the extent of the trading, whether large or trifling, prior to the bankruptcy, will be immaterial (u). And a declaration by the party, of the object of his buying (x), or his representing himself as a dealer, and buying goods and offering them in exchange (y), is admissible evidence of his intention in this respect. It must be observed, however, that if a man be in a line of life which does not subject him to the bankrupt laws, a mere trifling buying and selling, merely collateral to it, even though it yield him a profit, will not render him liable to be a bankrupt; as, for instance, a schoolmaster, who buys books &c., and sells them to his scholars (z); or the owner of a mine, who buys candles and sells them to his workmen (a); or the keeper of hounds, who buys dead horses for his dogs, and sells the skins and bones for a profit (b); is not thereby liable to be a bankrupt.

And lastly, the legality or illegality of the buying or selling &c. makes no difference: it has been holden that a trader may become a bankrupt, although he have not taken out a license necessary to legalize his trade (c); that even a smuggler might become a bankrupt, although his trade were obviously illegal (d). So a clergyman, if also a trader, is liable to be a bankrupt, although his trading is prohibited by statute 57 Geo. 3, c. 99; for he cannot take advantage of the breach of one law, to exempt him from the liabilities of another (e). But a person buying, in connexion with others, to carry on a system of fraud, without any evidence of selling in the way of business, is not a trading within the statute (f). It is observable, that this clause of the act extends, not only to principals, but to all persons who, as "agents or factors" for others, "seek their living by buying and selling, or by the workmanship of goods or commodities." Factors were before made subject to the bankrupt laws by stat. 5 Geo. 2, c. 30, s. 39.

Shall be deemed traders liable to become bankrupt. Provided that no farmer, grazier, common labourer, or workman for hire, receiver-general of the taxes, or member of or subscriber to any incorporated commercial or trading companies, established by charter or act of Parliament shall be deemed, as such, a trader liable, by virtue of this act, to become bankrupt.] By one of the repealed statutes, (stat. 5 Geo. 2, c. 30, s. 40), no farmer, grazier, drover of cattle, or receiver-general of taxes, was to be deemed a bankrupt. But still, if a farmer exercised a trade distinct and se

key v. Jones, Cowp. 748: and see Bolton v. Sowerby, 11 East, 274: Ex p. Gallimore, 2 Rose, 424: Gale v. Halfknight, 2 Stark. 56: Er p. Lavender, 4 Dea. & C. 487: Ex p. Brundrett, 2 Dea. 219; 3 Mon. & A. 50.

(u) Patman v. Vaughan, 1 T.R.572: Bartholomew v. Sherwood, 1 T. R. 573: cit. Newland v. Bell, 1 Holt, 221: Holroyd v. Gwynne, 2 Taunt. 176: Ex p. Wilks, 2 Mon. & A. 667.

(x) Gale v. Halfknight, 2 Stark. 56. (y) Millikin v. Brandon, 1 Car. & P.

380.

(z) Valentine v. Vaughan, Peake, 76: Newton v. Trigg, 1 Salk. 109. (a) Er p. Gallimore, 2 Rose, 426. (b) Summersett v. Jarvis, 3 B. & B. 2: 6 Moore, 56.

(e) Saunderson v. Rowles, 4 Burr. 2066; Martin v. Nightingale, 11 Moore, 305.

(d) Er p. Meymot, 8 Atk. 169: Cubb v. Symonds, 1 D. & R. 111: 5 B. & A. 516.

(e) Er n. Meymot, 1 Atk. 196. (f) Millikin v. Brandon, 1 Carr. & P. 320.

parate from his business of a farmer; if, for instance, he purchased horses, not for the purposes of his farm, but as a horsedealer, merely to sell again, with a view to profit (g); or purchased large quantities of potatoes, not to be used upon his farm, but merely to sell again at a profit (h); or purchased earth, and made bricks of it for sale, (see ante, p. 41), in these and the like cases he would be liable to be made bankrupt, notwithstanding the statute. But if he purchased them for the mere purposes of his farm, even although he sell them again (i); or having purchased too much, he sold the surplus (k); or if he occasionally bought and sold hay, corn, &c., with a view to profit, but without making them the means of seeking his living (7), he would be within the exception of the statute.

