IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 ut lU 12.2 114 lii^ V v: '•^ '^ CIHM/ICJIH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions Institut Canadian da microraproductions historiques 1980 Technical Notes / Notes techniques The Institute has attempted to obtain the best original copy available for filming. Physical features of this copy which may alter any of the images in the reproduction are checked below. D Coloured covers/ Couvertures de couleur L'Institut a microfilm* le meilleur exemplaire qu'il lui a 6tS possible de se procurer. Certains difauts susceptibles de nuire h la quality de la reproduction sont notAs ci-dessous. 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The last recorded frame on each microfiche shall contain the symbol — ► (meaning CONTINUED"), or the symbol V (meaning "END"), whichever applies. Las images suivantes ont *t4 reproduites avec le plus grand soin, compte tenu de la condition at de la nettet* de I'exemplaire film*, et en conformity avec les conditions du contrat de filmage. Un des symboles suivants apparaftra sur la der- nlAre image de cheque microfiche, selon le cas: le symbole — »* signifie "A SUIVRE". le symbole y signifie "FIN". The original copy was borrowed from, and filmed with, the kind consent of the following institution: National Library of Canada L'exemplaire film* f ut reproduit grAce h la gAnArositA de I'Atablissement prAteur suivant : Bibiiothique nationale du Canada Maps or plates too large to be entirely included in one exposure are filmed beginning in the upper lAft hand corner, left to right and top to bottom, as many frames as required. The following diagrams illustrate the method: Les cartes ou les planches trop grandes pour Atre reproduites en un seul clich6 sont filmAes A partir de I'angle supArieure gauche, de gauche A droite et de haut en bas, en prenant le nombre d'images nAcessaire. Le diagramme suivant illustre la mAthode : 1 2 3 1 " 1 ': \ 3 4 5 6 THS INSOLVENT ACT OF 1875. WITH AM INTRODUCTORY CHAPTER ; NOTES, FORMS. TARIFFS OF ONTARIO, QUEBEC, AND NEW BRUNSWICK; • AND A FULL INDEX BT JAMES D. EDGAR and F. H. CHRYSLER, Barriatera-at-Law. TORONTO: OOPP, CLARK k Co., PRINTERS, COLBORNE STREBT. 1875. E4^ Entered according to Act of the Parliament of Canada, in the year one thousand eicht hundred and seventy-five, by Copp, Clark & Co., Toronto, Ontario, in the Office of the Minister of Agriculture. PREFACE. An cxi)erience of eleven years has rondoi-cd the mercantile ami legal classes familiar with the operation of an insolvency law ; while the decisions of Canadian Courts since 1804 liavo also thrown much light upon both its principles and jiractice. No former annotations of Canadian Insolvent Acts have yet approached the conipleteneaii which the authors claim for this volume. The very latest English cases, all the Ontario, Quel>ec, New Brunswick and Nova Scotia reported decisions, and some American ones, have l)ecn cited where applicable. In Ontario the profession are still without rules to regu- late the practice or pro%'ide forms in insolvency, and for that reason particular attention has been dniwn to the course of procedure as laid down in the Statute, and Practical Forms have been given in addition to those provided in its Ap|)endlx. The List of Official Assignees for the whole of Canada, as appointe further cxaminAtion, 67. Kcfuaal to answer, kc, to \te contempt >*( Court, 67> Kxaniination of wifu or husband of insolvent, 67. DIVISION V. AnIIONKIW and TvsPRCTORH. Api>(>intnicnt Oiiicial Assignee, 68. Ontario, 68. Quelxic, 68. District, what to l)c, (J8. Security given hy Ofiicial Assignee, 68. ilucr>vcry luulci (Jourt, (*8. Additional sucurity, 6i). KosiiouHibility, &u., of Otlicial Assignee, 60. Apixtintniunt of, and puvurity given Ity, Assignee, not Official, 61). What Creditors only shall vote at luvetings, 70. Claims not to be divided for voting, 70. Transfer of entute by Otiicial Assignee, 72. Notice of Aiipdintnient, 7*2. Assignee not to act as agent of a Creditor, '^72. Kzception, 72. Place for meetings, 72. Inspectors, their api)ointment, kc, by Creditors, 72. Remuneration of Iu8]>ector8 ; they and Assignee not to purchase Insol- vent's property, 7.3. Disposal of CHtate of Insolvent, 73. Objection to proposed motle of disposal of estate, 73. Hearing by Court or Judge, 74. Powers of Insolvent vested in Assignee, 74. Proviso : as to sale of entire r '.tate, 74. Assignee to sue for debts due Insolvent, kc, 74. If Insolvent sues for the same after assignment or attachment, 75. Partnership dissolved by insolvency of a partner, 76. Register to be kept by Official Assignee, 77. Assignee to open separate account with each estate, 77. Deposit of Register by non-oifieial Assignee, 78. Assignees under this or any former Act must obtain discharge, and pay over balance to Receiver-General, with sworn account, 78. Assigne: to be paid only by commission on amount realized, 78. And actual necessary disbursements, 78. As to employing counsel, kc, 78. Remuneration of superseded Assignee, 79. ''■ Assignee to call meetings on refjuisition, 79. Deposit and withdrawal of moneys of estate in Bank, 79. Interest on deposits, 79. ■TK0P81S or ACT. r«Q«Uy ftir nontUatributioii nf toch int«re«i, 79. ,AiMi^i<*e t4> pr«Mluc« iMUik UhjIu at aK-«tiii^, kc, 79. PuniHhmont for false «atr7 in sttcli pus book, 80. Estate, in whom vested on death of Assignee, 80. Finnl aoroant and ilischarge of Assignee, 80. Oltligatittn of Assignee, kc, '^. Powt-r nf Jutlge, 80. Penalty in case of neglect to present such petition, 81 . Provisions of section 47, to apply to Asaignevs under former Acfj, 81. X ^^^•. DIVISION VL CoiirORITin!* AMD DiaCHAROB. Meeting to consider composition and discharge, how and when called, 81. Notice of meeting, 82. Diitchargc may l»c approved or not, 82. Proct-cdings when consent is obtainc«l, 82. Certificate and what it shall contain, 82. Further certificate, 83. Probable ratio of dividend to be stated, 83. Application for continuation of discharge, 83. Nt>tice, 84. Notice how given, 84. Op|K)8ition allowed, 84. Confirmation of discharge, 84. Affidavit by Insolvent to be produced, 84. When In8ol-'«!nt shall not be entitled to confinnation of discharge, 86. Proper iMwks must have been kept, 85. Proviso, as to certain provinces. 85. Proviso, aa to fraud and frandulent preferenoea, 85. Powers of Court or Judge, 86. In certain cases character of discharge may be modified, 86. May be suspended or made second class. 87. If dividend is leas than 33 per cent, discharge may be refasad or suf' pcnded, 88. Deed of composition maj be conditional, 88. » If condition be not fullillad, 8&. Rank of creditors thereafter, 89. r Deed of reconveyance by Assignee to Insolvent, 93. Its effect, 93. « If deed of composition be otmtestad, 93. ,,,:% Form of deed, 93. x Effect of confirmaiion of discharge — ^what claims affected, 94. Holders of negotiable paper unknown to Insolvent, 94. Discharge not to affect secondary liabilities, 95. Discharge under this Act not to apply to curtain debti or liabilitiet, 96. INSOLVENT ACT OF 1875. But creditors may accept a divit'end, 96. Application to Court or Judge for discharge if not obtained from credi- tors, 96, 97. Proceedings on such application and powers of the Court or Judge, 97. Suspension or classification of second class, 98. Discharge, &c., obtained by fraud to be void, 98. DIVISION VII. 8AI.B OT Debts. Sale of debts the collection of which would be too onerous, 98. Proviso, 99. Creditor maybe authorized to take any special proceeding at his owit risk, 99. Proviso, 99. Rights of purchasers of debts due Insolvent, 99. No warranty, 99. DIVISION VIII. LSASBS. Lease of properly more valuable than rent to be sold ; on what condi* tions, 100. Other casea of lease, how dealt with, 100. Lessor claiming damages for termination of the lease, 101. How damages to be estimated, 101. Preferential claim of landlord limited in the several Provinces, 101. DIVISION IX. Sals of Heal Estate. Sale of real estate of Insolvent, 102. In Quebec, 102. Proviso : postponement of sale by consent of Creditors, &c., 103. Effects of sales of real estate, 103. Form of deed and terms, 104. Sales in Quebec may be subject to certain charges, 104. Folle Enchere, 104. Certificate of Registrar, 105. *■ Code cf Civil Procedure to apply, 105. Order x.f distribi'tion, 105. Assignee's commission, 105. Baknce, 105. ' '\;^ * ' In Quebec privileged Creditors may require sale of property subject to' their privileged clums, 105. STNOPSia OP ACT. XI DIVISION X. t)lVIDBNI>a. Accounts, statements and dividends by Assignee, 106. What claims shall rank on the estate, 106. Case of contingent claims provided for, 109. Arbitration. If award be rejected, 109. Rank and privilege of Creditors, 110. Proviso as to Creditors holding security, 1 10. Seizure in execution after appointment of Assignee : its effects, 110. Proviso as to C(»st8, 111. As to Creditors holding security for their claims, 112. Security not matured and Insolvent only secondarily liable, 113. If the security is on real estate or shipping, 114. Proceedings on filing of a secured claim, 115. Rank of several items of a Creditor's claim, 1 15. Oath of a Creditor as to non-payment of his claim, 115. Insolvent owing debts as a partner, 1 15. Allowance to Insolvent, how made, 116. As to costs in suits against Insolvent after notice under this Act, 117. Privilege of clerks, &c., for wages, 117. They may be employed, 117. Notice of dividend sheet and payment, 118. Contestation of claims by Assignee under Inspector's instnictions, 118. Claims not filed, how dealt with, 118. Claims on dividends objected to, how determined, 119, Hearing and decision thereon, 119. Judgment Executory, 119. Creditors or Inspectors may order contestation of claims, &c., 120. If there be any property of Insolvent under seizure at time of assigmuent or attachment, proceedings, 120. Unclaimed dividends, how dealt with, 121. Balance of estate (if any) to be paid over to Insolvent, 12K Notice pending delay, 122. Notices of meetings, &.c., how given, 122. Cases unprovided for, 122. How questions shall be decided at meeting, 122. What matters may be voted upon at first meeting of Creditors, 123. Form and proof of claims, 123. Affidavits, before whom sworn, 124. Surrender of security by Creditor and effect thereof, 125. Set-off, how allowed, 125. Service of papers under this Act, 126. Commission for examiusktion of witnesses, 126. ■> .j Subpoenas to witnesses, 126. Service of process, Ac, 127. Disobedience of writs and process, how punishable, 127. !l Xll INSOLVENT ACT OF 1875. Proof of default, 127. Expenses must be tendered to person summoned as witness, &c., 128. Forms under this Act, 128. Foreign discharges not to bar debts contracted in Canada, 128. As to amendments in proceedings under this Act, 129. Provision in case of death of Insolvent, 129. Representatives, how far liable, 129. Costs, on what property and in what order chargeable, 129. As to assets chargeable with mortgages, &c., 130. Provisions as to letters addressed to Insolvent by post, 130. Disqualification of Judge, 131. What Judge to act in such case, 131. Prothonotary to preside (in Quebec) in absence of Judge, 131. Rules of practice and tariff of fees in Province of Quebec, how to be made, 131, 132. And in other Provinces, 132. Present rules to remain until altered, 133. Assignee to be subject to summary jurisdiction of Court, 133. Obedience, how enforced, 133. Registration of marriage contracts of traders in Quebec, 134. DIVISION XI. Imprisonment for Debt. Insolvent in jail or on the limits, may apply to Judge for discharge, 134. Proceedings thereon, 134. Examinations of Insolvent and witnesses, 135. Judge may discharge him if the examination be satisfactory, 135. Proviso, 135, Minutes of examination to be kept, 135. Postponement in certain cases, 135. As to any subsequent proceedings, 136. Proviso, 136. I DIVISION XII. Appxai- Appeal from any order of the Judge in Province of Quebec, 137> In other Provinces, 137. Appeal to be prosecuted within eight days, 138. ' If appellant does not proceed, 138. Reservation of amount of dividend contested, 139. SYNOPSIS OP ACT. XUl DIVISION XIII. Fkiuds and Fkaopulbnt Preferences. OratuitouB contracts within three months of Insolvency presumed fraudu- lent, 139. Certain other contracts voidable, 141. Contracts made with intent to defraud Creditors to be void, 141. Fraudulent preferential sales, &c., to be void, 143. Presumption of fraud, 143. Certain payments of debtor void, 148. Proviso, 148. Transfer of certain debts by Insolvent void, 149. Purchasing goods on credit by persons knowing themselves unable to pay, to be fraud, and how punishable, 150. Proviso, 150. Fraud must be proved, 152. Award of Imprisonment, 152. Assignees to be deemed agents for certain purposes, 32-33 V., c. 21, 152. Punishment of Assignee making wilful misstatements, 152. Certain acts by Insolvent to be misdemeanors, 152. Not fully discovering or not delivering property, books, papers, Ac, 153. Removing property, 153. Not denouncing false claims, 153. False schedule, 153. Withholding books, &c., 153. Palsif j'Ing books, 154. Stating fictitious losses, 154. Disposing of goods not paid for, 154. . Offences against this Act how tried, 154. Creditors taking consideration for granting discharge, 154. Penalty, 155. Punishment of Insolvent receiving money, &c., and not handing the same to Assignee, 155. , Imprisonment for disobeying order, 155. Certain documents to be evidence, 155. DIVISION XIV. Building and Jury Fund. Contribution to Building and Jury Fund in Quebec, 155. Governor in Council has certain powers, 156. ;,'\ . i DIVISION XV. P«ocEDURK IN Case of Incorporated Compaioui. Provisions for Incorporated Companies, 156. Preliminary notice, 156. Inquiry by Assignee, 156. xiv INSOLVENT ACT OF 1876. Company to exhibit books, &c., 156. Refusal to be contempt of Court, IIC. After servi-e of order. Company to hold property in trust, 15T. Meeting of creditors may be called, 157. Resolutions thereat, 157. To be submitted to Judge, 157. Powers of Judge in relation thereto, 157. Order may be made by Judge, 158. Receiver may be appointed, 158. To render account, 158. Further meeting within six months, 158. Farther delay may be granted, 158. If demands are unsatisfied, estate of Company may be wound up, 158, 159. Jcdge may modify order, 159. OflScers of company may be examined, 159. Remuneration of Assignee and Receiver, 159. Company may make assignment pending delay, 169. DIVISION XVI. UsyKBAL Provisions. Commencement of foregoing provisions, 159. » Insolvent Acts of 1864 and 18' 59 and Acts amending them, Acts of B. C. and P. E. I. continued to ist Sept. and then repealed, saving certain proceedings and matters, 160. Proviso, 161. Procedure under this Act to apply and supersede that under said Acts, 161. Securities to remain valid, 161. Inconsistent Acts repealed, 161. Act to apply to all the Provinces of Canada, 161. Certain Provisions of 32-33 Vic, c. 16, to apply to Manitoba until lit September, 1875, 161. Court and Judge, what to mean, 161. Short titie, 161. LIST OF CASES. ■A. PAOE. Abbott V. Burbage 147 Acraman, Ex p 124 Adam, Ex p 39 Adams v. McCall 145 Adcook, Walter v 91 Addis V. Knight 116 Ainsworth, In re, Ex p. Baylcy. . 151 Alderson v. Temple 149 Aldred, Constable v 46 Aldridge v. Ireland 43 Alexander, Kxp 71, 72 Alexander v. Vaughan 38 Allan V. Clarkson 141,145 Allan V. Garratt 91 Allan V. Kilbee 116 Allen V. Bonnett 46, 143, 147 Allen V. Cannon 38 Alsop, Ex p 48 Alton V. Harrison 143, 146 Anderson, Doddesworth v 38 Anderson, Re 87 Andrews, Doe v 100 Andrews v. Palmer 76 Angle, Ex p 71 Anon 37, 39, 76 Ansell, Day, Re 38 Apothecaries Co. v. Greenough . . 34 Arbouin v. Hanbury 46 Archer, Mayo v 38 Archibald v. Haldan, 69, 113, 133,147 Armitage v. Baker 92 Amiston, Oldis v 92 Ash, In re 46 Ashton, Re 61 Atkinson, Ex p 35, 37, 39 Atkinson v. Brindell 146 Austen, Waugh v 76 Austin V. Gordon 95 Ayton, Reed v 46 B. Badcock, Ex p 71 Bage, Ex p 72 Bagshaw, Ex p 36 Bs^ell V, Hamilton .*.... 40 Bailey, Gumming v 44 Bailey, Rossi v. 91 Bailey, Ex p 45, 146 Bailey v. Bowcn 91 Bailey v. Dillon 95 Baillie v. (Jrant 40, 52 Baker, Armitage v 92 Baker, Homer 61 Baker, Leonard v 95 Baker, Palmer v 95 Baker, In re 113, 116 Baker v. Painter 92 Balden v. Peel 92 Baldwin v. Peterman 121 Ball, Neatev 61 Ball, Stewart V 39 Bamford, Ex p 40, 44 Bamford v. Bacon 48, 60 Bank of Australia v. Flower 113 Bank of Australia v. Harris, 141, 147 Bank British North America, Roe V 61 Bank Montreal v. McWhirter . . 141 Bank of New Brunswick v. Inspectors 120 Bannatyne v. Leader 46 Banner v. Johnson 108 Banon, Ex p., In re Edwards . . 133 Barber, Hearmann v 38 Barber, Warner v 44 Barclay, Hidson v 92 Barker, Wood v 142 Barkworth, Marshall v 48 Barnard, Rankin v 142 Barned's Banking Co., In re 108 Baron, Bamford v 48, 50 Barrie, Campbell v . 141, 148 Bartholomew v. Sherwood 38 Bartlett, Re 36 Barton, Strachan v 146 Bartsch, Kitchen v 60 BascOio, Ex p 73 Bass V. Gilbert 108 Bass, Hobson v 108 Batchelor v. Lawrence 108 Bate, Ex p 39 Bates, Ex p 71 Bandeman, Ex p 116 Baxter, McLaren v 91 Bayley, Ex p., In re Ainsworth . 161 XVI INSOLVENT ACT OF 1876. PAOF. Beard, In ro 55 Beaumont, lie 108 Bccher v. Blackburn 57 Beck V. Beverley 95 Beckham v. Drake 60 Bedfonl, Comptun v 45 Beer, Exp 107 Be^R, Hingham t Gl Bcjean, In re 137 Belcher v. Gunmow 47 BeU, Ex p 36 Bell, Fisher v 92 Bell, Hamilton v 61 Bell, Newland v 37 Bell V. Simpson 45, 146 Beiton V. Hodges 39 Bentield v. Solomons 76 Bcnham v. Broadhurst 91 Benthall, Rutty v 90 Ben tley V. Griffin 39 Bentley, Exp 113 Bemey v. Davidson 46 Bemey v. Vyner . 46 Berry, Scott v 91 Bertbelot, In re 67 Besford v. Saunders 95 Bessette, In re 44 Bettely v. Stainsby 107 Bevan, Doe v 100 Beverly, Beck v 95 Beyer, Kreitchman v 76 Bibbins v. Manti' , 76 Bibby, Lari)ent v 92 Bice V. Dickson 126 Bills V. Smith 146 Binks v. Binks 76 Birbeck, Eyre v 51 Birch, Ex p 36 Birch, Heany v 37 Birch V. Sharland 95 Bird V. Sedgwick 38 Bird, Wright V 38 Birdwood v. Raphael 125 Birkett, Ex p 43 Birka v. Clarke 91 Bishop V. Church 126 Britlestone v. Cook 146 Blackburn, Ex p 149 Blackburn, Becher v 57 Blackmore, Ex p 37 Blake, Revell v 64 Blakely, Ordnance Co., In re . . 114 Blencowe, Ex p 54 Blumberg v. Ro»e 91 Borland, Ex p 146 Borland, Ex p.. Re Cherry 148 Bolnois v. Mann 91 Bolton V. Sowerby 35, 39 PAOB. Bend V. Weston 91 Bonnett, Allen v 46, 143, 147 ilookei, Van Casteel v 4fi Bob wall, Re, Kx p. Glass 87 Botsford, In re 72, 103 Bourne, Kx p 51 Bf)urne, Fitzpatrick v 91 l^nitts, Gibson v 146> liowen, Bai ley V 91 Bowker v, . ?urdakin 46 Bowman, Jackson v 143 Bowman, Randall v 112 Boyd, Ex p 47 Boydel v. Champneys 95 Bradshaw, Ex p 34 Bradshaw, Richardson v 34 Braginton, Ex p.. In re Maude. . 116 Braham, Brix v 95 Brand, Whitfield v 61 Brandon, Milliken v 38 Bray, (iibson v 61 Brett, Re 67 Brett, Ex p.. In re Howe 114 Brewer v. Dew 60 Bridgman's Trust, In re 59 Brindell, Atkinson v 146 Bristowe, In re 54 Brix v. Braham 95 Broadhurst, Benhara v 91 Brook, Mclnnes v 50, 51 Brook, Exp 110 Brooke, Ex p 50 Brooke v. Pearson 142 Brooks V. Jennings 91 Brooks, Kerakooae v 89 Brown, Evans v 60 Brown, Griffith v 102 Brown v. Kimpton 145 Brown, Rose v 112 Browne, Patten v 39 Brundrett, Morgan v 146 Brundrit, Ex p., In re Caldwell . 151 Bryson v. Wylie 61 Buchanan v. Smith 89 Buckland v. Papillon 60, 100 Budd, Dodge &, In re 113 Buist, Fair &, Re Ill Bulmer v. Hunter 143 Bunnell, Dickenson v 95 Bunnell, Walker v 60 Bunny, Ex p 44 Burbage, Abbott v 147 Burdakin, Bowker v 46 Burdiss, Carr v 147 Burgess, Ex p 35, 36, 39, 54 Burgess, Tappenden v 48- Burke v •McWhirter 136- Bums V. Steel 56 LIST OP CAf^il. XTII 10 50 142 91 89 60 102 145 112 39 146 151 61 89 100 113 111 143 95 60 44 147 46 147 J9,54 48. IBS 5ft PAGE. 'Buni^iilo, South StaflTonUhire l;;iilway i 'o. v 10!> Burniu^liL'H v. ElUm }MJ Ilurrowoa, v. De lMa<(uiere 110 ButKr V. Holison. . 64 Buttortill, Kx I) 71 Buvolot V. Mill* 91 Buxton, Luniax v. 149 Cnil.ll, Maco v 142 Ca.lLll, Vyiicr v 40 Cal.hvtn,i:.x i» 124 C'al.hvtll, \W, Kx p. Bruntlrit . . 151 Oalthrop, III re 50, .V Caiuenm v. Kager 7<» ('aiiicroii v. Smith 54 Cuiaerdii v. llollaml iW (y'ainiiliuU, llv JoJin 70 Cauiplicll V. Barrie 141, 148 Oaniphcll, Joy V Gl Cannon v. Duneer 37, liS Cannan v. Smith 45 Cannan, Sniitli v 45, 146 Cannan v. Wood 146 Cannon, Allan v 38 Carmichael, Wilkins v 126 Came, Ex p., In re Whitfonl .. 116 Can- V. Bunliss 147 Canington, Kx p 39 Cartle, Kx p 39 Carter v. iXan 35, 37, 39 Carter, Nimes v 148 Gary v. Dawson 110 Case, In re, Kx p. Napier 118 Castricjue, Ilderton v 91 Catholie Publishing Co., Re ... . 156 Caudy, Ex p 71 Cazenove, (ioldsmid v 113 Chattey, lu re 1 13, 1 16 Chalmers, Davidson v 60 Chalmers, Perry v 60 Chambers, Midland BankingCo.v. 113 Chambers, Williams v 60 Champneys, Boydel v 95 Chantler, Newton v 45 Chapman, (Iraham v 45, 146 Chapman v. Lamphire 35 Chapman v. Tanner 112 Chappie V. Cooj>er 39 Charlemont, Watson v 98 Charles, Ex p 108 Cheeseborough, Re 149 Chenowet v. Hay 43 Cherry, Re, Ex p. Borland 148 Cherry, Ex p., In re Matthews, 139,148 Chesterfield CoUiery Co. ▼. Hawkins 91 B riiippondale v. Tomlinson 60 Chisholin, Wilnon v 75 Church, Bishop v 126 Churcher v. ( 'ousins 148 ChnrihtT v. .lohnnon 149 City Bmk v. Kucky 108 City Bank v. Smith 147 Claphanj, Pozer v 34 Claridgo, Whilniore v 45, 147 Clark V. \Vi.-.dom 35 Clarke, Birks v 91 Clarke, Ward v 43 Clarkson, Allen v 141, 145 Clarkson, Harniau v 36 Cleghorn, In re 120 Ckland, Ex p 36, 37, 38 Cleniow V. Converse 146 Clurm, Re, Ex ji. Morrison.. 98, 136 Cobb V. Symonds 38 ( "ockburn. Ex p 91 Colin, Ex p 44 Cole, In re. Ex p. Mutton 62 Cole, Hollan.l v 100 Cole, King v 39 Coleman, Oriental Bank v 45 Coleuure, Ex p 45, 142, 147 Coles V. Turner 91 Colkett V. Freeman 43 CoUver V. Shaw 65 Collyer, I^x p 117 Collins, Crawshay v 116 Colt V. NetU-rville 38 Columbine v. Penhall 34, 143 Commercial Unitwi Insurance Co., Smith v 60 Compton v. Bedford 45 Constable, Aldred v 46 Converse, Clemow v 146 Converse v. Michie Ill Conway v. Ntwh 43 ('ook, Butteslone v 146 Cook v. Pritchard 146 Cooper, Re 37 Coojjer, Chappie v 39 Cooper, Nicholson v 34 C/Opeland, Ex p 71 CoiHiland V. Stevens 100 Corbert, McWhirter v 133 Corby, Wilson v 75 Coslett, Ex p 71 Cotter v. Mason 60, 61 Cotton V. James 43 Couch, Crosby v 149 Cousins, Churcher v 148 Cowen, In re 90 Cox, Porter v 76 Crabb, Ex p 34, 43 Crabtree, Ex p., Re Taylor .... 87 XVlll INSOTAENT ACT OP mii. PAOB. CriuinT, Smith v 44 CriiiikHliaw, llowlnnil ft, Ko .... 7<> Cnivoii, Kx p., Hi: ( 'ravin 147 (iriiviii, \U\ Kx p. TiMiipuHt. . 4G, 147 Criivcn V. K(Iiij<»M(Im(>ii 144} tir iwrtliav V. ( '<»llins llti Crispin, Kx p .*W Cr<>inl>it> V. .lackHou 133 CroniWfU, Kx p 37 Crosbie v. Tooko 10(» Crosby v. Couch 14!) Cross, Kx i> <>1 Crossloy v. Klwortliy 141, 143 Crowthi'r, Howard v GO Crutwell, H niton v 45, 14G Cuiinning v. Hailey 44 (/uniniing v. Ikoebtiuk 6<) Cunii!, O'Brien v 39 Curtis V. .lucubs 146 D. Daniel, Re 61 Dart, Kx p 38 Danl)erry, Kx p 34, 37 Dangleisli v. Tennent 98 Davidson, Ke 139 Davidson, Herney v 46 Davidson v. ('halniers 60 Davidson v. Napier 116 Davies, In re, I'^x p. Williams . . 112 Davies, (Mord v 110 Davis, Kx p 109 Davis V. Snell 73 Davis V. Williams 13:^ Davison, Kx p 71 Dawson, Cary v 110 Deacon, Kx p., In re Deacon. ... 90 Dean. Carter v 35, 37, 39 De B.'.tciuiere, Bnnowes v 110 Dechapeaurouge, Kx p 71 Demartos, Worsely v 48 Denew, Kx p 39 Denew, Carman v 37, 38 Denny v. Hancock 139 Dering, Ex p 35 DeSilva, Smith v 116 Dew, Brewer v 60 Dowdney, Ex p 40, 43, 54 Dickenson v. Bunnell 95 Dicker, Payne v 76 Dickson, Bice v 126 Dillon, Bailey v 95 Disputed Adjudication, Re . . 45, 48 Dobaon, Ex p 151 Doddesworth v. Anderson 38 Dodds, Hood v 98, 136, 139 Dodge & Budd, In re 113 Doe V. Andrews 100 I PAOR. Doo V. Revnn UK) •* V. Keeling ',VJ " V. Lawri'iice 40 " V. iN.w.U |(H» " V. Smith 100 Dornford, Kx p 151 Dmglas, K.-, Kx p. HnowbaW .. 40 Douglas, Htnry v 112 I tnnelas, Mai'kay v 143 Dowlinir, r ml v 35, 36 Down, Fowler v (JO Downes, Kx p 114 Doylf, Kx p 71 I)rake, Ik-ckham v ()0 Dredge v. Watson 83, 93 Drew, Fonnan v 45 Dufaur, Re 58 Dufrene, Ex p 47, 52 Duniius, Kx p 61 Dumble v. White 69 Dummett, McLean v 39 Duncan, Rivas v 35 Duncan v. Smart 34 Dunn v. Dunn 112 Dutton v. Morrison 43, 48 Dutton, Tomlin v 90 E. Eager, Cameron v 76 Eat Kair \ Itiiist, lUs HI Fairii.l.l, Wriglit v (JO Faliiiniitli V. IVuroiH) 10/ Famll V. uNiill ».') Fehlinrin. Marks v 148 Fuiitnii, Trufiniui v 0.') Ffsiiiiiu'VtT, Kiliuson v 14t» Finch, Kx p IKi Fiinlljiy, N'an Waj^iuT v 11*2 Finniiigliaiii v. Maud 108 FiaiitT, Kx !»., lit re Axh 4(> FisliLT V. IWII yj Fit/.|iatrii-k v. llourue 91 Fleiiiiiiu, I'.'tt IS V 31> FK'trlur, llarinaii v 46 Flint. Kty v 120 Fluok V. Joufs 14.') Fli.wtr, Kx p 108 Flower, llidfe &, I'ank of Austra- liusia V 11.1 Fo«.r.l, Kx p 4.') Foote, WimmU V 5>2 For.lv. Olilii 142 Foriiiaii V. Wren 05 Fowler V. Down 00 Fowkr V. I'iwlget 43 Fox V. Hanlmry 1 1(! Fox, \Vel>U V CO Foxley, Kxp 147 Franks, Kx p .39 Fraser, In re 1)8 Fraser v. licvy 40 Freein.in, Colkett v 4.3 Freeman v. I'eniiugton 70 Freuniiui v. I'ojhj 46, 143 Frere, Ex p 59 G. Gale V. Halfiinight .37 Oallimore, Kx p 36, 37 Gann v. .Tohnson 139 Gardiner, Kx p 36, .39 Garland, Ex p 40 Garland. Lester v 142 Garratt & Co., In re 91, 151 Garratt, Allan v 91 Gass, Re 146 General Roiling Stock Co., Ro . . 108 Gibbins v. Phillips 46, 145 Gibba, Ex p 36, 38 Gibson & Short, Re 34 Gibson v. Bray 61 Gibson v. King 36 Gibson v. Thompson 37 Gibson v. Tring 47 rxnr. Gilimm, (Jrcsty V Ul (iil^on V. ItouttH 146 (iiddin^'H V. Penning 91 (Jill»crt, a-ut-s V 1U8 (iiilM-rt V. Lewis 7fl (Jirling. Weils v 54 (iithy, Tr.ii^hton v 89 < ilatiti !i KUiott, Kx p 87 ( lien, Kx p 90 (Jlyn, Kdwards V 146 (ilyn, I'lit.uid V 140 (ioid.mnid v. C.ixenovo 113 (lolloj^hy V. (iraliam 98 (ioildricke V. Taylor 146 (Idoilmtn, Miiekav v 95 (Juodtitlo V. N..rth 108 Goodwin V. Noble 100 (Jonlou, Austin V 95 Gordon v. Uos.s 113 ( iordon V. Vcuing 144 (iore V. Lloyd 47 ( ioring V. Warner 100 (loss, Robertson v 90 (touth watte Kx p. . 50 (Jrixham v. C'hapman 4n, 146 (Jraliam, Gollogliy v 98 ( Iraliain v. Mulcaster 1 16 Grant, liailey v 40, 52 (Jrant, Ingliss v 38 Grant v. Mills 112 Gr.ay, Holt &. Ue 86, 88, 150 Gr.iy V. Leckham 109 Great Western Ry. v. Mason . . 107 (Jreen, Loaii v 41 liul.Uii. Archik-ild v., m, ll.'t, \X\ HI Hale V. Small 3.'. Hiiltknight, i ;alo v .'{7 Halifax, K\ p 43 Hall. Kx p »8 Hall, Th.miiut v. . .14. 37, 58, \)% 13(1 Hall. It«-, K\ |>. K'Hku II 'J Haila^'liaii, Itniiiclliu V *Xt Hall.tt, Shar|. v 7« Haiiiiltuti, ll;t;rwi'll V 4(> Haiiiiitnii V. \W\\ (il Haiuiltoii, Lixton v 70 Hamilton. Miumhi v 102 Hiimmoiui. Kx p 37, 35> Ham|»xoii. Kx |t 117 Haiilxiiy, Arlxiuiii v 4otli.un V. Holmo 143 Hit%'inH, Exp 71 HimtihH. .Mar>h v 1>2 Hi^'limore V. MoU«»y .. 34 Hill. Kx j. KM Hill V. Nl.M»ro 137 Hintn V Wi Hollan.l V. I"..le 100 Hollin^'H, New|)«»rt V 01 1 lolliiigworth, Took« r 60 HoUoway. Re 43 Holme, Hig,L,'inlM>tham T 143 Holrovo.l.ls 98, 130, 1,?9 Hooil, Kives.-»y v 61 Hoc»per V. Smith 45 Hope, Mutual Life A«itranoe Co 156 H.)pe, T>T. 11 V 142 Hopkin.s V. Ellis 43 HopjKT V. Richmond 52 Hour V. Baker , . 61 House, Haselgrove r 89 Houstim, Exp, 108 Howard V. Crowther 60 Howanl V. Jemmeit 60 Howe, In re, Ex p. Brett 114 Hughes, Nireb v 35, 3!> Hume, Me< Iregor v 148 Hunt, Ex p 43 Hunt V. Mortimer 145 Hunter, Ex p 107 Hunter, Bulnier t 143 Hurst, Re 114 Hutchinson, Meyera ▼ 138 Hulton V. CratweU 45, 146 LIMT OP CABK8. XXt I. rAQi- Ililfrton V. r.ixtri'iue 91 lltUit-.i. V. .I.w.ll UI lUiiiKwortli. 'riioriitoii v 'M InxliHH V. < iniiit liH liiiiiiiii, Itc 87 Irflim.l, AMri.!t:e v 43 iHaiicM V. < irtvu 91 J. Jackiiian V. Mitrlu-ll .... •Iiicksuii V. Itowiiian .liukHiiii, K;i!u V V •IttckHiMi, ( 'ruiiiltie v Jacdii, Whitcuiiiit V Jat'olis. ( 'tirtiji V .laeolismi v. l.;viiilK-rt . . . . •JaiiU'H, ( 'iirtuii V Jaiui'.Huii V. Kirr •Farvis, SuiiiuiLnivtt v Jny, Wiilir V JeiniiKit, Howard v Joilllillu;4, ilrnokd V Jewell, llili-rtoii V JohiiMon V. Knivntiin JnhiiM'iii V. < >sriit<>ii J«t|iiiHi)ii V. Sjiiller .lolm V. Skatte , Johii.sdii, Kx i> , Johnson, Itiuiner v , Joliusoii, (Jaiin V Joliiisoii V. Kf.HiiiiiK'ytT . Johnson, Chuixhor v. ... Johnson, Kx \> Johnstone, Kx p Jonts V. Harl)c'r Joins, Kuwi.s V Jonis, Hcgan v Jones, Fliiok v Jones V. ifanfnnl Jowett, WimhI V Joy V. Canipliell Julius, Wethercll v .. 4«, 142 14» ;c» 00 1)1 43 VMl 37 lUS UO UI UI r»o U2 107 107 108 lOS 13U |4«> 14U 1.'>I 43 147 U.-) 137 14r) (il UO Keeling, Doe v 37 Keely, In re, Kx p. Hawkc .... 4.") Kel.xon. In re. Ex p. Egyptian Trading To '. 114 Keinphill, In ro 77 Kenneilv v. Smith 35 Kent V." Ililey 143 Kent V. Thomas 110 Kent V. Tomlin.son 90 Kerakoose V. HriM>ks 89 Kerr, Jainiesou v i:i3 Kerr, lloyal Cau.-idian Bank v. . . 140 14(5, 1 18 Kevan v. Mawson 45 rtoK. Kev V. Hint !*-» Kifl..e, .Mian v 116 Kilnrr. Kx p 44. 48 Kinijiton, iWown v I4fl Kinder, NNilliaum \ . .* 76 Kinj^, ( iiltxon v 36 Kin^' V. SitnmondH 96 Kin^' V. < 'ole 39 Kin>;, Kx p., Uiehmonil Mill Hotel Co 90 Kiii« V. Smith US. |>7 Kirney v. Smith 'W Kiteh'en \. lUrts-h tiO Kitchen y. Ilawkina 90 Knijiht, .Addis v 116 Knight, ThompMon V 90 Kreitchnian v. Ileyer 76 L. Lahertouehe, I'antou v 1.18 liju'on y. Litlen 146 L:itom-, Latliaui v 91 Kami), lie 8I». IJO. 123 Kami., .Marshall V 45, I4.\ 149 Kamliert, Jaeolison V 91 Kaniphire, ( 'liapman v 35 Kaneaster v. Klee !*2 Kaiij^ley y. Ha\yke 50 Kanu'Htidle, l!e 122 Kariviere, lie 1 18 Karpent v. Hihhy 92 Larne, May y 04 Lilham y. Kafone 91 Litoueht;, Itylands v 76 Katta. Ue, Kx p. Uoyal lUnk of Australia 155 Liiyender, Kx p 37 Kayie y. Phillips 39 Law y. Skinner 45 Law, J(»ury y 91 Lawrence, lie 130 Lawrence, Batchelor v 108 Lawrence, Doe y 40 I^awrie v. .MoMahon 139 Lawsou Bros., In re 92 Layton, Manstield y .37, 38 Tioader, Hannatyne v 46 l.A;amy, Mcl!ready v 64 Lee, kx p 54 Lee V. Hart 46 Lee V. Oldinu 61 Lees y. Whitely 48 Leigh V. Pendlelmry 92 Leonard \. Baker 95 Leroche v. ^\'akeman 60 I^.ster V. f Jarland 142 I^yett, Exp 1 16 Lewis, Kamshottom v 44 XXII 1N«ULVKNT ACT Or IITA. Ijt'win. (JillMTt V "jn Ia'W ii» V. .lime* «.•.% Ih'Vv, KiiiMi !• V 44( l,i, 4H, I4.'liiiin V. I((7,'gii (W liitti t Ill II' 37 liivi'MJvy V. H(M>il 01 liloV'l, ic V 47 M..V.I, M.Cnitli V JH l.hiini C.i.il * lroii('(» 107 Ijtiiul V. (imil Ill Loltl.lN V. hlixtuil I I'.l liOiiiliiii Si I'roviiiL'inl Telegraph «'..., In 10 4iO liOiiK. I'"x p 451 l^inl MiiHt.vii V. (irillitliM .... 3r>, 34i liOWiliMiH Scttli-iiieiit, Itu UO l.»)\vi', Wliitfikir V 90 Low iiiIl'h v. 'raylnr Hi liiK'c, Moitru ^:, Ku 74 Lucky. City Hunk v KW Liiptoti, IkiunstU'ii V 14!) liUxtoii V. Iliiiiiiltoii 70 Lyiiili. .Miitli. iH V 144, I4H Lyun, Viiriiiifiton v Cu Lyouri, Uu Juli;i 3U M. Maco V. {'!i.lell 142 .VliurFiirliiiK!. l{c Gl, «W Mackay v. Itiiinsay .'{.'> Markay v. ( looilhon !).'> Maokay v. Douglas 143 Mackfii/.io, lie i>8 Macklcy v. I'attt'iidi-n UK) Maclean v. I hininiutt ... X) Maguu V. ivaiikin UK) Magciinis, i']x ]> 37 MajoribankH, Kx p 146 Mann, liolnois v 91 Mantel, l>il)l»ins V 76 Mantel, llewit v 76 Marks, In re 151 Mark.s v. Feldnian 148 Marsh v. Uiggin.s 9*2 Marsh v. Sweeny 145 Marshall, Re 36 Marshall, Exp 48 Marshall v. Hnttan 39 Marshall v. Lamb 46, 145, 149 Marshall v. Uarkworth 48 Martin v. Nightingale 38 Martin v. Willyains 4,' Martin, Tlmnias v 51 Martin v. Gribble 90 Mnrtiinruil, lleilrumi v KIH MniMtii, ( 'tmU't V (iO, 01 .MiiMoii V. Ilainiltuii lO^ Mii««iii V. <;. w. u. Co, 107 Mii»«»i«', Slinw V Sli, 93 .Mntlieiit V. Lynch 1(1. I IH MnthcH K. r. Hank v. , 4H, .'.I, 55 Mattlit Mm, sharp v 14, M MiitthewH, In It', Kx p. Chcrrv.. \-M, IIS Mnttiuw?*, Kn 11 1 46 Miunl, Kerningliain v KIH Mamie, Kx p., Ke Itrnginton. ... 116 Mai..le. Wright v 67 M.'Mir. Mx p 43 .M.uiHon, Kevaii v 45 ViJiy V. Lirne M May, .Mu( kl'iw v 43 Mayo V. .\reher 38 Mjiyor of Lyme, lleiily v 133 Mavon, Kx p 40 Meiir. Kx p 39 Meillieiit'H ( 'ase 54 Meggott V. -Mills 43 Melhourn, Kx p 77 Mellon V. NieholU 38, 75 .Men.lel, Kx p 71 Mereerv. IVterson ... 44J, 14'J, 116 Merrick v. Sherwood .'{9 Metcalfe v. Hanson 110 Mew, l!e, Kx p. I Mall 87 Meyers v. Hntcliin.son 138 Meyniot, Kx p 38 Mieliie, Con verse v Ill Middleton. Waugh v J)*-' Mi*lland Banking Co. v. (.'ham- Ikts 113 Miles, Kx J. 73 Milliken V. Brandon 38 Mills, Buvelotv 91 Mills, (irant v Il'2 Mills V. Hughes .3."), .39 Mills, Meggott V 43 Mitchell, Kx p 58 Mitchell, Jackman v I 12 Mitford V. Mitford 112 Motlatt &; Sheriff of York, Re .. 121 Molinenx, Ex p 71 Molloy, Higlnnore v 34 Montreal Ins. Co. v. MeOillivray 36 Mootly, Stewart v 45, 48 Moojen, Motion v 76 McM.re, Hill v 1.37 Moore V. Liice 54 Moreland, Ex p, 71 Morgan v. Steble 60 Morgan, In re 102 Morgan, Ex p 91, 92 un or xxai rM>K. Moru'in, rtiiln'rU v ttA Mor^MIV. lilliMlaH 100 M«)rg:iii V. |tniiiuii, Kx i» Ad MorriK. II, l»u?toii v 4n. 4S Morriaoii. Kx {i., llv L'lunu. ^a, 130 MorMf. Kx II 71 I Mortiiiifr. II nut v 14.> M«MM, III ru l>l M«>.HM, MiilUr V (Ml Motion V. Mmtjon 7*J Moiilo. Kx p 37. ay Moult. Kx p il:{ Mu< klow \ . May 4;i MiilcaMtcr. < iruliaiQ V I Itf MiilUr V. M0.H8 tiU Mullitt V. « ;m;n 61 M11II1118, Whorler v 76 Miiiiironl, Kx p 107 Miiiiifonl, Kainlall V 76 Murray, \V«MHllumsv v 46, 147 Mutrie, Kx p 44 Mutton, Kx p.. Re Cole 62 Mc. Mf Anile, < Jn.viH v 64 MfUuri'.ifs Tnistu, lie 143 Ml-< 'all, AdaniH v 14o Mf< 'riMoiiiii-ll, MrKfUzie v 7t» Mctiillivray, Montix*al Insarance Co. V 3«i MH iruth V. I.loytl 35 Mel iivgor V. Hume 148 Meiinirk, M<-U«h1 V 102 MeHeiiry, Kills v OH. 129 Mcliiiiis V. Brook 5«), '>1 MeKeiiziu V. MoDonnell 76 McUmn V. Ik*xter 91 McUan V. Mclxllan 98 McLellan, Melx-an v 98 McIa.mI v. Mc< ;uirk 102 Mclxo 1, Mc-guire v i:« MeMahoii, I^axvrie v KW Mc( >\van, Stevenson v 136 Mc(^nirc v. McLeod 133 MeiUe, In re 92 McWhirter, Bank of Montreal v. 141 MeW hitter, Burke v 133 McWhirter v C. Banh 146 MoWhir. r v. ^nnme 14.'», 147 McWhiritr v. Corbet 133 N. Napier, Ex p 117 Napier, Davidson v 116 TAOK. N«.h. Conway y 4» Ned V. Smith I '2 Nwder. Hall ■_ !>• Neirim-k^. Kx n !!.». ."w XttUrville. Colt V :«« Newall. Kx p '^^ NtwI.-in.l V. Ik 11 •**7 Ne\» mark, Ke '•** Newiihain V. SteveiiHon 1*^ New|Mirt V. lioilin|j;H |»l New t^iii V. Newton '^^ New t4>ii V. 'VriiHi 37 Newton V. < haiitler 45 New U.n V. Ontario Hank .. 140,145 New Zcalaiitl lianking I'oriMua- tion "•'^ Nieholls. Mellon v 3H, 75 Nieliolsoii V. < "iKHKr 34 XieholwMi, Wiutiel.l V |>2 NiKiitiiiKitle, Nlartin v 'M Nohlc. < mmmIw in V KW North K. Kv. <'o., Oxlailo v 108 North, i ;.H«Uitle v HW North, Parker v I<>7 Nuniitt V. ( 'arter • ■*>* Nunn. WilliaiiiH v 3H, 44 Xutt. Kx p :J7. 40 (). O'Brien v. Currie '^9 nffonl V. l>avie» HO «»!.!.„. K„r.l V 112 oMiug, l^e V 'l>>^hlen. Kx p '^8 > O'Neill. F.irrell v »5 I (hitario Bank. Newton v. .. 137, 145 i «>K«ilIy V. Il4.3e 103 Oriental liaiik v. Coleman 45 I OslMimc. Kx p '^'i i < htlxirne. Silk v I Osi-nton. .Johnson v. . ^ , Oulton Bros., In re 1*^ threns. lie i:W. 1.39, 144, ir^O Oxlaile V. North K. Hy. Co. . . . 108 ! P. I Pailpet, Fowler v 43 Painter. Baker v 02 Palmer. Antlrewa v. . . 76 Palmer v. Baker 95 Pant^^m .*. lAl>ertouche 138 P.-»l>illon. Bucklanil v GO, KKl Parker v. Norton 107 j Parker. Wells v 39 I Park\-ns, Ex p 34 ; Parr, Be 86, 138 ; Parsons, Be 37 XXIV INSOLVENT ACT OF 1875. PAnR. Palninr v. Vauf^han 37 Patten v. lirowno 39 PatteiKloii, Macklty v 100 PatttTBon, Wiiiilhain v 44 Patel V. Dowling Sry, 3ti Payne v. DicUcr 70 Payne v. Hendry 141, 147 Peaeh, Watson v 61 Pearse, Ite . 87 Pearson, Ex ]) 71 Pearson, J^rooke v 142 Pell, Balden v 92 Pendlehury, l.eigli v 92 Penbill, Colinnhine v 34, 143 i Pennell v. IJeynolds 45, 140 I Penning, ( biddings v 91 Pennington, Freeman v 70 Penrose, Falnioutli v 107 Pentrequinea Fuel Co., He 124 Perkes, Exp 72 Perry v. Chalmers 00 Perryer, Ex p 71 Petennan, Balilwin v 121 Peters v. Fleming 39 Peterson, Mereer v 40, 142, 140 Phillips, (Jibhins v 40, 145 Phillips V. Honestede 40 Phillips, Lavie v 39 Phillips V. Pick ford 95 Phipi)s, Ex p 34, 35 Pickford, Phillips v 95 Pindie, Slater v Ill Pinkerton v. Koss 37 Plunier, Taylor v (JO Phimmer, In re 113 Poland V. (!lyn Uo Ponsford V. \Vatson 48 Poole, F:x p 143 Pope, Freeman v 40, 1 43 Porter v. Cox 70 Port V. Turner 34 Porter, Ex p 48 Powell, Doe V 100 Powles V. Hargravcs 108 Pozer V. Claphiim 34 Preston, Ex p 39 Price, Sellen v 91 Priddy, Ex p 39 Pulchard, Cook v 140 Pyke, Re 133 Quantrock v. England 54 R. Ramsay, Mackay v 35 Ramsbottom v. Lewis 44 Ramsden v, Lupton 149 PAOB Randall v. Bowman 112 Randall v. Mumford 76 Hankin v. Barnard 142 Rankin, Mugee v 100 Hapliail, Binlwood v 125 Bawling.'!, Be 91 Bawhng.s, Exp 92 BawsoiiA'. Haigh 44 Reed v. Ayton 46 Re*n\, Ex p., Re Tweddell 46 Be(;ves v. Watts 91 Benshaw's Trusts, Be 59 Bevell V. Blake 64 Bevnolds, Pennell v 45, 146 Bhodes, Ex p 44 Bhodes, Morgan v 100 Bice, Ex p 124 Bichards«m, I^x p 40 Richardson v. Bradshaw 34 Richmond Hill Hotel Co., Re, Ex 1). King 90 Riclimond, Hopper v 52 Riokett, Haj-ris v 45, 145 R idgc, Ex p 36 Riley, Kent V 143 Ptivas V. Duncan 35 Bixon V. Emary 90 Bolierts, Ex p 73 Roberts v. Teasdale 51 Roberts v. Morgan 95 Roliertson v. Liddell 43 Robertson v. Morley 45 Robertson v. (losa 90 Rol)son V. Warren 95 Rocke, Ex p.. Be Hall 112 Roe V. Royal C. Bank 01 Roe V. Bank British N. America 01 Roe V. Smith 144 Roebuck, Gumming v 00 Rogers, Heane v 35, 30, 38 Rogers v. Spence 00 Rolfe & Bank of Australasia v. Flower 113 BoUe, Royallv 01 Romellio v. Hallaghan 95 Roots, r:x p 90 Rose V. Haycock 45 Rose, Elston v 04 Rose, Blamberg v 91 Rose, O'Reilly v 103 Rose V. Brown 1 12 Ross, Pinkei'ton v 37 Ross, In re ^ 1 1 Ross, Gordon v 113 Rossi V. Bailey 91 Rowe, Ex p 71 Rowland & Crankshaw, Re .... 76 Rowles, Sanderson v 38 LIST OF CASES. XXV Roy.il Bank of Australia, Kc Latta l">r) Rnyid r. liaiik v. Kcir, 140, 14(!, 1-4S Royal (/. liaiik v. Mathcsou, 18,04,").") Royal ( '. Hank v. Roe (il Royal ('. liaiik, McWhirtor v. . . 146 Rovall V. litille ()1 Rulioril, lOx !> ]r»l RussiU's I'olicy Trusts, Itc .... <)() Rutlx rfonl, 'rii(tini»s()n v 94, 08 Rutliu, Marshal v Hi) Rutty V. Bcnthall 90 Rylauds v. Latouchc .... 70 S. Salkdd, Kx p 37 Santlers, i-^x \) 117 Sanircii v 95 Sharland v. Spencc 90 Sharp V. Hallott 70 Sharj), Lindoii v 45, 48, 146 Sliaff V. Matthews 44, 54 Sharpc, In re 40, 49 Shaw, Re 61 Shaw, Collver v .... 65 Shaw V. Massie 80, 93 Sherilf of York, Molfatt &, Re . . 121 Sherwood, Rarthf)lomew v 38 Sherwood, Merrick v 39 Sidney, Hodgson v 00 .Siebert v. Sjjooner 45, 48, 140 Sikes, Simpson v 51 Silk V. Osborne ()0 Simmonds, King v 30 Simmons v. Edwards 143 Simpson, Ex p 45, 145 Simpson, Bell v 45, 140 Simpson v. Sikes 51 Sir Thomas Littleton's Case .... ,37 Skafle, Johnson v 107 rAdc Skinner, Law v 46 Slann, Ex ]• 48 Slater V. I'iu.ler Ill Slodden, llartshoiTi v 146 Slojjcr, Stuart v 35, 37 Small, Ex p 35 Small, Hale v 35 Smart, Duncan v 34 Smith V. Scott 36 Smith, Kennedy v 35 Smith, Kirney v . . 35 Smith V. Cramer 44 iSmitli V. Carman 45, 146 Smith, H()er v 45 Smith, Carman v 45 Smith V. Tomins 48 Smith, l{e 57 Smith V. Commercial U. Ins. Co. 60 Smith, Buchanan v 89 Smith, King v 95, 97 Smith, Doe v 100 Smith, W(Mlev V 107 Smith, Neal V 112 Smith V. HeSilva 116 Smitli V. Hodsou 126 Smith, Roe V 144 Smith, P.ills v 146 Smith, Thuais v 146 Smith, City Bank v 147 Snell, Davis v 75 Snowljall, Ex p., Re Dotiglas. ... 46 Soames, Ex p 126 Solomons, l'>eniield v 76 South Stallordshire Railway Co. V. Burnside 109 Sowerby, Re 124 SowerVjy, Bolton v 35, 39 Sowry V. }aiw 91 Sparrow, Ex p .... 45 Spence, Rogers v 60 Spence, Sharland v 90 Spillcr, Johnson v 107 tSpooner, Siebert v 45, 48, 146 Sjiottiswooilc, Ex p 113 Springett, Re 35 Squire, Ex p 43 S([uire v. Watt 48 Stainsbv, Bettely v 107 Stamp, Ex p 39 Stanborough, Ex p 116 Stancr, Re 86 Stanger v. Wilkins 146 StansHeltl v. Layton 37, 38 Steate, Morgan v 00 Stedman v. Martumaul 108 Steel, Burns v 56 Stephens, Copeland v 100 Stephenson v. Green 95 XXVI INSOLVENT ACT OF 1875. PAdi;. StevoiiH, l']x ]) 34 Steveiiy, Williiima v 35 Stevenson, Wilson v 1 KJ Stevenson v. McOwan 130 Stevenson, Ncwnham v 148 Stewart, lie 130 Stewait V. I '.all 3!> Stewart v. Moody 45, 48 Straeliiin v. liarton 14(5 Stralian, I'aiil & Hates, He 124 Stuait v. Sloper 35, 37 Sunnneiset v. Jarvis 37 Surnian, Seott v 60 Surtees, Ex j) 71 Surtoes v. Kllison 43 Sutton, Kx {) 64 Sutton v. Weely 30 Swan, ( Ireen v 93 Sweeny, Marsh v 145 Swinhuine, Wallis v 108 SydelK)thani, Hx p 3!) Symomla, Cobb v 38 T. Tanner, Chapman v 42 Tape v. Hoekin 48 Tap]jeiulou v. Burgess 48 Taylor, J':x j) 40, 50 Taylor, IJe, l':x p. Crabtree .... 87 Taylor, (ioodricke v 146 Taylor, Hoggarth v 90 Tayloi", ix)wndes v 70 Taylor v. I'lumer 60 Taylor, Tetley v 92 Taylor, Wortliington v 64, 67 Teasdale, IJoberta v 51 Tempest, Ex p., lie Craven. . 46, 147 Tempest, lOx p 98 Temple, Alderson v 149 Tenneut, Dangleish v 98 Tetley v. Taylor 92 Tetley v. Wanless 90 ThonIa.s, Re 57, 67 Thomas v. Hall . . 34, 37, 58, 98, 136 Thomas, Seott v 44 Thomas v. Martin 51 Thomas, Kent v 110 Thompson, Ex p 71 Thoini)son, Re, Exp. Wilmot, 90,107 Thompson, (libson v 37 Thompson, Whitwell v 46 Thompson v. Knight 90 Thompson v. Rutherford .... 94, 98 Thome, McWhirter v 145, 147 Thome v. Torrance 112 Thornton, Ex p 116 Thornton v. Illingworth 39 Thornton, Willoughby v 40 PAOR. Thoroia, Exp 39 Thuais v. Smith 140 Thwaites, Wood v 43 Tomins, Smith v 48 Todert(m, Yale v 112 Tomlin v. Duttcm 90 Tomlins(m, Kx p 120 Tomlinson, Chij)])cndale v 60 'I'ondinson, Kent v 90 Tooke, Crosbie v 10(^ Tooko v. Ifoliingworth 60 Torrance, Tiiorne v 112 Torrance v. Winterbottom 75 Tread well, Wbyte v Ill Tribe v. Web])er 47 Trigg, Newton v 37 Tring, ( iibson v 47 Troughton v. ( Jitley 89 Truemau, lOx p 116 Trueman v. Feiiton 95 Tucker, Hernahan v 89 Tucker, ^\'arburg v 110 'I'uer V. Harrison 145 Turner, Coles v 91 Turner v. Hardcastlc 36 Turner, Port v 34 Tweddell, lie. Ex p. Reed 46 Tyrell v. Ho])e 142 Tyrwhitt & Rising, Re 37 U. UdaU, Ex p., Re Mew 87 V. Valentine v. Vau^han 37 VanCasteel v. Booker 40 Van Wagner v. Eindlay 112 Vaughan, Alexander v 38 Vaughan, I'alman v 37 Vaughan, Valentine v 37 Vernon v. Hankey 125 Veysey, Ex p 39 Viner, Re, Ex p. Schenck 124 Vinerv. Cadell 40 Vizard's Trusts, In re 61 Vyner, Beruer v 46 W. Wakeman, Herdche v 60 Walker v. Bunnell 60 Wallis, In re 87, 147 Wallis V. Swi'.iburne 108 Walter v. Adcock 91 Wanless, Tetiey v 90 Warburg v. Tucker 110 Ward V. Clarke 43 Ward, Greeuberg v 91 ■% LIST OF CASES. XXVU PAGE. Waring, Fa- p 108 Warner v. ruirbcr 4-t Warner, ( ioring v 100 Warren, IJohson v 95 Watrton, Kx p 31) Watson, I'onsforil v 48 Wathoii V. I'eaohe 01 Watson, Dredge v, 83, 03 Watson V. Chiirleniont 98 Watt, S(|uire v 48 Watts, Ueuves v 91 Watts, ( irooni v » 145 Waud, Young v 40, 140 Waiigli V. Ansti n 70 Wangh V. Middluton 92 Wel)l> V. I'Vix 00 Weld)er, Tribe v 47 Weely, Sutton v 30 Wells V. (Jirling 54 Wells V. linker 39 Wensky, Ivv p 48, 140 West, Ivx p 39 West;ill, lOuropean Central Kail- way Co. V 91 Weston, Bond v 91 Wetlierell v. .Tidiua GO Wheeler v. :\Iallais 70 Wliitcourt V. Jacob 00 White, Dunible v 09 White V. l':iliott 00 Whitehead, Holroyd v 44 Whiteley, Lees v 48 Whitlield V. Brand 01 Whitford, Jure, Exp. Came .. 110 Whitniore v. Claridge 45, 147 Whittuker v. Lowe 90 Whittle, He 37 Whitwell V. Thompson 40 Whyte V. Trea-lwell Ill Wiglield V. Nicholson 92 Wiggins, Ex p 01 Wilkins v. Carmichael 120 Wilkins, Stanger v 140 Wilks, Ex p 35, 30, 37 Williams v. Stevens 35 Williams v. Nunn 38, 44 Williams v. Chambers GO Williams v. Kinder 70 PACK. WilliamH, Tn re 107 Williams, Ex j)., lie Davies .... 112 William.s, Davis v 133 WilHamson, Ex p 38 Willis, He 109 Willoiigliby V. Thornton 40 Willyanis, .Martin v 45 Wilmot, Ex p., lie Th(mipson, 90,107 Wilson, Ex p 34 Wilson, Ke 58 Wilson, Eckhardt v 48 Wilson v. ( 'orby 75 Wilson v. Chisholm 75 Wilson v. Stevenson 116 Windham v. Patterson 44 \\'interbottom, Torrance v 75 Wisdom, Clark v 35 \V(>lstenh()line, lie 38 Wood, He 45 Wood V. liarker 142 ^Vood, ( 'annan v 140 Wood v. Jowett 95 Wood v. Thwaites 43 Woodhouse, He, Ex p. Morgan. . 