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165, 166,

167.

person for any offence under the Debtors Act, 1869, or §§ 163, 164, Acts amending it, or for any offence arising out of or connected with any bankruptcy proceedings, it shall be the duty of the Director of Public Prosecutions to institute and carry on the prosecution.

cutor to act in certain cases.

liability after

167. Where a debtor has been guilty of any criminal Criminal offence he shall not be exempt from being proceeded discharge or against therefor by reason that he has obtained his dis- composition. charge or that a composition or scheme of arrangement has been accepted or approved.

The full text of the Debtors Act, 1869 (32 & 33 Vict. c. 62), will be found in the Appendix.

It must be borne in mind that only sub-sect. (b) of Sect. 5, and Sects. 21 and 22 of the Debtors Act, have been repealed. The effect of this repeal has elsewhere, in the proper places, been noted.

In every other respect the Debtors Act, 1869, remains still in force. But as to proceedings and matters arising after the commencement of this Act, the Debtors Act will then be controlled and modified by these provisions respectively.

Sect. 11 of the Debtors Act, imposing penalties for divers offences, uses the words "any person adjudged bankrupt, and any person whose affairs are liquidated by arrangement, in pursuance of the Bankruptcy Act, 1869;" and Sect. 12 of the same Act, employs the words, "any person who is adjudged a bankrupt, or has his affairs liquidated by arrangement," in stating the offences under those sections respectively.

But in the specific statements of the several offences, as to the time of their occurrence, the "petition for liquidation by the debtor" is not named, although the words "after the commencement of the liquidation" do occur.

Under this Act, the words "if after the presentation of a petition by or against him" will be substituted for the words in the several sections of the Debtors Act (1).

(1) The offence of "non-disclosure to the trustee," was held not confined to property in the possession of the debtor

at the time of the commencement of
the bankruptcy, Reg. v. Michell, 50
L. J. M. C. 76; 43 L. T. 572.

§§ 163, 164, 165, 166, 167.

Cases of

receiving order and composition.

False proofs.

To whom the Act applies.

The Debtors Act always did apply, and by this Act continues to be applicable, to all debtors, whether traders or non-traders, although some of the offences were only such as traders could have committed. But now " But now "bankruptcy," or that which is equivalent to bankruptcy, need not necessarily have taken place so as to bring the provisions of the several Acts into play, for in the case of a "receiving order" (Sect. 163, subsect. 2), or even where it is afterwards superseded by a composition or arrangement (Sect. 167), the debtor still remains subject to prosecution in respect of offences committed by him.

Sects. 13 and 14 of the Debtors Act have not been referred to in these sections. As to Sect. 13, "fraudulently obtaining credit," it has been held to be applicable to all persons, whether bankrupts or otherwise. But an infant cannot be convicted under Sect. 12 of the Debtors Act (m).

Although Sect. 14 of the Debtors Act, which makes it a misdemeanor for a creditor to make a false proof or claim, has not been specifically referred to in this Act, and that section is strictly applicable to cases under the repealed Bankruptcy Act, 1869, probably the Court would have power to deal with such person, under the words "any other person has been guilty of any offence which is by statute made a misdemeanor in cases of bankruptcy," occurring in sub-sect. 1 of Sect. 165. But quare whether, in cases of receiving orders simply, the Court would have such power, having regard to the use of the word "bankruptcy," and the express words of Sect. 14 of the Debtors Act, 1869, but see sub-sect. 2 of Sect. 163.

Debts incurred by Fraud.

Sect. 167 is strictly limited to criminal proceedings, and is not like Sect. 15 of the Debtors Act, whereby a debtor remains liable for the unpaid balance of a debt incurred by fraud. No reference is made in these sections to Sect. 15, which at present is strictly applicable to an arranging or compounding debtor under the repealed Act of 1869 (n). But this Act, Sect. 18 (composition) and Sect. 30 (effect of discharge), practically

(m) Reg. v. Wilson, 5 Q. B. D. 28; 49 L. J. M. C. 13.

(n) But see Ex parte Hemming re

Chatterton, 13 Ch. D. 163; 49 L. J.
Bank. 17.

re-enacts Sect. 15, with this modification, that the words "to §§ 163, 164, which he was a party " have been added. 165, 166,

Under Sect. 167, the debtor may still be the subject of a prosecution for a "criminal offence" (it is presumed committed against one or other of the provisions of this Act or the Debtors Act), notwithstanding his discharge, or that the creditor has accepted a composition.

167.

Under Sect. 31 of this Act, in addition to the offences set Obtaining forth under the Debtors Act, 1869, if an undischarged bank-credit. rupt (not a compounding debtor) obtains credit to the extent of twenty pounds or upwards from any person, without informing such person that he is an undischarged bankrupt, he shall be guilty of a misdemeanour, and may be dealt with and punished as if he had been guilty of a misdemeanour under the Debtors Act, 1869. Compare the language of Sect. 13 of the Debtors Act, 1869.

