§ 146. Extends to whole of lands. And formerly to goods. Still applicable to lands, &c. As to incumbrances. given to the plaintiff by the Statute Westminster II. (13 Ed. I., c. 18), and from the entry of the award of the execution on the roll, "Quod elegit sibi executionem." It is a judicial writ founded upon the above statute, and lies to recover any sum of money or any costs payable under a judgment, or under any order of the Court or Judge (0). The Statute 1 & 2 Vict. c. 110, s. 11, extended the jurisdiction of the writ to the whole of the debtor's lands instead of a moiety (p). Under this writ the sheriff was entitled to seize the debtor's goods at once and prior to the holding of the inquisition, and from the time of seizure the creditor became a secured creditor within the meaning of Sect. 16 of the Bankruptcy Act, 1869 (q). And it was also held that Sect. 87 of that Act requiring the sheriff to hold the proceeds of a sale under an execution had no application to a writ of elegit (r), and delivery to the creditor of the goods seized at the appraised value by the jury on the inquisition, was held to have been a sale within the protection of Sect. 95, sub-sect. 3 of the 1869 Act, if the creditor had not notice of any act of bankruptcy committed by the debtor prior to the seizure, or available against him for adjudication (s). This section will now come into operation so as to prevent the seizure of goods, under a writ of elegit, and therefore the rights of all executions will be determined under Sects. 45 and 46, and perhaps also Sect. 49 of this Act, and see notes to these sections. Lands (and all that is comprised within the term) will, as heretofore, be extended under the writ of elegit, and the creditor acquires a security upon seizure, and in the case of an equitable interest, upon the appointment of a receiver prior to the date of the receiving order, and without notice of the petition or an act of bankruptcy, available for making the receiving order. A judgment creditor who has sued out an elegit but is unable to obtain delivery by the sheriff of the debtor's lands by reason (o) See definition in Churchill's Law of Sheriffs, 2 ed., p. 351. (p) And see 23 & 24 Vict. c. 38, s. 2, requiring registration, and also 27 & 28 Vict. c. 112. (q) See Ex parte Abbott re Gourlay, 15 Ch. D. C. A. 447. (s) Ex parte Vale re Bannister, 18 Ch. D. 137; and following Ex parte Schulte, L. R. 9 Ch. 409. of the legal estate being outstanding and the existence of prior §§ 146, 147. incumbrances, is entitled to a decree for sale, subject to incum- And decree brances and the appointment of a receiver, and not merely to for sale. a declaration that he has a charge upon the land, and he is not bound to redeem such incumbrances (t). rules. As to the issue of such writs, see Rules of the Supreme Conflicting Court, Order 42, Rules 8, 9, and particularly Rule 17, entitling every person to whom any sum of money or costs is due to sue out a writ of fi. fa. or elegit to enforce payment thereof, and also Order 43, Rules 1 and 5. But it is submitted these rules cannot apply having regard to the above enactment. As to writs of levari facias, such writs belong to the class Writs of of judicial processes in personal actions by the Common Law, levari facias. and in all cases where the writ is issued the land was debtor. By such writs the sheriff might levy the debt of all the goods and chattels of the defendant, as well as emblements and rents, but not his lands, though the writ say de terris et catallis (u). Bankrupt Trustee. Trustee Act to Bankruptcy 147. Where a bankrupt is a trustee within the Trustee Application of Act, 1850, section thirty-two of that Act shall have effect bankruptcy of so as to authorise the appointment of a new trustee in trustee. substitution for the bankrupt (whether voluntarily re- Act, 1869, signing or not), if it appears expedient to do so, and all s. 117. provisions of that Act, and of any other Act relative thereto, shall have effect accordingly. See the several provisions of the Trustee Act, 1850 (13 & 14 The Trustee Act. Vict. c. 60) (x). Whenever it is expedient to appoint a new trustee, and it is inexpedient, difficult, or impracticable to do so without the assistance of the Court, the Court can make an order appointing a new trustee or new trustees in substitution for or in addition to any existing trustee or trustees, or whether there be an existing trustee or not. Trust estates are liable to involuntary alienation, as we Trust estates. have seen on the bankruptcy of the cestui que trust; but on the (t) Wells v. Kelpin, L. R. 18 Eq. 298; 44 L. J. Ch. 184. (u) Comyns' Digest tit. Execution, p. 220; and "Process," E., p. 131. (x) See also 15 & 16 Vict. c. 55; and 36 & 37 Vict. c. 66; and 38 & 39 Vict. c. 77, s. 7. §§ 147, 148. bankruptcy of the trustee, the legal estate in the premises of which he is trustee remains vested in him, and does not pass to the trustee for his creditors. Trustee must be bankrupt. Acting of partners, &c. Proofs cn behalf of companies, lunatics, &c. This section makes the provision of Sect. 32 of the Trustee Act, 1850, applicable to that if the trustee becomes bankrupt, and whether he voluntarily resign his trust, or refuse or neglect to do so, the Chancery Division of the High Court can under the above provisions of the Act appoint a new trustee. The expression used here is "a bankrupt"; and therefore will have no application to an insolvent trustee