Imágenes de páginas

Officers. SECTION.

PAGE 116. Disabilities of officers

321 Orders and Warrants of Court. 117. Enforcement of orders of courts throughout the United Kingdom 322 118. Courts to be auxiliary to each other

322 119. Warrants of bankruptcy courts

323 120. Commitment to prison



SMALL BANKRUPTCIES. 121. Summary administration in small cases

.... 324 122. Power for county court to make administration order instead of order for payment by instalments ...

.... 325–328


Application of Act. 123. Exclusion of partnerships and companies..

328 124. Privilege of Parliament

329 125. Administration in bankruptcy of estate of person dying insolvent

329–331 126. Saving as to debts contracted before Act of 1861

332 General Rules. 127. Power to make general rules

332 Fees, Salaries, Expenditure, and Returns. 128. Fees and remuneration

333 129. Judicial salaries, &c. ...

334 130. Annual accounts of receipts and expenditure in respect of bankruptcy proceedings

334 131. Returns by bankruptcy officers

335 Evidence. 132. Gazette to be evidence..

335 133. Evidence of proceedings at meetings of creditors

335 134. Evidence of proceedings in bankruptcy...

336 135. Swearing of affidavits

336 136. Death of witness

336 137. Bankruptcy courts to have seals..

337 138. Certificate of appointment of trustee

337 139. Appeal from Board of Trade to High Court.

337 140. Proceedings of Board of Trade

338 Time. 141. Computation of time

338 Notices. 142. Service of notices

... 339 Formal Defects. 143. Formal defect not to invalidate proceedings...


Stamp Duty. SECTION.

PAGE 144. Exemption of deeds, &c. from stamp duty

340 Executions. 145. Sales under executions to be public

341 146. Writ of elegit not to extend to goods..

341 Bankrupt Trustee. 147. Application of Trustee Act to bankruptcy of trustee .

342 Corporations, fc. 148. Acting of corporations, partners, &c.

342 Construction of former Acts, fc. 149. Construction of Acts mentioning commission of bankruptcy, &c. 342 150. Certain provisions to bind the Crown

343 151. Saving for existing rights of audience

343 152. Married women

344 Transitory Provisions. 153. Comptroller of bankruptcy, &c, and their staff

344, 345 154. Power to abolish existing offices..

346 155. Performance of new duties by persons whose offices are abolished 346 156. Selection of persons from holders of abolished offices ..... 347 157. Acceptance of public employment by annuitants.....

347 158. Superannuation of registrars, &c.

347 159. Transfer of estates on vacancy of office of trustee in liquidation

under the Bankruptcy Act, 1869 160. Transfer of outstanding property on close of bankruptcy or liquidation

348 161. Transfer of estates from registrars of London Court to official receiver..

348 Unclaimed Funds or Dividends. 162. Unclaimed and undistributed dividends or funds under this and former Acts

... 349, 350 Punishment of Fraudulent Debtors. 163. Extension of penal provisions of 32 & 33 Vict. c. 62 to petitioning debtors, &c.

351 164. Power for Court to order prosecution on report of official receiver 351 165. Power for Court to commit for trial .... 166. Public Prosecutor to act in certain cases

352 167. Criminal liability after discharge or composition.

352 Interpretation. 168. Interpretation of terms.

352 Repeal. 169. Repeal of enactments

354, 355 170. Proceedings under 32 & 33 Viot. c. 71, ss. 125, 126


356-364 SCHEDULE II.

.364-376 SCHEDULE III.

... 376 SCHEDULES IV. & V.


..... 347

... 351


46 & 47 VICT. C. 52.

An Act to amend and consolidate the Law of Bankruptcy.

[25th August, 1883.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: Preliminary.

§ 1, 2. 1. This Act may be cited as the Bankruptcy Act, 1883. Short title. 2. This Act shall not, except so far as is expressly pro- Extent of

Act. vided, extend to Scotland or Ireland.

The extent of the Bankruptcy Act here intended seems to Extent. be its extent as process against a debtor, and in this sense it is strictly local, and is now limited to cases where the debtor is domiciled in England, or, within a year before the date of the presentation of the petition, has ordinarily resided or had a dwelling-house or place of business in England. (See section 6 (1) (d).)

