CHAPTER XXVI. Certificate or order for, when necessary, to entitle plaintiff to But the Judicature Acts (n) expressly preserved the operation of sect. 5 of the County Court Act of 1867 (0), which makes a certificate of the judge necessary to entitle a plaintiff to his costs "who recovers" (p), not more than 207. in contract, or 107. in tort. And that section applied where the plaintiff's whole claim was within the County Court jurisdiction, and the amount was further reduced to the 207. or 107. limit by an established set-off, but not if the claim costs. was so reduced by a counterclaim, for this is in the nature of a cross action, whereas set-off is a defence (q). The corresponding provisions now in force are those of the County Courts Act, 1888, 51 & 52 Vict. c. 43, s. 116, which is expressly limited to actions which could have been commenced in the County Court (r). By R. S. C., 1883, a further discouragement to proceeding in the superior Court is provided in the rule that in actions on contract in which the plaintiff recovers by judgment or otherwise, a sum, exclusive of costs, not exceeding 501., he shall be entitled to no more costs than he would have been entitled to had he brought his action in the County Court, unless the Court or a judge otherwise orders (s). (n) 36 & 37 Vict. C. 66, s. 67. () 30 & 31 Vict. c. 142; repealed by C. C. Act, 1888, s. 188. (P) An amount paid into Court and accepted in satisfaction was recovered within this section. Boulding v. Tyler, 3 B. & S. 472; Baylis v. Linlott, L. R., 8 C. P. 345. (4) Stooke v. Taylor, 49 L. J., Q. B. 857; 5 Q. B. D. 569. (r) In case of any such action being brought in the High Court, then, if the plaintiff recovers less than 207. in contract or 107. in tort, he is entitled to no costs. And if he recovers 201. but less than 50%. in contract, or 107. but less than 207. in tort, he is not to have any more costs than he would have been entitled to in the County Court; unless in any such action whether in contract or tort a judge of the High Court certifies that there was sufficient reason for suing in that Court, or unless the High Court or a judge thereof at Chambers shall by order allow costs (Barker v. Hempstead, 23 Q. B. D. 8; Bazett (8) Ord. LXV. r. 12. See also successful CHAPTER JUDGMENT. EXECUTION. Abuse of process will be restrained. Abolition of arrest on mesne process and imprisonment for debt. Judgment shall be entered by order of the judge at or after the trial (f); and in general no motion is now required (u). The subject of execution is now provided for by the Rules of 1883 (), and the Sheriffs Act, 1887. After a party has levied the amount of the debt upon the goods of one of the parties liable on the bill, the Court will restrain him from levying it over again on the goods of another, and have intimated that they would punish a plaintiff who should take out execution on both judgments (y). A defendant cannot now be arrested in England in an action in a superior Court, unless the plaintiff prove by evidence on oath to the satisfaction of a judge, that he has a good cause of action to the amount of 501. (z) or upwards, and that there is probable cause for believing that the defendant is about to quit England, and that his absence will materially prejudice the plaintiff in the prosecution of his action (a), and all imprisonment for nonpayment of money, except as contempt of Court, is now abolished. 14 Q. B. D. 53; 54 L. J., Q. B. 17. (t) Ord. XXXVI. r. 39. (r) Ord. XLII.; see also Bank- (y) Windham v. Wither, 1 Stra. 515; Ex parte Wyldman, 2 Ves. Sen. 115. (2) Formerly 207. 1 & 2 Vict. c. 110, s. 3. (a) 32 & 33 Vict. c. 62, s. 6; 41 & 42 Vict. c. 54, s. 6, does not extend beyond final judgment, Hume v. Druyff, L. R., 8 Ex. 214. And see Bankruptcy Acts, 1883, s. 25; 1890, s. 7. As to process, Ord. LXIX. Party to Mutual Specific Exchange of Paper must Doctrine of Relation. 