ss. 27, 28. Discharge of bankrupt. A witness who is a creditor is not entitled to a copy of his deposition as of strict right, but the Court has power to allow him to have one (Ex pte Prett, In re Hayman, 21 Ch. D., 439). (4.) If any person on examination before the Court admits that he is indebted to the debtor, the Court may, on the application of the official receiver or trustee, order him to pay to the receiver or trustee, at such time and in such manner as to the Court seems expedient, the amount admitted, or any part thereof, either in full discharge of the whole amount in question or not, as the Court thinks fit, with or without costs of the examination. (5.) If any person on examination before the Court admits that he has in his possession any property belonging to the debtor, the Court may, on the application of the official receiver or trustee, order him to deliver to the official receiver or trustee such property, or any part thereof, at such time, and in such manner, and on such terms as to the Court may seem just. (6.) The Court may, if it think fit, order that any person who if in England would be liable to be brought before it under this section shall be examined in Scotland or Ireland, or in any other place out of England. Discharge of Bankrupt. 28.—(1.) A bankrupt may, at any time after being adjudged bankrupt, apply to the Court for an order of discharge, and the Court shall appoint a day for hearing the application, but the application shall not be heard until the public examination of the bankrupt is concluded. The application shall be heard in open Court. (2.) On the hearing of the application the Court shall take into consideration a report of the official receiver as to the bankrupt's conduct and affairs, and may either grant or refuse an absolute order of discharge, or suspend the operation of the order for a specified time, or grant an order of discharge subject to any conditions with respect to any earnings or income which may afterwards become due to the bankrupt, or with respect to his afteracquired property: Provided that the Court shall refuse the discharge in all cases where the bankrupt has committed any misdemeanor under this Act, or Part II. of the Debtors Act, 1869, or any amendment thereof, and shall, on proof of any of the facts herein-after mentioned, either refuse the order, or suspend the operation of the order for a specified time, or grant an order of discharge, subject to such conditions as aforesaid. The effect of this sub-section seems to be as follows: 1. When the debtor has been guilty of a misdemeanor under this Act or Part II. of the Debtors Act, 1869, it shall be imperative on the Court to refuse his discharge. 2. Where the debtor has not been guilty of a misdemeanor, but has committed any of the offences specified in sub-s. (3), the Court has no power to grant an absolute order of discharge, but a discretion as to whether it will refuse, suspend, or qualify the order (cf. s. 29). 3. Where none of the above offences is proved against the debtor, and he would primâ facie be entitled to his discharge, but there is a prospect of his becoming possessed at some future time of property which would enable him to pay his creditors a larger dividend, then the Court, in granting the order, has a discretionary power to impose conditions. (3.) The facts herein-before referred to are— (a.) That the bankrupt has omitted to keep such books of account as are usual and proper in the business carried on by him and as sufficiently disclose his business transactions and financial position within the three years immediately preceding his bankruptcy : (b.) That the bankrupt has continued to trade after knowing himself to be insolvent : (c) That the bankrupt has contracted any debt provable in the bankruptcy, without having at (d.) That the bankrupt has brought on his bank- (e.) That the bankrupt has put any of his creditors to s. 28. s. 28. Order of discharge. unnecessary expense by a frivolous or vexatious defence to any action properly brought against him : (f) That the bankrupt has within three months preceding the date of the receiving order, when unable to pay his debts as they become due, given an undue preference to any of his creditors: (g.) That the bankrupt has on any previous occasion been adjudged bankrupt, or made a statutory composition or arrangement with his creditors: (.) That the bankrupt has been guilty of any fraud or fraudulent breach of trust. (4) For the purposes of this section the report of the official receiver shall be primâ facie evidence of the statements therein contained. (5.) Notice of the appointment by the Court of the day for hearing the application for discharge shall be published in the prescribed manner and sent 2 fourteen days at least before the day so appointed to each creditor who has proved, and the Court may hear the official receiver and the trustee, and may also hear any creditor. At the hearing the Court may put such questions to the debtor and receive such evidence as it may think fit. 1 r. 178, Form No. 127 (7) in the Appendix. By the official receiver (r. 178). A bankrupt intending to apply for his discharge under this section must produce to the Registrar a