this Act, shall not be a sulliciont ground for refusing the 
oontirmation of the discharge of an Insolvent ; 

And provided further, that any act on the part of the provisoasto 
Insolvent, which might be held to be an act of fraud oi- flall'iiui,!!,) 
fraudtdent preference within the meaning of the Insolvent i'"^''^'^''"*^"'''- 
Act of 18(54 or of 18(51), or of this Act, but w'lich would 
not amount to fraud if the said Acts or this Act had not 
been jtassed, shall not be a ground for refusing the confirma- 
tion of the discharge of any Insolvent, if such act was done 
by the Insolvent, in the Province of Ontario or Quebec 



hi 



86 



rSSOfiVKNT ACT <>V 187S. 



Ix'fon* tlu» (•oiniii;^ in foi'cr of tlio Tnsolvoiit Act of I8G4, or 
in tl»c I'niviiico of Nova Scotiii rr New I>iuus\virk U'fon* 
the c'oiiiiii;^ into forcn of tlio Iiisolvout Act of lK*VJ. or in 
the Provino<'s of Hiilish ( !<)l(imhiii. Priiu;*' K'lwanI Uhin«i, 
or Munitolji, licforo tho coniiujij into foive of this Act. 

Tho ]»roviai<>iis i-i>nt;iiiieil in this stuitioii, uinKjr wliifh orotlitora may o|)Jm»w 
tlio iliscli.'ir;,'!; of ,mi irisolvout on (Ik; <.'i<»nii(l of friiul (ir fraii'liiKiit prv't< r.'iice, 
an- of wiilt; .i|iplif;iti'>ii. Tliis <liMcli,ii;;ti Im clloctiril t<i \vi|>«! out liadilities 
wli(!iR'Vcr iiicurroil, wljutlnr hcfori! or Hii»c<; tlii! |»:i;-!.siiii4 of tlic Act «»f |S(>I ; 
.iml it is only r<.;is'>iirii>!<.- that th< i-oniliict of thit iiisolvi nt in ooiiiioction witli 
lhf3 infMiniii^ of th<.-su Bivniu li.ihilitics shoiiM Ins (;his(>ly .siruttiiizc-<l u|hii) hin 
npplioation for di.schar ^.. although siioti iuvc»tigution may curry thv eu<|uiry 
l>iu:ii to an i;ariicr «hitu than 1801. 

VVliere a traiU-r, whose wliohj proporty Avas heavily iiiortjjagi'il, am! wh<» ha<l 
large; ovunlue dehts '.vhifh ht; conM not ]>ay, (dttaini'il cr>tlit from Moutrinl 
niurcliants, concealing hid true poisition, falsely idliging that he uas w<»rth 
$4,()(tO more than hu owed, ami tliat he had no ciigagtnicntM ho cnuKl not meet, 
he Wis held to Im; guilty of Hii«;h fraud as disentitled him to iiis discharge under 
the Alt, althou'.di committed Ixfon; ISIil (A'l' 0»v /^s, 12 (irant. 'MR) ; and see 
AV Slitun; ti l)e(;. McX. k (!. 'jr.;{ ; /.V /',„•,•, 17 <' I'. T. C «>'JJ). It would 
Kcem that no other ground;! than tliose set out in tliis clau»o can l»c taken in 
o})p(>siti<m to the contirmatiou of a discharge ohtained by cimsvut of uruditure 
(/iV JI,>n and dniif, 13 (Jrant, .lOS). 

The neglect t<> keej) prf>[)cr l)()oks of account is a most serious lircooh of 
duty, causing great jiossihlc injury to creditors, and tending to raise strong 
distrust of the integrity of the dehtor ; and Mr. Chief .Justice Ha jarty says 
(//* /r 1,11 inh, 4 I'rac. & ('lir. Jtcps. U. Vj. 21) that "it would he well alwayd to 
punish such a hreach of tluty in a severe and exemplary nuuinor." 

A discharge, when connrmed, i.s finally and conclusively to l>e taken to h.ave 
l>een executed l>y the ])rrpcr jmtportion of creilitors necessary to give it validity, 
luit it docs not give to a deed or a cfinsc;nt in writing any greater effect than is 
j)rovided for in the deed i>r consent itsidf, or in the cla>iscs of the Act proscribing 
their ctlect {.SItnw v. Matidv, 21 i). V. U. tJ. 270). 

On an application for an order of discharge, the insolvent is entitled to rea<l 
his own examination, though taken at the instance of a friemlJy creditor ; and 
the only ({uestiou is, iis to the weight to bo attached to it \He JIoU ami (Jray 
l.'Miraiit, olki). 






m 



Towers itt 
C'lurt iir 



51- The Court or Jiid^^e, as the easo may be, iii>on hearing 
tlie ai){)lication for confirmation of such discharj^e, the ohjec- 
tions thereto, and any evidence adduced, shall have |jo\ver 
to make an order eitlier contirniing the di.«cliarge or 
annuilini^ tlie same according,' to tiie effect of the evidence 
so adduced. But if sucJi evidence shouM l>e insiifticient to 



In certain 

.'ii'ier of ti7s- suotain any of tlie grounds hereinbefore iletailetl as forming 

i.e 'im'..ii'iud valid grounds for contesting such confirmation, but should 

nevertheless establish that the Insolvent has been guilty of 

niLsconduct iu the mauagement of his business, by exti-ava- 



I'll' 



COMPOSITION AND DISCHARdK. 87 

>janco in IiIh pxponsca, rookh'ssncss in «'iHlorsiin^ or bpcoming 
HiiHity f«)r otlHMH, continuing Jiis truth! unduly aftt-r ho 
l)olievi!il himself to In* insolvent, incnrrin,;^ dflits without a 
roasonahlo oxjMrtaition of payiin,' tli(!in (of which rcasonahlo 
«X|»!ctation llin proof shall li«» on him, if KU<;h di-ht wii« 
<!ontra(!t('<l within thirty days of tho dt-mand niado of an 
aHsii,'nm('nt or for thn issu<5 of a Writ of Atlachmcnt), or 
no;jfli;,'('nco in kccpini; his hooks an<l accounts; or if such 
facts 1)0 alh'Ljcd hv anv contestation nravin;; for the suspen- may he sn*- 

. • * I J " ... |.<n"l<<l or 

Hion of tho (lischar^o of the Insolvent, or for its classification in:»-ic secouii 

1 

AH Hocond-class, the Court or Jud^o may tlninMipon order the 
suspension of tho operation of tho dischar^^o of tho Insol- 
vent, for a period not exceeding tivo years, or may declare 
the (li.schar^(! to l»o of the second-class, or both, according to 
the discr«;tion of the Court or Judge. 

An onlcr of (lisehanje mny l»<i ^rantoil 8u1>j<'ct to any condition tonching any 
Kalary, i>:iy, emoluments, |>rofit, wago.s, earnings, or income wliich may .after- 
wan Is ItL'como due to the hankrui»t, ami toucliiiii,' after ae'juired jiroperty of the 
hankruj.t {/{r Anil^-nion, d L. T. Ucp., N.S., 8:{7, Hank ; /.'<■ /niitnii, 6 L. T. 
N.S. <)(),"), i!ank|. It seems that it is not in tlie discretionary power of the 
Court to refuse or suspend the order of discharj^e, wlicn the hajtkrupt hiis not 
been guilty of eoinluet amounting to a frauil under this Act (see I'Jj: junt" Udnll, 
lie Afi'ir, L. T. IJep. N.S. 7.S2, Ch. on ajipeal ; Ex parte O'Iimi and Elliott, R" 
lioHwaU, L. T. IJep. N.S. 407). 

A conilititm which the insolvent has not the means or power to comply with, 
or whicii dei>ends u|kiii the act or will (»f another, should not he imposed by 
tho Judge (In re. U'li/Zw, 29 Q. B. U. C. 310). 

Much the same effect as a refusal of a discharge has ))een ol>tained in Eng- 
land hy an adjournment of a dehtor's examination, hIik^ d'u'. Where au attorney 
was adjudicated a liankrupt as a hill broker, and on his linal e\amin.".tion it ap- 
peare<l that he had lost large sums on hor.se racing, his examination was ad- 
journed s'nti' t/if with a view to prevent him obtaining his eertilieate (Jle Parson.^, 
(J L. T. Kep. N.S. Gl, Bank. Ir.). 

It seems to have been the Knglish practice to adjourn the last examination of 
a liankrupt "iin' dif when he had been guilty of an offence, l>ut ni>t such an 
offence as would justif}* an absolute refusal of an order of discharge (Ex ptirt^ 
(Uriimmltf, 10 L. T. Kej). N.S. <iSO) ; but this decision was reversed by the Chan- 
cellor in the same wuse un api>eal (Ex jiarii' O rum miff rr (irninmitt, I'J Jur. N.S. 
738), where it was hehl that the adjournment of the last examination must be 
governed by the same rules as the granting of the order of oiseharge. 

A discharge cannot be refused because applied for to get rid of tlamagcs in 
an action of seduction (Ex jntrfe Cnihlrce, Rr Tui/lor, 10 L. T. Rep. N.S. 361) ; 
nor does the tu^t of damages and costs being recovered against a bankrupt in 
an action for breach of promise of marriage atford any gnjuud for opiwsition to 
his discharge \n. Pearse, 9 L. T. Rep. N.S. 349) 

Where a person in business finds himself imablc to pay 20a. "^he pound, it 
may or may not l)e his duty to discontinue his trade, accord to circum- 
atajuces : coutiuuing his business may be a frauil, but is not necessarily so. A 






'.I 

li! 



!|l 





IMAGE EVALUATION 
TEST TARGET (MT-3) 










1.0 



I.I 



11.25 



LA 12 8 |Z5 
u lU |2.2 
* 140 12.0 






I 



U IIIIII.6 



v^ 



7. 



V 




y 






/^ 











^ 



K8 



INSOLVKNT ACT OP 1875. 




trader, after diBcovoring that he was not in a position to pay 20s. in tlie poiuul, 
continued his ImsinesH in the hope, wliich was not flliown to have heen uhHurd 
or unreasonable, that he would therelty be able to piy all his del»ts in full and 
meet all his engagements ; anti in the courtie of business so eontinued contraeted 
some new <lebts, but was unsuccessful, and after a time found it nc<>es,4nry to- 
make an assignment. The cireumstances were not considenMl sufficient to dis- 
entitle him to his discharge. The insolvent is eutitknl to rea<l his own ex.imina- 
tion on a])plicution fur discharge (AV lloU a- (J ray, 13 tiroiit, o&i). 



ifdivificiKi 58. Wlu^iiovtu* it upjM'jii-s that the estate of an Insolvent 
.%3iH;ri<!iit., hiVH not paid or is not likely to realizo for tho cnMlitoi-s a 
iiwy'be'i-e- tUvidond of tliiity-three c<;nt.s in the dollar on the nnsecurcd 
•uspeuiied. clainis, and siilHciont account is not }^ven for the d»!licioncy, 
tho Coni't or Jud^e may, in its or liis discretion, sns[)ond or 
refuse altogether the discharge of the Insolvent. 

At first sight tliis clause might ap])ear t<M) stringent, Injcause voluntary assign- 
ments are abolished, and a trader cannot himself lix the time for his becoming 
bankrupt, and thus assign in time to secure a certain i«er centage as dividend. 
It has been conteutled that this provision ivinishes an insolvent for a circum- 
stance entirely beyond his control. Yet that cannot In; the proper interjtrcta- 
tion. If an insolvent can successfully comply with other reipiisites to o))tain a 
discharge (see sees. 56 and 57 «tiite), and his estate pays thirty-three cents in 
the dollar above tho expenses of winding up, he is jinuul/nr'w an honest debtor, 
and the burden of proof of the contrary wi^uld rest uiM»n eredit<»ra who ojtpose a 
discharge. If, however, an estate pays less than thirty-three per cent, divi- 
dend, the burden will very pr<»perly rest Ujnm the insolvent to " g:ve a sutticieut 
account for the deficiency before getting his discharge. 'So business nuiu 
should lie encouraged to continue trading when his assets are only thirty-tliree 
per cent of his liabilities. He cannot assign, but he can call his creilitors 
together and give them a statement of his atlairs, under sec. 3, sub-sec. a, 
tupra. They may then eitlier agree ui^m a composition, or take proceedings to 
place the estate in inscdvency. If they take neither of these steps, but encour- 
age the debtor t<» continue trading t«» his further 1(«8, it is probable that, by 
showing ihc course he had taken in this resiHJct, he would be held by aoy judge 
to have given a " sufhcient account of the deficiency." 

i>pod oi 59. A deed of composition and discharge may be made 

may be con- Under this Act either in consideration of a composition pay- 
able in cash or on terms of credit, or partially for cash and 
partially on credit ; and the im-^ment of such composition 
may be secured or not according to the pleasure of the 
If condition crcditora signing it ; and the discharge therein contained 
may be absolute, or may be conditional u{x>n the condition 
of the composition l)eing sati-sfied ; but if such discharge be 
conditional upon the coniTxxsition being paid, and the deed 
of composition and di.scharge therein contsiined should cease 
to have effect, the Assignee shall immediately resume 
possession of tho estate and effects of the Insolvent in the 



be not ful 
filled. 



il 



. A". ^-idBlJBSR 



tKji'r.-^rjKJY 



Rank of 

crnilitors 
thereafter. 



COMl'OSITIOX AND DISCHAROE. 89 

state and condition in which they sluill then be : Providod 
ulways, that the title of any bond Jitfe piircliaKcr of any of 
the asuetH of the ewtate Hhall not be inij)aiiTd or afl'octed })y 
this section ; but the creditors hohling cLiinis which were 
provable before the execution of such deed, hhall not rank 
vote, or be coniputed as creditors concurrently with those 
who have acquired claims subsecjuent to the execution 
thereof, for any ^'reat^n- sum than the balanco of composition 
remainin<^ unpaid ; but after such subsecpient creditors have 
received dividends to the amount of their claims, then such 
original creditors shall have the right to rank for the entire 
iuilance of their original claims then remaining unpaid, and 
shall be held for all purposes for which the projiortion of 
creditors in value recpiire to be ascertained, to be creditoi-s 
for the full amount of such last mentioned balanco. 

This clause differs from see. 95 of the Act of 18G1) in two respects. 

1. It does not contain the clause which says that the deed may contain in- 
structions to the assignee as to the manner in fvhich he is to proceed and to 
deal witli the estate of thi^ insolvent subse<£ucnt to the deposit of the *leed. 

2. It contains a new i)rovi80 saving the rights of purchasers of the assets of 
the estate from an insolvent who has not compHed with the terms of the deed> 

Tl>e provision of this section postponing creditors of an insolvent, who have 
handi'd hack to an insolvent his estate to the claims of those who have dealt 
with him 8ul)se(|uently, is only a declaration of a principle which had already 
been acted up<jn. When an insolvent compounded with his creditors and had 
his goods restored to liim, and resumed his business with the knowledge of his 
assignee and creilitors, and contracted new dehts, and it was subsequently dis- 
covered that he had been guilty of a fraud which avoided his discharge, where- 
ujHin he absconded ami an attachment issued out against him by his subsequent 
creditors, it was held that the latter were entitled to be paid out of his assets 
in priority to liis former creditors (Buchanan v. Smith, 17 (irant, 208). So 
when an uncertificated bankrupt carried on business for several years after 
his bankruptcy with the knowledge of his assignee and of some of the creditors 
who were such at the time of the bankruptcy, after his death it was held that 
the credit*)rs subsecjuent to the bankruptcy were entitled tt) priority over tho 
previous creditors {Tucker v. Ihrnaninn, 1 Sm. & (iiff. 394 ; 4 De G. M. & (>. 
.39."), following Trou(fhton v. (JUkij, Ami). G39). The equitable principle which 
governs in these cases is, that if a man having a lion stands by and lets another 
make a new security, he shall be postponed (See Kerakoose v. Brooks, 14 Moo. 
P. C. 452). Under the English Act of 1801, v/hich contained provisions similar 
to this Act, a deed of composition contained a clause that the creditors did re- 
lease all actions and contracts whatsoever which the cre«litors then had, or 
which they at any time thereafter might have against the bankrupt by reason 
or on account of any debt or debts or contracts from the beginning of the world 
to the day of the date of the deed. It was held that the release was not un- 
reasonable inasmuch as it must be taken to be restrained by the whole scope 
and object of the deed and confined to causes of action which could be proved 
by a creditor in bankruptcy (HaseUjrove v. Huusp., L. R. 1 Q. B. 101). 

This power given to a majority of creditors assenting to a deed of composition 
to bind the non-assenting minority, is a statutory power, and must be exercised 



» 



;t: 



J 1, 



i ;' 



90 



INSOLVENT ACT OF 1876. 



plil 





bond Jiile for the honofit of all creditors. If therefore there in a framluleiit Wr- 
gain for the henetit of Homu (»f the eretlitora, or if the majority of Uie ireditore 
arc iixhieed l»y friendly feelings towanU the debtor to ai;eei)t a eoni|)OMition 
greatly diHjirojiortioned to the aHseta, the Court will hold the deed not to he 
binding on a non-assenting creditor, lint if the a.s.senting majority appear to 
have exereiHed their di«erction lutiid Jhl" for the hcnelit of the creditors, the 
(Jourt will not sit in review on the (/Hdn/niii of the comixmition (/» rr Cnwrn, 
2 li. II. < 'hy. rAV.i ; K.C jiitrtr DiacDii, In re Deacon, L. K. 4 Ch. App. 87 ; and 
see L'u- parte Uouttt, L. 11. l! Chy. 5!>). 

A pt^rson who carried on hudines;! in partnerHliip cxecutetl a composition deed 
for the henelit of hi.s separate creditors only, which was a.i«ented to hy the re- 
quisite statutory majority of separate creditors. The lirni was also indei>ted, 
and it was held that the deed was not binding on a dissenting separate creditor, 
for it should have provided for all classes of the ins<dvent s ereiUtora (AV ptirte 
(Hen, 2 L. i{. ("hy. App. (»70 ; and see 'J'/ioni/mn v. Kii'ui/it, L. 11. L' Ex. 42; 
Telley v. Wanlest,, L. R. 2 i:x. 21 & 275). 

As to a claim against a debtor f(»r un1i<|uidatcd <lamages not c<mstituting the 
holder of tlie claim a creditor within the moaning of the Kngli.sh Act of 18()1 
ificc Er parte U'i/niot, In re Thonipmm, L. 11. 2(;hv. App. 7'J.') ; llmiijnrth v, 
Taijlor, 1,. II. 2 lOx. 105 ; Slinrtanii v. Spenre, L. 1{.' 2 C". W 450 ; RiihTtion v. 
GoHH, L. U. 2 Ex. 3UG ; and see note to sec. 10). 

A deed which is absented to hy the rcfjuired majority of creilitors cannot l)e 
iinreasonal)l(! unless it gives them some advantage over the minority (In re 
Richniovfl Hill I/otrl Co., Ex jtnrte Klntj, L. R. 4 K<i. 500 ; aHirmed on appeal, 
L. R. 3 Chy. App. I()). An insolvent executed a deed i>f composition, paying lOs. 
in the pound. S(mie of the creditors declined to assent, hut subsequently being 
informed that the recpiired number had executed, they took the amount of the 
instalments remitted to them and said nothing. The <lecd was afterwards de- 
cided to be void for want of a strict comjdiance with the statute, but the tlia- 
senting creditors were held to be precluded from suing tlie insolvent for the 
bahince of their <lebt ; aa the mistake, if any, under which they ha<l received 
the instalmenta was one of law, and not of fact {Kitchin v. Ilawkinn, L. R. 2 
C. P. 22). 

A deed of comjwsition un<ler the English Act of 1801, sec. 192, is a bar to 
an execution issued ag.ainst a garnishee under .an order j)ursuant to the garnishee 
clauses of the Comrafm Law I'rocedure Act, to the same extent that it is a bar 
to an execution on a judgment {Kent v. Toinkinmn, L. R. 2 U. P. 502). 

The assent of creditors in writing is all that the Englis/i Act of 1801, sec. 
192, re(iuired ; whereas our clause retiuirea the execution of the deed itself by 
the creditora. In an English cjise it has been held that the creditors' assent 
may be given before the deed is executed or even prepared {Rulty v. Benthall, 
L. R. 2 (J. P. 488). 

A deed of composition made between the members of a partnersliip and the 
joint cretlitors of the firm, without any reference to the separate creditora of 
the difl'erent members of the firm, ia invalid ( Tomf'm v. Button «£-" Miller, 3 L. R. 
Q. B. 400 ; and see Jiixon v. Emari/, h. R. 3 C. P. 540). 

A composition deed by which 'the creditors are entitled to the composition 
only on signing is bad {Martin v. Grihhle, 13 W. R. 091). In determining 
whether the requisite majority in value of the creditora have assented to a com- 

fioaition deed, the value of the securitiea held by them is not to be deducted 
rom the debts of the secured creditora ( Whittaker v. Lowe, 13 W. P.. 723 ; but 
Bee sec. 2, h). A deed of composition and discharge, purporting to be between 
the insolvents, of the lirst part, and a majority of the creditora of one hundred 
dollai-8 and upwards, of the second part, was held invalid because not execute*! 
by the insolvent. iSuch a deed, to bu operative, must provide fur the separate 



COMTOSITION AND DISCnAROB. 



91 



crcditorH f>f oacli jj.irtncr, a;^ well n» those of the Jirm (/« re Curralt «f Co. 28 
Q. a U. O. 2(50 ; ^l//aw v. Harmll, 30 g. B. IJ. C. IGo). 

In tho case of Srllni v. /VjVp (Fj. U. 2 l']x. 189) the (lefon<l:uit executed a 
deed uiiiler the li)2ii(l Hi;ctiou of tiiu Kii^lisii Act of JSiil. It ]iur)iorti'c| to lie 
made between tlie de)»tor, of the lirrtt part, a surety, of tlie Becond o.irt, and the 
Hcveral persons whose names or lirms are set forth in the seheduie thereto, 
therttafter styleil creditors, of tht* third part. No seheduie wjis annexed. 
Uj)OM olijcetion made as to itn validity, a sdiedule wa.s added after execution. 
It wa.s held tiiat the annexation of the Hehedule to the deed aft.T oxeention an<I 
fegistration, tlu; si'lieduh; having thus hiuoinc a iiart of the deed itself, altere<l 
tlie d'.-ed in a njaterial pjirtieular and made it void. When a deed w.is made liy 
the liankrupt <if the lirst |tart, a trusttie for the creditors of the second jiart, 
luid the seV(!ial persons whose names were thereto suliHcrilied and seals allixed 
of the third part, .'Uid non<' of the creditors signed the deed althnu;,di a nuijority 
assented to it, it wa.s held tiiat none of them eouhl sue on it, l>iit the party uf 
the second part eould sue upon it as trustee for all, and as well for the non- 
assenting creditors as those who had as.'^entcd to it (Srtttt v. Birnj, ,S H. & ('. 
9()()). A ei>ni])(i8ition deed \\.ia held not to prevail against a non assenting 
creditor, liecause there was an iiiireasonalde delay in executing the deed (liirkf 
v.i'liirkr, L. It. ,~) lOx. I'.tT). When creditors have accepted a composition under 
a deetl it is not open t(» them to contend that it was not projierly executed by 
theni (Allan v. Uarnttt, HO i). B. U. ('. 177). And it seenis, a <leed not signed 
by the inscdvent could not properly have been signed by him tifter it had lieen 
filed withont leave to remove it from the tiles an<l reliling it {Altnn v. Hiurntt, 
iihl fitiin-ii). Nor could it bo sigiied after action bnmght so as to be set uj) in 
answer to an action by one of the creditors, unless pleaded by way of further 
maintenance (s. e. ). 

When a non-assenting creditor sues a debtor, who has executed a composition 
deed containing a rehas(>, for a debt due before the execution of the deed, and 
the debtor neglects to plcail the deed, he is estopped from afterwards setting up 
the relejvse to defeat the execution [Itosui v. BaUty, L. 11. 3 Q. U. G-'l). 

A comi>ositi(m deed under the English Act of 18G1, between an insolvent and 
his two partners, of the one port, and certain trustees on behalf ttf the under- 
signed creditors of the insolvent and his two partners, of the other part, by 
which all the estate and eU'ects of the insolvent and his two partners were 
assigned by the insolvent and his two partners for the bciK^fit of the creditom 
of the insolvent and his two jjartners, atforda no answer on equitalile grounds to 
an action Jigainst the insolvent by a creditor for his separate debt (Eiiropi-an 
Cnifral ll'i'ihrit;! Co. v. W. li. Wc^liiU, L. H. 1 (). 15. 107); ami see u.s to effect 
of composition deeds to bind non-iissenting creditors, an<l as to what are reason- 
able provisions in sii.h deeds {Jiiirtlof v. Mlll.'<, L. 11. 1 Q. H. 101; liond ami 
nnofhrrv. ]V,:slo>i, L. H. 1 Q. R. MV.f ; Cn.4i/ v- Cihuoii, L. 11. 1 Kx. U'2,J!<eve» 
and another v. Wattn, L. R. I Q. H. 412; CuIvh v. Turnn-, L. II. 1 C. V. 373; 
Brooks V. Jvumixf.-*, L. H. 1 C. P. 470; Blttmherq v. 7.*<wf, L. it. 1 Kx. 2.32; 
Greenheni v. Ward, L. 11. i C. P. flSu ; Jacohmv v. Lamhert, L. II. 2 Kx. 394 ; 
McLaren v. BasUr, L. 11. 2 C. P. .'ioO ; haars v. Green, L. U. 2 Kx. 3ri2 ; Bailey 
V. Bowen, L R. 2 q. \\. 133 ; Fitzpntrh-k v. Bourne, h. R. 3 Q. B. Ex. ch. 233 ; 
Sowriiv. Lrnv, L. R. 3(^ B. 281 ; Walter \. Adrork, 7 H. * N. 541 ; Re Woodhomt 
Ex parte Monfan, {) dur. N.S. .'iOl ; Re Jiawlhiffs, 9 dur. N.S. 317; E.c parte. 
Corkhnrn, .33 L. J. Bank. 17, 9 L. T. N.S. 4(}r); Chesterfield ColVvr;i Co. v. 
Hawkins, 3 H. & C. 077 ; Beuham v. Broadhar.'*t, 3 H. & (\ 472 ; llderlun v. 
Castri/ue, 14 C. B. N.S. 99, and Menor ; Ilderlon v. Jewell, 16 C. B. N.S. 142). 

A provision which makes the conipf)sition pay.able on the trustees' certificate, 
that the deed has been assented to by the statutorj* number of creditors, is 
unreasonable (Boitlnois v. Mann, L. II. 1 Kx. 28 ; .and see as to what are unrea- 
sonable provisions, OUldings v, PennUuj, L. R. 1 Ex. 32,') ; Latham v. Lafone, 






92 



INHOLVRNT ACT OP 1875. 



L. 11. 2 Kx. 11.'.; Ihihr v. I'nhihr, L. U. '2 C. W 492; OWm v. Armslon, 
L. 11. 2 Ivx. 4(Hi ; ir;.-;[/t,'/</ V. NichuUuH, L. U. 3 Q. B. a:*)). 

Thu (luud (»f c(»niiM».Miti<<n roforrcd tci in tliis ulausu iiuiy In; valiiUy niu<l»! either 
hefoif, |Kii(liii^'. or iittrr pruceediug.-} uuilcr this Act. Yot tho fiiciliti(!S for 
haviiiL; it «!X«cuto<l l)y tlu- \ oywr proportion of cre<litorH are vory ilifrurcnt at 
theHu ilifFiTcMt tiinoH. it may he n<» easy inattt-r for an insolvent always to 
ascertain the exact nunilier and value of his creditois witli sullicient accuracy 
to satisfy the asHignee tliat the deed has been executed l>y the retpiisite oro- 
portion. If the period of two niontiis, alloweil to cretlitors to bring in tlieir 
claims, has elapsed, there will be very littlu ditUuulty iu telling whether thtf 
deed lias been properly executed or not. 

This secti(m from analogy to decisions upon the English Act, would seem aot 
to bo retrospective ho as ti> bring within its jjrovisions a deed of conij>osition 
executed before the statute came into o])eration, as a'.,'.iinst a creditor wiio had 
not executed it (Mnrnh v. /{Ifjiihti, ID I,. .1. i'. V. 2!>7) ; but it would probably 
apply to instruments entered into, l)ut inchoate, at the time of the .\ct coming 
into force, ami since comi»lt!ted ( Witiii/h v. Miildlcton, 8 Kx. 352 ; 22 L. J. Ex. 
KW; iMi-pvnt v. Hihlni, 24 L. J. Q. iV. .'101 ). 

An unreasonable provision in a compitsition deeil will render it invalid against 
n<Hi-assenting creditors (/iili/ni v. Pelf, 10 1.. T. Hep. N.S. 4J>3 ; ami see 
ArmUit,j>'y. Ihibr, 10 L. T. Rep. xM.S. .52(5; l{UU,i. v. linrrhiii, 10 L. '\\ Hep. 
N.S. aS? ; WooiU v. Footf, 1 H. & C. 841, in error ; LcUjh v'. PimUrbunj, 10 
.Tur. N.S. 2%). 

By an .igreement between a debtor and one of his creditors, the latter agreed 
to accept, by way of composition, ccirtain notes of the debtor, payable at 
specilied dates ; anil it was provided that the debtor sliould also give his note 
for the whole debt, and tiiat if he were guilty of any tlefault in paying the 
composition notes, the creditor slumld rank on his estate for the wliole debt. 
The notes were given accordingly, the debtor made default, ami afterwards was 
proceeded against under the Insolvent Act. It was held that the stipulation 
as to the whole debt was not illegal, and that there having l)een defaiilt before 
the insolvency, the ereilitor was entitled to prove for the whole debt (/« re 
Miliar, 15 (irant, 408). 

Trustees of a composition deed, before they allow a creditor to sign, are 
l)Oun<l to ascertain the validity of his claim, as by signing he becomes a cestui 
que trust, and the trustees, except in caaes of fraud, are bound to pay such 
dividends as may be declared (Lancaster v. Elce, 31 L. J. Chy. 781) ; 8 Jur. 
N.S. 11(>7). 

The assent should be absolute and umiualified (Johnmn v. Oxenton, L. R. 4 
Ex. 107). 

It wivs formerly held under the English Acts that a deed of composition was 
not binding on a crelitor who hvd not executed it, unless such deed provided 
for the distribution of the whole of the debtor's efieets [Ti't'ci/ v. T(ti/litr, 1 El. 
&B1. .ISi; n.lur. 1.30; Fi-^lier v. IMI, 12 C. B. 3(53). The ChanecUor (Lord 
Westbury) settled the conllicting decisions upon tiiia point, by decitling that a 
complete cen^io hunorum was not imlispensable to the validity of such a deed as 
against uon-;i3.«.enting creditors (Ex pirte Mon/an, 7 L. T. liop. X.S. 730; and 
see Ex parte lliwlinij.% 7 L. T. Rep. N.S. 582). 

When a deed of composition was made between the nndern'iffiied parties, cor- 
porations and firms, &c., of the lir^t part, and the insolvents of the second part, 
and contained a covenant by the insolvents with the parties of the iirst part, to 
deliver the notes mentioned on request, and it was objected that non-assenting 
creditors were not placed on an eijual footing with those who had signed, it 
was held that there was not such an inenuality in the deed as to render it 
invalid (In re Lawson Bros., 5 U. C. L. J. N.S. 232). 






! 



^^^m 



COMPOSITION AND DISCIlARnF. 



93 



A deed of composition in not binding u|k)u non-osHi-nting crcditorn, uuIcm 
pmceedinux niu t:iki-n iindfi- the Initolvent Act, no ah to Imnii; the |H;rHon and 
estate of the delttor under the «>)>erution nnd control of tlie iiiHidvtnt law 
{O'reiu V. Sinn,, '22 V. (". C. I'. 'Ml). A plea of udiHchiugt! under the Act of 18«y 
whicli did n«»t sli(»w that the defendant was a trader waa held to he defective 
{Dm/if, V. WnfHoii, Xi q. l\. i;. C. I7:{). The statute of ISO'J did not, nor 
docs thJH Act, re(|uire the aHuignee to Ikj a party to tlie deed. The composition 
and diHcharije is an nrraiigeniciit hetween the eretlitors and the debtor alone 
{Uiuilijf V. M'ntmni, t<ui>y<i). It m proper, in pletuling a jliceharge, to uver that 
the parties to a dtied are creditors within tlie meaning of the Act {Jfriifi/f v. 
WatMtm). It wouhl he a<lvi8ahle th'^reforu U) descrilte them in framing the 
deed, as ilcserihed in this section, as "creditors who have proved claims, 
Ac." The deed, to have any eHeet under the Act, must he a deetl of compo- 
sition, that is, a deed containing a mutual agreement between the debtor and 
his creditors for the discharge of the debtor's debts ; that is, all his debts, in 
terms or by means different from those re(|uired by the original contracts (Slinw 
V. M,u^i,,''2l C. 1'. U. C. 201)). 

60. i^o 80on JUS a deed of composition and di.schame f<liall "'•"' "^^■ 
have Uien execiittul iw aforesaid, it sliall he tluj duty of the »'y Asiit,'ii.e 

' '' t'l lllMlllVI'llt. 

Assignee to recouvey tlie estate to the Insolvent, and the UH«'irt<t. 
re-convoyanco by the Assignc^o to the Insolviuit oi* to any 
person for him or wliom ho* may appoint, of any part of 
his estiito or ellects, wheiher real or personal, if made in 
conformity with the terms of a valid deed of comimsition 
and discharge, shall have the same eftei't (except as the same 
may be otherwise agreed by the conditions of such deed or 
reconveyance), as if such property had been sold by the 
Assignee in the ordinary course, and after all the prelimi- 
ixary proceedings, notices and formalities herein i-equired 
for such sale: and if such deed of composition and dis- if '!'''><i of 

_ * ^ CIIIIIIIOHitlOIl 

charge be contested, and pending such contestation the i>e contented 
Judge may suspend any paymenjt or instalment of the com- 
position falling due under the terms of such deed ; and 
the deed of reconveyai ce need not confctiin any further 
or more special description of the effects and pro|>erty re- 
conveyed, than is required to be inserted in the deed of as- 
signment, and may be enregistered in like manner and with 
like effect ; and such deed may be executed before witnesses Form of 
or before notaries, according to the exigency of the law of 
the place where such deed of composition and discharge is 
to be executed. 

Tlie firsit clause of this section, imposuig upon the assignee the duty of recon- 
veying the estate to the insolvent, is new, see section 96 of the former Act. 

As to the effect of such reconveyance, sec section 75 et tcj., as to the sale 
of real estate. 




mr 



04 



INHOI-VKNT ACT OF 1875. 






Kffmt of 01. The confirinatioii of tlio disc^lmrw of a doctor in th»» 

uotillriii.ilion , , •111. 

..fiiisciiir^.,. in.'tniKM- iKJi-t'iii pcovKii'd Klmll ansolutclv fr<M' aiul (li.scliarjro 

What . I.iiiiu 1 . -^ . „,.',. V 

•ffoouid. n»ni, aft<'r an assipfiinunit, or attor Ins <!.stat(i Iuih l»con put in 
comjnilsorv li<|ui(lation, by tho isHiie of a writ of attaoh- 
mfnt, from all liaMlitioH wliatsoovor (except such as are 
hoix'inaflcr spooially excepted) existing against liini and 
pn)val)Io a!,'ainst his ostato, whothor tlio sanio bo secured 
in part or in whole by any niortijfaj^e, hypothec, lien or col- 
lat<*ml security of any kind or not, which ar(5 mentioned or 
Bet forth in the stattMnent of his affairs exhibited at the 
fiiTit me(!tinu; of his creditors, or wliicli aro shown by any 
supplementary list of creditoi*s, furnished by the Insolvent, 
previous to such discharge and in time! to permit the; credi- 
tors therein mentioned obtaining th(; same dividend as 
other creditors upini his estate, or whidi appear l»y any 
chiim sul>sc(piently furnished to tho Assign(!e ; whetluirsuch 
debts be exigildo or not at the time of his insolvency, or be 
conU'stctl in whole or in pai't, or be dependent on certain 
conditions or future contingency, and whether tlu; liability 
lioiiprsof for them bo direct or indii-ect : and if the hohler of iiny 
nap run- negotiable paper is unknown to the Insolvent, the insertion 
Insolvent, of the particulars of such paper in such statement of anairs 
or supplementary list, with tho declaration that the holder 
thereof is unknown to him, shall bring the debt represented 
by such jKiper, and the holder thereof, within the operation 
of this section. 

Under this section it is proposed to consiiler at length the nature and effect 
«f a discharge under the insolvent laws, the moat important question perliaps 
that can arise, and which has becu the subject of a number of decisions iu uur 
own courts. 

At the threshold we find a very important change between the law as it now 
stands and as it oxisteil un<ler the former Act. By referriug to sec. 98 of the 
Act of 1869, it will be seen that the consent of the creditors effected the dis- 
charge, and that the effect of confirmation as defined by sec. 104 of tliat Act, 
was merely to displace the burden of proof of the discharge having been com- 
pletely effected (Tlwwpmn v. liuthnford, 27 Q. B. U. C. 20.")). The last- 
named section is rei>caled, and no similar one is substituted in this Act, but by 
this section it is enacted that ''the confirmation, &c., shall absolutely free/' 
rendering necessary a confirmation in every case. In consequence of this 
change also, sec. 102 of the Act of 1869, which enableil creditors to compel 
an insolvent to apply for confirmation, has also been struck out. 

The liabilities hereinafter specially excepted are those mentioned in section 63. 

A substantial compliance with the provisions of this section is all that is 
required, and it is not necessary that the exact amount should he named in the 
schedule, if there is no intention to mislead, and the attention of the creditor is 



COMrnglTION AND DIHCIIAROE. ff 

."^tirticiontly «liri'cte»l to his tMtt l>y the entry (Caniprun v. llttHnml, 29 Q. B. U. C. 
WMi ; Fitrmmi it al. v. Prnr, 4 It. & ('. IS ; H'oo*/ v. Jmntt, oit«<l in t'ornnni v. 
Ih-iir; Liwit v. JiiitiM, 4 howl. 014; iitii/il' I v. i'/iniiijniti//*, '2 .M. iV W. 4.'Ml ; 
tiunhUiu V. Iliilitijhini, I B. & S. 280). But wiien the plnintiH' wiw inrom'ctly 
nanifil iunl (K-HcrilxMl in thu Hch«t<lul(!, and liu gavo i>vi<li iul- that he ha<l not itc'cn 
notitird of tlio priKH-ciiin^H in inHolvi-iuy, tlit> <lt'litor wjim Iu.-I<I not to Iw 
ilis^rhar^fd i Jf<ili.-,,ii v H'lintii, 6 U. < '. I,. .1. N.S. 14). An<l whtre » diKcharge 
had hfin obtained without conHunt »t't«,'r tho laime of a year, it wai« hold to \tc m 
^ood replication that thu plaintitl'H nainu aa n crtditor, ami the claim nu-ntionud 
in the declaration, were not mentioned in the utatenu'iit e.xhiiiitvd at the limt 
moetin;^ of ereditors, nor in any Hupplenientary nehedule, as re<|uired l»y law, 
and tile delit was never proved agaiuHt the estate [K'iikj v. Smith, *J V . ( ". ( '. I'. 
311)). When a deiendant Huekd to avail himself of the exemption from lialtility 
which a diucharue obtained undur the Act gives, he must, in his plea, bi-ing tho 
debt sucil for within the exempted class {Lxumnl v. Ihikn; I.') .M. & \V. '2\fi\ 
I'fill/ii>.H V. rkk/oni, 14 Jur. 'H'2 ; Strp/unxoii v. (,'r<ni, II I'. T. (J. B. 4.V2 ; 
liirk- V. /{cnr/t I/, ] I M. & \V. Slo). But wiiere a plea alleju;ed that the jiar- 
tiuular debt for whieh the plaintitl' sucmI was known ivs the claim of the ** W (hnI 
F>tate," and was entered ats such in thu schedule of liabilities exhiliited Ity the 
defendant at tliL' lii-st meeting of liis (;reditorH, that the plaintilV resided in (iruat 
Britain, and was represented in this country by certain |>ersons as his agents, 
who were notilied of thu appointment of an assignee, and leipiired an such agent* 
to prove tho plaintilfs claim, the plea wan uidield (/-'//•/»// v. O'X'if/, 'J2 I'. C 
C. V. IM). iSo, thu case being one of compulsory li(piidatiori, the absence of a 
schedule containing the name of aplaintiil', was held a good renlication to a pica 
of a «liHcharge after the lapse of a year (I'ltlnur v. liithr, '12 IJ. V,. C. I'. .VJ). 

An antecedent debt in re8iM3ct of whicli an in8(dvent had received his dis* 
charge is a sutiieient consideration t«> support a promise to pay, given aft4.-r the 
discharge (AnMia v. (Jordon, .32 Q. B. U. (!. G2I ; Trufinnn v. Fmtoii, 2 Cowp. 
544; UnhertH v. Manjan, 2 Ksp. 7.%; Jiin-h v. Slmrliiml, ! T. II. 7I;"»; Jinx v. 
Braham, 1 Bing. 281; Jiix/ont v. S(Vtni/<-rM, 2 fl. Bl. I hi; /An'.Vy v. iJiNon, 
2 Burr. 73(5), but the later Knglish Acts contain a sjiecial pntvision, prohibiting 
an action on a sub8e*iueiit promise to pay a ilebt from whicli the bankrupt was 
ilistharged. 

A discharge under this Act will not prevent a party from l)cing committed 
upon a judgment sumni«ins uiuler the provisions of the division Courts Act. A 
party applying for protection from arrest should show clearly that the name of 
the plaintitf was in his schedule, and this is not sutKeiontly <hme by putting in 
a copy of the schedule, without swearing that the plaintitl's name is there (/n 
re Mackay tt al. v. O'uo<lxon, 27 Q. B. U. C. 2G3). 

The court set aside, with costs, a ./i. /a. lands issued on 7th June, 18C5, and 
••jnewed from time to time until 4th June, I8H7, in a cjise where defendant 
obtained his discharge on 30th March, 18(>7. Plaintid' had proved his claim for 
the full amount of the judgment in the Insolvent Court, ami had never attempted 
to take any proceedings under the writ, which he refused to withdraw, although 
re(4ue8ted to do so (JJirlinsun v. Bunnell, 19 C. P. U. C. 2IG). 

* . English bankruptcy law is binding on the Colonies, and an English com- 
position dee«l containing a covenrnt not to sue may be plea<letl to an action on 
a Canadian debt in a Cauadi.n court (AV^w v. McJIenry, L. R. 6 C P. 228). 



OS* A discharge under this Act, wliether cousented to by Discharge 
any creditor oi not, shall not operate any change in the sf.oii.iary 
liability of any peraon secondarily liable to such creditor for 
the debts of the Insolvent, either as drawer or endorser of 



♦t 



m^ 



'^' 



H 1N80I.VKNT ACT OP 1876. 

iioj{()tiiil»V j>:i|K«r, or nn gimnintor, Huroty or othcrwiso, nor 
of liny piirtncr or othor |H;rH<>n liiihln jointly or HoviM'jilly 
with til)' Insolvent to Riich creditor for iiiiy <lrl)t ; nor hIihII 
it atrcct liny niortija;;*', hypotln'c, linn or oolliit«'nil Hcrnrity 
luild l»y any creditor tw Hocurity for any fleht tlicrcliy iUh- 
cliJiri^od, without tin? conHont of nuch cnnlitor. 

Tlie woniM in the last oI.iuho of thin Hcotion, " witliout tho consent of HUch 
creditor," aro nuw. 'I'lio Hoction of tho Act of IHIVJ (ncotion SM»), fnuii whith 
thia suction in taken, contiiiud the operation of tliiu provision to diHcliarges 
without comjHjuUiun, 



DiHohnrKo 03- A (liHcliariw ntnler thin Act bTirII not ftpnly wUliout 

un.l«rtlii» , 1 V /. • 

Ai'tiiotto tlu! cx|>r('s.s consent ot the cretlitor, to any tleht for enforcinj^ 

rMrteiniiibts the payment of which the iinprisonnient of tho debtor \h 
perniittetl hy thin Act, nor to any disht duo h" daniaot-H for 
assault or wilful injury to the person, Keduction, liltel, 
Hlauder or malicious arrest, nor for the maintenance of a 
parent, wife or child, or as a penalty for any oflinice of 
which the Insolveint hius been convicted ; noi shall any such 
dischar^t! '4M'^y without such consent to any debt duo jis a 
balance of account due by the Insolvent as assignee, tutor, 
curator, trustee, executor or administrator under a will, or 
under any order of court, or as a public ofticer ; nor shall 
debts to which a discharge under this Act does not apply, 
nor any privilegetl debts, nor the creditora thereof, bo com- 
puttsd in ascertjiining whether a sutiicient proportion of the 
creditors of the Insolvent have voted upon, done, or con- 
nut criditor sented to any act, matter or thing under this Act ; but the 
™divWend creditors of any such debt may claim and accept a dividend 
thereon from the estate without being by reason thereof in 
any respect affected by any discharge obtained by the 
Insolvent, 

There is a slight verbal difference between this section and section 100 of the 
Act of 1869, the eti'ectof which is to place all the classes of claims mentioned in 
this section upon the same footing, as to the effect of accepting a dividend thereon 
(See note to sec. 80 iri/ra). 

Where an executor has l)ecome Ijanknipt or insolvent, so as not to have the 
means, or refuses to act, the Court of Chancery will permit a creditor to bring 
a bill himself against jicrsons accountable to the estate, and have adminiytration 
(Burrotiglui v. IJUon, 1 1 Ves. 29). 

04. If, after the expiration of one year from the date of Application 
an assignment made imder this Act, or from the date of the jud^'for" 



m 



COMPOSITION AND DISCHARGE. 



97 



isaiio of ft writ of nttjiolmu'nt therouiulor, oh the caw timy dinrimrgi'. it 
m, tuo Insolvent has not obtaiiiwl fioni tlio nM|uiri'tl pro- from irdi 
portion of liih crcilitorH a consent to Iuh diHcliurge, or thu 
oxceution of a deed of coinpoMition an<l (liNoliar^o, lie may 
apply l>y petition to the (!ourt or Jndge, to grant him his 
<liHeharge, first giving notice of such application, (Form L.) „ 
for one month in the Official Gazette, and also by letter or 
card, post-paid, aildressi'd, ten days before such application, 
by nmil to each of his creilitors whose claims amount to one 
hundred dollars or more, and may bo aifected by a discharge 
under this Act. 

Thu tliHuhargu to bo grantutl uii<lor thitt Buction cannot he huld to have aity 
uruatcT ftruct to rc-luauu thi; dulitor from iialiilitich tlian thu tliHuhargu obtained 
by thu couBunt in writing of cruditorn au nrovidud in huc. (il. Undur thu uon- 
sunt (liHchargu thu insolvunt is only fruud from liahilitius "muntionud or But 
forth in thu atatumunt of liid aflairH uxhiltitud at tlu; tirnt niuuting of hi^ crudi- 
torn, or wiiiuh are uhown by anj* Hupplumuntary liRt of uruditorH furniuhud by 
the insolvent pruvioua to his disuhargu, &o " It bau buun hold that thu dubtor 
must umbr^ue in this supplumentary liHt all claims for which hu suuks diHcharge 
that may not iiavu buun alruady includud in a statumunt rugularly furnished. 
To a pica of discharge undur thu Insolvunt Act, it is a g(N>d ruplication that thu 
plaiiitilFu namu as a cruditor, and thu claim mentioned in thu declaration, were 
not muntionud in thu statemunt exhibited at the first meeting of cre<HtorB, nor 
in any supplementary schedule, as re(iuired by law, and the de})t was never 
proved aguuist the estate {Kiiit/ v. Smith, 19 U. C. C. P. 319. And see coses 
cited in note to section 61 aupra). 



05. Upon such application, any ci'cditor of the Insolvent, ProiociinKK 
or the Assignee by authority of the creditors or of the |.ii.ati..n: 
Inspectors, may appear and oppose the granting of stich dis- of iiu coim 
charge upon any ground upon which the confirmation of a "' "'*''■ 
discharge may be op})08ed under this Act, or may claim the 
suspension or classification of the discharge or both ; and 
whether such application be contested or not, it shall be 
incumbent upon the Insolvent to prove that he has in all 
res})ect8 conformed himself to the provisions of this Act • 
and he shall submit himself to any order which the Court 
or Jtidge may make, upon or without an application to that 
effect, to the end that he be examined touching his estate 
and effects and his conduct and management of his affairs 
and business generally, and touching each and every detail 
and particular thereof; and the Court or Judge may also 
require from the Assignee a report in writing upon the con- 
duct of the Insolvent and the state of his books and affairs 
7 



I!! 

m 



08 



.;i}i!i 



li 



m 



II » ! 



rl.iNN. 



IN80I.VKNT ACT OP l»7.'>. 

iM'foro iiml at tin; (Into of Ium liiHolvniHry ; iitkI tlM!rnn|Hiii tlie 
Court or .lii*lgi>, iiH till! 4'aN(t iiiiiy Im*, ufttu' hnuriii^ tlic In- 
Holv(!iit, uikI tlio i>|)|M»Haiit, if liny, u?i<l iiiiy ovidciicn (Imt 
may Ix; ailductul, may iiiaku an order oithrT granting tlio 
ion (liHchargf of the Insolvent or refusing it ; or in like niunnur 
and under the like etnMiinstanceH to tlioHe in and upon which 
the disrhiirgc> could l»e HiiHpende<| or eluHHiticMl as hereiidx'foro 
provided, u|>>>n an application to confirni it, uu order may ho 
lawU'. Kuspi-ntling it for a like period, or declaring it to he of 
thv Hocond chiHK, or hoth. 

Sec HOC. r»C AH U> the grotimlH uimmi which fi r-mifirnintion of n dlHchar^c mny 
\ni iipiMmLMi, and hcc. A7 <ui to the uhiuihIh u|H>a whicii a HtisiiciiHion <»r cluHHitiuu- 
tiuii (if a (liHchAr}{<! iimy liu claiiiiuil. 

