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sum; it must not be contingent (In re Miller, [1901] 1 Q. B. 51; Re Stables, Ex parte Smith & Sons, 1889, 6 Mans. 68), and it must not be statute-barred (Ex parte Tynte, 1880, 5 Ch. D. 125), or founded on an illegal consideration. If the petitioner is a secured creditor, he must either give up or value his security (B. A. 1883, s. 6 (2)).

The third statutory condition, (1) (c), is that the act of bankruptcy on which the petition is grounded must have occurred within three calendar months before the presentation of the petition, which means exclusive of the day on which the petition is presented (In re Hanson, 1887, 4 Morr. 98). The limit has been reduced successively from twelve months to six, and from six to three. Clearly, a person ought not to be kept with a bankruptcy petition hanging over his head longer than can be helped.

The last statutory condition is, that the debtor "is domiciled in England, or, within a year before the date of the presentation of the petition, has ordinarily resided or had a dwelling-house or place of business in England." See DOMICILE. It is not the policy of our law to administer the estates of foreign debtors. A foreigner who has never been in this country, and has himself personally done no act within the jurisdiction of the Bankruptcy Court of this country, cannot be made a bankrupt by reason of his having traded through an agent in this country, and having done an act in his own country which, if done here, would have been an act of bankruptcy (Cooke v. Charles Vogeler Co., 1901, 8 Mans. 113; Re Pearson, Ex parte Pearson, 1892, 9 Morr. 185). If, however, a foreigner comes and trades in England, and commits an act of bankruptcy in England, he is subject to the bankruptcy law here. A foreigner who, for the purposes of litigation, has stayed in England at hotels during nine months of the year immediately preceding the date of the presentation of a bankruptcy petition against him, has "ordinarily resided” in England within the meaning of the subsection (Re Bright, Ex parte Bright, 1903, 51 W. R. 343, C. A.). So where a foreigner took furnished rooms in London for three months while prosecuting an action here, and lived in them with his wife and children, he was held to have a "dwellinghouse" here (In re Hecquard, 1890, 24 Q. B. D. 71); and see In re Norris, 1887, 5 Morr. 111. The onus of proving an English domicile is, in the first instance, on the petitioning creditor (In re Cunning, 1884, 13 Q. B. D. 418; Re Duleep Singh, Ex parte Cross, 1890, 7 Morr. 228).

A creditor's petition must be in the form No. 10, in the Appendix of Forms to the Act, see p. 71. It may be written or printed, or partly written and partly printed. It must be sealed (B. R. 14) and attested. No alterations, interlineations, or erasures are to be made without leave of the registrar. The petition must be verified by the affidavit of the creditor, or of some person on his behalf having knowledge of the facts (Re Sanders, Ex parte Sanders, 1894, 1 Mans. 382), and when it is filed there are to be lodged with it two or more copies, to be sealed and issued to the petitioner. Upon presentation, the petitioner is to deposit with the official receiver £5, to cover fees and expenses to be incurred by the official receiver. After presentation and before sealing the statements in the petition are investigated by the registrar, and where some of the statements cannot be verified by affidavit, witnesses may be summoned to prove them (B. R. 152). The reason for this care on

the part of the Court before it sanctions a petition by sealing it, is that a bankruptcy petition is a very serious proceeding. It involves an

imputation of insolvency, and may inflict irremediable injury on a debtor's credit. A petition being presented by inadvertence in the wrong Court, may still be heard (In re Brightmore, 1884, 1 Morr. 253). Once presented, the petition cannot be withdrawn without the leave of the Court. As a rule, a creditor's petition is not to be heard until the expiration of eight days from service, but there are exceptions, as where the debtor has filed a declaration of inability to pay debts or has absconded (B. R. 157). A creditor's petition is to be personally served by delivering to the debtor a sealed copy of the filed petition. It is to be served upon the debtor by an officer or bailiff of the Court, or by the creditor, or his solicitor or some person in their employ, and service of the petition is to be proved by affidavit (see p.72) with a sealed copy of the petition attached, which is to be filed in Court forthwith after the service. If a debtor against whom a bankruptcy petition has been presented dies, the proceedings are to be continued unless the Court otherwise orders (B. R. 108). A merely formal defect or irregularity is not to invalidate any proceeding in bankruptcy (B. A. s. 143), but there is a broad distinction, as was said by Lord Justice Lopes, "between an irregularity that may prejudice or embarrass the party complaining of it, and an irregularity which is purely technical and cannot have any injurious effect" (In re Low, [1895] 1 Q. B. 734; In re Bates, 1887, 4 Morr. 192). In the former class of cases the Court is properly strict, and will not allow an amendment. Thus it has been held fatal to a petition that the bankruptcy notice claimed £45 more than was due (In re Miller, 1893, 10 Morr. 183).

