§ 4. Infant. Married woman. may commit an act of bankruptcy through the acts or defaults of his agent or firm. But in the case of a foreigner resident or having a dwelling-house in England, it is submitted that he will not be amenable to the law unless he has committed an act of bankruptcy before leaving England. (See post, section 6 (1) (d).) It would seem doubtful whether an infant under any circumstances can be made a bankrupt. (Ex p. Jones, 18 Ch. D. 109, overruling Ex p. Lynch, 2 Ch. D. 227, and following Ex p. Kibble, re Onslow, L. R. 10 Ch. 373; Miller v. Blankley, 38 L. T. 527; R. v. Wilson, 5 Q. B. D. 28.) At all events, it can only be in respect of judgment debts, or debts incurred for necessaries. The Court will always enquire into the consideration for the judgment, which must be a claim which, having regard to the provisions of the Infants' Relief Act, 1874 (37 & 38 Vict. c. 62), and to the general law of infancy, is enforceable against the infant. (See Ex p. Kibble, re Onslow, ubi sup.) Infancy has never been a defence to any action of tort (see Addison on Torts, 5th ed., by Mr. Justice Cave, p. 106), and a judgment in tort constitutes a debt. An infant, too, in equity has always been held liable for fraud, but at all events prior to the Judicature Acts that liability did not, even after decree, constitute a debt (see per Jessel, M. R., and Lush, L. J., in Ex p. Jones, ubi sup.); although such a liability, even before "liabilities" were, by section 31 of the Act of 1869, constituted provable debts, was allowed to be proved in bankruptcy. (See Ex p. Unity Bank, re King, 3 De G. & J. 63.) Cases like Ex p. Watson, 16 Ves. 265, in which the Court refused to supersede a bankruptcy on the ground of infancy (many of which appear in the books), have no bearing on the question of the liability of an infant to be made bankrupt, because the Court only refused summary relief, and left the bankrupt, if he thought fit, to test the question by an action at law, the adjudication at that time not being final. As a general rule, a married woman cannot be made a bankrupt, because her husband, and not she, is the person liable for her debts; but where she is a sole trader within the City of London (Lavie v. Phillips, 3 Burr. 1776), or where her husband is a convict (Ex p. Franks, 7 Bing. 762), she can be adjudged a bankrupt, because she is then personally liable for the debts which she contracts. Before the passing of the Married Women's Property Act, 1882, it was held, in Ex p. Jones, re Grissell, 12 Ch. D. 484, that a married woman, who did not come within either of these exceptions, was not liable to the bankruptcy law, even though she had separate estate, and had contracted engage ments after marriage, and that the Married Women's Property Act, 1870, had made no difference in this respect. Now, however, by section 1, sub-section (5) of the Act of 1882, it is enacted that "" every married woman carrying on a trade separately from her husband shall, in respect of her separate property, be subject to the bankruptcy laws in the same way as if she were a feme sole;" and section 152 of this Act provides that "nothing in this Act shall affect the provisions of the Married Women's Property Act, 1882." A married woman judicially separated from her husband, or who has obtained a protecting order which is still continuing, may sue or be sued as a feme sole, and may probably, therefore, be made bankrupt. (20 & 21 Vict. c. 85, ss. 21, 25, 26.) § 4. A husband may be made bankrupt in respect of the debt Husband. of his wife incurred by her dum sola (Lockwood v. Salter, 5 B. & Ad. 3038; Miles v. Williams, 1 P. Wms. 249), unless married since the Married Women's Property Act, 1870, came into operation. That Act relieved the husband from all liability in respect of the antenuptial debts of his wife. The Amending Act of 1874 rendered the husband liable for such debts and torts, but to the extent only of the value of property coming to him in right of his wife. The Act of 1882, which repeals the above Acts, seems to leave the liability of the husband much the same as it was; for although section 13 renders the wife's separate property primarily liable as between husband and wife for her antenuptial debts and wrongs, yet sections 14 and 15 make the husband also liable for them to the extent of any property which he has acquired or