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VARIOUS acts have been passed from time to time for the relief of insolvent debtors in England and Ireland. Many of the extensive provisions in favour of the debtors were found to be extremely prejudicial to the interests of the creditors, and led to the presentation of numerous petitions to Parliament, praying some revision of those laws. A committee of the House of Commons was accordingly appointed in March 1819, to take into consideration the state of the law, and the several acts passed in the 53d, 54th, and 56th years of his late Majesty's reign.
The committee made their report in the month of May, and stated that, in submitting the result of their inquiry, they felt called upon, in the first place, to express their most decided approbation of the principle on which they conceived the laws for the relief of insolvent debtors were founded: the principle being, that a debtor ought to be released from custody on making a bona fide division of all his property amongst his creditors, except in cases where the conduct of the debtor appears to have been fraudulent. In the month of January last a draft of a bill which had been sent home by the judges in India, was transmitted to the Court of Directors by Mr. Williams Wynn, and referred by the Court to the Company's law officers, for the pursose of their reporting on the measure generally, as applicable to India. The most anxious attention was given to the subject, and as it was proposed to incorporate some of the provisions of the bankrupt act, the opinions of professional gentlemen immediately connected with the practice of the insolvent court and that of bankrupts, were taken on the various points contemplated in the proposed bill, which was sufficiently matured to enable Mr. Williams Wynn on the 22d May, to give notice to the House of his intention to move for leave to bring in the same, which leave was obtained on the 4th June,
when Mr. Wynn pointed out the urgent necessity that existed for such a measure, and the great difficulty frequently occasioned by the existence of settlements, or sometimes merely factories, belonging to other powers, in the centre of the Btitish territories. Thither no writs of course run, and a debtor has only to escape there and he may set his creditors at defiance. It was therefore proposed, among other numerous provisions, that this absconding should of itself be considered as an act of bankruptcy, and that it should be in the power of the court to treat the party escaping as an insolvent debtor, and to direct an assignment of his property for the benefit of his creditors. The bill was passed into an act on the 19th July 1828.
After reciting that divers good laws have of late years been established within the United Kingdom of Great Britain and Ireland for the relief of insolvent debtors, and that it is right that relief should be given also to insolvent debtors in some parts of the East-Indies, it proceeds to enact, that there shall be holden within the respective limits of the towns of Calcutta, Madras, and Bombay, separate courts for the relief of insolvent debtors, at Calcutta once a month at least, and at Madras and Bombay as often as necessary; such court to be held before one of the judges of his Majesty's Supreme Courts at those presidencies, the practice of which courts is then provided for with a great deal of minute detail, founded chiefly on the provisions of the acts passed for the same purpose, with reference to this country. The act contains one class of provisions quite peculiar to itself: it declares the adjudication of an act of insolvency in India to be evidence of an act of bankruptcy, on which a commission may be sued out here, and proceeds to lay down with much care and precision the course of proceeding to be adopted, with a view to the affording equal justice to the English and the Indian creditor.
The principal officers of the respective courts for the relief of insolvent debtors are to cause notices to be inserted in the gazettes of the several presidencies, of every petition for relief under this act, and of every adjudication of an act of insolvency, and the chief secretary of the government is to transmit to the Court of Directors, without delay, two or more copies of such gazette which shall contain any such notice, who without delay,
after the receipt, are to cause notice to be inserted in the London Gazette.
It would be foreign to the purpose of this work to enter minutely into the details of the provisions of the bill in question, but there is no doubt that their practical utility will justify the great pains and labour which have been bestowed upon them, and that they will be found to give to India most, if not all of the benefits of the bankrupt laws, without the accompaniment of their cumbrous and expensive machinery.
Courts for the Relief of Insolvent Debtors.
(1) Be it enacted, that from and after the first day of March one thousand eight hundred and twenty-nine, there shall be holden, within the respective limits of the towns of Calcutta, Madras, and Bombay, separate courts for the relief of insolvent debtors, which shall be courts of record, and shall be styled "The Courts for the Relief of Insolvent Debtors;" and that his Majesty's Supreme Courts of Judicature at Calcutta, Madras, and Bombay respectively, shall from time to time appoint such of their officers, or if the officers of such Supreme Courts shall be found insufficient, such additional persons as may be necessary to transact the business of such courts, and to act as common assignees, examiners, and ministerial officers of such courts; and it shall be lawful for the said courts for the relief of insolvent debtors to administer oaths, and examine parties and witnesses upon oath or solemn affirmation; and the said courts, within and throughout the British territories under the government of the United Company of Merchants of England trading to the East-Indies, shall have the like powers of issuing commissions to take evidence, and of enforcing the attendance of witnesses, and the production of books, papers, and writings, and of summoning, examining, and enforcing the attendance of any insolvent debtor, or his wife, or any other person who may be able to give information respecting the debts, estates, or effects of any such insolvent debtor, as are now possessed by the said Supreme. Court, or as are possessed by commissioners of bankrupt, in case of bankruptcy, for the purpose of summoning, examining, and enforcing the attendance of bankrupts and their wives, and other persons, under and by virtue of an act passed in the sixth year of the reign of his present Majesty, and intituled, an Act to amend the Laws relating to Bankrupts; and the said courts for the relief of insolvent debtors shall also have the power of fining in a summary way, or of committing to the common gaol, all persons guilty of contempt of court, and of fining in a summary way and of removing any of their officers who shall be guilty of negligence or misconduct; but the said courts for
1828. 19 July.
