Page images
PDF
EPUB

1828. 19 July, 9 Geo. 4, ca

73.

Money of Absent Creditors. (55) And be it further enacted, that if any creditor whose claim shall have been established in any court for the relief of insolvent debtors shall not appear, by himself, his attorney or agent, at the making of any dividend, nor shall make application to receive bis, her, or their share thereof, the assignee or assignees shall certify the same to such court at its first sitting after the making of the dividend; and it shall be lawful for the court to direct in what manner, and by whom, and

upon what conditions, the money so due to such creditor or creditors shall be kept for or paid to him, her, or them, or to his, her, or their lawful constituted attorney. Assignees to make Compensation

for Losses occasioned by their Misconduct. (56) And be it further enacted, that if any assignee or assignees shall neglect to account, or to pay any difference which shall have been ordered by any court for the relief of insolvent debtors, or in any other respect shall neglect his or their duty as assignee or assignees, it shall be lawful for such court to summon such assignee or assignees, and to inquire into such neglect; and if such court shall be of opinion that the insolvent of insolvents, or his, her, or their creditors, have suffered any injury by the fault of the assignee or assignees, it shall be lawful for such court to order the assignee or assignees to make such compensation for the same as to such court shall seem fit; and in default of the assignee or assignees obeying the summons of such court, or making such compensation as shall be ordered by such court, it shall be lawful for such court to commit the assignee or assignees who shall have so offended to the common gaol, there to remain without bail until he or they shall obey the order of such court; or to levy, by distress and sale of the offender's goods, so much as shall be sufficient to make the compensation which shall have been ordered by such court.

Discharge to be not later than three years from petitioning in some

cases, and two years in others. (57) And be it further enacted, that in case it shall appear to any court for the relief of insolvent debtors, that any such insolvent has fraudulently, with intent to conceal the state of his or her affairs, or to defeat the objects of this act, destroyed, or otherwise wilfully prevented or purposely withheld the production of any book, paper, or writing relating to such of his or her affairs as are subject to investigation under this act; or kept or cause to be kept false books, or made false entries in, or withheld entries from, or wilfully altered or falsified any such book, paper, or writing ; or that such insolvent has fraudulently, with intent of diminishing the sum to be divided among his or her creditors, or of giving an undue preference to any of the said creditors, discharged or concealed any debt due to or from the said

insolvent; sum of

[blocks in formation]

insolvent; or made away with, charged, mortgaged, or concealed any part of his or her property, of what kind soever; then it shall and may be lawful for such court to adjudge that such insolvent shall be so discharged, and so entitled as aforesaid, so soon as he or she shall have been in custody, at the suit of some one or more of the persons as to whose debts and claims such discharge is so adjudicated, for such period or periods, not exceeding three years in the whole, as such court shall direct, to be computed from the date of his or her petition.

(58) And be it further enacted, that in case it shall appear to any such court that such insolvent shall have contracted any of the debts fraudulently, or by means of breach of trust, or by means of false pretences, or without having any reasonable or probable expectation, at the time when contracted, of paying the same; or shall have put any of his or her creditors to any unnecessary expense, by any vexatious or frivolous defence or delay to any suit for recovering any debt or any

money due from such insolvent; or shall be indebted for damages

recovered in any action for criminal conversation with the wife or for seducing the daughter or servant of the plaintiff in such action, or for breach of promise of marriage made to the plaintiff in such action, or for damages recovered in any action for a malicious prosecution, or for a libel, or for slander, or in any other action for a malicious injury done to tlie plaintiff therein, or in any action of tort or trespass to the person or property of the plaintiff therein, wherein it shall appear, to the satisfaction of such court, that the injury complained of was malicious; then it shall and may be lawful for such court to adjudge that such insolvent shall be so discharged and so entitled as aforesaid forthwith, excepting as 10 such debts, sum or sums of money, or damages as above mentioned; and as to such debt or debts, sum or sums of money, or damages, to adjudge that such insolvent shall be so discharged and so entitled as aforesaid, as soon as he or she shall have been in custody, at the suit of the person or persons who shall be creditor or creditors for the same respectively, for a period or periods not exceeding two years in the whole, as such court shall direct, to be computed as aforesaid.