Aft4!r cxniiiiuHtinn iiii<h>r tliJH Hcction tho inHolveiit Ih not cntit1«Ml to he ro- 
exftinincd in hJH own Ijchidf (/m rr Franir, 12 I.. (.'. Jur. *27'i). In Ihxnlv. Ih,tlil>* 
(ly <!rant M't), which wjw un application for iliMchaiL'u from arrcHt, \'. C Iiiaku 
diHcuHHCH the uroiimlH which Hhoidd weiuli witii a ju<l;^u in deterniining whether 
t<) grant or refiiHe a (liacharge (Sec alM«i 7> imrtf Ttm/xit, 1 1 L. ('. Jur. 57). It 
Hvcnia that when under the Act of IS<i<.l u dchtor had made a voluntary nHHign- 
niont, there heing no aHHctH an a fraudulent device for the puriMmc of evading 
|»uyment of u particular claim, these facts were Huillcient to warrant the judge 
HI withholding a iliHchargc after the lapse of a year (TIioiimh v. Hull, i*. It. 
172 ; in KxjHtrl>' Morrixon, >•<• Clnnn, lO.Iur. N..S. 787). 



Diii<'hHr>{e, 

*<■ , oIk 
tiiiiii^ liy 
fr.uiij to Ix; 
vuid. 



00« Kvery dischargo or confirmation of any discharge, 

ohtiine<| hy fiaud or fraudul«!nt prefcM-eiKu;, or hy ineans 

of the constant of amy crcMlitor procured Ijy tho payment or 

promise of payment to such creditor of any valualde con- 

bideration for such consent, or hy any fraudulent contrivance 

or practice what«!V(!r, tending to dofoat tho truo intent an«l 

moiining of tho provisions of this Act in that Ijchalf, shall 

bo null and /oid ; and in no case shall a discharge have any 

effect unless an«l until it is confirmed hy the Court. 

When an insolvent, )>eforo tho meeting of )ii» oruditors concoalod a portion 
of his stock, it was held that his discharge was theruhy avoided, and that it 
was not the less a fraud because he had valued his assets at a sum sufficient to 
cover tlic gtKxls so concealed; aud the plaintiiF, though he had signod a <leed of 
oumpositiou and discharge which had been conlirmed, was held untitled to 
recover his debt {McLfan v. MrLflUm, 29 U. O. Q. B. 548. .See also Thomp- 
«on V. Rutlurford, 27 U. C. Q. B. 205 ; (JoUouhy v. GnUinm, 22 U. C. C. P. 
220 , DaiigliMh v. Tcnnent, L. 11. 2 Q. B. 49 ; Walaon v. Ktirl of Charlemont, 12 
Q. B. 862 ; Hawfien v. Haigh, 1 A. & E. 1033). 

SALE OF DEBTS. 
6T. After having acted with duo diligence in tho collec- Sale of debts 
tion of the debts, if tho Assignee finds there i-emain debts tion of which 

° would l>e too 

due, the attempt to collect which would be more onerous ouerouit. 



HALK OP DKIlTfl. 



&i> 



llmii IwiK^tlciiil U) tho i»Htit«, Im' hIihII n'port tlin hmiho to tho 
(irctlitttrs or lns|M'ctorH, ati<l witli tln'ir «aiirtit»ii In- may mcII 
tho wiinn liy |iiil)li(; imctioii, iifu-r hiicIi ii<lvt'rtis«'mfiit lInTcof 
iiH tli*>y may onitT ; ami |M)iiiliii}{ hiicIi uiivHrtiKitiiinit, tho 
AhmI^^iico Hhull k<'«'|t H list of t\>v tlrlits to Im! moIiI, <»|h>ii to 
iijH|M'ctioii lit hin nllicr, id hIiuII also givo fn-tJ iicct-MH to all 
(lociiiiuMitH uikI voiicIk'I'h t xplaiiatory of Hiich ilrWts ; liiit all Fr<>vi<io 
dohts umoiititiii^ to iiior<i tliuii oim^ huiidri'd dollars hIijiII Iki 
Mold H4'|taiat(?ly, oxcopt aH honsiii otlmrwino provided. 

|»H, If lit any timo miy oroditor of tim [iiH«»lv<'iit d<!.sii-PH rn'«iit«.r 

. '' nil) Im- 

to aiiiHo any i)nK'(««liiis/ to Im< taken which in hin oinnion niith..rifr.i 

in t-'ikc iiiiv 

would \m for tho IwrnoHt of tho cntatn, and tho AsMi^^neo, i.i«-tai |in.- 
under tho authority of tim ereditoi>i or of tho liispertoi-H hi.«ownri-'k. 
refuses or ne^leotH to take such prooeedinj,' after heiiij,' duly 
rocjuirod ho to do, such oroilitor shall have tin; ri^ht to 
obtain an onler of th(! Jud^^e authori/in^' him to take surh 
proccedin;,' in tho nanio of tho Assi^^nee, hut at his own 
nxpcMKct and risk, upon such terms and conditions as to 
indemnity to th(! Assitjnoo as tho Judgo may proscrib!; 
and thereupon any lM>nofit derived from sucli prmMU'ding 
shiill helon;^ oxcliisivoly to i\ni ereditor instituting^ IIkj siimo 
for his l)enolit and that of any other creditor who may have 
joined hitn in causing tho institution of such |)rocoediiig: 
lint if, l)ofort! such order is granted, tho Assignee shall provino 
signify to tho Judgo his rvMidincsss to institute such pnx;ood- 
ings for tho iMMiolit of tho croditoi*s, tho ord(!r shall ho mado 
pn^scriiing tho time within which ho shall <lo so, and in 
that c: so the advantage derived from such proceeding shall 
ap[)<;rtain to tho estate. 

00, The |M5i's<m who purchases a dijht from tho Assigne*! |{j,),t^of 
may sue for it in his own name, as eHectually as the Insol- p'T'i'-y"-';' 
vent might have done, and as tho Assignee is horehy l"*>lv«;>'t 
authoriised to do; and a ]>ill of sale (Form M), signed and 
delivered to him by the Assignee, shall Im) jtriind facte evi- 
ilencs of such purchase, without proof of the I'andwriting 
of the Assignee, and the del)t sold shall in the Province of 
QucIk;c vest in the purchaser without signification to the 
debtor ; and no warranty, excR[)t as to tlie good faitli of the No war- 
Assignee, shall b<} created by sucLv sale and couveyance, not "" '' 
even that tho debt is due. 



r!» 



M 



100 



INSOLVENT ACT OF 1875. 



I 



«■ 




w 



f i 



w 



'I 



31 



LuaHO of pro- 
perty iiKire 
viiluuliln 
thuii nut to 
be Multl ; oil 
what coiidi- 
tioim. 



LEASES. 

TO, If tho Insolvent holds under a lease property having 
a value above and beyond the amount of any rent payable 
under such lesuso, the Assignee shall make a report thereon 
to the Judge, containing his estimate of the value to the 
estate of the leased projierty in excess of the rent ; and 
thereupon the Judge may order tho rights of the Insolvent 
in such leased promises to be sold separately, or to be in- 
cluded in the sale of the whole or part of the estate of the 
Insolvent, after such notice of such sale as he may see fit 
to order ; and at tho time and place appointed such lease 
shall be sold u})on such conditions, as to the giving of 
security to the lessor as the Jutlge may order ; and such 
sale shall be so made subject to the payment of the rent, to 
all the covenants and conditions contained in the lease, and 
to all legal obligations resulting from the lease, and all such 
covenants, conditions and obligations shall l)e binding upon 
the lessor and upon the purchaser, as if he had been himself 
the lessee and a party with the lessor to the lease. 

A covenant on the part of a lessee not to assign, &c., will not extend to an 
assignment by act of law. So that if the lessee become bankrupt, and the term 
pass to the assignees, it is not an assignment within the meaning of a covenant 
not to assign {Goi'ing v. Warner, 7 Vin. Abr. 85, pi. 9) ; and his assignee may 
afterwards assign it without license {Doe v. Smith, 5 Taimt. 795 ; Doe v. Bevan, 
3 M. & S. 353). 

But a voluntary assignment executed by the debtor of all his estate is a breach 
of a condition in a lease not to assign without license (Magee v. Rankin, 29 Q. B. 
U. C. 259), and the lease and term passes to the assignee by the voluntary 
assignment, and the assignee or creditors have no right to refuse to accept. And 
a tai-iag possession of the premises by the assignee is an accceptance of the 
lease, if one were required. (See Copeland v. Stephens, 1 B. & Aid. 593 ; Mackley 
v. Pattenden, 1 B. & S. 178 ; Goodwin v. Noble, 8 E & B. 587 ; Holland v. Cole, 
1 H. & C. 67 ; Doe d. Lhyd v. Poicell, 5 B. & C. 308 ; Doe d. Palmer v. 
Andrews, 4 Bing. 348, Dor. 590). An agreement for a lease is not annulled by the 
bankruptcy of the intended lessee (Morgan v. Rhodes, 1 M. & W. 214), nor by 
the insolvency of the intended lessor (Crosbie v. l^ooke, 1 My. & K. 431 ; 1 
M. & A. 215 n.), but the bankrupt's interest under the agreement for a lease 

{jasses to the assignee, who is entitled to call upon the freeholder to grant such 
ease for the benefit of the bankrui)t's estate (Buckland v. Papillon, 13 L. T. 
Rep, N.S. 736). 



Other cases Tl« If the Insolvent holds under a lease extending 

dealt witii. beyond the year current under its terms at the time of his 

insolvency, property which is not subject to the provisions 

of the last preceding section, or respecting which the Judge 



LEASES. 101 

(loos nok m:iko an onlir of sale, as thoroin provided or 
whicli is not sold uiidor such ordiir, tlio creditors shall 
docido at any mootinij '.vliicli may hi* held more than three 
mouths before the ti'nuiiiatiou of the yearly term of the 
lease curi'ent at the time of such meiitin;^, whether the pro- 
perty so leased should be rotaiiuitl for the use of the estate, 
only up to the end of the then current yearly term, or, if 
the conditions of the lease permit of a further extension, 
also up to the end of the next following yearly term thereof, 
and their decision shall bo final. • . 

T}ie time within wliich croditors have to elect has lioeu extended from one to 
three montha. 



I 



• ;i! 



,i i 



73, From and after the time fixed for the retention of 
the leased property for the use of the estate, the lease shall 
>)0 cancelled and shall from thenceforth be inoperative and 
null ; and so soon as the resolution of the creditors as to 
such retention has been passed, such resolution shall bo noti- 
fied to the lessor, and if he. contends that he will sustain 
any damage by the termination of the lease under such 
decision, he may make a claim for such damage, specifying 
the amount thereof inider oath, in the same manner as in 
ordinary claims upon the estate, and such claim may be con. 
tested in the same manner, and after similar investigation 
and with the same right of a})peal, as herein provided for 
in case of claims or dividends objected to. 

13, In making such claim, and in any adjudication thero- 
upon, the measure of damages shall be the diiference be- 
tween the value of the premises leased when the lease ter- 
minates under the resolution of the creditors, and the rent 
which the Insolvent had agi*eed by the lease to pay during 
its continuance ; and the chance of lesisiug or not leasing the 
premises again, for a like rent, shall not enter into the com- 
putation of such damages ; and if the claim is not con- 
tested, or if, being contested, the damages are finally awarded 
to the lessor, he shall rank for the amount upon the estate 
as an ordinary creditor. 

Y4, The preferential lien of the landlord for rent in the 
Provinces of Ontario, New Brunswick, Nova Scotia, British 



Lessor 
('l:iiiniiig 
iliiinagoH for 
ti'riiiinati»n 
of the least'. 



How dani- 
a^os are to 
lie estima- 
ted. 



f ■ 



H- 



Preferential 
claim of 
landlord 



! 



II 



I?'m ' "' > 



H 



|i 



ill 



i ; 






102 



INHOLVKNT ACT OP 1875. 



liiiilt.din Columbia, Piiiu;*! K'lwiinl IhIjiikI, or M.Diil.obii, is r<!Htii(;tf;<I 
the Hitvi.Tnl .,1 , ii'i ■ t p 

i'r.ivin(!«;H. to tJi(! iirn-iirs of n-iit uiif <liiriii;^ tln^ |K'no«l of nwo yciii' Inst 
|)r(!vi()iis to till! (■x<!(;iit.ioii of a <I«*«mI of assij(iiiii<!nt, or the 
iwHUo of a wiit of •.liiachuvtui mulor this A(;t, as tlic; ojisf 
may b(;, and fiom thence so loii;^ an tlio AKsi<,'ne(! HJialJ 
retain th(! pn.'ini.scs Icawjd. In tho Provinnf^ of (^iiohcc; tho 
j)r<5F«'r(^ntial ii(^n or |)rivil(?i[«! of the lessor Khali he goveined 
by the provisions of tin! civil code. 

The cliiiin of tin; IruHlldiil for rent is biititlod to l>e paid in proforeiKM! to the 
coHt« of tli(! ;iH;si;;n(:(; for |tid(;uiing his (lisLliaruc ainl tliat of tlio iriHolvi.-iil, (/// re 
Mor;/,in, Hi L. (). .Jur. 187). Tiic pn:f.;n.iitiaT claim of the lainllonl in i<;htrirtod 
to th(j arn;iuH of runt tluc (hnint,' the i>eri<«l of one year, wln;ther lit; hiiH ili.s- 
trained hefore insolvency or not (.^^^^o/« v. Il'imi'ton, 'I"! \J. ('. i',. I'. 11»0 ; h. c. 
in apj*. 2'2('. V. U. ( ;. 411). In Ontario the landlord Wiw entitled to .li.strain 
I'll' Hix yeaiH ant ats of rent pieviou.s to the introduction of this proviHion. 
'i'hcre in nothing in thin .-uetion to prevent <li«treaH by tlie landlonl after assign- 
ment, or to I'estrain liim from n;taining possession of goods distraincfl until 
payment of one yeai's arrears of n nt (Sim; f;n[l!/h v. Ilrown, 21 U. C. ('. V. \'2); 
nor does see. I'J."> deprive him of liis reniedy l»y distress ; an<l it was so held in 
Now Hrunswiek, Wetmorc, J., <lihseiitiug in McLtud v, MrOairk, (Sup. V,. Hen. 
2, 252). 



S;ilp of real 
• stfttc of In 
solvent. 



SALi: OF HKAL KSTATK. 
15, Tiio Assigufse may sell tli«; ix-al estate of tho Insol- 
vent, ])nt only after advertisement th(!i'eof for a jxricjd of 
two months, and in th<; Siime manner na is re(juire<l for the 
actual advcii'tisement of sales of nsil estate by the SherifT' in 
the district or place where such real estate is situate, and to 
Buch further (jxtent as the Assignee deems expedient, pro- 
vided that tlie period of advi!rtisern(;nt may Ixi shortfiued to 
not less than one month by the crerlitors with the approba- 
in Quebec, tion of the .fudge ; l)ut in the Province of Quebec such 
abi'idgement shall not take place without the consent of the 
Ly[)<)th(!cary ci-editors upon such i-eal estjite, if any there 
be ; and if the jtricfs offered for any real estate at any pul»lic 
8al(! duly adveitised as afoi-esaid is more than ten per cent, 
less than tho value set upon it by a resolution of the credi- 
tors, or by the InsjKctors and the Asssignee, the sale may 
be adjoiirned for a pf^riod not exc(?eding one. month, when, 
after such notice .as the Insjicctors and the Assignee may 
deem pioper to give, the sale shall be continued, commencing 
at the last bid ofTtjrcd on the pnjvious diiy wlusn the pro- 
perty was put up at auction, and if nr) higluT bid be then 



SALE OF REAL ESTATE. 



1j3 



offmrfMl, tli<i \)ro\tori.y sliiill Ito u(ljii(l;^(!(l to the ))orson who 

miulr; Hiieli lust lti<l : PiovitldMl tliut witli tlm consfiit of tlio nroyino: 

rostpont!- 

hyi»ot}i(!ciiry and |tnvilo{'<!<l cnulitois, or wlufrn tlifM-<( aro no |'"'"i "ffiic 
hyj»oth(!cary or jtrivih^gcd cnMlitors, with tln^ approliatiou of -jf < rwlituri, 
tin; croditfjrH or of tli<< Insjmctors, tin; A.s.si<,'no(! may po.st. 
pono tli(. Hale to siicli tiino aH may bo doiimud most atlvan- 
t'ig(!oii.s for tli(! (^stato ; ami wlKjiiovcr tlio Halo sliall liavo 
boon HO poHtpoiKid ))cyoiid oiu; mouth, i\u' last }>i<ld('r shall 
bo <liHchar^'<!d from any oltli<^ation iind«'r tlio bid ho may 
have made on the previoim day whf-n tin; property was 
offen-d for sab* by auction. 

Tin; tiirio aii<l iiiatinnr of ailvortlHinj^ tho Hales of nsal ostatt; by tho HhorifT in 
Ontario arc j)oiiit<<l out in tli<; Common \mw l'ro<;c(biro Act ((Jon. Stata. U. C. 
ch. *2'J. 8. 2(}7), which ( iiactn as followH :^ 

'* l5cfore the sale <»f real CHtatc upon execution against lanils and tcncmentB, 
the shcriir uhall publisli an advertisement of sale in thaCaiuida G'azeUe, at least 
six times, specifyiii;;, - 

'* First : The particular property to be sold ; 

"Second: The names of the j)laintifF and defendant ; 

"Third: The time and place of the intended sale; and he shall for three 
months next preceding the sale also publish sueh advcrtis»inent in a jiuIjUc 
newspaper of the county in which the land lies, or shall for three months put 
up and continue a notice of such sale in the office of the ('Icrk of the Peace, 
or on the door (tf tlie Ocmrt House, or place in which the Court of fJeneral 
Quarter Sessions for such county is usually hoiden ; but nothing herein con- 
tained shall be taken to prevent an adjournment of the sale to a future day." 

By Stats. Ontario, 31 Vic, cap. (5, this notice will be in the Ontario OazcMf.. 

Ailvertisements l»y the assignee in insolvency should describe the property 
and state the title, in the manner n^uircd in advertis«rments by other ofbciala 
or trustees (()' li'iillij v. Hose, 18 (Jrant, '.V,\). And in the same ca.se it was held, 
tl»at creditors obj(;cting to an irregular or iiiqiroper sale shoidd r(;sort to the 
Judge of the C<mnty (Joint for relief in the lirist instance, umler sec. 50 of the 
Act of I8(;y, sec. 12") Infm. 



T6. All sales of real ostfito so made by the As.signee shall Einnt -.f 
, ■ .1 , 11 1 1 1 1 • 1 1 n Hiili's of real 

vest in the pureliasers all the le<^al and efjiiitable estjite of cHtatu. 

the In.solvent thorfiin, and the conveyanc(j may 1m; in the 

Form N.; but in the Pi'ovince of (.^uebcie such sale shall iu 

all respects hav(; the; saiiu; eHect iis to mortgages, hypothecs, 

or privil«;ges then existing th(;reuj)on, as if th<; same had 

been made by a sheriff, under a writ of execution issued in 

the ordinary course;, but shall have no other, gr(?ater or le.ss, 

effect than such sji(;ri(rs sab; ; and in the Province of 

Quebec the title conveyed by such J^lo shall have equal 

validity with a title creat^id by a sherifl''8 sale ; and the deed 



I 



104 



INSOLVENT ACT OP 1875. 







I 



I !'■ 



I 



Fomiof of such sale whicli tho Assignee executes (Form N.) shall, 

tumig. m tho Pi-ovinco of Quebec, have the same effect as a slieriff's 

deed ; but the Assignee may grant siich terms of credit as he 

may deem expedient, and as may be approved of by the 

creditors, or by tlie lusjKictors, for any part of the pui'chase 

money ; except that no credit shall bo given in the Province 

of Quebec for any part of the purchase money coming to 

any hypotliecary or privileged creditor, without the consent 

of such creditor ; and the Assignee shall l)e entitled to 

reserve a special hypothec or mortgage by the deed of sale 

as security for the j)ayment of sucli part of the purciiase 

moncjy as shall be un[)aid ; and such deed may be executed 

before witnesses or before notaries, according to the exigency 

of the law of the jjlace where tho real estate sold is situate. 

All the words of this section after "Form N." apply to the Province of 
Quebec only, and it is submitted that in the Province of Ontario, at all events, 
the general rules applicable to sales by sherifTs or other otRcials will govern in 
the case of sales l)y assignees. As the title of the insolvent vesta in the as- 
signee by assignment or by writ of attachment, a purchaser from an assignee 
under an assignment would obtain the title of the insolvent in the property 
at the date of the assignment ; and in the case of a compulsory liquidation the 
assignee would convey the title +hs,t Lhe insolvent had at the time the writ 
of attachment was placed i i the hand of the oflicial assignee. (See above 
sec. 16). 

Sales inQue- 7T. In the Province of Quebec such sale may be made 

bee may be . 

.subject to subject to all such charges and hyjx)thecs as are permitted 
eiiargea. by the law of the said Province to remain chargeable thereon 
when sold by the Sheriff, aiid also subject to such other 
charges and hypothecs thereon as are not due at the time of 
sale, the time of payment whereof shall not, however, be 
extended by the conditions of such sale ; and also subject to 
such other charges and hypothecs as may be consented to in 
writing by the holders or creditors thereof. And an order 
of re-sale for false bidding may be obtained from the Judge 
by the Assignee upon summary petition ; and such re-sale 
may be proceeded with after the same notices and adver- 
tisements, and with the same effect and consequences as to 
the false bidder, and all others, and by means of similar 
proceedings as are provided in oi'dinary cases for such, 
re-sales, in all essential particulars, and as nearly as may be 
without being inconsistent with this Act. And as soon as 
immovables are sold by the Assignee, he shall procure from 



enchere. 






SALE OF REAL ESTATE. 



105 



the Il43gistrar of the Registration Division in which onch 
immovable is situate, it certificate of the liyi)othecs charged 
upon such immovable, and registered up to the day of the 
issue of the v/rit of attiichment, or of the execution of the 
deed of assignment by which the estate of tlio Insolvent 
was brought within the purview of this Act, as the case 
may be: And such certificate shall contain all the facts and 
circumstaiicos recpiired in the Registi'ar's certificate f)btained 
by the Sheriff, subsequent to the adjudication of an iunnov- 
able in conformity with the provisions of the Code of Civil Code of 

'' ' Civil Pro- 

Procedui-e, and shall bo made and charged for by the Re- f.duro to 
gistrar in like manner : And the provisions of the said Code 
as to the collocation of hypothecary and privileged creditoi-s, 
the necessity for and the filing of oppositions for payment, 
and the costs thereon, shall apply thereto under this Act as 
nearly as the nature of the case will admit : An<l the collo- ordorofdis- 
cation and distribution of the moneys arising from such 
sale shall be made in the dividend sheet among the creditors 
having privileged or hyi>othecary claims thereon, after the 
collocation of such costs and ex[)enses, including the As- 
signee's commission on the amount of the sale, as were 
necessary to effect such sale, or are incident thereto, in the 
same manner as to all the essential j)arts thereof, as the 
collocation and distribution of moneys arising fi'om the sjile 
of imniovables are made in the appropriate Court in ordi- 
nary cases, except in so far as the same may be inconsistent 
with any provisions of this Act, but no portion of the 
general expenses incurred in the winding up of the estate ; 

shall be chargeable to or payable out of the said moneys, 
except on such balance as may remain after the payment of 
all i)rivileKed and hypothecary claims. The Assignee's Assigiiee's 
commission on such sale shall be the same as the poundage i^aii^ce. 
to which the Sheriff is entitled on sales made by him. Any 
balance remaining after the collocation of the said necessary 
costs and expenses, and of the privileged and hypothecary 
claims, shall be added to and form part of the general assets 
of the estate. 

^S. In the Province of Quebec any privileged or hypo- in Quebec 
thecary creditor whose claim is actually due and payable, creditors 
shall have the right to obtain from the Judge an order on '""^ requir© 



106 



INSOLVENT ACT OF 1875. 



! 





i 1 

1 ^ 






In 

ll 


■ 


% 


i '■■ 


,B 


, 


1 


i 



1 1 ' \ 



:.\l 



A 



1l"t'!' 



sale of pro- the AsHiguoo ti) proceed without dehiy to the sale in the 
Ject"t<i tiair iiiode iibovu pro.sc) ihed, of any property, I'ftiil or personal, 
claims. wliiuli i., Hiib.oot to ui8 piivueged or hyj)otliecary claim; 
and such creditor may also one montli after the sale has 
taken phice, or one month after the Assi/^iuio has received 
the price ther(;of, if not paid at the time of th(! sahi, obtain 
an onler from tiie Judge to compel the Assignee to make a 
dividend of the proceeds of such sale. 



DIV 



WS. 



Acrnnnts, 

BtiltCllli'tlts, 



^IDEN] 
70. upon tlie exjiiration of the period of one month 
ainiiiivi- ' from the first nujeting of the creditors, or as soon as may be 
Aa«igiiLL-. atter the expiration of such period, and afterwanls from 
time to time, at intervals of not more than three nuuiths, 
, tlie Assignee shall prepaie and keep constantly accessiV)le to 

the creditors, accounts and statements of his doings as such 
Assignee, and of the position of the estate, and ho shall pre- 
pare dividends of the estate of the Insolvent whenever the 
amount of money in his hands will justify a division thereof, 
and also whenever he is required by the Inspectors or ordered 
by the Judge to do so. 

It was at OT' time considered in England that creditors who had not proved 
before a divi., nd had been declared could only be paid future dividends /xiri 
fxinsu with the creditors who had proved and received prior dividends ; but this 
practice has been altered, and it is now the constant custom to permit creditors 
who do not prove until a second dividend is declared in the lirst place to be 
paid ecjually with those who have proved before, and then to tlirect a general 
tlistributiou of the residue (Eden. B. L. 355). 



Wliat claims 
tiliullraukon 
tht estaU'. 



80. All debts due and payable by the Insolvent at the 
time of the execution of a deed of assignment, or at the 
time of the issue of a writ of attachment under this Act, 
and all debts due but not then actually p.tyable, subject to 
rebate of interest, shall have the right to rank ujion the 
estate of the Insolvent; and any person then being, as 
surety or otherwise, liable for any debt of the Insolvent, 
and who subsequently pays such debt, shall thereafter stand 
in the place of the original creditor, if such creditor has 
proved his claim on such debt ; or if he has not proved, 
such person shall be entitled to prove against and rank upon 
the estate for such debt to the same extent and with the 
same effect as the creditor might have done. 



lil! 



i^KI 



DIVIDKND8. 



107 



Dehti^ incurred ftftor tho oxocution of n ilee«l «if a.^si;^mont arc not provuMe, 
an<l tliL'iofi>ri' Miu iiiaolvout is not n-lieved from them l»y n discharge umler this 
Aet, nlthoii^'h nil uu'sotii ao(iuiruil up to the time uf the dit^churgu aro vested in 
tliu AHHigueu (Htm aiUr, aeu. 10). 

Tho only roaaonahlo mode of arriving at the rehatc of intere-st ia to ado]it the 
date of tlie deed of aHMigniueut, or of the appoiutnieut of the utlicial astiiguee. aa 
the period from whieh it is to be calculated (Abhott, p. M)). 

WluiH tl'e insolvent, a miller, agreed to grind wheat for the claimants, and to 
deliver to tlium a barrel of Hour of a apeeilie ouality for 8o numy bushels of 
wheat, and he thus became liable to deliver to them 0r>5 l>arrel8 of Hour, as the 
eipiivalent for wheat received Ity him aiul made away with, it was held that 
this Wius a bailment only of the wheat, whieh remained the claimants', to the 
insolvent ; that the bailment was determined liy the conversion ot the wlieat, so 
that tho claimants might maintain trover for it either as wheat or as tlour if 
ground ; but that they miijht waive the tort ami sue for the value of the goods 
when they sliould have bee i ilelivered ; and, therefore, that tlie claim was 
prov.ible ;vs being a debt wit lin the Insolvent Act, not a claim for liijuidated 
damages (In re WlHiani-^, ','A Q. l^. \J. <.'. 14.3). In the same case it was also 
held that a claim for comp^^nsation as to a certain number of barrels whieh did 
not turn out to be of the (luality agreed for, Wiis clearly a claim for UTdi(iuidate<l 
damages and eoubl not bo proved. The tlitFereuee between a sah; and a resale 
ia a liijuidattd demand (Ex pnrtc Ifuiifer, (i Ves. 1)1). A contiact to noplace 
stock is a debt pr ivable in lianUruptcy, for its market value at the time of the 
breach and of the bankruptcy wuuld be the mea.sure of damages and the amount 
of such dam;g -1 w )uM l)e a demand f<»r a sum certain (liettcleif v. Sldiiiilii/, 12 
C. li. N.S. 477, 497). On the common (piantum meruit count the price is unas- 
certained, yet a claim which w»mld support it is provable in l)ankruptcy, 
because it is easily ascertainable without the intervention of a jury (JoUiixun v. 
Spillir, Dougl. lOli). The general rule seems to be that if a jury is re<iuired to 
settle the am tuut due by the insolvent, tho claim is not a delit whieli can be 
proved on the istate ( Woolli'if v. Smith, 3 C B. 010; Johmim v. Skaft>', L. 11. 4 
Q. B. 70<) ; Ek parte WUnini, In ri'. Thompmn, L. 11. 2 < Jh. App. 7».') ; Earl of 
Falmuiifk V. Penrose, B. & C. 385 ; Park-er v. J!iorton, 9 T. U. 01)5 ; Afanon v. 
(r. W. li. Co., 31 Q. B. U. C. 73). Where miscontluct of the insolvent ends in 
})ecuniary liability, the expectation of the bankrupt of having to pay the 
damages conse(juent upon his olfeiico cannot be taken into account as l)eing the 
cause of his insolvency. Nor can it be considered that a debt is contracted at 
the time when the act for which an action is afterwards brought and damages 
received is committed. Such <laniages become a debt only from the time of 
entering uj) tlie judgment. The judgment, therefore, makes the debt, and if the 
judgment be not entered up at some time anterior to the adjudication, no debt 
is incurred which is provable under the bankruptcy (Ex parte Griffiths, 10 L. T. 
K«p. N.S. 705). Under the Act of 1869, sec. 100, if the creditor filed a claim 
for a debt due as damages for assault or wilful injury to fhe person, seduction, 
libel, slander, or malicious arrest, &c., the fact of his making a claim would 
cause a discharge under that Act to apply thereto in bar of any futur"- claim for 
the same debt. Now, however, by see. 03 supra, a creditor may even prove and 
accept a tlividend for debts of this class without being by reason thereof affected 
by a discharge, provided he does not expressly consent to such discharge. By 
the Englisli Act of 1809, sec. 31, every j^ossible tlemand may be the subject of 
proof in babkruptcy, except demands for damages for absolute personal torts (Ex 
parte The Lbjnri Coal and IronCompanij, 25 L. T. Rep. N.S. 009). A claim for 
damages in resp« ct of loss of supposed profit calculated an estimated average 
arising out of r,.i alleged bieach of contract, there being no evidence of the 
existence of an actual contract; of resale, is not provable (Ex parte Beer, 18 L. T. 
Rep. N.S, 418). Damages, if liquidated by a security as a note given upon com- 
promising an action for seduction, are provable (Ex parte Mumford, 15 Ves. 289). 
But when a verdict for damages is obtained before, but judgment ia not signed 



\m 



INbOLVKST ACT 0^' 1876. 



I 



M^ 



ii' 



1 






until ixfU'T tho kinkruptfiy, th«! <l<!inr\ti(l in not nmvdlili! {I'Jx jHirV' Churfis, 14 
KaMt. I!»7 ; A> fnirh //ill, 1 1 \'t m. i\U', ; //'W/« v. ^/i//>f;< '_» M. .V S. 70 ; OxAe^- v. 
Xorl/i />iw.'<-r/i /Inltiraif (''.m/)<iinf,',\',\ I,. .1. f '. |'. N.S. 171). I5iit vvliuii an aw.ird 
h.i'l Im '■n ninth; iHiforii Iciiiknijitry, iiinl ju'leniont thcrtsmi wiih not •■iitcrol until 
aftc-r tlif l(;viikriiiit<;y, tlu; tiiiiniirit of tliu jiiil^rnciit, with iiittin^Ht nii>l I'MHtH, wtw 
hiiM to i;i>nstit.iiti; a il<!l»t provrililc ai;ainst tin: cHtatc {/'J.r /mrti' /Innfhi'/, 't [). M. 
A a. 307 ; I) M. A <S. H. A. U)7 ; A'j; /,nr(r //,,,/<,,, 1 (;. i: J. 1U7). MoHnu profitH 
arc not provalilu {(JowllUti: v. North, l)<»ii;,'l. TtSJ). 

When th«; I'licnt of a wtlicitor hitcrnnoH hankrupt, ami tlio Roliritor doon not 
pruvc for tin: aiuoiint of his hill of coMta in Uu: l)ankrii|iti;y, tho aHHi^;ni!(; cannot 
obtain an onlor to tax without giving an uiidi rtaking to jiay llio wjjohj amount 
of tho hill (/« ri' EhtiAlk .t- do., \.. R. •» I'/i. 72). 

Tho Hurtity, having paid tho doht ami intun'st t) the; tiinr! of paymont, i» 
iintitltd to jirove against tin; ontatu of tht) prini ipal debtor (/'//■ inirh- Siiiilirxim, 
2S L. T. K'-p. I'M), l»ut h(! niUHt pay or satiHfy tho wholo doi)t in tho first 
in8tan<;o (/("*' /{riinm»nf, Konhlampio K»!it. 'JOS). A sunrty oaii Ht.md in the 
place of hi.s principal for tho doht paid l>y him tf> tho oxt«:nt only of his prin- 
uipal's int(;rtst in such doht (/vV /xirfi- lliindnii, 2 <i. & .1. HO). A oo-dol»tor 
who I, as |Miid tho wholo doht against him is ontitlod to an assignniont of tho 
judgmont rocovorod against him and his oodohtors {llnlrhi'lnr v. /jamnnrc^ <♦ 
<;. B. U»|). N.S. aW ; :{() L. ./. ('. I'. :VJ). Whoro tho jiarty is liahlo to what, 
a8 liotvvot-n himself ami tin: insolvent, is tho insolvent's debt, and for which ho 
at the time of t\u- insfdveiiey ouglit to jirovide, >'.!/., wht;n! tin; surety is acecptnr 
for the iiocommodation of the Itankrnpt drawer, the doht is provalih; {Sdihuari 
V. A/nrf''iiniiiif, \'A K.-wt. 427). Hut otherwise if tho sureties ho liahli; for tho 
(Icht of aiioth'-r at tho time of the hankruptoy of out; of them. Such liahility 
in a mere contingency, for until tlio surety has paid ni'ire than his share, ho 
cotinot sue hia co-surety for restitution { W<iUiH v. Sioinhunw, 17 L. J. 10!) Kx.). 

A surety is entitled to tho dividends upon a debt ])roved liy a principal who 
ha.s received payment in full (I'jX /tn.rti JithiiMon, '.i l>. .M. &.(i. 218; 2! L. T. 
Rep. lOU). Hills of Kxchange wcero <lrawn by the bankruftt upon, and accepted 
by, H. U|>on tho express agreement that tlie proceeds of certain consignments 
should be appropriated by B. in paym.ait of the bills, notice whereof was given 
to the con.signee3. It was helil that the proceeds of the consignment should, as 
against the assignee, be apijlied in discharge of the acceptances of 1>. {I'Jj: jKirle 
IIo')h',H«<; 'A M. & A. 20!) ; /i'y; /lartc Flow,,; 2 M. & A. 224 ; 4 1). & (J. 449 ; 
and such security held by a banker against his acceptances is available to the 
bill-holders, not directly, but througli the e((uity of the acceptor or hi.-i as.signoos, 
under a commission <if bankruptcy against him, to have them applied in dis- 
obatgo of the acceptances {tJx jiarle yVarinf/, I!) Ves. 344; /'uw/ck v. J/ai'- 
gractif, 3 1>. M. & (i. 430; see the case of /<Jx /xtrtt' [Vtirin;/, commented upon 
Jn re yrw Zi'ulawl /innkiinj (^itrponilion, l^'oi «t' Co.'k case, L. It. 7 K<|. 449 ; 
In re. (jinpi-iil /{olUnij Stork Cunipaiiy, li. R. 4 ('li. App. 423 ; 6'i<// /innk v. 
Luckir, L. 11. i» Ch. App. 773 ; Finiuiuj/iaia v. Mnitd, L. 11. 7 K(j. 701 ; Jn re 
Barne.il's /Junking (Join/Mini/, /iaiin< r v. Johmton, 5 II. L. 157). A. ami li. each 
guaranteed to tho amount of £2.")0. Tho goods supplieil under the guarantees 
amounted to tOa?. Held, that A. & 15., having each paid his C2r)0, were 
entitled, upon tho b<ankruptcy of the <lebtor, to a proportionate share of the 
dividend payable upon the proof for the full amount of the goods Huj)i)lied 
{Ilohmn V. liiuH, L. R. 6 Ch. App. 792). When a debt is secured by a surety, 
it is the business of tho creditor, if he has security available for the payment 
and .satisfaction of the debt, to do whatever is necessary to make that security 
availai)le ; and he is bound, if the security proposes to pay tho debt, to make 
over to him what securities he holds in respect of it, so as to enable the surety 
to realize tho securities and repay himself the amount of the debt, which he has 
had to pay ( WiUff v. Jay, L. 11. 7 Q. B. 750 ; 27 L. T. Rep. N.S. 118) ; and 
where the creditor neglected to register the bill of sale, which he held as a 



DIVIDENDS. 



lOO 



security for liis (lc!»t, iind nllowetl tho ilchtor to remain in pf<««fH»jon of th«- 
({(xmIh ftHMi^'in;<l, l»y which iic^IikjI tliu itropurty woh uluini*)! I»y tin; trunU^t: luuler 
a li<|ui<l;itiMii, the Hiirvty w:w roleaau'l to thu uxtttnt of the vnliic of th«: nomlB 
(Ih'vl). I'nynii-iit l»y a surety to tho hoMir of a jironiitwory note of the ninotint 
of thi! note will wot jm^'cjit the holder from j»rovirit; a^.-iinst the |iriitei|)al 
ilehtor for the whole ainoi.nt <if hirt ilei)t owiii>< frotu the latter, inclu'iiri^ tlie 
auioiiht of the note ; hut the Hurety will l»o entitle.! to the <livi<lcnilrt ujM.n 8o 
mueh of the Hinn proved for a« reiiieuented the ainoiuit of the note (Uray v. 
Hiickhnm, I.. U. 7 Ch. Apii. i}80 ; 27 L. T. llop. N.S. 290). 



.\rh.tr«tion 
if Ih" iiwanl 
be reje»t«d 



81. If nny crwHtor of thn Tniolvont claims upon a con- Ciwo of r«n- 

tract tlciicml.jtit uhoii a conihtion or contiiif,'cncv wIii'Mi ci.iin.i pro- 
1 1 • 111- /• ' I i« 1 yifixi for 

does not liappon jinsvious to tlio dochiration ot tn<^ iimt 

divi»l»Mi<l, a (liviilcnd hluill Kc rcsisrvod upon tlio amount of 
such couilitional or contingent claim imtil tho condition or 
contin;^('ncy is clotcrmincd; hut if it In; mndo to appmr to 
tho >Ui(\'^i'. tli;it the e.staU; may thcnihy \>c kept o[»on for an 
unduf! length of time, ho may, unless an irstimatc of the 
valuo of such claim br agrojid to hctweon the claiiniint and 
tho Tns[»t'ctorH, order that the value of such contingent or 
conditional claim \x; estahlished hy siich person or jM.'rs«»nH 
OH the claiiMiint and the; Inspectoj'8 may apj)oint, ajid in case 
they do not agree, then l»y such pei"son or jwrsons jus the 
Judge shall name, Kn<l the pei-sons ho named shall mako 
their award, which award the Judge, nfter hcjiring tho 
claimant and Inspoctors, may reject or confirm. In case the 
award l>e rejecttid, other persons shall he appointf;d as 
herein provided to establish tin; value of such claim, suhjfjct 
to th(; control of the Judge, and if tho said award l>e con- 
firmed, the amount therein mentioned shall be that for 
which tho claimant shall rank uj)on the estate as for a debt 
payable absolutely. 

The provision in this section for arbitration is new. Ry nee. .'>7 of the former 
Act, the award as to conditional or contingent claims w,a« required Ut be madp 
by the asaif^ncw ; by thia Bcction any person or j)eni(jna may he 8elect<;d .is arbi- 
trators. It will be noticed that it is only claima arising out of contract which 
can be dealt with under this section. 

A claim upon a guarantee, for a certain sum when due, is provable as a debt, 
and before it is due it is provable aa a debt due upon a contincency (At 
Willis, 19 L. J. 30 Ex). 

Liability to calls u[)on shares is not provable aa a debt due upon a contin- 
gency (South StalTorilshire Railway Company v. liurnmde, 5 Exch. liep. 129). 

Contingent debts where the liability ia remote are not provable ( Ex parte 
Davit, Mont. 121). 

A., in consideration of the payment to him of a sura of money by the 
vendors of goods, guaranteed the payment of the purchase money by the pur- 





m f 



no 



IN80LVKNT ACT OF 1H78. 



\} 



( 




ohftHfTH no.citriWun to tlio trim of tlio «-(»iitrii(;t, viz. : 1)y tlm *\\i<i lioiioiir of a 
liill of (XiliiiriKo ncA'.iiidrA l.y l)u- |iiiri!liam!rM. 'I'Imi hill liiti not full tliir until 
oftcr til" li.inUrii|»t(y of tlii« ifiirxnititor, aihI iijkim itn Ihmmh WiMlionoiintl tli« 
vi;n'loirt Wd.j lii'ld .iititi.il to itiovo {h'r ,„irt> itnink, (I D. M. *. <«. 771 ; m. c, 

i>. M. fc«;., ij. A. r»r,i). 

A >{Uiir,iiito(; in writinj,' inny \h: witlidniwn nt any time; without tlm notiHrtit 
of tli(! piirty ><iiJinintt:ri|, proviiliMl tlir |.'minintci! Iihh not Knoii H<t«:<l n|Kiri 
(itjD'iird V. harir^, {', \.. T. iNp. N.S. ru'.) i'.W.). 

\Vli(!n ,1 <liHi:Ii(iru(i niiilir tilt) Inmilvunt Act of IH()J wjih [»lt:ad(<l, it w/ih hold 
tlifit the wonh " ilt!|H!n(lcnt iifion ji coinlition or nontinj^oncy" ili<l not Ji|i|»ly to 
a chiiiii for <|jini.ix<H for hrcicii of covi^n.-int for titli!, hucauwt it win not a ihht 
provalilc in inHolvt:n<!y, and aUo hccaiim! in that onwi tliti contin^^tniy had hap- 
ponrd hrfoii! the insolvomiy, thcro havin;,' hiion a ronvcyanc;!; in cxiMtfiict: con- 
htitiitin;< a hna<:h of tho rovoiiant at thr tirat; it waw (intirnd into {/liiinni'tM v. 
/)i- /l/ni/iiirri, ;U i). IJ. II. (;. r»l'J ; me ,'iIho noto to hi-c. K(> hii/>i(i ; Winlnini v. 
Taebi; ."> H. * |{. '.\H\ ; Afrfrnt/) v. Ilan.vm, \.. \{. I 11. I,, iil'2; KitU V. Tli»n,an, 
h. It. i\ V.x. 'M2 ; Vary v. DawHon, li. II. 4 (J>. H. r><}S). 



lUnk (iikI 8!8, Til tho i)nM»!ir!iti(»n of tlm <livi(]<>ti<1 Hlmcffc, dun n'^'unl 

firivili'^i' of 

rri'iiiinii ; hIiuII I)(! IiimI io tlio Dink iiihI itrivil(^o(« of ovjiPy cHiiJitor, 

1»r<ivi«ii UK , . , , 1 • .1 1 1 III 

ocr.MiiioiM which rank and pnvilooc^ upon wliut(!V(ir llify may io;,'ally 

8«cuiiiy. !'<' fouii(l(!(l, shall not In; <liHtujl)(!il hy tho |troviHions of lliin 
Act, oxccpt in tln! I'roviiuM) of QiKiluic, whisrc tho iiriviir^jo 
of th(! unpaid vtJiidor .sliiill cojiho from tlio <|(div(!ry of Iho 
goodH Hohl ; hut no dividond sliall In; iillolLcd or paid to 
any cr(?ditor lioldin;^ .sociirity from the ostato of tlu; [nsol- 
vont for liis claim, until tin; amount for which lie Nhall rank 
aH a cnnlitor upon tho cstatt) as to <livi<l(!nds tlicrofrom shall 
b«i «iHtal)lish(!(| as ImrcinaftiM* provided ; and such amount 
Hliitll ho tho amount which hn shall ho hcdd to rcpn^scnt in 
voting at mccitings of creditors, an<l in computin;^ tin; prir 
portion of cr('ditf>rs wh(!m;vcr imdcr this Act s\i<;h propor- 
tion is roipiircd to ho asccsrtainod. 

The right of tho Hocuriid croditors to vote, or Hign a Am'aX of compoHition and 
diachar^ji;, is rcgiilatod hy tliin Hoction. Mr. Ahhott reniaikH (p. 41), "ThiH 
really jilacuH tho (;rcilitor'rt votu upon a [)ropor footiiif^. Kor if a creditor (tould 
vote upon tho nominal anioinit of lii-^ claim without ic.fereiict; to liin security, 
the hyiiothecary on ditor would often c<mtiol tho manaKement of tho porHr)nal 
property, without hoiug intoroHted in it to any conMidurahlo extent." 



Seizure in HI5, No lion or privilof^o upon oithor the; porsonal or real 

afu^riip- cstato of tho Insolvont shall V)« eroatod for tho amount of 
of 'AHHiKnee, any judgment doht, or of tho intcrost thoreon, by tho issue 
itoeifcct. or (],.|ivory to tho Shoriflf of any writ of execution, or by 
levying ui)on or seizifig under such writ tho oflbcts or estate 
of the Insolvent, if, before the payment over to tho plaiiitiff 



|)IVII)KNI>fl. 



Ill 



of ill"' iiif)rir'yH iK'fii.'ilIy Ii'VHxI iimlrr hiicIi writ, tli«» rHt.iti! of 
tli(? <|i'l)tor li.'is Ih'I'Ii tiNHi^^iiml lo mi AsHJi^tion, or if |)I'imm>im|- 
iii^H to plarr tint wiiiiti in li(|iiiiliitii)M iiii<I<t tliiH A<'|, )i;ivo 
h«>i>ii ii<|))|>(<*i| mill iiro Htill |M'ii<iiM'^'. Hut IhiH proviHion 
hIi.iII iKtt, iiflrrt, any linn or privilr^^^! for t'OMts wliirli tlin 
liliiintiir |>o.sH<'SS(!H iiii<l<^r tbo law of tlm I'roviiuM! in which 
Hiirh writ Khali liuvo Ik'imi iNHiiuil. 

It liiiH Ihmiii In III Unit imtliiii^ in ni;o. I.'), (Uiifinliii)^ A(tt of iHCt't, iiittii'fcriMl 
witli tilt! ^oimIh hiiIiI iinilir an rxiiiaitimi n iiiiiiiiin^ tin' |ii'i)iii!i ty of tin; piir- 
i;liiM<MH, altiioii^h till' \vi it nl uttuclitni^nt ini^lit liavti Imhih <l iiiiiiu-iliiitily after 
till! Hall!. 'I'liat iirliiMi, liko tliJH oiir, only witiit to iliviHt tlii! lii'ii or |irivili'((o 
cn-atnl l»y Hiii/urii liy tin? Hliriiil'. An cxi riitinii was plaii'il in tin- Hlirriir's 
hanils on tin- iritli Manli, iHCiti, anil on tin; 'Jtitli of tin; haiiit! inuntli, u Haiti of 
tin: f^'ooilH tlii-rciinili r riiiiiiiiiiii-i'il at 10 a. m., ami w.i roni|ilrtfil at II a. M. 
At tiii^ latter luMir of thin Hiil)Mi!i|iirnt day a writ of attarliniriit waH iilainl in 
tin; Hlii'riU'H liamlH a^^aiiiHt tlitt ilifiiiilant. It waH licM that thr attailinn-nt 
waM not <:ntitl(!il to |irttvail ovi:r tin: fXiKMitioii {Wliijlr i\ TnniliriU, 17 U. ('. 
i'. v. 'ISM). Tliirt cast! iloiM not intirfirc with tli<; ileriHioii in ^'</«/'»r^r v. M'nliie, 
( !(> I J. ( !. ( !. I*. I<)7), whiii'i! tin; ^ooiIh wi:i-i; Htill tin; |ii it|ii;rty of tliti ilrlitor wlicii 
till! two writH wiTc f{ivt;ii to tliu Hlmriir liy tin; cxri'iition ami th<! attarhiiiint 
urcditoiH ; wliili! in Wh;il<- v. Tnailwi// tin; i>ropi:rty wan intin-ly ^oiu! ami 
foriiH'il no part of tli«! e^tati! of tho ihlttor win n tin; attaihimnt is.aiiiil. It 
woiilil tln;ii;fon; hi rin <'li;ar that a piiniliaHcr at Hhirill'H Halt; is amply proti-ctctl, 
hfcaiisc it iH tin; iiriirorih of tin; Hah;, iiiiIohh artiially paiii ovt;r to thu uxucution 
(;r(;ilitor, that will go to tlu' uHtat«:, uml not th«; gooiU wliuii hiiIiI. 

A Htay of pro(;r<;iliiigH given to tlio HlMirilV on n writ of <!X<:(;iitioii in hin liantlH 
l>y till' attorm:y for tin: I'xcitiition nriiilitor in Mjiiivalint to a withdrawal of tli(! 
writ ; and an i;xi:i:iitioii laiinot In; Haid to hi; in tin; Hintritr'H hands to ln' ixcciitcd 
until tin; Htay is n'inovi;il and tin; nhrrill' iii'ili;i'i;il to proii'id ; and it wan held 
umliir till! Act of IH05 tiiat if an aHHigiiincnt wax iiiadi; within thirty dayH from 
till! niiiioval of till! Htay of priK:i!i;dingH, tin; judgimnt i;ri;ditor hmt any privilege 
hy tin; op(;ration of tin; l.'itli mcc, (;xi;i:pt tho uontM of Hiiit wliii;h might In: i)rov<:d 
as a privileged claim before the UHsigiiee (Jfr t'nir niul, Jiuint, 2 L. .1. IJ. (J., N.»S. 
21 (J). 

