constitute an

instrument be so far executed by the debtor as to show on his § 4. part, by overt act, an intention, as far as he is concerned, to defeat and delay his creditors; thus, in Ex p. Snowball, re imperfectly Douglas, L. R. 7 Ch. 534, where a deed intended to be executed, may executed by two partners had been executed by one only, act of bankLord Justice Mellish observed that the case of Bowker v. ruptcy. Burdekin, 11 M. & W. 128, was a direct authority, that where a deed to which all the partners in a firm are made parties would operate, if executed by all, as a fraudulent transfer of partnership property, each partner commits an act of bankruptcy at the time he executes the deed, unless he executes the deed as an escrow. Also in Brittain v. Brown, 24 L. T. 504, where the debtor had assigned all her property to one Miller, in trust for her creditors, who should sign the deed on the terms as between the debtor and Miller, that the deed should not be used unless an arrangement about to be made with the creditors could be effected, Cockburn, C. J., said that "no doubt upon the authorities a deed of this kind before it is assented to by the creditors is revocable by the party making it; but in the case of Botcherby v. Lancaster, 1 A. & E. 77, though it was unnecessary for the decision of the point before the Court, the Court expressed a strong opinion that such a deed was an act of bankruptcy; and I entertain no doubt that where a deed is intended to immediately and presently operate so as to delay creditors, a deed formed with such an intention, and operating for such a purpose, would be an act of bankruptcy." (See also upon this point Simpson v. Sikes, 6 M. & S. 295; Pulling v. Tucker, 4 B. & A. 382. See also Carr v. Acraman, 25 L. J. Ex. 91.) The case of Dutton v. Morrison, 17 Ves. 193, and the old cases where it was held that a deed intended to be executed by several persons did not operate as an act of bankruptcy where executed only by one, were decided when a deed was essential to constitute a fraudulent assignment.

The want of a stamp will not prevent the admission in Want of evidence of a fraudulent deed for the purpose of proving an stamp. act of bankruptcy, see Re Gouldwell, L. R. 4 Ch. 47; Ponsford v. Walton, L. R. 3 C. P. 167, following Ex p. Wensley, 32 L. J. Bank. 23, and overruling Ex p. Potter, 34 L. J. Bank. 46.

(c.) If in England or elsewhere he makes any conveyance or transfer of his property or any part thereof, or creates any charge thereon which would under this

84.

"Intent to defeat," &c.

or any other Act be void as a fraudulent preference if he were adjudged bankrupt:

For the history of the doctrine of fraudulent preference, and as to what constitutes such preference, see post, section 48 and note.

The Act of 1869 did not in terms make a fraudulent preference an act of bankruptcy, and as stated in the note to the preceding sub-section, it was doubted whether a fraudulent preference was an act of bankruptcy as being a fraudulent transfer within section 6, sub-section (2) of that Act.

This sub-section, by express enactment, settles the law in accordance with what was at all events in earlier times, when there was no express enactment on the subject, the opinion of eminent lawyers. (See Eden's Bankruptcy Law, 2nd ed. p. 32; Cumming v. Bailey, 6 Bing. 363; Morgan v. Horseman, 3 Taunt. 241.)

(d.) If with intent to defeat or delay his creditors he does any of the following things, namely, departs out of England, or being out of England remains out of England, or departs from his dwelling-house, or otherwise absents himself, or begins to keep house:

"With intent to defeat or delay his creditors."

It is to be remarked, that in section 67 of 12 & 13 Vict. c. 106, and in section 70 of 24 & 25 Vict. c. 134, these words override the whole section, and cover all the enumerated acts of bankruptcy, including fraudulent conveyance, &c. But it would seem that this alteration, which was first made in the Act of 1869, has not substantially altered the law, for it is said in Ex p. Lückes, re Wood, L. R. 7 Ch. 302, that "intent to defeat or delay" is in respect of the acts of bankruptcy in to be proved this clause, a matter of fact, and must be proved as such, and that the meaning of the omission of these words in the definition of the other acts of bankruptcy is that the intent to defeat or delay in respect of such acts of bankruptcy is not a matter of fact requiring proof, but a matter of law resulting from the act of the debtor; see ante, p. 8. When a debtor knows that the necessary consequence of his going abroad will be to defeat or delay certain creditors, he will be held to have gone abroad with intent to defeat or delay his creditors (Ex p. Goater, re Finney, 30 L. T. 620), and this even though his going

as a matter of fact.

abroad had nothing to do with his debts (Holroyd v. Whitehead, 3 Camp. 530). The petition must, however, distinctly allege that the debtor departed from his dwelling-house, or otherwise absented himself, with intent to defeat and delay his creditors (Ex p. Coates, re Skelton, 5 Ch. D. 979). Where any of the above acts are done with intent to defeat or delay creditors, the fact that no creditor was actually delayed is immaterial. (Williams v. Nunn, 1 Taunt. 270; Fowler v. Padget, 7 T. R. 509; Roach v. G. W. R. Co., 1 Q. B. 51.)

§ 4.

the words.

Depart this realm " is the expression used in the old Acts; "Departs out but inasmuch as the word realm was construed to mean the of England," jurisdiction of the Court (Williams v. Nunn, 1 Taunt. 270; meaning of Windham v. Paterson, 1 Stark. 145), the words "depart out of England" probably mean much the same as "departing the realm." (Ex p. Crispin, L. R. 8 Ch. 374; see ante, p. 1.)

Although in the case of a domiciled Englishman the fact of his leaving England after service of a writ, and so escaping a debtor's summons, was held to afford a strong presumption that he intended to defeat and delay his creditors, yet the same presumption was held not to apply to a foreigner who is returning to his own country. (Ex p. Crispin, ubi sup. ; Ex p. Gutierez, 11 Ch. D. 298.)