certificate from the official receiver specifying the number of his creditors, and shall, not less than 28 days before the day appointed for hearing the application, give notice of the time and place appointed to the trustee and to the official receiver (r. 178). An order of discharge shall be dated on the day it is made, and shall take effect on and from the day of its date, but shall not be delivered out or gazetted until after the expiration of the time limited for appeal, or if an appeal be entered, until after the decision of the Court of Appeal (r r. 179 and 180). (6.) The Court may, as one of the conditions referred to in this section, require the bankrupt to consent to judgment being entered against him by the official ss. 28, 29. receiver or trustee for any balance of the debts provable under the bankruptcy which is not satisfied at the date of his discharge; but in such case execution shall not be issued on the judgment without leave of the Court,1 which leave may be given on proof that the bankrupt has since his discharge acquired property or income available for payment of his debts. 1 The application must be in writing and proper notices given (r. 181). When a bankrupt is discharged subject to the condition that judgment be entered against him, or to any other condition as to his after-acquired property, it shall be his duty, until such judgment or condition is satisfied, from time to time to give the official receiver such information as he may require with respect to his after-acquired property, and not less than once a year to file in the Court a statement showing the particulars of any property or income he may have acquired subsequent to his discharge (r. 182). Unless judgment is entered in pursuance of this section as one of the conditions of the bankrupt's discharge, it would seem that any property acquired by him after his discharge would, notwithstanding the administration of his affairs is not concluded, belong to him and not to his trustee (Ebbs v. Boulnois, L. R. 10, Ch. 479; In re Bennett's Trusts, L. R. 10, Ch. 490, reversing s.c., L. R. 19, Eq. 245), as well as from the language of s. 44 (i), which limits the property of the bankrupt divisible amongst his creditors to such as may be acquired by or devolve on him before his discharge. (7.) A discharged bankrupt shall, notwithstanding his discharge, give such assistance as the trustee may require in the realization and distribution of such of his property as is vested in the trustee, and if he fails to do so he shall be guilty of a contempt of Court; and the Court may also, if it thinks fit, revoke his discharge, but without prejudice to the validity of any sale, disposition, or payment duly made or thing duly done subsequent to the discharge, but before its revocation. Fraudulent 29. In either of the following cases; that is to say, (1.) In the case of a settlement made before and in settlements. consideration of marriage where the settlor is not at the time of making the settlement able to pay all his debts without the aid of the property comprised in the settlement; or ss. 29, 30. (2.) In the case of any covenant or contract made in consideration of marriage for the future settlement on or for the settlor's wife or children of any money or property wherein he had not at the date of his marriage any estate or interest (not being money or property of or in right of his wife); Effect of order If the settlor is adjudged bankrupt or compounds or arranges with his creditors, and it appears to the Court that such settlement, covenant, or contract was made in order to defeat or delay creditors, or was unjustifiable having regard to the state of the settlor's affairs at the time when it was made, the Court may1 refuse or suspend an order of discharge, or grant an order subject to conditions, or refuse to appròve a composition or arrangement, as the case may be, in like manner as in cases where the debtor has been guilty of fraud. 1 In any case mentioned in this section the Court has a discretionary power to refuse or suspend an order of discharge, or to grant it subject to conditions, whereas it is imperative on the Court to adopt one of these three courses in any of the cases specified in s. 28 (3). See notes under s. 47, and Freeman v. Pope, L. R. 5, Ch. 538, In re Ridler, 22 Ch. D., 74, as to an intention to defeat or delay creditors. 30.-(1.) An order of discharge shall not release the of discharge. bankrupt from any debt on a recognizance nor from any debt with which the bankrupt may be chargeable at the suit of the Crown or of any person for any offence against a statute relating to any branch of the public revenue, or at the suit of the sheriff or other public officer on a bail bond entered into for the appearance of any person prosecuted for any such offence: and he shall not be discharged from such excepted debts unless the Treasury certify in writing their consent to his being discharged therefrom. An order of discharge shall not release the bankrupt from any debt or liability incurred by means of any fraud1 or fraudulent breach of trust2 to which he was a party, nor from any debt or liability whereof he has obtained forbearance by any fraud to which he was a party. |