Imágenes de páginas
PDF
EPUB

is erected under the authority of an Act of parliament, it cannot be supposed to be erected for other purposes than the public utility. Per Lawrence, J., Id. 352. If a bridge be built in a slight or incommodious manner, it cannot be imposed as a burthen on the county, but may be treated altogether as a nuisance, and indicted as such. Per Lord Ellenborough, Id.

And by the 43 Geo. 3, c. 59, s. 5, no bridge to be thereafter erected or built in any county, by or at the expense of any individual or private person or persons, body politic or corporate, shall be deemed or taken to be a county bridge, or a bridge which the inhabitants of any county shall be compellable or liable to maintain or repair, unless such bridge shall be erected in a substantial and commodious manner, under the direction, or to the satisfaction, of the county surveyor, or person appointed by the justices of the peace, at their general quarter sessions assembled, or by the justices of the peace of the county of Lancaster, at their annual general sessions.

The words of this Act comprehend every kind of person by whom, or at whose expense, a bridge shall be built. Trustees appointed under a local turnpike Act are "individuals" or "private persons" within the statute, and therefore a bridge erected by such trustees after the passing of the Act, and not under the direction of the county surveyor, is not a bridge which the county is bound to repair. R. r. Inhab. of Derby, 3 B. & Ad. 147, 23 E. C. L. A bridge built before the above statute, when widened since, is not a new bridge within the Act. R. v. Lancashire, 2 B. & Ad. 813, 22 E. C. L. So where the woodwork of a bridge was washed away, leaving the stone abutments, and the parish repaired the bridge, partly with the old wood and partly with new, this was held not to be a bridge "erected or built" within the above statute, but an old bridge repaired, and the county was held liable. R. v. Inhab. of Devon, 5 B. & Ad. 383, 27 E. C. L.; 2 N. & M. 212.

Proof of the liability of the defendants—public companies. In some ^2*cases where public companies have been authorized by the J legislature to erect or alter bridges, a condition has been imnlied that they shall keep such bridges in repair. The proprietors of the navigation of the river Medway were by their Act empowered to alter or amend such bridges and highways as might hinder the navigation; leaving them, or others as convenient, in their room. Having deepened a ford in the Medway, the company built a bridge in its place, which, being washed away, they were held bound to rebuild. Lord Ellenborough said that the condition to repair was a continuing condition, and that the company, having taken away the ford, were bound to give another passage over the bridge, and to keep it in repair. R. v. Inhab. of Kent, 13 East, 220. The same point was ruled in another case in which the company had made a cut through a highway, and built a bridge over it. The King v. The Inhab. of Lindsay, 14 East, 317. An Act of parliament empowered the commissioners for making navigable the river Waveney, to cut, etc., but was silent as to making

[ocr errors]

Offences against the bankrupt laws ....... 315

Proof of valid bankruptcy 319

obtaining goods on credit 321

concealment of property ...... 322

value of effects 323

intent to defraud 323

Examination of bankrupt 324

Venue 324

Arrest of bankrupt 324

Offences against the bankrupt laws. The "Debtors Act, 1869" (32 & 33 Vict. c. 62), which came into operation the same day as the "Bankruptcy Act, 1869" (32 & 33 Vict. c. 71), viz., January 1st, 1870, contains provisions with respect to the offences of fraudulent debtors which are very similar to those which were formerly contained in the Bankruptcy Acts. Words and expressions contained in the Debtors Act are to have the same meaning as the same words and expressions have in the Bankruptcy Act as they are there denned or explained. The Bankruptcy Act, 1869, was repealed by the Bankruptcy Act, 1883 (46 & 47 Vict. c. 52), which came into operation the 31st Dec., 1883, and which by s. 149 (2) enacts that where by any Act or instrument, reference is made to the Bankruptcy Act, 1869, the Act or instrument is to be construed and have effect as if reference was made therein to the corresponding provisions of this Act. By s. 163 (2) the provisions of the Debtors Act, 1869, as to offences by bankrupts are to apply to any person whether a trader or not, in respect of whoso estate a receiving order has been made, as if the term "bankrupt" in that Act included a person in respect of whose estate a receiving order had been made. As to the making, etc., of a receiving order, see s. 5, et seq.