91 Woodhouse v. Murray 40, 147 Woods v. Foote 92 Wooley, Ex p 71 Wooley V. Smith 107 Worsely v. Demartos 48 Worthington v. Taylor 04, 07 Wreford. Ex p 140, 149 Wright V. Bird 38 Wright V. Fairiiehl 0() Wright V. Maude 67 Wultf V. Jay 108 Wydown's Case 43 Wylie, Bryson v 61 ^V^yudham, Ex p 34 Y. Yale V. Toderton 112 Yarriugton v. Lyon 67 Young, Cordon v 144 Young v. Waud 40, 14(5 I Z. Zwilohenbart, Ex p 48 INTRODUCTORY CHAPTER. In the enactment of a bankrupt law the jn-oblem phieed before a h'irislature i.s to hohl an even bahmce between tlie ri-'hts of the creditor on the one sMc and the ri<,'lits, as well as the misfoi-tnnes, of the d(!btor, on the other. The Canadian Pai'lianient has, in the Insolvent Act of 1875, restricted the privil('^'<'s of the debtor class, and has thus aj»i)eased much of the clamor that was arising against the renewal of any insolvency laws. The right Avhich a trader had, under the Act of 1809, of making a voluntary assignment, and, of his o\\Ti mere motion, casting his estate into bankruptcy, was generally felt to coiifer upon him a power liable to abuse. It was only too common for a debtor to hold out a threat of assignment as a lever to secure extension of time, or comi)Osition of his liabilities, or both. In fact, creditors who sought to recover their claims by actions at law were continiially met by a threat to assign if they ventured to press their legal remedies. Witli the dread of assignments, which most creditors feel, there was generally an acquiescence in whatever terms the debtor offered. The Legislature has, therefore, made a gi'eat concession to the creditor class when voluntary assignments have been abolished. An assignment may still be made by a trader debtor, but not unless and until a formal demand to do so shall have been made upon him by a creditor, who must first till an affidavit that he is not in collusion with the debtor. A similar affidavit is required from the creditor at whose instance a writ of attachment may be issued to place an estate in compulsory liquidation. Tlie affidavit against collusion is evidently intended to place the barrier of perjury in tlie way of a debtor procuring himself to be forced into bankniptcy by a friendly creditor, for an improi)er object. Hitherto it was no obstacle in the way of an insolvent securing a discharge or " whitewash," that his assets wer» utterly out of propor- tion to his liabilities. No inducement, therefore, existed for a debtor to cease trading in the earlier stages of his difficulties, so that his XXX croilitors mi,i,'lit roceivo a productivo estate to wind np. ^n the eontraiy a too saiii^uiiu^ hope to snnnoiirit niisforttUKSs, or a vain effort to conceal them, led most insolvents to persist in tradinij so long as any laisiness credit remained. To discourage debtors from this iniinonil waste of other people's property, the new Act has the following provision :—" Whenever it appears that the estate of an insolvent has not paid, or is not likely to realize for the creditors a diviilend of thirty-three cents in the dollar on the unsecured claims, and snlficieiit account ix not given for the deficiency, the Court or Judge may, in its or his discretion, suspend or refuse altogether the discharge of the insolvent." (Sec. 58.) At first sight this clause might appear too stiingont, becatxse volun- tary assignments are abolished, and a trader cannot himself fix the date for his becoming bankrupt, and thus assign in time to secure a certain per centage as dividend. It has been contended that this provision punishes an insolvent for a circumstance entirely beyond his control. Yet that cannot be the proper interpretation. If an insolvent can sxiccessfully comply with other I'equisites to o)>tain a discharge (See sees. 56 and 57 Act of 1875), and his estate pays thirty-three cents in the dollar above the expenses of winding up, he is primd facie an honest debtor, and the burden of proof of the contrary would rest upon creditors who oppose a discharge. If, however, an esttxte pays less than thirty-three per cent, dividend, the burden will very properly rest upon the insolvent to " give a suflicient account for the deficiency'' before getting his discharge. No business man should be encouraged to continue trading when his assets are only thirty-three per cent, of his liabilities. He cannot assign, but he can call his creditors together and give them a state- ment of his affairs, under sec. 3, sub-sec. a. They may then either agree upon a composition, or take proceedings to place the estate in insolvency. If they take neither of these steps, hv' encourage the debtor to continue trading to his further loss, it is probable that, by showing the course he had taken in this respect, he would be held by any Judge to liave given a " sufficient account of the deficiency." To guard against any surprise upon creditors by their being separ- ately induced to sign a consent to Dischai-ge, or Deed of Composition and Discharge, it is now provided that a special meeting of creditors shall be called to tfike the proposed arrangement into consideration. The proceedings of tliis meeting — even the action of the minority — INTRODUCTORY CHAPTER. XXXI must l)e fullv rojxn-ted to the Judge foi* his infonnution and guid- ance, when the application for continuation of Discharg** is hrought before him. Confinnation of a Discharge was Iiithorto more a convenience than a necessity ; biit tuuler the sixty-first section of the new Act it M essential, in order to give i-elief from liabilities. Without Confirma- tion anv Discharge that may be now obtained from creditoi-s is incom- plete! and inoperative. Official assignees are now to 1>g appointed by the Governor-in- Council instead of by the local Boards of Trade or, as in some ca.sc»» by the County Court Judge ; and Writs of Attachment are to lie no longer directeil to a sheriii' but to an official assignee, who makes the necessary seizure, and transfei-s the estate to the creditoi-s' assignee, or if none appointed, he continues the control of the estate. An important change has been made by extending the provisions of the Act to incorporated trading companies ; although it remain.s to 1)0 seen whether the same practice and proceedings apj»licable to individual insolvents will prove suitable for companies. Lender the English Act of 18G2, a company could be wound up by the Court of Chancery at the instance of either creditors or contributories, while only creditors can initiate proceedings under the Canadian Statute. However, when hostile proceedings in insolvency ai-e once commenced against a company they may assign to an official assignee. The Act of 1875 hsis not gone the length of providing machinery for dissolving a company when its aftaii'S have been wound up, and thus putting an end to its corporate existence. If all the cajjital stock be paid up, and all the as.sets exhausted in paying liabilities, it would be better in the public interests that the corporation should be dissolved, than that a discharge should be granted it, which could only have the effect of misleading the world. On the other hand, if a company, forced into insolvency, should by moans of assets and making calls on stock be able to pay its iebts, with liability to calls still existing on its unpaid stock — it is only reasonable that contribu- tories should have an opportunity for relief by having the company dissolved. The tendency of the Insolvent Act of 1875 may be deemed, to some extent, reactionary in its severity upon the debtor class, yet it is leniency itself by comparison with the bankrupt laws of other countries and other days. xxxu 1S80LVKNT ACT OF 1875. At oiu'o tlif; moat ancu'iit niul the most Hovoro of l)atikni|)tcy liws "wns tho code of curly Jiomo. Accor«liii;j to the usual intju-prctation of the hiw of tho twelve tahhss the oro(litoi*s of an insolvent debtor mi,i,dit, Jifter some preliminaiy formal iti«\s, out his hody in j)iec( s, eae'.i of them taiviM^' a share |)r«)iM)rti«>neroHtal»le form of cha.stisement in their |HMvil»';LCe of suhjectin;,' the debtor to chains, strijies, and hard laliour, or of realizini^, hy a sale of himself, his wife an«l children, into a stsito of slavery. Kven in Roman jurisurudence this severity was mitii,'ii.ted in favor of debtors who made a complete and fair cessio bonornm iji favor of jjjeneral creditors ; and |>ei*sonal immunity from death or slavery was accorded to those who made an entire surrt^nder. In Scotland, where a most simple and practical system of bank- ruptcy is now in opemtion, all insolvents were at one time caU(;d Di/h'our.s; and were i-ei^arded as fraudiilcnt debtora. In the bc^ijinninj^ of the seventeenth centviry the unfortunate ili/coar was clad in a pai*ty-coloured garment, one-half yellow and the other brown, and in this attire was exposed, at intervals, upon the public pillory. Although this practice long ago fell into disuse, it was not abolished by law until 1836. The derivation of the English word " bankrupt" is probably cor- rectly given from bancus, a counter, and ruptns, broken, the custom having been with our indignant ancestors to " break the counters" of the insolvent Lombards, who still persisted in trading among them. Lord Coke, however, prefen-ed to derive the term from some e(piiva- lent French or Italian ex})ression ; and his patriotism induced him to add, '* there is little doubt that the name, as well as the wicked- ness of bankrupts, was derived from foreign nations" (4. Inst. 277). The Lombards did not long enjoy the distinction of being the only bankrupts. The Statute .34 tfe 35 Henry VIII. c. 4, was soon passed, and was entitled " An Act against such Persons as do nuike Bank- rupt." In the preamble the consequences of the evil ensamplo of foreigners were depicted in the following language — " Whereas divei* and sundry persons, ci'aftily obtaining into their hands great sub- stance of other men's goods, do suddenly flee to parts unknown, or keep their houses, not minding to pay or restore to any of their creditors their debts and duties, but at their own wills and pleasures consume the substance obtained by cre. III. c. 1,) wliit'lj iiitroihiced into U|)i)or Canada tlio laws of KniJilaiKl, as tlicy stood on tlir; lotli (^ctol)er 17U2, JUS tho rulo of decision in all conti-ovtM-sifs ivlativo to |»i-(»|H'rty or civil riljIit.H, cxccijitcd tho laws n(.s|K'ctin;^ tho niainttMiaiicc of the poor, €Hi/t resjtcrtinfj bankrHpts. Th(! only authority of any Kn;,'liHh atatutory provisions as to bankiniptcy, or decisions foniidod upon that statuto law, consists, tJKM'oforo, in their analoiry to our own law on the sulijoct, and tlu^ assistance they thus allord in its interpretation. A Itankrupt law was Hrst introduced into Ontario l»y the Statute 7 Vic, c. 10, entitled "An Act to nipeal an Ordinance of Lower Canada, entitled * An ordinance concernintj bankrupts, ami the wlndii- istratlon and distribution of their estates awl effects,^ antl to make provision for the same object t]a*oui,'h()ut the Province of Canada." This Act Wiis assented to on the "Jth December, 1843, and was only to continue in force for and (hiring the term of two yeai's, and from thence to the end of tho then next ensuing Session of Pailia- ment. The certificate, whicli the bankrupt might receive thereunder> had tho effect of discharging liim from all debt?; due by him at the date of the commission, and from all claims and demands made provable under the commission. The provisions of this Act extended only to tradei"s, and tho term " trader" was very strictly defined. After the passing of this Act, the portion of the community who were non-tradere naturally became desirous that they should also receive some protection against their creditors when they were willing to give \ip eveiything they had to pay their debts. The result of this feeling was the enactment of an Insolvency Law during the very next Session of Parliament (8 Vic, c 48), whereby a pei-son who was not a trader witliin tho meaning 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 his scheduled creditors. During the operation of the Insolvent Act of 18G4, which applied in Ontiirio to non-traders, tlie Act of 8 Vic (Con. Stats. U. C, chap. 18), fell into ei ire disuse ; ]>ut, as was anticipated, it has been again invoked for the protection of non-traders, to whom neither the Acts of 1869 nor 1875 apply. XXXIV INSOLVENT ACT OP 1875. While tho Rin!>ru]>t Act was in force, Ix'tween the years 1843 jind 1S49, there were intmy iiiHt.inces of tnulent exectitin<; assign- mciitii for the iN'iiotit of creditors, iit their nMjuest. for the |iur|Mwe of avoidiii;^ tho ex|K'iiHe and delay attending; |»n)ceediI^»^ in ljs»nkniptcy. And in some of thes»»rty by such fnulers, some of their ei-eiUtoi-s afterwards decliiud Weiouiiii;; jwrties to such assign- ments. These tmdei-H, when the Hankniptey Act wxs no lon>(er in force, found that they had, without any eulpuhle neglim?nop, allowed tho opfiortunity of takin;» the heneHt of its provisions to |kiss. In oitler to afford ivlief in siuli cases 14 *k 15 Vic. c. 116, was |tasaed. Its aim wa-s to enablo tradei-s coniing within the al»ovc description to avail themselvcH of tho Insolvency Act, 8 Vic, c. 48, in the same manner as non tmdei-s niij^ht have done. It tdst> enactwl that tlie Final Oi*der gninted tnuler the last nientionetl Act should, as to such |>ei*son8, o|>erate as a dischar<,'o of all (h-hts due up to the date of their several as.siginnents, as fully and coniplotoly jus a cei-titicate under the Bankruptcy Act would liavc! done. This was in adilition to the protection affonled by the Final Order a'piinst all process*. Tlie Select Connnittoc of tho House of Commons, who were appointetl in 18G8 to enquire into and i-eport upon the In.*iolvency Laws in force in the several Provinces of the Dominion, thus stated the j)osition, at that period, of legislation on the question : " In New Bnuiswick there is no bankrupt or in.solvent law what" ever, nor .ire there any provisions of law under which the estate and effects of a ])ei"son unable to pay his debts can be distributed among his ci"eilitors, otherwise than by the ordinary me:\ns of executions issued at the suit of those ol)taining judgnient.s, nor, under which the preferences and liens to w Inch executions give rise under the common law and statute law can be avoided or set aside for the benefit of creditors generally. " In Nova Scotia an Act is in force for the relief of Insolvent debtore, but its operation is limited. It is rather a remetlial measurt?, intended to supplement and mitigate the law of imprisonment for debt, than a complete system of insolvent or bankrupt law, having for its object the discovery and realization of the assets of an insolvent and his discharge from liability in consideration of the surrender of his proj>erty. "This Act, cap. 137 of the Revised Statutes of Nova Scotia, third series, permits a person imprisoned upon any writ of meme process. iNTRODuiTonr cnAPTnn XXXV pxocution, or ntUicIiin«-ut, for non-payiijciit <»f monov, isHiiing out of tijo rtupremo Court, to |»otitioii for his (ILsc'liaixo. Aiul mjkju complj- iiij; with the romlition |n-«wtiilHMl by tho Act, ho hiwa right to obtain ati onlor - purty he |kxs.sc*«>s, antor upon whoso suit he was arrestotl. Tlio effect of the onU-r for his discharw seems only to reh'ase him fram the restniint tipon his lilierty, actually ini])08ed upon him in the suit or pif)cecdin,i{ in which the order is maiie. And the a8.si<,'nment in trust soems only calculated to ensuiv to the Itcnefit of the creditor, who is plaintilf in each case, "The Act, thei-efoiv. seems to ulibrd to any creditor cffectivo meatis for compelling; payment of the d«!bt due him ; but its tendency must bo to imjtede or entirely prevent the distriltution of assets among creditors genemlly. And it affoids no means by which, ou any conditions whatever, a debtor once insolviiut, can l>e enabled to continue his business with any ho{>o of ultiiaato success. " Tn tlie Pronnceof Quebec no in.solvent law is in existence, except the Insolvent Act of 1804 ; although one of the principles u|)on which every system of iKinkrupt law i-ests is a leading feature of its common law. The right of tlie cixMlitors of an insolvent to a ju.st distribution of his assets among them all, has always been recognized by the Bar of Lower Canada ; although the means under the common law of enforcing that right, were cumbrous and expensive. The effects of the (.lebtor could only be realizcil under execution, and by this pi-ocess only the miuimiim price of the goods sold was obtained." I' o 'I e; tc ei cc h( kt te st< w] ot; tR t€l i*ei or THE INSOLVENT ACT OP 1875; A 38 VICTORIA, CUAP. 16. AN ACT RESPECTING INSOLVENCY. [Asitentcil to 8th April, 1S75.] TTER INlAJEiSTY, by ami with the atlvice and consent i»rcambif. of the Senate and House of Commons of Cimada, enacts liH follows : I, This Act shall ai>i»ly to tnuleni and to trading co- partnerships an«l to trading comiKUiics whether inoorjionited or not, t'xcvi)t Incorjwrated BiUiks, Insurance, Railway and Telegi-aph Companies. The following persons and partnerships or companies, exercising like trades, callings or employments, shall Ik; held to be traders within the meaning of this Act : AiK)thecaries, auctioneers, bankers, brokers, brickmak- who are ers, buildei"s, caryenters, carriers, cattle or sheep siilesmen, unay'r tiiiH coach proprietoi'S, dyers, fiUlers, kee|>ers of inns, taverns, ^^'' hotels, saloons, or cotfee houses, Ume bumei-s, livery stable keei>ers, market gaiileners, millers, miners, packers, prin- ters, quarrymen, sh^ire brokers, shipowners, shipwrights, stock-brokera, stock-jobbers, victuallers, warehousemen, wharfingers, i)ei-sons insuring ships or their freights, or other matters, against perils of the sea, persons using the ti'ade of merchandise by way of bargaining, exchange, bar- tering, commission, consignment or otherwise, in gross or by retail, and persons who, either for themselves, or as agents or factors for others, seek their living by buying and selling 3 of A( t. I'i 34 INSOLVENT ACT OP 1875. W^ m I: or buying and letting foi* hire goods or commodities, or by the workmanship or the conversion of goods or commodities, Proviso. or trees ; but a farmer, grazier, common laborer or work- man for hire shall not, nor shall a member of any partner- ship, association or company, which cannot be adjudged insolvent under this act, be deemed as such a trader for the purposes of this Act. The Act of 1869 only extended to private traders, and to unincorporated trading companies and co-partnerships ; and the Insolvent law is now, for the first tiriic, made to embrace incorporated companies. By section 147 a special procedure is appointed for insolvency proceedings in the case of such companies as are not excepted by this section. The Insolvent Act of 1864 extended to all debtors, whether traders or not, in Upper Canada, but in Ijower Canada included only traders. The Act of 1869 was confined to traders only ; but that Act did not, in any way, define the term, and the definition now given is borrowed almost literally from the English Bankruptcy law, where the meaning of the term has been gradually extended by the Legislature. The distinction there observed between the classes of traders specifically designated and those coming only within the general definition, ia this : the persons to whom these specific denominations are applicable come within the Act, however little business they may transact in that capacity ; but the other commercial classes only come within it if their business holds a prominent position iu their avowed means of living (Doria, 113). Apothecaries. — .1 vargeon con.pounding his own medicines for the patients on whom he attends professionally is not a trader ; but otherw* le, if he sell them to any chance customers who apply for them. To establish a trading as an apothecary on the part of a surgeon, it is necessary to show that he supplied drugs generally to all customers for the purpose of gaining his living, and that he did not merely vend them as ancillary to his profession {Ex parte Dawheny, 2 Dea. 72 ; S. C. 3 M. & A. 16 j The Apothecaries Company v, Greenough, 1 Q. B. 799 ; Nicholson v. Cooper, 31 L. T. Rep. 184 Ex. ; Ex parte Crabb, 25 L. J. 45 Bank). Auctioneers. — A party holding himself out to the world by stating to sev- eral persons that he was an auctioneer, and occupying an office with his name and business announced by a sign, and circulating cards to the same effect, was held to be a trader (Ex parte Parkins, 32 L. T. Rep. 50. See Pozer •^. Clapham, Stuart, 122). • Bankers. — It is not material that bankers do not keep an open banking house or books, as bankers ordinarily keep them, providing they are in the habit of receiving money generally as bankers (Ex parte Wilson, 1 Atk. 218 ; Ex parte Bradshaw, Ibid. ; Ex parte Wyndham, 1 M. D. & D. 146 ; Duncan v. Smart, 35 Q. B. U. C. 532). As to the manner in which transactions by bankers are viewed by the Court, see Be Gibson f Inns, Taverns, Hotels, Saloons or Coffee-Hocsbs. — The keeper of a private lodging-house who seeks a profit on provisions furnished to his lodgers, has been held subject to the bankrupt law as an hotel-keeper ; but a lodging-house keeper not proved to have bought and sold provisions is not a 36 INSOLVENT ACT OF 1675. trader {Ex parte WllL^, 2 M. & A. 6G7). A lodging-liousc keeper merely supply- mg coals find candles and tritiing articles, is not thereby a trader ; nor is a schoolmaster taking in hoarders ; hut, otherwise, if he take in hoarders not connected with his school (Siiilth v. Srotf, 9 King. 14 ; J'Jx parte Birch, 2 M. D. & D. 059 ; Gihsun v. Kiiiij, 10 M. & W. G(J7 ; Kiwj v. Shnmiml'i, 12 Jur. 903). The word .sa!uoiii is not included in the schijdule to the lOnglish Act from which this section is taken. It had Ijeun held under the former Act that an innkeeper was not a trader [Harman v. Vlarknon, 22 C. P. U. 0. 291). Lime Buhnek^?. — ^It was doubted before tliis class of traders Avcre introduced by name whetlier they were not exempt from the operation of the baidcruj)t laws, where the lime was manufactured by the occupier of land from the soil thereof (Ncivloiiy. Ncicton, (Jooke's V>. L. 8th Ed. p. 71 ; Ex parte Jlkl'je, 1 Hose, 316. See Doria, 122 ; see Brlekinaktrs). Shipwrights.— See Carpenters. Stock-Brokers. — The buying and selling by a person of shares for a company of which he was manager and secretary, does not coii.stitute him a broker witliin the meaning of this section (Ex jiarte Cleland, IG L. T. N.S. 403). Nor will a dealing in shares for private friends while manager, for which he received no brokerage (Ihld). Persons Insuring Ships or their Freights, or other Matters, against Perils of the Sea. — These ])evsons have under the former Act been held to be traders by the Court in the Province of Quebec (McUiUh^raij vT" Montreal Iiui. Co. 8 L. 0. Hep. 401. See Brokers, ante ; and also Ex parte Bell, 15 Ves. 355). GENERAL DEFINITIONS. The Statute, in addition, states the following general definitions : 1. Persons using the trade of merchandise by way of bargaining, exchringe, bartering, commission, consignment, or otherwise, in gross or by retail. 2. Persons who, either for themselves or as agents or factors for others, seek their living by buying and selling ; or 3. By buying and letting for hire goods or commodities ; or 4. By the workmanship, or the conversion of goods or commodities, or trees. A trading, to be witliin the meaning of the Act, must be a substantive aiul independent trading (Paul v. DowI'ukj, 1 Moo. & M. 2G3 ; Hcanc v. Bogcrs, 9 B. & C. 578 ; Ex parte Burgess, 2 G. & J. 183 ; Neicton v. Neicton, Cooke's B. L. 71 ; Ex parte likhje, 1 Rose, 31G ; Ex parte Gardiner, I Rose, 377 ; Ex parte Gihbs, 2 Rose, 38). As when brickmaking is carried on independently as a trade, that is, if a man buy brick earth as a chattel, and purchasing the other necessary materials, makes bricks and sells them, that will constitute him a trader (Sutton v. Weeley, 7 East, 442 ; Ex parte. Bagshaw, 33 L. T. Rep. 276). When, however, the alleged trading is ancillary only to the enjoyment of the land, it is not a trading within the Act, as if a man dig brick earth upon his own estate, from which he makes bricks, and sells them as a mode of enjoying the profits of the land (Ex parte GalUmore, 2 Rose, 424). See also Ex parte Emern, (4 D. M. & G. 901 ; S. C. D. M. & G. B. C. 379,) and Lord Mostyn v. Griffiths, (33 L. T. Rep. 276, n.) But if the owner of an iron mine be in the habit of buying ore in large quantities to mix with the ore of his mine in order to work it to the best advantage, and to sell the iron so worked up, he is a trader subject to the bankrupt law (Turner v. Hardee stle, 5 L, T. Rep. N.S. 748). Payment by the lessee of slate rock of the worknen employed in exca- vating the slates by charging them for tools and gunpowder for blasting, does not constitute a trading. It is only a mode of paying wages (Ex parte Cleland, 16 L. T. Rep. N.S. 403). The lessee of a farm upon which is a lime kiln, who digs the chalk from his farm and sells it, is not a trader (Ex parte Ridge, 1 Rose, 316 J Ex parte Burgess, 2 G. & J. 183). Nor is the lessee of a coal mine digging AN ACT RESPECTING INSOLVENCY. 37 liis own coal and selling it, a trailer as a coal-owner, he not being a coal mer- chant (Anon. 18 L. T. Id ji. 43). Nor is a farmer tlealing witli liis* farm jiroduce, a3 hy stilling liis own ilour, i\ tv.ulcr (Stan.ijihl). When the buyiiig and selling is merely incidental to tlie oocnpation of the party in some non-trading pursuit, and is coniined to a linuted class of purchasers, he is not thereby a trailer witliin this section (Carter V. Di'tni, 1 Swanst. Ci) ; tHhsnn v. Thoiupotn, 3 Kelt. 4")! ; Sir Thoiniti^ Littleton' n case, 1 Vent. 270). A schoolmaster who sells shoes or books for a jn-olit, to hia own scludars oidy, is not a trader {Vut the editor and proprietor of a newspaper is a trader (AV Cooper, Doria, Bank. 12!)). The jtublisher of ancMSjiaper buying the whole daily impression from the proprietors, re-selling it at a prolit, and. bearing tlio loss of such as remain unsold, was held to be a trader (2 MurnhnU, 23G ; 2' yi-ow, 472 ; see Piuh-rlon v. lio^% 33 Q. B. U. C. oOH). A surgeon who conlines the sale of his drugs to his patients is not a trader [Ex ]>nrte Dduheuji, 2 Dea. 72) ; nor a commissioner of the navy who used to buy stores for the Heet and disi)ose of the surphus and refuse (1 Salk. 110 ; Skin. 2!)1) ; nor the tenant of a coal mine, or owner of a colliery who buys small articles and sells them to his own pitmen (Ex parte Callimoi^., 2 Rose, 420) ; nor an executor of a trader disposing of his testator's stock (Ex parti'. Xntt, Atk. 102) ; nor alisherman who occasionally buys fish to make up a cargo for market (Ex parte Gnllimore, 2 Hose, 428. See also, Sammcrsett v. Jarris, 3 B. & B. 2; 6 Moore, 50; Heanqi v. Birch, 1 Rose, 356 ; Ex parte SalMd, 3 M. D. & D. 125 ; 1 Christian, B. L. 49 ; Potman v. Vauijhun, 1 T. R. 572). There must be an intention to trade generally, and this is acted upon as law to the present day. The question of trading depends, not on tlie quantum of dealing, but the intention ; and it is enough it" a man will sell to any one who comes to buy (Ex parte Maijeinm, 1 Rose, 84 ; 1 Christian, B. L. 52 ; Cannan V. Denew, 10 Bing. 292 ; Ex jmrte Harreii, 1 Dea. 571 ; S. C. 2 M. k A. 593 ; Ex parte Salkeld, 3 M. D. & D. 125 ; Gale v. Halfkniijht, 3 Stark, 50 ; Ex parte Moule, 14 Ves. 002). A single instance of trading coupled with a general intent is sufficient (Ex parte With, 2 M. & A. 667 ; Ilolrnijd v. Gwynne, 2 Taunt. 476 ; Ex parte Larender, 4 Dea. & C. 487 ; Ex jtarte Xutt, 1 Atk. 102). The pubh- cation and sale of a single work, apart from a general intention of printing and publishing, do not constitute a trading (Pe Hare, 34 L. T. Reji. 15. See also, Re Whittle, 18 L. T. Rep. 10 ; Ex parte Hammond, De Cex, 93 ; Stanifield v. Lay to It, 7 L. T. Rep. 20). According to tlie -words of the statute, a trading to be within the Act, should be tlie mode by which a livelihood is sought ; therefore every one who buys and sells is not necessarily a trader ; nor is a mercantile act, although resulting in a profit, alone sufficient to constitute a trading (Neioland v. Beel, Holt, 221 ; Ex parte. Atkinson, 1 M. D. & D. 308 ; but sec Stuart v. Sloper, 3 Ex. Ch. Rep. 700). The true crite!-ion to decide the question of trading is not whether the party bought and sold to increase his income, but whether he did so to gain his Hvelihood (Ex parte Cromwell, 1 M. D. & D. 158). In reference to the occasional purchase and sale of a horse, Lord Eldon, C, said that the law3 were never meant to attach upon such occasional transactions (Ex parte Black- more, 6 Bro. 2 A. ; see Gale v. Halfkniijht, 3 Stark. 56 ; Be L. ICC, Chron. 87 ; Stuart v. Sloper, 3 Ex. Rep. 700 ; Ex parte Neirincks, 2 M. & A. 384 ; S. C. 1 Dea. 78 ; Thomas v. Hall, 6 P. R. 175). " Persons who either for themselves or as agents for others, seek their living by buying and selling or buying and letting for hire goods or commodities." The words "-buying and selling," as also the v,-ords "buying and letting for hire," govern the substantives " goods or commodities " {Ex parte Cleland, 16 38 INSOLVENT ACT OP 1876. L. T. Rep. N.S. 403). Government Stock (Ee. WohtenhoTin, cited in Colt v. XtUerrill, 2 P. Wnis. .'508) ; or an interest in land, (2 Wils. 100,) has l)eon held not to come within the meaning of "goods or commodities " (Cullon, p. 17) ; neither are shares in joijit stock companies (Ex jiartc Ckland, 1(5 L. T. Rep. N.S. 403). It is doul)tful whether obtaining orders to sell on commission, tlie gooils being furnislied and accounts rcnflered by tlic principal, Cimstitntes an agent or factor within this clause {Ilcarmdiiii v. Barber, 14 C B. llcp. 583). " By the workmansliip or the conversion of goods and commodities or trees." Persons who buy the raw materials of trade, and sell them ag.ain under anroved l>y the labour of manufacture, were always considered traders by the law of England ; such as l)akers, lirewers, butchers, shoemakers, smiths, tanners, tailors, nnllincrs, goldsmitlis, locksmiths, nailers, plund)ers, paper- makers, &c., wiio purchase the raw mab.rial, and sell for a profit after a certain amount of binlily labour has been expended upon it (Eden, B. L. 8). These words a})i)ear to have been intrfnluced to meet the case of persons who do not buy and sell, and yet have other men's goods entrusted to them, such as bleachers and fullers, d\-er3, lacemakers, and stockmakers, wlu) make for others and the like, but ilo not include those who use woi'kmanship on goods as part of the profits of land, as farmers making cheese or cider (Jlcane v. Hosiers, 9 B. & C. oiiO). The addition of the word " trees" to this clause is evidently to render it clear that the large class of persons engaged in the manufacture of timber and lumber are traders within the Act. It has been held in England that it is not necessary that the trading sliouM be "in" England. It is suiiicieut if it be "to" England if an act of bankruptcy be conmiitted there (Alexander y. Vaiu/han, Cowp. Rep. 398; Doddesworth v . Anderson, llaym. R. 375 ; E.o parte Williamson, 1 Atk. 82 ; Williams v. Nimn, 1 Taunt. 270 ; Hitchcock v. Sedi/wick, 2 Vern. 156 ; Bird v. Sedijivick, 1 Salk. 109; Allen v. Cannon, 4 B. & Aid. 418; Inijliss v. Grant, 5 T. R. 530. Re Ansill Day, 6 L. T. Rep. N.S. 62; Ex parte O'Lorjlilen-, L. R. 6 Oh. App. 406). But he camiot be made bankrui)t upon an alleged act of bankruptcy committed abroad (Ex parte Crispin, 8 L. R. Oh, 374 ; 42 L. J. Bank. 65 ; 21 W. 11. 491). In the case of Mellon v. Nicliolls, (27 Q. B. U. C. 167,) the question whether the act extended to a foreigner, neither resident nor domiciled in Canada, was raised but not decided. A fraudulent trailing, got up to make a person a bankrupt, will not support a fiat (Ex parte Dart, 2 D. & 0. 543 ; Ex parte Hall, M. & C. 445, 479). A buying in connection with others with a \'iew to carry on a system of fraud, is not a trailing, but if a party represent himself as a dealer, buying goods and offering goods in exchange, it is a question for a jury whether he did not buy to sell again (Milliken v. Brandon, 1 Oar. & P. 380). The legality or illegality of a trading does not affect the question ; it has been held that a trader may become bankrupt, although he has not taken out a license necessary to legalize his trade (Sanderson v. Boivles, 4 Burr. 2065 ; Martin v. Niijhiin(jale, 11 Moore, 305). Ev^en a smuggler might become bank- rupt (Ex parte Meymot, I Atk. 199 ; Cobb v. Symonds, 1 D. & R. 111). • PERSONS NOT TRADERS. "A farmer, grazier, common labourer, or workman for hire shall not bo deemed as such a trader for the purposes of this Act." . Asa farmer a man cannot be an insolvent, but as a dealer in goods he may ; but the dealing must not be with farm produce only (Stansfield v. Layton, 17 L.. T. Rep. 20) ; it must be a trading distinct and separate from his business of a farmer (Ex parte Newall, 3 Dea. 333 ; Cannan v. ^Deneiv, 10 Bing. 292 ; Bar- tholomew V. Sherioood, 1 T. R. 572, N. ; cited in Wriqht v. Bird, 1 Price, 20 ; Ex parte Gibbs, 2 Rose, 38 ; Mayo v. Archer, 1 Str. 513 ; Cooke, B. L. 67, 69, AN ACT RESPECTING INSOLVENCY. 39 73 ; Steicart v. Ball, 2 N. R. 78 ; Patten v. Browne, 7 Taunt. 409 ; Anon, 14 L. '^. Rep. 294; Ex parte Hammond, I)c Gex, 93 ; Welh v. Parkvr, I T. R. 34 ; Ex parte Gardner, 1 Rose, 377 ; Ex jmrtt Bunjess, 2 G. & J. 183 ; Ex parte Atkinson, 1 M. D. & D. 300 ; Ex parte Deneio, L)e Gex, 598 ; IG L. T. Bank. 1). Grazikr. — A grazier is specially exempted from tlie operation of the statute, but may be brought within the scope of tlie law as a trader, by one or more instances of buying and selling cattle, and with some evidence of an intention so to deal generally, or of circumstances from wliich such an intention might be inferred (Doria, 138). A drover who is now a trader is one who seeks his living by purchasing sheep or cattle, and afte.' depasturing them or not upon the land of another, selling them either at the -same place or driving them to another, and then selling them ; but a grazier, as distinguished from a ilrover, is a person who purchases sheep and cattle to sell again and fattens them upon his own land (Doria, 183. See Mills v. Hughes, Willis R. 588; Bolton v. Sowerhy, 11 East. 274 ; Carter v. Dean, 1 Swanst. 64). Infants. — It is well settled by a long series of decisions that an infant is not liable to the bankrupt laws (Ex parte Adam, 1 V. & B. 493 ; O'Brien v. Currie, 3 Car. & P. 283 ; Ex parte Watson, IG Ves. 205) ; because his contracts, unless for necessaries, arc void (Chappie v. Cooper, 13 M. & W. ; Peters v. Fleming, 6 M. & W. 42 ; S. C. r. L T. Rep. 223 ; Thornton v. Illingirorth, 2 B. & C. 824). See also, Belton v. ^lodges, 2 Moo. & Sc. 49G ; S. C. 9 Bing. 365 ; Ex parte Sydehotham, 1 Atk. 146 ; Whitlock's case, Sel. C. C. 46 ; King v. Cole, Lord Raymond, 443 ; Ex parte Moule, 14 Ves. 602 ; Ex parte Watson, 16 Ves. 265). There are modem authorities, however, which support the principle that an infant may be a trader liable to the bankrupt laws, when he trades and holds himself out to the world as sui juris (Maclean v. Dummelt, 22 L. T. N.S. 710 ; Ex parte Bates, 2 M. D. & D, 337 ; Ex parte West, 1 Bank. & Ins. Rep. 58 ; S. C. 21 L. T. Rep. 277 ; Ex parte Carter, 15 Jur. 984 ; 1 D. M. & G. 212 ; S. C. D. M. & G. B. 0. 12 ; 21 L. T. Rep. 108 ; Ex parte Thorold, 3 M. D. & D. 385 ; Ex parte Veysey, 3 Ih. 420). Married Women. — As a general rule, apart from the enabling statutes, which have extended the jjowers of married women, they are not capable of making binding contracts, or legally competent to contract (Marshall v. Rutten, 8 T. R. 845 ; Bentley v. Oriffin, 5 Taunt. 356). But in some cases a feme coverte may be considered as a feme sole with respect to her contracts, and sue and be sued notwithstanding coverture ; as, for instance, being a sole trader by custom, and in every such case she is subject to the bankrupt laws as a trader (Ex parte Preston, Green, 8 ; Cooke B. L. 40 ; Ex parte Carrington, 1 Atk. 206 ; Lavie v. Phillipps, 3 Burr. 1776). But it has been held in England that a conunission cannot issue against a married woman upon a trading prior to mar- riage (Ex parte Mear, 2 B. C. C. 266 ; Ex parte Franks, 7 Bing. 762). In Ontario the statute 35 Vict. c. 16s. 2, provides that "all proceeds or profits from any occupation or trade which a married woman carries on separately from her husband, shall be free from the debts or dispositions of her husband, and shall be held and enjoyed by such married woman, and disposed of without her husband's consent, as freely as if she were a feme sole." And it was said by the Court in the case of Merrick v. Sherwood (22 U. C. C. P. 467) that the effect of the whole Act was to give to the creditors of a married woman remedies against her, co-extensive with those given to her against all persons indebted to her, or with whom she may contract. In an American case (Re Julia Lyons, reported 10 Can. L. J. N. S. 179) it was held that in a State where the statute law makes a married woman, living apart from her husband, liable to be sued in aU actions as if sole, she may be proceeded against under the bankrupt law. It would seem that a married woman in Ontario, trading apart from her hus- band, would bp within this Act, and liable to be made bankrupt. Lunatics. — A lunatic may be a bankrupt, provided the act of bankruptcy be committed during a lucid interv^al (Ex parte Priddey, Cooke 48 ; Anon. 13 Ves. 590 ; Ex parte Stamp, 1 De Gex, 345). I 40 INSOLVENT ACT OF 1876. Executors. — An executor, or other person, who carries on business as trustee in pursu.ance of the will of a, decoasoil trader, may he a bankrupt in rcaiKict of such Imainess (A'j; parh' Garluml, 10 Vea. 110; I'hirrv. Coihll, 3 Eaj). 88 ; Ex {mrtc Nult, 1 Atk. 102 ; Ex parti' Ilk-hard-on, 3 Ma(hl. 1.S8) ; but not merely )y selling off the deceased's stock-in-trade, although he be obliged to purchase articles to mix with it in order to make it Baleal)le {Ex park Nutt, 1 Atk. 102 ; Cooke, 78, 79). Sec. 27 of the Insolvent Act of 18G5 ditl not enable the credi- tors of a deceased person to ])ut his executors or atlministrators into insolvency in their representative character (In re Sharpc, 20 C. P. U. C. 82). A man once a trader is liable to the bankruptcy laws until all his debts are paid, whether contracted during the jieriod of his trading ( WilloHijhhji v. Thorn- ton, 1 Sel. N. P. 175 ; Ex parti' Ih'wdnvy, 15 Ves. 495 ; Ex parte liamforil, 15 Ves. 458 ; Doe v. Lawrence, 2 Car. & P. 134), or incurred before that time, and in no way connected with his trading (liaiUie v. Grant, 9 Bing. 121 ; 2 M. & Sc. 193 ; 6 Kligh, 459, appealed to the House of Lords) ; but by the last clause of this section infra, no proceedings in li<[uidation shall be taken against such trader, based upon any «lebt or debts contracted after he has so ceased to trade. 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 })roceedings must be com- menced (see below, sec. 8), can be held to apjdy to the case of a trader ceasing 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 committii'g a continuing act of bankruptcy, that is not removed until either the debts 'ire paid, or barred by the Statutes of Limitations. A trad'.T who has ceased to trade before 1st September, 18G4, cannot be pro- ceeded 'jrgainst under this Act. But it is not necessary for the plaintiff 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. 305). All such pereons, co-partnerships, or companies, having been tradei-s as aforesaid, and having incurred debts as such, which have not been barred by the Statutes of Limita- tions or prescribed, shall be held to be traders within the meaning of this Act ; but no proceedings in liquidation shall be taken against such trader, based upon any debt or debts contracted after he has so ceased to trade. This provision was first enacted by 34 Vic. c. 25 s. 1, in order to remove the ambiguity of former statutes, which left the meanuig of the word "trader" quite undefined. As to per- sons having been traders. iiiterpieta- 2. The word " County" shall mean a county or imion of County. counties, and the word " district " shall mean a district, as defined for judicial purposes by the Legislature of the Pro\ance wherein the same is situate. a. " Official Assignee " shall mean the person or persons appointed by the Governor in Council as hereinafter pro- vided, to act as Assignee or Joint Assignee under this Act in any County or District. "Assignee" shall mean either the Official Assignee or the Assignee appointed by the creditors, as the context may require. '■ '■■ \ Official Assignee. Assignee. AX ACT RESPECTIXG IXSOLVEXCY. 41 h. " Official Gazette " sluill mean tlie Gazette p\iV)lishcd offlciai under tlie autliority of the Goveniinent of the Province where the proc(K»ilin^ in Bankruptcy or [nsolvency are earned on, or used as the official means of conmuuiication between the Lieutenant-Governor and the people, and if no such Gazette is published, then it shall mean any news- j»api'r i)ublisheankruptcy and the trading nccarh' Blrkctt, 2 Rose, 71 ; Watd v. Clarke, M(K). k .M. 497); although, under bcc. 2, uiite, no proceedings in litpiidntion shall be taken against a trader, hnscd upon any del»t f»r debts contracted after he h.-is ceased to trade. In England the biinkruptoy relates l)ack to the day upon which tlie act was committed, and the del)tor is deemed to have been subject to the pro- visions of the statute from tliat day ; but UTider our statute there is no relation back, a distinction which must be kept in mind in reading cases decided upon the English law. Nothing can be deemed an act of bankruptcy, except m hat is expressly declared to be so by statute (Dutton v. MorrlMm, 17 Ves. VX\ ; Ex parte Maror, I'J \'cs. .'»42) ; and, when once clearly committed, it cannot bo explained away by sub3e<(uent circumstances, or gotten rid of within the time limited (sec. 8) for taking proceedings upon it (Ifopkiiis v. Ellis, 1 Salk. 110; Colkett V. Freeman, 2 T. R. oD ; WooniiiuttoliaiH.Hal)lo {Sniitii v. Craiuir, I Woott, 541 ; S'-i,ft v. T'uoutaA, 6 Car. & P. Oil). If the nccfSH.iry foiiseiiuciioo of the iKhtor's act l»e that hi« creditors mu*t W' therehy deframlcd, detVatod, or delayid, this is i»rc*inuiitive evi«lcnce of hix intention to do ho {/!'J<> : Z^'-^' /""/' A'/Vh^*-, 2 Doa. ?i'i:t ; 3 Mon. k A. I'irl; Kx jHtfti' Jiiiin/onl, 15 Ves. 4I!> ; WiHtnina v. Xnint, 1 Taunt. 270». Tlie ]»rf8unip- tion rai.n leaving the emintry he U-ft a partner behind him {Itumx^iDthnn v. /a'w'is, nhi supra) ; or that hi^ presence out <»f the Province \vi\a ahsolutoly necisHary in order to look after hi* otncems there (Ex pnrti' Mutrli; 5 Ves. 570 ; Warm r v. Jlarlxr, I Holt, IT5» ; or that previous to hi.s dejwrture he made arnviijjfeiiieiits that the interests* uf his cret then, although jK-rfectly al>le, and owing no one cIhc, pay the creditor his debt, doe* not bring the debt«>r within this clause (Sharp and Si'curtl v. jUuUheir*, 5 Prac. Rep. C. C. 10 ; S. C. 5 Can. L. J. N.S. 1>7). It is held that a person going abroad for a legitimate pnrjxwo, and remaining abroail without matving any provision for the payment of Im debts, or sending money for that purjM.se, 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 lixed no delinite time (Ex jHirtt Cohtt, 2 L. T. N.S, 90, Bank). See also note to section 8 below, as to efTect upon this act of bankruptcy of the limitition of three montlis for commencement of priMxedings. If the intent to delay creditors can be proved, either in the ilcporture from the ctmutry, or in the remaining abroad, or can bo inferretl as the necessarj' and foreseen consequence of the tlelay actually proiluoed, an act of liankniptcy will be provecl (Kden's B. L. 1(5). A petition cannot l>c snstaineil by proof of residence abroad wh»,'re the departure was for a fair an^l prv.jK-r purpose, and not witii a view of defrauding creditors. But it is otherwise if apprehension of arrest lie coujjled with a justitia])le motive ( Warner v. Barh^r, Holt, 175). If a trader, after going abroad in the first instance for a p.t>|)er object, prfttract his residence abroail for an unreasonable time, assigning no cause for his absence, and leaving no funds, nor making any arrangements for the payment of his debts, the inference will be that he remains abroad with intent to delay his creditors (Cummimj v. liailnj, 6 Biug. ,370 ; Ex partf Kifh'rr. 3 M. 4. A. 722 ; Ex jxtrte Rhoiles, 5 Jur. 580, C\\. ) In Ex parte Bunn>/ it was held that a trader remaining abroa^l with intent, &c., committed an act of bankruptcy ilf die in diem, whether his going abroad was or was not an act of bankruptcy (1 De G. & J. 309 ; S. C. De li. & J. Bank. 119). Secreting ef- fects. Prandulent- assigning. c. Or if he secretes, or is immetliately about to secrete, any part of his estate and effects with intent to defraud his creditoi-s, or to defeat or delay their deniiuids or any of them ; d. Or if he assigns, removes, or disposes of. or is about or attempts to assign, remove, or dispose of, ^ny of his pro- AX ACT RESPECTIXO INSOLVENCY. 45 I)crty with intent to Ucframl, dufuat, or dohiy hia crciUtors, or any of thviu ; Suction G of the Knglish Banknipti-y Act of 18(59 dofiiu's the act of haiik- rujitiy coutiUi^)Iatt.