Departure from the realm with a consequential delay of a creditor is not an act of bankruptcy without proof, or necessary inference, of an intention to delay at the instant of departure. (Ex p. Osborne, 2 V. & B. 177; 1 Rose, 387.) The fact that a man has departed out of England with intent to defeat his creditors does not prevent his remaining out of England with that intent from being a continuing act of bankruptcy. (Ex p. Bunney, 1 De G. & J. 309.)

"Absent

constitutes.

"Departs from his dwelling-house, or otherwise absents himself." The absenting must be from the place of business or usual abode, or from one or more particular creditors at some other ing: "' what place. (Bernasconi v. Farebrother, 10 B. & C. 549.) Thus, if a trader absent himself from a place where he has appointed to meet a creditor, with intent to defeat and delay his creditor, this is an act of bankruptcy (Russell v. Bell, 10 M. & W. 340); but the mere failure to keep an appointment will not be an act of bankruptcy unless coupled with an intention to defeat or delay. (Ex p. Meyer, re Stephany, L. R. 7 Ch. 188; Ex p. Lopez, re Brelaz, L. R. 6 Ch. 894.) The duration of absence in all these cases is immaterial if the intent be proved (Bayly v. Schofield, 1 M. & S. 388; Chenoweth v. Hay,

1 M. & S. 676; Judine v. Da Cossen, 1. N. R. 234), as the act of bankruptcy is complete at the time of departure. (Ex p. Gardner, 1 V. & B. 45; Holroyd v. Gwynne, 2 Taunt. 178; 1 Rose, 113.)

"Or begins to keep house."

For a trader to withdraw from that part of the house where he usually sits to a more retired part is a beginning to keep house. (Key v. Shaw, 8 Bing. 320.) For other examples, see Curteis v. Wills, 4 Dow. & Ryland, 224; Dudley v. Vaughan, 1 Camp. 271.

A trader may, of course, without committing an act of bankruptcy, order himself to be denied to creditors at unreasonable hours. (Smith v. Currie, 3 Camp. 349.)

A mere direction given by a trader to his servant to deny him to his creditors generally, or to any particular creditor by name, not followed up by an actual denial, or by any act which is evidence of an actual beginning "to keep house," is not, it would appear, an act of bankruptcy. (Fisher v. Boucher, 10 B. & C. 705.)

The above cases were decided when these last two acts of bankruptcy were confined to traders.

(e.) If execution issued against him has been levied by seizure and sale of his goods under process in an action in any Court, or in any civil proceeding in the High Court:

The corresponding sub-section of the Act of 1869 (section 6, sub-section 5), not only confined this act of bankruptcy to traders, but also limited it to cases where execution issued, &c. on process for “ obtaining payment of not less than 501." Now, however, an execution levied by seizure and sale for any amount in an action in any Court, or in any civil proceeding in the High Court, i. e., any civil proceeding in the High Court originated in a way other than by writ of summons, constitutes an act of bankruptcy.

Under the Act of 1861 it was expressly provided that "every debtor shall be deemed to have committed an act of bankruptcy from the date of the seizure of such goods and chattels," whereas under section 11 of the Act of 1869 it was held that where the act of bankruptcy, as in the present case, is not a voluntary act of the bankrupt, but a proceeding in invitum, the title of the trustee relates back only to the moment after the completion of the transaction which con

stitutes an act of bankruptcy. (Exp. Villars, re Rogers, L. R. 9 Ch. 432, 445.)

The Act of 1869 expressly made the title of the trustee relate to the time of the act of bankruptcy being completed. Section 43 of this Act contains no such words, but it is submitted that the relation under the present Act also will be to the completion, i. e., in this case to the time of the sale. The observations of Lord Cairns, L. C., in his judgment in Ex p. Villars, re Rogers, ubi sup., as to the distinction between voluntary and involuntary acts of bankruptcy, are in no way dependent on the words of section 11 of the old Act. See also section 43, post, and note.

§ 4.

In Ex p. Pearson, re Mortimer, L. R. 8 Ch. 667, James, L. J., contrary to the opinion of Mellish, L. J., seems to have held, in construing the corresponding section of the Act of 1869, that seizure and sale does not necessarily mean seizure and sale by the sheriff, but that it was sufficient seizure and Whether sale sale if the goods were seized by the sheriff, and afterwards must be by sheriff. sold by the debtor to the creditor, who resold them. But, however that may be, it has been held under section 87 of the Act of 1869, that where a payment is made by the debtor to the sheriff with the assent of the creditor, either to prevent the seizure (Ex p. Brooke, re Hassall, L. R. 9 Ch. 301), or, after seizure, to prevent the sale (Stock v. Holland, L. R. 9 Ex. 147), the creditor and not the trustee is entitled to the money so paid, notwithstanding that notice of a petition having been presented against the debtor had been served on the sheriff within fourteen days of the payment, and while the money was still in his possession, and therefore it would seem clear that such payments would not constitute an act of bankruptcy.

It is to be observed that in neither of the two latter cases was that which was paid or handed to the execution creditor, a part of the property seized by the sheriff, thus differencing them from Ex p. Pearson, re Mortimer. Section 46 of this

Act has been substituted for section 87 of the Act of 1869, and where the sheriff sells for more than 20/., the sale must by section 145 be by public auction, unless otherwise ordered by the Court from which the process issued. This latter requirement is with the substitution of 201. for 501. the same as section 74 of the Act of 1861.

(f) If he files in the Court a declaration of his inability to pay his debts or presents a bankruptcy petition against himself:

Declaration of inability, Rule 117, F. 3.