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Greenwich Court it was competent to the Judge and it was his duty to enquire as to the allegations, if disputed. Extensive powers of appeal are given, which include the matters of locality and trading; and if the construction of the statute contended for by the defendant were to be maintained, then notwithstanding a whole series of appeals and any lapse of time there would still be liberty to contest the jurisdiction of the Court, when the validity of the adjudication incidentally came in question. The provisions of the statute were exactly intended to prevent this, and the consequences would be so serious that we ought not to adopt this construction if another can reasonably be placed on the statute. Here there was the usual affidavit, the Court primâ facie had jurisdiction, it entered on the matter, no notice of dispute was given, there was no appearance to oppose, and the registrar adjudicated the debtor a bankrupt in the usual course without further evidence. The order of adjudication was published in the Gazette, and there was no appeal.

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A copy of the Gazette was produced at the trial, and section 10 was relied on by the plaintiff as making it "conclusive evidence in all legal proceedings of the debtor having been duly adjudged a bankrupt, and of the date of the adjudication.' In ordinary cases, as for instance the case of magistrates sitting at petty sessions, where the jurisdiction of an inferior Court depends on facts involved in the inquiry before it, its decision is conclusive, as far as relates to the validity of the proceedings, and the jurisdiction as to the facts, and so the Court of Queen's Bench held in The Queen v. Bolton (9) and Mould v. Williams (10). In the present case that the place where the debtor resided or carried on business was in the Greenwich district, and not within the London district, formed part of the matters as to which the judge had to inquire, and on which his jurisdiction depended.

The registrar must therefore be taken to have decided that the allegations in the petition were proved, and to have decided the

(9) 1 Q.B. Rep. 66; s. c. 10 Law J. Rep. (N.s.) Q.B. 95.

(10) 5 Q.B. Rep. 469.

fact that he "does not reside or carry on business within the district of the London

Bankruptcy Court, but resides within the district of this Court ;" and having settled the question of jurisdiction on the evidence he proceeded to adjudicate the debtor bankrupt. At a late stage of the argument it was brought to our notice that before the adjudication an affidavit was used shewing that the debtor in fact did carry on trade in London, but this was produced incidentally in a matter relating to the appointment of a receiver, and we cannot suppose that the attention of the judge or registrar was drawn to this as respects the jurisdiction, for if it had been we must conclude that the Court would not have assumed a jurisdiction which it did not possess if this were true. Still, even if the affidavit and the fact were drawn to its attention, and it yet came to the conclusion on contradictory affidavits that he "does not reside or carry on business within the district of the London Bankruptcy Court," this would be a decision by the County Court, which could not be questioned in this action in order to shew there was no jurisdiction. It was contended that by virtue of section 80, sub-section 6, every County Court has original jurisdiction throughout England, both in London and elsewhere, but this sub-section is found under the head "supplemental proceedings," and is one of a series of regulations contained in several sub-sections as to the transfer of proceedings, and is as follows: "subject to the provisions of this Act every Court having original jurisdiction in bankruptcy shall be deemed to be the same Court and to have jurisdiction throughout England; and cases may be transferred from one Court to another in such manner as may be prescribed." And it seems to me that the words, "the same Court, and to have jurisdiction throughout England," refer to the subject-matter of the enactments of that section. Further there are the words, "subject to the provisions of this Act," and to give the sweeping effect contended for would be to contradict section 59. Section 59 therefore is to prevail and govern the jurisdiction. Another question which was argued was whether it was necessary to