Drovers, although excepted by the statute 5 Geo. 2, are not mentioned in this; they, therefore, would be liable to be made bankrupts under the preceding clause as to buying and selling (m), or as cattle or sheep salesmen. A drover is one who seeks his living by purchasing cattle or sheep, and selling them either at the same place, or driving them to another and there selling them. A person who purchases cattle or sheep, to sell again, and depastures them upon the land of another, is, it seems, a drover, as distinguished from the grazier, who depastures and fattens the cattle and sheep he buys upon his own land. So a person who purchases cattle or sheep for the purpose of selling them in the same state in which they are, and who depastures them upon his own lands for a few days, merely to refresh or rest them before he drives them to the place where he intends to sell them, is, it should seem, a drover (n).

As to common labourers or workmen for hire, they were always holden not to be within the bankrupt laws. And as to the members of public companies, it was already provided, in a number of instances, that they should not be subject to the bankrupt laws; see stat. 13 & 14 C. 2. c. 24, s. 1-6, as to the members of the East India and Guinea companies; stat. 9 & 10 W. 3, c. 44, s. 74, as to the proprietors of India stock; stat. 7 & 8 W. 3, c. 31, s. 42, stat. 8 & 9 W. 3, c. 20, s. 47, and stat. 8 G. 1, c. 8, s. 43, as to stockholders in the Bank of England, &c. &c.

II. Having thus treated of the species of trading which will render a man liable to be a bankrupt, we shall now proceed to consider the subject with reference to the individuals who may be made bankrupts.

By the present statute of bankrupts, (6 Geo. 4, c. 16, s. 135), it is enacted that "it shall extend to aliens, denizens, and women, both to make them subject thereto, and to entitle them to all the benefits given thereby." This clause, as to aliens and denizens,

(g) Bartholomew v. Sherwood, 1 T. R. 573: cit. Wright v. Bird, 1 Price, 20: Ex p. Gibbs, 2 Rose, 38.

(h) Mayo v. Archer, 1 Str. 513.

(i) Cooke, 67.

(k) Cooke, 69, 73.

(1) Stewart v. Ball, 2 New Rep. 78:

and see Patten v. Browne, 7 Taunt. 409.

(m) See W. Jon. 304: Cro. Car. 549. (n) See Mills v. Hughes, Willes, 588: Bolton v. Sowerby, 11 East, 274: Carter v. Dean, 1 Swans. 65.

is the same in substance as a section in one of the repealed statutes, (21 J. 1, c. 19, s. 15), upon which section it has been decided, that aliens or subjects residing in Scotland (0), Ireland (p), the Isle of Man (g), the British colonies (r), or in any foreign country (s), trading to or from this country, that is to say, buying goods in England and sending them abroad for sale, or buying goods abroad and sending them to England for sale, may, if they come here and commit an act of bankruptcy, be made bankrupts here.

By the above clause, the statute of bankrupts is extended to women. There never was a doubt but that a woman might be a bankrupt; the only doubt has been as to a married woman. And, upon this subject, I think it may be laid down as a general rule, that in all cases where the trade of a married woman is not under the control of her husband, and that he is not answerable for the debts contracted by her in it, or, in other words, in all cases where in actions against her upon her contracts in trade, coverture would be no plea, she is subject to the bankrupt laws as fully as a feme sole (t). Therefore a married woman, although living upon a se. parate maintenance, apart from her husband, who is in England (u), or a married woman in respect of her trading as a feme sole before marriage (x), cannot be bankrupt; but the wife of a convict sentenced to transportation may be a bankrupt if she becomes a trader; and although in fact the husband remains in England (y); and also a feme covert, who is a sole trader according to the custom of London, may be a bankrupt (z).

An executor or other person who carries on a business as trustee, in pursuance of the will of a deceased trader, may be a bankrupt in respect of such business (a); but not by merely selling off the deceased's stock in trade, although he be obliged to purchase articles to mix with it in order to make it saleable (b).

A person cannot be made a bankrupt by reason of a trading by him during his infancy (c); unless he have held himself out as an adult and sui juris, and traded as such (d); and the infant may try the validity of the commission by an action against his assignees, without applying for a supersedeas (e). But a lunatic may be a bankrupt (f), provided the act of bankruptcy be committed during a lucid interval (g).

