CO885-5 — Page 223

PUBLIC RECORD OFFICE

Reference :-

TITLE CO. 885 /

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PUBLIC RECORD OFFICE, LONDON

Application

of Act.

Effect of

vesting

order.

Conditions

4

42

Bankruptcy.

1. When the Queen in Council is satisfied that reciprocal arrangements corresponding to this Act have been made in a British possession, so that a superior court of that possession will aid the bankruptcy courts of the United Kingdom and other British possessions, an Order in Council may apply this Act as respects that possession.

Such application may be made as regards either the whole or part of the Act.

2. When the Act applies to a British possession the vesting order of a bankruptcy court of that possession to have effect in the United Kingdom, as follows:-

A bankruptcy court in the United Kingdom on application shall, subject as follows, direct that the vesting order shall have effect, and the court shall have the same power over it as if it had been a vesting order made by the court itself.

The court may, if the circumstances of the case appear to require it, make the direction imposed by subject to [both or either of] the following condition[s], namely,-

court.

Determina-

tion of place

at which principal proceedings

for distri-

bution of estate of bankrupt are

to be carried

on.

Conflict of courts.

each other.

[(.)] To a condition that creditors resident in the United Kingdom may prove in the

United Kingdom for their debts;

[q. (b.) If it appears to the court that having regard to the circumstances under which the debts of the creditors in the United Kingdom were incurred, those 'creditors or any class of them have a special claim upon the assets in the United Kingdom, to a condition that such claim shall be recognised to such extent as the court thinks just];

Where a bankruptcy court in England directs that a vesting order of a bankruptcy court of a British possession shall have effect as if made by the court, then, save as otherwise directed by the court in England, the property shall be administered by the official receiver on behalf of the creditors, and if the court orders that the property shall vest in any person as trustee, such trustee shall have the same powers and be subject to the same obligations as if he were appointed under the English bankruptcy law.

Where the court imposes a condition that creditors may prove in the United Kingdom for their debts, then, subject to any other order made by the court, the official receiver of the court shall admit or reject the proofs, and for that purpose, be in the sanic position as if he were trustee under the bankruptcy.

3. If it appears to the court on application to give effect to a vesting order that the bankrupt, by reason of being domiciled or resident in the United Kingdom, could have been made bankrupt by the court, the court, instead of giving the direction applied for, may require that the principal proceedings for distributing the estate of the bankrupt shall be carried on in the United Kingdom, and may in England make a receiving order as if a bankruptcy petition had been duly presented and the making of the vesting order were an act of bankruptcy.

Where a vesting order has been made in respect to the same bankruptcy by a bank- ruptcy court in the United Kingdom and by a court in a British possession to which the Act applies, the court in the United Kingdom may direct that. the principal proceedings for the distribution of the estate of the bankrupt shall be carried on in the court of the British possession where the vesting order was made, or of some other British possession in which a vesting order has been or is likely to be made.

In determining where the principal proceedings shall be carried on, the court shall have regard to the residence of the majority of the creditors, their number and value, the situation of the property of the bankrupt, the places and manner in which he carried on business, and all the circumstances of the case.

4. If the bankruptcy courts in the United Kingdom and in any British possession or possessions make conflicting orders as to the place at which the principal proceedings for the distribution of the estate of a bankrupt are to be carried on, any person interested may petition Her Majesty in Council. The petition shall be referred to the Judicial Committee, and an Order in Council, which shall bind the bankruptcy courts in the United Kingdom as well as in the British possession, may determine the principal place for such proceedings.

Bankruptcy 5. Subject to such conditions as the court may make as above mentioned, the courts to aid bankruptcy courts in the United Kingdom and their officers, including the official receiver in England, shall act in aid of and be auxiliary to the courts in a British possession to which this Act applies in all matters of bankruptcy, and shall exercise such jurisdic- tion as they can by law exercise in regard to similar matters within their jurisdiction, and also any jurisdiction which the said court in the British possession can exercise.

6. Any discharge granted to a bankrupt by the court of a British possession in which of bankrupt. the principal proceedings for the distribution of the bankrupt's estate are conducted, shall have effect to discharge the bankrupt from liability to debts from which a discharge

Discharge

43

granted by a bankruptcy court in the United Kingdom relieves him [qu. from liability in the United Kingdom to any debts from which the discharge relieves him according to the law of the British possession.]

[Alternative for last paragraph.]

When a discharge is granted to a bankrupt by the court of a British possession, a bankruptcy court in the United Kingdom on application shall direct the order of discharge to be registered, and on registration it shall have effect in the United Kingdom as if made by such court;

Provided that, where the bankrupt, by reason of being domiciled or resident in the United Kingdom, could have been made bankrupt by the court, and such facts are proved to the court as would, if he had been so made bankrupt, have justified the court either in refusing or suspending the operation of au order of discharge, or in granting it subject to conditions, the court may refuse or suspend the order for registration, or grant it subject to the like conditions.

Before the application is made to the court, such notice shall be given as may be prescribed by rules of court, being a notice similar to the notice required for an application for an order of discharge by a person made bankrupt by such court, and the court may hear the same persons as they would hear if he had been made bankrupt by such court.

7. In a British possession which has no bankruptcy law, the provision as respects the Colony

ail given by the courts in that possession to the courts in the United Kingdom, and vice where no rers, may be applied, although there is no provision for any vesting order or discharge. bankruptcy.

8. Provision must be made for fees, rules of court, and officers.

Bankruptcy" includes insolvency and any other proceeding for the general surrender officers,

of a debtor's property to his creditors.

Fecs and

Definition.

Bankruptcy court" means any court having any jurisdiction as respects bankruptcy

or insolvency, by whatever name it is called.

"Discharge of the bankrupt " means any proceeding by which the bankrupt is released from liability for his past unpaid debts.

+C

Vesting order" means any order vesting either the possession or the ownership of

the property of a bankrupt in any person, whether called official receiver or trustee or otherwise, on behalf of the creditors of a bankrupt.

Winding up of Companies.

The foregoing provisions may be applied to the winding up of companies, subject as Winding up follows:-

of com❤

In the case of companies the principal proceedings for winding up must be in the panies. place where the company is domiciled, ie, its place of registration, and must be con- ducted in accordance with the law of such place of registration.

Nevertheless the court to be at liberty to impose conditions as in the case of bank- ruptcy, and particularly to be allowed to give effect to a special claim upon assets in the United Kingdom of any creditors or class of creditors in the United Kingdom.

The provisions with respect to discharge of bankrupt will not apply.

No. 17.

NOTES ON THE EFFECT OF FOREIGN AND COLONIAL BANKRUPTCIES IN ENGLAND.

Although it has not been difficult to accept the principle on which the proposal to adopt some simple method for the mutual enforcement of judgments in the United Kingdom and the Colonies, some doubt has been expressed as to the expediency of extending this principle to orders in bankruptcy.

The following concise statement of the chief points relative to the effect given to foreign and Colonial bankruptcies by English law as it exists at the present time, independently of the Bankruptcy Act, may therefore not be out of place

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i. A foreign trustee or assignee in bankruptcy will be recognised in England, and his title to the debtor's property here considered paramount to ordinary claims existing against it, even though those claims are in process of being substantiated by action in an English court.

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