Abbildungen der Seite


Synopsis of the Statutes. The law for the relief of insolvent debtors was first consolidated into one Act by the 7 G. 4, c. 57, all other Acts having either expired or been repealed by that Act, the provisions of which, with many additional provisions on the law of arrest and execution, are inserted in the 1 & 2 V., c. 110, see Dig. Parts I., II., tit. INSOLVENT DEBTORS, where may also be found the 5 & 6 V., c. 116, which makes further provisions for the relief of insolvent debtors who are not traders within the meaning of the Bankrupt Acts, or whose debts amount to less than 3001. upon the whole ; to these may be added the 7 & 8 V., c. 96, which still further assimilates the law of insolvency to that of bankruptcy, see INFRA.

The 7 & 8 V., c. 70, regulating proceedings for the recovery of small debts, is given under the title DEBTOR and CREDITOR, see ante, p. 199. 7 & 8 V., c. 96. Amendment of the Law of Insolvency, Bankruptcy, and

Sect. 1.-After reciting the 5 & 6 V., c. 116, and the necessity of amending it, it is

enacted that a petition for protection from process may be presented to any court of
bankruptcy within the district of which the petitioner has resided twelve months, with-
out any notice whatever being given to any creditor, or in the London Gazette, or in any
newspaper ; and (Sect. 2) every petition shall be in the form specified in the schedule
hereunto annexed (A. No. 1), and such petition, and the schedule required by the
recited Act to be annexed thereto, shall be verified by an affidavit of the petitioner in
the form specified in the schedule hereunto annexed (Ă. No. 2), and such affidavit shall
be sworn in like manner as affidavits in matters of bankruptcy may be sworn by any
law now in force relating to bankrupts, and shall be annexed to such petition at the
time of filing the same, and if such petition and affidavit be not in the form herein

prescribed, such petition shall be dismissed. Sect. 3.-After filing such petition the commissioner authorized to act in them atter shall

forthwith cause notice of such filing to be given to the creditors named in the schedule of the petitioner, and resident within the U.K., whose debts amount to 5l., such notice to be inserted in the London Gazette, and in some newspaper circulating in the county wherein the petitioner resides, and shall thereby appoint a public sitting of the court whenever the commissioner thinks fit for the first examination of the petitioner ; and the commissioner may adjourn such sitting from time to time, and allow a petitioner to amend his schedule, and correct any misstatement therein, and the choice of the creditors' assignee shall take place at such sitting, or any adjournment thereof, and shall be made by the majority in number and value of the creditors, who may attend by themselves or their attornies duly authorized by letters of attorney in that behalf, provided that the commissioner shall have power to reject any person who appears to be unfit to be an assignee, and may remove such assignee, and upon such rejection or removal a new assignee shall be chosen in like manner ; and (Sect. 4) the property of the petitioner shall vest in the assignees by virtue of the appointment, and the Lord Chancellor or the judges and commissioners of the Court of Bankruptcy, or the majority of them if authorized so to do by the Lord Chancellor, may from time to time make such orders, rules and regulations for the security of the property of the petitioner as

he or they may think proper. Sect. 5.-Upon petition being filed the commissioner shall have like power respecting the

seizure of the property of such petitioner (except as hereinafter directed), and also power to compel the attendance of the petitioner and his wife, and every person known or suspected to have any such property in his possession, and to call for information from every person capable of giving the same, and to enforce obedience to such examination, and the production of papers and writings in the same manner as is now by law authorized in the case of bankruptcy; and (Sect. 6) any prisoner in execution upon any judgment, in an action for recovery of any debt, either not being a trader

a For recovery of any debt. - Where the 116, or this statute, intended the interim order to judgment debt is in tort, and not in any action affect. Thomas v. Hudson, 2 D. & L., 873; for the recovery of any debt, it has been held that S. C. 14 L. Journ. (N. S.) Ex. 283 ; but although this is not a debt which either the 5 & 6 V., c. a prisoner ought not to have been discharged out

