trustee and Bankruptcy s. 105. 113. Where a member of a partnership is adjudged § 113. bankrupt, the Court may authorise the trustee to com- Actions by mence and prosecute any action in the names of the bankrupt's trustee and of the bankrupt's partner; and any release partners. by such partner of the debt or demand to which the Act, 1869, action relates shall be void; but notice of the application for authority to commence the action shall be given to him, and he may show cause against it, and on his application the Court may, if it thinks fit, direct that he shall receive his proper share of the proceeds of the action, and if he does not claim any benefit therefrom he shall be indemnified against costs in respect thereof as the Court directs. The words of this section follow, with a slight variation, those No consent of creditors of Sect. 105 of the 1869 Act. The chief change is the omission required. of the words which were in Sect. 105, "with the consent of the creditors, certified by a special resolution," from the present section. The Court it seems, therefore, may give the authority without reference to the wishes of the creditors, except that by Sect. 57 the trustee can only bring actions with the permission of the Committee of Inspection. A similar provision has always found a place in former Acts (x). Where formerly, under the similar provisions of the 1849 Act, one of two partners became bankrupt in respect of his separate estate, and an official assignee and a creditor's assignee were appointed, and the partnership dissolved by the bankruptcy, the continuing partner was held entitled to have a receiver of the partnership debts appointed by the Court of Chancery (y). valid. Ordinarily at law, payment to one of several partners in Payment to trade is a payment to the firm at large, and it is also within one of a firm the scope and authority of one partner, even after a dissolution of partnership, to receive and give a discharge for a debt owing to the firm (z). (x) See s. 152 of the 1849 Act. (y) Freeland v. Stansfield, 16 Jur. 792. See as to carrying out an inchoate deed of arrangement by GG partners, Ex parte Foster, 22 Ch. D. (z) Addison on Contracts, 8th ed., 88 113, 114, 115. Joint release. Trustee may assign. Actions on Proceedings in partnership name. This section seems, in one view of it, to make void a release given by the bankrupt's partner, independently of whether the authority of the Court has been obtained to the prosecution of the action or otherwise; on the other hand, the section speaks of "any release. . . . of the debt or demand to which the action relates." Probably the only safe course for a person indebted is to have a joint discharge or release from the trustee and the bankrupt's partner in any case. Debt or Demand. All such demands, whether consisting in damages or not, which can properly vest in the trustee, would seem to be included (a). The trustee, however, may instead of himself bringing an action relating to the debtor's property assign it, and the assignee may then bring the action in his own name (b). See also Sects. 56 and 57 as to the trustee's powers to deal with the property of the bankrupt. 114. Where a bankrupt is a contractor in respect of any contract jointly with any person or persons, such person or persons may sue or be sued in respect of the contract without the joinder of the bankrupt. Joint Contracts. This section must be compared with Sect. 113, and, it must be observed, refers to joint contracts and not to partnerships as under Sect. 113. It would seem the effect is to vest the right to sue in the solvent contractor, subject to his obligation to account for the bankrupt's interest to the trustee. 115. Any two or more persons, being partners, or any person carrying on business under a partnership name, (a) And see as to splitting distinct and separate causes of action as to bankrupt's property and feelings, Boddington v. Castelli, 23 L. J. Q. B. (b) See Seear y. Lawson, 15 Ch. D. 426; 49 L. J. Bank. 69; 42 L. T. 893; and see s. 25, par. 6, Judicature Act, 1873 (36 & 37 Vict. c. 66). may take proceedings or be proceeded against under this 88 115, 116. Act in the name of the firm, but in such case the Court may, on application by any person interested, order the names of the persons who are partners in such firm or the name of such person to be disclosed in such manner, and verified on oath, or otherwise as the Court may direct. This section is new, and brings the law into accord with the R. S. C. similar powers in Order XVI., Rules 14, 15 of the Judicature Ord. XVI. Rules, 1883 (c), which enable persons claiming or being liable as co-partners to sue or to be sued in the name of the firm. Any person carrying on business in the name of a firm, to be sued in such name. See and compare Sect. 123 as to exclusion of partnerships and companies under the Companies Acts. Officers. officers. 