Who may Petition.-An infant may present a bankruptcy petition (Ex parte Brocklebank, 1877, 6 Ch. D. 358). So may a married woman, as a feme sole. So may a lunatic, by his committee or curator bonis (B. A. 1883, s. 148; B. R. 271A). A company registered under the Companies Act, 1862, petitions by its secretary, or other officer duly appointed under the seal of the company to take the proceedings (In re Whitley, 1891, 8 Morr. 149; In re J. G. Tomkins & Co., 1901, 8 Mans. 132), but the petition must be in the company's name (In re Bassett, Ex parte Lewis, 1896, 2 Mans. 177), and the officer must be prepared with proof of his authority (Re Sanders, Ex parte Sanders, 1894, 1 Mans. 382). An executor may present a petition (Ex parte Paddy, 1818, 3 Madd. 241; 56 E. R. 498), but he must obtain probate before adjudication (Roger v. James, 1819, 7 Taun. 147). A trustee may petition, but if he is bare legal trustee for an absolute beneficial owner, he must join such beneficial owner (In re Adams, 1878, 9 Ch. D. 307; In re Hastings, 1885, 14 Q. B. D. 184), the reason being that the debtor might have a good defence as against the cestui-que trust, though not against the trustee, but this does not apply if the beneficial owner is a person under disability. If the trustee is also beneficial owner of enough of the debt to support a petition, he need not join the owner of the other part (In re Gamgee, 1891, 8 Morr. 182). The King's proctor may present a petition in respect of taxed costs ordered to be paid him (Ex parte Rayner, 1878, 37 L. T. 38). A surety can only petition against his co-surety when he has paid more than his share of the debt remaining due to the creditor (In re Snowdon, 1881, 17 Ch. D. 44), for until then he has no legal or equitable debt. A receiver appointed by the Court to get in outstanding assets cannot present a bankruptcy petition against a person who has such assets in his hands, for the receiver is not a 'creditor" within

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secs. 5, 6 (1) of the Bankruptcy Act, 1883. There is no debt due to him personally. He is the mere hand of the Court (In re Sacker, 1889, 22 Q. B. D. 179; In re Muirhead, 1876, 2 Ch. D. 22). But it is different if the receiver is an actual assignee of the debt (Re Macoun, 1904, 11 Mans. 264). So if the receiver is the holder of a bill of exchange on which the debtor is liable, he is then a creditor qua holder not quá receiver, and can petition (Ex parte Harris, 1876, 2 Ch. D. 423). A foreigner may petition in respect of a foreign debt (Re Meyer, Ex parte Pascal, 1875, 1 Ch. D. 509). A secured creditor cannot petition unless he is willing to give up his security, or to value it and petition for the balance only (B. A. s. 6 (2)). A creditor who has been party or privy to a deed of assignment by a debtor, for the benefit of his creditors, cannot avail himself of the assignment as an act of bankruptcy. It would be inequitable (In re Stray, 1866, L. R. 2 Ch. 374; In re Adamson, Ex parte Viney, 1895, 2 Mans. 153; Re Woodroff, Ex parte Woodroff, 1897, 4 Mans. 46), but not if the creditor has only negotiated (Re Brindley, Ex parte Taylor & Co., 1905, 12 Mans. 387). If a bankruptcy petition is presented for a purpose foreign to the bankruptcy law-to extort money, for instance (In re Otway, [1895] 1 Q. B. 812), or maliciously (Lecompte v. Jacobs & Miller, 6th Nov. 1896)-the Court will dismiss it as an abuse of the process of the Court, or restrain its presentation; but it is not necessarily an abuse for a person to buy a debt in order to petition (Ex parte Baker, 1888, 5 Morr. 5).

