bankrupt upon a creditor's petition, if such adjudication was within six months (g), and such adjudication, when it occurred, involved all the consequences of a bankruptcy, including the doctrine of relation back of the trustee's title to earlier acts of bankruptcy (h); but the proceedings were deemed to have commenced from the date of the appointment of the trustee (i). So, now, it would seem it is intended that if the debtor himself desires either to initiate actual bankruptcy proceedings, or to invite such proceedings to be taken by a creditor against. him, he may (1) either file a declaration of inability to pay, so that any creditor who likes may petition, alleging such act of bankruptcy; or (2) he may himself file a petition alleging his inability to pay, and apply for a receiving order to be made against him, and which petition will be, for all purposes of the receiving order and for adjudication, an act of bankruptcy, and cannot be withdrawn without the leave of the Court (k). And such petition will likewise, upon the trustee's appointment, be sufficient to found his title upon (7). The Act of 1861 (Sect. 72) made the filing of a declaration, either by a trader or non-trader, that he was "unable to meet his engagements," an act of bankruptcy, provided a petition in bankruptcy was presented within two months. And the Act of 1849 (Sect. 76) also made the filing of a petition for arrangement between a trader-debtor and his creditors conclusive evidence of an act of bankruptcy, provided a petition for adjudication was filed within two months after the dismissal of such petition for arrangement. But under the Acts of 1849 and 1861, the title of the trustee only related back to the Act of bankruptcy committed by the debtor by filing such declaration or petition, and not to prior acts of bankruptcy (m). As to the legality of a contract not to file a declaration of inability (n). And the filing of such a declaration is complete (7) See s. 125 and 126, and r. 266, B. A., 1869; and Ex parte James re Condon, L. R. 9 Ch. 609; 43 L. J. Bank. 107; Ex parte Hoare re Walton, L. R. 16 Eq. 625; Ex parte Stebbing re Stebbing, L. R. 19 Eq. 441. (h) S. 125, pars. 5, 7; and Ex parte Eyles re Edwards, L. R. 16 Eq. 99; Ex parte Duignan re Bissell, L. R. 6 Ch. 605. (i) 1869 Act, s. 125, par. 4. (1) See s. 43 as to relation back (m) Cannan v. South Eastern Railway Co., 7 Ex. 843. (n) Hill v. Cowdery, 25 L. J. Ex. 285. 8 4. 8 4. Judgment debtor's notice. on the delivery of the document by a properly authorised person to the proper officer at the proper office, with intent that it should be filed or placed on record in the ordinary way (o). The petition is to be presented in the County Court for the district in which the debtor has resided or carried on business for the longest period during the six months immediately preceding the presentation of the petition (p). (g.) If a creditor has obtained a final judgment against him for any amount, and execution thereon not having been stayed, has served on him in England, or, by leave of the Court, elsewhere, a bankruptcy notice under this Act, requiring him to pay the judgment debt in accordance with the terms of the judgment, or to secure or compound for it to the satisfaction of the creditor or the Court, and he does not, within seven days after service of the notice, in case the service is effected in England, and in case the service is effected elsewhere, then within the time limited in that behalf by the order giving leave to effect the service, either comply with the requirements of the notice, or satisfy the Court that he has a counter-claim, set off, or cross demand which equals or exceeds the amount of the judgment debt, and which he could not set up in the action in which the judgment was obtained: This provision is substituted for the process by "debtor's summons " under the 1869 Act. But whereas the debtor's summons could have been resorted to prior to judgment, and was subject to two distinct limits of time (i.e., seven days in the case of a trader, and three weeks in the case of a nontrader), and was also restricted in amount to the sum of not less than 50%., now the proceeding is, after judgment in respect (0) Ransford v. Maule, L. R. 8 C. P. 672; 42 L. J. C. P. 231. (p) As to residents out of London, s. 95, par. 2; see further as to filing petition in London, s. 95, of a judgment debt, for any amount, however small, and execution has not been stayed, and also with a uniform limit of seven days after notice requiring payment in the case of all debtors, whether traders or otherwise, if service is effected in England, and in such other time as the Court shall limit, where service is effected abroad. Under the 1849 Act, a creditor was entitled to proceed against his debtor, if a trader, by "trader-debtor's summons," after delivery of account of particulars in writing, and after making due demand of payment, whatever the amount was; but he was not obliged to wait for judgment in the action, and if payment was not made, or security given, or cause shown, within seven days after service of such summons, an act of bankruptcy was committed (7), provided a petition was filed against such trader within two months. And in making an affidavit of debt under this section, the creditor was bound to deduct any sum due to his debtor arising out of the transaction on which the demand was founded, and where there were mutual accounts, any clear set-off of which the creditor knew was to be deducted (7). And it seems the proceeding