to be tried before a jury instead of by the Court itself, or which the Court thinks ought to be tried by a jury, the Court may if it thinks fit direct the trial to be had with a jury, and the trial may be had accordingly in the High Court in the same manner as if it were the trial of an issue of fact in an action, and in the county court in the manner in which jury trials in ordinary cases are by law held in that court.

(4.) Where a receiving order has been made in the High Court under this Act, the judge by whom such order was made shall have power, if he sees fit, without any further consent, to order the transfer to such judge of any action pending in any other division, brought or continued by or against the bankrupt.

(5.) Where default is made by a trustee, debtor, or other person in obeying any order or direction given by the Board of Trade or by an official receiver or any other officer of the Board of Trade under any power conferred by this Act, the Court may, on the application of the Board of Trade or an official receiver or other duly authorised person order such defaulting trustee, debtor, or person to comply with the order or direction so given; and the Court may also, if it shall think fit, upon any such application make an immediate order for the committal of such defaulting trustee, debtor, or other person; provided that the power given by this sub-section shall be deemed to be in addition to and not in substitution for any other right or remedy in respect of such default.

Judgment Debtors.

103. Judgment Debtor's Summons to be Bankruptcy Business.*-(1.) It shall be lawful for the Lord Chan

*This clause is entirely new. Under it the jurisdiction and powers in relation to debtors' summons under section 5 of the Debtors'

cellor by order to direct that the jurisdiction and powers under section five of the Debtors Act, 1869, now vested in the High Court, shall be assigned to and exercised by the judge to whom bankruptcy business is assigned.

(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 Any order made under this section may, at any time, in like manner, be rescinded or varied.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 Act, 1869 (ie., the power of committing to prison any person who makes default in payment of any debt, or instalment of debt, due in pursuance of an order or judgment of court), now vested in the High Court may be assigned to the bankruptcy judge and to registrars in bankruptcy in the High Court. The County Court, we need hardly say, have always possessed this jurisdiction under the Debtors' Act 1869 (see that act in the appendix), but they could only exercise it, as respects a judgment of the High Court, when such judgment did not exceed £59, exclusive of costs. Under the present clause their jurisdiction will not be limited by the amount of the judgment. The powers of all Courts having bankruptcy jurisdiction are further extended by the fifth sub-section of the present clause. The power to make a receiving order in lieu of committing is quite new, and will certainly be found very beneficial. It is strictly in harmony with, and may, indeed, be considered complementary to, Part VII., which deals with small bankruptcies.

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.

Appeals.

104. Appeals in Bankruptcy.-(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

*It was held under a similar provision in clause 71 of the Bankruptcy Act of 1869 that the jurisdiction to rehear a case thus given was in a proper case almost without limit; and that the fact that an appeal from the original order was pending did not prevent the court from rehearing the case (ex parte Keighley in re Wike, L.R. 9 Ch. app. 667). It was, however, said by Lord Cairns, in ex parte Brown, L.R. 9 Ch. app. 304, that a rehearing should not as a general rule be granted after the expiration of the time fixed for appealing by the general rules, as otherwise an appeal might be indirectly given after the time for appeal had expired.

66

Under clause 71 of the Bankruptcy Act of 1869 the appeal from a local bankruptcy court" lay to the chief judge in bankruptcy.

High Court to Her Majesty's Court of
Appeal:*

(c.) An appeal shall, with the leave of Her Ma-
jesty's Court of Appeal, but not otherwise,

lie from the order of that Court to the House of Lords:

(d.) No appeal shall be entertained except in conformity with such general rules as may for the time being be in force in relation to the appeal.

Procedure.

105. Discretionary Powers of the Court.†—(1.) Subject to the provisions of this Act and to general rules, the costs of and incidental to any proceeding 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.

*This is equivalent to the provision in clause 71 of the Act of 1869, that the decision of the chief judge in bankruptcy should be subject to an appeal to the Court of Appeal in Chancery.

The first five sub-sections of this clause are based upon, and give the Bankruptcy Court the powers which were conferred upon judges of the High Court by, the following rules of the Supreme Court :Order LV. r. 1; Order XXXVI. r. 22; Order LIX. r. 2 ; Order LVII. r. 5. The sixth sub-section relating to a composition or scheme by joint debtors and enabling the Court to dispense with the public examination of one of such joint debtors is a new enactment.

Trustee.*-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 petitions as it thinks just.

113. Actions by Trustee and Bankrupt's Partners.† -Where a member of a partnership is adjudged bankrupt, the Court may authorise the trustee to commence and prosecute any action in the names of the trustee and of the bankrupt's partner; and any release by such partner of the debt or demand to which the 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.

This is a re-enactment, with the necessary modification of terms of clause 102 of the Act of 1869. See, in connection with this section, clause 106, ante.

This clause re-enacts clause 105 of the Act of 1869, with one exception. Under that clause the consent of the creditors "certified by a special resolution" was requisite to the commencement of an action or suit. Under the present clause it will be sufficient for the trustee to obtain the sanction of the court.