СНАР. І. Change of Jurisdiction by Chancellor.]-Under the head of PART VII. "Change of Jurisdiction by Chancellor," "The Bankruptcy Act, 1869," enacts that by Lord Sect. 79. "Notwithstanding anything in this act contained, the Lord Change of Chancellor may from time to time, by order under his hand, exclude any jurisdiction county court from having jurisdiction in bankruptcy, and for the purposes Chancellor. of bankruptcy jurisdiction may attach its district or any part thereof to any other county court or courts, and may from time to time revoke or alter any order so made." Subject to the provisions of the act, "every court having original jurisdiction in bankruptcy shall be deemed to be the same court, and to have jurisdiction throughout England; and cases may be transferred from one court to another in such manner as may be prescribed " (g). § 3.-GENERAL POWERS AND JURISDICTION OF THE COURTS AND JUDGES. "The Bankruptcy Act, 1869" (32 & 33 Vict. c. 71), enacts that court judges. Sect. 66. "Every judge of a local court of bankruptcy shall, for the Jurisdiction purposes of this act, in addition to his ordinary powers as a county court of county judge, have all the powers and jurisdiction of a judge of her Majesty's High Court of Chancery, and the orders of such judge may be enforced accordingly in manner prescribed." bankruptcy Sect. 69. "No judge, registrar, or officer having jurisdiction in bank- Judges and ruptcy, or attached to any court having jurisdiction in bankruptcy, shall, officers in during his continuance in office, be capable of being elected or sitting to be inelias a member of the House of Commons; and no registrar or officer of gible to sit in such court shall, during his continuance in office, either directly or in- parliament. directly, by himself or partner, act as an attorney or solicitor in any proceeding in any bankruptcy in any court of which he is registrar or officer, or in any appeal from such court, or in any prosecution of a bankrupt by order of such court, under pain of dismissal by the judge; and such dismissal shall be in writing, stating the reasons for the same; and a copy thereof shall be sent to the chief judge in bankruptcy, who, if he shall see fit, may reinstate such registrar or officer." Every court having jurisdiction under the act may review, rescind, or vary any order made by it in pursuance of the act (h). For the purpose of ensuring the right distribution of the estate, Exclusive and at the least expense, the Court of Bankruptcy is appointed, jurisdiction. exclusively of other courts, to decide questions relating to the estate. "The Bankruptcy Act, 1869," enacts that— Sect. 72. "Subject to the provisions of this act, every court having General jurisdiction in bankruptcy under this act shall have full power to decide power of all questions of priorities, and all other questions whatsoever, whether bankruptcy (g) 32 & 33 Vict. c. 71, s. 80, subs. (6). (h) 32 & 33 Vict. c. 71, s. 71. See the entire section, post, Chap. X., § 5, · APPEAL. courts. PART VII. Courts in England to be auxiliary to other courts, &c. Powers of court to delerity to regis gate autho trar. of law or fact, arising in any case of bankruptcy coming within the cognizance of such court, or which the court may deem it expedient or necessary to decide for the purpose of doing complete justice or making a complete distribution of property in any such case; and no such court as aforesaid shall be subject to be restrained in the execution of its powers under this act by the order of any other court, nor shall any appeal lie from its decisions except in manner directed by this act (i); and if in any proceeding in bankruptcy there arises any question of fact which the parties desire 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 direct such trial to be had, and such trial may be had accordingly, in the London Court of Bankruptcy, in the same manner as if it were the trial of an issue in one of the superior courts of common law, and in the county court in the manner in which jury trials in ordinary cases are by law held in such court." The effect of this section is that no other court can prohibit proceedings in the Court of Bankruptcy, from which the direct intention may be inferred that the Court of Bankruptcy should have power to prohibit proceedings in other courts (k). The county court has power, therefore, to restrain an action against a trustee in bankruptcy for taking possession of property claimed under a bill of sale, the validity of which is disputed by the trustee (1). Sect. 74. "The London bankruptcy court, the local bankruptcy court, the courts having jurisdiction in bankruptcy in Scotland and Ireland, and every British court elsewhere having jurisdiction in bankruptcy or insolvency, and the officers of such courts respectively, shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy, and an order of the court seeking aid, together with a request to another of the said courts, shall be deemed sufficient to enable the latter court to exercise, in regard to the matters directed by such order, the like jurisdiction which the court which made the request, as well as the court to which the request is made, could exercise in regard to similar matters within their respective jurisdictions" (m). Delegation of Powers.]