against whom only a receiving order" has been made; and in such cases the legal estate being also vested in the insolvent, he will continue to be trustee. Formerly, the rule as to the retention of the estate was applicable also to the eases of insolvency (y). Corporations, &c. 148. For all or any of the purposes of this Act a corporation may act by any of its officers authorised in that behalf under the seal of the corporation, a firm may act by any of its members, and a lunatic may act by his committee or curator bonis. See and compare Sect. 115 as to firms. Officers of a corporation representing the corporation must be authorised under the corporate seal so to act. Sect. 80, sub-sect. 7 of the 1869 Act, named specifically certain Acts which such agent of a corporation might be authorised to do. Bodies politic or companies are not mentioned specifically; but see Companies Act, 1862, 25 & 26 Vict. c. 89, s. 95. It was held that rr. 67 and 68 of the Rules of 1870, enabling proof to be made by a creditor, did not apply to proofs by persons appointed by the Courts of Chancery or Lunacy to represent the creditor's estate. As to lunatics, it would seem now that either the committee or curator bonis may prove and act generally in bankruptcy on behalf of the lunatic; but as to companies under order of winding up, it seems the official liquidator () is entitled in the case of a bankrupt shareholder (y) Sims v. Thomas, 12 Ad. & El. 536. (2) Ex parte Hare re England, L. R. 10 Ch. 219; 44 L. J. Bank. 50. 150, 151. in a company in course of winding up to prove not only for 88 148, 149, the arrears of calls, but for all future calls to the amount remaining unpaid on the shares (a). Construction of former Acts, &c. Acts mention of bankruptcy, &c. 149. (1.) Where in any Act of Parliament, instrument, Construction of or proceeding passed, executed, or taken before the com- ing commission mencement of this Act mention is made of a commission of bankruptcy or fiat in bankruptcy, the same shall be Bankruptcy construed, with reference to the proceedings under a bankruptcy petition, as if a commission of or a fiat in bankruptcy had been actually issued at the time of the presentation of such petition. (2.) Where by any Act or instrument, reference is made to the Bankruptcy Act, 1869, the Act or instrument shall be construed and have effect as if reference were made therein to the corresponding provisions of this Act. Act, 1869, s. 119. visions to bind 150. Save as herein provided the provisions of this Certain proAct relating to the remedies against the property of a the Crown. debtor, the priorities of debts, the effect of a composition or scheme of arrangement, and the effect of a discharge shall bind the Crown. See Sect. 30 as to order of discharge not binding the Crown. See Sect. 18 as to approval of composition not discharging creditor who would not be affected by an order of discharge. See Sect. 40 as to priorities of payments. 151. Nothing in this Act, or in any transfer of juris- Saving for existing rights diction effected thereby, shall take away or affect any of audience. right of audience that any person may have had at the commencement of this Act, and all solicitors or other persons who had the right of audience before the Chief (a) Ex parte Pickering re Pickering, L. R. 4 Ch. 58; 38 L. J. Bank. 1; 19 L. T. 369; McEwen's Case, §§ 151, 152, Judge in Bankruptcy shall have the like right of audience 153. Married women. 45 & 46 Vict. c. 75. General effect of Married Women's in bankruptcy matters in the High Court. The effect of this enactment would seem inferentially to give such right of audience in the Court of Appeal as well as in the Bankruptcy Division of the High Court. 152. Nothing in this Act shall affect the provisions of the Married Women's Property Act, 1882. The effect of the Married Women's Property Act, 1882 (45 & 46 Vict. c. 75, ss. 1, 3, &c.), have been noted elsewhere so far as they affect the various rights and liabilities affected by this Act. Generally, it may be said that a woman who marries after January, 1883, is entitled to all real and personal property Property Act, which belongs to her at the time of marriage, or which may be acquired by, or devolve upon her after marriage, and including also the profit of a business carried on separately from her husband (b). 1883. Comptroller of bankruptcy, And a wife can contract and sue, as to her separate estate, as if she were a feme sole (bb). And she may be made bankrupt. She can also sue alone for the protection of her property (c), and her husband is still liable for the debts of his wife to the extent of property acquired by him. Upon the bankruptcy of the husband a married woman, as to loans made by her to her husband, will be postponed as to dividend until the rest of the creditors are paid (d), and such loans become his assets. Transitory Provisions. 153. (1.) The existing comptroller in bankruptcy and &c., and their his officers, clerks, and servants shall not be attached to the Supreme Court, but shall in all respects act under the directions of the Board of Trade. staff. Bankruptcy Act, 1869, s. 55. (2.) The existing official assignee, provisional and official assignee of the estates and effects of insolvent debtors, and receiver of the Insolvent Debtor's Court, (b) See s. 2 and s. 5, as to women married prior to the commencement of the Act. (bb) S. 1; and see as to bank. ruptcy as it affects separate estate, (d) S. 3. |