What

property divisible.

self, his wife and children, to a value, inclusive of tools, and apparel and bedding, not exceeding £20 in the whole (s. 44).

(116.) What property is divisible among the bankrupt's creditors?

Excepting the property mentioned in the last

answer

(1.) All such property as may belong to or be vested in the bankrupt at the commencement of the bankruptcy, or may be acquired by or devolve on him before his discharge; and

(2.) The capacity to exercise and to take proceedings for exercising all such powers in, over, or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of his bankruptcy, or before his discharge, except the right of nomination to a vacant ecclesiastical benefice; and

(3.) All goods being, at the commencement of the bankruptcy, in the possession, order or disposition of the bankrupt, in his trade or business, by the consent and permission of the true owner under such circumstances that he is the reputed owner thereof; provided that things in action other than debts due or growing due to the bankrupt in the course of his trade or business, are not to be deemed goods within the meaning of this section (s. 44). (117.) Write out the "order and disposition disposition clause" in the present Bankruptcy Act?

"Order and

clause."

Assignment of policy of life

assurance,

(The third paragraph in the last answer is the order and disposition clause.)

(118.) A., in consideration of a loan of £500, assigns a policy of life assurance on his (A.'s) life to secure the payment of such loan. A. afterwards

sideration

becomes bankrupt. No notice of the assignment of as conthe policy is given to the insurance company until for loan. after the adjudication. The trustee claims the policy as being in the order and disposition of the bankrupt. Is he entitled to it as against the assignee of the policy? Give reasons for your answer, and refer if you can to any decision on the subject.

A policy of assurance is a "thing in action," and is therefore excepted from the operation of the order and disposition clause, s. 44, s. iii. of the Bankruptcy Act, 1883. It was so decided on the corresponding section in the Bankruptcy Act, 1869, in Ex parte Ibbetson, re Moore, 8 Ch. D. 519; 39 L. T. 1; 26 W. R. 843. Moreover the order and disposition clause in the new Act is confined to trade goods.

Effect of Bankruptcy on Antecedent Transactions. (119.) Is a creditor who has issued execution Execution against the goods or lands of a debtor and against goods or attached a debt due to him entitled to the benefit lands, and of the execution or attachment as against the attachment trustee?

Not unless he has completed the execution or attachment before the date of the receiving order, and before notice of the presentation of any bankruptcy petition by or against the debtor, or of the commission of any available act of bankruptcy by the debtor (s. 45).

of debt.

(120.) When is (a) an execution against goods, Execution (b) an attachment of a debt, (c) an execution against against land, completed?

goods. Attach

debt.

(a) By seizure and sale. (b) By receipt of ment of a the debt. (c) By seizure, or in the case of an Execution equitable interest, by the appointment of a against receiver (s. 45).

land.

Duty of

sheriff before selling goods taken

in execution when served with notice of receiving order.

Sale by sheriff of goods of debtor

(120a.) What is the duty of the sheriff who before selling the goods taken in execution is served with notice of a receiving order against the execution debtor ?

He must, on request, deliver the goods to the official receiver or trustee under the order, but the costs of the execution will be a charge on the goods so delivered; and the official receiver or trustee may sell the goods, or an adequate part thereof, to satisfy the charge (s. 46).

(121.) The sheriff has sold the goods of a debtor under an execution in respect of a judgment for more than £20. What precaution must he take before under exe- parting with the proceeds?

cution in respect of judgment for more than £20.

Seizure and sale, effect

of execu

tion levied by.

Execution

He should deduct the costs of the execution from the proceeds of sale, and retain the balance for 14 days, and if within that time notice is served on him of a bankruptcy petition having been presented against or by the debtor, and the debtor is adjudged bankrupt thereon, or on any other petition of which the sheriff has notice, he must pay the balance to the trustee in the bankruptcy, who is entitled to retain the same as against the execution creditor, but otherwise he must deal with it as if he had had no such notice (s. 46).

(122.) What is the effect of an execution levied by seizure and sale on the goods of a debtor being an act of bankruptcy?

The execution is not invalid by reason only of that fact, and a person who purchases the goods in good faith under a sale by the sheriff in all cases acquires a good title to them against the trustee in bankruptcy (s. 46).

(123.) What rule must the sheriff observe in sellthan £20. ing goods under an execution for more than £20 ?

for more

Where the sheriff sells the goods of a debtor under an execution for a sum exceeding £20 (including legal incidental expenses), the sale is, unless the Court from which the process issued otherwise orders, to be made by public auction, and not by bill of sale or private contract, and is to be publicly advertised by the sheriff on and during three days next preceding the day of sale (s. 145).

(124.) What alteration has been made in the pro- Elegit, cedure under an elegit?

The sheriff is not now under a writ of elegit to deliver the goods of a debtor, and such a writ does not now extend to goods (s. 145).

procedure under.

(125.) What provision does the Act make for the Voluntary case of voluntary settlements?

Any settlement of property (except a settlement made before and in consideration of marriage, or made in favour of a purchaser or incumbrancer in good faith and for valuable consideration, or a settlement made on or for the wife or children of the settlor of property which has accrued to the settlor after marriage in right of his wife.)

(1.) shall if the settlor becomes bankrupt within two years after the date of the settlement, be void against the trustee, and

(2.) shall, if the settlor becomes bankrupt at any subsequent time within ten years after the date of the settlement, be void against the trustee, unless the parties claiming under the settlement can prove that the settlor was at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement, and that the interest of the settlor in such property had

settle

ments.

Marriage settlement.

Fraudulent preference.

passed to the trustee of such settlement on the execution thereof (s. 47).

(126.) Can trustees of a marriage settlement prove against the estate of the husband in the event of his bankruptcy in respect of his covenant to bring money into settlement after marriage?

Any covenant or contract made in consideration of marriage, for the future settlement on or for the settlor's wife or children of any money or property wherein he had not at the date of his marriage any estate or interest, vested or contingent, in possession or remainder, and not being money, or property of or in right of his wife, will, on his becoming bankrupt before the property or money has been actually transferred or paid pursuant to the contract or covenant, be void against the trustee (s. 47).

(127.) What transactions are void as being fraudulent preferences?

Every conveyance or transfer of property, or charge thereon made, every payment made, every obligation incurred, and every judicial proceeding taken, or suffered by any person unable to pay his debts as they become due from his own money in favour of any creditor, or any person in trust for any creditor, with a view of giving such creditor a preference over the other creditors, are, if the person making, taking, paying, or suffering the same is adjudged bankrupt on a bankruptcy petition presented within three months after the date of making, taking, paying or suffering the same, to be deemed fraudulent and void as against the trustee; but the rights of any person making title in good faith and for valuable consideration through or under a creditor of the bankrupt are not to be affected (s. 48).