equals or exceeds the amount of the judgment ss. 4, 5. debt, and which he could not set up in the action in which the judgment was obtained: As to the issue of and procedure upon a bankruptcy notice, see r r. 118-124. This is entirely new, and intended to supersede the old procedure upon a debtor's summons. A debtor's summons might have been issued in respect of any debt sufficient to support a petition in bankruptcy, that is, amounting to £50 (Bankruptcy Act, 1869, s. 7), whereas a bankruptcy notice under this sub-section can be served in respect of a judgment debt alone, although the amount of such judgment debt may be less than £50. It seems rather a hardship upon an unsuccessful defendant in an action who has not obtained a stay of execution, but may be desirous of appealing from the judgment (for an appeal does not operate as a stay of proceedings upon a judgment in the High Court unless so ordered by the Court. Rules of the Supreme Court, 1883, O. LVIII., r. 16), and may have a good setoff, counter-claim, or cross-demand, to or exceeding the amount of the judgment debt, that he should be liable to have such a notice served upon him with the possible consequences of bankruptcy unless he satisfy the Court not only that he has such a set-off, counter-claim, or cross-demand, but that he had no power to set it up in the action, in the last case raising an issue in bankruptcy upon a matter of pleading in the High Court. There is a useful provision contained in s. 7 (4) giving the Court power to stay or dismiss a petition founded on this act of bankruptcy when an appeal is pending from the judgment. The Court of Bankruptcy can go behind a judgment to see whether there was any consideration for it, or whether it was obtained by collusion (Ex pte Banner, In re Blythe, 17 Ch. D., 480; Ex pte Kibble, In re Onslow, L. R. 10, Ch. 373). (h.) If the debtor gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts. This also is a new act of bankruptcy. Another act of bankruptcy is created in s. 103 (5), when a receiving order is made upon a judgment summons under the provisions of that section. (2.) A bankruptcy notice under this Act shall be in the prescribed form, and shall state the consequences of non-compliance therewith, and shall be served in the prescribed manner.2 1 r. 118 (1), Form No. 6 in the Appendix. 2 r r. 123 and 144. Receiving Order. 5. Subject to the conditions herein-after specified,1 if Jurisdiction a debtor commits an act of bankruptcy the Court may, receiving to make order. ss. 5, 6. on a bankruptcy petition being presented either by a creditor or by the debtor, make an order, in this Act called a receiving order,3 for the protection of the estate. 1 s. 6 and 7. 258. 3 5.9. Conditions on which creditor may petition. The receiving order is an interlocutory proceeding, which may or may not culminate in the debtor being adjudged bankrupt, and this depends upon whether the creditors do or do not resolve to accept a composition or scheme of arrangement which is approved by the Court (s. 18 (1) (2) (8) ), for if they do not so resolve or resolve that he be adjudicated bankrupt the Court will make the adjudication (s. 20 (1)). Upon the adjudication being made the debtor's property thereupon vests in the trustee (s. 20 (1)), so that until that time the debtor is not divested of his property although possession thereof has been taken by an official receiver on the making of the receiving order (s. 9). Power is given to annul the receiving order in certain cases (s. 14). 6.-(1.) A creditor shall not be entitled to present a bankruptcy petition against a debtor unless(a.) The debt owing by the debtor to the petitioning creditor, or, if two or more creditors join in the petition, the aggregate amount of debts owing to the several petitioning creditors, amounts to fifty pounds, and (b.) The debt is a liquidated sum, payable either immediately or at some certain future time, and Under the Bankruptcy Act, 1869, the petitioning creditors' debt must have been a liquidated sum "due at law or in equity," and this was judicially construed to mean "presently payable ” (Ex pte Sturt, In re Pearcy, L. R. 13, Eq. 309); but the words of the present Act expressly declare that it may be "payable either immediately or at some future time." The words "at law or in equity" are struck out, probably because the Judicature Act, 1873, s. 25, provides that where the rules of law and equity conflict, the latter are to prevail, and consequently a debt, whether formerly enforceable at law or in equity only, is equally one on which an action can now be brought in the High Court, and would therefore primâ facie be one on which the petition might be founded. An equitable assignee of a debt may petition without joining the assignor (Ex pte Cooper, In re Baillie, L. R. 20, Eq. 762). A bare trustee cannot petition without joining his cestui que trust (Ex pte Culley, In re Adams, 9 Ch. D., 307). A debt due to a receiver in that capacity would appear to be a good petitioning creditor's debt (Ex pte Harris, In re Lewis, 2 Ch. D., 423). But liquidated damages ordered to be paid by a co-respondent in a divorce suit to the petitioner, he undertaking to pay the same into the Registry, does not constitute a good petitioning creditor's debt, for when paid in non constat that he will be entitled to any portion of them (Ex pte Muirhead, In re Muirhead, 2 Ch. D., 22). So, too, a surety cannot petition against his co-surety until it is clear that he has paid more than his share of the debt due to the principal creditor (Ex pte Snowdon, In re Snowdon, 17 Ch. D., 44). The amount of differences as ascertained by the Official Assignee of the Stock Exchange to be due from a defaulter, a member of that body, would support a petition (Ex pte Ward, In re Ward, 22 Ch. D., 132). The debt must have existed at the time of the act of bankruptcy (Ex pte Hayward, In re Hayward, L. R. 6, Ch. 546), where it was held that an acceptance written prior to but not issued as a bill of exchange