>y this clatiAu : " Tliiit tliu iluhtar \ian iti Hnglaiul or else- will re iiiinlc a traiululeut ctmvc-yanco, gift, delivery, or truuitfcr of his |iro|K;rty or any part thtreof. " The words of our Act appear to corres])ond very closely in meaning with these, liiit tliey include the attempt to niaku a fraudulent assignment, a« well as the complete act. IVoiK-rty is a word of tins wideat possihle KJgnilication in law, and endiraces every description of e-ntate, real or j«ir>»onal, niovahle or inimovaitle, without regard to its nature or tenure. It is defined l>y the Kng- lish Act a.s meaning ar.d including money, goodn, things in action, land, and every description «>f i>r<>jK.rty, whether real or personal ; also obligations, ease- ments, and every dcscnption of e.state, interest, and prollt, present or future, vested or contingent, ori.^ing out of or incident to property, aa alM>ve iletincd. Any conveyance or tninsfer which has the efl'ect of defeating or delaying creditors, no matter what the motive may l)o for such conveyance, must l»e taken to have lK.en mode with that intent, and is therefore fraudulent as against creditors (Si'tnirt v. Mmxlij, 1 K'. .M. k II. 777 ; (inifntm v. C/i'ipman, V2 C. B. iJep. 85 ; 8. C. '2\ L. J. ('. 1'. 173) ; and it has heen ho hehl under the present English Act In re Wood (L. 11. 7, C'h. App. .'JO'J). As Mhere the conveyance was of all a trailers' stock to secure an antecedent debt or previous advances, even though the exjicctation of a further advance may have ijcen the primary motive for tne transfer. The reason is that the trader gets no present e([uivalent for his stock (see Lindon v. Slmrp, (} M. & (r. 81)5 ; Smith v. Ciiw- >ian, 2 Q. B. Kep. 35 ; Tfie Orhntal Bank v. Colt man, 4 L. T, Rep. N.S. 9) ; and where an assignment must have the effect of defeating or delajnng other creditors, the intent to defraud may he inferred {Xcninii v. ChanfUr, 7 East. 13S) ; and even though the debtor i.s under arrest at the suit of the itartieular creditor to whom the bill of sale was given (llt'uf., Ex parte Simpioti, De Gex Hep. 9). When a tnuler mak^.-s an assignment of all his effects, or of all except a very small portion, 't is an act of l)aukruptcy without actual fraud {Sirftert v. Spooinr, 1 M. & \V. 714 ; see Jlutton v. Crutwtll, I K. & B. 15 ; Ex jtartf Buih'ii, 5 D. M. & G. 38<>, and cases there cited) ; but when one charge upon projierty is paid off by funds raised by substituting another in onler to release the property for the benelit of the estate, the second transaction is not an act of bankruptcy ( Whiluicre v. Clar'vJgc, 9 L. T. Rep. N.S. 431, Ex. Ch.) If the necessary result of an assignment of chattels be the stoppage of bu^iiness, as well as to prevent payment of other creditors, it will be an act of bankruptcy (Re Lilburne, 12 L. T. Kep. N.S. 209 ; liolnrtxim v. J/or/r//, IG L. T. Rep. N.S. 7). A colourable exception of a part of the trader's property will not prevent this doctrine from applj^ing (Ex parti' Fuonl, cited in Burr. 477 ; Conijiton v. Bedford, 1 \V. Bl. Kep. 3G2 ; Prnnell y. Ifei/nohh, 11 C. B. Rep. N.S. 709). As when household go^nls and debts which were inconsiderable were exi .e«i (Laio V. Skinner, 2 BL Rep. 996 ; IIooi)fr v. Smith, 1 W. Bl. Rep. 442 ; or oome shares in a bank (Cannan v. Smith, 2 Q. B. Rep. 35), or a pension which would not pass to the assignee (Ex parte Hawker, In re Kieli/, 7 L. R. Ch. 214). But when a substantial equivalent for the assignment is obtained at the time, it will not constitute an act of bankruptcy (lione v. Haycock, 1. Ad. &, E. 4G0 ; Ex parte Sparrow, 2 D. M. & G. 907 ; B>ll v. Simpson, 29 L. T. Rep. 202 Ex. ; Ex parte Colemere, 13 L. T. Rep. N.S. G21 L. C. ; Marlin v. WiUiinm«, 20 L. T. Kep. N.S. 350 ; Kevan v. 2Iavcson, 24 L. T. N.S. 395). The party seeking to make it an act of bsmkruptcy must show some fact from which fraud can \>e inferred (Rose V. Haycock, 1 Ad. &. E. 460). Nor will it be an act of bankruptcy where the security is given in pursuance of a parol undertaking made at the' time of the advance (Re a iliapnted adjudication, 4 L. T, Rep. N.S. 809 ; Harris v. Rickett, 4 H. & N. 1 ; Htttton v. Crutwell, 1 E, & B. 15) ; but the promise to il ll 46 IN80LVr;KT ACT OF 1875. give Bccurity must he an abuoluto one {Kx p. .TJ'2 ; hiiu alno thu camn in our own C'oiirtH, eituil in note to Hcutionx \'M) I.S4 %i\fra). It Iiin \)mi\\ lulil tliat an aMHiunniuiit hy a triwlvr, hy wnv of mortgago of iiin Htock ami iinploincnta of tratli-, wliero such lissignmont tfiK's not inoluilu onu-half of all Iuh utiVctfi, in not per HP an act of hankniptoy, although hin ))unint>H8 may he Htopptil tiiorchy ( Yoinxj V. Wnuil, H Kxch. Ken. i;34). TnwlcrK v«;rl)ally plutlgoil tlioir giMxIs, which formed HuliHtantially tliu whole of their property, oh Hecurity for a pre* vioualy contracted deht to a creditor who already had poiBesHion of tiio uoods, and a lien on them for (uoney advanced. The dvhtors were, in fact, innolvent, hut the Jury found that the tranitaction waa entirely huiul^lulc Held, that the pledge waa not "a fraudulent cuuvcyance, gift, delivery, or trauafer" (PhUUjja v. IfonvaUde, 8 L. 11. Kxch. 20). An assignment of part of a trader's cfTecta to a particular creditor carries with it no intrinsic cvitleuce of fraud. A trader must, in the course of his business, have p(»wer to make over |iArts of his property, eitlier for past tlehts or future advances. Hut when such an act is done in contemplation of haukruptey, with intent to give the assignee an advantage over other creditors, it is contrary to the spirit of the law, and ia not only void, hut, whetiier it he hy deed, or gift, delivery, or transfer of proijcrty, is an act of bankruptcy (KcUai. B. L. 29). What will constitute an act of l"'nkruptcy of this character must depend very much upon the circumstances each case. If the conveyance or transfer is voluntary, and in ct;.;tvmplation of hankniptcy, it is fraudulent (Gihh'ms v. Phillips, 7 B. & C. r)2i) ; Reed v. Ayton. Holt, 503 ; Arhonin v. Kanhurii, Holt, 575 ; Marshall \. Lamb, 5 Q. B. Ken. 115 ; Aldredv. Constable, 4 Q. B. llep. 674 ; Van Cnatcelv. Booker, 2 Ex. llep. C91) ; hut if given to |)re3ervo credit {J far man v. Fletcher, Cowp, 117; Bannatyne. v. Leadi-r, 10 Sim. 359), or in pursuance of a previous agreement made for a substantial consideratitm (Mirctr v. Peterson, 16 L. T. llep. N.S. 792 Ex. ; 18 L. T. Rep. N.S. Ex. 30; Allen V. Bonmtt, 23 L. T. Rep. N.S. 233 ; L. R. 5 Ch. App. 577 ; Ex parte Jiecd, In re Twi'ddi'll, 14 L. R. Et^. 58<>), it will l>e sustained. A settlement not founded upon valuable ccmsideration may ho, set aside witlumt proof of an actual intention to defeat and delay cretlitors, if the circumstances are such that the settlement would have that effect (Freeman v. Pope, L. R. 5 Ch. App. 538). A sale by a trader of his gootls at a less price than they are worth does not con- stitute per ae an act of banknn)tcy (Lee v. Hart, 10 Ex. Ch. 555), even when the trader intends to abscontl wnth the proceeds (Fraser v. Levy, 6 H. &. N. 16) ; but if the purchaser is privy to such intention, it constitutes a fraudulent transfer. It is a fraud upon the creditors of a firm for a partner therein, who knows that the firm is insolvent, to assign the partnership assets as security for hia own ])rivate deht, or for future advances to he made to himself. Such an assicnmeut necessarily tends to defeat the creditors of the partnership, and ia void as an act of bankruptcy. Upon the question whether the execution of a deed is an act of bankruptcy, one part of it cannot he separated from the rest (Ex parte Snowball, Re Doiujlas, 20 W. R. 786 ; Jones v. Harber L. R. 6 Q. B. 77 ; Ex parte Tempest, Re Craven, L. R. 6 Ch. 70 ; Woodhouse v. Murray, L. R. 2 Q. B. 634). When one partner makes a fraudulent grant by deed to another partner, it ia an act of bankruptcy in the former, but not in the latter { Whitwell V. Thompson, 1 Esp. 68. See also Bowkerv. Prudakin, 11 M. & W. 128 ; Ex parte Mayou, 11 Jur. N.S. 433 ; Berney v. Davidson, 4 Moore, 126; Berney v. Vyner, 4 Moore 322). A power of attorney is revoked by bankruptcy as against the assignee (Ex parte Snoioball, In re Douglas, 7 L. R. Ch. 534). Conniving e. Or if with such intent he has procured his money, at seizm-e i i i i i • i i • i under exe- goods, chattels, lands or property to be seized, levied on, or taken under or by any process or execution having operation AX ACT RE8PKCTIX0 IX9f)LVENCY 47 whoro the ilehtor resi«lt»H or has |»n)|»frty, fotmdotl upon II (l«'iniin«l in itH nutiiiv pntvaMc iui(l«*r tlim Act, iiiid tor u Hum «'Xft»f».Iiiij^ two huiiilntl ilollarH, and if sufh proooHn ih in fon'c iind not «li.schai"y»'«l by jKiynu-nt or in ttny manner provided fur hy lu*v ; An Act of hanknintcy l»y pmcoring gncxU tn l>o taken ''n execution in nofe o«>iuniitti' coniniittcd i» unt unrri(!'J). Thi' nitre nllowiug a jutlgiucnt to go l»y default, un«Icr wjiich jur in gr.inting a jadcmcnt, no act of bankruptcy in com- mitte«l {Oore v. IJo^,l, 13 L. J. 360 Exch. : S. C. 12 M. & W., 4GH) ; and pro- ceedings nuist have l>een token at the inhUincc or with the concurrence of the ins/il, 31 I* J. Bank, o; 6 L. T. N.S. 142). y. Or if ho lijis lieen actually imprisoned or u|>on the gaol ndnRim- limits for more than thirty days in a civil action founded on contract for the sum of two hundret v. Hockin, 7 B. & C. 101). Aiiowingex- Jc. Or if he permits any execution issued against him ecution to , i • i ,» i • i i i i bouusatis- Under which any oi his chattels, land, or pi'operty are seized, leAded upon, or taken in execution, to remain unsatis- fied till within four days of the time fixed by the Sheriff or officer for the sale thereof, or for fifteen days after such seizure; subject, however, to the privileged claim of the Proviso as seizing creditor for the costs of such execution, and also to ° ^"'^ ■ his claim for the costs of the judgment under which such 'n Ml \ AN ACT RESPECTING INSOLVENCY. 49 execution has issued, which shall constitute a lien upon the effects seized, or shall not do so, according to the law as it existed previous to the passing of this Act, in the Pro\'ince in which the execution shall issue. The creditors of a deceased debtor cannot under this section put his executors or administrators into insolvency in the representative character (In re Sharpe, 20 U. C. C. P. 82). ^.n 11 fe h e o 4. If a debtor ceases to meet his liabilities generally a.s When credi- they become due, any one or more of his creditors for unse- mand a a cured claims of not less than one hundred dollars each, and amounting in the aggregate to five hundred dollars, may Fonn. make a demand upon him either personally or at his chief place of business, or at his domicile upon some grown up quired? ** person of his family or in his employ (Form A.) requiring him to make an assignment of his estate and effects for the benefit of his creditors. But the said demand shall not be made until the creditor or creditors making the same shall have filed with the clerk or prothonotary of the court in which the proceedings in liquidation (if any) will be carried on, his or their aflidavit verif3ring his or their debt or debts, and that he or they is not or are not acting in col- lusion with the debtor, or to procure him any undue advantage against his creditors. The creditor or creditors making such demand of assign- Creditors ment shall in such demand elect and appoint a domicile or assiKnnient domiciles, respectively, within the district or county in domicile.^ which such affidavit is filed, at which service of any answer, notice, or proceeding may be served on him or them ; and the said clerk or prothonotary shall keep the original and give a certified copy to the creditor or creditors ; and such copy shall be annexed to the notice served on the debtor. This clause corresponds with section 14 of the Act of 1869. It varies from it in requiring the claim of each creditor to be not less than one hundred dollars ; in requiring the claims to be unsecured ; in requiring an affidavit verifying the debt and denying coUusion, to be filed and served with the demand ; and in requiring the creditors to appoint a domicile where papers may be served. A trader having ceased to meet his liabilities, a demand was served on him on the 31st January, requiring him to make an assignment. On February 6th (the oth being on Sunday) an order was granted for an attachment, which was issued. One of the affidavits filed on application for the attachment was sworn to on February 4th ; on an application to set aside the writ and all proceedings for irregularity, it was considered — 1. That the order for the iaauing of the ' I, 50 INSOLVENT ACT OF 1876, 1,1 ;:!:li: mv writ was not made too soon ; 2. That it was immaterial that one of the affidavitH was made within the five days allowed for petitioning under sec. 3, sub-sec. 3, Insolvent Act of ISiii, or for making an assignment in accordance with the demand ; 3. That the writ of attachment should have been endorsed with a statement that the same was issued liy order of the Judge of the (bounty Court ; but an amendment was allowed on payment of costs by plaintitls (Mclimes v. Brook, I L. J. U. C. N.S. 162). "Debtor." — The word debtor is defined by sec. 2 (c). "Ceases to meet hih LiAi5iLtTiE.H genekai,lv as they become due." By the Bankruptcy Act of 1809, sec. 9, a debtor's summons, M'hich is the step under the English practice corresponding with the service of a demand here, may be issued upon proof " that a debt sutKcicnt to supp(n-t a petition in bank- ruptcy is due to him from the person against whom the summons is sought, and that the creditor has failed to obtain payment of his del)t after using reason- able efforts to do so." It is hard to say what will be suflicient to constitute a "ceasing to meet liabilities generally," and no case has been reported which 1' fixed its meaning ; but, as by see. 5 the demand may be set aside if the stoppage is only temporary, was not caused by fraud, or by the insutheiency of assets, these or one of these tests should Ijc applied in determining under this section whether there has been a failure to meet liabilities generally. "Creditou" is defined by sec. 2 {h.) above, and iiiclades co-partnershijis and companies, as well as persons to whom the debtor is liable, whether primarily or secondarily, and whether as principal or surety. .Care must be taken by the. creditor or creditors serving such demand, and by their legal adviser, that there is reasonable and probable cause for so doing. A perfectly solvent person may be much injured in business and reputation by an unfounded demand under this clause. The debtor may apply to set aside the demand upon petition under sec. 5, and l>ring evidence to prove the unfounded nature of the demand ; yet all that the Judge is empowered to do, should the demand be set aside, is to condemn the creditors in treble costs. It is presumed that the fact of a Judge awarding treble costs against the creditors would not prevent their being liable in an action of damages for maliciously abusing the provisions of the Act. Before the trader could bring such action he should petition against the demand and have it set aside. It seems that the attorney of the creditor v.'ould be personally liable for abuse of this proceeding (Johnson v. Emerson, 40 L. J. Ex. 201). It is presumed that under sees. 38 and 39 the assignee of an insol- vent could take proceedings to place the estate of a debtor to the estate repre- sented by him in liquidation. There is no provision in the section for the demand being made by the clerk or duly authorized agent, or for making the affidavit by an agent as under sec. 9, and it is doubtful whether the assignee of a debt could take proceedings under this section (Ex i)arte Taylor, 3 De G. & J. 480 ; 33 L. T. Rep. 32), even when not procured for the purpose (see sec. 5). When the creditor is a corporation, the demand, it is apprehended, should be signed by the President and Secretary, or other official authorized to sign for the company, in the usual way, and seale^J wath the corporate seal. The affidavit must be made by a person competent to speak to the facts therein set out (see In re Calthrop, L. R. 3 Cli. App. 252). ' * Shall File an Affidavit. " — The affidavit must verify the debt. The debt, it is conceived, must be one provable in bankruptcy (see note to sec. 9 infra). By sec. 14, an assignment made in pursuance of a demand under this section may be set aside for a substantial insufficiency in this affidavit, by any creditor on petition. The clerk of the court is to keep the original affidavit and give a certified copy to annex to the demand served. Sec. 105 designates the persona who may take affidavits to be used in proceedings in insolvency. It has been held that an act of bankruptcy concerted between the bankrupt and the applying creditor would not support a fiat (Ex parte Oouthwatte, 1 Rose, 87 ; Ex parte Brooks, 1 Buck, 257 ; Bam/ord v. Baron, 2 T. R. 594 n. ;. AN ACT RESPECTING INSOLVENCY. 51 Eyre V. Birhock, 2 T. R. 505 n). But a creditor not privy to such concerted act might avail himself of it (Ex parte. Bourne, 16 Ves. 145). The bank- rupt's agreeing to an act of bankruptcy at the suggestion of a frien;. When one petitioning creditor applies and fails to proceed, it is not competent for another creditor to apply for adjudication on that petition {In re Bristoire, 3 L. R. Chy. 247). A limited company can maintain a petition in bankruptcy for an adjudication, and the secretary of the company can make the necessary oath {In re Calthorp, 3 L. II. Chy. 252). Under the Insolvent Acts, a creditor, whose debt is immatured, may com- mence proceedings against his debtor, who is insolvent, in like manner as he might have done if his deljt had been overdue at the time. But in a case where it appeared that the debtor did not owe more than one hundred dollars beyond the creditor's debt, none of which was at the time due, the Court directed that he should be allowed further time to show, if he could, that he was not in fact insolvent, and so not liable to have his estate placed in com- pulsory liquidation (/« re Moore v. Luce, 18 C. P. U. C. 446). The obligation to pay a sum of money under an order of a court of equity, although placed for some pxirposes on the same footing as a judgment at law, is not a sufficient petitioning creditor's debt {Ex parte Blencowe, 1 L. R. Ch. 393). It does not appear whether a demand is necessaiy in every case before appli- cation is made for assignment, but as this section does not expressly require that demand be served, it is probable that the Judges will issue writs of attach- ment, as heretofore, upon being satisfied of the debtor's insolvency, Avithout demand. The demand seems to be intended as an inquisitorial proceeding, to call upon the debtor to show his solvency, or else make an assignment, or become liable to attachment. ^ Wliat are the facts and circumstances which should satisfy the Judge ? By sec. 19 of the Act of 1869, the affidavit was required to set out "the insolvency of the person indebted, and any fact or facts which, under that Act, subject the estate of such debtor to compulsory liquidation. " By sec. 20 of that Act, which regulated the procedure in the Provinces other than Quebec, it was said that the affidavits must set out facts and circumstances to satisfy the Judge that the debtor was insolvent with, 'he meaning of the Act, and that his estate had become liable to compulsory liquidation {Royal Canadian Bank v. Matheson, WRITS OF ATTACHMENT, Ac. 55 6 U. C. L. J. 9). In this section the words " within the inenninf; of the Act "' have ht'f'n omitted, ami \>y sec. *-!(/. ) the word "insolvent" is declared t<» mean a ilebtor suhject to tlie provisicHis of this Act, ami unahlc to meet his engagements. The form of athdavit, clanse 3, fonn li, roiinires a statement of the filets wliich render the debtor insolvent ; and it would still aj>])ear neces- sary that a si>ecitic act of bankruptcy should he clearly established, or non- compliance with a demand which had not been successfully impeached. (See in this eoimection .sec. 18 and note thereto, and lioijal Canadian Bank v. Matlumn, G U. C. L. J. !)). 10. The service of :i writ of attaolimcnt issued against a Servic^of debtor under this Act may he made upon liim as jirovided made, for the service of an ordinary writ of summons in tlie Province wliere the service is to he made, and if such debtor remains without sucli Province, or conceals himself within such Province, or has no domicile in any Province of the Dominion, or absconds from his domicile, in every such case service shall be made by such notice or advertisement as the Judge, or in the Province of Quebec the Judge or Pro- thonotary, may order. Concurrent writs of attachment is.sued against a debtor And of con- , - . , , . . , , , . ••iirrtut may be executed without being previously served upon him, writa. except in cases whei*e such debtor has his domicile or a place of business in the county or district in wliich the same is to be executed, when the writ may be served at such domicile or place of business. This section is similar to sec. 21 of the Act of 1869. The direction as to the mode of service is new, as is also the jjower given to the Judge to tUrect service by advertisement. It has been held that a Judge in insolvency has power to rescind an onler made by him for substitutional service of a writ of attachment (Eaton v. Shannon, 17 C. P. U. C. 592). Under the fonner Act it was also decided that when a trader in Ontario became insolvent, and an attachment in insolvency issued to the Sheriff of the county in which he resided, the County Court Judge had jurisdiction to issue another attachment to the Sheriif of any county in Canada in which the Insolvent had property (in rt Beard, 15 Grant, 441). 11. Writs of attachment shall be made returnable forth- Time for re- with after the execution thereof. And immediately upon Noti.;e of the receipt of a writ of attachment issued under this Act, the Official Assignee shall give notice of the issuing thereof by advertisement (Form D). • -- - By sec. 22 of the Act of \869, writs were returnable after the expiry of three days from the service thereof, with an allowance of one day additiimal for every iifteeu miles iii distance from the residence of the debtor to the place of return. 66 INSOLVENT ACT OP 1875. Duty of t*i, Tlio Olficiiil Assignee by himself or by such Deputy cxt'i iitiiig (whicli word bhull in this Act include Deputies) as ho may tippuiiit hIuiII, under such writ of attachment, seize and attach all the estate, pro}>erty, and effects of the Insolvent, within the limits of the county or district for which he is appointed, inchuling his books of accounts, moneys, securi- ties for moneys, and all his office or busiiiess pai>ers, docu- ments, and vouchera of every kind and dcscri^jtiou ; and shiill return with the writ a rejjort under oath stating in general terms his proceedings on such writ. \Vlicn the guanlian make? a reaaonahle claim to gotvls seized under execu- tion, on aimlicatiou of the Sheriff an interpleader issue will be directed {Buriu V. Steel, 2 L J. U. C. N.S. 181)). Assignre jJJ, If the Official Assignee or his Deputy is unable to iiKiy break . ^ t. •/ open iiouse, obtain access to the interior of the house, shop, store, ware- house or other premises of the insolvent named in the writ, by reason of the same being locked, barred, or fastened, such Official Assignee or De})uty is hereby authorized forcibly to open the Siime in the presence of at least one witness, and to attach the property found therein. The words " in the presence," &c., to the end, are new. See sec. 24 of the Act of 18G9. M' AssigniTiRnt, wlien and to whom it may be made, etc. ASSIUNMENTS, AND PROCEEDINGS THEREON. 14, A delator on whom a demand is made by a creditor or creditors who has or have filed the affidavit required, or against whom a writ of attachment has issued, as provided by this Act, may make an assignment of his estate to the Official Assignee appointed for the county or district whei'ein he has his domicile, or wherein he has his chief place of business, if he does not i-eside in the county or district wherein he carries on his business ; and in case there is no Official Assig.^ee in the county or district where he resides or wherein he cai-ries on his business, then to the Official Assignee for the nearest adjoining county or district ; but such assignment or writ of attachment may be set aside or annulled by the Court or Judge for want of, or for a sub- stantial insufficiency in, the affidavit required by section four, or by section nine, on summary petition of any creditor ASSION'MENTS, AND PROCEEDINGS THRREON. 57 to the amount of not loss than ono hundred dolhii-s beyond the amount of any security wliieli ho holds — of which peti- tion notice shall have been given to tho debtor anil to the creditor who made tho demand of assignment or who issued the writ of attachment, within eight diiys from the publica- tion of the notice thereof in tho OtHcial Gazette. This Act has alxilished the system of voluntary assignments which obtained under former Acta, and an assignment is now only permitted after demand, or writ of attachment issued. 'J'he olHcial assimieo should, before accepting an assignment, be satisfied that tho provisions of section 4 or of section 9, as the case may be, have been complied with. In the former case, it is presumed the production of a demand with a certified copy of the adidavit annexed, and in the latter of the cojiy of the writ of attachment served or evidence of the issuing of the original writ, should bo rc(piired. An a8.signment, it has been held, is not valid unless acejjted by tho assignee {Bfcfier v. Blackburn, 23 C. P. U. C. 207 ; Yanhujlun v. Lijon, 12 (Jrant, 308). Under the Act of 1869, a difficulty sometimes arose from a deljtor making an assignment after writ of attachment had issued, from a conllict of autliority between the interim assignee and the guardian. A similar question may still arise between official assignees, where the debtor, carrying on business in two different counties, makes an as- signment to a dill'erent official assignee from the one to whom a writ of attach- ment has already issued. As a further check upon fraudulent or collusive assignments, the Legislature has provided by this secticm that a creditor may apply wpon petition to set aside the writ or assignment. The only ground upon which the proceedings to enforce compulsory li(iuidation may be contested by a creditor, mentioned in this section is "for want of or for a substantial insuffi- ciency in the affitlavit required by sec. 4 or by sec. 9," from which it would Bcem that these affidavits cannot be contradicted by the petitioning creditor under this clause. As to the time within which the application must be made, when it is to set aside a writ of attachment, notice must be given within eight days from the publication of the notice under sec. 1 1 ; whereas, when an assign- ment is attacked, the eight days are to be counted from the publication of the notice required by sec. 20, because there is no other public notification of an assignment provided for. AVhcther an assignment is valid when there is no estate or effects, is a question which has been much discussed in considering former Acts ; but as no assignment can be made without the active concur- rence of one creditor at least, it is not likely to be of much importance under the new Act. As it may, however, be sometimes a matter of doubt when there are large privileged or secured claims, the following cases are referred to : The question of the necessity for producing assets was raised, but not de- cided, in Re Smith (4 Prac. & (Jhr. Ifep. U. C. 91). It was contended, on the one side, that because the preamble of the Act of 1864 recites that it is ex- Sedient to make provision for the settlement of the "estates "of insolvent ebtors, where there is no estate there could be no jurisdiction. On tho other side, it was said, that the first section extended the application of the Act to "all persons." In Re Brett (unreported), on the ajiplication for a discharge, the late Judge Harrison, County Court Judge for York and Peel, decided that the absence of assets was, in itself, no bar to obtaining a discharge. The point now seems to be authoritatively decided (Re Thomas, 15 Grant, 196). This was an appeal from an order of a County Court Judge, absolutely refusing to grant a discharge on two grounds, one of which was, that the insolvent had no estate. Vaukoughnet, C, thought the County Court Judge wrong in the reasons assigned for refusing the certificate, and says: — "The want of assets does not appear to me to be, in itself, a sufficient reason for refusing the discharge." i - 5S INSOLVENT ACT OP 1975. K'l; But when a voluntary asMignmont w:is mado as a mere fraa«lulcnt «lcvico to avoiil |i.-iyment "f n t, there lieiiig no iVHst;t», it wa» c<>ri-«iil»>rv«l siiHieient to warrant tlicJmlge ill itfusiiij,' II tliHeli;ii>,'e( 77i'>//j(j. P. U. I'.l'. I7*J). If an insolvent very Mlmitly l)ef(>ie lie applies umler the voluntary a«ti^unent eLiuscs (li8i><>3c> of all IiIh property for the piirpoHe, amonj; itthcr tliiuga, of de- fraying the ex|KiiHcs of Ilia Holieitor in passing him thnmgh the court, and therehy leave notiiing whatever for IiIh ereilitor.s, hi^ application m.iy lie refused (AV Dufivir, « I., r. N.S. !<).") ; !{,< \Yit»»n, (> L. T. N.S. 'J-kSi. The fraud ui>on eredit4>r8 in using the assets to fee a solieit(»r, instead of brining them in, seems to l»e tlie groiiml of these deeisioiis ; and set? R< Xttrimtrk, 6 L. T. N. S. 755 ; Ex parte Murri/ion, 10 Jur. N. S. 787 ; Ex paiit Mitchdl, 1 I)e <;. 257. When some of the partners an! domieiled in one county and others in a different county, tlie assigiinieiit should l>e made by all jointly, and all pr<»cecd- iniTs carried on in the county wliore the husiiiess of the firm is traniei-s, stocks, bonds and other securities, and generally all assets of any kind or description whatst>ever which he may be possessed of or entitled to up to the time of his obtaining a discharije from his liabilities, under the stimo charges and obli- gations as he was liable to with reganl to the siime ; and the Assignee shall hold the same in trust for the benefit of the Insolvent and his creditors, and subject to the orders of the Court or Judge ; and he may upon such ortlerand before any meeting of the creditors, institute any conservatory process or any proceeding that mxy bg neeessi^ry for the protection of the estate ; he may also, upon such orvler, sell and dis- pose of any part of the estate and eliects of the Insolvent I A8SIGNMRNTH, AND I'UOCOEDlNnS TIIRIIEOX. 69 bbli- the the the wliioh may l*o of a |KM-isliHhlo nature ; Huch nshigniiiout or Ceruin writ or writs of nttiichraont hIiuII not, however, vest in the exirpud Assiynee svidi real and |M'i-s(»nal |in)i>c'rty uk arc exoiii|»t from MjUure. seizure and sale under execution, hy virtue of the sevvnU Statutes in that case made and proviiKul in the Hevcrid Pro- viriff's of the Dominion respectively, nor the property which the Insolvent may hold as trustee for otluirs. Tliia sootiun varies verj' consitlernMy from sootion 10 of the Act of I860, upon wliicli it is fituniled. That section only ineluiliMl voluntary as«igiinient«, and by SCO. 29 of that Act tiie a])iMiiiitiiieiit of an asfiignuo afUr writ of nttachment iasueil, was dvclan»l to have the same eifcot as to vesting property of the insolvent. The worila "all right, power, title and interest," kc, are comprehensive enough to include powers vested iu the insolvent as trustee or otherwise for the benetit of others, which, hy sec. 40 of the Act of I8t!!>, were specially ex- cepted from tlie o]K.Tation of an assignment. There is no sei-tion corresptmding to sec. 40 «)f that Act. but the last clause of this section excepts proiK;rty which tiie insolvent may hold as trustee for others. It is probable that the penenal jurisdiction of the Court of Chancery in all matters relating to trusts wiiuhl place it in the power of that i.'ourt to api>oint a new trustee in case of the bankruptcy of a former one ; although it was thought necessary to clothe the Court in Kngland with that power by statute (6 Geo. IV. c. 16, s. 79 ; 12 & 1.3 Vic. c. 106, s. I'M). These provisions, how- ever, do not render it imi»erativc on the Court to remove a trustee from the trust upon his bankruptcy ; but he will be removed if his bankruptcy in the smallest degree endangers the trust {la re Bridijmnn'n Trust, 6 Jur. N.S. 1065). In case of the bankruptcy of a trustee, the Court of Chancery may a{ii>oint a receiver to act in his steaerty as are exempt from seizure and sale under execution ; (2) property held by the insolvent as trustee for others. Property which has been placed in the hands of a man for a specific purpose will not pass to his assigne^i upon his bankruptcy. As where bills of exchange were remitted to bankers in London with permission to discount them for a particular purpose, and they were not in fact discounted ])efore the bankruptcy of the banker to whom they were remitted, they were ordered to be delivered up to the assignees (Ex parte Frere, Mon. & McA. 202). If goods be sent to a factor to be disposed of, who afterwards becomes a bankrupt, and the goods remain distinguishable from the general mass of his property, the principal may receive the gootls in specie, and is not obliged to prove his debt ; and even if the goods be sold and reduced into money, if it be distinguishable from the ti'h 60 INSOLVENT AOT OF 1878. faotor'H otlior proi)erty, tlie law is tho iiaiiio ( TooW v. ffoUintjworth, B T. R. 2ir>). If All (txuciitor liuui»iiiL'!i haiikruitt, tho antignuu cannot aci/u tlio iiit'citic eUVcts of tliu testator, not vvvn in money wliicli can hv Hpocitionlly AHcurtiiincd to l)(loin» to the tcstntor an tlio bankrupt (llitvnnl v. Jemnifft, 3 Hurr. 13!)*). Si!« alMo Tn>)lor v. Pltnner, 3 M. & S. 575 ; Scott v. Sunumi, Willos, 400 ; Whitcomh V. Jacoh, Sulk. 10(» ; an«l CotUr v. Musou, 30 Q. B. U. C. 181). AIho, whoru a bankrupt was allowed by hi.e ansi^noes, anf, 2 Jur. N.S. 8M). The a88ignn)t*iit will nut dinplace • xdicitor'a lien for cnntii, or entitle the asaigiac to poHHtMiiion of the paiieri. Whore a |>artnL-r of n tmdiii^' finii wliicb haankru|itcy were not entitled to an onler for a delivery up to the aHfli^^necs of the {Ki|icni in tho soliuitor'H ])OH8e8iiioii, Hul)ject t<» their existiiij,' lieu (/« r* J/ox*, 'J L. U. Kq. 34.'>). A payment made hy an insolvent after the issue of a writ of attaehnient against him, on account of a draft disc(»unted l>y linkers for him, and which was dishou mred hy iion- acceptance, is recoveral»lo l>ack hy the uificial aattignee, though the hankers were ignorant of the insolvency when they received the money from him (A'o« V. Hoi/al CaiiadiHn Bunk, 19 C. 1'. U. C. 347, followed by Rot v. Bank qf Brituh. Xorth America, '20 U. C. C. P. 351). An assignment mailc by a copartnemhip vesta in the assignee tho scparato •states of the partners as well as the ciijiartnership estate ; and tho removal of the assignee at a meeting uf the cre«litor8 has the effect of removing him with respect to the separate estat<;s as well as the copartuerbhip estate (In re Mac- farlane et al, 1'2 L. C. Jur. 239). " Which he may be Pos.se8srd or." — These wortls are introduced into tho Act for the lirst time, as the Act uf 1869 only used the words "which he has or may become entitled to." What may l»e the precise effect of these words it ia ditticult to say. The wonls are certainly much more comprehensive than before. Whether they will be construed as introducing tho English doctrine of reputed ownership (as to which see sec. 15 of the English Act of 1809 ; Dor. pp. 4(55 etc. Ifoi/it/l V. Bolle, 1 Ves. 348 ; s. c. 1 Atk. Hio ; Joif v. Campbell, 1 Sch. & Lcf. 328: Load v. Green, 15 M. ft W. 210; WhUfiefd v. Brand, 16 M. & W. 28() ; Ex part- Cross, 18 L. T. Kep. 348 ; Horn v. Baker, 9 East. 215 ; Re Daniil, 25 L. T. Rep. 188 ; Ex parte Lonj, 31 L. T. Kep. 270), that all goods and chattels, at tho commencement of the bankruptcy, in the pos-session, order, or disposition of the bankrupt by the consent and permission of the true owner, of which g(K>ds the bankrupt is rcput*.-«l or ost nsiblo owner, are part of the estate of the bankrupt, and divisible among the gtmcral body of creditors. It is presumed that the registration of a chattel mortgage or bill of sale under the several statutes in that behalf in the different provinces will protect the true owner of proiKjrty from the claim of the assignee of an insolvent who has had the possession as ostensible owner. (See Con. Stat. U. C c. 45. Consult also sees. 130-134 in/ra, and notes thereto ; Dor. 470, 471 ; Pvoche & H. 22 etc.) Notoriety of usage in the particular trade may rebut the presumption of ownership (Horn v. Baker, 9 East. 215; Ex parte Whigins, 2 D. & Ch. 269; Linfjham v. Begijf, 1 Bos. & P. 82 ; MulleU v. Green, 8 C. & P. 382). So where the true ownership was public and notorious {Re Shaw, 18 L. T. Rep. N.S. 355 ; Newport v. HoUings, 3 C. & P. 223 ; Waison v. Peache, 1 Scott, 149) ; where the course of trade is such that the trader must have the goods of other people in his possession, such possession does not hold out a fahe credit to tlie world (Bn/son v. Wylie, 1 B. ft P. 83, n. ; Ex parte Dumas, I Atk. 232; 2 Vca. 586; Cotter v. Ma.^on, 30 Q. B. U. C. 181); as in the case of factors, goldsmiths, bankers, watchmakers with whom watches are left to be repaired (Hamilton v. Bell, 10 Exch. R. 545). Goo^ls sent on terms of sale or return, and which have not actually been deliveretl, do not pass to the assignee {Re Ashton, 19 L. T. Rep. 191 ; see Neate v. Ball. 2 East. 117 ; JAvemy v. Hood, Camp. 83) ; nor goods so sent which arrive such a short time before bankruptcy that a reason- able time for the purchaser to select those which he wrished to retain had not elapsed {Gibson v. Bray, 8 Taunt. 76). Goods ou hire under special agreement ni 62 INSOLVENT ACT OF 1S75. II arc not in the order anil disposition of the debtor {Ex parte Emerson, Re Hawkins, 20 W. R. 110; 41 L. J. R. Bank. 20). •' Under the same Charges and Oeligations as he was liable to with REGARD TO THE .SAML." — These are the only words which refer to the rights of those having liens or pledges upon proporty of the insolvent, as to wliich a special proviso was inserted in sec. 10 of the Act of 1869, and would seem to leave, in favour of and against these classes of persons, the same rights and remedies with respect to the assignee, as there would have been had no insol- vency occurred, except where sec. 74 as to landlords, sec. 83 as to judguicnt creditors, and sees. 84, 85, and 80 as to mortgagees, or sec. 91 as to employees, may provide a sj)ecial right or remedy. See these sections and notes tliereto. M., wlio was holder of goods under an unregistered bill of sale from C, paid out a Sheriff who was in possession of the goods, and took possession thereof in ignorance of the fact that O. had been adjudicated bankrupt ; subsequently M. gave up possession of the goods. Held, that the sum paid the Sheriff should be repaid to M. (Ex jMtte MuUkju, In re Cole, L. R.. 14 Eq. 178). The power given to institute conservatory proceedings is similar to that given to the interim assignee or^aardian by sec. 33 of the Act of 1869. The power to disjjose of goods of a perishable nature is new. By 23 Vic. c. 25, the articles exempt from seizure in the Province of Ontario are the following : — 1 . The bedding and bedsteads in ordinary use by the debtor and his family ; 2. The necessary and ordinary wearing apparel of the debtor and his family ; 3. One stove and jjipes, and one crane and its appendages, and one pair of andirons, one set 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 tackle and seines as are in commoa usu ; 4. All necessary fuel, meat, fish, flour, and vegetables actually provided for family use, not more than sutlicient for the ordinary consimiption 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. The tools or implements of, or chattels ordinarily used in, the debtor's occupation to the value of sixty dollars. In the Province of Quebec (Code Civ. Pro. art. 556) the following is the list of exemptions : — 1 . The bed, bedding, and bedsteads in ordinary use by the debtor and his family ; 2. The necessary and ordinary wearing apparel of the debtor and his family ; 3. One stove and pipes, and one crane and its appendages, 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 weavmg looms in domestic use, and ten volumes of books, one axe, one saw, one gun, six traps, and such f .?hing nets and seines as are in common use ; 4. Fuel and food, not more than sufficient for thirty days, and not exceeding in value the sum of twenty dollars ; 5. One cow, four sheep, two hogs, and food therefor for thirty days ; 6. Tools and implements or other chattels ordinarily, used in the debtor's occupation to the value of thii Ly dollars ; 7. Bees to the extent of fifteen hives. 1 1 f-.h >;! ASSIGNMENTS, AND PROCEEDINGS THEREON. 63 :nt In New Brunswick and Prince Edward's Island, wearing apparel and kitchen utensils to the amount of fifteen pounds, and iu Nova Scotia to the value of forty dollars, are thus exempted. 11. The Insolvent shall, witliin ten days of the date of insolvent to " " ' • r \ furnish the assi"iilly, 01' rcpinsontcd l)y some jkji-sou having a written mee ngs. authority, to 1h; filed with the Assignee, to act at any or all such nic(!tings on his l)ehalf, and no more thati one pei'son shall vote as a crcditor on any claim for the same debt ; per- sons purchasing claims against an estate after insolvency, shall not bo entitled to vote in respect of such claims, but shall, in all other i*es[)ect8, have the same rights as other creditors ; and no claim after being jiroved shall be divided and transferred to another ixii-son or party to increase the number of votes at any meeting : each claim shall continue to have one vote only in number. Claims not to be (livid- fid for Vot- ing. Aa to who are crdun.ira entitled to vote, see sec. 2 (h.) supra; as to mode of calling the meeting, ace sec. 101 ; and as to the mode of voting, sec. 102 Infra. The claims of creditors must be proved in the manner provided by sections 104 and 105 I)efore they are entitled to vote. Under section 5 of the Act of 18G9, if no creditors attended the meeting, no adjournment being made, the interim assignee became assignee, and there was no provision for calling another meeting for the purjiose of appointing an assignee ; this, however, may now be done, and the olhcial assignee remains assignee of the estate unless or xintil such meeting is called. The official assignee is to retain the estate until security is perfected by the newly-ajjpointed assignee, sec. 30. The appointment of an assignee must be by resolution in writing, a copy of which, duly ccrtilied, is to be transmitted to the clerk of the court. It would seem that the nixmber of creditors present at the meeting for the appointment of an assignee is not material ; it has been held that if one only be present, he may elect himself (Cooke, 28G). The assignee, whom the creditors are empowered to nominate imder this 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. At a meeting of creditors held for the purpose of giving their advice upon the appointment of an official assignee of a partnership estate, it was held that the creditors of the individual partners, as well as the creditors of the tinn, had the right to vote in the choice of an assignee (Luxtori v. Hamilton e general hody of creditors {Er parte (^(iinh/, M. & McA. H)S) ; or is an accounting party to the estate (Kj: parte lintt'^', 1 Bank k Ins. Kei). 