§ 102.

As to landlords.

Where trustee claims by higher title.

not directly amenable to the jurisdiction of the Court of Bank-
ruptcy. He
says he desires that the case should not be tried
in the County Court, and says that he should like to have it
tried by the ordinary tribunal. . . . . Ought we to compel him
to submit to the jurisdiction of the County Court in a case in
which the amount at stake is so much beyond the ordinary
jurisdiction of that Court, except in bankruptcy, and in which
such serious questions of character arise? The County Court
Judge seems to have thought that he had not any discretion in
the matter, much less to have exercised any discretion." Brett,
L.J., also said: "If the sum in dispute had been small, say
under 50%., I should have thought we ought not to interfere
with the exercise of discretion by the County Court Judge, if
he had said that he would try the case himself. . . . . I do not
wish to put the case on any different footing from that on
which it would have stood if the allegation had been that the
deed was void, not under the Statute of Elizabeth, but as a
fraudulent preference. I think the fact that the question
arises under the Statute of Elizabeth has some bearing on the
exercise of the jurisdiction. But I do not preclude myself from
saying that if the case were one of fraudulent preference, it
ought not to be tried in the County Court if the third party
objected" (r).

So a landlord seizing goods prior to the bankruptcy, but sold after, has been held not liable to damages for wrongful distress or to be restrained (rr).

Where the Court has jurisdiction.

As a general proposition it may be laid down that where the trustee claims (but subject to the qualifications made in Ex parte Price, and the remarks of the present Master of the Rolls in that case), but by a higher title than the bankrupt, that is to say, where the trustee is seeking to impeach a transaction under some one or other of the clauses of the Bankruptcy Act, as, for instance, as a fraudulent preference, then it seems (but

(r) And see also Ex parte Cohen re Spark, L. R. 7 Ch. 20; 41 L. J. Bank. 17; Ex parte Winter re Burton, W. N., 1881, p. 112; and see Ex parte Dickin re Pollard, 8 Ch. D. 377; and Ex parte Musgrave re Wood, 10 Ch. D. 95, as to claims for mere money demands by the

trustee; see also Hutchinson re Holt, Ex parte, 47 L. T. 483; and see as to where a lien is claimed by a railway company, Ex parte Great Western Railway Company, 22 Ch. D. 470.

(rr) Ex parte Eatough re Cliffe, 42 L. T. 95.

again subject to the qualification above referred to where the amount is large and character is at stake) that the Court of Bankruptcy had jurisdiction.

§ 102.

Yates.

So in Ex parte Anderson (s), it was held that the Court had Ex parte jurisdiction to grant, in a summary way, an injunction to Anderson, restrain a person not a party to the proceedings from dealing with property alleged to have been fraudulently assigned before the bankruptcy (t). So also in Ex parte Brown re Yates (u), Ex parte where an order had been made, on the application of the Brown re trustee, directing that a mortgage executed by him should be delivered up to be cancelled, on the ground that the deed was a contrivance to defeat the creditors of the bankrupt, and also that it was a conveyance of substantially the whole of his available assets to secure a pre-existing debt, and the mortgagees appealed. James, L.J., said: "Questions of fraudulent preference and acts of bankruptcy are the very things which were intended to be dealt with by the Court of Bankruptcy. Where the trustee takes only that which the bankrupt himself would have taken, the matter should be left to the ordinary tribunals. But where, by the operation of the bankrupt law, the trustee claims by a higher and better title than the bankrupt, the matter is one which was intended to be dealt with by the Court of Bankruptcy (x). So also it has been held the Court can take an account between a debtor and the trustees

under a composition deed (y). But there is nothing to prevent a stranger to the bankruptcy submitting his rights to the determination of the Court; but such a person ought not to be encouraged to submit to the jurisdiction (2). Now, whatever the claim, the County Court has jurisdiction limited to two

(s) L. R. 5 Ch. 473.

(t) And see judgment of Giffard, L.J., at p. 479, in which he contrasts s. 72 of the 1869 Act with the 12th section of the 1849 Act; and on the words "parties to the bankruptcy," and "parties to the litigation."

(u) 11 Ch. D. 148.

(x) But see remarks of Brett, M.R., supra, in Ex parte Price. (y) Ex parte Carew, L. R. 10 Ch. 308; 44 L. J. Bank. 67.

(2) Ex parte Fletcher re Hart, 9 Ch. D. 381; see as to action for fraudulent misrepresentation, Ex

parte Baum, L. R. 9 Ch. 673; 44
L. J. Bank. 25; Ex parte Coker re
Blake, L. R. 10 Ch. 652; 44 L. J.
Bank. 126. As to an administration
action, see Ex parte Charlton, 38 L.
T. 295. As to equitable second
mortgagee not restrainable, Ex parte
Hirst, 11 Ch. D. 278. As to Ad-
miralty claim, Harris v. Halliday,
L. R. 9 C. P. 668. As to damages
for excessive distress, see Ex parte
Eatnough, 42 L. T. 95. As to per-
sonal demand against debtor, see
Ex parte Lacey, 16 Ch. D. 131; 50
L. J. Ch. 207.

§§ 102, 103. hundred pounds, but, on the other hand, all parties may, by

consent, extend the jurisdiction of the County Court to all cases triable in the High Court although not arising out of the bankruptcy, and whatever the amount or right may happen to be. Exception as to At the same time it seems, now that the London Bankruptcy the BankCourt has been united and consolidated as a branch or division ruptcy Division of High Court. of the High Court, that its limit of jurisdiction is left practically where it was as to third parties, but the doctrines laid down in the cases cited, and decided under Sect. 72 of the 1869 Act will be modified by the enactment of Sub-s. 5, by which the Bankruptcy Division of the Court, or the Judge of such Court making the receiving order, has power (without consent) to order the transfer to himself of any action pending in any other division brought or continued by or against the bankrupt.