—"The Bankruptcy Act, 1869," enacts that Sect. 67. "The chief judge in bankruptcy and every judge of a local court of bankruptcy may, subject and in accordance with the rules of court for the time being in force, delegate to the registrar or to any (i) As to appeals see post, Chap. X., § 5. (k) Mellish, C. J., Ex parte Cohen, Re Sparke, 41 L. J. (N. S.) Bank. 17. (1) Ex parte Cohen, supra; see also the observations of Giffard, L. J., on the powers of the County Court in Bankruptcy under s. 72; In re Anderson, 39 L. J. (N. S.) Bank. 54; see also Ex parte Rumboli, re Taylor, 40 L, J. (N. S.) Bank. 82. (m) See s. 2, ante, p. 201 (note), by which the act does not, except so far as is expressly provided, apply to Scotland or Ireland. Even the London Court has no jurisdiction under s. 6 (post, p. 220), where the debtor resides in Scotland or Ireland. Exc parte O'Loghlen, 40 L. J. (N. S.) Bank. 28. See ss. 73, 74 and 75, post, p. 205, as to enforcing warrants in Scotland and Ireland. Every court has jurisdiction throughout England, s. 80, subs. (6), ante, p. 203. other officer of his court such of the powers vested in him by this act as it may be expedient for the judge to delegate to him." The "Bankruptcy Rules, 1870," provide that PART VII. 2. "The chief judge in bankruptcy may delegate to the registrars of sect. 67. his court such of the powers vested in him by the act as such judge may deem expedient to delegate, except the power to make an order to commit a person for contempt." 3. "The judge of a local court of bankruptcy may delegate to a regis- Sect. 67. trar of his court, but to no other officer, such of the powers vested in him by the act as such judge may deem expedient to delegate, except the power to make an order to commit a person for contempt." 4. "Every order made by a registrar while acting under any delegated power, shall have the same force and validity, and be subject to the same appeal, as an order made by the judge, but the registrar may adjourn any matter for the opinion of the judge if he shall think fit." Questions of novelty and importance ought not to be heard by the registrar (n); and where the registrar has to report to the court, he ought not to receive his own report (o). Enforcement of Orders and Warrants of Court.]—Under the head of "Orders and Warrants of Court" "The Bankruptcy Act, 1869," contains the following provisions: and orders of Sect. 73. "Any order made by a court having jurisdiction in bankruptcy Enforcement in England under this act shall be enforced in Scotland and Ireland in of warrant the courts having jurisdiction in bankruptcy in such countries respec- courts. tively, in the same manner in all respects as if such order had been made by the courts which are hereby required to enforce the same; and in like manner any order made by the court in Scotland having jurisdiction in bankruptcy shall be enforced in England and Ireland, and any order made by the court having jurisdiction in bankruptcy in Ireland shall be enforced in England and Scotland by the courts respectively having jurisdiction in bankruptcy in the division of the United Kingdom where the orders made require to be enforced, and in the same manner in all respects as if such order had been made by the court required to enforce the same in a case of bankruptcy within its own jurisdiction" (p). Sect. 75. "Any court having jurisdiction in bankruptcy in England Examination under this act may, if it thinks fit, order that a person named in the order in Scotland being in Scotland or in Ireland shall be examined there." or Ireland. Sect. 76. "Any warrant of a court having jurisdiction in bankruptcy Warrants of in England under this act may be enforced in Scotland, Ireland, the bankruptcy Isle of Man, the Channel Islands, and elsewhere in her Majesty's do- courts. minions, in the same manner and subject to the same privileges in and subject to which a warrant issued by any justice of the peace against a person for an indictable offence against the laws of England may be executed in such countries respectively in pursuance of the acts of parliament in that behalf; and any search warrant issued by a court having jurisdiction in bankruptcy under this act for the discovery of any property of a bankrupt may be executed in manner prescribed or in the same (n) Per James, L. J., Ex parte O'Loghlen, 40 L. J. (N. S.) Bank. 31. (0) See Re Finney, Ex parte English Joint Stock Company, 40 L. J. (N. S.) Bank. 43. (p) Sect. 74 will be found ante, p. 204. PART VII. Commitment to prison. manner and subject to the same privileges in and subject to which a search warrant for property supposed to be stolen may be executed according to law." Sect. 77. "Where any court having jurisdiction in bankruptcy under this act commits any person to prison, the commitment may be to such convenient prison as the court thinks expedient, and if the gaoler of any prison refuses to receive any prisoner so committed he shall be liable for every such refusal to a penalty not exceeding one hundred pounds." General rules to be made by Lord Chan cellor, with advice of chief judge. § 4.