28')). The Court will set aside tho choice of tho creditors, and direct a new one to he maile, if the parties voting in the choice he not entitled to vote (/i'-c parte Jtowc, l)e(5 ; Ex parte Ihittectill, 1 Rose IDo). But where the majority of the creditors were accidentally excluded from voting iu the choice (Ex parte DechapeanraiKje M. & M. (J. A. 174) ; or had not suffi- cient notice to enable them to be ])resent (Ex parte ^forrl<, 1 Dea. 498), a new choice will be directed. So also where the assignee had been chosen without his consent or knowledge and declined to act (Ex parte I\arsoii, 3 Dea. 324). If an assignee appoints a s(dieitor who is related to the insolvent, and refuses to remove him, he may be himself removed (Ex parte Jiate-^, 1 DeM. & G. 452). If an iissignee be guilty of any misconduct, or misbehave himself in the trust reposed in him, he will be removed and ordered to pay the costs consequent upon his removal (Ex parte AiKjIe, 4 1). & C. 118). So an assignee may be re- moved where he improperly connives at the insertion in the insolvent's balance sheet of a petitioner's debt, or when the assignee becomes insolvent (Ex parte Perriier, 1 M. I). & D. 276 ; Ex parte Surters, 12 Ves. 10) ; but the petition must be presented promptly (Ex parte Caslett, 1 Moll. G2). Mere poverty, though of itself not a sufficient ground of removal, yet if attendeil by sus- picious circumstances, as the use of fictitious votes in the assignee's election, will warrant a removal (Ex parte Copelavd, 1 M. & A. .30;")). As stated already, the Court will remove an accounting party to the estate from the office of as- signee (Ex parte MeiiM, 4 1). & C. 725 ; but see Ex parte Doi/le, 2 iVIoU. 149). ^\ here an asisignee, acting under a liouil fide belief that all the other creditors were to be compounded with, agreed with the bankrupt to compromise his own debt, the court declined to remove him (Ex parte Dacison, 2 Bank & Ina. Rep. 89). If an assignee abscond, or become permanently resident out of the country, another will be chosen in his place (Ex parte Hliju'ins, 1 Ba. & Be. 218 ; Ex parte Grey, 13 Ves. 274). By the English Act of 1861, sec. 124, continued re- sidence out of England for three months, is a sufficient reason for removing an assignee. Assignees will not he permitted, cither directly or indirectly, to bccoine pur- chasers of any of the insolvent's property (Ex parte Badcork, M. & McA. 231, 238) ; and any assignee so purchasing without leave of the Court, will be re- moved, and ordered to account for the profits (Ex parte Alexander, 1 Dea. 273) ; but see (Ex parte Thomson, 9 L. J. Chy. 17), where the purchase of a small portion only of the estate by the assignee did not justify his removal. Where there was no doubt of the respectability of an assignee, and the creditors were desirous of continuing him in his otHce, an had given their sanction to the application, he was permitted to bid at the sale of the bank- rupt's estate (Ex parte Moreland, M. & McA. 76 ; Anon. 2 Russell, 350). Ill 72 INSOl^VENT ACT OF 1879. If an a8iiigncc wish t<> |>urc-h!iHo at any Halo of tlio insolvont'ii pntpc-rty, he must tint petition tliu Court to bu tliMcliargnl from liis otKou (Air ptirU Alfx- aiutfr, I iK^a. -73), wlu-n tlio court will iiuiko tlio onltT, Init the |ictitioner must pay his own costs of thu pi-titioii (h'x /xirff /'« /•/>•!, 3 M. I). & I». ;W5). This ](otition niunt )>c' Mirvol on tho itisolvcut, iind in Knit,'lau«l, whi-rv there is oftun nioru than ono iiNHii^nuu, upon tho co-unsii^nuu (t'x jutrU tkf/t, 4 Maiid. 45U) ; here nu iluultt tho inspector hIiouIiI bu nutitied. The ilutics of -■ aigneo are to confornj himself to the law ; auay over ami deliver to him all such estate and property, including all .*.nni.s of money, books, bills, notes and docunient.s whatsoever be- longing to the estate, and to execute in his favour a deed of assignment in the Form H. !(1. Every Assignee, on his becoming such, shall give notice of his api)ointment as such by advertisement iu the Fonn I, and by a copy thereof scnit to each cretlitor by jKist and |Mjst-paid. 3'i, No Assignee shall act as the attorney or agent of any creditor in reference to any claim or deimmd of such creditor on an insolvent estate of which he Is the Assignee. 33* An Assignee may, however, on l^ing autLorizeurjM).sc, rcvoko tlio uppoiiitiiKUit of any or uil tlio said Iii.siH'ctorH ; ami upon Huch rovooation, or in case of death, r«.si;;nati(m, or ubsriico from the Pro- vince of such Ins|KH;tors, may appoint others in their Htead ; and siu'li In.siK*ctors may Vhj paid m h remuruiration as the R.-miinira- creditors may determine ; and whenever anything is allowed Hi^-t 1 11 1 « ' •<• 1 II . , to |>iir>hait<- (lon<^ by the sole InsjK'ctor, it only om* has heen aj)pointcd. Ihb-Ivimu' lint no Assi^^nee, as Insp«'ctor of any insolvcuit estate, shall purclm.so directly or indirectly any part of the stock-in- trade, debts, ur lUMetd of any description, of Huch insolvent estate. Tho provisions of this clause are higlily iniportaiit. Iii.s^)ect<>ritbip of thin kind is unknown in the English ))ankni|>tcy laws, umk'r winch insjK-otors are only api)ointc'ok after tho intere.st8 of the sepurutu or of tho joint creditors as a eLisf ( If}j- IKirtc Milrs, 2 llosc, G8 ; Ex pitrte liusano, 1 Rose, 2GG ; Ex jntrle Hobrrtji, 29 L. T. Hep. 31K)). •50, The creditoi-s may, at any meeting, pass any reaolu- ^'*P^i **' tion or order directing the Assignee how to disi)0se of the I'lioivent. estate, real or jiereonal, of the insolvent ; and, in default of their doing so, the Assignee shall be subject to the direc- tions, ordei-s and instructions he may from time to time receive from the Inspectors, with regard to the mode, terms and conditions on which he may dispose of tho whole or any part of the estate. 3T. Any one or more creditors whoso claims in the oi.jectionti ag}n"ey:ate exceed tive hundi-ed dollax'S, who may be dissatis- ""><<« "f "i'"- fied with the resolutions ailopted or orders made by the estate, creditors or the Inspectors, or with any action of the Assignee for the disposal of the estate or any part thereof, or for postponing the disj)osal of the same, or with reference to any matter connected with the management or winding \ ^ jf the estate, may, within twenty-four hours thereafter, give to the Assignee notice that he or they will apply to the Court or Judge, on the day and at the hour fixed in such notice, and not being later than forty-eight hours after such notice shall have been given, or as soon thereafter as the parties may be heard before such Court or Judge, to w -i 74 IX80IAKNT ACT OF 1875. Ki'uiiriKiiy rescind Hiicli rf'KoIutidfiH or onU'in. A.iul it kIiuII iMMiiwfiil I null or JiHiKti. for tlu) Coiirt or Ju«lj;<% jift«»r hearing tlin InM|»('(;t<)rH, the AHHi;,Mioe, 1111(1 crnlitoi-H jiit'sont at tlio tiiim and \thu:o. ho fixod, to approvo, rnseind or modify tli«' snid rt'MolutioiiM or oi'd«'rs. Ill Ciisf of tlu^ appUratioii iM'iii;^ rcfusjid, tlir party applyin;^ h1i;i!I pay all costs occasioned thcrtd.y, otherwise the costs and the expenses shall he at the dimsrotion of the Judge. Thin clivusc in imw, Mid ^ives t<» n niirority of eroditnrH who may l»o (linsatis- lioil, a voiy valualtlo Hafeguiird iigiiiiiHt iiapropor inaiiaguineiit of thu u^itate. PowcrH of iDHiilvcnt vtiHti^il in AMrliglUlU. ProviHi) ns to Hale of entire tiiitatti. *|H •W. The AHsi<^neo sliall exercise all the rights and powers of the Insolvent in reference to liis property and estate. And ho shall wind up the estate of the Insolvent, by the sale, in the ordinary mode in which such salens are made, of all bank or other stocks, and of all movabhj projierty be- longing to him, by the collection of all debts or by the sale of the estate of the Insolvent, or any part thereof, if such bo found more ailvantageous, at such price and on such terms as to the payuient thereof as may seem most advan- tageous : Provided that no sale of the estate eii bloc shall bo made ■without the previous sanction of the creditors given at a meeting called for that purpose ; and provided also that no such sale shall affect, diminish, impair or j)Ostpone the pay- ment of any mortgage or privileged claim on the estate or property of the IiLsolveut, or on any portion th(ireof. suTtbrdebts 39. The Assignee, in his own name as such, shall have ven/'Ti!* *^® exclusive right to sue for the recovery of all debts due to or claimed by the Insolvent of every kind and nature whatsoever; for rescinding agi'eements, deeds and instru- ments made in fraud of creditore, and for the recovery back of moneys alleged to have been paid in fraud of creditors, and to take, Ijoth in the prosecution and defence of all suits, all the proceedings that the Insolvent might have taken for the benefit of the estate, or that any creditor might have taken for the benefit of the creditoi-s generally ; and may intervene and represent the Insolvent in all suits or pro- ceedings by or against him, which are ])ending at the time scrra axd inhpectoiw. 75 of liiH ap|K>ititiiiont, ami on Imm apitlinition iiiiiy hiivo IiIh naiiM> ins<>i-to(l tlu'i-fin in tin* |»l«c« of tlmt <»f tin* IiiMoIvrnt. And if, after an lUiHi^^nnirnt lia-s Wh-ii nta«l«>, or a >^'rit of attachniont liiut isHiml unrt'iii. A. and B., trmlera, ina4lv an OMii^nicnt under the Insolvent Act. A fud^pnont at law having la-en ohtained u^'ainst A. his intereHt in tliu partnerHhip OHHots wiM Hold for a nonn'nal considcratiun t^i C, who hiul notice of the inHolvencv proceed ingH. ('. then entered into iM«i«ei«iinn of and otIierwiHe interfered with the |)artnert)hip gotxlM, so as to hinder the ]daintitrs from exeoiitin^ the duties of their ollice ; an injunction was CTanteil. on a]>p!ication of the aHHignees, to restrain the defemUint from further interference. {WiUun v. Corby, 11 Grant, D'J). An ohjection was raised to an application under this provision hy an oflTicial assigiiee to ho allowed to intervene and represent the insolvent in a suit wherein the inH(»lvcnt was plaintiff, on the ground that the insolvent ]iIaintitT was a foroijinor, neither resident nor domiciled in Canada. Tlie point is of nmch importance, antl was rai.sed, though not decide«l, in .)/» l/nii v. Xichnllx (27 Q. B. U.tJ. 107). It was considere1, sec. 'J77, to enact tliat it should extend to aliens and tlenizena, hoth to make them si * ject thereto and to entitle them to all the benefits given therehy. To a suit for foreclosure against the assignee of the estate of a l)ankrupt mortgagor, the bankrupt is not a necc-isary party (Torrance v. Winlerbottoni, 2 (Jrant, 487). A bill filed by one of the creditors of an insolvent to recover property alleged to belong to the insolvent's estate, on the mere allegation that the assignee in insolvency refused to sue without an indemnity against tlie costs of the suit, ami that the plaintiff, through p«iverty, was unable to give such indemnity, is demurrable (DacUs v. i>neH, 2 De<;. F. k J. 463). Even the charge of frauil, in a bill filearty to the suit. Following Gilbert v. Leici^, a «lemurrer by an insolvent, on the ground that he was not a proper l)arty, was allowed in Wiltton v. Clmholm (11 Grant, 471), where a bill was lileil by assignees under the Insolvent Act to set aside a settle- ment executed by the insolvent, on the m."irriage of his daughter, with a secret trust in his own favour, the bill also charging that the insolvent defendant was in the enjoyment of the proj)erty. It is remarked in the judgment that *' one reason given for allowing parties to a fraud to be made defendants in certain coses, though no reUef except costs is prayed against them is, that the plaintiff 76 INSOLVKNT ACT OF 1875. may l)o assured of his costs," and it imist bo atlmittcd that this reason can seldom be ap[)licat)lo to the case of a baTdirui)t. As a f^eiieral rule, a .suit in Chancery is not abate[)lieation, will dismiss the bill (but, n-i it seems, without costs) unless the plaintilV make his assijfiieeH, or upon noti(;e, tliey mako tliem- Belves parties within a limitcid time ( WU/'uiinx v. K'ukIit, 4 V'(!S. .'W7 ; Wheeler V. Mdllim, 4 Madd. 171 ; Porter v. C'w, 5 Madd. 80 ; Sharp v. Unllell, 2 Sim. & Stu. 4!)(5), or a bankrupt or insolvent may proceed, if the suit is neces.iary for his jtrotection (Anon. I Atk. 2(i;{ ; 1 Maild. U. 42;")), or if his assignees do not think fit to prosecute the suit, and he conceives that it is for his advantage to do so {Loirnde.'i v. Tai/lnr, I .\la bTi) but it seems that he must ])etition for leave to use the name of the assignee for the jnirpose of tlie proceeding, he inilemnifying them (5 Ves. 587 51)0 ; Ileiijiehl v. Soloinon/i, 9 Ves. 77 ; 3 Madd. 1()8) unless he set:ks his personal protection only against a demand which cannot be proved, or vvliich the persfui making the demand may not think lit to prove, or from which he may not be discharged (Mitford \'a[. VI. 81 ). But see Pdi/nc v. DHrr ( L. 11. (J ('h. Aj)]). 578), -where it was ludd that a bankrupt camiot file a bill Avithout ajjplying to the Cjourt of J>.'inkruptcy, and that leave to amend a bill liled witiiout authority shouhl have been refused witli costs. (See also Motion v. Moojen, L. It. 14 Va[. 202 ; Cdiiieroii v. /'Jui/er, 9 U. C. L. J. liChi). If through oversight the assi^uee is not nuide a party, the pro- ceedings do not appear to \>v, wholly void {JiuJ:.s v. Ji'inlM, 2 lili. 5!).'} ; J'l/lauds V. Lntoarhe, 2 lUi. 5(;(; ; Freeman v. Pennlii'jlon, 3 DeO. F. & J. 2It()), but the Court may make such order as the justice of the case requires. At law, suits commenced by a bankrupt were always aUowed to be carried on in his name for the benefit of the estate without the assignee becoming a party (liililnuH v. Mantel, 2 Wils. 358 ; Jfeimt v. Maiitd, lb. 372 ; Kretchman v. lieiier, 1 'V. li. 4G3 ; WaiKjk v. Amlen, 3 T. 11. 437 ; Andrews v. Palmer, 4 B. & Aid. 252). Partnorsiiip .|0 jf r^ partner in an unincorporated trading' company dissolved Ijy ^■"■» 1 ^ I n I J in8oiv(!ii(y or coi^artnershi;) becomes insolvent witliin the meaniui' of ofapartucr. _ ^ ... this Act, and an Assi^'neo is appointed to tlio estate of such Insolvent, such partnership shall thereby bo held to be dis- solved ; and the Assignee shall have all the riglits of action and remedies against the other partners in sucli comj) my or co-par< nership which the said Insolvent partner could have or exercise by law or in equity against his co-partners after the dissolution of the firm; and may avail liiiusolf of sucli rights of action and remedies, as if such co-partnership or company had expired by efflux of time. The enactment here that a partner diip becomes disso!'ed by the bankruptcy of a member of the firm ia merely the repetition of a well understood doctrine of the English law. C. entered into an agreement with R.. that II. should buy antl sell goods on behalf of C, and that the business should be carried on as U. & Co., ii. being paid by a salary and a percentage on profits. The business was managed by It., but O. had bought goods for it. Each Ijccame bankrupt, an' was held that the ])ook debts and stock-in-trade of 11. & Co. were joint estate of the two {Li re Mowlaud d: Crankuhaw, L. II. I Chy. App. 421). ASSIGNEES AND INSPECTORS. 77 One mcmhcr of a firm was adjudicated l)aiikrii)t under the English Act of 1801, the others heing out of the jurisdiction, and tliere was no joint adjudica- tion. The joint ereditor.s proved (lel)Ls to many times the amount of the separate debts, and aj)[)ointiid as assignees one joint creditor and the nominee of another. Separate estate was got in to an amount sutHeient for payment of a hirge divi- dend on tiie se[)Uiate debts ; l)iit no joint estate had been gi> in. A separate creilitor, with the assent of nearly all the other separate creditor.",, api)li(!d for an order that a Tueeting of separate creilitors might be held for apitointing an inspector to protect tiieir interests ; and it was hehl that the st!parat(i creditors ought to be at liberty to a))jioint one, but that he must not take any steps without tiie sanction of the registrar [Ex jxirfe Mi.lfjourn, in re Mclhourn, L. II. 6 Ch. App. 83')). K., a partner in the firm of K. & Co., being entitled by the articles of part- nership, and desiring to withdraw a sum of money from the capital of the firm, whi(;h was in a state of ins(dvency, bills of exchange to that amount in three sets wei'e bought by and made payable to the order of the firm, and tlie first set of bills were endorsed by K. & Co. and delivered to K. K. died without receiving payment of the bills, and the first set were lost. The surviving i)art- ncrs executed a creditor's deed, and tl>e secon court. Held, that K. was not entitled to withdraw the money when the firm was insolvent, and that as the money had not actually reached his hands, it belonged to the joint creditors {In re Kcnqitner, L. It. 8 Efj. 280). 41, Every Oflicial Assignee, or Assignee appointed by the cr(!ditors, shall, in every case in which ho acts as snch, keep a register showing the name of each Insolvent who hfis made an assignment, or against whom a writ of attachment has issued, his residence, place of business, and the nature of his trade or business, the date of the assignment, or of the issue of the writ of attachment, the amount of liabili- ties acknowledged by the Insolvent in his schedule of liabilities, the amount of claims proved, the amount of c>" position, or of dividends paid, and whether a discharge has been granted within one year or not, the amount of divi- dends renuiining impaid after throe months from the declara- tion of the last dividend, with such other information as the Assignee may deem of general interest with referenc to each estate, — -which register shall be open to the inspec- tion of the public, within ofiice hours, at the office of such Assignee; and the Official Assignee, or the Assignee, as soon as he takes charge of any estate, shall open a sep^-^ate book for each such estate, showing a debtor and creditor account of all his receipts and disbursements on account thereof. Re^intor to \w k(!|it by OfJW'ial Asai;'uee. Assignee to opun sepa- rate ac- count witSi each estate. •': i : i d: ' ■ I ;- •' :- 1 ■ ■ t - 1 ,: 1' ■;- i 1- j '■ ' 78 INSOLVENT ACT Of 1876. n m Df»posit fif Non-Dlflciiil Aiisigiiuu, AssiKTifns uiKlcr tills or any foiirier Act must ol)t;iiii ilis- j)ay over baliiiic(!8 to Il^citivcr- 0«ni^riil with HWdl'll uu- couut. Assignee to be J aid only by coiuiiiis- sion on amount realized, And actual nee. :ary dlKOurae- meutis. As to em- ploying oouuHel, tc. And ovory Assigtuio, other tlian an OlTiciul Assignee, siuill, within ono mouth uftor lio sliall have avouihI u[) the estate of any Insolvent, ami obtained his dischai'g(!, (l(^[K)sit the r(!;,M.ster Iccqit by him as aforesaid, with reference to such estate, in the oflice of the Ollicial Assignee of tlie county or district, where it shall remain for thtaining his discharge, and every AssigiKie under any iVct hereby n^pfstled, shall, within th'rty days after obtaining his dischai-ge, or tlie closing of his accounts as such, or within tliirty days after the coming into force of this Act, if he has obtaincid his discharge or closed his accounts b(;f<>ro its coming into force, pay over to the lieceiver-General all moneys belonging to the e.state then in his hands, not required fur any purpose authorizcid by this Act ov any Act hereby re{)ealed, as the case may be, with a sworn statement and account of such monc^ys, and that they are all ho has in his hands, under a penalty of not exceeding ten dollars for each day on which he shall neglect or de'lay such payment ; and ho shall be a debtor to Her Majesty for such moneys, and may be compelled as such to account for and i)ay over the same. 43, The A.ssig)i(!e .shall bo ciutitled to a commission on the net proceeds of the estate of the Insolvent of every kind, of five per cent, on the amount realized not exceeding one thousand dollars, the further sum of two and a half per cent, on the amount realized in excess of one thousand dollars and not exceeding five thousand ('ollat.s, and a further sum of one and a quarter per cent, on the amount realized iu excess of five thousand dollars — which said commission shall be in lieu of all fees and charges for all his services and disbursements in relation to the estate, exclusive of actual expenses in going to seize and sell, and of dLsburse- ments necessarily made in the care and removal of property : No Assignee shall employ any counsel or attorney at law V, i.thout the consent of the Inspectors, or of the creditors ; ASSIGNEES' ACeOUXTS, COMMISSION, Ac. 79 but oxponsos incurred by einj)loviiig such counsel or attor- ney with such conscsnt, shall Ix; paid out of the estate, if not recovered from any party lialjle tlierefur : TIk! romuncratiou of the Ollicial Assis^nee, when lie is n'm'incrd- '^ ' _ turn ectors, creditors, or .]n{\'^i\ shall l»o J^uilty of a misde- mcianor, and shall he liahh;, at the discretion of the (J(jurt before which Ik; shall be convicted, to punishment by imjirisonrru^nt for a term not (!xc(!e(lin<( thi-e(; years, or to any greater punishmcuit attaduid to the offence l>y any statute. 4ft. Upon the death of an Assi;,mee or Oflicial Assi-^neo, or upon l»is nsmoval from office, or upon his dischari,'n, when tlie estate shiiU become vested in such other Assignee or Oflicial Assignee. 4T. After the declaration of a final dividend, or if after usin;; due dili<;f!nco the Assi'OKJO has been tinablo to realize any assets to be divifled, the Assignee shall prc^pare his final account, and present a petition to the Ju'.)" or in either osed composition, and such ofi'er be a))pioved of by a majority in luimber of such creditors present at snch meeting, the Assignee shall call 6 ! • i :■' m wir- 82 m Notice of i/ii;i:tiiiK. may ))f ap- proved or nut. Propfic«11ng8 whf;n ron- Hent is ob- taiued. Cf.rtifloafe, and what it shall eou- tain. INHOLVKNT ACT OP 1875. another ineoting of tho croditorH to tako suoli consoTit oi Buch (leod or otYvr of coiripositiou and discliiirg(! into con- sideration ; ami in (.'very case Hucli decsd of composition or offer of composition sliall bo on condition, wli(!tli(!r the .same })(', exjtres.sfid or not, that if the sarrK! )>('. earrifsd out, the Insolvent shall pay the costs incurnjd in insolvency, includ- ing those for the confirmation of sucli composition. 50. Such meriting shall he called liy at l(!ast one adver- tistsment puhlisli(;d in the (Jj/ktal (Jazettn stating the time, place, and object of tin; meeting, and also by a hitter or card postpaid, addnjssed by mail, at lea.st ten (hiys bcifore the rxieeting, to each of the cniditors nuaitioned in tho list of creditors fnrnislKjd by tho Insolvent, and to all other ci'oditors who may hav(! ])rov(;d their claims, altho\igh not nientiorifid in the said list, indicating in substance, in addi- tion to tin; tim«!, phice, annH which may have l)eli- out of the estate for th«j unsecured creditors, and shall, niti..«.f«tiv:- . The only proviHion in that Aet .similar to the one in thi.s section, rcfpiiiirif^ a certilicatt; from the a-snignee, was, that nmU^r Kuction lOfJ of that Act, the Judge mi;^ht re([uire frorn the as.signee a report as to the conduct ot the iuB(jlvent and the state of hiu Ixk^Ls and ali'airH. The mode of ascertaining the jiroportion of creditors necessary to a valid discharge under thi.s section dill'ers in two j)arti(:ular8 : 1. Umler tliis HCctiou there must he a majority in numhcr of criMlitors who have jtrovcd ; formerly it was tlie majority in niiinherof the creditors, whether all hnrl proved or not. Under sec. 94 ol the Act of 1801), the words were " who are r('Hj)ectively creditors ;'" in this section the words are " who have proved > ..tims." '2. They are recpiireil to represent at least three-fourths in value of all the clainjs of one hundred dollars and upwards which have hcen proved ; whereas formerly they were to represent thiee-fourths in value of the hahilities of the insolvent, sub- ject to l»c computed in asce given by one advertisement in the Ojfficia', (Jazelte, and also by letter or card postpaid, acldressed to each of the creditors by mail, at least one month before presenting the petition to the Court or Judge ; and upon such application, any creditor of the Insolvent, or the Assignc^e undcu* the authority of the creditors, may appear and opjHiso such conlirmation. ttiveu. ()l)poBition ull lowed . Confirma- tion of dis- charge. Affidavit of Insolvent to he pro- (luuud. 54- If it appears that all the notices and formalities required by law have been given and observed, and that no objections have been mad(! to the proposed dischaj'ge or composition and discharge, the Court or Judge may, without further notice and on the petition of the Insolvent, confirm his discharge or the proposed composition and discharge ; but in case it appears that objections have been made to such discharge or composition and discharge, the ap])lication of the Insolvent shall not Ije heard until at least three days' notice shall have been given of the same by the Insolvent to the Assignee, the Inspectors, and to the creditors who shall have objected to the said discharge, or proposed composition and discharge. 55. The Court or Judge shall not confirm the discharge or proposeil composition and discharge of the Insolvent, unless he shall have produced with his application an affi- davit in the Form K., showing that no one of the creditors who have signed the Siime, has been induced to do so by any preferential paj ment, promise of payment or advantage what- soever made, secured or promised to him by or on behalf of tlie Insolvent, and a certificate from the Assignee that he has COMPOSITION AND DISCnAROR. 85 dolivcrcd ii sworn Htatoincnt of lii.s liiihililics uiul assets na requirtil \>y this Act. Siii. 'rii(» Iiis()lv(!nt sliiill not Ix; (Uitillcd to a coiidrriiatiou wii.'n iim of his tlischar^c, or of a (h^ed of coniitositioii and dischuri^t!, sinii not in* if it appoars to tho Coiirt or JudL(e tluit ho lias not ol)tain bc.n suitable for his trade, or that if having at any time k(^pt such book or ])ooks, lu; has refiisc^d to produce or deliver them to the Assignee, or is wilfully in d(?fault to obey any provision of this Act, or any order of the Court or Judge ; but in the Provinces of Ontario and Quebec, tho omission _ , . '^ ' Proviso as to to keep such books before the eomio'' into force of thV 187S. Ix'fon* tlu» (•oiniii;^ in foi'cr of tlio Tnsolvoiit Act of I8G4, or in tl»c I'niviiico of Nova Scotiii rr New I>iuus\virk U'fon* the c'oiiiiii;^ into forcn of tlio Iiisolvout Act of lK*VJ. or in the Provino<'s of Hiilish ( !<)l(imhiii. Priiu;*' K'lwanI Uhin«i, or Munitolji, licforo tho coniiujij into foive of this Act. Tho ]»roviai<>iis i-i>nt;iiiieil in this stuitioii, uinKjr wliifh orotlitora may o|)Jm»w tlio iliscli.'ir;,'!; of ,mi irisolvout on (Ik; <.'i<»nii(l of friiul (ir fraii'liiKiit prv't< r.'iice, an- of wiilt; .i|iplif;iti'>ii. Tliis «! out liadilities wli(!iR'Vcr iiicurroil, wljutlnr hcfori! or Hii»c<; tlii! |»:i;-!.siiii4 of tlic Act «»f |S(>I ; .iml it is only r<.;is'>iirii>!<.- that th< i-oniliict of thit iiisolvi nt in ooiiiioction witli lhf3 infMiniii^ of th<.-su Bivniu li.ihilitics shoiiM Ins (;his(>ly .siruttiiizc-iu:ii to an i;ariicr «hitu than 1801. VVliere a traiU-r, whose wliohj proporty Avas heavily iiiortjjagi'il, am! wh<» haay, (dttaini'il cr>tlit from Moutrinl niurcliants, concealing hid true poisition, falsely idliging that he uas w<»rth $4,()(tO more than hu owed, ami tliat he had no ciigagtnicntM ho cnuKl not meet, he Wis held to Im; guilty of Hii«;h fraud as disentitled him to iiis discharge under the Alt, althou'.di committed Ixfon; ISIil (A'l' 0»v /^s, 12 (irant. 'MR) ; and see AV Slitun; ti l)e(;. McX. k (!. 'jr.;{ ; /.V /',„•,•, 17 <' I'. T. C «>'JJ). It would Kcem that no other ground;! than tliose set out in tliis clau»o can l»c taken in o})p(>sitin and dniif, 13 (Jrant, .lOS). The neglect t<> keej) prf>[)cr l)()oks of account is a most serious lircooh of duty, causing great jiossihlc injury to creditors, and tending to raise strong distrust of the integrity of the dehtor ; and Mr. Chief .Justice Ha jarty says (//* /r 1,11 inh, 4 I'rac. & ('lir. Jtcps. U. Vj. 21) that "it would he well alwayd to punish such a hreach of tluty in a severe and exemplary nuuinor." A discharge, when connrmed, i.s finally and conclusively to l>e taken to h.ave l>een executed l>y the ])rrpcr jmtportion of creilitors necessary to give it validity, luit it docs not give to a deed or a cfinsc;nt in writing any greater effect than is j)rovided for in the deed i>r consent itsidf, or in the cla>iscs of the Act proscribing their ctlect {.SItnw v. Matidv, 21 i). V. U. tJ. 270). On an application for an order of discharge, the insolvent is entitled to reaon hearing tlie ai){)lication for confirmation of such discharj^e, the ohjec- tions thereto, and any evidence adduced, shall have |jo\ver to make an order eitlier contirniing the di.«cliarge or annuilini^ tlie same according,' to tiie effect of the evidence so adduced. But if sucJi evidence shouM l>e insiifticient to In certain .'ii'ier of ti7s- suotain any of tlie grounds hereinbefore iletailetl as forming i.e 'im'..ii'iud valid grounds for contesting such confirmation, but should nevertheless establish that the Insolvent has been guilty of niLsconduct iu the mauagement of his business, by exti-ava- I'll' COMPOSITION AND DISCHARdK. 87 >janco in IiIh pxponsca, rookh'ssncss in «'iHlorsiin^ or bpcoming HiiHity f«)r otlHMH, continuing Jiis truth! unduly aftt-r ho l)olievi!il himself to In* insolvent, incnrrin,;^ dflits without a roasonahlo oxjMrtaition of payiin,' tli(!in (of which rcasonahlo «X|»!ctation llin proof shall li«» on him, if KU<;h di-ht wii« j<'ct to any condition tonching any Kalary, i>:iy, emoluments, |>rofit, wago.s, earnings, or income wliich may .after- wan Is ItL'como due to the hankrui»t, ami toucliiiii,' after ae'juired jiroperty of the hankruj.t {/{r Anil^-nion, d L. T. Ucp., N.S., 8:{7, Hank ; /.'<■ /niitnii, 6 L. T. N.S. <)(),"), i!ank|. It seems that it is not in tlie discretionary power of the Court to refuse or suspend the order of discharj^e, wlicn the hajtkrupt hiis not been guilty of eoinluet amounting to a frauil under this Act (see I'Jj: junt" Udnll, lie Afi'ir, L. T. IJep. N.S. 7.S2, Ch. on ajipeal ; Ex parte O'Iimi and Elliott, R" lioHwaU, L. T. IJep. N.S. 407). A conilititm which the insolvent has not the means or power to comply with, or whicii dei>ends u|kiii the act or will (»f another, should not he imposed by tho Judge (In re. U'li/Zw, 29 Q. B. U. C. 310). Much the same effect as a refusal of a discharge has ))een ol>tained in Eng- land hy an adjournment of a dehtor's examination, hIik^ d'u'. Where au attorney was adjudicated a liankrupt as a hill broker, and on his linal e\amin.".tion it ap- peareut ni>t such an offence as would justif}* an absolute refusal of an order of discharge (Ex ptirt^ (Uriimmltf, 10 L. T. Kej). N.S. eal (Ex jiarii' O rum miff rr (irninmitt, I'J Jur. N.S. 738), where it was hehl that the adjournment of the last examination must be governed by the same rules as the granting of the order of oiseharge. A discharge cannot be refused because applied for to get rid of tlamagcs in an action of seduction (Ex jntrfe Cnihlrce, Rr Tui/lor, 10 L. T. Rep. N.S. 361) ; nor does the tu^t of damages and costs being recovered against a bankrupt in an action for breach of promise of marriage atford any gnjuud for opiwsition to his discharge \n. Pearse, 9 L. T. Rep. N.S. 349) Where a person in business finds himself imablc to pay 20a. "^he pound, it may or may not l)e his duty to discontinue his trade, accord to circum- atajuces : coutiuuing his business may be a frauil, but is not necessarily so. A '.I li! !|l IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 11.25 LA 12 8 |Z5 u lU |2.2 * 140 12.0 I U IIIIII.6 v^ 7. V y /^ ^ K8 INSOLVKNT ACT OP 1875. trader, after diBcovoring that he was not in a position to pay 20s. in tlie poiuul, continued his ImsinesH in the hope, wliich was not flliown to have heen uhHurd or unreasonable, that he would therelty be able to piy all his del»ts in full and meet all his engagements ; anti in the courtie of business so eontinued contraeted some new es,4nry to- make an assignment. The cireumstances were not considenMl sufficient to dis- entitle him to his discharge. The insolvent is eutitknl to reapod oi 59. A deed of composition and discharge may be made may be con- Under this Act either in consideration of a composition pay- able in cash or on terms of credit, or partially for cash and partially on credit ; and the im-^ment of such composition may be secured or not according to the pleasure of the If condition crcditora signing it ; and the discharge therein contained may be absolute, or may be conditional u{x>n the condition of the composition l)eing sati-sfied ; but if such discharge be conditional upon the coniTxxsition being paid, and the deed of composition and di.scharge therein contsiined should cease to have effect, the Assignee shall immediately resume possession of tho estate and effects of the Insolvent in the be not ful filled. il . A". ^-idBlJBSR tKji'r.-^rjKJY Rank of crnilitors thereafter. COMl'OSITIOX AND DISCHAROE. 89 state and condition in which they sluill then be : Providod ulways, that the title of any bond Jitfe piircliaKcr of any of the asuetH of the ewtate Hhall not be inij)aiiTd or afl'octed })y this section ; but the creditors hohling cLiinis which were provable before the execution of such deed, hhall not rank vote, or be coniputed as creditors concurrently with those who have acquired claims subsecjuent to the execution thereof, for any ^'reat^n- sum than the balanco of composition remainin<^ unpaid ; but after such subsecpient creditors have received dividends to the amount of their claims, then such original creditors shall have the right to rank for the entire iuilance of their original claims then remaining unpaid, and shall be held for all purposes for which the projiortion of creditors in value recpiire to be ascertained, to be creditoi-s for the full amount of such last mentioned balanco. This clause differs from see. 95 of the Act of 18G1) in two respects. 1. It does not contain the clause which says that the deed may contain in- structions to the assignee as to the manner in fvhich he is to proceed and to deal witli the estate of thi^ insolvent subse<£ucnt to the deposit of the *leed. 2. It contains a new i)rovi80 saving the rights of purchasers of the assets of the estate from an insolvent who has not compHed with the terms of the deed> Tl>e provision of this section postponing creditors of an insolvent, who have handi'd hack to an insolvent his estate to the claims of those who have dealt with him 8ul)se(|uently, is only a declaration of a principle which had already been acted up. .39."), following Trou(fhton v. (JUkij, Ami). G39). The equitable principle which governs in these cases is, that if a man having a lion stands by and lets another make a new security, he shall be postponed (See Kerakoose v. Brooks, 14 Moo. P. C. 452). Under the English Act of 1801, v/hich contained provisions similar to this Act, a deed of composition contained a clause that the creditors did re- lease all actions and contracts whatsoever which the cre«litors then had, or which they at any time thereafter might have against the bankrupt by reason or on account of any debt or debts or contracts from the beginning of the world to the day of the date of the deed. It was held that the release was not un- reasonable inasmuch as it must be taken to be restrained by the whole scope and object of the deed and confined to causes of action which could be proved by a creditor in bankruptcy (HaseUjrove v. Huusp., L. R. 1 Q. B. 101). This power given to a majority of creditors assenting to a deed of composition to bind the non-assenting minority, is a statutory power, and must be exercised » ;t: J 1, i ;' 90 INSOLVENT ACT OF 1876. plil bond Jiile for the honofit of all creditors. If therefore there in a framluleiit Wr- gain for the henetit of Homu (»f the eretlitora, or if the majority of Uie ireditore arc iixhieed l»y friendly feelings towanU the debtor to ai;eei)t a eoni|)OMition greatly diHjirojiortioned to the aHseta, the Court will hold the deed not to he binding on a non-assenting creditor, lint if the a.s.senting majority appear to have exereiHed their di«erction lutiid Jhl" for the hcnelit of the creditors, the (Jourt will not sit in review on the (/Hdn/niii of the comixmition (/» rr Cnwrn, 2 li. II. < 'hy. rAV.i ; K.C jiitrtr DiacDii, In re Deacon, L. K. 4 Ch. App. 87 ; and see L'u- parte Uouttt, L. 11. l! Chy. 5!>). A pt^rson who carried on hudines;! in partnerHliip cxecutetl a composition deed for the henelit of hi.s separate creditors only, which was a.i«ented to hy the re- quisite statutory majority of separate creditors. The lirni was also indei>ted, and it was held that the deed was not binding on a dissenting separate creditor, for it should have provided for all classes of the insf composition, paying lOs. in the pound. S(mie of the creditors declined to assent, hut subsequently being informed that the recpiired number had executed, they took the amount of the instalments remitted to them and said nothing. The f oacli jj.irtncr, a;^ well n» those of the Jirm (/« re Curralt «f Co. 28 Q. a U. O. 2(50 ; ^l//aw v. Harmll, 30 g. B. IJ. C. IGo). In tho case of Srllni v. /VjVp (Fj. U. 2 l']x. 189) the (lefoniit the party uf the second part eould sue upon it as trustee for all, and as well for the non- assenting creditors as those who had as.'^entcd to it (Srtttt v. Birnj, ,S H. & ('. 9()()). A ei>ni])(i8ition deed \\.ia held not to prevail against a non assenting creditor, liecause there was an iiiireasonalde delay in executing the deed (liirkf v.i'liirkr, L. It. ,~) lOx. I'.tT). When creditors have accepted a composition under a deetl it is not open t(» them to contend that it was not projierly executed by theni (Allan v. Uarnttt, HO i). B. U. ('. 177). And it seenis, a , for a debt due before the execution of the deed, and the debtor neglects to plcail the deed, he is estopped from afterwards setting up the relejvse to defeat the execution [Itosui v. BaUty, L. 11. 3 Q. U. G-'l). A comi>ositi(m deed under the English Act of 18G1, between an insolvent and his two partners, of the one port, and certain trustees on behalf ttf the under- signed creditors of the insolvent and his two partners, of the other part, by which all the estate and eU'ects of the insolvent and his two partners were assigned by the insolvent and his two partners for the bciK^fit of the creditom of the insolvent and his two jjartners, atforda no answer on equitalile grounds to an action Jigainst the insolvent by a creditor for his separate debt (Eiiropi-an Cnifral ll'i'ihrit;! Co. v. W. li. Wc^liiU, L. H. 1 (). 15. 107); ami see u.s to effect of composition deeds to bind non-iissenting creditors, ani, L. H. 1 Q. R. MV.f ; Cn.4i/ v- Cihuoii, L. 11. 1 Kx. U'2,J!y the retpiisite oro- portion. If the period of two niontiis, alloweil to cretlitors to bring in tlieir claims, has elapsed, there will be very littlu ditUuulty iu telling whether thtf deed lias been properly executed or not. This secti(m from analogy to decisions upon the English Act, would seem aot to bo retrospective ho as ti> bring within its jjrovisions a deed of conij>osition executed before the statute came into o])eration, as a'.,'.iinst a creditor wiio had not executed it (Mnrnh v. /{Ifjiihti, ID I,. .1. i'. V. 2!>7) ; but it would probably apply to instruments entered into, l)ut inchoate, at the time of the .\ct coming into force, ami since comi»lt!ted ( Witiii/h v. Miildlcton, 8 Kx. 352 ; 22 L. J. Ex. KW; iMi-pvnt v. Hihlni, 24 L. J. Q. iV. .'101 ). An unreasonable provision in a compitsition deeil will render it invalid against n3 ; ami see ArmUit,j>'y. Ihibr, 10 L. T. Rep. xM.S. .52(5; l{UU,i. v. linrrhiii, 10 L. '\\ Hep. N.S. aS? ; WooiU v. Footf, 1 H. & C. 841, in error ; LcUjh v'. PimUrbunj, 10 .Tur. N.S. 2%). By an .igreement between a debtor and one of his creditors, the latter agreed to accept, by way of composition, ccirtain notes of the debtor, payable at specilied dates ; anil it was provided that the debtor sliould also give his note for the whole debt, and tiiat if he were guilty of any tlefault in paying the composition notes, the creditor slumld rank on his estate for the wliole debt. The notes were given accordingly, the debtor made default, ami afterwards was proceeded against under the Insolvent Act. It was held that the stipulation as to the whole debt was not illegal, and that there having l)een defaiilt before the insolvency, the ereilitor was entitled to prove for the whole debt (/« re Miliar, 15 (irant, 408). Trustees of a composition deed, before they allow a creditor to sign, are l)Oun7). The assent should be absolute and umiualified (Johnmn v. Oxenton, L. R. 4 Ex. 107). It wivs formerly held under the English Acts that a deed of composition was not binding on a crelitor who hvd not executed it, unless such deed provided for the distribution of the whole of the debtor's efieets [Ti't'ci/ v. T(ti/litr, 1 El. &B1. .ISi; n.lur. 1.30; Fi-^lier v. IMI, 12 C. B. 3(53). The ChanecUor (Lord Westbury) settled the conllicting decisions upon tiiia point, by decitling that a complete cen^io hunorum was not imlispensable to the validity of such a deed as against uon-;i3.«.enting creditors (Ex pirte Mon/an, 7 L. T. liop. X.S. 730; and see Ex parte lliwlinij.% 7 L. T. Rep. N.S. 582). When a deed of composition was made between the nndern'iffiied parties, cor- porations and firms, &c., of the lir^t part, and the insolvents of the second part, and contained a covenant by the insolvents with the parties of the iirst part, to deliver the notes mentioned on request, and it was objected that non-assenting creditors were not placed on an eijual footing with those who had signed, it was held that there was not such an inenuality in the deed as to render it invalid (In re Lawson Bros., 5 U. C. L. J. N.S. 232). ! ^^^m COMPOSITION AND DISCIlARnF. 93 A deed of composition in not binding u|k)u non-osHi-nting crcditorn, uuIcm pmceedinux niu t:iki-n iindfi- the Initolvent Act, no ah to Imnii; the |H;rHon and estate of the delttor under the «>)>erution nnd control of tlie iiiHidvtnt law {O'reiu V. Sinn,, '22 V. (". C. I'. 'Ml). A plea of udiHchiugt! under the Act of 18«y whicli did n«»t sli(»w that the defendant was a trader waa held to he defective {Dm/if, V. WnfHoii, Xi q. l\. i;. C. I7:{). The statute of ISO'J did not, nor docs thJH Act, re(|uire the aHuignee to Ikj a party to tlie deed. The composition and diHcharije is an nrraiigeniciit hetween the eretlitors and the debtor alone {Uiuilijf V. M'ntmni, tye contented Judge may suspend any paymenjt or instalment of the com- position falling due under the terms of such deed ; and the deed of reconveyai ce need not confctiin any further or more special description of the effects and pro|>erty re- conveyed, than is required to be inserted in the deed of as- signment, and may be enregistered in like manner and with like effect ; and such deed may be executed before witnesses Form of or before notaries, according to the exigency of the law of the place where such deed of composition and discharge is to be executed. Tlie firsit clause of this section, imposuig upon the assignee the duty of recon- veying the estate to the insolvent, is new, see section 96 of the former Act. As to the effect of such reconveyance, sec section 75 et tcj., as to the sale of real estate. mr 04 INHOI-VKNT ACT OF 1875. Kffmt of 01. The confirinatioii of tlio disc^lmrw of a doctor in th»» uotillriii.ilion , , •111. ..fiiisciiir^.,. in.'tniKM- iKJi-t'iii pcovKii'd Klmll ansolutclv frsc(piently furnished to tho Assign(!e ; whetluirsuch debts be exigildo or not at the time of his insolvency, or be conU'stctl in whole or in pai't, or be dependent on certain conditions or future contingency, and whether tlu; liability lioiiprsof for them bo direct or indii-ect : and if the hohler of iiny nap run- negotiable paper is unknown to the Insolvent, the insertion Insolvent, of the particulars of such paper in such statement of anairs or supplementary list, with tho declaration that the holder thereof is unknown to him, shall bring the debt represented by such jKiper, and the holder thereof, within the operation of this section. Under this section it is proposed to consiiler at length the nature and effect «f a discharge under the insolvent laws, the moat important question perliaps that can arise, and which has becu the subject of a number of decisions iu uur own courts. At the threshold we find a very important change between the law as it now stands and as it oxisteil uncaled, and no similar one is substituted in this Act, but by this section it is enacted that ''the confirmation, &c., shall absolutely free/' rendering necessary a confirmation in every case. In consequence of this change also, sec. 102 of the Act of 1869, which enableil creditors to compel an insolvent to apply for confirmation, has also been struck out. The liabilities hereinafter specially excepted are those mentioned in section 63. A substantial compliance with the provisions of this section is all that is required, and it is not necessary that the exact amount should he named in the schedule, if there is no intention to mislead, and the attention of the creditor is COMrnglTION AND DIHCIIAROE. ff ."^tirticiontly «liri'cte»l to his tMtt l>y the entry (Caniprun v. llttHnml, 29 Q. B. U. C. WMi ; Fitrmmi it al. v. Prnr, 4 It. & ('. IS ; H'oo*/ v. Jmntt, oit«vi
