soil, in a state essentially altered by various processes of manufacture, did not alter the character of the land-owner, not convert him into a person, who could properly be said to carry on the trade of merchandise. So building on a person's own land, for whatever purpose, cannot be considered as a buying and selling. Contractors for victualling the royal navy, drovers of cattle (6), farmers, graziers, innkeepers', alehouse-keepers or victualiers, and receivers-general of parliamentary taxes, are not objects of the bankrupt laws (8). a Williams v. Stevens, 2 Camp. N. P. b Littleton's case, 1 Vent. 270. f Newton v. Trigg, 3 Lev. 310. Skin' 291. Carth. 149. 3 Mod. 327. S. C. (7). g Saunderson v. Rowles, 4 Burr. 2064. h 5 G. 2. c. 30. s. 40. (6) A person who buys and sells cattle at one fair, keeps them three or four days on his own ground, and then drives them to another, is a drover within the meaning of this statute. Mills v, Hughes, Willes, 588. A farmer occupying a farm of the value of £700 per annum, purchased cattle (beyond what his farm would maintain by its own produce) at one fair, kept them on his farm, and sold them at another fair. It was holden, that such person was either farmer, grazier, or drover, within the meaning of this statute, and consequently not subject to the bankrupt laws. Bolton v. Sowerby, 11 East, 274. (7) In this case it was also found, that J. S. had built a ship, and had a share therein, and also 500/. stock upon the said ship ad merchandizandum, but it was not found that he traded therewith, or that he any wise traded in the ship; it was resolved by the court, that the building and having a share in a ship, was no more than if a man had a share in a barge or coach which were let to hire, &c. and that his having some stock in a ship did not make him a merchant; because it was usual for persons to adventure some particular things in such a ship for such a voyage, but that would not make them traders within the statutes, &c. for by those statutes, professed merchants only were meant, or such who were in constant trading. See also Cotton v. Daintry, 1 Vent. 29. and ex parte Bowes, 4 Vesey, jun. 168. where Lord Loughborough, Ch. held, that the part owner of a ship who had let it out to freight, and received freight, was not an object of the bankrupt laws. (8) Lord Kenyon, C. J. held, that a schoolmaster's buying school books and shoes, and retailing them to his scholars, was not a trading within the bankrupt laws. Valentine v. Vaughan, Peake's N. P. C. 76. See 3 Mod. 330. acc. N By particular statutes, the holders of stock in various trading companies, are declared not liable to be made bankrupts in respect of their stocks in such companies: as the members of the Bank of England, East India, English Linen', Guinea, London Assurance", Royal Exchange Assurance, South Sea Companies, &c. &c. III. Of the several Acts of Bankruptcy (9). THE several acts of bankruptcy, which are mentioned in stat. 13 Eliz. c. 7. s. 1. being repeated in the stat. 1 Jac. 1. c. 15. s. 2. it will not be necessary to set forth the statute of Elizabeth. By stat. 1 J. 1. c. 15. s. 2. (10) it is enacted, that any person using the trade of merchandize, &c. who shall, 66 1. Depart the realm;" 2." Or begin to keep house;" 3. "Or otherwise to absent himself; 4. "Or suffers himself willingly to be arrested for any debt "or other thing, not grown due, for money delivered, wares "sold, or any other just thing or lawful cause, or good consideration or purposes;" 5." Or shall suffer himself to be outlawed;" 6. "Or yield himself to prison;" 7. "Or willingly or fraudulently procure himself to be "arrested, or his goods to be attached or sequestered;" i 8 and 9 W. 3. c. 20. s. 47. 7 Anne, c. 7. 8. 59. 3 G. c. S. s. 43. k 13 & 14 Car. 2. c. 24. s. 3. 9 and 10 W. 3. c. 44. s. 74. 14 G. 3. c. 37. s. 13. n 6 G. 1. c. 18. s. 10. p 9 Anne, c. 21. s. 42. S. 55. m 13 & 14 Car. 2. c. 24. s. 3. (9) It appears to have been the opinion of Lord Hardwicke, Ch. in ex parte Smith, cited in Alexander v. Vaughan, Cowp. 402. that an act of bankruptcy committed abroad would not support a commission. (10) Although this statute is written in the statute book under the year secundo (vulgo primo) Jac. 1. c. 15. it must be pleaded as of the first year. Bryant v. Withers, 2 Maule and Selwyn, 123. s. "Or depart from his dwelling-house;" 9. "Or cause to be made any fraudulent grant or convey"ance of his lands, tenements, goods, or chattels ;" "To the intent, or (11) whereby his creditors may be de"feated or delayed, for the recovery of their just and true. "debts;" (12) 10. By stat. 21 Jac. 1. c. 19. s. 2. "Any person using the "trade of merchandize, &c. who shall, either by himself or others, by his procurement, obtain any protection other than "such person as shall be lawfully protected by privilege of parliament; 66 11. Or exhibit any petition or bill against his creditors, "to compel them to accept less than their just debts, or to procure time;" 12. "Or being arrested for debt, shall, after his arrest, lie "in prison two months or more, upon that or any other arrest or detention in prison for debt;' 13." Or being arrested for the sum of 1007. or more of just "debt, shall, after such arrest, escape out of prison;" "Shall be adjudged a bankrupt; and in the case of arrest or lying in prison, from the time of the first arrest." 14. By stat. 5 G. 2. c. 30. s. 24. If any bankrupt, "after issuing of any commission against him, pay to the person who sued out the same, or otherwise give or deliver to such person goods, or other satisfaction or security, "for his debt, whereby such person shall privately have "and receive more in the pound in respect of his debt than "the other creditors, such payment of money, delivery of 66 (11) In Fowler v. Padget, 7 T. R. 509. it was holden that the word "or" in this part of the statute meant "and.' But in Robertson v. Liddell, B. R. E. 48 G. 3. 