"of Partnership," or shall prejudice the provisions of the Friendly Societies Act, 1875.*

41. Preferential Claim in Case of Apprenticeship.†— (1.) Where at the time of the presentation of the bankruptcy petition any person is apprenticed or is an articled clerk to the bankrupt, the adjudication of bankruptcy shall, if either the bankrupt or apprentice or clerk gives notice in writing to the trustee to that effect, be a complete discharge of the indenture of apprenticeship or articles of agreement; and if any money has been paid by or on behalf of the apprentice or clerk to the bankrupt as a fee, the trustee may, on the application of the apprentice or clerk, or of some

20s. in the pound, or dying in insolvent circumstances, the lender of any such loan as aforesaid, shall not be entitled to recover any portion of his principal, or of the profit or interest payable in respect of such loan, nor shall any vendor of a good-will, as aforesaid, be entitled to recover any such profits as aforesaid, until the claims of other creditors of the said trader for valuable considerations in money, or money's worth, have been satisfied."

The provision here referred to is the 7th sub-section of clause 15 of the 38 & 39 Vict. c. 60. It enacts that "upon the death or bankruptcy or insolvency of any officer of a society, having in his possession, by virtue of his office, any money or property belonging to the society, or if any execution, attachment, or other process be issued, or action or diligence raised against such officer or against his property, his heirs, executors, or administrators or trustees in bankruptcy or insolvency, or the sher ff or other person executing such process, or the party using such action or diligence respectively, shall, upon demand in writing of the trustees of the society, or any two of them, or any person authorised by the society, or by the committee of management of the same, to make such demand, pay such money and deliver over such property to the trustees of the society in preference to any other debts or claims against the estate of such officer."

This clause re-enacts verbatim section 33 of the Bankruptcy Act of 1869.

person on his behalf, pay such sum as the trustee, subject to an appeal to the Court, thinks reasonable, out of the bankrupt's property, to or for the use of the apprentice or clerk, regard being had to the amount paid by him or on his behalf, and to the time during which he served with the bankrupt under the indenture or articles before the commencement of the bankruptcy, and to the other circumstances of the case.

(2.) Where it appears expedient to a trustee, he may, on the application of any apprentice or articled clerk to the bankrupt, or any person acting on behalf of such apprentice or articled clerk, instead of acting under the preceding provisions of this section, transfer the indenture of apprenticeship or articles of agreement to sonte other person.

42. Power to Landlord to distrain for Rent.*-(1.) The landlord or other person to whom any rent is due from the bankrupt may at any time, either before or after the commencement of the bankruptcy,† distrain‡

*The first sub-section of this clause re-enacts verbatim clause 34 of the Bankruptcy Act of 1869. The second sub-section is new.

† By the next clause (43) it is enacted that the bankruptcy shall be held to " commence at the time of the act of bankruptcy being committed on which a receiving order is made against him, or if the bankrupt is proved to have committed more acts of bankruptcy than one, to have relation back to, and commence at, the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within three months next preceding the date of the presentation of the bankruptcy petition.

A landlord must actually distrain in order to enforce his claims against the bankrupt's property. When the sheriff had seised under a fi fa it was held that a notice by the landlord to the sheriff under 8 Anne, c. 14, s. 1, was not equivalent to a distress (Gethin v. Wilkes, 2 Dow. P. R. 189). A landlord may forfeit his right to distrain by leaving goods in the order and disposition of the bankrupt after the

upon the goods or effects of the bankrupt* for the rent due to him from the bankrupt, with this limitation, that if such distress for rent be levied after the commencement of the bankruptcy it shall be available only for one year's rent accrued due prior to the date of the order of adjudication, but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the surplus due for which the distress may not have been available.

(2.) For the purposes of this section the term "order of adjudication" shall be deemed to include an order for the administration of the estate of a debtor whose debts do not exceed fifty pounds,† or of a deceased person who dies insolvent.‡

Property available for Payment of Debts.

43. Relation back of Trustee's Title.§-The bankdistress (ex parte Shuttleworth, 1 L. & C. 223). A person who has paid off a distress for rent on the bankrupt's property has been held entitled to be repaid out of the estate before the creditors received a dividend (ex parte Kennard v. Humphreys, 21 L. T. N. S. 684).