state that the debtor was a trader; but I find nothing in the statute to shew that one form or the other is to be used, and it was never intended that this should make the adjudication invalid. The Bankruptcy Court is to decide whether the debtor be a bankrupt; it is not called on to decide whether he be a trader or not, unless the fact be material with regard to the facts in the petition. When the debtor is adjudicated bankrupt, and a trustee is appointed, the property passes to the trustee whether the debtor be a trader or not, there is no difference between the appointment of the trustee of a trader and that of a non-trader. In forms 28, 41 no distinction appears; and the notice of appointment and advertisement do not mention whether the bankrupt is a trader or not. Form 26 simply says "is hereby adjudicated bankrupt," and though the introductory part may refer to trading, this is only when proof of trading is necessary and material to the act of bankruptcy. On general principles of law and on section 10 the adjudication of the County Court is conclusive as to the adjudication, and the jurisdiction so far as not residing or carrying on business within the district of the London Bankruptcy Court." Those matters are not to be inquired into as respects the validity of the adjudication and the jurisdiction. As respects therefore the point made for the defendant, that the County Court had no jurisdiction, I am of opinion that our judgment should be for the plaintiff. It was then contended for the defendant, that if the adjudication was conclusive as respects the jurisdiction, it was conclusive as respects "does not reside or carry on business within the district of the London Bankruptcy Court." It is quite true that section 87, which authorises the trustee to claim the proceeds of goods sold by the sheriff, only applies where the bankrupt is a trader, and if the statute made it necessary to decide whether he was bankrupt as a trader or a non-trader, and there were an adjudication as a nontrader, there would be strong grounds for this contention. But I think, after looking to the statute and the distinctions as to traders and non-traders, it

was not necessary to determine in the order of adjudication whether the bankrupt was a trader or non-trader; the adjudication is that given in the forms, and is in accordance with section 8, and simply says he is "adjudged bankrupt." Thereon all his property, whether trader or not, passed to his trustee. As respects the effect of the order of adjudication, it makes no difference whether in the petition or adjudication there is reference to trading, and it is indifferent after the adjudication whether in fact there were a good debt, act of bankruptcy, trading or non-trading as respects jurisdiction. The forms here follow the statute, and if it be not necessary to adjudicate a man bankrupt as trader or non-trader, the order does not do so in the one or the other character. Suppose a petition presented as here against a man as a “gentleman," not stating trading, and stating what would be an act of bankruptcy, whether he were a trader or non-trader, and an adjudication of bankruptcy, and afterwards he is discovered to have been secretly trading in another County Court district, could it be said on the statute that the proceedings were invalid because he was not expressly adjudicated bankrupt as a trader, or could they be defeated because the circumstances were not in fact as alleged? The bankrupt here was in fact a trader; that is admitted, but it is contended that the plaintiff cannot rely on this because of the adjudication. As I have already stated, section 10 precludes a dispute as to the validity of the adjudication and jurisdiction on this ground, but in this action, as respects the fact of trading, there is nothing to preclude the shewing of the truth as to this. There is no affirmation

by the Court as to trading unless it be specifically necessary. It is true that here the bankrupt was really a trader in London contrary to the allegation in the petition, but the plaintiff may, for the purposes of this action and section 87, prove he was a trader just as if he were one in another County Court district. As far as respects the validity of the adjudication and the jurisdiction, the trading in London is not to be in question, but for all other purposes and per

sons the adjudication is not conclusive on this, and for the purposes of section 87 the trustee, where the bankrupt is a trader, may shew that he is so in fact, whether so described in the petition or not, and as here the bankrupt was a trader and due notice was given, the plaintiff is entitled to his verdict, and this rule should be discharged.

BYLES, J.-I am of the same opinion, and after the reasons so fully given by my Lord, reasons with which I fully concur, I will merely say that, as respects the first point, all difficulty is removed by sections 59, 66 and 72; and as respects the second point, that it is here merely stated that the debtor petitioned against is "a gentleman."

BRETT, J.-If the other members of the Court did not entertain so clear an opinion, I should desire to take time to consider this matter, but as they do, I do not think this necessary, and will give my reasons at once for coming to a contrary conclusion. The question is whether the plaintiff, said to be the trustee in bankruptcy of Maxwell, or the defendant the execution creditor, is entitled to the goods, and the facts are these. The defendant was an execution creditor of one Maxwell, and by his order the sheriff seized and sold the goods; but within fourteen days a petition in bankruptcy was presented against Maxwell in the Greenwich County Court, and valid notice thereof was given to the sheriff, and afterwards that Court adjudicated Maxwell bankrupt. The defendant, therefore, as the sale was before the adjudication, was by common law entitled to the goods, but it is said that section 87 of the Bankruptcy Act, 1869, ousts him from this right. In order to bring the case within section 87, and oust the defendant from his common law right, the plaintiff was bound to prove that Maxwell was a trader, and that he was adjudicated bankrupt, and, as I apprehend, so adjudicated by a Court which had jurisdiction. On the trial of this interpleader it appeared that in fact Maxwell was a trader in London, but had been adjudicated a bankrupt as a non-trader in the Greenwich County Court. It was contended by the plaintiff that the Greenwich Court NEW SERIES, 41.-C.P.

