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Power to Court
to direct Sale of Estate at any Stage of Suit.
Short Title and
54 G. 3. c. 137.
16 & 17 Vict.
Court of Chancery (Ireland) (Receivers).
Third, intituled An Act for rendering Securities by Mortgage more effectual, is hereby repealed, save as to any Proceeding in any Court of Justice instituted prior to the passing of this Act, and any such Proceeding may be continued and prosecuted as if this Act had not passed.
VI. It shall be lawful for the Court in any Suit pending or to be instituted therein in relation to any Real Estate, if it shall appear to the Court that it will be necessary or expedient that the said Real Estate, or any Part thereof, should be sold for the Purposes of such Suit, to direct the same to be sold at any Time after the Institution of such Suit, and such Sale shall be as valid to all Intents and Purposes as if directed to be made by a Decree or decretal Order on the Hearing of such Suit, or at any other Stage of the Proceedings therein, and shall be carried out according to the Course and Practice of the Court, and according to such general Orders as may from Time to Time be made by the Court for regulating such Sales and securing the Title of the Purchasers thereunder; and any Party to the Suit in possession of such Estate, or in receipt of the Rents and Profits thereof, shall be compelled to deliver up such Possession or Receipt to the Purchaser or such other Person as the Court shall direct.
CA P. LXXVIII.
An Act to continue the Act of the Second and Third Years
CA P. LXXIX.
An Act to consolidate and amend the Laws relating to
I. This Act may be cited as the "Bankruptcy (Scotland) Act, 1856," and shall come into operation on and after the First Day of November One thousand eight hundred and fifty-six.
II. The Acts passed in the Sessions of Parliament holden in the Fifty-fourth Year of the Reign of His Majesty King George the Third, Chapter One hundred and thirty-seven, and in the Second and Third Year of the Reign of Her present Majesty, Chapter Forty-one, and in the Sixteenth and Seventeenth Year
of the Reign of Her present Majesty, Chapter Fifty-three, are hereby repealed; saving always their Effect in regard to any Act or Deed done or granted prior to the Date of this Act coming into operation.
III. All Sequestrations awarded on and after the said Date, or Effect on existProceedings occurring on or after the said Date in Sequestrations ing Sequestrawhich have been awarded before it under former Acts, unless it tions. be otherwise herein-after provided, shall, if and so soon as an Interlocutor to that Effect pronounced by the Lord Ordinary shall become final, or if and so soon as an Interlocutor to that Effect shall be pronounced by the Court, be regulated by this Act: Provided always, that until such Interlocutor by the Lord Ordinary shall become final, or until such Interlocutor shall be pronounced by the Court, Proceedings in Sequestrations awarded before the said Date shall be conducted as if the Acts hereby repealed were still in force, and such Proceedings shall thereon be as valid as if the said Acts were unrepealed.
IV. In this Act the Words "Lord Ordinary "shall mean the Construction Lord Ordinary officiating on the Bills in the Court of Session; and Meaning the Word "Deliverance" shall include any Order, Warrant, Judg- of certain ment, Decision, Interlocutor, or Decree; the Words "Clerk or Officer of the Court of Session" shall include the Keeper of the Register of Abbreviates of Adjudications; the Word "Accountant" shall mean the Accountant in Bankruptcy appointed under this Act; the Word "Gazette" shall signify the Edinburgh Gazette; the Word "Commissioners" shall mean a Majority of the Commissioners elected under the Provisions of this Act; the Words "Property" and "Estate" shall, when not expressly restricted, include every Kind of Property, Heritable or Moveable, wherever situated, and all Rights, Powers, and Interests therein capable of legal Alienation, or of being affected by Diligence or attached for Debt; the Word "Moveable" shall include Personal, and the Word "Heritable" shall include Real; the Word "Security" shall include Securities, Heritable or Moveable, and Rights of Lien, Retention, or Preference, and Conveyances thereof and any Part thereof; the Word "Sheriff" shall include Sheriff Substitute, unless the Context indicate the contrary; the Word "Successors" shall include all Persons who have succeeded to any Property which was vested in a Party deceased at the Time of his Death, whether as Heirs, Heirs Apparent, Trustees under voluntary Conveyances, Representatives, by Deed or otherwise, Executors, Administrators, or nearest of Kin, or as Assignees, or Legatees, and shall also include Singular Successors where they have acquired the Right; the Word "Vote" shall, as well as the ordinary Meaning thereof, include a Consent to any Offer of Composition, and to a Discharge of the Debtor, and also a Dissent from such Offer or Discharge; the Word " Company" shall include Bodies Corporate, Politic, or Collegiate, and Partnerships; the Words "Partner of a Company" shall include the Members of such Bodies; the Words "Debtor," "Bankrupt," and "Creditor" shall apply to Companies as well as Individuals, and shall include
Dates of Deeds.
ruptcy of Individuals.
Of a Company.
ment of Notour Bankruptcy.
Deeds void by this Act, &c.
by way of Action, &c.
Aliens, unless in this, and also in the other Cases herein-above specified, a different Construction shall be provided.
V. Periods of Time in this Act shall be reckoned exclusive of the Day from which such Period is directed to run.
VI. The Date of a Deed under this Act, or under the Act passed in the Parliament of Scotland held in the Year One thousand six hundred and ninety-six, Chapter Five, shall be the Date of recording of the Sasine, where Sasine is requisite, and, in other Cases, of Registration of the Deed, or of Delivery, or of Intimation, or of such other Proceeding as shall in the particular Case be requisite for rendering such Deed completely effectual.