Peers and members of the House of Commons (chap. 3, post) (h),

(0) Alexander v. Vaughan, Cowp. 398. (p) Dodsworth v. Anderson, L. Raym. 375.

(q) Allen v. Cannon, 4 B. & A. 418. (r) Ex p. Smith, Cowp. 402, cit.: and see Ex p. Williamson, 1 Atk. 82.

(8) Bird v. Sedgwick, 1 Salk. 110. (t) See Ex p. Preston, Green, 8; Cooke, 40: Ex p. Mear, 2 Bro. 266.

(u) Marshall v. Rutten, 8 T. R. 845. (x) Ex p. Mear, 2 Bro. 266.

(y) Ex p. Franks, 1 M. & Scott, 1; 6 M. & P. 1; 7 Bing. 762.

(z) Lavie v. Phillips, 3 Bur. 1776: Ex p. Carrington, 1 Atk. 206.

(a) Er p. Garland, 10 Ves. 110: Viner v. Cadell, 3 Esp. 88: Er p. Nutt, 1 Atk.

102: Er p. Richardson, 3 Madd. 138.

(b) Ex p. Nutt, 1 Atk. 102; Cooke, 78, 79.

(c) Ex p. Sidebotham, 1 Atk. 146: Er p. Moule, 14 Ves. 603: Er p. Adam, 1 Ves. & B. 494: O'Brien v. Currie, 3 Car. & P. 283: and see Stevens v. Jackson, 4 Camp. 164.

(d) Cooke, 40: Ex p. Adam, 1 V. & B. 494: and see Ex p. Watson, 16 Ves. 265.

(e) Belton v. Hodges, 9 Bing. 365; 2 M. & Scott, 496.

(f) Anon., 13 Ves. 590.
(g) Erp. Priddey, Cooke, 48.
(h) See Ex p. Meymot, 1 Atk. 201.

servants of foreign abassadors (i), clergymen (j) and public officers, as, for instance, an exciseman (k), or the like, may be bankrupts, if they be traders. But it may be necessary here to observe, that a contract to victual the fleet will not make a man a trader, although he sell the surplus (1): nor are commissioners of the navy, suttlers of the armies, the king's butlers or stewards of inns of court, or farmers of the customs, traders by reason of their respective offices (m). A second fiat in bankruptcy against an uncertificated bankrupt is a nullity, because his property, as well after-required as otherwise, is already assigned under the first fiat (n). However, it is discretionary with the Great Seal to supersede such fiat or not (0). A fiat may be issued against a person who has taken the benefit of the insolvent act (p).

And lastly, a man who has retired from business may become a bankrupt in respect of debts contracted during the period of his trading (q), or upon a debt contracted before he commenced trading (r). But a trading which had ceased before the present statute (6 Geo. 4, c. 16) took effect, will not support a commission or fiat issued after that period (8).

SECTION 2.

The Acts of Bankruptcy.

BEFORE we enumerate and explain the different acts of bankruptcy, it may be necessary to premise,―

1. That the act of bankruptcy must be committed within England or Wales (†), unless otherwise hereinafter expressed in the

statute.

2. That the act of bankruptcy may be committed after the party has retired from trade, provided it be during the existence of a sufficient petitioning creditor's debt, contracted either before the trading commenced (u), or whilst in trade (x). If committed at any time previous to the sealing of the fiat,-although after the striking of the docket (y), or even on the very day the commission

(i) See stat. 7 Ann. c. 12, s. 5.

(3) Er p. Meymot, 1 Atk. 196: and see Hankey v. Jones, Cowp. 745.

(k) Highmore v. Molley, 1 Atk. 206. () Gibson v. Thompson, 3 Keb. 451; Skin. 392.

(m) Ib.

(n) Martin v. O'Hara, Cowp. 824: Er p. Martin, 15 Ves. 114: Till v. Wilson, 7 B. & C. 684; 2 Dea. 494: In re Chambers, 3 Mon. & A. 294.

(0) See 16 Ves. 236, 472.

(p) See Jellis v. Mountford, 4 B. & A. 256.

(q) Anon., 1 Vent. 5; 1 L. Raym. 287: Willoughby v. Thornton, 1 Sel. N. P. 175: Exp. Dewdney, 15 Ves. 495:

Doe v. Laurence, 2 Carr. & P. 134.