until after the act of bankruptcy would not support a petition A creditor whose debt is sufficient to entitle him to present a petition against all the partners of a firm may present a petition against any one or more of them without including the rest (s. 110). (c.) The act of bankruptcy on which the petition is grounded has occurred within three months before the presentation of the petition, and (d.) The debtor is domiciled in England, or, within a year before the date of the presentation of the petition, has ordinarily resided or had a dwelling house or place of business in England. This is founded on a similar proviso in the Bankruptcy Act for Scotland, 19 & 20 Vict., c. 79, s. 13, B. See notes to s. 2. As to the proper Court in which to present the petition, see s. 95. (2.) If the petitioning creditor is a secured creditor,1 he must, in his petition, either state that he is willing to give up his security for the benefit of the creditors in the event of the debtor being adjudged bankrupt, or give an estimate of the value of his security.2 In the latter case, he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him, after deducting the value so estimated in the same manner as if he were an unsecured creditor. 1 A definition of a secured creditor is given in s. 168. See further, as to secured creditors in notes to s. 9 (2). 2 The omission of this statement from the petition would appear to be a s. 6. s. 7. Proceedings and order on creditor's petition. formal defect capable of amendment (Ex pte Vanderlinden, In re Pogose, 20 Ch. D., 289), see ss. 105 (3), and 143 (1). As to proof of debts by secured creditors, see Sch. II., ss. 9—18. 7.-(1.) A creditor's petition shall be verified by affidavit of the creditor, or of some person on his behalf having knowledge of the facts,2 and served in the prescribed manner.3 1 As to the form of the petition, see r. 125 and Form No. 10 in Appendix. It must also be attested (r. 127) and filed (r. 126). Upon presenting it the petitioner must deposit £5 with the official receiver (r. 128). 2 r r. 130-132. Before sealing copies of the petition for service the Registrar shall investigate the statements in the petition, and where some of such statements cannot be verified by affidavit, witnesses may be summoned to prove the same (r. 133). 3 r r. 144-148 and 136. The time and place of hearing shall be appointed by the Registrar, and notice thereof written on the petition and sealed copies (r. 135). As a rule, a creditor's petition is not to be heard until eight days after service (r. 149 (2)). (2.) At the hearing the Court shall require proof of the debt of the petitioning creditor of the service of the petition, 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 the proof, may make a receiving order in pursuance of the petition. 1 In addition to the ordinary affidavit verifying generally the facts alleged in the petition required by sub-s. (1), which is made merely for the purpose of having the petition sealed (Ex pte Lindsay, In re Lindsay, L. R. 19, Eq. 52; Ex pte Dodd, In re Ormston, 3 Ch. D., 452). As a rule, it would seem obligatory on the Court, when the statutory requisites are proved, to make the order, notwithstanding that the debtor is willing to pay the petitioning creditor's debt and costs (Ex pte Brigstocke, In re Brigstocke, 4 Ch. D., 348; Ex pte Boss, In re Whalley, L. R. 18, Eq. 375; see, too, Ex pte Claxton, In re Claxton, L. R. 7, Ch. 532). For further details as to the procedure on the hearing, see r r. 137–141. (3.) If the Court is not satisfied with the proof of the petitioning creditor's debt, or of the act of bankruptcy, or of the service of the petition, or is satisfied by the debtor that he is able to pay his debts, or that for other sufficient cause no order ought to be made,1 the Court may dismiss the petition. 1 1i.e., although satisfied with the proof of the particular debt on which the petition is founded. This appears to meet the case suggested by James, L. J., in Ex pte Brigstocke, In re Brigstocke, 4 Ch. D., 348, of a man bonâ fide disputing a debt, and all along intending to pay it when it should be proved against him, who, although the debt may be established, ought not to be made a bankrupt. The existence of a prior sequestration or bankruptcy in Scotland or Ireland is a primâ facie reason for the Court not to exercise its jurisdiction (Ex pte Robinson, In re Robinson, 22 Ch. D., cf. Ex pte McCulloch, In re McCulloch, 14 Ch. D., 716). Where petitions have been presented by persons who have bought up debts, not with the bona fide object of obtaining payment of them, but for some collateral purpose, as for instance, of extorting money from or putting undue pressure upon a debtor, or making him a bankrupt with a view to obtain his removal from a trusteeship, the Courts have considered such proceedings inequitable and an abuse of the bankruptcy law, and have accordingly refused to adjudicate (In re Davies, Ex pte King, 3 Ch. D., 461; Ex pte Griffin, In re Adams, 12 Ch. D., 480; Ex pte Harper, In re Pooley, 20 Ch. D., 685). Where there are more respondents than one to a petition, the Court may dismiss it as to one or more of them, without prejudice to the effect of the petition as against the other or others of them (s. 111). (4) When the act of bankruptcy relied on is noncompliance with a bankruptcy notice to pay, secure, or compound for a judgment debt, the Court may, if it thinks fit, stay or dismiss the petition on the ground that an appeal is pending from the judgment. The court may on other grounds adjourn or dismiss a petition founded on this alleged act of bankruptcy (r. 151). (5.) Where the debtor appears on the petition, and denies that he is indebted to the petitioner, or that he is indebted to such an amount as would justify the petitioner in presenting a petition against him, the Court, on 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 the debt, may instead of dismissing the petition stay all proceedings on the petition for such s. 7. |