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China Order, 1865, art. 5.
"English law" includes all branches of that law.
Jurisdiction of Consular Court in bankruptcy.
cf. Section XI.
Acts of bankruptcy.
The old Order of 1865 contained the fuller form-"in conformity with the common law, the rules of equity, the statute law, and other law for the time being in force in and for England." There can be little doubt, however, that the short form "English law" includes all the elements of that law which are specified in the long form. If there were any doubt on this point it is settled by the common interpretation of the principle that the law of England, as far as circumstances admit, is applicable to colonies acquired by occupation: for the cases in which that principle has been in question nearly all turn on the question whether any given statute is in force as being applicable to the circumstances of any given colony. And if the statute law is included, a fortiori all other law is equally included.
The jurisdiction of the Court in bankruptcy is, by art. 99, declared to be "all such jurisdiction in bankruptcy as for the time being belongs to the High Court and the County Courts in England," as far as circumstances admit; and to be exerciseable with respect to the following classes of persons being either resident in China, or carrying on business there: namely, resident British subjects and their debtors and creditors, being British subjects, or foreigners submitting to the jurisdiction of the Court.
The statutory provisions of the Bankruptcy Act, 1883, on which this jurisdiction depends are the following; the application of them will be considered in a subsequent Section.
46&47 Vict. c. 52.
4. (1) A debtor commits an act of bankruptcy in each of the following cases:
(a) if in England or elsewhere he makes a conveyance or assignment of his property to a trustee or trustees, for the benefit of his creditors generally:
(b) If in England or elsewhere he makes a fraudulent conveyance, gift, delivery, or transfer of his property, or of any part thereof:
(c) If in England or elsewhere he makes any conveyance or transfer of his property or any part thereof, or creates any charge thereon which would under this or any other Act be void as a fraudulent preference if he were adjudged bankrupt :
(d) If with intent to defeat or delay his creditors he does any of the following things, namely, departs out of England, or being
out of England remains out of England, or departs from his 46 & 47 Vict, c. 52 dwelling-house, or otherwise absents himself, or begins to keep Acts of bankhouse: [para. (e), rep. 53 & 54 Vict. c. 71, s. 29.]*
(f) If he files in the Court a declaration of his inability to pay his debts or presents a bankruptcy petition against himself:
(g) If a creditor has obtained a final judgment against him. for any amount, and execution thereon not having been stayed, has served on him in England, or, by leave of the Court, elsewhere, a bankruptcy notice under this Act, requiring him to pay the judgment debt in accordance with the terms of the judgment, or to secure or compound for it to the satisfaction of the creditor or the Court, and he does not, within seven days after service of the notice, in case the service is effected in England, and in case the service is effected elsewhere, then within the time limited in that behalf by the order giving leave to effect the service, either comply with the requirements of the notice, or satisfy the Court that he has a counter-claim, set off, or cross demand, which equals or exceeds the amount of the judgment debt, and which he could not set up in the action in which the judgment was obtained:
(h) If the debtor gives notice to any of his creditors that he has suspended, or that he is about to suspend, payment of his debts.
(2) A bankruptcy notice under this Act shall be in the prescribed form, and shall state the consequences of non-compliance therewith, and shall be served in the prescribed manner.
5. Subject to the conditions hereinafter specified, if a debtor Jurisdiction to commits an act of bankruptcy the Court may, on a bankruptcy make receiving petition being presented either by a creditor or by the debtor, make an order, in this Act called a receiving order, for the protection of the estate.
6. (1) A creditor shall not be entitled to present a bankruptcy Conditions on petition against a debtor unless,
(a) the debt owing by the debtor to the petitioning creditor, may petition. or, if two or more creditors join in the petition, the aggregate amount of debts owing to the several petitioning creditors, exceeds £50, and
(b) the debt is a liquidated sum, payable either immediately or at some certain future time, and
(c) the act of bankruptcy on which the petition is grounded has occurred within 3 months before the presentation of the petition, and
(d) the debtor is domiciled in England, or, within a year before the date of the presentation of the petition has ordinarily resided or had a dwelling house or place of business in England.
(2) If the petitioning creditor is a secured creditor, he must in his petition, either state that he is willing to give up his security for the benefit of the creditors in the event of the debtor being adjudged bankrupt, or give an estimate of the value of his security. In the latter case he may be admitted as a petitioning creditor to the extent of the balance of the debt due to him, after
46 & 47 Vict. c. 52.
British and Con-
Definition of property."
cf. p. 113.
Matrimonial jurisdiction of
deducting the value so estimated in the same manner as if he were an unsecured creditor.
118. The High Court, the County Courts, the Courts having jurisdiction in bankruptcy in Scotland and Ireland, and every British Court elsewhere having jurisdiction in bankruptcy or insolvency, and the officers of those Courts respectively, shall severally act in aid of and be auxiliary to each other in all matters of bankruptcy, and an order of the Court seeking aid, with a request to another of the said Courts, shall be deemed sufficient to enable the latter Court to exercise, in regard to the matters directed by the order, such jurisdiction as either the Court which made the request, or the Court to which the request is made, could exercise in regard to similar matters within their respective jurisdictions.