Court
may

order Costs. (59) And be it further enacted, that whenever any creditor or creditors opposing such insolvent's discharge shall prove, to the satisfaction of any such court, that such insolvent has done or committed any act for which upon such adjudication as aforesaid he or she may be liable to remain in such custody as aforesaid for a period not exceeding three years, to be computed as aforesaid, such court shall adjudge the taxed costs of such opposition to be paid to such opposing creditor or creditors, out of the estate and effects of such prisoner, by his or her assignee or assignees, before any dividend made thereof; and in all other cases of opposition to an insolvent's discharge being substantiated or effectual, it shall be lawful for such court to adjudge in

[blocks in formation]

like manner, if it shall seem fit; and that in case it shall appear
to such court that the opposition of any creditor to any such in-
solvent's discharge was frivolous and vexatious, it shall and may be
lawful for such court to award such costs to such insolvent as shall
appear to be just and reasonable, to be paid by the creditor or credi-
tors making such opposition, which shall be paid accordingly.
Court to make Order pursuant to Adjudication, and issue Warrant.

(60) And be it enacted, that where, in the matter of any such
petition heard before any such court, any adjudication shall hare
been made by such court for discharge of any insolvent, order
shall be made accordingly by the said court in pursuance of such
adjudication, and such court shall also issue a warrant or warrants
to the gaoler accordingly, ordering the discharge of such insolvent
from custody as to the detainers under which he or she shall then
be confined, or which shall be lodged against him or her before he
or she shall be out of custody, the same being for debts in respect
of which such adjudication shall have been made; and that every
such order of adjudication shall take effect, as from the day on
which the adjudication shall have been made in that behalf; and
that every such adjudication, and certificate thereof, and order there-
upon, may be made without specifying therein any such debt or
debts, or sum or sums of money, or claims as aforesaid, or naming
therein any such creditor or creditors as aforesaid, excepting so far
as shall be necessary in any case in order to distinguish between the
creditors as to whom any such insolvent may be adjudged to be so
discharged and entitled as aforesaid forth with, and the creditors as to
whom he or she may be adjudged to be so discharged and entitled at
some future period : provided, nevertheless, that in all cases the
detainer or detainers with respect to which any such insolvent shall
have been adjudged to be discharged out of custody, he or she being
then in custody thereupon, shall be specified in the warrant of such
court to be delivered to the gaoler in that behalf.
Adjudication and Order to be final, unless obtained on false Evi-

dence, &c. (61) And be it further enacted, that every such adjudication for discharge of any insolvent as aforesaid by any such court as aforesaid, and the order thereupon, so made as aforesaid, except in cases of appeals, shall be final and conclusive, and shall not be reviewed by such court, unless such court shall thereafter see good and sufficient cause to believe that such adjudication has been made on 'false evidence, or otherwise improperly made, or fraudulently obtained, in which case it shall and may be lawful for such court, upon the application of such insolvent, or of any creditor of such insolvent, to order such insolvent, upon due notice, to be given to such persons and in such manner as the said court shall direct, to attend

or

19 ,

cap. 73.

or to be brought up, and the said matter to be reheard before the 1828. said court, who shall thereupon rehear the same, and shall and may, 9 Geo. 4, if just cause shall appear, annul the original adjudication and order thereupon made in such case, and shall have the same powers and authorities upon such rehearing as upon any original hearing in pursuance of this act, and may adjudicate in such matter accordingly: and thereupon, in case the former adjudication in the said matter shall not be confirmed, such order, certificate, and warrant shall be made as required by this act, to be made upon such original adjudication; and the said court shall and may, if necessary, remand the said insolvent to the same custody in which he or she was at the time of the former hearing, there to be subject to imprisonment as if the former adjudication therein had not been made ; and thereupon all detainers which were in force against such insolvent at the time of his or her former discharge from custody shall be deemed to be still in force against him or her, as if such former adjudication had not been made ; and the gaoler and keeper of the prison to which such insolvent shall be so remanded shall, and is hereby required to receive such insolvent into his custody, in pursuance of such remand, for doing which the order of remand in such case shall be his sufficient warrant; and where in any case such insolvent shall refuse or neglect to appear before such court, according to such order for rehearing as aforesaid, a copy whereof shall have been duly served on such insolvent, it shall and

