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The following diagrams Illustrate the method: Les cartas, planches, tableaux, etc., peuvent Atre filmte A des taux da reduction diff Arents. Lorsque le document est trop grand pour Atre reproduit en un seul clichA, 11 est filmA A partir da Tangle supArieur gauche, de gauche A drolte, et de haut en bas, en prenant la nombre d'Images nAcessaire. Las diagrammes suivants illustrent la mAthoda. by errata nad to lent une pelure, fapon A 1 2 3 32X 1 2 3 4 5 6 THE INSOLVENT ACT OF 1864 # ' ■'-'■ :.«, ms B< N THE INSOLVENT ACT OF 1864 9 WITH TARIFF, NOTES, FORMS, AlTD A FULL INDEX. BY JAMES D. EDGAE, OP OiOOODH HALL BABBISTEB-AT'LAW. TORONTO : EOLLO & ADAM, LAW PUBLISHERS, KlVa STBEET EAST. 1864. w TORONTO i LOTSLL A GIBSON, LAW AND GENERAL PRINTBR0, TONGB STREET, Al TO THE HONOBABLB WILLIAM HENRY DRAPEE, 0.3. . CHIEF JUSTICE OF UPPER CANADA, (2;i)i0 bolttttte IS, BY PERMISSION, EESPECTFULLT INSCRIBED. AS ▲ SLIGHT TRIBUTE TO THOSE TARIED TALENTS, ADORN HIS HIGH POSITION. To a in oper: pretatio defects tating tl themsel in Insol tain. 1 endeavo It is ] Canada guidance With a \ heJp us t the Orde; in Lowei It wou carefully and indir be withoi tion. In ful points, dence, to PREFACE. To attempt a comment upon an act which has never been in operation, in the absence of decisions to guide in its inter- pretation, and without the light of experience to display its defects or advantages, is a hazardous undertaking. In anno- tating the Insolvent Act of 1864, all these difficulties presented themselves ; while the want of Rules to regulate the practice in Insolvency rendered the task more arduous and uncer- tain. Their absence, however, was an additional reason for endeavouring to explain the provisions of the Act. It is presumed that each County Court Judge in Upper Canada will lay down and abide by certain rules for the guidance of himself, and the profession in his own Court. With a view to furnish suggestions upon this point, that may help us to arrive at some degree of uniformity in the practice, the Orders, promulgated by the Judges of the Superior Court in Lower Canada, have been printed in the Appendix. It would be too much to expect that a statute, however carefully drawn, which introduces a new Court and Practice, and indirectly affects so many of the existing Laws, should be without many difficulties in its interpretation and applica- tion. In these notes attention has been drawn to some doubt- ful points, and efforts have been made, with the greatest diffi- dence, to explain others. d PBCFACE. In any manual of reference the Index is a most important part ; and the author is indebted to Mr. C. A. Jones, of Whitby, for valuable assistance in preparing a very full one of the Act and notes. A table has also been carefully arranged, which will shew at a glance the majorities of creditors required in different proceedings under the act. Toronto, Michaelmas Term, 1864. TABLE OF CONTENTS. ••• tat ••• ft! ••• t> ••• ••• at* ••• ttt «f« «• ••• ff«* 9 9 • • • •■• tt ••• ••• t«a ••• «*t •• ••• ••• ••! ■•# ••• •• ••• ttfl ••• ••• ••• tat •■ Iblb of Cases troduotort chapter AND Notes ... , Of Voluntary ABsignment Compulsory Liquidation Of Assignees Of Dividends Of Leases \ji ^xppeai ... .a. ... «•> ... .1. •• Of Fraud and Fraudulent Preferences .. Of Composition and Discharge Examination of the Insolvent and Others Of Procedure Generally ... General Provisions ... ^PBNDix ov Forms kBLB OF Majorities >WER Canada Orders ••• tt* •• ••• •#• t«* •• »■• ••• ••• • 9 • t* t*« ••• ••• •»• •• • •• ••• !•• ^RIFP ««. fft • 9 • ••• ••• •** *** *' )JvJL ••» !•• ••• ••# ••• ••• ••• ■•* *' 9 17 21 22 30 45 55 62 63 66 71 74 81 89 95 108 109 115 119 loraman, ex Idam, ex p , ilderson v. ' [iridge v. Ir adersoD, re |i'mitage Bal tkins V. Se\^ Igwell V. Ht Mlie V. Gran ^ker, Armita Idwin V. Pe krber, Warn< Irclay, Huda jrnard, Rank |ron, Baui'foi rtholomew \ rtsch, Kitch( arford V. Ba Mer V, Gun |l, Fisher v . J>by, Lamberl [beck, Eyre \ |d, Wright V |ch, Heavey \ckraore, exj. fton V. Sowei Swall, re . . . TABLE OF CASES. -♦^-♦- PAOE A. Loraman, ex p 84 [dam, fxp 21 [idersoQ v. Temple, 69 [iridge v. Ireland 81 idersoD, re 'ZS |i'mitage Baker v 72 tkins V. Seward 69 kgwell V. Hamilton 86 liilie V. Grant 87 ^ker, Armitage v 72 Idwin V. Pell ...... . 72 ^rber, Warner v . . 31 [relay, Hudson v ... 72 [rnard, Rankin y 68 |roD, Baurford v 87 rtholomew v. Sherwood ., 84 ptsch, Kitchen V 28 irford V. Baron 87 Icher V. Gunnow 82 |1, Fisher v 72 |>by, Lambert v 72 Ibeck, Eyre v 87 [d, Wright V 84 3h, Heavey v 34 ^okraore, exp 34 [ton V. Sowerby 84 Bwall, r« 78 PAGB Bourne, exp 37 Bowes, ex p 84 Bridgeman's Trust, in re 48 Briggs V. Sowry 66 Broohs, exp 87 Brooks, Monk and, re 77 Brown, Evans v 28 Buckley y. Taylor 66 Burgess, exp 39 Burwell, Walker y 27 C. Cadell, Mace y 68 Cameron y. Smith 89 Carroll, De Tastet y 69 Chalmers, Davidson y 27 Chalmers, Perry y 27 Chambers, Williams y 27 Chenoweth y. Hay 31 Chippendale v. Tomlinson 27 Cobb v. Symonds 86 Cohn, exp 80 Oolkett v. Freeman 81 CoUyer, exp 69 Couch, Crosby v 69 Crabtree, exp 79 Cramer, Smith y 81 Crosby v. Couch , 69 Gumming v. Roebuck 28 12 TABLU OF CALES. PAGE D. PAOB Grant, Bailie v 87 Greenway, ex p. . ., 39 Orove, exp 56 Grummett, «2;j9 19 Grummell V. Grummett 79 Gunnon, Belcher v 82 Gwynue, Holroyd v 84 Davidson v. Clialraers 27 Desharmes, ex p 66 De Tastel v. Carroll 69 De Taatel, ex p 69 Dewdney, ex p 89 Disputed Adjudication, re 83 Down, Fowler v 28 Dufaur, ex p 34 Dufaur, re 23 Dufreue, exp 32, 87 E. Ellis, exp 48 EUice, Lancaster y 72 Elliott, Glass and, ex p 78 England, Quantrook v 89 Evans v. Brown 28 Eyre v. Birbeck 87 F. Fisher v. Bell 72 Foote, Woods v 72 Fowler v. Down 28 Fowler v. Padget 81 Fox, WcLbv 28 Freeman, Colkett v 81 Freeman, Thompson V gg | Hudson v. Barclay 72 Frowd, exp 27 a. Garland, Lester v 6'< Gibbe, «a;p 84 Gibson v. King , 82 Gittey, Troughton v 28 Glass and Elliott, exp 78 Gonthwaite, exp 87 Hamilton, Bagwell v 86 Hampson, ex p 59 Hankey v. Jones 84 Hardy, ex p 42 Hawke, Langley v 48 Hawthorne, ex p 89 Hay, Ghenoweth v , , • 81 Hay, Rawson V «. 81 Heading, Pennell v 69 Heavy v. Birch 84 Herbert v. Sayer 28 Hernaman, Tucker y 69 Higgins, Marsh v 72 Hogg,r« 88 Holroyd v. Gwynne 84 Holroyd y. Whitehead 81 Hope, Tyrell y 67 Hopper y. Richmond 87 Inman, re 78 Ireland, Alridge v 81 J. Jarvis, Summersett v 34 Jellis V. Mountford 40 Johnstone, ex p , 77 TABLE OF CASES. 13 PAOB 87 39 66 19 19 32 84 35 69 84 42 48 89 81 ..... 81 69 34 ..... 28 69 12 83 84 • . . . 81 67 B1 12 ..... 78 81 .... 84 .... 40 .... 77 PAOB Johnstone, Einnear v 69 Jones, Hankey y 84 Kilner, ex p 31 Kinnear y. Johnstone 69 King, Gibson y 32 Kitchen y. Bartsch 28 L. Lambert y. Bibty 72 Lamb, Marbball y 69 Lancaster y. Ellice 72 Langlcy y. Hawke 48 Langstaffe, re 69 Lee, ex parte 39 Leigh V. Pendleberry . ........... 72 Leroche y. Wakeman 28 Lewis, Ramsbottom y 81 Liddell, Robertson y 31 Lister y. Garland 67 Lowden's Settlement, re 27 M. Mace y. Cadell 68 Marsh y. Higgins 72 Marshall y. Lamb 69 Martin y. Nightingale 35 Medlioott's case 39 Megmott, ex parte 35 Mew, re, ex parte Udall 78 Middleton, Waugh y 72 Monk y. Brooks 77 Morgan, ex parte 72 Morrison, ex parte 28 Mobs, Mullen y 27 PAGE Mountford, Jellis y 40 Mullen y. Moss 27 Mutrie, ex parte 31 N. Neirincks, ex parte 34 Newmark, re 23 Newnham y. Steyenson 68 Newton y. Trigg 86 Nightingale, Martin y 36 O. Osborne, ex parte 31 Osborne, Silk y 27 P. Padget, Fowler y 31 Parker y. "Wells 84 Parsons, re 79 Patman y. Yaughan 34 Patterson, Windham y 31 P'Sarse, re 79 Pell, Baldwin y 72 Pendleberry, Leigh y 72 Pcnnell y. Heading 69 Pentregulnea Fuel Company, re. . . 84 Perry y. Chalmers 27 Plummer, ex parte 66 Priddey, ex parte 22 Q. Quantrock y. England 39 R. Ramsbottom y. Lewis « 31 14 TABLE OF CASES. PAGE Rankin v. Barnard 68 Bawlings, ex parte '72 RawBon v. Hay SI Rice, ex parte 84 Richmond| Hopper v 87 Roberts y. Teasdale 87 Robertson v. Liddle 81 Roebuck, Cumminga v 28 Rowles, Sanderson y 85 8. Sanders, ex parte 59 Sanderson y. Rowles 86 Sayer, Herbert v 28 Schenek, ex parte, re Viner 84 Scott V. Thomas 81 Seward, Atkins y 69 Sherwood, Bartholomew y 84 Sikes, Simpson y 87 Silk y. Osborne* 27 Simpson y. Sikes 87 Slann, ex parte 88 Smith, Cameron y 89 Smith y. Cramer gl Smedley, re , 21 Sowerby, Bolton y 84 Sowerby, re 34 Sowry, Briggs y 55 Stamp, ex parte 22 Steyenson y. Newnham 68 Summersett y. Jaryis 84 Sutton, ex parte 89 Sutton y. Weeley 84 Symonds, Cobby 86 PAQI T. Taylor, Buckler y 66 Taylor, ex parte Crabbtree 79 Taylor, Tetley y 72 Taylor, "Worthington y 81 Temple, AldersoQ y 69 Tetley v. Taylor 72 Tliomas, Scott y SI Thompson y. Freeman 69 Tomlinson, Chippendale y 27 Tomlinson, ex parte 42 Torrance y. Winterbottom 49 Tribe y. Webster 82 Trigg, Newton y 86 Troughton y. Gitley 28 Tucker y. Hemaman 28 Tyr^lly.Hope 67 V, IJdal ea;|Kir<« r^Mew 78 V. Valentine y. Yaughan 86 Yaughan, Patman y 84 Yiner re, ex parte Schenek 84 W. Wakeman, Leroche y , 28 Walker y. Bumell 27 Warner y. Barber 81 Waugh y. Middleton. 72 Webby. Fox 28 Webster, Tribe y 32 Weeley, Sutton y 84 Wells, Parker y 84 TABLE OF CASES. 15 ^ells y. Girliog ''hitehead, Holrojd v. rilliama v. Ohambers. ''indham v. Patterson. ''ilsoD re FAOB . 89 , 81 > 21 81 28 PAQI Wioterbottom, Torrano* v 49 "Woods V. Foote Y2 Worthington v. Taylor 81 Wrighty.Bird 84 Wydown's Oaae 81 TilE BAI ES The a has bee] Twenty law. I Lower ( and the effects^ i the Prov This a only to c and fron: of Parli? receive t debts du( claims ai The prov " trader ' was pres and befoi become 1 words, th process, 1 of our 7 1 INTRODUCTORY CHAPTER. TilE BANKRUPTCY AND INSOLVENCY LAWS THAT HAVE HITHERTO EXISTED IN UPPER CANADA IMPERIAL ENACTMENTS APPLICABLE TO OUR LAW. The act contained in the ensuing pages is not the first that has been passed to afford relief to bankrupts in Upper Canada. Twenty-one years ago the Statute of 7 Vic, c. 10, became law. It was entituled " An act to repeal an Ordinance of Lower Canada, intitled, * An ordinance concerning bankrupts^ and the administration and distribution of their estates and effects, and to make provision for the same object throughout the Province of Canada,^' This act was assented to on the 9th Dec. 1843, and was only to continue in force for and during the term of two years, and from thence to the end of the then next ensuing Session of Parliament. The certificate, whicli the bankrupt might receive thereunder, had the effect of discharging him from all debts due by him at the date of the commission, and from all claims and demands made proveable under the commission. The provisions of this act extended only to traders, and the term " trader " was very strictly defined. This is a restriction that was preserved even in England, until the English Act of 1861, and before that time those who were not teachers could not become bankrupt, but might become insolvent ; or in other words, they might obtain protection for their persons against process, but not a discharge of their debts. After the passing of our 7 Vic, c 10, the portion of the community who were 18 INTRO jyCTORY CHAPTER. non traders naturally became desirous that they sl^-^uld also receive some proicction against their creditors when iney were willing to give up everything they had to pay their debts. The result of this feeling was the enactment of an Insolvency Law during the very next session of Parliameni:, (8 Vic , c. 48,) whereby a person who was not a trader within the mean- ing 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 hie scheduled creditors. The inconvenient distinction between traders aud rontraders has, however, been completely abol- ished, as far as regards Upper Canada, except in one case, by our act of 1864 ; and it is presumed that 8 Vic. c. 48, which has been embodied in the consoldated statutes, (chapter, 18,) will now be entirely disused, and is in effect repealed. Although the bankruptcy act of 7 Vic. was only to continue in force for about two years, the period of its operation was extended from session to session up to May 1849; and after that year provisions were made by different enactments, ex- tending as late as 1856, to enable persons, in whose cases commissions had issued during the continuance of the act, to carry on proceedings in bankruptcy until they obtained cer- tificates. While the bankrupt act was in force, between the years 1843 knd 1849, there were many instances of traders executing assignments for the benefit of creditors, at their request, for the purpose of avoiding the expense and delay attending proceed- ings in bankruptcy. And in some of these instances it hap- pened that, notwithstanding the complete yielding up of all their property by such traders, some of their creditors after- wards declined becoming parties to such assignments. These traders, when the bankruptcy act was no long in force, found INTRODUCTORY CHAPTER. 19 ^uld also riey were ir debts, isolvency J Vic , c. he mean- and then detained le to hip between iely abol- ! case, by 8, which (chapter, }ealed. continue ition was and after lerjts, ex- )se cases e act, to ined cer- he years xecuting t, for the proceed- s it hap- up of all ors after- These je, found that they had, without any culpable negligence, allowed the opportunity of taking the benefit of its provisions to pass. In order to afford relief in such cases 14 & 15 Vic, c. 116 was passed*. Its aim was to enable traders coming within the above description to avail themselves of the Insolvency Act, 8 Vic, c. 48, in the same manner as non-traders might have dane. It also enacted that the Final Order granted under the last mentioned act should, as to such persons, operate as a discharge of all debts due up to the date of their several as- signments, as fully and completely as a certificate under the bankruptcy act would have done. This was in addition to the protection afforded by the Final Order against all process. The same act (32, Geo. 3, c 1,) which introduced into Upper Canada the laws of England, as they stood on the 15th Oct., 1782, as the rule of decision in. all controversies relative to property or civil rights, excepted the laws respecting the main- tenance of the poor, and respecting bankrupts. The only authority of any English statutory provisions as to bankruptcy, or decisions founded upon that statute law, consists, therefore, in their analogy to our own law on the subject, and the assis- tance they thus afford in its interpretation. Direct reference has, however, been made by the Imperial Act, 24 & 25 Vic, c 134, to bankruptcy proceedings in the Colonies. The filing of a Petition by or against a debtor, whether a trader or not, in any Court having jurisdiction for the relief r^ insolvent debtors, in Insolvency or Bankruptcy, in any of Tim lajesty's Dominions, Colonies, or Dependencies, and the adjudication of an act of insolvency or bankruptcy on such petition, are for the purposes of that act, accounted conclusive evidence of an act of bankruptcy committed by such debtor at the time of filing such petition, (see sec 75.) In section 218 there is a provision that is to a great extent 20 ir^TRODUCTORY CHAPTBR. auxiliary to out o\' n CtCt, and affords facilities for reaching pro party of a bankrnpt in England, or any of the dominions of the Crown. It is as follows : — " If any person who shall have been duly adjudj^'cd or declared b nkrupt or insolvent in India or any of the foreign dominions 'antations or colonies of Her Majesty, shall })e resident, or shall be possessed of property in England, Ireland or Scotland, or in any colony, plantation or foreign possession of the crown, it shall be lawful for the As- signee, Trustee or other Representative of the creditors of such bankrupt or insolvent to apply for and obtain an adjudication, of bankruptcy, sequestration, or insolvency, against such person in the court of bankruptcy in England, and in the proper Court in Scotland, Irehmd, and such colonies, plantations, or foreign possessions of the Crown respectively, and by virtue thereof the same order and disposition shall be had and taken with re- spect to the person and property of a bankrupt or insolvent as would have been if he had been originally adjudged bankrupt or insolvent by the Court or Tribunal so applied to. Upon such application it shall not be necessary for the Assignee Trustee, or other Representative of the creditors of the person so declnred bankrupt or insolvent as aforesaid, to give proof of any act of bankruptcy or petitioning creditor's debt, or to produce any other evidence than a duly certified copy, under the seal of the court, of the order or adjudication by which such person was found or adjudged bankrupt or insolvent." AN ng pro \ of the e been idia or 3f Her erty in tion or he As- )f such sation, person r Court foreign eof the rith re- cent as nkrupt Upon signee person ; proof , or to under which It." AN ACT RESPECTING INSOLVENCY. 27 & 28 VIC — CAP. XVII. [Assented to 301 li June, 1804.] WHEREAS it is expedient that provision be Preamble made for the settlement of the estates of in- solvent debtors, for giving effect to arrangements between them and their creditors, and for the punishment of fraud : Therefore, Her Majesty, by and with the advice and consent of the Legislative Council and As3embly of Canada, enacts as fol- lows : 1. This Act shall apply in Lov r Canada to Application of traders only, and in Upper Canadt* to all persons ^^^^ ^^^^' whether traders or non-traders. Although this section seems to abolish the old and troublesome distinction between traders and non-traders as to Upper Canada, there is one case in which it is retained, (see below sec. 3, sub-sec. 2). As an infant cannot trnde, the provisions of the last mentioned clause will not apply to him, unless he has held himself out to be an adult and sui jurin, {Ex parte Adam, 1 V. & B., 424) ; but there appears to be nothing to prevent him taking the benefit of the Act with this exception, {Re Sraedley, 10 L. T. (N.S.)432). The criterion of a.fSme covert being capable of falling under the bankrupt laws appears to be her liability to be sued to execution for the debts she has con- tracted during coverture. If a married woman is so circumstanced as to be subject to a common law execution, there does not seem to be any reason why she should not likewise be subject to this statute execution, (Cooke, 40). It is doubtful if our Act respecting the separate property of married women, (Con. Stats. U. C, c. 73), will aflfect the application of this Act to that class of persons. For although, under the provisions of that statute, a married woman PvSsesses entire control over her property, which is liable to execution for her 22 INSOLTBNCT ACT. Proceedings for voluntary assifcnment of an Insolvent estate ; meet- ing of cred- itors to bo called. torti, there is nothing to show that it is liable to execution at law for her con- tracts made during coverture. The separate estate may, of course, be reached in equity ; but whether that would render it liable to attachment in bankruptcy proceedings is very questionable. It is probable, however, that a woman who has obtained an order protecting her earniugs under the above mentioned Act may become bankrupt as to that portion of her estate. 1. lunatic may be a bankrupt, provided the act of bankruptcy be committed during a lucid interval, (Ex parte Priddey, Cooke, 48 ; Ex parte Stamp, 1 DeO. 845). OF VOLUNTARY ASSIGNMENTS. 2. Any person unable to meet his engagements, and desirous of making an assignment of his estate, or who is required so to do as hereinafter provided, may call a meeting of his creditors at his usual place of business, or at his option at any other place which may be more convenient for them ; and such meeting shall be called by adver- tisement (Form A), stating in such advertisement the object of such meeting ; and at such meeting bn shall exhibit statements showing the position of his affairs, and particularly a schedule (Form B), containing the names and residences of all his creditors, and the amount due to each, distinguish- ing between those amounts which are actually overdue, or for which he is directly liable, and those for which he is only liable indirectly as endorser, surety or otherwise, and which have not become due at the date of such meeting ; and also the particulars of any negotiable paper bearing his name, the holders of which are unknown to him, — which schedule shall be sworn to by the Insolvent, and may be corrected by him likewise under oath at the meeting at which it is so pro- duced, also the amount due to each creditor, and a statement showing the amount and nature of all his assets ; and he shall also produce his books of Assets books ^cco'^^^ ^^^ ^^^ ^^^®' documents and vouchers, if Ac. * ' required so to do by any creditor : Schedules of creditors, A; J. Attestation. YOLUNTART ASSIGNMENTS. for her eon- f b« reached baokruptoj (foman who ntioned Act ) committed mp, 1 DeG. Lgements, It of his ereinafter editors at Dn at any inient for by adVer- rtisement meeting I position le (Form of all his itingnish- actually ^ble, and rectly as have not and also bearing nown to by the likewise 3 so pro- itor, and are of all books of ichers, if Under the proviiioni of this elanse there can be littl ? doubt that any person unable to meet b's engagements may become bankrupt w.'thout producing assets. In England, until the Act of 1861, it was otherwise. Under the Act of 1849 it was necessary lor a trader, on petitioning for adjudication of bankruptcy against himself, to make it appear to the satisfaction of the court that his available es- tate was suflRcient to pay his creditors at least five 8hilling«i in the pound, clear of all charges of prosecuting bankruptcy. This was modified by the Act of 1864 to the extent of allowing adjudication of bankruptcy on petition of a trader who could make it appear that his available estate was sufficient to produce the sum of £160 at least. It was, indeed, held by Gommissioncr Holro^f d, in a case under the recent English Act, (Re Newmark, 6 L. T. (N.S.) 766), that a debtor who petitioned the court without assets was in the situation of a pa iper, and should have applied under the provisions of the statute applicable to ^uch cases. As our Act has not provided for applications in formd pauperis, the isual procedure under this section must be used in every case of voluntary assi^rnment. This decision, however, has not passed unchallenged. In a note to this cafae the view is taken that the non-possession of assets is no justification for thit dismissal of a petition under the Act of 1861. The writer contends that as the language of the Act is " any debtor may petition," there is no qualification or restriction whatever, as regards the possession of any amount of property, large or small. And he comes to the conclusion that, however the non-possession of pro- perty may be an ingredient in arriving at a judgment upon the merits, it has nothing whatever to do with any question as to the jurisdiction of the Oourt, or the locus standi of a petitioner. The writer of an able article on " The New Bankrupt Law," in the Law Times of the 9th August, 1863, holds the same opinion, which is one that seems very much in accordance with the spirit of modern legislation upon the subject. The legislature and courts are now not hesitating to declare that the relief of the honest debtor is the primary, and the possession of his estate by his creditors the secondary aim of the bankruptcy laws. And see Ex parte Morrison, 10 Jur. (N.S.) 787, in which case it seems to be taken for granted that assets are not required. On an appeal from an order of a Oommissioner in bankruptcy, Lord Justice Turner pronounced a dictum which goes far to strengthen the argument for the application of onr voluntary assignment clauses to cases where there are no assets. He is reported to have said, " I doubt whether in any case (where there is no fraud) a petition ought to be dismissed having regard to the new Act, which extends to all debtors, whether traders or not." If an insolvent very shortly before he applies under the voluntary assignment clauses dispose of all his property for the purpose, among other things, of defray- ing the expenses of his solicitor in passing him through the court, and thereby leave nothing whatever for his creditors, his application may be refused, {Be Dofaur, 6 L. T. (N.S.) 196 \ lit Wilson, 6 L. T. (N.S.) 268). The fraud upon 24 INSOLYENCir ACT. I creditors in using the assets to fee a solicitor, instead of bringing them in, seems to be the ground of these decisions. It is submitted that that large class of persons who have heretofore made assignments for the benefit of their creditors are competent to take advantage of the voUntary assignment clauses of this Act, since production of assets is not required. And even if it were, there is still remaining in the person who has made such an assignment, a resulting trust which entitles him to any surplus after payment of the debts out of the estate. And this resulting trust is, in the eye of the law, an interest which he might possibly bring in as constituting his assets. For the manner of publishing the advertisement mentioned in this clause, and the number of insertions that will be neeessary, see below sec. 11, sub-sec. 1. Notice by post. 2. Each notice of such meeting sent by post, as hereinafter provided, shall be accompanied by a list containing the names of all the creditors of the Insolvent whose claims exceed one hundred dollar., and the aggregate amount of those under one hundred dollars ; For the provisions as to sending notices see below sec. 11, sub-sec. 1. Assignee ap- pointed by creditors. Votes of cred iters. Assignment. 3. At such meeting, the creditors may name an assignee, to whom such assignment may be made ; and if a vote be taken upon such nomination, each creditor shall only represent in such vote the amount of direct liabilities of the Insolvent to him, and the amount of indirect liabilities then actually overdue ; and thereafter the Insolvent shall make an assignment of his estate and effects to the assignee so chosen ; The assignee that the creditors are empowered to nominate under this sub- 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. be appo?nted^* ^' '^ ^® assignee be named at such meeting, or by creditors, at any adjournment thereof, or if the assignee insolvent may named refuses to act, or if no creditor attends select one. ^^ g^^jj^ j^eeting, the Insolvent may assign his estate to any solvent creditor resident within this Province, not related, allied, or of kin to him, and being such creditor for a sum exceeding five hun- dred large] then ingt( him ^, officii count) ofbuj Act countj then 5. Il credits credits of an maypi dispute in nui by agel erence I existen shall n or irre^ dent t vitiate assigne Althot the appo probably ftssignmi and an t might b( G. 1 be in t theretc in dup produc appenc VOLUNTAEY ASSIGNMENT. 25 em in, seems dred dollars, or if he has no such creditor for so large a sum who will accept such assignment, then to the creditor otherwise competent and will- or assign to ing to accept, representing the largest claim upon an Official him ; or he may make such assignment to any ^^ssignee. official assignee resident within the district or county within which the insolvent has his place of business and nominated for the purpose of this Act by the Board oi Trade in such district or county, or if there be no Board of Trade therein, then by the nearest Board of Trade thereto ; 6. If Any dispute arises at the first meeting of creditors as to the amount which any one of the creditors is entitled to represent in the nomination of an assignee, or upon any other question which may properly be discussed at such meeting, such dispute shall be decided by the votes of the majority in number of the creditors present, or represented by agents or proxies ; but if the dispute have ref- erence to any pretension of any creditor as to Ihe existence or amount of his claim, such creditor shall not vote upon the question ; but no neglect or irregularity in any of the proceedings antece- dent to the appointment of the assignee shall vitiate an assignment subsequently made to an assignee competent to receive it under this Act ; In case of dii^ pate at first meeting of creiitors, as to Totes. Irregularity not to vitiate appointment. Although no neglect or irregularity in any of the proceedings antecedent to the appointment of an assignee shall vitiate the subsequent assignment, it will probably 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 might be taken by a creditor. G. The deed or instrument of assignment may 5'orm of Deed be in the form C, or in any other form equivalent of^awig^ment, thereto, and if executed in Upper Canada shall be in duplicate ; and a copy of the list of creditors produced at the first meeting of creditors shall be appended to it ; and no particular description or 26 INBOLTSNCT ACT. EflFect of as- signment, as to estate of insolvent. Counterparts detail of the property or e/Tects assigned need be of deed. inserted in such deed ; and any number of coun- terparts of such deed required by the assignee shall be executed by the Insolvent at the request of the assignee, either at the time of the execution of such deed or instrument, or afterwards, to which counterparts no list of creditors need be appended ; A reference here to " Form D," in the appendix of forms, was probably omitted by some mistake. It seems clear that " Form D " is intended as an advertise- ment to be published by an assignee under a voluntary assignment forthwith upon the execution of the deed ; and its publication seems taken for granted in sec. 5, sub-sec. 1 of this act. 7. The assignment shall be held to convey and vest in the assignee, the books of account of the Insolvent, all vouchers, accounts, letters and other papers and documents relating to his business, all moneys and negotiable paper, stocks, bonds, and other securities, as well as all the real estate of the Insolvent, and all his interest therein, whether in fee or otherwise, and also all his personal estate, and moveable and immoveable property, debts, assets and effects, which he has or may become entitled io at any time before his discharge Exception. jg effected under this Act, excepting only such as are exempt from seizure and sale under execution, by virtue of the several statutes in such case made and provided ; The general rule as to the effect of the appointment of assignees is, that all property of the bankrupt, real and personal, in possession, remainder, reversioD, or in action merely, (see below sec. 4, sub-sees. 9 and 10, of this Act), to which h" was entitled at the date of the act of bankruptcy, or at any time before his discbarga under this Act, is vested in the assignees by virtue of their appoint- ment ; and hip acts thenceforth, with reference '^o this property, are considered , to all intents and purposes as those of a stranger. To this section and this | rule there is an important exception made by the 4th section of this Act. In the 7th sub-section it is provided that " no power vested in the insolvent, or pro- perty or eflfects held by him as trustee, or otherwise, for the benefit of others, shall vest in the assignee under this Act." Property which has been placed in the hands of a man for a specific purpose I will not pass to his aigignee upon bii bankruptcy. As where bills of exchange VOLUNTARY ASSIGNMENTS. 