PART VII. CHAP. IV. Sect. 7. Rule 19. Sect. 7. No. 8. Affulavit on Application to dismiss Debtor's Summons. In the matter of a debtor's summons by C. D. [F. K., &c.] against make oath and say: That I am not indebted to C. D. [and F. K., &c.] in the [aggregate] amount of the sum claimed in the summons [or that I am only indebted to C. D. [or F. K. or G. H.] in sum of being part of the sum claimed in the summons, or that I am not indebted to Č. D. [and F. K., &c.] in such an [aggregate] amount as will justify him [or them] in presenting a bankruptcy petition against me]. Sworn, &c. (Signed) No. 9. Order on Application to dismiss Debtor's Summons. In the London Bankruptcy Court [or the county court of holden at ງ. A. B. In the matter of a debtor summons by C. D. against A. B. Upon the application of A. B. to dismiss this summons and upon reading the affidavit of A. B., and upon hearing C. D. (if present), it is ordered that this summons be dismissed [and that the said C. D. (or as the case may be) shall pay to the said A. B. the sum of for costs], [or that the said A. B. enter into a bond in the penal sum of [double the alleged debt] with such two sufficient sureties as the court shall approve of to pay [or deposit with the registrar the sum of as security for the payment of such sum or sums as shall be recovered by C. D. [or as the case may be] against the said A. B. in any proceedings taken or continued against him for the recovery of the demand mentioned in such summons, together with such costs as shall be given by the court in which such proceedings are had. And it is further ordered that all proceedings on this summons shall be stayed until the court in which the proceedings shall be taken shall have come to a decision thereon]. Given under the seal of the court this day of By the court, Registrar. When the debt is paid although after the seven days or three weeks, the act of bankruptcy committed at the expiration of the time mentioned in the debtor's summons, ceases to be an act of bankruptcy on which the debtor can be adjudicated a bankrupt, and therefore the creditor may safely receive payment of his debt, for although he necessarily had notice of the act of bankruptcy committed by nonpayment, the consequence of receiving the amount afterwards, does not place him in the dilemma of receiving the amount, and having to refund it in the event of a subsequent adjudication by another creditor (on the ground that the title of the trustee relates back to the prior act of bankruptcy); for on the debt ceasing by the act of payment, the act of bankruptcy also ceases (h). (h) See judgment of Mellish, L. J., Ex parte Weir, In re Weir, 41 L. J. (N. S.) Bankr. 14. § 7.-PROCEEDINGS UNDER "THE ABSCONDING DEBTORS ACT, 1870." The provisions of "The Absconding Debtors Act, 1870" (33 & 34 Vict. c. 76), although intimately and essentially connected with the act of bankruptcy by debtors summons, require to be noticed under a distinct head. That act reciting that "the laws now in force for the arrest of debtors absconding from England are insufficient for that purpose, and whereas frauds may be perpetrated upon creditors by insolvent debtors departing for distant countries before the necessary proceedings can be taken to make them bankrupt," enacts Sect. 1. "That the provisions of the 'Bankruptcy Act, 1869,' be extended in manner following: the court may, by warrant addressed to any constable or prescribed officer of the court, cause a debtor to be arrested and safely kept as prescribed until such time as the court may order, if, after a debtor's summons has been granted in the manner prescribed by the said act, and before a petition of bankruptcy can be presented against him, it appears to the court that there is probable reason for believing that he is about to go abroad, with a view of avoiding payment of the debt for which the summons has been granted, or of avoiding service of a petition of bankruptcy, or of avoiding appearing to such petition, or of avoiding examination in respect of his affairs, or otherwise avoiding, delaying, or embarrassing proceedings in bankruptcy provided always, that nothing herein contained shall be construed to alter or qualify the right of the debtor to apply to the court in the prescribed manner to dismiss the said summons as in the said act is provided, or to pay, secure or compound for the said debt within the time by the said act provided without being deemed to have committed an act of bankruptcy; and provided also, that upon any such payment or composition being made for such security offered as the court shall think reasonable, the said debtor shall be discharged out of custody, unless the court shall otherwise order." PART VII. CHAP. IV. Provisions of Bankruptcy extended. Sect. 2. "No arrest shall be valid or protected under this act unless when arrest the debtor before or at the time of his arrest shall be served with the not valid. debtor's summons." Security for after arrest. Sect. 3. "No payment or composition of a debt made or security for the same given after an arrest made under the provisions of this act debt given shall be exempted from the provisions of the said act, relating to fraudulent preferences.' Sect. 4. The terms used in this act shall have the same meaning as Construction they have in the said recited act, and this act shall be read and construed of terms. therewith." fees. Sect. 5. "The costs and fees to be charged in respect of any proceed- Costs and ings authorized shall be prescribed in the like manner in which costs and fees to be charged in respect of proceedings under the 'Bankruptcy Act, 1869,' are respectively directed by that act to be prescribed." PART VII. 8.