PROCEDURE ON PETITION.-When a bankruptcy petition is presented against a debtor, and he intends to show cause against it, his proper course is to file a notice with the registrar, specifying the statements in the petition which he intends to deny or dispute (see p. 73), and to transmit by post to the petitioning creditor and his solicitor, if known, a copy of the notice three days before the day on which the petition is to be heard (B. R. 160). Thereupon, at the hearing, the petitioning creditor is put to prove his debt and the act of bankruptcy, or such of the matters as the debtor disputes (B. R. 162), and for this purpose the statutory affidavit verifying the statements of the petition is not sufficient (In re Sanders, 1894, 1 Mans. 382). The statutory affidavit (see p. 72) is nothing more than a guarantee of the bona fides of the petition. The petitioner ought, therefore, to go armed with proof of all the essential matters-the act of bankruptcy, the petitioning creditor's debt-if the petition is by the secretary of a company, of the secretary's authority to present it (In re Sanders, supra), or of the debtor's domicile, if likely to be challenged (In re Barne, 1886, 16 Q. B. D. 522). It is furthermore the duty of the petitioning creditor, and has always been, to attend at the hearing of the petition. Bankruptcy is a very serious matter. The petition, and the receiving order which lead up to it, are very serious too, and the petitioning creditor ought therefore to be present —whether he is a witness or not-to answer questions put to him by the Court or by the debtor (In re Purrett, 1895, 2 Mans. 403); and it makes no difference for this purpose that the petitioner's debt is a judgment debt, because the Court can and does go behind the judgment, if necessary, to satisfy itself that there is a real debt and not one obtained by collusion or fraud (In re Lennox, 1886, 16 Q. B. D. 315), or on a non-enforceable contract, as for jewellery supplied to an infant (In re Onslow, 1875, L. R. 10 Ch. 373). Some evidence of collusion or fraud must, however, be given before the Court will go behind the judgment (In re Flatau, 1889,

22 Q. B. D. 83; In re Saville, 1887, 4 Morr. 277). A judgment being irregular or wrong in point of form is not a ground for going behind it (Re Beauchamp, Ex parte Beauchamp, [1904] 1 K. B. 572). The Court, if not satisfied of the debt, may dismiss the petition or stay proceedings on it, leaving the question of debt to be tried in an action, for a bankruptcy petition is not the proper mode of enforcing a disputed debt any more than a winding-up petition is in the case of a company.

Even if the debt is proved, a receiving order is not ex debito justitiæ, if the Court is satisfied that the debtor is able to pay his debts (B. A. s. 7 (3)), or that, for any other reason, an order ought not to be made. Where, for instance, the debtor being made a bankrupt would have the effect of forfeiting his life interest-the only asset-as the petitioning creditor knew, the Court refused an order (In re Otway, [1895] 1 Q. B. 812. See, however, Re Birkin, 1896, 3 Mans. 291). So, if the Court is satisfied that there are and will be no assets, and that the only effect of a receiving order will be to heap up costs, the Court will not do what Jessel, M.R. (In re Robinson, 1883, 22 Ch. D. 816), called “a vain thing" (In re Betts, 1896, 3 Mans. 287; In re Birkin, supra); but the Court will be very circumspect in dismissing a petition on the ground of "no assets," because there is no knowing what the stress of the public examination and the machinery of discovery in bankruptcy may bring to light (In re Leonard, 1896, 3 Mans. 43; Re Murietta, 1896, 3 Mans. 35). The debtor having only one creditor is an element to be considered by the Court, but it is no sufficient ground for saying that bankruptcy proceedings cannot be maintained against the debtor (In re Hecquard, 1890, 24 Q. B. D. 71). A receiving order is not to be made against a debtor for non-compliance with a bankruptcy notice, where the debtor has applied to set aside the notice, until after the hearing of the application (B. R. 180), but the mere fact that an appeal is pending from the judgment founding a bankruptcy notice is no ground for staying proceedings on the petition (In re Flatau, 1889, 22 Q. B. D. 83); but it is a matter for the discretion of the registrar in such a case whether he will make a receiving order or not (In re Rhodes, 1885, 14 Q. B. D. 49). If the petition is adjourned, there must be a further affidavit of the debt being due down to the date of the hearing (In re Stables, 1894, 1 Mans. 68).