* These words "the goods or effects of the bankrupt" are important. They limit the operation of the section to the protection of the goods of the creditors, and not those of other persons, which may be liable to distress in consequence of being on the premises of the bankrupt. It was held on similar words in the Bankruptcy Act of 1849 that the property of a mortgagee lying on land demised to the bankrupt was not protected, but was liable to distress for the whole amount due (Brocklehurst v. Law, 26 L.J., L.B. 107).

+ See post, clause 122.

See post, clause 125.

§ This section corresponds in subject to clause 11 of the Bankruptcy Act of 1869; but it differs materially from that clause, more especially in the omission of the proviso that "the bankruptcy shall not relate back to any prior act of bankruptcy, unless it be that at the time of committing such prior act the bankrupt was indebted to some

ruptcy of a debtor, whether the same takes place on the debtor's own petition or upon that of a creditor or creditors, shall be deemed to have relation back to, and to commence at, the time of the act of bankruptcy being committed on which a receiving order is made against him, or, if the bankrupt is proved to have committed more acts of bankruptcy than one, to have relation back to, and to commence at, the time of the first of the acts of bankruptcy proved to have been committed by the bankrupt within three months next preceding the date of the presentation of the bankruptcy petition; but no bankruptcy petition, receiving order, or adjudication shall be rendered invalid by reason of any act of bankruptcy anterior to the debt of the petitioning creditor.†

creditor or creditors in a sum or sums sufficient to support a petition in bankruptcy, and unless such debt or debts are still remaining due at the time of the adjudication." In future the title of the trustee will, without restriction or condition, relate back to any act of tankruptcy committed within three months prior to the date of the presentation of the bankruptcy petition.

*

With regard to most of the acts of bankruptcy enumerated in clause 4, no question can arise as to when they are or are not committed. But such a question may be suggested in reference to the act of bankruptcy set forth in sub-section (d), i.e.-the levy of execution on the bankrupt's goods. In reference to that, a case decided under clause 11 of the Act of 1869 will still be an authority. On an execution completed by seizure and sale of a trader's goods (being a proceeding in invitum and not a voluntary act on the part of the debtor), it was held that though it may be an act of bankruptcy, it is not ab initio void, but that the relation back is only to the moment after the completion of the transaction; so that when the sheriff had received no notice of the presentation of a bankruptcy petition, and had, after the expiration of fourteen days, paid over the proceeds to the execution creditor, who had no notice of any prior act of bankruptcy, the trustee was held not to be able subsequently to claim the money. (Ex parte Villiers re Rogers, L. R. 9 Ch. 432).

The relation of the title of a trustee under a liquidation by

44. Description of Bankrupt's Property divisible amongst Creditors.* The property of the bankrupt divisible amongst his creditors, and in this Act referred to as the property of the bankrupt, shall not comprise the following particulars :

(1.) Property held by the bankrupt on trust for any other person:†

arrangement is the same as that of a trustee in bankruptcy; that is to say, his title relates back to the first of the acts of bankruptcy proved to have been committed by the bankrupt within three months preceding the date of the receiving order. (See ante, clause 18, subsection 13).

* With the exception of sub-section III. this clause is identical with clause 15 of the Bankruptcy Act, 1869. It will be seen, on comparing sub-section III. of the present clause with sub-section 5 of clause 15 of the Act of 1869, that some important modifications of the law are introduced by the present Act. We shall refer to these more particularly in our notes upon the sub-section.

Property held by the bankrupt en trust is protected by this sub-section, not only when the trust is express, but also when any trust can be implied. In the case of an express trust, when the absolute or general legal ownership is vested in the bankrupt solely for the purpose of the trust, not even the legal estate will pass to the trustee in bankruptcy. Nor will the legal estate pass to the trustee in bankruptcy in a case where, although the bankrupt did not acquire the ownership of property for the purpose of a trust, he has, while still retaining such legal ownership, parted with the whole of the beneficial interest, and become a bare trustee. If, however, any beneficial interest whatever remains in the bankrupt, the legal interest in the property will, on his bankruptcy, pass to the trustee in bankruptcy, subject, of course, to the fulfilment by him of the obligations of the trust. If a bankrupt has not the absolute or general, but only a special property, in goods, bills, &c. (as, for instance, when goods are in the hands of a factor for sale, or bills in the hands of a banker for collection), these goods, bills, &c., if distinguishable from the mass of the bankrupt's estate, will not pass to the trustee in bankruptcy, but he will be able to enforce any lien or claim upon them, to which the bankrupt would have been entitled