  • .H V. rkk/oni, 14 Jur. 'H'2 ; Strp/unxoii v. (,'rtate," and was entered ats such in thu schedule of liabilities exhiliited Ity the defendant at tliL' lii-st meeting of liis (;reditorH, that the plaintilV resided in (iruat Britain, and was represented in this country by certain |>ersons as his agents, who were notilied of thu appointment of an assignee, and leipiired an such agent* to prove tho plaintilfs claim, the plea wan uidield (/-'//•/»// v. O'X'if/, 'J2 I'. C C. V. IM). iSo, thu case being one of compulsory li(piidatiori, the absence of a schedule containing the name of aplaintiil', was held a good renlication to a pica of a «liHcharge after the lapse of a year (I'ltlnur v. liithr, '12 IJ. V,. C. I'. .VJ). An antecedent debt in re8iM3ct of whicli an in8(dvent had received his dis* charge is a sutiieient consideration t«> support a promise to pay, given aft4.-r the discharge (AnMia v. (Jordon, .32 Q. B. U. (!. G2I ; Trufinnn v. Fmtoii, 2 Cowp. 544; UnhertH v. Manjan, 2 Ksp. 7.%; Jiin-h v. Slmrliiml, ! T. II. 7I;"»; Jinx v. Braham, 1 Bing. 281; Jiix/ont v. S(Vtni/<-rM, 2 fl. Bl. I hi; /An'.Vy v. iJiNon, 2 Burr. 73(5), but the later Knglish Acts contain a sjiecial pntvision, prohibiting an action on a sub8e*iueiit promise to pay a ilebt from whicli the bankrupt was ilistharged. A discharge under this Act will not prevent a party from l)cing committed upon a judgment sumni«ins uiuler the provisions of the division Courts Act. A party applying for protection from arrest should show clearly that the name of the plaintitf was in his schedule, and this is not sutKeiontly 7. Plaintid' had proved his claim for the full amount of the judgment in the Insolvent Court, ami had never attempted to take any proceedings under the writ, which he refused to withdraw, although re(4ue8ted to do so (JJirlinsun v. Bunnell, 19 C. P. U. C. 2IG). * . English bankruptcy law is binding on the Colonies, and an English com- position dee«l containing a covenrnt not to sue may be plea:i|K«r, or nn gimnintor, Huroty or othcrwiso, nor of liny piirtncr or othor |H;rH<>n liiihln jointly or HoviM'jilly with til)' Insolvent to Riich creditor for iiiiy r('s.s consent ot the cretlitor, to any tleht for enforcinj^ rMrteiniiibts the payment of which the iinprisonnient of tho debtor \h perniittetl hy thin Act, nor to any disht duo h" daniaot-H for assault or wilful injury to the person, Keduction, liltel, Hlauder or malicious arrest, nor for the maintenance of a parent, wife or child, or as a penalty for any oflinice of which the Insolveint hius been convicted ; noi shall any such dischar^t! '4M'^y without such consent to any debt duo jis a balance of account due by the Insolvent as assignee, tutor, curator, trustee, executor or administrator under a will, or under any order of court, or as a public ofticer ; nor shall debts to which a discharge under this Act does not apply, nor any privilegetl debts, nor the creditora thereof, bo com- puttsd in ascertjiining whether a sutiicient proportion of the creditors of the Insolvent have voted upon, done, or con- nut criditor sented to any act, matter or thing under this Act ; but the ™divWend creditors of any such debt may claim and accept a dividend thereon from the estate without being by reason thereof in any respect affected by any discharge obtained by the Insolvent, There is a slight verbal difference between this section and section 100 of the Act of 1869, the eti'ectof which is to place all the classes of claims mentioned in this section upon the same footing, as to the effect of accepting a dividend thereon (See note to sec. 80 iri/ra). Where an executor has l)ecome Ijanknipt or insolvent, so as not to have the means, or refuses to act, the Court of Chancery will permit a creditor to bring a bill himself against jicrsons accountable to the estate, and have adminiytration (Burrotiglui v. IJUon, 1 1 Ves. 29). 04. If, after the expiration of one year from the date of Application an assignment made imder this Act, or from the date of the jud^'for" m COMPOSITION AND DISCHARGE. 97 isaiio of ft writ of nttjiolmu'nt therouiulor, oh the caw timy dinrimrgi'. it m, tuo Insolvent has not obtaiiiwl fioni tlio nM|uiri'tl pro- from irdi portion of liih crcilitorH a consent to Iuh diHcliurge, or thu oxceution of a deed of coinpoMition any petition to the (!ourt or Jndge, to grant him his d ruplication that thu plaiiitilFu namu as a cruditor, and thu claim mentioned in thu declaration, were not muntionud in thu statemunt exhibited at the first meeting of cre. iM'foro iiml at tin; (Into of Ium liiHolvniHry ; iitkI tlM!rnn|Hiii tlie Court or .lii*lgi>, iiH till! 4'aN(t iiiiiy Im*, ufttu' hnuriii^ tlic In- Holv(!iit, uikI tlio i>|)|M»Haiit, if liny, u?i could l»e HiiHpende<| or eluHHiticMl as hereiidx'foro provided, u|>>>n an application to confirni it, uu order may ho lawU'. Kuspi-ntling it for a like period, or declaring it to he of thv Hocond chiHK, or hoth. Sec HOC. r»C AH U> the grotimlH uimmi which fi r-mifirnintion of n dlHchar^c mny \ni iipiMmLMi, and hcc. A7 a whicii a HtisiiciiHion <»r cluHHitiuu- tiuii (if a (liHchAr}{r tliJH Hcction tho inHolveiit Ih not cntit1«Ml to he ro- exftinincd in hJH own Ijchidf (/m rr Franir, 12 I.. (.'. Jur. *27'i). In Ihxnlv. Ih,tlil>* (ly imrtf Ttm/xit, 1 1 L. ('. Jur. 57). It Hvcnia that when under the Act of IS' Morrixon, >•<• Clnnn, lO.Iur. N..S. 787). Diii<'hHr>{e, *<■ , oIk tiiiiii^ liy fr.uiij to Ix; vuid. 00« Kvery dischargo or confirmation of any discharge, ohtiine<| hy fiaud or fraudul«!nt prefcM-eiKu;, or hy ineans of the constant of amy crcMlitor procured Ijy tho payment or promise of payment to such creditor of any valualde con- bideration for such consent, or hy any fraudulent contrivance or practice what«!V(!r, tending to dofoat tho truo intent an«l moiining of tho provisions of this Act in that Ijchalf, shall bo null and /oid ; and in no case shall a discharge have any effect unless an«l until it is confirmed hy the Court. When an insolvent, )>eforo tho meeting of )ii» oruditors concoalod a portion of his stock, it was held that his discharge was theruhy avoided, and that it was not the less a fraud because he had valued his assets at a sum sufficient to cover tlic gtKxls so concealed; aud the plaintiiF, though he had signod a e too due, the attempt to collect which would be more onerous ouerouit. HALK OP DKIlTfl. &i> llmii IwiK^tlciiil U) tho i»Htit«, Im' hIihII n'port tlin hmiho to tho (irctlitttrs or lns|M'ctorH, atiy may onitT ; ami |M)iiiliii}{ hiicIi uiivHrtiKitiiinit, tho AhmI^^iico Hhull k<'«'|t H list of t\>v tlrlits to Im! moIiI, <»|h>ii to iijH|M'ctioii lit hin nllicr, id hIiuII also givo fn-tJ iicct-MH to all (lociiiiuMitH uikI voiicIk'I'h t xplaiiatory of Hiich ilrWts ; liiit all Fr<>vii or of tho liispertoi-H hi.«ownri-'k. refuses or ne^leotH to take such prooeedinj,' after heiiij,' duly rocjuirod ho to do, such oroilitor shall have tin; ri^ht to obtain an onler of th(! Jud^^e authori/in^' him to take surh proccedin;,' in tho nanio of tho Assi^^nee, hut at his own nxpcMKct and risk, upon such terms and conditions as to indemnity to th(! Assitjnoo as tho Judgo may proscrib!; and thereupon any lM>nofit derived from sucli prmMU'ding shiill helon;^ oxcliisivoly to i\ni ereditor instituting^ IIkj siimo for his l)enolit and that of any other creditor who may have joined hitn in causing tho institution of such |)rocoediiig: lint if, l)ofort! such order is granted, tho Assignee shall provino signify to tho Judgo his rvMidincsss to institute such pnx;ood- ings for tho iMMiolit of tho croditoi*s, tho ord(!r shall ho mado pn^scriiing tho time within which ho shall lv«;>'t authoriised to do; and a ]>ill of sale (Form M), signed and delivered to him by the Assignee, shall Im) jtriind facte evi- ilencs of such purchase, without proof of the I'andwriting of the Assignee, and the del)t sold shall in the Province of QucIk;c vest in the purchaser without signification to the debtor ; and no warranty, excR[)t as to tlie good faitli of the No war- Assignee, shall b<} created by sucLv sale and couveyance, not "" '' even that tho debt is due. r!» M 100 INSOLVENT ACT OF 1875. I «■ w f i w 'I 31 LuaHO of pro- perty iiKire viiluuliln thuii nut to be Multl ; oil what coiidi- tioim. LEASES. TO, If tho Insolvent holds under a lease property having a value above and beyond the amount of any rent payable under such lesuso, the Assignee shall make a report thereon to the Judge, containing his estimate of the value to the estate of the leased projierty in excess of the rent ; and thereupon the Judge may order tho rights of the Insolvent in such leased promises to be sold separately, or to be in- cluded in the sale of the whole or part of the estate of the Insolvent, after such notice of such sale as he may see fit to order ; and at tho time and place appointed such lease shall be sold u})on such conditions, as to the giving of security to the lessor as the Jutlge may order ; and such sale shall be so made subject to the payment of the rent, to all the covenants and conditions contained in the lease, and to all legal obligations resulting from the lease, and all such covenants, conditions and obligations shall l)e binding upon the lessor and upon the purchaser, as if he had been himself the lessee and a party with the lessor to the lease. A covenant on the part of a lessee not to assign, &c., will not extend to an assignment by act of law. So that if the lessee become bankrupt, and the term pass to the assignees, it is not an assignment within the meaning of a covenant not to assign {Goi'ing v. Warner, 7 Vin. Abr. 85, pi. 9) ; and his assignee may afterwards assign it without license {Doe v. Smith, 5 Taimt. 795 ; Doe v. Bevan, 3 M. & S. 353). But a voluntary assignment executed by the debtor of all his estate is a breach of a condition in a lease not to assign without license (Magee v. Rankin, 29 Q. B. U. C. 259), and the lease and term passes to the assignee by the voluntary assignment, and the assignee or creditors have no right to refuse to accept. And a tai-iag possession of the premises by the assignee is an accceptance of the lease, if one were required. (See Copeland v. Stephens, 1 B. & Aid. 593 ; Mackley v. Pattenden, 1 B. & S. 178 ; Goodwin v. Noble, 8 E & B. 587 ; Holland v. Cole, 1 H. & C. 67 ; Doe d. Lhyd v. Poicell, 5 B. & C. 308 ; Doe d. Palmer v. Andrews, 4 Bing. 348, Dor. 590). An agreement for a lease is not annulled by the bankruptcy of the intended lessee (Morgan v. Rhodes, 1 M. & W. 214), nor by the insolvency of the intended lessor (Crosbie v. l^ooke, 1 My. & K. 431 ; 1 M. & A. 215 n.), but the bankrupt's interest under the agreement for a lease {jasses to the assignee, who is entitled to call upon the freeholder to grant such ease for the benefit of the bankrui)t's estate (Buckland v. Papillon, 13 L. T. Rep, N.S. 736). Other cases Tl« If the Insolvent holds under a lease extending dealt witii. beyond the year current under its terms at the time of his insolvency, property which is not subject to the provisions of the last preceding section, or respecting which the Judge LEASES. 101 (loos nok m:iko an onlir of sale, as thoroin provided or whicli is not sold uiidor such ordiir, tlio creditors shall docido at any mootinij '.vliicli may hi* held more than three mouths before the ti'nuiiiatiou of the yearly term of the lease curi'ent at the time of such meiitin;^, whether the pro- perty so leased should be rotaiiuitl for the use of the estate, only up to the end of the then current yearly term, or, if the conditions of the lease permit of a further extension, also up to the end of the next following yearly term thereof, and their decision shall bo final. • . T}ie time within wliich croditors have to elect has lioeu extended from one to three montha. I • ;i! ,i i 73, From and after the time fixed for the retention of the leased property for the use of the estate, the lease shall >)0 cancelled and shall from thenceforth be inoperative and null ; and so soon as the resolution of the creditors as to such retention has been passed, such resolution shall bo noti- fied 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 inider oath, in the same manner as in ordinary claims upon the estate, and such claim may be con. tested in the same manner, and after similar investigation and with the same right of a})peal, as herein provided for in case of claims or dividends objected to. 13, In making such claim, and in any adjudication thero- upon, the measure of damages shall be the diiference be- tween the value of the premises leased when the lease ter- minates under the resolution of the creditors, and the rent which the Insolvent had agi*eed by the lease to pay during its continuance ; and the chance of lesisiug or not leasing the premises again, for a like rent, shall not enter into the com- putation of such damages ; and if the claim is not con- tested, or if, being contested, the damages are finally awarded to the lessor, he shall rank for the amount upon the estate as an ordinary creditor. Y4, The preferential lien of the landlord for rent in the Provinces of Ontario, New Brunswick, Nova Scotia, British Lessor ('l:iiiniiig iliiinagoH for ti'riiiinati»n of the least'. How dani- a^os are to lie estima- ted. f ■ H- Preferential claim of landlord ! II I?'m ' "' > H |i ill i ; 102 INHOLVKNT ACT OP 1875. liiiilt.din Columbia, Piiiu;*! K'lwiinl IhIjiikI, or M.Diil.obii, is re paid in proforeiKM! to the coHt« of tli(! ;iH;si;;n(:(; for |tid(;uiing his (lisLliaruc ainl tliat of tlio iriHolvi.-iil, (/// re Mor;/,in, Hi L. (). .Jur. 187). Tiic pn:f.;n.iitiaT claim of the lainllonl in i<;htrirtod to th(j arn;iuH of runt tluc (hnint,' the i>eri<«l of one year, wln;ther lit; hiiH ili.s- trained hefore insolvency or not (.^^^^o/« v. Il'imi'ton, 'I"! \J. ('. i',. I'. 11»0 ; h. c. in apj*. 2'2('. V. U. ( ;. 411). In Ontario the landlord Wiw entitled to .li.strain I'll' Hix yeaiH ant ats of rent pieviou.s to the introduction of this proviHion. 'i'hcre in nothing in thin .-uetion to prevent deprive him of liis reniedy l»y distress ; aniothecary claims thereon, after the collocation of such costs and ex[)enses, including the As- signee's commission on the amount of the sale, as were necessary to effect such sale, or are incident thereto, in the same manner as to all the essential j)arts thereof, as the collocation and distribution of moneys arising fi'om the sjile of imniovables are made in the appropriate Court in ordi- nary cases, except in so far as the same may be inconsistent with any provisions of this Act, but no portion of the general expenses incurred in the winding up of the estate ; shall be chargeable to or payable out of the said moneys, except on such balance as may remain after the payment of all i)rivileKed and hypothecary claims. The Assignee's Assigiiee's commission on such sale shall be the same as the poundage i^aii^ce. to which the Sheriff is entitled on sales made by him. Any balance remaining after the collocation of the said necessary costs and expenses, and of the privileged and hypothecary claims, shall be added to and form part of the general assets of the estate. ^S. In the Province of Quebec any privileged or hypo- in Quebec thecary creditor whose claim is actually due and payable, creditors shall have the right to obtain from the Judge an order on '""^ requir© 106 INSOLVENT ACT OF 1875. ! i 1 1 ^ In ll ■ % i '■■ ,B , 1 i 1 1 ' \ :.\l A 1l"t'!' sale of pro- the AsHiguoo ti) proceed without dehiy to the sale in the Ject"tri' Miu iiiaolvout is not n-lieved from them l»y n discharge umler this Aet, nlthoii^'h nil uu'sotii ao(iuiruil up to the time uf the dit^churgu aro vested in tliu AHHigueu (Htm aiUr, aeu. 10). Tho only roaaonahlo mode of arriving at the rehatc of intere-st ia to ado]it the date of tlie deed of aHMigniueut, or of the appoiutnieut of the utlicial astiiguee. aa the period from whieh it is to be calculated (Abhott, p. M)). WluiH tl'e insolvent, a miller, agreed to grind wheat for the claimants, and to deliver to tlium a barrel of Hour of a apeeilie ouality for 8o numy bushels of wheat, and he thus became liable to deliver to them 0r>5 l>arrel8 of Hour, as the eipiivalent for wheat received Ity him aiul made away with, it was held that this Wius a bailment only of the wheat, whieh remained the claimants', to the insolvent ; that the bailment was determined liy the conversion ot the wlieat, so that tho claimants might maintain trover for it either as wheat or as tlour if ground ; but that they miijht waive the tort ami sue for the value of the goods when they sliould have bee i ilelivered ; and, therefore, that tlie claim was prov.ible ;vs being a debt wit lin the Insolvent Act, not a claim for liijuidated damages (In re WlHiani-^, ','A Q. l^. \J. <.'. 14.3). In the same case it was also held that a claim for comp^^nsation as to a certain number of barrels whieh did not turn out to be of the (luality agreed for, Wiis clearly a claim for UTdi(iuidate', L. 11. 4 Q. B. 70<) ; Ek parte WUnini, In ri'. Thompmn, L. 11. 2 < Jh. App. 7».') ; Earl of Falmuiifk V. Penrose, B. & C. 385 ; Park-er v. J!iorton, 9 T. U. 01)5 ; Afanon v. (r. W. li. Co., 31 Q. B. U. C. 73). Where miscontluct of the insolvent ends in })ecuniary liability, the expectation of the bankrupt of having to pay the damages conse(juent upon his olfeiico cannot be taken into account as l)eing the cause of his insolvency. Nor can it be considered that a debt is contracted at the time when the act for which an action is afterwards brought and damages received is committed. Such fnirh //ill, 1 1 \'t m. i\U', ; //'W/« v. ^/i//>f;< '_» M. .V S. 70 ; OxAe^- v. Xorl/i />iw.'<-r/i /Inltiraif (''.m/)l I'MHtH, wtw hiiM to i;i>nstit.iiti; a ily him tf> tho oxt«:nt only of his prin- uipal's int(;rtst in such doht (/vV /xirfi- lliindnii, 2 '.!/., wht;n! tin; surety is acecptnr for the iiocommodation of the Itankrnpt drawer, the doht is provalih; {Sdihuari V. A/nrf''iiniiiif, \'A K.-wt. 427). Hut otherwise if tho sureties ho liahli; for tho (Icht of aiioth'-r at tho time of the hankruptoy of out; of them. Such liahility in a mere contingency, for until tlio surety has paid ni'ire than his share, ho cotinot sue hia co-surety for restitution { W. .M. &.(i. 218; 2! L. T. Rep. lOU). Hills of Kxchange wcero on tho express agreement that tlie proceeds of certain consignments should be appropriated by B. in paym.ait of the bills, notice whereof was given to the con.signee3. It was helil that the proceeds of the consignment should, as against the assignee, be apijlied in discharge of the acceptances of 1>. {I'Jj: jKirle IIo')h',H«<; 'A M. & A. 20!) ; /i'y; /lartc Flow,,; 2 M. & A. 224 ; 4 1). & (J. 449 ; and such security held by a banker against his acceptances is available to the bill-holders, not directly, but througli the e((uity of the acceptor or hi.-i as.signoos, under a commission . M. & (i. 430; see the case of /< frotu the latter, inclu'iiri^ tlie auioiiht of the note ; hut the Hurety will l»o entitle.! to the Ui(\'^i'. tli;it the e.staU; may thcnihy \>c kept o[»on for an unduf! length of time, ho may, unless an irstimatc of the valuo of such claim br agrojid to hctweon the claiiniint and tho Tns[»t'ctorH, order that the value of such contingent or conditional claim \x; estahlished hy siich person or jM.'rs«»nH OH the claiiMiint and the; Inspectoj'8 may apj)oint, ajid in case they do not agree, then l»y such pei"son or jwrsons jus the Judge shall name, Kne rejecttid, other persons shall he appointf;d as herein provided to establish tin; value of such claim, suhjfjct to th(; control of the Judge, and if tho said award l>e con- firmed, the amount therein mentioned shall be that for which tho claimant shall rank uj)on the estate as for a debt payable absolutely. The provision in this section for arbitration is new. Ry nee. .'>7 of the former Act, the award as to conditional or contingent claims w,a« required Ut be madp by the asaif^ncw ; by thia Bcction any person or j)eni(jna may he 8elect<;d .is arbi- trators. It will be noticed that it is only claima arising out of contract which can be dealt with under this section. A claim upon a guarantee, for a certain sum when due, is provable as a debt, and before it is due it is provable aa a debt due upon a contincency (At Willis, 19 L. J. 30 Ex). Liability to calls u[)on shares is not provable aa a debt due upon a contin- gency (South StalTorilshire Railway Company v. liurnmde, 5 Exch. liep. 129). Contingent debts where the liability ia remote are not provable ( Ex parte Davit, Mont. 121). A., in consideration of the payment to him of a sura of money by the vendors of goods, guaranteed the payment of the purchase money by the pur- m f no IN80LVKNT ACT OF 1H78. \} ( ohftHfTH no.citriWun to tlio trim of tlio «-(»iitrii(;t, viz. : 1)y tlm *\\i itnink, (I D. M. *. <«. 771 ; m. c, i>. M. fc«;., ij. A. r»r,i). A >{Uiir,iiito(; in writinj,' inny \h: witlidniwn nt any time; without tlm notiHrtit of tli(! piirty > hii/>i(i ; Winlnini v. Taebi; ."> H. * |{. '.\H\ ; Afrfrnt/) v. Ilan.vm, \.. \{. I 11. I,, iil'2; KitU V. Tli»n,an, h. It. i\ V.x. 'M2 ; Vary v. DawHon, li. II. 4 (J>. H. r><}S). lUnk (iikI 8!8, Til tho i)nM»!ir!iti(»n of tlm ti<1 Hlmcffc, dun n'^'unl firivili'^i' of rri'iiiinii ; hIiuII I)(! IiimI io tlio Dink iiihI itrivil(^o(« of ovjiPy cHiiJitor, 1»rrs wh(!m;vcr imdcr this Act s\i<;h propor- tion is roipiircd to ho asccsrtainod. The right of tho Hocuriid croditors to vote, or Hign a Am'aX of compoHition and diachar^ji;, is rcgiilatod hy tliin Hoction. Mr. Ahhott reniaikH (p. 41), "ThiH really jilacuH tho (;rcilitor'rt votu upon a [)ropor footiiif^. Kor if a creditor (tould vote upon tho nominal anioinit of lii-^ claim without ic.fereiict; to liin security, the hyiiothecary on ditor would often cfl. Ill of ill"' iiif)rir'yH iK'fii.'ilIy Ii'VHxI iimlrr hiicIi writ, tli«» rHt.iti! of tli(? <|i'l)tor li.'is Ih'I'Ii tiNHi^^iiml lo mi AsHJi^tion, or if |)I'imm>im|- iii^H to plarr tint wiiiiti in li(|iiiiliitii)M iiiii>ii ii<|))|>(<*i| mill iiro Htill |M'iio.sH<'SS(!H iiii I J. ( !. ( !. I*. I<)7), whiii'i! tin; ^ooiIh wi:i-i; Htill tin; |ii it|ii;rty of tliti ilrlitor wlicii till! two writH wiTc f{ivt;ii to tliu Hlmriir liy tin; cxri'iition ami thropi:rty wan intin-ly ^oiu! ami foriiH'il no part of tli«! e^tati! of tho ihlttor win n tin; attaihimnt is.aiiiil. It woiilil tln;ii;fon; hi rin <'li;ar that a piiniliaHcr at Hhirill'H Halt; is amply proti-ctctl, hfcaiisc it iH tin; iiriirorih of tin; Hah;, iiiiIohh artiially paiii ovt;r to thu uxucution (;r(;ilitor, that will go to tlu' uHtat«:, uml not th«; gooiU wliuii hiiIiI. A Htay of pro(;r<;iliiigH given to tlio HlMirilV on n writ of y till' attorm:y for tin: I'xcitiition nriiilitor in Mjiiivalint to a withdrawal of tli(! writ ; and an i;xi:i:iitioii laiinot In; Haid to hi; in tin; Hintritr'H hands to ln' ixcciitcd until tin; Htay is n'inovi;il and tin; nhrrill' iii'ili;i'i;il to proii'id ; and it wan held umliir till! Act of IH05 tiiat if an aHHigiiincnt wax iiiadi; within thirty dayH from till! niiiioval of till! Htay of priK:i!i;dingH, tin; judgimnt i;ri;ditor hmt any privilege hy tin; op(;ration of tin; l.'itli mcc, (;xi;i:pt tho uontM of Hiiit wliii;h might In: i)rov<:d as a privileged claim before the UHsigiiee (Jfr t'nir niul, Jiuint, 2 L. .1. IJ. (J., N.»S. 21 (J). Hy thin Huction, even after Hui/uro and Hale, thi; aei/ing creditor cannot retain the aiiioiint of liiH execution l>y [irefiiieiiee, if the money in the HlieriirH hands has not heen paid over hy him. There is a ditference lietween thin Heirtion and Bee. T)'.) of the Act of I8<>!), fioni which it in taken, in the time at which the execution creditors right ceaHcH ; under that Hcetion tin! creditor was entitled to receive the proceeds of his (;xeciition until the estate iniM phu-ril in conipiil- Hoiy liquidation, here it is up to the time wli(;n proceedings to place the cHtato in liipiidation have heen adopted and are Htill {lending. Although tin; lien of the judgment creditor for his judgment deht and interest has heen taken away, liiH lien or privil(;ge for the costs of the jinlgiinnt still (;xiHtH (In. ri llaijilen, '2y Q. H. U. (!. overruling In rr IIohh, .'{ 1'. U. W.H). At all cvoatH, if the estato or cilectH of the insolvent have lM!en seized or levied upon, a judgment creditor under whose Ji. fa. the Bherill' has Hcizcd, hut not sold, the debtor's goods, ia a creditor holding a security within the meaning of hoc. 12, Knglihli Act of I80U (Slain- v. Pindir, 40 L. T. R.;p. Kxch. 14«); I.. It. 7 Kx. Uf); 41 L. T. Kx. G«J; 20 VV. It. 4-tl ; '2(5 L. T., N.S. 4S'2). Until the sheriir has Hoized uinl<;r a writ of Ji. fa., an execution creditor IioMh no security ui)'»n the property of the debtor within the meaning of bcc. 12 of the English bankruptcy .Act 1869. When, therefore, warrants of execution had been delivered to the bailill' of a couuty court, but no aeizuru ha«l boon made before the prusu.Mtatiuu of a petition ' i m f 14 ii 112 INHOI.VKNT ACT OF 1875. for lii|iii(Inlioii dy the dulttor, ht'lil, that thu tttlu of thu trustee uiulor the liqiii- (Ution munt pn-vail over thnt <»f the uxucutinn ereditor (/iV /«»/•<»' Willitinii, In r* Dai'i'M, '20 \V. K. I3<»; 7 F^. II. (*hy. ai4; 41 I. .1. H/uik. SS; '2i\ L. T., N.8. 303 ; «ee hJj imrh- lUh , r> Hull, M) L. J. Hep. Itaiik. 70). Tliu iicoeHHity for n chaii;<(! was Hhowti in a Htrikiii^ iiiaiiiiur by thu duuiHion in Thorn' v. Turrnn'-r {\{\ V. ('.('. 1*. H.-i), aHirniu-l iri. t waH liehl that the a^Hit^nnicnt wa>t an act of hankniptey and vuid, and thun- fnro thu execution phiintilF, althou{/h aUo petitioner in inmilvenoy, could enforce his execution a^jainHt thu dulitorn 01 the cHtate to the noHtponenient of the rest of the creditors. Thia deeiHion wan foMowud in Hokc v. limwn {\{\ IJ. ( '. (-'. I'. 177). Tho lien of a vendor for unpaid purch iru money attaches to the land in the hands of the lutHi^^neu in insolvency of the purchaser ( Van Wai/wr v. Fhnlliiy, 14 N'es. & IV 30(i; C/iopinnn \ fanmr, 1 Vurn. 'J(57) Where a writ of /?. fn. issued on judgment on a Hjteoially endiu'sed writ hef«»r»' the cxiiiration of eight dayH from thu hwt ilay for appcaranuo, it was iield to he im-gnlar; ami the defendant having made a voluntary aMHignnient live dayH after the i.i.4uu of the writ, the assi>;nee succeeded in setting attidu thu execution with eostH {/{('iiilnll v. Jioirmnn, 1 L. J. U. (!. N.S. ir»8). TIuh (.xsu wa>* decided under the vVct of 1804 ; and does not touch the ([uustion wliether after a Mdlt' untler such an irregular execution, even since the passagi; of tlie atnending Act of I8(»r>, sec. 13, or after payment over of the proceeds since this Act, the bdsignoe coulil secure for the general creditors the proceeds of thu sole, as against the execution creditor. Where a final judgment in default of apiKjarance to a spociidly endorsed writ was entered on *J3ril .fanuary, and cxecutu)n issued on .'tOth of same month, and a writ of attachment under the Insolvent Act issued on 3rd February, fin appli- cati(n ne^^otiahle ItistrumentM upon which the Insol- hikI Iiih-iI- vent is oidy indirectly or seconilarily liahle, aiid which is m uhiariiy •Ml' 1 1 • I 1 1 I • 1 1 lial'li'. not mature or (txijifioie, such creditor sliall he ^'onsidenMl to h(dd security within the meaning of this section, and shall put a value on the liahility of the party priniarily liahlo theiHjon as heii^ his security fm- the payment thensuf ; but after the maturity of such liahility and its non-payment ho shall he entitled to amend and revalue 'us claim. If a creditor prove a ilolit, in ignorance that he haH a lien in re«j)cct of it, ho will not lu! iillartnership, may prove against both estates, but must elect which be will Imj paid out of before he takes a divi (!h. Apjt. H.'W ; Kx fMirle li](f!f/di(in (!(nitiii ; III ir lilakfhi (Jnlimnri' (Jimijiuiii/, L. \i. H K([. 214). When the endorner of a not*; hecame iiiHolvent, and compounded with his «!redito aHHigiKjd and (loiivci'Cid to tho cTC'ditor, KuWjoct to all pnivious nior't;5a;^(!S, hypotlujcH and li(ms tlicnioii, holding rank and priority boforc his claim, and upon luH aHsnniinf.5 and binding liiniHolf to pay all such [)n!viouH iMortgagoH, hyjtotiiijcs, and licins, and upon his Hocuring Huch proviouH cliargoH upon the (iroporty inortgagod, in thn same nuuirHir and to tlio Hamo extent as tlio Hanio wore pi'cviotiHly Hocurod tlicsroon ; and tli(;r(!aft(;r the lioldorH of hucU pre- vious tnortgagciK, hyjiotluics and lieuH, Hliall have no further recourHo or claim upon the (!Htat(5 of the luHolvent; and if there Ix; mortgages, hyi)othe(!H or lieriH tliereon, nuhHociuent to those of such creditt)r, lie shall only obtain the proj)erty by consent of the subsecpnsntly secured creditors; or upon their filing their claims specifying their security thereon aw DIVIDENDS. 116 of no viiliu!, or tipon his payin;^ tlunn tho vulno by tliom plttc(!(l tli(!n!()ii ; or upon IiIh giving' Hocurity to tho Assigiico that tho estate Khali not ho troiililod l)y roaHoii thcrocjf. 80. Upon a secunul claim hcin^ filed, with a valuation of riocftcdinuN tho Hoeurity, it wliall he. the duty of th(i AHsigruio to procure or aMccurwl tho authority of the InspectorH or of tho creditorw at tlujir '-""'• first inc<^ting thcireafter, to consont to tho retention (ff tho Hocurity hy the creditor, or to nMpairo from hitn an an.sign- rncnt and d(!liv(iry thereof; and if any m(!eting of Insjujctoiii or of creditors tak«!H juaco without decidiitg upon the courso to ho adopted in respect of such scicurity, tl»e Assignee shall act in tho [iremiscs acconling to his discretion and without delay. 8T- The ainoiint duo to a credifor upon each soparato lumk of item of his claim at tlio time of the t^xocution of a deed of UMinHotn assignment, or of the issue of a writ of attachment, as tho Iji.im."'^ ' case may be, and which shall remain duo at the time of proving such claim, shall form part of tho amotint for which ho shall rank upon tho estate of tlio Insolvcsnt until such item of claim he paid in full, except in cases of deduction of tho i)rocoeds or of tho value of his S(}curity, as hereinbefore provided ; but no claim or part of a claim shall bo permitted to be ranked upon more than onco, whether tho claim so to rank bo made l)y the Haine person or by difftirent persons ; and tho Assignee may at any time reijuiro from any creditor a Bup])lementary oath declai-ing what amount, if any, such '^a'-*' '^^ creditor has reccsived in payment of any item of tlus d(jbt to iion nav- upon which his claim is founded, subsoqtiont to tho making cUim. of Bucli claim, together with tlie particulars of sucli pay- ment ; and if any creditor refuses to produce or make such oath before the Assignee within a reasonable time after ho hiis been required so to do, he shall not bo collocated in tho dividend sheet. .. , -^' 88. If the Insolvent owes debts both individually and an inHoivpnt a member of a co-partnership, or as a member of two dif- '^a'purtner. ferent co-i)artnerships, tho claims against him shall rank first upon tho estate by which tho debts they represent were contracted, and shall only rank ujion the other after all the creditors of that other have been paid in full. 116 INSOLVENT ACT OF 1875. llliiil ill When a firm, or when two or more partners of a firm, are jointly placed in insolvency, all the joint property of the hankrui)ts, as well as all the separate property of each of them, vests in the assignee (Graham v. Mulcanter, 4 Bing. llfi). One of two partners, a few clays before a writ of attachment against both, under the Insolvent Act of 18G4, had issued, assigned his estate for the benefit of his creditors ; and it was held that this assignment was void as against the joint assignees ( Wilson v. Steueumn, 12 Grant, 239). Where each of the members of a firm is separately adjudged l)ankrui)t, the assignees of them all cannot recover in f»ne action debts due to the firm, anJe'';ted to, if any dispute arises between the creditors of the Insolvent, miuuJ- or between him and any creditor, as to the amount of the claim of any creditor, or as to the ranking or ]>rivilege of the claim of any creditor upon such dividend sheet, the objection shall be filed in writing by or before the Assignee, who shall make a record thereof, and the grounds of objection shall be distinctly stated in such writing, and the party objecting shall also file at the same time the evidence of previous service of a copy thereof on the claimant ; and the claimant shall have three days thereafter to answer the same, wliich time may, however, be enlarged by the Judge, with a like delay to the contestant to reply ; and upon the completion of an issue upon such objection, the Assignee shall transmit to the Clerk of the Court the dividend sheet, dedsloa *° or a copy thereof, with all the papers and documents relating ^^^^' to such objection or contestation, and any party to it may fix a day, of which two days' notice sliall be given to the adverse party, for proceeding to take evidence thereon before the Judge, and shall thereafter proceed thereon fi-om day to day until the evidence shall have been closed, the case heard, and the judgment rendered — which judgment shall be final unless appealed from in the manner hereinafter provided J the proceedings on the said objection or contestation shall form pai't of the records of the Court, and the judg- ment shall be made executoiy as to any condemnation for judgment costs in the same manner as an ordinary judgment of the Court. Jt-i 120 INSOLVKNT ACT OF 1875. Tliis section has iii.adc a iiumt material alteration as to the procciluio in con- testation of claims and e called to determine these (luestion.H when they came up l>y way of ajtjieal from the assignee {In re Cleijliorn, '2 U. C. L. J. N.S. i.'W); and as tliere was also a further ai)i)eal fnmi the County Court .Jujectioiis to the claim and to prove that by nason of want of notice, the in.solvent or his estati? had sustained hiss or injury {/n re Ou/fon lirotlicr.-i. The Hank of S<-w lintnnictrk v. Tht Inspectors, Sup. C. Hep. N.li. Vol. 2, [\W^). Crt'ilitors or Iiisiicctnrs ifiay (iiili'i- '•iiiiti'stulion of (■liiitiis, Ao. OG. The creditors, and in their default the Inspector.s. may by resolution rtuthorizo and direct tlio costs of the con- testation of any claim or of any dividend to be paid out of tlie estate, and may make such order either before, jiending. or after any such contestation ; tliey may also, with the sanction of the Judge, authorize the payment out of the estate of any costs incurred for the general intei-est of the estate, wlietlier such costs were incurred by the Assignee, the Inspectors, or any individual creditor. This section is an extension of the power given as to costs in section 73 of the Act of I8()!), which referred only to costs incurred in the contestation of claims or dividends. A solicitor wlio is thenceforth to conduct the proceedings under the bankruptcy may, with the consent of the inspectors or creditors, be appointed by the assignee as soon as lie is chosen (Ex parte Tomlinunn, 2 Rose, 66). Under the Act of 1SG4, which ilid not coutaii; the clause in section 4.'} of this Act, requiring the consent of the inspectors or creditors to the appointment of a solicitor, it was held that an assignee had the sole right to select his own professional adviser, and that he could not be made to change him exce^jt upon reasonable ground, and then only upon the penalty of being himself removed from his oflice of assignee in case of refusal (Be Land), 17 C. P. U. C. 173). f f there he priijieity of the Insol- vent under seizure !it time of ;is.si<;iinient or attiieli- iiient. Procee. had in Ajml previous made a voluntary assignment under the Insolvent Act of 1804, to an official assignee, Avho claimed the j)roceeds of the sale under a section of the amending Act similar to tliis. M. claimed a conveyance from the sheriff, crediting the purchase money on his judgment, 'ihe court, under these cir- cumstances, discharged with costs an ai>plication Ity M. for a mandanuis to com- pel the sheriff to cf>nvey, to which the assignee was no party (/« re MoJ'alt and the S/ierlf of the Connti/ of York, 27 Q. B. U. C. 52). A plea to the declaration on a promissory note, on equitable grounds, in bar to the further maintenance of the action, averring the pendency of proceedings commenced by plaintiff against defendant under the Insolvent Act of 1804, for the same cause of action subse({uently to the declaration in the cause, was held a bad plea on den\urrer {Baldwin v. Ptlerman, 16 C. P. U. C 310). 1)8. All dividends remaining unclaimed at the time of Unciainird '^ . dividends, the discharge of the Assijjnee shall be left in the bank how dealt . . . with, where they are deposited, for three years, and if still un- claimed, shall then be paid over by such bank with interest accrued thereon, to the Government of Canada, and if afterwards duly claimeiitra<;t or :,tatiitory t'nactnient hoars interest, or where a contract to pay it is to he in)pli(\l!iig dc- jH-n Jay, Niitiic of iiiootings, ic, how ijivon. ('ases iiii- I'rovided for. PROCEDURE GENERALLY. 100. Whenever a meetin<]f of ensditors cannot be held, or an application made, until the expiration of a do calh-'d for the order- mc'ting of ing of the atiaira of the estate generally, anil it be so stated in the notices calling such meeting, all the matters and tilings respecting which the creditors may vote, resolve or order, or which they may regulate under this Act (except when otherwise specially providcnl), may be voted, resolved or ordered upon, and may 1x5 regulated at such meeting, without having been specijilly mentioned in the notices calling such meeting, due regard being had, however, to the proportions of creditors required by this Act for any such vote, resolution, order or regulation. The matters which usually may be decided upon, on that occasion, are the following : — 1. The appointment of the assignee. Sec. 29. 2. The security to be given by the as.signee. Sec. 29. 3. The directing the assigiaee as to the disposal of the estate. Sec. 36. 4. The appointment of inspectors. Sec. 35. 5. The examination of the insolvent and reception of a statement of the position of the estate. Sees. 17 & 23. 6. As to the employment of a counsel or attorney by the assignee. Sec. 43. 7. Upon any oflfer of composition which may be made by the insolvent. Sec. 49. 8. The continuance or cessation of the lease of premises occupied by the insolvent, or deciding that the matter be left to the discretion of the inspectors. Sec. 71. 9. To determine when subsequent meetings shall be held. Sec. 34. 10. As to necessity for special examination of the insolvent under section 25. 104. The claims of creditors furnished to the Assignee Form and in the Form P, attested under oath and accompanied by the claims, vouchers on which they are based, or when vouchei-s cannot be produced, accompanied by such affidavit or other evidence as in the opinion of the Assignee shall justify the absence of such vouchers, shall be considered as proved unless contested, in which case the claims shall be established by legal evidence on the p 'nts raised. The requiring the production of vouchers, or reasons for their non-production, was not required by sec. 122 of the Act of 1869. (H 124 IN80LVKNT ACT OF 1876. u i': ? \ti S It 9] t] Ml rortaiii fTo»y Rpfcial ••nactinfiit ('ntitlctl ho provt; their dolits a>,'ainHt tho fstiiti! of 11 iKiiiUnipt. Hy 10 »t II \'i(t/7c' A'/r'', 10 L. T. Rep. N.S. lO.'i). One of several makers of a joint ami several promissitry note in favour of a third party having paid the (lol)t soourod by tho note, may not prove imou the note against some of tho oo-makers under their hankruptcy. His ronuMly is by contribution from each of his oo-oontraotora pru poi'lionc {Ex parte tSV/tcwA', AV Viiur, 10 L. T. Uei.. N.S. 44). Upon a ereditor coming in to prove against an estate upon a judgment debt, the cw proof by tho residuary legatees under the will, subject to a direction for payment of tho dividend to tlio executor (Ex parte Caldwell, lie ,'^lrahan, Paul and Bate.'*, 13 W. R. 952). Affidavits, before whom sworn. 105. Any atfiduvit required in proceedings in Insolvency may be made by the party interested, his agent or otlier })ai'ty having a personal knowledge of the inatter.s therein stated, and may be sworn in Canada before the Assignee or before any Official Assignee, Judge, Notary Public, Com- missioner 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, any Notary Public, the Chief Municipal Officer for any town or city, or any British Consul or Vice- Consul, or before any })erson authorised by any statute of the Dominion or of any Province thereof, to take atHdavits to be used in any Coui-t of Justice in any pai't of the Dominion. The only addition made to the liat of persons empowered to take affidavits is that of official assignees. nOOBDURB C KNKUAhLY. 125 106. A creditor holilinL' a mortmiffo, hypotlioir, llcii, pri- Riirr.ny his atlidavit for th<» is.suo of a writ of attaclnneiit, or hy an attidavit Hl(>d with th(i As.signoo at any titno before the declaration of a linal dividcuid, 8ot a value iipon Huch sc'curity ; and from tho time ho wliall have HO released or tlelivered uj) such socurity, or shall have fur- nishc'l such aflidavit, the (hibt to which such se<;«irity applied shall bo considered as an unsecured debt of tho estate, or as being scscured only to the extent of tho value sot upon such security, and tho creditor may rank as, and exercise* all th<> ri;,dits of an ordinary creditor, for the amount of his claini, or to tho extent only of any balance th(!reof above and beyond the value set upon such security, as the case may be. This section is new. But soc sections 84, 85, and 86 nupra. lOT. The law of set-off, as administered by the Courts Stt-off, how whether of law or e(iuity, shall ap[»ly to all claims in Insolvency, and also to all suits instituted by an Assignee for the recovery of debts due to the Insolvent, in the same manner and to tho same extent as if the Insolvent were plaintiff or defendant, as the case may be, except in so far as any claim for set-off sluill be affected by tho provisions of this Act respecting frauds or fraudulent preferences. The rif'lit of set-ofl is a purely statutory provision, and it is the better opinion that it tliil not apply to mutual dobts due respectively to aiul by a bankrupt estate until this clause was introduced into the insolvent law. Formerly, if a creditor of a bankrupt were also indebted to the insolvent, the assignee might sue him iov and recover the whole amount of the latter debt, and ho might prove upon the bankrupt's estate for the amount due to him. This was a source of great injustice to creditors when there hapi)ened to be mutual dealings between them and the insolvent. This was remedied in England by several enactments ; but by the statute which introduced English laws into Upper Canada "those respect- ing bankrupts" are excepted, and we were left without any provisions as to set-off in insolvency matters until this clause was enacted in the Act of 18G9. The debt due from the bankrupt to the creditor must be such as might be proved under the bankruptcy, otherwise it cannot be set-off ; and the mutual credits must be given before tlie bankruptcy, so as to make the balance claimed due at the time of the bankruptcy (Hewlxon v. Guthrie, 3 Scott. 298). If a banker receives and pays money on account of a bankrupt, after notice of his bankruptcy, he cannot set off the payments against the receipts, as against the assignee [Vernon v. Hankey, 2 T. R. 113 j Uirdwood v. Raphael, 5 Price, 604). 126 INSOLVENT ACT OF 187». ni 'V\ ! . M 11 :: I'll Dtibts to he •ct-off, howovor, muHt Itotli \hs dim in tho njimp Hj{tit ; yon onnnot ■et off a dfitt « a sot-oir AgninHt Aprivntt; thiltt duo from (»no ot tlio purtncra ^o tlic inHolvont (A> ;>ar<^ Swtmeit, 3 I). A. C. 32()). VVhon; nn ottNif^ni'i; Iihm rouaon to doiil»t tho fiiirncHS of a crmlitfir's sot-off, and Ikm the* o^ttioa of Huing either liy at^tion tx rinUnirtd, aH aMHiinipMit, duht Ac, or by action rx dfllrio, as trover, oasu, iVo., ho Hliould ailopt tliu liitttT ; for in atitionM >x dfHrtu thu defendant cannot Hct oil" any dcltt . No plea or exception alleging or setting up any to bar debts discharge or certificate of discharge, granted under the ill Canada. Bankrupt or Insolvent Law of any country whatsoever beyond the limits of the Dominion, shall be a valid defence or bar to any action instituted in any Court of competent jurisdiction in the Dominion, for the recovery of any debt or obligation contracted within such limits. PROCEDURE GENERALLY. 