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7 & 8 V., c. 70. Facilitating Arrangements between Debtors and Creditors.

provided that the commissioner may, if he think proper, make order in any special case that service of such notice at the last place of abode or business of any creditor

shall be deemed good service. Sect. 5.-If at such second meeting three-fifths in number and value of all the creditors

present, or nine-tenths in value, or nine-tenths in number, whose debts exceed twenty pounds, agree to accept such arrangement, and shall reduce the terms into writing, and sign the same, such resolution or agreement (subject to confirmation as hereinafter provided) shall thenceforth be binding and of full force, as well against the said petitioning debtor, as against all persons who were creditors of the said petitioning debtor, at the date of the said petition, and who had had notice of the said several meetings of creditors, provided that such resolution shall not be valid unless one full third in number and value of all the creditors of such petitioning debtor were present at such second meet

ing, either in person or by an authorised agent. Sect. 6.— Within fifteen days next after the passing of such resolution, the same shall be

submitted to the commissioner, who, if he think the same reasonable, shall cause the same to be filed and entered of record therein, and shall grant to the said petitioner a certificate of such filing, and shall from time to time endorse on such certificate his protection of petitioner from arrest; and the same shall be free from arrest at the suit of any person being a creditor at the date of the said petition, and having had such notices as aforesaid ; and any officer arresting a person so protected shall be liable to such penalty as is provided respecting bankrupts in like case : Provided, however, that no such protection shall be valid in favour of any petitioning debtor who is proved to have been about to abscond, or who has concealed any part of his effects, nor against any creditor whose debt is not truly specified in the said petition, nor against any creditor whose debt has been contracted by reason of any manner of fraud or breach of trust; and (Sect. 7) commissioner may grant to petitioning debtor a temporary and limited protection, and may also require him to give bail for his appearance at the several meetings, and in that case he shall have protection when going to remaining in, and returning

from, attendance at such meetings, or on the commissioner. Sect. 8.-From the date of filing such resolution as aforesaid, all the estate and effects of

the said petitioning debtor shall vest in the trustee (if any such be appointed), as fully as if such trustee were an assignee ; and (Sect. 9) every such trustee shall, once at least in every six months, or oftener if the commissioner or any two or more of the creditors of such petitioning debtor whose debts amount to one-tenth of the debts of such debtor require it, produce to the said commissioner on oath or solemn declaration a full and true account of all monies or other property of the said debtor which have come to his hands, and of the disposal thereof; and the commissioner shall examine the same, and certify the result of such examination, and shall, if need be, order payment to the

creditor according to the terms of the resolution. Sect. 10.—And if, on the representation of such trustee or such two creditors as afore

said, it appears at any time to the commissioner that the petitioning debtor has not made a true discovery of his estate, or has not duly accounted for subsequently acquired property (if such be according to the true intent of the resolution), or has wilfully made a false return of creditors, the commissioner may summon him to be examined, and such summons and examination may be enforced in such manner as is

now practised in the summoning and examination of bankrupts. Sect. 11.- In case any difficulty arise in the execution of the said resolution, the commis

sioner may cause a special meeting of the creditors to be assembled, and the majority of those present shall have power to confirm, alter, or annul the original resolution ; Provided, that if one-third in number and value of the creditors be not present at such meeting, the resolution thereof shall not be valid, unless the same be approved and con

firmed by the commissioner. Sect. 12.-As soon as the said resolution has been carried into effect, and the creditors

have been satisfied according to the tenor of the same, the commissioner shall cause a meeting of the creditors to be held before him ; and on being satisfied that the trustee has fully performed his trust, shall give to such trustee a certificate thereof under his hand and seal ; and such certificate shall be a full release and acquittance to such trustee, both in law and equity, for all matters done by him as such trustee ; and he may receive for his services such sum of money as the major part in number and value

* A temporary and limited protection. This time until the period has arrived for acting under section of the Act enables the commissioner to Sect. 6, in which the words " from time to time grant but one single protection for a limited time, are introduced, Mazeman v. Daris, 15 L. Journ. and not to grant him a protection from time to (N. S.) Q. B. lll; S. C. 10 Jur, 14.