-THE TIME WITHIN WHICH ACTS OF BANKRUPTCY MUST BE CHAP. IV. COMMITTED. "The Bankruptcy Act, 1869," s. 6, enacts, that no person shall be adjudged a bankrupt on any of the grounds mentioned in the act "unless the act of bankruptcy on which the adjudication is grounded has occurred within six months before the presentation of the petition for adjudication” (¿). Where the alleged act of bankruptcy is a debtor's summons and neglect to pay under sub-sect. (6) of sect. 6 of the act, the act of bankruptcy dates from the expiration of the time (seven days or three weeks as the case may be), although proceedings on the summons have been stayed under sect. 7, beyond that time (k). (i) See the section, ante, p. 220. the computation of time, see ante, p. 210. CHAPTER V. THE PETITION IN BANKRUPTCY. § 1. THE PRESENTATION OF THE PETITION. §2.--VERIFICATION OF PETITION. § 3.-SERVICE OF PETITION. §4.-NOTICE BY DEBTOR OF INTENTION TO DISPUTE PETITION. § 5.-RESTRAINT OF ACTIONS AND LEGAL PROCEEDINGS AFTER PETITION. § 6.-APPOINTMent of Receiver OR MANAGER AFTER PETITION. § 1. THE PRESENTATION OF THE PETITION. THE mode of proceeding to obtain an adjudication of bankruptcy is by presenting a petition to the court, praying that the debtor be adjudged a bankrupt, and alleging one or more acts of bankruptcy" as the ground for such adjudication (a). 66 Cost of Proceedings in the first instance.]—" The Bankruptcy Rules, 1870," direct that Rule 31. "The petitioning creditor shall, at his own costs, file and prosecute his petition and the proceedings under any order of adjudication made thereon, until the appointment of a creditors' trustee; and the court shall make order for the payment of such costs out of the first net proceeds of the estate of the bankrupt." Where to be filed.]-" The Bankruptcy Rules, 1870," direct that Rule 26. "A bankruptcy petition shall be filed in the London Bankruptcy Court if the debtor resides or carries on business within the district of that court, and where the debtor neither resides nor carries on business within the district of that court, it shall be filed in the court within the district of which the debtor resides or carries on business." This rule is in accordance with sect. 59 of the act, which enacts, with respect to the courts having jurisdiction in bankruptcy, that "if the person sought to be adjudged a bankrupt, being resident in England, do not reside or carry on business within the London Bankruptcy District Court, the court' shall, subject to the provi D. (a) See “The Bankruptcy Act, 1869,” s. 6, ante p. 220. VOL. II. R CHAP. V. PART VII. sions hereinafter contained for removing the proceedings, mean the county court of the district in which such person resides or carries on business, hereinafter referred to as the local bankruptcy court" (b). Power to present petition against one partner. Property of partners to be vested in same trustce. As to what constitutes a residence or carrying on business, see ante, Vol. I., p. 131. The Time for Presentation.]-The petition must be presented within six months of the occurrence of the act of bankruptcy, on which it is grounded (c). Presentation in the case of Partnerships.] -"The Bankruptcy Act, 1869," enacts that Sect. 100. "Any creditor whose debt is sufficient to entitle him to present a bankruptcy petition against all the partners of a firm may present such petition against any one or more partners of such firm without including the others." Sect. 102. "Where one member of a partnership has been adjudicated a bankrupt, any other petition for adjudication against 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 property of such last-mentioned member shall vest in the trustee appointed in respect of the property of the firstmentioned member of the partnership, and the court may give such directions for amalgamating the proceedings in respect of the properties of the members of the same partnership as it thinks just." By Company or Copartnership.]-"The Bankruptcy Rules, 1870," direct that Rule 15. "A bankruptcy petition or debtor's summons, against any debtor to any copartnership duly authorized to sue and be sued in the name of a public officer or agent of such co-partnership, may be presented by or sued out by such public officer or agent as the nominal petitioner or plaintiff for and on behalf of such co-partnership, on such public officer or agent filing an affidavit, according to the form in the schedule (d), stating that he is such public officer or agent, and that he is authorized to present or sue out such petition or debtor's summons. Where a corporate body is petitioner or plaintiff, any affidavit in support of such petition or debtor's summons may be made by a director or other officer on its behalf." Identification of Petitioner.]-" The Bankruptcy Rules, 1870," provide that Rule 28. "Where a petitioning creditor is not known to the registrar of the court, or the petition shall not be attested by an attorney, the petition shall not be filed until the petitioner shall be identified to the satisfaction of the registrar." (b) See sect, 59, ante, p. 201. Act, 1869," ante, p. 220. (d) No form of affidavit is given expressly for this purpose. |