become entitled to by or through his wife after deducting payments made by him. It has never been decided whether a husband can be made bankrupt in respect of such a liability; but it is to be observed that the husband becomes personally liable, and that the property received by or through the wife, unless appropriated to her debts, is merely a measure of the husband's liability. Whether a lunatic can be made a bankrupt has always Lunatic. been an open question. Lord Eldon seems to have thought that he could be. (See Anon., 13 Ves. 590; see, however, Ex p. Carruthers, Davis, 468; Ex p. Layton, 6 Ves. 34.) A lunatic cannot at all events commit an act of bankruptcy involving an intent unless during a lucid interval. (Crisp v. Perrit, Wils 473; Ex p. Priddey, Cooke, 48; Ex p. Stamp, De Gex, 45.) It was decided under the Act of 1869 that a liquidation petition could not be signed by a next friend on behalf of a lunatic not so found by inquisition, but that in the case of a lunatic so found the Court of Lunacy might have § 4. Clergyman. Privilege of Companies. Partners. Deceased insolvent. Convict. Conveyance benefit of jurisdiction to direct that a liquidation petition should be signed on his behalf (Ex p. Cahen, 10 Ch. D. 183); and in Re Lee, 23′ Ch. D. 216, the Court gave leave to the committee of a lunatic so found to consent to an adjudication against the lunatic. This Act, by section 148, provides that for all or any of the purposes of this Act a lunatic may act by his committee or curator bonis. The Act of 1861, section 166, recognized the possibility of a lunatic being made a bankrupt by enacting special proceedings for adjudication in bankruptcy against a lunatic in prison for debt, but the present Act contains no similar provision. A clergyman may be made bankrupt, and if he carried on a trade might, it would seem, have committed those acts of bankruptcy which under the former Acts were peculiar to traders. (Ex p. Meymot, 1 Atk. 196; Cobb v. Symons, 5.B. & A. 516.) By section 124 of this Act persons having privilege of Parliament who commit an act of bankruptcy may be dealt with as if they had not such privilege. By section 123 a receiving order shall not be made against any corporation, or against any partnership or association, or company registered under the Companies Act, 1862. As to partners and firms, see post, section 4 (1) (g), and section 115; Rs. 192-197. As to the administration of the estate of a deceased insolvent, see post, section 125. A convicted felon can be adjudicated bankrupt upon an act of bankruptcy committed after his conviction. Section 8 of 33 & 34 Vict. c. 23, which renders a convict, while subject to the Act, incapable of alienating his property, only prevents alienation to the prejudice of his creditors, and leaves him liable to pay his debts after conviction, whether demand of payment is made before or after conviction. (Ex p. Graves, re Harris, 19 Ch. D. 1.) (a.) If in England or elsewhere he makes a conveyance or assignment of his property to a trustee or trustees for the benefit of his creditors generally: The Act does not say all his property; but this seems to be intended, though it may be contended that it is quite reasonable that a debtor who finds it necessary to pay his creditors through the intervention of a trustee, should be deemed to have committed an act of bankruptcy, even though he only convey to the trustee a part of his property. The assignment of the whole of a debtor's property, even though made for the benefit of creditors generally, has always been held to be an act of bankruptcy (Kettle v. Hammond, Cooke, 86; Stewart v. Moody, 1 C. M. & R. 777 ; Ex p. Alsop, 29 L. J. Bank. 7); and the express enactment in the present Act, following that of 1869, that it shall be so has in no way altered the law. The words "with intent to defeat and delay creditors," which appeared in the earlier Acts in the section under which such an assignment was held to be an act of bankruptcy, are omitted as superfluous, and also misleading, because those words seem to assume that such a conveyance, if made without intent to defeat and delay creditors, would not be an act of bankruptcy, whereas such a conveyance has always been an act of bankruptcy wholly independent of what was the intention. (Ex p. Lückes, re Wood, L. R. 7 Ch. 302.) As to how far a deed incomplete from the want of