The Press. TUESDAY, DBQEMBBB &, 1882.

Press, Volume XXXVIII, Issue 5365, 5 December 1882, Page 2

The Press. TUESDAY, DBQEMBBB &, 1882.

We are quite prepared to expect an outburst of objections io our proposed Act of Bankruptcy on tha score of its easy perversion to the private objects of the individual creditor. It eeems so natural, and withal so easy, for any single creditor to have this object in view, that we daresay there will be many who will be prepared to take it for granted that this is really the use that will bo made of it. A creditor, it will be said, anxious only to recover his own debt, and : having how a way expressly made open to him to do so without incurring the usual risks and delays of litigation, will, of course, adopt {hat mode. He will no longer trouble himself to issue his writ, serve his declaration, wait due time for the defendant's plea, get his, cause at issue, collect his evidence, summon his jury, call on his case for trial, and then, it may be hoped, at length get judgment and execution. These processes will, for the future, be spared him. All lie will have to do henceforward will be to file a short petition. This petition will simply state that the i debtor owes him a certain amount of ■ money and refuses to pay, and will pray that he may be ordered to show cause why he should not be adjudicated bankrupts The terror of this proceeding, we shall be told, will be enough to make any man at once throw up his hands and pay his debt, and thus the true object of the proceeding —that of dividing the property amongst the creditors—will be altogether per* verted. .

It is easy enough, it will be seen, to put the case" very strikingly. Nor have we any wish to deny that at Home, under a somewhat analogous practice, the'danger has crept in. The abuse was even carried very far. The summary proceeding to which we referwas made use of not merely to enforce speedier payment of adebt, but even to beat down anticipated resistance where the debt itself was likely to be disputed! Cases of this sort have attracted the attention of the Courts at Home, and there can be no denying that the same sort of thing may be done here. We believe, however, that the evil has been, in a great j measure caused by what we are compelled to stigmatise as the entirely wrong basis on which the Courts and the Legislature hava proceeded, and that when this is once set right, the difficulty of dealing with, the case will be found by no means insuperable. .

I In the first pliice it is the vice of the existing system at Home—as we found it the other day to be of Mr. Dick's new Bankruptcy Bill—that the Legislator© looks with more than half an eye,to another object—an object which it is altogether inconsistent -with the whole policy or bankruptcy to promote. The and the Judges in obedience to the Legislature, expressly recognise the payment of the plaintiff •creditor as a sufficient answer to a summons in bankruptcy. *If the debtor can contrive to pay the creditor who is suing himj no enquiry is made whether he has anything left for anybody else. Under these circumstances it is no wonder if the Courts at. Home had for a time allowed themselves to -wander far away from the proper object, and that "over and over j " again «i»rma were brought under the- ' r Bankruptcy Act to induce a person to j " pay a debt who would never hate been ; " forced to pay it under the ordinary pro- ? cess of the Court. , * But the mischief appeereiobe working its own cure. The

Act etUl continues to work with a double aspect, and while it does this there ■will always be difficulty. But it is getting to be more*|ra3 inordl'understood that ito proper propose is in, aid of the general creditors, and ■ not' in aid of the BJagant. i;The thing first to be engtired into on .the summons ifl #fcether the debtor is solvent. If the &nrt is of opinion* that the case is not one which ought': to end to a bankruptcy, they will now dismiss the summons, It i 3 well for ns that this isi settled. We are thus ready to enter upon the new system under a double advantage. We have already in its favour the close analogy—we might almost say the actual precedent—at Home. We have besides the historical development of the obvious and serious dangers having been incurred and avoided. Thus armed, we ought to be able to carry our views into operation with less than the usual friction incident to the new machinery. It has evidently become the determination | at Home to draw a clear line of distinction ; between cases in which the party is solvent and those in which he is not substantially able to meet his engagements. In both cases it is possible to proceed very summarily. A creditor wiehing to make his debtor a bankrupt can obtain the order in ten days or a fortnight, and a plaintiffcreditor, whose debt is undisputed, may, according to the new practice, obtain judgment for his debt not less speedily. Nor do we see any reason why it should be otherwise. It is surely a crying shame that any man who owes another money and has no legal ground for refusing payment should be able to keep him at arm's length by the mere forms of law. "We shall be glad if /that which appears to have been lately effected at Home in this direction is found to be equally practicable witu oureelyea under the new Supreme 'Comet Act. But it is just as important not to shut out a good legal defence as it is n ot to TnuVa tke form at setting np fl defence a mere engine of delay. A broad line must be laid down, as the Judges at Home now appear to be doing, between the solvent litigant who has a defence and the insolvent, but not fraudulent, debtor who has none. All the forms and processes of law are the birthright of the first. The Court of Bankruptcy is the natural refuge' of the last. " Although," say the Judges, " the creditor might "be within his strict right under " the Bankruptcy Act in issuing the stun- " mans, the Act was never meant to meet " cases where the alleged debtor was a " solvent man—where no suggestion that " he was otherwise than solvent had been " made ; and when he set up a bond fide " defence to the chum. The Act was not " intended to put a screw on the debtor.

**.:.- . . A process by way of debtor's " summons was only intended to be adopted " under such circumstances as must ob- " viously lead to bankruptcy proceedings. "It was not intended to make the Bank- " ruptcy Court a Court to decide disputed " questions between solvent parties. ,. Let these principles only be followed otttto their legitimate result, and the rest-.ia clear. The summons must in no case, either by law or by perversion- of law, lead to the payment of the creditor, issuing it. By law it need not, for the present, law which allows of it can be repealed^-By perversion of law it need not, "for henceforth attempts of this sort, will take rank with other "abuses of the* practice of the Court/ which the Judges have always known hwrr ly deal with when brought before them. And this will get rid of the whole difficulty. The proceeding will then be limited to its appropriate object. It will enable any creditor, alarmed for his own interests and willing to consult those of the general body, to enforce an equal distribution of his debtor's property, while it is still unwasted by litigation, and before it has been destroyed by losses in trade.