27 ;d need be er of coun- e assignee the request 3 execution Is, to which appended ; obably omitted a an adyertise> aent forthwith for granted in 3onvey and ount of the •s and other business, all bonds, and ;al estate of in, whether [is pergonal e property, las or may s discharge ly such as execution, case made lees is, that all ider, reversion, |Act), to which time before his their appoint- Jare considered Iction and this this Act. In Solvent, or pro- lefit of others, leciflc purpose IIb of exchange were remitted to bankers in London with permission to discount them for a par- ticular purpose, and thej were not in fact discounted before the bankruptcy of the banker to whom they were remitted, they were ordered to be delivered up to the assignees, {Exp. Frowd, Mon. and McA., 262). Also, where a bankrupt was allowed by his assignees to remain in possession of his house and furniture, in order to assist in settling the affairs of the bankrupt estate, and the bankrupt traded and became bankrupt a second time, it was holden that the furniture, &c., still remained the property of the assignees, under the first commission, and did not pass under the second assignment, (Walker v. Burnell, Doug. 316 ; and see Mullen V. Moss, 1 M. k S.. 335). By 28 Vict., c, 25, the exemption clauses in the Con. Stat3. XJ. C. (c. 19, sec* 151, and c. 22, sec. 254), are repealed, and the following provisions substituted : — " The following chattels are hereby declared exempt from seizure under any writ issued out of any court whatever in this Province, namely : " 1. The bed, bedding, and bedsteads in ordiniary use by the debtor and his family ; " 2. The necessary and ordinary wearing apparel of the debtor and his family ; " 8. One stove and pipes, and one crane and its appendages, and 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 weaving looms in domestic use, and ten volumes of books, one axe, one saw, one gun, six traps, and such fishing nets and Selves as are in common use ; " 4. All necessary fuel, meat, fish, flour, end vegetables, actually provided for family use, not more than sufficient for the ordinary consumption 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. Tools or implements of, or chattels ordinarily used in, the debtor's occu- pation to the value of sixty dollars." A bequest to a bankrupt, if he should obtain his certificate, passes to his assignees, (Davidson v. Ohalmers; Perry v. Chalmers, 10 L. T. (N.S.) 217). Where after a deed of assignment for benefit of creditors by two partners one becomes bankrupt, the trustees under the deed are entitled only to 1. ^ joint es- tate of the debtors, and not to the separate estate of either debtor, (Re Lowden's Settlement, 10 L. T. (N.S.) 261). Although all the property acquired by a bankrupt up to the time of his dis- cbarge passes to his assignees, as well as the right of action respecting it, (see below, sec. 4, sub-sec. 9,) he may maintain an action for his personal labour, performed after the issuing of the writ of attachment, (Chippendale v. Tomlin- son. Cook, 428; Silk v. Osborne, 1 Esp. 140; and see W lliams v. Chambers, UJar. t98;) and he may maintain an action with relation to after-acquired »8 INSOLVENCY ACT* property, (Webb v. Fox, 1 T. R. 391 ; Fowler v. Down, 1 B. & P. 44 ; Ev^ns v. Brown, 1 Esp., ITO ; Leroche v. Wakeman, Peake, 140,) or sue npon a contract made with him, (Camming v. Roebuck, Holt, 172,) unless the assignees interfere, (Kitchen v. Bartsch, 7 East, 68 ; Herbert v. Sajer, 2 Dow. & L. 49. Where the assigness and creditors of a bankrupt, who has not obtained his dis- charge, allow him to trade or contract debts without their interference or claim, it falls within the principle of a man having a lien standing by and allowing another to take a new security, whereby he is postponed ; and the subsequent creditors of the bankrupt will be preferred to the creditors under the bankruptcy, (Troughton v. Qitley, Amb. 630 ; and see Tucker, v. Hernaman, 17 Jur., 723.) All prope 'ty which an inso>ent becomes entitled to up to the time of his dis- charge passes to the assignee, but it must not be supposed that the insolvent is discharged from any debts he may incur after the voluntary assignment or the issue of th writ. Duplicate or authentic copy of assign- ment to be deposited, and where. The office of ing of creditor assignment. Registration of deed of assignment, if the iisolvent has real estate. Assignment executed in L. 0. or U. C. how register- ed in the other section of the Province. 8. Forthwith upon the execution of the deed of assignment, the assignee, if appointed in Upper Canada, shall deposit one of the duplicates thereof, and if in Lower Canada, an authentic copy thereof, in the office of the proper Court ; and in either case the said list of creditors shall accompany the deed or instrument so deposited ; the clerk of the County Ooiirt, of the County in which the meet- s is held, is the proper place for filing the duplicate deed of 9. If the Insolvent possesses real estate, the deed of assignment may be enregistered in the Registry Office for the Registration Division or County within which such real estate is situate; and noj subsequent registration of any deed or instrument of any kind executed by the Insolvent, or which otherwise would have affected his real estate, shall have any force or effect thereon; and if the real estate be in Upper Canada and the deed of] assignment be executed in Lower Canada before Notaries, a copy of the deed certified under the hand and official seal of the Notary or other public officer in whose custody the original remains, may be registered without other evidence of the execU'l tion thereof, and without any meniorial; and a VOLUNtART ASSiQKMENTS. 39 certificate of such registration may be endorsed upon a like copy ; and if the property be in Lower Canada and the deed of assignment be executed in Upper Canada, it may be enregistered by mem- orial or at full length in the usual manner ; but it shall not be necessary to enregister, or to refer on registration in any manner to the list of creditors annexed to the deed of assignment ; There would seem to be some very difficult questions likely to arise as to the registration of deeds of assignment under this clause. In the first place, as " no particular description or detail of the property or efifects assigned need be inserted in such deed, (see above sub-sec. 6 of this section,) it is not easy to perceive that much will be gained by making a search to ascertain if such a deed is registered against a particular lot of land. It may be said that it will be the duty of every one investigating a title to search through every registered assignment in the office to ascertain whether any person through whom the title has passed has executed such an instrument ; but there is no provision mad- lor docketting these registrations, as there was when judgments were registered against lands. The difficulty of these searches may not be much for some years, but unless provisions are made to facilitate them they will become more troublesome every year.* Then, in the second place, the assignment must no doubt be registered by a memorial under Con. Stats., U.G., ch. 89, see. 18, in every case but the excep- tional one mentioned in this clause where the deed of assignment has been exe- cuted in Lower Canada before notaries. But in sec. 19 of the above mentioned act it is provided that every memorial '' shall mention the lands contained in |the Instrument or Will, and the Oity, Town, Townships or place in the Go'unty r Riding where the lands are situated, in the same manner in which the same re described in the instrument or will, or to the same effect." It is submitted hat, although no particular description or detail of the real property need be nserted in the deed of assignment to render it a valid instrument to pass the state of the assignor, a deed without that description could not be registered. 10. If such deed be executed in Upper Canada, peed executed iccording to the form of execution of deeds pre- J^ baveVo^rcT railing there, it shall have the same force and in l. C. and jfFect in Lower Canada as if it had been executed vice versd. \n Lower Canada before notaries; and if such leed be executed in Lower Canada before nota- j^ j^otariai. |:ies it shall have the same force and efiect in ^ppet Gaafada, a^ if it had been executed in 30 INSOLYENCT ACT. Upper Canada, according to the law in force there ; and copies of such deed, certified as afore- said, shall constitute, before all courts and for all purposes, primd facie proof of the execution and of the contents of the original of such deed with- out production of the original. It is not very clear to what the words in this clause '^ certified as aforesaid ' can apply. The onlj previous mention of a certified copy of anything is in the' preceding clause, and applies only to copies of deeds of assignment, executed in Lower Canada, affecting real estate in Upper Canada, that are certified before notaries, or other public officers in whose custody the original remains. If it is Intended that this provision should extend to all copies desired as evidence of the contents of the original deeds, in both Upper and Lower Canada, the clerk of the County Court in which proceedingd are takeii will be the proper officer to certify to the copy in this part of the Province. II In what cases the estate of an insolvent trader shall become sub- ject to com- pulsory liqui- dation. COMPULSORY LIQUIDATION. 3' A debtor shall be deemed insolvent and his estate shall become subject to compulsory liquida- tion : Debtor ab sconding. a. If he absconds or is immediately about to abscond from this Province with intent to defraud any creditor, or to defeat or delay the remedy of any creditor, or to avoid being arrested or served with legal process, or if being out of the Province he so remains with a like intent, or if he conceals himself within this Province with a like intent ; It is held that a person going abroad for a legitimate purpose, and remaining abroad without making any provision for the payment of his debts, or sending money for that purpose, 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 fixed no definite time, {Ex parte Cohn, 2 L. T. (N.S.) 90,. Bank. See also note to sub-section 5, below, as to effect upon this act of bankruptcy of the limitation of three months for commencement of proceedings. Secreting estate. b. Or if he secretes or is immediately about to secrete any part of his estate and effects with T in force d as afore- ind for all nation and deed with- af aforesaid ' tbiog is in the' it, executed in certified before nains. If it is as evidence of mda, the clerk ) proper officer OOMPULSORT LiqUIOATIOW. 31 \tl\ and his Dry liquida- y about to to defraud remedy of d or served le Province le conceals e intent ; and remaining its, or sending his creditors ; )me home in a .. T. (N.S.) 90,. )f bankruptcy ts. about to foots with intent to defraud his creditors or to defeat or delay their demands or any of them ; c. Or if he assigns, removes or disposes of, or is Fraudulentlj about or attempts to assign, remove or dispose of assigning' any of his property with intent to defraud, defeat or delay his creditors or any of them ; Tbe intention to defraud, defeat or delay creditors, is the main ingredient in the three foregoing acts of bankruptcy. 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. Liddle, 8 East. 487; Wy down's case 14 Yes. 86 ; Chenowet v. Hay, 1 M. & S. e76 ; Aldridge v. Ireland, 1 Taunt. 273 ; Golkett v. Freeman, 2 T. & R. S9). On the other hand, a creditor being in fact delayed by the act, is not of itself eyidence of the debtor's intention in committing it, {Ex parte Osborne, 2 Ves. & B 1 77 ; Fowler v, Padget, 7 T. R. 609). The intent can only be evidenced by the debtor's acts or admissions. If a man admit that he committed the act with such an intent, it is almost con- clusive evidence of it, and can scarcely be explained away, (See Rawson v. Hay, 2 Bing. 99). Anything said or written by the bankrupt before his bank- ruptcy, tending to show the intent of an act equivocal in itself, is admissible, (Smith V. Cramer, 1 Scott, 641; Scott v. Thomas, 6 Car. & P. 611 . If the necessary consequence of the debtor's act be that his creditors must ebe therby defrauded, defeated or delayed, this is presumptive evidence of his intention to do so, (Ramsbottom v. Lewis, 1 Gamp. 279; Holroyd v. Whitehead, 3 Gamp. 530 ; Ex p. Eilncr, 2 Dea. 326 ; 3 Mon. & A. 722). The presumption raised by circumstances attending the act may be rebutted by evidence that the debtor did not at the time entertain the intention imputed to him. For instance, he may prove that upon leaving the country he left a partner behind him, (Rams- bottom V. Lewis, ubi supra) ; or that his presence out q£ the Province was abso- lutely necessary in order to look after his [concerns there, {Ex p. Mutrie, 5 Ves. 576 ; Warner v. Barber, 1 Holt, 175) ; or that previous to his departure he made arrangements thnt the interests of his creditors should be attended to in his absence, (Ramsbottom v. Lewis, ubi supra ; and see Windham v. Patterson, 1 Stark. 144). d. Or if with such intent he has procured his Or procuring money, goods, chattels, lands or property to be jn execution^^ seized, levied on or taken under or by any process or execution, having operation where the debtor resides or has property, founded upon a demand in its nature prove able under this Act and for a sk INSOLYXNCr ACT. 8Um exceeding two hundred dollars, and if such process is in force and not discharged by payment or in any manner provided for by law ; An act of bankruptcy hj procuring gaods to be taken in execution is not committed till actukl seizure, and when so committed is not carried back by re- lation to an earlier period, (Belcher v. Gunmow, 1 1 Jur. 286 ; Gibson v. King, 1 Car. k M. 458.) The mere allowing a judgment to go by default, under which judgment the debtor's goods are taken in execution, is, in itself, no procuring the goods to be taken in execution so as to constitute an act of bankruptcy, (Gibson v. King, ubi tupra.) Or being im- prisoned in civil action. e. Or if he has been actually imprisoned or upon the gaol limits for more than thirty days in a civil action founded on contract for the sum of two hundred dollars or upwards, and still is so imprisoned or on the limits ; or if in case of such imprisonment he has escaped out of prison or from custody or from the limits ; In order to constitute this act of bankruptcy there must be an uninterrupted imprisonment for more than thirty days. If a man arrested be bailed out before the expiration of the thirty days, and afterwards render in discharge of his bail, and remain in custody thereafter, the thirty days will begin 'o run on the day of the render, and not on the day of ^the original arrest, (Ex parte Dufrene, I Ves. & B. 61 ; Tribe v. Webster, Willes, 464.) Or refusing to f. Or if he wilfully neglects or reftses to appear appear. ^^ ^y ^^j^ ^^ order requiring his appearance to be examined as to his debts under any statute or law in that behalf ; Or to obey orders for payment. g. Or if he wilfully refuses or neglects to obey or comply with any such rule or order made for payment of his debts or of any part of them ; Or any order h. Or if he wilfully neglects or revises to obey Chancery.'" °' comply with the order or decree o. .he Court of Chancery or of any of the judges thereof, for pay- ment of money ; Or assigning *: ^' ^^ ^® ^^s made any general conveyance or generally, ex- assignment of his property for the benefit of his COMPULSORY LIQUIDATION. 33 creditors, otherwise than in the manner prescribed cept under by this Act: '^^'^'^' This act of Bankruptcy can only be taken adrantage of to place an estate in compulsory liquidation within three months after the assignment has been made, (see below, snb-sec. 6 ;) and it does not seem probable that creditors would de- sire to force a man through bankrvptcy proceedings, who had recently made an assignment, and could hare nothing more for them ; unless indeed, they could hope to set the asignment aside as being fraudulent under this act. The only creditors who will be in a position to take advantage of this act of bankruptcy in order to enforce compuL ':^y liquidation, are these who hare not signed and become parties to the deed of assignment for the benefit of creditors. It has been recently decided in England that a creditor who has executed such a deed may not afterwards take advantage of the assignment as an act of bank- ruptcy whereon to found proceedings against the assignor. Re a disputed adju» dkation^ 2 L. T. (N.S.) 77 Bank.) If a debtor execute a deed of assignment to trustees for the benefit of creditors he commits an act of bankruptcy although the trustees do not assent thereto, and refuse to execute the deed, (Ex. Parte Slann, 6, L. T. (N.S.) 400 Bank.) An assignment intended to be made under the voluntary clauses of this act might, from some entire omission of a prescribed proceeding, be an act of bank- ruptcy under this paragraph, (see above, note to sec. 2, ss. 6.) It has been held in one of the first decisions under this act, in Upper Canada, that this clause does not apply to assignments made before the 1st September, 1864, (Re Hogg, in County Court, York and Peel.) 2. If a trader ceases to meet his commercial Demand of liabilities generally as they become due, any two Jradw^does or more creditors for suras exceeding in the aggre- not meet his gate five hundred dollars, may make a demand commercial upon him (Form E.) requiring him to make an l^^^li^ies. assignment of his estate and enects for the benefit of his creditors : This clanse contains the only provision of this act that applies exclusively to traders in Upper Canada. It will be necessary, therefore, briefiiy to ascertain what classes of men are included within the meaning of the word *' trader.'^ In England this word was defined by statute in its relation to liability under the bankruptcy laws, as early as the reign of James the First. Any legislative enactment, however, upon the subject of bankruptcy in England, can have no force in this Province, and is only alluded to in order to explain and illustrate the conventional meaning of the word under notice. It is to be observed that the fint Act passed by the Parliament of Upper Canada, (32 Geo. 3, e. 1 ; Con« I i' ill 84 INSOLTBlfCY ACT. W Stats U. 0., 0. 9.) which introduced the law of England up to that date, espe- cially excepts "any of the laws of England respecting the maintenance of the poor, or respecting bankruptcy." It is submitted that the broad and general meaning of the word trader is. that he is a person who gains, or attempts to gain, his living by buying and selling. The words "seeking to gain his living by buying and selling," are used in the definition of the term in the English statute, 21 James I., c. 19, 8. 2. The cases, therefore, which have been decided i^pon these words in that statute will furnish us with a very fair illustration of the sense in which the word " trader " ought to be understood. There must be a buying and selling, or at least, an intent to sell ; for a buy- ing alone, without an intent to sell, or a selling alone without a buying, will not constitute such a trading, (1 Com. Dig, Bankrupt, A ;) and the buying must be a purchase in the common and ordinary, and not merely in the legal accepta- tion of the term, (Per Lord Loughborough, in Parker v. Wella, Cooke, 68.) If a man purchase goods for his own use, that will not make him a trader, even though he afterwards sell such of them as he may not have occasion for ; because he does not seek his living by the buying and selling, (see dictum of Lord Mansfield in Wells v. Parker, 11 T. R. 84 ; and see Summersett «. Jarvis, 3 Brod. & Bing. 2 ; 6 Moore 66.) If a man buy horses to sell again with a view to profit he is a trader ; but if he sell only such as he bred and reared himself, he is not, {Ex parte Gibbs, 2 Rose, 38 ; Wright t». Burd, 1 Price, 20.) So if a fisherman purchase fish and sell them he is a trader, but if he sell only such fish as have teen caught by him he is not; (Heaney v. Bbch, 3 Camp. 283.) If a man made bricks from his own land, as a mode of enjoying the profits of it, even although he made the bricks entirely for sale, and purchased sand and fuel, tc, for the purpose of making them, he was held not to be a trader, (Wells v. Par- ker, ubi tupra ; Cooke, 62-63 : Sutton v. Weely, *l East, 442.) When a man pur- chases standing timber to sell again, with a view to profit, he has been held a trader ; but if he sells only such as he cuts down upon his own land it would be otherwise, (Holroyd v. Gwynne, 2 Taunt 178.) If the owner of an estate, with a view to its improvement build houses, and afterwards happens to sell or let them he cannot be called a trader, Ex parte Neirincks, 2 Mon. & A., 884.) It has been held necessary, in order to make a man bankrupt as a trader by buying and selling, that there should have been a repeated practic' of it ; for a single act of buying and selling unaccompanied by an intention to continue it is not sufficient, (Cooke, 64; Ex parte Blackmore, 6 Ves. 8 ; Ex parte Bowes, 4 Ves. 168; Hankey v. Jones, Oowp. 748; and see Bolton v. Sowerby, 11 Ba»-t 274; Ex parte Duffanr, 20 L. J. Bank, 38.) But if this intention exist, the fX- tent of the trading, whether large or trifling, prior to the bankruptcy, will be immaterial, (Patman v. Yaug^hn, 1 T. R. 67; Bartholomew v. Sherwood, 1 T. R. 378.) A mere ti:ifling buying and selling, quite collateral to a man's line of COMPULBORT LTqUIDATION. 35 life, eren though it yield him a profit, will not render him a trader ; as, for in- stance, a schoolmaster who bujs books, kc^ and sells them to hi!^ scholars, (Valentine v. Yaughan, Peake, 76; Newton v. Trigg, 1 Salk., 109.) The legality or illegality of the buying or sell jog', makeif no difTcrence ; it has been held that a trader may become bankrupt, althoagia he has not taken out a license necessary to legalize his trade, (Sanderson v. Howies, 4 Burr. 2066; Martin v. Nightingale, 11 Moore, 305.) Even a sm igglcr might become bankrupt, {Ex parte Megmot, 1 Atk. 199; Gobb v. Symond:k, 1 D. & R., 111.) 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 proceedings must be com- menced, (see below, sub. sec. 6 of this sect.,) can be held to apply to the case of a trader ceasfng 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 committing a continuing act of bankruptcy, that is not removed until either the debts are paid, or barred by the Statutes of Limitations. It is enacted below, (sec. 12, sub-sec. 6,) that "all the provisions of this Act respecting traders, shall be held to apply equally to unincorporated trading companies and copartnerships ; and the chief office or place of business of such unincorporated trading companies and copartnerships shall be their domicile for the purposes of this Act," A banker is a trader within the meaning of this clause, A trader who has ceased to trade before 1st September, 1864, cannot be pro- ceeded against under this and the two following eub-sectiouf). But it is not neces- sary for the plaintifif 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., 805.) 3. If the trader on whom such demand is made, Counter pe- contends that the claims of such creditors do not theTruth°of°* together amount to five hundred dollars, or that the aiiega- they were procured in whole or in part for the tions in such purpose of enabling such creditors to take pro- ^®°^*^°^- ceedings under this Act ; or that the stoppage of payment by such trader was only temporary, and that it was not caused by any fraud or fraudulent intent, or by the insufficiency of the assets of such trader to meet his liabilities, he may, 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 36 INSOLVENCY ACT. Judge to de- cide. be adduced before him, the judge may grant the prayer of his petition and thereafter such demand shall have no force or eifect whatever ; and such petition may be granted with or without costs against either party ; but if it appears to the judge that such demand has been macle without reason- able grounds, and merely as a means of enforcing payment under color of proceeding under this Act, ne may condemn the creditors making it to pay treble costs ; A perfectly solvent person may, no doubt, be very much injured in hii busi- neis and re]:ucation by malicious creditors making a demand upon him under these causes. It is true that he may deny the allegations in the demand by a petition, and bring evidence before the court to prove the unfounded nature of the demand. Yet, all that the judge is empowered to do, should the petition be substantiated, if to condemn the creditors to pay treble costs. In the English Acts the Court is authorized to award satisfaction for the damages sustained by a malicious or unfounded petition being filed. It is presumed that the faet of a judge awarding treble costs against the creditors would not prevent their being rendered liable in an action of damages for maliciously abusing tho provisions of the Act. Before the trader could bring such action, it is submitted that he would have to present his petition against further proceeding on the demand, and have the same stayed. One very great hardship upon an honest debtor might be occasioned by these demands, inasmuch as he might in many instances have to disclose in his petition, and before action brought, the nature of defences which he may intend afterwards to set ap against the claims which he has failed to settle. If the petition be rejected or none be pre- sented, &c. 4. If such petition be rejected ; or if while such petition is pending, the debtor continues his trade, or proceeds with the realization of his assets ; or if no such petition be presented within the afore- said time, and the insolvent during the same time neglects to call a meeting of his creditors as pro- vided by the second section of this Act ; or if he does not complete such assignment within three, days after such meeting, or if there be an adjourn- ment thereof, then within three days after such I adjournment ; or if having given notice of a meet- ing of creditors, as required by the second section COMPULSORY LIQUIDATION. 37 of this Act, he neglects to proceed further there- Liquidation under, his estate shall become subject to compul- ^^^ compul- sory liquidation ; It has been held that an Act of bankruptcy concerted between the bankrupt and the applying creditor would not support a fiat, (Ex parte Qouthwatte, 1 Rose, 87 ; Ex parte Brooks, 1 Buck, 267 ; Baurford v. Baron, 2 T. R., 694; Eyre V. Birbeck, 2 T. R,, 395.) But a creditor not privy to such concerted act might arail himself of it, (Ex parte Bourne, 16 Yes. 145.) The bankrupt's agreeing to an act of bankruptcy at the suggestion of a friend, without any concert with the creditors was held to be no objection to the adjudication, (Roberts v. Teas- dale, Peake, X. P., 27 ; Simpson v. Sikes, 6 M. <& S., 296. Although these deci- sions were renderad nugatory in England by the provisions of 12 & 13 Vic, o. 106, it is presumed that they will be followed in our practice. 6. But no act or omission shall justify any pro- B«t proceed- ceeding to place the estate of an in jlvent in com- iakenwith^n pulsory liquidation, unless proceedings are taken three months. under this Act in respect of the same, within three months next after the act or omission relied upon as subjecting such estate thereto ; nor after a vol- untary assignment has been made, or an assignee appointed 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 hare been committed during the existence of the debt of the creditor making the application, (Bailie V. Grant, 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 Yes. k B., 51 ; Hopper v. Richmond, 1 Stark, 607). Although this section provides that proceedings must bu taken within three months after the act or omission relied upon, it should be remarked, that as to the first act of bankruptcy mentioned in section three, 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, commits a continuous act of bankruptcy until he comes back, or discovers himself. It is probable that the acts of negligence in sub-sec. 1, section three, marked/, g, and h, are con- tinuous acts of bankruptcy, as long as the debtor neglects to comply with the rules or orders therein mentioned. In expressing, above, the different acts of bankruptcy that shall render a man's estate subject to compulsory liquidation, there is a marked distinction in the tenses used. In the clauses marked d, e, and t, a past tense is employed, and in all the others the present or future. The legitlature mast be presumed 38 INSOLYXNCT ACT. in L. C. to hare made this distinction advisedly, and the effect of it would seem to be that the act of bankruptcy, where the past tense is used, may have been com- mitted before this act came into force, which .would so far seem to have a sort of ex post facto operation. The view taken by the learned Judge of the Counties of York and Peel in re Hogg, however, seems to lead to the conclusion that there • was no intention that the act should be in this respect retrospective, and that consequently an assignment made before the act came into operation could not be taken advan- tage of by creditors as an act of bankruptcy. Proceedings 6. In liOwer Canada an affidavit may be made WriT oTat-^ ^^ ^ creditor for a sum not less than two hundred tachr.ent of dollars, or by the clerk or other duly authorized debtors estate, agent of such creditor, setting forth the particulars of his debt, the insolvency of the person indebted to him, and any fact or facts which, under this Act, subject the estate of such debtor to compul- sory liquidation (Form F), and upon such affidavit being filed with the Prothonotary of the district within which the insolvent has his place of busi- ness, a writ of attachment (Form G) shall issue against the estate and effects of the insolvent addressed to the sheriff of the district in which such writ issues, requiring such sheriff to seize and attach the estate and effects of the insolvent, and to summon him to appear before the court to answer the premises, within such time as is usual therein for the return of ordinary writs of sum- Declaration to mons ; and such writ shall be accompanied by a accompany declaration setting forth such facts and circum- stances as are necessary to be proved to sustain the issue thereof; and shall be subject as nearly as can be to the rules of procedure of the court in ordinary suits, as to its issue, service, return and subsequent proceedings ; writ. The same in U. C. 7. In Upper Canada, in case any creditor by affidavit of himself or any other individual (Form F), shows to the satisfaction of the judge that he is a creditor of the insolvent for a sum of not less than two hundred dollars, and also shews by the COMPULSORY LIQUIDATION. 