had nevertheless jurisdiction, or if it had not, yet the defendant could not inquire into this, and under section 10 was concluded by the Gazette as to the fact that Maxwell had been adjudicated bankrupt by a Court of competent jurisdiction, but that still he, the plaintiff, might shew that Maxwell was a trader in London, and that thus it had been shewn that he was a trader and a bankrupt; whilst it was said by the defendant that the Greenwich Court had no jurisdiction in truth, but that if the defendant was concluded as to this, then the plaintiff was concluded as to the non-trading and could not shew that Maxwell was a trader in London. It was argued by Mr. Williams that the Greenwich Court had jurisdiction, on the ground that there was only one Bankruptcy Court in England of which every County Court was part, and that every County Court therefore had a universal jurisdiction. It was admitted that it was not regular for a County Court to proceed to adjudicate as to a person not residing or carrying on business within its limits, or doing so within the London district, but it was said that still as respects jurisdiction, it was part of the Superior Court of Bankruptcy. This depends on sections 59, 72, 80, subsection 6. As respects section 59, it seems to me that the whole jurisdiction of the County Courts depends on it, and that but for this section they would have none. If so, it confers the jurisdiction on the country County Courts and that jurisdiction is limited as to persons residing or carrying on business within the particular district of the Court and not within the London one. As to section 72, it gives no unlimited jurisdiction nor does it alter section 59, for it says "subject to the provisions of this Act." And as to section 80, sub-section 6, it gives jurisdiction only in case of a transfer of proceedings from one Court to another, and therefore jurisdiction under it depends on the transfer. If, then, section 59 gives a limited jurisdiction, it limits it to those who "do not reside or carry on business within the London Bankruptcy district," and where a person does either, the County Court has no jurisdiction. It follows, therefore, that in truth the Greenwich Court had no juris

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diction. But it is then said that this Court and the defendant are precluded by section 10 from saying that Maxwell was not duly adjudicated bankrupt. Now I agree that the adjudication by the statute only concludes as to whether the debtor has been properly adjudicated bankrupt, but then the adjudication must be assumed to be made by a Court of competent jurisdiction. Now the County Court is an inferior Court, and in order that section 10 may take effect, this Court and the defendant must be concluded from shewing that the County Court had no jurisdiction to determine the debtor to be bankrupt; and they can only be precluded on the ground that the judge must be taken to have decided the negative fact that Maxwell was not a trader in London. I think that if an inferior Court can legally decide only if a certain condition of things existed, whether that involves a positive or negative proposition, and if the decision of the Court is put forward as conclusive, it is to be taken also to be conclusive that the condition of things existed which was necessary to give jurisdiction, and that he who puts forward the decision as conclusive, must also take the preliminary fact to be conclusively proved. He must contend that there was jurisdiction, and therefore that the conditions existed to give jurisdiction, that is, in this case the plaintiff when he puts forward the adjudication as conclusive, must accept as conclusive the fact that the debtor did "not trade within the London Bankruptcy district." It is true that here no evidence was offered by the defendant to shew that there was no jurisdiction, for the defendant accepted the adjudication as proper, but if the defendant had offered evidence in this view, it could not have been received because the Court must have assumed that the preliminary facts necessary to found the jurisdiction of the County Court had been proved, and the Court is equally bound now to accept as having been conclusively proved the fact on which the jurisdiction depends. The plaintiff, however, says that, though he put forward the adjudication of a Court which in truth has no jurisdiction as conclusive, and says the jurisdiction cannot be

