The thirty-ninth section determines who may be made a bankrupt against his will1 They are persons who seek to defraud their creditors in the ways pointed out, ".or who, being a bank, banker, broker, merchant, trader, manufacturer, or miner, has fraudulently stopped payment; or has stopped or suspended and not resumed payment, within a period of forty days, of his commercial paper (made or passed in the course of his business as such); or who, being a bank or banker, shall fail for forty days to pay any deposit, upon demand of payment" An important condition is, however, annexed by the statutes of 1874 to involuntary bankruptcy. Such person is to be adjudged a bankrupt only "on the petition of one or more of his creditors, who shall constitute one-fourth thereof, at least, in number, and the aggregate of whose debts provable under this act amounts to at least one-third of the debts so provable."
There have been many nice questions as to who came under the definition of "trader," especially in England, (n) 2
(n) The following references include all the cases we have found which bear distinctly on this question: Ex parte Wilson, 1 Atk. 218; Ex parte Wyndham, 1 Moot. D. & D. 146; Ex parte Hall, 3 Deac 405; Ex parte Brnndrett. 2 id. 219; Ex parte Brown, 2 Mont. D. & D. 758; Pott v. Turner, 6 Bing. 702; Highmore v. Molloy, 1 Atk. 206; Rawlinson v. Pearson, 5 B. & Ald. 124; Ex parte Stevens,
4 Madd. 256; Ex parte Phipps, 2 Deac. 487; Ex parte Harvey, 1 id. 570; 2 Mont. & A. 593; Hankey v. Jones, Cowp. 745; Ex parte Gem, 2 Mont. D. & D. 99; Ex parte Moore. 2 Deac. 287; Ex parte Nei-rinckx, 2 Mont. & A. 384; Ex parte Edwards. 1 Mont. D. & D. 3; Ex parte Stewart, 18 L. J. Bankr. 14; Stewart p. Sloper, 3 Exch. 700; 1 Cooke, B. L. 49; Chapman v. Lamphire, 3 Mod. 155; Kir1 By insolvency, as used in the bankrupt act when applied to traders and merchants, is meant inability of a party to pay his debts as they become due in the ordinary course of business. Toof v. Martin, 13 Wall. 40. "A trader is insolvent when he is unable to pay his debts as they mature in the ordinary course of his business, and not merely when his liabilities exceed his assets." Per Lowell, J., in Sawyer v. Turpin, 2 Lowell, 29. - K.
2 A railroad contractor Is not a trader within the bankrupt act, nor is the suspension of his commercial paper an act of bankruptcy. Re Smith, 2 Lowell, 69. A retiring partner who permits his name to be used in the firm can be made a bankrupt by creditors who have relied on his name. Be Krueger, 2 Lowell, 66. A railroad company's suspension of the payment of its commercial paper for fourteen days has been held not to constitute an act of bankruptcy. Winter v. Iowa, Ac. R. Co. 2 Dillon, 487; nor that of an accommodation indorser, In re Clemens, 2 Dillon, 538. Contra, Re Chandler, 1 Lowell, 478. It is not enough that a person was a "trader" at the time a debt was contracted, but he must be a "trader" at the time he gives a note therefor, to constitute its suspension of payment an act of bankruptcy. In re Jack. 1 Woods, 549. - K.