89 affidavits of two credible persons, such facts and circumstances as satisfy such judge that the debtor is insolvent within the meaning of this Act, and that his estate has become subject to compulsory liquidation, such judge may order the issue of a writ of attachment (Form G) against the estate and effects of the insolvent, addressed to the sheriff of the county in which such writ issues, requiring such sheriff to seize and attach the estate and effects of the insolvent and to summon him to appear before the court to answer the premises, within such time as is usual therein for the return of ordinary writs of summons ; and such writ Declaration shall be accompanied by a declaration setting to accompany forth such facts and circumstances as are necessary ^"** to be proved to maintain the issue thereof, and shall be subject as nearly as can be to the rules of procedure of the Court in ordinary suits as to its issue, return, and subsequent proceedings ; Some doubt may arise as to the nature of the debt of the creditor who can apply under this section. The interpretation clause of this Act (see below sec. 12, sub-sec. 6), gives the meaning of the word " creditor," and says it " shall be held to mean every person to whom the insolvent is liable, whether primarily or second- arily, and whether as principal or surety." It would seem, however, to be a question whether the debt of the applying creditor must not be a debt, for which, if payable at the time, an aetion at law could be maintained by and in the name of the creditor ; and whether an equi- table debt is sufficient, {Ex parte Hawthorne, Mont. 132); although such a debt may certainly be proved under bankruptcy. It has been held 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 ; Medlicot's case, 2 Str. 899 ; Ex parte Sutton, 11 Ves. 163). A debt barred by the Statutes of Limitations is insufficient, (Quantrock v. England, 2 W. Bl. T03 ; Ex parte Dewdney, 15 Ves. 479) ; so is a debt founded upon an illegal consideration, (Wells v. Girling, 1 Brod. and B. 44*7). The debt must not be a claim for damages, unless ascertained and fixed by judgment ; therefore interest, even on a bill of exchange, cannot be the sub- ject of an applying creditor's debt, unless expressed to be payable upon the face of the instrument, 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. 805 ; Ex parte Greenway, Buck. 412 ; Ex parte Burgess, 8 Tann. 660 ; 2 Moon, 745). There seems to be uo reason why application might not be made for a writ of 40 INSOLVEMCY ACT. attachment against a person who has already taken the benefit of our Act for the relief of Insolvent Debtors, Con. Stats. U. C, ch. 26. (See Jellis v. Mount- ford, 4 B. & A. 266). Unascertained damages claimed against an insolvent for a tort cannot be the debt relied on by an applying creditor ; nor, on the other hand, does a discharge under this act operate to free a man from any debt due as damages for personal wrongs, (see below, sec. 9. sub-sec. 5.) The ordinary formal parts of a declaration should be used in setting out the facts and circumstances to be proved ; and it might be well, in, the absence of any regulation on the subject in Upper Canada, for practitioners to adhere to the requisites for the intituling of insolvency pleadings, given in Rule 6 of the Lower Canadian orders, (for which see appendix.) A certain amount of unifor- mity and regularity may at least be secured in that way until something is authoritatively prescribed. The declaration that is to accompany the writ is answer;.'! by way of petition, (see below, sub-sec. 12), and not by plea. Notice of issue 8. Immediately upon the issue of a writ of of writ. attachment under this Act, the Sheriff shall give notice thereof by advertisement thereof (Form H) ; How writ shall be exe- cuted. Retnrn. 9. Under such writ of attachment the Sheriff shall, by himself or by such agent or messenger as he shall appoint for that purpose, whose autho- rity shall be established by a copy of the writ addressed to him by name and description, and certified under the hand of the Sheriff, seize and attach all the estate and effects of the insolvent wherever situate, including his books of account, moneys and securities for money, and all his office or business papers, documents, and vouchers of every kind and description ; and shall return, with the writ, a report under oath of his action thereon ; In whose cus- 10. If the Board of Trade in the County or Dis- IttJched^shaU ^"^* ^^ ^^^^^ ^^ ^^^"^^® *^® P^^^® ^^ business of be placed in the debtor, or if there be no Board of Trade in L. 0. such County or District, then the Board of Trade nearest thereto, has appointed official assignees for the purposes of this Act, the Sheriff shall place the estate and effects attached in the custody of COMPULSORY LIQUIDATION. 41 mr Act for I V. Mount- inot be the X discharge or personal ing out the absence of a adhere to ule 6 of the t of unifor- omething is the writ is ea. , writ of hall give ^orm H) ; Assignees ill place [stody of one of such official assignees, who shall be guar- dian under such writ ; but if not he shall appoint as guardian such solvent and responsible person as may be willing to assume such guardianship ; 11. The person so placed in possession shall ^g'J!^'^^*^^"^^ forthwith proceed to make an inventory of the es- ^^ tate and effects of the defendant ; and also such statements of his affairs as can be made from the books, accounts and papers attached ; and he shall inrcntory, &c file sucn inventory in the Court on the return day of the writ ; and shall produce such statements at the meeting of creditors called for the appoint- ment of an official assignee ; 12. Except in cases where a petition has been Petition to set presented as provided for by the third paragraph aside attach- of this section, the alleged insolvent may present ™®°** a petition to the Judge at any time within five days from the return day of the writ, but not after- wards, and may therefore pray for the setting aside of the attachment made under such writ, on the ground that his estate has not become subject to compulsory liquidation ; and such petition shall To be decided be heard and determined by the Judge in a sum- summarily, mary manner, and conformably to the evidence V adduced before him thereon ; • 13. Immediately upon the expiration of five days Meeting of from the return day of the writ, if no petition to ^"^^.*°{^[„' quash or to stay proceedings be filed, or upon the of officii as- rendering of judgment on the petition to quash, if signee. it be dismissed, the Judge upon the application of the plaintifT, or of any creditor intervening for the prosecution of the cause, shall order a meeting of the creditors to be held before him or any other Judge, at a time and place named in such order, and after due notice thereof, for the purpose of giving their advice upon the appointment of an official assignee ; ) I 42 NSOLYENCY ACT* r 'i: ■I' ! appointed official as signee. The notice of this meeting of creditors shall be given bj publication thereof for twe weeks in the Canada Gazette, and in a newspaper published at or nearest to the place where the meeting is to be held, if such newspaper be published within ten miles of such place, and notices of the meeting must also be sent by mail, (See below, sec. 11, sub-sec. 1.) It is very difficult, however, to see how the Judge sould have notices sent to '' all creditors, and to all representtftives of foreign creditors within the Province," when there has been no list of credi- tors brought before him at this stage of the proceedings. Who may be 14. At the time and place appointed, and on hearing the advice of the creditors present upon oath (Form I.) the Judge shall appoint some per- son to be such official assignee, which person shall be the person proposed by the creditors present, if they are unanimous ; and if they are not unani- mous, then the judge may appoint either one of the persons proposed by the creditors, or one of the official assignees named by the Board of Trade ; The person who is here designated as the " official assignee " is much the same as the creditors* assignee in England. It would seem that the number of creditors present at the meeting for the appointment of an assignee is not mate- rial ; it has been held that even if one only be present he may elect himself, (Cooke, 286.) A solicitor, who is thenceforth to conduct the proceedings under the bank- ruptcy, may be appointed by the assignee as soon as he is chosen, {Ex parte Tomlinson, 2 Rose, 66.) This may be either the Solicitor who applied for the writ of attachment, or another. The assignee may also remove the solicitor he has appointed, {Ex parte Hardy, 1 Rose, 895.) pettiinfo? ^^' Instead of petitioning to quash the attach- suspensionof ^^^nt, the debtor may, within the like delay, peti- proceedings. tion the judge to suspend further proceedings against him, and to that end to submit such peti- tion to a meeting of the creditors and the debtor to be called for that purpose, in order that the credi- tors may determine whether tlie proceedings against the debtor shall bj suspended or not ; Schedule to be produced with the pe- tition. 16. The debtor shall produce with such petition a schedule of his estate, and a list of his creditors, with the amount of his indebtedness to each, and the pj of buj tlable ersof der oa 17. of crec to as a meetin ment o o[ cred purpose such pe record the cre< 18. T called if properly omissior on thereof or nearest published be sent by to see how esentrftives }t of credi- and on ;nt upon ome per- •son shall >resent, if ot unani- oneofthe ne of the Trade ; is much the he number of is not mate- elect himself, er the bank- en, {Ex parte pplied for the e solicitor he ich petition is creditors, each, and COMPULSORY LIQUIDATION. 43 the places of their respective residences, or places of business, together with particulars of any nego- tiable paper on which his name appears, the hold- ers of which are unknown to him ; the whole un- der oath ; 17. Upon the schedule of the estate and the list Duty of Judge of creditors being furnished by the debtor, sworn ^"^ ^"^^^ °^*®- to as aforesaid, the Judge, instead of ordering a meeting of creditors to be called for the appoint- ment of an official assignee, shall order a meeting Meeting to be of creditors to be called by advertis'^Tient for the called, purpose of taking into consideration the prayer of such petition, and at such meeting shall take and record by a writing under his hand the opinion of the creditors thereon ; 18. The .Judge shall postpone the meeting so Postponement called if it appears that the creditors have not been ®^™e®t^°if' properly and reasonable notified, or that important omissions have been mau j in the creditors' list ; 19. The Judge shall preside at such meeting of Judge to pre- creditors, and the question which they shall de- meethig.^^ cide shall be, "Shall the debtor be proceeded against under this Act or not ? " And if the deci- Question to be sion of the majority in number and three-fourths in decided there- value of the creditors for sums above one hundred **' *°*^ ^°^' dollars, present or represented, be in the negative, it shall be in force for three calendar months there- after, during which time no other proceedings in insolvency shall be commenced against the debtor, based upon any act or omission of his which took j place previous to the institution of the proceedings jso stayed by the decision of the creditors ; The effect of a decision of the creditors under this clause not to proceed [against the insolvent seems to be to entitle the latter to hare the attachment idischarged, and to get l stay of any other proceedings in insolvency, based upon jacts of bankruptcy committed before the issue of the attachment. If this be the Itrne interpretation of the question put to the creditors, it effects a great deal 44 IN80LTENCT ACT. more than a suspension of proceedings. In fact it is more effectual to quash the writ than a petition under sub-sec. 12, above, would be, for i< ot only sets the writ aside, but gives the insolvent protection for three months from other pro- ceedings. At the end of this time the creditors would have to take their steps to place the estate in compulsory liquidation de novo. It is scarcely probable that it could have been intended that a mere suspension of proceecings should be the result of a negative answer from the creditors. The guardian is supposed to have taken possession of everything that belonged to the insolvent, and the latter would be very little benefitted by his eflFects remaining quietly in the guardian's hands for three months. Proceedings 20. If the decision at such meeting be not in the me^tin ^^^'^ °^ negative, the judge shall at once proceed thereat to mee mg. ^^^^ ^^^ advice of the creditors as to the appoint- ment of an official assignee, and shall appoint such assignee as hereinbefore provided. In case of 21. If any question arises at such meeting res- question as to pecting the amount of any creditor's claim, it shall cred?tor's^*°^ be decided by the judge upon a hearing of the claim. parties, and from an inspection of the schedules and list so sworn to by the debtor, and of the state- ment of the debtor's anairs prepared and produced at such meeting by the guardian, or person en- trusted with the writ of attachment ; Effect of ap- 22. Upon the appointment of the official assignee ^ffi****?**** ^^ ^^® guardian shall deliver the estate and effects at- Bignee. *^" tached, to the official assignee ; and by the effect of his appointment, the whole of the. estate and effects of the insolvent, as existing at the date of the issue of the writ, and which may accrue to him by any title whatsoever, up to the time of his discharge under this Act, and whether seized or not seized under the writ of attachment, shall vest in the said official assignee, in the same manner and to the same extent, and with the same excep- tions as if a voluntary assignment of the estate of the insolvent had been at that date executed in his favor by the insolvent ; AISIOKXBS. 4S ) quash the il J sets the I other pro- I their steps ily probahle ings should is supposed ent, and the aietly in the not in the thereat to appoint- )oint such eting res- im, it shall Lng of the schedules f the state- produced •erson en- 1 assignee effects at- the effect istate and e date of I accrue to Ime of his seized or shall vest le manner le excep- estate of ited in his 23. An authentic copy or exe. iplification under Effect of re- the hand of the proper officer ot the Court, of the ^Jd^* ^f "**/ order of the Judge appointing an official assignee, pointoen*r may be registered at full length in any registry office, without any proof of the signature of the officer and without any memorial ; and such re- gistration shall have the same effect as to the real estate of the insolvent and in all other respects, as the registration of a deed of assignment under this Act; As to the registration of a deed of assignment under this Act, see aboYCi tec. 2, sub-sec. 9, and note. 24. Immediately upon his appointment, ^ the of- Notice of ap- ficial assignee shall give notice thereof by adver- P®"^*"*®^** tisement (Form K), requiring by such notice all creditors of the insolvent to produce before him their claims, and the vouchers in support thereof. Boards of Trade maj name official assignees. OF ASSIGNEES. 4t. The Board of Trade at any place, or the Council thereof, may name any number of persons within the County or District in which such Board of Trade exists, or within any County or District adjacent thereto in which there is no Board of Trade, to be official assignees for the purposes of this Act, and at the time of such nomination shall declare what security for the due performance of his duties,' shall be given by each of such official assignees before entering upon them ; and a copy of the resolution naming such persons, certified by the Secretary of the Board, shall be transmitted to the Prothonotary or Clerk of the Court in the District or County within which such assignees are resident: The^eeveral Boards of Trade in Toronto, Hamilton, London, Kingston, and Ottawa, appwnted official assignee under the authority of tilts clause at an ^arly period after the act eame into force. The names of those appointed are are as follows: Securitj. Notice of nomination. 46 INSOIiYSNCT ACT. By the Toronto Board:— Messrs. Thomas Clarkson, Thomas Gordon, Joseph Blakely, Samuel Spreull, F. A. Whitney, Heory Joseph, Henry Hewlett, W. T. Mason, and George Wightman for the City of Toronto; Messrs. M. Teefy and Robert Beekman, for the Counties of York and Peel ; Archibald Barker, for Y^rt and Ontario ; James Holden, for Ontario ; J. Cassie Hatton, of Port Hope ; E. A. McNaughton, Cobourg ; N. E. Hatton, Peterborough ; S. C. Wood, Lindsay ; S. M. Sandford, Barrie. By the Hamilton Board :— For the County of Wentworth, Messrs. Willson, Mc- Keand, and William Powis, of Hamilton. For the County of Waterloo, Ur. Henry F. J. Jackson, of Berlin, and Mr. Alexander McGregor, of Gait. For the County of Brant, Mr. A. W. Smith, of Brantford. All appointed by this Board have fooad the security required. By the London Board ; — For the County of Middlesex, Messrs. Thomas Ohvrcher, and Lawrence Lawrason, of London. For the County of Oxford, Mr. James Mo- Whlrber, of Woodstock. By the Kingston Board : — Messrs. James Shannon, Charles H. Yolght, and Roderick M. Rose. By the Ottawa Board t^-For the City of Ottawa and Counties of Carlton and Russell, Francis Olemow. For the Counties of Lanark and Renfrew, Roderick Ross. The security that the Toronto Board of Trade requires from each official assignee, before entering upon his duties, is a Bond from the European Assurance and Guarantee Association, to the amount of $5,000. Up to the time of going to press, Mr. W. T. Mason is the only one of those nominated, who is known to hare complied with this requisite ; but no doubt the others will do so, if their services are required. It is to be observed that by sub-section 6, below, the creditors may, by resolu> tion, order further security to be given by the official assignee; but it is highly improbable that any security will, in the great majority of cases, be required, in addition to what has been taken by the Board of Trade, especially when it is so large as that which the Toronto Board has insisted upon having. Security to' be given by as- signee. 2. Such security shall be taken in the name of office of the President of such Board of Trade, for the benefit of the creditors of any person whose estate is, or subsequently may be, in process of li- quidation under this Act ; and in case of the de- fault of any such assignee in the performance of his duties, his security may be enforced and real- ized by the assignee who shall be appointed his successor, who may sue in his own name as such assignee upon such security ; ASSIGNEES. 47 3. The assignee shall call meetings ol creditors, Meeting of whenever required in writing so to do by five ere- ^^Jen ^"{,3 ditors, stating in such writing the purpose of the called by as- intended meeting ; or whenever he is required so aignee. to do by the judge, on the application of any cre- ditor, of which application he shall have notice ; or whenever he shall himself require instructions fi'om the creditors ; and he shall state succinctly in the notice calling any meeting, the purposes of such meeting ; 4. The assignee shall be subject to all rules, Assignee to orders and directions, not contrary to law, or the ^® subject to provisions of this Act, which are made fcr hig ^^"^ **^ ^^^ e^. guidance by the creditors at a meeting called for the purpose ; and until he receives directions from the creditors in that behalf, if there be a Bank or agency of a Bank in the County in which the in- solvent has his place of business, or within fifteen miles of such place, he shall deposit weekly, at Deposit of interest, in the name of the estate, all moneys re- "moneys. ceived by him, in the Bank or Bank-agency in or nearest to the place where the insolvent so carries on business ; 5. The assignee shall attend all meetings of ^o attend all creditors, and take and preserve minutes of such S^dUors meetings^ signed by himself, and signed and cer- tified at the time by the chairman, or by three cre- ditors present at the meeting ; and copies of, and extracts from, such minutes, certified by the as- signee, shall be primd facie evidence of the pro- ceedings purporting to be recorded in such min- utes ; and he shall also keep a correct register of ^^^ ^®®P "^i- all his proceedings, and of all claims made to or °^ ®^' °' before him ; 6. The assignee shall give such security and in Security to such manner as shall be ordered by a resolution *^\§j[®° ^ of the creditors, and shall conform himself to such ! I 48 TN90LTENCT ACT. directions in resjject thereof, and in respectof any change or moditcation thereof or addition thereto, as are subsequeutly conveyed to him by similar resolutions ; and in eveir case except where the security has beetn taken in the name of the Presi- dent of the Boaid of Trade, and is not required to The Bond. be changed, the bond or instrument of security shall be taken in favor of the creditors, bv the name of the " Creditors of A. B., an insolvent, under the Insolvent Act of 1864," and shall be How kept. deposited in the office of the Court, and in case of default by the assignee on whose behalf it is given, may be sued upon by any assignee who shall be subsequently appointed, in his own name as such assignee ; fS^ali *f-°'/i '^' ^^^ powers vested in any insolvent ^hich he might legally execute for his own benefit, shall vest iu, and be executed by the assignee, in like manner and with like effect as they were vested in the insolvent, and might have been executed by him ; but no power vested in the insolvent or pro- perty or effects held by him as Trustee or other- wise for the benefit of others, shall vest in the as- signee under this Act ; It is probable that the general jurisdiction of the Court of Chancery in all matters relating to trusts would place it in the power of that Court to appoint a new trustee in case of the bankruptcy of a former one ; although it was thought necessary to clothe the Court in England with that power by statute, (6 Qeo, 4, c. 19, s. 79 ; 12 & 13 Vic. c. 106, s. 180.) These provisions, however, do not ren- der it imperative on the Court to remove a trustee from the trust upon his bank- ruptcy ; but he will be removed if his bankruptcy in the smallest degree endan- gers the trust, (tii re., Bridgman's Trust, 6 Jur. (N. S) 1066.) In case of the bankruptcy of a trustee the Court of Chancery may appoint a receiver to act in his stead, [Ex parte Ellis, 1 Atk., 101 ; Langley v. Hawke, 6 Mad., 46.) solvent vested in assignee. Winding up afiEkirs. 8. The assignee shall wind up the affairs of the insolvent, by the sale, in a prudent manner, of all bank and other stocks, anc' of all movables belong- ing to him, and by the colleotion of all debts ; but in all action 9. n sue fo] vent, a defenc vent nn and mi ail suit are pei on his therein If the £ upon ind( To asu mortgago 2 Grant, < 10. I] Compai within 1 is appoi assignet remedie pany or could h partners may avj medies, expired 11. A the colle there re Which w the estati at a mee and wit! the Jud| ASSIONESfl. 49 ctof any I thereto, r similar here the [le Presi- quired to security 3, by the Insolvent, shall be in case of half it is ynee who iwn name ^hich he lefit, shall e, in like ere vested tecutedby ent or pro- or otner- in the as- in all of such respects shall be guided by the dir- ection of the creditors, given as herein provided ; 9. The assignee, in his own name as such, may Assignee's sue for the recovery of all debts due to the insol- right of ac- vent, and may take, both in the prosecution and ^°°' defence of suits, all the proceedings that the insol- vent might have taken with respect to the estate, and may intervene and represent the insolvent in all suits or proceedings by or against him, which are pending at the time of his appointment, and on his application may have his name inserted therein, in the place of that of the insolvent ; If the assignee decline to prosecute a suit, the creditors are entitled to do so, upon indemnifying the assignee against costs, &c., (10 L. J. (N. S.) 102.) To a suit for foreclosure against the assignee of the estate of a bankrupt mortgagor, the bankrupt is not a necessary party, (Torrance v. Winterbottom, 2 Grant, 487.) 10. If a partner in an unincorporated trading When the in- Company or co-partnership, becomes insolvent pawner In a within the meaning of this Act, and an assignee trading com- is appointed to the estate of such insolvent, the pany, &c. assignee shall have all the rights of action and the remedies against the other partners in such Com- pany or co-partnership, which any partner could could have or exercise by law against his co- partners after the dissolution of the firm ; and may avail himself of such rights of action and re- medies, as if such co-partnership or Company had expired by efflux of time ; 11. After having acted with due diligence ^^^ ^? i^tf®"?*' the collection of the debts, if the assignee finds ^^^^^ :*8aie* there remain debts due, the attempt to collect may be order- wtiich would be more onerous than beneficial to ed. the estate, he may report the same to the creditors at a meeting thereof duly called for the purpose ; and with their sanction he may obtain an order of the Judge to gell the same by public auction. 50 Proviso, INSOLTENCY ACT. after such advertisements thereof as may be re- quired by such order ; and pending such adver- tisements, the assignee shall lieep a list of the debts to be sold, open to inspection at his office, and shall also give free access to all documents and vouchers explanatory of such debts ; but all debts amounting to more than one hundred dollais shall be sold separately ; Rights of pur- 12. The person who purchases a debt from the chaser of debt, assignee, may ^ue for it jn his own name as eltec- ually as the insolvent might have done, and as the assignee is hereby authorized to do ; and a bill of sale (Form L.,) signed and delivered to him by the assignee, shall be prim& facie evidence of such purchase without proof of the handwriting of the assignee ; and no warranty, except as to the good faith of the assignee, shall be created by such sale and conveyance, not even that the debt is due ; Sale of insoi- 13. The assignee may sell the real estate of the vent's real insolvent, but only after advertisement thereof, estate : notice. £^^ ^^^ same time and in the same manner as is required for the actual advertisement of sales of real estate by the Sheritfin the district or place where such real estate is situate, and to such fur- ther extent as the assignee deems expedient ; but the period of advertisement may be shortened to not less than two months by a resolution of the creditors passed at a meeting called for the pur- Power to pos^? and approved of by the Judge ; and if the withdraw: price offered for any real estate at any public sale and sell after- duly advertised as aforesaid, is in the opinion of wards. ^j^^ assignee too small, he may withdraw such real estate, and sell it subsequently under such directions as he receives from the creditors ; The time and manner of advertising the sales of real estate bj the sheriff in Upper Canada are pointed out in the Common Law Procedure Act, (Con, Stats. {J. C«, ch. 22, 8. 267), which enacts as follows : — AS8IONXX8. 61 " Before the lale of real estate npon exeoution against lands and tenements, the sheriff shall publish an adyertisement of sale in the Catmda Gatiette, at least six times, specifying, — " First : The particular property to be sold ; "Second : The names of the plaintiff and defendant ; " Third : The time and place of the intended sale ; and he shall for three months next preceding the sale also publish such advertisement in a .J:Hc news- paper of the county in which the land lies, or shall for three mon' i* iit up and continue a notice of such sale in the office of the Clerk of the Is. -, or on the door of the Gourt House, or place in which the Oourt of General Quarter Ses- sions for such county is usually holden ; but nothing herein contained shall bo taken to prevent an adjournment of the sale to a future day." Effect of sale of real estate by assignee in U. G. and L. G. respect- ively. 14. The sale of real estate in Upper Canada so made by the assignee, shall have the same effect as if the same had been made by a Sheriff in Upper Canada, under a writ of execution issued in the ordinary course ; and in Lower Canada, such sales shall have the same effect as if made by a Sheriff under a similar writ ; and the deed of such sale which die assignee executes, (Form M.) shall have precisely the same effect as a Sheriff's deed has in that part of the Province within which the real estate is situate ; but he may grant such terms of credit as he may deem expedient, and as mav be approved of by the creditors for any part of the purchase money ; and if no previous hypothec or mortgage remains upon such real estate, he shall be entitled to reserve a special hypothec or mortgage by the deed of sale, as security for the payment of such part of the purchase money ; and such deed may be executed before witnesses, or before Notaries, according to the exigency of the law of the place where the real estate sold is situate ; This section gives the same effect to a sale of real estate by an assignee as if the sale had been made by a sheriff under a writ of execution. The title that is given by a sheriff's sale is the title that was in the execution debtor at the time the writ was placed in the Sheriff's handa. It therefore seems clear that a purchaser from an assignee under a voluntary assignment would obtain the title of the insolvent in the property at the date cf the assigi^jnent ; and in the Credit for purchase money. Reserving mortgage therefor. »i.j . , 52 INSOLVENCY ACT. ■1:'. case of a compulsory liquidaticn the assignee would convey the title that the insolvent had at the time the writ of attachment was placed in the Sheriff'! hands, (see above, sec. 3, sub-sec. 22.) The sale of the interest of an insolvent mortgagor in the mortgaged lands, by an asignee, will be governed, no doubt, by the same regnlations as a similar sale by a sheriff. The Common Law Procedure Act, (Con. Stats., U. C, c. 22, sec. 258,) provides for such cases as follows : — " The effect of such seizure or taking in execution, sale and conveyance of any such mortgaged la ds and tenements, shall be to vest la the purchaser, his heirs and assigns all the legal and equitable interest of the mortgager therein, at the time the writ was placed iu the hftr:d« of the Sheriff or other officer to whom the same is directed as well as at the time of such sale, and to vest in such purchaser his heirs and assigns, the same rights as such mortgagor would have had if such sale had not taken place ; and the purchaser, his heirs or assigns may pay, remove, or satisfy, any mortgage, charge or lien, which at the time of such sale exivied upon the lands or tenements s* sold, in like manner as the mortgagor might have done, and thereupon the purchaser, his heirs and asf*igns, shall acquire the same estate, right and title, as the mortgagor would have acquired in case the payment, removal or satisfaction, had been effected by the mortgagor.'' It is probable that the provisions for a discharge of the mortgage by the mortgagee upon receiving payment of the amount due, from the purchaser, in sales by the Sheriff, would be applicable to sales by an assignee. For such provisions see the section of the Com. Law Procedure Act quoted above. It is submitted that the power here granted to the aspignee of reserving a special mortgage by the. deed of sale as security for the payment of part of the purchase money, is u very unusual one in Canadian conveyancing ; and probably the assignee will be held cn^tled to take a mortgage back in a separate instru- ment from the deed of sale, or be able only to give a bond for a deed. The object might be gained in .one instrnment by a grant to the vendee to hold to his own use until default made by him in some of the payments of the purchase money, and after such default to the use of the vendor, (the assignee.) Duty of as- 15. In Lower Canada., before advertising any rearest^te S^ sale of real estate the assignee shall procure, at the expense of the estate, from the Registrar of the County wherein such real estate is situate, a cer- tificate containing the names and residences as shewn by the Registry books of all persons enreg- istered as hypothecary creditors upon such real estate ; and he shall himself deposit in the nearest post ofl^e a notice with the postage paid thereon, L. 0. ASSIGNEES. 