Hy thin Huction, even after Hui/uro and Hale, thi; aei/ing creditor cannot retain 
the aiiioiint of liiH execution l>y [irefiiieiiee, if the money in the HlieriirH hands 
has not heen paid over hy him. There is a ditference lietween thin Heirtion and 
Bee. T)'.) of the Act of I8<>!), fioni which it in taken, in the time at which the 
execution creditors right ceaHcH ; under that Hcetion tin! creditor was entitled 
to receive the proceeds of his (;xeciition until the estate iniM phu-ril in conipiil- 
Hoiy liquidation, here it is up to the time wli(;n proceedings to place the cHtato 
in liipiidation have heen adopted and are Htill {lending. Although tin; lien of 
the judgment creditor for his judgment deht and interest has heen taken away, 
liiH lien or privil(;ge for the costs of the jinlgiinnt still (;xiHtH (In. ri llaijilen, 
'2y Q. H. U. (!. overruling In rr IIohh, .'{ 1'. U. W.H). At all cvoatH, if the estato 
or cilectH of the insolvent have lM!en seized or levied upon, a judgment creditor 
under whose Ji. fa. the Bherill' has Hcizcd, hut not sold, the debtor's goods, ia a 
creditor holding a security within the meaning of hoc. 12, Knglihli Act of I80U 
(Slain- v. Pindir, 40 L. T. R.;p. Kxch. 14«); I.. It. 7 Kx. Uf); 41 L. T. Kx. G«J; 
20 VV. It. 4-tl ; '2(5 L. T., N.S. 4S'2). Until the sheriir has Hoized uinl<;r a writ 
of Ji. fa., an execution creditor IioMh no security ui)'»n the property of the 
debtor within the meaning of bcc. 12 of the English bankruptcy .Act 1869. 
When, therefore, warrants of execution had been delivered to the bailill' of a 
couuty court, but no aeizuru ha«l boon made before the prusu.Mtatiuu of a petition 



' i 



m f 



14 ii 



112 



INHOI.VKNT ACT OF 1875. 



for lii|iii(Inlioii dy the dulttor, ht'lil, that thu tttlu of thu trustee uiulor the liqiii- 
(Ution munt pn-vail over thnt <»f the uxucutinn ereditor (/iV /«»/•<»' Willitinii, In 
r* Dai'i'M, '20 \V. K. I3<»; 7 F^. II. (*hy. ai4; 41 I. .1. H/uik. SS; '2i\ L. T., N.8. 
303 ; «ee hJj imrh- lUh , r> Hull, M) L. J. Hep. Itaiik. 70). 

Tliu iicoeHHity for n chaii;<(! was Hhowti in a Htrikiii^ iiiaiiiiur by thu duuiHion in 
Thorn' v. Turrnn'-r {\{\ V. ('.('. 1*. H.-i), aHirniu-l <mi a|.|.<iil (IH IJ. ( '. C. I'. 'JO). 
In that uaNu uurt^un ilulttom uxecutod a deed of aNNi^nnient for payment of 
ureditiirM, hut not in ncuordanuu with the Act of 1N(U. Thornu HuhHt'<|ii"iitly to 
thin deed inHued a writ of uxeeiition a^ainHt tiie ihlitorH, and then iiihiNelf took 

rroueedin^H in initoivency aj^ain.it their eittate for thi; ^<-n<Tal henelit of ('redit<>iri. 
t waH liehl that the a^Hit^nnicnt wa>t an act of hankniptey and vuid, and thun- 
fnro thu execution phiintilF, althou{/h aUo petitioner in inmilvenoy, could enforce 
his execution a^jainHt thu dulitorn 01 the cHtate to the noHtponenient of the rest of 
the creditors. Thia deeiHion wan foMowud in Hokc v. limwn {\{\ IJ. ( '. (-'. I'. 177). 

Tho lien of a vendor for unpaid purch iru money attaches to the land in the 
hands of the lutHi^^neu in insolvency of the purchaser ( Van Wai/wr v. Fhnlliiy, 
14 <Jrant, r»3; Miti'm-d v. Jfif/onI, [) \ an. 87; flrant v. MUIm, •_> N'es. & IV 
30(i; C/iopinnn \ fanmr, 1 Vurn. 'J(57) 

Where a writ of /?. fn. issued on judgment on a Hjteoially endiu'sed writ hef«»r»' 
the cxiiiration of eight dayH from thu hwt ilay for appcaranuo, it was iield to he 
im-gnlar; ami the defendant having made a voluntary aMHignnient live dayH 
after the i.i.4uu of the writ, the assi>;nee succeeded in setting attidu thu execution 
with eostH {/{('iiilnll v. Jioirmnn, 1 L. J. U. (!. N.S. ir»8). TIuh (.xsu wa>* 
decided under the vVct of 1804 ; and does not touch the ([uustion wliether after 
a Mdlt' untler such an irregular execution, even since the passagi; of tlie atnending 
Act of I8(»r>, sec. 13, or after payment over of the proceeds since this Act, the 
bdsignoe coulil secure for the general creditors the proceeds of thu sole, as against 
the execution creditor. 

Where a final judgment in default of apiKjarance to a spociidly endorsed writ 
was entered on *J3ril .fanuary, and cxecutu)n issued on .'tOth of same month, and 
a writ of attachment under the Insolvent Act issued on 3rd February, fin appli- 
cati(<n on li8th March, at thu instance of the official assignee, to set aside the 
judgment as irregular, for a <lefect in thu affidavit of service, was held to be too 
late {JJiiiin v. Dunn, 1 iu J. U. C. N.H. 231); sue Ilinry v. Dutujlan, 1 L. J. 
U. C. N.S. 108; Vale v. Tolterton, 2 Ch. Ch. li. 49). 

But in a case decided in Nova Scotia referred to in 9 C. L. .F. 74, Neal ct al. 
V. Smith, where an attachment was issued under the absconding debtor's Act, 
and the defendant's projHjrty was seized and sold by thu sheriff twenty days 
before the defendant's estiite was i)ut in com[)ulsory li({uidation in insolvency, 
Sir William Young held that the plaintiff was entitled to tho proceeds of the 
Bale in preference to the assignee in insolvency. 



i ' 



Astocredi- 84. If «'v Creditor holds security from the Insolvent, or 
security for froni his estate, or if there be more than one Insolvent 
' liable as partners, and tho creditor hold security from, or 
the liability of, one of them as security for a debt of the 
firm, he shall specify the nature and amount of such security 
or liability in his claim, and shall ^'herein on his oath put 
a specified value thereon ; and the Assignee, under the 
authority of the creditors, may either consent to the right 
to rank for such liability, or to the retention of the property 



p 




., 


m[ 






r. 


^iif' 


m- 


1;. 



DIVIDENDS. 113 

or offocU conHtitutin;^ sucli Hocurity or on whicli it nttndiPS, 
l»y tin) crolitor at hucIi hjkhmHimI viiluo, or lie may n'^nirn 
from such crcilitor an assi^inmi'iit of such liahilitv, or an 
aHHij^nmciit ami delivery of K'lch security, jirojierty, or 
eff«»c'tM, at an a<lvanc(» of ten per centum upon such specilietl 
value, to lie |)iii)l liy him out of th(* (•state so soon as Iih Ikia 
realized HU(!h security, in which ho shull he hound to tho 
oxort'iHo of ordinary dili^jenco ; and in either of such casos 
the <li(t'ei'ence hetvveon the value at which the liahility or 
security is retained or assumeil and tho amount of the claim 
of Hucli creilitor, shall he the amount for which he shall 
rank and vote as afon-siiid ; and if a creditor holds a claim .s«^«iri»y not 

iMiitiintl 

l»ased u|M>n ne^^otiahle ItistrumentM upon which the Insol- hikI Iiih-iI- 
vent is oidy indirectly or seconilarily liahle, aiid which is m uhiariiy 

•Ml' 1 1 • I 1 1 I • 1 1 lial'li'. 

not mature or (txijifioie, such creditor sliall he ^'onsidenMl to 

h(dd security within the meaning of this section, and shall 

put a value on the liahility of the party priniarily liahlo 

theiHjon as heii^ his security fm- the payment thensuf ; but 

after the maturity of such liahility and its non-payment ho 

shall he entitled to amend and revalue 'us claim. 

If a creditor prove a ilolit, in ignorance that he haH a lien in re«j)cct of it, ho 
will not lu! iill<i\v»il, upon tllHoovuring his mistake, to set up his lien nml nfduee 
liix jiniof iicconlingly (AV jHirte Siiiitl'n^ii'unil, Foiii)!. l{cp. *20). \Vh«re a mort- 
gagor hecoinoH bankrupt the mortgagee in not oMigod to tile a claim, hut is at 
lilierty, instead, to exercifi<; the power of sale eontained in his mortgage. In 
the Court of Chaueery an injunetion to restrain such a sale was refuHed (f/or- 
don V. lio^H, I L. .1. IJ. {). N.S. 10(5 ; s. c. II (Irant, l-Mi. If a creditor of a 
bankrupt holds a security rui p:irt of the ha'ikrupt'H estate, he is not entitled to 
prove his debt under the conunission without giving up or realizing hist security, 
nut if he has a Bccurity on the estate of a third person, that principh? docs not 
apply. He is in that ease entitletl to prove for the whole amount of his debt, 
and also to realize the security, pro\"ided he does not altogether receive more 
tlian twenty HhillingH in the jjouud (/" re I'hninnvr, 1 Thill. i\k\ ; Miilfaml Bant- 
hvf Cow/inny v. C/u hn-A, 7 L. K. E(i. 179; 4 I,. K. Ch. App. :W8). A 
creditor may prove a^.tinst the estate of a tirm, the makers of a promissorj' 
note who have become insolvent, and also tile a claim in ( 'haneery in an a<lmin- 
iatration of the estate of an endorser who is one of the jtartners (In rr linker, 
3 Ch. Ch. 499). A creditor of an insolvent partnership, who is alwi a creditor 
of the insolvent estate of one of the niendicrs of the i>artnership, may prove 
against both estates, but must elect which be will Imj paid out of before he 
takes a divi<lend (Ex pnrti' liriiflri/, 2 Cox *J18 ; see iiifrn, section 88 and note ; 
In re Choffey, .SO Q. B. IJ. C. 04 ; Ex jmrte. Moult, 2 D. & Ch. 419 ; Ex jnirte 
I/infon. ii. .'550 ; Goldiimid v. Cazinoiy, 7 H. L. 785 ; Unffe and limik of 
Au •rcUu^.a v. Flower, L. 11. 1 V. C. 27 ; In rf Dixlye ,(• litidd, 8 C. L J. 51), 
It was doubted whether, by force of section 50 of the Act of 1869 (section 125 
infra), a mortgagee was not obliged to iile a claim instead of realizing by power 
of sale (Archibald v. Haldan, 30 Q. B. U. C. 30), but it seems that he may 
realize his security and afterwards prove for the deficiency, accoanting for what 

8 




114 



INSOLVENT ACT OF 1876. 



Illili 




11^ 



lio li/iH n;i;<!iv(j(l, or for any hms tlic cHtatu may liav(! nuHtaincd l»y his ai:ti<»ii 
(In rr, lliird, ',\\ Q. H. \] {). I KJ) ; ami it Ih a riuimtimi of fa<;t whether tin; 
crtiilitor Iuih olctjtoil not to rank for \m flcl»t, ami tlic inoro fact of having ntadc 
a Halt! of part of tin; Hi^curity is not Miidicicnt cviflciici; of cKiction. A mortgagee 
on a low vahiation of the oHtato eloctoii to give up liiH mortgage, and wan 
admitted to prove under a comminHion of l)ankrupt<;y again.st the mortgagor. 
The eHtiit<! heing afterwarila Hold l»y tlio aHHigne<'M for a larger Hum, tlu; mort- 

{;ageo nnmctnteil a pistition, praying to ho at liTterty to withdraw Imh jtroof and 
lave. tnc henelit of hJH mortgage. Lord Kldon Maid it waH dangerouH to allow a 
mortgagee to retract hit* election after having had the; henefit of Imh proof, and 
diHmihHod the petition ( '<Jx parln JJowwn, 18 Vch. ii'JO). 

K. k ('o. oonnigned grxtdH to H. for Hale, dniW hillH on him wliieh they 
endorned to ii., to whom they handed the hillH of lading oh a Hecurity, and 
wrote to H., anking him to accept the hilh iix againnt the goo<lH. II. gav(! an 
acceptance: " Aficeptrd, payahh; at tlie T. Hank on the deliv y up of the liillH 
of lading." At the time when tin; hills heeamc payahle the allairn of 11, were 
in eourne of li(|uidation hy ari'ang*anent. It wan held that the conditional 
acceptance made the Hecurity of 15. virtually a H(!curity <»n the prop(!rty of li., 
and that it. could not prove againnt the oHtate of II. without dedu<;ting the 
value of the Hecurity (Ex jmrtv lintt, liirr lluiix', \,. II. (> (!h. Apjt. H.'W ; Kx 
fMirle li](f!f/di(in (!(nitiii<rchil tunl, Trdiluitj (Jninftani/, In v Kr/n<m, L. K. 4 (!h. 
App. I2r> ; III ir lilakfhi (Jnlimnri' (Jimijiuiii/, L. \i. H K([. 214). 

When the endorner of a not*; hecame iiiHolvent, and compounded with his 
«!redit<trH, including tlus hohhir of naid uftte, who renerved IiIh rccourHc againnt 
the other partien to the note?, and the maker alHo hecatru; innolvetit, th<! endorner 
waM not allowed to rank on the note againnt the eHtat(. of the maker, Hr) long an 
the note had not heen paid in full (///. re Hchhi'Uc, L. (/'. IT) Jur. Vli\). When a 
claimant in innolvency has received <'ih ludder of a nott; a comjioHition on the 
amount of hin (daim from the endorw^r, in conHideration iA which he has 
releaHe<l the endormir, renerving hin njcourHc againnt the other j)artien to the 
nut<!, what<;ver the (daimant han received from the endorner munt he deducted 
from his claim againnt the nuiker'n entate (In rr HcHmUc, uln Hupra). 




' '1, 


[ -' 


'l ll 



i 



If tlw! Hecu- 
rity JH on 
rwtlty or 



H!i» IJiil if tlu; H(;curity coriHlstH of a inoi-tt^ago uj)oii r(!al 
CHtat<!, or ui)ori KliipH or Kliipjdii);^, tfio property inort^'a;^(5(l 
Hhall only l>o aHHigiKjd and (loiivci'Cid to tho cTC'ditor, KuWjoct 
to all pnivious nior't;5a;^(!S, hypotlujcH and li(ms tlicnioii, 
holding rank and priority boforc his claim, and upon luH 
aHsnniinf.5 and binding liiniHolf to pay all such [)n!viouH 
iMortgagoH, hyjtotiiijcs, and licins, and upon his Hocuring Huch 
proviouH cliargoH upon the (iroporty inortgagod, in thn same 
nuuirHir and to tlio Hamo extent as tlio Hanio wore pi'cviotiHly 
Hocurod tlicsroon ; and tli(;r(!aft(;r the lioldorH of hucU pre- 
vious tnortgagciK, hyjiotluics and lieuH, Hliall have no further 
recourHo or claim upon the (!Htat(5 of the luHolvent; and if 
there Ix; mortgages, hyi)othe(!H or lieriH tliereon, nuhHociuent 
to those of such creditt)r, lie shall only obtain the proj)erty 
by consent of the subsecpnsntly secured creditors; or upon 
their filing their claims specifying their security thereon aw 



DIVIDENDS. 



116 



of no viiliu!, or tipon his payin;^ tlunn tho vulno by tliom 
plttc(!(l tli(!n!()ii ; or upon IiIh giving' Hocurity to tho Assigiico 
that tho estate Khali not ho troiililod l)y roaHoii thcrocjf. 

80. Upon a secunul claim hcin^ filed, with a valuation of riocftcdinuN 
tho Hoeurity, it wliall he. the duty of th(i AHsigruio to procure or aMccurwl 
tho authority of the InspectorH or of tho creditorw at tlujir '-""'• 
first inc<^ting thcireafter, to consont to tho retention (ff tho 
Hocurity hy the creditor, or to nMpairo from hitn an an.sign- 
rncnt and d(!liv(iry thereof; and if any m(!eting of Insjujctoiii 
or of creditors tak«!H juaco without decidiitg upon the courso 
to ho adopted in respect of such scicurity, tl»e Assignee shall 
act in tho [iremiscs acconling to his discretion and without 
delay. 

8T- The ainoiint duo to a credifor upon each soparato lumk of 
item of his claim at tlio time of the t^xocution of a deed of UMinHotn 
assignment, or of the issue of a writ of attachment, as tho Iji.im."'^ ' 
case may be, and which shall remain duo at the time of 
proving such claim, shall form part of tho amotint for which 
ho shall rank upon tho estate of tlio Insolvcsnt until such 
item of claim he paid in full, except in cases of deduction of 
tho i)rocoeds or of tho value of his S(}curity, as hereinbefore 
provided ; but no claim or part of a claim shall bo permitted 
to be ranked upon more than onco, whether tho claim so to 
rank bo made l)y the Haine person or by difftirent persons ; 
and tho Assignee may at any time reijuiro from any creditor 
a Bup])lementary oath declai-ing what amount, if any, such '^a'-*' '^^ 
creditor has reccsived in payment of any item of tlus d(jbt to iion nav- 
upon which his claim is founded, subsoqtiont to tho making cUim. 
of Bucli claim, together with tlie particulars of sucli pay- 
ment ; and if any creditor refuses to produce or make such 
oath before the Assignee within a reasonable time after ho 
hiis been required so to do, he shall not bo collocated in tho 
dividend sheet. .. , -^' 

88. If the Insolvent owes debts both individually and an inHoivpnt 
a member of a co-partnership, or as a member of two dif- '^a'purtner. 
ferent co-i)artnerships, tho claims against him shall rank 
first upon tho estate by which tho debts they represent 
were contracted, and shall only rank ujion the other after 
all the creditors of that other have been paid in full. 



116 



INSOLVENT ACT OF 1875. 



llliiil 
ill 



When a firm, or when two or more partners of a firm, are jointly placed in 
insolvency, all the joint property of the hankrui)ts, as well as all the separate 
property of each of them, vests in the assignee (Graham v. Mulcanter, 4 Bing. 
llfi). One of two partners, a few clays before a writ of attachment against 
both, under the Insolvent Act of 18G4, had issued, assigned his estate for the 
benefit of his creditors ; and it was held that this assignment was void as against 
the joint assignees ( Wilson v. Steueumn, 12 Grant, 239). 

Where each of the members of a firm is separately adjudged l)ankrui)t, the 
assignees of them all cannot recover in f»ne action debts due to the firm, an<l also 
debts due to the partners sejjaratcly. The assignees of each partner must sue 
alone for the recovery of delits due to him only {Hancock v. Haywood, 3 
T. R. 433). 

The doctrine of double proof only applies when both estates are being admin- 
istered in bankrujjtcy (In re Baker, 3 C. Ch. 502; Ex parte Thornton, 3 De G, 
& J. 454 ; Ex jxirte Bandenman, Mont. & Ch. 573 ; Ex parte Slanharoufjh, 5 
Madd. 89). But when both estates are in insolvency, creditors holding the 
security of the firm and of the individual members as endorsers, may rank on 
the partnership estate without deduction in respect of the value of the endorse- 
ment ; they must elect to prove upon one estate or the other, they cannot rank 
on both (In re Chaff etj, 30 Q. B. U. C 73). But this is not now the law in 
England (see Bankruptcy Act of 1869, sec. 37, Doria. 716, R. & H. 82). 

In a firm of two partners, where one partner dies, and the other becomes 
bankrupt, the assignees of the latter are entitled to institute a suit in behalf 
of themselves and all the other creditors of the deceased, against his executors, 
for the administration of his estate and payment of what may be due there- 
from to his surviving partner (Addis v. Kniyht, 2 W. R. 119). In such cases the 
assignees do not become co-partners with the solvent partner. Like purchasers 
from the sheriff under an execution against one partner, the assignees and the 
solvent partner become tenants in common of the real and personal property 
belonging to the firm (Fox v. Hanhury, 2 Cowp. 445). 

The assignees of a bankrupt partner are entitled to an account not only of the 
assets as they stood at the time of the dissolution of the firm, but also of the 
profits subsequently made by the employment of the bankrupt's capital in the 
partnership business (Craivuhai/ v. Collins, 15 Ves. 218 ; Smith v. DeSilva, Cowp. 
469). Unless there be some misccmduct on the part of the solvent partners, or 
unless the solvent partners are dead or abroad, the assignees have no right to 
interfere in the management or winding up of the partnership business. If they 
do interfere a court of equity will restrain them by injunction at the suit of the 
solvent partners (Allan v. Kilbrc, 4 Madd. 464). Kor can the assignees compel 
the solvent partner to deliver up the books of the partnership (Ex parte Finch 
1 D. & C. 274). However, in the case of solicitors this rule has been questioned,' 
because the clients have a voice in the control of the papers (Davidson v. Napier, 
1 Sim. 297). The solvent partners can always be summoned before the Court 
and be compelled to produce the partnership books and to answer questions rela- 
tive to the dealings of the firm (Ex parte Trueman, 1 D. & C. 464 ; Ex parte 
Levett, 1 G. & J. 185. And see Ex parte Maude, In re Braginton, 2 L. R. 
Chy. App. 550 ; Ex parte Came, In re Whitford, 3 L. R. Chy. App. 463. ) 



Allowance 
to Insolvent, 
how made. 



89. The creditors, or the same proportion of them that 
may grant a discharge to the debtor under this Act, may- 
allot to the Insolvent, by way of allowance, any sum of 
money or any propei-ty they may think proper; and the 
allowance so made shall be inserted in the dividend sheet, 
and shall be subject to contestation like any other item of 



DIVIDENDS. 



117 



coilocation therein, but only on the groiind of fraud or 
<lecpit in })rocurinrj it, or of tlie absence of consent by a 
sufficient proportion of the creditors. 

The proportion of creditors required to grant a discharge to a debtor tinder 
this Act is tlie majority in numher of those of the creditors of the insolvent 
who are respectively creditors for sums of one hundred dollars and upwards, 
and who represent at least three-fourths in vahie of all the claims of one hun- 
dretl dollars and upwards which have been proved (see above, sec. 52). 



liH 



As to costrt 
ill suitH 
iiK^iiiist In- 
snlvt'iit after 
(liii! notice 
iindcT tins 
Act. 



Privilege of 
rlcrlis, *c, 
for wages. 



00. No costs incurred in suits against tlie Insolvent 
after due notice has been given according to the provisions 
of this Act, of an assignment, or of the issue of a writ of 
attachment in licjuidatiou, shall rank upon the estate of the 
Insolvent ; but all the taxable costs incurred in proceedings 
agaftist him tip to that time shall be added to the demand 
for the recovery of which such proceedings were instituted ; 
and shall rank upon the estate as if they formed part of the 
original debt, except as herein otherwise provided. 

01, Clerks and other persons in the employ of the Insol- 
vent in and about his business or trade shall be collocated 
in the dividend sheet by special privilege for any arrears of 
salary or wages due and unj)aid to them at the time of the 
execution of a deed of assignment, or of the issue of a writ 
of attachment under this Act, not exceeding three months 
of such arrears, and also for sucli salary or wages for a 
period not exceeding two months of the unexpired portion 
of the then current year of service, dtiring which period 
they shall be bound to perform, tinder the direction of the 
Assignee, any work or duty connected with the affairs of the 
Insolvent, and which the Insolvent himself might have 
directed thein to perform under their respective engage- 
ments ; and for any other claim they shall rank as ordinary 
creditors. 

A similar privilege in the li^nglish Acts has been held not to T)e limited to 
yearly servants only, though it must be a continued and not a mere weekly 
hiring (Ex parte Collyer, 2 Mon. & A. 30). The misconduct of the clerk may 
deprive him of the benefit of this provision (Ex parte Hampson, 2 M. D. & D. 
462). Where the clerk had left the service several months before the bank- 
ruptcy, but the leaving was not voluntary, he was held to be within the section 
iis clerk to the bankrupt (Ex parte Sanders, 2 Mon. & A. 684). 

C. assigned under the Insolvent Act of 1869, on the 14th November, 1872, 
being indebted at the time to N. in the sum of $945. Part of this sum was for 
wages due the claimant as a shipwright in the employ of the insolvent at daily 



They may be 
eiiipioyed. 



118 



INSOLVENT ACT OP 1875. 



wages. The whole was settled with the insolvent on the 28th October, IS??^ 
by four promissory nrN;8, none of which were due at the date of assignment. 
Ihe last work done .y the claimant was on the 8th August, 1872, after which 
time he continued to board the insolvent's men up to the 24th October. The 
claimant swore that the sole reason he left his employer was because he would 

f • ^'u v!^' ^* ^*^ ^^^*^ *^*** ^" *^^ position in which the claimant placed 
himself, he could not be considered in the employ of the insolvent, and was not 
entitled to be preferred as a privileged creditor under sec. 67 of the Act of 1869 
(t/jc parte Napier, In re Case, Sup. Ct. Rep. N.B. Vol. 2, 300; see Doria, 663; 
hmith B Master and Servant, 171), 



Notice of 
dividend 
siieet and 
payment. 



OJJ. So soon as a dividend sheet is pi-ep.ired, notice 
thereof (Form O) shall be given by advertisement, and by- 
letter posted to each creditor, enclosing a copy of the divi- 
dend sheet noting the claims objected to, and after the 
expiry of eight days from the day of the last publication 
of such advertisement, all dividends which have not been 
objected to within that period shall be paid. 

Unless due notice is given of the preparation of a dividend sheet it is not 
binding upon creditors (lie Lariviere, 11 JL C. Jur. 265). 



Contesta- 
tion of 
claims by 
Aasiguee 
under In- 
apector'd in 
structiou. 



03. It shall be the duty of the Inspectors to examine 
with the Assignee, the claims made against the estate, and 
also each dividend sheet before the expiration of the delay 
within which the same may be objected to, and to instruct 
the Assignee as to which claims or collocations shouM be 
contested by and on behalf of the estate, whereupon con- 
testation shall be entered and made in the name of the 
Assignee or of the Inspectors, or of some individual credi- 
tors consenting thereto, and shall be tried and determined by 
the Court or Judge; and the cost;} of such contestation, 
unless recovered from the adverse party, shall be paid out 
of the funds belonging to the estate. 
The provision as to payment of costs out of the estate in this section, is new. 



Claims not 
filed how 
dealt with. 



04, If it appears to the Assignee, on his examination of 
the books of the Insolvent, or otherwise, that the Insolvent 
has creditors who have not taken the proceedings requisite 
to entitle them to be collocated, it shall be his duty ta 
reserve dividends for such creditor according to the nature 
of their claims, and to notify them of such reserve, which 
notification may be by letter through the post, addressed to 
such creditors' residences as nearly as the same can be ascer- 



DIVIDENDS. 



119 



•ii 



tained by the Assignee ; and if such creditors do not file 
their chiiius and ajjply for sucli dividends previous to tlie 
dechiration of the last dividend of the estate, the dividends 
reserved for tliera sliall form part of such hist dividend. 

This section should not be construed to mean that if tlie creditor does not 
dcinantl his divitlend aa well as file his claim, he will lie deprived of it ; for 
that would place this class of creditors in a tlifterent i)osition from all others. 
But the filing of the claim should he held to be an apjdication for a dividend 
under this clause. And if the creditor does not afterwards claim the amount 
awarded him, the rule as to unclaimed dividends (sec. 98, below) must be 
followed. 



05t If any claim be objected to at any time, or if any divi- Jj"y|,1|*°^g 
dend be objected to v^^ithin the said period of eight days, or ot>Je'';ted to, 
if any dispute arises between the creditors of the Insolvent, miuuJ- 
or between him and any creditor, as to the amount of the 
claim of any creditor, or as to the ranking or ]>rivilege of 
the claim of any creditor upon such dividend sheet, the 
objection shall be filed in writing by or before the Assignee, 
who shall make a record thereof, and the grounds of objection 
shall be distinctly stated in such writing, and the party 
objecting shall also file at the same time the evidence of 
previous service of a copy thereof on the claimant ; and the 
claimant shall have three days thereafter to answer the 
same, wliich time may, however, be enlarged by the Judge, 
with a like delay to the contestant to reply ; and upon the 
completion of an issue upon such objection, the Assignee 
shall transmit to the Clerk of the Court the dividend sheet, dedsloa *° 
or a copy thereof, with all the papers and documents relating ^^^^' 
to such objection or contestation, and any party to it may 
fix a day, of which two days' notice sliall be given to the 
adverse party, for proceeding to take evidence thereon 
before the Judge, and shall thereafter proceed thereon fi-om 
day to day until the evidence shall have been closed, the 
case heard, and the judgment rendered — which judgment 
shall be final unless appealed from in the manner hereinafter 
provided J the proceedings on the said objection or contestation 
shall form pai't of the records of the Court, and the judg- 
ment shall be made executoiy as to any condemnation for judgment 
costs in the same manner as an ordinary judgment of the 
Court. 



Jt-i 





120 



INSOLVKNT ACT OF 1875. 



Tliis section has iii.adc a iiumt material alteration as to the procciluio in con- 
testation of claims and <livi(leii(ls, removing such contestations from the assif^nte 
to tlie Judge in the lirst instance, \vh(t lormerly could only •>e called to determine 
these (luestion.H when they came up l>y way of ajtjieal from the assignee {In re 
Cleijliorn, '2 U. C. L. J. N.S. i.'W); and as tliere was also a further ai)i)eal fnmi 
the County Court .Ju<lge, a party contesting or defending a claim was freiiuently 
suhjectcd to protractecl and iiarassing litigation. 

In resisting a claim Itled against an insolvent's estate on checks drawn by the 
insolvent and unpaid for want of funds, on the ground of want of i»resentuK'nt 
and notice, it is necessary to allege in tlie ol>jectioiis to the claim and to prove 
that by nason of want of notice, the in.solvent or his estati? had sustained hiss 
or injury {/n re Ou/fon lirotlicr.-i. The Hank of S<-w lintnnictrk v. Tht Inspectors, 
Sup. C. Hep. N.li. Vol. 2, [\W^). 



Crt'ilitors or 
Iiisiicctnrs 
ifiay (iiili'i- 
'•iiiiti'stulion 
of (■liiitiis, 
Ao. 



OG. The creditors, and in their default the Inspector.s. 
may by resolution rtuthorizo and direct tlio costs of the con- 
testation of any claim or of any dividend to be paid out of 
tlie estate, and may make such order either before, jiending. 
or after any such contestation ; tliey may also, with the 
sanction of the Judge, authorize the payment out of the 
estate of any costs incurred for the general intei-est of the 
estate, wlietlier such costs were incurred by the Assignee, 
the Inspectors, or any individual creditor. 

This section is an extension of the power given as to costs in section 73 of the 
Act of I8()!), which referred only to costs incurred in the contestation of claims 
or dividends. A solicitor wlio is thenceforth to conduct the proceedings under 
the bankruptcy may, with the consent of the inspectors or creditors, be 
appointed by the assignee as soon as lie is chosen (Ex parte Tomlinunn, 2 Rose, 
66). Under the Act of 1SG4, which ilid not coutaii; the clause in section 4.'} of 
this Act, requiring the consent of the inspectors or creditors to the appointment 
of a solicitor, it was held that an assignee had the sole right to select his own 
professional adviser, and that he could not be made to change him exce^jt upon 
reasonable ground, and then only upon the penalty of being himself removed 
from his oflice of assignee in case of refusal (Be Land), 17 C. P. U. C. 173). 



f f there he 
priijieity of 
the Insol- 
vent under 
seizure !it 
time of 
;is.si<;iinient 
or attiieli- 
iiient. 



Procee<linss. 



i^Tf. If, at the time of the issue of a writ of attachment, 
or the execution of a deed of assignment, any immovable 
property or real estate of the Insolvent ' . under seizure, or 
in process of sjile, under any writ of execution or otlier 
order of any competent Court, such sale shall be proceeded 
with by the officer chai'ged with the same, unless stayed by 
order of the Judge upon application by the Assignee, upon 
special cause shown and after notice to the plaintiff, reserv- 
ing to the party prosecuting the sale his privileged claim on 
the proceeds of any subsequent sale, for such costs as he 
would have been entitled to out of the proceeds of the sale 



mvinRNDs. 



121 



of sucli propoi'ty, Jf made undor such writ or order ; but if 
such sale be proceeded witli, the monies levied thercfroia 
shall be roturiuul into the Court on whoso order tlie sale has 
been made, to be distribut(^d and paid over to the creditors 
who slijill have any privilege, mortgage or hypothci-aiy 
claims tliej-oon, according to the rank and j)riority of such 
claims ; and the balance of such moniys, after the payment 
of such claims, shall be ordered to be paid to the Assignee 
to 1)0 distribut(!d with the other assets of the estate. 

Sec. 74 of the lute Act, from which this section is taken, required the sheriff 
to pay the prococils of sale to the assignee for <listrihution ; now, liowever, lie 
is to make his return to the Court umler autliority of which he acts, who are 
to hand over to the assignee the surplus remaining after satisfying privileged 
elainis. 

M., under a f.fa. at his own suit against D., which was the first in the 
sheritt's hands, purchased certain lauds in Septcniher, 1807. l->. had in Ajml 
previous made a voluntary assignment under the Insolvent Act of 1804, to an 
official assignee, Avho claimed the j)roceeds of the sale under a section of the 
amending Act similar to tliis. M. claimed a conveyance from the sheriff, 
crediting the purchase money on his judgment, 'ihe court, under these cir- 
cumstances, discharged with costs an ai>plication Ity M. for a mandanuis to com- 
pel the sheriff to cf>nvey, to which the assignee was no party (/« re MoJ'alt and 
the S/ierlf of the Connti/ of York, 27 Q. B. U. C. 52). 

A plea to the declaration on a promissory note, on equitable grounds, in bar 
to the further maintenance of the action, averring the pendency of proceedings 
commenced by plaintiff against defendant under the Insolvent Act of 1804, for 
the same cause of action subse({uently to the declaration in the cause, was held 
a bad plea on den\urrer {Baldwin v. Ptlerman, 16 C. P. U. C 310). 



1)8. All dividends remaining unclaimed at the time of Unciainird 

'^ . dividends, 

the discharge of the Assijjnee shall be left in the bank how dealt 

. . . with, 

where they are deposited, for three years, and if still un- 
claimed, shall then be paid over by such bank with interest 
accrued thereon, to the Government of Canada, and if 
afterwards duly claime<l, shall be paid ovei- to the persons 
entitled thereto, with interest at the i-ate of four per centum 
per annum from the time of the .eception thereof by the 
Government. 

09, If any balance remains of the estate of the Insol- Balance of 

estate (if 

vent, .or of the proceeds thereof, after the payment in full any) to be 
of all debts due by the Insolvent, such balance shall be insolvent. 
paid over to the Insolvent, upon his petition to tliat effect 
duly notified to the creditors by advertisement aiid granted 
by the Judge. 



y 



122 



INSOLVENT ACT OP 1876. 



Where the estate of the bankrupt i8 HufHcicnt to pay twenty Bhillings in the 
ix»un<l, an<l a Hurplun still rciiifiinH, iaturust hIiouM he nllnwud on all ilehtH 
proved Iw-'foru the assignee, where the (U'l)t hy exi»ro8a c(>iitra<;t or :,tatiitory 
t'nactnient hoars interest, or where a contract to pay it is to he in)pli(\<l, })eforo 
the surplus is handed over to the bankrupt (Jte LanijHtaffe, 2 (jrant, 1U5). 



J 












■: 




j 




f': 




f, 




:' 




■ 


' 


' 


' 






i \ 


1- 


i 













Xotii-»' 
M-n>l!iig dc- 



jH-n 
Jay, 



Niitiic of 
iiiootings, 
ic, how 
ijivon. 



('ases iiii- 

I'rovided 

for. 



PROCEDURE GENERALLY. 

100. Whenever a meetin<]f of ensditors cannot be held, 
or an application made, until the expiration of a d<day 
allov.'od by this Act, notice of sucli meeting or application 
may be given pending such delay. 

101. Notices of meetings of creditors shall be given by 
publication thereof for at least two weeks in the Official 
Gazette of the Province in which they are to take j)lace, 
and by such other notice as the Judge or Inspectors may 
direct : — and in every case of a meeting of creditors the 
Assignee shall address notices thereof to the creditors and 
to all the representatives within the Dominion of foreign 
creditors, and shall mail the same at least ten days before 
the day on which the meeting is to take place, the postage 
being pre})aid by such Assignee; in other cases not provided 
for, the Assignee shall advertise as directed by the Inspectors 
or the Judffe. 



The meaning of the words " Official Oaze.tte" is defined by sec. 2 h, supra. 



Howques- 10^. All questions discussed at meetings of creditora 

tions shall ini i-iii i •• • i- 

1m! deeided shall be decuied by the majority in number and in value, 
of the creditors having a right to vote under section two, 
present or represented at such meeting, and rejiresenting also 
the majority in value of such creditors, unless herein other- 
wise specially provided ; but if the majority in number do 
not agree with the majority in value, the views of each 
section of the creditors shall be embodied in resolutions, 
and such resolutions, with a statemeut of the vote taken 
thereon, shall be referred to the Judge who shall decide 
between them. 

See sec. 2 h., as to creditors who have a right to vote. 

In a case under the Act of 186-1, where there was a disagreement between the 
majority in number and the majority in value, and the motion to adjourn was 
opix)sed by the majority in value, it was held that neither party could legally 
oppose the adjournment if insisted upon by the other, because by doing so either 



PROCEDUriE GENERALLY, 



123 



Sarty would have the power to prevent an ailjudication between them l)y the 
udgu, will) in to be the referee on divi.siouH or diU'erenccs arising (//»" Lainoe, 17 
U. C. C. P. 173 ; and 8oe Jle Lainhe, 13 Graiit, 3U1). 

iiy,l. If tho tii-Ht nujctiiig of creditors which takes place What mat- 
after the ox|)iry of the juiriod of throo weekH from the nrst vot<<i upon, 
advertisement calling such mooting l>o calh-'d for the order- mc'ting of 
ing of the atiaira of the estate generally, anil it be so stated 
in the notices calling such meeting, all the matters and 
tilings respecting which the creditors may vote, resolve or 
order, or which they may regulate under this Act (except 
when otherwise specially providcnl), may be voted, resolved 
or ordered upon, and may 1x5 regulated at such meeting, 
without having been specijilly mentioned in the notices 
calling such meeting, due regard being had, however, to the 
proportions of creditors required by this Act for any such 
vote, resolution, order or regulation. 

The matters which usually may be decided upon, on that occasion, are the 
following : — 

1. The appointment of the assignee. Sec. 29. 

2. The security to be given by the as.signee. Sec. 29. 

3. The directing the assigiaee as to the disposal of the estate. Sec. 36. 

4. The appointment of inspectors. Sec. 35. 

5. The examination of the insolvent and reception of a statement of the 
position of the estate. Sees. 17 & 23. 

6. As to the employment of a counsel or attorney by the assignee. Sec. 43. 

7. Upon any oflfer of composition which may be made by the insolvent. 
Sec. 49. 

8. The continuance or cessation of the lease of premises occupied by the 
insolvent, or deciding that the matter be left to the discretion of the inspectors. 
Sec. 71. 

9. To determine when subsequent meetings shall be held. Sec. 34. 

10. As to necessity for special examination of the insolvent under section 25. 



104. The claims of creditors furnished to the Assignee Form and 
in the Form P, attested under oath and accompanied by the claims, 
vouchers on which they are based, or when vouchei-s cannot 
be produced, accompanied by such affidavit or other evidence 
as in the opinion of the Assignee shall justify the absence of 
such vouchers, shall be considered as proved unless contested, 
in which case the claims shall be established by legal evidence 
on the p 'nts raised. 

The requiring the production of vouchers, or reasons for their non-production, 
was not required by sec. 122 of the Act of 1869. 



(H 



124 



IN80LVKNT ACT OF 1876. 



u 



i': 



? \ti 



S It 

9] t] 



Ml 



rortaiii fTo<litorH aro >»y Rpfcial ••nactinfiit ('ntitlctl ho provt; their dolits a>,'ainHt 
tho fstiiti! of 11 iKiiiUnipt. Hy 10 »t II \'i<!., c. 10 (Con. SUtrt. Ciirmila, <•. '»!►), 
Hii ttwiiL-r of noo<la that liavo hocti pliMljfetl hy nil an;eut eiitruHtotl with the 
posHoHsioii of thcin \H iiiititlotl to rt'ilLciii tho Hamc upon (urtain ti-rniH. Sec, 'Jl 
of tho ( 'onsoliilati'il Act provides for tho riglits of tin; i ivilitor in casu of tiio 
hankniptcy of Hiich a^unt as follows : — 

" In casi! of the hankriiptcy of any Huoh nj,'ent, and in case tin; owni;r of the 
goods rodci'i'is the sainc, \u) shall, in nsputt of tin; sinn paid hy him on account 
of the njjcnt for sui^h hmIi inptioii, ho held to have jiaiil tho sanio for tho iiso (»f 
Buch aj,'t'nt hoforo his haidvriiptiy. or in (;a.so tho goods have nothoon so ro konicd 
tho ownor shall ]n- dooniod a onilitor of tho agent for tho valuo of tln^ goods so 
jiledgod, at thtj timo of tho jdodgo, and may in either ease prove for, or Hot ott' 
the sum so jtaid, or tho valuo of such goods, as tho oaso may ho."' 

A wife may not prove against her hushand's estate for arrears of alimony i)ay- 
able to her nii<ler an order of tho ('(turt of Chanoory (A'r ;>(t/7c' A'/r'', 10 L. T. 
Rep. N.S. lO.'i). 

One of several makers of a joint ami several promissitry note in favour of a 

third party having paid the (lol)t soourod by tho note, may not prove imou the 

note against some of tho oo-makers under their hankruptcy. His ronuMly is by 

contribution from each of his oo-oontraotora pru poi'lionc {Ex parte tSV/tcwA', AV 

Viiur, 10 L. T. Uei.. N.S. 44). 

Upon a ereditor coming in to prove against an estate upon a judgment debt, 
the c<msiilcration therefor may l)o iiuiuired into on tho ground of fraud (Jic 
Suwcrhi/, (■» \j. T. Kop. N.S. oSI). A creditor cannot prove for a debt tiiat is 
due under a parol ooiitraot whore tho Statute of Krauds rotiuiros tho oontraot to 
be in writing (AV T/ui Pcndwiinim'd Fuel Coinpaiii/, Ex parte Acraiaaii, 8 Jur. 
N.S. 70(5). 

Wliere tho executor under the will of a creditor of a bankrupt firm declines 
to make pntof against the estate of tho bankrupts, on the ground that ho is 
ignorant of the oirouinstanceH, under which tho debt accrued, tho court will 
alh>w proof by tho residuary legatees under the will, subject to a direction for 
payment of tho dividend to tlio executor (Ex parte Caldwell, lie ,'^lrahan, Paul 
and Bate.'*, 13 W. R. 952). 



Affidavits, 
before whom 
sworn. 



105. Any atfiduvit required in proceedings in Insolvency 
may be made by the party interested, his agent or otlier 
})ai'ty having a personal knowledge of the inatter.s therein 
stated, and may be sworn in Canada before the Assignee 
or before any Official Assignee, Judge, Notary Public, Com- 
missioner for taking affidavits, or Justice of the Peace, 
and out of Canada before any Judge of a Court of Record, 
any Commissioner for taking affidavits appointed by any 
Canadian Court, any Notary Public, the Chief Municipal 
Officer for any town or city, or any British Consul or Vice- 
Consul, or before any })erson authorised by any statute of 
the Dominion or of any Province thereof, to take atHdavits 
to be used in any Coui-t of Justice in any pai't of the 
Dominion. 

The only addition made to the liat of persons empowered to take affidavits is 
that of official assignees. 



nOOBDURB C KNKUAhLY. 



125 



106. A creditor holilinL' a mortmiffo, hypotlioir, llcii, pri- Riirr.n<i.T of 

. , w'ciirlty by 

vil();'o, or colhvUM'al sccuritv on th(» o.stat(! of a utM)tor, or on ijiiiiior, 
tlui ('ht.ito of a thml party tor wliom kucIi (l(5l)tor ih only iiiuioof. 
seeoiidarily liahlc, may rclcas*! or dtilivor up suoli Hocurity to 
the AsHifjfiieo, oi- he hIuiII l>y his atlidavit for th<» is.suo of a 
writ of attaclnneiit, or hy an attidavit Hl(>d with th(i As.signoo 
at any titno before the declaration of a linal dividcuid, 8ot a 
value iipon Huch sc'curity ; and from tho time ho wliall have 
HO released or tlelivered uj) such socurity, or shall have fur- 
nishc'l such aflidavit, the (hibt to which such se<;«irity 
applied shall bo considered as an unsecured debt of tho 
estate, or as being scscured only to the extent of tho value 
sot upon such security, and tho creditor may rank as, and 
exercise* all th<> ri;,dits of an ordinary creditor, for the 
amount of his claini, or to tho extent only of any balance 
th(!reof above and beyond the value set upon such security, 
as the case may be. 

This section is new. But soc sections 84, 85, and 86 nupra. 



lOT. The law of set-off, as administered by the Courts Stt-off, how 
whether of law or e(iuity, shall ap[»ly to all claims in 
Insolvency, and also to all suits instituted by an Assignee 
for the recovery of debts due to the Insolvent, in the same 
manner and to tho same extent as if the Insolvent were 
plaintiff or defendant, as the case may be, except in so far 
as any claim for set-off sluill be affected by tho provisions 
of this Act respecting frauds or fraudulent preferences. 

The rif'lit of set-ofl is a purely statutory provision, and it is the better opinion 
that it tliil not apply to mutual dobts due respectively to aiul by a bankrupt 
estate until this clause was introduced into the insolvent law. Formerly, if a 
creditor of a bankrupt were also indebted to the insolvent, the assignee might 
sue him iov and recover the whole amount of the latter debt, and ho might prove 
upon the bankrupt's estate for the amount due to him. This was a source of great 
injustice to creditors when there hapi)ened to be mutual dealings between them 
and the insolvent. This was remedied in England by several enactments ; but 
by the statute which introduced English laws into Upper Canada "those respect- 
ing bankrupts" are excepted, and we were left without any provisions as to set-off 
in insolvency matters until this clause was enacted in the Act of 18G9. 

The debt due from the bankrupt to the creditor must be such as might be 
proved under the bankruptcy, otherwise it cannot be set-off ; and the mutual 
credits must be given before tlie bankruptcy, so as to make the balance claimed 
due at the time of the bankruptcy (Hewlxon v. Guthrie, 3 Scott. 298). If a 
banker receives and pays money on account of a bankrupt, after notice of his 
bankruptcy, he cannot set off the payments against the receipts, as against the 
assignee [Vernon v. Hankey, 2 T. R. 113 j Uirdwood v. Raphael, 5 Price, 604). 



126 



INSOLVENT ACT OF 187». 



ni 



'V\ 



! . 



M 



11 :: 

I'll 



Dtibts to he •ct-off, howovor, muHt Itotli \hs dim in tho njimp Hj{tit ; yon onnnot 
■et off a dfitt <luo to an uxucutor a^jtiiiHt n tldtt <Iu<t froiti hitii in liiii own ri^ht 
{liUho/i V. Church, 'A Atk. WM). A Weht diu) hy tin intiolvf.it to a Hini jiuuiot !>« 
a sot-oir AgninHt Aprivntt; thiltt duo from (»no ot tlio purtncra ^o tlic inHolvont (A> 
;>ar<^ Swtmeit, 3 I). A. C. 32()). 

VVhon; nn ottNif^ni'i; Iihm rouaon to doiil»t tho fiiirncHS of a crmlitfir's sot-off, 
and Ikm the* o^ttioa of Huing either liy at^tion tx rinUnirtd, aH aMHiinipMit, duht 
Ac, or by action rx dfllrio, as trover, oasu, iVo., ho Hliould ailopt tliu liitttT ; 
for in atitionM >x dfHrtu thu defendant cannot Hct oil" any dcltt <lut« to liiin hy the 
hankrui.t ( »r/7/i;M V. Carinichnet, \ \)o\m. 101 ; Kiifw Flint, 8 Taunt. 'Jl). A 
bankrupt on thu eve of lankruptcy Hiild and delivered goods to one of hii 
creditorH for the purpoHO of givieig liiin a fraudulent preference, ami the 
aaaignecM afterwarda brought an action of iwAunipsit against iiini to recover the 
amount of the goodn ; it wa« held, that although tho iWHignecH might have dis- 
atlirmtul the contract of tho bankrupt, and have recovered the value of the 
({•hmIh in trover, in which caHC there could have been no set-olf, yet, an they 
had Hue<l in asHumpsit, and thereby conlirmed tho contract, the creditor was 
entitled to 86t-ofl' hiti debt (Smith v. Hodmm, 4 T. II. '21 1). 

If, by nuHtake, a credito • pay the assignooH tlio whole amount of his debt, 
without detlucting bin Hct-oll', lie may aftcrwanla recover it from the a-suigiiecH an 
moDoy had and received to his uho [tiiif v. iJirkasoii, 1 T. 11. 28r); hoo Doria, 077). 



8crv' 'e of 
pa|H;r8 
under this 
Act. 



108. Exc«!pt when otherwise provided by tliis Act, one 
clear juridical day's notice of any petition, motion, order or 
rule, shall ho Hufficient if tho party notified resides within 
fifteen miles of the place where tho proc»?eding is to he 
taken, and one extra day shall be sulHcient allowance for 
each additional fifteen miles of distance between the place 
of service and the place of proc ceding ; and service of such 
notice shall be made in such manner as is now jirescribed 
for similar services in the Province within which the service 
is made. 

Comtnis- 10«)- The Judge shidl have the same power and author- 

examination ity in respect of the issuing and dealing with commissions 
wi ueiises. ^^^ ^j^^ examination of witnesses, as are possessed by the 
ordinary Courts of Record in the Province in which the pro- 
ceedings are being cai'ried on. 

The issue of commissions for the examination of witnestaes in the Courts of 
Record in Ontario is principally regulated by chapter 32, Con. Stats. U. C. : — 
Sections 19, 20, and 21. 




Suhpoent J 
to witnesses. 



110< In. any proceeding or contestation in Insolvency, 

the Court or Judge, may order a writ of subpoena ad testi- 

Jicandum or of subpoena duces tecum to issue, commanding 

the attendance, as a witness, of any person within the limits 

of Canada. 



rROCBDUIll OENRRAM.Y. 



