the manner in which they arose in support of the averment that the conveyance was made with intent to defraud creditors." An indictment for fraudulently conveying real estate without giving notice of an incumbrance should describe the property in terms sufficiently certain to identify it.80 The indictment must not be duplicitous, but where the substantive offense is the fraudulent removal of a debtor's property, an indictment including several methods or phases of removal in one count is not bad. The allegations of the indictment must be supported by the proofs at the trial in order to be sustained. § 13. Defenses. In an indictment for concealing the goods of a debtor, to prevent their being taken for his debts, it is no defense to show that the defendant, at the time of the concealment, held the goods under a fraudulent mortgage from the debtor, duly executed and recorded; nor that the defendant, previous to the concealment, was summoned as trustee of the debtor in a process of foreign attachment, which was pending at the time of the concealment.83 14. Evidence.-On the trial of an indictment for conveying property with intent to defraud creditors, declarations of a grantor before the conveyance respecting the estate conveyed and tending to prove a fraudulent intent on his part are admissible," 82. Commonwealth v. Williams, 127 Mass. 285; Commonwealth v. Brown, 81 Mass. 189. 83. State v. Johnson, 33 N. H. 441, to show that the goods concealed were the property of the debtor, within the meaning of the statute, it is competent to prove that a mortgage, previously made of the same goods to the defendant, by the debtor, was fraudulent, though the taking of such mortgage by the defendant was a distinct statutory offense. 84. Loomis v. People, 19 Hun (N. 85 but answers given by the debtor in supplementary proceedings against him cannot be used against him in any criminal proceeding. The general rules of evidence relating to the admissibility of evidence in criminal actions apply to criminal prosecutions for fraudulent conveyances, and any relevant testimony or evidence tending to prove material facts in issue is admissible. For example, evidence of other sales and dispositions of his property by the debtor, to defraud his creditor, so connected in time and circumstances as to constitute parts of a general scheme of fraud, is competent to prove that the transaction immediately in question was fraudulent,86 but on the trial of an indictment charging defendant with conveying his property at a particular time, therein specified, with intent to defraud his creditors, debts contracted by him after said time cannot be proved. Under an indictment for conveying incumbered property without informing the grantee of the incumbrance, where there was evidence that from loss of memory the grantee might not have been aware of the incumbrance, evidence that just before the conveyance defendant had met with a large loss of property was admissible.88 Evidence is. also admissible to show that, as to the second conveyance, there was no incumbrance, in law or in fact, by reason of the first conveyance.89 A debtor proceeded against on the ground of having removed his property may show that the removal consisted in taking it with him on changing his residence, and that the intended change was known in the neighborhood.90 87 15. Trial and review.-A refusal to give an instruction to the effect that, to find the defendant guilty, the jury must be satisfied, not only that defendant transferred his property, but Y.), 601; Reg. v. Chapple, 17 Cox C. 85. Loomis v. People, 19 Hun (N. Y.), 601. 86. State v. Johnson, 33 N. H. 441. 87. Loomis v. People, 19 Hun (N. Y.), 601. 88. Commonwealth V. Brayman, 136 Mass. 48. 89. Commonwealth v. Harriman, 127 Mass. 287. 90. Thomas v. People, 19 Wend. (N. Y.) 480. that such transfer was made with fraudulent intent to hinder or delay his creditors, or some of them, is not error, where the court has already submitted to the jury, by instruction on its own motion, the question of the fraudulent intent of the defendant." Since the power of the appellate court to hear and dispose of the case finally involves the power to order such action as will make its judgment effective, where the Supreme court has affirmed the action of a circuit court commissioner ordering the imprisonment under the fraudulent debtor's act of a debtor who has assigned his property in fraud of creditors, it may order the issuance of an order or warrant of commitment to carry out a judgment of affirmance." 