53 title that the the Sheriff's red lands, by i as a similar , U. 0., c. 22, ionveyance of )urchaser, his ;ager therein, her officer to Eind to vest in tgagor would , his heirs or , which at the ike manner as his heirs and rtgagor would I been effected scharge of the >unt due, from .0 sales by an Procedure Act of reserving a of part of the and probably eparate instru- d. The object old to his own rchase money, tising any procure, at LStrar of the uate, a cer- ddences as sons enreg- such real the nearest lid thereon, addressed to each of such creditors by the name and to the address contained in such certificate, and also a notice addressed to each creditor at any other place where the assignee has reason to be- lieve such creditor to be then resident, and also a notice addressed to any other person whom the assignee has reason to believe to be then the creditor of such hypothecary claim, — informing the creditors of the day fixed for the sale of the real estate, and of the time within which the hypothecary creditors are required to file their claims under this Act ; and before the day of sale he shall file in the office of the Court the certifi- cate of the Registrar with a return thereon under oath as to his doings in respect of such notices ; and the assignee shall be directly liable for any neglect of the duty imposed upon him by this section, to any party suffering damage in conse- quence of such neglect ; Notice to re- gistered in- cumbrances. And other hypothecary creditors. Certificate of Registrar to be filed. Liability of assignee for neglect. 16. The assignee shall be subject to the sum- Assignee to mary jurisdiction of the Court or Judge in the same ^® subject to manner and to the same extent as the ordinary Jis^^tton of officers of the Court are subject to its jurisdiction, the Court. and the performance of his duties may be enforced by the Judge on summary petition in vacation, or by the Court on a rule in term, under penalty of imprisonment, as for contempt of Court, whether such duties be imposed upon him by the deed of assignment, by instructions from the creditors validly passed by them under this Act and com- municated to him, or by the terms of this Act ; 17. Before the period at which dividends may Removal of be declared, any assignee may be removed by the jud|e^for ^ * Judge, upon proof of fraud or dishonesty in the misconduct. custody or management of the estate, upon the application of any creditor ; and if such removal Appointment takes place, or if the assignee dies more than ^ *°° *'* fifteen days before the said period, the Judge may if $4 INSOLTBVCT ACT. Br" m 4 11 appoint another assignee in the same manner as he can appoint an assignee to an estate in com- pulsory liquidation ; but if the assignee is removed or dies within fifteen days of the said period, the Judge shall order a meeting of creditors to be held for the purpose of appointing another assignee, and shall cause notice of such meeting to be given by advertisement ; The period at whit i dividends m&j be declared is upon the expiration of two months from the first insertion of the advertisements giving notice of an assign- ment, or of the appointment of an official assignee, (see below, sec 5, sub-sec. 1.) For the time and manner of giving the notice of this meeting of creditors tee below, sec. 11, sub-sec. 1. 18. Any assignee may be removed after the period at which dividends may be declared, by a resolution passed by the creditors present or repre- sented at a meeting duly called for the purpose ; and if the removal has been effected by an order of the Judge, or if the assignee dies within fifteen days before the said period, or if the removal is effected by the credirors after the said period, they ^f^anothw!^* shall have the right of appointing another assignee, either at the meeting by which he is removed, or at any other called for the purpose ; Removal of assignee by creditors, Assignee re- moved to re- main account- able. Remuneration of assignee. 19. The assignee so removed shall, nevertheless, remain subject to the summary jurisdiction of the Court, and of any Judge thereof, until he shall have fully accounted for his acts and conduct while he continued to be assignee ; 20. The remuneration of the assignee shall be fixed by the creditors at a meeting called for the purpose ; but if not so fixed before a final dividend is declared, shall be put into the dividend sheet at a rate not exceeding five per centum upon the cash receipts, subject to objection by any creditor as exceeding the value of the services of the assignee, in the same manner as any other item of the dividend sheet : DIVIDENDS. 55 anner as in corn- removed riod, the o be held ^nee, and given by Bktion of two »f an assign- , sub-sec. 1.) creditors see after the red, by a t or repre- purpose ; J an order tiin fifteen emoval is jriod, they assignee, noved, or 21. Upon the death of an assignee the estate of "^^at shall be the insolvent shall not descend to the heirs or re- fg^tateln Ve^^ presentatives of the assignee, but shall become event of his vested in any assignee who shall be appointed by death. the creditors in his place and stead ; and until the new assignee is appointed, the estate shall be under the control ot the Judge ; 22. After the declaration of a final dividend the How assignee assignee may prepare his final account, and aiter ?.*^^^^*u^° due notice by advertisement may present a peti- ^* ^^^ "^*' tion to the Judge for his discharge from the office of assignee ; and from the time of the first adver- tisement thereof, to the time of the presentation of such petition, he shall keep such final account open lor inspection at his office ; 23. The assignee shall produce and file with Assignee to such petition a bank certificate of the deposit of ca^ with his any dividends remaining unclaimed, or of any petition for balance in his hands, and thereupon the Judge, discharge, after hearing the parties, may refuse, or grant con- ditionally or unconditionally, the prayer of such petition. rertheless, ion of the he shall conduct or DIVIDENDS. » shall be ;d for the 1 dividend end sheet upon ths y creditor es of the >ther item 5. Upon the expiration oi the period of two 4°^^? and months from the first insertion of the advertise- dividend^Ve- ments giving notice of an assignment, or of the pared by as- appointment of an official assignee, or as soon as signee. may be after the expiration of such period, and afterwards from time to time at intervals of not more than six months, the assignee shall prepare and keep constantly accessible to the creditors, accounts and statements of his doings as such assignee, and of the position of the estate and at similar intervals shall prepare dividends of the estate of the insolvent : What debts may rank for payment out of insolvent's estate and how Sureties of insolvent pay- ing for him. INSOLVENCY ACT. 2. All debts due and payable by the insolvent at the time of the execution of a deed of assign- ment, or at the time of the issue of a writ of attach- ment under this Act, and all debts due but not then actually payable, subject to such rebate of interest as may be reasonable, shall have the right to rank upon the estate of the insolvent ; and any person then being as surety or otherwise liable for any debt of the insolvent who subsequently pays such debt, shall stand in the place of the original creditor, if such creditor has pre ed his claim on such debt ; or if he has not proved shall be intitled to prove against and rank upon the estate for such debt, to the same extent and with the same effect as such creditor might have done ; A landlord has an advantage over other creditors in his power of distress, as long as the goods of the bankrupt remain upon the premises, (Ex par^e Plum- mer, 1 Atk. 103 ; Buckley v. Taylor, 2 T. R. 600 ; Briggs v. Sowry, 8 M. & W., "729.) Upon the sale of the goods by the landlord he will be entitled to six years arrears of rent out of the proceeds under 4 Will. 4, c. 1, sec. 45. If the landlord once allow the goods to be taken off the premises he, of course, loses his remedy by distress, but he may prove upon the estate for the amount of rent due up to the assignment or issue of the writ of attachment, {Ex parte Des- harmes, 1 Atk. 108.) He cannot distrain and prove for the same rent, {Ex parte Qrovc, 1 Atk. 103 ) 3. If any creditor of the insolvent claims upon a contract dependent upon a condition or contin- gency, which does not happen previous to the declaration of the first dividend, a dividend shall be reserved upon the amount of such conditional or contingent claim until the condition or contin- gency is determined ; but if it be made to appear to the judge that such reserve will probably retain the estate open for an undue length of time, he may, unless an estimate of the v?»Iue thereof be agreed to between the claimant and the assignee, order the assignee to make an award upon the value of such contingent or conditional claim, and thereupon the assignee shall make an award after p. k Oontingent ^ claims, pro- ■/ Tision for pay K li ment of. In certain cases Judge ' may order estimate of value to be ; made. DIVIDENDS. 67 insolvent )i assign- ofattach- e but not rebate of the right and any liable for intly pays e original claim on be inlitled e for such ime effect f distress, as part for which he shall rank and vote as aforesaid ; How creditors 6. The amount due to a creditor upon each Bhaii rank for separate item of his claim at the time of the ^YiSr* ^^ assignment, or of the appointment of the official assignee, as the case may be, shall form part of the amount for which he shall rank upon the estate of the insolvent, until such item of claim be paid in full, except in cases of deduction of the proceeds of collateral security as hereinbefore pro- vided ; but no claim or part of a claim shall be permitted to be ranked upon more than once, whether the claim so to rank be made by the same person or by different persons ; In case insol- 7. If the insolvent owes debts both individually vent owes in- and as a member of a co-partnership, or as a arco'^pLnnen member of two different co-partnerships, the claims * against him shall ranlr first upon the estate by which tne debts they represent were contracted, and shall only rank upon the other after all the creditors of that other have been paid in full ; Allowance to insolvent. 8. 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 property 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 collocation therein, but only on the ground of fraud or deceit in procuring it, or of the absence of consent by a sufficient proportion of the cred- itors ; The proportion of creditors required to grant a discharge to a debtor under this act, is the majority in number of those of the creditors of the insolvent who are respectively creditors for <5um8 of one hundred dollars and upwards, and who represent at least three-fourths in value of the liabilities of the insolvent, (see below, sec. % snb-sec. 1.) DirmBNBSk 5^ d. No costs incurred in suits agiainst the Insol- No costs in vent after due notice of an assignment or of the f^goivTt^ai- issue of a writ of attachment in compulsory liqui- lowed after dation has beti: given according to the provisions notice, of this Act, shall rank upon the estate of the in- solvent ; but all the taxable costs incurred in pro- ceedings against him up to that time, shall be added t j the demand for the recovery of which such proceedings were instituted ; and shall rank upon the e««tate as if they formed part of the ori- ginal debt ; . 10. Clerks, and other persons in the employ of Hot? clerks the Insolvent in and about his business or trade, ghairrank for shall be collocated in the dividend sheet by special wages, privilege for any arrears of salary or wages due and unpaid to them at the time of the execution of a deed of assignment or of the issue of a writ of attachment imder this Act, not exceeding three months of such arrears ; A similar privilege in the English Acts has been held not to be limited to yearly pervants only, though it must be a continued and not a mere weekly hiring, {Ex parte Collyer, 2 Mon. & A., 80.) The misconduct of the clerk may deprive bin 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 bankruptcy, but the leaving was not voluntary, he was held to be within the. section as clerk to the bankrujt, {Ex parte Sanders, 2 Mon. & A. 684.) IT. So soon as a dividend sheet is prepared, J^°V,°®^^ notice thereof (Form N) shall be given by adver- g^eet ^ tisement, and after the expiry of six juridical days from the day of the last publication of such adver- tisement, all dividends which have not been ob- jected to within that period shall be paid ; For the manner of publishing this advertisement seebelow, sec. 11, sub-sec. 1. 12. If it appears to the assignee on his exami- Provision in nation of the books of the insolvent or otherwise, thlt aU the*'^ that the insolvent has ordinary, hypothecary or creditors have privileged' cteditors who have not filed claims not filed bf 'ore such assignee, it shall be his duty to reserve ^^^^^^' 60 INSOLYENCT ACT. li^ 11 Oase of objec- tions to or disputes con- cerning divi- dends pro- vided for. dividends for such creditors according to the nature of the claims, and to notify them of such reserve, which notification may be by letter through the post, addressed to such creditor's residence as nearly as the same can be ascertained by the assignee ; and if such creditors do not file their claims and apply for such dividends previous to the declaration of the last dividend of the estate, the dividends reserved for them shall form part of such last dividend ; 13. If any dividend be objected to, within the said period of six days, and any dispute arises between the creditors of the insolvent or between him and any creditor, as to the correct amount of the claim of any creditor, or as to the ranking or privilege of the claim of any creditor upon such dividend sheet, the assignee shall obtain from the creditor whose claim or ranking is disputed, his statements and vouchers in support thereof, and from the Insolvent or opposing creditor, a state- ment showing his pretensions as to the amount thereof, and shall hear and examine the parties and their witnesses under oath, which oath the assignee is hereby empowered to administer ; and shall take clear notes in writing of the parole evidence adduced before him, and shall examine and verify the statements submitted to him, by the books and accounts of the Insolvent and by such evidence, vouchers and statements as may be furnished to him ; and shall make an award in the premises, and as to the costs of such contesta- tion, which award shall be deposited in the Court and shall be final, unless appealed from within three diays from the date of its communication to the parties to the dispute ; hifawMd.''^ 14. The award of the assignee as to costs, may be made executory by execution in the same manner as an ordinary judgment of the Court, by Assignee's duty to ex- amine, &e. BIYIDBMDB, 61 an order of the Judge upon the application of the party to whom costs are awarded made after notice to the opposite party ; 15. The creditors may by resolution authorize Costs of con- and direct the costs of the contestation of any *«9ti°g any claim or any dividend to be paid out of the estate, ' and may make such order either before or pending any such contestation ; 16. Pending any appeal, the assignee shall Pending ap- reserve a dividend equal to the amount of divi- P®**- dend claimed ; 17. All dividends remaining unclaimed at the Unclaimed time of the discharge of the assignee shall be left dividends,— in the bank where they are deposited for three ^°J^^®*^* years, and if still unclaimed, shall then be paid over by such bank with the interest accrued thereon, to the Provincial Government, and if afterwards duly claimed shall be paid over to the persons entitled thereto, with interest at the rate of three per centum per annum from the time of the reception thereof by the Government ; 18. If any balance remains of the estate of the Balance of ei- insolvent, or of the proceeds thereof, after the pay- ***® afterpay- ment in full of all debts due by the Insolvent, °^«°t of debts, such balance shall be paid over to the Insolvent upon his petition to that effect, duly notified to the creditors by advertisement and granted by the Judge. Where the estate of the bankrupt is sufficient to pay twenty sbillingri in the pound, and a surplus still remains, interest should be allowed on all debts proved before the assignee, where the debt by express contract, or statutory enactment bears interest, or where a contract to pay it is to be implied, before the surplus is handed over to the bankrupt, {Re Langstaffe, 2 Grant, 1 65. Wn 31 .( 62 How unex- pired leases held by the insolvent, shall be dealt with if the rent be less than the value of the pre- mises. Sale of his interest. INflOLTKirCT ACT. OF UBASSfl. 6. If the insolvent holds under a lease property having a value above an J beyond the amount of any rent payable under such lease, the assignee shall make a report thereon to the Judge, contain- ing his estimate of the value of the estate of the leased property in excess of the rent ; and there- upon the Judge may order the rights of the insol- vent in such leased premises to be sold, after notice by advertisement of such sale ; and at the time and place appointed such lease shall be sold, upon such conditions, as to the giving of security to the lessor, as the Judge may order ; and such sale shall be so made subject to the payment of the rent and to all the covenants and conditions contained in the lease ; and ail such covenants and conditions shall be binding upon the lessor and upon the purchaser, as if the purchaser bad been himself lessee and a party with the lessor to the lease : m Unexpired 2. If the insolvent holds under a lease extending w?thhi"the l>6yond the year current under its terms at the time preceding of his insolvency, property which is not subject to section. the provisions of the last preceding section, or respecting which the Judge does not make an order of sale, as therein provided, the creditors shall decide at any meeting which may be held more than three months before the termination of the yearly term of the lease current: at the time of such meeting, whether the property so leased should be retained for the use of the estate, only up to the end of the then current, or if the condi- tions of the lease permit of further extension, also up to the end of the next following yearly term thereof, and their decision shall be final ; Cancelling ^' From and after the time fixed for the reten- the lease, and tion of the leased property for the use of the estate, APPSAL. 63 the lease shall be cancelled and shall from thence- rigiit of the forth be inoperative and null ; and so soon as the Jf^'^ °' ^^ '^^^ resolution of the creditors as to such retention has been passed, such resolution shall be notified 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 under oath, in the same manner as in ordinary claims upon the estate ; and the assignee shall proceed forthwith to make an award upon such claim, in the same manner, and after similar investigation and with the same right of appeal as is herein provided for in the case of claims or dividends objected to ; 4. In making such claim, and in any award Measure of thereupon, the measure of damages shall be the damages to difference between the value of the premises leased ®*®°'^' when the lease terminates under the resolution of the creditors, and the rent which the Insolvent had agreed by the lease to pay during its continuance ; and the chance of leasing or of not leasing the premises again, for a like rent, shall not enter into the computation of such damages ; and if damages are finally awarded to the lessor he shall rank for the amount upon the estate as an ordinary cred- itor. OF APPEAL. 5r. There shall be an appeal to the -Tudge from Proceedings the award of an assignee made under this Act, ^°*JJ^'*f^'^^°^ which appeal shall be by summary petition of signee. which notice shall be given to the opposite party and to the assignee ; and the assignee shall attend before the Judge at the time and place indicated in such notice, and shall produce before him all evidence, notes of evidence, books, or proved ex- tracts from books, documents, vouchers or papers 64 INSOLVENCY ACT. i'f m having reference to the matter in dispute ; and thereupon the Judge may contirm such award, or modify it, or refer it back to the assignee for the taking of further evidence, by such order as will satisfy the ends of justice : The notice of appeal must be one clear day's notice if the party to be s'^rved reside within fifteen miles of the place where the petition is to he heard ; i\nd one more day is to be allowed for each additional fifteen miles, (See below, sec. 11, sab'Sec. 9.) And on appeal from decision of the Judge. Appeal must be alio we-'.. Ai to appeal to a single Judge in U. G. 2. If any of the parties to such appeal are dis- satisfied with such order of the Judge, they may appeal from his judgment in Lower Canada to the Court of Queen's Bench for Lower Canada on the Appeal Side thereof, and in Upper Canada to either of the Supi*rior Common Law Courts or to the Court of Chancery, or to any one of the Judges of the said Courts ; first obtaining the allowance of such appeal in Lower Canada by a Judge of the Superior Court, and in Upper Canada by a Judge of any of the Courts to which such appeal may be made ; and in either case the Judge shall be guided in allowing the same by the amount to which the assets of the estate may be affected by the final decision of the question at issue, as well as by his opinion upon the pretensions of the appellant; but any appeal to a single Judge in Upper Canada may in his discretion be referred, on a specii ^ case to be settled, to the full Court, and on such terms in the meantime as he may think necessary and just ; Notice of ap- 3. Such appeal shall not be permitted unless peal must be ^jjg party desiring to appeal applies for the allow- given withm ^ / .i^ ^ ^ ^'^^v T* x ^u a certain ^nce oi the appeal, with notice to the opposite period. party, within five days from the day on which the judgment of the Judge is rendered, nor unless within five days after the allowance thereof, he causes to be served upon the opposite party and upon the assignee, a petition in appeal setting APPEAL. 65 forth the petition to the Judge, and his decision thereon, and praying for its revision, with a notice of the day on which such petition is to be pre- sented, and also within the said period of five days causes security to be given before the Judge by ^^^ iaccurity. two sufficient sureties, that he will duly prosecute such appeal, and pay all costs incurred by reason thereof by the respondent ; The lengti of notice to be given of the application for the allowance of tho appeal is not specially proyided for in this place, and the general provisions of sec. 11, Bub-sec. 9 must regulate it. There would seem to be a difficulty, how- ever, in case the person served with notice bad no solicitor, and resided some hundred miles from Toronto, where the application must be made. For one clear day's notice must in any case be given, and one extra day for every fifteen miles distance from the place where the proceeding is to be taken must be added, while only five daysafter judgment rendered are allowed to make the applica- tion. 4. The petition in appeal, when the appeal is Presenting of to a Court, shall be presented on one of the first PJ*\^^°° ^^ ^P" four days of the term next following the putting in of the security in appeal, and shall not be there- after received ; and when the appeal is to a Judge, the petition shall be presented within ten days after putting in security, and shall not thereafter be received ; and on or before the day of the pre- billing docu- sentation of the petition, the assignee shall file in the office of the Court of Appeal, or of the Court to which the Judge appealed to belongs, the evi- dence, papers, and documents which had been previously produced before the Judge, and there- upon the appeal shall be proceeded with and decided according to the practice of the Court ; 5. If the party appellant does not present his In case peti- petition on the day fixed for that purpose, the *^o» ^s °ot Court or Judge selected to be appealed to as the Sue^time? ''^ case may be, shall order the record to be returned to the assignee, and the party respondent may on the following or any other day during the same E 66 IXSOLVEMCY ACT. In . ' is K'l' ' i III Oo3ts in ap- peal. term produce before the Court, or within six days thereafter before such Judge, the copy of petition served upon him, and obtain costs thereon against the appellant ; 6. The costs in appeal shall be in the discretion of the Court or of the Judge appealed to, as the case may be ; subject to reyiew. Decision of T. In Lower Canada any order of a Judge made one Judge in under any of the foregoing sub-sections, shall be mi'wec*^^^ subject to review under the provisions of any Act passed during the present Session, in the same manner and upon the same conditions as judg- ments of the Superior Court for Lower Canada ; and in such cases the provisions respecting appeal to the Court of Queen's Bench hereinbefore made, shall apply to the judgments of the Court of Review. ¥' OF FRAUD AND FRAUDVLENT PRSFERSNCEi. 11 What shall be Q. AH gratuitous contracts or conveyances, or deemed frau- contracts or conveyances without consideration, or dulent con- ., , "^ . , .j ^. j i ' tracts or con- With a merely nommal consideration, made by a reyances. debtor afterwards becoming an insolvent with or to any person whomsoever, within three months next preceding the date of the assignment or of the issue of the writ of attachment in compulsory liquidation, and all contracts by which creditors are injured, obstructed, or delayed, made by a debtor unable to meet his engagements, and after- wards becoming an insolvent, with a person know- ing such inability or having probable cause for believing such inability to exist, or after such inability is public and notorious, are presumed to be made with intent to defraud his creditors : Contracts or 2. A contract or conveyance for consideration conveyances ^y. ^hicj^ creditors are injured or obstructed, made FRAUD ANP FRAUDULENT PREFERENCES. 67 by a debtor unable to meet his engagements with made by in- a person ignorant of such inability, and before it abie^^^certain has biecome public and notorious, but within cases, thirty days next before the execution of a deed of assignment or of a writ of attachment under this Act, is voidable, and may be set aside by any Court of competent jurisdiction, upon such terms as to the protection of such person from actual loss or liability by reason of such contract, as the Court may order ; 3. All contracts or conveyances made and acts Frajidulent done by a debtor, with intent fraudulently to H^'^^^^H^^^ impede, obstruct, or delay his creditors in their by insolvent remedies against him, or with intent to defraud void. his creditors, or any of them, and so made, done, and intended with the knowledge of the person contracting or acting with the debtor, and which have the effect of impeding, obstructing, or delay- ing the creditors in their remedies, or of injuring them, or any of them, are prohibited, and are null and void, notwithstanding that such contracts, conveyances, or acts be in consideration or in con- templation of marriage ; Questions will be likely to arise as to property given to a man, determinable in the event of his bankruptcy. A settlement of property to a man until he be- comes bankrupt, and then over to his "wife and children, has been held to bo void so far only as it related to the property of the husband, it being considered as a fVaud upon the bankrupt laws ; but it would be valid as far as it related to the property of the wife, (Lester v. Garland, 5 Sim. 205 ; Mon. 471.) The con- struction of such provisions in wills or settlements depends entirely upon the exact nature and form of the trust or condition annexed to the bequest. The intention to prevent the property passing to the donee's assignees has fre- quently been frustrated by the erroneous way in which the instrument attempt- ing to carry out such intention has been drawn, There seems to be nothing to prevent the creation of such a limitation or condition to an estate, as that it shall 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 by any attempt to combine with such limitation or condition a stipulation for mainten- ance, or any direct personal benefit continuing for the bankrupt. (See Tyrell v. Hope, 2 Atk. 668 ; and Lester v. Garland, ubi tupra.) 68 INSOLVENCY ACT. m Whatever interest the husband has by law in his wife's property, and has the power to dispose of, will pass to his assignees. (See Com. Dig. Bankrupt, D. 12 ; Mace V. Cadell, Cowp. 232.) The asignees of a husband in England are nof, allowed to reduce any of his wife's estate into possession in equity, without making a reasonable settlement upon the wife, (see Rankin v. Barnard, 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 wife's estate into possession, his assignees can claim no such power, even upon terms of making a settlement upon her. In what case 4. If any sale, deposit, pledge, or transfer, be preferential made bv any person in contemplation of insol- sales. &c., , '' '^ c •*!• *-!. shall be vency, by way of security lor payment to any deemed fiau- creditor, or if any goods, effects, or valuable secu- dulent. j.j^y be given by way of payment by such person to any creditor, whereby such 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 com- petent jurisdiction; and if the same be made within thirty days next before the execution of a deed of assignment, or the issue of a writ of at- tachment under this Act, it shall be presumed to have been so made in contemplation of insolvency ; The effect of bankruptcy upon a fraudulent preference is not to divest the tranferee of the property, but, notwithstanding the bankruptcy, it continues vested in the transferee, subject to be divested by the assignees at their elec- tion ; and 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, where goods had been transferred by a trader before his bankruptcy by way of fraudulent preference, and the transferee, after the appointment 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 bankruptcy as a defence, when the assignees had done no other act in assertion of their rights than commencing an action of trover for the same goods, (Newnham v. Stevenson, 15 Jur., 360 ; 20 L. J. G. P. 111.) When pay- 5. Every payment made within thirty days next ments shall be before the execution of a deed of assignment, or i FRAUD AND FRAUDULENT PREFERENCES. 