7 & 8 V. c. 70. Facilitating Arrangements between Debtors and Creditors.

of the creditors assembled may appoint, subject to the approval and allowance of the commissioner ; and (Sect. 13) at such meeting the commissioner shall give to the petitioning debtor a certificate of the filing of the petition and the resolution of the creditors ; and such certificate shall thenceforth operate to all intents and purposes as a certificate in bankruptcy, except only that no debt excepted from the operation of this

Act shall be barred thereby. Sect. 14.-For the better carrying into effect the several purposes of this Act, the Court

of Bankruptcy may from time to time make such rules, regulations, and orders, as the said court may think fit: Provided, however, that such rules, regulations, and orders, shall be laid before both Houses of Parliament within twenty-one days from the commencement of the session next after the making the same ; and (Sect. 15) this Act shall extend to aliens, denizens, and women ; and all words in the singular number and masculine gender shall apply to many as well as to one, and to females as well as to males ; and the Act shall be construed beneficially for creditors ; and if any doubts arise, it shall be construed by analogy to the laws now in force relating to bankrupts ;

and (Sect. 16) this Act shall not extend to Scotland or Ireland. 7 & 8 V., c. 96. Amendment of the Law of Insolvency, Bankruptcy, and Execution. Sects. 1–56.—Provisions as to insolvency and bankruptcy, see post, tit. INSOLVENT

DEBTORS. Sect. 57.–From and after the passing this Act, no person shall be taken or charged in

execution a upon any judgment obtained in any of H.M.'s superior courts, in any county court, court of requests, or other inferior courts, in any action for the recovery of any debt wherein the sum recovered shall not exceed the sum of 201., exclusive of

the costs. Sect. 58.- All persons in execution at the time of passing this Act, where the debt and

costs do not exceed 201., shall be discharged as to such execution upon application to a judge of one of H.M.'s superior courts of law at Westminster, or to the court in which such judgment has been obtained : Provided always, that if any such discharge have been unduly or fraudulently obtained upon any false allegation of circumstances, which, if true, might have entitled the prisoner to be discharged by virtue of this Act, such prisoner shall, upon the same being made to appear to the satisfaction of the judge or Court, be liable to be again taken in execution and remanded to his former custody : Provided also, that no sheriff, gaoler, or other person shall be liable for an escape in respect of the enlargement of the prisoner by means of his undue discharge : Provided also, that, notwithstanding such discharge, the judgment against the debtor shall remain in full force, to the intent that the judgment creditor may take remedy against the property and effects of any such debtor, in such manner as he might have done in case debtor had never been taken in execution. Sect. 59,- Provided always, that if at any time it shall appear to the judge, whether a


* Taken in execution.--At common law execu- became due, it was held that there were no words tion lay only against the goods, and not against in the Act to prevent a defendant under such cirthe lands or person, Herbert's Case, 3 Co. 11. cumstances from being taken in execution in such Execution against the body was first given on action on the judgment, Hopkins v. Freeman, recognizances of statute staple, by the statute of 13 M. & W. 372, S. C. 2 D. & L. 447; 14 L. Acton Burnell, 13 E.1, st, 1, extended by 13 E, I, Journ. (N. S.) Exch. 21 ; see also S. P. Smythe st. 3, see Dig., Part II., p. 532, n. (b.) which gave v. Benstead, 9 Jur. 728. So the court refused jurisdiction to borough courts against the person; to stay execution in an action upon a judgment but in inferior courts, not of record, where the for a sum exceeding 201., recovered in a suit oriproceedings are after the common law, execution ginally brought for a debt not amounting to that remains as it originally was.

sum, upon a suggestion that the proceeding was in Inferior Courts.--As to how far the provi- fraud of this Act. Joseph v. Burton, 1 C. B. sions of this Act are affected by the 9 & 10 V. 221; S. C. 14 L. Journ. (N. S.) C. P. 148; c. 95, see post.

but where judgment was signed for a number · Exceed the sum of 201.- A defendant may of penalties incurred under the Dramatic Pieces since this Act be taken in execution in an action Copyright Act, not amounting to 201., it was held on the judgment recovered, though the debt re- that the defendant was protected from arrest by covered in the former suit was under 201., and this Act, Fitzball v. Brooke, 2 D. & L. 477; the second action was brought within a year, S. C. 14 L. Journ. (N. S.) Q. B. 192; 9 Jur. Mason v. Nicholls, 14 M. & W. 118; so where 657. As to what was understood by these words a defendant sued for a debt amounting to 151., under the 48 G, 3, c. 123, see Dig., Part II., p. consented to a judge's order for the payment of 552, n. (p.) the debt and costs, and the sum of 291. 38. 4d.

