and though there might be some powers that the commissioners of bankrupts could not exercise against a peer, yet, notwithstanding this, he might be liable to a commission of bankruptcy if he would trade. See, also, Highmore v. Molloy, 1 Atk. 206, where Lord Hardwicke said that a public officer, as an exciseman, &c., made himself subject to the bankrupt law, if he would trade. So a man might be a trader within the old bankrupt law though he had not taken out a licence necessary to legalise his trade (i). But a mere colourable trading for the purpose of being made a bankrupt would not suffice (k), or, it seems, a fraudulent obtaining of goods by a person representing himself to be a dealer, without any intention of paying for them (1). The above was the general rule. The following were especially declared by statute to be traders within the bankrupt laws (m) :Alum-makers, apothecaries (n), auctioneers, bankers (0), bleachers, brokers (p), brick-makers, builders (7), calenderers, carpenters, carriers, cattle or sheep salesmen, coach proprietors, cow-keepers (r), dyers, fullers, keepers of inns, taverns, hotels, or coffee-houses (s), lime-burners, livery-stable keepers, market gardeners (1), millers, packers, printers, ship-owners (u), shipwrights, victuallers (a), warehousemen, wharfingers, persons using the trade or profession of a scrivener, receiving other men's money or estates into their trust or custody (y), persons insuring ships or their freight or other (i) Saunderson v. Rowles, 2 Burr. 2064. (n) This includes a surgeon who dispenses and is paid for medicines administered to his own patients. Exp. Crabb, 25 L. J., Bank. 45. (0) This includes a person acting as a banker though not keeping an open shop, Exp. Wilson, 1 Atk. 218, or books in the usual way of a banker, and employing a banker himself for the deposit of large sums; but not members of joint-stock banking companies under 7 Geo. IV. c. 64, without previous judgment against the public officer. Davison v. Farmer, 6 Exch. 242. An army agent is not, as such, a banker. 1 Mon. B. L. 2. (p) This includes pawnbrokers, Rawlinson v. Pearson, 5 B. & Ald. 124; shipbrokers, Pott v. Turner, 6 Bing. 702; billbrokers, Exp. Phipps, 2 Deac. 487; and stockbrokers, Anon., Cullen, Bank. Laws, 48. (q) That is, persons who build on their own or another's land for a profit. Exp. Neirincks, 2 M. & A. 384; and see Exp. Edwards, 1 M. D. & De G. 3 ; Exp. Stewart, 3 De G. & S. 557; Re Fowler, 1 Fonb. N. R. 201; unless it is merely an insu VOL. I. lated transaction, Stuart v. Sloper, 3 Exch. 700, which is a question for the jury, ibid. (r) This does not include all persons, e.g. farmers, keeping cows for a profit and selling the milk. Bell v. Young, 15 C. B. 521. (s) This includes persons keeping lodging and boarding houses, and seeking a profit by supplying their guests with provisions. Gibson v. King, 10 M. & W. 667; King v. Simmonds, 1 H. L. Ca. 754, aliter if they do not sell provisions; Ecp. Wilkes, 2 M. & A. 667; as in the ordinary case of furnished lodgings, Exp. Bowers, 2 Dea. 99. (t) This does not include a farmer selling peas and potatoes off his farm to London salesmen on commission. Exp. Hammond, 1 De Gex, 93. (u) This does not include fishermen owning fishing smacks. Re Stubbs, 22 L. T. 291. (x) See Gibbins v. Thompson, 1 Vent. 270. (y) "In order to make a man a money scrivener he must carry on the business of being trusted with other people's monies to lay out for them as occasion offers." Per Gibbs, C.J., in Adams v. Malkin, 3 Campb. 