By s. 11 of the Debtors Act, any person adjudged bankrupt, and any person whose affairs are liquidated by arrangement in pursuance of the Bankruptcy Act, 1869, shall, in each of the cases following, be deemed guilty of a misdemeanor, and on conviction thereof shall be liable to be imprisoned for any time not exceeding two years, with or without hard labor; that is to say, •

Sul)-s. 1. If he does not, to the best of his knowledge and belief, fully and truly discover to the trustee administering his estate for the benefit of his creditors all his property, real and personal, and how, and to whom, and for what consideration, and when he disposed of any part thereof, except such part as has been disposed of in the ordinary way of his trade (if any), or laid out in the ordinary expense *^lfi1 *0^" nis &nnly> unless the jury is satisfied that he had no -I intent to defraud. A disclosure under this sub-section is not restricted to property in possession of the bankrupt at the commencement of his bankruptcy. R. v. Mitchell, 50 L. J., M. C. 76; 10 Cox, C. C. R. 490, where the evidence on which the bankrupt was held to have been rightly convicted related to transactions respecting property disposed of some twelve months previously:

Sub-s. 2. If he does not deliver up to such trustee, or as he directs, all such part of his real and personal property as is in his custody or under his control, and which he is required by law to deliver up, unless the jury is satisfied that he had no intent to defraud:

Sub-s. 3. If" he does not deliver up to such trustee, or as he directs, all books, documents, papers, and writings in his custody or under his control relating to his property or affairs, unless the jury is satisfied that he had no intent to defraud:

Sub-s. 4. If after the presentation of a bankruptey petition by or [46 & 47 Vict. c. 52, s. 163 (1)] against him or the commencement of the liquidation, or within four months next before such presentation or commencement, he conceals any part of his property to the value of ten pounds or upwards, or conceals any debt due to or from him, unless the jury is satisfied that he had no intent to defraud:

Sub-s. 5. If after the presentation of a bankruptcy petition by or (46 & 47 Vict. c. 52, s. 163) against him or the commencement of the liquidation, or within four months next before such presentation or commencement, he fraudulently removes any part of his property of the value of 101. or upwards. Where the prisoner executed an assignment of the property on his farm to trustees for the benefit of nis creditors which was not registered as a bill of sale, and afterwards fraudulently removed stock from the farm to the extent of 10/. and then liquidated his affairs by arrangement, it was held that he could not properly be convicted under s. 11, sub-s. 5. The assignment, not having been registered as a bill of sale, was void as against the trustee in liquidation; but was otherwise in force; and the property in the stock removed was not the prisoner's, within the-section, but was at the time of the fraudulent removal the trustee's under the assignment. R, v. Creese, L. R. 2 C. C. 105; 43 L. J., M. C. 51.

Sub-s. 6. If he makes any material omission in any statement relating to his affairs, unless the jury is satisfied that he had no intent to defraud:

Sub-s. 7. If knowing or believing that a false debt has been proved by any person under the bankruptcy or liquidation, he fail for the period of a month to inform such trustee as aforesaid thereof:

Sub-s. 8. If after the presentation of a bankruptey petition by or (46 & 47 Vict. c. 52, s. 163) against him or the commencement of the liquidation he prevents the production of any book, document, paper, or writing affecting or relating to his property or affairs, unless the jury is satisfied that he had no intent to conceal the state of his affairs or to defeat the law:

Sub-s. 9. If after the presentation of a bankruptcy petition by or (46 & 47 Vict. c. 52, s. 163) against him or the commencement of the liquidation, or within four months next before such presentation or commencement, he conceals, destroys, mutilates, or falsifies, or is privy to the concealment, destruction, mutilation, or falsification of any book or document affecting or relating to his property or affairs, ""unless the jury is satisfied that he had no intent to conceal r*oi 7 the state of his affairs or to defeat the law: L

Sub-s. 10. If after the presentation of a bankruptcy petition by or (46 & 47 Vict. c. 52, s. 163) against him, or the commencement of the liquidation, or within four months next before such presentation or commencement, he makes or is privy to the making of any false entry in any book or document affecting or relating to his property or affairs, unless the jury is satisfied that he had no intent to conceal the state of his affairs or to defeat the law:

Sub-s. 11. If after the presentation of a bankruptcy petition by or 46 & 47 Vict. c. 52, s. 163) against him or the commencement of the iquidation, or within four months next before such presentation or commencement, he fraudulently parts with, alters, or makes any omission, or is privy to the fraudulently parting with, altering, or making any omission in any document affecting or relating to his property or affairs:

Sub-s. 12. If after the presentation of a bankruptcy petition by or (46 & 47 Vict. c. 52, s. 163) against him or the commencement of the liquidation, or at any meeting of his creditors within four months next before such presentation or commencement, he attempts to account for any part of his property by fictitious lasses or expenses:

Sub-s. 13. If within four months next before the presentation of a bankruptcy petition against him or the commencement of the liquidation, he, by any false representation or other fraud, has obtained any property on credit and has not paid for the same:

Sub-s. 14. If within four months next before the presentation of a bankruptcy petition by him or (46 & 47 Vict. c. 52, s. 163) against him or the commencement of the liquidation, he, being a trader, obtains, under the false pretence of carrying on business and dealing in the ordinary way of his trade, any property on credit and has not paid for the same, unless the jury is satisfied that he had no intent to defraud:

Sub-s. 15. If within four months next before the presentation of a bankruptcy petition by him or (46 & 47 Vict. c. 52, s. 163) against him or the commencement of the liquidation, he, being a trader, pawns, pledges, or disposes of otherwise than in the ordinary way of his trade any property which he has obtained on credit and has not paid for, unless the jury is satisfied that he had no intent to defraud:

Sub-s. 16. If he is guilty of any false representation or other fraud for the purpose of obtaining the consent of his creditors or any of them to any agreement with reference to his affairs or his bankruptcy or liquidation.

It is sufficient in arrest of judgment upon an indictment for an offence under sub-section 13 to allege that the bankrupt "by certain false representations did obtain property on credit and has not paid for the same." R. v. Watkinson, 12 Cox, C. C. 271, C. C. R.

12. If any person who is adjudged a bankrupt or has his affairs liquidated by arrangement after the presentation of a bankruptcy petition against him or the commencement of the liquidation, or within four months before such presentation or commencement, quits England and takes with him, or attempts or makes preparation for quitting England and for taking with him, any part of his property to the amount of 20L or upwards, which ought by law to be divided amongst his creditors, he shall (unless the jury is satisfied that he

81 *na(l no intent to defraud) be guilty of felony, punishable with -I imprisonment for a time not exceeding two years, with or without hard labor.

Since the passing of the 37 & 38 Vict. c. 62, an infant cannot be convicted of appropriating any part of his property " which ought by law to be divided amongst his creditors" where the debts proved against his estate are only trade debts and it does not appear there are any debts for necessaries supplied to him. R. v. Wilson, 5 Q. B. D. 28; 49 L. J., M. C. 13.

13. Any person shall in each of the cases following be deemed guilty of a misdemeanor, and on conviction thereof shall be liable to be imprisoned for any time not exceeding one year, with or without hard labor; that is to say,

Sub-s. 1. If in incurring any debt or liability he has obtained credit under false pretences, or by means of any other fraud:

Sub-s. 2. If he has, with intent to defraud his creditors, or any of them, made or caused to be made any gift, delivery, or transfer of, or any charge on his property:

Sub-s. 3. If he lias, with intent to defraud his creditors, concealed or removed any part of his property since or within two months before the date of any unsatisfied judgment or order for payment of money obtained against him.

An indictment under sub-section 1 for obtaining credit "by means of fraud other than by false pretences," was held bad for not setting out the means. R. v. Bell, 12 Cox, C. C. 37; but see R. v. Watkinson, supra.

Sect. 13 applies to " any person " whether bankrupt or not. Where a judgment had been recovered agaiast a person not a bankrupt, and on the very next night he removed his property from his house in order to defeat the creditor who had obtained the judgment, it was held that he could be brought within sub-s. 3; but inasmuch as the indictment charged an intent to defraud his "creditors," and there was no proof, beyond the intention to defraud the particular judgment creditor which was not left to the jury as evidence of an intent to defraud creditors generally, and no evidence to show there were other creditors, it was held that the conviction could not be sustained. R. v. Rowlands, 8 Q. B. D. 530; 51 L. J., M. C. 51.

Sect. 14 relates to false declarations by creditors, see post, "False Declarations."

« AnteriorContinuar »