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

within the Bankrupt Acts, or being such trader whose debts amount upon the whole to
less than 3001., may be a petitioner for protection from process ; and in such case, upon
obtaining an interim order, he shall not only be protected from process, but being a
prisoner shall be protected from being detained in prison, and the commissioner may
order his discharge without exacting any fee, and the petitioner shall be so protected
for such time as by such order is fixed, or until the making the final order for protec-
tion; and (Sect. 7) whenever any such petitioner is a prisoner under any process,
attachment or otherwise, and is not entitled to his discharge in manner aforesaid, the
commissioner may, by his warrant, cause such petitioner to be brought before him for
examination, and the expense of bringing up such petitioner shall be paid out of his

estate. Seet. 8.-If any such petitioner die after filing his petition, the commissioner may proceed

in the distribution of his property, as he might have done if the petitioner had been living ; and (Sect. 9) the wearing apparel, bedding, and other necessaries of the petitioner and his family, and the working tools and implements of the petitioner, not exceeding in the whole the value of 201., may be excepted in the petition, and altogether excluded from the operation of the Act : Provided always, that such excepted articles, with the values thereof respectively, to be appraised if the commissioner thinks fit, shall be fully and truly described by the said petitioner in his schedule, otherwise the

exception thereof shall be of no force as to any part of the same. Sect. 10.-Until an assignee be chosen by the creditors of the petitioner, the official

assignee nominated by the commissioner shall be enabled to act, and shall be deemed to be to all intents and purposes a sole assignee of the property, and may, if the commissioner so order, dispose of such property, or any part thereof, and make such allowance out of the property of the petitioner for the support of himself and his family as the commissioner shall direct, and such property so vested in the official assignee, shall not in case of his death, removal or resignation, remain in him nor go to his heirs, executors, or administrators, but all such property shall be vested in his successor ; and in case the petition be dismissed, all sales and other acts done by the assignee shall be good ; and (Sect. 11) all powers vested in any such petitioner, and which he might legally execute for his benefit (except the right of nomination to a vacant ecclesiastical benefice) shall be vested in his assignees, to be by them executed for the benefit of his creditors; and (Sect. 12) when such petitioner is entitled to a lease or an agreement for a lease, and the assignees accept the same, such petitioner shall be discharged from the payment of rent: Provided that in all such cases, if the assignees decline, upon being required so to do, to determine whether they will or will not accept the lease, the lessor, or the person agreeing to make the lease, his heirs, executors, administrators, or assigns may apply to the commissioner, praying that they may either accept the same, or deliver up such lease or agreement, and the possession of the premises demised, and the commissioner may make such order as to him shall

seem meet. Sect. 13.- The assignees may sue in their own name, and make composition for debts,

and submit matters in difference to arbitration : Provided, nevertheless, that no such composition nor submission to arbitration shall be made, nor any suit in equity commenced by such assignees without the consent in writing of the major part in value of the creditors, who shall meet together pursuant to a notice, to be published in the London Gazette, and also in some newspaper usually circulated in the neighbourhood of the place where such petitioner had his last usual residence before the filing of his petition, nor without the approbation of the commissioner ; and (Sect. 14) in all matters where creditors vote, or their assent or dissent is to be exercised, every creditor shall be accounted such in respect of such amount only, as upon an account fairly stated between them, after allowing the value of mortgaged property and other available securities, shall appear to be the balance due ; and all disputes concerning such amount shall be determined by the commissioner : Provided always, that the amount in respect of which a creditor shall be entitled to vote, shall not be conclusive of the amount of his

debt for ulterior purposes. Sect. 15.-If any such petitioner at the time of his filing his petition, or at any time

before he becomes entitled to his final order according to this Act, have any government stock, commissioner may order all persons whose act or consent is necessary

of custody under the forementioned Acts of Par- order of a judge, in a matter over which he had liament, yet the gaoler was not liable for an no jurisdiction, Ib. escape, inasmuch as he acted in obedience to an

