PAGE Nonpayment after Judgment Debtor Summons . 255 Summons 256 . ib. Nonpayment after Appearance and Admission 258 V. Of the Petitioning Creditor's Debt Creditor of Legal Capacity not by his own Acts incapacitated from Must be a liquidated Debt of sufficient Amount . sustainable at Law and Equity by the Creditor against the Bankrupt provable under the Bankruptcy accruing before the Debtor ceased to trade though not Payable till a future time Proof of Defects in, may be aided 260 ib. . 261 ib. . 262 . 265 267 . ib. . ib. ib. . 268 269 ib. . 270 VI. Of the Property of the Bankrupt, what passes to Assignees 271 VII. Of Property in the Possession of the Bankrupt as 209 PAGE "Whereof he was reputed Owner”. Held in auter droit In temporary Custody of Bankrupt Delivered as fully as nature of Property will admit For a special Purpose Property of Wife. VIII. Of Transactions not affected by Bankruptcy Payments Conveyances, Contracts, Dealings, &c. Executions and Attachments. Without notice of prior Act of Bankruptcy. 292 295 296 ib. 297 298 299 300 302 304 IX. Of Warrants of Attorney, Cognovits, Judges' Orders, 308 XI. Of Actions against Assignees XII. Of Actions by and against the Bankrupt XIII. Of the Order of Discharge Debts provable under the Bankruptcy 321 322 324c 324e Debts due in futuro, Debts payable on a Contingency, XVI. Of the Suspension of Proceedings, Change from Bank ruptcy to Arrangement, and Composition Deeds I. Of the Court o Bankruptcy. THE subject of bankruptcy, which is entirely lex scripta, has from time to time been modified by successive Acts of Parliament, but the wording of the older statutes has been for the most part retained in those of later date, and the decisions founded former will be found, unless specially noticed, directly applicable upon the to the latter. The law of bankruptcy is matter for the consideration of the courts both of common law and chancery, and the decisions of courts of equity will frequently be found in the succeeding pages as to matters which, if the question were a legal one, would have been matter for the decision of a jury. In the trials of actions at law parties who have not submitted to the jurisdiction of the Court of Bankruptcy are not bound by the adjudication, and they are still at liberty to question those facts, which are necessary to bring within the control of the court the property of the trader or debtor, or the rights and property of other persons not parties to the proceedings in bankruptcy. Origin. The first Act on the subject of bankruptcy was the 34 & 35 Hen. 8, c. 4. By that Act certain of the Privy Council were empowered, on complaint in writing being made to them of persons who had "craftily obtained great substance of other men's goods suddenly fleeing to parts unknown, or keeping their houses, not minding to pay or restore to any their creditors their debts and duties, &c.," to make such orders about the bodies of such offenders and the sale of their lands and goods as they thought fit, dividing the produce rateably among the creditors. The 13 Eliz. c. 7 first empowered the Lord Chancellor, upon a similar complaint, to appoint commissioners under the Great Seal, who, by virtue of their commission, were to have authority to imprison the body and to make sale of the goods and land of the bankrupt, dividing the produce rateably as aforesaid; and this continued in effect to be the method of procedure till the establishment of the Court of Bankruptcy, by the 1 & 2 Will. IV. c.56, as hereafter mentioned. It is noticeable, that the first Acts on this subject expressly reserved the rights of creditors, as to any debts not fully discharged by the sale of the bankrupt's property under the bankruptcy; and that the first Act which provides for the discharge of the bankrupt from all debts owing at the time of the bankruptcy (on a certificate of due conformity, &c., which was subject to confirmation by the Lord Chancellor), was the 4 Ann. c. 17. Subsequently to the two first-mentioned Acts a variety of statutes were passed, making additions to the Acts of bankruptcy, giving the commissioners additional powers, subjecting aliens and Members of Parliament to the bankrupt laws, &c., till the year 1824, when the 5 Geo. IV. c. 98 repealed and consolidated all the previous statutes. This Act in its turn was repealed by the 6 Geo. IV. c. 16; which again repealed and consolidated, with some alterations, all the previous statutes, and this, with the several Acts passed in the interval, contained the statutory enactments on the subject of bankruptcy till the passing of the Bankruptcy Consolidation Act, 1849 (12 & 13 Vict. c. 106), by which the lastmentioned Act, with several of those passed in the interval, was repealed; and the law of bankruptcy again consolidated. This Act is still the principal statute on the subject: but it has been amended by several statutes passed in the interval; and finally by the 24 & 25 Vict. c. 134, which has introduced for the first time several important alterations in the law of bankruptcy, the principal of which are the abolishing the distinction between traders and others (s. 69) ;—the transfer of the whole jurisdiction in bankruptcy and insolvency to one court (s. 1);—the replacement of the official assignee (for the most part) by an assignee elected by the creditors (post, p. 220);-the power to transfer the jurisdiction of the present district courts on a vacancy occurring in any district commissionership to the County Courts (s. 4);-the transfer of bankruptcies under 3007. to the County Courts (s. 94), with the option for creditors to transfer proceedings in bankruptcy of any amount to a County Court (s. 109); to suspend proceedings in bankruptcy altogether (s. 110); to change from bankruptcy to arrangement (s. 185), or to wind up any debtor's estate under a private deed, the trustees of which will enjoy the same privileges as to the debtor and his estate, the collection of debts, &c., as are possessed by assignees in bankruptcy (s. 197);-power to the court to try a bankrupt for misdemeanors under the Act, and to suspend or grant a conditional discharge, or to imprison the bankrupt for one year for certain offences not made misdemeanors by the Act (s. 159); the proof of debts by simple statement of account (s. 144); the power to grant a discharge subject to conditions as to future acquired property (s. 159);—and finally for the discharge of pauper prisoners (s. 98 et seq.). The Court of Bankruptcy originated in 1 & 2 Will. IV. c. 56, by which Act a chief judge, three other judges, and six commissioners were appointed. Three of the judges under this Act formed a Court of Review, which exercised a similar jurisdiction. to that then exercised by the Lord Chancellor, subject, however, to an appeal to him in matters of law and equity, and the refusal or admission of evidence only, and from him to the House of Lords, in cases of difficulty or importance. To the six commissioners was entrusted the jurisdiction exercised by commissioners of bankrupts under any Act or Acts then in force. By this Act fiats (which were substituted for commissions, and which were, in fact, the authority of the Lord Chancellor to the creditor to prosecute his petition either in the Court of Bankruptcy or elsewhere), issued by the Lord Chancellor or Vice-Chancellor or Masters in Chancery, were directed either to the commissioners mentioned above, or to special commissioners appointed by the judges on the respective circuits. By the 5 & 6 Vict. c. 122, the appointment of additional commissioners, to act as district Courts of Bankruptcy in the country, was first authorised (s. 59), and to them all fiats not directed to the Court of Bankruptcy were to be directed (s. 46). By the 10 & 11 Vict. c. 102, the Court of Review, and the offices of chief and other judges in bankruptcy, were abolished; and the jurisdiction and powers of the Court of Review transferred to one of the Vice-Chancellors appointed by the Lord Chancellor, with a similar right of appeal to the Lord Chancellor and House of Lords to that then existing. By the 12 & 13 Vict. c. 106, fiats were abolished; and the present method of procedure established, which commences by the filing of a petition for adjudication of bankruptcy, and concludes by the adjudication, matters which are in their nature analogous to the suing out of commissions and issuing of fiats under the old statutes, which, as well as all "instruments, documents, or other proceedings," are directed by s. 229 of 24 & 25 Vict. c. 134, to be construed "as though such fiat or commission had been a petition in bankruptcy under this Act, so far as the circumstances will admit." By the 14 & 15 Vict. c. 83, s. 7, the jurisdiction of the Vice-Chancellor in bankruptcy was transferred to the Court of Appeal under that Act, with an appeal from such court to the House of Lords. Constitution. The Court of Bankruptcy is a court of law and equity, having all the powers and privileges incident to a court of record as fully as any of the courts at Westminster (a). The judges of such court are commissioners appointed by the crown, now four in number, to act in London (b), but upon the occurring of any vacancy to be reduced to three (24 & 25 Vict. c. 134, s. 2), and not more than twelve additional commissioners to act in the country (c) in certain specified districts (d). But upon the occurrence of any vacancy in the office of district commissioner the jurisdiction and powers of such commissioner may be transferred to any of the County Court judges exercising jurisdiction in such district, or any part thereof (24 & 25 Vict. c. 134, s. 4); and for this purpose additional County Courts may, if necessary, be created, and the County Court and Bankruptcy districts rearranged (ib. s. 5). There are also certain officers attached to the court as hereafter mentioned. The Lord Chancellor, with the assistance of two commissioners, is empowered to make general orders as to the duties of the officers, the fees and costs payable on the proceedings before the court and county court, the custody and inspection of records, and generally for regulating the practice of the court and the forms of proceedings, both on appeal and otherwise (ib. s. 45), which has accordingly been done (e). In the County Courts (a) 12 & 13 Vict. c. 106, s. 6. (b) 12 & 13 Vict. c. 106, s. 7 (repealed); 24 & 25 Vict. c. 134, s. 2. (c) 5 & 6 Vict. c. 122, s. 59. (d) Ibid.; 12 & 13 Vict. c. 106, s. 9; and orders in council gazetted Nov. 4, 1842. (c) Reg. Gen. 1861. |