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THE PRACTICE

AS TO ISSUING

A COUNTRY FIAT IN BANKRUPTCY.

Observations showing why delay is to be avoided in striking a Docket-What Solicitor to be satisfied of before Proceeding -As to Petitioning Creditor's Debt-As to Trading-As to Act of Bankruptcy-Docket Papers-Affidavit of Debt by Petitioning Creditor-Petition for Fiat-Bankrupt's Description-Before, whom Affidavit should be sworn-Commissioners-As to Place where Fiat to be worked-Striking Docket-Effect of it-How long it excludes others-How long Docket in force-Within what Time Fiat to be opened.

THE space which could be devoted to the subject of bankruptcy in a work like the present is necessarily so limited, that, were the whole subject attempted, what could be said would probably be of little or no practical use; what follows is therefore confined to such observations and directions as will enable the practitioner to do what is necessary in order to issue the fiat &c. To enable him to work it properly, he ought, if his own experience be not sufficient, to be in possession of some work on the subject of bankruptcy; and if he be not in possession of such a work, he may obtain one through his agent, or otherwise. The works on this subject at present in use are the Digest of the Bankrupt Law, with Precedents, by Lord Henley; Archbold's Bankrupt Law, edited by Flather; and Messrs. Montagu and Ayrton's work on the subject.

It very frequently happens that, where the failure of a person in trade has become public, and he is known or supposed to have committed an act of bankruptcy, two or more of his creditors apply on the same day to their solicitors, and each are advised to make the debtor a bankrupt, docket papers go up to the agents of each of the solicitors by the same post, the different agents receive the papers at from nine to half-past nine o'clock in the morning, and are at the Bankrupt Office by ten o'clock when it opens (a); where this is the case, the different agents who are there with docket papers, and are ready to bespeak a fiat, draw lots, and so decide who is to have it; but it frequently enough happens that some other solicitor has sent the day before, and struck a docket, and so all of them are disappointed. I mention these circumstances to show, what perhaps is sufficiently obvious, that where a docket is to be struck and a fiat issued, the solicitor has not much time to consider what he is to do, but

is obliged to prepare his docket papers on the spur of the moment; and as it will often depend on the correctness of these papers whether he obtains the fiat or not, and there are some circumstances to be attended to which are strictly matters of practice, and which are not pointed out in other works, I have thought it would be useful to say something on the subject of bankruptcy, so far as regards the preliminaries to issuing the fiat.

Before proceeding to issue a fiat, the solicitor should satisfy himself of the existence of the three requisites to ground a valid fiat; viz. the petitioning creditor's debt, the trading, and that an act of bankruptcy has been committed.

The amount of debt due from the intended bankrupt to one of his creditors, or to more than one, so as to constitute him or them a good petitioning creditor, is regulated by the statute 5 & 6 Vict. c. 122,

(a) In the Long Vacation the office opens at eleven o'clock.

s. 9. A single creditor is a good petitioning creditor, if the debt due to him amount to £50 or upwards; or if a debt to that amount be due to persons in partnership, those persons will be good petitioning creditors; but if the debt of any single creditor, or of a partnership, do not amount to £50, two or more creditors or partnerships may join together in petitioning for the fiat; but in that case, if two join, their debts must, together, amount to £70 or upwards, and if three or more join their debts must, together, amount to £100 or upwards. Every person who has given credit to any trader upon valuable consideration for any sum payable at a certain time, which time shall not have arrived when such trader committed an act of bankruptcy, may so petition, or join in petitioning, for the fiat, whether he shall have any security in writing, or otherwise, for such sum or not; and, by section three of the same act, the Lord Chancellor, if he shall think fit, can dispense with the bond formerly required to be executed by the petitioning creditor previously to issuing the fiat, and in practice it is now never used or called for.