127 



111. All ruloH, writa of Mul»iMi'im, ortlera, ami warmntR, ^-ni-rof 
• ' , |irur«M, *r. 

iiHuud l»y any Court or Jud^o in any nuittwr or ppHUtMl- 

ing uiuli'i this Act, amy l)o validly Hcrved in iiny |»urt of 
Cunudii upon tlie party afU'otod or to Ui niYvcU'd tlit'it'hy ; 
and thn Horvico of tlu'in, or any of thcni, may Im; valitlly 
mado in mucIi manmu" as in now prcsorilx'd f«»r similar K»'r- 
vic«!H in the Provinco within which the service is made; and 
tho person charginl with such siu-vico shall m <o his retura 
thereof under oath, or, if a Slierill', or llailiff, in the Pro- 
vince of Quol)ec, may make such return uiuh'r hin oath of 
office. 

tVi, In caso any person so servtjd with u writ of sul)- DiHoi«<ii- 
pcena, or with an order to appear tor examination, tlojjs not ami |.n««;H«, 
appear according to tho oxigcnicy ot such writ or process, „ij|^. ' 
tho Court or tho Judge on whose order, or witliin tlu; limits 
of whoso territorial jurisdiction tho sanui is issued, may, 
upon proof made of tho service thereof and of such default, 
if the person served therewith has his domicile within the 
limits of the Province within which such writ or priwess 
issued, constrain such pei"son to appcuir and testify, ami 
punish him for non-appearance or for not testifying in the 
same manner as if such person had boon summoned as a 
witness before such Court or Judge, in an ordinary suit ; 
and if the person so served and making default h»is his 
domicile beyond the limits of tho Province within which 
such writ or process issued, such Court or Ju<lge may 
transmit a certificate of such default to any of Her Majesty's 
Superior Courts of Law or Equity in that part of Canada in 
which the person so sei'ved resides, and the Court to which 
such certiticate is sent shall thereupon proceed agiiinst and 
punish such person so iiaving made default, in like manner 
as it might have done if such person had neglected or re- 
fused to appear to a writ of subpoena or other similar pro- 
cess issued out of such last mentioned Court ; and such Proof of 
certificate of default, attested by the Court, Judge or 
Assignee before whom default was made, and copies of such 
writ or process, and of the return of service thereof, certified 
by the Clerk of the Court in wliich the order for transmis- 
sion is made, shall be primd facie proof of such writ or 
process, service, return, and of such default. 



- n 



1 28 INSOLVENT ACT OP 1875. 

i:x|)cna(!8 IIIJ, No such cortificatn of dofault slisill be so trans- 

lIlUHt llO , 1 11 • 1 1 *» 1 

t«iicit!ie.i to nntted, nor shall any pei'son he punisliod for neglect or 

tiioiiiii as 11 rcfiisiil to attend for examination in ohedieneo to any sub- 

jxiena or other snnuar process, unless it be made to ap])ear 

to the Court or Judge transmitting, and also to the Court 

receivin2: such certificate, that a reasonable and sufficient 

sum of money, according to the rate jjer diem and })er mile 

allowed to witnesses by the law and practice of the Sui)erior 

Courts of Law within the j urisdiction of which such person 

was found, to defray the expenses of coming and attending 

to give evidence, and of returning from giving evidence, 

had been tendered to such person at the time when the 

writ of subpcona, or other similar process, was served upon 

him. 

Ill Ontario the per diem allowance for witnesses, other than professional men, 
ia one dollar when they reside within three miles of the Court House, and over 
three miles one dollar and a quarter. Professional men called to give profes- 
sional evidence are allowed four dollars per diem. Actual travelling expenses 
of all witnesses are allowed, not to exceeil one shilling (twenty cents) per mile, 
one way. 



Forms under 
this Act. 



114. The forms aj^pended to this Act, or other forms in 
equi%',\'ent terms, shall be used in the proceedings for which 
such forms are provided ; and in every co ^testation of a 
claim, collocation, or dividend, or of an application for a 
discharge, or for confirming or annulling a discharge, the 
facts upon which the contesting party relies shall be set 
forth in detail, with particulars of time, place and circum- 
stance, and no evidence shall be received upon any fact not 
so set forth ; but in every petition, application, motion, 
contestation, or other pleading under this Act, the parties 
may state the facts iipon which they rely, in plain and con- 
cise language, to the interpi-etation of which the rules of 
construction applicable to such language in the ordinary 
transactions of life shall apply. 

Foreign d is- 115>. No plea or exception alleging or setting up any 
to bar debts discharge or certificate of discharge, granted under the 
ill Canada. Bankrupt or Insolvent Law of any country whatsoever 
beyond the limits of the Dominion, shall be a valid defence 
or bar to any action instituted in any Court of competent 
jurisdiction in the Dominion, for the recovery of any debt 
or obligation contracted within such limits. 



PROCEDURE GENERALLY. 



129 



But in EllU V. Mc.Hcnry (L. R. 6 C. P. 228) it was hold that the English 
bankruptcy law was binding upon the colonies, and that an English compositioi 
deed containing a covenant not to sue might be pleaded to an action brought in 
a Canadian court upon a debt contracted in Canada, upon the principle that 
the legislature in England had a paramount jurisdiction over Canada. 



lift. The niles of procedure as to amendments of plead- 
ings, which may be in force at any place where any pro- 
ceedings under this Act are being carried on, shall apply to 
all proceedings under this Act; and any Court or Judge, or 
Assignee, before whom any such proceedings are being car- 
ried on, shall have full power and authority to apply the 
appropriate rules as to amendments to the proceedings so 
pending before him ; and no pleading or proceeding shall be 
void by reason of any irregularity or default which can or 
may be amended under the rules and practice of the Court. 

111. The death of the Insolvent, pending proceedings in 
liquidation, shall not affect such proceedings, or impede the 
winding up of his estate, and his heirs or other legal repre- 
sentatives may continue the proceedings on his behalf to the 
procuring of a discharge, or of the confirmation thereof, or 
of b'^th ; and the provisions of this Act shall apply to the 
heirs, administrators, or other legal representatives of any 
deceased person who, if living, would be subject to its provi- 
sions, but only in their capacity as such heirs, administra- 
tors, or representatives, without theii* being held to be liable 
for the debts of the deceased, to any greater extent than 
they would have been if this Act had not been passed. 

118. The costs of the proceedings in Insolvency up to 
and inclusive of the notice of the appointment of the As- 
.signee, shall be paid by privilege as a first charge \\\\o^ the 
assets of the Insolvent; the disbursements necessary for 
winding up the estate shall be the next charge on the pro- 
perty chargeable with any mortgage, hypothec or lien, and 
upon the unincumbered assets of the estate respectively in 
such proportions as may be justified by the nature of such 
disbursements and their relation to the property as being 
inciii lered or not as the case may be, and the remunera- 
tion of the Assignee and the costs of the judgment of con- 
firmation of the discharge of the Insolvent, except when 
9 



As to 

araendmentfl 
in prouijed- 
ingH under 
this Aut 



Provisitdi in 
cnse of death 
uf Insolvent. 



Representa- 
tives how 
far .iable. 



Costs on 
what pro- 
perty and in 
what order 
chargeable. 



\\ 



fTIp*, ' 







130 INSOLVENT ACT OF 1875. 

such confirmation is upon a deed of composition, or of the 
discharge if obtained direct from the Coui-t, and the costs 
of the discharge of the Assignee, }>eiiig first taxed by the 
proper taxing officer at the tariff rate, or if there be no 
tariff, at the same rate as is usual for uncontested proceed- 
ings of a simihir character, after notice to the Insj^ectors, or 
to at least three creditor, shall also be paid therefrom as 
As to assets the last privileged charge thereon. But no portion of the 
witii moit- assets or i)ropei'ty chargeable with any mortgage, hypothec, 
gages, c. ^^ jj^^ ^^^ ^^^^ claim not provable on the estate shall be 

liable for any other but their proportion of costs necessarily 
incurred in realising such assets and property, except what 
may remain after payment of such mortgage or lien. 

The last clause of this section ia new, and ia in accordance with the decision 
In re Stewart, 3 Ch. Ch. 95. 



Provisions 119. The Judge shall have the power upon special cause 
addressed to being shown before him under oath for so doing, to order 
by Post. any Postmaster at the place of residence or at the place of 
business of the Insolvent, to deliver letters addressed to Ivim 
at such Post Office to the Assignee, and to authorize the 
Assignee to open such letters in the presence of the Protho- 
notary or Clerk of the Court of which such Judge is a 
member and in the presence of the Insolvent or after notice 
given to him by letter through the post, if he be within the 
Province ; and if such letters be upon tlie business of the 
estate the Assignee shall retain them, giving commimication 
of them, however, to the Insolvent on request ; and if they 
be not on the business of the estate they shall be resealed, 
endorsed as having been opened by the Assignee and given 
to the Insolvent or returned to the Post Office ; and a mem- 
orandum in writing of the doings of the Assignee in respect 
of such letters, shall be made and signed by him and by the 
Prothonotary or Clerk, and deposited in the Court. 

This section is new to Canada, but since the Act of 1849, sec. 124, the English 
court has had power to order that all post letters directed to the bankrupt be 
delivered by the postmaster to the official assignee , It has been held that if 
the bankrupt abscond without surrendering, the court will order all his past 
letters addressed to his place of business to be intercepted and sent to the 
official assignee {Be Lawrence, 20 L. T. Rep. 16). 



PROCEDURE (JENERALLY, 



131 



1^0. All causes of disqualification applying to a Judge DiHquaiiti- 

... ., i-i-»' 1'11-A futioii of 

m civil matters in the several Provinces to which tins Act Jud«e. 
applies, shall be causes of disqualification and recusation 
under this Act, as regards the final hearing and determina- 
tion of any matter subject to appeal or revision under this 
Act, but such grounds of disqualification shall not apply to 
mere ministerial acts or incidental proceedings ; and such 
causes of disqualification shall be tried as provided for by 
the laws in force in the several Provinces where the pro- 
ceedings are pending. If a Judge be disqualified or iiicon- J^";* J^'"'*''" 
petent to act in any matter in Insolvency under tliis section, ""'^^i' » «^"*'*' 
the Judge competent to act in matters of Insolvency in a 
County or District adjoining that in which the proceedings 
arc pending (or in the case of a Judge of the Court of Pro- 
bate in Nova Scotia, the Judge of the said Court in an 
adjoining County), and who is not disqualified under this 
section shall be the Judge who shall have jurisdiction in 
such matter, in the place of the Judge so disqualified. • ' 

Tliis section contains substantially the same provisions as to the disquali- 
fication of judges, as section 137 of the Act of 18G9, amended by 34 Vic. c. 25, 
sec. 9, but the grounds of disqualification are not to apply to mere ministerial 
Acts ; the causes of disqualiiication are left to be defined by the rules prevailing 
in the several provinces. 



Prothono- 
tary to 
jireside (in 
Quebec:) ill 
aljKHiice of 
Judge. 



1^1. In the absence of the Judge from the chief place of 
any district in the Province of Quebec, the Prothonotary of 
the Court shall preside at the meetings of creditors called to 
take place before the Judge, and shall take minutes of the 
proceedings of the same, and shall in such cases as well as 
in all others, make any order whicii the Judge is empowered 
to make ; but the same shall not be delivered nor put into 
execution if any objection to it is tiled with the Protho- 
notary, the same day or the next after, and then the whole 
matter and all the papers and proceedings, produced and 
had at such meeting shall be referred to the Judge, who 
shall adjudicate upon the same, confirming the order made 
by the Prothonotary, or making such other as he may think 
best in the case. 

1?J3« In the Province of Quebec, rules of practice for Rules of 
regulating the due conduct of proceedings under this Act, tariti of fees 
before the Court or Judge, and tariffs of fees for the oflScers vince of 



Tf 



132 



Quebec, 
how to be 
inudc. 



, 



I 



And in the 
other Pro- 
vinces. 



IL 



INSOLVENT ACT OF 1S75. 

of tlie Courfc and for ilio Advocates and attorneys practising 
in relation to such proceedings, (or for any service performed 
or work done for which costs are allowed by this Act, but 
the amount whereof is not hereby fixed,) shall be made 
forth with after the passing of this Act, and when necessary, 
rej)ealed or amended, and shall be promulgated under or y)y 
the same authoritv and in the same manner as the rules of 
practice and tariff of fees of the Superioi* Coui't, and shall 
apply in the same manner, and have the siame effe'jt in res- 
pect of pi'oceedings under this Act as the rules of practice 
and tariff of fees of the Superior Court apply to and affect 
proceedings before that Court ; and bills of costs upon pro- 
ceedings under this Act may be taxed and proceeded upon 
in like manner as bills of costs may now be taxed and 
proceeded upon in the said Superior Court. 

1*^3. In the Province of Ontario the Judges of the 
Superior Courts of Common Law, and of the Court of Chan- 
cery, or any five of them, of whom the Chief Justice of the 
Province of Ontario, or the Chancellor, or the Chief Justice 
of the Common Pleas, shall be one, — in the Province of 
New Brunswick, the Judges of the Supreme Court of New 
Brunswick, or the majority of them, — in the Province of 
Nova Scotia, the Judges of the Supreme Court of Nova 
Scotia, or the majority of them, — in the Province of British 
Columbia, the Judges of the Supreme Court, or the majority 
of them, — in the Province of Prince Edward Island, the 
Judges of the Supreme Court, or the majority of them, — 
and in the Province of Manitoba, the Judges of the Court 
of Queen's Bench, or a majority of them, — shall forthwith 
make and frame and settle the forms, rules and regulations 
to be followed and observed in the said Provinces respec- 
tively in proceedings in insolvency under this Act, and 
shall fix and settle the costs, fees and charges which shall or 
may be had, taken or paid in all such cases by or to Attor- 
neys, Solicitors, Counsel and Officers of Courts whether for 
the Officer, or for the Crown as a fee for the fee fund or 
otherwise, and by or to Sheriffs, Assignees or other persons 
whom it may be necessary to provide for, or for any service 
performed or work done for which costs are allowed by this 
Act, but the amount whereof is not hereby fixed. 



PROCEDURE GENERALLY. 



133 



124. Until such rules of i)mctice and tariiF of fees have Pr<;scnt 
been made, as ronuirod by the two precedinjj sections, the to romaiu 

n . , n P r . • ""til altered 

rules of practice and tann ot fees of Insolvency, now m 
force in the said Provinces respectively, shall continue and 
remain in full force and effect. 

125. Every Assi^juee shall bo subject to the suinmary A'^Rii-'n'^'^ t.'> 

7 . . - . 1).' subject to 

jurisdiction of the Court or Judije in the same manner and Hummiiry 

. , jiiri.sdiftiiiii 

to the same extent as the ordinary officers of the 001111; are of Court, 
subject to its jurisdiction, and the performance of his duties 
may be compelled, and all remedies sought or demanded for 
enforcing any claim for a dol)t, privilege, mortgage, hypothec, 
lien or right of proj)erty u[)(>u, in or to any effects or pro-^ 
perty in the hands, possession or custody of an Assignee, 
may be obtained l>y an order of the Judge on summary 
petition in vacation, or of the Court on a rule in term, and 
not by any suit, attachment, opposition, seizure, or other 
proceeding of any kind whatever; and obedience by the oi>e<iience, 
Assignee to such order may be enforced by such Court or forced. 
Judge under the penalty of imprisonment, as for contempt 
of Court or disobedience thereto, or he may, if not an 
Official Assignee, be removed in the discretion of the Court 
or Judge. 

The assignee is not a public officer uuder c. 126, C. S. U. C, and is therefore 
not entitled to notice of an action (Arcliihahl v. Hahinn, 30 Q. B. U. C. 30 ; see 
also Mc Whirhr v. Corhe.tt, 4 U. C. C. P. 203; Davis v. Williams, 13 U. C. C. P. 365, 
neiili/ V. The Mayor of Lyme, 5 ^ing. 91, 107 ; In re Botsford, 22 C. P. U. C. 70). 
lu the case of Archihald v. Haldaiie cited above, the official assignee was sued 
by a mortgagee of chattel property in trespass for taking the goods and in trover, 
and this section (sec. 50 of late Act) was relie<l on by the defendant. A mort- 
gagee of chattels cannot maintain trespass against the assignee of the mortgagor 
who had been in possession of the goods, and had placed <'he assignee in posses- 
sion, but must seek redress under the Insolvent Act (Croialne v. Jarkson, 34 
U. C. Q. B. 583). But when the assignee had obtained possession of the goods 
of a stranger who had no privity with the Insolvent, replevin was successfidly 
maintained (Burke v. 3fc Whirter, 35 U. C. Q. B. 1 ; Jameson v. Kerr, 8 C. L. J., 
N.S. 241 ; see also Ex parte Banon, In re Edwards, L. R. 9 Ch. 673), and in 
such case an action is not prohiliited by C. S. U. 0., c. 29, sec. 2 {Barke v. 
Mc Whirter, iihi supra) ; nor are the provisions of this section unconstitutional 
as being an interference with property and civil rights by the Legislature of the 
Dominion (Crombie v. Jackson, ubi supra). The same interpretation has been 

S laced upon this, section in New Brunswick (Mr/Juire v. McLeod, 2 Sup. C. Rep., 
f.B. 323). This section does not take away landlord's right to distrain (See 
sec. 74 and note.) 

It hag been held in Nova Scotia tliat an application under sec. 50 of the Act 
of 1869, to have goods restored to the rightful owner, may be made against a 

fardian holding the property under writ of attachment (In re Pyke, 9 C. L. 
314), and that the petition and affidavits need not be entitled in any cause. 
(See sec. 28, supra and note.) 



id 



m 



Illi 



134 



INSOLVENT ACT OF 1875. 






i 



} 



tiailiTK in 



iieKiNtration 1^0. In the Proviiico of Quebec every trader havinj* a 
. oiitimtM (if m.uTiiige contnict witli his wife, by which he gives or 
proiiiisos to give or pay or cause to bo paid, any right, 
thing, or sum of uiout'y, shall enregister the same, if it 
be not already enregistered, within throe mouths fi-om tlie 
execution thereof; and every [)ersoii not a trader, but here- 
after becoming a trader, and having such a contract of mar- 
riiigo with his wife, shall cause such contract to be en- 
registered jis aforesaid (if it be not previously thereto en- 
registered) within thirty days from becoming such trader ; 
and in default of such registration the wife shall not bo per- 
mitted to avail herself of its provisions in any claim \ii)on 
the estate of such Insolvent for any advantage conferred 
upon or promised to her by its terms ; nor shall sho be 
deprived by reason of its provisions of any advantage or 
right upon the estate of hei- husband, to which in the ab- 
sence of nny such contract, she would have been entitled by 
law ; but this section shall be held to be only a continuance 
of the second sub-section of section twelve of the Insolvent 
Act of 18G4, and of section one hundred and forty of the 
Insolvent Act of 1809, and shall not relieve any pei-son 
from the conseqxience of any negligence in the observance 
of the provisions of the said sub-section or section. 



liiHulvent in 
n;aol or on 
the limits 
may apply 
to Jnrlgi' for 
discharge. 



Proceedings 
hereon. 



IMPRISONMENT FOR DP]BT. 
l^Y. Any debtor confined in gaol or on the limits, in 
any civil suit, who may have made the assignment provided 
for in this Act, or against whom process for liquidation 
under tiiis Act may have been issued, may at any time after 
the meeting of cieditors provided for in this Act, make ap- 
})lication to the Judge of the County or District in which 
his domicile may be, or in which the gaol may be in which 
he is confined, for his dischai-ge fix)m imprisonment or con- 
finement in such suit ; and thereupon such Judge may grant 
ail order in writing directing the Sheriff' or Gaoler to bring 
the debtor before him for examination at such time and 
place in such County or District as may be thought fit ; 
and the said Sheriff" or Gaoler shall duly obey such order, 
and shall not be liable to any action for escape in conse- 
quence thereof, or to any action for the escape of the said 



IMPRISONMENT FOR DEBT. 

debtor from his custody iinless the same shall have haj> 
peued through Ins default or nej^ligouce ; or if the dt^btor is 
confined in a County or District in which the Judge does 
not reside, the Judge, instead of ordering the debtor to be 
brought before him for examimition, may, if he sees tit, 
make an order authorising and directing the Otticial As- 
signee for the Coimty or District in which the debtor is 
confined, to take such examination, and it shall be the duty 
of the Official Assignee to take down or cause to be taken 
down such examination fully in writing and transmit the 
same under his hand forthwith to the Judge, and the Official 
Assignee shall be entitled to ten cents for each folio of one 
hundred words of such examination : 

(1.) In pui-suanco of such order the said confined debtor 
and any witnesses subpccnaed to attend and give evidence at 
such examination may be examined on oath at the time and 
place specified in such order before such Judge or Assignee, 
and if on such examination it appears to the satisfaction 
of the Judge that the said debtor has bo7id fide made an as- 
signment as required by this Act, and has not been guilty 
of any fraudulent disposal, concealment or retention of his 
estate or any pai-t thereof, or of his books and accounts, or 
any material portion thereof, or otherwise in any way con- 
travened the provisions of this Act, such Judge shall by his 
order in writing discharge the debtor from confinement or 
imprisonment ; and on production of the order to the Sheriff 
or Gaoler, the debtor shall be forthwith discharged with- 
out payment of any gaol fees : Provided always, that 
no such order shall be made in any case imless it be made 
to appear to the satisfaction of such Judge that at least 
seven days notice of the time and place of the said exami- 
nation had been previously given to the plaintiff in the suit 
in which the debtor was imprisoned, or to his attorney and 
to the Assignee for the time being : . . 

(2.) The minutes of the examination herein mentioned 
shall be filed in the office of the Clerk of the Court out of 
which the pi'ocess issues, and a copy thereof shall be delivex*ed 
to the Assignee, and if during the examination or before any 
order be made, the Official Assignee or the appointed As- 



135 



Examina- 
tion of insol- 
vent and 
witnesses. 



Judge may 
discharge 
iiini if the 
examination 
be satis- 
factory. 



Proviso. 



Minutes of 
examination 
'to be kept. 



Postpone- 
ment in cer- 
tain cases. 





T 



A? to any 

sulisequunt 
arre.ft. 



Proviso. 



136 INSOLVENT ACT OF 1875 

sigiieo, or the cnMlitor or any oiin of tlin crtMlitors at wIioho suit 
or Huits tljo (l('l)tor is iii custody iuak(^s affidavit that lie has 
reason to believe that the del)tor has not nmde a full dis- 
closuro in the niattei-H under exiinii tuition, the Ju(l;»e may 
gnint a postponement of sucli examination for a ])eriod of 
not less than seven days nor more than fourteen days, uidess 
the parties consent to an earlier day : 

(3.) After such examination, in case of any sul)secpient 
arrest in any civil suit as aforesaid, for causes of action aris- 
ing i)revious to the assignment or prcx;ess for licpiidation, 
tlie said debtor may, ponding the furthcir {)roceedings against 
liim under this Act, be forthwith discharged from confine- 
ment or imprisonment in such suit, on a})plication to any 
Judge and on producing such previous discharge : Provided 
tliat nothing in this section contained, shall interfere with 
the imprisonment of the said debtor, in pursuance of any 
of the provisions of this Act. 

The order of the Jmlge under this section may be appealed from under aec. 
128 {Hood V. Dodils, 19 (irant G-H). Tlie mere fact of absence of assets is not 
of itself a sutiicient reason for refusing the insolvent his discharge on the grouml 
that he has not boiiCt Jidv made an assignment (Ih'uL), but when an assignment 
was made witliout assets, in order to eva<le payment of an amount claimed in a 
suit then pending, and judgment was afterwards obtained, and a capias ad Matia- 
faciendum obtained thereon, and the defendant applied to have the writ set 
aside and the bail bond cancelled, setting up the assignment in insolvency .among 
other grounds, the summons was discharged with costs, the jndge intimating, 
though he rested his decision on another ground, that such an assigiuneiit Avas 
not a bonA Jule assignment ( Thomas v. Hall, G P. R. 174 ; citing E.r parte 
Morrison, In re Clunn, 10 Jur. N.8. 787). The failure on the part of the 
Insolvent to tile the declaration required by sec. 3 of the Insolvent Act of 18G9 
(See sec. 23 supra), when he was not asked to do so, and the statements which 
that section required him to verify had not been prepared, was not a sufficient 
reason for refusing to discharge him from imprisonment (Hood v. Dodds, 19 
( irant 645 ). An insolvent may be entitled to discharge from imprisonment 
under this section, though his conduct may not warrant a judge in granting 
him a tUscharge from hi- liabilities (Ibid.). The words " or otherwise in any 
way contravened the prd sions of this Act," do not include all the requirements 
and conditions necessary to be observed in order to procure the general discharge 
of the insolvent, but must be hmited to those provisions required to be complied 
with by the insolvent prior to his application, as the assisting in the preparation 
of statements, attending the meetings of creditors, submitting to examinations, 
&c. {Ibid). 

This section does not interfere with any right which the creditor may have 
to arrest the person of his debtor after assignment, but provides a mode of 
release from such arrest in a proper case. In Stevenson et al. v. McOwan, (11 
L. C. Jur. 46), defendant was arrested in the afternoon of the same day on which 
he had made an assignjpent, and application was made to quash the capias on 
the ground that that remedy did not exist concurrently with the recourse against 
the estate provided by the Insolvent Act of 1864, but the appUcation was refused. 



APPLAU 



137 



Anil ill the I'rovince of New KruiiHwick, a (l»l»tor mado a voluntnry issipimont 
uixliT tlie Act of 1801); certiiiu creditorH, who were jifterwanU the iilaiiititli, 
atteiiileil tlie meeting of the creditors, proved their clniuiH, voted f«)r the appoint- 
merit of an assignee, and took part in the examination of the insolvent ; after- 
wards the sanie creditors brought actions to recover the same debts which they 
had proved before the assignee in the iiisolveni^y proceedings, and issued writs 
«»f CiipUiH ml r<'{i/>oivl<nilunt and took the insolvent into cust<Mly ; defendant 
applied to the court in wliich the actions were pending to set aside the writs 
and to discharge him out of custody, and it was urged on his behalf that the 
section of that Act (sec. l-if)) only applied to cases where the debtor was 
imprisoned previous to bankruptcy, and that the creditors having elected to 
take the benefit of the proceedings under the Insolvent Act and proved their 
claims, could not afterwards procccfl at law and take possession of the defen- 
dant's body, riaintifl's contended ihat the actions wore properly foumled, and 
that defenilant's only remedy was to ap[»ly to the .Judge of the County Court 
for discharge, as provided l)y the Act. Ritchie, C. .)., held that there was 
nothing in the Insolvent Act to take away the right of a creditor to sue his 
debtor, who had made an assignment of his property under the Act ; ami 
when ample provision was m.ade for the protection of the ilebtor's jwirson from 
imprisonment when he had acted fairly, and conformed to the provisiiins of 
the Act, he shoukl resort to the remedy therein jirovided when lie Iia«l l)een 
arrested after jtroceedings taken in insolvency, and that the Court ought not 
to interfere (Jliifan ct at. v. Jones, 2 S. C. Rep. N. B. 290). And when arrest 
under citj/ias took place before assignment, and application to set it aside was 
made after the assignment, (Jalt, J., held that the jiroper remedy for the 
prisoner was under the insolvent Act, when the writ had been regularly issued, 
the debtor having voluntarily submitted himself to the provisions of the Act {Hill 
V. Muore, January, 1875, in the Court of Commim Pleas of <.)ntario, unreiM)rted). 
In New lirunswick it was held, Lx parte Bejedti (2 Sup. C. Rep. N. B. 2<)0) that 
a delttor who had assigned under the Insolvent Act of 18Gi> could not, if in 
custody, obtain an order for sujiport under the Insolvent Confined Debtor's Act, 
but should apply for his discharge under this section. 



APPEAL. 

138, In the Province of Quebec all decisions by a Judge Anvaifrom 
in Cliambei-s in matters of Insolvency shall be considered as tin- Judge m 
judguients of the Supei-ior Court, and any final order or (Quebec 
judgment rendered by such Judge or Court may be inscribed 
for revision, or may be appealed from by the parties ag- 
grieved in the same cjises and in the same manner as they 
might inscribe for re\asion or appeal from a final judgment 
of the Superior Court in ordinary cases under the laws in 
force when such decision shall be rendered. If any of the jn other 
parties to any contestation, matter or thing upon which a P™^'"*<=*"' 
Judge has made any final order or judgment are dissatisfied 
with such order or judgment, they may in the Province of 
Oixtario appeal therefrom to either of the Superior Courts 
of Common Law or to the Court of Chancery, or to any one 
of tho Jvidges of the said Courts ; in the Province of New 
Brunswick to the Supreme Court of New Brunswick, or to 



I 



f^-ipV 





Ii« 



!C? 



■ *Tr»- 



138 



INSOLVRNT ACT OK 1875. 



any one of tlio JudgoH of tho Hiiid Court ; in tlin Proviiic*} 
of Nova Scotia to tho Suprotno (/ourt of Nova Scotia, or to 
any one of tho Ju(l;,'(!s of tli(» said Court ; in tho Provincn of 
British Cohinihia to the Huprnrno Court of that Province, 
or to any Jud^^e of tho said (Jourt ; in tho Province of Prince 
Ed Will d Island to tiuf Hupronio Court of Judicature, or to 
any Judi-o of the said Court ; in the Provincij of Manitoba 
to the Court of Qutufu's Bench, or to any Judj,'e of th(; said 
Court ; but any appeal to a singh) J ud<,'o in the Provinces 
of Ontario, N(nv Brunswick, Nova Scotia, British Columbia, 
Prince Edward Island, or Manitoba, may, in his discretion, 
be referred on a sptscial case to bo settled to the full Court, 
and on such terms in the meantiiuo as he may think neces- 
ATPi'di to 1)0 sary and just. No such aiiijoal or proceeding: in revision 
within Light sluiU be entertained unless tho appellant or party inscribing 
for revision shall have, within eight days from the rendering 
of such final order or judgment, adopted proceedings on tlie 
said apj)eal or revision, or unless he shall within the said 
delay have made a deposit or given suHicicnt sureties liofore 
a Judge that he will duly prosecute the said ap})eal or pro- 
ceedings in revision, and pay such damages and costs as 
If api)i!iiant may be awarded to the respondent. If the party appellant 
proceed. doos not })roceed with his appeal, or in review, as the case 
may be, according to the law or the rules of practice, the 
Court, on application of the ros})ondent, may order the 
record to be returned to the officer entitled to the custody 
thei'eof, and condemn the appellant to pay the respondent 
the costs by him incurred. 

The time for taking proceedings in appeal is extended from five days to eight. 

It is not necessary that the petition in api^eal should be signed by the party 
or his attorney. The service of notices of setting down for argument of the 
appeal is sufficient notice. The petition should be addressed to the court and 
not to the Chief Justice only. The neglect of the a.s8ignee to file the papers on 
or before the day of presenting the petition is no reason for rejecting the appeal, 
though it may be a reason for enlarging the hearing and proceeding against 
the assignee for his neglect or contempt. Points not taken in the court 
below are not open to parties before the Appellate Court. The proper mode of 
raising technical objections to the proceedings in cases of this kind is to move a 
rule to set the proceedings aside, instead of urging the objections on the aigu- 
ment of the merits (Re Parr, 17 C. P. U. C. 621). 

The sureties under this clause cannot be the solicitors for the appellants ; the 
rule in the other courts is to be followed (Re Owens, 12 Grant, 564 ; and see 
Panton v. Lahertouche, 1 Ph. 265; Meyers v. Hutchimon, 2 U. C. Prac. 380). 



FRAUDS AND FRAUDUl.KNT riUa-nUENCEM. 



i3y 



Tho projmr time to take oltjoctiuii to tho Hufticioncy of the surotioB is lu'foru the 

ju«l^'o of till! liiMiilvtint Court, hy uuiilogy to procoudiii^s in appualM from the 

County to tho Siij)erior ( 'oiuta (Con. StiitH. U. C., rli. IT), see, (57, and lit 
OwvuH, iihi xiipm ; neo llmtilw Ihxtd.t, IDdrant, OIH). 

Tlio length of mitico to ho f^ivcn of the application for tho allowaniu' of the 
appeal iH not sf)ecially providcMl for in tliJH pluco, and tho genornl proviMinns of 
8UC. I OH niuHt ri'^Milato it. Tiiero would hwau to hu a tlililoulty, liowmfr, in 
cftHo till! ptTHon H< rvcd with notice had no Holicitor, and nsidcd Honu; hundred 
miles from Toronto, wlieru the ap{)lication must be made. l''or, one clear day's 
notice must in any ease he given, and one extra «lay for every lifteen miles 
distance from the place where the jirocccfling is to he taken must he added, 
while only eight days aft(;r judgment reinlered are allowe<l to make tlie ajtpli- 
cation. ()n account of tliis diiliculty it has heen ileemod necessary to decide 
that according to the intention of the Act, if the service ia within the eight 
days, the api)lication may he for u day suhseciuent. 

\\ here the notitie was served in time, hut named a day for the application 
which did not give the time tho insolvent was entitled to, and was irregular in 
some otluir respects, the notice was held amendal)le in the discretion of the 
judge (AV Owmi, \2 Crant, 44(> ; see AV /hiriihoii, 4 I'. K. IM). The omission 
of the grounds of api)eal in the notice is not an irregularity (s. c. ). 

It is not necessary to set out in the petition of appeal, the evidence, docti* 
nients and materials used before the judge {Ifoott v. Dudda, IJ) (Jrant, (542). 
When the last day falls on a Sunday, the ai)pellant has all the rte.vt day to 
serve ids petition ([Ind). The C!ourtof Hankrui>tcy in England follows the rule 
of the Court of Chancery as laid down in Dtnuii v. llaucork (L. II. (5 Cli. App. 
138), and will not, as a matter of course, give the costs of an appeal to a suc- 
cessful api)ellant (Ex pttrtc Mathews, In re Chcni/, L. 11. 12 luj. 59(5 ; see (,'ann v. 
Ju/iiisoii, L. R. 6 C. 1*. 4(51). When the insolvent who has appealed from the 
decision of a county judge, refusing to set aside an attachment against him, 
dies pending the appeal, and no personal representative has been appointed, the 
appeal fails (Lnwrk v. McMahon, 8 0. L. J. 171). 

1/50, Pending the contestation of any claim or of a Reservation 
tliviuend sheet and of any api)eal or proceechng in i*evision oidixidend 
the A.ssignee shall reserve a dividend equal to the amount 
of the dividends claimed or contested. 



FRAUDS AND FRAUDULENT PREFERENCES. 
ISO. All gratuitous contracts or conveyances, or contracts Gnituitoun 
without consideration, or with a merely nominal coiisi(^'^r'i- withiii three 
tion, respecting either real or personal estate, made l^ a i'llsoivericy 
debtoi- afterwards becoming an Insolvent with or to any fraudulent. 
person whomsoever, whether such person be his creditor 
or not, within three months next preceding the date of a 
demand of an assignment or for the issue of a writ of , 

attachment under this Act, whenever such demand shall 
have been followed by an assignment or by the issue of 
such writ of attachment, or at any time afterwards, and 
all contracts by which creditors are injured, obstructed or 



llf^ 



i 



140 



INSOLVENT ACT OF 1878. 






m 



m 







dt'layod, mudo hy u dihtor uniihlo to moot his oii^^agcniontR, 
and afttTwimls lM«;(nniii|,' iiii IiiHolvrrit, witli a |)(>rHt)ii know- 
ing Huch inaltility or having pidhalih? raiiso for licluiving 
Biudi itialiility to oxist, or uftor Hueli inability is puhliu and 
not(U'ious, wlictlicr such porson no Ium cnMlitor or not, are 
pnvsurnod to hu nuulo with intont to defraud his croditors. 

The caso of S^nrfon v. Ontario Hank (13 Cr.int, 052, aiul If) Crniit, *2S3, in 
Apprnl) iiwt a <l(tul»t iiixm llic apjilioiitioii of miction H of tiu: Ait of IS(»4, in 
ciWc'H of convoyaiUHiH ii'spcctiiig real iHtatt-, ami alHo in caniH of dialiuns l»y the 
innolvrnt with Htrungurrt who ari; not crcilitorH. TliiH and tlio tliruo followinK 
chmHoa arc framed cxprcHsly to indndc duaUnga rcHprcting real ewtatc, and 
with pcrHonH not crcditorH of the insolvent. 

lu consiiU-rinu tlie nie.uiing and ellVct of tlieno clauses, it is in>j)ortant to keep 
in view tlicir ol>ject. I'he aim of the Insolvent Act here, in undoiil»ti dly to 
Htfcure to the crtiUtors of an insolvent estate an c<|ual (li«tiihiition of tlie as 'eta; 
and indeed it will 1m; found tliat most of the cases in iOn;,'l.uid, whi'jh settle 
what eonstitutea a fraudulent preference as against credittus, iiave Ix'en decided 
without the aid of any express declaration in tiie Bankruptcy Acts similar to 
thcHe sections, delining what should constitute a fraudulent prefereneo, and rest 
upon the itroad principle that f -h acta arc oi)poHcd to the spirit of tlie law. 
Aside from the insolvent law, *:. is no fraud for a dehtor to ])refer one creditor 
to the exclusion of the rest. Another point in reading English cases to ho 
home in mind is, that many of their cases wiiich are here cited as explaining 
our law Were decided upon the question as to whether certain acts of preference 
constituted acts of l)ankru])tcy, and the (juestion as to the result upon the 
restoration of the property to the hody of the creditors was not considered. 
Sec. 9'J of the English Bankruptcy Act of ISfi!) ia directeil solely to preferences 
r)f creditors, and does not extend to improper payments to strangers. 

All gratuitous c<mtracts or conveyances made within three months of a demand 
to assign, or the issuing of a writ of attachment, are presumed to be made wivh 
intent to defraud creditors. 

By sec. 80 of the Insolvent Act of 18()9, the period of three months was made 
to date backward from the date of assignment, or of the writ of attachment. 
By this section the period of three months ia to be reck(nied from the date of a 
demand to assign where such demand has been followed by asaignincnt or by 
writ of attachment, or from the date of the writ of attachment where there 
has been no previoua dcniand. 

All contracts by which creditors are injured, obstructed or delayed, 

Made by a debtor unable to meet bis engagements. 

And afterwards becoming iusolver.t, 

4. With a peraon knowing such inability, or having probable cause for 
belieNnng such inability to exist, or after such inability is public and notorious, 
are presumed to be made with intent to defraud creditors. 

It will be observed that the limitation of time extends only to the first clause 
of the section, and that to this latter branch there ia no limitation, except the 
four requisites above denoted. U]ton this section the ft)llowing cases may be 
consulted : A mortgage made within three months of insolvency was n2)held 
as to past ailvances secured by it, the mortgage having been given to obtain 
further advances, as well as to secure the amount already due, and neither 
insolvents nor mortgagees were then aware of the actual position of the mort- 
gagors {Royal C. Bank v. Kerr, 17 Gr. 47). In April, 1809, C. lent money to JS. 
on an express agreement that it was to be secured by mortgage ou certain pro- 



1. 
2. 

3. 



m-iv 



KHAUnS AND PRAUDULKNT PnKPRUFNPKS. 



141 



perty. On the 3i<l July, th« nuirtj^'n^o wm nivcn in imrmmnoi' of the nfjrcpmcnt. 
Tilt; niiii't>{ii;;iir Itucnnic inHolvcrit mi tliu 2nd of Auguut. Thu inortgngu was 
■UHUincil {Allitn v. Chirhnn, 17 (ir. r)70). 

In Caniphill v. Hitrrif (.11 (i. B. IJ.C. 271)), the loftrmtl Jiulj/c Hftid tho proHump- 
tioM ill nim;, Nt>o| thr Art of |.S»i*», from which thin motion in taken, wa.-* on«r jwrw*/ 
<ie jiin\ nixl whitiilil he n-iul iim if it <<iiu luihtl thiit all mih-Ii contractu arc to be 
docincil to he niailo with inttnt to di-fraud oreditorH. It waH held hy tlie I'rivy 
Council in '!%■ Ilnnk «/ Aiixtni/ii.'<ia v. //iirrtM (!.'> Moo. V. ('. C J»7), that 
•Ithoiigh tlic Hcction of thu Coloniul lu«idviiioy Ac' winch was then Itefore 
them, UM»d tlio wonJH, "and Invvin;^; the cllect of prcfcniiij^ any then existin;^ 
creditor to another," that the preferring Hpoken of niciuit a fraudulent pre- 
ferring, and was not intended to refer to any ease of preference not fraudulent. 
Thin cHHc waa referrtul to in the recent cast! of /'tti/nr v. Ilfiidrii (2l) Crant, 142), 
and its authority as interpreting tluHHeetion or m'c. I .S.'J »///w, (jucHtioneil. When 
a party made u vohintary Hcttlenient, and nine months afterward liccamc in»ol- 
vent, the hurd. a of proof was held to Ix; upon him to nhow hiu Holvency at the 
date of the Hottlemeiit (rVo.s«% V. Khcortlnj, L 11. 12, Va\. 1 58). 

131* A contrn.ct or convnyrtticn forconsidoration, rospoct- ^t'iy^",„. 
inj; (!ith(M' r(!!il or pciMonnl estiito, l»v whiidi crr(lit(»r.s aro tni'tJivoW- 
ii\jui('(l or ol)stru('t(>(l, injuh; by a (hd^tor iinal)le to ni(H!t his 
enj^a^'eiueuts with a perHou ignorant of Buch inability, 
wluithor Hucli porson be his cnjditor or not, and before such 
inability has become public and notorious, but witliin thirty 
days next before a demand of an assignment or the issue of 
a writ of attachment under this Act, or at any time after- 
wards, whenever such demand shall have been fellowed by 
an assignment or by the i.ssut; of such writ of attachment, 
is voidable, and may be set aside by any Court of com|>etent 
jurisdiction, upon such terms as to the protection of such 
person from actual loss or lialiility by reason of such con- 
tract, as the Court may order. 

On the 2l8t September, 18(56, one S. transferred certain cheese to K. by 
delivering him warehouse receipts therefor. 8. became insolvent on the 19th 
Oct(d)er, and on the following day K. became aware of it. On 22nd Octol)er 
K. executed a mortgage to the Bank of M(ratrcal on this cheese. It was held 
that the subsetpient msolvcncy of 8. did not atlect K's right resjjecting thi» 
property. This section did not apply, as there was no evidence of obstructing 
o; injuring creditors, but the contrary, the property having been sold at its full 
value. But even if the case fell within this clause, the contract would be void- 
able only, under the order of a competent triVmnal, and no such order had yet 
been made, and would only be made upon such protective terms to the person 
from actual loss or liability as the Court might direct { The Dank of Montreal v. 
McWhirter, 1/ C. P. U. C. 500). 



w 



133. All contracts, or conveyances made and acts done Contract* 
by a debtor, resp ..ig eitlier real or pei-sonal estate, with intent to 
intent fraudulently ia impede, obstruct or delay his creditors creditoTB to 
in their remedies against liim, or with intent to defraud his 



w 



I :>iy 



142 1N80LVKNT ACT OF 1876. 

croditors, or Jiriy of tlumi, and so malo, douo and int(Mided 
with thc! knowN'd^o of tho [)orson coutn-ctintj or actiii<^ with 
tho dobtor, wli(!th(M' siicli (xm'soii ho his cniditor or not, and 
wJiich hav(! tho olfoct of iinpoding, o'';itructinj[^, or d(!laying 
tho cTfMlitors of thoir nsuKjdio.s, or of injuring thorn or any 
of thorn, aro pi'ohilntod and aro null and void, notwith- 
Ktanding that such contracts, convoyancos or acts, be in 
consideration or in contoni[>lation of mai-riago. 

An assignment by a tnider of all hia property, as security for an advance 
of money wliich he afterwards applies in payment of pre-existing debts, is 
not necessarily fraudulent within the Act. In order to make such an assign- 
ment fraudulent, the lender must be aware that the borrower's object was to 
defeat or delay his creditors. Such <an assignment cannot be an act of Itank- 
ruptey unless it is also void as being fraudulent (In re. t'olnncrr, L. 11. 1 ( !hy. 
128; ami ace Mercer v. I'ctcrwn, L. 11. 2 Ex. 304 afKrmed, b. Jl. 3 Ex., 
ch. 105). 

On a bill hy a bankrupt, who had compounded with his creditors for eight 
shillings in the jxmnd, and where bankru|)tcy had been aiuiulled, the court set 
aside with costs, a secret bargain whereby the bankrupt agreed to pay one 
creditor in full, in consideration of his heeoming surety for payment of the com- 
positi(ux ( Wood V. Barker, L. 11. 1 Eq. 131) ; following Jackinan v. MUchell, 13 
Vcs. 581). 

A mortgagor in embarrassed circumstances, in May, 18G4, conveyed his equity 
of redemption in the mortgaged property, under pressure, to the mortgagee for 
a sum consitlerably less than its value, and in June following ho was on his own 
petition adjudicated a bankrupt. On a bill tiled by thc assignee the deed was 
set aside {Ford v. Olden, L. li. 3 Ec^. 4G1). 

Questions will be likely to arise as to property given to a man, determinable 
in the event of hia bankruj)tcy. A settlement of property to a man until he 
becomes bankrupt, and then over to his wife and children, has been held to be 
void so far only as it related to the property of the husband, it being considered 
as a fraud upon the bankrupt laws ; but it would be valid as far as it related to 
the proi^erty of thc wife {Lester v. (larland, 5 .Sim. 205 ; Mon. 471). The con- 
struction of such provisions in wills or settlements depends entirely upon the 
exact uattirc and form of the tn'st or conditi<m annexed to thc l)equest. The 
intention to prevent the property passing to the donee's assignees has frcijuently 
been frustrated by the erroneous way in which the instrument attemj)ting to 
carry out such intention has Ijcen drawn. There seems to lie nothing to pre- 
vent the creation of such a limitation or condition to an estate, as that it snail 
cease and be forfeited, and the interest pass to the bankrupt's wife and children, 
in the event of bankruptcy ; but the object may be endangered l)y any attempt 
to combine with such limitation or condition a stipulation for maintenance, or 
any direct personal beneiit continuing for the bankrupt (see Tyrell v. Hope, 2 
Atk. 558 ; and Lester v. Garland, uhi supra ; Brooke v. Pcarnon, 27 Beav. 186 ; 
s. c. 34 L. T. Rep. 20). 

Whatever interest the husband has by law in his wife's projjerty, and has the 
power to dispose of, will pass to his assignees (see Com. Dig. Bankrupt, I). 12 ; 
Mace v. Cadcil, Cowj). 232). The assignees of a husband in England are not 
allowe<l to reduce any of his wife's estate into possession in equity, without 
making a reiisonable settlement upon the wife (see Rankin v. Baimard, 5 Mad. 
32 ; and Story's Eq. Juris., § 1412) ; but, as by our Married Women's Act, the 
husband is deprived of all right to reduce his Vnfe'a estate into possession, hi» 



' i 



FRAUDS AND KKAUDULKNT I'llKKERENCKS. 



143 



as3i{,Ticcs can claim no Buch power, even upon tcruiH of making a settlement 
upon lier. 

A person in inHolv(>nt circuinstanccH conveyed by way of Buttlement to his 
intended wife a lot of lanil, on which the Hcttlor had coniniencod to put up a 
houHc, hut which was not coniplct(;<l until after marriage. On a hill filed hy 
the asHignees in insolvency, the court declared that for so much of the huihling 
as was completed after marriage, the creditors hatl a claim on the projicrty ; hut 
gave the wife the right to elect whether she Avould he paid the value of her 
interest without the ex])enditure after marriage or pay to the assignees the 
amount of such expenditure ; and it auhHccpieiitly appearing that her husband 
had created a mortgage prior to the settlement, the wife was declared entitled 
to have the value of the improvements made after marriage a])plie<l in discharge 
of the mortgage in priority to the ulaims of the creditors (Jackwn v. Bowman, 
14 (irant, 156). 

As to the doctrine of the Courts as to settlements made in consideration or in 
c<mt(!mplation of marriage the following lOnglish cases may be consulted: MJx parte 
McJitmuc'H Trnsts, 1 D. M. & (J. 41 ; s. e. \). M. & (i. Ba. 441 ; Ex parte Foole, 
JJe(k'X 581 ; Simmona \. EdiiuirdH, KJ M. & VV. 8;i8 ; I/l</fjinftotli(ini, v Holme, 
19 Ves. 88 ; see see. Dl, !']nglish Act of 180!); Alton v. jJarrinon, 38 L. J. llep. 
N.S. ch. ()(>9; Atlni v. ISonnet, 18 VV. K. 183; Frrc.maii v. Pope, 39 L. J. ch. 
G89 ; Mackay v. Doii.j-las, 41 L. J. ch. 539 ; (JroHnley v. Elimrthji, 24 L. 'W Rep. 
N.S.JG07 ; Kent v. liUey, 20 VV. R. 852. With respect to marriage settlements 
the doctrine of the Courts has in England undergone considerable modilieations, 
and it ia now clearly established that marriage cannot be made the means of 
committing a fraud in an attempt to protect ])roperty against the claims of 
creditors, as when pending an action for debt the debtor assigned all his 
property to his intended wife, with whom he had previously cohabited, for his 
life, with remainder over {Bulvicr v. Ilmitcr, 20 L. T. Rep. N.S. 942) ; and 
when under the circumstances the marriage itself was regarded as part of a 
scheme to defeat creditors, the settlement made thereon was set aside in favor 
of creditors {Columlnna v. Pcnhall, 1 Sm. & (J. 228). 



13<{. If any sale, deposit, pledge or transfer ho made of '';;'fi'*"'j|^\ 
any property, real or personal, by any person in contenipla- ^■''!'"' *';•• 
tion of insolvency, by way of security for payment to any 
creditor ; or if any property, real or personal, movable or 
immovable, goods, effects or valuable security, be given by 
way of payment by such person to any creditor, whereby 
Buch creditor obtains or will obtain an unjust preference 
over the other creditors, such sale, deposit, pledge, transfer, 
or payment shall be null and void, and the subject thereof , . 

may be recovered back for the benefit of the estate by the 
Assignee in any Court of competent jurisdiction; and if the Presump- 
same be made within thirty days next before a demand of Fraud. 
an assignment, or for the issue of a writ of attachment 
under this Act, or at any time afterwards, whenever such 
demand shall have been followed by an assignment, or by 
the issue of such writ of attachment, it shall be presumed 
to have been so made in contemplation of insolvency. 



l^iH 


|H 


' i J 


'iii'j 


1 



144 



INSOLVENT ACT OF 1875. 



11 



I 



I 



Acta which constitute fraudulent preferences under this section not only 
render the transfer null and void, but may (sec. 56, aapra) be the ground for 
refusing the discharge of the instdvent ; but not when the fraudulent prefereacea 
were created before the jiassing of the Act in the several Provinces respectively 
which first made such preferences void therein. See the proviso to sec. 50, and 
re Owens (12 Grant, 500). 

This section does not invalidate conveyances executed before the Act passed, 
and which were valid at the time of their execution (Gordon v. Youwj, 12 
Grant, 318). 