may

be lawful for such court to order such insolvent to be apprehended, and committed to custody to such prison, and to issue its warrant accordingly, and to cause such insolvent to be brought up for examination as often as to such court shall seem fit ; provided always, that where upon such rehearing it shall appear to such court that such insolvent is not entitled to the benefit of this act until some future period, according to the provisions herein contained, the said court shall and may, if it shall appear reasonable, adjudge the discharge of such insolvent at such future period, to be calculated without including the time during which such insolvent shall have been out of custody since the time appointed for his or her discharge by such former adjudication as aforesaid. Insolvent may, after Discharge, be examined as to the Estate and

Effects. (62) And whereas the estate, both real and personal, of any person whose discharge has been adjudicated under this act, may not be sufficiently described or discovered in his or her schedule so sworn to as aforesaid, or the assistance of such person may be necessary to adjudge, make out, recover, or manage his or her estate and effects, for the benefit of his or her creditors; be it therefore enacted, that it shall and may be lawful to and for the assignee or assignees of the estate and effects of any such person whose dis

charge

cap. 73.

1828.

charge shall have been adjudicated under this act, in case such 19 July, 9 Geo.4, person shall, upon application to him or her for that purpose, have

refused or neglected to give the necessary information, from time
to time, to apply to the court by which any such adjudication shall
have been pronounced, that such person may be further examined
as to any matters or things relating to his or her estate and effects
by such court ; and thereupon, and also in case such person shall
neglect or refuse to appear before such court at such time and
place as shall be directed by such order, or appearing shall refuse
to be sworn, or to answer such questions as shall be put to him or
her relating to the discovery of his or her said estate and effects,
then and in any of such cases it shall be lawful for such court, by
warrant, to commit such person to gaol, there to remain without
bail or mainprize until such time as he or she shall submit himself or
herself to the order of such court in that behalf, and shall answer
upon oath or otherwise, as shall be required, to all such lawful ques-
tions as shall be put to him or her, in pursuance of the same, for the
purposes aforesaid.
Court may in certain Cases discharge Insolvent from Liability as to

Debts specified.
(63) And be it further enacted, that whenever it shall be made to
appear to the satisfaction of any court for relief of insolvent debtors,
upon the application of any insolvent, his assignee or assignees, or any
of his or her creditors, that the estate of such insolvent debtor which
shall have come to the hands of the assignee or assignees shall have
produced sufficient to pay and discharge three-fourths of the amount
of the debts which shall have been established in such court, or that
creditors to the amount of more than one-half in number and value
of the debts which shall have been so established shall signify their
consent in writing thereto, it shall be lawful for such court to inquire
into the conduct of the said insolvent; and if it shall appear to such
court that the said insolvent has acted fairly and honestly towards his
or her creditors, such court shall be fully authorized and empowered
thereupon to order that the said insolvent shall be for ever discharged
from all liability whatsoever for or in respect of such debts so esta-
blished as aforesaid; and such court shall, in the order to be drawn
up, specify and set forth the names of such creditors; and after any
such order shall have been so made, no further proceedings shall be
had in the matter of the petition before the court, unless upon appeal
made to the supreme court of judicature of the presidency where
such court for the relief of insolvent debtors shall be holden, as
hereby authorized : provided always, that no such order as last afore-
said shall prevent any creditor who shall not have been resident within
the limits of the charter of the said United Company at any time
between the filing of such petition and the making of such order as
last mentioned, and who shall not have taken part in any of the pro-

ceedings

« EelmineJätka »