129 But in EllU V. Mc.Hcnry (L. R. 6 C. P. 228) it was hold that the English bankruptcy law was binding upon the colonies, and that an English compositioi deed containing a covenant not to sue might be pleaded to an action brought in a Canadian court upon a debt contracted in Canada, upon the principle that the legislature in England had a paramount jurisdiction over Canada. lift. The niles of procedure as to amendments of plead- ings, which may be in force at any place where any pro- ceedings under this Act are being carried on, shall apply to all proceedings under this Act; and any Court or Judge, or Assignee, before whom any such proceedings are being car- ried on, shall have full power and authority to apply the appropriate rules as to amendments 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. 111. The death of the Insolvent, pending proceedings in liquidation, shall not affect such proceedings, or impede the winding up of his estate, and his heirs or other legal repre- sentatives may continue the proceedings on his behalf to the procuring of a discharge, or of the confirmation thereof, or of b'^th ; and the provisions of this Act shall apply to the heirs, administrators, or other legal representatives of any deceased person who, if living, would be subject to its provi- sions, but only in their capacity as such heirs, administra- tors, or representatives, without theii* being held to be liable for the debts of the deceased, to any greater extent than they would have been if this Act had not been passed. 118. The costs of the proceedings in Insolvency up to and inclusive of the notice of the appointment of the As- .signee, shall be paid by privilege as a first charge \\\\o^ the assets of the Insolvent; the disbursements necessary for winding up the estate shall be the next charge on the pro- perty chargeable with any mortgage, hypothec or lien, and upon the unincumbered assets of the estate respectively in such proportions as may be justified by the nature of such disbursements and their relation to the property as being inciii lered or not as the case may be, and the remunera- tion of the Assignee and the costs of the judgment of con- firmation of the discharge of the Insolvent, except when 9 As to araendmentfl in prouijed- ingH under this Aut Provisitdi in cnse of death uf Insolvent. Representa- tives how far .iable. Costs on what pro- perty and in what order chargeable. \\ fTIp*, ' 130 INSOLVENT ACT OF 1875. such confirmation is upon a deed of composition, or of the discharge if obtained direct from the Coui-t, and the costs of the discharge of the Assignee, }>eiiig first taxed by the proper taxing officer at the tariff rate, or if there be no tariff, at the same rate as is usual for uncontested proceed- ings of a simihir character, after notice to the Insj^ectors, or to at least three creditor, shall also be paid therefrom as As to assets the last privileged charge thereon. But no portion of the witii moit- assets or i)ropei'ty chargeable with any mortgage, hypothec, gages, c. ^^ jj^^ ^^^ ^^^^ claim not provable on the estate shall be liable for any other but their proportion of costs necessarily incurred in realising such assets and property, except what may remain after payment of such mortgage or lien. The last clause of this section ia new, and ia in accordance with the decision In re Stewart, 3 Ch. Ch. 95. Provisions 119. The Judge shall have the power upon special cause addressed to being shown before him under oath for so doing, to order by Post. any Postmaster at the place of residence or at the place of business of the Insolvent, to deliver letters addressed to Ivim at such Post Office to the Assignee, and to authorize the Assignee to open such letters in the presence of the Protho- notary or Clerk of the Court of which such Judge is a member and in the presence of the Insolvent or after notice given to him by letter through the post, if he be within the Province ; and if such letters be upon tlie business of the estate the Assignee shall retain them, giving commimication of them, however, to the Insolvent on request ; and if they be not on the business of the estate they shall be resealed, endorsed as having been opened by the Assignee and given to the Insolvent or returned to the Post Office ; and a mem- orandum in writing of the doings of the Assignee in respect of such letters, shall be made and signed by him and by the Prothonotary or Clerk, and deposited in the Court. This section is new to Canada, but since the Act of 1849, sec. 124, the English court has had power to order that all post letters directed to the bankrupt be delivered by the postmaster to the official assignee , It has been held that if the bankrupt abscond without surrendering, the court will order all his past letters addressed to his place of business to be intercepted and sent to the official assignee {Be Lawrence, 20 L. T. Rep. 16). PROCEDURE (JENERALLY, 131 1^0. All causes of disqualification applying to a Judge DiHquaiiti- ... ., i-i-»' 1'11-A futioii of m civil matters in the several Provinces to which tins Act Jud«e. applies, shall be causes of disqualification and recusation under this Act, as regards the final hearing and determina- tion of any matter subject to appeal or revision under this Act, but such grounds of disqualification shall not apply to mere ministerial acts or incidental proceedings ; and such causes of disqualification shall be tried as provided for by the laws in force in the several Provinces where the pro- ceedings are pending. If a Judge be disqualified or iiicon- J^";* J^'"'*''" petent to act in any matter in Insolvency under tliis section, ""'^^i' » «^"*'*' the Judge competent to act in matters of Insolvency in a County or District adjoining that in which the proceedings arc pending (or in the case of a Judge of the Court of Pro- bate in Nova Scotia, the Judge of the said Court in an adjoining County), and who is not disqualified under this section shall be the Judge who shall have jurisdiction in such matter, in the place of the Judge so disqualified. • ' Tliis section contains substantially the same provisions as to the disquali- fication of judges, as section 137 of the Act of 18G9, amended by 34 Vic. c. 25, sec. 9, but the grounds of disqualification are not to apply to mere ministerial Acts ; the causes of disqualiiication are left to be defined by the rules prevailing in the several provinces. Prothono- tary to jireside (in Quebec:) ill aljKHiice of Judge. 1^1. In the absence of the Judge from the chief place of any district in the Province of Quebec, the Prothonotary of the Court shall preside at the meetings of creditors called to take place before the Judge, and shall take minutes of the proceedings of the same, and shall in such cases as well as in all others, make any order whicii the Judge is empowered to make ; but the same shall not be delivered nor put into execution if any objection to it is tiled with the Protho- notary, the same day or the next after, and then the whole matter and all the papers and proceedings, produced and had at such meeting shall be referred to the Judge, who shall adjudicate upon the same, confirming the order made by the Prothonotary, or making such other as he may think best in the case. 1?J3« In the Province of Quebec, rules of practice for Rules of regulating the due conduct of proceedings under this Act, tariti of fees before the Court or Judge, and tariffs of fees for the oflScers vince of Tf 132 Quebec, how to be inudc. , I And in the other Pro- vinces. IL INSOLVENT ACT OF 1S75. of tlie Courfc and for ilio Advocates and attorneys practising in relation to such proceedings, (or for any service performed or work done for which costs are allowed by this Act, but the amount whereof is not hereby fixed,) shall be made forth with after the passing of this Act, and when necessary, rej)ealed or amended, and shall be promulgated under or y)y the same authoritv and in the same manner as the rules of practice and tariff of fees of the Superioi* Coui't, and shall apply in the same manner, and have the siame effe'jt in res- pect of pi'oceedings under this Act as the rules of practice and tariff of fees of the Superior Court apply to and affect proceedings before that Court ; and bills of costs upon pro- ceedings 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. 1*^3. In the Province of Ontario the Judges of the Superior Courts of Common Law, and of the Court of Chan- cery, or any five of them, of whom the Chief Justice of the Province of Ontario, or the Chancellor, or the Chief Justice of the Common Pleas, shall be one, — in the Province of New Brunswick, the Judges of the Supreme Court of New Brunswick, or the majority of them, — in the Province of Nova Scotia, the Judges of the Supreme Court of Nova Scotia, or the majority of them, — in the Province of British Columbia, the Judges of the Supreme Court, or the majority of them, — in the Province of Prince Edward Island, the Judges of the Supreme Court, or the majority of them, — and in the Province of Manitoba, the Judges of the Court of Queen's Bench, or a majority of them, — shall forthwith make and frame and settle the forms, rules and regulations to be followed and observed in the said Provinces respec- tively in proceedings in insolvency under this Act, and shall fix and settle the costs, fees and charges which shall or may be had, taken or paid in all such cases by or to Attor- neys, Solicitors, Counsel and Officers of Courts whether for the Officer, or for the Crown as a fee for the fee fund or otherwise, and by or to Sheriffs, Assignees or other persons whom it may be necessary to provide for, or for any service performed or work done for which costs are allowed by this Act, but the amount whereof is not hereby fixed. PROCEDURE GENERALLY. 133 124. Until such rules of i)mctice and tariiF of fees have Pr<;scnt been made, as ronuirod by the two precedinjj sections, the to romaiu n . , n P r . • ""til altered rules of practice and tann ot fees of Insolvency, now m force in the said Provinces respectively, shall continue and remain in full force and effect. 125. Every Assi^juee shall bo subject to the suinmary A'^Rii-'n'^'^ t.'> 7 . . - . 1).' subject to jurisdiction of the Court or Judije in the same manner and Hummiiry . , jiiri.sdiftiiiii to the same extent as the ordinary officers of the 001111; are of Court, subject to its jurisdiction, and the performance of his duties may be compelled, and all remedies sought or demanded for enforcing any claim for a dol)t, privilege, mortgage, hypothec, lien or right of proj)erty u[)(>u, in or to any effects or pro-^ perty in the hands, possession or custody of an Assignee, may be obtained l>y an order of the Judge on summary petition in vacation, or of the Court on a rule in term, and not by any suit, attachment, opposition, seizure, or other proceeding of any kind whatever; and obedience by the oi>e peued through Ins default or nej^ligouce ; or if the dt^btor is confined in a County or District in which the Judge does not reside, the Judge, instead of ordering the debtor to be brought before him for examimition, may, if he sees tit, make an order authorising and directing the Otticial As- signee for the Coimty or District in which the debtor is confined, to take such examination, and it shall be the duty of the Official Assignee to take down or cause to be taken down such examination fully in writing and transmit the same under his hand forthwith to the Judge, and the Official Assignee shall be entitled to ten cents for each folio of one hundred words of such examination : (1.) In pui-suanco of such order the said confined debtor and any witnesses subpccnaed to attend and give evidence at such examination may be examined on oath at the time and place specified in such order before such Judge or Assignee, and if on such examination it appears to the satisfaction of the Judge that the said debtor has bo7id fide made an as- signment as required by this Act, and has not been guilty of any fraudulent disposal, concealment or retention of his estate or any pai-t thereof, or of his books and accounts, or any material portion thereof, or otherwise in any way con- travened the provisions of this Act, such Judge shall by his order in writing discharge the debtor from confinement or imprisonment ; and on production of the order to the Sheriff or Gaoler, the debtor shall be forthwith discharged with- out payment of any gaol fees : Provided always, that no such order shall be made in any case imless it be made to appear to the satisfaction of such Judge that at least seven days notice of the time and place of the said exami- nation had been previously given to the plaintiff in the suit in which the debtor was imprisoned, or to his attorney and to the Assignee for the time being : . . (2.) The minutes of the examination herein mentioned shall be filed in the office of the Clerk of the Court out of which the pi'ocess issues, and a copy thereof shall be delivex*ed to the Assignee, and if during the examination or before any order be made, the Official Assignee or the appointed As- 135 Examina- tion of insol- vent and witnesses. Judge may discharge iiini if the examination be satis- factory. Proviso. Minutes of examination 'to be kept. Postpone- ment in cer- tain cases. T A? to any sulisequunt arre.ft. Proviso. 136 INSOLVENT ACT OF 1875 sigiieo, or the cnMlitor or any oiin of tlin crtMlitors at wIioho suit or Huits tljo (l('l)tor is iii custody iuak(^s affidavit that lie has reason to believe that the del)tor has not nmde a full dis- closuro in the niattei-H under exiinii tuition, the Ju(l;»e may gnint a postponement of sucli examination for a ])eriod of not less than seven days nor more than fourteen days, uidess the parties consent to an earlier day : (3.) After such examination, in case of any sul)secpient arrest in any civil suit as aforesaid, for causes of action aris- ing i)revious to the assignment or prcx;ess for licpiidation, tlie said debtor may, ponding the furthcir {)roceedings against liim under this Act, be forthwith discharged from confine- ment or imprisonment in such suit, on a})plication to any Judge and on producing such previous discharge : Provided tliat nothing in this section contained, shall interfere with the imprisonment of the said debtor, in pursuance of any of the provisions of this Act. The order of the Jmlge under this section may be appealed from under aec. 128 {Hood V. Dodils, 19 (irant G-H). Tlie mere fact of absence of assets is not of itself a sutiicient reason for refusing the insolvent his discharge on the grouml that he has not boiiCt Jidv made an assignment (Ih'uL), but when an assignment was made witliout assets, in order to evaoivl could not, if in custody, obtain an order for sujiport under the Insolvent Confined Debtor's Act, but should apply for his discharge under this section. APPEAL. 138, In the Province of Quebec all decisions by a Judge Anvaifrom in Cliambei-s in matters of Insolvency shall be considered as tin- Judge m judguients of the Supei-ior Court, and any final order or (Quebec judgment rendered by such Judge or Court may be inscribed for revision, or may be appealed from by the parties ag- grieved in the same cjises and in the same manner as they might inscribe for re\asion or appeal from a final judgment of the Superior Court in ordinary cases under the laws in force when such decision shall be rendered. If any of the jn other parties to any contestation, matter or thing upon which a P™^'"*<=*"' Judge has made any final order or judgment are dissatisfied with such order or judgment, they may in the Province of Oixtario appeal therefrom to either of the Superior Courts of Common Law or to the Court of Chancery, or to any one of tho Jvidges of the said Courts ; in the Province of New Brunswick to the Supreme Court of New Brunswick, or to I f^-ipV Ii« !C? ■ *Tr»- 138 INSOLVRNT ACT OK 1875. any one of tlio JudgoH of tho Hiiid Court ; in tlin Proviiic*} of Nova Scotia to tho Suprotno (/ourt of Nova Scotia, or to any one of tho Ju(l;,'(!s of tli(» said Court ; in tho Provincn of British Cohinihia to the Huprnrno Court of that Province, or to any Jud^^e of tho said (Jourt ; in tho Province of Prince Ed Will d Island to tiuf Hupronio Court of Judicature, or to any Judi-o of the said Court ; in the Provincij of Manitoba to the Court of Qutufu's Bench, or to any Judj,'e of th(; said Court ; but any appeal to a singh) J ud<,'o in the Provinces of Ontario, N(nv Brunswick, Nova Scotia, British Columbia, Prince Edward Island, or Manitoba, may, in his discretion, be referred on a sptscial case to bo settled to the full Court, and on such terms in the meantiiuo as he may think neces- ATPi'di to 1)0 sary and just. No such aiiijoal or proceeding: in revision within Light sluiU be entertained unless tho appellant or party inscribing for revision shall have, within eight days from the rendering of such final order or judgment, adopted proceedings on tlie said apj)eal or revision, or unless he shall within the said delay have made a deposit or given suHicicnt sureties liofore a Judge that he will duly prosecute the said ap})eal or pro- ceedings in revision, and pay such damages and costs as If api)i!iiant may be awarded to the respondent. If the party appellant proceed. doos not })roceed with his appeal, or in review, as the case may be, according to the law or the rules of practice, the Court, on application of the ros})ondent, may order the record to be returned to the officer entitled to the custody thei'eof, and condemn the appellant to pay the respondent the costs by him incurred. The time for taking proceedings in appeal is extended from five days to eight. It is not necessary that the petition in api^eal should be signed by the party or his attorney. The service of notices of setting down for argument of the appeal is sufficient notice. The petition should be addressed to the court and not to the Chief Justice only. The neglect of the a.s8ignee to file the papers on or before the day of presenting the petition is no reason for rejecting the appeal, though it may be a reason for enlarging the hearing and proceeding against the assignee for his neglect or contempt. Points not taken in the court below are not open to parties before the Appellate Court. The proper mode of raising technical objections to the proceedings in cases of this kind is to move a rule to set the proceedings aside, instead of urging the objections on the aigu- ment of the merits (Re Parr, 17 C. P. U. C. 621). The sureties under this clause cannot be the solicitors for the appellants ; the rule in the other courts is to be followed (Re Owens, 12 Grant, 564 ; and see Panton v. Lahertouche, 1 Ph. 265; Meyers v. Hutchimon, 2 U. C. Prac. 380). FRAUDS AND FRAUDUl.KNT riUa-nUENCEM. i3y Tho projmr time to take oltjoctiuii to tho Hufticioncy of the surotioB is lu'foru the ju«l^'o of till! liiMiilvtint Court, hy uuiilogy to procoudiii^s in appualM from the County to tho Siij)erior ( 'oiuta (Con. StiitH. U. C., rli. IT), see, (57, and lit OwvuH, iihi xiipm ; neo llmtilw Ihxtd.t, IDdrant, OIH). Tlio length of mitico to ho f^ivcn of the application for tho allowaniu' of the appeal iH not sf)ecially providcMl for in tliJH pluco, and tho genornl proviMinns of 8UC. I OH niuHt ri'^Milato it. Tiiero would hwau to hu a tlililoulty, liowmfr, in cftHo till! ptTHon H< rvcd with notice had no Holicitor, and nsidcd Honu; hundred miles from Toronto, wlieru the ap{)lication must be made. l''or, one clear day's notice must in any ease he given, and one extra «lay for every lifteen miles distance from the place where the jirocccfling is to he taken must he added, while only eight days aft(;r judgment reinlered are allowe ; see AV /hiriihoii, 4 I'. K. IM). The omission of the grounds of api)eal in the notice is not an irregularity (s. c. ). It is not necessary to set out in the petition of appeal, the evidence, docti* nients and materials used before the judge {Ifoott v. Dudda, IJ) (Jrant, (542). When the last day falls on a Sunday, the ai)pellant has all the rte.vt day to serve ids petition ([Ind). The C!ourtof Hankrui>tcy in England follows the rule of the Court of Chancery as laid down in Dtnuii v. llaucork (L. II. (5 Cli. App. 138), and will not, as a matter of course, give the costs of an appeal to a suc- cessful api)ellant (Ex pttrtc Mathews, In re Chcni/, L. 11. 12 luj. 59(5 ; see (,'ann v. Ju/iiisoii, L. R. 6 C. 1*. 4(51). When the insolvent who has appealed from the decision of a county judge, refusing to set aside an attachment against him, dies pending the appeal, and no personal representative has been appointed, the appeal fails (Lnwrk v. McMahon, 8 0. L. J. 171). 1/50, Pending the contestation of any claim or of a Reservation tliviuend sheet and of any api)eal or proceechng in i*evision oidixidend the A.ssignee shall reserve a dividend equal to the amount of the dividends claimed or contested. FRAUDS AND FRAUDULENT PREFERENCES. ISO. All gratuitous contracts or conveyances, or contracts Gnituitoun without consideration, or with a merely nominal coiisi(^'^r'i- withiii three tion, respecting either real or personal estate, made l^ a i'llsoivericy debtoi- afterwards becoming an Insolvent with or to any fraudulent. person whomsoever, whether such person be his creditor or not, within three months next preceding the date of a demand of an assignment or for the issue of a writ of , attachment under this Act, whenever such demand shall have been followed by an assignment or by the issue of such writ of attachment, or at any time afterwards, and all contracts by which creditors are injured, obstructed or llf^ i 140 INSOLVENT ACT OF 1878. m m dt'layod, mudo hy u dihtor uniihlo to moot his oii^^agcniontR, and afttTwimls lM«;(nniii|,' iiii IiiHolvrrit, witli a |)(>rHt)ii know- ing Huch inaltility or having pidhalih? raiiso for licluiving Biudi itialiility to oxist, or uftor Hueli inability is puhliu and not(U'ious, wlictlicr such porson no Ium cnMlitor or not, are pnvsurnod to hu nuulo with intont to defraud his croditors. The caso of S^nrfon v. Ontario Hank (13 Cr.int, 052, aiul If) Crniit, *2S3, in Apprnl) iiwt a j)ortant to keep in view tlicir ol>ject. I'he aim of the Insolvent Act here, in undoiil»ti dly to Htfcure to the crtiUtors of an insolvent estate an c<|ual (li«tiihiition of tlie as 'eta; and indeed it will 1m; found tliat most of the cases in iOn;,'l.uid, whi'jh settle what eonstitutea a fraudulent preference as against credittus, iiave Ix'en decided without the aid of any express declaration in tiie Bankruptcy Acts similar to thcHe sections, delining what should constitute a fraudulent prefereneo, and rest upon the itroad principle that f -h acta arc oi)poHcd to the spirit of tlie law. Aside from the insolvent law, *:. is no fraud for a dehtor to ])refer one creditor to the exclusion of the rest. Another point in reading English cases to ho home in mind is, that many of their cases wiiich are here cited as explaining our law Were decided upon the question as to whether certain acts of preference constituted acts of l)ankru])tcy, and the (juestion as to the result upon the restoration of the property to the hody of the creditors was not considered. Sec. 9'J of the English Bankruptcy Act of ISfi!) ia directeil solely to preferences r)f creditors, and does not extend to improper payments to strangers. All gratuitous c{ii;;iir Itucnnic inHolvcrit mi tliu 2nd of Auguut. Thu inortgngu was ■UHUincil {Allitn v. Chirhnn, 17 (ir. r)70). In Caniphill v. Hitrrif (.11 (i. B. IJ.C. 271)), the loftrmtl Jiulj/c Hftid tho proHump- tioM ill nim;, Nt>o| thr Art of |.S»i*», from which thin motion in taken, wa.-* on«r jwrw*/ Moo. V. ('. C J»7), that •Ithoiigh tlic Hcction of thu Coloniul lu«idviiioy Ac' winch was then Itefore them, UM»d tlio wonJH, "and Invvin;^; the cllect of prcfcniiij^ any then existin;^ creditor to another," that the preferring Hpoken of niciuit a fraudulent pre- ferring, and was not intended to refer to any ease of preference not fraudulent. Thin cHHc waa referrtul to in the recent cast! of /'tti/nr v. Ilfiidrii (2l) Crant, 142), and its authority as interpreting tluHHeetion or m'c. I .S.'J »///w, (jucHtioneil. When a party made u vohintary Hcttlenient, and nine months afterward liccamc in»ol- vent, the hurd. a of proof was held to Ix; upon him to nhow hiu Holvency at the date of the Hottlemeiit (rVo.s«% V. Khcortlnj, L 11. 12, Va\. 1 58). 131* A contrn.ct or convnyrtticn forconsidoration, rospoct- ^t'iy^",„. inj; (!ith(M' r(!!il or pciMonnl estiito, l»v whiidi crr(lit(»r.s aro tni'tJivoW- ii\jui('(l or ol)stru('t(>(l, injuh; by a (hd^tor iinal)le to ni(H!t his enj^a^'eiueuts with a perHou ignorant of Buch inability, wluithor Hucli porson be his cnjditor or not, and before such inability has become public and notorious, but witliin thirty days next before a demand of an assignment or the issue of a writ of attachment under this Act, or at any time after- wards, whenever such demand shall have been fellowed by an assignment or by the i.ssut; of such writ of attachment, is voidable, and may be set aside by any Court of com|>etent jurisdiction, upon such terms as to the protection of such person from actual loss or lialiility by reason of such con- tract, as the Court may order. On the 2l8t September, 18(56, one S. transferred certain cheese to K. by delivering him warehouse receipts therefor. 8. became insolvent on the 19th Oct(d)er, and on the following day K. became aware of it. On 22nd Octol)er K. executed a mortgage to the Bank of M(ratrcal on this cheese. It was held that the subsetpient msolvcncy of 8. did not atlect K's right resjjecting thi» property. This section did not apply, as there was no evidence of obstructing o; injuring creditors, but the contrary, the property having been sold at its full value. But even if the case fell within this clause, the contract would be void- able only, under the order of a competent triVmnal, and no such order had yet been made, and would only be made upon such protective terms to the person from actual loss or liability as the Court might direct { The Dank of Montreal v. McWhirter, 1/ C. P. U. C. 500). w 133. All contracts, or conveyances made and acts done Contract* by a debtor, resp ..ig eitlier real or pei-sonal estate, with intent to intent fraudulently ia impede, obstruct or delay his creditors creditoTB to in their remedies against liim, or with intent to defraud his w I :>iy 142 1N80LVKNT ACT OF 1876. croditors, or Jiriy of tlumi, and so malo, douo and int(Mided with thc! knowN'd^o of tho [)orson coutn-ctintj or actiii<^ with tho dobtor, wli(!th(M' siicli (xm'soii ho his cniditor or not, and wJiich hav(! tho olfoct of iinpoding, o'';itructinj[^, or d(!laying tho cTfMlitors of thoir nsuKjdio.s, or of injuring thorn or any of thorn, aro pi'ohilntod and aro null and void, notwith- Ktanding that such contracts, convoyancos or acts, be in consideration or in contoni[>lation of mai-riago. An assignment by a tnider of all hia property, as security for an advance of money wliich he afterwards applies in payment of pre-existing debts, is not necessarily fraudulent within the Act. In order to make such an assign- ment fraudulent, the lender must be aware that the borrower's object was to defeat or delay his creditors. Such nt circuinstanccH conveyed by way of Buttlement to his intended wife a lot of lanil, on which the Hcttlor had coniniencod to put up a houHc, hut which was not coniplct(;9; Atlni v. ISonnet, 18 VV. K. 183; Frrc.maii v. Pope, 39 L. J. ch. G89 ; Mackay v. Doii.j-las, 41 L. J. ch. 539 ; (JroHnley v. Elimrthji, 24 L. 'W Rep. N.S.JG07 ; Kent v. liUey, 20 VV. R. 852. With respect to marriage settlements the doctrine of the Courts has in England undergone considerable modilieations, and it ia now clearly established that marriage cannot be made the means of committing a fraud in an attempt to protect ])roperty against the claims of creditors, as when pending an action for debt the debtor assigned all his property to his intended wife, with whom he had previously cohabited, for his life, with remainder over {Bulvicr v. Ilmitcr, 20 L. T. Rep. N.S. 942) ; and when under the circumstances the marriage itself was regarded as part of a scheme to defeat creditors, the settlement made thereon was set aside in favor of creditors {Columlnna v. Pcnhall, 1 Sm. & (J. 228). 13<{. If any sale, deposit, pledge or transfer ho made of '';;'fi'*"'j|^\ any property, real or personal, by any person in contenipla- ^■''!'"' *';•• tion of insolvency, by way of security for payment to any creditor ; or if any property, real or personal, movable or immovable, goods, effects or valuable security, be given by way of payment by such person to any creditor, whereby Buch 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 competent jurisdiction; and if the Presump- same be made within thirty days next before a demand of Fraud. an assignment, or for the issue of a writ of attachment under this Act, or at any time afterwards, whenever such demand shall have been followed by an assignment, or by the issue of such writ of attachment, it shall be presumed to have been so made in contemplation of insolvency. l^iH |H ' i J 'iii'j 1 144 INSOLVENT ACT OF 1875. 11 I I Acta which constitute fraudulent preferences under this section not only render the transfer null and void, but may (sec. 56, aapra) be the ground for refusing the discharge of the instdvent ; but not when the fraudulent prefereacea were created before the jiassing of the Act in the several Provinces respectively which first made such preferences void therein. See the proviso to sec. 50, and re Owens (12 Grant, 500). This section does not invalidate conveyances executed before the Act passed, and which were valid at the time of their execution (Gordon v. Youwj, 12 Grant, 318). An insolvent absconded to the United States, taking money with him. He was followed there by the agent of a person in this country who had become surety for him, and by the tlireats of criminal proceedings induced him to pay the amount of the debt. A bill filed by the official assignee to recover the amount from the surety was dismissed with costs (Roe v. Smith, 15 Grant, 31:4). Every chattel mortgage made by an insolvent within thirty days before a voluntary assignment is not necessarily void under this sectitm, when taken in the way of business in an ordinary transaction, and where the mortgagee has no reason to uspect that the mortgagor contemplated insolvency. One J., being a retail dealer, and wanting goods to carry on his business, asked one M. to endorse notes to enable him to purchase them. To this M. consented, on condition that J, on receiving the goods should secure him against loss by a mortgage thereon, and on the other goods in J.'s store, who was to sell them at his store only, and out of the proceeds retire the notes, and if he should sell otherwise M. might sell the goods for his own protection. M. accordingly endorsed, and J. with the notes purchased goods, which he mortgaged to M. as agreed on, with other goods, for the bonHfidc and sole consideration of perfecting the said agreement. J. afterwards, and within thirty days from the date of the mortgage, but without M.'s consent, made a voluntary assignment to an official assignee. This mortgage was upheld as against the assignee, and in giving judgment Hagarty, C. J., remarks : "It was a very natural and possibly highly beneficial arrangement for the trader to make, at least so far as it was possible for M. to foresee. Its effect might be, as is remarked in many of the cases, to delay creditors, but that alone does not avoid a transaction otherwise lawful, nor are we prepared to hold that the mere fact that the trader contemplated insolvency will alone defeat the remedy and security of a person dealing with him as M. seems to have done, in the way of business, in an ordinary transaction, and having no reason whatever to suspect what may be passing in the trader s mind" (Mathers v. Lynch, 27 Q. B. U C. 244; s. c. 28 Q. B. U. C. 354). To avoid a transaction under this section, not only must there be a contem- plation of insolvency, but coupled with it a fraudulent preference of the creditor, to whom the transfer or pajnnent is made over the other creditors. In the case cited below, the insolvent, about two months before the issue of a writ of attach- ment against him, assigned to defendant, a creditor, a policy of insurance upon certain merchandise, in security for a debt which was about to be placed in suit, and the insurance company, upon the occurrence of a fire, paid over the proceeds of the policy to the creditor, to the extent of the debt received thereby. At the trial the plaintiflF, who claimed, as assignee, to recover back this amount, called the insolvent, who swore that when he assigned the policy be had no contemplation of insolvency, that his intention was, with his remain- ing assets and the residue of the money derived from the policy, after paying defendant, to re-open his business, but that he was driven into insolvency by the act of a certain creditor, who though he had promised him time, sued out a writ of attachment against him. It was held that the transfer of the policy not having been made within thirty days of the issue of the writ of attachment, the onus was cast upon the plaintiff of proving that the transfer was made in contemplation of insolvency, and that the above facts were insufficient to sustain that contention. \ FRAUDS AND FRAUDULENT PREFERENCES. 14^ ^rbe test to determine whether a transaction is void under this section, is precisely the same as is applied under the English bankrupt law to determine whether a transaction is void, as being by way of fraudulent preference (McWhirter y. Thome, 19 C. P. U. C. 302). A transfer by a party afterwards becoming insolvent to a creditor in payment of his claim is a fraudulent preference and void, if the necessary result of the transfer is to cause the debtor to close up his business and prevent him from paying his other creditors; and tho> words of the Insolvent Act, "in contem- plation of insolvency," do not necessarily mean "contemplation of an assignment under the Act" (Marsh v. Sweeny et al. 2 Sup. Ct. llep. N. B. 454). On the 25th November, 1864, an agreement was made by one S. to deliver certain timber at prices payable partly before and partly on delivery. On the 14th December following S. assigned the timber to a mortgagee as security for certain advances. The mortgagee wrote to the purchaser that S. desired to deliver the timber to him but was in difficulty, that some of the creditors refused to wait until he could complete his contract, and had commenced actions, and recommending the purchaser to anticipate their actitor did not intend the payment to be preferential,»the court held that it did not amount to a fraudulent preference {Ex parte Matthew% 25 L. T. Ittip. N.S. 27(5 ; and on appeal Ex parte Bollaud, L. Re]). 7 Chy. 24 ; see also Craven v. Edmonton, 6 Bing. 734 ; Caiman v. Wood, 2 M. & W". 405). Where the payment is not only voluntary but made under such circumstances that it could be attri})uted to no other motive, it will be construed as a fraudtilent preference, even aside from the presumption arising from tlie transaction being within thirty days (Ex parte Wreford, 24 L. T. Rep. N.S. G38 ; see also Alton v. ILtrrinon, L. Rep. Ch. 4, 622; 21 L. T. Rep. N.S. 282; Ctirtics v. Jacobs, 16 L. T. Rep. N.S. 574; Ex parte Majoribanks, l3e Oex. Rep. 466). 2. Whereby such Creditor obtains, or will obtain, an unjust pre- FRRENCK OVER THE OTHER CREDITORS. — A preference which a debtor is induced to give by threats of criminal proceedings is not void, but to sustain the prefer- ence the pressure must be real, and not a feigned contrivance between the debtor and creditor to wear the appearance of pressure for the mere purpose of giving etfect to the debtor's desire and intention to give a preference (Clemmoio V. Converse, 16 Grant, 547). Evidence of pressure is material to rebut the presumption that a payment given by a debtor hopelessly insolvent is a frau- dulent preference (Bills v. Smith, 11 Jur., N.S. 157). The ante-dating of a note is some evidence of a fi'audulent preference, but it is not conclusive (Strachan v. Barton, 11 Ex. 647; Cook v. Pritchard, 6 Scott N.R. 34). A mortgage obtained by pressure from a bankrupt may be good, though the debt secured was not payable at the time of making the mortgage (Strachan v. Barton, supra, Edwards v. Glyn, 2 E. & E. 329). An assignment obtained from an insolvent of a considerable part of his assets by a creditor to secure an antecedent debt may be valid ( Yoiimj v. Waud, 8 Ex. ch. Rep. 234). It is a very material circumstance that the preference proceeds voluntarily from the bank- rupt himself (Johnson v. Fesenmei/er, 25 Beav. 93; 3 DeC & I. 13in App.). Mortgages given voluntarily or spontaneously in anticipation of bankruptcy are wholly void against the assignee in bankruptcy. Mortgages given upon pressure are valid or invalid according to circumstances. Such a mortgage is not valid if it covers the whole of the debtor's assets, or so much thereof that it must necessarily stop the mortgagor's trade, or prevent its being carried on in its usual and ordinary course, or enables the mortgagee forthwith to put a stop 19 Beav. 626, and see 25, Beav. 91 ; Smith v. Cannan, 2 Q. B, 35 ; Ex parte to the business (Ex parte Bailey, 3 DeG. M. & G. 544 ; Stanger v. WilMns, Wensley, 1 DeG. J. & Sm. 280; Goodricke v. Taylor, 2 DeG. J. & Sm. 139; Siebert v. Spooner, 1 M. & W. 714). A reservation of one-third has been held to be a substantial reservation sufficient to maintain the validity of a mortgage obtained by pressure ( Thuais v. Smith, 1 H. & Colt. 849). When the mortgagor obtains a substantial equivalent in the shape of a benefit to the estate, as where he obtains a i)resent advance which may enable him to carry on his business and realize so as to avoid impending bankruptcy, the mortgage will be sus- tained (Bittlestone v. Cook, 6 E. & B. 296; Penndl v. Reynolds, 11 C. B., N. S. 709 ; Mercer v. Peterson, L. R. 3 Ex. 104 ; Re Gass, L. R. 2 Eq. 284. ) This is undoubtedly the doctrine of the courts in England, though the con- trary has sometimes been said or held to be the case (Lindon v. Sharp, 6 M. & Gr. 895 ; Graham, v. Chapman, 12 C. B. 85 ; Lacon v. Liffcn, 4 Giff. 83; s. c. in appeal, 9 Jur., N.S. 477; Hutton v. Cruttivell, 1 E. & B. 15; Bell v. Simpson, 2 H. & N. 410), and these cases have been commented upon, and the same doctrine applied in Ontario in the Royal Can. Bank v. Kerr (17 Grant 59); and McWhirter v. Royal Can. Bank (17 Grant 480). The assignment to be FRAUDS AND FRAUDULENT PREFERENCES. Wi He Ire the fraudulent must be an assignment not for tlic purpose of raising money to enable the trader to go on with liis trade, l)ut for tlie purpose of paying some favoured creditor, or making sonte payuients to all his creditors, otherwise than under the Act. In cither of these cases it is an act of bankruptcy. But if it is for the jmrpose of enabling liim to go on with his trade, that cannot be called a fraudulent act as tending to defeat and delay his creditors, for it probably is, or may be, the wisest step lie could take to promote the interests oi his creditors {In re Coliiierc, L. R. 1 Ch. App. 13'J). Ex parte Foj-ley (h. R. 3 Ch. App. 517), the nu)rtgage was held invalid because it conveyed substantially all the (lebtor's property to one of hih creditors, without his receiving any money or other ccpiivalent advantage which would enable him to carry on his business or pay his other creditors, and it was held tliat to give validity to a mortgage of all a debtor's property to secure an antecedent debt, the debtor must obtain some- thing to enable him to maintain his Inisiness. The equivalent scmiething need not 1)6 of equal value with the property transferred, nor need it be of money's worth. It must l)e some advantage to the debtor in money advanced or goods supnlied which will enable \\iv\ the better to arrange and carry on his business I Voaiioimi v. Murray, 1 L. 11. 2 Q. B. 034; W/ulmore v. Vlaridqc, S Jur., N.S. iOu'J; Carr v. Biinllss, 1 C. M. & R. 443; Adbott v. Burhane, 2 Bing. N. C). 444). The insolvent, an innkeeper, on the 12th August, 1801), gave the plaintiflF a mortgage upon the wliole of his property, payaljle in six mouths, for an antece- dent debt. The attachment in insolvency issued on the 0th December following, and the assignee seized and sold the goods. The mortgagor believed himself to be insolvent, but the mortgagee did not. The mortgage was given under pressure, and not with intent to defraud or delay creditors, and was upheld (Archihald v. Haldan, 31 Q. B. U. C. 295 ; 32 Q. B. U. C. 30). In this case the evidence of pressure given was that mortgagee had been pressing the insolvent for payment and had threatened by letter to sue him, and required him to give this security, and it was admitted by counsel and the court that this was sufficient (see Ex parte Craven, In re Craven et al., L. R. 10 Eq. 648, Ex parte Temped, In re Craven, 6 Ch. App. 70). It was also argued by counsel that the assignment being of the whole of the debtor's property, and there being no covenant for possession by the mortgagor until default, the mortgage was void upon that ground (see Me Whirter v. Thome, 19 U. 0. C. P. 310 ; In re Wallis, 29 Q. B. U. C. 308 ; Allen v. Bonnett, L. R. 5 Ch. App. 577 ; Jones v. Harher, L. R. Q. B. 77 ; Payne v. Hendry, 20 Grant 143 ; Bank of Australasia V. Harris, 15 Moo. P. 0. C. 97 ; City Bank v. Smith, 20 U. C. C. P. 93). 3. Sucn SALE, DEPOSIT, PLEDGE, TRANSFER, OR PAYMENT, SHALL RE NtTLL AND VOID. — By section 131 the contracts therein specified are declared void- able. By sections 132 and 133 the transactions mentioned are declared nuU and void. The language of the statute 13 Eliz. c. 5, is, "shall be deemed and taken as against that person, etc. , whose actions are delayed or defrauded, to be clearly void ;" and of sec. 92 of the Kughsh Bankruptcy Act of 1809, "shall be deemed fraudulent and void as against the trustee. " Although the words here are unlimited, it is conceived that the section should be construed as if the words "as against the assignee and creditors" were aelded after the words "null and void," and that the assignee or the creditors must take some action to avoid the contract. It has been held in England that the effect of bank- ruptcy upon a fraudulent preference is not to divest the transferee of the pro- perty, but that notwithstanding the bankruptcy it continues vested in the transferee subject to be divested by the assignees at their election ; and that 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, when goods had been transferred by a trader before his bankruptcy by way of fraudulent preference, and the transferee after the appointnjent 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 bankxuptcy aa a defence, when the assignees had done no other act in assertion ! ^ :' ■, 148 INSOLVENT ACT OP 1876. . •:; ' f Ml:: of their rights than commencing an action of trover for the same goods (Nrwnham V. iSlevetmni, 15 Jur. .%0 ; 20 L. 3. C. P. Ill; but sue Chuicher \. Counins, 28 Q. B. U. C. 547; Marks v. Fddinan, L. 11. 5 Q. 13. 275). In Churcher v. CotmnH (28 Q. B, U. C. 548), it is said that all fraudulent preferences or acts done to injure, obstruct, or delay creditors are void ; but the fraudulent preference or other impeachable act must be continuing at the time when the assignee's title accrues to enable him to question it. The assignee's title only accrues at the date of the writ of assignment, or of the issue of a writ of attaclnnent, and has not, as in England, an ulterior relation to the time of the committing an act of bankruptcy (Churcher v. Cousins, supra). 4. And the subject tiirueof ma.v be recovered back by the assignee, IN ANY COURT OF COMPETENT JURisDimoN. — The words "subject thereof" should be construed liberally for the benefit of creditors and the suppression of fraud ; and the transferee may, though he has parted with the property trans- ferred, be compelled to account for the i>roceeds (Churcher v. Cousins, supra ; Marks v. Feldman, L. R. 5 Q. B. 275 ; Nunes v. Carter, L. R. 1 P. C. 342 ; McGregor v. Ilumc, 28 Q. B. U. 0. 381). 