9 Geo. 4.
the relief of insolvent debtors shall not have the power of awarding 19 July, costs against any person, except in cases in which it is expressly per9 Geo. 4. mitted by this act, or in which it shall be expressly permitted by some cap. 73. rule which shall be made by the said Supreme Courts respectively, for the purposes and in the manner hereinafter stated: provided always, that the said courts for the relief of insolvent debtors shall not summon or examine any native of the East-Indies, otherwise than by commission, in any case in which such summoning or examination shall appear to the said court to be repugnant to the customs and usages of the country.
Practice of the Court.
(2) And be it further enacted, that a court for the relief of insolvent debtors shall be holden once a month at least throughout the year, and oftener if need be, in Calcutta, and as often as may be found necessary within the towns of Madras and Bombay, by any one judge of the said Supreme Courts of Judicature respectively; and it shall be lawful for the said courts for the relief of insolvent debtors to adjourn from time to time as they may think fit, and for the said courts, and the said Supreme Courts respectively, to be sitting at one and the same time, and severally to act and proceed in the exercise of their respective powers; and every advocate or attorney of the said Supreme Courts at Calcutta, Madras, and Bombay respectively, shall be admitted to practice in the way of his profession in the said courts for the relief of insolvent debtors respectively, and no other persons shall practice as advocates or attornies in the said courts for the relief of insolvent debtors; and the said Supreme Courts of Judicature respectively shall have power from time to time to establish rules to regulate the proceedings of the courts for the relief of insolvent debtors to be holden within their respective jurisdictions, and especially to prescribe in what manner notice shall be given to the creditors of parties applying for relief under this act, and in what cases, besides those mentioned in this act, costs may be awarded; and shall prepare, and cause to be sealed with their respective seals, a sufficient and proper list of fees to be charged and received by the officers of the courts for the relief of insolvent debtors, and shall certify under their respective seals, and transmit to the President of the Board of Commissioners for the Affairs of India, copies of such rules and lists of fees, to be laid before his Majesty for his royal approbation, correction, or revision, and other copies of the same shall at all times be fixed in conspicuous places in the courts for the relief of insolvent debtors; and no other fee or gratuity shall be received or taken by any officer or attorney of such last-mentioned courts, on any pretence whatsoever, except such as shall be specified in such lists.
Evidence to be taken down in Writing, if required.
(3) And be it further enacted, that any person who shall be interested
interested in any petition for relief which shall be presented by any insolvent person to any of the said courts for the relief of insolvent debtors, or in any petition which shall be presented against any trader to any of the said courts, praying an adjudication of insolvency, as hereinafter mentioned, or in any proceeding of any of the said courts respecting any such petition, upon depositing with the proper officer of the court a sum of money of which the amount shall be fixed by the court, may require that the whole of the evidence, relating to any proceeding in which he has an interest may be taken down in writing by a sworn officer of the court, and the same shall be done accordingly; and in case the party who shall have so required such evidence to be taken down in writing shall not within one calendar month thereafter present his or her petition of appeal as is hereinafter directed, it shall be lawful for the court in which such evidence shall have been so taken down in writing as aforesaid to pay the reasonable costs and expenses thereof out of the money which shall have been so deposited as aforesaid, returning the overplus, if any, to the person who shall have deposited the
Parties aggrieved may petition Supreme Court, &c.
(4) And be it further enacted, that it shall be lawful for any person who shall think himself aggrieved by any adjudication, order, or proceeding of any such court for the relief of insolvent debtors, to present, within one calendar month thereafter, a petition to the Supreme Court of Judicature of the presidency where such court for the relief of insolvent debtors shall be holden, or if such Supreme Court of Judicature shall not be sitting, then to present such petition to one of the judges thereof; and it shall be lawful for the court or judge to which or to whom any such petition shall be presented to order that the whole of the evidence, if any, which shall have been so taken down in writing as aforesaid, and the minutes and records of the proceedings of which complaint shall have been made, shall be brought before it; and the said last-mentioned court shall inquire into the matter of the petition and of such proceedings and evidence, and shall make such order thereon as to the same court shall seem meet and just, and shall thereby direct by whom and in what manner the costs of such petition, and of the proceedings which shall have been had thereon, and of the taking down of any such evidence in writing, and of the proceedings of which complaint shall have been made, shall be paid: and such order shall be final and conclusive as to all parties, and shall be compulsory and binding upon the court in which such proceedings so complained of shall have been had.
Debtors may petition the Court for Relief.
(5) And be it further enacted, that after the time hereinbefore
9 Geo. 4,