with reference to his affairs, or his bankruptcy or liquidation (9).

:

Moreover, any such bankrupt or person whose affairs have been liquidated shall be deemed guilty of a misdemeanor, and liable on conviction to imprisonment for one year, with or without hard labour, who shall, with intent to defraud his creditors, do any of the following things: 1. If, in incurring any debt or liability, he has obtained credit under false pretences, or by means of any other fraud. 2. If he has made, or caused to be made, any gift, delivery, or transfer of, or any charge on, his property. 3. If he has concealed or removed any part of his property within two months before the date of any unsatisfied judgment, or order for payment of money, obtained against him (»). And in the following case he will be guilty of felony, and be liable to two years' imprisonment with or without hard labour, namely: if, after the presentation of the petition (or four months before) he shall, with intent to defraud his creditors, quit (or attempt to make preparation to quit) England, and shall take with him (or attempt to take) any part of his property to the amount of 201. or upwards, which ought by law to be divided among his creditors (s).

To every bankrupt, however, who conforms in all points to the direction of the statutes, the law makes full amends for all this rigour and severity: for, after passing through his public examination, he is entitled (but, unless his bankruptcy has closed, only with the assent of his creditors testified by a special resolution) to apply for an order of discharge (t); and on obtaining this (which, if granted,

(a) 32 & 33 Vict. c. 62, s. 11. (r) Sect. 13.

(s) Sect. 12. As to an attempted flight, vide sup. p. 152, n. (1).

(t) 32 & 33 Vict. c. 71, s. 48. Instead of an order of discharge, the bankrupt, under a system which prevailed prior to the Act of 1869,

obtained his discharge by the allowance of a certificate of conformity, which certificate varied in its character according to the circumstances of the case. For if, in the opinion of the court, the bankruptcy arose from "unavoidable losses and misfortunes," it was

must be in writing and advertised in the London Gazette) he is set free from all debts and liabilities whatever which are proveable under the bankruptcy-save only such as were incurred or forborne by means of fraud or breach of trust, or such as are due to the crown, or incurred by any offence against the revenue laws, or as estreated bail for any person charged with such offence (u); and a bankrupt, duly discharged, is moreover entitled to enjoy, free from the claims of his creditors, all future acquisitions of property; so that, in the language often applied to the case of a discharge under former statutes, "he becomes a clear man again" (x).

But the bankrupt is not, as a matter of course, entitled either to pass his public examination or to obtain his order of discharge; for either the trustee or any creditor who has proved, may be heard in opposition, and on good cause shown the examination may be from time to time adjourned (y); and even when allowed to pass his public examination, the bankrupt is not always enabled to obtain an order of discharge: for it is provided by the Bankruptcy Act, 1869, that such order shall not be granted unless it

awarded as of the first class; if not wholly from such losses and misfortunes, of the second class; if not arising at all from such losses and misfortunes, then of the third class (see 12 & 13 Vict. c. 106, s. 199, Sched. Z.).

(u) In either of these cases the Treasury, however, may consent to the discharge (32 & 33 Vict. c. 71, s. 49).

(x) It may, however, be remarked that such discharge does not free one who has become surety for the bankrupt's debts. (See Ellis v. Wilmot, Law Rep., 10 Exch. 18.) It also deserves notice that under the state of the law which existed at the date of the Bankruptcy Act,

VOL. II.

1869, a promise on the part of the bankrupt (even though in writing) was inoperative to revive a debt from which he had been duly discharged. The 32 & 33 Vict. c. 71, however, does not contain any such restriction, and the previous enactments on the subject were repealed by 32 & 33 Vict. c. 83. (See, as to this, Rimini v. Van Praagh, Law Rep., 8 Q. B. 1; Peakman v. Harrison, ib. 14 Eq. Ca. 484.)

(y) A bankrupt, however, cannot be allowed to pass his public examination conditionally on his doing certain things. (Ex parte Smith, In re Angerstein, Law Rep., 7 Ch. App. 662.)

M

be proved to the court either that a dividend of not less than 10s. in the pound has been paid (or might have been paid but for the negligence or fraud of the trustee), or else that the creditors have passed a special resolution, to the effect that the bankruptcy or failure to pay such dividend has, in their opinion, arisen from circumstances for which the bankrupt cannot justly be held responsible, and that they desire that the discharge should be granted (≈). And power, moreover, is given to the court to suspend or withhold altogether the order, if-on the representation of the creditors made by a special resolution, or by other sufficient evidence, it should be satisfied that the bankrupt has made default in giving up to his creditors the property which he is required to surrender; or that a prosecution has been commenced against him under any of the provisions relating to the punishment of fraudulent debtors contained in the Debtors Act, 1869, which have been already enumerated in this chapter (a). There is, however, in this, as in all other bankruptcy matters, either of law or fact, an appeal given to any person aggrieved by the decision of the judge having original jurisdiction to the chief judge in bankruptcy, and from him to the court of appeal (b).

