the right or title set up under that statute. In some of these various modes the principal questions arising under the Act will in time be settled by the highest judicial
authority, and thus uniformity of decision will be secured.The statute covers the whole ground of bankruptcy and insolvency. It is applied to all debtors, whether traders or not, and to debtors petitioning for its benefits, as well as to those proceeded against by creditors. Any one who owes $300 may petition, and any such debtor who has committed certain specified acts may be adjudged bankrupt in invitum. The acts of bankruptcy are sub stantially alike in all such statutes in England and the United States, and tend to prove either fraudulent con duct or hopeless insolvency, such as concealing property, conveying it fraudulenly, departing the district with intent to defraud creditors, lying in prison for twenty-one days. There is nothing analogous to the trader debtor summons, though the Act of 1800, and the Massachusetts law of 1838, admitted a somewhat similar test of bankruptcy. This law, however, has adopted one which to a consider able extent supplies this want, by declaring a merchant, trader, banker, broker, manufacturer, or miner to be bank rupt who has suffered his commercial paper to remain overdue and unpaid for forty days. No other distinction is made between traders and other debtors, excepting that merchants and tradesmen are bound, under pain of being denied their discharge, to keep proper books of account.
The property of the bankrupt is assigned by the judge or register to the persons chosen by the majority in number and value of the creditors the court having full power to overrule the choice of the creditors, or to add an assignee to those chosen. The assignment is conclusive evidence of the assignees authority, and cannot be collaterally im peached on any ground, excepting want of jurisdiction in the bankrupt court, nor in any suit whatever. This most valuable rule was adopted by Massachusetts in 1838, and has saved an enormous amount of useless litigation. There is no danger of injustice from it, because the adjudication against a bankrupt is never made without notice to him, nor without a trial by jury, if he demands one ; and any person having an interest adverse to the adjudication has a right to be heard as well as the debtor.
The doctrine of the relation of the assignee s title to an act of bankruptcy committed in the country has not obtained in the United States. That title relates, as in other suits, to the beginning of the proceedings, that is to say, the day and hour that the petition, whether voluntary or involun tary, is filed. The most marked difference between the English and American statutes, or rather between the prac tical working of them, is in the extension given by the latter to the doctrine of preference. By the law of 18G7 and its amendments, the assignee can avoid all advantages given to pre-existing creditors within four months (in in voluntary cases, within two months) before the filing of the petition, if the bankrupt was then insolvent, and intended a preference, and the preferred creditor knew the insolvency and the intent, no matter what pressure, by suit, threat, or otherwise, may have been brought to bear upon the debtor. This law, as construed, operates almost like a relation back of the assignee s title, so far as pre-existing creditors are concerned, unless the payments or settlements have been made in the ordinary course of business, and sometimes, though rarely, when they have been so made. This rule is a logical development of the law of preference, as estab lished in Lord Mansfield s time, and still continued in England. When it is considered that a preference is a technical fraud, and may be charged as an act of bankruptcy and as a valid objection to the debtor s discharge, it will be readily seen that the conduct of debtors in failing cir cumstances must be much restrained and regulated, to the advantage of the general creditors, by the perils that attend a partial or unfair mode of settlement, or even a struggle to continue business after recuperation has become hope less. Such was found to be the operation of a similar law in Massachusetts, where it prevailed for more than twenty years before the statute of that State was suspended by the general Bankruptcy Act of 1867.
The discharge of the debtor is granted or refused by the court absolutely. There are no grades or classes of certi ficates, and no power to suspend action upon the question, and put the debtor on probation. In voluntary bankrupt cies 30 per cent, must be paid in dividends, or the consent of one-fourth in number and one-third in value of the creditors must be obtained. Any creditor may oppose the decree of discharge for fraud committed or continued within six months before the petition, for loss by gaming, and in the case of merchants and tradesmen, as we have seen, for failure to keep suitable accounts. The discharge when granted, is, like the assignment, unimpeachable in any court ; but it may be reviewed within two years by the court that granted it, upon evidence afterwards discovered.
The title, powers, and duties of the assignee, the mode of settling joint and separate estates, and marshalling debts and assets, are substantially similar under the English and American systems. The title of the assignee, however, does not depend at all, in any case, upon the date of the petitioning creditor s debt. The misdemeanours created by the law were taken, with some modifications, from the felonies of the English Act in force in 18G7. The mode of compounding with creditors has recently been adopted from the English statute of 1869, and has been largely used with good results.
Whether or not the bankrupt law will take its place as part of the settled policy of the country cannot be easily predicted. It is not likely to be displaced until the exist ing commercial depression has been relieved. After that time much will depend upon the degree of care and economy with which it is administered, and the readiness of Con gress to adopt modifications that shall be found to be necessary, but most upon the opinion that the debtors of the country may entertain of its operation. The law was considerably modified in 1874 in the interest of debtors, by making adjudications in invitum more difficult, and dis charges more easy ; but the law is still popular with credi tors, because of the serious check it imposes upon local preferences. It is likewise approved by those lawyers and judges who have had the most to do with its administra tion ; and it is not improbable that the effect of a few years more of its operation may be to render it indispensable to the commercial world.
Street, London, on the 13th of February 1743. He was the only son of William Banks, a gentleman of considerable landed property, whose father had derived his fortune prin cipally from successful practice as a physician in Lincoln shire, had been on one occasion sheriff of that county, and had for some years represented Peterborough in parliament. Very little is known of Joseph s early life and education. He appears to have been sent at the age of nine to Harrow, and after spending four years there, was removed to Eton. Here he seems first to have acquired a taste for botanical pursuits, and was accustomed to spend all his leisure hours in the beautiful lanes and fields round the school. Ho carried the same fondness for natural history to Oxford, where he was entered as a gentleman commoner of Christ s College ; and by his exertions a lecturer on natural science was for the first time brought into the university. After taking an honorary degree he left Oxford ; and at the age
of twenty-one he found himself possessed of ample means,
