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BANKRUPTCY


253


BANKRUPTCY


nitions of persons to be deemed occupied in trade became very comprehensive. Yet with special re- gard, apparently, for "noblemen, gentlemen and persons of quality investing in the "East India Company or Guiney Companj'" and certain other enterprises, the imputation of being merchants or traders within any "statutes for bankrupts" is, by a statute of 1662, expressly spared to persons putting in money in these stocks. The circum- stance of occupation is. under the present EngUsh Bankruptcy Act, immaterial. Ahens and denizens had been brought w-ithin the law by a statute of the year 1623.

By the law of Scotland bankruptcy is not limited to any particular occupation. But according to Scotch law insolvency, that is, inability to pay debts or fulfil obligations, does not become bank- ruptcy until, in manner determined by statute, this inability is pubhcly acknowledged, and is thus, as expressed in the statute, "notour". The pur- pose of the English Statutes of 1.542 and 1.570 did not extend beyond distribution of the bankrupt's property among his creditors. Right of recourse against the debtor by ordinarj' process of law for any remaining indebtedness these statutes expressly preserved. But by the statute of 1705 a bankrupt, duly surrendering all his effects and conforming to the law, might obtain his discharge from liability for debts theretofore contracted. And more modern statutes permit a debtor himself to institute pro- ceedings in bankruptcy. The Scotch law now permits a "notour bankrupt" to apply for what is termed a decree of cessio bonorum, by which he may be discharged from his debts.

The Constitution of the United States (Art. I, § 8) confers upon Congress power to "establish uniform laws on the subject of bankruptcies through- out the United States". Under this provision Con- gress may disregard any distinction between bank- ruptcy and insolvency laws, of which laws Chief Justice Marshall remarks (W'heaton's Reports, IV, 194) that the line of partition between them is not so distinctly marked as to enable any person to say -n-ith positive precision what belongs ex- clusively to the one and not to the other class of laws. Originally, however, insolvency laws and bankruptcy laws were prompted by opposite mo- tives and were clearly distinguishable. The motive of insolvency laws was the relief of insolvent debtors, by affording them a remedy against imprisonment and, in ancient Rome, other penalties. On the contran,', the motive of bankruptcy laws was, as already seen, the relief of creditors by affording a remedj' against dishonest debtors who might possibly not be insolvent, but whose conduct while indebted was deemed to be such as to entitle their creditors to the summary rehef which the law "made against bankrupts" afforded. English as well as Roman insolvency laws contemplated the ca.ses of debtors whom ordinary process of law could reach, but the operation of the English statute of 1542 is hmited to debtors who "make bankrupt" and against whom such process was ineffectual, and the statute of 1570 is further limited to traders. The court afterwards established, in the reign of George III, for cases of insolvency was "the Court for relief of insolvent debtors"; but bankrupt laws, remarks Sir Edward Coke, are to be construed "for the aid, help, and relief of the creditors". And under certain circumstances a solvent debtor may by the United States law be pronounced a bankrupt.

Congress has passed four bankruptcy laws; the Act passed 4 April, 1800, which was repealed by Act of 19 December, 1803; the Act passed 19 August, 1S41, repealed bv Act of 3 March, 1843; the Act passed 2 March,' 1867, and repealed 7 June, 1878, and the Act of 1 July, 1898, yet (1907) in force.


At the time of the adoption of the United States Constitution a suggestion was rejected that the power of Congress concerning bankruptcy should be con- fined to merchants and traders. Yet by the Act of 1800 only a merchant or other person resident in the United States and "actually using the trade of merchandise by buying and selling in gross, or by retail, or dealing in exchange or as a banker, broker, factor, underwriter, or marine insurer" could be adjudged a bankrupt. Voluntarj' bankruptcy is not mentioned in the Act of 1800, "but by the Act of 1841 "all persons" residing in any State, District, or Territory of the United States owing debts not incurred through defalcation as a public officer or in a fiduciary capacity might apply to become voluntarj' bankrupts. Involuntarj' bankruptcy was still restricted to merchants and certain other classes of business men. The Act of 1867 provided for both voluntary and involimtary bankruptcy without regard to the debtor's occupation. By the Act of 1898, ihe several District Courts ot the United States, the Supreme Court of the District of Columbia, the District Courts of the several Territories, and the United States Courts in the Indian Territory and the District of Alaska are made courts of bankruptcy. A person is within this Act insolvent whose prof)- erty (exclusive of propertj' ■WTongfully conveyed, transferred, concealed, or removed) is at a fair valuation insufficient to pay his debts. Any natural person or unincorporated company or business cor- poration as defined in the Act, and owing at leasts one thousand dollars (except certain natural persons specified), may be adjudged an involuntarj' bank- rupt. Proceedings in involuntarj' bankruptcy are to be instituted by petition filed within four months after an act of bankruptcy. Such an act consists in convejTng, transferring, concealing, or remoWng, or permitting to be concealed or removed, any of the debtor's property with intent to hinder, delay, or defraud his creditors or any of them; or in trans- ferring while insolvent any property with intent to prefer a creditor or creditors; or in suffering or permitting, while insolvent, any creditor to obtain a preference through legal proceedings or in not hav- ing such preference vacated or discharged. So a general assignment for benefit of creditors and cer- tain proceedings under Insolvent Laws, or application by an insolvent for a receiver or trustee are acts of bankruptcy. On the other hand, "any qualified per- son", namely, any person who owes debts provable in bankruptcy (except a corporation) "may file a petition to be adjudged a voluntarj' bankrupt". The assets of the bankrupt are to be divided among his creditors, and the court of bankruptcj' is empowered to grant him a discharge, that is, a "release . . . from aU of his debts which are provable in bank- ruptcy, except such as are excepted bj- this Act".

The power conferred on Congress bj' the Consti- tution does not whoUj' preclude the several States of the Union from passing bankruptcy laws. A State may enact such laws conclusive as to the rights of its own citizens, pro\'ided such laws do not impair the obligation of contracts within the mean- ing of the Constitution, nor conflict ^\-ith anj' ex- isting Act of Congress establisliing a uniform sjstem of bankruptcj'.

So far we have considered our subject from a- legal point of \-iew. From the point of view of the political economist, bankruptcy and insohency laws are of great importance. For cost of produc- tion of goods includes risk of bad debts, and there- fore laws lessening this risk decrease the cost of production. John Stuart Mill concludes that most individual insolvencies are the result of misconduct. But the occurrence of manj' business failures in a communitj- at anj' period is a warning or sjTnptom of "the politico-economical disease" which econ-