(r) Baillie v. Grant, 9 Bing. 121; 2 M. & Scott, 193.

(s) Surtees v. Ellison, 4 Man. & R. 586; 9 B. & C. 750: Palmer v. Moore, 9 B. & C. 754: Ex p. Batten, Mon. & M'A. 287.

(t) Ex p. Smith, Cowp. 462, cit. Inglis v. Grant, 5 T. R. 530.

(u) Baillie v. Grant, 9 Bing. 121; 2 M. & Scott. 193.

(x) Ex p. Bamford, 15 Ves. 449: Ex p. Dewdney, Id. 495: Ex p. Bourne, 16 Ves. 145.

(y) Wydown's case, 15 Ves. 86, 88: Simi son v. Sikes, 6 M. & S. 295: Ex p. Dufrene, 1 Ves. & B. 51; 1 Rose, 333.

or fiat is dated (z), it will be sufficient. In March, 1825, a trader committed an act of bankruptcy, sufficient to support a commission issued under the statutes then in force; on the 1st of May those statutes were repealed, and on the 2nd of May the repealing statute was repealed, and the former statutes thereby revived; in July a commission issued on the act of bankruptcy in March, and it was held to be valid (a). Upon the same principle, an act of bankruptcy committed before the statute 6 Geo. 4, c. 16, came into operation, will not support a commission issued under that statute (b).

3. That an act of bankruptcy, once clearly committed, can never afterwards be purged or cancelled (c). Therefore a denial to a creditor is not purged by his afterwards being admitted in consequence of his importunity (d). So, where a trader gave a general order to be denied, and he was denied to a creditor accordingly, but he immediately overtook the creditor, and told him he was not afraid of him, but of another; this was holden not to have purged or cancelled the act of bankruptcy, which was complete at the time of the denial (e). But if the act itself be equivocal, circumstances may be given in evidence to shew that it was not done with any intent to defeat or delay the creditors (ƒ).

4. That an act of bankruptcy concerted between the bankrupt and the petitioning creditor will not support a fiat (g). But a creditor not privy to such concerted act may avail himself of it (h). The bankrupt's agreeing to an act of bankruptcy at the suggestion of a friend, without any concert with the creditors, is no objection to the fiat (i).

By stat. 6 Geo. 4, c. 16, s. 3, it is enacted, that if any such trader (see ante, p. 37) shall

1. Depart this realm.] This is one of the acts of bankruptcy described in stats. 13 El. c. 7, s. 1, and 1 Jac. 1, c. 15, s. 2, and in the same words. The word "realm" seems to mean nothing more than the extent of the jurisdiction of the courts of this country; for if a trader leave this country and go to Ireland, with intent to defeat or delay his creditors, it will be an act of bankruptcy within this clause of the act (k). And if a trader residing in Ireland or elsewhere, come to this country upon some temporary business, and

(*) Ib. and Hopper v. Richmond, 1 Stark. 507.

39.

(a) Philips v. Hop wood, 10 B. & C.

(b) Surtees v. Ellison, 4 Man. & R. 586: Hewson v. Head, Ib.: Maggs v. Hunt, 12 Moore, 357.

(c) Per Buller, J., in Bromley v. Mundie, Bull. N. P. 39; Cooke, 121. Colkett v. Freeman, 2 T. R. 59.

(d) Wood v. Thwaites, 3 Esp. 245. (e) Mucklow v. May, 1 Taunt. 479: and see Er p. Gardner, 1 Ves. & B. 45: Colkett v. Freeman, 2 T. R. 59.

(f) Ex r. Hall, 1 Atk. 201: Cooke, 121: and see this section passim.

(g) Er p. Gouthwaite, 1 Rose, 87: Er 1. Brookes, 1 Buck, 257: Bamford v. Baron, 2 T. R. 594, cit.: Eyre v. Birkbeck, Id. 395, cit.

(h) Ex p. Bourne, 16 Ves. 145.

(i) Roberts v. Teasdale, Peake, N. P. 27: Simpson v. Sikes, 9 M. & S. 295: and see as to the 15th Act of Bankruptcy, post, 60.

(k) Williams v. Nunn, 1 Taunt. 270: Windham v. Paterson, 1 Stark. 144.