of review on the petition aforesaid, such verdict or such adjudication of the said commissioner shall in all cases, as against the said bankrupt, and also as against the petitioning creditor, and as against any assignee to be chosen of any such bankrupt's estate and effects, and as against all persons claiming under the said assignees, and all persons indebted to the bankrupt's estate, be conclusive evidence that the party was or was not a bankrupt at the date of such adjudication, any other act, debt, or trading than the act, debt, or trading proved at such trial notwithstanding: Providing always, That an appeal shall be to the lord chancellor from the decision of the said court of review, upon matter of law or equity, or on the refusal or admission of evidence only.

No. I.

1 & 2 W. 4,

c. 56.

XVIII. Provided always, That after any such issue shall have been Fiat to issue on tried as aforesaid, it shall and may be lawful for the lord chancellor, on petition to lord petition to him, to be presented within one calendar month after such ver- chancellor. dict, and upon notice thereof to the bankrupt, upon special circumstances, to be submitted to the said lord chancellor, to order that another fiat do issue at the instance of any other than the former petitioning creditor against the said bankrupt, and that such fiat shall and may be supported by any debt, trading, or act of bankruptcy other than those given in evidence on the trial of such issue.

XIX. That it shall be lawful for the lord chancellor, upon the reversal Power to annul of any adjudication of bankruptcy, or for such other cause as he shall fiat. think fit, to order that any fiat issued by virtue of this act shall be rescinded or annulled; and such order shall have all the force and effect of a writ of supersedeas of a commission according to the existing laws and practice in bankruptcy.

XX. That it shall be lawful for any commissioner who shall make any Meetings of adjudication of bankruptcy to appoint two or more public meetings, in- creditors. stead of the three meetings directed by the said recited act, for the bankrupt to surrender and conform, the last of which said meetings shall be on the forty-second day after the publication of his bankruptcy in the Gazette; and the choice of assignees shall take place at the first of such two meetings (1).

XXI. That in all cases in which power is by this act given to any one Powers given of the said commissioners to act, such power shall and may in like man- to the commisner be exercised by the said chief judge, or by any one of the said other sioners may be judges, as occasion may require; and where any such judge so acting exercised by would, in case he were a commissioner, make any reference or adjournthe judges. ment to a subdivision court, such reference or adjournment shall be made by such judge to the court of review instead of to a subdivision

court.

XXII. That a number of persons not exceeding thirty, being mer- Appointment chants, brokers, or accountants, or persons who are or have been en- of official gaged in trade in the cities of London or Westminster or the parts adja- assignees. cent, shall be chosen by the lord chancellor to act as official assignees in all bankruptcies prosecuted in the said court of bankruptcy; one of which said official assignees shall in all cases be an assignee of each Their duty. bankrupt's estate and effects, together with the assignee or assignees to be chosen by the creditors; such official assignee to give such security, to be subject to such rules, to be selected for such estate, and to act in such manner as the said chief and other judges, with the consent of the lord chancellor, shall from time to time direct; and all the personal estate and effects, and the rents and profits of the real estate, and the proceeds of sale of all the estate and effects, real and personal, of the bankrupt, shall in every case be possessed and received by such official

(1) The commissioner appointed two meetings under this section, at the first of which assignees were chosen. Held, that the fiat could not be annulled with the consent of the creditors under the 6 G. 4, c. 16, s. 113, 134, till after the second meeting, as other creditors might then come in and prove. 2 Mont. & A. 209.

No. I.

1 & 2 W. 4, c. 56.

Proviso restricting the authority of official assignees.

For filling up vacancies in

the number of assignees.

Personal estate to vest in

assignees.

Real estate

how to vest.

assignee alone, save where it shall be otherwise directed by the said court of bankruptcy or any judge or commissioner thereof; and all stock in the public funds or of any public company, and all monies, exchequer bills, India bonds, or other public securities, and all bills, notes, and other negotiable instruments, shall be forthwith transferred, delivered, and paid by such official assignee into the bank of England, to the credit of the accountant general of the high court of chancery, to be subject to such order, rule, and regulation, for the keeping of the account of the said monies and other effects, and for the payment and delivery in, investment, and payment and delivery out of the same, as the lord chancellor, or the said court of review, or any judge of the said court of bankruptcy, if authorized so to do by any general order of the same court, shall direct; and if any such assignee shall neglect to make such transfer, delivery, or payment, every such assignee shall be liable to be charged in the same manner as by the said recited act is provided in cases of neglect by assignees to invest money in the purchase of exchequer bills, when directed so to do: Provided always, That until assignees shall be chosen by the creditors of each bankrupt, such official assignee so to be appointed to act with the assignees to be chosen by the creditors shall be enabled to act, and shall be deemed to be, to all intents and purposes whatsoever, a sole assignee of each bankrupt's estates and effects.