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

thereto, to transfer the same into the name of the assignees, and such persons shall be

thereby indemnified for all things done or permitted by them pursuant to such order. Sect. 16.—No action at law or suit in equity shall abate by the death, removal, or re

signation of the assignees; and (Sect. 17) all goods in the possession, order, or disposition of such petitioner, whereof he was reputed owner, shall be deemed his property : Provided that no assignment or transfer of any ship by way of mortgage, duly registered according to the provisions of the 3 & 4 W. 4, c. 55, shall be invalidated by reason of such possession, &c. ; and (Sect. 18) no distress after the filing of the petition shall be available for more than one year's rent; and (Sect. 19) if such petitioner, before or after the filing his petition, voluntarily convey or make over any estate or effects to any creditor for his use and benefit, every such conveyance and transfer shall be deemed fraudulent and void as against the assignees : Provided always, that no such conveyance and making over shall be deemed fraudulent and void if made at any time prior to three months before the filing of the petition, and not with the view of peti

tioning the court for protection. Sect. 20.—The provisions of 3 G. 4, c. 39, as to warrants of attorney, and cognovits actio

nem, (see Dig., Part I., tit. Cognovit ACTIONEM, also ante, p. 199,) shall extend to the assignees of insolvent petitioners under this Act ; and (Sect. 21) in all cases where any petitioner, whose estate has been vested in assignees, has executed any warrant of attorney to confess judgment, or has given any cognovit actionem or bill of sale, whether for a valuable consideration or otherwise, no person shall, after the filing the petition of such petitioner avail himself of any execution issued upon any judgment, but such

person may be a creditor for any sum due in respect of the same. Sect. 22.-The final order to be made under the provisions of the said Act as amended

by this Act shall protect the person in the case hereinafter mentioned, viz., from all process in respect of the debts and sums of money due or claimed as due at the time of the filing the petition to the several persons named in his schedule as creditors, or for which such persons have given credit to such petitioner before the time of filing such petition and which were not then payable, or in respect of the claims of other persons not known to such petitioner at the time of making the final order, who may be indorsees or holders of negotiable securities set forth in his schedule : Provided always, that every such final order may be made without specifying therein any such debts or claims as aforesaid, or naming any creditors as aforesaid ; and such final order shall be

in the form specified in Schedule (A. No. 3.). Sect. 23.-If petitioner be detained for any claim in respect of which he is protected,

commissioner may order his discharge, and officer shall discharge him without exacting any fee ; and (Sect. 24) if it appear to the commissioner that any debts of the petitioner were contracted by any manner of fraud or breach of trust, or by any prosecution whereby he had been convicted of any offence, or without having at the time reasonable or probable expectation of being able to pay such debts, &c., the commissioner shall not be authorized in any such case to name any day for making such final order, or to renew any such interim order ; and in every such case wherein a petitioner has been a prisoner in execution, and discharged out of custody by order of the commissioner, such petitioner shall be remanded by order of the commissioner to his former custodyb; but if none of the matters aforesaid so appear, and the commissioner be satisfied that the petitioner has made a full discovery of his estate, effects, debts, and credits, it shall then be lawful for the commissioner to give notice, that on a certain day therein

named, he will proceed to make such final order unless cause be shown to the contrary. Sect. 25.-Sums payable by way of annuity shall be deemed debts within the meaning of

the recited Act and this Act, and every person who would be creditor for any sum so payable, if the same were presently due, shall be a creditor for the value and no more, which value the commissioner shall ascertain, regard being had to the price originally given, and the lapse of time since the grant thereof; and such creditor shall be entitled

Remanded to his former custody.- Where he refused the final order, and ordered that the a prisoner detained in the Queen's prison under petitioner should be remanded to his former custhree executions, one of which was for a debt tody, it was held that the commissioner had power above 201., obtained an interim order for protec- to make this order of remand, though the ground tion, but it appearing to the commissioner that of remand was not one of those specified in this the petitioner had recently petitioned the Insol- section. In the matter of William Partington, vent Debtors' Court ; and all his estate and 2 D. & L. 650; S. C. 13 M. & W. 679; 14 effects were then vested in the provisional assignee, L. Journ. (N. S.) Q. B. 57; Ex. 123; 9 Jur. 92.