It is further to be observed, that where a bankrupt (from one or other of the above reasons) has failed to obtain his discharge, he is still to a certain extent under the protection of the court; for, from and after the "close of his bankruptcy," that is to say, when the court shall have made an order that the bankruptcy has closed, on being satisfied that the whole of the estate, or so much of it as may be, has been realized for the benefit of the creditors (c),—it is provided that no portion of any debt

(2) See In re Hamilton, Ex parte Hamilton, Law Rep., 9 Ch. D. 694.

(a) Vide sup. p. 158.

(b) As to an appeal from the

Court of Appeal by way of petition to the House of Lords, see 39 & 40 Vict. c. 59 (The Appellate Jurisdiction Act, 1876), s. 3.

(e) 32 & 33 Vict. c. 71, s. 47.

proveable under his bankruptcy, can be enforced against his property until the expiration of three years from that date (d); and if during that time he shall have paid to his creditors such additional sum as will, with the dividend paid out of his property during bankruptcy, make up ten shillings in the pound, he shall be entitled then to receive his order of discharge; but should no such payment have been made, then any balance of a debt proved in the bankruptcy (but not interest thereon) shall be deemed to be a subsisting debt in the nature of a judgment debt against him, and (subject to the rights of creditors becoming such since the bankruptcy) may be enforced against any of his property; though only to the extent, and in such time and manner, as shall be directed by the court which adjudicated the debtor bankrupt, or has jurisdiction in bankruptcy in the place where such property is situated (e).

Thus much for the proceedings in bankruptcy, which take place with respect to the bankrupt. Let us next consider,

IV. The effect of the bankruptcy on the property of the bankrupt.

We have seen that upon the order of adjudication being made, the property of the bankrupt vests immediately in the registrar of the court until a trustee is appointed, the trustee being elected by the creditors themselves at their first meeting (f). But there is a provision that when the trustee's selection shall have been reported and (on his having entered into the required security) confirmed by the court, it shall, by a certificate of appointment, declare

(d) It may be observed, that, if any money comes (during this interval) to any undischarged bankrupt, it may be arrested by the trustee, but he cannot follow it into the hands of a third party to whom it has been paid by the bankrupt.

(See Ex parte Dewhurst, In re Vanloke, Law Rep., 7 Ch. App. 185.)

(e) 32 & 33 Vict. c. 71, s. 54. See Ex parte Kelly, In re Simmons, Law Rep., 7 Ch. D. 161. (f) Vide sup. p. 155.

such trustee to have been duly appointed (ƒ). And it is also provided that, upon such appointment, all the property of the bankrupt shall forthwith pass out of the registrar and vest in such trustee (g). By the mere effect, then, of this appointment, the whole property of the bankrupt passes to the trustee; to which we may add, that the production of the certificate under seal of the court, is conclusive evidence of his appointment from the date of such certificate(); though in all places where conveyances or assignments are required to be registered, enrolled, or recorded, the certificate must be registered, enrolled, or recorded accordingly (i). There are, however, many enactments and decisions of the courts which lay down more fully and specifically the effect of the appointment of the trustee on the bankrupt's property, and to the collective operation of these it will be necessary now to direct our attention.

The trustee, then, by force of his appointment takes for the benefit of the creditors, subject to the exceptions which will presently be mentioned, all the lands, tenements, and hereditaments of the bankrupt (k),-whether situate in the united kingdom or elsewhere within her majesty's dominions, together with all his personal estate and effects, present and in expectancy, and wherever situate; or, more generally, all such "property" as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or which (with the exceptions about to be noticed) may be

(f) 32 & 33 Vict. c. 71, s. 18. (See Kelly v. Morray, Law Rep., 1 C. P. 667.)

(g) Sect. 17.

(h) Sect. 18. See 25 & 26 Vict. c. 53, s. 80.

(i) 32 & 33 Vict, c. 71, s. 83 (8). See 38 & 39 Vict. c. 87, ss. 43, 47, 127.

(k) It is to be noticed that the trustee takes all the personal estate of the bankrupt coming to him

through his wife; and if he is entitled, through her, to a life or other interest in real estates, is entitled to receive the rents. But such rights of the trustee arise only where such property of the bankrupt is not settled on his wife to her separate use upon her marriage, and has not become so settled under the provisions of the Married Women's Property Act, 1870.