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Court may sell reputed Property of Petitioner.
1828. (43) And be it further enacted, that if any such insolvent or insol. 9 Geo. , vents as are before mentioned, at the time of filing his, her, or their petition, or at the time of any such adjudication of an act of insolvency as aforesaid, shall, by the consent and permission of the true owner thereof, have in his, her, or their possession, order, or disposition, any goods or chattels whereof he, she, or they is or are reputed owner, or of which he, she, or they have undertaken the sale, alteration, or disposition, as owner, the court in which the petition shall have been filed, or by which such adjudication shall have been pronounced, shall have power to sell and dispose of the same for the benefit of the creditors of such insolvent or insolvents; provided that nothing herein contained shall invalidate or affect any transfer or assignment of any ship or vessel, or any share thereof, made as a security for any debt or debts, either by way of mortgage or assignment, according to the provisions of an act of parliament made in the sixth year of the reign of his present Majesty, and intituled an Act for the registering of British Vessels.
Assignees may redeem Property of Petitioner. (44) And be it further enacted, that if any insolvent or insolvents shall have mortgaged, pledged, pawned, or deposited any real or personal estate, or any effects, deeds, or written instruments, with a reservation to himself, herself, or themselves of a power of redeeming the same, his, her, or their assignee or assignees shall have the same right and power of redemption as the insolvent or insolvents would have had if the assignment had not been made.
Court may order Transfer of Stock of Petitioner. (45) And be it enacted, that if any insolvent or insolvents shall, at the time of filing his, her, their petition for relief in any such court for the relief of insolvent debtors, or at the time of any such adjudication of an act of insolvency as aforesaid, or at any time before he or she shall become entitled to his or her final discharge according to this act, have any government stock, funds, or annuities, or any of the stock of any public company, either in England, Scotland, or Ireland, standing in his, her, or their own name or names, in his, her, or their own right, it shall be lawful for such court, whenever it shall deem fit so to do, to order all persons whose act or consent is thereto necessary to transfer the same into the name or names of such assignee or assignees as aforesaid, and all such persons whose act or consent is so necessary as aforesaid are hereby indemnified for all things done or permitted pursuant to such order : provided always, that in all transfers into the name or names of any such assignee or assignees, the transferee or transferees shall be described as assignee or assignees of the estate and effects of the insolvent; and no dividend shall be payable to, nor any future transfer made by, any person of any such
stock, funds, or annuities, except under a power of attorney in the usual form required for the receipt of dividends upon or transfer of such stock, funds, and annuities respectively, duly executed by such assignee or assignees, and attested by two credible witnesses, one of whom shall be an officer of such court for relief of insolvent debtors, and to which attestation the seal of such court shall be affixed.
Assignees may make Composition. (46) And be it further enacted, that after the hearing of any such petition and schedule as hereinbefore mentioned, it shall be lawful for the assignee or assignees, by and with the approbation of such court, and by and with the consent of any creditors whose claims after such hearing shall appear to amount to more than half of all the debts due from the insolvent to persons resident within the British territories in the East-Indies, to take such reasonable part of any debts due to the petitioner or petitioners, as may by composition be gotten, in full discharge of such debts, and to submit to arbitration any difference or dispute between the assignee or assignees, and any other person or persons, for or on account or by reason of any thing relating to the estate and effects of such prisoner.
Assignees may prosecute and defend Actions. (47) And be it further enacted, that it shall be lawful for the assignee or assignees, by and with the like approbation and consent, to commence and prosecute or defend any suits or actions at law or in equity which the insolvent or insolvents might have commenced and prosecuted or defended, and to defray the costs to which he or they may be put in respect of such suits or actions out of the proceeds of the estate and effects of the insolvent or insolvents; and if there be any partner or partners of the insolvent or insolvents who hath not or have not joined in the petition, it shall be lawful for the court to authorize the assignee or assignees to join such partner or partners with himself or themselves as plaintiffs in such suit or action; and if such partner or partners shall execute any release of the debt or demand for which such suit or action is brought, the release shall be void : provided always, that such partner or partners, if he, she, or they shall take no part in the prosecution or defence of such suit or action, shall not be liable to pay costs in respect of the same.
Assignees may erecute Powers vested in Insolvents. (48) And be it further enacted, that all powers vested in any such insolvent or insolvents as are afore-mentioned, which he, she, or they might lawfully execute, for his, her, or their benefit, might be executed by his, her, or their assignees, for the benefit of his, her, or their creditors.
Assignees shall sell the Property, if the Court direct. (49) And be it further enacted, that from time to time as possession is obtained of any of the estate or effects of any insolvent or insolvents, the assignee or assignees shall with all convenient speed make sale of the same; subject nevertheless to the direction and control of the court by authority of which he or they shall have been appointed, in case any application shall be made to such court by any insolvent, or any creditor or mortgagee, in all which cases such court shall have full power and authority to delay or postpone the sale of any property, and to make such other order regulating the same as to such court shall seem meet.