Committal of trustee.

Vacating and removal.

Judgment debtor's

Objection to jurisdiction should be taken at the earliest opportunity, and not after the chances of a favourable decision on the merits (aa).

Defaulting Trustee.

See Debtors Act, 1869, Part I., Sect. 4, Sub-s. 3, excepting from the section abolishing imprisonment for debt, "default by a trustee or person acting in a fiduciary capacity and ordered to pay by a Court of Equity any sum in his possession or under his control."

"Trustee "here means a trustee in bankruptcy.

See as to vacating office upon receiving order being made, Sect. 85; removal, Sect. 86.

See also control by Board of Trade over trustees, Sect. 91. Under Sect. 30 of the 1869 Act the trustee was rendered liable to pay interest if he retained in his possession for more than ten days sums exceeding fifty pounds; and see now Sect. 74, Sub-s. 6.

Judgment Debtors.

103. (1.) It shall be lawful for the Lord Chancellor by order to direct that the jurisdiction and powers under be bankruptcy section five of the Debtors Act, 1869, now vested in the

summons to

business.

High Court, shall be assigned to and exercised by the
Judge to whom bankruptcy business is assigned.

(aa) Ex parte Swinbanks re Shanks, 11 Ch. D. 525; 48 L. J. Bank. 120. See also Ex parte Butters re Harri

son, 13 Ch. D. 603; 49 L. J.- Bank. 30: Ex parte Davies re Sadler, 19 Ch. D. 86.

(2.) It shall be lawful also for the Lord Chancellor in like manner to direct that the whole, or any part of the said jurisdiction and powers shall be delegated to and exercised by the bankruptcy registrars of the High Court.

(3.) Any order made under this section may, at any time, in like manner, be rescinded or varied.

(4.) Every County Court within the jurisdiction of which a judgment debtor is or resides shall have jurisdiction under section five of the Debtors Act, 1869, although the amount of the judgment debt may exceed fifty pounds.

(5.) Where, under section five of the Debtors Act, 1869, application is made by a judgment creditor to a Court, having bankruptcy jurisdiction, for the committal of a judgment debtor, the Court may, if it thinks fit, decline to commit, and in lieu thereof, with the consent of the judgment creditor, and on payment by him of the prescribed fee, make a receiving order against the debtor. In such case the judgment debtor shall be deemed to have committed an act of bankruptcy at the time the order is made.

(6.) General rules under this Act may be made for the purpose of carrying into effect the provisions of the Debtors Act, 1869.

§ 103.

debtor.

As to the jurisdiction formerly exercised by the High Court, Committal of see Sect. 5, Debtors Act, 1869, by which the Court had power to commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who made default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent Court, but limiting the right of any other Court than a Superior Court of law or equity to commit (1) to the Judge and his deputy, and by order made in open Court; (2) only in respect of a judgment of a Superior Court of law or equity when such judgment did not exceed 50l., exclusive of costs; (3) as respects a County Court judgment only exercised

88 103, 104. by a County Court Judge or his deputy. And observe that Sub-sect. (b) of Sect. 5 has been repealed limiting the judgment debt to 50l.

Power of

to commit.

See as to application to commit, General Orders, Debtors Act, 1869, Par. 3, from 10 to 18 inclusive. Also General Rules, Michaelmas Term, 1869, as to proceedings under Sect. 5 of the Debtors Act, 1869.

Proof of the means and ability of the debtor to pay was required to be given by affidavit, Rule 3.

As to the County Courts, see Rules in pursuance of the County Courts Debtors Act, 1869, under Order XIX. of Consolidated County Court Orders and Rules, 1875 (b). The jurisdiction under sub-sect. 4 gives to the County Courts, for the first time, power to commit where the judgment debt exceeds 50l., and this power, it seems, is not to be limited to such Courts as have bankruptcy jurisdiction.

Or make receiving order.

Appeals in bankruptcy. Bankruptcy

Act, 1869,

s. 71.

Where the Court however has bankruptcy jurisdiction it may make a receiving order, under Sub-sect. 5, in lieu of committal, and with the consent of the judgment creditor.

Appeals.

104. (1.) Every Court having jurisdiction in bankruptcy under this Act may review, rescind, or vary any order made by it under its bankruptcy jurisdiction.

(2.) Orders in bankruptcy matters shall, at the instance of any person aggrieved, be subject to appeal as follows:

(a.) An appeal shall lie from the order of a County
Court to Her Majesty's Court of Appeal :

(b.) An appeal shall lie from the order of the High
Court to Her Majesty's Court of Appeal:
(c.) An appeal shall, with the leave of Her Majesty's
Court of Appeal, but not otherwise, lie from the
order of that Court to the House of Lords:

(d.) No appeal shall be

(b) See as to second committal, Horsnail v. Bruce, L. R. 8 C. P. 378. In re Thompson's Estate, 43 L. J. Ch. 721; Re Imperial Credit Association, Lewis's Case, 42 L. J. Ch. 379. As to failure to pay a composition,

entertained except in con

Newell v. Van Praagh, L. R. 9 C. P. 96; and see Ex parte Hoosen, L. R. 8 Ch. 231, in which it was held that a creditor who was preferred was not a trustee, and could not be committed.