BOOK VI. THE JURISDICTION AND PRACTICE IN BANKRUPTCY. 66 of hearing petition. The Bank THE time and place at which a petition is to be heard is fixed and place by the registrar who gives notice thereof, in accordance with the following rule of "The County Court Rules, 1870":"The registrar shall appoint the time and place on which the petition will be heard, and notice thereof shall be written on "the petition and sealed copies, and where the petition has not "been served the registrar may from time to time alter the first day so appointed, and appoint another day and hour."-"The Bankruptcy Rules, 1870," r. 34. 66 As a rule, seven days must elapse between the service of the petition and the hearing (a). But in two specified cases, namely, (1.) If the act of bankruptcy be that the debtor has absented himself, or, (2.) That he has filed a declaration of inability to pay his debts, the petition may be heard forthwith, instead of allowing this interval of time to elapse. 66 "The Bankruptcy Rules, 1870" provide as follows:"Where the act of bankruptcy alleged in a petition to have "been committed by the debtor is that the debtor, being a trader, has departed from his dwelling-house, or otherwise "absented himself, the petition may be heard forthwith on a "sealed copy of the petition being left at the usual or last "known place of residence or business of the debtor."-" The Bankruptcy Rules, 1870," r. 65. "Where a petition is presented and the act of bankruptcy "stated to have been committed is that the debtor has filed in "the Court to which the petition is presented a declaration admitting his inability to pay his debts, the Court may, if the "debtor consents in writing thereto, hear and adjudicate upon "the petition forthwith.""The Bankruptcy Rules, 1870," 66 r. 42. (a) Ante, p. 1303, rule 60. ruptcy Rules, 1870, r. 34. Seven days' interval between service of petition and hearing. When debtor has departed from his dwelling-house or otherwise absented himself, and this petition, the is alleged in petition may be heard forthwith. The Bankruptcy Rules, 1870, r. 65. Where debtor has filed de claration of inability to pay debts, perd petition may forthwith. The Bankruptcy Rules, 1870, r. 42. Personal attendance of petitioner and his witnesses at hearing may be dispensed with. The Bank ruptcy Rules, 1870, r. 40. Mode of appearance. Creditor neglecting to appear on petition, cannot As regards the attendance of the parties at the hearing, “The Bankruptcy Rules, 1870," provide as follows: "The personal attendance of the petitioning creditor and of "the witness or witnesses to prove the debt, the trading, and "act of bankruptcy, upon the hearing of the petition, may, if "the Court shall think fit, be dispensed with." "The Bank ruptcy Rules, 1870," r. 40. The above rule, it will be noticed, does not enable the Court to dispense with the personal attendance of the debtor. As regards the mode of appearance of the parties it may be in person or by counsel or solicitor. It sometimes happens that one or other of the parties fails to appear upon the hearing of the petition. The absence of the petitioning creditor, where his personal attendance has not been present another disposed with (b), is dealt with by the following rule of "The Bankruptcy Rules, 1870": without leave of Court. The Bankruptcy Rules, 1870, r. 39. 66 "If any creditor shall neglect to appear on his petition, no "subsequent petition against the same debtor or debtors, or any of them, either alone or jointly with any other person or persons, shall be presented by the same creditor without the "special leave of the Court to which the previous petition was "presented."-"The Bankruptcy Rules, 1870," r. 39 (c). 66 The non-appearance by the debtor at the hearing exposes him to an adjudication without further proof of the statements in the petition, "The Bankruptcy Rules, 1870," providing as follows on the subject : 66 "If the debtor does not appear at the hearing, the Court may make adjudication without further proof of the state"ments in the petition, if it shall think fit."