69 the issue of a writ of attachment under this Act, deemed frau- 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, is void, and the amount paid may be recovered back by suit, in any competent Court, for Ihe benefit of the estate ; Provided always, that if any valuable Proriso. security be given up in consideration of such pay- ment, such security or the value thereof, shall be restored to the creditor before the return of such payment can be demanded ; Preferential transfers have not been to any great exten* the subject of legis- lation in England, but they are deemed void by the Courts as being a fraud upon the bankrupt laws, (Crosby v. Couch, 2 Camp. 166 ; 11 East. 256 ; Alder- son V. Temple, 4 Burr. 2235 ; 1 W. Bl. 660 Although the period 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, preferential pay- ments 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 voluntarily make a pay- ment, by which the equal distribution of his property in bankruptcy will be de- feated, such payment is a fraudulent preference, though the bankrupt in making it did not intend to benefit, and in fact did not benefit the particular creditor* For instance, where a bankrupt paid off a mortgage on property settled to the use of his wife, who had joined in such mortgage, without previous notice to, or request by the creditor, to whom it would have been equally beneficial to retain the mortgage, the bankrupt intending only by such payment to liberate his wife's property for his own and her benefit ; this has been, nevertheless, held to be a fraudulent preference, (Marshall v. Lamb, 6, Q. B. 115 ; 1 Jur. 850.) 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 words of this section, as they stand, would seem to apply to all payments made within thirty days, and to render them void whether made voluntarily or under the compulsion of a bond fide creditor. It would be against the spirit of the cases on the point, however, if a payment made under the pressure, for instance, of a law suit should be held void if made within that period ; (See DeTastel, v. Carroll, 1 Stark. 88 ; Exparte DeTastel, Mon. 138, 153 ; Atkins v. Seward.^Mannings Index, 62, pi. 181 ; Thompson v. Freeman, 8 T. R. 155 ; Kin- near V. Johnstone, 2 F. & F. "753 ; Pennell v. Heading, 2 F. & F. t44, Erie 0. J.) 6. Any transfer of a debt due by the insolvent, J'^J^^^'^ °^ made within thirty days next previous to the exe- ^®*^*' ^^ ^ 70 INSOLTENCY ACT. insolvent, to be void in cer- tain cases. I Certain other frauds de- fined, as re- gards L. G. Punishment Proviso. cution of a deed of assignment, or the issue of a writ of attachment under this Act, or at any time afterwards, to a debtor knowing or having pro- bable cause for believing the insolvent to be un- able to meet his engagements, or in contemplation of his insolvency, for the purpose o^ 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 insolvent shall not be compensated or affected in any manner by a claim so acquired ; but the purchaser thereof may rank on the estate in the place and stead of the original creditor ; 7. Any trader in Lower Canada, and any per- son whosoever in Upper Canada, who purchases goods on credit or procures advances in money, knowing or believing himself to be unable to meet his engagements, and concealing the fact from the person thereby becoming his creditor, with the intent to defraud such person, or who by any false pretence obtains a term of credit for the payment of any advance or loan of money, or of the price or any part of the price of any goods, wares or merchandise, with intent to defraud the person thereby becoming his creditor, and who shall not afterwards have paid tho debt or debts so incun-ed, 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, unless the debt or costs be sooner paid ; and if such debt or debts be incurred by a trading company, then ever member thereof who shall not prove himself to have been ignorant of the incur- ring, and of the intention to incur, such debt or debts, shall be similarly liable ; Provided always, that in the suit or proceeding taken for the recov- ery 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 proceed- ing; COMPOSITION GND DISCHARGE. 71 sue of a any time ing pro- to be un- mplation bling the or set-ofF 3 regards 3t due to pensated equired ; he estate ditor ; any per- )urchases money, e to meet fact from tor, with iio by any it for the iney, or of ly "goods, ) defraud litor, and 3 debt or ;uilty of a iment for exceeding >ner paid ; a trading > shall not the incur- }h debt or d always, the recov- le charged 'uilty of it r proceed- 8. In Upper Canada in every such suit or pro- As to like ceeding whether the defendant appear and plead, ^*^® ^^ ^* ^• or make default, the plaintiff shall be bound to prove the fraud charged, and upon his proving it the Judge who tries the suit or proceeding shall immediately after the verdict rendered against the defendant for such fraud (if such verdict is given) adjudge the term of imprisonment which the de- fendant shall undergo; and he shall forthwith order and direct the defendant immediately to be taken into custody and imprisoned accordingly ; but such judgement shall not effect the ordinary remedies for the revision thereof, or of any pro- ceeding in the case. OF COMPOSITION AND DISCHARGE. 9. A deed of composition and discharge ex- ecuted by the majority in number, of those of the creditors of an Insolvent who are respectively cre- ditors for sums of one hundred dollars and up- wards, and who represent at least three-fourths in value of the liabilities of the Insolvent subject to be computed in ascertaining such proportion, shall have the same effect with regard to the remainder of his creditors, and be binding to the same extent upon him, and upon them, as if they were also parties to it ; and such a deed may be validly made either before, pending, or after proceedings upon an assignment, or for the compulsory liqui- dation of the estate of the insolvent ; and the dis- charge therein agreed to shall have the same effect as an ordinary discharge obtained as hereinafter provided ; TLe deed of composition referred to in this clause may be validly made either before, pending, or after proceedinj?8 under this act. Yet the facilities for having it executed by the proper proportion of creditors are very dififerent at these different times. It may be no easy matter for an insolvent always to ascertain the exact number and value of of his creditors with sufficient accuracy to satisfy the assignee that the deed has been executed by the requisite proportion. If the When and to what extent a deed of com- position shall be binding. When such deed may be made. 72 INSOLVENCY ACT. till E*'i ^e period of two months, allowed to creditors to bring in their claims, has elapsed, there wll be very little diflBculty in telling whether the deed has been properly executed or not. This section, from analogy to decisions upon the English Act, would seem not to be retrospective so as to bring within its provisions a deed of composition executed before the statute came into opcation, as against a creditor who had not executed it, (Marsh v. Higgins, I P. R. 253 ; 19 L. J., 0. P. 337) ; but it would probably apply to instruments entered into, but inchoate, at the time of the act coming into force, and since completed, (Waugh v. Middleton, 8 Exch. 352 ; 22 L. J. 109 ; Lambert v. Bibby, 24 L. J. 301.) An unreasonable provision in a composition deed will render it invalid against nonassenting creditors, (Baldwin v. Pell, 10 L. J. (N.S.) 493 ; and see Armitage v Baker, 10 L, T. (N.S.) 526 ; Hudson w. Barclay, 10 L. J. (N. S.) 587 ; Woods V. Poote, 1 H. & C: 841, in error; Leigh w. Pendleberry, 10 Jr. (N.S,) 296. Trustees of a composition deed, before they allow a creditor to sign, are bound to ascertain the validity of his claim, as by signing he becomes a. cestui que trust, and the trustees, except in cases of fraud, are bound to pay such dividends as may be declared, (Lancaster w. Ellice, 31 L. J. 789 ; 8 Jur. (NS.) 1167.) It was formerly held under the English Acts, whose provisions are somewhat analagous in this respect to those of our own act, that a deed of assignment was not binding on a creditor who had not executed it, unless such deed provided for the distribution of the whole of the debtor's ejQFects, (Tetley v. Taylor, 1 El. & Bl. 582 ; 17 Jur. 130 ; Fisher, v. Bell, 12 0. B. 363.) The Chancellor, (Lord West- bury.) has recently settled the conflicting decisions upon this point. He has decided that a complete cessio honorum is not indispensable to the validity of such a deed as against non-assenting creditors, {Ex parte Morgan 7 L. T. (N. S.) 730 ; and see Ex parte Rawlings, 7 L. T. (N. S.) 582.) Notice and 2, If the Insolvent procures a deed of com- whfciTopposi- position and discharge to be duly executed as tion to com- aforesaid, and deposits it with the assignee pend- position must ing the proceedings upon a voluntary assignment be made. ^^ ^^^ compulsory liquidation, the assignee, after the period hereinbefore fixed as that after which dividends may be declared has elapsed, shall give notice of such deposit by advertisement ; and if opposition to such composition and discharge be not made by a creditor, within six juridical days after the last publication of such notice, by filing with the assignee a declaration in writing that he If none be so mode. COMPOSITION AND DISCHARGE 73 objects to such composition and discharge, the assignee shall act upon such deed of composition ^ and discharge according to its terms ; but if oppo- sition be made thereto within the said period, or if made be not withdrawn, then he shall abstain from taking any action upon such deed until the same has been confirmed, as hereinafter provided ; The period alluded to as " hereinbefore fixed as that after which dividends may be declared," is "upon the expiration of two months from the first insertion of the advertisement giving notice of an assignment, or of the appointment of an official assignee," (see 5, sub. sec. 1 ;) and for the notice required, see below sec. 11, sub-sec. 1 of this act. 3. The consent in writing of the said proportion fenrof^credi- of creditors to the discharge of a debtor after an tors to debt- assignment, or after his estate has been put in ors discharge. compulsory liquidation, absolutely frees and dis- charges him from all liabilities whatsoever (except such as are hereinafter specially excepted) existing against him and proveable agains^t his estate, which are mentioned and set forth in the statement of his affairs annexed to the deed of assignment, or which are shewn by any supplementary list of creditors furnished by the insolvent, previous to such discharge, and in time to permit the cred- itors therein mentioned obtaining the same dividend as other creditors upon his estate, or which appear by any claim subsequently furnished to the as signee, whether such debts be exigible or not at the time of his insolvency, and whethej direct or indirect ; and if the holder of any negotiable paper l^.the holder is unknown to the insolvent, the insertion of the tiabl7paper" particulars of such paper in such statement of is unknown. affairs, with the declaration that the holder thereof is unknown to him, shall bring the debt repre- sented by such paper, and the holder thereof, within the operation of this section ; There can be little doubt that this act is so far retrospective as to discharge a debtor from liabilities existing against him before it came into force. "Were it otherwise, it would be of very little benefit to the commuuity for years to come* 74 INSOLVENCY ACT. m m m ii It must be recollected that a discharge does not relieve an insolvent from any debt contracted by him after a voluntary assignment, or tho issue of a writ in compulsory liquidation, and before his discharge. Effect of dis- 4. A discharge under this Act shall not operate charge a^je^^ any change in the liability of any person or com as secondarily pany secondarily liable for the debts of the insol- liabie for vent, either as drawer or endorser of negotiable debts of insol- paper, or as guarantor, surety or otherwise, nor of any partner or other person liable jointly or sever- ally with the insolvent for any debt, nor shall it affect any irorigage, hypotheque^ lien or collateral secur hf M by any creditor as security for any debt th eby discharged ; Certain debts excepted from operation of discharge. 5. A discharge under this Act shall not apply, without the express consent of the creditor, to any debt for enforcing the payment of which the im- prisonment of the debtor is permitted by this Act, nor to any debt due as damages for personal wrongs, or as a penalty for any offence of which the insolvent has been convicted, or as a balance of account due by the insolvent as an assignee, tutor, curator, trustee, executor or public officer ; nor shall such debts, nor any privileged debts, nor the creditors thereof, be computed in ascertaining whether a sufficient proportion of the creditors of the insolvent have done, or consented to any act, matter or thing under this Act ; but the creditor of any debt due as a balance of account by the in- solvent as assignee, tutor, curator, trustee, executor or public officer, may claim and accept a dividend thereon from the estate without being in any re- spect affected by anv discharge obtained by the insolvent ; Proceedings 6* An insolvent who has procured a consent to to obtain con- his discharge or the execution of a deed of com- dischS?e^^ position and dischaije, within the meaning of this Act, may file in the office of the court the consent or deed of composition and discharge, and may But the cre- ditor may ac- cept the dividend. COMPOSITION AND DI8CHAROS. 75 mt from any e of a writ in ot operate )n or com the insol- legotlable ise, nor of y or sever- er shall it collateral y for any aot apply, tor, to any 3h the im- f this Act, personal of which a balance assignee, ic officer; debts, nor certaining •editors of ) any act, creditor of by the in- , executor I dividend n any re- 5d by the sonsent to I of com- ng of this e consent and may then give notice (Form 0.) of the same being so filed, and of his intention to apply by petition to the Court in Lower Canada, or in Upper Canada to the Judge, on a day named in such notice, for a confirmation of the discharge effected thereby ; and notice shall be given by advertisement in the Canada Gazette for two months, and also for the same period, if the application is to be made in Upper Canada, in one newspaper, and if in Lower Canada in one newspaper published in French, and in one newspaper published in English, in or nearest the place of residence of the insolvent ; and upon such application, any creditor of the Creditors may insolvent may appear and oppose such confirma- oppose, and tion, either upon the ground of fraud or frau 'ilent grounds. preference within the meaning of this Act, o of fraud or evil practice in procuring the coiijen*, of the creditors to the discharge, or their execution of the deed of composition and discharge, as the case may be, or of the insufficiency in r mber or value of the creditors consenting to or executing the same, or of the fraudulent retention and con- cealment by the insolvent of some portion of his estate or effects, or of the evasion, prevarication or false swearing of the insolvent upon examina- tion as to his estate and effects, or upon the ground that subsequent to the passing of this Act the in- solvent has not kept an account-book shewing his receipts and disbursements of cash, and such other books of account as are suitable for his trade, or if, having at any time kept such book or books, he has refused to produce or deliver them to the assignee ; 7. If the insolvent does not apply to the Court or Judge for a confirmation of such discharge within two months from the time at which the same has been efl'ected under this Act, any cred- itor for a sum exceeding two hundred dollars, may cause to be served a notice in writing upon If confirma- tion be not demanded within two months pro- ceedings may be taken to 76 INSOLVENCY ACT. annul the discharge. Petition for annulling and proceedings consequent thereon. R. 1 ■ fc< Power of Court or Junge. the insolvent requiring him to file in the Court the consent, or the deed of composition and discharge, as the case may be ; and may thereupon give notice (Form P.) as hereinbefore provided with regard to applications for confirmation of discharge, of his intention to apply by petition to the Court! in Lower Canada, or in Upper Canada to the Judge, on a day named in such notice, for the I annulling of the discharge ; and on the day so] named may present a petition to the Court or Judge, in accordance with such notice, setting forth the reasons in support of such application, which may be any of the reasons upon which a confirmation of discharge may be opposed ; and upon such application, if the insolvent has not, at least one month before the day fixed for the pre- sentation thereof, filed in the office of the Court the consent or deed under which the discharge is effected, the discharge may be annulled without further enquiry, except as to the service upon him of the notice to file the same ; but if such consent or deed be so filed, or if upon special application, leave be granted to him to file the same at a sub- sequent time, and he do then file the same, the Court or Judge, as the case may be, shall proceed thereon as upon application for confirmation of such discharge ; 8. The Court or Judge, as the case may be, upon hearing the application to confirm or to annul the discharge, the objections thereto, and any evidence adduced, shall have power to make an order, either confirming the discharge abso- lutely ,|8uspensively, or conditionally, or annulling the same ; and such order shall be final, unless appealed from in the manner herein provided for as to appeals from the Court or Judge ; For the practice relating to discharges see below in the note to sub-section 12 of this section. The manner of appeal from the decision of the judge that is alluded to in this COMPOSITION AMD DISCHAROE. 77 e ice Court the 1 discharge, eupon give vided with I f discharge,, the Court! lada to the Lce, for the the day so Court or setting ipplication, m which a 3osed ; and has not, at for the pre- the Court lischarge is ed without upon him ach consent application, le at a sub- 1 same, the lall proceed irmation of se may be, ifirm or to hereto, and ^er to make large abso- ir annulling inal, unless rovided for to sub-section aded to ia this [clause and the twelfth clause of the same section, is probably to be found iu the jprovisions of section 7. of this act ; although it would there seem that reference Iwas only made to appeals from the judgment of the County Court judge upon lawards made by assignees. The time for applying for the allowance of the ap- Ipeal is live days under sec 7, and it is presumed that only the insolvent himself lor some creditor who has proved against the estate can apply. A creditor who |bas not proved his debt prior to the order granting his discharge, cannot qualify limself to appeal against such order, by proving his debt during the time within rhich appeal is permitted, {Re Monck & Brooks, 10 L. T, (N. S.) 634.) On dismissiug an appeal against an order wholly refusing a certificate, the iLords Justices, in England, were of opinion that it should be dismissed with Icosts, (Ex parte Johnstone, 6 L. T. (N. S.) 228, Oh. on appeal.) The former Ipractice was to dismiss an appeal in such cases without costs. 9. Until the Court or Judge, as the case may Effect of con- be, has confirmed such discharge, the burden of fi'^™**^^"- proof of the discharge being completely effected under the provisions of this Act, shall be upon the insolvent ; but the confirmation thereof, if not re- versed in appeal, shall render the discharge there- y confirmed, final and conclusive ; and an au- thentic copy of the judgment confirming the same shall be sufificient evidence, as well of such dis- cjharge as of the confirmation thereof ; 10. If, after the expiration of one year from the When insol- ate of an assignment made under this Act, or ^®°*^"^J^*P" rom the date of the issue of a writ of attachnrent court or judge hereunder, as the case may be, the insolvent has for discharge, ot obtained, from the required proportion of cred- tors, a consent to his discharge, or the execution f a deed of composition and discharge, he may pply to the Court in Lower Canada, or to the udge in Upper Canada by petition, to grant him lis discharge, first giving notice of such applica- ion, (Form Q.) in the manner hereinbefore pro- vided for notice of application for confirmation of lischarge ; 11. Upon such application any creditor of the Opposing such nsolvent may appear and oppose the granting of application. 78 INSOLVENCY ACT. m ch discharge upon any ground upon which the confirmation of a discharge may be opposed under this Act ; Cou?r**^'^*^ 12. The Court or Judge, as the case may be, after hearing the insolvent, and the objecting cred- itors, and any evidence that may be adduced, may make an order either granting the discharge of the insolvent absolutely, conditionally, or suspensively, or refusing it absolutely ; and such order shall be final, unless appealed from in the manner herein provided for appeals from the Court or Judge ; From this section it will be seen that although a discharge may be given con- ditionally or suipensively, yet when the condition is fulfilled, or the time of sus- pension has expired, all orders of discharge possesses the same value, and there are among them no classifications, or meritorious or degrading distinctions whatever. The legislature has followed in this the late English act which materially altered the law on the point by abolishing the classification of cer- tificates of discharge that existed under the provisions of 12 ft 13 Vic, c. 100 By that act the commissioner had to certify as to the cause of bankruptcy :— either that the bankruptcy had arisen from unavoidable losseB and misfortunes in which case the certificate was designated as of the first class ; or that the bankruptcy had not wholly arisen from unavoidable losses and niisfortunea, in which case the cartificate was designated as of the second class ; or that the bankruptcy had not arisen from unavoidable losses and misfortunes, in which case the certificate was designated as of the third class. To this last class a certain stigma was deservedly attached ; while a first class certificate was justly prized by its possessor as a passport by which he might again enter into business with an untarnished reputation for honesty at least. The reason given for the change was the uncertainty and capriciousnes with which the several judges gave the different classes of certificates ; but the wisdom of the step has been very much questioned in England. An order of discharge may be granted subject to any condition touching any salary, pay, emoluments, profit, wages, earnings, or income which may after wards become due to the bankrupt, and touching after acquired property of thf bankrupt, (Re Anderson 6 L. T. (N. S.) 837, Bank. ; Re Inman, 6 L. T. (N.S) 665, Bank.) It seems that it is not in the discretionary power of the Court to refusf or suspend the order of discharge, when the bankrupt has not been guilty o! conduct amounting to a fraud under thi^ act, (see Ex parte Udall, re Mew, L. T. (N. S.) 732, eh. on appeal ; Ex parU Glass and Elliott, re Boswall, 6 L. tI (N. S.) 407. Much land by was adji peared 1 adjourne sons, 6 L It seen abankru ofience ai Grummet in the sai it was he the same A disci action of does the 1 action for dischar^, 13. I mation has bee ence, gi procniei valuabL null am fiXAMII la 1 of two n tisemen appoint shall ca creditors vent, an( ing; anc examine or on be and the duced to EXAMINATION OF THE INSOLVENT AND OTHERS. 79 I which the posed under 186 may be, jecting cred- Iduced, may iharge of the uspensively, der shall be inner herein f Judge ; ty be given con- the time of sus- value, and there ing diatinctions (glish act which 3ification of cer- kl3 Vic,c.lO0- bankruptcy :— and misfoitunes, lass ; or that the 1 Diisfortunes, in lass ; or that the irtunes, in which > this last class a ficate was justly gain enter into The reason given hich the several a of the step '. on touching any hich may after i property of tbf J L. T. (N.S> 655 e Court to refuse ot been guilty o Udall, re Mew, Boswall, 6L.T| Much the same effecet as u refusal of a discharge has been obtained in Eng- land by an adjournment of a debtor's examination, sine die. Where an attorney was adjudicated a bankrupt as a bill broker, and on his iinal examination it ap- peared that he had lost large sums on horse racing, his exnmination was adjourned tine die with a view to prevent him obtaining his certificate. (Re Par- sons, 6 L. T. (N. S.) 61, Bank. Irish.) It seems to have been the English practice to adjourn the last examination of a bankrupt Mine die when ho had been guilty of an offence, but not such an offence as would justify nn absolute refusal of an order of discharge, (Ex parte Grummett, 10 L. T. (N.S.) 680 ; but this decision was reversed by the Chancellor in the same case on appeal, (Grummett v. Grummett, 10 Jur. (N.S ) ^38,) where it was held that the adjournment of the Inst examination must be governed by the same rules as the granting of the order of discharge. A discharge cannot be refused because applied for tp get rid of damages in an action of seduction, {Ex parte Crabtree, Re Taylor, 10 L. T. (N. S.) 361 ;) nor does the fact of damages and costs being recovered against a bankrupt in an action for breach of promise of mar iagc i:frord any ground for opposition to his dischargre, {lie Pearse, 9 L. T. (N. S.) 349. * 13. Every discharge or composition or confir- Discharge. Ac. mation of any discharge or composition, which f^a^ud^^^b^'''^ has been <5btained by fraud or fraudulent prefer- void, once, or by means of the consent of any creditor procured by the payment of such creditor of any valuable consideration for such consent, shall be null and void. EXAMINATION OF THE INSOLVENT AND OTHERS. 10- Immediately upon the expiry of the period of two months iioioci the first insertion of the adver- tisement gi\ jJg notice of an assignment, or of the appointment of an official assignee, the assignee shall call a meeting, by advertisement, of the creditors, for the public examination of the insol- vent, and shall summon him to attend such meet- ing; and at such meeting the insolvent may be examined on oath, sworn before the assignee, by or on behalf of any creditor present, in his turn ; and the examination of the insolvent shall be re- duced to writing by the assignee, and signed by When and how insolvent may be ex- amined before the rssignee. Examinaiiou to be reduced to writing. 80 INSOLVENCY ACT. |i«- rH" ■ .7 m y Signing and attesting it. Examination of insolvent before the Judge. the insolvent ; and any questions put to the insol- vent at such meeting which he shall answer eva- sively, or refuse to answer, shall also be written in such examination, with the replies made by the insolvent to such questions ; and the insolvent shall sign such examination, or if he refuse to sign the same, his refusal shall be entered at the foot of the examination, with the reasons of such re- fusal, if any, as given by himself ; and such ex- amination shall be attested by the assignee and shall be filed in the office of the court ; 2. The insolvent may also be from time to time examined as to his estate and efi'ects upon oath, before the Judge, by the assignee or by any cred- itor, upon an order from the Judge obtained with- out notice to the Insolvent, upon petition, setting forth satisfactory reasons for such order — and he may also be examined in like manner upon a subpcena issued as of course without such order, in any action in which a writ of attachment has been issued against his estate and effects ; which subpcena may be procured by the plaintiff, or by any creditor intervening in the action for that pur- pose, or by the assignee ; Examination 3. The insolvent may also be so examined by by assignee or the assignee or by any creditor, on the application application ^^ ^^^ insolvent for a discharge or for the confirm- for discharge, ation or annulling of a discharge, at any stage of &c. snch proceeding or upon any petition to set aside an attachment in the proceedings for the com pulsory liquidation of his estate ; Other persons may be ex- amined. 4. Any other person who is believed to possess information respecting the estate or effects of the insolvent, may also be from time to time examined before the Judge upon oath, as to such estate or effects, upon an order from the Judge to that effect, which order the Judge may grant upon petition, setting withoi be so ( A wit not bouq But til claim pa; as weU a vi. Tayk I 5. T credito sigree, put to ] and tor such ai shall be one dol 6. A] under e to procc which r dinary may at made tc that allc them to or other U K other noi vertisem nature o lication i zette, als two wee ia Freric PROCSDURK GENERALLY. 81 the insol- 3wer eva- vritten in le by the insolvent se to sign t the foot such re- such ex- gnee and leto time pon oath, any cred- ned with- in, setting r — and he 3r upon a iich order, iment has ts; which tiff", or by r that pur- imined by pplication confirm- |y stage of set aside the com |to possess 5cts of the lexamined estate or that effect, petition) setting forth satisfactory reasons for such order, without notice to the insolvent or to the person to be so examined ; A witness appearing upon an order granted by the Judge, under this clause, is not bound to be sworn until his expenses are paid. Bui the insolvent -who appears by virtue of the same order is not entitled to claim pajment of his expenses before being sworn, and he may be examined before as weU as at or after the meeting mentioned in sub'sec. 1, above, (Worthington v». Taylor, 10 U. C. L. J. 304.) 6. The insolvent shall attend all meetings of his Insolvent to creditors, when summoned so to do by the as- f^*®^^^^?