116. (1.) No registrar or other officer attached to any Disabilities of Court having jurisdiction in bankrupcy shall, during his continuance in office, be capable of being elected or sitting Act, 1869, as a member of the House of Commons. (2.) No registrar or official receiver or other officer attached to any such Court shall, during his continuance in office, either directly or indirectly, by himself, his clerk, or partner, act as solicitor in any proceeding in bankruptcy or in any prosecution of a debtor by order of the Court, and if he does so act he shall be liable to be dismissed from office. Provided that nothing in this section shall affect the right of any registrar or officer appointed before the passing of this Act to act as solicitor by himself, his clerk, or partner to the extent permitted by Sect. 69 of the Bankruptcy Act, 1869. (c) See where there has been no dissolution, Ex parte Young, 19 Ch. D. 124,C. A, Bankruptcy 8. 69. §§ 116, 117, 118. Extends to all Enforcement of orders of Courts throughout the United Kingdom. Bankruptcy Act, 1869, 8. 73. Courts to be auxiliary to each other. Bankruptcy Act, 1869, s. 74. Disabilities of Officers. By Sect. 9 of the Act of 1869 the word "Judge" was included in the disqualification to sit in the House of Commons, but the word does not occur in this section, as perhaps being now unnecessary. Nor was a registrar allowed to practise as a solicitor in his own Court. The words "in any Court of which he is registrar or officer do not occur in this section as they did in Sect. 69 of the last Act. No registrar, official receiver, or other officer, therefore, will be allowed now to act in any proceeding, directly or indirectly, in bankruptcy in any Court or in a prosecution of a debtor by order of the Court, under pain of dismissal from office. But the rights of registrars, &c., appointed prior to August, 1883, are protected. Orders and Warrants of Court. 117. Any order made by a Court having jurisdiction in bankruptcy in England under this Act shall be enforced in Scotland and Ireland in the Courts having jurisdiction in bankruptcy in those parts of the United Kingdom respectively, in the same manner in all respects as if the order had been made by the Court hereby required to enforce it; and in like manner any order made by a Court having jurisdiction in bankruptcy in Scotland shall be enforced in England and Ireland, and any order made by a Court having jurisdiction in bankruptcy in Ireland shall be enforced in England and Scotland by the Courts respectively having jurisdiction in bankruptcy in the part of the United Kingdom where the orders may require to be enforced, and in the same manner in all respects as if the order had been made by the Court required to enforce it in a case of bankruptcy within its own jurisdiction. 118. The High Court, the County Courts, the Courts having jurisdiction in bankruptcy in Scotland and Ireland, and every British Court elsewhere having jurisdiction in bankruptcy or insolvency, and the officers of those Courts respectively, shall severally act in aid of and be auxiliary 120. to each other in all matters of bankruptcy, and an order 88 118, 119, of the Court seeking aid, with a request to another of the said Courts, shall be deemed sufficient to enable the latter Court to exercise, in regard to the matters directed by the order, such jurisdiction as either the Court which made the request, or the Court to which the request is made, could exercise in regard to similar matters within their respective jurisdictions. 119. (1.) Any warrant of a Court having jurisdiction Warrants of Bankruptcy in bankruptcy in England may be enforced in Scotland, Courts. Ireland, the Isle of Man, the Channel Islands, and else- Bankruptcy Act, 1869, where in Her Majesty's dominions, in the same manner s. 76. and subject to the same privileges in and subject to which a warrant issued by any justice of the peace against a person for an indictable offence against the laws of England may be executed in those parts of Her Majesty's dominions respectively in pursuance of the Acts of Parliament in that behalf. (2.) A search warrant issued by a Court having jurisdiction in bankruptcy for the discovery of any property of a debtor may be executed in manner prescribed or in the same manner and subject to the same privileges in and subject to which a search warrant for property supposed to be stolen may be executed according to law. 120. Where the Court commits any person to prison, Commitment to prison. the commitment may be to such convenient prison as the Bankruptcy Court thinks expedient, and if the gaoler of any prison Act, 1869, refuses to receive any prisoner so committed he shall be liable for every such refusal to a fine not exceeding one hundred pounds. See Sect. 2 as to the Act not extending to Scotland or Ireland save as is expressly provided (d). (d) Where there are concurrent bankruptcies in England and Ireland, see Ex parte James re O'Reardon, L. R. 9 Ch. 744; 43 L. J. Bank. s. 77. |