XXIII. Provided always, That nothing herein contained shall extend to authorize any such official assignee to interfere with the assignees chosen by the creditors in the appointment or removal of a solicitor or attorney, or in directing the time and manner of effecting any sale of the bankrupt's estates or effects.

XXIV. That it shall be lawful for the lord chancellor, from time to time as any vacancy may occur in the said before-mentioned number of official assignees, to appoint some other such person as aforesaid to fill any vacancy so occurring; and in case of the death or removal of any official assignee who shall have been appointed to act in any bankruptcy, it shall be lawful for the said court of bankruptcy, subject to any rules to be made by virtue of this act, to appoint another official assignee of the number hereby prescribed to act in the same bankruptcy in the place of the assignee who shall have so become dead or been removed.

XXV. That when any person hath been adjudged a bankrupt, all his personal estate and effects, present and future, which by the laws now in force may be assigned by commissioners acting in the execution of a commission against such bankrupt, shall become absolutely vested in and transferred to the assignees or assignee for the time being, by virtue of their appointment, without any deed of assignment for that purpose, as fully to all intents as if such estate and effects were assigned by deed to such assignees and the survivor of them; and as often as any such assignees shall die, or be lawfully removed, and a new assignee duly appointed, all such personal estate as was then vested in such deceased or removed assignee shall by virtue of such appointment vest in the new assignee, either alone or jointly with the existing assignees, as the case may require, without any deed of assignment for that

purpose.

XXVI. That where any person shall have been adjudged a bankrupt, all such present and future real estate of such bankrupt, whether in the united kingdom of Great Britain and Ireland, or in any of the dominions, plantations, or colonies belonging to his Majesty, as by the said recited act is directed to be conveyed by the commissioners to the assignees, shall vest in such bankrupt's assignee or assignees for the time being, by virtue of his or their appointment, without any deed of conveyance for that purpose; and as often as any such assignee or assignees shall die, or be lawfully removed or displaced, and a new assignee or assignees shall be duly appointed, such of the aforesaid real estate as shall remain unsold or unconveyed shall by virtue of such appointment vest in the new assignee or assignees, either alone or jointly with the

existing assignees, as the case may require, without any conveyance for that purpose.

No. I.

1 & 2 W. 4,

c. 56.

XXVII. Provided always, That where according to any laws now in force any conveyance or assignment of any real or personal property of a bankrupt would require to be registered, enrolled, or recorded in any In cases where registry office in England, Wales, or Ireland, or in any registry office, a conveyance court, or other place in Scotland, or any of the dominions, plantations, of the property or colonies belonging to his Majesty, then, in every such case, such of a bankrupt would require certificate as hereafter is described of the appointment of an assignee to be regisor assignees shall be registered in the registry office, court, or place tered, the certiwherein such conveyance or assignment as last aforesaid would require ficate of apto be registered, enrolled, or recorded; and the registry hereby directed pointment of shall have the like effect to all intents and purposes as the registry, the assignee enrolment, or recording of such conveyance or assignment as last afore- shall be regissaid would have had; and the title of any purchaser of any such pro- tered. perty as last aforesaid, for valuable consideration, without notice of the bankruptcy, who shall have duly registered, enrolled, or recorded his purchase deed previous to the registry hereby directed, shall not be invalidated by reason of such appointment of an assignee or assignees as aforesaid, or the vesting of such property in him or them consequent thereupon, unless the certificate of such appointment shall be registered as aforesaid within the times following; (that is to say,) as regards the united kingdom of Great Britain and Ireland, within two months from the date of such appointment; and as regards all other places, within twelve months from the date thereof.

XXVIII. That the said judges of the said court of bankruptcy shall Seal of the cause to be made a seal of the said court, in such form as they shall court. think fit, and shall cause to be sealed therewith all such proceedings, documents, and copies as by the law now in being, or by this act, or by any rule or order of the said court, shall be required to be so sealed.