the assent of the trustee, or for other reasons, can be an act of bankruptcy, see Ponsford v. Walton, L. R. 3 C. P. 167; Dutton v. Morrison, 17 Ves. 193. "Or elsewhere." § 4. These words were first introduced into the statute 6 Geo. IV. Acts of c. 16-a statute which also first introduced the act of bank- bankruptcy abroad. ruptcy of remaining abroad. Prior to the passing of that committed statute, the question had been raised as to whether an act of bankruptcy could be committed abroad. Alexander v. Vaughan, Cowp. 398; Norden v. James, Dickens, 533; Inglis v. Grant, 5 T. R. 530, are all authorities to show that under these old statutes, prior to the introduction of the above words, it was considered that an act of bankruptcy could not be committed out of England; but the cases do not seem to have been very carefully considered, because, as Mr. Christian observes (Bank. Laws, 172), no distinction is made between a person constantly abroad and a person resident in England who goes abroad for a temporary purpose. Mr. Christian, after reviewing the whole of the authorities, sums up the law thus:-"What Lord Hardwicke, Lord Mansfield, Lord Bathurst, and Lord Kenyon declared in cases immediately before them will ever be respected as good law, viz., that a person resident or domi ciled abroad, not subject to the English statutes or the positivo institutions of this country, cannot be made bankrupt here in consequence of any act he may do abroad, but that this rule is carried too far if applied to a native resident and domiciled traveller." The introduction of the words above, "or elsewhere," and the act of bankruptcy of remaining abroad, has placed it beyond a doubt that in some instances an act of bankruptcy can be committed abroad, at all events by persons subject to the English law. (See per Cotton, L. J., Ex p. Blain, re Sawers, 12 Ch. D. at p. 532.) § 4. The " conveyance or assignment," although it may be executed out of England, is one which must be intended to operate according to English law, e. g., a conveyance executed by a domiciled Englishman, although out of England, may be an act of bankruptcy, but a conveyance executed by a domiciled foreigner in his own country, which must necessarily operate according to the foreign law, cannot. (Ex p. Crispin, L. R. 8 Ch. 374.) It was formerly held that an assignment for the benefit of creditors generally could not be relied on as an act of bankruptcy by anyone who was a party to it, (Bamford v. Baron, 2 T. R. 594; Marshall v. Barkworth, 4 B. & Ad. 508; Jackson v. Irvine, 2 Camp. 49; Oliver v. King, 25 L. J. Ch. 427; Exp. Stray, L. R. 2 Ch. 374; but see Turner v. Hardcastle, 31 L. J. C. P. 193; 12 & 13 Vict. c. 106, s. 115), and these cases would seem equally to apply now that an assignment for the benefit of creditors is a specified act of bankruptcy under the above sub-section. Fraudulent conveyance, gift, delivery, or transfer. (b.) If in England or elsewhere he makes a fraudulent conveyance, gift, delivery, or transfer of his property, or of any part thereof: This sub-section has appeared in substance in every Bankruptcy Act since 6 Geo. IV. c. 16. In the Acts prior to that of 1869 the words "with intent to defeat and delay his creditors" appeared in the definition of this act of bankruptcy, but the omission of these words has not altered the law. (Ex p. Lückes, re Wood, L. R. 7 Ch. 302; Harrison v. Cohen, 32 L. T. 717.) It was stated in the judgment in the former case that the words "with intent," &c. were omitted in the sub-sections of the Act of 1869 corresponding to subsections (a) and (b) of this Act as being superfluous and misleading, and that the fraudulent conveyance, gift, delivery, or transfer by a debtor means a conveyance, &c. fraudulent as against his creditors, or some of them; and therefore these words as against his creditors must be inserted, by construction, in the section, after the word fraudulent, and if these words are inserted the intention is not a matter of fact, but something which is to be inferred as a matter of law; and the Court and jury are relieved from having to find an intent which is often contrary to the actual fact. It is unnecessary that either the intent or actual fraud should be found as matters of fact. The history of acts of bankruptcy of this nature seems to be shortly as follows:-This act of bankruptcy did not exist |