An insolvent absconded to the United States, taking money with him. He was 
followed there by the agent of a person in this country who had become surety 
for him, and by the tlireats of criminal proceedings induced him to pay the 
amount of the debt. A bill filed by the official assignee to recover the amount 
from the surety was dismissed with costs (Roe v. Smith, 15 Grant, 31:4). Every 
chattel mortgage made by an insolvent within thirty days before a voluntary 
assignment is not necessarily void under this sectitm, when taken in the way of 
business in an ordinary transaction, and where the mortgagee has no reason to 
uspect that the mortgagor contemplated insolvency. One J., being a retail 
dealer, and wanting goods to carry on his business, asked one M. to endorse 
notes to enable him to purchase them. To this M. consented, on condition that 
J, on receiving the goods should secure him against loss by a mortgage thereon, 
and on the other goods in J.'s store, who was to sell them at his store only, and 
out of the proceeds retire the notes, and if he should sell otherwise M. might 
sell the goods for his own protection. M. accordingly endorsed, and J. with 
the notes purchased goods, which he mortgaged to M. as agreed on, with other 
goods, for the bonHfidc and sole consideration of perfecting the said agreement. 
J. afterwards, and within thirty days from the date of the mortgage, but 
without M.'s consent, made a voluntary assignment to an official assignee. 
This mortgage was upheld as against the assignee, and in giving judgment 
Hagarty, C. J., remarks : "It was a very natural and possibly highly beneficial 
arrangement for the trader to make, at least so far as it was possible for M. to 
foresee. Its effect might be, as is remarked in many of the cases, to delay 
creditors, but that alone does not avoid a transaction otherwise lawful, nor are 
we prepared to hold that the mere fact that the trader contemplated insolvency 
will alone defeat the remedy and security of a person dealing with him as M. 
seems to have done, in the way of business, in an ordinary transaction, and 
having no reason whatever to suspect what may be passing in the trader s 
mind" (Mathers v. Lynch, 27 Q. B. U C. 244; s. c. 28 Q. B. U. C. 354). 

To avoid a transaction under this section, not only must there be a contem- 
plation of insolvency, but coupled with it a fraudulent preference of the creditor, 
to whom the transfer or pajnnent is made over the other creditors. In the case 
cited below, the insolvent, about two months before the issue of a writ of attach- 
ment against him, assigned to defendant, a creditor, a policy of insurance upon 
certain merchandise, in security for a debt which was about to be placed in 
suit, and the insurance company, upon the occurrence of a fire, paid over the 
proceeds of the policy to the creditor, to the extent of the debt received 
thereby. At the trial the plaintiflF, who claimed, as assignee, to recover back 
this amount, called the insolvent, who swore that when he assigned the policy 
be had no contemplation of insolvency, that his intention was, with his remain- 
ing assets and the residue of the money derived from the policy, after paying 
defendant, to re-open his business, but that he was driven into insolvency by 
the act of a certain creditor, who though he had promised him time, sued out a 
writ of attachment against him. 

It was held that the transfer of the policy not having been made within thirty 
days of the issue of the writ of attachment, the onus was cast upon the plaintiff 
of proving that the transfer was made in contemplation of insolvency, and that 
the above facts were insufficient to sustain that contention. 



\ 



FRAUDS AND FRAUDULENT PREFERENCES. 



14^ 



^rbe test to determine whether a transaction is void under this section, is 
precisely the same as is applied under the English bankrupt law to determine 
whether a transaction is void, as being by way of fraudulent preference 
(McWhirter y. Thome, 19 C. P. U. C. 302). 

A transfer by a party afterwards becoming insolvent to a creditor in payment 
of his claim is a fraudulent preference and void, if the necessary result of the 
transfer is to cause the debtor to close up his business and prevent him from 
paying his other creditors; and tho> words of the Insolvent Act, "in contem- 
plation of insolvency," do not necessarily mean "contemplation of an assignment 
under the Act" (Marsh v. Sweeny et al. 2 Sup. Ct. llep. N. B. 454). 

On the 25th November, 1864, an agreement was made by one S. to deliver 
certain timber at prices payable partly before and partly on delivery. On the 
14th December following S. assigned the timber to a mortgagee as security for 
certain advances. The mortgagee wrote to the purchaser that S. desired to 
deliver the timber to him but was in difficulty, that some of the creditors 
refused to wait until he could complete his contract, and had commenced 
actions, and recommending the purchaser to anticipate their acti<m by taking 
a delivery before they could interfere. On the 11th of March the purchaser 
accordingly paid the mortgajee's claim and took a delivery. On 14th April S. 
made an assignment under the Insolvent Act of 1864. He admitted that he 
was insolvent on the 11th March and long previous, though he said he did not 
then know it, and had not informed the purchaser of it. It was held that these 
facts showed the delivery to the purchaser to be a transfer by S. "in contem- 
plation of insolvency" the effect of wh^ch was to give him an unjust preference 
over the other creditors, and that it was therefore void under this section 
{Adams v. McCall, 25 Q. B. U. C. 219). If there is any agreement to give 
security to a given creditor, or anything in the nature of a duty pre-existing, 
then the mere fact of impending bankruptcy will not render the giving such 
security fraudulent {Allan v. Clarkson, 17 Grant 570; Griffith & Hokens on 
Bankruptcy 1097 ; see same work, 431 ; Harris v. Jiickett, 4 H. & N. 1.) 

In England, before the late Act, a contemplation of bankruptcy by the 
debtor at the time of the transaction complained of was a necessary ingredient 
to constitute a fraudulent preference. But in sec. 92 of the English Act of 
1869 the words are "unable to pay his debts as they become due from his own 
moneys," which corresponds very closely with the words of the latter clause of 
section 130 of this Act, "unable to meet his engagements." The expressions 
" contemplation of bankruptcy," " unjust preference " are to receive the same 
construction as similar expressions have received in England {Tuer v. Harrison, 
14 C. P. U. C. 440 ; Newton v. 07itario Bank, 13 Grant, 662). 

1. Contemplation of Insolvency. — This expression was originally construed 
to mean not the contemplation of a commission of bankruptcy, but it was 
enough if a party knew himself to be in such a situation, that he must be aware 
that bankruptcy would in all probability follow, though not immediately (Gib- 
bins V. Phillips, 7 B. & (j3. 529 ; Hartshorn v. Sloddtn, 2 Bos. & P. 82 ; see also 
Groom v. Watts, 4 Ex. Rep. 727). Some years later it was said judicially that 
to constitute a fraudulent preference, two things must concur — insolvency in 
the trader, and a voluntary payment or transfer by him before the filing of the 
petition (Hunt v. Mortimer, 10 B. & C. 44). In rv subsequent ease it was laid 
down that no voluntary payment could be good when made by a trader in such 
a situation, that in the judgment of any reasonable man bankruptcy was inevi- 
table {Pola,nd V. Glyn, 4 Bing. 22 n. ). And if a man knew he could not go on, 
and there was a probability of his becoming a bankrupt, and in contemplation 
of that event he preferred a particular creditor, the payment was void (Flook 
V. Jones, 4 Bing. 20). Even though he might hope to avoid it, yet, if made 
with the object of giving the creditor an eventual advantage if the bankruptcy 
did take place, the payment was illegal and invalid (Brown v. Kempton, 19 
L. J. 169 0. P. ; i^ parte Simpson, DeG. B. 9 ; Marshall v. Lamb, 5 Q. B. 

10 



' 1 


, 1 

r 1 






1 




146 



INSOLVENT ACT OF 1875. 



f : 



ii, 



Rep. 115; but see Morcjan v. Bmndrett, 5 B. & Ad. 289). But when a 
bankrupt entertained a horiit fide liope that he would be extricated from his 
ditlicultics witliout being made a bankrupt, it waa held that a payment made 
by him was not a fraudulent preference {(/Ibaon v. Bonds, 3 .Scott 22!) ; Atkinson 
T. Brindell, 2 Bmg. N. C 225). When a payment ivas made by a debtor in 
embarrassed circumstances in the ordinary course of Ins business, and the 
evidence showed that the creditor liad acted houfijide, and that the del>tor did 
not intend the payment to be preferential,»the court held that it did not amount 
to a fraudulent preference {Ex parte Matthew% 25 L. T. Ittip. N.S. 27(5 ; and on 
appeal Ex parte Bollaud, L. Re]). 7 Chy. 24 ; see also Craven v. Edmonton, 6 
Bing. 734 ; Caiman v. Wood, 2 M. & W". 405). Where the payment is not 
only voluntary but made under such circumstances that it could be attri})uted 
to no other motive, it will be construed as a fraudtilent preference, even aside 
from the presumption arising from tlie transaction being within thirty days 
(Ex parte Wreford, 24 L. T. Rep. N.S. G38 ; see also Alton v. ILtrrinon, L. 
Rep. Ch. 4, 622; 21 L. T. Rep. N.S. 282; Ctirtics v. Jacobs, 16 L. T. Rep. N.S. 
574; Ex parte Majoribanks, l3e Oex. Rep. 466). 

2. Whereby such Creditor obtains, or will obtain, an unjust pre- 
FRRENCK OVER THE OTHER CREDITORS. — A preference which a debtor is induced 
to give by threats of criminal proceedings is not void, but to sustain the prefer- 
ence the pressure must be real, and not a feigned contrivance between the 
debtor and creditor to wear the appearance of pressure for the mere purpose of 
giving etfect to the debtor's desire and intention to give a preference (Clemmoio 
V. Converse, 16 Grant, 547). Evidence of pressure is material to rebut the 
presumption that a payment given by a debtor hopelessly insolvent is a frau- 
dulent preference (Bills v. Smith, 11 Jur., N.S. 157). The ante-dating of 
a note is some evidence of a fi'audulent preference, but it is not conclusive 
(Strachan v. Barton, 11 Ex. 647; Cook v. Pritchard, 6 Scott N.R. 34). A 
mortgage obtained by pressure from a bankrupt may be good, though the 
debt secured was not payable at the time of making the mortgage (Strachan v. 
Barton, supra, Edwards v. Glyn, 2 E. & E. 329). An assignment obtained from 
an insolvent of a considerable part of his assets by a creditor to secure an 
antecedent debt may be valid ( Yoiimj v. Waud, 8 Ex. ch. Rep. 234). It is a very 
material circumstance that the preference proceeds voluntarily from the bank- 
rupt himself (Johnson v. Fesenmei/er, 25 Beav. 93; 3 DeC & I. 13in App.). 
Mortgages given voluntarily or spontaneously in anticipation of bankruptcy are 
wholly void against the assignee in bankruptcy. Mortgages given upon pressure 
are valid or invalid according to circumstances. Such a mortgage is not valid 
if it covers the whole of the debtor's assets, or so much thereof that it must 
necessarily stop the mortgagor's trade, or prevent its being carried on in its 
usual and ordinary course, or enables the mortgagee forthwith to put a stop 
19 Beav. 626, and see 25, Beav. 91 ; Smith v. Cannan, 2 Q. B, 35 ; Ex parte 
to the business (Ex parte Bailey, 3 DeG. M. & G. 544 ; Stanger v. WilMns, 
Wensley, 1 DeG. J. & Sm. 280; Goodricke v. Taylor, 2 DeG. J. & Sm. 139; 
Siebert v. Spooner, 1 M. & W. 714). A reservation of one-third has been held to 
be a substantial reservation sufficient to maintain the validity of a mortgage 
obtained by pressure ( Thuais v. Smith, 1 H. & Colt. 849). When the mortgagor 
obtains a substantial equivalent in the shape of a benefit to the estate, as where 
he obtains a i)resent advance which may enable him to carry on his business 
and realize so as to avoid impending bankruptcy, the mortgage will be sus- 
tained (Bittlestone v. Cook, 6 E. & B. 296; Penndl v. Reynolds, 11 C. B., 
N. S. 709 ; Mercer v. Peterson, L. R. 3 Ex. 104 ; Re Gass, L. R. 2 Eq. 284. ) 
This is undoubtedly the doctrine of the courts in England, though the con- 
trary has sometimes been said or held to be the case (Lindon v. Sharp, 
6 M. & Gr. 895 ; Graham, v. Chapman, 12 C. B. 85 ; Lacon v. Liffcn, 4 Giff. 
83; s. c. in appeal, 9 Jur., N.S. 477; Hutton v. Cruttivell, 1 E. & B. 15; Bell v. 
Simpson, 2 H. & N. 410), and these cases have been commented upon, and the 
same doctrine applied in Ontario in the Royal Can. Bank v. Kerr (17 Grant 59); 
and McWhirter v. Royal Can. Bank (17 Grant 480). The assignment to be 



FRAUDS AND FRAUDULENT PREFERENCES. 



Wi 



He 



Ire 



the 



fraudulent must be an assignment not for tlic purpose of raising money to enable 
the trader to go on with liis trade, l)ut for tlie purpose of paying some favoured 
creditor, or making sonte payuients to all his creditors, otherwise than under 
the Act. In cither of these cases it is an act of bankruptcy. But if it is for 
the jmrpose of enabling liim to go on with his trade, that cannot be called a 
fraudulent act as tending to defeat and delay his creditors, for it probably is, or 
may be, the wisest step lie could take to promote the interests oi his creditors 
{In re Coliiierc, L. R. 1 Ch. App. 13'J). Ex parte Foj-ley (h. R. 3 Ch. App. 517), 
the nu)rtgage was held invalid because it conveyed substantially all the (lebtor's 
property to one of hih creditors, without his receiving any money or other 
ccpiivalent advantage which would enable him to carry on his business or pay 
his other creditors, and it was held tliat to give validity to a mortgage of all a 
debtor's property to secure an antecedent debt, the debtor must obtain some- 
thing to enable him to maintain his Inisiness. The equivalent scmiething need 
not 1)6 of equal value with the property transferred, nor need it be of money's 
worth. It must l)e some advantage to the debtor in money advanced or goods 
supnlied which will enable \\iv\ the better to arrange and carry on his business 
I Voaiioimi v. Murray, 1 L. 11. 2 Q. B. 034; W/ulmore v. Vlaridqc, S Jur., N.S. 
iOu'J; Carr v. Biinllss, 1 C. M. & R. 443; Adbott v. Burhane, 2 Bing. N. C). 444). 
The insolvent, an innkeeper, on the 12th August, 1801), gave the plaintiflF a 
mortgage upon the wliole of his property, payaljle in six mouths, for an antece- 
dent debt. The attachment in insolvency issued on the 0th December following, 
and the assignee seized and sold the goods. The mortgagor believed himself to 
be insolvent, but the mortgagee did not. The mortgage was given under 
pressure, and not with intent to defraud or delay creditors, and was upheld 
(Archihald v. Haldan, 31 Q. B. U. C. 295 ; 32 Q. B. U. C. 30). In this case 
the evidence of pressure given was that mortgagee had been pressing the 
insolvent for payment and had threatened by letter to sue him, and required 
him to give this security, and it was admitted by counsel and the court that 
this was sufficient (see Ex parte Craven, In re Craven et al., L. R. 10 Eq. 648, 
Ex parte Temped, In re Craven, 6 Ch. App. 70). It was also argued by counsel 
that the assignment being of the whole of the debtor's property, and there being 
no covenant for possession by the mortgagor until default, the mortgage was 
void upon that ground (see Me Whirter v. Thome, 19 U. 0. C. P. 310 ; In re 
Wallis, 29 Q. B. U. C. 308 ; Allen v. Bonnett, L. R. 5 Ch. App. 577 ; Jones v. 
Harher, L. R. Q. B. 77 ; Payne v. Hendry, 20 Grant 143 ; Bank of Australasia 
V. Harris, 15 Moo. P. 0. C. 97 ; City Bank v. Smith, 20 U. C. C. P. 93). 

3. Sucn SALE, DEPOSIT, PLEDGE, TRANSFER, OR PAYMENT, SHALL RE NtTLL 

AND VOID. — By section 131 the contracts therein specified are declared void- 
able. By sections 132 and 133 the transactions mentioned are declared nuU and 
void. The language of the statute 13 Eliz. c. 5, is, "shall be deemed and 
taken as against that person, etc. , whose actions are delayed or defrauded, to be 
clearly void ;" and of sec. 92 of the Kughsh Bankruptcy Act of 1809, "shall be 
deemed fraudulent and void as against the trustee. " Although the words here 
are unlimited, it is conceived that the section should be construed as if the 
words "as against the assignee and creditors" were aelded after the words 
"null and void," and that the assignee or the creditors must take some action 
to avoid the contract. It has been held in England that the effect of bank- 
ruptcy upon a fraudulent preference is not to divest the transferee of the pro- 
perty, but that notwithstanding the bankruptcy it continues vested in the 
transferee subject to be divested by the assignees at their election ; and that the 
commencement of an action of trover, which may be discontinued at any time, 
and which assumes that the goods came into the possession of the defendant 
lawfully is not an election on the part of the assignee to avoid the transfer. 
Therefore, when goods had been transferred by a trader before his bankruptcy 
by way of fraudulent preference, and the transferee after the appointnjent of the 
assignees had brought an action against a third party for an illegal and excessive 
distress upon the goods so transferred, the defendant could not set up the 
bankxuptcy aa a defence, when the assignees had done no other act in assertion 



! ^ :' ■, 






148 



INSOLVENT ACT OP 1876. 



. •:; ' f 



Ml:: 



of their rights than commencing an action of trover for the same goods (Nrwnham 
V. iSlevetmni, 15 Jur. .%0 ; 20 L. 3. C. P. Ill; but sue Chuicher \. Counins, 28 
Q. B. U. C. 547; Marks v. Fddinan, L. 11. 5 Q. 13. 275). 

In Churcher v. CotmnH (28 Q. B, U. C. 548), it is said that all fraudulent 
preferences or acts done to injure, obstruct, or delay creditors are void ; but 
the fraudulent preference or other impeachable act must be continuing at the 
time when the assignee's title accrues to enable him to question it. The 
assignee's title only accrues at the date of the writ of assignment, or of the 
issue of a writ of attaclnnent, and has not, as in England, an ulterior relation 
to the time of the committing an act of bankruptcy (Churcher v. Cousins, supra). 

4. And the subject tiirueof ma.v be recovered back by the assignee, 
IN ANY COURT OF COMPETENT JURisDimoN. — The words "subject thereof" 
should be construed liberally for the benefit of creditors and the suppression of 
fraud ; and the transferee may, though he has parted with the property trans- 
ferred, be compelled to account for the i>roceeds (Churcher v. Cousins, supra ; 
Marks v. Feldman, L. R. 5 Q. B. 275 ; Nunes v. Carter, L. R. 1 P. C. 342 ; 
McGregor v. Ilumc, 28 Q. B. U. 0. 381). 

5. And if the .same be made within thirty days it shall be presumed 

TO HAVB BEEN SO MADE IN CONTEMPLATION OF INSOLVENCY. — It will be observed 

that, as in section 1 30, the time limited is thirty days next before a demand to 
assign, and not, as in the former Act, thirty days previous to the execution of a 
deed of assignment. This presumption is one that may be rebutted (Campbell 
V. Barrie, 31 Q. B. U. (I 279; Churcher v. Cousins, 28 U. C. R. 547; Hoyal 
Canadian Bank v. Kerr, 17 Gr. 47 ; Mathers v. Lynch, 28 Q. B. U. C. 354). 

Certain 134, Every payment made within thirty days next be- 

(lebtor void, fore a demand of an assignment, whenever such demand 
shall have been followed by an assignment, or by the issue 
of a writ of attachment, or within thirty days next before 
the issue of a writ of attachment under this Act, when such 
writ has not been founded upon a demand by a debtor 
unable to meet his engagements in full, to a person knowing 
such inability, or having probable cause for believing the 
same to exist, shall be void ; and the amount paid may be 
recovered back by suit in any competent Court, for the 
benefit of the estate ; Provided always, that if any valuable 
security be given up in consideration of sucn payment, such 
security or the value thereof shall be restored to the credi- 
tor before the return of such payment can be demanded. 

The expressions in section 92 of the English Act of 1869 are very similar to 
those in this section, and the decisioi ^ thereon will probably be considered as 
authority by the courts in the several Provinces. C. paid a sum of money to 
a creditor named M., and shortly afterwards became insolvent. A special jury 
found that C. had made this payment voluntarily, at a time when he was 
unable to pay his debts, and when bankruptcy was reasonably imminent, but 
he had no intention to give M. a preference. Held, that this payment was 
protected, and was not fraudulent and void (Ex parte Matthew, lie Cherry, 19 
W. R. 1005 ; Ex parte r 'land, Be Cherry, in appeal, L. R. 7 Ch. App. 24). 
When within three months of a bankruptcy, and whilst hopelessly insolvent. 



FRAUDS AND FRAUDULENT PREFERKNCE8. 



149 



a trader in tlio ordinary course of business paid a considerable sum of money to 
a creditor, hut not, as it appeared, with a view to prefer this creditor to others, 
it was lield that this was not a fraudulent preference within sccticm \)2 ; and 
that even if it were so, as the payee received the money " in good faith," the 
payment could not he impeached (AV C/icexfhorottif/i, '25 L. T. N.S. 70 ; 40 L. T. 
llep. IJauk. Ul); Ex parte lihirkhuni, L. 11. 12 V\ 3r»8; 25 L. T. Jlep. N.S. 76). 
A voluntary payment, however, made by tlie «lehtor within two (lays from the 
filing of his petition for li<iuidation aud withiuit pressure, was set aside as a 
fraudulent i)reference within this section {,Ex parte Wrvjord, lie (Jullttt, 24 
L. T. N.S. g;«). 

Preferential transfers have not heen to any great extent the subject of legis- 
lation in l']n<dand, but they are deemed void by the courts as being a fraud 
upon the bankrui»t laws {Cronhiix. Cuitc/i, 2 Camp. IGU ; 11 East. 2r)») ; Aldfr- 
xon V. Temple, 4 Hurr. 22.T) ; 1 W. 151. GtfO). Although tlie j.eriod of thirty 
days before, &c., is given in this section, as the time in which a payment made 
by a debtor unable to meet his engagements to a person cognizant thereof, 
would be void, there can be little doubt that, under English authorities, pre- 
ferential payments made before that time may be held void as being against the 
spirit of, and a fraud upon, the Act. It has been held that if a party volun- 
tarily make a payment, by which the e([ual distribution of his property in 
bankruptcy will be defeated, such payment is a fraudulent preference, th(mgh 
the bankrupt in making it did not intend to benefit, and iu fact did not benefit 
the particular creditor. For instance, where a bankrupt paid olT a mortgage on 
property settled to the use of his wife, who had jcnned in such mortgage, 
without previous notice to, or request by, the creditor, to whom it would have 
been ecpially beneficial to retain the mortgage, the bankrupt intending only by 
such p.iymeut to liberate his wif(i's property for his own and her benelit ; this 
has been, nevertheless, held to bo a fraudulent preference (Mnrt^liall v. Lamb, 
5 Q. B. 115; 7 Jur. 800). The mortgage, however, would come under the 
description of valuable securities in this clause, and the creditor would be 
entitled to have it restored. 

The case of Churcher v. Johnston (34 Q. B. O. 528), decided upon section 90 of 
the Act of 1869, has given an extended signiiication to the words "valuable 
security," as used in this section. There payments made by the insolvent to a 
creditor, who had advanced moneys up ui a parol agreement that tliey were to 
be repaid out of the proceeds of daily sales, were upheld, though made within 
the period of thirty days, aud although the advances were made by the creditor 
with knowledge of the debtor's inability to meet his engagements (see Ex parte. 
Blackburn, He Cheeseborontjh, L. R. 12 Eq. 358 ; Lomax v. Buxton, L. R. 6 C. 
r. 107 ; Bamsden v. Lupton, L. R. 9 Q. B., 17 Ex. Ch.). 



ir to 
d as 

y ^ 

jury 

was 

but 

was 

y, ly 

24). 
vent, 



135. Any transfer of a debt due by the In.sohent, made 
within the time and under the circumstances in the next 
preceding section mentioned, or at any time afterwards, 
whenever such demand shall have been followed by an 
assignment or by the issue of sucli writ of attachment, to a 
debtor knowing or having probable cause for believing the 
Insolvent to be unable to meet his en<ja<;ements, or in con- 
fcemplation of his insolvency, for the purpose of enabling 
the debtor to set up by way of compensation or set-off the 
debt so transferred, is null and void, as regards the estate of 
the Insolvent ; and the debt due to the estate of the Insol- 



Tranafer 
of certain 
(l(5l)ts by 
Insolvent 
void. 



I I 



! ' 



I; 



150 



INSOLVENT ACT OF 187S. 



Pnrohnsing 

gOO'ls (III 

creflit liy 

1)ersoiis 

tlltMIISt'lvt'S 

aiiiibl*! tn 
pay, to III' 
fraiul, anil 
how jiuniiih- 
uble. 



vont shall not bo coinpensatod or affcctod in any iminiior by 
a claim so aciiuirotl ; but tlio iiuicli.isor tlKsroof in:iy ranii 
on tlio estate in the place and stead of the ori'jinal crijditor. 

1!U». Any jiorson who for liiinself, or for any firm, part- 
nership or comjmny of which lio forms part, or as the 
manager, trustee, agent or eniployoo of any person, firm 
co-partnership or company, i)uvchase.s goods on credit or 
procures any advance in money, oi jn-ocurcs tlie endoi-sement 
or acceptance of any negociable paper without consideration, 
or induces any pei-son to become security for him, knowing 
or believing himself (or such person, firm, co-partnership or 
company for whicli lie is acting) to be unable to meet his 
(or its) engagtmients, and concealing thci fact from the person 
thei'cby becoming liis creditor, with the intent to defraud 
such pei'son, or w]io'l)y any false })retence obtains a terra of 
credit for tlie payment of any advance or loan of money, or 
of the i)rice or any part of the })rice of any goods, wares 
or merchandise, with intent to defraud the person thereby 
becoming his creditor, (or the creditor of such pei*son, firm, 
co-partnership or company,) and who shall not afterwards 
have paid (or cause to be paid) the debt or debts so incurred, 
shall be held to be guilty of a fraud, and shall be liable to 
imprisonment for such time as the Court may order, not 
exceeding two years, iniless the debt or costs be sooner paid; 
pi'ovided always, that in the suit or proceeding taken for 
the recoveiy of such debt or debts, the defendant be charged 
with such fraud, and be declared to be guilty of it by the 
judgment rendered in such suit or proceeding. 

Under seo. 8, sub. -sec. 7, Act of 1864, from which this section is taken, when 
a trading company contracted these fiaiuUilent debts every meuil>er thereof, 
who did not prove himself to have l)een ignorant of the incurring ami of the 
intention to incur such debts, was Hable to punishment. By the alteration in 
tliis section each of the members of a firm are not ijrUiiA facie liable, but a case 
must be established against them. 

In addition to inflic" ng a severe punishment upon the insolvent under this 
clause, the cretlitors may take advantage of his conduct for the purpose of 
opposing his discharge (sec. 101 supra) ; and the misconduct need not be shown 
to liave occurred since the passing of the Act of 18G4 {Rt Owens, 12 Grant, 
560). - 

When a person in business finds himself unable to pay twenty shillings in the 
pound, it may or may not be his duty to discontinue his trade, according to 
circumstances : continuing his business may be a fraud, but it is not necessarily 
BO, and may not disentitle him to his discharge {/?e Robert Holt and John Gray, 



FRAUD8 AND FRAUDULENT rUKFKKENCES. 



151 



n 



e 
o 



13 fJrftnt, 5G8). In another case Mr, .lustico Adam Wilson says :— "Tho raoro 
fact of a trader iiurchaaing goods who is at the time unaltle to meet his engage- 
ments, is neither fraud nor within the provisicms of the Insolvent Act. A 
purchase may under sucli cirounistanues l)u tlie very l)est and wisest act wliich 
the trader couKl do, and may be the most l)enolicial act for his creditors. Such 
a ])urcha8c may he the very means of rcinntatiug him, and relieving him from 
difHculty. Inaliility to pay is no more fraud, though it was thought so in 
formiT time wlien hatdiruptcy Avas osteenied a crime, than solvency is honesty, 
though some nuiy think, it so" (/« re UarnUl tl- (Jo,, 28 (l- B. U. C. UGG). 

The language of this section, roterring to tho insolvent's "knowing or be- 
lieving liimself to be uual»le to meet his engagements, M'lien he purchases goods 
on credit or procures ailvances in money," is much the same in terms and 
meaning as the words in the loDth section of the Knglish Act of 1801. Thii 
latter section declares tiie insolvent to l;e guilty (»f a misdemeanor, if the court 
is of opinion "that he couM not have liait, at tho time when any <tf his debts 
were contracted, any reasonable or probal)le ground of expectation of being able 
to pay tho same." The onm of proving this olFonce is upon the opposing credi- 
tor. He may support his case by examiniug the insolvent in reference to his 
state of end)arrassment at the time of contracting any particular debt, and also 
may investigate his accounts, which show the prolits made and any other 
income he may have received in such year, and whether it was increasing or 
dirainisliing. The extent of the ins(dvent's liabilities in any given year may 
also be easily ascertained. On his examination he may be pressed closely by 
counsel with su:jh questions as the following: — Is any creditor pressing him? 
Has any writ been issued against him ? Has he made or endorsed any notes 
after he had failed to meet others ? Has he become security, or entered into 
pecuniary engagements for others, when he could not pay his own debts? How 
many accommoilation notes has he made or endorsed '.' Has he any means of 
payment in the event of the other party or parties to these notes failing to meet 
them, and himself being called upon to do so? Lord Cranworth held {litre 
Marks, L. R. 1 Chy. App. 3.'U), un<ler the circumstances of the case, that the 
bankrupt had not contracted a debt without any reasonable or probable ground 
of expectation of being able to pay it, although he obtained goods on credit 
while iu.solvent, and soon afterwards sold tiiem for less than their cost price. 
The eases go to show that the court will form its judgment as to the insolvent's 
expectations of being al>le to pay any debt at the time he contracted it from a 
general view of his income, earnings and })roperty on the one hand, and the 
liabilities hanging over him on the other. He must appear to have contracted 
new debts after manifold proof given of his incapacity to liquidate existing 
demands upon him. Allowance will also be made for a fair prospect of profes- 
sional exertions, or commercial enterprise, for the reasonable hopes of assistance 
from friends, and many other contingencies of life. In eases of doubt, the 
character of tlie debt will also "be considered, as to whether it >\as contracted 
for luxuries or the necessary support of the insolvent's family, or in the ordinary 
course of trade. It cannot be contended that a man must leave off trade 
because he is in ditHculties ; and the system of trade in this country is so 
thoroughly based upon credits, that no trader in the Dominion at all in diffi- 
culties could carry on trade without " purchasing goods on credit, or procuring 
advances in money" (see Ex parte Johnson, 4 De G. & S. 25 ; £Jx parte Dornford, 
4 De (i. & S. 29 ; Ex parte. Bufford, 2 D. M. &, G. 234 ; Ex parte Dobson, 6 D. 
M. & G. 781 ; Ex parte Selby, 6 D. M. & G. 783 ; Ex parte Brundrit, In re 
Caldwell, L. R. 3 Chy. 2G : Ex parte Bayley, In re Ainsworth, L. R. 3 Chy. 
244). 

Overdrawing an account current at a banker's by a person in insolvent cir- 
-cumstances does not in itself amount to contracting a debt without reasonable 
«r probable ground of expectation of being able to pay the same (Ex parte Har- 
rison, 2 L. R. Chy. 195). As to the construction of section 92 of the Act of 
1869 in New Brunswick, see Jones et al. v. Hanford, 2 Sup. Ct. Rep. N. B. 467. 



iJil 



152 



INSOLVENT ACT OP IfiW. 






PraiKl rrnmt 
b« pruvcd. 



;t : 



m 



Award of 
iiriprison- 
nieat. 



AssignnnH to 
be deonii'd 
a){Otits for 
linrtaia imr- 

])08L'H. 

32^33 
Vie. ch. 21. 



Punishment 
of assit,'iR'ti 
iiiakinj^ wil- 
ful misstate- 
ment. 



Certain acts 
by Insol- 
vents to be 
misdemean- 
ors. 



itJ7» Wliotlmr th(* Wofondant in any anch case appoar and 
pload, or mako default, tlio plaintilF shall ho hound to ])rovo 
tho fraud char^'od, and upon his proving it, if tho trial be 
before a jury, tho Judge who trioH tho Huit or proco(Mling 
shall iniUKidiatoly after the verdict ronderod against tho 
dcifendant for Huch fraud (if such verdict is given), or if not 
before a jury, then inunediately ujwn his rendering his 
judgnumt in the promisees, adjudge tho term of inijirisonment 
which the (hsfendaiit shall underjio ; and ho shall forthwith 
order and direct the (hjfisndant to bo taken into custody and 
imprisoned accordingly; but such judgment shall be subject 
to the ordinary remedies for tiio rovisiou thereof or of any 
proceeding in the cas? 

OFFENCES AND PENALTIES. 

138. Evoiy Assignee to whom an assignment is made 
under this Act, is an agent within the meaning of the 
seventy-sixth and following sections of tho "Act resi)octing 
larceny and other similar offences," and every provision of 
this Act, or resolution of the creditoi-s, relating to the duties 
of an Assignee, shall be held to bo a direction in writing, 
within tho meaning of the said seventy-sixth section ; and 
in an indictment against an Assignee, under any of the 
said sections, the riglit of property in any moneys, security, 
matter, or thing, may be laid in " the creditors of the Tn.sol- 
vent (naming him) under the Insolvent Act of 1875," or 
in the name of any Assignee subsequently appointed, in his 
quality of such Assignee. 

1«S0. Any Assignee who in any certificate required by 
this Act shall wilfully misstate or falsely represent any 
material fact for the purpose of deceiving the Judge, the 
creditors, or the Inspectors, shall bo guilty of a misde- 
meanor, and shall be liable at the disci'otion of the Court 
before which he shall be convicted to imprisonment for a 
term not exceeding three years. 

140. From and after the coming into force of this Act, 
any Insolvent who with regard to his estate, or any Presi- 
dent, Director, Manager or employee of any copartnership, 
or of any Incorporated Company not specially excepted in 
the first section of tliis Act j with regard to the estate of 



0PFENCE8 AND PENALTIES. 



153 



siioh copartnorsliip or CoiiipMuy, wlio sliall do any of tho 
jictH or tliiii','s following witli iiitnit to (Uifraud, or dcfwit tho 
rights of liis or its creditors, sliuU ho guilty of a iiiiscU'incanor, 
and sliall ho hahh», at the (h.scn^tioji of tlio ('ourt h(>f()ro 
which ho is convictcnl, to ponishiiuMit hy imprisoiiniont for 
not Hioro tlmn throe years, or to at\y greater puuisiinieut 
attached to tlio ofrence hy any existing statute ; 

If ho does not upon oxamination fidly and truly discover Not fully 
to the host of liis knowledge and helief, all liis property, or not ^ 
real and personal, inclusivo of his rights and credits, and j.'ro'n'.rtyf 
how and to whom, and for what considcnution, and when ya\mH, etc 
ho disposed of, assigncnl or tranyferrod tho same, or any part 
^^^horeof, except such part has \wnni really ami bona fide hefore 
sold or disposed of in tho way of his trade or business, or 
laid out in ordinaiy family or household expenses, and fully, 
clearly and truly state tho causes to which his insolvency is 
owing ; or shall not deliver up to tho Assignee all such part 
^thereof iis is in his possession, custody or })0wer, (exce[)t 
such i)art thereof as is exempt from seizure as horeinbeforo 
provided), and also all books, papers and writings in his 
possession, custody or power relating to his property or 
affairs ; 
As to what property exempted from seizure see ante, section 16. 

If, within thirty days prior to the demand of a deed of Removing 
assignment, or the issue of a writ of attachment nnder this 
Act, ho doth, with intent to defraud his creditors, remove, 
conceal or embezzle any part of his property, to tho value of 
fifty dollars or u[)wards ; 

If, in case of any person having to his knowledge or belief Not dcnotin- 
provod a false debt against his estate, he fails to disclose tho claims. 
same to his Assignee within one month after coming to tho 
knowledge or belief thereof ; 

If, with intent to defraud, he wilfully and fraudulently False 
omits from his schedule any effects or property whatsoever ; 

If, with intent to conceal the state of his affxirs, or to withholding * 
defeat the object of this Act, or of any part thereof, he con- ° ' 
ceals, or prevents, or withholds the pi-oduction of any book, 
deed, paper or writing relating to his property, dealings or 
affairs ; 




1^4 




FAiHifyiiig 

buukn. 



Htatiiig 

nctitioua 

loiseii. 



Di.simHing of 
gooUrt not 
paid fur. 



Offences 
iiguinst this 
Act, Ikow 
tried. 



Creditors 

taking con- 
riidenttiun 
for i^rauting 
Uisutiurge, 
«tc. 



INBOI.VRNT ACT OP 1876. 

If, with iiitont tu concoal tho Htuto of liLs iiiruira, or to 
tlofeiit till' ol>j(<ct of the prosout Ant, or of any pint thereof, 
lio parts with, coiiciuiIh, destroys, alters, mutilutoH, or falsitioH, 
or CJIUH08 to bo concealed, ilestroyird, altered, miitiliitiul, or 
falsilictl, any book, palter, writing or security, or dociunont 
relatinj,' to his [»roperty, trade, (K'aiin;,'s or allairs, or luake.s, 
or is privy to tht; making of any false or fraiididtuit entry 
or Htatenient in or omission from any book, paper, doisutuent 
or writing relating thereto ; 

If, at his examination at any tinin, or at any meeting of 
Iiis creditors held under tiiis Act, he attempts to account for 
tho non-production or absonco of any of his property by 
fictitious lo.sHcs or cxjienseb ; 

If, within the three months ne.vt preceding the demand of 
tiHsignment, or the issue of a writ of attachment in li(juida- 
tion, ho pawns, pledges, or disposes of, otherwise than in 
tho ordinary way of his trade, any ])roperty, goods or elfocts, 
tho price of which remains unpaid by liim during such three 
months. 

141. Every offence punishable under this Act shall be 
tried as other offences of tho same degree are triable in the 
Province where such offences are committed. 

14*1, If any creditor of an Insolvent, directly or indi- 
rectly, takes or receives from such Insolvent, any payment, 
gift, gratuity, or preference, or any 'promise of payment, 
gift, gratuity, or preference, as a consideration or induce- 
ment to consent to the discharge of such Insolvent, or to 
execute a deed of com})osition and discharge with him, or 
if any creditor knowingly ranks upon the estate of the 
Insolvent for a sura of money not due to him by the Insol- 
vent or by his estate, such creditor shall forfeit and pay a 
sum equal to treble the value of the payment, gift, gratuity, 
or preference so taken, received, or promised, or treble the 
amount improperly ranked for, as the case may be, and the 
same shall be recoverable by the Assignee for the benefit 
of the estate, by suit in any competent court, and when, 
recovered shall be distributed as part of the ordinary assets 
of the estate. 



DUILDIMO AND JURY FUND. 



165 



14U. If, after ii (Icnmtid in miuln f»)r tho is.su«; of ii writ 
of attiu'liiiM'iit ill Insolvency, or for an nssii^'nuient of !»!« 
OHtato uiitlcr this Act, as tlio caso may be, wlu-n such denmnd 
uhall b(5 followt^d l)y tlie issuo of a writ of attiichnunit or 
by MX ass i<,'nn lent under this Act, the Insolvent retaiiiH or 
receives any portion of liis estato or oflects, or of his uioneys, 
B0curiti(« for nuHUjy, business papors, documents, b(H)ks of 
account, or ovideuccs of debt, or any sum or sums of money, 
belonging' or duo to him, and retaijis and vithholds from 
his Assi<,'nce, without hiwful right, such portion of his estato 
or cfH^cts, or of his mouciys, securities fur money, business 
papers, docununits, books of account, evidences of del)t, sum 
or sums of money, the Assi^jncH) mny make api»licatiou to tlio 
Judije Ity summary petition, and after due uotico to th(i In- 
solvent, for an order for the delivery over to him of tho 
effects, documents, or moneys so retained ; ami in default of 
such delivery in conformity with any order to be made l)y 
tho Jud^'e upon such api)lication, such Insolvent may bo im- 
prisoiicd in tho common gaol for such time, not exceeding 
one year, as such Judge may order. 

144. The deeds of assignment and of transfer, or in the 
Province of Quebec autlientic copies therciof, or a duly 
authenticated copy of tho record of the ai)pointment of tho 
Assignee, certilied by the Clerk or Prothonotaiy of the 
Court in which such record is deposited, under the seal of 
such Court, shall bo jirhnd facie evidence in all courts, 
whether civil or criminal, of such a{)poiutment, and of the 
regularity of all proceedings at the time thereof and antece- 
dent thereto. 



Piinlitlinicnt 

of IllltolVCUt 

r<'< cIviiiK 
iiinni-y, uU'., 
ami not 
hindliiK thfi 

MIIIIIU to 

u»»lgnvc. 



Impriiion- 
ini'iit for 
ilisolx'ylng 
urdor. 



Certain 
ildcuments 

to l)« 

vidence. 



BUILDING AND JURY FUND. 

14.'>. One per centum upon all moneys proceeding from q^^^^^, 
the sale by an Assignee, under the provisions of this Act, BuVuun^ 
of any immovable property in the Province of Quebec, p"^ ■"'"'y 
shall be retained by tho Assignee out of such moneys, and Quebec, 
shall by such Assignee be paid over to the Sheriff of the 
district, or of either of the Counties of Gasp6 or Bonaven- 
ture, as the case may be, within which the immovable pro- 
perty sold shall be situate, to form part of the Building and 
Jury Fund of such Distiict or County. 






166 



INSOLVENT ACT OP 1876, 



Governor in I4(J, The Governor in Council shall have all the powers 
Jiavi! ('ortain With respcct to imposing a tax or duty upon proceedings 
under this Act, which are conferred upon the Governor in 
(Council by the tliirty-second and thirty-third sections of the 
one hundred and ninth chapter of the Consolidated Statutes 
for Lower Canada, and by the Act intituled, An Act to make 
provision for the erection or repair of Court Houses and 
Gaols at certain places in Lower Canada (12 Vic, cap. 112). 



Provisions 
for lnoor- 
porateil 
i!.'()iii[)iinics. 



PROCEDURE IN THE CASE OF INCORPORATED COMPANIES. 

147. The provisions of this Act shall apply to tho estates 
of Incorporated Companies not specially excepted in the 
first section of this Act, subject to the following modi- 
fications : 

Although the language of this provision is that the Act shall apply to incor- 
porated companies not specially excepted in the first secticm of the Act, it must 
be restricted by the general expression in that section that only trading com- 
panies come within the Act. The definitions ni the first section of occupations 
that constitute indivicbial traders apply equally to companies ; it is quite clear, 
therefore, that manufacturing and mining companies are subject to the provisions 
of the Act. Under the English Act of 18(J2 a company could be wound up by 
the Court of Chancery at the instance of either its creditors or contributories, 
while only creditors can initiate proceedings under this Act ; although when 
steps are once commenced against them, the company may assign to an official 
assignee (see below, sub-sec. 15). It has been held in England that a company 
cannot be wound up on the petition of a creditor whose debt was di^sputed ( The 
CdthoUc PiiMishiiuf Co. Limited, 12 W. R. 538 ; see also Be Hope Mutual Life 
Assurance Co., I N. R. 542). And where the petitioner has been out of the 
jurisdiction, he has been ordered to give security for costs [Re Royal Bank of 
Australia, Ex parte Latta, 3 DeG. & S. 186). 

(1.) No writ of attachment shall issue against the estate 
of an Incorporated Company except upon the order of the 
Judge and sifter notice of at least forty-eight hours has been 
given to such Company of the application for such writ. 
The Judge in all cases where proceedings have been adopted 
under this Act against an Incorporated Company, may before 
granting a writ of attachment, order the Official Assignee 
to inquire into the affairs of the Company, and to report 
thereon within a period not exceeding ten days from the 
date of such order. ,. 

(2.) Upon such order it shall be the duty of such Company 
and of the President, Directors, Managers, and Employees 
thereof, and of every other person having possession or 
knowledge thereof, to exhibit to the Official Assignee, or to 
his Deputy, the books of account together with all inven- 



Preliininary 
notice. 



Inquiry by 
Assignee. 



Company 
to exhibit 
boolcs, &c. 



INCORPORATED COMPANIES. 

tories, papers, and vouchers referring to the business of the 
Company, or of any other person, and generally to give all 
such information as may be required by the Official Assignee 
to form a just estimate of the affairs of the said Company; 
and any refusal on the part of said President, Directors, 
Managers, or Employees of the Company to give such infor- 
mation shall, on evidence of such refusal, be considered as a 
contempt of an order of the Court or Judge, and punishable 
by fine or imprisonment, or by both, at the discretion of 
the Judge. 

(8.) From the time the above order is served upon the Com- 
pany, the President, Directors, Managers, and Employees 
thereof, and all other persons having the control or posses- 
sion of its affairs or property, shall hold the estate and pro- 
perty of the said Company upon trust for the creditors of 
the said Company, and shall be bound to account for all the 
property of the said Company under the same obligations, 
liabilities and responsibilities as trustees appointed by Courts 
of Law or Equity in the several Provinces, or as Guardians 
and Sequestrators in the Province of Quebec, are bound : 

(4.) Upon the report of the Official Assignee, or before 
any order is given for the examination into the affiiirs of 
the Company, as herein provided, the Judge may order that 
a meeting of the creditors be called and held in the manner 
provided for by this Act for the first meeting of creditors, 
at which meeting the creditors present, who shall verify 
their claims under oath, may pass such resolutions either for 
the winding up of the affairs of the Company or for allowing 
the business thereof to be carried on, as they may deem 
most advantageous to the creditors, and may also appoint 
two Inspectors and indicate the mode in which the business 
of the Company should be wound up or should be continued : 

(5.) The resolutions so adopted shall be submitted to the 
Judge at the time and place appointed at the meeting, and 
at least forty-eight hours notice shall be given by the Official 
Assignee to the Company of the time and place so fixed : 

(6.) The Judge, after hearing such creditors as may be 
present, the Assignee and the Company, may confirm, reject, 
or modify the said resolutions, and he may order the imme- 



157 



li 



Refusal to 
be conteiiiiit 
of Court. 



Aftftrservicfl 
of order 
Company 
to hold 
property 
in trust. 



Meeting of 
creditors 
may be 
called. 



Resolution* 
thereat. 



To be sub- 
mitted to 
Judge. 



Powers to 
Judge in 
relation 
thereto. 



i ■ 



hi i I 



1 



•• ♦ *» 






I 1 



158 



Ordor may 
be made by 
Judge. 



Kecciver 
may bo 
appointed. 



To render 
account. 



INSOLVENT ACT OF 1875. 

diate is.sne of a writ of attachment to attach the estate of 
the Company, or direct that the issue of such writ shall be 
suspended for a period not exceeding six months, during 
which period he may order that the Official Assignee, or the 
Inspectors (if any have been appointed by the creditors), 
shall exercise a general supervision over the estate and busi- 
ness of the said Company by requiring from the President, 
Directors, Managers and Employees of the Company, such 
periodical accounts and statements of the business done, and 
of the moneys received and expended or disbursed since the 
last statement, as may be required by the said Inspectors or 
the said Official Assignee, to obtain a proper knowledge of 
the affairs of the Company : 

(7.) The Judge may also, if he deems it for the advan- 
tage of the creditors, appoint a Recoiver, charged with such 
duties as to the superintendence or management of the 
affairs of the Company as may be imposed upon him by the 
order of the J\idge, and who shall also assume and be in- 
vested with all the powers vested in the Directors and Stock- 
holders respecting the calling in and collecting of the un- 
paid stock of the Company, and subject to such orders and 
directions as he may from time to time receive from the 
Judge : 

(8.) Such Receiver shall account, whenever ordered by 
the Court or Judge, for all moneys or property he may have 
received from the estate : 



It would seem to be competent for the Judge to appoint a receiver without 
requiring security for the due performance of his duties and accounting for 
moneys he may receive ; yet it is not probable that a Judge would thus plaoe 
the property of an estate in jeopardy. 

(9.) Before the expiration of the six months next after 
such order, the Official Assignee or the Receiver, as the case 
may be, shall cause another meeting of the creditors to be 
called : 

(10.) On the resolutions adopted at such meeting the 
Judge may either grant a further delay, not exceeding six 
months, or cause a writ of attachment to issue at the in- 
stance of any creditor or creditors. 

If demands (li-) If ^^ tl^s expiration of such prolonged delay the 
tied estate* demands made upon the Company to place it in liquidation 



Further 
meeting 
within six 
mouths. 



Further 
delay may 
bo granted. 



1 



m^ 



GENERAL PROVIStONS. 



159 



have not been satisfied, the Jutl<:'e shall order the issue of a of Company 
writ of attachment ; and the estate of the said Company wound up. 
shall be wound up under the provisions of this Act, unless 
the creditor or creditors entitled to such writ shall consent 
to a further delay : 

(12.) Nothing in this section shall prevent the Judge, Judge may 
before the exi)iration of the delays he may have granted orders. 
under the preceding sub-sections, from cancelling the orders 
so given by him, and from ordering the issue of a writ of 
attfichment, or from releasing the Company from the effect 
of any such order, as circumstances may require : 

(13.) The President, Directoi's, Managers, or other officers officers of 
or Employees of the Company, and any other person, may may be 
be examined by the Assignee or by the Judge on the affairs 
of the Company, and each of them shall, for refusal to an- 
swer questions put in reference to the business within his 
own cognizance, be liable to the same penalties as ordinary 
traders refusing to answer questions put under the provi- 
sions of this Act : 

(14.) The remuneration of the Official Assignee and of Remunera- 
the Receiver for services performed under the preceding glgnee and 
sub-sections shall be fixed by the Judge. Receiver. 

(15.) Nothing in the preceding sub-sections shall prevent company 
the President, Directors, Managers or Employees of the aTassIgn^ 
Company, on being duly authorized to that effect, from jng'deYay. 
making an assignment of the estate of such Company to an 
Official Assignee in the form provided for by this Act, 
before the expiration of the delays which may have been 
granted to such Company by the Court or Judge. 

The provisions of this Act give remedies to the creditors of companies whereby 
they may share equally in the assets in case of insolvency. It would seem also 
that a company may effect valid compositions under sec. 49 and the following 
sections. A discharge may also be obtained by a company, for what it is worth, 
under sec. 64 ; but no machineiy is provided for dissolving the company and 
putting an end to its corporate existence. 



M ; 



H 



GENERAL PROVISIONS. 
148, The foregoing provisions of this Act shall come commence- 
into force and take effect \ipon, from, and after the first day "orego^L 
of September, in the present year 1875, and not before, provisions. 



160 



INSOLVENT ACT OP 1876. 