XXIX. That a certificate of the appointment of such assignees, pur- Evidence of porting to be under the seal of the said court of bankruptcy, shall be re- appointment of ceived as evidence of such appointment, in all courts and places what- assignees. soever, without further proof.

courts.

XXX. That any one of the said six commissioners, if he think fit, Adjournment may adjourn the examination of any bankrupt or other person to be of examinations taken either before a subdivision court or the court of review, and may to subdivision likewise adjourn the examination of a proof of debt to be heard before a subdivision court; which said court shall proceed with such lastmentioned examination, and finally, and without any appeal, except upon matter of law or equity, or of the refusal or the admission of evidence, shall determine upon such proof of debts: Provided always, That Trial of disin case, before the said commissioner or subdivision court, both parties, puted debts. the assignees or the major part of them, and the creditor, consent to have the validity of any debt in dispute tried by a jury, an issue shall be prepared under the direction of the said commissioner or subdivision court, and sent for trial before the chief judge or one or more of the other judges; and if one party only applies for such issue, the said commissioner or subdivision court shall decide whether or not such trial shall be had, subject to an appeal as to such decision to the court of review. (1)

XXXI. That if such commissioner or subdivision court shall deter- Certain decimine any point of law or matter of equity, or decide on the refusal or sions of comadmission of evidence in the case of any disputed debt, such matter may missioners may be brought under review of the court of review by the party who thinks be brought himself aggrieved, and the proof of the debt shall be suspended under review or appealed against.

(1) The court of review can reverse the decision of a subdivision court on a mattter of fact as to expunging a proof; this section applying only to the admission or rejection of proofs. Ex parte Baldwin, 1 Mont. & A. 615.,

No. I.

1 & 2 W. 4, c. 56.

Determination

of court of review in favour of appeals touching such decisions to be

final, unless appealed against within

one month.

New trial of issues.

Proof of debts by affidavits.

Assignees may appoint the bankrupt to su perintend the

until such appeal shall be disposed of, and a sum not exceeding any expected dividend or dividends on the debt in dispute in such proof may be set apart in the hands of the said accountant general until such decision be made; and in like manner there may be an appeal on the like matter of law or equity from the court of review to the lord chancellor.

XXXII. That if the court of review shall determine in any appeal touching any decision in matter of law upon the whole merits of any proof of debt, then the order of the said court shall finally determine the question as to the said proof, unless an appeal to the lord chancellor be lodged within one month from such determination; and in case of such an appeal, the determination of the lord chancellor thereupon shall in like manner be final touching such proof; but if the appeal, either to the court of review or the lord chancellor, shall be allowed in relation to the admission or refusal of evidence, then and in that case the proof of the debt shall be again heard by the commissioner or subdivision court, and the said evidence shall be then admitted or rejected accordingly.

XXXIII. That after any issue by this act authorized shall be tried, a new trial may be moved in the court of review, which new trial shall be granted or refused according to the rules of the common law and the practice of the courts of Westminster in granting or refusing new trials.

XXXIV. That it shall be lawful for any creditor to make proof of his debt by affidavit, sworn before one of the said judges or commissioners, or before a master in chancery, ordinary or extraordinary, or, if such creditor shall live out of England, by affidavit sworn before a magistrate where such creditor shall be residing, and attested by a notary public, British minister or consul; subject nevertheless to such rules and orders touching the personal attendance of any creditor to make such proof according to the existing laws and practice in bankruptcy as the said court of review, with the consent of the lord chancellor, shall from time to time make and direct.

XXXV. That in every case the assignees may, with the approbation of the proper subdivision court, appoint the bankrupt himself to superintend the management of the estate, or to carry on the trade for behoof of the creditors, and in all or any other respects they may think fit management of to aid them in administering the bankrupt's estate and effects, in such the estate. manner and on such terms as they may think best for the benefit of the persons interested in the estate.

Removal of assignees.

Appeal to the house of lords.

XXXVI. That the court of review shall have power to remove any assignee of any estate, and the order of such court thereupon shall be final and conclusive to all intents and purposes, and not subject to any review by the lord chancellor or otherwise (1).