7 & 8 V. c. 96. Amendment of the Law of Insolvency, Bankruptcy, and Execution.

judge of one of H.M.'s superior courts, or a barrister or attorney, that the defendant, in incurring the debt or liability which may be the subject of demand, has obtained credit from the plaintiff under false pretences, or with a fraudulent intent, or has wilfully contracted such debt or liability without having at the same time a reasonable assurance of being able to pay or discharge the same ; or that the defendant has made, or caused to be made, any gift, delivery, or transfer of any personal property, or has removed or concealed the same, with intent to defraud his creditors, such judge may, if he think fit, order that such defendant may be taken and detained in execution upon such judgment, in like manner and for such time as he might have been if this Act had not been passed, or for any time not exceeding six calendar months in any case in which the time for which a person taken in execution could lawfully be detained according to the constitution of the court before the passing of this Act is (was) less than six calendar months, whether or not execution against the goods of such defendant

has issued as hereinafter provided. Sect. 60.- Whenever the judge of any such court has made an order for the payment of

money, the amount shall be recoverable in case of default of payment forthwith, or at the times thereby directed, by execution against the goods and chattels of the party against whom such order is made ; and the clerk of such court, at the request of the party prosecuting such order, shall issue under the seal of such court a writ of fieri facias, as a warrant of execution to one of the bailiffs of the court, who by such warrant shall be empowered to levy, by distress and sale d of the goods of the defendant within the jurisdiction of the said court, such sum of money as shall be so ordered, and also the costs of the execution ; and all constables and peace officers shall aid in the execu

tion of every such warrant. Sect. 61.-If any order be made for payment by instalments, execution upon such order

shall not issue until after default in payment of some instalment, and execution or successive executions may then issue for the whole of the said sum and costs then remaining unpaid, or for each successive instalment and costs, as the judge may order, either at the time of making the original order, or at any subsequent time under the seal of the court ; and (Sect. 62) if it appear to the satisfaction of such judge, by the oath or affirmation of any person or otherwise, that any defendant is unable, from sickness or unavoidable accident, to discharge the debt and damages, such judge may, in his discretion, suspend or stay any judgment, order, or execution, given, made, or issued, for such time as he may think fit, and so from time to time until it appears by like proof

that such cause of temporary disability has ceased. Sect. 63.-Upon every such warrant of execution shall be endorsed the sum of money

and costs adjudged, with the increased costs allowed for such execution ; and if the party against whom the same has issued pay or tender before an actual sale the amount to the clerk of such court, or to the bailiff holding the warrant of execution, such sum of money and costs as aforesaid, or such part thereof as the party may agree to accept

in full of his debt, or damages and costs, such execution shall be superseded. Sect. 64.-In case any bailiffh of any such court employed to levy any execntion, by

wilful or notorious neglect, connivance, or omission, lose the opportunity of levying the same, then, upon complaint of the party aggrieved by reason of the same (the fact alleged being proved), the judge shall order such bailiff to pay such damage as the plaintiff has sustained thereby, not exceeding in any case the sum of money for which the execution issued ; and upon demand thereof, and his refusal to pay, the same may be recovered against him by such means as are provided for the recovery of debts adjudged in the said court; and (Sect. 65) if any bailiff or officer acting under colour or pretenice of the process of the said court be charged with extortion or misconduct, or with not duly accounting for any money levied by him under the authority of the court, the judge thereof may inquire summarily into the matter, and for that purpose may

Distress and sale.-County courts not being Unable from sickness, &c.-See a similar courts of record, execution was by lerari facias provision in s. 105 of 9 & 10 V., c. 95, post. against the goods, and by this only, for the body & Execution shall be superseded.-See a simior lands could not be taken in execution by lar provision in s. 109 of the 9 & 10 V., c. 95, process out of these courts, and this was in the post. nature of a distrinjas only, for the goods so b A ny bailiff. For other provisions regulating taken could not be sold. IValker v. Preeby, 2 the conduct of bailiffs of inferior courts, see 7 & Lutw. 1413, unless sanctioned by custom, Keilw. 8 V., c. 19, ante, p. 165; and the provisions by 106 a; so in courts baron, Kitch, 115.

which the bailiffs of such courts are to be regte Payment by instalments.-See a similar lated, as are established under the 9 & 10 V. C. provision in ss. 92 & 95 of the New Small Debts 95, see post. Act, 9 & 10 V., c. 95, post.