168. In this Act, unless the context otherwise requires
"Property" includes money, goods, things in action, land, and every description of property, whether real or personal and whether situate in England or elsewhere; also, obligations, easements, and every description of estate, interest and profit, present or future, vested or contingent, arising out of or incident to property as above defined.
The Supreme Court is, by art. 100, invested with the jurisdiction of a Colonial Court of Admiralty, under the Colonial Courts of Admiralty Act, 1890.
This Act has already been considered in the previous Section. MATRIMONIAL.
The Supreme Court is, by art. 101, so far as circumstances admit, invested with respect to British subjects, with all the matrimonial jurisdiction for the time being of the High Court in England, except the jurisdiction relative to dissolution, or nullity, or jactitation of marriage.
This leaves the Court, under its matrimonial jurisdiction, with Consular Court. the right to pronounce decrees of judicial separation on a petitition by the husband or the wife, on the ground of adultery, or cruelty, or desertion without cause for two years and upwards, and of restitution of conjugal rights, together with the collateral orders incident thereto: custody of children, alimony to the wife, settlements of property, and damages against co-respondents, together with all questions as to liability for costs.
It would further appear that the Consular Court has at least some of the jurisdiction of the Divorce Court under the Legitimacy
Declaration Act, 1858. It will be observed that art. 101 refers 21 & 22 Vict.c.93. to the "jurisdiction in matrimonial causes" which belongs to the High Court in England, and not to the general divorce jurisdiction Jurisdiction of of the Probate, Divorce and Admiralty Division of the High Court. under Legitimacy If the powers of that Court under the Act of 1858 were limited Declaration Act, 1858. to declarations of legitimacy and of the right to be deemed a natural-born subject, there can be little doubt that, art. 101 being drafted as it is, the Consular Court would have no jurisdiction under the Act, even though the question in any given case depended on the validity or invalidity of the marriage of the petitioner's parents. But the Court is given an express power to grant a decree declaring that the marriage of the petitioner's father and mother, or of his grandfather and grandmother, was a valid marriage, and it is difficult to say that this is not a "matter matrimonial": not, it is true, within the jurisdiction of the old Ecclesiastical Court, but expressly put within the jurisdiction of the Court created by the Matrimonial Causes Act, 1857, by the 20 & 21 Vict. c. 83. Act of the following year.
The case for the jurisdiction of the Court is all the stronger where the petition is for a decree declaring that the petitioner's own marriage was or is a valid marriage. Whether such a decree having been given on either form of petition, a further decree on the question of legitimacy or illegitimacy is necessary in view of the wording of s. 1 of the Act, is perhaps a moot point. It is probable that the Consular Court would have no power to pronounce such a decree, as it does not fall within the words of art. 101: but it is suggested that the legitimacy or illegitimacy must follow from the decree as to the validity or invalidity of the marriage.
The same difficulty arises under s. 2 of the Act, which allows applications to be made to the Court for a declaration of the petitioner's right to be deemed a natural-born subject, for this right may also follow as the natural and direct consequence of the decree as to the validity or invalidity of the marriage.
The conditions of obtaining the benefit of the Act are that the petitioner is a natural-born subject, or one whose right to be so deemed is in issue in the proceedings: that he is domiciled in England or Ireland,† or is claiming any real or personal estate †[Persons domiciled in Scotland situate in England. As the Act is not applied to consular are dealt with in jurisdiction, but the jurisdiction, if existent, is only exercised by s. 9 of the Act.]
re Tootal's trusts, 23 Ch. D. 532.
inference, there would be no warrant for altering the condition of
There can be no doubt that if, as is suggested, the Consular
Application to Divorce Court for declaration of legitimacy or validity or invalidity of marriage.
Application to Court for declaration of right to be deemed a naturalborn subject.
1. Any natural-born subject of the Queen, or any person whose right to be deemed a natural-born subject depends wholly or in part on his legitimacy or on the validity of a marriage, being domiciled in England or Ireland, or claiming any real or personal estate situate in England, may apply by petition to the Court for Divorce and Matrimonial Causes, praying the Court for a decree declaring that the petitioner is the legitimate child of his parents, and that the marriage of his father and mother, or of his grandfather and grandmother, was a valid marriage or for a decree declaring either of the matters aforesaid, and any such subject or person, being so domiciled or claiming as aforesaid, may in like manner apply to such Court for a decree declaring that his marriage was or is a valid marriage, and such Court shall have jurisdiction to hear and determine such application and to make such decree declaratory of the legitimacy or illegitimacy of such person, or of the validity or invalidity of such marriage, as to the Court may seem just: and such decree, except as hereinafter mentioned, shall be binding to all intents and purposes on Her Majesty and on all persons whomsoever.
2. Any person, being so domiciled or claiming as aforesaid, may apply by petition to the said Court for a decree declaratory of his right to be deemed a natural-born subject of Her Majesty, and the said Court shall have jurisdiction to hear and determine such application and to make such decree thereon as the Court may seem just: and where such application as last aforesaid is made by the person making such application as herein mentioned for a decree declaring his legitimacy or the validity of a marriage, both applications may be included in the same petition: and every decree made by the said Court shall, except as hereinafter mentioned, be valid and binding to all intents and purposes upon Her Majesty and all person whomsoever.