®*" sigree, and shall answer all questions that may be creditors, put to him at such meetings touching his business, and touching his estate and effects ; and for every such attendance he shall be paid such sum as shall be ordered at such meeting, but not less than one dollar ; 6. Any person summoned for examination or Conduct of under examination under this Act shall be subject witnesses. to proceedings and punishments similar to those which may be taken against or inflicted upon or- dinary witnesses ; and on application, the Judge Their costs, may at his discretion order an allowance to be made to persons so examined, of a like amount to that allowed to witnesses in civil cases, and order them to be paid such allowance out of the estate or otherwise. OF PROCEDURE GENERALLY. XL- Notice of meetings of creditors and all Notices under other notices herein required to be given by ad- *^^^ ^^h ^^^ vertisement, without special designation of the ° g^'^ • nature of such notice, shall be so given by pub- lication thereof for two weeks in the Canada Ga- zette, also in Lower Canada in eveiy issue during two weeks of one newspaper in English and one in French, and in Upper Canada, m or'*, r^'-ws- 82 INSOLVENCY ACT. w' I mu Decision of questions at meetings of creditors. paper in English, published at or nearest to the place where the proceedings are being carried on, if such newspapers are published within ten miles of such place ; and in any case the assignee or person giving such notice shall also address notices thereof to all creditors and to all representatives of foreign creditors, within the Province, and shall mail the same with the postage thereon paid, at the time of the insertion of the first advertisement ; 2. All questions discussed at meetings of cred- itors shall be decided by the majority in number of all creditors for sums above one hundred dollars, present or represented at such meeting, and repre- senting also the majority in value of such creditors, unless herein otherwise specially provided ; but if the majority in number do not agree with the ma- jority in value, the meeting may be adjourned for a period of not less than fifteen days, of which ad- journment notice by advertisement shall be given ; and if the adjourned meeting has the same result, the views of each section of the creditors shall be embodied in resolutions, and such resolutions shall be referred to the Judge, who shall decide between them; , Eti.' .it What may be 3^ jf ^j^g fljgt meeting of creditors which takes m'eeting o7 place after the expii-y of the period of two months creditors if from the date of the deed of assignment or of the called for or- appointment of an fficial assignee, be called for generaUj^&c. ^^® ordering of the affairs of the state generally, * and it be so stated in the notices calling such meeting, all the matters and things respecting which the creditors may vote, resolve or order, or which they may regulate under this Act, may be voted, resolved or ordered upon and may be regu- lated at such meeting, without having been spe- cially mentioned in the notices calling such meet- ing, notwithstanding anything to the contrary in this Act contained, due regard being had, how- ii PROCECURE GENERALLY. 8S ■est to the arried on, ten miles jsignee or »ss notices sentatives and shall a paid, at rtisement ; [s of cred- in number ed dollars, and repre- 1 creditors, led ; but if Lth the ma- oumed for which ad- be given ; ime result, rs shall be itions shall ie between hich takes wo months it or of the called for generally, tiling such respecting or order, or ct, may be ly be regu- r been spe- such ineet- 3ontrary in had, how- ever, to the proportions of creditors required by this Act for any such vote, resolution, order or regulation ; Very extensive, but quite necessary powers, are given to the creditors at their first meeting. They should not fail on that occasion to give their attention to all the dilFerent points on which they are empowered to act. They should regu- late the security to be given by the assignee, and the remuneration that he is to receive ; give general and particular instructions to the assignee, and act upon his report on the many questions that may have arisen. They might also have the insolvent examined before them under the authority of the last section. 4. The claims of creditors (Form R) shall be Claims of cre- furnished to the assignee in writing, and shall ^f°^^ ' ^^^^ specify what security, if any, the creditor holds for the payment of his claim, and when required by this Act shall also contain an estimate by such creditor of the value of such security ; and if the creditor holds no security, then it shall also be so therein stated ; 5. The claims shall be attegted under oath, How to be at- taken in Canada before any Judge, Commissioner tested. 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, the Chief Municipal Officer for any Town or City, or any British Consul or Vice-Consul, or before any other person authorized by any statute of this Province for taking affidavits to be used in this Province ; For the proper person to make this affidavit see below, sub-sec. 8. Certain creditors are by special enactment entitled to prove their debts against the estate of a bankrupt. By 10 & 11 Vic, c. 10, (Con. Stats. Canada, c. C9,) an owner of goods that have been pledged by an ag'snt entrusted with the possession of them is entitled to redeem the same upon certain terms. Sec- tion 21 of the consolidated act provides for the rights of the creditor in case of the bankruptcy of imch agent as follows; — " In case of the bankruptcy of any such agent, and in case the owner of the goods redeems the same, he shall, in respect of the sum paid by him on account of the agent for such redemption, be held to have paid the same for the use of 84 INSOLVENCY ACT. such agent before his bankruptcy, or in case tho goods hu^e rot }: .,f ^ so re- .ic'imed th*^ owner ball be deemed a creditor of the agent for t'ae vilue jf iho good?; .>o [dedged, at the time of the pledge, and may in either oaso provo .'or, or a ': .. oif the sum so paid, or the value of such goods, as the jabe may be." A wife may not prove against her husband's estate for arrears of alimony pay- able to her under an order of the Court of Chaneery, {Ex parte Rice 10 L. T. (N. S.) 103.) One of several makers of a joint and several promissory note in favour of a third party having paid the debt secured by the note, may not prove upon the note aginst some of the co-makers under their bankruptcy. His remedy is by contribution from epch of his co-contractors pro portione, {Ex parte Schenk, re Viner, 10 L. T. (N. S.) 44) I Supplement- ary oath in certain cases 6. Before the preparation of a dividend sheet, the assignee may require from any creditor a sup- plementary oath declaring what amount, if any, such creditor has received in part payment of the debt upon which his claim is founded, subsequent to the making of such claim, together with the particulars of such payment ; and if any creditor refuses to produce or make such oath before the assignee within a reasonable time after he has been required so to do, he shall not he collocated in such dividend sheet ; Upon a creditor coming in to prove ao'-'inst an estate upon a judgment debt, the consideration thereof may be inqu • 1 into on the ground of fraud, {Re Sowerby, 6 L. T. (N. S) 581. A creditor cannot prove for a debt that is due under a parol contract where the Statute of Frauds requires the contract to be in writing, {Re The Pcntreguinea Fuel Company, Ex parte Acraman, 8 Jur, (N.S ) 706,) Claims se- cured by hy- patheque or privUeye in h C. 7. If, in Lower Canada, any claim be secured by hypothcque upon the real estate of the insolvent or if it consists of any hypothcque or privilege upon such real estate or any part thereof, the nature of such hypotheque or privilege shall be summarily D. cumevts to specified m such claim ; but unless such claim be be filed, *c. filed wil'j the assignee, with the deeds and docu- ments in support thereof, within six days from the day of sale of the property affected thereby, or if not, unless leave to file the same be afterv/ards PROCEDURE GENERALLY. 85 len 80 re- ilue jf iho aVi! .or, or »t nony pay- !e 10 L. T. avour of a i upon the oedy is by Schenk, re |J obtained from r le Judge upon special ca ase shewn, previous to the distribution ol'th3 proceeds of sucti real estate, or unless a dividend upon sbch claim has been reserved by the assignee, such claim shall not be entitled to any preferential collocation upon the proceeds of such real estate ; 8. Any affidavit required under this Act may who may be made by the party interested, or by the agent ^,^^^ affida- in that behalf having a personal knowledge of the ^^^ ^°^®^ matters therein stated ; d sheet, >r a sup- ;, if any, it of the )sequent ivith the creditor ifore the he has )llocated ment debt, fraud, {Re that is due tract to be Qan, 8 Jur, secured nsolvent frivilege le nature mmarily claim be nd docu- from ths 3by, or if terv/ards 9. One clear day's notice of any petition, motion Notices of or rule, shall be sufficient if the party nc'tified proceedings. resides within fifteen miles of the place where the proceeding is to be taken, and one extra day shall be sufficient allowance for each additional fifteen miles of distance between the place of service and the place of proceeding, and service of such notice shall be made in such manner as is now prescnued for similar services in that section of the Province within which the service is made ; Odrami:.3ion3 or t -^amina- uon of wit- 10. The Judge shall have the same power and authority in respect of the issuing and dealin;^ with Commissions for the examination of witnesses, as are possessed by the ordinary Courts of Record in the section of the Province in which the pro- ceedings are being carried on ; The issue of commissions for the examination of witnesses in Courts of Record in Upper Canada is principally regulated by the following sections of chapter 32, Con. Stats., U. 0. :•- "Se«. 19.— In case the plaintiff or defendant in any action in either of the superior Courts of Common Law, or in any County Court, is desirous of having at the trial thereof, the testimony of any aged or infirm person resident witbin Upper Canada, or of any person who is fvbout to withdraw therefrom, or who is i'i'Ming without the limits thereof, the Superior Court in which the action is ptnclir gf or a judge of either of such Courts, or the County Court in which the aclio^ is pending, or a judge thereof, may, upon the motion of such plaintiff or defeiidant, and upon hearing the parties, order the issue of one or more Oom- 86 IN6>0Ly£NCY ACT* mission or Commissions, under the seal of the Court in which the action is pend- ing, to one or more Commissioner or Commissioners, to take the examination of such person or persons respectively. Sec. 20. — Due notice of every such Commission shall be given to the adverse party to the end that he may cause the witnesses to be cross-examined. Sec. 21. — In case the examination of any witness or witnesses taken without the limits of Upper Canada, pursuant to any such Commission, be proved by an affidavit of the due taking of such examination, sworn before, and certified by the Mayor or Chief Magistrate of the city or place where the same has been taken, and in case such commission with such examination and affidavit thereto annexed be returned to the Court from which such commission issued close under the hand and seal of one or more of the Commissioners, the same shall primd facie be deemed to have been duly taken, executed and returned, and shall be received as evidence in the cause, unless it is made to appear to the Court in which such examination is returned and published, or before which the same is offered in evidence, that the same was not duly taken ; or that the deponent is of sound mind, memory, and understanding, and living within the jurisdiction of the Conrt at the time such examination is offered in evidence to such Court.'* Rules, &c., It, AH rules, orders and warrants, issued by may be served ^^^y Jadfire or court in any matter or proceedine: many part of •', ^,9 . ^ i. "I'li j .*^ ° this Province, nnder this Act, may be validly served m any part of this Province upon the party affected or to be affected thereby ; and the service of them or any of them may be validly made in such manner as is now prescribed for singular services in that part of the Province within which the service is made ; and the person charged with such service shall make his return thereof, and on oath, or, if a sher- iff oi bailiff in Lower Canada, may make such return under his oath of office ; 2'^. Tne fourti., fifth, seventh, eighth, ninth, tenth, eLiventh, and thirteenth sections of chapter of Oanadf to^' sevanty-iiine of the Consolidated Statutes of Can- Certain ss. of caps. '79 and apply. ada shall apply to proceedings under this Act ; and the whole of chapter eighty of the said Con- solidated Statutes shall also apply to proceedings under this Act, ii: the same manner and to the same extent as to proceedings before Courts of Record in Upper and Lower Canada ; PROCEEDINGS GENERALLY. 87 n is pend- lination of he adverse d. in without jved by an sertified bj has been vit thereto ose under hall primd ad shall be le Court in he same is leponent is urisdiction ch Court." sued by )ceeding iny part or to be 1 or any inner as that part s made ; ce shall f a sher- ke such , ninth, chapter of Ca^- is Act; d Con- eedings to the )urt8 of The sections of chapter 79 Con. Stat. Can., referred to here, relate to the ser- vice and effect of subpoenas in one part of the Province that have been issued in the other. 13. The forms appended to this Act, or other Forms ap- forms in equivalent terms, shall be used in the ^^^^^ *^ ^^ proceedings for which such forms are provided ; but in every petition, application, motion, contest- j^ ot^er ation, or other pleading under this Act, the parties cases ordinary may state the facts upon which they rely in plain language to and concise language, to the interpretation of ®^" °*®"*" which the rules of construction applicable to such language in the ordinary transactions of life shall apply ; and no allegation or statement shall be held to be insufficiently made, unless by reason of any alleged insufficiency the opposing party be misled or taken by surprise ; 1 4. The rules of procedure as to amendments of Amendment pleadings, which are in force at any place where of proceed - any proceedings under this Act are carried on, ^°^^* shall apply to all proceedings under this Act ; and any judge before whom any such proceedings are being carried on shall have full power and author- ity to apply the appropriate rules as to amend- ments, 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 ; 15. The death of the insolvent, pending proceed- Effect of death ings upon a voluntary assignment or in compul- ®^ insolvent sory liquidation, shall not affect such proceedings, ceedings.^'^^' or impede the winding up of his estate ; and his heirs or other legal representatives may continue the proceedings on his behalf to the procuring of a discharge, or the confirmation thereof, or of both ; The death of the bankrupt after the act of bankruptcy, and the commence- ment of proceedings under this act, but before the appointment of assignees may occasion some curious results. For instance, if a bankrupt be seized or possessed 88 fNSOLfENCY ACT. m m of lands In joint tenancy his moiety of course passes to the assignees by their appointment, and they unquestionably hold as tenants in common with the person seized or possessed of the other moiety. But a question will aris6 as to whether the death of the bankrupt before the actual execution of the appoint- ment of the assigness would havb the effect of preventing survivorship. Costs to com- pel compul- sory liquida- tion. 16, The costs of Ihe action to compel compul- sory liquidation shall be paid by privilege as a first charge upon the assets of the insolvent ; and the costs of the judgment of confirmation of the discharge of the insolvent, or of the discharge if obtained direct from the Court, and the costs of winding up the estate, being first submitted at a meeting ol creditors, and afterwards taxed by the judge, shall also be paid therefrom ; Rules of prac- 17 jn Lower Canada rules of practice for regu- of^few in l!o. l^tipg the due conduct of proceedings under this Act before the Court or Judge, and tariffs of fees for the Officers of the Court, and for the Advocates and Attorneys practising in relation to Such pro- ceedings, shall be made forthwith after the passing of this Act, and when necessary repealed or amended, and shall be promulgated, under or by the same authority and in the same manner as the rules of practice and tariff of fees of the Superior Court for Lower Canada, and shall apply iii the same manner and have the same effect in respect of the proceedings under this Act, as the rules of practice and tariff of fees of the Superior Court ap- ply to and affect the proceedings before that Court ; and bills of costs upon proceedings 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 ; Rules and 18. In Upper Canada the Judges of the Superior tariff in U. C, Courts of Common Law, and of the Court of Chan- cery, or any five of them, of whom the Chief Justice of Upper Canada, or the Chancellor, or the Taxation of costs. Chief shall h rules observe this A to fix shall cases Officer! the Cr Sheriff be nee 12 trader insolve conferr hundrei seventy is herel the deli 2. In having by whi or caui effects, contrac registry businej thereof such m ister t] already passing but iiei a conti such c< OENXRAL PROVISIONS. 89 ees by their a With the arise as to ;he appoint- ip. compul- rge as a 3nt; and n of the charge if costs of ted at a i by the for regu- ider this 3 of fees dvocates uch pro- i passing ealed or er or by er as the Superior f in the respect rules of )ourt ap- t Court ; this Act, manner oceeded superior )f Chan- B Chief r, or the Chief Justice of the Common Pleas, shall be one, shall have power to frame and settle such forms, rules and regulations as shall be followed and observed in the proceedings on insolvency under this Act, as they may deem to be necessary, and to fix and settle the costs, fees and charges which shall or may be had, taken or paid in all such cases by or to Attorneys, Solicitors, Counsel, Officers of Courts, whether for the Officer or for the Crown, as a fee for the fee fund or otherwise. Sheriffs, Assignees or other persons whom it may be necessary to provide for. GENERAL PROVISIONS. 12. In all cases of sales of merchandise to a Rights of un- trader in Lower Canada subsequently becoming pwd vendor insolvent, the exercise of the rights and privileges ^^^Tdf^paris conferred upon the unpaid vendor by the one restriciv-d. ' hundred and seventy-sixth and one hundred and seventy-seventh articles of the Coutume de Paris, is hereby restricted to a period of fifteen days from the delivery of such merchandise : mar- 2. In Lower Canada, every trader who marries, j^ ^ ^ having previously executed a contract of marriage riage con by which he gives or promises to give or to pay, tracts of or cause to be paid to his wife, anv property or *'^*^?YeVd ^^ effects, or any sum of money, shall cause such within a cer- contract of marriage to be enregistered in the tain perioii. registration division in which he has his place of business, within thirty days from the execution thereof; and every trader already married, having such marriage contract with his wife, shall enreg- isler the same as aforesaid, if it be not there already enregistered, within three months from the passing of this Act ; and every person not a trader, but hereafter becoming a trader, and having such a contract of marriage with his wife, shall cause such contract to be enregistered as aforesaid (if it 90 INSOLVENCY ACT be not previously there enregistered), within thirtv Provision in days from becoming such trader ; and in default tf^^lr.'i'.nT^ of such registration the wife shall not be permitted to avail herself of its provisions in any claim upon the estate of such insolvent for any advantage con- ferred upon or promised to her by its terms ; nor shall she be deprived by reason of its provisions of any advantage or right upon the estate of her husband, to which, in the absence of any such contract, she would have been entitled by la^ ; Judgments in actions en se- paration de Hens, to be rendered only on certain conditions. Creditors may intervene. Interpreta- tion. •♦ Before Not- aries: 1) « Judge." " Court." 3. No judgment shall be rendered against any trader in Lower Canada in any action against him by his wife en separation de Mens or en separation de corps et de biens^ unless the institution of such action is advertised continuously for one month in the Canada Gazette, and in two newspapers pub- lished in or nearest to the place of residence of such trader, one in French, the other in English ; nor unless such action be brought in the district within which the defendant has his domicile ; and any creditor of the defendant in any such suit may intervene therein for the purpose of examin- ing such debtor respecting his estate and effect, without becoming liable for any costs either to the plaintiff or to the defendant, and may also inter- vene therein, and oppose the demand of the plain- tiff, or subsequently contest the validity of any judgment rendered therein, subject to the ordinary rule as to costs ; 4. The words " before Notaries " shall mean executed in Notarial form according to the law of Lower Canada ; the words " the Judge " shall, in Lower Canada, signify a Judge of the Superior Court for Lower Canada, having jurisdiction at the domicile of the insolvent ; and in Upper Can- ada a Judge of the County Court of the County or Union of Counties in which the proceedings are carried on, and the words " the Court" shall, in Lower and in is othei require fourth eighth Lower of the Lower Until tl England, and consi sioners. jurisdictic cellor sho of five Lo Courts ha and states ruptcj Co power to Court. 5. Tl assigne( liquidat under a " day " " Credit whom t seconda but no for, eith( numberi allotmei " collocj dividenc and all shall be trading chief of OENERAL PROVISIONS. 91 thin thirty in default permitted laim upon ntage con- erms ; nor ^visions of ite of her any such )y la^ : gainst any gainst him separation on of such B month in apers pub- ssidence of [1 English ; the district licile; and such suit of examin- and effect, ither to the also inter- ►f the plain- lity of any he ordinary shall mean ) the law of ; " shall, in le Superior isdiction at Upper Can- e Couhty or eedings are rt" shall, in Lower Canada, signify the said Superior Court, and in Upper Canada the County Court, unless it is otherwise expressed or unless the context plainly requires a different construction ; but the twenty- Certain pro- fourth and twenty-fifth sections of the seventy- visions to eighth chapter of the Consolidated Statutes for *^P^^' Lower Canada, including subsection number two of the said twenty-fifth section, shall apply in Lower Canada to proceedings under this Act ; Until the act of 1861 the County Courts had no jurisdiction in bankruptcy in England. By 1 & 2 Will. IV., c. 66, " the Court of Bankruptcy " was established and consisted of four judges, constituting the Court of Review, and six commis- sioners. The Court of Review was abolished by 10 & 11 Vic, c. 10', and its jurisdiction transferred to such one of the Vice CLancellors as the Lord rihan- cellor should from time to time appoint ; and the Court of Bankruptcy cc JSisted of five London, and ten district Commissioners. Under the last act tbe County Courts have jurisdiction in all cases where a debtor makes himself a bankrupt, and states on filing his petition that his debts do not exceed £300. The bank- ruptcy Court in London, and also the creditors at the first meeting, have the power to transfer the proceedings in bankruptcy from a District to a County Court. 5. The word " Assignee " shall mean the official " Assignee." assignee appointed in proceedings for compulsory liquidation as well as the assignee appointed under a deed of voluntary assignment ; the word *' ^^^" " day " shall mean a juridical day ; the word " Creditor." " Creditor " shall be held to mean every person to whom the insolvent is liable, whether primarily or secondarily, and whether as principal or surety ; but no debt shall be doubly represented or ranked for, either in the computation for ascertaining the numbers and proportion of creditors, or in the allotment or payment of dividends ; the word " Collocated." " collocated " shall mean ranked or placed in the dividend sheet for some dividend or sum of money ; and all the provisions of this Act respecting traders. Application shall be held to apply equally to unincorporated ^^A^* *^^°"^" trading Companies and co-partnerships ; and the ' chief office or place of business of such unincor- 4^. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ltt|28 |25 lis ^^ •^B Itt Uii 122 £f |£g 12.0 u Photographic _Sciences Corporalion ■1>^ \ <^ A 23 VniT MAIN STRHT vvnsTn,N.Y. usto (7l«)t72-4S03 v\ '^ "^ Ji A* »rAf k ^ « INSOLVENCY ACT. n rs porated trading ComDanies and co-partnerships shall be their domicile for the purposes of this Acl ; be^a^ nt^ *° ^* ^^^^7 assignee to whom an assignment is wUhfnufe made under this Act, and every official assignee meaning of appointed Under the provisions of this Act, is Canada^^ an agent within the meaning of the forty-third, 92*?ec^43?&'c. forty-fourth, forty-sixth, forty-eighth and forty- ninth sections of the ninety-second chapter of the Consolidated Statutes of Canada ; and every pro- vision of this Act, or resolution of the creditors, relating to the duties of an assignee or official assignee, shall be held to be direction in writing, within the meaning of the said forty-third section of the said chapter ; and in an indictment against an assignee or official assignee under any of the said sections, the right of property in any moneys, security, matter, or thing, may be laid in " the creditors of the insolvent {naming him), under the Insolvent Act of 1864," or in the name of any assignee subsequently appointed, in his quality as such assignee ; The references in this sub-section are to portions of the " Act respecting offences against person and property." The forty-third section of that act re- lates to the mala fide misapplic^^tion, contrary to written instructions, of money or seturity for money, entrusted to bankers, merchants, brokers, attorneys or other agents ; and creates such an offence a misdemeanor. Under the forty- fourth section if any person acting in any of the above capacities is intrusted with any chattel, valuable security, &c., for any special purpose, without autho- rity to sell or pledge the same, and in mala fide does negotiate or pledge the same for bis own benefit, such offender shall be guilty of a misdemeanor. Sec- tion forty-six relatf^s to factors and agents pledging goods, &c., and renders this offence also a misdemeanor, while sections forty-eight and forty-nine relate to other remedies against, and convictions of agents. Were it not for the protec- tion against frauds on the part of assignees that this provision gives the credi- tors, they might be sometimes in a worse position after the assignment than before. Deed of as- ^' The deed of assignment, or an authentic copy signment, &c., thereof, or a duly authenticated copy of the oraer of the duly mg of the as appoin courts, ment, time tl 8. from tl of this Canad such n over to the cor may b sold si and Ju 9. T powers upon p: ferred i second and nil Lower to mdk Court Lower 13. " The ] force ai Septeni GENERAL PROVISIONS. 93 partnerships OSes of this isignment is ial assignee his Act, is I forty-third, and forty- lapter of the I every pro- le creditors, s or official 1 in writing, third section lent against f any of the any moneys, aid in " the i), under the lame of any s quality as < Act respecting of that act re- tions, of money ra, attorneja or Jnder the forty- iea is intrusted without autho- te or pledge the emeanor. Sec- md renders this ty-nine relate to ; for the protec- gires the credi- gsignment than of the judge appointing an official assignee, cr a to be primd duly certified extract from the minutes of a meet- ^"^** '^^^^®°°** ing of creditors, according to the mode in which the assignee or official assignee is alleged to be appointed, shall be primd, facie evidence in all courts, whether civil or criminal, of such appoint- ment, and of the regularity of all proceeding at the time thereof and antecedent thereto ; 8. One per centum upon all moneys proceeding percentage from the sale by an assignee, under the provisions for B-iiding of this Act, of any immoveaale property in Lower ^^l^^\ « Canada, shall be retained by the assignee out of such moneys, and shall by such assignee be paid over to the Sheriff of the District, or of either of the counties of Gaspe or Bonaventure, as the case may be, within which the immoveable property sold shall be situate, to form part of the Building and Jury Fund of such District or County ; 9. The Governor in Council shall have all the Power to im- powers with respect to imposing a tax or duty ^°oceediny° upon proceedings under this Act, which are con- in l. o. ferred upon the Governor in Council by the thirty- 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.) 13* This Act shall be called and known as Short title. " The Insolvent Act of 1864," and shall come into force and take effect on and after the first day of September next. thentic copy of the oraer The in receiv to wh( {Dc (Th The matur upwai and th (Da APPENDIX OF FORMS. FORM A. {Vide Sec. 2, Sub-sec. 1.) Insolvent Act of 1864. The creditors of the undersigned are notified to meet at in on the th day of at {eight) o'clock for the purpose of receiving statements of his aiffairs, and of naming an Assignee to whom he may make an assignment under the above Act. (Domicile of debtor, and date) (Signature.) (The following is to be added to the notices sent by post.) The Creditors holding direct claims and indirect claims, maturing before the meeting, 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 $ (Domicile of debtor , and date,) (Signature.) 96 INSOLVBNCY ACT. if* '.Ilk FORM B. {Vide Sec. 2, Sub-sec. 1.) Insolvent Act of 1864. In the matter of A. B., an insolvent. Schedule of Creditors. 1. Direct Liabilities. Name. Residence. Nature of Debt. Amount. Total. 2. Indirect liabilities, maturing before the day fixed for the first meeting of creditors. Name. Residence. Nature of Debt. Amount. • 3. Indirect liabilities, maturing after the day fixed for the first meeting of creditors Name. Residence. Nature of Debt. Amount. 4. Negotiable paper, the holders of which are un- known. Date. Name of Maker. Names liable to Insolvent. When due. Amount. APPSNOIX OF FOAMfl. 97 Province of Canada, District {or CowMy,) Ine >lvent Act of 1864. I. A. B., the above named insolvent, being duly sworn, depose and say : 1. That to the best of my knowledge and belief, and accord- ing to my books, the above schedule contains a true and cor- rect list of my liabilities, according to its purport, and that each of such liabilities is correctly classified therein. 