BANKRUPTCY, proceedings of, under a commission. The Lord Chancellor is empowered to issue a commission of bank rupt, and is bound to grant it as a matter of right. By 5 Geo. It. c. 30, no commis sion can issue, unless upon the petition of a single creditor, to whom the bankrupt owes a debt, which shall amount to 1u01. the debt of two or more, being partners, shall amount to 150/. and of three or more to 2001.
If the debt against the bankrupt amount to the sum required, it is not material, though the creditor should have acquired it for less.
If a creditor to the full amount, before an act of bankruptcy committed, receive, after notice of the bankruptcy, a part of his debt, such payment, being illegal, can not be retained, and the original debt re mains in force, and will support a com mission.
The debt must be a legal, and not an equitable one, and if the legal demand be not in its nature assignable, the assignee cannot be the petitioning creditor, as the assignee of a bond.
lithe creditor, for a debt at law, have the body of his debtor in execution, he cannot at the same time sue out a com mission upon it ; that being, in point of law, a satisfaction for the debt.
Of opening the commission When the commissioners have received proof of the petitioning creditor's debt, the trading, and act of bankruptcy, they declare and adjudge the party a bankrupt. They are authorised to issue a warrant, under their hands and seals, for the seizure of all the bankrupt's effects, books, or writings, and for that purpose to enter the house, or any other place belonging to the bank rupt.
Such debts only can be proved under a commission, as were either debts cer tainly payable, and which existed at the time of the bankruptcy,or whi ch,a1 th thigh originally continent, yet, from the con tingency happening before the bankrupt cy, were become absolute. In every case the amount of the debt must be precisely ascertained.
Time and method of proving. Credi tors were formerly precluded from prov ing after four months, but the court now, except in cases of gross negligence, al lows them to come in at any time, whilst any thing remains to be disposed of. The usual proof required, is the oath of the creditor himself, either in person, or by affidavit, if he live remote from the plate of meeting, or reside in foreign parts. 5
Geo. II.
Corporations, or companies, are gene rally admitted to prove by 'a treasurer, clerk, or other officer duly authorized. Of the assignees. Immediately after declaration of the bankruptcy, the com missioners are to appoint a time and place for the creditors to meet and choose as signees ; and are directed to assign the bankrupt's estates and effects to such per sons as shall be chosen by the major part in value.
The powers and duties of assignees are principally those of collecting the bank. rupt's property, reducing the whole into ready money, and making distribution as early as possible. One assignee is not answerable for the neglect of another. Assignees, if they act improperly, are not only liable at law to the creditors for a breach of trust, but may be removed on account of misbehaviour, &c. by petition ing the Lord Chancellor. Upon the re. moval of an assignee, he is directed to join with the remaining one in assignment to the latter and new assignee.
Provisions for wife, children, &c. By the statute of Elizabeth, the commission ers may assign any lands, &c. that the bankrupt shall have purchased jointly with his wife,and the assignment shall be effectual, against the bankrupt, his wife, or children ; but this shall not extend to conveyances made before the bankruptcy bona fide, and not to the use of the bank rupt himself only, or his heirs, and where the party to the conveyance are not privy to the fraudulent puiposes to deceive the creditors.
Examination of the bankrupt. By the 5th Geo. II. the commissioners are em powered to examine the bankrupt, and all others, as well by parole, as by inter rogations in writing. The said statute requires the bankrupt to discover all his estate and effects, and how, and to whom, and in what manner, on what considera tion, and at what time, he has disposed of them ; and all books or papers, and wri tings relative thereto, of which he was possessed or interested, or whereby he or his family may expect any profit, tage, &c. and on such examination he shalt deliver up to the commissioners all his effects,(except the necessary wearing ap parel of himself, his wife, and children,) and all books, papers, and writings, rela ting thereto.