455 PROTECTED DEALINGS 464 455 Under former Acts Under Act of 1869 What amounts to Specific Exchange 464 VOID DEALINGS Voluntary Settlements Under former Acts or at Common Law Fraudulent Preference prior to 1869. PROTECTED AND VOID 464 DEALINGS under Act of 1883 Available Act of Bankruptcy 457 458 What amounts to Notice of Act of Bankruptcy Division of the Subject 459 In what Cases the Holder PROOF OF DEBTS 460 460 460 Bills and Notes not yet due 461 same B.B.E. 461 pay his own Paper before Mutual Accommodation without Specific Exchange 464 After Holder has proved, no further Proof Cases of Mutual Accommodation without Specific Exchange, Mutual Bankruptcy and Cash Balance 465 Accommodation Bills in the Hands of an Indorsee for Value Proof of Interest Of Expenses, Re-exchange, &c. Where there are several Adjudications of Bankruptcy, under which, and for how much, the Holder may prove XXVII. Companies Acts Dormant Partner's Share Assigned Debts, when within 477 Factor or Banker be- POSITION OF BANKRUPT PRIOR TO DISCHARGE Transfer in Case of Bankruptcy of Holder Where the Bankrupt is a Trustee. 478 479 480 480 When the Transfer of a Bill EFFECT OF DISCHARGE 480 480 480 481 To discuss at length the subject of bankruptcy would far exceed our limits. It is proposed, therefore, to give an outline of the law so far as it relates to bills of exchange and promissory notes, and when necessary from time to time to refer to the statute law as it existed before the present Acts (a). (a) 46 & 47 Vict. c. 52 (1883); amended by 53 & 54 Vict. c. 71 (1890). The power of petitioning against himself given by the Act of 1849, s. 3, and the Act of 1861, s. 86, but not renewed under the Act of 1869, is now restored by the Act of 1883. See ss. 4 (1), 5 and 8. The ancient distinction between traders and non-traders, in determining what constitutes an act of bankruptcy, is abolished (sect. 4 (1), and is now only material incidentally, e.g. as to what is required of a trader before obtaining discharge (sect. 28 (2)), and as to certain goods in the order and disposition of the debtor in his trade or business, with consent of owner, becoming divisible among creditors (sect. 44 (2), iii). XXVII. The acts of bankruptcy upon which a petition may now CHAPTER be founded are:-(a) Assignment by the debtor of his property to trustee for benefit of his creditors generally; ACTS OF (b) fraudulent conveyance or transfer of property; (c) con- BANKveyance or transfer of property or charge thereon which RUPTCY: would be void as a fraudulent preference if he were adjudged generally. bankrupt; (d) departing or remaining out of England, or departing from his dwelling-house, or otherwise absenting himself, or beginning to keep house with intent to defeat and delay his creditors; (e) the levy of execution against him by seizure and sale of his goods; or, after 1890, holding of them by sheriff for 21 days exclusive of interpleader proceedings; (f) the filing by him of a declaration of inability to pay his debts, or the presenting by him of a bankruptcy petition against himself; (g) failure to comply with the requirements of a bankruptcy notice within the prescribed time, or to satisfy the Court that he has a set-off, counterclaim or cross-demand, at least equal to the debt, and which he could not set up in the action in which the judgment was obtained; (h) giving notice to any of his creditors that he has suspended, or is about to suspend, payment of his debts (b); to which must be added: (i) the making of a receiving order against him in lieu of committal upon a judgment debtor's summons, by consent of the creditor (c). bills. A bill given by the bankrupt to a petitioning creditor In respect of after bankruptcy was a void transaction within the express provisions of the Act of 1849, and might be an additional act of bankruptcy (d). And the same result would appear to follow from the provisions of the Act of 1883 (e). (b) Bankruptcy Acts, 1883, s. 4, 1890, s. 1. (c) 1883, s. 103 (5). Both the judgment summons and the debtor's summons procedures, as established in 1869, have undergone considerable modification. The use of the debtor's summons as a "screw for the recovery of debts, strongly condemned in Er parte Sewell, L. R., 13 Ch. D. 266, is now at an end. The debt must first be established by final judg ment. On that judgment the creditor may conclude that the debtor is able, but unwilling to pay, or he may believe him to be insolvent. In the former case he will in future take out a judgment debtor's summons (which is now bankruptcy business), and the Court may either commit, or, with (d) See 12 & 13 Vict. c. 106, |