7 & 8 V., c. 96. Amendment of the Law of Insolvency, Bankruptcy, and Execution.

summon and enforce the attendance of all necessary parties in the same manner as in any suit before him, and may make such order thereon for the repayment of the money

extorted, or not accounted for, as he may think just. Sect. 66.-Every sale of goods taken in execution under process issuing from any such

court for the recovery of small debts shall be within all the provisions of the 7 & 8 G. 4, c. 17, for regulating the costs in certain distresses (see Dig., Part I., tit. DISTRESS); and (Sect. 67) no landlord of any tenement let at a weekly rent shall have any claim or lien upon any goods taken in execution under the process of any court of law for more than four weeks' arrears of rent ; and if such tenement be let for any term less than a year, the landlord shall not have any claim or lien on such goods for more

than the arrears of rent accruing during four such terms or times of payment. Sect. 68.-If any claim be made i to or in respect of any goods or chattels taken in

execution by any landlord for rent, or by any person not being the party against whom such process has issued, the clerk of the court, upon the application of the officer charged with the execution of such process, either before or after any action brought against such officer, may issue a summons calling before the court both the party issuing such process and the party making such claim; and thereupon any action which may have been brought shall be stayed, and the court in which the action was brought may order the party bringing the same to pay the costs of the proceedings ; and the judge of the court for the recovery of small debts, out of which such execution issued,

shall adjudicate upon such claim, and make such order as to the costs as he thinks just. Sect. 69.-Where any distress is made for any sum of money to be levied by virtue of

this Act, the distress itself shall not be deemed unlawful, nor the party making the same be deemed a trespasser on account of any defect or want of form in the information, summons, conviction, warrant of distress, or other proceeding relating thereto; nor shall the party distraining be deemed a trespasser ab initio on account of any irregularity afterwards committed by him, but the person aggrieved thereby may recover

full satisfaction for the special damage in an action on the case.

Sects. 70, 75, post, tit. INSOLVENT DEBTORS. 8 & 9 V., c. 127. Better securing the Payment of Small Debts.!

Sect. 1.- If any person is indebted to another in a sum not exceeding the sum of twenty

pounds, m besides costs of suit, by force of any judgment obtained, or of any order for the payment thereof, or of any costs in any court, which judgment or order has been obtained from any court of competent jurisdiction in England, the creditor so having obtained such judgment or order may obtain a summons from any commissioner of the Court of Bankruptcy for the district in which debtor resides," or from any court of requests, or conscience, or inferior court of record for the recovery of debts, within the jurisdiction of which such debtor resides or is, having as judge a barrister, special pleader, or an attorney who has practised as such for ten years in one of H.M.'s superior courts at Westminster, which summons such commissioner or court is hereby authorised or required to grant according to the form in Sched. (A) hereunto annexed, upon the application of such creditor according to the form in Sched. (B); and the debtor appearing before such commissioner in court shall be examined, and if the creditor think fit, by interrogatories touching the manner and time of his contracting the debt, the means or prospect of payment he then had, the property or means he still has, the disposal he may have made of any property since contracting such debt ; and such creditor may also, if commissioner or court think fit, be examined touching his claim, and may also be interrogated by the debtor touching the said claim against him ; and order may be made for payment by instalments or otherwise ; and in case debtor do not attend as required by the said summons, or attending refuse to disclose his property or his transactions respecting the same, or do not make answer thereof to the

i Any claim made.-See a similar provision that, until that Act comes into complete operation, in s. 118, of 9 & 10 V., c. 95, post.

the two last-mentioned Acts are not repealed as k Distress not to be deemed unlawful. See to those matters, and as to other matters they are a similar provision in s. 137 of 9 & 10 V., c. 95, unaffected by this provision. and the note there, post.

m Not ecceeding 201.- As to the construction Payment of small debts.-By s. 6 of the put upon these words by the commissioners in the 9 & 10 V., c. 95 (see post), it is provided, that District Bankruptcy Courts, see 5 Law Times, as soon as any court has been established under 457, 477 ; also Moseley on Inferior Courts, 452. this Act, the provisions in the 7 & 8 V., c. 96 In which debtor resides. As to this provi(see ante, p. 201); and in the 8 & 9 V., c. 127, sion under Courts of Requests Acts, see Dig., shall, so far as the same relate to such court, be Part II, p. 478, n, a; p. 479, n. k. repealed. It must be borne in mind, however,

