Imágenes de páginas
PDF
EPUB

§ 23.

Annulment.

Application of
Part III.

Who are bound.

ruptcy, or annulment, see notes to Sect. 18 (d). Probably
also the terms of the order will now prevent any question
arising as to the rights of the bankrupt and the trustee, and it
is submitted that, as upon unconditional approval under Sect. 18
the effect is, it seems, tantamount to a discharge, so also by
the application of Sect. 18 to this section that such approval
when granted will now, as one of the consequences (which it
formerly, under Sect. 28, had not), be equivalent to a dis-
charge.

This section has not recognised the claims of the creditors
as did Sect. 28, to make annulment a condition, but seems
rather to leave it in the discretion of the Court upon its
approving of the composition or scheme.

It is not easy to say what effect will be given to the 13th sub-sect. of Sect. 18, which of course will constructively apply to this section. That clause runs thus:

66

"Part III. of this Act shall, so far as the nature of the case and the terms of the composition or scheme admit, apply thereto, the same interpretation being given to the words trustee," "bankruptcy," "bankrupt," and "order of adjudication," as in the last preceding section," but under sub-s. 12 of Sect. 18, only when a trustee is appointed to administer the debtor's property or manage his business, do the terms “bankruptcy," "bankrupt," and "order of adjudication" include respectively a composition or scheme of arrangement, a compounding or arranging debtor, and order appproving the composition or scheme.

It may be the intention is that, only where the creditors, as a term of the composition, require a trustee to administer the estate, it shall be taken that their rights are preserved, and that, in such a case, the order of the Court will not unconditionally annul the bankruptcy, but vest the estate in such trustee when the clauses of Part III. will apply (e).

Another consequence of the approval of a composition under this section will be (as under Sect. 18) to bind all the creditors

(d) See also Ex parte Tinker re 834.
France, ante; Re Wainwright, 19
Ch. D. 140; and Ex parte Allard, 16
Ch. D. 505. As to the right of the
bankrupt after annulment, to apply
to reduce proof, Ex parte Bacon re
Bond, 17 Ch, D. 447; 44 L, T.

(e) And see Bailey v. Johnson, L. R. 7 Ex. 263; and Re Lennard re Chidley, 1 Ch. D. 177; 45 L. J. Bank. 49; Crew v. Terry, 2 C. P. D. 403; and see Gilbey v. Jeffries, 52 L. J. Q. B. 116; 31 W. R. 381.

[ocr errors][merged small]

80 far as relates to any debts due to them from the debtor, and §§ 23, 24. provable in bankruptcy (ƒ).

The composition may also be enforced by the Court on the application of a person interested (g).

Default in Payment.

this section.

Sub-sect. 3 of this section differs in some respects from sub- Comparison of sect. 11 of Sect. 18. In the latter case the Court is to have Sect. 18 and evidence that the composition, &c., "cannot proceed without injustice or undue delay," &c., whilst no evidence seems to be necessary under this section. And whilst, under Sect. 18, for default in payment or in consequence of "legal difficulties" or for any sufficient cause if the composition, &c., cannot proceed, &c., "the Court may, if it thinks fit," on the application of "any creditor," adjudge the debtor bankrupt; under this section only if it appears to the Court, inter alia, that "the composition or scheme cannot proceed without injustice or undue delay" the Court may on application by any "person interested" adjudge, &c. (h). As to approving a composition of joint debtors when one is absent, Sect. 105, sub-sect. 6.

Control over Person and Property of Debtor.

debtor as to

24. (1.) Every debtor against whom a receiving order Duties of is made shall, unless prevented by sickness or other discovery and sufficient cause, attend the first meeting of his creditors, realization of and shall submit to such examination and give such in- Bankruptcy formation as the meeting may require.

(f) See s. 18, sub-s. (8), sub-s. 1 of this section, and will bind a creditor though he has not proved his debt; Re Orpen, 16 Ch. D. 202; 50 L. J. Ch. 25; 43 L. T. 728; and see Ex parte Englehart, 31 W. R. 802.

(g) See s. 18, sub-s. 10. The mere giving of bills of exchange without actual payment does not amount to a discharge of the original debt, Erskine v. Moreland, 10 Ir. R. Ch. D. 243.

(h) The Court has no jurisdiction

to enforce the payment of a composi-
tion by a surety who has covenanted
with a trustee for creditor for its
payment, Ex parte Mirabita re Dale,
L. R. 20 Eq. 772; 44 L. J. Bank.
119; but the Court could order the
trustee to sue a surety. Ex parte
Monkhouse re Dale, 1 Ch. D. 287;
and see as to securing a surety for
composition, Ex parte Burrell re
Robinson, 1 Ch. D. 537; 45 L. J.
Bank. 68.

property.