534. And this must be his Q matters against perils of the sea, and all persons using the trade of merchandise (z) by way of bargaining, exchange, bartering, commission, consignment, or otherwise, in gross or by retail, and all persons who, either for themselves or as agents or factors for others (a) seek their living by buying and selling (b), or by buying business as a general means of obtaining his livelihood. Adams v. Malkin. As a distinct trade this occupation no longer exists, but is merged in that of the attorney or the banker. Per Gibbs, C. J., ibid. See Exp. Malkin, 1 Rose, 406; Exp. Bath, 1 Mont. 82. An attorney does not become a scrivener by lending the money of his clients, not being entrusted with it to lay it out at his discretion (although he occasionally might do so, Exp. Dufaur); but on a particular security, although he charge a fee to the borrower; nor is a transaction in which an attorney calls in and receives the money of a client, and retains it in his possession, himself paying interest to the client on the amount, "a trading as a inoney scrivener; Lott v. Melville, 3 M. & G. 52; nor is receiving other people's money into his trust or custody, unless he does it as a scrivener. Exp. Spicer, 3 De G. & S. 601. See also Exp. Gem, 2 M. D. & De G. 99; Exp. Dufaur, 2 De G., M. & G. 246; Harman v. Johnson, 2 E. & B. 61; Hutchinson v. Gascoigne, Holt, 507. From one instance of scrivening, however, it seems the jury might, in the absence of evidence to the contrary, infer a carrying on of the trade of a scrivener. R. v. Hughes, 1 F. & F. 726. (2) As a general rule there must be both buying and selling to constitute a carrying on of the trade of merchandise. Hence, selling the soil of land, though in a state essentially altered by various processes of manufacture, is not sufficient to make the landowner, whether he be the freeholder or a lessee, a trader. Sutton v. Weeley, 7 East, 442. As of iron, Port v. Turton, 2 Wils. 169. Coal, Port v. Turton, and Anon., 1 Fonb. B. C. 251. Quarried stone, Erp. Gardner, 1 Rose, 377. Or salt, Exp. Atkinson, 1 M. D. & D. 300. But if the produce of others' land, e.g. iron ore, is bought in addition and worked up for the purpose of sale, such landowner is a trader. Crawshay v. Collins, 1 Sw. 495. And where this was done by the landowner for the purpose only of making instruments to work his own mine, but the surplus instruments were sold, the court would not annul the fiat. Exp. Salkeld, 3 M. D. & De G. 125. But at law it seems it would be invalid; sce Bolton v. Sowerby, 11 East, 276. And where the plaintiff, the owner of a colliery, employed steamers to tow the colliers out to sea, and, when not so employed, in carrying passengers and goods between his own port and Liverpool, the times of sailing, &c. being regularly advertised, and the goods carried being warehoused on the plaintiff's coal wharf when required, Pollock, C.B., left it to the jury to say whether the plaintiff employed his wharf and ships merely for the purpose of making the best of what he was compelled to have for the use of his collieries and as ancillary to the enjoyment of his land, or for the purpose of trading with a view of gaining his livelihood thereby. Mostyn v. Griffiths, 33 L. T. 276. And semble, that a person getting ore, &c., under a licence at a certain royalty, is not a trader. See Exp. Emery, 4 De G., M. & G. 901. Brickmakers are now included as traders, but not so before. Exp. Burgess, 2 Gl. & J. 183. A schoolmaster buying and selling books and shoes and retailing them at a profit to his scholars, is not a trader. Valentine v. Vaughan, Peake, 76. Nor a fisherman owning smacks and using them only for fishing. Re Stubbs, 22 L. T. 291; unless he buy fish from other fishermen for the purpose of making up a cargo. Heany v. Birch, 3 Campb. 233. See also Re Lovell, 22 L. T. 320, where a barrister, who prepared systematically a series of reports and digests for his own profit, paying for printing, transcribing, and publishing, was held not a trader. (a) Quare, whether one who obtains orders for the sale of goods on commission, the goods being furnished, and accounts rendered to the customers by the principal, is a person "seeking his livelihood by buying and selling by way of commission, or as agent or factor for others." Hernamann v. Barber, 14 C. B. 583. (b) As of horses, though no licence has been taken out. Wright v. Bird, 1 Price, 20; Martin v. Nightingale, 3 Bing. 421. But a person who buys dead horses for his dogs, and sells their skin and bones, does not become a trader thereby. Summersett v. Jervis, 3 B. & B. 2. See also