Court may defer Sale of Property. (50) And whereas the insolvents may be entitled to annuities for their own lives, or other uncertain interests, or to reversionary or contingent interests, or may have made advances of money for the cultivation of lands, or may be interested in property in other ways, in which the immediate sale thereof for payment of their debts may be very prejudicial to them and to their creditors, and it may be proper in some cases to defer the sale of such property, and to put it under temporary management, or to authorize the raising of money
mortgage for payment of the debts or part of the debts of an insolvent, and for defraying the expenses attending the execution of this act, instead of selling for such purpose; be it enacted, that in all such cases it shall be lawful for the said courts for relief of insolvent debtors at any time to take into consideration all circumstances affecting any property of the prisoner which shall have been assigned under the provisions of this act; and if it shall appear to any such court that it would be reasonable to make any special order touching the same, it shall be lawful for such court so to do, and to direct that so much of the said property as it may be expedient not to sell immediately, according to the provisions of this act, shall not be so sold, and from time to time to order and direct in what manner such property shall be managed, for the benefit of the creditors of such insol. vent, until the same can be properly sold, or until payment of such creditors be effected, according to the provisions of this act, and to make such order touching the sale or disposition of such property as to such court for relief of insolvent debtors may seem reasonable and beneficial, and upon such terms and conditions, with respect to the allowance of interest on debts not bearing interest, or other circumstances, as to such court shall seem just; and if it shall appear that the debts of any such insolvent or insolvents can be discharged by means of money raised by way of mortgage on any of the said property of the said insolvent or insolvents, instead of raising the same by sale, it shall be lawful for the said court so to order, and to give all necessary directions for such purpose, and generally to direct all things
proper for the discharge of the debts of such insolvent or insolvents, as may be most consistent with the interest of such petitioner or petitioners, and of his, her, or their creditor or creditors.
Assignees to render Accounts. (51) And be it further enacted, that the assignee or assignees of all such insolvents as are hereinbefore mentioned shall keep accounts of the property, debts, and credits of such insolvents, whether belonging or due to or from such insolvents solely, or jointly with any other person or persons, wherein they shall enter all property of the insolvents received by them, and all payments made by them ; which accounts any creditors may inspect at all seasonable times ; and it shall be lawful for the courts for the relief of insolvent debtors at all times to summon the assignees before them, and require them to produce all books, papers, deeds, writings, and other documents in their possession, which in any way relate to the petition of the insolvent or insolvents; and if such assignee or assignees so summoned shall not come before such courts respectively at the time appointed, or shall not bring with him or them such documents as are afore-mentioned, it shall be lawful for such courts respectively to issue attachments, and to cause such assignee and assignees to be brought before them, and to commit such assignee or assignees to prison until he or they shall submit to the court by which he or they shall have been summoned.
Court to declare Dividends. (52) And be it further enacted, that whenever it shall appear by the accounts of any assignee or assignees that a dividend may be beneficially made amongst the creditors, it shall be lawful for any court, for the relief of insolvent debtors to summon before it the assignee or assignees, and to direct that such public notice as to the court may seem meet shall be given of a further hearing of the petition on a day certain, for the purpose of making a dividend; and on the day so fixed the insolvent or insolvents, and assignee or assignees, and any creditors who shall be willing to do so, shall attend the court, and all objections to the schedule of the insolvent or insolvents, and to the accounts or conduct of the assignees, and any claims of any
creditors which shall not have been previously determined, shall be then heard and determined, either by such court immediately, or upon a reference to the examiner or other proper officer of such court; and it shall be lawful for such court to examine the insolvent or insolvents, assignees, and any
witnesses, on oath, and either at that time to declare a dividend, and to direct that the same shall be paid by the assignee or assignees, or to postpone such declaration and direction of the same until a further hearing, and to make such order in the matter of the petition, and respecting the same, as shall be most conducive to the attainment of the benefit intended by the several provisions of this act.
Dividends to joint and separate Creditors. (53) Provided always, and be it enacted, that it shall not be lawful for such court to order any dividend to be made amongst the joint creditors out of the separate estate, until the separate creditors shall have been paid in full, nor to order any dividend to be made to the separate creditors out of the joint estate, until all the joint creditors shall have been paid in full; in which latter case it shall be lawful for such court to order such dividend to be made among the separate creditors, out of such interest in the joint estate, as such insolvent shall appear to be separately entitled to.
Part of an Insolvent's Property to be reserved. (54) Provided always, and be it further enacted, that unless it shall appear, upon reasonable proof to be made to the satisfaction of such court for the relief of insolvent debtors, and be so certified by such court, that all the property of the insolvent is situate, and all the debtors and creditors resident, within the limits of the charter of the said United Company, then, until the expiration of twelve calendar months from the notice in the London Gazette of the petition of any insolvent as hereinbefore mentioned, the assignee or assignees appointed by such court shall reserve the full amount of one-third part of the property of the said insolvent collected in and received by such assignee or assignees, and shall make a dividend among the creditors of the said insolvent to the amount of the remaining two-third parts only, which third part so to be reserved as aforesaid shall in the meantime be invested or disposed of in such way as such court shall order, and shall not remain in the hands of such assignee or assignees ; and at the expiration of the said term of twelve calendar months it shall be lawful for the assignee or assignees of such insolvent to apply to such court for a return of the said third part so reserved as aforesaid, in order that the same may be so distributed among the creditors as to place them all upon an equal footing; and upon such third part so reserved as aforesaid being restored to such assignee or assignees, such assignee or assignees shall forthwith proceed to take an account of the debts of the said insolvent, and of the sum or sums which shall or may have been paid by way of dividend to any of such creditors, and shall distribute the fund then in the hands of such assignee or assignees, so as to place all the creditors of the said insolvent, whether Indian or British, upon a just and equal footing, and so as that every creditor shall receive a rateable and proportionable part of the assets of the said insolvent, according to the amount of his debt, and whether such debt be inserted or omitted in the schedule, or whether the same shall have been rightly inserted or not, and without reference to the time at which such debt shall have been claimed.