The second section of the Act 6th Geo. 4, c. 16, contains a description of the persons who are to be deemed traders, liable to become bankrupt; it enacts, that all bankers, brokers, and persons using the trade or profession of a scrivener, receiving other men's monies or estates into their trust or custody, and persons insuring ships or their freight, or other matters, against perils of the sea, warehousemen, wharfingers, packers, builders, carpenters, shipwrights, victuallers, keepers of inns, taverns, hotels, or coffee-houses, dyers, printers, bleachers, fullers, calenderers, cattle or sheep salesmen, and all persons using the trade of merchandise, 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, seek their living by buying and selling, or by buying and letting for hire, or by the workmanship of goods or commodities, shall be

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deemed traders, liable to become bankrupt: provided that no farmer, grazier, common labourer, or workman for hire, receiver-general of the taxes, or member of or subscriber to any incorporated, commercial, or trading companies, established by charter or act of parliament, shall be deemed as such a trader liable, by virtue of this act, to become bankrupt.

The new statute (5 & 6 Vict. c. 122, s. 10) has made some addition to the description of persons to be brought within the operation of the bankrupt law, it being thereby enacted, that, "all livery-stable keepers, coach-proprietors, carriers, ship-owners, auctioners, apothecaries, market-gardeners, cow-keepers, brick-makers, alum-makers, lime-burners, and millars, shall be deemed traders, and subject and liable as traders to this and the other statutes relating to bankrupts."

With the exception of two or three, which are contained in other sections of the act, (6 Geo. 4, c. 16), the acts of bankruptcy which may be committed are specified in the third section of that act, by which it is enacted, that if any such trader shall depart this realm, or, being out of this realm, shall remain abroad, or depart from his dwelling-house, or otherwise absent himself, or begin to keep his house, or suffer himself to be arrested for any debt not due, or yield himself to prison, or suffer himself to be outlawed, or procure himself to be arrested, or his goods, money, or chattels to be attached, sequestrated, or taken in execution, or make, or cause to be made, either within this realm or elsewhere, any fraudulent grant or conveyance of any of his lands, tenements, goods or chattels, or make, or cause to be made, any fraudulent surrender of any of his copyhold lands or tenements, or make, or cause to be made, any fraudulent gift or delivery or transfer of any of his goods or chattels, every such trader doing, suffering, procuring, executing, permitting, making, or causing to be made, any of the acts, deeds, or matters aforesaid, with intent to defeat or delay his

creditors, shall be deemed to have thereby committed an act of bankruptcy. By section 4 of the same act, it is enacted, that any conveyance or assignment by deed of all a trader's estate and effects to a trustee or trustees for the benefit of all his creditors, shall not be deemed an act of bankruptcy, unless a fiat issue within six calendar months from the execution of the deed by the trader; but there is a proviso in the section, requiring the deed to be executed by all the trustees, within fifteen days after the execution of it by the trader, and the execution by the trader and by all the trustees to be attested by an attorney or solicitor, and a notice, which must specify the date and execution of the deed, and the name and place of abode of every such trustee, and of such attorney or solicitor, must be inserted in the London Gazette, and in two newspapers; if the trader live in London, or within forty miles, they must be two London daily newspapers; but if the trader reside beyond forty miles from London, they must be one London daily newspaper and one provincial newspaper published near the trader's residence. If this proviso be not complied with strictly, the conveyance or assignment will continue to be an act of bankruptcy after the six months have expired. By section 5 it is enacted, that if any such trader, having been arrested or committed to prison for debt, or on any attachment for non-payment of money, shall, upon such or any other arrest or commitment for debt, or non-payment of money, or upon any detention for debt, lie in prison for twenty-one days; or having been arrested or committed to prison for any other cause, shall lie in prison for twenty-one days after any detainer for debt lodged against him, and not discharged, every such trader shall be thereby deemed to have committed an act of bankruptcy; or if any such trader, having been arrested, committed, or detained for debt, shall escape out of prison or custody, every such trader shall be deemed to have thereby committed an act of bankruptcy from the time of such arrest, committal, or detention. By

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