We give in our note an interesting case in which the question arose under our own statute, (o)
It has been held, under this section, that a stoppage, if fraudulent, becomes an act of bankruptcy, if continued fourteen days, (p)l We think the ruling that it must be fraudulent in its inception, right (q) But should admit that a continuance of the stoppage for fourteen days raised a presumption of fraud, and required full explanation, (r)
A question has arisen whether the court would sustain a petition to put an insane person into bankruptcy. It seems to be the law that an insane person cannot commit an act of bankney v. Smith, 1 Ld Raym 741; Patman v. Vaughan, 1 T R. 572; Smith v. Scott, 9 Bing. 14, Ex parte Birch, 2 Mont. D. & D. 659. See also Ex parte Willes, 2 Deac. 1; Ex parte Bowers, id 99; Gibson v. King, 10 M. & \V. 667: Ex parte Lewis, 2 Deac 318; Cannan v. Denew, 10 Bing. 292; Ex parte Hammond, 1 De G 93; also Carter v. Dean, 1 Swanst. 64; Ex parte Bowes, 4 Ves. 162; Ex parte Wis-would, Mont. 263; Adams v. Malkin, 3 Camp. 538 ; Lett v. Melville, 3 Man. & G. 52; Hansom v. Harrison. 1 Esp 555; In re Lewis, 2 Rose, 59; Hurd v. Brvdges, Holt, N. P. 654 ,• In re Warren, 2 Sch. & L. 414; Hutchinson v. Gascoigne, Holt, N. P 507; Ex parte Bath, Mont. 82; Ex parte Herbert, 2 Rose, 248; Hale v. Small,
2 Brod. & B. 25; Parker v. Wells, Cooke, 58; Snmmersett v. Jarvis, 3 Brod. & B. 2; Bolton v Sowerby, 11 East, 274; Patten v. Browne, 7 Taunt. 409; Ex parte Salkeld, 3 Mont D. & D 125, Ex parte Atkinson, 1 Mont. D. & D. 300; Dally v. Smith, 4 Burr. 2148; Heanney v Birch,
3 Camp. 233; Port v. Turton, 2 Wilson, 169; Paul v. Dowling, 3 C. & P. 500; Ex parte Burgess, 2 Gill & J. 183; Heane v. Rogers, 9 B. & C 577; Er parte Bowers, 2 Deac. 99; Patman v. Vaughan, 1 T. R. 572; Er parte Cromwell, 1 Mont. D. & D, 158; Ex parte Blackmore, 6 Ves. 3; Hanker v. Jones, Cowp. 748; Bolton v. Sowerby, 11 East, 274, Gale v. Half-Kight,3 Stark. 56; Ex parte Lavender, 4 Deacon & C. 487, Valentine v. Vaughan, Peake, 76; Newton v. Trigg, Salk. 109; Mayo v. Archer, 1 Stra. 513; Stewart v. Ball, 2 N. R. 78; Cobb v. Symonds, 5 B. & Ald 516; Saunderson v. Howies, 4 Burr. 2066: Ex parte Meymot, 1 Atk 196; Milhkin v. Brandon, 1 C. & P. 380; Colt v. Netter-vill, 2 P Wms. 308; Hobbs v, Sheffield,
87 Ga. 455. The meaning of the word trader was well set forth by Mr. Justice Thompson, in the Circuit Court of the United States. Wakeman v Hoyt, 5 Law Reporter, 310. The doctrine of the court was, that any person engaged in business, requiring the purchase of articles to be sold again, either in the same or in an improved shape, must be regarded as using the trade of merchandise, within the intent of the bankrupt law. The learned opinion of Concklinq, J., in the matter of Eeles, 5 Law Reporter, 273, where he held, that a distiller, who bought grain and converted it into alcohol, and sold the alcohol, was a trader.
(o) Ex parte Chandler, Massachusetts, 4 Bank. Reg. 66, the court say: "The only business at all approaching trade in which he has been engaged, is in preparing for market, through his agents, boards and shingles, made at his saw-mill in or near Malone, New York, and selling the same by himself and others, which he has done on a considerable scale, and as one of his chief sources of revenue. He owns a Urge tract of woodland there, and nearly all the lumber sawed and prepared at his mill is the growth of his own land." On these facts he was adjudged not to he a trader, as a person must buy as well as sell to be a trader; but he was adjudged to be a manufacturer; and as such was declared a bankrupt. See 1 Com Dig B. A.
(p) Ex parte Wells, North. D. New York, 16 Am. L. Reg 163
(q) Ec parte Jersey Glass Co, New Jersey, 16 Am. L. Reg 419; Ec parte Leeds, East. D. Penn 16 Am L. Reg. 693; Gillies v. Cone, South. D. New York, 2 Bank Reg. 10.
(r) Er parte Bullard, Connecticut, 2 Bank. Reg. 84.
1 If a "trader" has a bona fide belief that he is not liable on certain commercial paper of his, the suspension by him of its payment for more than fourteen days is not an act of bankruptcy. In re Munn, 3 Bissell, 442. - K.
ruptcy. But if a sane person commits such an act, and afterwards becomes insane, he may be adjudged a bankrupt, and his rights protected by his guardian, (rs)l