—"The Bankruptcy Rules, 1870," r. 37 (d). It was at one time a matter of doubt whether, in the event of the debtor not appearing, the Court would make an adjudication on the production of the usual affidavit verifying generally the truth of the statements in the petition (e) and not going into detail. But it has recently been held, in a case where, though the debtor appeared at the hearing, he did not tender any evidence, that the adjudication made by the registrar on the faith of the usual affidavit verifying the statements of the petition, must be annulled as the statements in the petition ought to have been proved afresh (ƒ). The attendance of witnesses at the hearing is secured by subpana in the usual way. 66 "A subpæna for the attendance of a witness capable of giving evidence concerning any matter in the Court, before 66 or after adjudication, shall be issued by the Court at the The Bank"instance of a trustee, a creditor, a debtor, or any respondent ruptcy Rules, " in any matter, with or without a clause requiring the produc- 1870, r. 166. "tion of books, deeds, papers, and writings in his possession or 66 66 control, and in such subpoena the name of only one witness shall be inserted. A subpoena may be issued in blank as at 66 common law."- "The Bankruptcy Rules, 1870," r. 166. "A sealed copy of the subpana shall be served personally on Service of "the witness by the person at whose instance the same is issued, or by his attorney, or by an officer of the Court, within a "reasonable time before the time of the return thereof.""The Bankruptcy Rules, 1870," r. 167. 66 subpoena. The Bank ruptcy Rules, 1870, r. 167. Proof of service. The Bankruptcy Rules, 1870, r. 168. "Service of the subpoena shall, where required, be proved by "affidavit."-"The Bankruptcy Rules, 1870," r. 168. The form of subpoena on ordinary summons is provided (g). So, too, is a form of summons under section 96 (h). Let us now see before whom the hearing takes place. The petition may be taken (1.) By the Judge, or (2.) By the regis- Tribunal to trar, where this duty is delegated to him by the Judge (i). It is presumed that in no case can the petition be heard by a Judge and jury. For it is submitted that the provision (k) as to this mode of trial in bankruptcy cases does not apply to hearing for adjudication. hear the case. We will now notice the course of procedure after the parties Proceedings have appeared at the hearing. on hearing. petitions are It sometimes happens that two or more petitions are pre- Order in sented to the same Court against the same debtor, or against which several debtors being members of the same partnership (1). In such cases, the question which petition shall be heard first? is disposed of by the following rule of "The Bankruptcy Rules, 1870": 66 "Where two or more petitions are presented to the same "Court against the same debtor, or against debtors being "members of the same partnership, the petition which was "first presented shall be first heard; and where such first petition shall not have been served, or where the debtor "shows cause against the petition, or where delay will be "avoided, any other petition which has been served may be "heard, and if the Court make adjudication thereon, the "Court shall, after the expiration of the time allowed for appeal against the adjudication, dismiss all the other petitions 66 (g) Appendix V. Form 75. A trustee may be summoned for examination, sec Ex parte Crossley; Re Taylor, L. R. 13 Eq. 408; and see also Ex parte Swift; Re Russell, 26 L. T. N. S. 226. (h) Appendix V. Form 76. For sect. 96 of the Act, see post, pp. 1374–1375. It has already been pointed out, that in such cases, the petitions may be consolidated. "Bankruptcy Act, 1869," sect. 80, par. 2, ante, p. 1320. to be heard. The Bankruptcy Rules, 1870, r. 48. Evidence required in 66 upon such terms as to costs as it shall deem just.". Bankruptcy Rules, 1870," r. 48. "The Assuming the hearing to follow the usual course, and that the debtor appears to show cause against the petition, let us see support of the what proof must be given by the petitioning creditor. petition. The Bankruptcy Act, 1869, s. 8. Proof must be given of such matters as debtor has given notice that he in tends to dispute. The Bank ruptcy Rules, 1870, r. 38. Mode of taking the evidence. Evidence may be taken virâ voce, by interrogatories upon affidavit, or by commission. The Bank ruptcy Rules, 1870, r. 49. Deposition of deceased witness, if sealed with Court seal, may be admitted. The Bankruptcy Act, 1869, s. 108. On this subject "The Bankruptcy Act, 1869," provides as follows: 66 66 66 66 "A petition praying that a debtor may be adjudged a bankrupt, in this Act referred to as a bankruptcy petition, shall "be served in the prescribed manner (m). At the hearing the Court shall require proof of the debt of the petitioning creditor, and of the trading, if necessary, and of the Act of bankruptcy, or, if more than one act of bankruptcy is alleged "in the petition, of some one of the alleged acts of bankruptcy, and if satisfied with such proof, shall adjudge the debtor to "be bankrupt. The Court may adjourn the petition, either conditionally or unconditionally, for the procurement of "further evidence or for any other just cause, or may dismiss "the petition, with or without costs, as the Court think "just.”