Exp. Salkeld, 3 M. D & De G. 125. and letting for hire, or by the workmanship of goods or commodities (c). Aliens and denizens. -Aliens and denizens might be bankrupt as traders under the old law (12 & 13 Vict. c. 106, s. 277); and, semble, might also, as debtors, under the new. Women were subject, if traders and sole, to the old law, 12 & 13 Vict. c. 106, s. 270 (repealed) (d); and, if debtors and sole, would (semble) be to the new (24 & 25 Vict. c. 134, s. 69). A feme covert, sole trader, according to the custom of London, may bind herself by contracts made for the support of her trade, and consequently may be a trader (or debtor) within the bankrupt laws, with respect to her separate effects in trade (e). The wife of a convict sentenced to transportation may be a trader (or debtor) within the bankrupt laws, although the husband is only on board the hulks, and she has occasional intercourse with him (ƒ). Lunatics and Infants.-A lunatic cannot commit an act of bankruptcy (g). A commission issued against an infant is void at law, and not merely voidable (h), and the infant may sue the assignees to test the validity of the adjudication (i); and an adjudication against an infant cannot be supported by reason of a trading during his infancy (k), but it will not be annulled if he has held himself out to the world as of age (1), or has omitted to appeal against the adjudication within the proper time (m). Members of Parliament. - Members of parliament are liable to the bankrupt laws (n), but not to be arrested or imprisoned during the time of their privilege as such members of parliament, except in cases made felonies and misdemeanors by the Bankrupt Act, 1849, s. 66. Members of the House of Commons found and declared bankrupts shall be and remain, during twelve calendar months from the time of the issuing of a commission, (c) This includes persons who buy raw materials and sell them again under another form, or improved by the labour or manufacture, as bakers, brewers, &c., who have always been considered liable to the bankrupt law. Cullen, B. L. 12; Eden, B. L. 8. "The words 'who seek their living by the workmanship of goods and commodities,' appear to have been introduced to meet the case of persons who do not buy and sell, and yet have other men's goods entrusted to them, as bleachers and fullers, lace makers and stocking makers, who make for others, and the like, but do not include those who use workmanship or goods as part of the profit of land, as farmers making cheese or cider, &c." Per Bayley, J., (d) Martin v. Nightingale, 3 Bingh. 421. (k) Sterens v. Jackson, 4 Camp. 164; Erp. Moule, 14 Ves. 603; Erp. Adams, 1 V. & B. 494. (1) Erp. Watson, 16 Ves. 265; Exp. Bates, 2 M. D. & De G. 337. See Re King, 4 Jur. N.S. 1257. (m) Re West, 3 De G. M. & G. 198. (n) 12 & 13 Vict. c. 106, s. 77; Erp. Griffiths, 3 De G. M. & G. 171. incapable of sitting and voting in the House of Commons, unless within the said period such commission shall be superseded, or unless within the same period the creditors of such member proving their debts under the commission, shall be paid or satisfied to the full amount of their debts: provided always, that such of the debts, if any, as shall be disputed by such bankrupt, if he shall within the time aforesaid enter into a bond or bonds in such sum or sums with two sufficient securities, to be approved by the commissioners, to pay such sum or sums of money as shall be recovered in any action, suit, or other proceedings in law or equity, concerning such debts, together with such costs as shall be given in the same, shall be considered, for the purpose of this act, as paid or satisfied. If the commission is not within twelve calendar months from the issuing thereof superseded, nor the debts satisfied in manner aforesaid, then the commissioners must, immediately after the expiration of twelve calendar months from the issuing of the commission, certify the same, as the case may be, to the speaker, and thereupon the election of such member is void, and the speaker is to issue a new writ (o). These provisions apply to the present method of proceedings by petition (24 & 25 Vict. c. 134, s. 229). Joint Stock Companies.