-RULES FOR REGULATING THE PRACTICE AND PROCEDURE IN BANKRUPTCY. Under the head of "General Rules" "The Bankruptcy Act, 1869," enacts that- Sect. 78. "The Lord Chancellor, with the advice of the chief judge in bankruptcy, may from time to time make, and may from time to time revoke and alter, general rules, in this act described as rules of court, for the effectual execution of this act, and of the objects thereof, and the regulation of the practice and procedure of bankruptcy petitions and the proceedings thereon. "Any general rules made as aforesaid may prescribe regulations as to the service of bankruptcy petitions, including provisions for substituted service; as to the valuing of any debts provable in a bankruptcy; as to the valuation of securities held by creditors; as to the giving or withholding interest or discount on or in respect of debts or dividends; as to the funds out of which costs are to be paid, the order of payment, and the amount and taxation thereof; and as to any other matter or thing, whether similar or not to those above enumerated, in respect to which it may be expedient to make rules for carrying into effect the objects of this act; and any rules so made shall be deemed to be within the powers conferred by this act, and shall be of the same force as if they were enacted in the body of this act. Any rules made in pursuance of the section shall be laid before parliament within three weeks after they are made, if parliament be then sitting; and if parliament be not then sitting, within three weeks after the beginning of the then next session of parliament, and any rules so made shall be judicially noticed. "Until rules have been made in pursuance of this act, and so far as such rules do not extend, the principles, practice, and rules on which courts having jurisdiction in bankruptcy have heretofore acted in dealing with bankruptcy proceedings shall be observed by any court having jurisdiction in bankruptcy cases under this act.” General Rules dated 1st January, 1870, were made under the above provision, and are cited as "The Bankruptcy Rules, 1870," and subsequent Rules dated 7th July, 1871, are cited as "The Bankruptcy Rules, 1871." These Rules are to be read together. They will be found under the subjects to which they refer (q). (4) See the Table of "Rules," prefixed to this volume. Rule 1 of "the Bankruptcy Rules, 1870," contains the following definition of terms:— "1. In the construction of these rules and forms, words importing the singular number shall include the plural, and words importing the § 5.-RECORD and Form of PROCEEDINGS. Seal of Court.]-The Bankruptcy Act, 1869, enacts thatSect. 109. "Every court having jurisdiction in bankruptcy under this act shall have a seal describing such court in such manner as may be directed by order of the lord chancellor, and judicial notice shall be taken of such seal, and of the signature of the judge or registrar of any such court, in all legal proceedings." By order dated 1st January, 1870, "every county court shall have a seal describing such court, as it is now described by the seal hitherto used in every such court respectively." Record of Proceedings.]-"The Bankruptcy Rules, 1870," direct that, Rule 9. "All proceedings of the court shall remain of record in the court, so as to form a complete record of each matter, and they shall not be removed for any purpose, except for the use of the officers of the court or by special direction of the judge or registrar, but they may at all reasonable times be inspected by the trustee, the bankrupt, and any creditor who has proved, or any person on their behalf." 'Judge' shall mean the judge or a lawfully appointed deputy judge of any such court: 'Registrar' shall mean a registrar or any deputy registrar of any such court: 'Creditor' shall include a firm of creditors in partnership: 'Debtor' shall include a firm of debtors in partnership: 'Attorney' shall mean any attorney or solicitor entitled to practise in any such court: 'Name' of any person shall mean both the christian name or the initial letter or contraction of the christian name and the surname of such person: 'Affidavit shall include statutory declarations, affirmations, and attestations upon honour, and the word 'sworn " shall include declaring and affirmed accord ing to statute and attested upon 'District' shall, when used with reference to a county court, 'Gazetted' shall mean that the notice or thing is to be pub- 'Sealed' shall mean sealed with Rule 319 provides that "the fore- "The Bankruptcy Rules, 1871," by Rule 1, order that "1. The general rules in bankruptcy made on the 1st day of January, 1870, may be cited for all purposes as the Bankruptcy Rules, 1870,' and these rules as the Bankruptcy Rules, 1871,' and such rules shall be read and construed together." PART VII. СНАР. І. Bankruptcy courts to have seals. |