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before the public examination is concluded; that is, until a searching investigation has been instituted into his affairs. Twenty-eight days' notice of the time and place of hearing is to be given by the registrar to the official receiver and trustee, and the official receiver is forthwith to send notice of the same to the Board of Trade for gazetting (B. R. 235). Fourteen days' notice of the hearing (Form 61), is also to be sent by the official receiver to every creditor (B. R. 235 (2)). The Court is, at the hearing of the application, to take into consideration a report of the official receiver as to the bankrupt's conduct and affairs, including a report as to the bankrupt's conduct during the proceedings. Armed with these materials, the Court is to hear the application in open Court, and may either grant or refuse an absolute order of discharge, or suspend the operation of the order for a specified time, or grant an order of discharge, subject to any conditions with respect to any earnings or income which may afterwards become due to the bankrupt, or with respect to his after-acquired property. This invests the Court with a large discretion, but this discretion is reduced within narrow limits by the provisions which follow. These provide that the Court shall refuse the discharge in all cases where the bankrupt has committed any misdemeanor under the Debtors Act, 1869 (see p. 63), or the principal Act, or any other misdemeanor connected with his bankruptcy, or any felony connected with his bankruptcy, unless for special reasons the Court otherwise determines. The judge must state his "special reasons" (Re Stevens, Ex parte Board of Trade, 1898, 5 Mans. 222; Re Solomons, 1903, 10 Mans. 369). In all these cases the Court "shall refuse." This means that a debtor who has been guilty of such offences is unfit to be re-admitted a member of the trading community (In re Richardson & Webster, 1887, 4 Morr. 22).

The "felony connected with his bankruptcy" here mentioned, means a conviction on facts which have resulted in or brought about the bankruptcy (In re Hedley, [1895] 1 Q. B. 923).

There are, however, other offences not of such a grave character as the above, but which disentitle a bankrupt to an unconditional discharge. Thus, if it is proved

(a) That the bankrupt's assets are not of a value equal to ten shillings in the pound on the amount of his unsecured liabilities: unless he satisfies the Court that the fact that the assets are not of a value equal to ten shillings in the pound on the amount of his unsecured liabilities has arisen from circumstances for which he cannot justly be held responsible; or

(b) That the bankrupt has omitted to keep such books of account as are usual and proper in the business carried on by him, and as sufficiently disclose his business transactions and financial position within the three years immediately preceding his bankruptcy. This is a very bad offence (In re Wallace, 1884, 2 Morr. 167, 170). Books mean the usual books (In re Mutton, 1887, 19 Q. B. D. 102); or

(e) That the bankrupt has continued to trade after knowing himself to be insolvent; or

(d) That the bankrupt has contracted any debt provable in the bankruptcy without having, at the time of contracting it, any reasonable or probable ground of expectation (proof whereof shall lie on him) of being able to pay it (see In re J. Williams, 1884, 1 Morr. 91; and see In re White, Winter & Co., 1884, 2 Morr. 42); or

That the bankrupt has failed to account satisfactorily for any loss of assets, or for any deficiency of assets to meet his liabilities; or

(f) That the bankrupt has brought on or contributed to his bankruptcy by rash and hazardous speculations (In re Salaman, 1885, 14 Q. B. D. 936; Re Barton, Ex parte Thornber, 1886, 3 Morr. 304), or by unjustifiable extravagance in living, or by gambling, or by culpable neglect of his business affairs (In re Stainton, 1887, 4 Morr. 242. A man is not bound to keep up appearances, but is bound to pay his debts); or

(g) That the bankrupt has put any of his creditors to unnecessary expense by a frivolous or vexatious defence to any action properly brought against him; or

(h) That the bankrupt has, within three months preceding the date of the receiving order, incurred unjustifiable expense by bringing a frivolous or vexatious action; or

(i) That the bankrupt has, within three months preceding the date of the receiving order, when unable to pay his debts as they became due, given an undue preference to any of his creditors. Undue preference here has a wider meaning than a "fraudulent preference under sec. 48 (In re Skegg, 1890, 25 Q. B. D. 505; In re Bryant, 1894, 2 Mans. 37); or

(j) That the bankrupt has, within three months preceding the date of the receiving order, incurred liabilities with a view of making his assets equal to ten shillings in the pound on the amount of his unsecured liabilities; or

(k) That the bankrupt has on any previous occasion been adjudged bankrupt, or made a composition or arrangement with his creditors; or (1) That the bankrupt has been guilty of any fraud or fraudulent breach of trust; or

(m) That the bankrupt has made a fraudulent settlement (B. A. 1883, s. 29).

In all or any of these cases, which have been called "minor offences," the Court may either (1) refuse the discharge; (2) suspend it for a period of not less than two years; (3) suspend the discharge until a dividend of not less than ten shillings in the pound has been paid to the creditors; (4) require the bankrupt to consent to judgment being entered against him for the balance of debts provable (In re Clarkson, 1884, 2 Morr. 219). Execution in such a case, i.e. where judgment is entered, can only issue by leave of the Court. The powers of suspending and of attaching conditions to a bankrupt's discharge may be exercised concurrently (B. A., 1890, s. 8 (7), overruling In re Huggins, 1888, 6 Morr. 38). If a County Court judge has exercised his discretion as to the time for which a bankrupt's discharge shall be suspended, the Court on appeal will not review his decision (Re Hedley, Ex parte The Board of Trade, 1895, 2 Mans. 186). Out of 725 applications for discharge in 1904, the discharge was suspended in 515 cases.