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


in respect of such value to the benefit of all the provisions made for creditors by the recited Act or this Act, without prejudice nevertheless to the respective securities of such creditor, excepting as respects the effect of the final order which may be obtained

by such petitioner, Sect. 26.—The final order for protection may extend to all process issuing from any

court for contempt, for nonpayment of money, or of costs or expenses in any such court, and in such case such final order shall be deemed to extend to all costs which the petitioner would be liable to pay by reason of such contempt, and every final order as to any debt or damages of any creditor of the petitioner shall extend to all costs incurred by such creditor in any action or suit against the petitioner, and all such persons to whose demands the final order shall be deemed to extend, shall be taken to be creditors in respect thereof, subject nevertheless to such ascertaining the amount of the said demands as may be had by taxation or otherwise, and to such examination thereof as is herein provided in respect of all claims to a dividend of such petitioner's

estate and effects. Sect. 27.-It shall be lawful for the commissioner at the time appointed for making the

final order for protection from process, or at any adjournment thereof, to adjourn the consideration of such final order sine die; but (Sect. 28) if, for any of the causes aforesaid, no day be named, the commissioner may, after such time as he thinks fit, having regard to all the circumstances of the insolvency, and the conduct of the petitioner, both before and after the insolvency, make an order to protect him from further imprisonment in respect of the debts, &c., mentioned in his schedule : Provided always, that no debtor shall be imprisoned for more than twelve calendar months a for any debt contracted before filing his petition, in case the final order be refused ; and (Sect. 29) if any such petitioner be taken and detained after such last-mentioned order, he shall

be discharged by order of the commissioner. Sect. 30.-Where there is any error in the schedule without fraud, the commissioner may order the same to be amended ; and in such case the creditor shall be entitled to the benefit of all the provisions made for creditors by the recited Act and this Act in respect of the actual amount of any debt, claim, or balance due from petitioner, and

neither more nor less than the same. Sect. 31.- Whenever, after an audit, there appears to the commissioner to be in the hands of

the official assignee any balance wherewith a dividend may be made, proceedings shall be had forthwith, under the direction of the commissioner for making the same, and notice of the sitting of the court for declaring a dividend shall be given, and such dividend shall be made among the creditors of the petitioner whose debts are admitted in his schedule, and amongst such other creditors (if any) who shall prove their debts in pursuance of any order of the commissioner to be made in that behalf, and if the petitioner, or any creditor or assignee, object to any debt or claim, the same shall, upon application duly made, be examined into by the commissioner, and his decision thereupon shall be conclusive with respect to the title of such creditor to his share of the dividend : Provided always, that if in any case it appears expedient, the commissioner may cause all or any

of the creditors to prove their debts in such manner as he may require, Sect. 32.- If at the expiration of twelve calendar months from the filing of any petition

there remain any outstanding debts or other property due or belonging to the estate of the petitioner, which cannot in the opinion of the commissioner be collected or received without unreasonable or inconvenient delay, it shall be lawful for the assignees, under the direction of the commissioner, to sell and assign such debts in such manner as he may think fit; and (Sect. 33) no proceedings under this Act shall be liable to stamp or

auction duty. Sect. 34.—Under every petition as aforesaid the official assignee shall pay into the Bank

of England, to the credit of the accountant in bankruptcy, to the account intituled, “ The Secretary of Bankrupts' Account," a sum not less than one-eighth of ll. per cent., and not exceeding 5 per cent. on the gross produce from time to time of the petitioner's estate, such sum within the limit aforesaid, and the times of payment thereof, to be

* For more than twelve calendar months. In order is not renewed. It was also there held that ex parte Partington, see supra, n. (b), it was the court would not consider whether the commisheld that this is not a general provision, that every sioner had rightly determined, that being a quesone who has been in prison for debt for twelve tion which the commissioner had jurisdiction to months shall be discharged, but only limits to inquire into and determine, and the Court of Q. B. that period the imprisonment after the final order was not authorized to review his decision, is refused or indefinitely postponed, or the interim