Constitution and Effects of Notour Bankruptcy.
VII. Notour Bankruptcy shall be constituted by the following
2d. By Insolvency, concurring either
(A.) With a duly executed Charge for Payment, followed,
VIII. Notour Bankruptcy of a Company shall be constituted either in any of the foregoing Ways or by any of the Partnersbeing rendered Notour Bankrupt for a Company Debt.
IX. Notour Bankruptcy shall be held to commence from the Time when its several Requisites concur, and when it has once been constituted shall continue, in case of a Sequestration, till the Debtor shall obtain his Discharge, and in other Cases until Insolvency cease, without Prejudice to Notour Bankruptey being anew constituted within such Period.
X. Deeds made void by this Act, and all Alienations of Promay be set aside perty by a Party insolvent or Notour Bankrupt, which are voidable by Statute or at Common Law, may be set aside either by way of Action or Exception, and a Decree setting aside the Deed by Exception shall have the like Effect, as to the Party objecting to the Deed, as if such Decree were given in an Action at his Instance.
XI. The Trustee on a sequestrated Estate under this Act shall May be by be entitled to set aside any such Deed or Alienation for behoof of Trustee. the whole Body of Creditors, and in so doing shall be entitled to the Benefit of any Presumption which would have been competent to any Creditor.
Pari passu Ranking of Diligence.
XII. Arrestments and Poindings which shall have been used Arrestments within Sixty Days prior to the Constitution of Notour Bankruptcy, and Poindings. or within Four Months thereafter, shall be ranked pari passu as if they had all been used of the same Date; provided, that if such Arrestments are used on the Dependence of an Action, or on an illiquid Debt, they be followed up without undue Delay; provided further, that any Creditor judicially producing in a Process relative to the Subject of such Arrestment or Poinding liquid Grounds of Debt or Decree of Payment within such Period shall be entitled to rank as if he had executed an Arrestment or a Poinding; and in case the first or any subsequent Arrester shall, in the meantime, obtain a Decree of Forthcoming and Preference, and thereupon shall recover Payment, or a Poinding Creditor shall carry through a Sale, he shall be accountable for the Sum recovered to those who, by virtue of this Act, may be eventually found to have a Right to a Ranking pari passu thereon, and shall be liable to an Action at their Instance for Payment to them proportionally, after allowing out of the Fund the Expense of recovering the same; and if any Arrestments be used for attaching the same Effects after the Period of Four Months subsequent to the Bankruptcy, such Arrestments shall not compete with those used within the said Periods prior or subsequent thereto, but may rank with each other on any Reversion of the Fund attached, according to Law and Practice.
Sequestration, when competent.
XIII. Sequestration may be awarded of the Estate of any Sequestration Person in the following Cases:
may be awarded
1st. In the Case of a living Debtor subject to the Jurisdiction in Cases herein of the Supreme Courts of Scotland:
A. On his own Petition, with the Concurrence of a
B. On the Petition of a Creditor or Creditors, qualified
equestration f deceased
2d. In the Case of a deceased Debtor who at the Date of his
A. On the Petition of a Mandatory to whom he had
B. On the Petition of a Creditor or Creditors qualified
XIV. Petitions for Sequestration may be at the Instance or Creditors, peti- with the Concurrence of any One Creditor whose Debt amounts tioning or con- to not less than Fifty Pounds, or of any Two Creditors whose curring. Debts together amount to not less than Seventy Pounds, or any Three or more Creditors whose Debts together amount to not less than One hundred Pounds, whether such Debts are liquid or illiquid, provided they are not contingent.
Within what Date Petitions may be presented.
XV. Petitions for Sequestration, presented without the Concurrence of the Debtor, he being in Life, shall be competent only within Four Months of the Date of the Debtor's Notour Bankruptcy; and Petitions for Sequestration of the Estates of a deceased Time Debtor at the Instance of a Creditor may be presented at any after the Debtor's Death, but no Sequestration shall be awarded until the Expiration of Six Months from the Debtor's Death, unless he was at the Time of his Death Notour Bankrupt, or unless his Successors shall concur in the Petition or renounce the Succession, in which several Cases Sequestration shall forthwith be awarded; and in all other Cases falling under this Act a Petition for Sequestration shall be competent at any Time, and Sequestration may follow thereon in manner herein-after directed.
Interim Preservation of Estate.
XVI. It shall be competent for the Court to which a Petition for Sequestration is presented, whether Sequestration can forthwith be awarded or not, on special Application by a Creditor, either in such Petition or by a separate Petition, with or without Citation to other Parties interested, as the said Court may deem necessary, or without such special Application if the Court think proper, to take immediate Measures for the Preservation of the Estate, either by the Appointment of a Judicial Factor, who shall find such Caution as may be deemed necessary, with the Powers necessary for such Preservation, including the Power to recover Debts, or by such other Proceedings as may be requisite; and such interim Appointments or Proceedings shall be carried into immediate Effect; but if the same have been made or ordered by the Sheriff, they may be recalled by the Court of Session, on Appeal taken, in manner herein-after directed.
XVII. The Sheriff shall have Power, upon Cause shown by any Creditor, or without any Application, if he shall think fit, at any Time after the Sequestration and before the Election of a Trustee, to cause to be sealed up and put under safe Custody the Books and Papers of the Bankrupt, and to lock up his Shop, Warehouse, or other Repositories, and to keep the Keys thereof till a Trustee is elected and confirmed.