Course to be pursued by petitioning creditor where validity of his debt has been established "before provided with respect to disputed debts under debtor's 66 summonses. 66 Where proceedings are stayed the Court may, if by reason "of the delay caused by such stay of proceedings or for any "other cause it thinks just, adjudge the debtor a bankrupt on "the petition of some other creditor, and shall thereupon "dismiss, upon such terms as it thinks just, the petition proceedings in which have been stayed as aforesaid.”—32 & 33 Vict. c. 71, s. 9. 66 A form of order to stay proceedings on petition is provided (p). Also forms of bond on stay of such proceedings (q), of notice of sureties (r), and of affidavit of justification (s). It is to be noticed that the section just cited provides that where proceedings on a petition has been stayed under it, the Court may adjudge the debtor a bankrupt on the petition of some other creditor, and shall thereupon dismiss the petition proceedings in which have been stayed as aforesaid. A special form of dismissal applicable to such cases is provided (†). "The Bankruptcy Rules, 1870," provide as follows: "Where proceedings on a petition have been stayed for the "trial of the question of the validity of the petitioning credi"tor's debt, and such question has been decided in favour of "the validity of the debt, the petitioning creditor may apply "to the registrar to fix a day on which further proceedings on "the petition may be had, and the registrar on production of "the judgment of the Court in which the question was tried, proceedings for or an office copy thereof, shall give notice to the petitioner by post of the time and place fixed for the hearing of the "petition, and a like notice to the debtor at the address given "in his notice to dispute."-"The Bankruptcy Rules, 1870," after stay of that purpose. The Bankruptcy Rules, 1870, r. 43. Course to be pursued by debtor where the debt of petitioning creditor has been held invalid. The Bankruptcy Rules, 1870, r. 44. 66 r. 43. 66 "Where proceedings on a petition have been stayed for the "trial of the question of the validity of the petitioning credi"tor's debt, and such question has been decided against the validity of the debt, the debtor may apply to the registrar to "fix a day on which he may apply to the Court for the dis"missal of the petition with costs, and the registrar on the "production of a copy of the judgment of the Court in which "the question was tried, or an office copy thereof, shall give "notice to both the petitioner and debtor by post of the time "and place fixed for the hearing of the application.”—“ The Bankruptcy Rules, 1870," r. 44. (P) Appendix V. Form No. 18. 66 on security given, creditor must prosecute proceedings for payment of "Where proceedings on a petition are stayed upon security Where probeing given, the creditor shall take or continue proceedings ceedings stayed "for the payment of the debt within twenty-one days of the give "date on which the security was completed, and shall prosecute "the same with effect and without delay, and if he fail so to "do the debtor shall be entitled to have the petition dismissed "with costs."—"The Bankruptcy Rules, 1870," r. 47. The Court may also stay proceedings on the petition, where negotiations are pending for liquidation by arrangement or composition (u). (3.) The Court may also dismiss the petition, with or without costs (x). pro A form of order for the dismissal of a petition is vided (y). Where there are more respondents than one to a petition, the Court may dismiss the petition as to one or more of them, it being provided by "The Bankruptcy Act, 1869," as follows:: "Where there are more respondents than one to a petition, dication. enacts : "A сору of an order of the Court adjudging the debtor "to be bankrupt (2) shall be published in the London Gazette, "and be advertised locally in such manner (if any) as may "be prescribed, and the date of such order shall be the date "of the adjudication for the purposes of this Act, and the production of a copy of the Gazette containing such order as aforesaid shall be conclusive evidence in all legal pro"ceedings of the debtor having been duly adjudged a bankrupt, and of the date of the adjudication" (a).—32 & 33 Vict. c. 71, s. 10. 66 66 (u) Sect. 80, sub-sect. 10, ante, p. 1314. (x) See ante, p. 1324, sect. 8. (y) Appendix V. Form No. 23. For Form of Order for Dismissal of Petition upon which proceedings have been stayed where adjudication has been made on a subsequent petition, see Appendix V. Form No. 24, and see ante, p. 1323-1324. () Appendix V. Form of Order of Adjudication, No. 26. (a) The Bankruptcy Rules, 1870,"" provide as follows with reference to advertisements in the London Gazette: 66 "In lieu of attaching a copy of the London Gazette to the proceedings in each bankruptcy or other matter, the registrar shall file with the proceedings the page of the gazette in which the advertisement occurs, and in case of an "advertisement in a local paper, he shall file the advertisement with a memo"randum of the name of the paper and date of its publication; and for this purpose one copy of every London Gazette and of each local newspaper in debt within twenty-one days of completion of security. The Bankruptcy Rules, 1870, r. 47. (3.) The Court dismiss may the petition The Bank- may proceed to adjudication on the hearing Page of Gazette in which advertisement occurs and advertisement cut out of local paper to be filed with bankruptcy proceedings in lieu of entire papers. The Bankruptcy Rules, 1870, r. 13. Notice of making of an order of adjudication to be adver tised in one local paper. The Bank ruptcy Rules, 1870, r. 45. And "The Bankruptcy Rules, 1870," provide as follows:"Notice of the making an order of adjudication shall be "advertised in one local paper according to the form in the "schedule" (b).