But the obligation of the Bankruptcy Act is wider; for, Obligation. being an imperial statute, it is binding on all British subjects and British Courts, both within and without England. Thus, for instance, an English discharge is pleadable in bar in any British Court to any action to which it could be pleaded in an English Court. (Gill v. Barron, L. R. 2 P. C. 157, at p. 17;.) In the case of Ex p. Tait, L. R. 13 Eq. 311, a creditor residing in Ireland was restrained by injunction from proceeding in an action in the Irish Court of Exchequer to recover a debt contracted in Ireland, in respect of which he had previously sent in a claim under a deed under the Act of 1861. It is, however, to be remarked that the creditor, being an English




[ocr errors]

subject, personally owed obedience to the Bankruptcy Act of 1861, as being, like the present Act, an imperial statute. (See Ellis v. McHenry, L. R. 6 C. P. 228.) Uuder the Act of 1869 residence out of the jurisdiction was held to be immaterial if the creditor proved, as by so doing he placed himself within the jurisdiction of the Court. (Ex p. Robertson, re Morton, L. R. 20 Eq. 733.) Generally, however, the Court will not grant an injunction to restrain foreign creditors from proceeding in Courts other than the British Courts unless the creditor be resident in England. (Re Chapman, L. R. 15 Eq. 75; Ex p. Ormiston, re Distin, 24 L. T. 197.)

It was never decided under sections 12 and 13 of the Act of 1869 whether the Court would issue an injunction to restrain proceedings by a British subject, who neither was resident within the jurisdiction nor had come in under the bankruptcy, to recover a debt provable in an English bankruptcy. In all the reported cases the creditor restrained was either personally within the jurisdiction or had come in and proved in the bankruptcy. But it is submitted that both under those sections, and under sections 9 and 10 of this Act, the Court would restrain a creditor who was a British subject from proceeding in a foreign Court to enforce a debt provable in bankruptcy, and this quite irrespective of whether the creditor happened either to be personally in England or to have submitted to the jurisdiction of the Court.

As to the exclusive jurisdiction of the Irish Courts over traders trading exclusively in Ireland, see 20 & 21 Vict. c. 60,

8. 31.

As to the enforcement of orders and warrants out of England, see post, sections 117-119.

As to the operation in British Courts of Acts of imperial legislation as distinguished from Acts of colonial legislation, and generally as to the operation of an English bankruptcy in other parts of the British Empire, see Bartley v. Hodges, 30 L. J. Q. B. 352; Gill v. Barron, L. R. 2 P. O. 157; Ellis v. McHenry, L. R. 6 C. P. 228 ; Ex p. Rogers, re Boustead, 16 Ch. D. 665.

Commencement of Act.

3. This Act shall, except as by this Act otherwise provided, commence and come into operation from and immediately after the thirty-first day of December one thousand eight hundred and eighty-three.

The exceptions referred to are:-section 170, which provides that after the passing of this Act no liquidation or composition under sections 125 and 126 of the Act of 1869 shall be

[ocr errors]

entered into without the sanction of the Court or registrar; section 66, as to appointment of official receivers ; section 127, power to make general rules; sections 128 and 129, as to fees, remuneration, and judicial salaries ; section 153 (4), as to vacancies; and section 162, as to unclaimed and undistributed funds and dividends. These all come into operation on the passing of the Act. The rules made under this Act come into operation from and immediately after December 31st, 1883, R. 1.



Acts of Bankruptcy. 4. (1.) A debtor commits an act of bankruptcy in each Acts of of the following cases :

bankruptcy. “ Debtor." The word “debtor" must be construed to mean a debtor Sub-8. (1) properly subject to the laws of England," and this, it seems, should be taken to include not only English subjects and Aliens. denizens, but also foreigners, provided that, in accordance with section 6 (1) (d), they are domiciled in England, or have, within a year before the presentation of the petition, ordinarily resided or had a dwelling-house or place of business in England.

It was decided in many cases under former statutes that a foreigner could not be made bankrupt unless he committed an act of bankruptcy during his personal residence in England. (See Alexander v. Vaughan, Cowp. 398; Dodsworth v. Anderson, T. Raym. 375; Allen v. Cannon, 4 B. & A. 418; Ex p. Crispin, L. R. 8 Ch. 374; Ex p. Blain, re Sawers, 12 Ch. D. 622.)

It was decided under the Act of 1869 that an act of bankruptcy must be a personal act or default, and cannot be committed through an agent, nor by a firm as such. (Ex p. Blain, re Sawers, ubi sup., per Brett, L. J.) Section 168 of this Act provides that person" shall include a body of persons corporate or unincorporate, and section 115 provides that bankruptcy proceedings may be taken against partners in the name of a firm, and section 6 (1)(d) renders a debtor having a place of business in England liable to adjudication. It may be that in the case of some, at all events, of the acts of bankruptcy defined by this section, a foreigner having a place of business in England

« AnteriorContinuar »