An order of discharge releases the debtor from all debts, speaking generally, provable in bankruptcy, and the tendency of each successive bankruptcy has been to enlarge the power of proof (Hardy v. Fothergill, 1890, 13 App. Cas. 351). The present Act makes provable every kind of claim, present or future, certain or contingent, unless it is one incapable of valuation. This is in accordance with the policy of the bankruptcy law, that the debtor emerging from the portals of the Bankruptcy Court shall start a free man; but there are certain kinds or classes of

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debts-involving moral misconduct-from which the legislature has not thought fit to release him. These are

1. Debts or liabilities incurred by means of fraud, or fraudulent breach of trust, to which the debtor was a party, or any debt or liability whereof he has obtained forbearance by any fraud to which he was a party (B. A. 1883, s. 30).

2. Liability under a judgment against the debtor in an action for seduction, or under an affiliation order, or under a judgment against him as a co-respondent in a matrimonial cause (B. A. 1890, s. 10).

3. Penalties in respect of criminal offences (B. A. 1883, s. 30). The first of these exceptions brings the law into conformity with good sense and right reason. A debtor is not to be deprived, as he formerly was, of the benefit of his release when he has merely committed an innocent breach of trust; nor is he to be deprived of it because his co-trustee has committed a fraudulent breach of trust, if he was no party to the fraud.

A discharge granted by an English Court is a defence in any English Court to an action for debts covered by the release, wherever such debts may have been contracted. The certificate is made conclusive evidence, and is pleadable to all causes of action accrued before the date of the discharge (B. A. s. 30 (3); Potter v. Brown, 1805, 5 East, 125; 7 R. R. 663; Phillips v. Eyre, 1870, L. R. 6 Q. B. 28; Ellis v. M'Henry, 1871, L. R. 6 C. P. 228; and see Dicey's Conflict of Laws, 448, 449, 452, and p. 66, infra).

A debtor under our bankruptcy system is under no obligation to apply for his discharge. If he prefers to face the consequences of remaining an undischarged bankrupt, he is at liberty to do so. The results of this freedom are serious; for it appears that out of 89,583 persons who, since the commencement of the Act, have been adjudicated bankrupt, only 19,136 have applied for their discharge. There is therefore a population of some 70,000 undischarged bankrupts in our midst, to the manifest danger of the trading community. Under the bankruptcy systems of New South Wales, Victoria, and New Zealand, a bankrupt is bound to apply for his discharge within a fixed period, and some similar provision, it would seem, will have to be incorporated in our own system if the censorship over discharge is to be made really efficacious.

Release of Trustee.-When the trustee has realised all the property of the bankrupt, or so much of it as can be realised without needlessly protracting the trusteeship, and distributed a final dividend, he may apply to the Board of Trade for his release, and the Board, if satisfied with his accounts, may grant it (B. A. s. 82 (2)). An order of the Board releasing the trustee may be revoked if obtained by fraud, or by suppression or concealment of any material fact (ibid. (3); Re Harris, Ex parte Hasluck, 1899, 6 Mans. 259). A trustee, before applying to the Board of Trade for his release, is to give notice of his intention to all the creditors of the debtor who have proved their debts, and to the debtor, and is to send with such notice a summary of his receipts and payments as trustee (B. R. 309). The release, when granted by the Board, is to be gazetted. The trustee provides the stamp fee, but he may charge it to the estate (B. R. 310). The release is not to take effect until the trustee has delivered over to the official receiver all the books, papers, documents, and accounts required by the Bankruptcy Rules (B. R. 310A).

BOARD OF TRADE CONTROL-In the present system of official administration the Board of Trade plays the leading rôle. It animates and controls the whole, as it is well fitted to do. It issues administrative orders and settles forms of proceedings. It appoints and removes the official receivers (B. A. s. 66). It calls for and audits their accounts. It can require County Court costs to be taxed in the High Court. Where there is no committee of inspection, the Board takes its place (B. A. s. 22 (9)). It checks the receipts and expenditure of trustees of private deeds of arrangement (B. A., 1890, s. 25). It is the custodian of all moneys received by trustees and paid into the Bankruptcy Estates Account at the Bank of England, and all payments out are by cheques of the Board. But it is particularly concerned with the supervision of trustees. It has to be satisfied, in the first place, of the fitness of a trustee to be appointed (see p. 28). In many cases it appoints him. It calls upon him to account. It takes cognisance of his conduct. If any trustee does not faithfully perform his duties, or if complaint is made by any creditor in regard thereto, the Board is to inquire into the matter and take what action it thinks expedient. This means that it may disallow the trustee his remuneration (In re Lister, 1876, 2 Ch. D. 749). The Board may also at any time require any trustee to answer any inquiry as to the bankruptcy, and may examine on oath the trustee or any other person. The Board may also direct a local investigation to be made of the books and vouchers of the trustee (B. A. s. 91). Furthermore, the bankrupt, or any of the creditors, or any other person "aggrieved by any act or decision of the trustee," may appeal to the Court. Thus, what with the jealous scrutiny of creditors, ranging at large or focussed in the committee of inspection on the one side, and the strict official supervision of the Board of Trade on the other, it demands genius of no common order on the part of a trustee to perpetrate any irregularity. The old days of happy irresponsibility for trustees have gone.