9 East, 487. this coustruction was over-ruled, and it was decided that the words " or whereby" did not carry the sense any further than "to the intent;" and that they were equivalent to the words "or that thereby;" and this construction of the statute was most consistent with the corresponding clause in the 13 Eliz. c. 7. and the general scope of the bankrupt laws; and consequently if any of the before specified acts were done with an intention to delay creditors, the party must be adjudged a bankrupt, although no actual delay were proved. (12) The conclusion of the corresponding section in the statute of Elizabeth is, to the intent or purpose to defraud or hinder any creditor of his just debt or duty. goods, or giving greater or other security or satisfaction, "shall be deemed to be an act of bankruptcy, whereby, on good proof thereof, such commission shall and may be superseded." Doubts having arisen, whether a commission could be sued out against traders entitled to privilege of parliament, during the continuance of such privilege, and such persons not being compellable to become bankrupts, by reason of the freedom of their persons from arrests upon civil process, it was enacted, by stat. 4 G. 3. c. 33. " that the creditors to a certain value, viz. one creditor, or two, being partners, to the amount of "1007. two creditors to the amount of 150l., and three to the amount of 2001. of any trader within the description "of the bankrupt laws, having privilege of parliament, may (upon affidavit of the debt, and trading of the debtor, filed "of record in any of the courts, at Westminster) sue out a summons, or original bill and summons, against such trader, and serve him with a copy; and if he shall not, "within two months after personal service, pay, secure, or compound the debt, or enter into a bond in such sum, and "with two such sureties as the court shall approve of, to pay "such sum, as shall be recovered in such action, with costs, "he shall be adjudged a bankrupt from the time of the ser"vice of such summons." 66 This provision of the legislature was salutary, but having on some occasions, where bonds have been given in pursuance thereof, been rendered nugatory by the difficulty, and sometimes by the impossibility, of enforcing the entering appearances in the actions, for the payment of the sums to be recovered, in which such bonds had been given, it was enacted by stat. 45 G. 3. c. 124. s. 1. that, "when any 66 summons, or original bill and summons, shall be sued "out against any person, deemed a merchant, banker, bro"ker, factor, scrivener, or trader, within the description of the acts relating to bankrupts, having privilege of par"liament, and such affidavit of the debt duly made and filed, as in the act of the 4th G. 3. c. 33. mentioned, and "such merchant, &c. shall enter into such bonds as in the "said act mentioned, to pay such sum as shall be recovered "in such action, together with such costs as shall be given in the same; every such merchant, &c. shall also, "within two months after personal service of such summons, cause an appearance to be entered to such action "in the proper court in which the same shall have been brought, and on default thereof he shall be adjudged bankrupt from the time of the service of such summons: 66 06 "and any creditor may sue out a commission against any "such person, and proceed therein in like manner as against "other bankrupts." And by the third section, after reciting, that the proceeding by distringas was extremely dilatory and expensive, it is enacted, that "when any summons, or original bill and summons, shall be sued out against any person having privilege of parliament, and no "such affidavit shall be made and filed as in the said act of "the 4th G. 3. c. 33. and hereinbefore is mentioned, if the "defendant shall not appear at the return of the summons, " or within twenty-eight days after such return, in every such "case it shall be lawful for the plaintiff, upon affidavit being "made and filed in the proper court of the personal service "of such summons (which affidavit shall be filed gratis) to "enter an appearance or appearances for the defendant, and "to proceed thereon as if such defendant had entered his appearance." The remaining sections of this statute provide for compelling an appearance in courts of equity, under similar cir cumstances. 66 SINCE the decision in Robertson v. Liddell, in which the construction laid down in Fowler v. Padget, 7 T. R. 509. was over-ruled, merely departing the realm, although it is not proved that any creditor was thereby defeated or delayed in the recovery of his debt, if such departure was with an intention so to defeat or delay them, will constitute an act of bankruptcy (13). q 9 East, 487. See also 1 Taunt. 276. (13) In the case of Woodier*, a mercer on Ludgate Hill, against whom his going beyond sea being given in evidence, it was insisted, that shewing quo animo he went abroad, (viz. on account of having killed his wife) this could not be construed an act of bankruptcy; but it appearing that his creditors were thereby in fact prevented from recovering their debts, Reeves, C. J. held, that this was an act of bankruptcy; but if this fact had not appeared, it would have been otherwise. So in Raikes and others assignees of Hervey v. Poreau†, which was an action for money had and received, it appeared that Hervey • Woodier's case, Bull. N. P. 39. ↑ Raikes v. Poreau, Co. B. L. 5th edit. p. 73. |