XXXVII. That in case the lord chancellor shall deem any matter of law or equity brought before him by way of appeal from the court of review to be of sufficient difficulty or importance to require the decision of the house of lords, or in case both parties in any proceeding before the court of review shall desire that any such matter may be determined in the first instance by the house of lords, and not by the lord chancellor, then and in such case the lord chancellor or the court of review may direct the whole facts whereupon such question of law or equity shall arise to be stated in the form of a petition of appeal to the house of lords, and the party appealing may carry such appeal to the house of lords in like manner as other appeals are preferred to that house: Provided always, that the cases to be lodged by the parties in the house of lords shall be confined in matter of fact, in cases of appeal from the

(1) Where a commission has been issued prior to this statute, and an assignee has been removed subsequently, it is not necessary that there should be a new assignment, or that the prior assignment should be vacated. Smith v. De Tastet, 4 Deacon & Ch. 358.

lord chancellor, to setting forth the special case brought up to the lord chancellor from the court of review, and in cases of appeal from the 1 said court of review, to setting forth a special case, to be approved and certified in manner herein-before provided touching appeals to the lord chancellor, and to such arguments on the point of law as the parties may be advised to state.

No. I.

& 1 W. 4,

c. 56.

XXXVIII. That the said judges and commissioners of the said court The court may of bankruptcy shall in all matters within their respective jurisdictions take evidence have power to take the whole or any part of the evidence either viva voce viva voce, or on oath, or upon affidavits to be sworn before one of the said judges or upon affidavit before a judge commissioners, or a master, ordinary or extraordinary, in chancery, as or a master. the said court may in any case direct, or as the lord chancellor may from time to time prescribe, by any general rule to be made by virtue of this act.

XXXIX. That all power, jurisdiction, and authority of the commis- Commissions sioners named in any commission of bankrupt depending in the court of depending in commissioners of bankrupts in the city of London shall cease and deter- London to be mine, and that every such commission shall thereupon be removed into removed into the said court of bankruptcy, and that all further proceeding thereon the court of bankruptcy. shall be thenceforth prosecuted and carried on in like manner as if they had been originally commenced therein by virtue of a fiat under the hand of the lord chancellor, issued pursuant to this act, save as may be otherwise directed by this act.

under such

XL. That it shall be lawful for each commissioner of the said court Power to apwho shall thenceforth act in such commission, at his discretion, to point official appoint some one of the aforesaid official assignees to act with the assignees to act existing assignees, if any, under such commissions, and to direct the with the existexisting assignees to pay and deliver over to such official assignees all ing assignees monies, books, papers, and effects whatsoever in their possession or commissions, custody as such assignees; and all the real and personal estate of the and to whom bankrupt under such commission shall immediately on such appoint- the latter shall ment vest in such official assignee jointly with the existing assignees, if deliver over any, in like manner as if the proceedings in the said bankruptcy had effects. originally been commenced by virtue of this act, without prejudice to any action or suit commenced or any contract entered into by the existing assignees at the time of the passing of this act. (1)

XLI. That wherever this statute hath used words importing the sin- Construction gular number or the masculine gender only, yet it shall be understood and extent of to include several matters as well as one matter, and several persons as this act. well as one person, and females as well as males, and bodies corporate as well as individuals, unless it be otherwise specially provided, or there be something in the subject or context repugnant to such construction; and that wherever the words lord chancellor are used, they shall also be understood to mean lord keeper and lords commissioners for the custody of the great seal; and that this act shall not extend either to Scotland or Ireland, except where the same are expressly mentioned or referred to. XLII. That from and after the passing of this act no commission of Concerted bankrupt shall be superseded, nor any fiat annulled, nor any adjudica- bankruptcies. tion reversed, by reason only that the commission, fiat, or adjudication has been concerted by and between the petitioning creditor, his solicitor or agent, or any of them, and the bankrupt, his solicitor or agent or any of them, save and except where any petition to supersede a commission for any such cause shall have been already presented and shall be now pending.

XLIII. That if the assignees of any bankrupt's estate shall agree to Arbitration. refer any matter in dispute with any party to arbitration, in such manner as by law they are empowered to do, such agreement of reference

(1) Although the court of review has a controlling power in the appointment of an official assignee by the commissioner under this clause, yet the court will not interfere unless the commissioner has exercised an unsound discretion in the appointment. Ex parte Bramston, 2 Deac. & Ch.

375.