-The bankruptcy of joint stock companies was provided for by the 7 & 8 Vict. c. 111, but the operation of this act has been practically superseded by the Joint Stock Companies Winding-up Acts, 1848 and 1849 (p); the Joint Stock Companies Acts, 1856 and 1857 (q); the Joint Stock Companies Winding-up Amendment Acts 1857 and 1858 (r), the provisions of which extend to all partnerships, associations, and companies, consisting of not less than seven persons (s), and whereby the affairs of the company may be wound up and the company dissolved in the manner therein prescribed. The act 7 & 8 Vict. c. 111, is not here discussed, owing to its almost entire disuser; and the winding-up acts above specified, having reference to the proceedings of courts of equity, form for the most part no subject for this treatise. As to joint stock banking companies, see 20 & 21 Vict. c. 49. III. Of the several Acts of Bankruptcy. The acts of bankruptcy differ, as has been mentioned before, in the case of traders and non-traders; but with respect to both (t) it is enacted: "That no person shall be liable to become bank (0) 52 Geo. 3, c. 144, ss. 1, 2. (p) 11 & 12 Vict. c. 45, and 12 & 13 Vict. c. 108. (q) 19 & 20 Vict. c. 47, and 20 & 21 Vict. c. 14. (r) 20 & 21 Vict. c. 78, and 21 & 22 Vict. c. 60. See Re the London and (s) 12 & 13 Vict. c. 108, s. 1. rupt by reason of any act of bankruptcy committed more than twelve months prior to the filing of any petition for adjudication of bankruptcy against him," and "That no adjudication of bankruptcy shall be deemed invalid by reason of any act of bankruptcy prior to the debt of the petitioning creditor, provided there be a sufficient act of bankruptcy subsequent to such debt" (12 & 13 Vict. c. 106, s. 88). In general an act of bankruptcy must be committed in England or Wales, unless otherwise expressed in the statutes (u); and none other but the specified acts can be acts of bankruptcy by inference or implication (a). The act of bankruptcy must be committed during the existence of the petitioning creditor's debt (y). And such act once committed cannot be purged or explained away (z). It is to be remarked that in many of the cases referred to, there must be an intent to delay or defeat creditors, and this intent is sufficient without proof of actual delay (a); while at the same time delay is not enough unless intent can be shown (b). This question of intent is one for the jury to decide upon all the circumstances. There is no distinction between the delay of trade or of other creditors (c). In case of Non-Traders. The acts of bankruptcy in the case of non-traders are defined by the 24 & 25 Vict. c. 134, s. 70 et seq., and are seven in number. Departing or remaining abroad (d).-"If any person, not being a trader, shall with intent to defeat or delay his creditors depart this realm, or being out of this realm shall with such intent remain abroad, such person shall be deemed thereby to have committed an act of bankruptcy" (s. 70). This is a similar provision to that contained in 12 & 13 Vict. c. 106, s. 67, as to traders; as to which sce post, p. 231. Fraudulent transfer of property.—The 70th section of 24 & 25 Vict. c. 134 further enacts that "if any person, not being a trader, shall with such intent" (to defeat or delay his creditors) "make any fraudulent conveyance, gift, delivery, or transfer of his real or personal estate, or any part thereof respectively, such person shall be deemed to have thereby committed an act of bankruptcy." (u) Exp. Smith, Cowp. 402: Inglis v. Grant, 5 T. R. 530. (x) Per Lord Eldon, C., Dutton v. Morrison, 17 Ves. 198. (y) Exp. Dewdney, 15 Ves. 495. (a) Robertson v. Liddell, 9 East, 487. ler v. Padget, 7 T. R. 509; Aldridge v. Ireland, 1 Taunt. 273. (c) Smith v. Cannan, 2 E. & B. 35. (d) No non-trader abroad at the passing of the act (6th Aug. 1861) is to be deemed to remain abroad with intent, &c., till the expiration of six months after the passing of the act. |