inquired into, he can prove Maxwell was a trader in London. There can be little doubt why he did so; he did so because the petition had been wrongly preferred in the Greenwich Court, and it was too late for another Court to entertain one, and therefore the plaintiff takes advantage of the judgment of a wrong Court, and says it is conclusive in any Court. It is said that serious consequences would follow from an opposite conclusion to that, and to which I have arrived, but I apprehend that they are consequences which always exist, where persons take proceedings in a Court of limited jurisdiction; they must take care to go to the right Court. The difficulty has arisen here only because the mistake has been found out too late. It seems to me also that the plaintiff has no title, unless the County Court had jurisdiction, and to affirm his title as trustee he asks us to decide that the Court had competent jurisdiction to adjudicate Maxwell a bankrupt, and then further to affirm his right to the goods he desires to give evidence which would shew that the adjudication was invalid. I cannot think that he has power both to affirm and to destroy the adjudication, and therefore think the plaintiff is in this dilemma: he had to prove an adjudication by a Court of competent jurisdiction, and also to shew that Maxwell was a trader; if he proved the first, he did not prove the second; and if he proved the second, he shewed the Court had no jurisdiction with regard to the first; therefore it seems to me that the case was not

brought within section 87, and the sec tion did not destroy the common law right of the defendant. I think that the plaintiff ought not to be allowed to prove that Maxwell was a trader in London, and I am therefore of opinion that the rule should be made absolute.

GROVE, J.-I am of opinion that the plaintiff is entitled to succeed. The defendant argued, first, that the County Court had no jurisdiction; secondly, that assuming it had, and the adjudication was valid, the adjudication was valid to decide that the bankrupt was not a trader. I will take the second contention first. The adjudication calls Maxwell "a gentleman." Assume that this means that he

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was not a trader, still do these words form an essential part of the adjudication, i. e. must it conclude his status as trader or non-trader ? It is argued that this statement is an essential part, but it is admitted that to found the argument it must be conceded that the adjudication is bad if it does not state this. But if this be essential for the adjudication, there is nothing in the statute to shew, directly or indirectly, that it is necessary to decide whether he was a trader or not. Section 10 is as follows [his Lordship read it]. Now suppose "duly were omitted, no question could arise; all that would be necessary would be that he should be adjudicated bankrupt. But then comes the word "duly ;" and both parties relied on it. Now the object of the section is to make it unnecessary to look at preliminary matters, as to whether the debtor can be adjudicated bankrupt; and if it were intended that some prelimina ries were to be concluded and not others, why is this left uncertain, and why is not this said? If this had been meant, it would have been easy to say, and the statute would say which were concluded and which not, and whether, if a trader, it was necessary that this should appear on the adjudication. If the statute requires this, it never provides that such a decision should be made, and I therefore read it to mean that the adjudication is conclusive as an adjudication, that the man is a bankrupt, and that we cannot go behind the adjudication to make inquiry into matters of fact.

Does

Then comes the other question. sect. 59 so limit the jurisdiction for all purposes, that if any requisite be wanting, all its proceedings are to be invalid and new proceedings taken, and that, even if there has been an appeal to the House of Lords, and it be discovered that some requisite of section 59 was absent at the time of adjudication, that all is to be void, and everything become nugatory because of some secret trading when it is discovered? This seems a formidable consequence. There is great difficulty in construing section 59, but is not

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this a fair construction to put on it, that it is directory and compulsory as to the initiation of the proceedings and the adjudication, but that when the Court is satisfied that it has jurisdiction, and when it has acted and adjudicated, then the adjudication is final? This reconciles the provisions of the statute. Then comes the question, this being so, can the question of trading be contested in the present action under section 87 ? Now it was not necessary for the Greenwich Court to pronounce whether Maxwell was a trader or not. All the acts of bankruptcy of a non-trader are common to a trader, so that if the act of bankruptcy be a nontrading one and the bankrupt is put as a trader this is not an essential matter, though the converse does not hold, which explains the words "if necessary," which have been adverted to in argument. section 87 says that where the goods of any trader," that is, trader in fact, have been seized and sold, the sheriff is to retain for the trustee the proceeds upon notice of "a bankruptcy petition" against the trader, unless the trader be not "adjudged bankrupt." The statute does not say the petition is to be against him as a trader, or that the adjudication should be upon him as such, but that there should be a petition against and adjudication upon such a man, and though prima facie it contemplates that the man is bankrupt as a trader, it does not confine its operation to this. It seems to me that there is nothing inconsistent in construing the statute as I do; on the one construction contended for in this case, there would be an irremediable evil, while on the other there is the power of appeal, and I agree with the opinion expressed by my Lord, and think that this rule should be discharged. Rule discharged.

Attorneys-Brooksbank & Galland, for plaintiff'; John Rae, for defendant.

END OF EASTER TERM, 1872.

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