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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."
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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)
/.
1.0
I I.I
1.25
iai28 |2^
ut lii |22
*- 4.
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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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