Act, 1869, s. 19.

§ 24.

(2.) He shall give such inventory of his property, such list of his creditors and debtors, and of the debts due to and from them respectively, submit to such examination in respect of his property or his creditors, attend such other meetings of his creditors, wait at such times on the official receiver, special manager, or trustee, execute such powers of attorney, conveyances, deeds, and instruments, and generally do all such acts and things in relation to his property and the distribution of the proceeds amongst his creditors, as may be reasonably required by the official receiver, special manager, or trustee, or may be prescribed by general rules, or be directed by the Court by any special order or orders made in reference to any particular case, or made on the occasion of any special application by the official receiver, special manager, trustee, or any creditor or person interested.

(3.) He shall, if adjudged bankrupt, aid, to the utmost of his power, in the realisation of his property and the distribution of the proceeds among his creditors.

(4.) If a debtor wilfully fails to perform the duties imposed on him by this section, or to deliver up possession of any part of his property, which is divisible amongst his creditors under this Act, and which is for the time being in his possession or under his control, to the official receiver or to the trustee, or to any person authorised by the Court to take possession of it, he shall, in addition to any other punishment to which he may be subject, be guilty of a contempt of Court, and may be punished accordingly.

There appears to be a statutory obligation imposed upon the bankrupt to attend the first meeting; but as to meetings generally, there would seem to be no such necessity, except where there is a request that he should so attend on the part of the official

receiver, special manager, or trustee, or as may be prescribed g§ 24, 25. by the general rules (see sub-sect. 2).

Contempt of Court.

The bankrupt is liable to prosecution under the Debtors Examination, Act, 1869, Sect. 11, if he does not deliver up possession of his &c., of debtor. property, and independently of his liability to such prosecution,

he is here rendered guilty, for such matters as are specified, of

a contempt of Court, and liable to be punished (i).

See Sect. 69 as to the duties of the official receiver with respect to the bankrupt's conduct.

The registrars have no power to commit for contempt (Sect. 99). It seems the official receiver has no power to examine the debtor upon oath, except at his public examination or under Sect. 27; but his statement may be taken down and used in evidence against him.

The special manager, when appointed under Sect. 12, in pursuance of the delegation of the receiver's powers and functions, may require the debtor's aid and assistance.

When the bankrupt is (as he may become) special manager appointed by the trustee under Sect. 64, he will probably still have to assist the trustee within the meaning of this section.

debtor under

Bankruptcy

25. (1.) The Court may, by warrant addressed to any Arrest of constable or prescribed officer of the Court, cause a certain circumdebtor to be arrested, and any books, papers, money, and stances. goods in his possession to be seized, and him and them Act, 1869, to be safely kept as prescribed until such time as the s. 86. Court may order under the following circumstances: (a.) If after a bankruptcy notice has been issued under

this Act, or after presentation of a bankruptcy
petition by or against him, it appears to the Court
that there is probable reason for believing that he

(i) Property over which the bankrupt has given a security, though void as against the trustee, is not his property within the Debtors Act, Reg. v. Creese, L. R. 2 C. C. R. 105; 43 L. J. M. C. 51. Under the Act of 1869, it was held that, although

N

the creditors accept a composition,
the Court had jurisdiction, if a dissen-
tient creditor made out a primâ facie
case of fraud on the part of the debtor,
to order him to be examined, Ex parte
Jones, L. R. 16 Eq. 386.

33 & 34 Vict. c. 76.

§ 25.

is about to abscond with a view of avoiding payment of the debt in respect of which the bankruptcy notice was issued, or of avoiding service of a bankruptcy petition, or of avoiding appearance to any such petition, or of avoiding examination in respect of his affairs, or of otherwise avoiding, delaying, or embarrassing proceedings in bankruptcy against him.

(b.) If, after presentation of a bankruptcy petition by or against him, it appears to the Court that there is probable cause for believing that he is about to remove his goods with a view of preventing or delaying possession being taken of them by the official receiver or trustee, or that there is probable ground for believing that he has concealed or is about to conceal or destroy any of his goods, or any books, documents, or writings, which might be of use to his creditors in the course of his bankruptcy.

(c.) If, after service of a bankruptcy petition on him, or after a receiving order is made against him, he removes any goods in his possession above the value of five pounds, without the leave of the official receiver or trustee.

(d.) If, without good cause shown, he fails to attend any examination ordered by the Court.

Provided that no arrest upon a bankruptcy notice shall be valid and protected unless the debtor before or at the time of his arrest shall be served with such bankruptcy notice.

(2.) No payment or composition made or security given after arrest made under this section shall be exempt from the provisions of this Act relating to fraudulent preferences,

« AnteriorContinuar »