§ 105. Discretionary powers of the Court. Procedure. 105. (1.) Subject to the provisions of this Act and to general rules, the costs of and incidental to any proceedings in Court under this Act shall be in the discretion of the Court: Provided that where any issue is tried by a jury the costs shall follow the event, unless, upon application made at the trial, for good cause shown, the Judge before whom such issue is tried shall otherwise order. (2.) The Court may at any time adjourn any proceedings before it upon such terms, if any, as it may think fit to impose. (3.) The Court may at any time amend any written process or proceeding under this Act upon such terms, if any, as it may think fit to impose (oo). (4.) Where by this Act or by general rules, the time for doing any act or thing is limited, the Court may extend the time either before or after the expiration thereof, upon such terms, if any, as the Court may think fit to impose. (5.) Subject to general rules, the Court may in any matter take the whole or any part of the evidence either viva voce, or by interrogatories, or upon affidavit, or by commission abroad. (6.) For the purpose of approving a composition or scheme by joint debtors, the Court, may, if it thinks fit, and on the report of the official receiver that it is expedient so to do, dispense with the public examination of one of such joint debtors if he is unavoidably prevented from attending the examination by illness or absence abroad. Costs. Order LXV. r. 1, of the Rules of the Supreme Court, 1883, (00) See as to immateriality of affi- Ritso, 22 Ch. D. 529. davit to amended petition, Ex parte where matter "tried with a jury, the costs shall follow the event, §§ 105, 106. unless the Judge by whom such action, cause, matter, or issue, is tried, or the Court shall, for good cause, otherwise order" (p). Adjournment of proceedings. See also Sect. 109, as to stay of proceedings. See also Sect. 7, sub-sect. 6, as to stay of proceedings to try petitioning creditor's debt. As to adjournment of public examination, see Sect. 17, subsect. 3. As to adjourned first meeting, see Sect. 18. As to allowance of further time for holding first meeting, see Sect. 20. See Sect. 103, as to appeals; and compare Ord. 64, r. 7, as to time. Evidence. Sub-sect. 5 extends the right to take evidence by interrogatories, &c., to proceedings in bankruptcy. See R. S. C. 1883, Ord. 31, as to interrogatories. As to evidence generally, and the mode of taking it, see R. S. C. Ord. 37. As to examination by commission, Ord. 37, rr. 5 and 6; and for forms of commission to examine, R. S. C. Appendix J, form 13, and Appendix K, form 37. 106. Where two or more bankruptcy petitions are Consolidation of petitions. presented against the same debtor or against joint debtors, the Court may consolidate the proceedings, or Act, 1869, any of them, on such terms as the Court thinks fit. This section has been taken from Sect. 80 of the Act of 1869. Bankruptcy s. 80. Where two bankruptcy petitions were presented against the Consent to same debtor, and he consented to immediate adjudication on adjudication. (p) As to liability of trustee in unsuccessful application for costs, see Ex parte Angerstein, L. R. 9 Ch. 479; and see Ex parte Prater, 2 M. & A. 364; Pitts v. La Fontaine, L. R. 6 App. Ca. 482; Ex parte Staple ton re Nathan, 10 Ch. D. 586; Ex §§ 106, 107, the second, the first not having been served, it was held the 108. Court had power to hear the second petition first, and to make an immediate adjudication on it without requiring notice to be given to the first petitioner (2). Power to change carriage Bankruptcy 107. Where the petitioner does not proceed with due of proceedings. diligence on his petition, the Court may substitute as petitioner any other creditor to whom the debtor may be indebted in the amount required by this Act in the case of the petitioning creditor. Act, 1869, s. 80. Substitution creditor. This section refers to the substitution for a petitioner, of any of petitioning other creditor to whom the debtor may be indebted in the required amount as under the Act of 1869. Therefore, the debt owing by the debtor, or if two or more join in the petition, the aggregate amount of debts owing to the several petitioning creditors, must amount to 50l., and the debt must be a liquidated sum payable either immediately or at some certain future time. See Sect. 6. Continuance of Bankruptcy No abatement by death. It is apprehended where it is desirable to substitute a new petitioner two or more creditors can be substituted, notwithstanding the use of the words “ any other creditor” (r). See Sect. 7, as to dismissing petition, &c., and Ib. sub-sect. 6, as to making receiving order upon another creditor's petition where first petition has been stayed, &c. 108. If a debtor by or against whom a bankruptcy petition has been presented dies, the proceedings in the matter shall, unless the Court otherwise orders, be continued as if he were alive. This provision was likewise contained in the 1869 Act. Death of a bankrupt did not abate the proceedings, for the remedy of the creditors was to continue to have administration of the bankrupt's effects, notwithstanding his death. But it was held that the right did not extend to a case where the debtor died after the presentation of a petition for liquidation (q) Ex parte Mason re White, 14 Ch. D. 71; 49 L. J. Bank. 56; 42 L. T. 884; see also Ex parte Mackenzie re Helliwell, L. R. 20 Eq. 758; 44 L. J. Bank. 117. (r) See Re Bristow, L. R. 3 Ch. 247, as to the reasons for such substitution. 