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JURISDICTION OF THE COUNTY COURTS IN INSOLVENCY AND PROTECTION CASES AND IN THE APPREHENSION OF ABSCONDING DEBTORS.
2. Protection Cases.
BESIDES the jurisdiction of the County Court in actions, a number of statutes have, from time to time, conferred powers of greater or less importance on these Courts, and to a concise consideration of them the remaining chapters will be devoted.
The jurisdiction of insolvency under the 1 & 2 Vict. c. 110, is, by the 10 & 11 Vict. c. 102, s. 10, vested in the County Court where the insolvent is in custody in any gaol more than twenty miles from the General Post Office. The Insolvent Court in London, to which the petition of the insolvent must in the first instance be presented, is required in such cases to refer the hearing to the County Court.
In the exercise of the jurisdiction in insolvency, as regulated by the 1 & 2 Vict. c. 110, the clerk of the County Court acts as Registrar, and the high bailiff as messenger.
The course of proceeding is, that the prisoner, in whatever part of England he may be confined, beyond twenty miles from the General Post Office, presents his petition for relief under the 1 & 2 Vict. c. 110 to the Court for the Relief of Insolvent Debtors in London. The Court in London forthwith makes an order referring the petition for hearing to the County Court, within the district of which the insolvent is in custody, and transmits the petition and schedule to the Court for hearing. The insolvent or his attorney delivers all books, papers and accounts in his possession, and relating to his debts, credits or estate, to the clerk of the County Court. On
the usual day (of which due notice is advertised) for hearing insolvency cases, the petition comes on in its order, and the matter is disposed of by the Judge in conformity with the provisions of the statute. The petition and schedule, together with a statement of what has been done in the matter, are then transmitted to the Court for the Relief of Insolvent Debtors in London, where the proceedings are filed. The Judge may recommend, but it seems cannot appoint, the creditors' assignee, though his recommendation is generally confirmed by the Court in London (a). In other respects, the practice of the Insolvent Court in London is applied to the proceedings in the County Court, the new rules expressly providing, that the rules of practice and orders of the Court for the Relief of Insolvent Debtors in London shall be the rules of practice and orders in insolvency and protection cases in the County Courts, so far as the same are applicable (b), and to works treating of that practice the practitioner in the County Court must be referred, as it would be beyond the limits of the present supplement to enter into it.
It may be observed, however, that the new rules of the County Courts provide that "if any imprisoned debtor, whose petition and schedule shall be transmitted for hearing to a County Court from the Court for Relief of Insolvent Debtors, shall have previously petitioned under the protection statutes any Court of insolvency, whether County Court or in London, and the matter therein be still pending, whether by reason of adjournment sine die or otherwise, no adjudication shall be made on such transmitted petition in regard to any debt or debts contracted prior to such former petition, and the Judge of the County Court shall ratify such matter by indorsement on the schedule before the return thereof" (c).
2. PROTECTION CASES.
Another branch of exclusive jurisdiction of the Court is that which is exercised in protection cases. By sect. 4 of 10 & 11 Vict. c. 102, the jurisdiction under the "Protection Acts" (5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96) is transferred to the County Court in cases arising more than twenty
(a) Report of the County Court Commissioners, p. 18.
(b) Rules of Practice, r. 198.
miles from the General Post Office in London. The decision of the Judge in this case is final.
In cases within the Protection Acts, the clerk acts as official assignee and Registrar, and is bound to present his accounts to the treasurer to be audited, and to pay over to him any balance remaining in hand. The high bailiff acts as messenger.
The practice of the Court for the Relief of Insolvent Debtors in London, in cases under the Protection Acts, the 5 & 6 Vict. c. 116, and 7 & 8 Vict. c. 96, is adopted in the County Court so far as it is applicable (d).
3. ABSCONDING DEBTORS.
Where any person is indebted in a sum to the amount of 201. or more, and he is about to leave the country for the purpose of avoiding or delaying his creditors, it is competent for the creditor to apply, under the "Absconding Debtors Act, 1851," 14 & 15 Vict. c. 52, to the Judge of any Court, except the Judges acting in Middlesex and Surrey, for an order to arrest the debtor. If the Judge be satisfied by affidavit that the debt exists, and that the debtor is about to leave the country for the purpose of avoiding or delaying the creditor, he may issue his warrant directed to the high bailiff, for the purpose of arresting the debtor. The high bailiff may execute the warrant in any part of England at any time within seven days after its date, including the day of its date. This proceeding by arrest is only auxiliary to proceedings in the Superior Court. If proceedings are not taken in conformity with the provisions of the statute, the warrant does not operate as a protection to the party on whose behalf such warrant has been issued, but is wholly void (e).
Where a warrant has been granted to the high bailiff of a County Court, under "The Absconding Debtors Act, 1851," such high bailiff is not required to execute the same out of the district of the Court for which he has been appointed high bailiff, but if the person against whom such warrant has been granted cannot be found within the district of the Court,
(d) Rules of Practice, r. 197,
(e) Report of the County Court Commissioners, p. 18.
by the Judge of which it has been granted, such high bailiff forthwith transmits such warrant to the high bailiff of any other County Court within the district of which such party shall then be or be believed to be, and thereupon such lastmentioned high bailiff is authorized and required to execute such warrant, and otherwise to act in the matter in all respects as if the warrant had been directed to him by the Judge of the Court to which he is the high bailiff (ƒ).
(f) Rules of Practice, r. 195.
EQUITABLE JURISDICTION IN CHARITABLE TRUSTS.
By the 16 & 17 Vict. c. 137 (the Charitable Trusts Act, 1853), s. 32, where the gross annual income of any charity does not exceed 301., and where equitable relief is required, jurisdiction, subject to certain conditions contained in the act, is given to the County Court to entertain the application, and to " give such relief and make such orders and directions in relation to the matter of such application as now might be made or given by the Court of Chancery or by the Lord Chancellor, entrusted with the care and commitment of the custody of lunatics, in a suit regularly instituted, or upon petition, as the case may require.' It is provided, however, by s. 41, "that no County Court shall, upon any proceedings under this act, have jurisdiction to try or determine the title at law or in equity to any real or personal property, or any term or interest therein, as between any charity or the trustee thereof, and any person holding or claiming such real or personal property, term or interest, adversely to such charity, or to try or determine any question as to the existence or extent of any charge or trust." By s. 39 of the act, a right of appeal, subject to certain conditions, is given to the party who alleges himself to be aggrieved by or dissatisfied with any order made by any County Court. It may be observed, that although the jurisdiction under this act extends only to charities, the annual income whereof does not exceed 30l., yet should the amount with which a defaulting trustee is chargeable exceed the sum of 501., there is no provision in the statute which excludes the jurisdiction of the County Court in such a case.
The practice with reference to applications under the act, relating to charitable trusts, depends on the provisions of the statute, on certain rules framed by the Lord Chancellor, in pursuance of a power contained in the Charitable Trusts Act, 1853, and on the general practice of the Court.