Insolvent 
Acts of 1864 
and 1809, 
(ind Acts 
amending 
them unci 
AetH of U C. 
and P. . I. 
continuea 
to Ist Sept. 
and then 
itipealed ; 
saving eer- 
tiiin pro- 
ceedings 
und mutters. 



except in so far as relates to the appointment of Official 
Assignees, and the making and framing of rules, orders and 
forms, to be followed and observed in proceedings vmder 
this Act, with respect to which the said provisions shall be 
in force from the time of the passing of this Act. 

149. The Insolvent Act of 1864, and the Act to amend 
the same passed by the Parliament of the late Province of 
Canada in the twenty-ninth year of Her Majesty's Reign, 
" The Insolvent Act of 18G9," the Act amending the same 
passed in the thirty-third year of Her Majesty's Reign, and 
the Act amending the same passed in the thirty-fourth year 
of Her Majesty's Reign, and the Act passed in the thii'ty- 
seventh year of Her Majesty's reign continuing the same, 
the Act passed by the Legislature of Prince Edward Island 
in the thirty-first year of Her Majesty's reign, chaptered 
fifteen, intituled " An Act for the relief of unfortunate 
debtors," and the several Acts aniending and continuing the 
same which are in force in the said Province of Prince 
Edward Island, which are mentioned in and continued by 
the last mentioned Act passed in the thirty-seventh year of 
Her Majesty's Reign, the Act of the Legislature of the 
Colony of Vancouver Island, passed in the year 18G2, and 
intituled : " An Act to declare the law relative to Bank- 
ruptcy and Insolvency in Vancouver Island and its depen- 
dencies," and the Act of the Legislature of the Colony of 
British Columbia, passed in the year 1865, and intituled 
*' An Ordinance to amend the law relative to Bankruptcy 
and Insolvency in British Columbia," and all Acts of the 
said Legislatures, or either of them, amending the same, are 
hereby continued in force to the first day of September in 
the present year 1875, after which date the same shall be 
repealed, except so far as regards proceedings commenced 
and then pending thereunder, and also as regards all con- 
tracts, acts, matters and things made and done before such 
repeal, to which the said Acts or any of the provisions 
thereof would have applied if not so repealed, and especially 
such as are contrary to the pi'ovisions of the said Acts, 
having reference to fraud and fraudulent preferences, and to 
the enregistration of marriage contracts within the Province 



GENERAL PROVISIONS. 



IGl 



of Quebec ; and as to all such contiacts, acts, matters and 
tilings, the provisions of the said Act shall remain in force, 
and shall be acted iipon as if this Act had never been 
passed : Provided always, that as respects matters of pro- 
cedure merely, the pi-ovisions of this Act shall, upon and 
after the said first day of September, in the present year 
1875, supersede those of the said Acts even in cases com- 
menced and then pending, except cases pending before any 
Official Assignee, in his judicial capacity : And all securities 
given under the said Acts shall remain valid, and may be 
enforced, in respect of all matters and things falling within 
their terms, whether on, before, or after the day last afore- 
said ; and especially all securities theretofore given by Official 
Assignees shall serve and avail hereafter as if given under 
this Act. All other Acts and parts of Acts now in force 
in any of the Pi-ovinces to which this Act applies, which 
are inconsistent with the provisions of this Act, are hereby 
repealed. 

150* The foregoing provisions of this Act shall apply to 
each and every the Provinces in the Dominion of Canada. 

151. The provisions of The Insolvent Act of 18G9, ap- 
plied by Schedule A of the Act thirty-fourth Victoria, 
chapter thirteen, to Insolvents resident in the Province of 
Manitoba, shall continue to apply to such Insolvents, in the 
case of composition and discharge mentioned in the said 
provisions, until the said first day of September, 1875, until 
which day the said provisions are hereby continued in force 
for that piu'pose, and upon, from and after the said day tlie 
same shall be repealed, subject to the like exceptions and 
provisions as are made in the next preceding section but 
one, as to the Acts and laws repealed by the said section ; 
and in the provisions so continued in force " The Court " 
shall mean the Court of Queen's Bench of Manitoba, and 
" The Judge " shall mean the Chief Justice or one of the 
Puisne Judges of the said Court. 

153. This Act shall be known and may be cited as 

'' The Insolvent Act of 1875." 



Proviso. 
I'nicoilure 
unilrr this 
Act to ajiply 
and stt]i(:r- 
sedf! that 
iiiid«!r said 
Attn. 

Sccnritit'H 
to remain 
valid. 



Inoonsifit- 
ent Acts 
repealed. 



Act to apply 
to all the 
Provinces of 
Canada. 

Certain jiro- 
visions of 
32-:W Vict, 
c. 16 to 
apply to 
Manitoba 
until Ist 
Sept., 1875. 



"Court" and 
" Judge" 
what to 
mean. 



Short title. 



;:!tll!l; 



'I ; 




'^ma 



jm 






APPENDIX OF FORMS. 



To {name 



[DEMAND TO ASSIGN.] 

FORM A.— (FirfeSEC. 4.) 
Insolvent Act of 1S75. 
residence and description of Insolvent). 



You are hereby required, to wit, by A. B., a creditor for the sum of 

$ {descrihe in a summary manner the nature of the debt), and by 

C. D., a creditor, etc., to make an assignment of your estate and effects 
under the above-mentioned Act, for the benefit of your creditors. 

Place date 

Signature of Creditor or Creditors. 



[AFFIDAVIT FOR WRIT OF ATTACHMENT.] 

FORM B.— (FtJeSEC. 9.) 
Insolvent Act of 1S75, 

Canada, Province op District of 

A. B. {name, residence, and description,) 



Plaintiff, 



«». 



0. D. 



I, A. B. 



— [name, residence, and description,) 

Defendant. 

{name, residence, and description,) being duly sworn, 



depose and say : 

1. I am the Plaintiff in this cause {or one of tho Plaintiffs, or the clerk, 
or the agent of the Plaintiff in this cause duly authorised for the purposes 
thereof. ) 

2. The Defendant is indebted to me {or to the Plaintiff, or as the case 

may he, ) in the sum of dollars currency, for {state concisely 

and clearly the nature of the debt.) ■■-■-:■ ■ >• 

3. To the best of my knowledge and belief the Defendant is Insolvent 
within the meaning of the Insolvent Act of 1875, and has rendered himself 
liable to have his estate placed in liquidation under the said Act ; ana my 



if; 



164 



INSOLVRNT ACT OF 1875. 



reasons for so believing aro as follows: {state concisely the facta relied 
upon (18 rendering the debtor Insolvent, and aa anhjccting his estate to he 
placed in liquidation.) 

4. I do not act in this matter in collusion with the Defendant, nor to 
procure him any undue advantage against his creditors. 

And I have signed; (or I declare that I cannot sign.) 

Sworn before me this day of 187 . 

(And if the deponent cannot sign, add) — the foregoing afHdavlt having 
been first read over by me to the deponent. 



[WRIT OF ATTACHMENT.] 

FORM C— ( Vide Sec. 9.) 
Imolvcnt Act of tS75. 
Canada, Province op District of 

No. 

Victoria, lij the Grace of God, of the United Kingdom of Great Britain 
and Ireland, Queen, Defender of the Faith. 

To the Official Assignee of the County [or Judicial District, or Electoral 
District, aa the case may he) of Greeting : 

We command you, at the instance of to attach the estate and 

eifects, moneys and securities for money, vouchers, and all the office and 

business papers and documents of every kind and nature whatsoever, 

of and belonging to if the same shall be found in (name of district 

or other territorial jurisdiction) and the same so attached, safely to hold, 
keep, and detain in your charge and custody, until the attachment thereof 
which shall be so made under and by virtue of this writ, shall be determined 
in due course of law. 

We command you also to summon the said to be and appear 

before Us, in our Court for at in the County (or District) 

of on the day of to show cause, if any he hath, why 

his estate should not be placed in liquidation under the Insolvent Act of 
1875, and further to do and receive what, in our said Court before Us, 
in this behalf shall be considered ; and in what manner you shall have 
executed this Writ, then and there certify unto us with your doings thereon, 
and every of them, and have you then and there also this Writ. 

In Witness whereof, we have caused the Seal of our said Court to be 

hereunto affixed, at aforesaid this day of in 

the year of our Lord one thousand eight hundred and seventy in 

the year of our Reign. 



APPENDIX OF F0UM8. 



165 



[NOTICE OF IHSUE OF ATTACHMENT.] 



B'OUM J).— {Vide Sec. n.) 
IiiHulvent Act of lS7o. 



A writ of attachment has issued in this cause. 
Place date • 



A. B., Plaintiff. 
C. D., Defendant. 



(Si ff nature.) 

Official Assignee. 



[ASSIGNMENT.] 

FORM E.— ( Vide Sec. 15.) 

Insolvent Act of 1875. 

This assignment, made between of the first part, and 

the second part, witnesses: 



of 



On this 



(or) 
day of before the undersigned Notaries 



came 



and appeared 



of the first part, and 



of the second part, which 



said parties declared to us Notaries : 

That under the provisions of "The Insolvent Act of 1875" the said party 
of the first part, being insolvent, has assigned and hereby does assign to 
the said party of the second part, accepting thereof as Assignee under the 
said Act, and for the purposes therein provided, all his estate and effects, 
real and personal, of every nature and kind whatsoever. 

To have and to hold to the party of the second part as Assignee for the 
purposes and under the Act aforesaid. 

In Witness whereof, etc. 

(or) 

Done and passed, etc. 



I if I' 



I!i 



'ill 



? 



w 1 



i 



; 



.! 






Ill 






1C6 



INSOLVENT ACT OF 1875. 



[SCHEDULE OF CREDITOKS.] 
FORM F.— ( Vide Sec. 17.) 
IiiMulmit Aft of 1S75. 
In the matter of A. B., an Insolvent. 

Seheihile of Crcditora. 



1. 



t Liabiliticfl. 



TOTAL. 



NAME, 



REHIDCNCK. 



NATURE or DEBT. 



AMOUNT. 



2. Indirect liabilities maturing before the day fixed for 
the fir.st niectinj; of creditors. 



NAME. 



RESIDENCE. 



NATURE or DEBT. 



AMOUNT. 



8. Indirect liabilities, maturing after the day fixed for 
the tirst meeting of creditors. 



NAME. 



RESIDENCE. 



NATURE OF DEBT. 



AMOUNT. 



4. Negotiable paper, the holders of which are unknown. 



DATE. 



NAME 
OF MAKER. 



NAMES LIABLE 
TO INSOLVENT. 



WHEN DUL". 



AMOUNT. 



APPENDIX OF FORMS. 



167 



[OFFICIAL ASSIGNEE'S NOTICE OF MEETINCJ] 

FORM a.— (FiJc Skc. 20.) 
Jimulvent Act of 1S75. 
In the matter of an Insolvent. 

The Insolvent has made ...» assignment of his estate to mo, {or, a writ of 
ftttachmcnt has been issued in thiit cause), and the Creditors are notified to 

moot at in on — the day of — — at 

o'clock " to receive statements of his affairs, and to appoint an 

Assignee if they see fit. 

{Date and reaidence of Aaaignee.) 

{Signature.) 

Assignee. 

{The following is to he added to the notices sent hi/ post.) 

The Creditors holding direct claims and indirect claims for one hundred 
dollars each and upwards, are as follows : (names of Creditors and amount 
due) and the aggregate of claims under one hundred dollars is $ ■ 

Date 

{Signature.) 



[TRANSFER TO CREDITORS' ASSIGNEE.] 



FORM H.— ( Vide Sec. 30.) 
Insolvent Act of 1S75, 



In the matter of A. B., 



an Insolvent. 



This deed of release {or transfer) made under the provisions of the said 
Act, between (C. D.,) — — Assignee to the estate of the said Insolvent, 
of the first part ; and (E. F.,) of the second part, witnesseth : 

That whereas by a resolution of the Creditors of the Insolvent, duly 

passed at a meeting thereof duly called and held at on the 

day of the said party of the second part was duly appointed As- 
signee to the estate of the said Insolvent : Now, therefore, those presents 
witness that the said party of the first part, in his said capacity, hereby 
releases {or transfers) to the said party of the second part the estate and 
effects of the said Insolvent, in conformity with the provisions of the said 
Act, and for the purposes therein provided. 

In witness whereof, &c. 

{This form may he adapted in the Province of Quebec to the notarial 
form of execution of document* prevailing there.) 



\ 1 



II 



168 



INSOLVENT ACT OF 1876. 




...r 



lABBlGNEEVS NOTIOK OF APPOINTMENT.] 

FORM I.— ( Vide Sec. 31.) 
JniiolmU Art of 1S75. 
In the matter of A. B. (or A. B. & Co.) an Insolvent. 

I, the unilcrsigncd, {name and residence^) have haa^ nppointc<i Assignee 
in this matter. 

Creditors are requested to file their claims before me within one month. 

Place date —— 

(Signature.) 

Assignee. 



[NOTICE OF APPLICATION FOR CONFIRMATION OF 

DISCHARGE.] 

FORM J.— (Ft Jc Sec. 53.) 
Insolvent Act of 1S75, 
Canada, Pkovince op District (or Cotuity) of 



In the [name of Court) 
an Insolvent. 



In the matter of A. B. {or A. B. & Co.), 



The undersigned has filed in the office of this Court a consent by his 
Creditors to his discharge (or a deed of composition and discharge executed 

b}' his Creditors), and on the day of next, he will apply 

to the said Court [or to the Judge of the said Court, aa the case may he) 
for a confirmation of the discharge thereby effected. 

Place date 

[Signature of Insolvent^ or of hi$ Attorney ad litem.) 



[AFFIDAVIT ON APPLICATION FOR CON J? IRMATION 

OF DISCHARGE.] 



In the matter of 
I, A. B., of — 



FORM K.—( Flic Sec. 55.) 

Insolveni Act of 1875. t ; • 

— A. B. an Insolvent. 

an Insolvent, now making application to the 



for a confirmation of my discharge [or of my deed of composition and dis- 
charge), being duly sworn, depose and say : 



APPENDIX OP FORMS. 



IG!) 



Tliat no ono of my Creditors who has signed the said discharge (or the 
said deed of composition and discharge) has been induced so to do by any 
payment, promise of payment, or advantage whatsoever, made, Hccured, or 
promised to him by me or, witli my knowledge, by any person on my 
behalf 

And I have signed. 

Sworn before me at this day of 187 



[NOTICE OF APPLICATION FOR DISCHARGE.] 

FORM L.— { Vide Sec. 64.) 
Inaulccnt Act of 1875. 
— District {or County) of 



Canada, Province of — 

In the [name of Court) 
— an Insolvent. 



-. In the matter of A. B. (or A. B. L Co.), 



On 



the 



day of 



next, the undersigned will appl}' 



to the said Court [or the Judge of the said Court, as the case may &c), for 
a discharge under the said Act. 

Place date 

(Signature of the Insolvent, or of hi% Attorney ad litem.) 



[BILL OF SALE OF DEBT BY ASSIGNEE.] 

. FORM M.— ( Vide Sec. 69.) 
Insolvent Act of 1875. 



In the matter of 



A. B., an Insolvent. 

- whereof quit ; C. D., Assignt 



In consideration of the sum oi %- 
the Insolvent, in that capacity hereby sells and assigns to E. F. accepting, 
thereof, all claim by the Insolvent against G. H., of (describing the Debtor) 
•with the evidences of debt and securities thereto appertaining, but without 
any warranty of any kind or nature whatsoever. , . , •. ,,„ 

C. D., Assignee. - 
E. F. 



:lt 



; 



170 



INSOLVENT ACT OF 1875. 






[DKEJJ (JF HEAL ESTATE FROM ASSIGNEE.] 

FOIIM N.— ( Vide Sec. 7G.) 

InHoUnnt Act of iHtlJ. 

Thi.s deed, made under the provisions of the [nsolvent Act of 1875, the 

day of «to., belwecn A. IJ., of &c., in his capacity of 

■, an Insolvent, under u deed of 
at in and 



Assignee of the estate and effects of 

as.'^igninerit executed on the day of 

of a release made and executed on the — 



(or under an oidcr of the Judge made at 
of ) of the one {)art, and C. I)., of — 



day of 



\\\ 



on tho 



day 



— &c,, of tho other part, 
witnesseth : That he, the said A. IJ., in his said capacity, hath caused the 
sale of the real estate hereinafter mentioned, to bo advertised as required 
by law, and hath adjudged {or and liath odered for sale pursuant to such 
advertisement, but tho bidding therefor being insufllcient did withdraw the 
same from such sale, and hath since by authority of the Creditors agreed 
to sell), and doth hereby grant, bargain, sell, and confirm tho same, to 
wit: unto the said 0. I)., his heirs and assigns for ever, all {ia Ontario, 
Nova Scotia and New JJrunawic/c, Manit'jba and British Ooluinhia, insert 
"the rights and interests of the Insolvent in") that certain lot of land, &c., 
{insert here a description of the property sold) : To have and to hold tho 
same, with the appurtenances thereof, unto tho said C. D., his heirs and 
assigns for ever. The said sale is so made for and in consideration of the 

sum of $ in hand paid by the said C. D. to tho said A. B., the 

receipt whereof is hereby acknowledged {or of which tho said C. D. hath 

paid to the said A. B. the sum of , the receipt whereof is hereby 

acknowledged, and the ba'-,ncc, or sum of $ tho said C. D. here' j 

promises to pay to the said A. B., in his said capacity, as follows, to wit — 

{here state the terms of paymeiit) — tho whole with interest payable 

and as security for the paymcnls so to bo made, the said C. 1>. hereby 
specially mortgages and hypothecates to and in favour of tho said A,B., in 
his said capacity, the lot of land and premises hereby sold. 

In witness, &c. 



A. B. 

C. D. 



[I..S.1 
|L.S.j 



Signed, scaled, and delivered 
in the presence of E. F. 

{Thii form shall be adapted in the Province of QaeJ/ec to the notarial 
form of execution of documents prevailing there.) 



fmmf^ 



APPENDIX Of FORMS. 



171 



I' 



In the matter of 



[N(ynCE OF DIVIDEND.] 

FORM 0.— ( Vide Sec. 92.) 

Imulvcnt Ad of 1875. 

A. B. [or A. B. & Co.), 



— an InHolvcnt. 

A dividend sheet has been prepared, open to objection, until the 

Jay of after which dividend will be paid. 

Place date 

{Signature of Assignee.) 



In the matter of 
Claimant. 



[AFFIDAVIT PllOVlNG CLAIM.] 

FORM ?.—[Vide Sec. 104.) 
Iiutolve.nt Act of 1S75. 
A. C, an Insolvent, and 



CD., 



being duly sworn in 



depose and say : 



I, 0. D., of — 

1. I am the claimant {or^ the duly authorized agent of the claimant in 
this behalf, and have a personal knowledge of the matter hereinafter 

deposed to, or a member of the firm of claunants in the matter, and 

the said firm is composed of myself and of E. F.) 

2. The Insolvent is indebted to mo (or to the claimant) in the sum of 

dollars, for [here state the nature and particulars of the 

claim, for which purpose reference may also be made to accounts or docu- 
ments annexed.) " 

3. I {or the claimant) hold no security for the claim, {or I or the claimant 
hold the following, and no other, security for the claim, namely : state the 
particulars of the security.) 

To the best of my knowledge and belief, the security is of the value of 

dollars. 

Sworn before me at ■■ this day of 

And I have signed. 



H 




m 




.i'fiii 



rilACTICAL FORMS 



FORM I. 

DEKD OF COMPOSITION AND DISCIfAIUiK (Secs. 49 & 52). 

JriHolocril Act <if JH75. 
This Indenture made the day of one thousand ciglit huudiod 



and 

Between A. H., of etc. (hereinafter called tlie Insolvent), of 'J'he FirHt 
I'art, and the Hcveral personH, firms and (;orporationH who arc (Jreditors of tlie 
Inwolvent, (liereinafter called tlie < Iniditors), of the Part. 

WhereaH the Haiil InHolveiit is unahle to pay his liahilitieH in full, and hi.s 
(JreditorH liave agreed with him for a composition ami diwcharge upon the 
terms and in manner hereinafter mentioned, and under the provisions of the 
Insolvent Act of 187.'> ; and wiicrcas the said insolvent has agreed to secure 
the payments of his Creditors hereinafter mentioned hy (itt out the. nature of 
t/ui ticxuritica offirtd). 

Now, therefore, this Indenture witncsseth that in consideration of his 
indehtedness and of the discharge hereby given, the said Inscdvent covenants 
and agrees witli all his Creditors, collectively and severally, that he will pay 

to them, and each of thorn respectively, a composition of cents in the 

dollar of their respective claims against him in manner and at the times 

following, that is to say : cents in the drdlar in aiontliH from the 

day of 187 ; cents in the dollar in months frojii said 

date, etc.. etc. And that he will give to each of them his promissory notes 
for Buch composition payments secured hy (as tht case may be,), such notes to 

bear date on the said ■ — — day of 187 , and to be payable according 

to the; times of said respective composition payments, and the said Insolvent 
further covenants and agrees to pay forthwith upon confirmation hereof all 
costs, charges and expenses connected with the proceedings in Insolvency 
respecting his estate, and inclusive of t'te cusfis of this deed and of confirming 
the composition and discliarge hereby eti'ected (iududbuj tht cohIh of the, HoLlcilor 
for tlie AiiHhjme as hitwatii Solicitor and Client in connection with aaid jtrocecdinyii, 
and the Aii»iifnee'n remuneration.) 

And in consideration of the said composition payments so to be made, and 
of the said security so to be given, the said (Jreditors do, and each of them 
doth, release and discharge unto the said Insolvent all their resjicctive claims 
against him. And the said Creditors do hereby direct and .authorize the 
Assignee of the estate of the said Insolvent to deliver up and convey to the 
8»'d Insolvent all his estate and ell'ects upon this Deed of Composition and 



PRACTICAL FORMS. 



173 



JJiHcli.ir^c lioin^ oxccutod l)y a inrijority in niuiilMir of thn C'roditorH of Uk; Haid 
liiHolvciit wln» liavo proved claiiiiH to tlic anioiiiit of <in(; liuiidrcd dollarn and 
upwanlH, and wlio rcjtrosont at loist tliroo-fourths in valiio of all tlic rlainiB of 
one hundr(!d dollarH and u[twar<l.s, which havu luien ho provcfl. 

And it i.4 declared and ii^rccd that tiiin l)(!cd of (!oinpoHition and DiHoliarj^o 
is mailc in piirHiiancc of th(! Insolvent Act of \Hli>, and may hi; conliimtid 
tliuruund(3r ; and alno that thu Hamo uhall lie inclFootual unloHH and initil tho 
Hame Hhall l)o cxccnted hy tho aforenaiil projiortionH in nunilier and value of 
the Haid Clrcditors of tho Haid InHolvciit. 

In witnoaH where(jf tho Haiti parties havo hereunto Hot their hands and 
ScalH. 

Signed, Hcalcd and <lolivered hy each party licroto 

in the jircHonce of tho witness whoso name iH set 

opposite to each signature respectively. 
Witness : 1 rr a i 

[L.H.] 
[L.H.] 

[us.l 



FORM IT. 
BOND OF A SURETY TO SECURE COMPOSITION. 



Know all men hy these Presents tliat T of etc., (hereinafter called 

tho Ohligor), am held and lirndy bound unto of etc., Assignee under 

the Ins(dvent Act of 187'), of the estate and efFccts of A. B., of etc., au 

Insolvent, (lienMiiafter called the yNssignce), in the penal sum of dollars 

of lawfid money of (!aiiada to he paid to tlie Assignee, his certain Attorney, 
Executors, Administrators and Assigns, for which jiayment, well and truly to 
be made, 1 l)ind myself llrirdy by these presents. Sealetl with my seal, and 
dated the — day of one thousand eiglit hundred and 

Whereas the said A. R. {/Ju: Jiinolnnl), is uiuible to pay his lial)iliti(!S in full, 
and his Creditors have agreed with him for a Composition and Disciiarge under 
the provisions of said Act. 

And whereas tho said A. 1$. has ])y J)oed of Composition and Discharge, 

bearing date tlio day of covonaated and agreed with all hiH 

(Jreditors, collectively and severally, among other things, that he would pay 

to them and each of them respectively a composition of cents in tho 

d(»llar of their respective claims against him in manner and at tho times follow- 
ing, that is to say, cents in tho dollar in months from tho 

day of 187 ; cents in the (h)llar in months from said 

date, etc., etc. ; and whereas tho said A. B. has agreed to give to each of his 
Creditors his promissory notes for sucIj composition payments, secured by the 
endorsement of the Obligor, and to he <leposited with tho Assignee within 
days after the said day of 187 . 



5 , 



174 



INSOLVENT ACT OP 187S. 



} 



i! i 



1, 



And whoroaH tho Oldigrtr 1i,i« nfrrt'oA to nccMrc. tin; H.'vi<l oompoHition payments 
by (jndorHJng tli<; wiid pmmiHHory notes of tin; Haid A. IJ. to each of hin (.'rcditorB 
for fluoli compoHition paymoiitH, and tluR Bond Ih given to Hocure tho diicpcr- 
fornianco l)y the Haul A. H., on l»ifl i)art, of all and every the covenants 
proniiHCH and conditionH containcid in the Haid Deed of ('onipoHition air' DiH- 
charge h«;i(:inl)ofor(! in part recited. 

Now the cftndition of thin obligation is Hueh that if tho Haifl A. B. do, on or 

before tlie Raid <lay of — ■ deponit with the Haid AsHignee, or his; nnc- 

ooHHor in tiie inanagerncnt of the said estate, his proiriisHory notes for such 
conijiosition j)aynientK, en<lorHed by tlu! Obligor, and do pay forthwith upon 
eonlirination of said Deed, all costs, charges, and expenses connected with the 
proceedings in insolvency reHjHicting his estate, and inclusive of tho costs of 
the said Deed, ami of confirming the (/(imposition and Discharge thereby 
cfrected, {liirliit/liuj till, l/ic cohIh of Ihi', Hiilic'dor for tho. AHuii/ncc, uh Itetiuccn 
Sulicilor aiul Cllu'iit In conn/rfion nntli, milii jyrocccdhit/H, and, the. Ansiynce's 
remuncralioTi,) and do in all other respects duly perform all and every the 
terms and corxlitions contained in said Deed of (JonipoHition and Discharge, 
then this ol)ligati<m to lie void, otherwise to remain in full force and edect. 

Sigued, sealed and delivered 
in proseuce of 

[i..,s.] 



rU 









I 
•tl 
i' 

|r*- i ' 



FORM III. 

ORDER CONFIRMTNO CONSKNT DISCHAROK, OR DEED OF 
COMPOSITION AND DfS(JIIAR(!E (Sfx-. 57). 

InmliJfmt Act of IS75. 

Canada. \ In the County Court of the County of 

Province of 

County of 



In the matter of 

A. B., 

An Insolvent. 

Upon hearing the applicatirm of the ahove named Ijisolvent and ui)(m read- 
ui'^ liis Petitiim for tiic Conlirmation, under the Insolvent Act of IH75, of a 
certain (Joiisent Discharge, (or, of a certain Deeil of (Composition and Dis- 
charge,) and it appearing that tho said Insolvent lias iiled in the oflice of this 
Court tile aai(i (Jonsent Discharge (or Deed of Composition and Discharge), 
duly executed by the rcrpiired proportion of his Ocditirs under the said Act 
together with the (Certificate of the Assignee under the fifty-second section of 
tho said Act annexed thereto ; and it appearing that no one of the (Creditors 
who have ^igned tli» said Consent Discharge, (or Doe<l of Composition a. id 
Discharge. ) has been iiiduced to do so by any preferential payment, promise 



"VT 



PRAf'TfCAr. FORMS. 



17r) 



of payment or a(lvatitaf>'e wliatHocvcr, made, Hecurcd or ))rf»mi«e(l to liim hy or 
oil ttuhalf of tho said [iiH()lv(;iit, and tliat the Haid Iimolvont liaH drlivorcid a 
nworn Htatciniiiit of IiIh lialiilitit-H and aHHtits an rfuniiriid hy Haid Act ; utid 
upon roadiiig IIk; iiotict; of this apj)Ii<;ation, and it app(;arin^,' that the Mann; haw 
been duly advertized and Hont to tho (yniilitors of the Haid [nsolvent pursuant 
to the Haid Act ; 

•And no one <>p])(mn^ the Hai<l aj>|)li(ratioti for ((onfirmation of Hueh Diacliargp 
(or upon h'iarinf,' wJiat was alhgctl in opi)o«ition to granting auuh confirmation 
of DiHehargc anil the evidence ad<hu;ed), 

I do order that tho Haid (>»n8ent DiHcharge (or Deed of C!oinpoHition and 
Discharge), be ami tho same iH hereby absolutely confirmed. 

Or, 
r do order that the DiHcharge of the Haiil Insolvent contained in the Haid 
(/onsent DiHcharge (or Deed of Composition ami Discharge), be and the name is 

liereby conlirmed, to take efTect only on from and after tho day of 

until wliich said la.st mentioned day tiie Haid Discharge is liereliy suspended. 

Or, 
I do order that tho Discharge of the said Disolvcnt contained in the said 
Consent Discharge (or Deed of Cf)mpo8ition and Discharge), be and the same 
is hereby confirmed ; nevertheless I hercliy declare such Discharge to be of 
tlie Second Class under tlie said Act. 

'Jlven under my Hand and tho >Seal of tlie (.'ounty Court of 

the (/'ounty of at in the (Jounty of 

on tho day of • in the year of our Lord, 18 . 

Judge of the County Court of the County of • ■ 



FORM TV. 

ORDKR OF DTSCTTAIICK, WIIKN (WANTED AFTER FATIIIATTON 
OF ONE YEAR FROM DATE OF ASS1(;NME.NT OR WRIT OF 
ATTA(;HMENT (Se(;. 04). 



Canada. 
I'rovince of — 
County of 



luHolvent Ad. of 1H75. 
In the County Court of the County of 



1 n the matter of 

A. R, 

An Insolvent. 

Upon hearing the application c»f the above-named Insolvent, and uprin read- 
ing his Petit, iu for a Disi^harge under the Insolvent Act of l87o, and the 

atiiilavits and 2)ai)ers \\\vA in this matter ; and it appearing that on the 

day of — in the year of our Lord one thousand eiglit hundred and 

the said Insidvent duly executed a Deed of Assignment under the said Act {or 



,,,. ', (! 



m 



7fi 



INSOr.VKNT ACT OF lfi7r,. 







i\i 



■u 



'lii 



ji Writ of Attiicliiiiont uixlor tliu h:uiI Act JHHiiud a^'.-iiiiHt tliu h:u<1 IiihoIvi^iiI) ; 

and it further aitpoariii;^ tliat altlutiigli morc! than ono yuar hon tshipHuil from 

the datt! of Haid A.sKij,Min)<nt, (ur tiio iHMUe of Haid Writ of Attadiniont), yet the 

said hiHolvent liiiH not ohtaiiied from tiie re(|iiired ])ro|iortion of hJH ('reditors 

a conHont to his l)iHeiiarge, or the exeeiition of a l>e(:d of ( ^oniprmition an<l 

DiHehar^u under tlie Haid Aet ; and it also a|i|MN'irin^ that tliu Haid luHolvent 

h<'iH in all resiieets conformed iiiniHclf to the pioviHions of the Haid Aet ; and 

upon reading tlie notiiMi of this a| plication, and it appearing that the same lias 

hecMi duly ailv<;itis(.'d and sent to ('rcditoi's of the said Insolvent, juii'suant to 

the Haiti Aet ; ami {if llie ./ik/j/c Ikih r<i(uiri'<l it,), upon reading the report of the 

Assignee in this matter upon the eonduet of the Hai<l Insolvent, and the state 

of his hoctks and allairs hefore and at IIk; date of his insolvency ; and no one 

opposing the saiil application lor a Discharge, ((*/• upon heaiiiig what was 

alleged in opposition to granting said Discharge and the evidence udd\ieed,) 

I do order that an alisolute and unconditional Discharge, undtsr the said 

Act, lit! and the same is hei'ehy allowed ami granted to A. J5., the saiil 

Insolvent. 

Or, 

T do (trder that a Discharge, und<!r tin; said Act, he and tlie same is hereby 
allowed and granted to A. U., the said Insolvent, to take ell'eet only on, from 

and after tlie day of until which said last nientioned day this 

Discharge iH hereby suspended. 

Or, 

I do order that a Disclrvrg(s under tin; said Act, Ik; and th<! same is hiirehy 
allowed and granted to tlu; saiil Insolvent; nevertheless, 1 herehy declare such 
Dischaige to be of the Second ('lass, umler the said Act. 

(jliven uniler my llaml and the Seal of the County Court of 

the {/'(Uinty of at in the ('ounty of 

on the day of in the year of imv Lord 18 



.ludge of the (county (Jourt of the (Jounty of 

* — 



m4 



FOT^M V. 

AFFlDAVri' \ i:i!lFYIN(J STATKMHNT OF LlAl'.f M'PIKS, {FORM F.) 
AiND STA'rFMEN'l' OF ASSETS (Skch. 17, '2:i & HO). 

fiiHolrnd A' I of IS7o. 

In the nuitter of 



'<mnty of 



A. B., 



TO WIT 



An Insidvent. 



I, A. ]{., of the ab<(ve named Insolvent, heing duly sworn, depose 

and say as foHows : 

1. The annexed Htatement now shown to me and marked with the letter 
"A" contains a true, full and correct list of my liabilitiea according to its 



PftACTICAL FORMS. 



17; 



purport, luiil correctly claHHin»!il, togotlier witli the names, a<MitioiiH mid 
rosiilciiriiH of my crcditorH, iiini tin; Hociiritics held hy thciii, in ho far iih arc 
kiiuwii to me. 

2. The imnuxed Htatemeiit now hIiowii tct mo uml marked with the letter 
"H" contaiiiH u true, full and correct Htatement of all the property and aHHets 
veHt(Ml in tln! AHsignee in thiw inatti r Ity tin: I)e<!d of AHHij^nnient {or hy the 
Writ of AttaidiiiiiMit) lutrein, an<l llic Haid .statement l.iHt named also indudea 
a full ami tr\n! account of the eauHCH to which I attrilmte my in.>iolvenoy, ami 
the delicieney of my aHmttH tu meet my liahilitieu. 

Sworn heforc me at in the ) 

County of thiH day } 

of • A.l). 187 . ' 

A (Jommisuiuner in H, U., &u. 



FOILM VI. 
(X)NTKSTATION OK CLAIM NOTICH OF OBJECTION (Snci. 9:i & 'JS). 

Imiilirul Ad of IH75. 

In the matter of 
County of ) 



TO WIT 



AND 



A. IJ., 

C. D., 
E. F., 



An Insolvent, 
Claimant, 



ContcHtant. 

Tin; Haiti Contestant herehy appears and contests tho claim of the Haifl 

claimant on the eHtate of the Haiil Insolvent, liled on or ahout the day of 

,'\.l). 187 , and says that the said ( 'laimaut is not a ('reditorof the 

.said Insolvent for the anionnt of his said pret'juded claim, nor any jiart thereof, 
nor entitled (;<» he colloeat'jd on the naid <;statc, or on an}' dividend aheet 
therefor, heeauMe the Contestant sayH (h<i out yrouni{n of ohjcctlau liUtinrtli/ and 
nmrAHtlij). 

Wher<forf the (Jontestant pram's that the said Claimant he not collocated 
for, nor jiaid the amount of his said pretcmled claim, or any part thereof, and 
that the said claim ma^ be dismissed with costs against the said ( 'laimant. 

O. H., 

Attorney for Contestant. 
Dated day of A.D. 187 . 



12 



LIST OK OFI'ICIAI. ASSIONKKS. 



! 1 



sii 





• 'M 





niliciiil AHHi^^'iiiMiH ii|(|i<tiiil:i'<l on 'J7tli /Vu>j;iiHt, IS7."i, iiinli^r (Im; liiKuIvriit Art 
of lS7r», for till! ( !ouiity, .liiiliruil l)iHLri(;t or I'llcctonil OJHtricttH Hi;t oppoHite 
their iiaiiieM rt-Hpcctivtily, vi/: - 

Koi; I'lii; ritoviN'ci': oi-' oN'rAUio. 

Ahs|>;iui(). I^^'til|l:lll'l^ Coiiiily lor wlilitli .'i|i|ioiiitnii'iil Ih inailc. 

'I'lioiiias r>otliaiii liriiiitforil Itriiiit. 

^ln',<>\■^.'^•^',l^\lll\ VVnlkcrtoii Iiruci!. , 

I'uiil .MfliiiMH Tc'CHWiilcr IJmicu. 

William M. Smith .... I'aiMJ.y Ihiico. 

William l'"iiif.;lainl Ottawa i'arlrtuii, iiiciiiilitifj; Ottawa. 

Kraiicis ( !|rmow Ott.i.wa ( !ail<:toii, iridinliii^ ( Ittawa. 

DaiiitI S. I'l.iHtwood . . . Ottawa ( 'arlctoii, including Ottawa. 

Sylv(Mt«!r K. MathoWH. . MorriHlmi'j^ hiiiidaH. 

VViliiam 'i'liom|iHon .... I'owinanvillu .... hiirliam. 

Sf.tli S. Smith I'ort IIo|h! I>iirliam. 

(Jolin .VInnro St. Tliomas Ill^iii. ' 

William .\lc('r(!a WindHor Khhdx. 

CIorncliiiH V. I'lico .... Kin^ntoii FiontcmK;, iiichnling KiiigHton, 

Doii.ild .Mcliollan WilliainHtown .... (ilingarry. 

(iiiorgi! I'rici! Owcii Sound *'i'«'y. 

Thomas Tracuiy I'n.Hc.ott Orenvillo. 

Klcaznr 11. VVhitmar«h.. MtMrii kvilhs (ircnvillo. 

('ayuga iialdimand. 

Milton Ilalton. 

litdlcvilii! llaHtingH. 

Ik'llcvilli) liaHtingH. 

Ilohcrt (iilthouH (lodcriith Huron. 

Samuel !•;. M(;< "augluiy . . Scai'orth Huron. 

Hugh K. (-umming .... (Mwitham Kent. 

Jlarry IJlacU ( Chatham Kent. 

William T. KeayH Sarnia liamhton. 

.fanuts Klintoft, jiin Sarnia Lamhton. 

.lohn A. (icnimell Almonte lianark. 

A. W. Il(dl ( larleton I'laeo .... liamirk. 

.lohn N. Ahhott IWdckville l^eedH. 

Norton MarHhall iJroekvillo lieeds. 

William K. Hall Napance liemiox and Addington. 

Edward A. Deroehc. . . . .Nai»anee Lennox and Athlington. 

.lame.s McKdward St. ('atharines .... liineoln. 

Joint Oflicial ^ R. H.eid.. London 

AsHignee. ( H. >Je!len London 

Tlioniiw ("hurcher liondon MifldleHex, including Lcmihm. 

Thomas M. liowerman. . liracehridgo MuHkoka, (Jounty or DiHtriet. 

" " .. " I'arrySound&NipiBsingDiHtricta. 

AuguHtinc J. Donly .... Simcoo Norfolk. 

A(MiHon VarH (lol))orno North uml»erland. 

Edmund A. MuNauhtau Cubuurg Northuiuburiuud. 



V. <i. A. HcnderHon . 
Davhl W. CampI.ell. 
MarHhall H. RoMin 
John r. 'i'homas . . 



Middlesex, including Loiuhm. 



OrriCIAL AH.SKINKKH. 



17'J 



riM)vi 

ANHi^tKin. 

.loliii S. M. VVil.-ux .... 

AiiHoii T. Iiiilliiii 

<«i!(H>;i' IN riy 

Jiiiii 'M McWliirtcr 

Kilwiinl 'I". Ilii;,'yiir<l. . . . 

.lolui I lllSHil! 

'i'liiiiii.'iM Millitr 

.luiiicH A. Hull 

JilMlcH I'. \V<IIh 

VVilliiiiii ( 'jutt-r 

.loliii l>. M.'icDoii.ilil 

AUrrd .1, l''(ii licr 

.IllllllH 15(11 

N('Ik(iii l)iiiiiiiti^ 

JoS(|ili |!u;.;ci'H 

'riiom.iH I). M('('..riU.y.. 
Alcxiimlcr I'icMiiirily , . , . 
'ni*:(i|>liilwM i;,. Karl .... 
D.uiicl M. Mi;li,t,yro. . . . 

Donald M<;|)(.ii«;li 

( Jciii'j^n Kc.injil 

Alixaridor .VIcCJrugor .. 

Miiiiim Kl»y 

Klcl.cln r Swayzo 

•lo.scpli Sliaw 

.loliii Siiiilli 

Altxaiid(!r DavidMon. . . . 

llalpli li. (iiiiiii 

Alexander I. iMcKrnzio. 
l''r(Ml(ri(k I). Siitcr .... 
William 'I'. Mason .... 
.Ifttni H li. ISoiiHload .... 

.lohii K(!rr 

William K. Muiiro .... 



WK UK ONTAIMO. (C'imtiniinl.) 

Ul'h|iI<.>ii<!ii. (.'oiiiit.y for wliirli uji|Miiiitiii('iit ii mailo. 

Wliitl.y Ontario. 

I'xliriil^'i) ()ntari(». 

VVoodst,<M:k Oxford. 

WoimIhIocU Oxford. 

( 'amplii H'h (!roHH . I'l^ol. 

Strallord I'.rtli. 

SUalfonl ... r.rlli. 

I'rtcriioronj^li/ . . . , rctcrltoroii^h. , 

VanklceU Mill .... I'niM.M.U,. 

I'iilon I'rinri! I'Mward. 

Itcnfrevv I'enfntw. 

rtiid)rok<! Kt-nfriiW. 

Arn|iri<ir UenfriiW. 

OHiiornu ItusHcIl. 

Karrit SimcfMi. 

Marrii! Simcoo. 

Orillia .Sim(;(»o. 

< 'ollin|,'vvood Simcou. 

< 'ornwall SLormont. 

i -ornwall Sf.ormont. 

Lindnay Victoria. 

Oalt Waterloo. 

IJcrliii Waterloo. 

Wclland Welland. 

Oran|,'(.vili(3 Wttllin^^'ton. 

MIora Wellin^'ton. 

Hamilton Wentwortli, including TIamilton. 

Hamilton Wcntwortli, in(;l(idin;{ Hamilton. 

Hamilton Wentwortli, incliidin;^ Hamilton. 

I )iindaH Wentwortli, inrludin^ Hamilton. 

Toronto York, wliieh includes Toronto. 

Toronto York, wliicli indudcH Toronto. 

Toronto York, wliieh inclmlcH Toronto. 

Toronto York, wlii<;li inoluduH Toronto. 



FOR THE rR()VlN(n<: i)F QUIOHKO. 



AHHih'iu;c. 

Siin(''on l^'ramsr 

Octavo Oiudlot 

Louis Kainvillu 

Daniel Doran 

Owen Lyneli 

Pctiir (!owan 

Thomas UrasHard 

Jean A. (Jagne 

('harlcs A. Tiohel 

(JharloH H.T. Hurnian. 

IjOuiH A. Auger 

Adolplio Magnan 

J. lOI/c'-ar I'ouliot 

Alfred Ijemieux 

Alfred Lumicux 



Juiliuinl or Klcc'loriil DiHtricl for which 
Uimiihtnco. iippoiiiliiiuiit in iiuulti. 

L'Avenir .ludioiai Distriot, ArthahaHka. 

Sonutrset Juflieial District, ArthahaHka. 

St. ( !liristo])hu Judicial District, Artliahasku. 

St. dosepli (rl5caucu .Futltci.'.l District, Hcauce. 

HeauharnoiH ludicial District, BoauharnoiH. 

Nelson Villo Judicial District, Bcdf<(r4l. 

Waterloo Judicial District, Bedford. 

Oliicoutimi ludicial District, CliicouLimi. 

New Carlisle Judicial District, (JaHj»»i. 

Baradiois Juilicial District, (iaHp<i. 

St. (ireg. d'lborville .Judicial District, ihcrvillo. 

Jolictte Ju<liciai District, .Jolictte. 

J'Vaserville ludicial District, Kamouroska. 

1/svis Klectoral District, I/ivis. 

Ldvia JOlectoral JJiBtrict, Lotbiniisre. 



Hi 



1 


i; .1 




. '. ■ 



i 



^^ 



180 



rSHOLVMNT AOT 01' 1H76. 



l'l;()VINCK or (}\'\:UE(). {Conliniinl.) 

Jik' 



il<iNli|<iU<:a. 



iiil or rii'i'tiirnl DUtrlrt T'lr vvliii li 
a|i|Miiiil,MiMil In riiiuti'. 



Monti 
Coiitr 

X 


.'UK 
ll»i 

u. 


1 M.wit 
^l.rictH, 
VV»:hI, 


l.lll ( 

MoMf 

uiid 


'I'llllf!. 

real KtiHt, 
Montt'cut 

<< 


l< 






« 




II 


tt 






«< 




II 


It 






II 




If 


• < 






II 




II 


<l 






II 




II 


<< 






II 




II 


II 






II 




II 


n 






11 




II 


(1 






11 




i< 


(( 






l« 




II 


<t 






II 




11 



Jiidifial l)iHtrict, Ottawa. 



ANMlxtll'll. 

'HiiuIi'm. S. Midland ... Ht. .Jean l'(irt Juli.. Jiulirial District, .Mdiitiiia-iiy. 

Ii'n'df'iii! Ui''laii;^<;r M<)iitiiia;,'iiy Iinlicial l»iMtrii;t, Miiiitiiia;{iiy. 

(Jli'opliiM HcaiiHoluil . . , . Miiiitrcal )iiilicial hiHtrict, Mniitnal, ox- 

<;rj)t Mi.iitnal I'lant, .\Ioiitiial 

I/)uiH .f. fiajoic Montreal 



JanicH f 'iMirt Montrifal 

Arthur IV^kiiiH Moiitniil 

Willi.'iiii IMiiiid Mmitrial 

AlplioiiHc Doiitro Montreal 

T. S. liiown Moiitn-al 

Amlrdw IV Stuwart .... Montreal 

Olivier LecoiUH Montreal 

.lolin Fair Montreal 

David ( 'raij.; Montreal 

liOiiiH Diipny Montreal 

JaiiH'H 'lyn! Montnial 

ICdwin KvaiiH Montreal 

I''. Samuel IVlaeKay .... I'apineaiivilli! . 

Alexandre liourgeau ... Ayliiier .Iiidieial Dintriet, Ott.iwa. 

D. ('. Himon Hull Iiidieial I )iHtiiet, Ottawa. 

liOiiiw M. (!oiitlou AyiiiKir .Iiidieial hiHtriit, Ottawa. 

Owen Mur[)liy (^iieliec Judicial Ointrict, (}\h:\hh:, except' 

1/tviM and i»tl>ini6ru. 

William Walker (Jliir.heo " " '• 

Odiloii Koy Qiieheo 

Ja(M(ii(!H Auj>er QiUilxie 

liieliard H. Wiirtelo , . . Quehee 

Victor Oladii St. Fran«,'()iH dii liiu; .fiidicjial DiHtriet, llielielieii. 

A. KvariHt(; BraHHanl . . Sorel Indicia! I)intiiet, Iticlielieii. 

Klzear ( !Ati' Ste. Luce Iiidieial District, IlimoiiHUi. 

William lirooke Kielimond lOleetoral DiHtriet, Rieliinond and 

VV(dfe. 

Klie Aiij^'er Murray liay .Iiidieial District, Sa^'ueiiay, 

CharlcHj. Ij. Haeoii.... Shcirlirooke Judicial DiHtriet, St. KraiiciH, (!X. 

ceptinj^ tlientoiit <"ompt<(iJ, 
StiiiiHtead, Kielimond (t V'olfe. 
Gay H. Loomin Slierbrooki; " " " 

St. Ilya(!intlui ludiei.al DiHtriet, St. Ilyju: ,e. 

'rerrehonne Judicial District, 'rerrelioni . 

Yama<,liielie Judi(!ial DiHtriet, Tlinto IJivern. 

St. < 'I'lestiii Judici.al District, Tlmu! IliverH. 

Three KiverH .... Judicial DiHtriet, Three Itivera. 



<( 


«4 


If 


<( 


II 


II 


(1 


II 


14 



Michel K. liitrnier. , 
(i<';d('!()n M. I'nWoHt 
Charl(;H D. M.'d.ert 
Adolplie O. Ifoiile 
Joan H. O. Dumoiit 






FOR THE PROVINOK OK NOVA Sf;OTlA. 

AHfignco. Ui!siil(;ii(;(), Cnuiity for v^iich iipiioiiitment ii made. 

Ricliard .7. IJniacko .... Annapolis Annai)oliH. 

Arcliilmld Mc<jiillivray. . Antigoninh AntigoniHh. 

CharicH W. Hill .Sydney, (J. JJ Caoc Jireton. 

JameH K. Blair Truro ('olchettter. 

Barry Baker Amherst Cumberland. 



I J 



OKI'ICIAr. AHMIONKKH, 



IHI 



I'JtOVINCK or NOVA S(;()'riA, (donlinn,,!.) 

Ah<iI((iii'(>, U<'nI<Ii'Iii:i'. (.'oiiiily fur wlihli it|>|i<iliilmiml U iimii*. 

<i(!(trjj;<! Ilciiili iMdii .... IHkI'Y I'luI'V- 

Williiiiii lliirtHliiiiii .,.. (iiiyHlHii'oii^h .... (iuvMlMtioii^li. 

Williiiiii < 'iiit^lil.iiii .... Iliilil'jix Hdli'ix.iiicliiiliiigCity of lliilifux. 

'riioiiiiiM Aylw.inl NVimlMur IliiiiU. 

<{c(iim!(!. Iiiiwrciii;f) . . . I'nrl IIimkI InvcrnrHH. 

Kiiii|il.s illii Kiiij^'H. 

Liinriiliiirfj l.iiiM'nliiir({. 

I'i.tnll I'lrlull. 

Millnii (^iii'iu'm. 

•loliii II. ItiiidntHH Arirliiit ItirlunoiKi. 

Siiiiiiicl II. ( 'ox SIhIIhiiiu) Sliclliiiiiio. 

A!('Xiiii(l<r 'raylor, Hcii . . M.kIiIciU \'ir(,uiiii. 

St<:|)lioii It, Miiii'uy , . , , Variiiniilli VuriiKxilli. 



I'Mlllllllll J. ( 'o^HWItll . . 

H.iiry ,S. .I..M» 

VVilli.'iiii ( i. ( Iji'iiiiio . , , 
Wijli.tiii KonI 



V()\l TIIK I'llOVINCK Oh' NKVV HUDNSWICK. 

AmmIhikii!. Illii. Iiiiii). (,'i.imty for wliii'li ai>iHiiiitii)iitit is made. 