5. And if the .same be made within thirty days it shall be presumed TO HAVB BEEN SO MADE IN CONTEMPLATION OF INSOLVENCY. — It will be observed that, as in section 1 30, the time limited is thirty days next before a demand to assign, and not, as in the former Act, thirty days previous to the execution of a deed of assignment. This presumption is one that may be rebutted (Campbell V. Barrie, 31 Q. B. U. (I 279; Churcher v. Cousins, 28 U. C. R. 547; Hoyal Canadian Bank v. Kerr, 17 Gr. 47 ; Mathers v. Lynch, 28 Q. B. U. C. 354). Certain 134, Every payment made within thirty days next be- (lebtor void, fore a demand of an assignment, whenever such demand shall have been followed by an assignment, or by the issue of a writ of attachment, or within thirty days next before the issue of a writ of attachment under this Act, when such writ has not been founded upon a demand 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, shall be void ; and the amount paid may be recovered back by suit in any competent Court, for the benefit of the estate ; Provided always, that if any valuable security be given up in consideration of sucn payment, such security or the value thereof shall be restored to the credi- tor before the return of such payment can be demanded. The expressions in section 92 of the English Act of 1869 are very similar to those in this section, and the decisioi ^ thereon will probably be considered as authority by the courts in the several Provinces. C. paid a sum of money to a creditor named M., and shortly afterwards became insolvent. A special jury found that C. had made this payment voluntarily, at a time when he was unable to pay his debts, and when bankruptcy was reasonably imminent, but he had no intention to give M. a preference. Held, that this payment was protected, and was not fraudulent and void (Ex parte Matthew, lie Cherry, 19 W. R. 1005 ; Ex parte r 'land, Be Cherry, in appeal, L. R. 7 Ch. App. 24). When within three months of a bankruptcy, and whilst hopelessly insolvent. FRAUDS AND FRAUDULENT PREFERKNCE8. 149 a trader in tlio ordinary course of business paid a considerable sum of money to a creditor, hut not, as it appeared, with a view to prefer this creditor to others, it was lield that this was not a fraudulent preference within sccticm \)2 ; and that even if it were so, as the payee received the money " in good faith," the payment could not he impeached (AV C/icexfhorottif/i, '25 L. T. N.S. 70 ; 40 L. T. llep. IJauk. Ul); Ex parte lihirkhuni, L. 11. 12 V\ 3r»8; 25 L. T. Jlep. N.S. 76). A voluntary payment, however, made by tlie «lehtor within two (lays from the filing of his petition for lier thereof, who did not prove himself to have l)een ignorant of the incurring ami of the intention to incur such debts, was Hable to punishment. By the alteration in tliis section each of the members of a firm are not ijrUiiA facie liable, but a case must be established against them. In addition to inflic" ng a severe punishment upon the insolvent under this clause, the cretlitors may take advantage of his conduct for the purpose of opposing his discharge (sec. 101 supra) ; and the misconduct need not be shown to liave occurred since the passing of the Act of 18G4 {Rt Owens, 12 Grant, 560). - When a person in business finds himself unable to pay twenty shillings in the pound, it may or may not be his duty to discontinue his trade, according to circumstances : continuing his business may be a fraud, but it is not necessarily BO, and may not disentitle him to his discharge {/?e Robert Holt and John Gray, FRAUD8 AND FRAUDULENT rUKFKKENCES. 151 n e o 13 fJrftnt, 5G8). In another case Mr, .lustico Adam Wilson says :— "Tho raoro fact of a trader iiurchaaing goods who is at the time unaltle to meet his engage- ments, is neither fraud nor within the provisicms of the Insolvent Act. A purchase may under sucli cirounistanues l)u tlie very l)est and wisest act wliich the trader couKl do, and may be the most l)enolicial act for his creditors. Such a ])urcha8c may he the very means of rcinntatiug him, and relieving him from difHculty. Inaliility to pay is no more fraud, though it was thought so in formiT time wlien hatdiruptcy Avas osteenied a crime, than solvency is honesty, though some nuiy think, it so" (/« re UarnUl tl- (Jo,, 28 (l- B. U. C. UGG). The language of this section, roterring to tho insolvent's "knowing or be- lieving liimself to be uual»le to meet his engagements, M'lien he purchases goods on credit or procures ailvances in money," is much the same in terms and meaning as the words in the loDth section of the Knglish Act of 1801. Thii latter section declares tiie insolvent to l;e guilty (»f a misdemeanor, if the court is of opinion "that he couM not have liait, at tho time when any le to pay any debt at the time he contracted it from a general view of his income, earnings and })roperty on the one hand, and the liabilities hanging over him on the other. He must appear to have contracted new debts after manifold proof given of his incapacity to liquidate existing demands upon him. Allowance will also be made for a fair prospect of profes- sional exertions, or commercial enterprise, for the reasonable hopes of assistance from friends, and many other contingencies of life. In eases of doubt, the character of tlie debt will also "be considered, as to whether it >\as contracted for luxuries or the necessary support of the insolvent's family, or in the ordinary course of trade. It cannot be contended that a man must leave off trade because he is in ditHculties ; and the system of trade in this country is so thoroughly based upon credits, that no trader in the Dominion at all in diffi- culties could carry on trade without " purchasing goods on credit, or procuring advances in money" (see Ex parte Johnson, 4 De G. & S. 25 ; £Jx parte Dornford, 4 De (i. & S. 29 ; Ex parte. Bufford, 2 D. M. &, G. 234 ; Ex parte Dobson, 6 D. M. & G. 781 ; Ex parte Selby, 6 D. M. & G. 783 ; Ex parte Brundrit, In re Caldwell, L. R. 3 Chy. 2G : Ex parte Bayley, In re Ainsworth, L. R. 3 Chy. 244). Overdrawing an account current at a banker's by a person in insolvent cir- -cumstances does not in itself amount to contracting a debt without reasonable «r probable ground of expectation of being able to pay the same (Ex parte Har- rison, 2 L. R. Chy. 195). As to the construction of section 92 of the Act of 1869 in New Brunswick, see Jones et al. v. Hanford, 2 Sup. Ct. Rep. N. B. 467. iJil 152 INSOLVENT ACT OP IfiW. PraiKl rrnmt b« pruvcd. ;t : m Award of iiriprison- nieat. AssignnnH to be deonii'd a){Otits for linrtaia imr- ])08L'H. 32^33 Vie. ch. 21. Punishment of assit,'iR'ti iiiakinj^ wil- ful misstate- ment. Certain acts by Insol- vents to be misdemean- ors. itJ7» Wliotlmr th(* Wofondant in any anch case appoar and pload, or mako default, tlio plaintilF shall ho hound to ])rovo tho fraud char^'od, and upon his proving it, if tho trial be before a jury, tho Judge who trioH tho Huit or proco(Mling shall iniUKidiatoly after the verdict ronderod against tho dcifendant for Huch fraud (if such verdict is given), or if not before a jury, then inunediately ujwn his rendering his judgnumt in the promisees, adjudge tho term of inijirisonment which the (hsfendaiit shall underjio ; and ho shall forthwith order and direct the (hjfisndant to bo taken into custody and imprisoned accordingly; but such judgment shall be subject to the ordinary remedies for tiio rovisiou thereof or of any proceeding in the cas? OFFENCES AND PENALTIES. 138. Evoiy Assignee to whom an assignment is made under this Act, is an agent within the meaning of the seventy-sixth and following sections of tho "Act resi)octing larceny and other similar offences," and every provision of this Act, or resolution of the creditoi-s, relating to the duties of an Assignee, shall be held to bo a direction in writing, within tho meaning of the said seventy-sixth section ; and in an indictment against an Assignee, under any of the said sections, the riglit of property in any moneys, security, matter, or thing, may be laid in " the creditors of the Tn.sol- vent (naming him) under the Insolvent Act of 1875," or in the name of any Assignee subsequently appointed, in his quality of such Assignee. 1«S0. Any Assignee who in any certificate required by this Act shall wilfully misstate or falsely represent any material fact for the purpose of deceiving the Judge, the creditors, or the Inspectors, shall bo guilty of a misde- meanor, and shall be liable at the disci'otion of the Court before which he shall be convicted to imprisonment for a term not exceeding three years. 140. From and after the coming into force of this Act, any Insolvent who with regard to his estate, or any Presi- dent, Director, Manager or employee of any copartnership, or of any Incorporated Company not specially excepted in the first section of tliis Act j with regard to the estate of 0PFENCE8 AND PENALTIES. 153 siioh copartnorsliip or CoiiipMuy, wlio sliall do any of tho jictH or tliiii','s following witli iiitnit to (Uifraud, or dcfwit tho rights of liis or its creditors, sliuU ho guilty of a iiiiscU'incanor, and sliall ho hahh», at the (h.scn^tioji of tlio ('ourt h(>f()ro which ho is convictcnl, to ponishiiuMit hy imprisoiiniont for not Hioro tlmn throe years, or to at\y greater puuisiinieut attached to tlio ofrence hy any existing statute ; If ho does not upon oxamination fidly and truly discover Not fully to the host of liis knowledge and helief, all liis property, or not ^ real and personal, inclusivo of his rights and credits, and j.'ro'n'.rtyf how and to whom, and for what considcnution, and when ya\mH, etc ho disposed of, assigncnl or tranyferrod tho same, or any part ^^^horeof, except such part has \wnni really ami bona fide hefore sold or disposed of in tho way of his trade or business, or laid out in ordinaiy family or household expenses, and fully, clearly and truly state tho causes to which his insolvency is owing ; or shall not deliver up to tho Assignee all such part ^thereof iis is in his possession, custody or })0wer, (exce[)t such i)art thereof as is exempt from seizure as horeinbeforo provided), and also all books, papers and writings in his possession, custody or power relating to his property or affairs ; As to what property exempted from seizure see ante, section 16. If, within thirty days prior to the demand of a deed of Removing assignment, or the issue of a writ of attachment nnder this Act, ho doth, with intent to defraud his creditors, remove, conceal or embezzle any part of his property, to tho value of fifty dollars or u[)wards ; If, in case of any person having to his knowledge or belief Not dcnotin- provod a false debt against his estate, he fails to disclose tho claims. same to his Assignee within one month after coming to tho knowledge or belief thereof ; If, with intent to defraud, he wilfully and fraudulently False omits from his schedule any effects or property whatsoever ; If, with intent to conceal the state of his affxirs, or to withholding * defeat the object of this Act, or of any part thereof, he con- ° ' ceals, or prevents, or withholds the pi-oduction of any book, deed, paper or writing relating to his property, dealings or affairs ; 1^4 FAiHifyiiig buukn. Htatiiig nctitioua loiseii. Di.simHing of gooUrt not paid fur. Offences iiguinst this Act, Ikow tried. Creditors taking con- riidenttiun for i^rauting Uisutiurge, «tc. INBOI.VRNT ACT OP 1876. If, with iiitont tu concoal tho Htuto of liLs iiiruira, or to tlofeiit till' ol>j(. One per centum upon all moneys proceeding from q^^^^^, the sale by an Assignee, under the provisions of this Act, BuVuun^ of any immovable property in the Province of Quebec, p"^ ■"'"'y shall be retained by tho Assignee out of such moneys, and Quebec, shall by such Assignee be paid over to the Sheriff of the district, or of either of the Counties of Gasp6 or Bonaven- ture, as the case may be, within which the immovable pro- perty sold shall be situate, to form part of the Building and Jury Fund of such Distiict or County. 166 INSOLVENT ACT OP 1876, Governor in I4(J, The Governor in Council shall have all the powers Jiavi! ('ortain With respcct to imposing a tax or duty upon proceedings under this Act, which are conferred upon the Governor in (Council by the tliirty-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). Provisions for lnoor- porateil i!.'()iii[)iinics. PROCEDURE IN THE CASE OF INCORPORATED COMPANIES. 147. The provisions of this Act shall apply to tho estates of Incorporated Companies not specially excepted in the first section of this Act, subject to the following modi- fications : Although the language of this provision is that the Act shall apply to incor- porated companies not specially excepted in the first secticm of the Act, it must be restricted by the general expression in that section that only trading com- panies come within the Act. The definitions ni the first section of occupations that constitute indivicbial traders apply equally to companies ; it is quite clear, therefore, that manufacturing and mining companies are subject to the provisions of the Act. Under the English Act of 18(J2 a company could be wound up by the Court of Chancery at the instance of either its creditors or contributories, while only creditors can initiate proceedings under this Act ; although when steps are once commenced against them, the company may assign to an official assignee (see below, sub-sec. 15). It has been held in England that a company cannot be wound up on the petition of a creditor whose debt was di^sputed ( The CdthoUc PiiMishiiuf Co. Limited, 12 W. R. 538 ; see also Be Hope Mutual Life Assurance Co., I N. R. 542). And where the petitioner has been out of the jurisdiction, he has been ordered to give security for costs [Re Royal Bank of Australia, Ex parte Latta, 3 DeG. & S. 186). (1.) No writ of attachment shall issue against the estate of an Incorporated Company except upon the order of the Judge and sifter notice of at least forty-eight hours has been given to such Company of the application for such writ. The Judge in all cases where proceedings have been adopted under this Act against an Incorporated Company, may before granting a writ of attachment, order the Official Assignee to inquire into the affairs of the Company, and to report thereon within a period not exceeding ten days from the date of such order. ,. (2.) Upon such order it shall be the duty of such Company and of the President, Directors, Managers, and Employees thereof, and of every other person having possession or knowledge thereof, to exhibit to the Official Assignee, or to his Deputy, the books of account together with all inven- Preliininary notice. Inquiry by Assignee. Company to exhibit boolcs, &c. INCORPORATED COMPANIES. tories, papers, and vouchers referring to the business of the Company, or of any other person, and generally to give all such information as may be required by the Official Assignee to form a just estimate of the affairs of the said Company; and any refusal on the part of said President, Directors, Managers, or Employees of the Company to give such infor- mation shall, on evidence of such refusal, be considered as a contempt of an order of the Court or Judge, and punishable by fine or imprisonment, or by both, at the discretion of the Judge. (8.) From the time the above order is served upon the Com- pany, the President, Directors, Managers, and Employees thereof, and all other persons having the control or posses- sion of its affairs or property, shall hold the estate and pro- perty of the said Company upon trust for the creditors of the said Company, and shall be bound to account for all the property of the said Company under the same obligations, liabilities and responsibilities as trustees appointed by Courts of Law or Equity in the several Provinces, or as Guardians and Sequestrators in the Province of Quebec, are bound : (4.) Upon the report of the Official Assignee, or before any order is given for the examination into the affiiirs of the Company, as herein provided, the Judge may order that a meeting of the creditors be called and held in the manner provided for by this Act for the first meeting of creditors, at which meeting the creditors present, who shall verify their claims under oath, may pass such resolutions either for the winding up of the affairs of the Company or for allowing the business thereof to be carried on, as they may deem most advantageous to the creditors, and may also appoint two Inspectors and indicate the mode in which the business of the Company should be wound up or should be continued : (5.) The resolutions so adopted shall be submitted to the Judge at the time and place appointed at the meeting, and at least forty-eight hours notice shall be given by the Official Assignee to the Company of the time and place so fixed : (6.) The Judge, after hearing such creditors as may be present, the Assignee and the Company, may confirm, reject, or modify the said resolutions, and he may order the imme- 157 li Refusal to be conteiiiiit of Court. Aftftrservicfl of order Company to hold property in trust. Meeting of creditors may be called. Resolution* thereat. To be sub- mitted to Judge. Powers to Judge in relation thereto. i ■ hi i I 1 •• ♦ *» I 1 158 Ordor may be made by Judge. Kecciver may bo appointed. To render account. INSOLVENT ACT OF 1875. diate is.sne of a writ of attachment to attach the estate of the Company, or direct that the issue of such writ shall be suspended for a period not exceeding six months, during which period he may order that the Official Assignee, or the Inspectors (if any have been appointed by the creditors), shall exercise a general supervision over the estate and busi- ness of the said Company by requiring from the President, Directors, Managers and Employees of the Company, such periodical accounts and statements of the business done, and of the moneys received and expended or disbursed since the last statement, as may be required by the said Inspectors or the said Official Assignee, to obtain a proper knowledge of the affairs of the Company : (7.) The Judge may also, if he deems it for the advan- tage of the creditors, appoint a Recoiver, charged with such duties as to the superintendence or management of the affairs of the Company as may be imposed upon him by the order of the J\idge, and who shall also assume and be in- vested with all the powers vested in the Directors and Stock- holders respecting the calling in and collecting of the un- paid stock of the Company, and subject to such orders and directions as he may from time to time receive from the Judge : (8.) Such Receiver shall account, whenever ordered by the Court or Judge, for all moneys or property he may have received from the estate : It would seem to be competent for the Judge to appoint a receiver without requiring security for the due performance of his duties and accounting for moneys he may receive ; yet it is not probable that a Judge would thus plaoe the property of an estate in jeopardy. (9.) Before the expiration of the six months next after such order, the Official Assignee or the Receiver, as the case may be, shall cause another meeting of the creditors to be called : (10.) On the resolutions adopted at such meeting the Judge may either grant a further delay, not exceeding six months, or cause a writ of attachment to issue at the in- stance of any creditor or creditors. If demands (li-) If ^^ tl^s expiration of such prolonged delay the tied estate* demands made upon the Company to place it in liquidation Further meeting within six mouths. Further delay may bo granted. 1 m^ GENERAL PROVIStONS. 159 have not been satisfied, the Jutl<:'e shall order the issue of a of Company writ of attachment ; and the estate of the said Company wound up. shall be wound up under the provisions of this Act, unless the creditor or creditors entitled to such writ shall consent to a further delay : (12.) Nothing in this section shall prevent the Judge, Judge may before the exi)iration of the delays he may have granted orders. under the preceding sub-sections, from cancelling the orders so given by him, and from ordering the issue of a writ of attfichment, or from releasing the Company from the effect of any such order, as circumstances may require : (13.) The President, Directoi's, Managers, or other officers officers of or Employees of the Company, and any other person, may may be be examined by the Assignee or by the Judge on the affairs of the Company, and each of them shall, for refusal to an- swer questions put in reference to the business within his own cognizance, be liable to the same penalties as ordinary traders refusing to answer questions put under the provi- sions of this Act : (14.) The remuneration of the Official Assignee and of Remunera- the Receiver for services performed under the preceding glgnee and sub-sections shall be fixed by the Judge. Receiver. (15.) Nothing in the preceding sub-sections shall prevent company the President, Directors, Managers or Employees of the aTassIgn^ Company, on being duly authorized to that effect, from jng'deYay. making an assignment of the estate of such Company to an Official Assignee in the form provided for by this Act, before the expiration of the delays which may have been granted to such Company by the Court or Judge. The provisions of this Act give remedies to the creditors of companies whereby they may share equally in the assets in case of insolvency. It would seem also that a company may effect valid compositions under sec. 49 and the following sections. A discharge may also be obtained by a company, for what it is worth, under sec. 64 ; but no machineiy is provided for dissolving the company and putting an end to its corporate existence. M ; H GENERAL PROVISIONS. 148, The foregoing provisions of this Act shall come commence- into force and take effect \ipon, from, and after the first day "orego^L of September, in the present year 1875, and not before, provisions. 160 INSOLVENT ACT OP 1876. Insolvent Acts of 1864 and 1809, (ind Acts amending them unci AetH of U C. and P. . I. continuea to Ist Sept. and then itipealed ; saving eer- tiiin pro- ceedings und mutters. except in so far as relates to the appointment of Official Assignees, and the making and framing of rules, orders and forms, to be followed and observed in proceedings vmder this Act, with respect to which the said provisions shall be in force from the time of the passing of this Act. 149. The Insolvent Act of 1864, and the Act to amend the same passed by the Parliament of the late Province of Canada in the twenty-ninth year of Her Majesty's Reign, " The Insolvent Act of 18G9," the Act amending the same passed in the thirty-third year of Her Majesty's Reign, and the Act amending the same passed in the thirty-fourth year of Her Majesty's Reign, and the Act passed in the thii'ty- seventh year of Her Majesty's reign continuing the same, the Act passed by the Legislature of Prince Edward Island in the thirty-first year of Her Majesty's reign, chaptered fifteen, intituled " An Act for the relief of unfortunate debtors," and the several Acts aniending and continuing the same which are in force in the said Province of Prince Edward Island, which are mentioned in and continued by the last mentioned Act passed in the thirty-seventh year of Her Majesty's Reign, the Act of the Legislature of the Colony of Vancouver Island, passed in the year 18G2, and intituled : " An Act to declare the law relative to Bank- ruptcy and Insolvency in Vancouver Island and its depen- dencies," and the Act of the Legislature of the Colony of British Columbia, passed in the year 1865, and intituled *' An Ordinance to amend the law relative to Bankruptcy and Insolvency in British Columbia," and all Acts of the said Legislatures, or either of them, amending the same, are hereby continued in force to the first day of September in the present year 1875, after which date the same shall be repealed, except so far as regards proceedings commenced and then pending thereunder, and also as regards all con- tracts, acts, matters and things made and done before such repeal, to which the said Acts or any of the provisions thereof would have applied if not so repealed, and especially such as are contrary to the pi'ovisions of the said Acts, having reference to fraud and fraudulent preferences, and to the enregistration of marriage contracts within the Province GENERAL PROVISIONS. IGl of Quebec ; and as to all such contiacts, acts, matters and tilings, the provisions of the said Act shall remain in force, and shall be acted iipon as if this Act had never been passed : Provided always, that as respects matters of pro- cedure merely, the pi-ovisions of this Act shall, upon and after the said first day of September, in the present year 1875, supersede those of the said Acts even in cases com- menced and then pending, except cases pending before any Official Assignee, in his judicial capacity : And all securities given under the said Acts shall remain valid, and may be enforced, in respect of all matters and things falling within their terms, whether on, before, or after the day last afore- said ; and especially all securities theretofore given by Official Assignees shall serve and avail hereafter as if given under this Act. All other Acts and parts of Acts now in force in any of the Pi-ovinces to which this Act applies, which are inconsistent with the provisions of this Act, are hereby repealed. 150* The foregoing provisions of this Act shall apply to each and every the Provinces in the Dominion of Canada. 151. The provisions of The Insolvent Act of 18G9, ap- plied by Schedule A of the Act thirty-fourth Victoria, chapter thirteen, to Insolvents resident in the Province of Manitoba, shall continue to apply to such Insolvents, in the case of composition and discharge mentioned in the said provisions, until the said first day of September, 1875, until which day the said provisions are hereby continued in force for that piu'pose, and upon, from and after the said day tlie same shall be repealed, subject to the like exceptions and provisions as are made in the next preceding section but one, as to the Acts and laws repealed by the said section ; and in the provisions so continued in force " The Court " shall mean the Court of Queen's Bench of Manitoba, and " The Judge " shall mean the Chief Justice or one of the Puisne Judges of the said Court. 153. This Act shall be known and may be cited as '' The Insolvent Act of 1875." Proviso. I'nicoilure unilrr this Act to ajiply and stt]i(:r- sedf! that iiiid«!r said Attn. Sccnritit'H to remain valid. Inoonsifit- ent Acts repealed. Act to apply to all the Provinces of Canada. Certain jiro- visions of 32-:W Vict, c. 16 to apply to Manitoba until Ist Sept., 1875. "Court" and " Judge" what to mean. Short title. ;:!tll!l; 'I ; '^ma jm APPENDIX OF FORMS. To {name [DEMAND TO ASSIGN.] FORM A.— (FirfeSEC. 4.) Insolvent Act of 1S75. residence and description of Insolvent). You are hereby required, to wit, by A. B., a creditor for the sum of $ {descrihe in a summary manner the nature of the debt), and by C. D., a creditor, etc., to make an assignment of your estate and effects under the above-mentioned Act, for the benefit of your creditors. Place date Signature of Creditor or Creditors. [AFFIDAVIT FOR WRIT OF ATTACHMENT.] FORM B.— (FtJeSEC. 9.) Insolvent Act of 1S75, Canada, Province op District of A. B. {name, residence, and description,) Plaintiff, «». 0. D. I, A. B. — [name, residence, and description,) Defendant. {name, residence, and description,) being duly sworn, depose and say : 1. I am the Plaintiff in this cause {or one of tho Plaintiffs, or the clerk, or the agent of the Plaintiff in this cause duly authorised for the purposes thereof. ) 2. The Defendant is indebted to me {or to the Plaintiff, or as the case may he, ) 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 1875, and has rendered himself liable to have his estate placed in liquidation under the said Act ; ana my if; 164 INSOLVRNT ACT OF 1875. reasons for so believing aro as follows: {state concisely the facta relied upon (18 rendering the debtor Insolvent, and aa anhjccting his estate to he placed in liquidation.) 4. I do not act in this matter in collusion with the Defendant, nor to procure him any undue advantage against his creditors. And I have signed; (or I declare that I cannot sign.) Sworn before me this day of 187 . (And if the deponent cannot sign, add) — the foregoing afHdavlt having been first read over by me to the deponent. [WRIT OF ATTACHMENT.] FORM C— ( Vide Sec. 9.) Imolvcnt Act of tS75. Canada, Province op District of No. Victoria, lij the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To the Official Assignee of the County [or Judicial District, or Electoral District, aa the case may he) of Greeting : We command you, at the instance of to attach the estate and eifects, 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 territorial jurisdiction) and the same so attached, safely to hold, keep, and detain in your charge and custody, until the attachment 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 District) of on the day of to show cause, if any he hath, why his estate should not be placed in liquidation under the Insolvent Act of 1875, 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 whereof, 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 seventy in the year of our Reign. APPENDIX OF F0UM8. 165 [NOTICE OF IHSUE OF ATTACHMENT.] B'OUM J).— {Vide Sec. n.) IiiHulvent Act of lS7o. A writ of attachment has issued in this cause. Place date • A. B., Plaintiff. C. D., Defendant. (Si ff nature.) Official Assignee. [ASSIGNMENT.] FORM E.— ( Vide Sec. 15.) Insolvent Act of 1875. This assignment, made between of the first part, and the second part, witnesses: of On this (or) 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 1875" the said party of the first part, being insolvent, has assigned and hereby does assign to the said party of the second part, accepting thereof as Assignee under the said Act, and for the purposes therein provided, all his estate and effects, real and personal, of every nature and kind whatsoever. To have and to hold to the party of the second part as Assignee for the purposes and under the Act aforesaid. In Witness whereof, etc. (or) Done and passed, etc. I if I' I!i 'ill ? w 1 i ; .! Ill 1C6 INSOLVENT ACT OF 1875. [SCHEDULE OF CREDITOKS.] FORM F.— ( Vide Sec. 17.) IiiMulmit Aft of 1S75. In the matter of A. B., an Insolvent. Seheihile of Crcditora. 1. t Liabiliticfl. TOTAL. NAME, REHIDCNCK. NATURE or DEBT. AMOUNT. 2. Indirect liabilities maturing before the day fixed for the fir.st niectinj; of creditors. NAME. RESIDENCE. NATURE or DEBT. AMOUNT. 8. Indirect liabilities, maturing after the day fixed for the tirst meeting of creditors. NAME. RESIDENCE. NATURE OF DEBT. AMOUNT. 4. Negotiable paper, the holders of which are unknown. DATE. NAME OF MAKER. NAMES LIABLE TO INSOLVENT. WHEN DUL". AMOUNT. APPENDIX OF FORMS. 167 [OFFICIAL ASSIGNEE'S NOTICE OF MEETINCJ] FORM a.— (FiJc Skc. 20.) Jimulvent Act of 1S75. In the matter of an Insolvent. The Insolvent has made ...» assignment of his estate to mo, {or, a writ of ftttachmcnt has been issued in thiit cause), and the Creditors are notified to moot at in on — the day of — — at o'clock " to receive statements of his affairs, and to appoint an Assignee if they see fit. {Date and reaidence of Aaaignee.) {Signature.) Assignee. {The following is to he added to the notices sent hi/ post.) The Creditors holding direct claims and indirect claims 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 $ ■ Date {Signature.) [TRANSFER TO CREDITORS' ASSIGNEE.] FORM H.— ( Vide Sec. 30.) Insolvent Act of 1S75, In the matter of A. B., an Insolvent. This deed of release {or transfer) made under the provisions of the said Act, between (C. D.,) — — Assignee to the estate of the said Insolvent, of the first part ; and (E. F.,) of the second part, witnesseth : That whereas by a resolution of the Creditors of the Insolvent, duly passed at a meeting thereof duly called and held at on the day of the said party of the second part was duly appointed As- signee to the estate of the said Insolvent : Now, therefore, those presents witness that the said party of the first part, in his said capacity, hereby releases {or transfers) to the said party of the second part the estate and effects of the said Insolvent, in conformity with the provisions of the said Act, and for the purposes therein provided. In witness whereof, &c. {This form may he adapted in the Province of Quebec to the notarial form of execution of document* prevailing there.) \ 1 II 168 INSOLVENT ACT OF 1876. ...r lABBlGNEEVS NOTIOK OF APPOINTMENT.] FORM I.— ( Vide Sec. 31.) JniiolmU Art of 1S75. In the matter of A. B. (or A. B. & Co.) an Insolvent. I, the unilcrsigncd, {name and residence^) have haa^ nppointc. hereby specially mortgages and hypothecates to and in favour of tho said A,B., in his said capacity, the lot of land and premises hereby sold. In witness, &c. A. B. C. D. [I..S.1 |L.S.j Signed, scaled, and delivered in the presence of E. F. {Thii form shall be adapted in the Province of QaeJ/ec to the notarial form of execution of documents prevailing there.) fmmf^ APPENDIX Of FORMS. 171 I' In the matter of [N(ynCE OF DIVIDEND.] FORM 0.— ( Vide Sec. 92.) Imulvcnt Ad of 1875. A. B. [or A. B. & Co.), — an InHolvcnt. A dividend sheet has been prepared, open to objection, until the Jay of after which dividend will be paid. Place date {Signature of Assignee.) In the matter of Claimant. [AFFIDAVIT PllOVlNG CLAIM.] FORM ?.—[Vide Sec. 104.) Iiutolve.nt Act of 1S75. A. C, an Insolvent, and CD., being duly sworn in depose and say : I, 0. D., of — 1. I am the claimant {or^ the duly authorized agent of the claimant in this behalf, and have a personal knowledge of the matter hereinafter deposed to, or a member of the firm of claunants in the matter, and the said firm is composed of myself and of E. F.) 2. The Insolvent is indebted to mo (or to the claimant) in the sum of dollars, for [here state the nature and particulars of the claim, for which purpose reference may also be made to accounts or docu- ments annexed.) " 3. I {or the claimant) hold no security for the claim, {or I 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 ■■ this day of And I have signed. H m .i'fiii rilACTICAL FORMS FORM I. DEKD OF COMPOSITION AND DISCIfAIUiK (Secs. 49 & 52). JriHolocril Act ; and wiicrcas the said insolvent has agreed to secure the payments of his Creditors hereinafter mentioned hy (itt out the. nature of t/ui ticxuritica offirtd). Now, therefore, this Indenture witncsseth that in consideration of his indehtedness and of the discharge hereby given, the said Inscdvent covenants and agrees witli all his Creditors, collectively and severally, that he will pay to them, and each of thorn respectively, a composition of cents in the dollar of their respective claims against him in manner and at the times following, that is to say : cents in the drdlar in aiontliH from the day of 187 ; cents in the dollar in months frojii said date, etc.. etc. And that he will give to each of them his promissory notes for Buch composition payments secured hy (as tht case may be,), such notes to bear date on the said ■ — — day of 187 , and to be payable according to the; times of said respective composition payments, and the said Insolvent further covenants and agrees to pay forthwith upon confirmation hereof all costs, charges and expenses connected with the proceedings in Insolvency respecting his estate, and inclusive of t'te cusfis of this deed and of confirming the composition and discliarge hereby eti'ected (iududbuj tht cohIh of the, HoLlcilor for tlie AiiHhjme as hitwatii Solicitor and Client in connection with aaid jtrocecdinyii, and the Aii»iifnee'n remuneration.) And in consideration of the said composition payments so to be made, and of the said security so to be given, the said (Jreditors do, and each of them doth, release and discharge unto the said Insolvent all their resjicctive claims against him. And the said Creditors do hereby direct and .authorize the Assignee of the estate of the said Insolvent to deliver up and convey to the 8»'d Insolvent all his estate and ell'ects upon this Deed of Composition and PRACTICAL FORMS. 173 JJiHcli.ir^c lioin^ oxccutod l)y a inrijority in niuiilMir of thn C'roditorH of Uk; Haid liiHolvciit wln» liavo proved claiiiiH to tlic anioiiiit of , and may hi; conliimtid tliuruund(3r ; and alno that thu Hamo uhall lie inclFootual unloHH and initil tho Hame Hhall l)o cxccnted hy tho aforenaiil projiortionH in nunilier and value of the Haid Clrcditors of tho Haid InHolvciit. In witnoaH where(jf tho Haiti parties havo hereunto Hot their hands and ScalH. Signed, Hcalcd and 'e wliatHocvcr, made, Hecurcd or ))rf»mi«e(l to liim hy or oil ttuhalf of tho said [iiH()lv(;iit, and tliat the Haid Iimolvont liaH drlivorcid a nworn Htatciniiiit of IiIh lialiilitit-H and aHHtits an rfuniiriid hy Haid Act ; utid upon roadiiig IIk; iiotict; of this apj)Ii<;ation, and it app(;arin^,' that the Mann; haw been duly advertized and Hont to tho (yniilitors of the Haid [nsolvent pursuant to the Haid Act ; •And no one <>p])(mn^ the Hai|)li(ratioti for ((onfirmation of Hueh Diacliargp (or upon h'iarinf,' wJiat was alhgctl in opi)o«ition to granting auuh confirmation of DiHehargc anil the evidence ad»n8ent DiHcharge (or Deed of C!oinpoHition and Discharge), be ami tho same iH hereby absolutely confirmed. Or, r do order that the DiHcharge of the Haiil Insolvent contained in the Haid (/onsent DiHcharge (or Deed of Composition ami Discharge), be and the name is liereby conlirmed, to take efTect only on from and after tho day of until wliich said la.st mentioned day tiie Haid Discharge is liereliy suspended. Or, I do order that tho Discharge of the said Disolvcnt contained in the said Consent Discharge (or Deed of Cf)mpo8ition and Discharge), be and the same is hereby confirmed ; nevertheless I hercliy declare such Discharge to be of tlie Second Class under tlie said Act. 'Jlven under my Hand and tho >Seal of tlie (.'ounty Court of the (/'ounty of at in the (Jounty of on tho day of • in the year of our Lord, 18 . Judge of the County Court of the County of • ■ FORM TV. ORDKR OF DTSCTTAIICK, WIIKN (WANTED AFTER FATIIIATTON OF ONE YEAR FROM DATE OF ASS1(;NME.NT OR WRIT OF ATTA(;HMENT (Se(;. 04). Canada. I'rovince of — County of luHolvent Ad. of 1H75. In the County Court of the County of 1 n the matter of A. R, An Insolvent. Upon hearing the application c»f the above-named Insolvent, and uprin read- ing his Petit, iu for a Disi^harge under the Insolvent Act of l87o, and the atiiilavits and 2)ai)ers \\\vA in this matter ; and it appearing that on the day of — in the year of our Lord one thousand eiglit hundred and the said Insidvent duly executed a Deed of Assignment under the said Act {or ,,,. ', (! m 7fi INSOr.VKNT ACT OF lfi7r,. i\i ■u 'lii ji Writ of Attiicliiiiont uixlor tliu h:uiI Act JHHiiud a^'.-iiiiHt tliu h:u<1 IiihoIvi^iiI) ; and it further aitpoariii;^ tliat altlutiigli morc! than ono yuar hon tshipHuil from the datt! of Haid A.sKij,Min)e(:d of ( ^oniprmition aniolvenoy, ami the delicieney of my aHmttH tu meet my liahilitieu. Sworn heforc me at in the ) County of thiH day } of • A.l). 187 . ' A (Jommisuiuner in H, U., &u. FOILM VI. (X)NTKSTATION OK CLAIM NOTICH OF OBJECTION (Snci. 9:i & 'JS). Imiilirul Ad of IH75. In the matter of County of ) TO WIT AND A. IJ., C. D., E. F., An Insolvent, Claimant, ContcHtant. Tin; Haiti Contestant herehy appears and contests tho claim of the Haifl claimant on the eHtate of the Haiil Insolvent, liled on or ahout the day of ,'\.l). 187 , and says that the said ( 'laimaut is not a ('reditorof the .said Insolvent for the anionnt of his said pret'juded claim, nor any jiart thereof, nor entitled (;<» he colloeat'jd on the naid <;statc, or on an}' dividend aheet therefor, heeauMe the Contestant sayH (hj;iiHt, IS7."i, iiinli^r (Im; liiKuIvriit Art of lS7r», for till! ( !ouiity, .liiiliruil l)iHLri(;t or I'llcctonil OJHtricttH Hi;t oppoHite their iiaiiieM rt-Hpcctivtily, vi/: - Koi; I'lii; ritoviN'ci': oi-' oN'rAUio. Ahs|>;iui(). I^^'til|l:lll'l^ Coiiiily lor wlilitli .'i|i|ioiiitnii'iil Ih inailc. 'I'lioiiias r>otliaiii liriiiitforil Itriiiit. ^ln',<>\■^.'^•^',l^\lll\ VVnlkcrtoii Iiruci!. , I'uiil .MfliiiMH Tc'CHWiilcr IJmicu. William M. Smith .... I'aiMJ.y Ihiico. William l'"iiif.;lainl Ottawa i'arlrtuii, iiiciiiilitifj; Ottawa. Kraiicis ( !|rmow Ott.i.wa ( !ail<:toii, iridinliii^ ( Ittawa. DaiiitI S. I'l.iHtwood . . . Ottawa ( 'arlctoii, including Ottawa. Sylv(Mt«!r K. MathoWH. . MorriHlmi'j^ hiiiidaH. VViliiam 'i'liom|iHon .... I'owinanvillu .... hiirliam. Sf.tli S. Smith I'ort IIo|h! I>iirliam. (Jolin .VInnro St. Tliomas Ill^iii. ' William .\lc('r(!a WindHor Khhdx. CIorncliiiH V. I'lico .... Kin^ntoii FiontcmK;, iiichnling KiiigHton, Doii.ild .Mcliollan WilliainHtown .... (ilingarry. (iiiorgi! I'rici! Owcii Sound *'i'«'y. Thomas Tracuiy I'n.Hc.ott Orenvillo. Klcaznr 11. VVhitmar«h.. MtMrii kvilhs (ircnvillo. ('ayuga iialdimand. Milton Ilalton. litdlcvilii! llaHtingH. Ik'llcvilli) liaHtingH. Ilohcrt (iilthouH (lodcriith Huron. Samuel !•;. M(;< "augluiy . . Scai'orth Huron. Hugh K. (-umming .... (Mwitham Kent. Jlarry IJlacU ( Chatham Kent. William T. KeayH Sarnia liamhton. .fanuts Klintoft, jiin Sarnia Lamhton. .lohn A. (icnimell Almonte lianark. A. W. Il(dl ( larleton I'laeo .... liamirk. .lohn N. Ahhott IWdckville l^eedH. Norton MarHhall iJroekvillo lieeds. William K. Hall Napance liemiox and Addington. Edward A. Deroehc. . . . .Nai»anee Lennox and Athlington. .lame.s McKdward St. ('atharines .... liineoln. Joint Oflicial ^ R. H.eid.. London AsHignee. ( H. >Je!len London Tlioniiw ("hurcher liondon MifldleHex, including Lcmihm. Thomas M. liowerman. . liracehridgo MuHkoka, (Jounty or DiHtriet. " " .. " I'arrySound&NipiBsingDiHtricta. AuguHtinc J. Donly .... Simcoo Norfolk. A(MiHon VarH (lol))orno North uml»erland. Edmund A. MuNauhtau Cubuurg Northuiuburiuud. V. ;i' IN riy Jiiiii 'M McWliirtcr Kilwiinl 'I". Ilii;,'yiir. M.'icDoii.ilil AUrrd .1, l''(ii licr .IllllllH 15(11 N('Ik(iii l)iiiiiiiti^ JoS(|ili |!u;.;ci'H 'riiom.iH I). M('('..riU.y.. Alcxiimlcr I'icMiiirily , . , . 'ni*:(i|>liilwM i;,. Karl .... D.uiicl M. Mi;li,t,yro. . . . Donald M<;|)(.ii«;li ( Jciii'j^n Kc.injil Alixaridor .VIcCJrugor .. Miiiiim Kl»y Klcl.cln r Swayzo •lo.scpli Sliaw .loliii Siiiilli Altxaiid(!r DavidMon. . . . llalpli li. (iiiiiii Alexander I. iMcKrnzio. l''r(Ml(ri(k I). Siitcr .... William 'I'. Mason .... .Ifttni H li. ISoiiHload .... .lohii K(!rr William K. Muiiro .... WK UK ONTAIMO. (C'imtiniinl.) Ul'h|iI<.>iiini6ru. William Walker (Jliir.heo " " '• Odiloii Koy Qiieheo Ja(M(ii(!H Auj>er QiUilxie liieliard H. Wiirtelo , . . Quehee Victor Oladii St. Fran«,'()iH dii liiu; .fiidicjial DiHtriet, llielielieii. A. KvariHt(; BraHHanl . . Sorel Indicia! I)intiiet, Iticlielieii. Klzear ( !Ati' Ste. Luce Iiidieial District, IlimoiiHUi. William lirooke Kielimond lOleetoral DiHtriet, Rieliinond and VV(dfe. Klie Aiij^'er Murray liay .Iiidieial District, Sa^'ueiiay, CharlcHj. Ij. Haeoii.... Shcirlirooke Judicial DiHtriet, St. KraiiciH, (!X. ceptinj^ tlientoiit <"ompt<(iJ, StiiiiHtead, Kielimond (t V'olfe. Gay H. Loomin Slierbrooki; " " " St. Ilya(!intlui ludiei.al DiHtriet, St. Ilyju: ,e. 'rerrehonne Judicial District, 'rerrelioni . Yama<,liielie Judi(!ial DiHtriet, Tlinto IJivern. St. < 'I'lestiii Judici.al District, Tlmu! IliverH. Three KiverH .... Judicial DiHtriet, Three Itivera. <( «4 If <( II II (1 II 14 Michel K. liitrnier. , (i<';d('!()n M. I'nWoHt Charl(;H D. M.'d.ert Adolplie O. Ifoiile Joan H. O. Dumoiit FOR THE PROVINOK OK NOVA Sf;OTlA. AHfignco. Ui!siil(;ii(;(), Cnuiity for v^iich iipiioiiitment ii made. Ricliard .7. IJniacko .... Annapolis Annai)oliH. Arcliilmld Mc, U<'nI|iiHiiiitii)iitit is made. (io.nrnc Oiillidim llo|)(iwii(;t() Kent. Joliii Iv 15. McCy'rcady . . (!artlw(;ll Kinj^'M. Joiiii I'iliiH N<'W(;!iHtl(! N:^' '-y /^ '/ v^« RULES AND ORDERS, PItOVIN'CE OF QUEIJEC. Jitade ly the Judges of the Superior Court for Lower Canada, under and hy virtue of the Statute 27 and 28 Vict.^ cap. 17, intituled: "^n Act respecting Insolvency;^* and continued in force by 38 Viet., cap. 16, $ec. 124. I 1. There shall 1)0 assigned in the Court Houao of each Jmlicial District at which the sittings of the Superior Court arc hekl, two rf>oins for matters in Insolvency, one in which the sittings of the Judge shall be held, and the other f(»r the oiiice of the Clerk in Insolvency. 