The Court is required, in all cases where the bankrupt has Debtors Act, committed any misdemeanour under this Act or Part II. of the 1869. Debtors Act, 1869, or any amendment thereof, to refuse the discharge, and has no discretion. And the Court, upon proof of such facts as would justify the Court in refusing a discharge, has, under Sect. 18, power and discretion to refuse to approve a composition or scheme (Sect. 18, sub-sect. 6).

Who is to prosecute.

It seems the trustee's right to report to the Court and to ask for prosecution under Sect. 16 of the Debtors Act, 1869, and also the creditor's right to apply under that section, have not been interfered with or limited by this Act, but the official receiver also may report, but, under Sect. 164, only in the case of "a bankrupt's estate," unless these words are to have a wider meaning given to them than is generally given in this Act.

Sect. 69 of this Act directs the official receiver to investigate the debtor's conduct, and to report to the Court whether there is reason to believe he has committed any act which constitutes a misdemeanour under the Debtors Act, 1869, or any amendment thereof, or under this Act, &c., and to take such part, and give such assistance in relation to the prosecution of any fraudulent debtor, as the Board of Trade may direct. And by Sect. 68, all expressions referring to a trustee under a bank

§§ 163, 164, ruptcy, unless the context otherwise requires, or the Act other165, 166, wise provides, include the official receiver. 167.

The effect of these several provisions where there is no trustee, or where the receiver is trustee, is, it seems, to enable the receiver to act as prosecutor or informant. And where there is a trustee, such trustee will, as formerly under the Debtors Act (or, where there is actual bankruptcy, the receiver as well as the trustee (Sect. 164)), be the active prosecutor.

But in cases of composition it seems the public prosecutor is to act, but the Board of Trade can direct the receiver to take part in the proceedings.

Proceedings.

An entirely new power has been given to the Bankruptcy Courts by the effect of Sect. 165.

Under Sect. 16 of the Debtors Act, 1869, it will be seen the Court, when satisfied upon the reports or representations made either by the trustee or the creditors of the reasonable probability of a conviction, could order the trustee to prosecute the bankrupt. The course then was for the trustee to proceed under the ordinary criminal statutes, and to lay an information before justices of the peace, before whom the evidence was taken, and the Vexatious Indictments Act (22 & 23 Vict. c. 17) was applicable to offences under the Debtors Act (0).

Now, by Sect. 165, the Bankruptcy Court, including in this term local Courts with bankruptcy jurisdiction, may commit the bankrupt, or such other person as may have, in the opinion of the Court, committed a misdemeanour, and it is clear, from the words of sub-sect. 2 of Sect. 165, that the proceedings hitherto taken before a justice of the peace are to be taken before the Court itself, so that the evidence will be taken, and indeed all the successive proceedings, will take place as is required before committal of a defendant under 11 & 12 Vict. c. 42, known as Jervis' Act. At the same time, this Act has not expressly made 11 & 12 Vict. c. 42, applicable, but as a general rule, unless some express provision is contained in an Act itself with respect to all criminal proceedings, Jervis' Act applies.

If Jervis' Act is applicable, then the proceedings will neces

(0) See Debtors Act, 1869, s. 18, and also 11 & 12 Vict. c. 42; and see 30 & 31 Vict. c. 17, enabling lawful

counts to be joined notwithstanding, 22 & 23 Vict. c. 17.

sarily be by information and complaint in writing and on oath, §§ 163, 164, prior to the issue of a warrant, but where it is intended only 165, 166, to issue a summons in the first instance, the information and 167, 168. complaint need not be in writing or on oath, but by parol only (p).

Where the prosecution was, by order of the Court, under Sect. 16 of the Debtors Act, 1869, it was held bail was discretionary, but when otherwise, then it was compulsory (2). Where there is or was reasonable evidence of the bankrupt's guilt to lay before a jury, it was held to have been the bounden duty of the Court to direct a prosecution (r). And the order could be applied for ex parte (s). A party ordered to be prosecuted jointly with the debtor could not appeal from the order (t). And the order ought not, it was held, to have been refused, because the trustee had recovered property fraudulently removed (u). And the Court could order a prosecution of the debtor, his trustees and accomplices, for conspiracy (x).

Interpretation.

168. (1.) In this Act, unless the context otherwise Interpretation requires

"The Court" means the Court having jurisdiction in bankruptcy under this Act:

"Affidavit" includes statutory declarations, affirmations, and attestations on honour:

66

Available act of bankruptcy" means any act of bank-
ruptcy available for a bankruptcy petition at the
date of the presentation of the petition on which
the receiving order is made:

"Debt provable in bankruptcy " or " provable debt "
includes any debt or liability by this Act made.

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of terms.

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