—32 & 33 Vict. c. 71, s. 8. 66 66 66 The Bankruptcy Rules, 1870," further provide as follows: 66 66 : "On the appearance of the debtor to show cause against the petition, the petitioning creditor's debt, trading, and act of bankruptcy, or such of those matters as the debtor shall have "given notice that he intends to dispute, shall again be proved, "and if any new evidence of those matters, or any of them, "shall be given, or any witness or witnesses to such matter shall not be present for cross-examination, and further time "shall be desired to show cause, the Court shall, if it think "the application reasonable, grant such further time as it may "think fit."-"The Bankruptcy Rules, 1870," r. 38. 66 As regards the mode of taking evidence in bankruptcy cases, "The Bankruptcy Rules, 1870," provide as follows: 66 The Court may in any matter take the whole or any part "of the evidence either viva voce, or by interrogatories, or upon affidavit, or by commission abroad."—"The Bankruptcy Rules, 1870," r. 49. 66 Moreover, "The Bankruptcy Act, 1869," provides, as follows, with regard to the taking of evidence, in the case of the death of a witness : "In case of the death of the bankrupt or his wife, or of a "witness whose evidence has been received by any Court in any "proceeding under this Act, the deposition of the person so "deceased, purporting to be sealed with the seal of the Court, or a copy thereof purporting to be so sealed, shall be admitted 66 (m) See ante, p. 1303 et seq. 66 as evidence of the matters therein deposed to."-32 & 33 Vict. c. 71, s. 108. Certain instruments are receivable in evidence in all legal Certain docuproceedings whatever. On this subject "The Bankruptcy Act, 1869," provides as follows: 66 66 "Ány petition or copy of a petition in bankruptcy, any order or copy of an order made by any Court having jurisdiction in bankruptcy, any certificate or copy of a certificate made by any Court having jurisdiction in bankruptcy, any deed or copy "of a deed of arrangement in bankruptcy, and any other instru"ment or copy of an instrument, affidavit, or document made or "used in the course of any bankruptcy proceedings, or other proceedings had under this Act, may, if any such instrument as "aforesaid or copy of an instrument appears to be sealed with "the seal of any Court having jurisdiction, or purports to be "signed by any Judge having jurisdiction in bankruptcy under "this Act, be receivable in evidence in all legal proceedings "whatever."-32 & 33 Vict. c. 71, s. 107. On the day fixed for the hearing of the petition in bankruptcy, the Court may either (1.) Adjourn the case; (2.) Make an order staying the proceedings; (3.) Make an order dismissing the petition; or (4.) Make an order for the adjudication of the debtor as a bankrupt. (1.) It has been seen (n) that the Court may adjourn the hearing of the petition, either conditionally or unconditionally, for the procurement of further evidence or for any other just cause. A form of order for adjournment of petition is provided (0). (2.) As to the stay of proceedings on the petition. It sometimes happens that the petition is not heard on the merits on the day fixed for the hearing, but that proceedings therein are stayed, at the instance of the debtor, in order that the question as to whether the debtor is indebted as alleged, may be duly tried. The following are the provisions on this subject: 66 6: ments sealed by a Bank ruptcy Court in evidence in all legal proceedings whatever. to be received The Bank 1869, s. 107. ruptcy Act, Where debtor "The Bankruptcy Act, 1869," provides as follows:"Where the debtor appears on the petition, and denies that "he is indebted to the petitioner or that he is indebted to such "amount as would justify the petitioner in presenting a bankruptcy petition against him, the Court, upon such security (if any) being given as the Court may require for payment to "the petitioner of any debt which may be established against "him in due course of law, and of the costs of establishing "such debt, may stay all proceedings on the petition for such "time as may be required for trial of the question relating "to such debt, and such trial shall be had in manner herein- 1869, s. 9. appears at hearing and denies the existence of a sufficient debt, Court will stay sufficient security be given. The Bankruptcy Act, proceedings if |