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

Execution. fixed by the Lord Chancellor by any general order for those purposes, and to be applicable to all the purposes of the said account, and to be subject to the like orders as other monies to be paid into the said account, and it shall be lawful for the Lord Chancellor from time to time to lessen or increase such sum within the limit aforesaid, as to him may seem just. Sect. 35.—The commissioner may direct remuneration to the official assignee for his service

in the matter of any petition as aforesaid, so as the same does not exceed 5l. per cent. on the sum received as produce of the property of the petitioner ; and (Sect. 36) no gratuity whatever shall be taken by any court of bankruptcy except such fees as shall be specified in a list thereof to be signed by the commissioner of the Court of Bankruptcy

in London. Sect. 37.–Any such petition as aforesaid, or any proceeding in the matter of such petition

purporting to be signed by a commissioner of the Court of Bankruptcy, or a copy of the same purporting to be so signed, shall in all cases be receivable in evidence; and (Sect. 38) the rules and orders made under recited Act shall be applicable to this Act; and (Sect. 39) any petitioner under this Act fraudulently omitting in his schedule any property whatever, or excepting thereout bedding and other necessaries of greater value than 201., shall upon conviction be adjudged guilty of a misdemeanor, and liable to imprisonment with hard labour for three years; and in the indictment or information against such petitioner, it shall be sufficient to set forth the substance of the offence charged on the person offending, without setting forth the petition, or any proceeding whatever, in the matter of such petition, except so much of the schedule of such petitioner as may be necessary for the purpose ; and (Sect. 40) wilfully making or taking any false

oath or affirmation shall be punishable as perjury. Sect. 41.-The Lord Chancellor may, upon petition made to him in writing by any trader

who has filed a declaration of insolvency in manner and form prescribed by the statute relating to bankrupts, and upon payment of a like sum as is payable upon the granting a fiat upon the petition of a creditor, issue a fiat in bankruptcy against such trader, and authorize the prosecution thereof in any court of bankruptcy ; and (Sect. 42) the Lord Chancellor may attach country commissioners to such districts described by H. M. with the advice of Her Privy Council as he shall think fit ; and (Sect. 43) a minute of every petition, filed by any trader under the provisions of the recited Act as amended by this Act, shall be transmitted to the secretary of bankrupts at such time and in such manner and form as the Lord Chancellor shall direct ; and (Sect. 44) the Lord Chancellor shall have power to give directions where courts of bankruptcy shall hold sittings in matters of bankruptcy, or of protection from process, although not held at such places before ; and the travelling expenses of every commissioner and registrar, and all other expenses shall be paid out of the same fund, and in the same manner as is provided for by the 5 & 6 V., c. 122 ; and (Sect. 45) the Lord Chancellor may appoint some fit and proper person, being a barrister of not less than five years' standing, or one who has practised as a pleader for not less than five years, or has held the office of registrar or deputy registrar of the Court of Bankruptcy, or attorney in actual practice in one of H. M.'s superior courts at Westminster, or the Court of Bankruptcy, of not less than five years' standing on the rolls of the court, to be the taxing master of the Court of Bankruptcy, and to be called the Master of the said court, at such salary not exceeding 1200L per ann. as the Lord Chanceller shall think fit, and to be entitled to an annuity not exceeding two-thirds of such salary, when such officer is affected with some permanent infirmity disabling him from the due exercise of his office ; such salary and annuity, as the case may be, shall be charged upon and paid, without any deduction (except the tax on income) out of the same fund, and in the same manner as other salaries and annuities of registrars of the said court are paid ; and when any vacancy occurs, the same shall be supplied by the Lord Chancellor, and such officer shall hold his office during good behaviour, and shall discharge his duties in person, except where otherwise provided by this Act, and may be removed from his office by the Lord Chancellor for misconduct; and the business of the taxing master shall be the swearing of such affidavits as may be sworn before any commissioner or registrar of the court, and the taxing such costs taxable by any court of bankruptcy, by virtue of any statute now or hereafter to be in any force, as the Lord Chancellor shall from time to time by any general or other order direct, subject to review of the court authorized to tax the same; and the place, time, and manner

in which the same shall be conducted, shall be as the Lord Chancellor shall direct. Sect. 46.-Upon the taxation of any bills of fees, such sum shall be paid as the said master

shall decide, not less than 13., nor more than 108., and also 4d. a folio over and above the said sum of 108., for every folio exceeding twenty folios of such bill; and (Sect. 47)

« ZurückWeiter »