8 & 9 V., c. 127. Better securing the Payment of Small Debts.

satisfaction of the commissioner or court, or appear to have been guilty of fraud in contracting the debt, or of having contracted it without reasonable prospect of being able to pay it, or of having concealed or made away with his property in order to defeat his creditors, or if he appear to have the means of paying the same by instalments or otherwise, and do not pay the same at the times fixed, then the commissioner or court may order such debtor to be committed • to the common gaol for any time not exceed

ing 40 days. Sect. 2.--Every bailiff or messenger to whom such order is issued, or who is acting as an

officer of the high bailiff of Westminster or Southwark is hereby empowered to take the body of the person against whom the order is made, and all constables and other peace officers within their several jurisdictions shall aid in the execution of every such order; and no protection or interim or other order issuing out of any court of bankruptcy, or for the relief of insolvent debtors, nor any certificate obtained after such order for imprisonment under this Act shall be available to any debtor imprisoned under such

order. Sect. 3.—No imprisonment under this Act shall in any wise operate as satisfaction or

extinguishment of any debt P or demand: but any person imprisoned under this Act who has paid the debt or the instalments thereof, and costs remaining due at the time of the order of imprisonment and all subsequent costs, shall, upon entry of such payment endorsed on the order of imprisonment, signed by the plaintiff or his attorney, be discharged out of custody by leave of a commissioner or judge of the court in which the

order of imprisonment was made. Sect. 4.-The judge of every court of requests or conscience, and of every inferior court

of record for the recovery of debts, and of every other court for the recovery of small debts of which the judge is a barrister, special pleader, or attorney as aforesaid, in which court proceedings may be had for the recovery of any debt or demand within the jurisdiction of the said court, shall have the like powers in the suit instituted for recovery of such debt or demand of examining the parties to the suit, and upon occasion of pronouncing judgment therein, if judgment be given for the plaintiff, shall have like powers of further examining the parties, and in the several cases herein specified of committing the defendant to prison, which he might exercise under the provision hereinbefore contained if judgment for such debt or demand had been obtained in his court: Provided always, (Sect. 5) that where in any city, town, or district, wherein there are several courts for the recovery of small debts, neither of the said courts shall have any power under this Act in respect of any debt which shall have been sued for in the other of the said courts in the same city, &c., unless such of the said courts have not a judge

qualified as hereinbefore specified. Sect. 6.-In making application to any commissioner or Court as aforesaid, or taking

any proceedings under this Act or the Act of the last session of Parliament (7 & 8 V., c. 96, see ante, p. 201) or under any Act passed in the sixth year of H.M., (5 & 6 V., c. 116, see Dig. Part. II., tit. INSOLVENT DEBTORS), it shall not be requisite for any party, whether creditor or debtor, to employ either counsel, attorney, or solicitor ; and (Sect. 7) any affidavit of any prisoner in any of H. M.'s prisons in England to be used in matters of bankruptcy or insolvency under any statutes relating thereto, may be sworn before the visiting or other justice; or if within twelve hours none shall attend, then the principal keeper or gaoler is hereby authorised to administer the oath upon any such affidavit. Sect. 8.- The wearing apparel 4 and bedding of any judgment debtor or his family, and

the tools and implements of his trade, the value of the same not exceeding 51., shall not be liable to seizure under any execution or order of any court against his goods and

chattels. Sect. 9.-H.M. with the advice of her Privy Council may enlarge the jurisdiction of any such

inferior court of record for the recovery of small debts to all debts and demands, whether on balance of account or otherwise, or damage arising out of any agreement express or implied, not exceeding 201., and in such cases H. M., with such advice aforesaid, may enlarge the district of such court, or where any part of the district of such court is comprised within the jurisdiction of any other like court, may contract the same, and also make any alteration or regulation for the holding or sitting of any such court both as to time and place, anything in any Act constituting any such court to the contrary notwithstanding; and all powers and authorities now vested in any such court, the juris

o Order debtor to be committed. See a similar provision in s. 99 of the New Small Debts Act, 9 & 10 V., c. 95, post.

p Extinguishment of any debt.-Sce a similar

provision in s. 103 of 9 & 10 V., c. 95, post.

Wearing apparel.-See a similar provision with some addition, in s. 96 of 9 & 10 V., c. 95, post.

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