If the debtor does not appear, the Court may make a receiving order on proof of the statements in the petition. If the non-appearance is due to an accident, the petition may be re-heard (In re Phillips, 1875, 44 L. J. Bky. 11).

Receiving Order in Lieu of Committal.-Independently of the normal proceeding by petition founded on an act of bankruptcy, the Court has jurisdiction, where a judgment creditor applies to the Court to commit the debtor under sec. 5 of the Debtors Act, 1869, to decline to commit, and in lieu thereof to make a receiving order against the debtor (B. A. s. 103 (5); Re Fryer, 1886, 17 Q. B. D. 718; Re Andrews, 1885, 2 Morr. 244; Re Hughes, 1887, 4 Morr. 236); but the Court must have evidence as to means on which it might commit (Re a Debtor, Ex parte the Debtor, 1904, 12 Mans. 17). The judgment creditor must be a consenting party, and must pay the prescribed fee. The bankruptcy in such a case commences at the date of the receiving order, unless the debtor has committed an act of bankruptcy within the preceding three months, in which case it relates back to such act of bankruptcy (B. A. 1890, s. 20). The creditor, under this form of proceeding, must be a judgment creditor

(Re Fryer, Ex parte Fryer, 1886, 3 Morr. 231); but the judgment debt need not amount to £50; nor is it necessary that the debtor should be domiciled in England (Re Matteo Clarke, Ex parte Schultze & Co., 1897, 4 Mans. 231). If the Court making the order is not the Court to which a bankruptcy petition against the debtor would properly have been presented, the matter is to be transferred to the proper Court (B. R. 360 ; Ex parte Hughes, 1887, 4 Morr. 73).

DEBTOR'S PETITION.-A debtor may now present his own petition in bankruptcy, but this was not always the case. From an early period, however, Parliament had, as Mr. Justice Vaughan Williams pointed out in a case (In re Painter, 1894, 1 Mans. 499, 501), recognised that the State has an interest in a debtor being relieved from his liabilities— that he is not to be weighed down by a burden of indebtedness, so as to be incapacitated from discharging the duty of a citizen, and employing himself in honest industry. In pursuance of this policy, the law was gradually modified. First came the Acts for the Relief of Insolvent Debtors.

By the Bankruptcy Act of 1849, a trader was permitted to present a petition, but only if he showed assets to pay five shillings in the pound; and by the Act of 1861 the privilege was not to be used for any purpose foreign to the policy of the bankruptcy law. In the Act of 1869 no provision was made for a debtor presenting his own petition, perhaps because the Act contained abundant provision for liquidation. Whatever the reason, the legislature has, in the Act of 1883, reverted to the policy of the Bankruptcy Act, 1861, and has done so without imposing any restrictions, and debtors' petitions are now exceedingly numerous3226 altogether were presented in 1904 in the High Court and the County Courts. "The Court," says sec. 8, "shall thereupon" (ie. presentation of the debtor's petition) "make a receiving order." The abovementioned case (In re Painter, supra) is a good illustration.

The debtor Painter was a retired police-constable, and was entitled to an inalienable pension, under the provisions of the Police Act. In addition to his pension he was doing a profitable business as a private inquiry agent. In January 1894 Painter was sued in an action for slander by one Blizzard, and £290 damages were recovered against him. Painter did not pay the damages, and the plaintiff in the action obtained from the County Court an order for payment of the debt by monthly instalments; and on default by Painter, in payment of the first instalment, applied for an order of committal. Painter thereupon filed his own petition in bankruptcy, and was adjudicated a bankrupt, with assets £10, and no creditors other than the plaintiff in the slander action. The County Court judge annulled the adjudication, as an abuse of the bankruptcy law; but a Divisional Court, on appeal, reversed his decision and sustained the adjudication, notwithstanding the fact that it enabled the debtor to get rid of the punitive process of the Court against him, and enjoy his pension free from his debts and the provisions of the Debtors Act. This is a striking instance of the policy of the law, of freeing a debtor from his liabilities. The fact that the debtor comes to the Court to protect himself, for his own benefit, is no ground for refusing an adjudication, for a benefit to the debtor is not foreign to the objects of the bankruptcy law. The Court is not bound, however, to make a receiving order on a debtor's own petition, if such petition is an abuse of the process of the Court (In re Bond, 1887, 5 Morr. 146, 150);

VOL. II.

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