could be taken simultaneously with an action at law for the recovery of the same debt, and though the debtor paid the demand under pressure of the former proceedings, the Court would not stay the action without payment of the costs (8). And the debtor could sign a warrant of attorney elsewhere than in Court, admitting the debt. The trader could also have, upon giving security, the claim in the action tried out. By the Act of 1861, a judgment creditor was also at liberty to issue a "judgment debtor summons" against either a trader or a non-trader, if he was entitled to sue out a writ of capias, or to charge the debtor in execution in respect of any debt amounting to 501. exclusive of costs; and this he might do in the case of a trader at the end of a week, and in the case of a non-trader, at the end of a month, from the signing of judgment, such summons requiring the debtor to appear and be examined respecting his ability to satisfy the debt, and upon such examination, if the whole estate of the debtor was not disclosed, he could be committed as in the case of a bankrupt. (2) Act of 1849, ss. 78, 79, 80. (r) Marshall v. Sharland, 15 Jur. 168; 20 L. J. Q. B. 3. (8) Covington v. Hogarth, 8 Scott, 725; 7 Man. & G. 1013. 8 4. 8 4. The Court had also power, without any petition, to adjudicate the debtor a bankrupt, with an interval in such a case, and before the bankruptcy became absolute, for him to show cause why the adjudication should not be annulled. The effect of the Repeal Act, and of the Act of 1869, was to sweep away both these methods, and to substitute the "debtor's summons," a proceeding analogous to the trader-debtor's summons of the 1849 Act, except that it was extended to both trader and non-trader, with the two limits of seven days and three weeks respectively. has practi In this Act the "judgment debtor's summons cally been restored, but without any of the distinctions which existed under the Act of 1861. The word "summons" is superseded by "notice," and the judgment may be in respect of any amount, however small. When the Act was introduced as a bill, this sub-clause contained the word "petitioning" before the word "creditor," and the words "in an action" before the words "against him," and the words "execution thereon not having been stayed were not in the clause, whilst "three" days were fixed as the limit. Now, however, the act of bankruptcy will be committed although the judgment creditor be not the petitioning creditor, or in other words the act of bankruptcy will not be a limited one or available only by (as was the act of bankruptcy under debtor's summons) the particular creditor whose judgment it is. Final judgment. In Archbold's Practice a judgment is defined as "the sentence of the law pronounced by the Court upon the matter contained in the record, and may be either final or interlocutory." Below will be found seriatim some of the most important of the methods and various processes by which final judgments may now be obtained. The omission of the words "in an action" will tend to make it evident that it is unimportant how the judgment has been obtained, since it is final and not interlocutory, as, for instance, upon warrants of attorney, which can be given whether an action is then pending or not (t). (t) Archbold's Practice, 13 Ed., vol. 2, p. 763; and Baddely v. Shafto, 8 Taunt. 434; Reeves v. The Act of 1861 (Sect. 77) contained a special provision in respect of cases of "disobedience of a decree or order of a Court of Equity, or an order in bankruptcy or insolvency, or lunacy, directing the payment of money," such disobedience after service of the order and neglect for seven days in the case of a trader, and two calendar months in the case of a non-trader, to pay in pursuance of such order, entitling the creditor to sue out a judgment debtor summons. But this Act contains no similar provision. It is submitted that decrees of the Chancery Division will have the effect of judgments (u). An order in bankruptcy will, now that the Court is a branch of the High Court, be an order of that Division, and may be enforced as a judgment of that Court. Strictly, it seems, an "order" is not a "judgment," but at the same time every order of the Court or a Judge in any cause or matter may be enforced against all persons bound thereby in the same manner as a judgment to the same effect (x), yet such orders will not be "judgments" within this clause. Judgments entered up in pursuance of awards upon a reference to arbitration, whether compulsory or by consent, will also be within the clause, or upon reference to a Master (y). Judgments by consent. 8 4. There would seem to be nothing in the language of this Confession of section, nor of Section 48, to prevent a debtor consenting to judgments. judgment: firstly, for the express purpose of bringing about the committal of this act of bankruptcy, by subsequent neglect to pay, secure, or compound; secondly, for the purpose of giving the creditor a security; but in all such cases it is submitted the debt must be a bona fide debt and unpaid (z). (u) Judicature Act, 1873, s. 100, "judgment shall include decree." (x) R. S. C., 1883, Or. 42, r. 24. (y) Ibid, Or. 54, an appeal from Master's decision does not operate as a stay of proceedings unless so ordered, Ib. Or. 54, r. 22; and his certificate is final, Or. 42, r. 8. (z) See Ex parte Kibble re Onslow, L. R. 10 Ch. 373; 44 L. J. Bank. 63; Ez parte Banner re Blythe, 17 Ch. D. 480; a person suffering judgment by default, did not "procure" his goods |