91. Herold v. Smith, 21 Neb. 50, 92. Smit v. People, 15 Mich. 516. 31 N. W. 258. CHAPTER XXI. FRAUDULENT CONVEYANCES UNDER THE BANKRUPTCY LAWACTS OF BANKRUPTCY. Section 1. General nature and effect of the bankruptcy law. 3. Interpretation or construction of statute. 4. Important statutory definitions-Insolvency. 5. Definition of conceal. 6. Definition of transfer. 7. Definition of preference. 8. Definition of property. 9. Acts of bankruptcy-Statutory provision. 10. Acts of bankruptcy in general. 11. Who may commit acts of bankruptcy. 12. First act of bankruptcy-A fraudulent transfer. Subs. a(1). 13. Intent. 14. Insolvency. 15. Meaning of words and phrases. 16. Concealment and removal. 17. Second act of bankruptcy-A preferential transfer. Subs. a (2). 18. Intent to prefer. 19. Transfer of property. 20. Third act of bankruptcy-Preference through legal proceedings. Subs. a (3). 21. Meaning of words. 22. Provision liberally construed. 23. Fourth act of bankruptcy-A general assignment. Subs. a (4). 24. What is a general assignment. 25. What is not a general assignment. 26. Amendment of 1903-Receiver or trustee in charge of property. 27. Meaning of words-Precedents. 28. Fifth act of bankruptcy—A confession of bankruptcy. Subs. a (5). 30. Solvency and the second and third acts of bankruptcy. Section 1. General nature and effect of the Bankruptcy law. -"Bankruptcy" is an ancient English word coextensive in mean ing with "insolvency," but it is not synonymous with "insolvency," as insolvency does not make one a bankrupt without some act done to the injury of creditors.2 Bankruptcy is the state or condition of a bankrupt or the status of one who has been made the subject of a bankrupt law.3 A" bankrupt law means a statutory system under which an insolvent debtor may, either on his own petition or that of his creditors, be adjudicated bankrupt by a court of competent jurisdiction, which thereupon takes possession of his property, distributes it equally among his creditors, and discharges the bankrupt and his after-acquired property from debts existing at the commencement of the bankruptcy proceedings.1 A "bankrupt" includes a person against whom an involuntary petition, or an application to set a composition aside, or to revoke a discharge, has been filed, or who has filed a voluntary petition, or who has been adjudged a bankrupt. In England, in the United States, and in nearly all civilized countries bankruptcy laws similar in their essential characteristics have from time to time been enacted. The power vested in Congress 1. Kunzler v. Kohaus, 5 Hill (N. Y.), 317, 320. 2. Sackett v. Andross, 5 Hill (N. Y.), 327, 343, 3 N. Y. Leg. Obs. 11. 3. Bouvier L. Dict.; Sackett v. Andross, supra. 4. Grunsfeld v. Brownell (N. M.), 76 Pac. 310; 5 Cyc. 237. 5. Bankr. Act, 1898, section 1(4). See also Barr v. Bartram, etc., Mfg. Co., 41 Conn. 502; In re Scott, 21 Fed. Cas. No. 12,518, a "bankrupt is one unable or wilfully refusing to pay debts in full. 6. In the United States there have been four bankruptcy laws, including the one now in force. The first act was passed April 4, 1800, and repealed December 19, 1803. 2 U. S. Stat. at L., pp. 19, 248. It made no provision for voluntary bankruptcy and was only ap plicable to merchants, traders, bankers, etc. 5 U. S. Stat. This act pro The second of these laws was enacted August 19, 1841, and repealed March 3, 1843. at L., pp. 440, 614. vided for both voluntary and involuntary bankruptcy, and was broader in its provisions than the act of 1800. The third act was passed March 2, 1867, was subsequently amended June 22, 1874, and finally repealed to take effect September 1, 1878. 14 U. S. Stat. at L., p. 517; 20 U. S. Stat. at L., p. 99; U. S. Rev. Stat. (1878), §§ 4972-5132. The law now in force in the United States was enacted July 1, 1898, 30 U. S. Stat. at L., p. 544. This act is in many respects similar to the act of 1867, so that decisions under the earlier act have been constantly |