110. and prior to the first meeting. Under the present Act, how- §§ 108, 109, ever, the words used are "if a debtor by or against whom a petition has been presented." So, notwithstanding the debtor petitions, where there is adjudication the proceedings may go on; and perhaps also where he dies prior to adjudication, such adjudication, or rather administration, may take place; but the enactment will not apply to a case under Sect. 18 or Sect. 23, for proceedings under those sections can only be carried on at the instance, and in the mutual interest of debtor and creditors (s). 109. The Court may at any time, for sufficient reason, Power to stay proceedings. make an order staying the proceedings under a bank- Bankruptcy ruptcy petition, either altogether or for a limited time, on Act, 1869, such terms and subject to such conditions as the Court may think just. ss. 80, 10. See and compare this section with Sect. 7, sub-sect. 4, As to pending enabling the Court to stay or dismiss the petition on the ground appeal. of an appeal pending, when the act of bankruptcy is non-compliance with a bankruptcy notice to pay, secure, or compound for a judgment debt. See also Sect. 7, Sub-sect. 5, as to stay of proceedings, so as to determine the amount of petitioning creditor's debt. present peti 110. Any creditor whose debt is sufficient to entitle Power to him to present a bankruptcy petition against all the tion against partners of a firm may present a petition against any one one partner. or more partners of the firm without including the others. Bankruptcy This is a re-enactment of Sect. 100 of the Act of 1869. This section must be read in conjunction with Sect. 115, Disclosure of which permits proceedings against a partnership to be in the name of firm. name of the firm, subject to the Court ordering the names to be disclosed. It must also be remembered that to support a joint adjudication, each of the partners must be proved to have committed an act of bankruptcy during the existence of the joint debt (t). (s) See Re Obbard, 24 L. T. 145. (t) Hogg v. Bridges, 8 Taunt. 200; Bowker v. Burdekin, 11 M. & §§ 110, 111, And petitions against joint debtors may be consolidated under 112. Power to dis- Bankruptcy Property of partners to be vested in same trustee. Bankruptcy Act, 1869, s. 102. Sect. 106. The Court may dismiss the petition as to one or more respondents. See Sect. 111. As to the liability of a former partner upon the dissolution of partnership for goods sold to the new firm; see infra (tt). 111. Where there are more respondents than one to a petition the Court may dismiss the petition as to one or more of them, without prejudice to the effect of the petition as against the other or others of them. See notes to Sect. 110. This section does not necessarily refer to a partnership, but to persons alleged to be jointly indebted, but one or more of whom turn out not to be so liable to the petitioner; and see Sect. 6, and notes. 112. Where a receiving order has been made on a bankruptcy petition against or by one member of a partnership, any other bankruptcy petition against or by a member of the same partnership shall be filed in or transferred to the Court in which the first-mentioned petition is in course of prosecution, and, unless the Court otherwise directs, the same trustee or receiver shall be appointed as may have been appointed in respect of the property of the first-mentioned member of the partnership, and the Court may give such directions for consolidating the proceedings under the petition as it thinks just. As to vesting of property upon adjudication in the trustee, see Sect. 20. As to joint and separate estate, see Sect. 40. As to dividends, see Sect. 59. The section substantially corresponds with Sect. 98 of the Act of 1849, and Sect. 102 of the Act of 1869. Under the former Act, the term used was "annexation" of the bankruptcies (u). Compare Sect. 97 as to transfer of proceedings from Court to Court. (tt) Scarf v. Jardine, L. R. 7 Ap. Ca. 345, in which it was held that such liability was by way of estoppel, and not a joint liability. (u) And see Ex parte Green, 27 L. J. Bank. 32; and Ex parte Haines, 27 L. J. Bank. 33. |