2. All judicial proceedings in Insolvency shall be had and conducted in the said Court KtMnn alone, and not elsewliere ; and the sittings of the Judge shall commenoe at 11 a.m., or at such hour as the Judges or Judge in each District shall hereafter apiwint, and sliall continue till the business of the day aliall be comi)leted, or imtil the Judge shall aer of any di'Herii»tion shall he reeeiveil or filed in any caac, unless the same shall l»e ]iro|terly numhered and intituled in the case or proceeding to which it may refer or l«elong ; and he also endorsed with the general ilcscrip- tion thereof, and with the name of the party or his Attorney (ul litt'in tiling the same. 8. In all appealahle matter in dispute, the pretensions of the parties shall be set forth in writing, in a clear, precise and intelligihle manner, and the notes of the verbal evitlence taken before the Assignee shall be plainly written, shall Ik! signed by the witness, if he can write and sign his nuiuo, and shall be certified by the Assignee as having l>een sworn before him. Antl in the event of an api)eal, the Assignee shall make and certify a transcript from his Uegist<3r, of the pn)ceeefore a Judge or Court shall be entered daily, in order of date, in a docket of proceedings, to be ke))t 1)y the Clerk for eaeli case ; and shall from time to time, and until the close of tlio estate, be fairly transcril)cd in Registers suitable therefor, which shall })e kept and preserved by the I'ro- thonotary, in the same manner as the Registers of proceedings of the .Superior Cour:. 10. No Demand, Petitiim or Application of Avhich notice is recpiired to l>e given, either by the provisions of the 8ai)y the Judge or Court whenever the riglits of parties interested may seem to retjuirc it for the purposes of justice. 12. Whenever a |)articul.ar number of days is prescribed for the doing of an act in Insolvency, the lirst and last day shall not bo computed, nor any frac- tions of a «Lay 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 afHda\-its of indebtedness made by a creditor or by the clerk or agent of a cretlitor, shall set forth the particulars and nature of tlie debt, with the same degree of certainty and precision as is required in alliflavits to hold to ]>ail in ci\-il process in the Courts of Lower Canada. 14. All Writs of Attachment issued under the saie an index, and to which access for examination or extract shall be had gratis, at aiLl times during office hours. M 184 INSOLVENT ACT OF 1876. 15. Every such Writ shall descriltc the parties thereto, in the same manner as they are floscrihed in tlie said afHilivits of (lel)t ; and the Declaration acoom- paiiyiii;^ the said Writ shall he similar in it.'i form to the Declarations reiiuircd to be tiled in ordinary suits in the Superior Court. 16. No such Writ shall issue until after the affiilavit of debt, uinm which the Writ is founded, shall have been duly filed in the Clerk's otlico. 17. All 8cr\'ice8 of Writs, Rules, Notices, Warrants and proceedings in Lower Canada, except otherwise .specially prescribed by the said Act, may 1)0 made by a HaililF of the Superior or Circuit Court, whose certilicates of service shall be in the form recpiired f(»r service of process in the said Courts ; or by any literate person, who shall certify his service l)y his affidavit ; and in either case the manner, place and time of such service shall be de3cril)ed in words, and also the distance from the jdace of service to the place of proeeeiling. 18. All services of Writs, Rules, Notices, Waiyants or otlier proceedings, shall Im; made between the hours of 8 a.m. and 7 i).m., unless otherwise directed by a Judge or Court upon good cause shown. 19. Writs of Attachment need nf)t be called in open Court, but shall be returned on the return day into the Clerk's office, and shall be there tiled for proceedings thereon, as may be advised or directuiL 20. Every day, except Sundays and Holidays, shall be a juridical day for the return of said Writs, and for judicial and Court pcoceedings. 21. The SheriflF to whom the Writ of Attachment shall be directed, shall not be requireil to make any tletailed Inventory or prochx iivrhal of the efTects or articles by him attached under such Writ ; but a full and corajdetc Inven- tory of the Insolvent's estate, so attached by the Slieriflf, shall be made by the Assignee or person who shall be ])laced in ijossession thereof as guardian under such Writ, by sftrtinc and numbering the Jiooks of account, pai)ers, documents and vouchers of the estate, and entering the same, with the other assets and effects thereof, in detail, in a 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 RULES AND ORDERS. 185 in such cases, for examination or extract therefrom, grntiM. Ami in like manner tlie mimiten of meetings of Creilitoia, and the regi»terrt of iiroeeedings, t<»gether vith the claims made and the doeumenta in possession of tin; Asttigneo, shall also ho iccessihlc to Creditor and «»thers in interest in the case, at con- venient hours, «laily, to be appointed hy the said Assignee. 25. Tiie Assignee sLill, from time to time, iimler onler of date, and within twenty-four hours after th" proceedings hay tlie said Act, lile of record in the case an account of the est.atc, showing the balance thereof in his haiuls, or under his coufol, made up to the last day of the preceding month. And no money so deposited sliall be with- drawn without a special order of the Court, entered in the dockv t of proceed- ings in the case, or upon a dividend sheet prepared and notilied, .^8 re(iuired by the said Act, or unless otherwise ordered by the Creditors, uuler the powers coiiferrcd upon them by the said Act. TARIFF OF FEES IN INSOLVENCY, FOR THE PROVINCE OF QUEBEC. IN PR0CEEDING8 FOU COMPULSOKY LIQUIDATION. On behalf of the PUtlntiffs, IF NOT CONTESTED : To tlio Prothonotary for writ of attachment $1 80 To tlie Prothonotary for copy of writ .30 Shoriir for warrant 2 r)0 Copies of warrant, caeh 50 All proceedings by tlic Slieriff or liis agent or messenger in the seizure and return, exclusive of mileage 2 (K) (lUardian, per «lay 1 00 (iuardian, making up inventory and statements, to be subject to tax- ation by the Judge. To the Prothonotary on return of writ 5 00 ( trier's fee on return . . 80 To the Prothonotary for copy of order for meeting « 50 To the Prothonotary for meeting 1 00 To the Prothonotary for each coi)y of judgment appointing official assignee 50 Attorney's fee fency proceedingt in Ontario, promulgated hy the JuJge$ of the Superior Courts of Common Luw, and of the Court of Chancery^ under 27 and 28 Victoria, e. 17; and continued in force by 38 Vic- toria, c. 10, tec. 124. TAUIFF. Feca to solicitor or attorney, an Itftim'n party ami party, and alto at fielrceen Holkitor and client : — Instructions for volunt.'ny assignment by debtor, or for compulsory liquidation, or for petition, where the statute expressly re(iuires a petition, or for lirief, where matter is re<[uired to be argued by couusel, or in authorized by the judge to be argued by counsel, or for deeds, declarations, or proceedings on appeal $2 00 Drawing and engrossing jKititions, deeds, affidavits, notices, advertise- ments, declarations, and all other necessary documents or papers when not otherwise expressly provided for, per folio of 10() words or under 20 Making other coj)ies when reijuired 10 When more than fre copies are required of any notice or other paper, five only to be charged for, unless the notice or paper is printed, and in that case 2>rinter'8 ])ill tu be allowed in lieu of copies drawing Bclicdule, list, or notice of liabilities, jMir folio, when the number of creditors therein does not exceetl twenty 20 When the number of creditf)rs therein exceeds twenty, then for every folio of 100 words over twenty 10 Every common affidavit of service of papers, including attendance .... 50 Every common attendance 50 Every special attendance on judge 2 00 For every hour after the first 1 00 To be increased by tlie judge in his discretion. Every special attendance at meetings of creditors, or before assignee, acting as arbitrator 1 00 Fee on writ of attachment against estate and effects of insolvent, in- cluding attendance 2 00 Fees on rule of Court or order of judge 1 00 Fee on sub. ad test., including attendances 1 00 190 INSOLVENT ACT OF 1876. Fee on Hub. duces tocum, including nttemlanco 1 -/> Ami, if al>«)Vo 4 foliim, tliuu for uauh npo8ite party 5(1 Taxation of costs 50 No allowance to be made for unnecessary documents or pai)ers, or for uii- necessary matter in necessary documents or papers, or for unnecessary length of j)roceeding8 of any kind. In case of any proceeilings not provided for by this taritr, the charged to be the same, as for like proceedings in the tarifTa uf the Superior Courts. COUNSEL Fee on arguments, examinations, and advising proceedings, to be allowed and fixed by the judge as shall appear to him proper under the circumstances of the case. FEE FUND. Every warrant issued against estate and effects of insolvent debtors . . $1 00 Every other warrant or writ 30 Every summary rule, order or fiat : 30 Every meeting of creditors before judge 50 If more than an hour 1 W If more than one on same day, $2, to be apportioned amongst all. Every affidavit administered before judge 20 Every certificate of proceedings by judge of County Court for transmis* sion to a Superior Court or a judge thereof 50 Every bankrupt's certificate 1 00 Every taxation of costs 15 FEES TO CLERK. Every writ, or rule, or order 60 Filing every affidavit or proceeding 10 Swearing affidavit 20 ONTARIO TAItlFF. 101 Copies of all proceeilingn of which copy hoHpokt'ii or rc«juirc«l, per folio of 100 wonU 10 Every curtilicato 30 Taxing coete 80 Taxing coHts nml giving allocattir 65 For every sitting under connniH-sion, per ilny I 00 If more thnn one on same day, 1^2, to lie iqtportioneil aniougst all. Feu for keeping record of prooecdingH in eacii ease I IK) For any liat of dehtorH proved jit lii-«t meeting, (if made) .'iO For any list of debtors at Bccond meeting Ao Any search '20 A general search relating to one bankruptcy, or the bankruptcy of one person or lirm flO SHERIFF. Same as ou corresponding proceedings in Superior Courts. WITNESSES. Same as in Superior Courts. (See note to sec. 113, for witness' fees applica* able in insolvency proceedings.) !t ■ t New BRUNSWICK TARIFF. In pur^iinncu of the power given by "The luHolvcnt Act of 1809," the fol- lowing Tivl)l(M»f Fees liiiil Chiirj^oH ht\» been Hxeil miil Hettled liy the Chief JuHtice niwl •liioint- ment of assignee, for each claim 50 Assignee's attorney examining ejvch claim recpiired by assignee to be examined 50 Preparing for publication advertisements required by Act, including copies and attendance in relation thereto 1 00 Preparing, engrossing and procuring execution of bonds or other securities 2 00 Mileage actually and necessarily travelled, if beyond the county where attorney resides, per mile 10 Bill of costs, engrossing, including cojty for taxation, per folio 20 Copy for the opposite party, or for attending taxation of costs 50 Copy of taxed costs to be filed with the Clerk 60 No allowance made for unnecessary documents or papers, or unnecessary prolixity in the same. For all other necessary proceedings not pro- vided for in this scale of fees, the charges to be the some as for like proceedings in the Supreme Court. NKW nnuNswirK tauiff. 19S To Cuaimfl. Koofl oil argutnont aixl I'xaiiiiiiiitioii luifnru Judge t«> )»u nllowcil ntnl lixcil by tliu •liiilgt) AM Hliall a|)|>Lar when |irii|H'r uiulcr tliu circuuiHtuiicut of the civBo, not uxcvuiliiig twenty iloUttni. To thf Vlerk of thf Counly Court. Mignin){ every writ, riilo or onlor 50 Filing mill entering ovury «lue«l of asnignnicnt, rcconl of nppointniont or att.-u:iinient 1 (H) Kiling every other papor 10 Heading every paper in Court I Swearing aflidavit or atlininiutering oath 'JO ('ol»y of all proeeedingH furniHhed, per foli<» of l(X> word« 10 (!ertilicato under Seal of the CNmrt (>0 Kvery other neceHsary ccrtiiicato 30 Kvcry meeting of creditors held Itefore the ( 'lerk 1 00 K(»r keeping record of proceedings in each cjiae I 00 Kvery nearch 20 (tunoral Hearch in one day relating to one eatto or iirm r>(> For taking niinutcH of evidence liefore .Indgt), when replicablc, 33. Act of 187o — T'> whom applicable, 33-7. To whom not applicable, o8, 39, 40. Act of bankruptcy, what, 40. Within what time after, proceedings for compulsory liquidation must commence, 40. Acts respecting larceny, 152. Acts repealed, 1(50. Additional security may be demanded from assignee by creditors, OS. Administrator — Insolvent not discharged from liability as, by discharge, 96. Advertisement, real estate of insolvent, sale of, 10l2. (See Notice.) lieal estate of, what it must contain, 102. Affidavits — Before whom to be sworn, 124. For writ of attachment, form of, 103. Proving claim, form of, 171. Agent — Assignee to be deemed, 152. Bankruptcy of, right of principal, 124. Allowance to insolvent, 110. Dividend sheet, tu be inserted in, 1 16. Subject to contestation, 110. Ajnendnients under Act, 129. Amount for which creditors holding security shall rank, 110. Answer to demand to assign, how served, 51. Apothecaries, Act applies to, 34. Appeal — Assignee, neglect of to file papers on day of presenting, effect of, 138. Costs of, 1.39. E\ndence etc., need not be set out in petition of, 139. From judge, in provinces except Quebec. " in Quebec, 137. Notice of to be given, 1.39. Objections, mode of raising, in proceedings in, 138. Petition of. need not be signed by appellant, 138. Procedure if appellant does not proceed with, 138. SoUcitors of appellant cannot be sureties in, 138. Time to take objection to sufficiency of suretieu in, 139. To whom to be addressed, 138. * Within what time to be prosecuted, 138. H !tt 11)0 INSOLVENT ACT OF 1875, hi Apjtellant, not prosecuting ajipeal. liaMc for costs, 13S. Application Assignee, for recovery of effects rotaiuod hy insolvent, 155. Insolvent, for (liscliarg<', JM). Juilgc, to eontirni discliarge, 83. Appointment —Assignees, G!).. Inspectors, 72. < Mlicial assignees, 08. Arl)itration on contingent claims, 109. Arrears - Salary. (See Salary.) Kent. (See Rent.) Arrest. (See Imprisonment.) Malicious, damage f(»r, notafTccted by discharge, 96. I'nder judgjnent suninions, 9"). Assault, (lainages for, . Penalty incurred hy, for non-presenting petition for discharge, b6. " on, for uon-«listrihution of interest, 79. Petition of, for discharge, 80. " to remove, what necessary to he shown in, 71. Poverty, mere, of, not suliicieut to cause removal, 71. Powers of insolvent vested in, 74. Power of, over solvent partners, 1 IC. Punishment of for false entry in pass-hook, 80. Purcha.-^e, wishing to, property of insolvent, must petition to be dis- charged, 7U. Register to l>e kept I'y, 77. Receiver-(Jeneral, to pay over balance to, 78. Remuneration of, in winding up company. If)'.). Reconl of appointment of, evidence of regularity of prucccdiiigs, l.j.'j. Suit against ins(dvent, may defend. 74. Transfer to creditors, form, 107. Assignment — Co-partnership vests in assignee separate estate of insolvents, 61. Frauilulent, English definition of, 45. " principles on which act of bankruptcy, iustouces, 48. " what constitutes a, 146. Form of, 165. * How may l»e set aside, 57. Ma make, 132. Tovenant not t(( assign not affected by assignment in insolvency, 100. Hut by viihintary assignment, 1(H). Breach of, for titl'), not provable, 110. ('ow-keepers, not in all cases within Act, 3.'). Credit— I'ur chase of goods on, l»y persons unable to pay, a fraud, 150. May be allowed on sale of real estate, 104. Terms of, to be apjjroveil by creditors, 104. Creditors — Affidavit of, necessary to procure assignment, '49. Assent of, to composition deed shouhl be absolute, 92. Aflsignee, may appoint, who is not creditor nor ofhcial assignee, 70. Appointment of, l)y, (59. Not to act as agent of, unless authorized, 72. Assignment, when may demand, 49. ' ' demanding, must elect domicile, 49. Attachment, writ of, what may obtain, 53. Claim of, not to be divided for voting, 70. " not tiled, how dealt with, 118. " contingent, on, 109. Cannot prove on contract void by statute, 124. Composition not affected by, 41. Composition and discharge, may approve of or not, 82. Contestation of claims, may order, 1 19. Contracts made with intent to defraud, void, 141. Debt, i)roving, in ignorance as to lien, rule as to, 113. Executor of, declining to prove debt, procedure, 124. First meeting of, 65. Insolvent to attend meetings of, 66. Insolvent's estate, may object to mode of disposal of, 73. Insolventj may examine as to his expectation of paying debts, 151. Meaning of term generally, as to voting, composition, &c., 41. Mortgagee, how he may proceed, 113. !Non-assenting, how far composition against, binding, 92. " effect of composition and discharge on, 91. Notice of meetings to be sent to, 65. Of insolvent retain their lien on goods in hands of assignee, 62. Oath of, as to non-payment of claim, 115. Partner, individual, can vote for assignee for partnership estate, 70. Partnership and individual partner, rights of, 113. Proceedings of, at first meeting of, 123. Proportion of, necessary to grant allowance to insolvent, 116. Proceedings in the filing of a secured claim of, 115. Proceedings, special, may take at their own risk, 99. Rank and privilege of, 1 10. Rank of, if conditions in deed of composition and discharge be not fulfilled, 89 Representative of, must have letter of attorney, 70. Rights of, to arrest insolvent, 136. Rights of, who has seized insolvent's goods under execution, 111. Security, holding, proviso as to, 1 10. 2^>ecurity, holding, right of proving, on estate, 113. ''V, 202 INSOLVRNT ACT OF 18T6, ^, i.: 1 I it", jiv! I'll Creditors — (Continued.) Ht'oiirity, hoUliii^, rule as to, 113. Siilu (if (lcl)tH, may siiiiction, 9S. Surrt'iitl'M- of HC'curity Ity, effect of, 125. Sclietlule of, form of, !(»(). Wlioii (lobtH not ad'ootud hy «liHcharge, muy accept dividoada, 96 Wlit'ii pa/muiit to, not void o- frauilulcnt, 148. Taking conHitlcration for jjranting diHcharge, 154. What, HJiall vote at meetings, 70. Voluntary payment to, wlieii fraudulent, 149. ('urator. (See Trustee). DAMAUE8 — Unliquidated, claim againat insolvent for, 90. *' not provable in insolvency, 107. When they become debt, 107. Death of assignee, now estate shall vest, 80. Death of insolvent, etl'ect of, I '-'!). Debtor —Allowing exooution to be unsatisfied, 48. Act of bankruptcy of, 43. " by agent, must be actually committed, 43. " main ingredient of, ditlerence between English and Canadian law, 43. Assignment, making, otherwise than under Act, 47. Absconding, 43. Acknowletlging insolvency, 43. Ceasing tc: meet liabilities generally, meaning of, 50. Conniving at seizure under execution, 46. Concealment, 43. Decree, disobeying, 47. Default, making, to appear, 47. Estate of, when subject to liquidation, 52. Fraudulently assigning, 44. Going al)road for legitimate purposes, 44. Imprisonment of, 47. Insolvent estate, to, defence of, against assignee, 64. Judgment, allowing to go by default, not act of bankruptcy, 47. Meaning of, 41. Property of, placed in his hand for specific p, I'iose, does not pass to assignee, 59. Property of, excepted from seizure by statute, 59. Property of, held in trust for another, does not vest in official assignee, 59. Protracting stay abroad, 44. Rule, disobeying, 47. Secreting effects, 44. Time for commencing proceedings to enforce assignment of, 52. When insolvent, 42. Debts — Antecedent, discharge of, consideration for promise to pay, 95. Assignee to sue for, due insolvent, 74. Contingent, not provable, 109. English discharge, bar to, 129. Foreign, discharge no bar to, 128. General rule as to what, provable in bankruptcy, 107. How court forms judgment of ability of insolvent to pay, 151. Rights of purchasers of, due insolvent, 99. , Sale of, due insolvent, 98. Transfer of certain, due by insolvent, void, 149. What, not provable, 107. What necessary in, in order to set-oflF, 126. What, provable, 107. OENERAr. INDEX. 203 l)ofAult, proof of, in not olwying procoBs, 127. Delay iiiny ))u gnmtol in ciiHuH of incorporated <'om])anics, IfiS. Denwuul of aMHi^'iiniont Itj' oruditori*, form of, lO.S. liiinit'itiiin of time for proL>i-uy «lc-l)tor, 51. Wlicn cannot )>c made, 51. Deposit of money in hank hy A.s8i;.(nee, 70. I'»y way licut.iun for confirmation of, form of, 1C8. Amplication for eontirmation of, may l)e opposed, 83. Cnaraeter <»f, nuiy he nuMlilied, 80. < 'onlirmation of, 83. Damages recovered against insolvent for hrcach of promise, no ground for refuxal (»f, 87. Document.><, what, eviar to action in Canada, 12!). Foreign, not to har dehts contracted in Canada, 128. Fraud on jiart of inscdvcnt disentitles him to confirmation of, 85. (.rounds that should weigh with judge ill granting, 1)8. (Jro\uid.s of o]>po8ition to, 1)7. llypotiiee, not atleetefl hy, }MJ. If not ohtainetl from creditors, procedure, 90. Insolvent, on application for order for, may read his examination, 8<». Judgment summons, docs not prevent dehtor heing committed upon, 1)5. May he refused if insolvent's estate pays less than thirty-three cent? diviilend, 88. May he granted, suhject to any condition, 87. Mortgage not affected hy, 96. Must he continncil hy court, 98. Neglect of insolvent to keep hooks may disentitle him to, 84. Notice of application for conlirmation of, form of, 168. Notice of applicati(m for, form of, 168. Ohtained hy fniud, void, 98. Penalty for not presenting petition for, by assignee, 80. Petition for, of assignee, 80. Proviso in certain provinces as to, 85. - Secondary liabilities not affected by, 96. Seduction, to get rid of damages for, cannot be refused, 87. What liabilities not affected by, 96. When confirmed, deemed valid, 86. When insolvent not entitled to confirmation of, 85. Discovery, insolvent not making full, guilty of misdemeanor, 153. Disobedience of process, how punishable, 127. Disposal— Court to determine objections to, 74. Creditors may object to, 73. Creditors may order, 73. Estate of insolvent. (See Sale. ) Inspectors may order, 73. Of goods not paid for, a misdemeanor, 153. Disposition of property by debtor with intent to defraud creditora, 44. Dispute as to amount of any creditor's claim on dividend, 119. Disqualification of judge, 131. Distribution of interest on special deposit, 79. Of money realized from sale of real estate, 104. Subject to secured claim, 105. », Ml 204 V<80LVENT ACT OP 1876, F)iHtrict, mciiiin^ of, 40. UividciKl Ammj^iiou, to l)o madu liy, I0<> CliiiiiiH on, ohjcctutl to, how (lutoriiiined, 119. Ni>ii tlel>t proved by prinuipul paid iu full, iU8. lIiii'IiiinR'il, how deult willi, I'JI. Docunu'iit«, olliciid iiisHigiiee to Heize and attiich, 5. Doniieile, for Hervieu of papertt, to he choseu by creditors, 51. Drover, II tiiuler, 'M. DutieH of u.sMignee. (See AHHigiiee). Double proof, doctrine of, when upiilieuble, 116. Kmpi,oykks to have special lien for arrears of wages, 117. FjudorHing, rashnens of iiisolviiit in, 87. Kidargenieiit of time for making assignment, 51. Ksi-ape of debtor from custody of sheritl', 1.S4. Estate and ellVcts of insolvent —Writs (»f attachment may issue against, 5.3, What claims shall rank on, 100. Sale of, in Quebec, 102. Vested in oflieial assignee on assignment, 58. Evasion by del)tor, on examination, a gooil ground for opposing discharge, 85. Evidence to be adiUiced on hearing petition, (.1. Of purchase of debts, 01). Of failure of witnesses to attend, 127. Certain (h)cunient3 to be, 155. Examination. (8ee Insolvent.) Debtor seeking release from prison, 134. Insolvent, 0(). 'J'o be signed by him, witnessed by assignee, 66. Of other persons, 07. Refusal by, to appear, 67. Execution — Articles not seizable under, 62. Costs of, allowed to seizing creditor, 48. Effect of seizure on, after assignee appointed, 110. ' I'^lfect of allowing to remain unsatisfied, 48. When property of insolvent under, at assignment, procedure, 120. Executor — Creditor declining to prove ilebt, procedure, 124. Insolvent not dischargeit from liability as, by discharge, 96. Testator, property in hands of, does not pass to assignee, 60. Trader, when not trader, 37. When trader, 40. f When not trader, 40. Exemptions, what articlee are exempt from seizure, 62. . ^ Expectations, what court deems reasonable to pay, 151. Expenses allowed to witnesses, 128. Extravagance in expenditure of insol vent may cause suspension of discharge, 86. Fa-CTOR — Bankruptcy of, how goods in hand of, for sale, affected by, 59, Facts in pleading, how set forth, 128. Failure by official assignee to pay over moneys, 69. To appoint an assignee, effect of, 69. False bidding, order of re-sale may be obtained for, 104. Falsifying books of account by insolvent, misdemeanor, 154. Farm, lessee of, not trader, 36. <; <; (iKNKItAL INDKX. Furmer— ^\^1^n not trinliT, 38. , Wlu'ii traiUr, .'W. Tr:i.l.T, :»7. Not trailer, 37. Koch, tarifl'of, to Ite ftrniiij,'iy aHMiguvu, 80. To Ik! aiitlitcil, S((. KiHhurniaii, when not trailer, .37. Forcil)l»! entry, wlirii aMHigiuH' allowed to make, rtO. FrofoloHuro suit ai,'.iiii«t asHij^iiccH, iiisolvi'iit not uuccBsary party, 75. Foreign insolveney laws, dit'eliarj^'e undi r, J'JH. ** eretlitorn liavi; to he notilied of incetinj,' nf creditora, 122. Forfeiture l»y assignfe for m-electiiig to account for interest, 79. Hy a creditor receiving a preference, 154. How reeoveralilc, l.")l. ForilW to he used under ,\ct, 128. Assigneu'fl notice of appointment, 1(58. Assigninent, ICia. AtlJdavit verifying fltatenient of li:vl>ilities and ntatementsof asDcts, 176. " on application for conlinnation of diBcharge, lOH. " for attadiintnt, writ of, 1G,'1. ** ]»roving claim, 171. Hill of Hale of debt l»y assignee, l(»n. IJond of a surety to secure composition, 173. Contt station of claim, notice of oltjectiou, 177. Deed of eomi>osition and dischaigc, 172. " of real estate from assignee, 170. Demand to assign, 1(13. Notice of issue (»f attachment, K)'). of aiiplication for conlirmation of discharge, ICS. of application for discharge, 1(5!). of ihvidend, 171. Order conlirming crovo, against, insolvent, on creditors, 151. Presumption of, 143. Purchase of goods by persons knowing themselves unable to pay, a, 150. Fraudulent preferences, 139. (See Preference.) rf IiiHolvcnt may '•<>iitimio proc-cutlingM, IU7. H..\v f;ir liiil.K', l-itJ. lIorHcH, oci-iiHiiiiiiil |iiiri-liiiMc iui Hotflktt!|»frH. (SrH. ) KuhIkukI, txiiininiitiiin i (t7. Hyptitheoary ('rnlitiiiH nMiHiMit i>f, rtHHiircil to Bhorton time of ft(lver> tiKiiix, lO'J. CruilitiiiH uiiiy roi|iiiru luilu of pro[>urty Hiihjout to claim, 10<'i. Ilypothvc. (S«'«' Moitj^a;.'!'. ) Nol ntl't'ctud l»y discliarj^i" of itiHolvont, 05. Spi; ial, on real tstiito ni.iy l»o ri'nirvcil l»y ilcoil of sale, 103. Sail! may l»u niailu Hultjoct to, 104. I'ertilicato of, regiHtrar aa to, 104. Ili.koai. trailer may lio insolvent, 38. Dultt no foundation for duniaml to anfti^n, HO. InuuovalileH Sale of, in t^iielK-e, ahj. " of l.S()!» repeiiled. ICO. '• of 1875 "When it comes iu force, 159. Applies to all Provinces, Mil. Insolvent — Action may maintain relating to, after acquired property, GO. " *' " on contract made by liim, (JO. Adjournment of examination of, nine die, sometimes same effect a refusal of discharge, 87. AlHdavit of, nacessary on application for confirmation of d'"* charge, 84. Agent, rights of principal, 124. , • Assets, reputed proi>erty of, pass to assignee, 61. Allowance to, 116. Assignee of, does not acquire priority over prior vendee, 65u Assignee to sue for debts due, 74. Assignee may defend suits against, 74. ■ Assignment of, does not displace solicitor's lien, 61. Balance of estate to be paid to, 121. Bequest to, passes to assignee, 60. QENEUAL INDKX. 207 << Inaolvent— (rrid/Z/K/fr/.) Hill ii^iiiiiNt UHMi^tu'o, not iHMU'HMnry party to, "!!>. Kill Witlinllt KtitVc, CIllllKit lil«<, 7(i. Uiirdvii nf i»roof lioH on, wlu-ii m-fkiii^^ li! to pay hia debta not HoinctiniL'H fraud, l<*)0. Contract of, wIhii voidnldc. 141. Contrat:tn, griitiiitouH, inado l>y, wlum frandulont, 139. Go-piirtncrHliip, wlun partner not entitlud to draw money from, 77. Cnstt in HuitH iigainHt, 117. Creditoru of, retain tlieir lien in property in IuuhIh of nnnignuc, 62. " to att«'nd meeting' of, OG. Dama^^eH, unliiiuidated, -locruing to, guvH tu Msigneti, GO, Duntli of, en'ot't on procci'dings, I'iU. Deotor, when dt'enied, 4'J 47. Diuehargu of, does not atl'eet niort>;ago8 madu by, 00. " of, (d)tained liy frau not pass to assignee, 61. of, of a perishable nature, may be sold by ofHcial assignee, 59. sent to, on eve of insolvency, do not pass to assignee, 01. of, exempt from seizure in Ontario, 02. Quebec, 02. " New Brunswick, 03. " Prince Edward Island, 03. on hire by, do not pass to assignee, 02. Oaol, when judge may discliarge from, l.'W. How court forms judgment of ability of, to pay debts, 157. Husband of, liable to be examined, 07. Imprisoned, may apply to judge for discharge, 134. Imprisonment, right of, to release from, 1.30. *' of, for not handing money received to assignee, 156. " of, may be onlered, 152. Insolvency of, effect of, on suits brought by, 70. Labour, personal, may maintain action for, 00. Letters addressed to, provision as to, 130. Liabilities of, what not aft'ected by, 90. 4( II II II II l< 208 IN30LVKNT ACT OP 1875. \'l i -•■ i'i <« tt U «l t< It << Insolvent — (Confinio J.) ' ' Meaning of, 41. Minutes of examination of, to be kept, 135. Misdenieauor, acta of, to he, 152. claima, false, not (lenouncing, a, IHS. disposing of goods not paid fur, a, 154. falsifying l)»)()ks, a, 154. falsifying schedule a, 153. not making full discovery, a, 153. removing property, a, 153. stating lictitious losses, a, 154. ** witldiolding hooks, &c., a, 153. Ohjeccions to proposed mode of disposal of estate of, 73. Onus of proving frauil against, on creditors, 151. Oi)tion of, to renew lease, passes to assignee, 101. *' to take lease, passes to assignee, 60. Payment by, wlien not fraudulent preference, 14G. " voluntary, by, when void, 145, 140. ** after issue of writ of attachment, recoverable by assignee, 01. " what, to coustitu^^c a fraudulent preference, 148. Partner, owing debts as, 115. Partner of, solvent, riglit of assignee as to, 116. Penalty on creditor of, for taking consideration for granting dia- charge, 154. Penalty imposoi'. on, not affected by discharge, 96. Petition by, to set aside attachment, 63. Postponement of examination of, 1.36. Powers of, vested in assignee, 74. Preference obtained by threats from, not void, 146. Preferential claim of landlord in estate of, 101. Presumption that goods in possession of, are his, may be rebutted by custom of liis trade, 61. Privilege of clerks of, for wages, 117. Property given to, determinable in bankruptcy of, 142. Punishment of, for not handing money received to assignee, 155. Punishment of fraud on the ])art ot, 150. Purchasing goods, knowing himself unable to pay, a fraud, 150. Representatives of, how far liable on death, 1*29. Release from gaol, may be entitled to, though not disjharge, 136. Release of, from gaol, what ground sufficient for, 1.36. Rights of action of, for wrong merely personal, do not pass to as- signee, (50. Right of action to, for trover to goods of insolvent, passes to as- signee, 60. Sale of real estate of, 102. Sale of estate of, 74. Special damage to, for trover, does not pass to assignee, 60. Statement of, what it must show, 63. Statement of his liabilities, to furnish, assets, etc., 63. Subject to further examination, 67. Subsequent arrest of, 1.36. Sueiug after assignment must give security for costs, 75. Suits at law of, can be prosecutad without assignee party, 76. Suits in Chancery by, do not abate, 76. Surety of, entitled to rank in creditor's place, 107. " Sureties of, rights of, 107. Suspension of discharge of, 85, 97. Vt'hat claims shall rank on estate if, 106. GENERAL INDEX. 209 Insolvent — (Conl'mncd. ) When property of, under seizure or assignment, procedure, 120. Wife of, may not prove for arrears of alimony, 124. *' liable to ho examined, 07. Inspectors — Appointment of, 72. Remuneration of, 73. May sanction sale of debts, 98. May direct contestation of claims, 118. Insurance companies, Act not apply to, 33. Insurers of ships or their freights, &c., against perils of sea, within Act, 36. (See Broker.) Intent to defraud creditors — Contract made with, tc defraud, void, 152. Evidence of, 141. Interest on deposits, 79. Rebate of, 108. 'I o appertain to estate, ^ 9. How distributed, 79. When and how accounted for, 79. Of unclaimed dividend to go to (Government, 121. Irregolarity in proceedings prior to appointment of assignee, 70. Joint stock companies, shans of, not within Act, 38. Judge — Appeal from decision of, 137. Application to, for discharge, if not obtained from creditors, 96. Assignee, may grant order to, to inspect company's affairs, 156. Assignee's petition for discharge, may grant or refuse, 80. Assignee, may order to produce pass-book at any time, 80. ' * may commit for contempt, 79. Claims on dividend, may determine, 119. " contested, may decide on, 118. Demand of assignment, may annul, 51. " may enlarge time for contestation of, 51. Discharge of insolvent, may suspend, 88. " obtained from, effect of, 97. " of second class, may grant, 87. Disqualification of, 131. Disqual'fied, when, who to act in place of, 131. Ground of opposition to application for dicharge by, 97. " that should weigh with, in granting discharge, 98. Hearing of objections to disposal of insolvent's estate by, 73. Insolvent, should not impose hard conditions on, 87. In Quebec, no jurisdiction in matters commenced in Ontario, 67. Insolvent, may commit, 63. May release insolvent from jail, 134. Meaning of term, 41. Ministerial acts, not disqualified by, 131. Officers of company, may commit for contempt of court, 157. Petition by insolvent, may hear, to set aside writ of attachment, 64. Power of, on application, 97. " in application for discharge, 86. % *' if composition contested, 93. " in relation to companies, 157. , . _ Proceedings on application to, 97. Shall include deputy and junior, 41. When absent, in Quebec, who to preside, 131. Judgment suomions, discharge does not prevent debtor being committed upon, 95. Judgment debt, creditor proving for, consideration may be required, 124w Judgment against insolvent, effect of, 112. 14 210 INSOLVENT ACT OP 1875. Wi ll ■ii:' ; 111. Turiadiction of court and judge aa to assignee, G9. Assignee to be suliject to suuimary, of court, 133. Jury fund in Quebec, 155. Keepers of cofTec liouses within Act, 35. Hotels within Act, 35. Inns within Act, 35. Lodging-houses, when within Act, 35. '* when not within Act, 35, 36. Saloons not within Knglish Act, 30. Taverns within Act, 35. Knowledge necessary to constitute fraud of a partner of, 141. Fraudulent transaction of firm, 150. Laborer not a trader, 34. Labour, personal, after writ of attachment, insolvent may sue for compcnsa' tion for, 60. Land, interest in, not within Act, 38. LantUord, preferential claim of, 101. Laudlonrs right to distrain not taken away, 133. Larceny, Act respecting, 152. Lease— Assignment voluntary of, by insolvent, breach of covenant not to assign, 100. Agreement for, not annulled by bankruptcy of intended lessor, 100. Covenant not to assign, not affected by assignment in insolvency, 100. Damage for termination of, how reckoned, 101. Insolvent's interest in agreement for, passes to assignee, 100. Lessor claiming damages for termination of, 101. Option of, to renew, passes to assignee, 101. Sale of, held by insolvent, 100. Option of insolvent to take, passes to assignee, 60. Lessor claiming damages, 101. How damages to be estimated, 101. To s^jecify amount under oath, 101. To rank upon estate as ordinary creditor, 101. Letters to Insolvent, jjrovision as to, 130. Letting for hire ccrastitutes trader, 34. Levy under execution, 1 10. Liabilities from which insolvent released by discharge, 94. Secondary, not affected by discharge, 94. Libel — Damages for, not aflfected by discharge, 96. Damages for, do not pass to assignee, 60. Lien of landlord for rent, 101. For costs, 110. Does not arise from seizure, 1 10. Of employee for wages, 110. Lime burners within Act, 36. (See Brickmakers.) Limitation of claim of landlord for rent, 101. List of creditors to be mailed with notice, 66. Of debts to be sold, to be kept by assignee, 98. Lodging-houae keeper. (See Keepers.) Lunatic, when trader, 39. Maintenance of wife and child, debt for, not affected by discharge, 96, ,. Majority of creditors decide questions, 122. Malicious arreat, damages for, not affected by discharge, 96. Demand to assign, effect of, 51. Marriage— Contracts in consideration of, when void, 141. GENERAL INDEX. 211 Marriage — (Contin ued. ) Kcgistration of contracts of, 134. Settleinonts made in consideration of, 143. Married women — When traders, 39. When not traders, 39. Meeting — (.See Cre l'roccei)ly rciiuired iuformatiou, couttrnpt of court, 157. Register to he ke[)t hy assij^fnec, 77. To be open to iiul)lie iuHpoction, 77. What to contain, 77. Where to he deposited, 77. Registrar, ccrtidcate of, as to discharge of hypothecs, 104. Kegistralion Copy of writ of attachment, Cn"). Deed of assignment in Province of Quehec, 65. ** of reconveyance to insolvent, 65. Marriage contract, l.'H. Priority of, 65. Remaining out of Province, act of hankruptcy, 44. Remedies against assignee, how olitained, 13.S. Removal — Assignee, creditors to a^tpoint another, 69. (irounds for, 71. Guilty of misconduct, 70. How removed, 6!). Whose election procured hy fraud, 70. Who owes money to estate, 71. Wiiose interests opposed to creditors, 71. Who not properly elected, 71. Wl»o ai)point3 solicitor connected with insolvent, 71. Poverty of, hy itself, will not warrant, 71. Who pureliases any of insolvent's estate, unless hy permission of court, 71. . Effects, a misdemeanor, 1 5.3. Pro))erty with intent to defraud creditors, an act of hankruptcy, 44. Remuneration — Assignee, 78. Official assignee, when superseded, 79. To he first charge on estate, 79. With respect to incorporated companies, 159. Receiver, affairs of companies, 159. Rent, lien for arrears of, limited, of landlord for, 102. Repeal of Acts, 160. Report — Assignee, as to leasehold property, 100. As to insolvent's conduct, 98. Return of writ of attachment, 54. Representative — Creditor, when allowed to vote, 69. Of insolvent, on death of, how far liable, 129. Re-aale — Real estate, 126. ... How to be proceeded with, 126. , ' ' Resolution — Copy of, appointing assignee, to he fded, 69. Creditors, ojiposing decision of, to he laid before judge, 122. Creditors of incorporated companies to be submitted to judge, 157. Respondent of appeal, when entitled to corts, 138. Responsibility, official assignee, 68. Retention by creditors of property held as security, 112. Debtor of part of his property, 85. ""^'^ Leasehold property hy assignee of estate, 101. Return — Process to he under oath, 127. Writ of attachment, 64. GENERAL INDEX. 217 Return — {Continued.) H(i\v made, M. Writ of execution, 120. Revision. (Sue Apneal.) Rules — I'ractice in Province of Quebec, 132. To be settled by judj^es in other provinces, 132, Present, to be aanie till altered, 132. Salary, clerk's privilege for, 117. Sale— Assignee's coninnsaion on, lOS. Dill'erence between sale and re-sale, 107. Effect of, of real estate, 103. In Queliec, 102. In other jtrovinces, 103. Estate of insolvent, 74. Execution, under, 120. # Fraudulent, when, 140. Form of deed of, 104. Insolvent's debts, 98. Proviso as to, 99. Immovables in Quebec, 105. Insolvent, proviso as to, of entire estate of, 74. Insolvent's goods under execution, effect of. 111. In Quebec, subject to certain charges, 104. Leases held by insolvent, 100. Postponement of, of real estate, 102. Privileged creditors in Quebec may require, of property subject to their claims, 105. Real estate of insolvent, 102. Salesmen — Cattle, when using occupation generally, within Act, occasionally, not, 35. Sheep, " " " " 35. Saloon-keepers. (See Keepers.) Schedule, false, 153. Schoolmaster — When within Act, 36, 37. When not within Act, 37. Secreting effects an act of bankruptcy, 44. Secured claim, proceedings on tiling of, 112. Security — Additional, 69. Collateral, not affected by discharge of debtor, 95. Creditors holding, rule as to, 113. Insolvent suing after assignment must give, for costs, 75. Official assignee, to be given by, 68. " when and by whom available, 68. Recovery of, 68. Surrender of, by creditor, effect of, 125. Realty, rule as .^o, 114. Valuable, ex ten led meaning of, 149. Seduction — Damages for, do not pass to assignee, 60. Discharge to get rid of damages for, cannot be refused, 87. " does not affect damages for, 96. When damage for, provable, 107. ' ~ Seizure after assignment, effect of. 111 Of goods, procuring, an act of bankruptcy, 46. Servants, lien for arrears of wages, 117. Service — Papers, if defendant has no place of residence, or absconds, 55. •• under the Act, 126. " by debtor after demand to assign, how made, 51, Process, 127. Writ of attachment, 153. 218 INSOLVENT ACT OK 1875. IV Sottlcmcnt cm iir^olvpiit ilftcimiin.iMe on baiikniptcy of, 149. Sot-oil Mow .illowiil, I'Jf). Tniiisfur of (k'hta l>(iintnient of. (Sec Hec. 43.) Bill, 108. Statement —A (lairs, to bo given by insolvent, 63. Tr) be attested " 66. Wl)at to show, 03. Assignee, to be lilcd witli his potit.on for discharge, 80. Contents of, 80. Creditors to have free access to, 106. Periodically to be prepared, 100. Exliil)iting of, by deV>t()r, showing hu is unable to lir|uidatu bis debt, act of i)ankruptcy, 43. Stay of proceedings on Ji. fa., 111. Stock — contract to replace, i>rovable in bankruptcy, 107. Stock-broker, manager of company, buying or selling shares for his com- pany, not within Act, 36. Subpoena — How olitainod, 126. Penalty for disobeying, 127. Summary jurisdiction. (See Jurisdiction. ) Petition. (See Petition.) Surety, debtor's estate, having paid debt, entitled to raak against, 108. Securities — (iiven under other Acts, valid, 161. Insolvent, right of, 108. Proper time to take objection to sufficiency of, in appeal, 139. Surrender security by creditor of insolvent, effect of, 124. Surgeon, when not trader, 37. Suspension, discharge of insolvent, when granted, 87. . ' ■ ■> \ Tavern-keeper. (See Keeper.) •. Tax, (Governor may impose, 156. - .. .. Taxation of costs, 129. • • Telegraph companies, Act not to apply to, 33. ' ' ' . Time for commencing proceedings limited, 52. Ileturn of writ, 54. >». • Payment of hypothecs not to be increased by sale, 104. Petition to set aside attachmeutj 64. Title — Conveyed by assignee, 102. • Of Act, 161. ' . Traders — Act to apply to, 33. . ; i . ' . Assignment by, when a fraud, 142. Executor of. (See Executor.) How long liable to bankruptcy laws, 40. Persons using trade of merchandise, &c., in gross or by retail, 36. Persons seeking their living by buying and selling either for them- selves or as agents for others, 36. OENFUAL INDEX. 210 Tradora - IVrHonH — (CimtinHfd.) I!y litiyiii;:^ iui«l lutting for hire, ftc, .'}6. ItV wiirUiiiaimliii) of, ^doiIh, &o., i)U. Wliiit," lial.lc uii.lcr tliis Act, 40. Wliiit, imt Iiiil)lo uniler tliia Act, 4(). >Vli.. iK.t, .'{H. Tripling ( '(uiipftiiU's, Act to apply to, ,'{,'{. ('ojiaitmTKhiprt, Act to upply to, 33. Dealing', to lie, muHt not bu incidental, 37. FiHiuliilciit, 38. In or to a country, 38. 8inf,'Ic instance with intent, 37. To lie witliin Act, what it Hhould cnusiat of, 37- To conntitutc a, what necessary, 37. 'I'nic ciitciion of, 37. Witliin Act, must ho Hulmtantivo and indcpeuduut, 36. Transfer- Dcht due hy insolvent, 11!). Jiisolvcnt's estate hy ollicial aH.signeo to assignco, 72. l'roj)crty hy tlehtor with fraudulent intent, 143. Trover, action of, in case of framiulcnt conveyance, 147. Trustee - Bankruptcy of, court niay appoint new, f)'.). Insolvent not discharged from liability aa, by discharge, 9(5. UwDUR I'KEKKUKNCR. (iSeo Prefcreuco, Fraudulent.) Vao.vncy in olllee of ofHcial assignee, HO. Valuation of security in hands of creditors, 125. Vendor, hen of, attaches to lands in a-ssigncc's hands, 1 12. Vexatious demand to assign, ]ieualty on creditors fur making (aec Demand), 51< Voluntary assignments aholished, 57. Vote, no claim to have more than one, 70. Voting, rights of creditors as to, 70. Vouchers to accompany' proof of claim, 121. Warrant, service of, 127. Warranty, no, of del)t.s of insolvent sold, 99. Wages, servant's privilege for, 117. Wife may not prove for arrears of alimony, 124. Property, interest (jf insolvent in, 142. Withholding books by insolvent, misdemeanor, 153. Witness— Di.sobeying process, punishment of, 127. J^xamined under this Act, entitled to demand expenses, 67. Expenses must be tendered to, 128. ' Retjuired to produce documents, must receive notice, 67. Workmanship of goods, &c., what meant by, 38. Writ of attachment. (See Attachment, Writ of.) Writs, disobedience to, how punishable, 127. Wrongs, personal, of insolvent, right of action for, not to pass to assignee, 60. OOPP, CLARK AND CO., PRINTERa, COLBORNE .STREET, TORONTO. i