REMOVAL OF TRUSTEE-The trustee may also be removed by the Board of Trade, if guilty of misconduct or failure in his duties, or if, by reason of lunacy or sickness, he cannot perform his duties, or if his connection with the bankrupt or his estate or any creditor make it difficult for him to act with impartiality in the interest of the creditors generally, or where in any other matter he has been removed from office on the ground of misconduct (B. A., 1890, s. 19). An appeal from the Board is allowed if the creditors disagree with its decision. The misconduct need not be fraud or dishonesty; vexatiously obstructing the realisation of the estate in the debtor's interest is misconduct (In re Mansel, 1885, 14 Q. B. D. 177; and see In re Dunkeld, 1883, 45 L. T. 569). The creditors may also remove a trustee by resolution at a special meeting (B. A. s. 86 (1)).

PARTNERS.-Corporations and companies registered under the Companies Act, 1862, are excepted from bankruptcy proceedings (B. A. s. 123), but ordinary partnerships, unincorporated, may be proceeded against in bankruptcy in the firm name (B. A. s. 115). A receiving order made against a firm is, however, to operate as if it were a receiving order made against each of the persons who, at the date of the order, is a partner in that firm (B. R. 262). If one of the partners is an infant, the receiving order may be made against the firm, other than the infant (Lovell v. Beauchamp, [1894] App. Cas. 607). For the

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purpose of ascertaining this-the members constituting the firm-the Court may order disclosure to be made on oath (B. A. s. 115). So, on adjudication, the order of adjudication is not to be made against the firm in the firm name, but against the partners individually; in the case of a receiving order against a firm, the statement of the partnership affairs is to be made by the debtor partners jointly, while each debtor is to submit a statement of his separate affairs (B. R. 263). The object of this provision is to facilitate the administration of the joint and separate estate. More than a hundred years ago Lord Loughborough, L.C., formulated the well-known rule-initiated by Lord King, L.C.—that the joint estate of partners should be applied in the first instance to the payment of joint debts-the debts of the partnership-and the separate estate of each partner in the first instance to the payment of his separate creditors. If there is any overplus of the joint estate, then the share of each bankrupt in such overplus is to be applied in aid of his separate estate, in payment of his separate creditors; and, conversely, any overplus of separate estate is to be applied in payment of unsatisfied joint creditors. In Lord Cranworth's words: "The joint property pays the joint creditors, and the separate property pays the separate creditors." This is well-settled and just rule, because, speaking generally, the creditors of the partnership have given credit to the partnership assets, the separate or private creditors of each partner to his separate assets. The rule is, however, subject to exceptions, and one is where there is no joint estate at all (Ex parte Peake, 1813, 2 Rose, 54; Ex parte Pinkerton, 1801, 6 Ves. 814 n.; 31 E. R. 1322 n.; 9 R. R. 326 n.). Whether property is joint or separate estate is a question of fact, and it is immaterial what the creditor knew or thought about it (In re Collie, 1877, 3 Ch. D. 481).

A partner who is a creditor of the firm cannot prove in competition. with the other creditors (Ex parte Hargreaves, 1788, 1 Cox, 440; Ex parte Sillitoe, 1824, 1 Gl. & J. 382). Any creditor whose debt is sufficient to entitle him to present a bankruptcy petition against a firm, may present a petition against any one of the partners (B. R. 110).

SMALL BANKRUPTCIES.-One salutary provision of the Act of 1883 is that of summary administration in the case of small bankruptcies. The provisions on this subject range themselves under two heads, contained in secs. 121 and 122 of the Bankruptcy Act respectively. Sec. 121 deals with the case where the property of the debtor is not likely to exceed in value £300. The object in such a case is to save expense and simplify procedure, and with this view the official receiver is trustee, and the Board of Trade exercises the functions of a committee of inspection; but there is no relaxation of the disciplinary jurisdiction of the Court. The bankrupt must go through the ordeal of his public examination, and obtain his discharge on the ordinary terms. The application for summary administration under sec. 121 is made by the official receiver (Form 44, App.); and, on his report that the estate is under £300, the order ought, as a rule, to be made, unless there is some reason to the contrary (In re Horniblow, 1884, 2 Morr. 124). All documents are headed summary case." No advertisements of proceedings are inserted in local papers. The Court is to determine all questions of law and fact without a jury. Failing a composition, the Court may forthwith adjudge the debtor bankrupt. Notices of meetings other than the first are not to be sent to creditors for under £3;