(io.nrnc Oiillidim llo|)(iw<tll (!ji|H!. . . . Allxtrt. 

D.iiiif'l ( I. (,'«HiiM(!r I''r(ilrri<l,()ii ( 'ailitdii, 

(ItMir^c I'. 11.11 St. Stcplicii ( :ii;irl<»tt(!. 

K/.<;ki(:l .Mi'licod St. .loliii (!ity iimi <!(iui»ty of St. John. 

Rolxiit KllJM, jiiii iJiitlinr.st (JldiicdHttir. 

TlioiiKiH VV. liliHH |{i<;liil>ii(;t() Kent. 

Joliii Iv 15. McCy'rcady . . (!artlw(;ll Kinj^'M. 

Joiiii I'iliiH N<'W(;!iHtl(! N<iitliiiiiil)erlaud. 

(!alil» I''. I'Vtx (iaf,'<!tiiwii (^iHMrii'H. 

William S. Sinitli DalliKiisit! IN'sti^^iMiclic. 

(icorj^t; Sccli-y I'lfilcrictoii Siiiiimry. 

I'titcr O'liyiain (iiaiid halls Victnria. 

JdIim McKcri/.io Moiicton VVcHtiiiorcland. 

E. JJyroii VViiiHlow .... KrciltJiictoii York. 



Foil TIIK IMIOVINCH OK MANITOBA. 

AHKi(,'iir<). ItcMiilciK'H. (,'iiiiiity fill- wliicli iippointiticnt Ih rnado. 

Samuel It. Marlatt .... Porta;,'*! L,i|irairic'. . M.wt .M,in|M(;ttt!. 
.Saniiicl R. .Marlatt .... I'orta;^!: Lapiairic. . West .\1ar(|iu;tto. 

Ri)l)i;it Straii^o \Viimi|)irg ProvciidM^r. 

Joliu J{al8illio VViiiuiiieg Selkirk, incl. 'I'dwii of Winnipeg. 

FOR TIIK TM{0VTN(;K OF RRITl.SII f:o[JI.VnUA. 

ANHi),'ii«i). Hdiili'tii'i'. I)islrii( for wliirli aiipMiiil.rnont Ih ma4«. 

JameH .Mdirimiii New WeHtniiuHter, Fur hritiwli < S)liiinl)ia. 

lienjamiii I'. (Jrilliu .... Victoria For Rriti«li (Jolunibia. 



FOR THE i'ROVlNCE OF PRINCE I^DVVARI) ISLAND. 

AHsi^^nce. R«Hi(litnnn. County for \ li uijpoiutmcat in made. 

Peter J. |{yau St. I'eter'H Ray. . . . King's. 

David Montgomery .... SunmitMHide I'rinee. 

FraJ)ci« L. ilaHzard .... Charlottctowu .... (^uceu'8. 







IMAGE EVALUATION 
TEST TARGET (MT-3) 





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1.0 



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1.25 



iai28 |2^ 
ut lii |22 

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v^« 







RULES AND ORDERS, 

PItOVIN'CE OF QUEIJEC. 

Jitade ly the Judges of the Superior Court for Lower Canada, under and 
hy virtue of the Statute 27 and 28 Vict.^ cap. 17, intituled: "^n 
Act respecting Insolvency;^* and continued in force by 38 Viet., 
cap. 16, $ec. 124. 



I 



1. There shall 1)0 assigned in the Court Houao of each Jmlicial District at 
which the sittings of the Superior Court arc hekl, two rf>oins for matters in 
Insolvency, one in which the sittings of the Judge shall be held, and the other 
f(»r the oiiice of the Clerk in Insolvency. 

2. All judicial proceedings in Insolvency shall be had and conducted in the 
said Court KtMnn alone, and not elsewliere ; and the sittings of the Judge shall 
commenoe at 11 a.m., or at such hour as the Judges or Judge in each District 
shall hereafter apiwint, and sliall continue till the business of the day aliall be 
comi)leted, or imtil the Judge shall a<ljourn the same. 

3. The Clerk's office shall be kept open every juridical day, from 9 a.m. to 
4 p.m., and shall Im; attended during that time by a Clerk appointed by the 
District Prothonotary, and who shall be known as "The Clerk in Insolvency." 

4. To insure regidarity of proceedings at the sittings of the Judges, the busi- 
ness shall be conducted in the f«dlowing order : 

1. Meetings of Creditors ; 

2. Motions ; 

3. Itules Nisi ; 

4. Petitions, except as hereinafter mentioned ; 

6. Proceedings on applications for discharge of Insolvents ; 

6. Proceedings on ajiplioations for discharge of Assignee ; 

7. Appeals. 

5. Proceedings before a Judge or Court may be conducted by the Insolvent 
himself, or by any party having interest therein, or by thoir Attorney ad litem, 
admitted to practice in Lower Canada, and by no other person. 

0. All Motions, Petitions antl Claims, and all papers in the nature of plead- 
ings in Insolvency, shall be intituled : In Insolvency, for the District of 

In the matter of Insolvent, and Claimant, 

Petitioner or Applicant, as the case may be, plainly written, without inter- 
lineations or abbreviations of wonls ; and the subject or purpose thereof shall 
be plainly and concisely stated. They shall also be subscribed by the Peti- 
tioner, Applicant or Claimant, or by his Attorney ad lite in for him. And they 



RULES A-SD ORDEKS. 



183 



^hall be subject t(» the onlinary rules of procedure of the Su])erior Court in 
rcjiiject of similar |KiiK.'rs, as rt?u;arils the naiiicH and designations of tiie parties, 
and the mtxlc in which they shall he docketed and tiled. 

7. No i»a|>er of any di'Herii»tion shall he reeeiveil or filed in any caac, unless 
the same shall l»e ]iro|terly numhered and intituled in the case or proceeding to 
which it may refer or l«elong ; and he also endorsed with the general ilcscrip- 
tion thereof, and with the name of the party or his Attorney (ul litt'in tiling 
the same. 

8. In all appealahle matter in dispute, the pretensions of the parties shall 
be set forth in writing, in a clear, precise and intelligihle manner, and the 
notes of the verbal evitlence taken before the Assignee shall be plainly written, 
shall Ik! signed by the witness, if he can write and sign his nuiuo, and shall be 
certified by the Assignee as having l>een sworn before him. Antl in the event 
of an api)eal, the Assignee shall make and certify a transcript from his Uegist<3r, 
of the pn)cee<lings before him in the matter ajipealed from. And he shall also 
make and certify a list of the documents composing such pntcecding.s and 
ap{icrtaining thereto, ami shall annex such transcript and list to such docu- 
ments with a strong i»apcr or parchment cover, before protlucing the record 
before the Judge, as required by the said Act. 

9. All procee«lings l>efore a Judge or Court shall be entered daily, in order 
of date, in a docket of proceedings, to be ke))t 1)y the Clerk for eaeli case ; and 
shall from time to time, and until the close of tlio estate, be fairly transcril)cd 
in Registers suitable therefor, which shall })e kept and preserved by the I'ro- 
thonotary, in the same manner as the Registers of proceedings of the .Superior 
Cour:. 

10. No Demand, Petitiim or Application of Avhich notice is recpiired to l>e 
given, either by the provisions of the 8ai<l Act or by an order of tlie Judge or 
Court, shall Jw heard until after such notice shall have been given, and <lue 
return thereof made and iilod in the ciise. 

11. Except where otherwise limited and provided by tlie said Act, and 
upon go<Kl cause shown, the time for proceeding, after notice tliereof has l)een 
given, may be enlarged >)y the Judge or Court whenever the riglits of parties 
interested may seem to retjuirc it for the purposes of justice. 

12. Whenever a |)articul.ar number of days is prescribed for the doing of an 
act in Insolvency, the lirst and last day shall not bo computed, nor any frac- 
tions of a «Lay allowed ; and when the last day shall fall upon a .Sunday or 
Holiday, the time shall be enlarged to the next juridical day. 

13. All afHda\-its of indebtedness made by a creditor or by the clerk or agent 
of a cretlitor, shall set forth the particulars and nature of tlie debt, with the 
same degree of certainty and precision as is required in alliflavits to hold to 
]>ail in ci\-il process in the Courts of Lower Canada. 

14. All Writs of Attachment issued under the sai<l Act sh.dl, as issued, l)e 
numbered and entered successively by the Clerk in a book, to which there 
shall l>e an index, and to which access for examination or extract shall be had 
gratis, at aiLl times during office hours. 



M 






184 



INSOLVENT ACT OF 1876. 



15. Every such Writ shall descriltc the parties thereto, in the same manner 
as they are floscrihed in tlie said afHilivits of (lel)t ; and the Declaration acoom- 
paiiyiii;^ the said Writ shall he similar in it.'i form to the Declarations reiiuircd 
to be tiled in ordinary suits in the Superior Court. 

16. No such Writ shall issue until after the affiilavit of debt, uinm which 
the Writ is founded, shall have been duly filed in the Clerk's otlico. 

17. All 8cr\'ice8 of Writs, Rules, Notices, Warrants and proceedings in 
Lower Canada, except otherwise .specially prescribed by the said Act, may 1)0 
made by a HaililF of the Superior or Circuit Court, whose certilicates of service 
shall be in the form recpiired f(»r service of process in the said Courts ; or by 
any literate person, who shall certify his service l)y his affidavit ; and in either 
case the manner, place and time of such service shall be de3cril)ed in words, 
and also the distance from the jdace of service to the place of proeeeiling. 

18. All services of Writs, Rules, Notices, Waiyants or otlier proceedings, 
shall Im; made between the hours of 8 a.m. and 7 i).m., unless otherwise directed 
by a Judge or Court upon good cause shown. 

19. Writs of Attachment need nf)t be called in open Court, but shall be 
returned on the return day into the Clerk's office, and shall be there tiled for 
proceedings thereon, as may be advised or directuiL 

20. Every day, except Sundays and Holidays, shall be a juridical day for 
the return of said Writs, and for judicial and Court pcoceedings. 

21. The SheriflF to whom the Writ of Attachment shall be directed, shall 
not be requireil to make any tletailed Inventory or prochx iivrhal of the efTects 
or articles by him attached under such Writ ; but a full and corajdetc Inven- 
tory of the Insolvent's estate, so attached by the Slieriflf, shall be made by the 
Assignee or person who shall be ])laced in ijossession thereof as guardian under 
such Writ, by sftrtinc and numbering the Jiooks of account, pai)ers, documents 
and vouchers of the estate, and entering the same, with the other assets and 
effects thereof, in detail, in a b<H)k for the same, which shall be called ' ' The 

Invent<;ry of the Estate of ," and which shall be filed by the said 

Assignee or person in possession, on the return day of the said Writ, as ret[uired 
by the said Act ; an<l the said Inventory shall be oi)cu for examination or 
extract at all times during office hours, (jniliH. 

22. Immediately upon the execution of the voluntary deed or instrument of 
assignment to the Assignee, he shall give notice thereof by advertisement in 
the form D of the said Act, rec^uiring, by such notice, all Creditors of the 
Insolvent to produce before him, within two months from the date thereof, 
their claims, siHjcifying the security therefor, w^ith the vouc! ura in support of 
such claims, as re<iuired by such notice. 

23. The Clerk shall prepare, for the Judge or Court, a list of matters pend- 
ing, or ready and fixed for proceeding on each day, following therein the order 
of procedure proscribe*! by the 4th Rule, which list shall l>e communicated to 
the Judge on the previous day. 

24. The record of proceedings in each case shall at all times, during office 
hours, be accessible, at the Clerk's office, to Creditors and others in interest 



RULES AND ORDERS. 



185 



in such cases, for examination or extract therefrom, grntiM. Ami in like 
manner tlie mimiten of meetings of Creilitoia, and the regi»terrt of iiroeeedings, 
t<»gether vith the claims made and the doeumenta in possession of tin; Asttigneo, 
shall also ho iccessihlc to Creditor and «»thers in interest in the case, at con- 
venient hours, «laily, to be appointed hy the said Assignee. 

25. Tiie Assignee sLill, from time to time, iimler onler of date, and within 
twenty-four hours after th" proceedings ha<l hefore him, lile in the said Clerk's 
office a clear copy, under his . 'ijnature as such Assignee, of such prococ<lingB, 
togetlier with a copy of the several Muwspapers and Ollicial (Jazette in winch 
he shall have causetl notices of such pi'iceedings to he advertised, which snid 
copy and newspapers shall form part of ti.M rec()rd of proceeilings of the par- 
ticular case. 

20. The Assignee shall, on the third juridical lay of each montli, after he 
shall have commenced to deposit estate moneys in a hank or hank agency, as 
refpiired l>y tlie said Act, lile of record in the case an account of the est.atc, 
showing the balance thereof in his haiuls, or under his coufol, made up to the 
last day of the preceding month. And no money so deposited sliall be with- 
drawn without a special order of the Court, entered in the dockv t of proceed- 
ings in the case, or upon a dividend sheet prepared and notilied, .^8 re(iuired 
by the said Act, or unless otherwise ordered by the Creditors, uuler the 
powers coiiferrcd upon them by the said Act. 



TARIFF OF FEES IN INSOLVENCY, 



FOR THE PROVINCE OF QUEBEC. 



IN PR0CEEDING8 FOU COMPULSOKY LIQUIDATION. 



On behalf of the PUtlntiffs, 
IF NOT CONTESTED : 

To tlio Prothonotary for writ of attachment $1 80 

To tlie Prothonotary for copy of writ .30 

Shoriir for warrant 2 r)0 

Copies of warrant, caeh 50 

All proceedings by tlic Slieriff or liis agent or messenger in the seizure 

and return, exclusive of mileage 2 (K) 

(lUardian, per «lay 1 00 

(iuardian, making up inventory and statements, to be subject to tax- 
ation by the Judge. 

To the Prothonotary on return of writ 5 00 

( trier's fee on return . . 80 

To the Prothonotary for copy of order for meeting « 50 

To the Prothonotary for meeting 1 00 

To the Prothonotary for each coi)y of judgment appointing official assignee 50 
Attorney's fee f<jr conducting jjroceedings to appointment of oilicial 

ikssigneo 30 00 

IF CONTESTFJ), ADDITIONAL FEES : 

To the Prothonotary on inscription 2 00 

To the Prothcmotary on every witness examined for Plaintiff, exceeding 

two in nun)])er 30 

And for each subsetjuent deiKJsition exceeding 400 words in length, for 

every 100 wtirds 10 

Attorney's fee, additioaal 20 00 

Counsel fee at Euquete 10 00 

Oft behalf of the Defendants, 

IF NOT CONTESTED : 

Attorney's fee for appearance 10 00 



QUEBEC TAllIFF. 



187 



IF CONTF.STKI), ADDITION A 1- FEF<8 : 

To the I'rothonotary on liliug petition in contestation C 00 

On every witness examined for Defendant, exceeding two in nuniher. . . 30 
P ud for each Kuhscquent deposition exceeding 400 words in U^ngth, for 

every 100 words 10 

Attorney's fee, aiMitional 20 00 

Counsel fee at Enciuote 10 00 

On Voluntary Antt'njnment» : 
To the Prothonotary for filing and entering deed 2 00 

On Petitions, other than Petitinni* in Appeal, in Contextafinn of Proceed- 
iinjHfor C'onipitl.tory fjijuidatiun, or for Extiniinatiitn of Debtor : 

To the Petitioner's ivttorney on every i»etition, not contested 5 00 

If contested, without Empiete 10 00 

If contested, witli Kntiueto lH 00 

To tlic Respondent's attorney — 

If contested, without Kniineto 8 00 

If contested, with Kn<[Uete 12 00 

To the Prothonotary — 

Filing petitions 2 00 

Copy of order 50 

If contested on filing contestation 2 00 

If there be an Enquete, for every deposition 30 

For all words over 400 in any deiKJsition, per 100 10 

On Petitions in Ap}yeal to a Judge : 
To the Assignee for transcript of record, and making up record and 

at endance before the Judge 6 00 

To the Prothonotary — 

Filing petition 2 00 

Remission of Record 1 00 

To the Attorney for the Petitionei* — i 

If not contested 10 00 

If contested 20 00 

To the Attorney for the Respondent 15 00 

On Petitions for Order for Examination of Debtor or for other Persons 
respecting the Estate and Effects of the Insolvent : 

To the Petitioner's attorney 2 50 

To the Prothonotary for order to serve 50 

On Claims: 
To the Attorneys — 

For every chirography claim, without security 1 00 

For every chirography claim, with security 2 00 

For every hypothecary claim, if not contested 5 00 



H 



11^^ 



188 INSOLVENT ACT OF 1878. 

On ovory claim contoHt«'il, without Kii<(ur'te — 

Adilitioual— To ( 'iiiiiniuit'H iittoiiicy 10 (K) 

To < 'ontt'Htant'a attornuy 10 00 

With KiiipuHo — 

To riaiinaut'H attorney 20 00 

To Coutfstant'H attorney 'JO 00 

To tho AsHignoe — 

On overy cliirograpliy and liypotijccary claim, not contcHtcd 10 

For every witness examined on tlie contestation of a claim Ufl 

On inHcription of contestation for argument 2 00 

On contestation of tliviilcnd wiiect.s 

The Rame fees and <liMltur8euK'ntH to counsel and to assignee 9» on con- 
testation of claim. 

On api)licati(»n for discharge by tho Court, for confirmation of discharge, 
or for annulling discharge : 

To the Applicant's atrorney — 

If not citntested 1 .") 00 

If contestetl, without Kntpiete 2") 00 

If contested, with Kn<iuete 35 00 

To the Respondent's attorney — 

If contested, without Kncjueto 15 00 

If contested, with Knijueto 25 00 

To the I'rothonotary — 

Filing ajtplicaticrn 2 00 

Every deposition 30 

All words over 400 in each deposition, per 100 10 

MISCPXLANEOUS. 

To the Attorneys, Prothonotaries and Bailiffs, fees and disbursements on all 
rules, motions, copies of rules, judgments, and orders, commissions, ror/a- 
toires, and other incidental matters, according to the same rates as are 
allowed by the present tarill' in first-class actions in the Superior Court. 

All ueceasary disbursements fur advertisemeuts and uoticea. 



TARIFF OF FEES (ONTARIO). 

(OF DECKMUKR, 1S04.) 

Por In$olt>ency proceedingt in Ontario, promulgated hy the JuJge$ of the 
Superior Courts of Common Luw, and of the Court of Chancery^ 
under 27 and 28 Victoria, e. 17; and continued in force by 38 Vic- 
toria, c. 10, tec. 124. 



TAUIFF. 

Feca to solicitor or attorney, an Itftim'n party ami party, and alto at 
fielrceen Holkitor and client : — 

Instructions for volunt.'ny assignment by debtor, or for compulsory 
liquidation, or for petition, where the statute expressly re(iuires a 
petition, or for lirief, where matter is re<[uired to be argued by 
couusel, or in authorized by the judge to be argued by counsel, or for 

deeds, declarations, or proceedings on appeal $2 00 

Drawing and engrossing jKititions, deeds, affidavits, notices, advertise- 
ments, declarations, and all other necessary documents or papers 
when not otherwise expressly provided for, per folio of 10() words or 

under 20 

Making other coj)ies when reijuired 10 

When more than fre copies are required of any notice or other paper, 
five only to be charged for, unless the notice or paper is printed, and 
in that case 2>rinter'8 ])ill tu be allowed in lieu of copies drawing 
Bclicdule, list, or notice of liabilities, jMir folio, when the number of 

creditors therein does not exceetl twenty 20 

When the number of creditf)rs therein exceeds twenty, then for every 

folio of 100 words over twenty 10 

Every common affidavit of service of papers, including attendance .... 50 

Every common attendance 50 

Every special attendance on judge 2 00 

For every hour after the first 1 00 

To be increased by tlie judge in his discretion. 
Every special attendance at meetings of creditors, or before assignee, 

acting as arbitrator 1 00 

Fee on writ of attachment against estate and effects of insolvent, in- 
cluding attendance 2 00 

Fees on rule of Court or order of judge 1 00 

Fee on sub. ad test., including attendances 1 00 



190 



INSOLVENT ACT OF 1876. 



Fee on Hub. duces tocum, including nttemlanco 1 -/> 

Ami, if al>«)Vo 4 foliim, tliuu for uauh n<lilitiuiml fulio over such 4 folioa lU 

Foe «ui every otlior writ 1 OH 

Every nec'CHsary lottor 5() 

OoHtH of prc'iKiriiif^ eliiint of croditora. And provurin^^ Hanto to lio H\rorn 
to, and allowed at meeting uf cruditura, in ordinary cascH, wheru no 

disputo : 1 00 

Costd of 8(dicit(ir of petitioning uretlitor, for examining elaima tiled up 

U) appointment of asHigneu, for each claim tio examined (\ Hi) 

Cost of attaignee'H solicitor fur examining each claim reiiuirud by assignee 

to bo examined 60 

Preparing for puldicatiou advertisements reciuired by the statute, in- 
cluding copies and all attendances in relation tluTeti» 1 0<) 

Preparing, engrossing, and procuring execution of bunds ()r other in- 
struments of security 2 00 

Mileage for the tlistance actually and necessarily travelled — per mile .-. 10 

Bill (»f costs, engrossing, including copy for taxation, per fuliu 20 

Cupy for the oj>po8ite party 5(1 

Taxation of costs 50 

No allowance to be made for unnecessary documents or pai)ers, or for uii- 
necessary matter in necessary documents or papers, or for unnecessary length 
of j)roceeding8 of any kind. In case of any proceeilings not provided for by 
this taritr, the charged to be the same, as for like proceedings in the tarifTa uf 
the Superior Courts. 

COUNSEL 

Fee on arguments, examinations, and advising proceedings, to be allowed 
and fixed by the judge as shall appear to him proper under the circumstances 
of the case. 

FEE FUND. 

Every warrant issued against estate and effects of insolvent debtors . . $1 00 

Every other warrant or writ 30 

Every summary rule, order or fiat : 30 

Every meeting of creditors before judge 50 

If more than an hour 1 W 

If more than one on same day, $2, to be apportioned amongst all. 

Every affidavit administered before judge 20 

Every certificate of proceedings by judge of County Court for transmis* 

sion to a Superior Court or a judge thereof 50 

Every bankrupt's certificate 1 00 

Every taxation of costs 15 



FEES TO CLERK. 

Every writ, or rule, or order 60 

Filing every affidavit or proceeding 10 

Swearing affidavit 20 



ONTARIO TAItlFF. 101 

Copies of all proceeilingn of which copy hoHpokt'ii or rc«juirc«l, per folio 

of 100 wonU 10 

Every curtilicato 30 

Taxing coete 80 

Taxing coHts nml giving allocattir 65 

For every sitting under connniH-sion, per ilny I 00 

If more thnn one on same day, 1^2, to lie iqtportioneil aniougst all. 

Feu for keeping record of prooecdingH in eacii ease I IK) 

For any liat of dehtorH proved jit lii-«t meeting, (if made) .'iO 

For any list of debtors at Bccond meeting Ao 

Any search '20 

A general search relating to one bankruptcy, or the bankruptcy of one 

person or lirm flO 

SHERIFF. 
Same as ou corresponding proceedings in Superior Courts. 

WITNESSES. 

Same as in Superior Courts. (See note to sec. 113, for witness' fees applica* 
able in insolvency proceedings.) 



!t 



■ t 



New BRUNSWICK TARIFF. 



In pur^iinncu of the power given by "The luHolvcnt Act of 1809," the fol- 
lowing Tivl)l(M»f Fees liiiil Chiirj^oH ht\» been Hxeil miil Hettled liy the Chief 
JuHtice niwl •lii<lgo8 of the .Supreme Court of New BruiiHwick, to l)e taken and 
paid in all ciseH and procvedingH under the said Aet ))y or to iittorneys, nolict* 
tors, eonnMcl, and olHeers of courtH, for any Hervic-B rendered uiuler tho said 
Insolvent Act, and no other or greater shall ho allowed on taxation : — 

Feet to iiolkUor or Altornf;/, an hrticffn pnrfif ami pnrli/, and altto between 

Attorney and Client. 
Instructions for voluntary assignment or eoniimlsory liipiidation, or for 
petition or brief, when matter is required to be arg\ied by counsel, 

or for proceedings on appeal $2 00 

Drawing and engroHsing all proceedings, notices, &c., per folio 20 

Copies thereof when re<juired or necessary 10 

Every coninion attendance on Juilge 50 

FjVery special attendance on Judge 2 00 

Every special attendance at meeting of cretlitors or before assignee .... 1 00 

Fee on writ of attaclimcnt against ins(dvent, including attendance .... 2 00 

Every rule of CV "irt or order of Judge, including attcndouco 1 00 

I'^ce on every other writ 1 00 

l*rei)ariiig claim of creditors, procuring the same to be sworn to in ordi- 
nary cases when no dispute allowed at meeting of creditors 1 00 

Every necessary letter 50 

Attorney of petitioning creditor for examining claims fded up to api>oint- 

ment of assignee, for each claim 50 

Assignee's attorney examining ejvch claim recpiired by assignee to be 

examined 50 

Preparing for publication advertisements required by Act, including 

copies and attendance in relation thereto 1 00 

Preparing, engrossing and procuring execution of bonds or other securities 2 00 
Mileage actually and necessarily travelled, if beyond the county where 

attorney resides, per mile 10 

Bill of costs, engrossing, including cojty for taxation, per folio 20 

Copy for the opposite party, or for attending taxation of costs 50 

Copy of taxed costs to be filed with the Clerk 60 

No allowance made for unnecessary documents or papers, or unnecessary 
prolixity in the same. For all other necessary proceedings not pro- 
vided for in this scale of fees, the charges to be the some as for like 
proceedings in the Supreme Court. 



NKW nnuNswirK tauiff. 



19S 



To Cuaimfl. 
Koofl oil argutnont aixl I'xaiiiiiiiitioii luifnru Judge t«> )»u nllowcil ntnl lixcil 
by tliu •liiilgt) AM Hliall a|)|>Lar when |irii|H'r uiulcr tliu circuuiHtuiicut 
of the civBo, not uxcvuiliiig twenty iloUttni. 

To thf Vlerk of thf Counly Court. 

Mignin){ every writ, riilo or onlor 50 

Filing mill entering ovury «lue«l of asnignnicnt, rcconl of nppointniont or 

att.-u:iinient 1 (H) 

Kiling every other papor 10 

Heading every paper in Court I 

Swearing aflidavit or atlininiutering oath 'JO 

('ol»y of all proeeedingH furniHhed, per foli<» of l(X> word« 10 

(!ertilicato under Seal of the CNmrt (>0 

Kvery other neceHsary ccrtiiicato 30 

Kvcry meeting of creditors held Itefore the ( 'lerk 1 00 

K(»r keeping record of proceedings in each cjiae I 00 

Kvery nearch 20 

(tunoral Hearch in one day relating to one eatto or iirm r>(> 

For taking niinutcH of evidence liefore .Indgt), when re<piired, ]ier folio. . 10 
Oopy of minutes of evidence for Supreme Court or Judge thereof, on 

appeal, to he paid Ity ai)pellant, per folio 10 

For scheduling and tiling all papers from assignee after discharge 1 50 

For other services not inchnh'd in the above scale, to he allowed the 
■amo rates as are allowed for like services in the (,'ounty Courts of 
New Lruuawiek. 

To the Sheriff. 

The same fees aa on corrcsi)onding proceedings in the Supreme Court. 

To Wifnis.icH. 
Tlie same fees oa are allowed in the Supremo Court. 

To the Interim Asuijnee, Atinifpier, or (lunrdlan. 

Orawing affidavits, notices, advertisements, &c., and all other necessary 

documents and papers, per folio 20 

Making other copies wlicn recpiired, per folio 10 

When more than five copies are required of a notice, five only to be 
charged— unless tlie notice is jjrinted, and in that case the printer's 
bill to be allowed in lieu of copies. 

F^or every witufjss to be examined before him 

Mileage for distance actually and necessarily travelled, per mile 

F<»r calling lirst meeting of creditors and attending thereat 4 00 

For attending meeting of creditors, other than lirst, and keeping minutes 3 00 
Attendance at Clerk's office and writing duplicate record, per folio .... 
Guardian per day . . I 00 

All postages and printer's bills to be added. • 

13 



l1' p 









^4 



i I 

-I 
I-; 



194 



INSOLVENT ACT OF 18T5. 



Ordered, the foregoing fees and charges shall, in each and cMcry case, be 
taxed by tlie Judge, and, togetiier witii the commission provided by the Act, 
shall constitute all char;L,e8 to be made for any services rendered under tho 
aaid Act ; and a copy of the bill of c(»Hts so taxed shall, in all cases, be liled 
with the Clerk of the ('ourt, iuiiuediately after such taxation. 

It is further ordered, that all papers relating to any insolvency, after the 
discharge of the "assignee " and the allowance or disallowaUL-o of tho certifi- 
cate tofhc insolvent, shall be file.l with the Clerk of the Court, and kept 
»mong the records thereof ; and that a copy of this Tariff of Fees shall be at 
all times posted up in a conspicuous place in the ollice of the Clerk ami 
Assignee respectively. 



I 



GENERAL INDEX. 



AiwcONDiNCi — Debtor commits act of ])aukruiitcy, 4.S. 

Dtfomlant, service of writ on, 5."). 
Account — Assignee must render liniil, SO. 

Neglect to keep books of, may disentitle insolvent to discharge of 
first class, 80. 

Overdrawing ]»y insolvent person, eirect of, lol. 

To be rendered by assignee, 10(5. 
Act of 18(59 — Assii,Miee3 under, what portion of this Act liable to, 81. 

How it diffei-s from preseut Act as to demand of creditors for assign- 
ment, 40. 

To whom ai>plicablc, 33. 
Act of 187o — T'> whom applicable, 33-7. 

To whom not applicable, o8, 39, 40. 
Act of bankruptcy, what, 40. 

Within what time after, proceedings for compulsory liquidation must 
commence, 40. 
Acts respecting larceny, 152. 
Acts repealed, 1(50. 

Additional security may be demanded from assignee by creditors, OS. 
Administrator — Insolvent not discharged from liability as, by discharge, 96. 
Advertisement, real estate of insolvent, sale of, 10l2. (See Notice.) 

lieal estate of, what it must contain, 102. 
Affidavits — Before whom to be sworn, 124. 

For writ of attachment, form of, 103. 

Proving claim, form of, 171. 
Agent — Assignee to be deemed, 152. 

Bankruptcy of, right of principal, 124. 
Allowance to insolvent, 110. 

Dividend sheet, tu be inserted in, 1 16. 

Subject to contestation, 110. 
Ajnendnients under Act, 129. 

Amount for which creditors holding security shall rank, 110. 
Answer to demand to assign, how served, 51. 
Apothecaries, Act applies to, 34. 
Appeal — Assignee, neglect of to file papers on day of presenting, effect of, 138. 

Costs of, 1.39. 

E\ndence etc., need not be set out in petition of, 139. 

From judge, in provinces except Quebec. 
" in Quebec, 137. 

Notice of to be given, 1.39. 

Objections, mode of raising, in proceedings in, 138. 

Petition of. need not be signed by appellant, 138. 

Procedure if appellant does not proceed with, 138. 

SoUcitors of appellant cannot be sureties in, 138. 

Time to take objection to sufficiency of suretieu in, 139. 

To whom to be addressed, 138. * 

Within what time to be prosecuted, 138. 



H 



!tt 



11)0 



INSOLVENT ACT OF 1875, 



hi 



Apjtellant, not prosecuting ajipeal. liaMc for costs, 13S. 

Application Assignee, for recovery of effects rotaiuod hy insolvent, 155. 

Insolvent, for (liscliarg<', JM). 

Juilgc, to eontirni discliarge, 83. 
Appointment —Assignees, G!).. 

Inspectors, 72. 

< Mlicial assignees, 08. 
Arl)itration on contingent claims, 109. 
Arrears - Salary. (See Salary.) 

Kent. (See Rent.) 
Arrest. (See Imprisonment.) 

Malicious, damage f(»r, notafTccted by discharge, 96. 

I'nder judgjnent suninions, 9"). 
Assault, (lainages for, <lo not jiass to assignee, fiO. 
Assets, alwence of, ellect on release of insolviMit from jail, I3G. 
Assignee— .Accounting party to estat(!, may be removed, 7.1. 

Ap])ointinent of by creilitorf, may be resolution in writing, 69. 

Absconding, will lie removed, 71. 

Accounts, to o[)en separate for, with each estate, 77. 
" to be rendered by, KMj. 

Act of 186!), under wnat portifm of this Act application to, 81. 

Action, not entitled to notice of, 09. 

Agent, to be <leemed, l.")2. 

}V\\\ of sale <»f debts by, form, 109. 

Bank book to be jtroduced by, at meetings, 79. 

Chancery suit by insolvent, should be made i)arty to, 76. 

Clerks of insolvent, may employ, 1 17. 

Company, to in(|uire into afl'airs of, 156. 

Contestation of claims by, 1 18. 

C(»urt, sul»ject to summary .jurisdicti<m of, 70, ]'At\. 

Cho.sen by parties not entitled to vote, will be removed, 71. 

Cliosen by fraud, will be removed, 71. 

Chosen witliout his consent, and declining to act, will bo removed, 71. 

Commission of, 78. 

Cannot purcliase insolvent's ])roperty, 71. 

Counsel, employment of, by, 78. 

Commission of, on sales, 105. 

Deed of re-couvejance by, to insolvent, 93. 

Deed of real estate from, 170. 

Duties of, 72. 

Death of, estate in whom veste<l in event of, 80. 

Deed of rc-conveyance by to insolvent, effect of, 93. 

Dejjosit and with<lrawal of moneys of estate in ))ank by, 79. 
" of register by, with official assignee, 78. 

Debts of, when partners, judged instdvent separately, 110. 
" due insolvent, may sue for, 74. 

Disbursements, actual, of, to be j)aid, 78. 

Final account and discharge of, 80. 

Fraudulent preference, may recover back subject of, 148. 

Guilty of misconduct, will be removed, 71. 

Having interest adverse to boily of creditors, may be removed, 71. 

Insolvent not freed from liability as, by discharge, 93. 

Insolvent not necessary party to suit against, 75. 

Indictment jvg.ainst, how laid, 152. 

Interest on deposits in bank by, 79. 

Joint jiroperty of partners vested in, 116. 
9 Meetings, may call, on requisition, 79. 

Meaning of, 41. 

May be resident out of county in which insolvent traded, 70. 



GENERAL INDEX. 



197 



Assignee — iContin tied. ) 

May ill Knglaml sue for insolvent foreign plaintifT, 75. 

Neglect of, to lile papers on d.-iy of appeal, effect of, 138. 

Neetl neither he cretlitor nor otiieial assignee, 70. 

Notice of appointment of, form, 1G8. 

Not necessary jiarty to suit at law hy insolvent, 76. 

Not necessary partner to deed of compo.sitiou and discharge, 93. 

Notice of appointment of, 7-. 

Oliedience of, how enforced, 133. 

Obligation of, 8<>. 

Penalty incurred hy, for non-presenting petition for discharge, b6. 
" on, for uon-«listrihution of interest, 79. 

Petition of, for discharge, 80. 

" to remove, what necessary to he shown in, 71. 

Poverty, mere, of, not suliicieut to cause removal, 71. 

Powers of insolvent vested in, 74. 

Power of, over solvent partners, 1 IC. 

Punishment of for false entry in pass-hook, 80. 

Purcha.-^e, wishing to, property of insolvent, must petition to be dis- 
charged, 7U. 

Register to l>e kept I'y, 77. 

Receiver-(Jeneral, to pay over balance to, 78. 

Remuneration of, in winding up company. If)'.). 

Reconl of appointment of, evidence of regularity of prucccdiiigs, l.j.'j. 

Suit against ins(dvent, may defend. 74. 

Transfer to creditors, form, 107. 
Assignment — Co-partnership vests in assignee separate estate of insolvents, 61. 

Frauilulent, English definition of, 45. 

" principles on which act of bankruptcy, iustouces, 48. 

" what constitutes a, 146. 

Form of, 165. * 

How may l»e set aside, 57. 

Ma<le fraudulently, without efifect, 58. 

Not valiil unless accepted by assignee, 57. 

Of whole of debtor's property when fraudulent, 147. 

Registration of, 65. 

Time for enforcing limited, 56. 

To whc»m to l)e made, 56 

Voluntary, alxjlished, 57. 

When proi)erty of insolvent under seizure at date of, proceedings, 1*20. 

When judge may annul demand of, 51. 

When creditors may demaud, 19. 

When to lie made, 56. 

Without estate, and effect, whether valid, 57. 
Attachment — Writ of, 53. . 

Assignee, duty of executing, 56. 

Assignee, executing, may break open house of insolvent, 56. 

Affitlavit necessary to obtain a, 54. 
Form of, 163. 

By whom obtainable, 53. 

Bond, assignee of, cannot obtain, 54. 

Burden of proof lies on insolvent when seeking discharge of, on ground 
that his embarrassment only temporary, 64. 

Concurrent, 53. 

Ser\'ice of, 55 

Debt to obtain a, must not be for unascertained damage, 54.' 

Equity, order of court of, to pay mooey, not sufficient to obtain a, 54. 
Form of, 164. 

Grounds on which may be set aside, 64. 



I 



198 



INSOLVENT ACT OF 1875. 



n 



Attachment — (CJontlnufd, ) 

How (ilitained, HS. 

.)uiI)L,'m{'iit against insolvent after, 112, 

Notice of apjilication for, to be given to companies, 15G. 

Issue of, form of, UJo. 
Notice of, 1(55. 

Service of writ of, liow ma<le, 55. 

Time for return of writ of, 55. 

\\ iiat cre<litor8 may ohtain, 53. 

What facts authcicnt for a judge to order a, 54. 
Attorneys, employment of, hy assignee, 78. 
Auction, (lol)ts may l^e sold at, 98. 
Audit, accounts of assignee to be subject to, 81. 
Award — Contingent claims, 101). 

Damage claimed by lessors, 101. 

Balance — Assignee to pay to Receiver-General, 78. 

Insolvent entitled to, 121. 
Bankeils, Act applies to, .14. 

Bank I'ook to be produced by assignee at meetings, 79. 

Bankruptcy concerted between bankrujtt and creditor would not support 
tiat, 50. 

English and Canadian law as to, distinguished, 43. 

I'jiglish law as to, binding on Colonies, 95. 

(See Debtor, 43). 
Banks, Act not to ajjiily to, 33. 
Barbers, Act tloes not apply to, 34. 
Bill of co.st3. (See Costs.) 
Bond — Assignee, passes to, 58. 

Official assignee's, 08. 

Writ of attachment, assignee of, cannot obtain, 54. 
Books of account, debtor not keeping, ground for refusing discharge, 85. 
Breach of promise of marriage — Damages recovered against insolvent no ground 

for refusal of discharge, 87. 
Briekmakers — Act applies to, 35. 

Wlien within Act, .30. 

When not within Act, 36. 
Brokers — Act applies to, 34. 

Assurance, Act applies to, 34. 

Bill, Act applies to, 34. 

Distraining, Act applies to, 35, 

Ship, Act .applies to, 34. 
Builders, Act applies to, 35. 
Building Fund in Quebec, 155. 
Buying and selling, when merely incidental to occupation of party, does not 

constitute him a trader, 37. 
Buihling on one's own land does not make him trader, unless for specula- 
tion, 35. 
\XLlNO a meeting of creditors by debtor, for purpose of compounding, an act 
of bankruptcy, 43. 
Cilia on shares not liable as debt, 109. 
Carriers, except railway companies, within Act, 35. 
Curpenter — Buying raw material and manufacturing it, trader, 35. 

Not •' " •• workman for hire, 35. 

Causb to which assignment attributed, 63. 
Ceasing to meet liabilities generally, meaning of, 50. 
Certificate to be annexed to deed of composition and discharge, 82. 

Of assignee to be produced on application for confirmation of dis- 
charge, 84. 



GENERAL INDEX. 



199 



r*ertificate — (Cont'miml.) 

Of court .18 tct default of witness appearing, 127. 
Of hank as to lialance in liantls of assigncu, 80. 
(chairman of meeting of creditors, OG. 
Chancery, when court of, will allow creditor to aduiiuister deoea.<ieJ iusolvout't 

estate, 90. 
Chattels exempt from seizure, 02. 
Clerks — Privilege for wages, 11 G. 

" not limited to yearly Borvice, 116. 
Claim— Afiidavit ])roving form of, IG'J. 
Form and proof of, VIW. 
Not liled, how dealt with, 118. 
On dividend, how determined, 119. 
Secured, proceeding in the filing of, 114. 
What provable, on estate, 107. 
('Oal mine — Lessee of, when not trader, 37. 

Tenant of, when not trader, 37. 
Code of Civil Procedure to apply to sale in Quebec, 105. 
Coffee-house keepers. (See Keepers.) 

Collateral security not affected by discharge without coaaeut of creditors, 96, 
Collocated, meaning of, 42. 
Colliery, owner of, w hen not trader, 37. 
Commission of assignee on sale, 105. 
Commission of assignee, 78. 

Obtaining order to sell on, whether trading, 38. 
Commissions, witnesses to examine, how issued, 120. 
Commissioner may take certain affidavits, 164. 
Compavics, incorporated — Act applies to, 156. 
Assignee to inquire into, 150. 
Books, to exhibit, 156. 

Kefusal to produce, contempt of Court, 157. 
Inspector, after o.-der of, hold property in trust, 157. 
Estate of, may be wound up, 158. 
Meetings of creditors of, may be called, 157. 
Notice of application for writ of attachment, to be given to, 156. 
Officers of, may be examined, 159. / 

Order judge may make as to affairs of, 157. 
Receiver may be appointed for, 158. 

Remuneration of, 159. 
Resolutions of creditors of, 157. 

" " to be submitted to judge, 157. 

Composition and discharge — Act of 1809, provisions as to, how differ from thit 
Act, 83. 
Affidavit of insolvent to be produced on application for, 84. 
Assignee not necessary party to deed of, 93. 
Certificate to be annexed to deed of, 82. 
Confirmation of, 83. 

•' what claims affected by, 94. 

Creditors accepting composition mider, cannot assert deed not 
^ executed properly by them, 91. 

" non-assenting, deed of, when not binding, 90. 
" majority of, deed of, assented to by, 90. 
" consent of, to deed of, should be absolute, 92. 
Deeds of, contestation of, power of judge, 93. 

Effect of unreasonable provisions in, against non-assenting credi- 
tor, 92. 
English, binding on Colonies, 95, 129. 
If condition of, dc unfulfilled, rank of creditors, 89. 
May be conditional, 88. 



Jl 



200 



INSOLVENT ACT OF 1875. 






i 



Coini)08itiou and Discharge — (Contlnwd.) 

Must uontuiii inutiuil ngi-uumont betweemlel)tv^r and creditor, 03. 
Truatec'H of, duty of, '.)'!, 
\Vliat aro unreasoiiahlu provieiions in, 91. 
, Wlieii void, W, 1)1. 

Whuii not l)in<linj,' on nnn-aHscnlin^' oreditorw, 02. 
AVluii uruilitors ontitlod to conipo.sitiou on signing, invalid, IK). 
When it may l)e made, \Y1. 

Witii joint cn,'ditorH of (iiiu without reference to separate crtdi- 
I tors of partners, invalid, 90. 

nividend, ratio of, to be obtained by, stated in certificate annexed 

to deed of, 82. 
EHect <m non-assenting creditors, 91. 
Krau<l on part of insolvent <lisentitles him to, 85. 
(iarni^<hee, deed of, l)ar to execution against, 90. 
Insolvent, deed of, not executed by, invalid, 90. 

" when not entitled to coulirmation of, 84. 

May be approved of or not, 82. 
Meeting to consider, how and when called, 81. 
Negotiable jiaper, holder of, unknown to insolvent, how affected 

by, 94. 
Schedule attached to, irregidarity, effect of, 95. 
Compulsory litpiidation. (See Attachment, writ of. ) 
Estate of insolvent liable to, r)2. 
Limitation of time for proceedings in, 52. 
Concealment within Province, an act of bankruptcy, 43. 

(joods by insolvent, a misdemeanor, 153. 
Concurrent wiits may be issued, 53. 
Contirmation of dischivrge. (See Discharge.) 

Conniving by debtor at seizure of effects, an act of bankruptcy, 46. 
Consent of creditors obtained by fraud, 98. 
Conservatory proceedings may be instituted, 58. 
Considerati(!n, contracts made without, presumed void, 139. 
Construction of statements in pleadings, 128. 
Consul may take certain afiidavits, 124. 
Contestation of claims — How they may be made, 118. 

Costs of, 118. 
Contingent claims provided for, 109. 
Contracts of insolvent, when deemed fraudulent, 140. 

Of insolvent, when voidable, 141. 
Conveyance of property by debtor, otherwise than in accordanco with this 
Act, void, 47. 
When deemed gratuitous or fraudulent, 139. 
Conversion of goods, &c. , what meant by, 38, 

Co-partnership, assignment of, vests in assignee the separate estate of part- 
ners, 61. 
Copy — Authentic, of deed of assignment and transfer, 65. 

Of resolution nominating assignee, 69. 
Costs of appeal, 139. : :. ■ 

Application on objection to disposal of estate, 73. 
Composition and discharge to be paid by insolvent, 82. 
Creditor, making unreasonable demand to assign, liable to treble 

costs, 51, 
Estate, incurred in management of, 120. ,, ^,1 ^ 

Execution, incurred under, privileged claim, 48. 
How taxed, 132, 
In insolvency, on what chargeable, 129. 

" in what order chargeable, 129. 

Counsel, employmemt of, by assignee, 78. 
County, meaning of, 40. 



OENERAL INDEX. 



201 



debt (luterminctl 



'Court. (Sec Judge.) 

Aasi'rnee subject to Hummary jurisdiction of, 133. 
Disciuirge inr.s*' bo oonHr:'i<' I oy, 98. 
How, may enf<)r;e as-siguee's obedience, 133. 
How roasnn.iblo probul»ility of insolvent paying 

by, ir.i. 

May com^M'l Hdlvent partner to produce books, 116. 

May pnniHli disobedience to proucss, 127. 

Meanii g of, 47. 

Kule, t > make, 132. 
Tovenant not t(( assign not affected by assignment in insolvency, 100. 

Hut by viihintary assignment, 1(H). 

Breach of, for titl'), not provable, 110. 
('ow-keepers, not in all cases within Act, 3.'). 
Credit— I'ur chase of goods on, l»y persons unable to pay, a fraud, 150. 

May be allowed on sale of real estate, 104. 

Terms of, to be apjjroveil by creditors, 104. 
Creditors — Affidavit of, necessary to procure assignment, '49. 

Assent of, to composition deed shouhl be absolute, 92. 

Aflsignee, may appoint, who is not creditor nor ofhcial assignee, 70. 
Appointment of, l)y, (59. 
Not to act as agent of, unless authorized, 72. 

Assignment, when may demand, 49. 

' ' demanding, must elect domicile, 49. 

Attachment, writ of, what may obtain, 53. 

Claim of, not to be divided for voting, 70. 
" not tiled, how dealt with, 118. 
" contingent, on, 109. 

Cannot prove on contract void by statute, 124. 

Composition not affected by, 41. 

Composition and discharge, may approve of or not, 82. 

Contestation of claims, may order, 1 19. 

Contracts made with intent to defraud, void, 141. 

Debt, i)roving, in ignorance as to lien, rule as to, 113. 

Executor of, declining to prove debt, procedure, 124. 

First meeting of, 65. 

Insolvent to attend meetings of, 66. 

Insolvent's estate, may object to mode of disposal of, 73. 

Insolventj may examine as to his expectation of paying debts, 151. 

Meaning of term generally, as to voting, composition, &c., 41. 

Mortgagee, how he may proceed, 113. 

!Non-assenting, how far composition against, binding, 92. 
" effect of composition and discharge on, 91. 

Notice of meetings to be sent to, 65. 

Of insolvent retain their lien on goods in hands of assignee, 62. 

Oath of, as to non-payment of claim, 115. 

Partner, individual, can vote for assignee for partnership estate, 70. 

Partnership and individual partner, rights of, 113. 

Proceedings of, at first meeting of, 123. 

Proportion of, necessary to grant allowance to insolvent, 116. 

Proceedings in the filing of a secured claim of, 115. 

Proceedings, special, may take at their own risk, 99. 

Rank and privilege of, 1 10. 

Rank of, if conditions in deed of composition and discharge be not 
fulfilled, 89 

Representative of, must have letter of attorney, 70. 

Rights of, to arrest insolvent, 136. 

Rights of, who has seized insolvent's goods under execution, 111. 

Security, holding, proviso as to, 1 10. 

2^>ecurity, holding, right of proving, on estate, 113. 



''V, 



202 



INSOLVRNT ACT OF 18T6, 



^, i.: 
1 
I 



it", 

jiv! 
I'll 



Creditors — (Continued.) 

Ht'oiirity, hoUliii^, rule as to, 113. 

Siilu (if (lcl)tH, may siiiiction, 9S. 

Surrt'iitl'M- of HC'curity Ity, effect of, 125. 

Sclietlule of, form of, !(»(). 

Wlioii (lobtH not ad'ootud hy «liHcharge, muy accept dividoada, 96 

Wlit'ii pa/muiit to, not void o- frauilulcnt, 148. 

Taking conHitlcration for jjranting diHcharge, 154. 

What, HJiall vote at meetings, 70. 

Voluntary payment to, wlieii fraudulent, 149. 
('urator. (See Trustee). 

DAMAUE8 — Unliquidated, claim againat insolvent for, 90. 
*' not provable in insolvency, 107. 

When they become debt, 107. 
Death of assignee, now estate shall vest, 80. 
Death of insolvent, etl'ect of, I '-'!). 
Debtor —Allowing exooution to be unsatisfied, 48. 
Act of bankruptcy of, 43. 

" by agent, must be actually committed, 43. 

" main ingredient of, ditlerence between English 

and Canadian law, 43. 
Assignment, making, otherwise than under Act, 47. 
Absconding, 43. 
Acknowletlging insolvency, 43. 

Ceasing tc: meet liabilities generally, meaning of, 50. 
Conniving at seizure under execution, 46. 
Concealment, 43. 
Decree, disobeying, 47. 
Default, making, to appear, 47. 
Estate of, when subject to liquidation, 52. 
Fraudulently assigning, 44. 
Going al)road for legitimate purposes, 44. 
Imprisonment of, 47. 

Insolvent estate, to, defence of, against assignee, 64. 
Judgment, allowing to go by default, not act of bankruptcy, 47. 
Meaning of, 41. 
Property of, placed in his hand for specific p, I'iose, does not pass to 

assignee, 59. 
Property of, excepted from seizure by statute, 59. 
Property of, held in trust for another, does not vest in official 

assignee, 59. 
Protracting stay abroad, 44. 
Rule, disobeying, 47. 
Secreting effects, 44. 