2. That all of the above-mentioned liabilities are honestly due by me and that none of them were created or have been increased with the intention of giving to the creditor thereof any advantage either in voting at meetipgs of creditors,- or in ranking on my estate. ^worn before me at 186 . this day of FORM C. (Vide Sec. 2, Sub-sec. 6.) Insolvent Act of 1864. of the of the second part, This assignment made between first part, and witnessss, {or) (On this 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 1864 " the said party of the first part, being insolvent, has voluntarily assigned and hereby does voluntarily assign to the said party 98 INSOLVENCY ACT, '^v I,;!,,. U'4 m m of the second part, accepting thereof as assignee under the said Act, and for the purpose therein provided, all his estate and c fleets real and ^ arsonal of every nature and kind whatsoever. To have and to hold to the party of the second part as a'^signee for the purposes and under the Act aforesaid. And a duplicate of the list of creditors exhibited at the first meeting of his creditors, by the said party of the first part, is hereto annexed. In witness whereof, &c. Done and passed, &c. or FORM D. Insolvent Act of 1864. In the matter of A. B. (or A. B. & Co.) an Insolvent. The creditors of the insolvent are notified that he has made an assignment of his estate and effects, under the above Act, to me, the undersigned assignee, and they are required to fur- nish me within two months from this date, with their claims, specifying the security they hold, if any, and the value of it ; and if none, stating the fact ; the whole attested under oath, with the vouchers in support of such claims. {Place date) {Signature of assignee,) (NoTii.— There is no reference to this form in tbo body of the Act ; bat it is evidently the form of an advertisement to be published by an aesignee under a voluntary assignment, immediately upon his appointment.) ! I APPENDIX OF FORMS. 99 FORM E. (Vide Sec. 3, Sub-sec. 2.) Insolvent Act of 1864. residence and description To (name of insolvent.) You are hereby required to make an assignment of your estate and effects under the above Act, for the benefit of your creditors. Place date [Signature of creditor,) FORM F, (Vide Sec. 3, Sub-sec. 7.) Insolvent Act of 1864. PROViNCE OF C AN A DA, District of I A. B- -, {name^ residence and description.) Plaintiff. vs. C. D- I, A. B- -, {name^ residence and description.) Defendant. , (mime, residence and description) being duly sworn, depose and say : 1. I am the Plaintiff in this cause (or one of the Plaintiffs^ or the clerk, or the agent of the Plaintiff in ths cause duly authorized for the purposes hereof;) 2. The defendant is indebted to the Plaintiff (or as the case may be) 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 1864, and 100 I!)rSOLTENCY ACT. ! ( J: Las rendered himself liable to have his estate placed in com- pulsory liquidation under the above mentioned Act ; and my reasons for so believing are as follows : {state concisely the facts relied upon as rendering the debtor insolvent j and as sub- jecting his estate to be placed in compulsory liquidation,) And I have signed ; (or I declare that I cannot sign,) this day of 186 . and if the deponent cannot sign, add — the foregoing affidavit having been first read over by me to the de- ponent, (NoTR. — The form of jurat given here is evidently for Lower Canada, and that used above in the affidavit in " Form B." is a proper one for Upper Canada.) FORM G. {Vide Sec. 3, Sub-sec. 7.) Insolvent Act of 1864. Province of ^ VICTORIA, by the Grace of God of the Canada. \ United Kingdom of Great Britain and District of Quebec, ) Ireland, Qeeen, Defender of the Faith, No. To the Sheriff of our District {or County) of Greeting : We command you at the instance of to attach the estate and effects, 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 territo- rial jurisdiction) and the same so attached, safely to hold, keep and detain in your charge and custody, until the attach- APPENDIX or FORMS. 101 I com- id my ily the 18 sub' ) and that ida.) ment 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 Dis trict) of on the day of then and there to answer the said of the plaint contained in the declaration hereto annexed, 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 WnEREor, 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 sixty- in the of the in and ^aith. ETING : ies for 3rs and territO'. hold, attach- FORM H. (Vide Sec. 3, Sub-sec. 8.) Insolvent Act of 1864. A. B., Plff. C. D., Deft. A writ of attachment has issued in this cause, of which all persons interested in the estate of the defendant, and all persons having in their possession, custody or power, any portion of the assets of the defendant, or who are in any way indebted to him, are required to take notice. {Place date {Signature,) ) Sheriff. 102 I5S0LTENCT ACT. FORM I. {Vide Sec. 3, Sub-sec. 14.) Insolvent Act of 1864. I swear that I (or, the firm of which I am a member, or, A* B. of of whom I am the duly authorized agent in this behalf y) am {or is) a creditor of the Insolvent, and that I will give my advice in the appointment of an assignee to his estate, honestly and faithfully and in the interest of his credi- tors generally. FORM K. ■ i Its. Hi m {Vide Sec. 3, Sub-sec. 24.) Insolvent Act of 1864. In the matter of A. B. {or A. B. & Co.), an insolvent. The creditors of the insolvent are notified that I, the under- signed {name and residence), have been appointed official assignee of his estate and effects : and they are required to produce before me within two months from this date, their claims upon the said estate under oath, specifying the security they hold, if any, and the value of it, and if none, stating the fact, with vouchers in support of such claims. {Place date,) {Signature.) Official Assignee. APPENDIX OF FORMS. 103 r,0T, A. agent in id that I ee to his lis credi- FORM L. {Vide Sec. 4, Sub-sec. 12.) Insolvent Act of 18C4. In the matter of A. B., an insolvent. In consideration of the sum of $ whereof quit ; C. D., assignee of the insolvent, in that capacity hereby sells and assigns to £. F. accepting thereof, all claim by the Insol- vent against G. H. of {describing the debtor) with the evidenc<^s of debt and securities thereto appertaining, but without any warranty of any kind or nature wnatsoever. CD., Assignee, E. F. it. le under- official quired to ite, their i security ating the signee. FORM M. {Vide Sec. 4, Sub-sec. 14.) This deed, made under the provisions of the Insolvent Act of 1864, the aay of &c., between A. B. of &c., in his capacity of assignee of the estate and effects of an insolvent, under a deed of assignment executed on the day of at in Canada, {or under an order of the Judge made at on the day of ) of the one part, and C. D., of &c., of the other part, witnesseth : That he, the said A. B., in his said capacity, hath caus*^.* thi; sale of the real estate hereinafter mentioned, to be advert. ijed in the Canada Gazette from the day of to the day of inclusive, and hath adjudged and doth hereby grant, bargain, sell and confirm the same, to wit : unto the said C. D., his heirs and assigns for ever, all {in Upper Canada insert **ihe rights and interests of the Insolven' 104 INSOLVENCY ACT, m M mih tn") that certain lot of land, &c., (insert here a descrijnion of the property sold) : To have and to hold the same, with the appurtenances thereof, unto the said CD., 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 CD. to the said A.B., the receipt whereof is hereby acknowledged (or of which the said CD. hath paid to the said A.B., the sum of the receipt whereof is hereby acknowledged), and the balance or sum of ^ the said C. D. hereby pro- mises to pay the said A.B., in his said capacity, as follows, to wit — (here state the terms of payment) — the whole with interest payable and, as security fcr the payments so to be made, the said CD. hereby specially mortgages and hypothecates to and in favour of the said A.B., in his said capacity, the lot of land and premises hereby sold In witnesss, A.B. CD. Signed, sealec , and delivered in the presence of E.F. [L.S.] [L.S.; PROV Distri No office {or a credit soon a (or to firmat the sa: FORM N. ^ m. 0' {Vide Sec. 5, Sub-sec. 11.) Insolvent Act of 1864. In the matter of A.B. {or A.B. & Co.,) an Insolvent. The Creditois of the Insolvent are notified that a dividend sheet has been prepared, and will remain open to inspection and objection at my office (describing it) every day between the hours of ten and five o'clock until the day of after which the dividends therein allotted will be paid. Provik Distri Noti. insolvei the con dischar dischar the for( signed APPENDIX OF FORMS. 105 ripiion of with the d assigns lideration e receipt said CD. e balance jreby pro- oUows, to h interest and, as D. hereby mr ol the premises FORM O. (Vide Sec. 9, Sub-sec. 6.) Insolvent Act of 1864. pRoviNCF JF Canada, ) District {or County) of \ In the {name of Cowl) In the matter of A.B. {or A B & Co.), an Insolvent. Notice is hereby given that 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 by his creditors)^ and that on the day of next, at ten of the clock in the forenoon, or as soon as counsel can be heard, he will apply to the said Court (or to the judge of the said Courts as the case may be) for a con- firmation of the discharge thereby effected in his favor, under the said Act. {Place date,) (Signature of Insolvent, or of his Attorney ad litem,) lo.,) olvent. dividend ispection between ividends FORM P. (Vide Sec. 9, Sub-sec. 7.) Insolvent Act of 1864. Province of Canada, > In the (wamc of Court) District {or County) of J In the matter of A. B., an Insolvent. Notice is hereby given that the undersigned creditor of the insolvent has required him to file, in the office of this Court, the consent of his creditors, or the deed of composition and discharge executed by them, under which he claims to be discharged under the said Act ; and that on the day of next, at ten of the clock in the forenoon, or as soon as counsel can be heard, the under- signed will apply to the said Court {or to the judge of the tf^'" 106 INSOLVENCY ACT. said Court, as the case may be) for the annulling of such dis- charge. (Place date,) (Signature of Insolvent, or of his Attorney ad litem.) FORM Q. (Vide Sec. 9, Sub-sec. 10.), Insolvent Act or 1864. Province of Canada, District (or County) , ) In the (name of Court) of J In the matter of A.B. (or A.B. & Co.) an Insolvent. Notice is hereby given that on the day of next at ten of the clock in the forenoon, or as soon as counsel can be heard, the undersigned will apply to the said Court (or the Judge of the said Court, as the case may be) for a discharge under the said Act. (Place^ date,) (Signature of the Insolvent, or his Attorney ad litem,) I, C. D., of depose and say : FORM R. {Vide Sec. 11. Sub-aec. 4.) Insolvent Act of 1864. In the matter of A. B., An Insolvent, and C. D., Claimant. , being duly sworn in 1. I am the claimant (or, the duly authorized agent of the\ ■ i i APPENDIX or FORMS. 107 f such dis- \d litem.) ') B. (or A.B. vent. day of , or as soon ipply to the Msc may be) claimant in this behalf ^ and have a personal knoivledge of the matter hereinafter deposed to^ or a member of the firm of claimants in the matter^ and the said firm is composed of myself and of E. F, of ) 2. The insolvent is indebted to me (or to the claimant) in the sum of dollars, for {here stale the nature and particulars of the claim, for which purpose reference may also be made to accounts or documents annexed,) 3. I (or the claimant) hold no security for the claim,) or / 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 I this day of 5 ad litem.) Sv agent of the] i^ hi u ' 108 INSOLTENCY ACT. TABLE or MAJORITIES OP CREDITORS REQUIRED BY THE INSOLVENT ACT OF 1864, IN DIFFERENT PROCEEDINGS. BKOTIONS & SUB- SBC TIONS. Sec. II. Sub-Sec. 3. Sec. II. Sub-Sec. 5. Sec. III. Sub. Sec. 14. Sec. III. Sub-Sec. 19. Sec. IV. Sub-Sec. 18. Sec. V. Sub-Sec. 8. Sec. IX. Sub-Sec. 1. Sec. XI. ciub-Sec. 2. ACT TO BE DONE. MAJOBITT BEQUIRED. To appoint assignee in case ofi Majority in value of ere- voluntary assignment. (ditors representing only direct liabilities of Insol* vent, and indirect liabili* ties actually overdue. To decide dispute at first meeting of creditors as to amount which any creditor entitled to represent in nomination of assignee in cases of voluntarily assignment, or any other question proper for such meeting. Majority in number of creditors present, or repre sented by agents or proi ies. To appoint official assignee in case of compulsory liquidation. Creditors present must be unanimous or Judge to make appointment. To decide if debtor to be proceed- ed against under this act. Majority in number and! three-fourths in value ofl creditors for sums aboTel $100 present or represented! To remove assignee, or appoint new assignee. Majority in number ofl creditors present or repre{ sented. To direct allowance for mainten- ance of bankrupt. Majority in number on creditors for $100, wbol also represent three-fourths! in value of insolvent's liaj bilities. To execute deed of composition and discharge. The like. To decide all other questions at meetings of creditors. The majority in numbeil and value of creditors fori sums ftbove $100 present oi\ represented. s OF 1864, IN rr SBQUIRBD. LOWER CANADIAN RULES AND OEDERS, • in value of ere- presenting only I lilities of Insol-' indirect liabili- l y overdae. r in number ofl present, or repre- agents or prox* lade by the Judges of the Superior Court for Lower Canada, under and by virtue of the Statutes 27 and 28 Vict, cap* 17, inti- tuled : " An Act respecting Insolvency,'* irs present mustl lous or Judge to| oi ntment. in number andl ths in value ofl for sums abovel nt or re presented ! in number ofl )re8ent or repre- in number oi for $100, wbol jentthree-fourthsl f insolvent's lia- jority in number of creditors for e $100 present o;{ d. 1. There shall be assigned in the Court House of each udicial District at which the sittings of the Superior Court re held, two rooms for matters in Insolvency, one in which e sittings of the Judge shall be held, and the other for the ffice of the Clerk in Insolvency. 2. All judicial proceedings in Insolvency shall be had and inducted in the said Court Room alone, and not elsewhere ; d the sittings of the Judge shall commence at 11 A.M., or such hour as the Judges or Judge in each District shall reafter appoint, and shall continue till the business of the y shall be completed, or until the Judge shall adjourn the me. 3. The Clerk's Office shall be kept open every juridical y, from 9 A.M. to 4 P.M., and shall be attended during at time by a Clerk appointed by the District Prothonotary, d who shall be known as " The Clerk in Insolvency." 4. To ensure regularity of proceedings at the sittings of the dges, the business shall be conducted in the following er : 1. Meetings of Creditors ; 2. Motions ; 3. Rules Nisi ; Petitions, except as hereinafter mentioned ; Proceedings on applications for discharge of Insolvents ; no INSOLVENCY ACT- 6. Proceedings on applications 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 their Attorney ad lUenty admitted to practice in Lower Canada, and by no other person. 6. Ail motions. Petitions and Claims, and all papers in the nature of pleadings in Insolvency shall be intituled • In Insol- vency for the District of In the matter of In- solvent, and Claimant, Petitioiier or Applicant, as the case may be, plainly written, without interlineations or abbreviations of words ; and the subject or purpose thereof shall be plainly and concisely stated. They shall also be subscribed by the Petitioner, Applicant or Claimant, or by his Attorney ad litem lor him. And they shall be subject to the ordinary rules of procedure of the Superior Court in respect of similar papers, as regards the names and designations of the parties, and the mode in which they shall be docketed and filed. 7. No paper of any description shall be received or filed in any case, unless the same shall be properly numbered and intituled in the case or proceeding to wliich it may refer oi belong ; and be also endorsed with the general description! thereof, and with the name of the party or his Attorney fld| litem filing the same. 8. In all appealable matter in dispute, the pretensions ol the parties shall be set forth in writing, in a clear, precis and intelligible manner, and the notes of the verbal evidenci taken before the Assignee shall be plainly "wnritten, shall signed by the witness, if he can write and sign his name, am shall be certified by the Assignee as having been sworn befon him. And in the event of an appeal, the Assignee shall mak and certify a transcript from his register, of the proceedin before him in the matter appealed from. And he shall al make and certify a list of the documents composing such pn ceedings and appertaining thereto, and shall annex sucl transcript and list to such documents with a strong paper parchment cover, before producing the record before the Judg as required by the said Act. 9. All proceedings before a Judge or Court shall be enter© LOWKR CANADIAN ORDERS. Ill Assignee ; e conducted ing interest 3 practice in capers in the d • In Insol- In- Lpplicant, as lineations or •pose thereof ihall also be ant, or by his abject to the in respect of ations of the iocketed and eived or filedl ambered andl may refer oil il description! Attorney fldl >reten8ions o| clear, precis irbal evidencij tten, shall his name, and sworn befoM ee shall mali<| B proceeding he shall als sing such pro annex suci rong paper ore the Judg^ all be enterel daily, in order of date, in a docket of proceedings, to be kept by tne Clerk for each case ; and shall, from time to time, and until the close of the Estate, be fairly transcribed in Registers suitable therefor, which shall be kept and preserved by the Prothonotary, in the same manner as the Registers of proceed- ings of the Superior Court. 10. No Demand, Petition or Application of which notice is required to be given, either by the provisions of the said Act or by an order ot the Judge or Court, shall be heard until after such notice shall have been given, and due return thereof made and filed in the case. 11. Except where otherwise limited and provided by the said Act, and upon good cause shewn, the proceeding after notice thereof has been given, may be enlarged by the Judge or Court whenever the rights of parties interested may seem to require it for the purpose of justice. 12. Whenever a particular number of days is prescribed for the doing of an Act in Insolvency, the first and last day shall not be computed, nor any fractions of a day 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 affidavits of indebtedness made by a creditor, or by the clerk or agent of a creditor shall set forth the particulars and nature of the debt, with the same degree of certainty and precision as is required in the affidavits to hold to bail in civil process in the Courts of Lower Canada. 14. All Writs of Attachment issued under the said Act, shall, as issued, be numbered and entered successively by the Clerk in a Book, to which there shall be an Index, and to which access for examination or extract shall be had gratiSy at all times during office hours. 15. Every such Writ shall describe the parties thereto, in the same manner as they are described in the said affidavits of debt ; and the Declaration accompanying the said Writ, shall be similar in its form to the Declarations required to be filed in ordinary suits in the Superior Court. 16. No such Writ shall issue until after the affidavit of debt upon which the Writ is founded, shall have been duly filed in the Clerk's Office. 112 INSOLVENCY ACT. % ■. ;) «7. All services of Writs, Rules, 1 otices, Warrants and proceedings in Lower Canada, except otherwise specially prescribed by the said Act, may be made by a Bailiff of the Superior or Circuit Court, whose certificates of service shall be in the form required for servicts of process in the said Courts ; or by any literate person, who shall certify his service by his affidavit ; and in either case, the manner, place and time of such service shall be described in words, and also the distance from the place of service to the place of proceeding. 18. All services of Writs, Rules, Notices, Warrants or other proceedings, shall be made between the hours oi 8 A.M. and / P.M., unless otherwise directed by a Judge or Court upon good cause shewn. 19. Writs of attachment need not be called in open Court, but shall be returned on the return day into the Clerk's Office, and shall be there filed for proceedings thereon, as may be advised or directed. 20. Every day except Sundays and Holidays, shall be a juridical day for the return of said Writs, and for judicial and Court proceedings. 21. The Sheriff to whom the Writ of attachment shall be directed, shall not be required to make any detailed Inventory or prods-verbal of the effects or articles by him attached under such Writ ; but a full and complete Inventory of the Insolvent's Estate, so attached by the Sheriff, shall be made by the Assignee or person who shall be placed in possession thereof as guardian under such Writ ; by sorting and number- ing the books of account papers, documents and vouchers of the Estate, and entering the same, with the other assets, and effects thereof, in detail, in a book for the same, which shall be called " The Inventory of the Estate of ," and which shall be filed by the said Assignee or person in pos- session, on the return day of the said Writ, as required by the said Act ; and the said Inventory shall be open for examination or extract at all times during office hours, gratis. 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, requiring, by such notice, all Creditors of the Insolvent to pro- duce before him, within two months from the date thereof, LOWER CANADIAN ORDERS. 113 ants and specially iff of the vice shall the said lis service place and I also the oceeding. Is or other A.M. and Durt upon en Court, k's Office, is may be shall be a licial and t shall be Inventory attached 5ry of the I be made possession i number- mchers of ssets, and hich shall ...," and on in pos- :ed by the amination itary deed hall give said Act, snt to pro* e thereof, their claims, specifying the security therefor, with the vouchers in support of such claims, as required by such notice. 23. The Clerk shall prepare for the .Judge or Court, a list of matters pending or ready and fixed for proceeding on each day, following therein the order of procedure prescribed by the 4th Rule, which list shall be 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 in such cases, for examina- tion or extract therefrom, gratis. And in like manner the min tea of meetings of Creditors, and the registers of proceed- ings, together with claims made and the documents in pos- session of the Assignee, shall also be accessible to Creditors and others in interest in the case, at convenient hours, daily, to be appointed by the said Assignee. 25. The Assignee shall, from time to time, under order of date, and within twenty-four hours after the proceedings had before him, file in the said Clerk's Office, a clear copy under his signature as such Assignee, of sucli proceedings, together with a copy of the several Newspapers and Official Gazette, in which he shall have caused notices of such proceedings to be -advertised, which said copy and newspapers shall form part of the record of the particular case 26. The Assignee shall, on the third juridical day of each month, after he shall have commenced to deposit Es«tale moneys in a Bank or Bank Agency, as required by the said Act, file of record in the case an account o( the Estate, shew- ing the balance thereof in his hands, or under his control, made up to the last day of the preceding month. And no moneys so deposited, shall be wi^'vlrvvn without a special order of the Court, entered in the dc ^ ;t of proceedings in the case, or upon a dividend sheet prepared and notified, as re- quired by the said Act, or unless otherwise ordered by the Creditors, under the powers conferred upon them by the said Act. 27. Every want of compliance with these rules in proceed- ings in Insolvency shall be ^ peine de nullity, and the prof ced- ing in which the irregularity has occurred if objected to, on the ground of such want of compliance, shall be nulji and have no efTect. b f f hyi the othe moi any the shal and ^?' and tors, the ( assi^ vide tf A] Jud§ atT< . . In Inso] - GENERAL ORDER 09 DECEMBER, 1864, AND TARIFF OF FEES For Insolifeticy proceedings in Upper Canada^ promulgated by the Judges of the Superior Courts of Common Law, and of the Court of Chancery y under 27 and 28 Victoria^ c. 17. ORDER. Whereas it is provi'^'^d by the Insolvent Act of 1864, amongst other things, that the Judges of the Superior Courts of Com- mon Law, and of the Court of Chancery in Upper Canada, or any of them of whom the Chief Justice of Upper Canada, or the Chancellor, or the Chief Justice of the Common Pleas, shall be one, shall have power to fix and settle the costs, fees, and charges which shall be had, taken, or paid, in all cases and proceedings under the said act, by or to attorneys, solici- tors, counsel, officers of Courts, whether for the officers or for the Crown, as a lee for the fee fund, or otherwise, sheriffs, assignees, or other persons, whom it may be necessary to pro- vide for; And whereas the Chief Justice of Upper Canada, and the Judges of the Superior Courts of Common Law and Equity, at Toronto, have assumed the duty so imposed upon them ; In pursuance, therefore, of the power so contained in the Insolvent Act of 1864, the following table of costs has been 116 IN80LTXNCY ACT. framed by the Chief Justice and Judges, and it is hereby de- clared, determined, and adjudged, that all and singular the costs and fees mentioned in the said table, and no other or greater, shall be allowed on taxation, or taken or received, by any counsel or attorney, sheriff or officer, respectively, for any services rendered under the said Insolvent Act of 1864. Toronto, December 1864. TARIFF. Fees to tolicitor or attomei/, as between party and party, and also as between solicitor and client : InBtructions for voluntary assignment by debtor, or for compul- sory liquidation, or for petition, where the statute expressly requires a petition, or for bjjief, where matter is required to be argued by counsel, or is authorized by the judge to b« argued by counsel, or for deeds, declarations, or proceedings on appeal |2 00 Drawing and engrossing petitions, deeds, affidavits, notices, adver- vertisements, declarations, and all other necessary documents or papers when not otherwise expressly provided for, per folio •f 100 words, or under 20 Making other copies when required , 10 When more than five copies are required of any notice or other paper, five only to be charged for, unless the notice or paper ii printed, and in that case printer's bill to be allowed in lieu of copies, drawing schedule, list, or notice of liabilities, per folio, when the number of creditors therein does not exceed twenty.. 20 When the number of creditors therein exceeds twenty, then for every folio of 100 words over twenty 10 Every common affidavit of service of papers, including attendance. 60 Every common attendance 60 Every special attendance on judge 2 00 For every hour after the first 1 00 To be increased by the judge in his discretion. Every special attendance at meetings of creditors, or before assi- gnee, acting as arbitrator 1 00 Fee on writ of attachment against estate and effects of insolvent, including attendance 2 00 TARIFF OF FEEM. 117 •eby de- ular the other or ived, by , for any and also }Ul- Bsly >be ;ued on |2 00 ver- ents folio ... 20 .... 10 ther er ii uof olio, itj.. 20 ifor ... 10 ace. 50 ... 60 ... a 00 ... 1 00 assi- 1 00 ent, 2 00 Fees on rule of Court or order of judge %1 00 Fee on Bub ad test., including attendances 1 00 Fee on sub duces tecum, including attendance 1 25 And, if above 4 folios, then for each additional folio, over such 4 folios 10 Fee on every other writ 1 00 Every necessary letter 50 Costs of preparing claim of creditors, and procuring same to be sworn to, and allowed at meeting of creditors, in ordinary cases, where no dispute 1 00 Costs of solicitor of petitioning creditor, for examining claims filed up to appointment of assignee, for each claim so examined ... 50 Costs of assignee's solicitor for examining each claim required by assignee to be examined 50 Preparing for publication advertisements required by the statute, including copies and all attendances in relation thereto 1 00 Preparing, engrossing, and procuring execution of bonds or other instruments of security 2 00 Mileage for the distance actually and necessarily travelled — per mUe 10 Bill of Costs, engrossing, including copy for taxation, per folio 20 Copy for the opposite party 50 Taxation of Costs 50 No allowance to be made for unnecessary documents or papers, or for unneoeasary matter in necessary documents or papers, or for unnecessary length •f proceedings of any kind. In case of any proceedings not pro- Tided for by this tariff, the charges to be the same, as for like proceedings, at in the tariffs of the Superior Courts. COUirSEL. Fee on arguments, examinations, and advising proceedings, to be allowed and fixed by the judge as shall appear to him proper under the circumstaneei of the case. FEE FUND. Every warrant issued afainst estate and effects of insolvent debtors. $1 00 Every other warrant or writ 30 Every summary rule, order, or fiat c 30 Every meeting of creditors before judge 60 If more than an hour 1 00 If more than one on same day, |2.00, to be apportioned amongst all 118 INSOLTBNCy ACT. Every affidavit administered before judge 20 Every certificate of proceedings by judge of County Court for transmission to a Superior Court or a judge thereof 50 Evbry bankrupts certificate 1 00 Every taxation of costs 15 FEES TO CLERK. Every Writ, or Rule, or Order 60 Filing every affadavit or proceeding 10 Swearing affidavit 20 Copies of all proceedings of which copy bespoken or required, per folio of 100 words 10 Every certificate 30 Taxing costs 60 Taxing costs and giving allocatur 65 For every sittting under commission, per day 1 00 If more than one on same day, $2.00 to be apportioned amongst all. Fee for keeping record of proceedings in each case 1 00 For any list of debtors proved at first meeting, (if made.) 60 For any list of debtors at second meeting 60 Any search 20 A general search relating to one bankruptcy, or the bankruptcy of one person or firm 50 SHERIFF. Same as on oorretponding proceedings in Superior Courts. WITNESSES. Same as in Superior Courts. If ■ v'3 20 lov • •• 50 • • • 1 00 • •• 15 • • • 50 >• t* 10 • • • • 20 per • • • • 10 • • • • 30 « • • • 50 • • • • 65 • • t • 1 00 install. • • • • 1 00 t • •• 50 • • • • 050 • • • • 20 rof 060 GENERAL INDEX. Absoondino Debtoe-— commits an act of bankruptoy, 80. Accounts — {See Official Assiqnkb.) to be kept by assignee, 66. books of, to be produced by iosolvent, 22. Act of 1864— (iSec Statutes.) object of, 21. persons to whom flame applies, 21. whether infant can take benefit of, 21. whether married woman can take benefit of, 21, 22. whether lunatic can take benefit of, 22. whether person who has previously assigned for benefit of creditors can, 24. how far retrospective, VS, 74. Act of BANKaupror— what is. {See Oompc^ sort Liquidation, Absoonoinq Dxbtob, Debtor, Order, Court of Chancbrt, Assionmbnt.) concerted between creditor and debtor, will not support a fiat, 3*7. bat another creditor may avail himself of such an act, 87. and bankrupt might do such act at suggestion of friend, 87. difference in English law on this point, 37. proceedings for compulsory liqaidation must commence within three months from, 87. abscondiug debtor commits a continuous, 87. remarks upon wording of act in defining an act of bankruptcy, 87, 88. might be oocasiDued by entire omission of prescribed proceedings, 33. Adjournment— effect of, of examination of insolvent, sine die, 79. Adyertiseugnt— for meeting of creditors. {See Appendix of Forms), 96. to state object of meeting, 22. how to be published, 79. of sheriff on attachment, how published, 40. of creditors to appoint official assignee, how published. (See Crkditors), 42. judge to call meeting of creditors by, when petition to suspend proceedings presented by insolvent, 48. by official assignee on appointment, 45. of sale of doubtful debts by assignee, 49, 60. 