225 / 262
Chapter 39:
Partnerships—
Major
Recommendations
The existing provisions applying to debtors' summon-
ses in relation to partners should apply to bankruptcy
summonses. The principles of Lord Loughborough's
Order (now rules 88 to 90) should be made statutory.
Solvent partners should lodge such accounts and infor-
mation as the Official Assignee may desire. We suggest
new provisions for the lodgment of information with
the Official Assignee concerning the winding-up of
partnership estates or estates in which a bankrupt has
an interest. Where a bankrupt is a party to a contract
with any other person, the latter should be capable of
suing or being sued without joining the bankrupt. Any
partners carrying on business under a partnership
name may take proceedings or be proceeded against in
the name of the firm and the Court may order the dis-
closure of the partners' names. Limited partnerships
should be subject to bankruptcy proceedings in the
event of the general partners being adjudicated.
Chapter 40: Estates or Deceased Persons Dying Insol-
vent—
Major
Recommendations
Estates of deceased insolvents should be wound up
in bankruptcy. If no personal representative is consti-
tuted, notice of an administration order should be
served on such person as the Court thinks fit. The right
of retainer should be restricted.
Chapter 41: Surplus in a
Bankruptcy—
Major
Recom-
mendations
A surplus in a bankruptcy matter should be paid to
the bankrupt—no interest should be allowed to ordin-
ary creditors.
Chapter 42:
Arrangements—
Major
Recommendations
Protection should be granted to a debtor, notwith-
standing an execution order in the hands of the Sheriff,
which would be effective against all creditors except
the execution creditor. If a debtor is granted the pro-
tection of the Court, he should, if he is imprisoned
under the Enforcement of Court Orders Act 1926, be
released. Two copies of the statement submitted by
the debtor at the preliminary meeting should be filed
in the Official Assignee's office two days before the
private sitting. A second private sitting should no
longer be held. The Official Assignee may refuse to act
as trustee in a vesting arrangement. Failure of an
arranging debtor to carry out the duties imposed on
him by the statute should in future lead to his adjudi-
cation. A person carrying on business on his own and
also in partnership may not obtain protection in re-
spect of his personal liability unless all his partners join
with him. The special sitting to consider any difficulty
should be abolished, but, when his proposal has been
accepted, a debtor should be able to apply to the
Court to hold a special sitting. In a vesting arrange-
ment the Official Assignee or any person interested may
apply to the Court to appoint a sitting for enquiry.
The audit of vesting arrangements should be abolished
and a new system of distribution should be introduced.
Toods delivered by a creditor on the eve of protection
to a debtor may be returned or paid in full. Court
control over trust deeds is undesirable. The Deeds of
Arrangement Act 1890 should be repealed.
Chapter 43: Proof and Admission of
Debts—
Major
Recommendations
The present system of finding and proving debts
should be retained except that the sittings presently
held before the Assistant Examiner should in future be
held before the Official Assignee. A modification of the
present practice has been made and is set out in the
First Schedule. Specific proof of debt sections are
recommended for repeal and replacement by an omni-
bus section embracing all the present provisions. Mut-
ual debts and credits should be set off. The system of
deducting a rebate for interest from the dividends on
the debts payable in future should be abolished, and the
creditors should be admitted for the amount due at
the date of adjudication. Interest under a contract
should be provable in bankruptcy. The payment of
interest to creditors* out of a surplus in bankruptcy
should be abolished. Proofs of debt should be capable
of being amended with the consent of the Official
Assignee. A creditor should bear the costs of making
his proof of debt, unless the Court shall otherwise
specially order. Proof of a debt which, after investi-
gation, does not appear to be due, should be expunged.
A penalty should be imposed on a creditor making a
wilfully false statement or wilful misrepresentation. The
costs of a judgment should be provable.
Chapter
45:
Jurisdiction in Bank r up t cy—
M a j or
Recommendations
Bankruptcy jurisdiction should be confined to the
High Court. The power of the Bankruptcy Court to
review, rescind and vary its own orders should be
continued. Every order of the Bankruptcy Court should
be subject to appeal. Bankruptcy jurisdiction should
be withdrawn from the Circuit Court.
Chapter 46: Solicitors Acting in Bankruptcy Matters—
Major
Recommendations
(1) That a solicitor may appear, act in and plead in
any proceedings in the Court without being required
to employ counsel. (2) For the appointment of a soli-
citor to act for the assignees.
Chapter 50: Bankruptcy
Offences—
Major
Recommen-
dations
A trader who has been adjudicated a bankrupt or
who has obtained the protection of the Court should
be guilty of an offence if he has failed to keep books.
Excessive gambling or rash speculations by a person
subsequently adjudicated should be an offence. The
maximum sentence for certain offences should be raised
to five years penal servitude. Certain bankruptcy offen-
ces should be scheduled under the Criminal Justice
Act
1951
so that, in less serious cases, the matter may
be dealt with by a District Justice. The Circuit Court
is the appropriate Court for the trial of bankruptcy
cases.
Chapter 51: Officers of the
Court—
Major
Recommen-
dations
Control by the Examiner over the Official Assignee
should cease. The functions delegated to the Examiner
as well as the duties assigned to him under the rules
should be redistributed. Estate drafts should be signed
by the Official Assignee alone. The Official Assignee
should not be subject to supervision. He should seek
the sanction of the Court only in case of doubt or
difficulty. The Official Assignee in bankruptcy should
be a corporation sole.
Chapter 52: The Messenger of the
Cpqrt—
Major
Recommendations
The Court Messenger should be known as the Inspec-
222