Time for commencing proceedings to enforce assignment of, 52. 
When insolvent, 42. 
Debts — Antecedent, discharge of, consideration for promise to pay, 95. 
Assignee to sue for, due insolvent, 74. 
Contingent, not provable, 109. 
English discharge, bar to, 129. 
Foreign, discharge no bar to, 128. 
General rule as to what, provable in bankruptcy, 107. 
How court forms judgment of ability of insolvent to pay, 151. 
Rights of purchasers of, due insolvent, 99. , 
Sale of, due insolvent, 98. 

Transfer of certain, due by insolvent, void, 149. 
What, not provable, 107. 
What necessary in, in order to set-oflF, 126. 
What, provable, 107. 



OENERAr. INDEX. 



203 



l)ofAult, proof of, in not olwying procoBs, 127. 

Delay iiiny ))u gnmtol in ciiHuH of incorporated <'om])anics, IfiS. 

Denwuul of aMHi^'iiniont Itj' oruditori*, form of, lO.S. 

liiinit'itiiin of time for proL>i-u<liiiL; inuK-r, S2. 
MulirioiiH or unfoiinilLit, i^tiect of, 51. 
May he oonti-stctl l>y «lc-l)tor, 51. 
Wlicn cannot )>c made, 51. 
Deposit of money in hank hy A.s8i;.(nee, 70. 

I'»y way <if fraudulunt jjrcfcrcnco, void, 143. 
DisljurHcnicnts, liow cliargeahle on estate, 121). 

J)iaoharge — AlIidaMt of in.s<dvent to he pr<i(hiced on application for, 84. 
" on ap]>licut.iun for confirmation of, form of, 1C8. 
Amplication for eontirmation of, may l)e opposed, 83. 
Cnaraeter <»f, nuiy he nuMlilied, 80. 
< 'onlirmation of, 83. 
Damages recovered against insolvent for hrcach of promise, no ground 

for refuxal (»f, 87. 
Document.><, what, evi<lence of regidarity of procedure, 155. 
Knglish, l>ar to action in Canada, 12!). 
Foreign, not to har dehts contracted in Canada, 128. 
Fraud on jiart of inscdvcnt disentitles him to confirmation of, 85. 
(.rounds that should weigh with judge ill granting, 1)8. 
(Jro\uid.s of o]>po8ition to, 1)7. 
llypotiiee, not atleetefl hy, }MJ. 
If not ohtainetl from creditors, procedure, 90. 

Insolvent, on application for order for, may read his examination, 8<». 
Judgment summons, docs not prevent dehtor heing committed 

upon, 1)5. 
May he refused if insolvent's estate pays less than thirty-three cent? 

diviilend, 88. 
May he granted, suhject to any condition, 87. 
Mortgage not affected hy, 96. 
Must he continncil hy court, 98. 

Neglect of insolvent to keep hooks may disentitle him to, 84. 
Notice of application for conlirmation of, form of, 168. 
Notice of applicati(m for, form of, 168. 
Ohtained hy fniud, void, 98. 

Penalty for not presenting petition for, by assignee, 80. 
Petition for, of assignee, 80. 
Proviso in certain provinces as to, 85. - 
Secondary liabilities not affected by, 96. 
Seduction, to get rid of damages for, cannot be refused, 87. 
What liabilities not affected by, 96. 
When confirmed, deemed valid, 86. 
When insolvent not entitled to confirmation of, 85. 
Discovery, insolvent not making full, guilty of misdemeanor, 153. 
Disobedience of process, how punishable, 127. 
Disposal— Court to determine objections to, 74. 
Creditors may object to, 73. 
Creditors may order, 73. 
Estate of insolvent. (See Sale. ) 
Inspectors may order, 73. 
Of goods not paid for, a misdemeanor, 153. 
Disposition of property by debtor with intent to defraud creditora, 44. 
Dispute as to amount of any creditor's claim on dividend, 119. 
Disqualification of judge, 131. 
Distribution of interest on special deposit, 79. 

Of money realized from sale of real estate, 104. 
Subject to secured claim, 105. 



», Ml 






204 



V<80LVENT ACT OP 1876, 



F)iHtrict, mciiiin^ of, 40. 

UividciKl Ammj^iiou, to l)o madu liy, I0<> 

CliiiiiiH on, ohjcctutl to, how (lutoriiiined, 119. 

N<itio»! of, lis. 

Notifi! of, form of, 171. 

Of iiiHolvoiit'H iistiiti! imiHt rcftlizo thirty-three cents in dollftr, or tli«i- 
cliarge refused, 88. 

rftyiiient of, 118. • 

\Ui\ik of ereditoi'H on, IK). 

Siinty entitlid to, ii|>i>ii tlel>t proved by prinuipul paid iu full, iU8. 

lIiii'IiiinR'il, how deult willi, I'JI. 
Docunu'iit«, olliciid iiisHigiiee to Heize and attiich, 5. 
Doniieile, for Hervieu of papertt, to he choseu by creditors, 51. 
Drover, II tiiuler, 'M. 
DutieH of u.sMignee. (See AHHigiiee). 
Double proof, doctrine of, when upiilieuble, 116. 

Kmpi,oykks to have special lien for arrears of wages, 117. 

FjudorHing, rashnens of iiisolviiit in, 87. 

Kidargenieiit of time for making assignment, 51. 

Ksi-ape of debtor from custody of sheritl', 1.S4. 

Estate and ellVcts of insolvent —Writs (»f attachment may issue against, 5.3, 

What claims shall rank on, 100. 

Sale of, in Quebec, 102. 

Vested in oflieial assignee on assignment, 58. 
Evasion by del)tor, on examination, a gooil ground for opposing discharge, 85. 
Evidence to be adiUiced on hearing petition, (.1. 

Of purchase of debts, 01). 

Of failure of witnesses to attend, 127. 

Certain (h)cunient3 to be, 155. 
Examination. (8ee Insolvent.) 

Debtor seeking release from prison, 134. 

Insolvent, 0(). 

'J'o be signed by him, witnessed by assignee, 66. 

Of other persons, 07. 

Refusal by, to appear, 67. 
Execution — Articles not seizable under, 62. 

Costs of, allowed to seizing creditor, 48. 

Effect of seizure on, after assignee appointed, 110. ' 

I'^lfect of allowing to remain unsatisfied, 48. 

When property of insolvent under, at assignment, procedure, 120. 
Executor — Creditor declining to prove ilebt, procedure, 124. 

Insolvent not dischargeit from liability as, by discharge, 96. 

Testator, property in hands of, does not pass to assignee, 60. 

Trader, when not trader, 37. 

When trader, 40. f 

When not trader, 40. 
Exemptions, what articlee are exempt from seizure, 62. . ^ 

Expectations, what court deems reasonable to pay, 151. 
Expenses allowed to witnesses, 128. 
Extravagance in expenditure of insol vent may cause suspension of discharge, 86. 

Fa-CTOR — Bankruptcy of, how goods in hand of, for sale, affected by, 59, 

Facts in pleading, how set forth, 128. 

Failure by official assignee to pay over moneys, 69. 

To appoint an assignee, effect of, 69. 
False bidding, order of re-sale may be obtained for, 104. 
Falsifying books of account by insolvent, misdemeanor, 154. 
Farm, lessee of, not trader, 36. 



<; 
<; 



(iKNKItAL INDKX. 



Furmer— ^\^1^n not trinliT, 38. , 

Wlu'ii traiUr, .'W. 
Tr:i.l.T, :»7. 
Not trailer, 37. 
Koch, tarifl'of, to Ite ftrniiij,'i<l Ity ju<l;icfl, 1.T2. 
Fi(;titiiiUH liiHHcs, insnlvi'iit Htiitiii^, inistlciiiciiiior, I/S4. 
Filial account Wlicii to lio made l>y aHMiguvu, 80. 

To Ik! aiitlitcil, S((. 
KiHhurniaii, when not trailer, .37. 
Forcil)l»! entry, wlirii aMHigiuH' allowed to make, rtO. 
FrofoloHuro suit ai,'.iiii«t asHij^iiccH, iiisolvi'iit not uuccBsary party, 75. 
Foreign insolveney laws, dit'eliarj^'e undi r, J'JH. 

** eretlitorn liavi; to he notilied of incetinj,' nf creditora, 122. 
Forfeiture l»y assignfe for m-electiiig to account for interest, 79. 
Hy a creditor receiving a preference, 154. 
How reeoveralilc, l.")l. 
ForilW to he used under ,\ct, 128. 

Assigneu'fl notice of appointment, 1(58. 
Assigninent, ICia. 

AtlJdavit verifying fltatenient of li:vl>ilities and ntatementsof asDcts, 176. 
" on application for conlinnation of diBcharge, lOH. 
" for attadiintnt, writ of, 1G,'1. 
** ]»roving claim, 171. 
Hill of Hale of debt l»y assignee, l(»n. 
IJond of a surety to secure composition, 173. 
Contt station of claim, notice of oltjectiou, 177. 
Deed of eomi>osition and dischaigc, 172. 

" of real estate from assignee, 170. 
Demand to assign, 1(13. 
Notice of issue (»f attachment, K)'). 

of aiiplication for conlirmation of discharge, ICS. 
of application for discharge, 1(5!). 
of ihvidend, 171. 
Order conlirming c<msent to discharge, 174. 

" conlirming deed ot composition ami discharge, 174. 
" of discharge, when granted after exjtiratiou of one year from 
date of assignment or writ of attachment, 175. 
OfTicial assignee's notice of meeting, 1G7. 
iSchetlulc of creditoi-s, 1(5(5. 
Transfer to creditor's assignee, 1C7. 
Writ of attachment, 1(54. 
Fraud a ground for opposing discharge, 85. 

Inability to meet vteht not always, 151. 

Insolvent not necessary party to l)ill against assignee for, 75. 
On part of insolvent, plea against discliarge, 150. 
Onus to ]>rovo, against, insolvent, on creditors, 151. 
Presumption of, 143. 

Purchase of goods by persons knowing themselves unable to pay, a, 150. 
Fraudulent preferences, 139. (See Preference.) 

<i.\UNisHEE, deed of composition bar to execution issued against, 90. 

Oazette. (See OlKcial (iazette. ) 

Oooda, purchasing on credit, when fraud, 150. 

Government to hold dividends unclaimed at the end of three years, 121. 

To pay interest on such dividends, 121. 
iiovemment Stock not within Act, 38. 
(joveruor in Council, appointment of official assignees vested in, 68. 

Powers of, 150. 






206 



INSOLVENT ACT OF 1874 



ilrazitT — When not trn<liT, '.W. 

WImm ti.Kl.r, IV.i. 
(troinnU lor <i|iiM)Miii^ iliMchnrMt*, M. 
(hiiinliiiii of iiilitiit iiiiiv |>r<tv(i claiin, l(K), 
Uuumnteii cliiim on tluU, wIrii iiiiiy hu withilniwii, 110. 

IIkiiis «>f IiiHolvcnt may '•<>iitimio proc-cutlingM, IU7. 

H..\v f;ir liiil.K', l-itJ. 
lIorHcH, oci-iiHiiiiiiil |iiiri-liiiMc iui<i nalu of, iiot trailing, 37> 
Hotflktt!|»frH. (S<t! K('c|K>rH. ) 
KuhIkukI, txiiininiitiiin i (t7. 

Hyptitheoary ('rnlitiiiH nMiHiMit i>f, rtHHiircil to Bhorton time of ft(lver> 
tiKiiix, lO'J. 

CruilitiiiH uiiiy roi|iiiru luilu of pro[>urty Hiihjout to claim, 10<'i. 
Ilypothvc. (S«'«' Moitj^a;.'!'. ) 

Nol ntl't'ctud l»y discliarj^i" of itiHolvont, 05. 

Spi; ial, on real tstiito ni.iy l»o ri'nirvcil l»y ilcoil of sale, 103. 

Sail! may l»u niailu Hultjoct to, 104. 

I'ertilicato of, regiHtrar aa to, 104. 

Ili.koai. trailer may lio insolvent, 38. 

Dultt no foundation for duniaml to anfti^n, HO. 
InuuovalileH Sale of, in t^iielK-e, ahj<i}j;ni'e to olituin, 104. 

CertilieatLH of the hypothecs on, lOt. 

Certiiicate of registrar as to, lOi. 
lmpri»onnient— Assignee may he Henteneed to, 152. 

Deht, an act of hankniptoy, 47. 

For disohedience of judge's order, l.'{3. 

Fraudulent insolvent, 15'J. 

Insolvent may apply for diseharye from, 134. 

Insolvent liahle to, for fniud, 150. 

I'ersons ohtaining money and goods on fal^e pretences liable to, 150. 
Incorporated C'ompanies. (See Companies Incorporated.) 
ln<lietment against assignee, how laid, 152. 
Infanta —When traders, 39. 

When not tr.aders, 31). 
Inn- Keepers. (Set; Keepers.) 
Insolvency — Contemplation of, 147. 

Meaning of, 144. 
Insolvent Acts rejuialed, IfiO. 
Insolvent Act of l.S(» 4 repealed, 16f>. 
" of l.S()!» repeiiled. ICO. 

'• of 1875 "When it comes iu force, 159. 

Applies to all Provinces, Mil. 
Insolvent — Action may maintain relating to, after acquired property, GO. 
" *' " on contract made by liim, (JO. 

Adjournment of examination of, nine die, sometimes same effect a 
refusal of discharge, 87. 

AlHdavit of, nacessary on application for confirmation of d'"* 
charge, 84. 

Agent, rights of principal, 124. , • 

Assets, reputed proi>erty of, pass to assignee, 61. 

Allowance to, 116. 

Assignee of, does not acquire priority over prior vendee, 65u 

Assignee to sue for debts due, 74. 

Assignee may defend suits against, 74. 
■ Assignment of, does not displace solicitor's lien, 61. 

Balance of estate to be paid to, 121. 

Bequest to, passes to assignee, 60. 



QENEUAL INDKX. 



207 



<< 



Inaolvent— (rrid/Z/K/fr/.) 

Hill ii^iiiiiNt UHMi^tu'o, not iHMU'HMnry party to, "!!>. 

Kill Witlinllt KtitVc, CIllllKit lil«<, 7(i. 

Uiirdvii nf i»roof lioH on, wlu-ii m-fkiii^^ <li!<ili!irKti of writ <»f nttAch- 
nii'iit on thu grouuil thut Uih utulmrrtMiiiuiiut in only tuiupo- 
niry, M. 
<'oniniitt«'il, niiiy lie, 03. 
('oncciiliiicnt of ^ooiIn l)y, vtroct of, {M. 
Conlirniatinn of dist'liur^c, when not en '*Ii't1 to, 84. 
Continuing; iiUHincNit uttur iniiolvoiu-y, n;iiy or may not l»o guilty of 

friui.l. H7. 
Continuing linninciin when lit; knows hininolf unal>li! to pay hia debta 

not HoinctiniL'H fraud, l<*)0. 
Contract of, wIhii voidnldc. 141. 

Contrat:tn, griitiiitouH, inado l>y, wlum frandulont, 139. 
Go-piirtncrHliip, wlun partner not entitlud to draw money from, 77. 
Cnstt in HuitH iigainHt, 117. 
Creditoru of, retain tlieir lien in property in IuuhIh of nnnignuc, 62. 

" to att«'nd meeting' of, OG. 
Dama^^eH, unliiiuidated, -locruing to, guvH tu Msigneti, GO, 
Duntli of, en'ot't on procci'dings, I'iU. 
Deotor, when dt'enied, 4'J 47. 

Diuehargu of, does not atl'eet niort>;ago8 madu by, 00. 
" of, (d)tained liy frau<l, KH. 

" of, doe« not prevent being committud ou judgment «um- 
mons, ur*. 
of, what claima afVected by, 94. 

not entitle<l to, for dubt« aeerue<l after issue of writ, 60. 
of, doeA not ailect aeuondury liubilitiuH, 90. 
T)i8])08al of estate of, 73 
Examination of, 0(). 

*' of, aH to rea.snnal)lo expectation of paying debts, 151. 

" of, on applieation for relea«e from jail, l.'U. 

Examined, may be, at meeting of creditors as to his aflairs, CO. 
Execution on goods of, after asnignnient, etlect uf, 110. 
Frauil ou part of, instances, 80. 

" *' disentitles to confirmation of discharge, 85. 

" " mu.st be jironil to convict, l.Vi. 

Frau(hilent preferences by, disentitles to discliarge, 144. 
Foreclosure suit against assignee, n(tt necessary p irty to, 75. 
Goods sent to, on terms of sale or return, di> not pass to assignee, 61. 
of, of a perishable nature, may be sold by ofHcial assignee, 59. 
sent to, on eve of insolvency, do not pass to assignee, 01. 
of, exempt from seizure in Ontario, 02. 

Quebec, 02. 
" New Brunswick, 03. 

" Prince Edward Island, 03. 

on hire by, do not pass to assignee, 02. 
Oaol, when judge may discliarge from, l.'W. 
How court forms judgment of ability of, to pay debts, 157. 
Husband of, liable to be examined, 07. 
Imprisoned, may apply to judge for discharge, 134. 
Imprisonment, right of, to release from, 1.30. 

*' of, for not handing money received to assignee, 156. 

" of, may be onlered, 152. 

Insolvency of, effect of, on suits brought by, 70. 
Labour, personal, may maintain action for, 00. 
Letters addressed to, provision as to, 130. 
Liabilities of, what not aft'ected by, 90. 



4( 
II 
II 
II 
II 
l< 



208 



IN30LVKNT ACT OP 1875. 



\'l i 



-•■ 






i'i 



<« 
tt 
U 
«l 
t< 
It 
<< 



Insolvent — (Confinio J.) ' ' 

Meaning of, 41. 

Minutes of examination of, to be kept, 135. 
Misdenieauor, acta of, to he, 152. 

claima, false, not (lenouncing, a, IHS. 

disposing of goods not paid fur, a, 154. 

falsifying l)»)()ks, a, 154. 

falsifying schedule a, 153. 

not making full discovery, a, 153. 

removing property, a, 153. 

stating lictitious losses, a, 154. 
** witldiolding hooks, &c., a, 153. 

Ohjeccions to proposed mode of disposal of estate of, 73. 
Onus of proving frauil against, on creditors, 151. 
Oi)tion of, to renew lease, passes to assignee, 101. 

*' to take lease, passes to assignee, 60. 
Payment by, wlien not fraudulent preference, 14G. 
" voluntary, by, when void, 145, 140. 

** after issue of writ of attachment, recoverable by 

assignee, 01. 
" what, to coustitu^^c a fraudulent preference, 148. 

Partner, owing debts as, 115. 
Partner of, solvent, riglit of assignee as to, 116. 
Penalty on creditor of, for taking consideration for granting dia- 

charge, 154. 
Penalty imposoi'. on, not affected by discharge, 96. 
Petition by, to set aside attachment, 63. 
Postponement of examination of, 1.36. 
Powers of, vested in assignee, 74. 
Preference obtained by threats from, not void, 146. 
Preferential claim of landlord in estate of, 101. 
Presumption that goods in possession of, are his, may be rebutted by 

custom of liis trade, 61. 
Privilege of clerks of, for wages, 117. 
Property given to, determinable in bankruptcy of, 142. 
Punishment of, for not handing money received to assignee, 155. 
Punishment of fraud on the ])art ot, 150. 

Purchasing goods, knowing himself unable to pay, a fraud, 150. 
Representatives of, how far liable on death, 1*29. 
Release from gaol, may be entitled to, though not disjharge, 136. 
Release of, from gaol, what ground sufficient for, 1.36. 
Rights of action of, for wrong merely personal, do not pass to as- 
signee, (50. 
Right of action to, for trover to goods of insolvent, passes to as- 
signee, 60. 
Sale of real estate of, 102. 
Sale of estate of, 74. 

Special damage to, for trover, does not pass to assignee, 60. 
Statement of, what it must show, 63. 
Statement of his liabilities, to furnish, assets, etc., 63. 
Subject to further examination, 67. 
Subsequent arrest of, 1.36. 

Sueiug after assignment must give security for costs, 75. 
Suits at law of, can be prosecutad without assignee party, 76. 
Suits in Chancery by, do not abate, 76. 

Surety of, entitled to rank in creditor's place, 107. " 

Sureties of, rights of, 107. 
Suspension of discharge of, 85, 97. 
Vt'hat claims shall rank on estate if, 106. 



GENERAL INDEX. 



209 



Insolvent — (Conl'mncd. ) 

When property of, under seizure or assignment, procedure, 120. 

Wife of, may not prove for arrears of alimony, 124. 
*' liable to ho examined, 07. 
Inspectors — Appointment of, 72. 

Remuneration of, 73. 

May sanction sale of debts, 98. 

May direct contestation of claims, 118. 
Insurance companies, Act not apply to, 33. 
Insurers of ships or their freights, &c., against perils of sea, within Act, 36. 

(See Broker.) 
Intent to defraud creditors — Contract made with, tc defraud, void, 152. 

Evidence of, 141. 
Interest on deposits, 79. 

Rebate of, 108. 

'I o appertain to estate, ^ 9. 

How distributed, 79. 

When and how accounted for, 79. 

Of unclaimed dividend to go to (Government, 121. 
Irregolarity in proceedings prior to appointment of assignee, 70. 

Joint stock companies, shans of, not within Act, 38. 
Judge — Appeal from decision of, 137. 

Application to, for discharge, if not obtained from creditors, 96. 
Assignee, may grant order to, to inspect company's affairs, 156. 
Assignee's petition for discharge, may grant or refuse, 80. 
Assignee, may order to produce pass-book at any time, 80. 

' * may commit for contempt, 79. 
Claims on dividend, may determine, 119. 

" contested, may decide on, 118. 
Demand of assignment, may annul, 51. 

" may enlarge time for contestation of, 51. 

Discharge of insolvent, may suspend, 88. 
" obtained from, effect of, 97. 
" of second class, may grant, 87. 
Disqualification of, 131. 

Disqual'fied, when, who to act in place of, 131. 
Ground of opposition to application for dicharge by, 97. 

" that should weigh with, in granting discharge, 98. 
Hearing of objections to disposal of insolvent's estate by, 73. 
Insolvent, should not impose hard conditions on, 87. 
In Quebec, no jurisdiction in matters commenced in Ontario, 67. 
Insolvent, may commit, 63. 
May release insolvent from jail, 134. 
Meaning of term, 41. 
Ministerial acts, not disqualified by, 131. 
Officers of company, may commit for contempt of court, 157. 
Petition by insolvent, may hear, to set aside writ of attachment, 64. 
Power of, on application, 97. 

" in application for discharge, 86. % 

*' if composition contested, 93. 

" in relation to companies, 157. , . _ 

Proceedings on application to, 97. 
Shall include deputy and junior, 41. 
When absent, in Quebec, who to preside, 131. 
Judgment suomions, discharge does not prevent debtor being committed 

upon, 95. 
Judgment debt, creditor proving for, consideration may be required, 124w 
Judgment against insolvent, effect of, 112. 

14 



210 



INSOLVENT ACT OP 1875. 



Wi 



ll 



■ii:' 



; 111. 









Turiadiction of court and judge aa to assignee, G9. 

Assignee to be suliject to suuimary, of court, 133. 
Jury fund in Quebec, 155. 

Keepers of cofTec liouses within Act, 35. 

Hotels within Act, 35. 

Inns within Act, 35. 

Lodging-houses, when within Act, 35. 

'* when not within Act, 35, 36. 

Saloons not within Knglish Act, 30. 

Taverns within Act, 35. 
Knowledge necessary to constitute fraud of a partner of, 141. 

Fraudulent transaction of firm, 150. 

Laborer not a trader, 34. 

Labour, personal, after writ of attachment, insolvent may sue for compcnsa' 

tion for, 60. 
Land, interest in, not within Act, 38. 
LantUord, preferential claim of, 101. 
Laudlonrs right to distrain not taken away, 133. 
Larceny, Act respecting, 152. 

Lease— Assignment voluntary of, by insolvent, breach of covenant not to 
assign, 100. 

Agreement for, not annulled by bankruptcy of intended lessor, 100. 

Covenant not to assign, not affected by assignment in insolvency, 100. 

Damage for termination of, how reckoned, 101. 

Insolvent's interest in agreement for, passes to assignee, 100. 

Lessor claiming damages for termination of, 101. 
Option of, to renew, passes to assignee, 101. 

Sale of, held by insolvent, 100. 

Option of insolvent to take, passes to assignee, 60. 
Lessor claiming damages, 101. 

How damages to be estimated, 101. 

To s^jecify amount under oath, 101. 

To rank upon estate as ordinary creditor, 101. 
Letters to Insolvent, jjrovision as to, 130. 
Letting for hire ccrastitutes trader, 34. 
Levy under execution, 1 10. 
Liabilities from which insolvent released by discharge, 94. 

Secondary, not affected by discharge, 94. 
Libel — Damages for, not aflfected by discharge, 96. 

Damages for, do not pass to assignee, 60. 
Lien of landlord for rent, 101. 

For costs, 110. 

Does not arise from seizure, 1 10. 

Of employee for wages, 110. 
Lime burners within Act, 36. 

(See Brickmakers.) 
Limitation of claim of landlord for rent, 101. 
List of creditors to be mailed with notice, 66. 

Of debts to be sold, to be kept by assignee, 98. 
Lodging-houae keeper. (See Keepers.) 
Lunatic, when trader, 39. 

Maintenance of wife and child, debt for, not affected by discharge, 96, ,. 

Majority of creditors decide questions, 122. 

Malicious arreat, damages for, not affected by discharge, 96. 

Demand to assign, effect of, 51. 
Marriage— Contracts in consideration of, when void, 141. 



GENERAL INDEX. 



211 



Marriage — (Contin ued. ) 

Kcgistration of contracts of, 134. 

Settleinonts made in consideration of, 143. 
Married women — When traders, 39. 

When not traders, 39. 
Meeting — (.See Cre<litor, Aasignee, Judge, Notice.) 

Assignee may call, on requisition, 79. 

Bank book to be produceil by assignee at, 79. 

Creditors, what, may vote at, 70. 

Calling of, of creditors by debtor an act of bankruptcy, 43. 

Form of notice of, 107. 

First, of creditors, GG. 

First proceeding at, 123. 

How questions shall be decided at, 122. 

Insolvent to attend, GG. 

Incoq)orated companies, creditors of, 157. 

Judge may order, of creditors of incorporated companies, 157. 

Notice of, to consider composition and discharge, d2. 
" of, how to be given, 122. 
" of, to be published in (iazettc, G5. 
" of, to be fjent to creditors by mail, 66. 
" of, pending delay, 122. 

Number of creditors at, not material, 70. 

Place for, 72. 

Proceedings at, of creditors of incorporated companies, 157. 

Resolutions at, of creditors of incorporated companies to be submitted 
to judge, 157. 

To consider composition and discliarge, how and when called, 81. 

When called, 65. 

Who shall preside at, 66. 
Mesne profits not provable, 108. 
Mine owners, iron, within Act, 36. 
Minutes of meeting to mention production of pass-book, 80. 

Of examination of insolvent to be kept, 135. 

Copy of, to be delivered to assignee, 135. 
Misconduct of insol . ent in management of business, 86. 
Miademeanors — Certain acts of insolvent to be, 152. 

Insolvent may lie guilty of, 152. 
Misstatement by assignee, punishment for, 152. 
Money of insolvent may be seized under writ of attachment, 56. 

Of insolvent passes to assignee by assignment, 58. 

Procuring atlvances in, with fraudident intent, 150. 
Mortgage, chattel, by insolvent, when not void, 144-146. 

Made by insolvent, when valid, 140. 

Not affected by discharge of insolvent, 95. 

Obtained by pressure from insolvent, 146. 

To, what costs liable, 150. 

Voluntary by insolvent, when void, 146. 
Mortgagee — Election of, to rank in estate, 114. 

Of chattels, remedy of, 133. • 

Mortgagor — Power of, when mortgagee bankrupt, 113. 

When release of equity of redemption by, fraudulent, 142. 

Na^vy, Commissioner of, when not trader, 37. 

Neglect of debtor to appear to be examined as to his debts, eflfect of, 47. 

By assignee to divide interest, 79. 

" to present petition for discbarge, penalty for, 81. 
Negotiable paper passes to assignee by assignment, 58. 

Holtlers of, unknown to insolvent, 94. 

Creditors holding, in which insolvent secondarily liable, rights of, 113. 



212 



INSOLVENT ACT OP 1875. 



I 



«™1i 



n' . 

II 



w 






Newspajjer, editor of, a trader, 37. 

Pr()i)rietor of, a trader, .'{7. 

rublislier of, when a trader, 37. 
Notaries, meaning of, 41. 
Notes, holdei's of, riglits of, 108. 

Notice — Applioation for writ of attachment against company, to be giveri 
them, 150. 

Application for discharge to jndge, form of, 90. 

Application for enlarging time for assignment, 51. 

Api)Iication to conlirni <lischarge, form of, 84. 

Ai)pointnient of assignee, form of, 06. 

Attachment, issue writ of, 55. 

Composition deed by insolvent, depositing, 83. 

(Jomposition and discharge, meeting to consider, 82. 

Contents of, 82. 

Creditors, to be sent to, 82. 

Credit rs, of reserved dividend, 118. 

To be mailed, 118. 

Creditors, to be posted ten days before meeting, 122. 

Creditors, during delay, 122. 

Dividend sheet, completion of, form of, 118. 

Examination of debtor as to discharge from jail, 134. 

Filing consent to discharge, 84. 

Hearing application for discharge after objections, 84. 

Insolvent's assignee to be served with, 73. 

Meeting of creditors, 122. 

Meeting to be advertised, 122. 

" of creditors, how to be given, when to be given, form of, 65, 
" of creditors should state for what purpose same called, 79. 

Objection to disposal of insolvent's estate, 73. 

Official Assignee to give, by advertisement, 55. 

Petition by insolvent for payment of balance, 121, 
To be published, 121. 

Petition to set aside assignment or attachment, to be given, 56. 

Published in Gazette, 82. 

To be mailed to each creditor, 96. 









Oath of creditor as to non-payment of claims, 115. 

Insolvent to be examined under, 66. ' 

Return of -writ to be made under, 56. 
Supplementary, may be demanded from creditors, 1 15. 
Who may administer, 124. 
Obedience to order of judge, how compelled, 133. 
Objection to composition and discharge to be filed with assignee, 83. 
Claims, 119. 

" grounds of, to be stated, 119. 
" how adjudicated on, 119 
" proceedings on, 119. 
^ " service of, 119. 

" to be filed in writing, 119. 
Proposed disposal of estate, 73. 

" " " judge to enquire into, 73. 

OfTences against Act, how tried, 154. 
Officers — Assignees, official, to be, of court, 69. 
Companies, to be trustees, 157. 

•* judge may examine as to affairs of, 159, 

" punishment of, for contempt, 157. 

Official Assignee — Appointment of, 68. 
Afisignments to be made to, 56. 






GENERAL INDEX. 



213 



«.)fficial Assignee — (Continued.) . 

Does not acquire priority over prior vendee of insolvent, 05. 

Duty of executiui,' writ of attachment, 50. 

May break open liouse of insolvent, 50. 

Not entitled to notice of action, 09. 

Not public otlicer within 120 V,. S. U. C, 09. 

Notice of meeting by, form, 107. 

Notice of meeting by, 107. 

Ofticer of court, (H). 

Property of insolvent vested in, 58. 

Register to be kept by, 77. 

Jlemuneration of, when su])erseded, 79. 

Retain estate till creditors ajipoint assignee, 70. 

Security to be given by, (58. 

Additional security to be given by, 09. 

Transfer of estate ])y, 72. 

Writ of attachment directed to, 53. 
Official Gazette, meaning of, 41. 
Order — Ai)peal from, JS7. 

Assignee, enforcing claims against, 133. 

Assignee, to compel, to perform his duties, 133. 

Committal may be enforced b}% 13.3. 

Cre<lit()r, authorizing to take proceedings, 99. 

Petition, summary, may l)e procured by, 133. 

Re-sale, on account of false biddings, 104. 

Sale of insolvent's estate, 38. 

Suspending insolvent's discharge, 80. 

PA.PER — Negotiable, holders of, unluiown to insolvent, effect of discharge 

on, 94. 
Papers, service of, 120. 
Partners — Assignment of, carrying on business in different counties, 58. 

Creditore of individual, can vote for assignee for partnership estate, 70. 

Solvent, power of assignee over, 1 1 0. 
Partnership — Assignee of a partner in, has right of action against other 
partners, 70. 

Creditor of, and of individual partner, rights of, 113. 

Dissolved by insolvency of partner, 70. 

Insolvency of partner, joint property vested in assignee, 110. 

Member of, pr'unA facie liable for fraud of partner, 150. 

Partners not entitled to draw money from, in state of insolvency, 77. 

Rule as to, 42. 

When partner in, separately adjudged insolvent, 110. 
Pass-book, wliat to contain, 79. 
Payment — Balance to Receiver-General by assignee after discharge, 78. 

Debtors within thirty days of bankruptcy, 148. 

Dividends, 118. 

Preference, fraudulent, 143. 
Penalty — Assignee neglecting to divide interest, 79. 

Balance, non-payment of, to Receiver-General by assignee after dis- 
charge, 78. 

Bank pass-book, assignee neglecting to provide, 70. 

" assignee making fictitious entry in, 79. 

Creditors taking consideration for granting discharge, 154. 

Discharge, neglect of assignee to present petition for, 81. 

Insolvent guilty of fraud, 150. 

Money payable as, not wiped out by discharge, 90. 

Order of judge, neglect to obey, 133. 

Rule of court, neglect to obey, 47. 



!U 



INSOLVENT ACT OF 1875. 



. i 



PllSi 



Performance of duties by assignee, how enforced, l.^S. 
F'ersonal estate passes to assignee Ity assignment, fiO. 

liahour, suit for remuneration for, insolvent may maintain, (50. 
Tort, insolvent's riglit of action for, does not pass to assignee, 60^. 
Petition— Assignee's, Mi.^liing to pureliase at sale, 72. 
" for discharge, 80. 

Insolvent, in answer to crctlitor's demand to assign, 51. 
•' for discharge, 81. 

" to set aside attachment, G3. 

Place of meeting, 72. 

I'laintiiV, in action for frudulcnt dealing, must prove fraud, 152. 
['leadings, statement of case in setting up discharge under, 128. 

Foreign hankrujitcy laws not allowed in, except English, 128. 
Postage on notices to he paid, 122. 
Postponement of examination, ^'^'^. 
Powers — Insolvent, to j)aHs to assignee, 58. 

Except when hehl by him as trustee, 59. 
Jn.spectors, 72. 
Judge. (.See Judge. ) 
Maj(»rity <if creditors. (Sec Creditor.) 
Ollicial assignee. (See Oihcial Assignee.) 
Practice— Rules of, till new ones made, 133. 
" hi Quebec, 132. 

" in other Provinces, how to be made, 132. , 

Preference — Fraudulent — Act, when a, against whom void, 147. 

Acts of, may be ground for refusing insolvent discharge, 143. 
Assignee can, when, question, 148. 
Assignment of whole of debtor's property, when a, 147. 
Chattel mortgage by insolvent, when not a, 144. 
Contract, what, void as, 140. 

" what, voidable as, 141. 
*' when deemed a, 139. 
Insolvent induced to give a, by threats of criminal proceedings, when 

not void, 146. 
Payments by insolvent, when not a, 14G. 

" made before bankruptcy, when not a, 148. 
" certain, by insolvent, to constitute a, 148. 
Release of etpiity of redemption by mortgagor, when a, 142. 
Sales that are a, void, 143, 

Subject of, may be recovered back by assignee, 148. 
Test to determine whether transaction a, 145. 
Transfer of certain debts due by insolvent, 149. 
Transferer of property, eli'ect of, on, 147. 
What necessary to constitute a, 144. 
Preferential lien. (See Lien.) 

Preliminary notice to be given insolvent companies of issue of writ of attach- 
ment, 15G. 
Pretence, false. (See Fraud.) 

Prevarication of insolvent on examination, ground of opposing discharge, 86. 
Price offered at sale insufficient, sale may be postponed, 132. 
Privilege of purchaser at sherift''s sale. 111. 
Privileged creilitors may require sale of property, subject to their claims, 105, 

(See Creditors. ) 
Procedure, civil code of, rules of, as to amendment of pleadings, 105. •' 

At meetings of creditors, 66. 
Act to govern in matters of, 160. 
Proceeds of sale of real estate to be paid into court, 120. 

To be divided among creditors, 120. 
Proceedings — Appeal, 137. 



GENERAL INDEX. 



21 r> 



l'rocce<litif.'s - {Cnvfhincd.) 

Attaclinient, writ of, under, 53. 

(Joraiianies, incorporated, 156. 

Conipulsorj' liquidation may be set ouido on summary petition, 56. 

Demand to assign, M. 

Wlion to l)e coniinonced, 02. 
Recovery of deht incurred by fraud, l.W. 
Regulation of, 131. 
Re-Balo in case of, 104. 

Special, may })c taken by creditors, upon assignee's refusal, 09. 
Judge's order must be obtained, 1)J). 
To be taken in assignee's name, 5)1). 
I'rocesa — Service of, 127. 

Di.S()bedionce to, how punishable, 127. 
Procuring pmpc rty to be seized, act of bankiuptcy, 46. 
Production of bank jass-Vmok, 79. 
Proof — Claims, by whom to be made, 100. 
Form of, 171. 

Vouchers to be attached to, 12.3. 
Property — Assignee, held bj- insolvent as trustee, does not pass to, 58. 
" in what maimer hehl by, 58. 

" purchase of, by, vests in, under assignment or attach- 

ment, 58. 
licasehold, 100. 
Sale of, may be stayed, 120. 

Seizure, certain, not liable to, under assignment, 58. 
Proportion, creditors, requisite to make allowance and discharge, 81. 
Protection of estate, 58. 

Prothonotory, in (Quebec, to preside in absence of judge, 131. 
Public Ofhcer. (See Officei.) 
Publication of notices, 122. 

Of single work not necessarily trading, 37. 
Punishment of assignee for wilfully misrstating, 152. 

Of insolvent for not handing money, when received, to assignee, 155. 
Insolvent, for misdemeanor, 153. 
Witnesses, for not appearing, 127. 
Purchaser — Debts from insolvent may rank on estate, 149. 

Coods on credit, knowing himself unable to pay, guilty of a miBde- 

nieanor, 150. 
Insolvent's debts, right of, 99. 
Lease, bound by covenants, 100. 
Real estate, rights of, 103. 
At sheriif' 8 sale, privilege of, 111. 

QuAERYMAN, a trader, ?" 

Questions, at creditor's meetings, how decided, 122. 

Rank of creditors, if condition in composition and discharge be unfulfilled, 89. 
Real estate of insolvent passes to assignee, 58. 

Sale of, 102. 
Rebate of interest, how to be reckoned, 107. 
Receiver-General — Assignee to pay balance to, after discharge, 78. 

Penalty for not doing so, 78. 
Receiver may be appointed for incorporated company by judge, 158. 

Powers and duties of, 156. 

Remuneration of, 156. 
Re-conveyance to insolvent. (See Deed of.) 

Description required in deed of, 93. ' 

Recovery of security given by assignee, 68. 



216 



INSOLVENT ACT OP 1875. 



Jr 

i 



M' 



i 



I'efuial — Act of l)anknipt(y, 47. 

A8sij,'iiei) to t.vko !cg:vl iirocooiliiigs, course open to creditors, 99. 

" to cliiuigt! H()Ii(Mt(»r, 71. 
Appear on ii rule or onkr, 47. 
Insolvent to answer, contempt of court, 67. 
()l)cy decree of ('ourt of Chancery, 47. 

" order for ])aynient of dehtn, 47. 
Officers of companies to 3ui>i)ly rciiuired iuformatiou, couttrnpt of 
court, 157. 
Register to he ke[)t hy assij^fnec, 77. 

To be open to iiul)lie iuHpoction, 77. 
What to contain, 77. 
Where to he deposited, 77. 
Registrar, ccrtidcate of, as to discharge of hypothecs, 104. 
Kegistralion Copy of writ of attachment, Cn"). 

Deed of assignment in Province of Quehec, 65. 

** of reconveyance to insolvent, 65. 
Marriage contract, l.'H. 
Priority of, 65. 
Remaining out of Province, act of hankruptcy, 44. 
Remedies against assignee, how olitained, 13.S. 
Removal — Assignee, creditors to a^tpoint another, 69. 
(irounds for, 71. 
Guilty of misconduct, 70. 
How removed, 6!). 

Whose election procured hy fraud, 70. 
Who owes money to estate, 71. 
Wiiose interests opposed to creditors, 71. 
Who not properly elected, 71. 

Wl»o ai)point3 solicitor connected with insolvent, 71. 
Poverty of, hy itself, will not warrant, 71. 

Who pureliases any of insolvent's estate, unless hy permission of 
court, 71. . 

Effects, a misdemeanor, 1 5.3. 

Pro))erty with intent to defraud creditors, an act of hankruptcy, 44. 
Remuneration — Assignee, 78. 

Official assignee, when superseded, 79. 
To he first charge on estate, 79. 
With respect to incorporated companies, 159. 
Receiver, affairs of companies, 159. 
Rent, lien for arrears of, limited, of landlord for, 102. 
Repeal of Acts, 160. 

Report — Assignee, as to leasehold property, 100. 
As to insolvent's conduct, 98. 
Return of writ of attachment, 54. 
Representative — Creditor, when allowed to vote, 69. 

Of insolvent, on death of, how far liable, 129. 
Re-aale — Real estate, 126. ... 

How to be proceeded with, 126. , ' ' 

Resolution — Copy of, appointing assignee, to he fded, 69. 

Creditors, ojiposing decision of, to he laid before judge, 122. 
Creditors of incorporated companies to be submitted to judge, 157. 
Respondent of appeal, when entitled to corts, 138. 
Responsibility, official assignee, 68. 
Retention by creditors of property held as security, 112. 

Debtor of part of his property, 85. ""^'^ 

Leasehold property hy assignee of estate, 101. 
Return — Process to he under oath, 127. 
Writ of attachment, 64. 



GENERAL INDEX. 



217 



Return — {Continued.) 

H(i\v made, M. 

Writ of execution, 120. 
Revision. (Sue Apneal.) 
Rules — I'ractice in Province of Quebec, 132. 

To be settled by judj^es in other provinces, 132, 

Present, to be aanie till altered, 132. 

Salary, clerk's privilege for, 117. 
Sale— Assignee's coninnsaion on, lOS. 

Dill'erence between sale and re-sale, 107. 

Effect of, of real estate, 103. 
In Queliec, 102. 
In other jtrovinces, 103. 

Estate of insolvent, 74. 

Execution, under, 120. # 

Fraudulent, when, 140. 

Form of deed of, 104. 

Insolvent's debts, 98. 
Proviso as to, 99. 

Immovables in Quebec, 105. 

Insolvent, proviso as to, of entire estate of, 74. 

Insolvent's goods under execution, effect of. 111. 

In Quebec, subject to certain charges, 104. 

Leases held by insolvent, 100. 

Postponement of, of real estate, 102. 

Privileged creditors in Quebec may require, of property subject to 
their claims, 105. 

Real estate of insolvent, 102. 
Salesmen — Cattle, when using occupation generally, within Act, occasionally, 
not, 35. 

Sheep, " " " " 35. 

Saloon-keepers. (See Keepers.) 
Schedule, false, 153. 
Schoolmaster — When within Act, 36, 37. 

When not within Act, 37. 
Secreting effects an act of bankruptcy, 44. 
Secured claim, proceedings on tiling of, 112. 
Security — Additional, 69. 

Collateral, not affected by discharge of debtor, 95. 

Creditors holding, rule as to, 113. 

Insolvent suing after assignment must give, for costs, 75. 

Official assignee, to be given by, 68. 

" when and by whom available, 68. 

Recovery of, 68. 

Surrender of, by creditor, effect of, 125. 

Realty, rule as .^o, 114. 

Valuable, ex ten led meaning of, 149. 
Seduction — Damages for, do not pass to assignee, 60. 

Discharge to get rid of damages for, cannot be refused, 87. 
" does not affect damages for, 96. 

When damage for, provable, 107. ' ~ 

Seizure after assignment, effect of. 111 

Of goods, procuring, an act of bankruptcy, 46. 
Servants, lien for arrears of wages, 117. 

Service — Papers, if defendant has no place of residence, or absconds, 55. 
•• under the Act, 126. 
" by debtor after demand to assign, how made, 51, 

Process, 127. 

Writ of attachment, 153. 



218 



INSOLVENT ACT OK 1875. 



IV 



Sottlcmcnt cm iir^olvpiit ilftcimiin.iMe on baiikniptcy of, 149. 
Sot-oil Mow .illowiil, I'Jf). 

Tniiisfur of (k'hta <hio )*y iiiHoIvviit to his debtor to cnablu him to, 149. 
Shoriir-Kirttt of Hii/nri! by, after aHHi^{iiiiuiit, 110. 
I'lin-iiiiHi! at H,il(; liy, privilogu of, 111. 
Stay of |)niL'(!t'(ling given to. 111. 
Shipping ILiilc as to, 114. 
SiJiMirity on, 114. 
Shipwriglit, buying raw material and manufacturing it, trader, 35. 

Not " " " workman for hiru, 35. 

Shipwrights. (See ('arpontcrs. ) 
SlaniliT, <lainag(!H for, not alboteil by dischargo, 96. 
Slato rock, leH-seo of, whi-ii not trader, 30. 
Sruugglt^r iii'vy bocoiiu! b;iiikrupfc, 3S. 
SoUcitory Appellant.i', cannot 1)0 sureties in appeal, 138. 
4)>l>(iintnient of. (Sec Hec. 43.) 
Bill, 108. 
Statement —A (lairs, to bo given by insolvent, 63. 
Tr) be attested " 66. 

Wl)at to show, 03. 
Assignee, to be lilcd witli his potit.on for discharge, 80. 
Contents of, 80. 

Creditors to have free access to, 106. 
Periodically to be prepared, 100. 
Exliil)iting of, by deV>t()r, showing hu is unable to lir|uidatu bis debt, 
act of i)ankruptcy, 43. 
Stay of proceedings on Ji. fa., 111. 

Stock — contract to replace, i>rovable in bankruptcy, 107. 
Stock-broker, manager of company, buying or selling shares for his com- 
pany, not within Act, 36. 
Subpoena — How olitainod, 126. 

Penalty for disobeying, 127. 
Summary jurisdiction. (See Jurisdiction. ) 

Petition. (See Petition.) 
Surety, debtor's estate, having paid debt, entitled to raak against, 108. 
Securities — (iiven under other Acts, valid, 161. 
Insolvent, right of, 108. 

Proper time to take objection to sufficiency of, in appeal, 139. 
Surrender security by creditor of insolvent, effect of, 124. 
Surgeon, when not trader, 37. 
Suspension, discharge of insolvent, when granted, 87. . ' 

■ ■> \ 
Tavern-keeper. (See Keeper.) •. 

Tax, (Governor may impose, 156. - .. .. 

Taxation of costs, 129. • • 

Telegraph companies, Act not to apply to, 33. ' ' ' . 

Time for commencing proceedings limited, 52. 

Ileturn of writ, 54. >». • 

Payment of hypothecs not to be increased by sale, 104. 
Petition to set aside attachmeutj 64. 
Title — Conveyed by assignee, 102. • 

Of Act, 161. ' . 

Traders — Act to apply to, 33. . ; i . ' . 

Assignment by, when a fraud, 142. 
Executor of. (See Executor.) 
How long liable to bankruptcy laws, 40. 

Persons using trade of merchandise, &c., in gross or by retail, 36. 
Persons seeking their living by buying and selling either for them- 
selves or as agents for others, 36. 



OENFUAL INDEX. 



210 



Tradora - IVrHonH — (CimtinHfd.) 

I!y litiyiii;:^ iui«l lutting for hire, ftc, .'}6. 
ItV wiirUiiiaimliii) of, ^doiIh, &o., i)U. 

Wliiit," lial.lc uii.lcr tliis Act, 40. 

Wliiit, imt Iiiil)lo uniler tliia Act, 4(). 

>Vli.. iK.t, .'{H. 
Tripling ( '(uiipftiiU's, Act to apply to, ,'{,'{. 

('ojiaitmTKhiprt, Act to upply to, 33. 

Dealing', to lie, muHt not bu incidental, 37. 

FiHiuliilciit, 38. 

In or to a country, 38. 

8inf,'Ic instance with intent, 37. 

To lie witliin Act, what it Hhould cnusiat of, 37- 

To conntitutc a, what necessary, 37. 

'I'nic ciitciion of, 37. 

Witliin Act, must ho Hulmtantivo and indcpeuduut, 36. 
Transfer- Dcht due hy insolvent, 11!). 

Jiisolvcnt's estate hy ollicial aH.signeo to assignco, 72. 

l'roj)crty hy tlehtor with fraudulent intent, 143. 
Trover, action of, in case of framiulcnt conveyance, 147. 
Trustee - Bankruptcy of, court niay appoint new, f)'.). 

Insolvent not discharged from liability aa, by discharge, 9(5. 

UwDUR I'KEKKUKNCR. (iSeo Prefcreuco, Fraudulent.) 

Vao.vncy in olllee of ofHcial assignee, HO. 

Valuation of security in hands of creditors, 125. 

Vendor, hen of, attaches to lands in a-ssigncc's hands, 1 12. 

Vexatious demand to assign, ]ieualty on creditors fur making (aec Demand), 51< 

Voluntary assignments aholished, 57. 

Vote, no claim to have more than one, 70. 

Voting, rights of creditors as to, 70. 

Vouchers to accompany' proof of claim, 121. 

Warrant, service of, 127. 

Warranty, no, of del)t.s of insolvent sold, 99. 

Wages, servant's privilege for, 117. 

Wife may not prove for arrears of alimony, 124. 

Property, interest (jf insolvent in, 142. 
Withholding books by insolvent, misdemeanor, 153. 
Witness— Di.sobeying process, punishment of, 127. 

J^xamined under this Act, entitled to demand expenses, 67. 

Expenses must be tendered to, 128. 
' Retjuired to produce documents, must receive notice, 67. 

Workmanship of goods, &c., what meant by, 38. 
Writ of attachment. (See Attachment, Writ of.) 
Writs, disobedience to, how punishable, 127. 
Wrongs, personal, of insolvent, right of action for, not to pass to assignee, 60. 



OOPP, CLARK AND CO., PRINTERa, COLBORNE .STREET, TORONTO. 



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