120 Q£KERAL INDEX. mi:- 111' wy Adtebtissment— Oontinued.) of sale of lands by assignee, SO, 61. of meeting of creditors to appoint new assignee, 58, 64. by assignee on petitioning for discharge, 66. of preparation of dividend sheet, 69. of petition of insolvent for balance, 61. by assignee of deposit of deed of composition and disoiharge with him, 12, by assignee calling meeting of creditors for ezaminatioo of insolvent, 79, SO. Affidavit — before isone of writ of attachment, 88, 89. every, required under this act may be made by party interested or his agent, 86* for writ of attachment need not allege trading since Ist September, 1864, 86. Agent— right of creditor against, in case of bankruptcy of, 83, 84. may make affidavit to support claim, 86. Aluiont — wife may not prove for arrears of, 84. Allowance— to insolvent, 68. to insolvent for attending meetings of creditors, 81. to witnei^ies, 81. of appeal, 64, 66. Aminomknt — rules in force respecting, in place where proceedings carried on, to apply, 87. Annulling Discharob— petition to annul discharge may be made by credi- tor, 76, 76. power ot CGUi't or judge to grant petition. 76, 77. Appeal — procedure in, on award of assignee, 6?, 64. to be by summary petition, 68. notice to b- given. 68. to judges of Superior Courts from judge, 64. to single judge in U. 0. may be referred to full court, 64. notice of, requiaite, 64, 65. procedure in case of, on appeal from decision of juilgp, 65. if to a court, petition for, to be pres'^uted in one of first four days of term, 68. if to a judge, within ten days after security civcn, 66. assignee t • tile in court all documents and evidence, 65. if petition be not presented in due time, record of to be returned to assig* nee, 65, 66. and responilent may get oost<9, 66. oosta of, to be in discretion of court or judge, 66. in L. 0. order of judge on, to be subject to review, 66. from order of judge granting or refusing discharge, 76, 77, 78. Appointment— (S'm Official Assignee.) primdjaeie evidence of, 92, 98. AseBTS— Whether insoiyent need shew, 23. GENERAL INDEX. 121 him, 12. ent, 19, 80. 8 agent, 86* r, 1864, 86. rried on, to I bj oredi- f term, 68. id to assig* A88IGNXB— (5«« OFriOTAL AsSIOmCB.) in oases of voluntary assignment, may be appointed by creditors, 24. if none appointed by creditors, insolvent may select one, 24, 25. also, if assignee chosen refuses to act, 24. requisites of such assignee, 24, 25. irregularity in proceedings antecedent to appointment of, shall not yitiate such appointment, 25. effect of assignee permitting bankrupt to trade before discharge, 28. meaning of term assignee, 91, 92. when appointed by creditors may be resident out of county where insolvent has his place of business, 24. AssiONMBNT — to bc made by insolvent, 24. form of, in cases of voluntary assingment, 25, 26, 97. to be in duplicate, 25, 26. list of creditors to be appended. 25, 26. no particular description need b« ioseued, 25, 26. insdivent to execute counterpart, 26. effect of same in case of partnership. {See Exkoutiok, Spboutio Purposi Tbustbb, Bequest), 26, 27, 28. in U. 0. duplicate thereof, and In L 0. authentic copy, with list of creditors, to be deposited in office of court 28. if insolvent has real estate, may be registered, 28, 29. {See Rboistbation.) difficulties in registering. ( See Rboistbation.) executed in L. 0. or 0. 0., how registered in the other section of the pro vincR, 29, 80. certified copies of, to coQstitate prima /aet« proof of execution, and contents of original, 80. fraudu'eiit. {See Dbbtob.) debtor making a general . except under act, commits an act of bankruptcy, 82, 83. duplicate deed of, where to be filed, 28. made before Ist September, 1864, not act of bankruptcy, 88, 88. ATT\offMENT— (*Sf«# Forms, '^bbrifp, Ouardian.) pr<>< eedings to obtain, in L. C)., 88. « " " U. 0, 88, 89, 40. to be addressed to the sheriff, 89. declaration to accompany writ, 89. how writ executed, 40. Award — {See Assionbb, Juoax, Disputx, Appeal.) BALAVQm—{See Imtbrbst.) assignee to file certificate of bank deposit of, on petitioniog for discharge^ 65. of estate to be paid to insolvent oa petition, 61. 12Z GENERAL INDEX. Bank— moneys to be deposited in, by assignee, 47. oertificate of deposit in, to be produced by assignee, 66. Bankbb — is a trader within meaning of this act, 86. Bamkbuptot — English laws respecting, not introduced into XT. C, 19, 8S, 84. aots done in contemplation of, what are, 68. effects of, npon fraudulent preference, 68. court of, in England, 91 Bequkst— to bankrupt, passes to assignees, 27. BoABD OF Tbadi — {See Official Assignee.) to appoint official assignees, 26, 40, 41, 46, 46. and fix security to be given, 46, 46. official assignees appointed by, at Toronto, Hamilton, London, Kingston and Ottawa, 46, 46 ; security reqired by, at Toronto, 46, 46. Bond— given by assignee, 46, 47, 48. Books of Aocount— to be produced by insolyent, 22. insolvent not keeping subsequent to Act, ground of objection by creditors to confirmation of discharge, 74, 76. BaiLDiNO AND Ju&T FuND^-percentagc for, in Lower Oanada, 98. Oanada Gazette— 'notice of meetings of creditors to be advertised in, 81, 82. Obbtified OopiBS~who proper person to give, 29. Olaims — (^See Official Assignee.) contingent or conditional, provision for payment of, 66. Judge may order award of value to be made, 56, how creditors rank for payment of, 66. in case of partnership, rank first upon estate by which debts they represent were contracted, 68. provision for creditors who have not filed, 59. form of, 8S, 106. to specify what security held, and value, if required, 88. to be attested under oath, 83. who may make affidavit to support, 86. secured by hypothhque and privilege in L. 0., procedure on. 84. Olebks and Sebvants— special provisions as to payment of salary or wages, 69. misconduct of, may deprive of this privilege, 69. Collatebal Sboubitt — provision respecting, 67. not affected by discharge of insolvent, 74. Commission— to examine witnesses. {See Oon. Stats. IT. C, oaf. 82, seos. 19, 20, 21), 86, 86, practice upon, 86, 86. OoMPANT — (5m Tbadino Oompanies.) provisions of Act respecting traders apply to uninoorporated trading eom* puiee,86, 91. OOMPOSI nun whc dee( nnr< com opp duti does certi how proo powi obta deec COMPULSC in w proci credi credi whes proc< andc aotr< insoh i costs Condition npon OONFIBMA of dii Of di of dii of dii C0NS»"'>- OoNSIOBBi Wltr 6BNSRAL INDEX. 123 38» 84. ingstoQ and creditors to 81, 83. \y r«preBent TTAgei, S9. SBOB. 19, 20, radiog 6om< OoxrosnioN and Disoharob— (5(M Disohabob.) number of creditors required to render a deed of binding on remair* der, 11. (See Table of Majcbihes, :*.08.) vrhen may be made, and e£feot of, 71, 72. deed of, under sec. 9, sa. 1, probably not retrospectiTC, 72. nnreasonable provision in deed of, will render invalid against non-assenting creditors, 71, 72. complete cestio bonorum not necessary to validity of deed of, 71, 72. opposition to, when to be made, 72, 7S. duty ^f assignee upon deed being deposited with bim, 72. does not affect persons secondarily liable for debt of insolvent, 74. certain debts exempted from effect of, without express consent of creditor, 74. how confirmed, 74, 76. proceedings to annul, if confirmation not demanded, 75, 76. power of court or judge to confirm or annul. obtained by fraud, 79. deed of, when can best be made, 71, 72. CoMFULsoBT LIQUIDATION — (See Attaohmbnt, Sheriff, G i /oiah, Petition, Tba- DEB, Official Assigneb ) in what cases estate of insolvent debtor liable to. {See Absoondino Debtor, Debfob, Bankluftot, Act of), 80-46. proceedings for, in case of trader, 33-87. creditors may require to assign. {See Demand.) creditors making vexatious demand, how met by debtor. {See Oosts), 88, 84,86, when may be enforced, 86, 87. proceedings must be taken in three months from act of bankruptcy, 87. and debtor must not have made a voluntary assignmerit under Act, 87. act relied on to sustam must have been committed daring existence of the debt of creditor applying, 87. insolvent may be examined on application to set aside attachment In proceed* ings for, 80. costs to compel, first charge upon estate, 88. OoNDiTioN— upon what order of discharge may be granted, 78. upon fulfilments of orders become absolute. 78 OoNFiRMATiON^of discharge, proceedings to obtain, 74, 76. of discharge, on what grounds creditors may oppose, 76. of discharge, effect of, 78, 74. of discharge, examination of insolvent on application for, 80. of discharge, costs of obtaining to be a charge upon estate, 88. 0oN8*»'v— of creditors to discharge of insolvent, effect of, 78. Oonsidbbahon— contracts withont^ made by insolvent debtor firaudulent, 66. ecmtraot for, Bsay be let aside, if oreditori iojored pr obftraoted, 67. 124 GENERAL INDEX. OoNBiDiEATiON— >( Continued,) of judgment debt may be enquired into on ground of fraud, 84. OoNTRAOT— subsequent to attachment, bankrupt may maintain action on, 21, 28. what shall be deemed fraudulent, 66. for consideration may be set aside in certain oases, 66, 67. • made by iosolvent with intent to delay creditors, void, 67, 68. even if made in consideration of marriage, 67, 68. creditor cannot prore, under parol, if required by Statute of Frauds to be in writiug. 84. of marriage of trader in L. C. to be registered, 89, 90. CONVBTANCB— (5«« OOMTRAOT.) .what shall be deemed fraudulent, 66. made for consideration may be set aside in certain oases, 66, 67. OoSTS — {See CaEDiToas.) iu case of counter petition by insolvent, 86, 86. creditor making vexatious demand may be ordered to pay treble, 36, 86. none allowed in suits against insolvent after due notice, 69. but all taxable costs up to that time shall be added, 69. of award in case of dispute to be settled by offiuial assignee, 60. of contestation of any claim, creditors may order to be paid out of estate, 61 • security for to be given on appeal from decision of judge, 64, 66. of appeal not prosecuted, how awarded, 66, 66. of appeal to be in discretion of court, 66, 66. of appeal from order refusing certificate, 76, 77. to compel oom.pulsory liquidation, first charge upon estate, 88. of obtaining confirmation of discharge or discharge, and of winding up, to be paid out of estate, 88. taxation of in Lower Canada, 88. OouirTKRpABTS— of dccd of assignment, insolvent may be required to execute at request of assignee, 26, 26. OouET— (j8«« Judoe.) assignee subject to summary jurisdiction of, 68. assignee removed subject to summary jurisdiction of, until he has accounted, 68. appeal to single judge in U. 0. may be referred to full court, 64. appeal to, petitiou to be presented In first four days of term, 66. power of to confirm or annul discharge, 74, 76, 76, 77. has not discretionary power to refuse or suspend order of discharge if bank« rupt not guilty of fraud, 78, 79. forgery of seal of. {See Oo5. Stats. Oanada, cap. 80.), 86. in L. 0. word '* cou' t *' means Superior Court, 90, 91. in U. C. County Court unless otherwise expressed, 90, 91. of Baokrnptcy io Eogluid, 91. }n on, 27, 28. f Frauds to ba le, 86, 86. 0. It of estate, 61* 16. OINERAL INDXX. 125 diog ap, to be to execute at has accounted, i. 5. barge if bank- CoUBT OF Ohamobrt— debtor refusing to comply with order of, for payment of money commits an act of bankruptcy, 82. may appoint new trustee ou bankruptcy of former, 48. or uay appoint receiver, 48. wife may not prove for arrears of alimony payable under order of, 84. OouTUME BE Paris — rights of vendor under, restricted, 89. Oreditobs— (5m Assignee, Notios, Costs.) meeting of, in case of voluntary assignment. (See Volumtart Assioniibnt, 21-26.) may name assignee. {See Yoluntart Assionmbnt), 24. votes of in choosing assignee. {See Table of Majorities), 24. disputes of, how settled, 26. list of, to be annexed to deed of assignment, 26, 26. efifect of creditors permitting bankrupt to trade before discharge, 28. what is deemed remainfog abroad with intention to delay demand by to assign. {See Oompulsobt Liquidation), 80. vexatious demand by, proceedings to set aside. {See Costs), 86, 86. meeting of, to appoint official assignee, 41. notice of such meeting to be given in Canada OazeUe^ 42. number present not material, 42. if only one present may elect himself, 42. petition by debtor to suspend proceedings to be submitted to meeting of, 42. meeting of, to be called by judge respecting such petition, 42. to record their opinion thereon, 42, 48. question to be decided thereat, and how. {See Tablb of Majoritiis, 108), 48. meetings of, when to be called by official assignee, 47. to make rules for guidance of official assignee, 47. official assignee to attend meetings of, 47. assignee to give security to, 47, 48. may prosecute a suit, assignee declining to, 49. but must indemnify assignee lu^ainst costs, 49. may remove assignee and appoint another after period at which dividends may be declared, 64. may object to amount of remuneration to assignee, 64. accounts of assignee to be constantly accessible to, 66. holding security to specify nature and amount of, 67. how amount which creditors held to represent in voting ascertained, 67. how rank for payment of claims, 68. may allot allowance to insolvent, 68. assignee to reserve dividend upon claims of creditors who have not filed 69, 60. but they most file their claims before last dividend, 69, 60. ditputM betWMn, uiignee to examine and settle, 60. 126 GSMTEBAL INDKX. Oeiditorb— ((7w to signMeed 16. ejudge, 79, 80. affairs gener- rent, 83, 84. d in dividend 1 by Statute of charge, 74. 63. creditor, 40; 6XNBBAL INDXX. W DiATB— of aMignee, proceeiiinge on, 68, 64. assignee's estate vests in new assignee, 65. of insolvent shall not affect proceedings, 87, 88. effect of, in case of joint tenancy, before actual appointment of assignee, 87, 88. DiBT^remarks upon nature of, of creditor who makes affidavit to procure attach- ment. {See Attaohmbmt, 89, 40.) such debt must not be bared by statute of limitations, and must not be a claim for damages unless fixed by judgment, 39, 40. doubtful to be ( M by assignee. {See Pueohaber, 49.) what, may rank for payment out of insolvent's estate, and how, 66. transfer of, due by insolvent void in certain cases, 69, 70. Debtor — {See Insolvent.) concealed or absconding, estate of, liable to compulsory liquidation, 30. secreting estate, liable to compulsory liquidation, 30* fraudulently assigning or removing estate of, liable to compulsory liquida* tion, 81. Intention of, to defraud, defeat, or delay, creditors, 81. proeuring property to be taken in execution, estate of, liable to compulsory liquidation, 31, 32. seizure of goods of, requisite, 32. imprisoned in civil action, estate of, liabie to compulsory liquidation, 32. or if, being imprisoned, has escaped, 32. Refusing to appear on order to examine, estate of, liable to compulsory liquidation, 32. On refusing to obey to orders to pay money, 32. On an order of the Court of Chancery to pay money, 32. or if he makes a general assigument except under act, 32. counter petition by,*in case of vexatious demand, (iSee CostS| Demamd,) 86,86, proceedings to obtain attachment ngninst, ia L. C, 38.- proceeiiings to obtain attachment against, in XT. C, 88, 89. {See SHBRiir, Guardian, Attachment). petition by, to set aside attachment. {See Petition, 41.) petition by, to suspend proceedings, 42. to produce with such petition schedule under oath of his affairs, 42. discharge of. {See Disgharqe.) fraudulent contracts and conveyances by, 66, 67. all acts, dec. to defeat or delay creditors by, void. (See Marriagb, 66, 67.) sale, (be, by insolvent debtor with view to give undue preference, 68. fradulent payments by insolvent, 68, 69. transfer of debt due by, void in certain cases, 69, 70. effect of creditors conienting to diaobarge of, 73, 74. p 128 OBNBRAL INDEX. (5 1 • 'V' DiBTOE— ( Oontintud.) dtbU du« by, in oertain capaeitiM require dipreei coDffent to diiebarge. (S«« AsBioNn, Tutor, Ourator, Trustcs, Ezrgutor, Public Offiokr.) burden of proof to ihew discharge completely effected upon, 1*1, when may apply for discharge, 77, 78. when discharge will be granted to. {800 Marriage, Siductiom, 78, 79.) Examination of, 79, 80, 81. to attend all meetings of creditors and answer questions, 81. heirs or legal representatires may continue proceedings in case of death of 87. DiCLAiATiON— to accompany writ, 40. formal parts should be used in, 40 ; answered by Petition, not by plea, 40. DeKD— ^5m AiSIONMBNT, OoMFOSITION AND DlSOHARQK, OrKOITORS). DxMANO— form of creditors to assign in case of compulsory liquidation, 88, 99. Tezatious. {See Oreditors, Costs), 86. difference between law in England and TT. 0. in case of vexatious demand, 86. Deposit— >if made to giro undue preference, fraudulent, 68. when presumed to be made in contemplation of bankruptcy, 68. DiSOHAROE— (SCm OOMPOamON AND DiSOBAROl.) of assignee, how obtained, 65. of insolTcnt, proportion of creditors required to grant, 68. when insolrent asay apply for, 77. all orders of same effect when condition fulfilled or time of suspension ex- pired, 78, 79. it is not ground for refusing, that it is applied for to get rid of damages for seduction, 79. damages and costs baring been given against ao insolvent for breach of promise is not a ground for refusing, 79. obtained by fraud to be void, 79. obtained by giving creditors valuable consideration for consent to, void, 79* insolvent may be examined on application for, 80. costs of obtaining to be a charge upon estate, 88. all proporty to which insolvent becomes entitled up to time of, passes to assignee, 28. does not operate to free from debts incurred by insolvent after voluntary assignment or issue of writ, 74. Dispute— in cases of assignee to examine and make award, 60. Dividends— ^«0 Official Absiqnee. assignee to file certificate ot bank deposit of unclaimec\ on petitioning for discharge, 65. pariod at which declared, 58, 64. bow prepared by assignee, 66. bow reierved upon amouat of contiogent or conditional olaiosi 66, 57. •nrSBAL INOXX. It9 dii«barge. 3 OtriOKB.) 78, 19.) f death of 87. J plea, 40. m, 88, 99. } demand, 86. (■pension ex- damagei for >r breach of !; to, void, 79* of, paesei to er voluntary etitioniug for ])lTn>iMM«( Oontinwd) to be reaerved by aiiignee upon claims of creditors who hare not filed pre- vioui to last dividend, 69, 60. pending appeal assignee to reservti a dividend equal to that olalmed, ^), unclaimed, how dealt with, 61. DiviOKMD Sbkit— preparation of, 57. allowance to insolvent io be inserf^d in, 68. •alary and wages of clerks and servants by special privilege to be collocated in, 69. creditor refusing to make supplementary oath not to be collocated, 84. DoODMEifTs— on appeal assignee to file in court all evidence and, 66. public or official, how proved. {See Con. Stat. Can. Cap. 80,) 86. when may be impounded when tendered in evidence. {Set Coir. Stat. Caw, Cap. 80,) 86. pupucati— c5«e assignmemt.) Emplotieb— (jSTm Clsrk.) EMnoBSKB — not discharged by discharge of insolvent, 74. EscAPK— from imprisonment, or from gaol limits, an act of bankruptcy, 82. EvxDKMOi— certified copies of assignment, primA facie, proof of execution and con* tents of original, 80. intent to delay creditors, evidenced by debtor's own acts and admissions, 81. creditor being delayed by act of debtor, not of itself evidence of intention to delay, 81. what is presimiptive evidence of intention, 81. what circumstances will rebut such presumption, 81. what is, of being a trader within meaning of act. {See Tradbb), 88, 84, 86. copies of, and extracts from minutes of creditors meetings signed by assignee, prima faeie evidence of proceedings at same, 47. bill of sale^tma/aet0 evidence of purchase of doubtful debt, 60, 108. on appeal assignee to file in court all papers and evidence, 68, 64. authentic copy of judgment confirming discharge to be evidence thereof, 77. claim how proved, 88, 84, 86. foreign judgments, and how proved. (in suit for, against assignee, bankrupt not a necessary party, 49. FoBifs— appended to act to be used, viz : — 87. advertisement for creditors in osae of voluntary assignment, 95. schedule of liabilities in do, 96. assignment, 97. demand by creditors upon trader, 99. affidavit of creditor to procure attachment, 99. writ of attachment, 100. advertisement of attachment by sheriff, 101. advertisement of appointment by official assignee, 102. bill of sale to purchaser of doubtful debt, 108. notice of preparation of dividend sheet, 104. notice to obtain confirmation of discharge, 106. notice to annul disoharsre, 105. notice of application for discharge by debtor, 106 1 claim of creditors, 106. in other pleadiogB, &o., parties may use there own language, 87. Fraud — what sha'! be pointed| 65. r.60. 5. int, may be 86. ap. 80), 86. 86. i imprison- LANDLOaD— rights of, against estate of insolvent. 56. Language — parties may use their ovrn, in cases where forms are not supplied by act, 87. Lbabe— unexpired, of insolvent to be sold if rent less than value of premises, 62. or creditor may decide whether to retain, or not, 62. Lessob— right of, when lease cancelled by creditors, 62, 63. Ranks upon estate for damages, as an ordinary creditor, 98. License — to trade, not necessary to constitute a trader within meaning of act, (8fi« Tradkb.) LowEB Canada — act applies to traders only, 21. In L. 0. authentic copy of deed of assignment, (in case of voluntary assign^ ment) to be deposited, 28. assignment executed in, how registered. 28, 29. deed executed in U. 6. form to leave force in L. C, and vice versa, 29. proceedings for issue of writ of attachment in L. 0., (See FoshsX S^* effect of sole of real estate by assignee in, 61, {See Shebitf.) duty of assignee selling real estate in, 52, 58. to whom appeal from decision of judge to be made in, 64. certain frauds by traders in, defined, and how punished, 70. how notice of meetings, (fee, advertised in, 79, 80. claims secured by hypothkque or privilege in, procedure on, 84, 85. sheriff or bailiff in, may make return of bcrvioe under his oath of office, 86. records of XT. C , how proved in. (See Con. Stat. Can., Cap. 80), 86. rules of practice in, 88. tariffof fees in, 88. taxation of costs in, 88. rights of unpaid vendor under Coutume de Parte restricted, 89. marriage contracts of traders to be registered, 89, 90. judgments against traders en separation de biene, to be rendered onlv on certain conditions, (See Cbbditors), 90. meaning of phrase, "before notaries," 90, 91. meaning of word '* judge " in, 90, 91. meaning of word *' court" in, 90, 91. LuNATiO"- whether ean take benefit of act, 22. can become bankrupt, as to acts done in lucid interval, 22. tain eondi- 0D» may be MAJo&rriBS— table of, 108. Makeb— of note having paid same, may not prove against cor payment, of deed of 86. 86. 0, 41. . OffZOXAL ASSIQNBIS— ((7onftnu0<£) who may be appointed, 42. solicitor who is fo couduot proceedings may be appointed by, 42. upon appointmeot of guardiaa, to deliver estate and effects, 44. effect of appointment of, 44. what securities to be given by. {See Board of Trade, Sbouritt, Crkoitors.) to call meetings of creditors, when, 43. to act subject to rules made by creditors, 47. to deposit all monies in bank, 4*7. to attend and take minutes, of deed of assignment. (See YoLnirrAST AastONiCEirr), 28, 29. no subsequent registration of deed executed by insolvent of any effect, 28, 29. if assignment executed in L. C. or U. 0. how registered in the other section of the province, 29, SO. list of creditors need not be registered, 29. difficulties in registration of assignment, 29. of order appointing official assignee, effeot of, 46. of marriage contracts of traders in L. C, 89, 90. effect of omitting, 89. Bbmoval — {See Official Assignee.) of assignee in consei^iience of misconduct, 68, 64. of assignee by death, procedure on, 68, 64. of asignee by creditors. {See Creditors), 64, BEMUNERATION^iSM CREDrTORS.) of assignee not to exceed five per cent., 64, Bent — ^remedies of landlord for, 66. Beview— of judge's order on appeal in L. 0., 66. court of, 66. Bulbs of Praotiob— by whom to be made in XT. 0., 88, 89. by whom to be made in L. C, 88. Sale— To give creditor undue preference, fraudulent, 68. when presumed to be made in contemplation of bankruptcy. {See Asbiqnee), 68, 69. SoHEDULB — of creditors to be produced by insolvent at first meetinf^ 22. of estate to be produced by insolvent with petition for suspension of proceed* ings, 42, 48. regiater«d« {8m GENERAL INDEX. 139 Skoubitt<*To b« givec *~^y official assignees on appoiotment, 45, 4Q. to be giyen to ereditors, 47, 48. creditor holding, to specify nature and amount of, in his claim, 57. creditor holding, to put a speoifled value on, 88. power of official assignee in dealing with creditor holding, 57, to be giyen in case of appeal from decision of judge, 65. given in oonnideration of fraudulent payment by insolvent debtor, to be re- stored to creditor before return of such payment is demanded, 69. if none held to be stated so in claim, 88. to be given to Board of Trade in Toronto, 45, 46. Seduotion — it is not ground to refuse a discharge that it is applied for to get rid of damages in an action of, 79. Servants — {See Clekks.) SsavroE— of, order, rulei^ and warrants valid in any part of Provi'i^ce, 86. " ** ** to be made in manner in for«e where served, 86, 87. Set Ofe — fraudulent, -effect of, 69, 70. SfiEairr — attachments to be directed to, 40. to give notice of attachment by advertisement. {See Fobms, 40. 101). to seise all estate and effects of bankruptcy, 40. may appoint messenger for that purpose, 40. to make return unaer oath, 40. to place property in hands of guardian. (See Quardian,) 40, 41. sale of real estate in U.O. and L.C. by assignee has same effect as sale by> 61, 52. fees to be rece'^^d by. (Sse Tariff of Fees, page 116.) Smuogler— may become bankrupt, 86. SouoiTOR— >who is to condoct proceedings may be appointed by official assignee* Specific Purpose— property held by assignee for, does not pass under assign" ment, 26. Statdtbs— Oon. Stat U. C. c. 78 21,27 28 Vict, c 26 1,27 Con. Stat. U. 0. c. 19, s. 161 27 «« " 0.22,8.254 -•• 27 " '• C89.8.18 29 «« " o.89,s.l9 29 82Geo.IILcl 19,83,34 Oon. Stat. U. 0. c. 26 ^^ " " c.22,s267 ^^ " « 0.22,8.268 5^ 10 and 11 Vict. o. 10, (Con. Stat. Can. c. 69) 88 Oon. Stat. 0»a cap. 79 ^*' ®'' 140 OBNXRAL IirBXZ* Hi .,) 4 4 (A Statutis— ( Oon tinutd.) Cod. Stat. Cnn. cap. 80 86, 87 «< •' oap.82,t.l9 85 7 Vict. c. 10 n, 18 8 Vict. 0.48 ...18,19 14andl5 Viot. c. 116 19 24 and 26 Vict. o. 134 19 Stat of Pboorbdings — effect of, discussed, 48, 44. Subpoena — insolvent may be examined on, 80. service and effect of, in one part of Province when iisned in the other, 86, 8 Sdrett — who pays debt of insolvent shall stand in place of original creditor, 66 is not discharged by discharge of insolvent's principal, '74. Suspension op Froceeoinos— effect of decision of creditors not to proceed dii cussed, 43, 44. Tabli or Majorities, 108. Tabipf op Fees — for ioiolvenoy proceedings in Upper Oanada, 115. Taxation— judge to tax costs, 88. of costs in L. 0., 88. Title— of Act, 93. Tbadbbs — in Lower Oanada, Act of 1864 applies only to, 21. in Upper Oanada, to all perPu^3 whether traders or not, 21. in Upper Oanada, ceasing to meet his commercial liabilities commits an aet| of bankruptcy and may be required to assign. {See Gohpulsoet Liqui dation), 83, 84, 36, 86. vhat constitutes a, 83, 84, 86. actual buying or selling or intent to sell necessary, 84. but a single act is not sufficient, intention must be shewn, 84. trade may be legal or illegal, and license to trade need not hare bo«Q takeoj out, 34, 86. provisions of Act respecting, apply to unincorporated trading oompanies or partnerships, 35. marriage contracts of, in L. 0., to be registered| 89. marriage contracts of, effect of not so registering, 89. judgments against, en eeparation de biene in L. 0. to be rendered only on cer* tain conditions. (See Obbditors), 90. Teadino Oohpanies— (fifM Tbadees.) Tbanspeb — in contemplation of insolvency void, 68. of debt due by insolvent., when void, 69, 70. Teustbe — ^property held by insolvent as, does not pass under assignment, 48. power of Court of Chancery to appoint new trastet io case of baokroptoy of, 48. 'C8TI 0f( del itob- idub sub| PER in deel effe to^ app me< not rec( exatk LUNTJ del sue del fon scb del nol re( ass ▼o If ne ox di as ei di OJBVSRAIi IVDIZ. 141 86,87 85 IT, 18 . .. ...18, 10 19 19 'A*- ffSTiB— (C0nilitieB commits an act ?M COMPULSOET LiQOT m, 84. d not have been taken trading oompanies or rendered only on cer* assignment, 48. case of baokroptoy VDUB PaEVBEXNCB— sale, pledge, deposit or transfer to give, fraudulent, 68. subject of may be recovered back by assignee, 68. •PEE Oanada— in U. 0., act applies to all persons, 21. in U. 0., duplicate of deed of assignment (in cases of voluntary assignment) to be deposited, 28. deed executed in U. 0. to ha^ e force in L. 0. and vice veraa^ 29, 80. eflfeot of sale of real estate by assignee in (See Shkriff), SI, 62. to whom appeal from decision of judge to be made in, 63. appeal to single judge in U. 0. may be referred to full court, 64. meetings of creditors how to be advertised in 81, 82. notarial acts admissible in, {See Oon. Stat. Can., Gap. 80.), 86, 87. records of, how proved in, (See Con. Stat. Can., Cap. 80 ), 86. judges to make rules of practice and tariflf of fees in, 88, 89. BXATious DEiiAso^See Demand.) OLUMTABT AssiQNMENTS — proceedings in case of, 22, 23, 24, 26, 26, 27, 28, 29, 80. debtor to call a meeting of his creditors, 22. such meeting to be by advertisement, 22^ 96. debtor to exhibit statements of his affairs and assets at such meeting, 22. form of schedule particularly required, 96. schedule to be sworn to by debtor, 2?. debtor to produce his books, (fee, at such meeting, 22. notice of meeting sent by post, to be accompanied with a list of creditors of insolvent, 24. requisites nf such list, 24. assignee may be appointed by creditors at such meeting, 24. votes of creditors in appointing assignee, 25. if creditors do not appoint, or assignee refuses to act, insolvent may aisign to creditor, 24, 25. necessary qualifications of such creditor, 24, 26. or may assign to official assignee, 24, 26. disputes of creditors at meeting, how settled, 25. assignment, form of deed of, (See Assionmbnt, Ooumteefaet.), 97. effect of assignment^ (See Assignment.), 26, 27, 28, duplicate in U. 0., and authentio copy in L. 0. to be deposited, 28. registration of, (S€$ AasiairKiVT, Rial Estati.) \ 142 OBMSRAL IMDIX. P'A VoiUMTAET ABHiQVfMXunB^Continned.) azeouiion of, (<8w IJrpxa Canada.) whether irisolyent need she^i^ assets, 28, 24, 25. debtor miiy make, after demand in prooeedings for compulsory liquidation, 86, 8V. YOTXS— (fifM OlIDITOBS.) Waqw— (S«« OLrRKS.) WABBAirr — service of, 86. "WaERANTT— (flW DlBTS.) Wrnssb — proyisions respecting conduct of, 81. allowance to, 81. commissions to examine, 86, 86. certain sections of Oon. Stat. Oan,, Gap. 79. to applj, 86, 86. not bound to be sworn until expenses paid, 81. Wbit of Attaobmknt— (jSm Oompolsort Liquidation.) ■'5 ! t u t TORONTO: PRQr^^D BT LOTILL A OIBIOV, TOKOI BTBIBT. ry liquidation, IT.