—" The Bankruptcy Rules, 1870," r. 45. "which any notice in any matter of bankruptcy in such Court is inserted shall (b) Appendix V. Form No. 26. BOOK VI. THE JURISDICTION AND PROCEEDINGS IN CHAPTER IX. THE EFFECT OF AN ADJUDICATION IN BANKRUPTCY. Consequences of an adjudication affect and contracts; (I.) Property and (II.) The bankrupt's THE Consequences of an adjudication in bankruptcy are at once extremely important and extremely serious. To discuss them fully, and in all their details, would be impossible within the limits of any book merely on practice-such as the present Work is. But as regards the practice in bankruptcy, such consequences may conveniently be considered as regards (I.) The effect of adjudication on the property and contracts of the personal bankrupt; (II.) The effect of adjudication upon the personal position of the bankrupt. Before considering the consequences of adjudication, it may be as well to mention that "The Bankruptcy Act, 1869," provides that : "When a debtor who has been adjudicated a bankrupt dies, "the Court may order that the proceedings in the matter be "continued as if he were alive.' -32 & 33 Vict. c. 71, s. 80, subsect. (9.) (bb). SECTION I. THE EFFECT OF ADJUDICATION UPON THE pro position. Effect of debtor dying after adjudi cation. relates back. Although, until an adjudication is formally pronounced, the To what time debtor is not a bankrupt, still, as soon as this stage of the a bankruptcy ceedings has been reached, the bankruptcy relates back to the time of the first act of bankruptcy proved to have been committed by the debtor within twelve months next preceding the order of adjudication. On this subject "The Bankruptcy Act, 1869," provides as follows: "The bankruptcy of a debtor shall be deemed to have rela"tion back to and to commence at the time of the act of bank"ruptcy being completed on which the order is made adjudging "him to be bankrupt; or if the bankrupt is proved to have "committed more acts of bankruptcy than one, to have relation "back to and to commence at the time of the first of the acts (bb) But see Re Obbard, 19 W. R. 563; 24 L. T. 145. VOL. II. 4 Q The Bank ruptcy Act 1869, s. 11 On adjudica tion a bank vests in the trustee of his estate. "of bankruptcy that may be proved to have been committed "by the bankrupt within twelve months next preceding the "order of adjudication; but the bankruptcy shall not relate to "any prior act of bankruptcy, unless it be that at the time of committing such prior act the bankrupt was indebted to some "creditor or creditors in a sum or sums sufficient to support a 'petition in bankruptcy, and unless such debt or debts are "still remaining due at the time of the adjudication."-32 & 33 Vict. c. 71, s. 11. 66 66 On a person being adjudicated a bankrupt, his property immediately vests in the trustee of his estate. Until a trustee is rupt's property appointed, the registrar of the Court is ex officio the trustee of the estate, and section 17 of the Act provides that, “imme"diately upon the adjudication being made, the property of the "bankrupt shall vest in the registrar." The creditors at a subsequent stage of the proceedings usually themselves appoint a trustee, and it is by the section first cited (section 17), further provided that, "on the appointment of a trustee the "property shall forthwith pass to and vest in the trustee appointed." The following is the text of the section just cited, by which this subject is regulated: Until appointment of trustee, the regis trar to act as such. Meaning of expression "trustee." The Bankruptcy Act, 1869, s. 17. Certificate of registrar's appointment as trustee. Form of certificate. What is included. 66 66 Until a trustee is appointed the registrar shall be the "trustee for the purposes of this Act, and immediately upon "the order of adjudication being made the property of the "bankrupt shall vest in the registrar. On the appointment of a trustee the property shall forthwith pass to and vest in the "trustee appointed (a). 66 66 The expression trustee,' when used in this Act, shall in"clude the person for the time being filling the office of trustee, "whether he be the registrar or not; but when the registrar "holds the office of trustee he shall, unless the Court otherwise "orders, in the administration of the property of the bankrupt, I apply to the Court for directions as to the mode of administering such property, and shall not take possession thereof unless "directed by the Court."-32 & 33 Vict. c. 71, s. 17. 66 66 "The Bankruptcy Rules, 1870," provide that, "upon ad"judication being made, a certificate declaring the registrar to "be the trustee must be put on the file of the proceedings, in "accordance with section 18 of the Act" (b). A form of certificate is provided (c). As regards the kind of property which vests in the trustee on adjudication, it will be recollected that by the interpretation clause of this Act, it means and includes "money, goods, things "in action, land, and every description of property, whether real or personal; also obligations, easements, and every description "of estate, interest, and profit, present or future, vested or contingent, arising out of or incident to property as above defined” (d). 66 (b) Rule 46. (4)Sect. 4. See ante, pp. 1261–1262. (a) See also, post, p. 1361, s. 83, sub-s. (6). |