A.D. 1886. - Australasian Legal Information Institute · 2015-10-21 · ANNO QUADRAGESIMO NON0 ET QUXNQUAGESIMO A.D. 1886. No. 385. An Act to amend and consolidate the Laws relating

ANNO QUADRAGESIMO NON0 ET QUXNQUAGESIMO

A.D. 1886.

No. 385.

An Act to amend and consolidate the Laws relating to Insolvent Debtors. [Assented to, N o v e ~ ~ b e r r 7thlz, 1886.1

HEREAS i t is expedient to amend and consolidate the laws Preamble. W relating to insolvent debtors, and providing for arrangements by debtors with their creditors without insolvency-Be it therefore Enacted by the Governor-in-Chief of the Province of South Aus- tralia, with the advice and consent of the Legislative Council and House of Assembly of the said province, in the present Parliament assembled, us follows :

PART I. - PART r.

PRELIMINARY. 1, This Act may be cited for all purposes as '' The Insolvent Short title.

Act, 1886."

2, This Act is divided into thirteen parts, as follows:- Division of Act.

PART I.-Sections 1 to l0 : Preliminary :

PART 11.-Sections 11 to 56 : Corirts of Insolvency and Appeals to the Supreme Court :

PART 111.-Sections 57 to 69 : Acts of Lnsolvency :

PART rv.-Sections 70 to 121 : Adjudication of Insolvency and Proceedings thereunder :

PART v.-Sections 122 to 155 : Trustees :

PART vr.-Sections 156 to 170 : Property arid Transactions affected by Insolvency :

I'BW A-385.

49' & 50' VICTORIA?, No. 385. --

The Irtsolvent A c t . 1 8 8 6 . L

PABT I. PART VII.--Sections 171 to 194 : Insolvents' Examinations and Certificates :

PART VIII.-Sections 195 to 233 : Administration of Estates:

PART IX.-Seetions 234 to 241 : Compositions after Insolvency :

PART X.-Sections 242 to 261 : Offences :

PART XI.-Sections 262 to 298 : Compositions and Assignments without Insolvency :

PART XII,--Sections 299 to 3 10 : Evidence :

PART x111.-Sections 3 11 to 320 : Miscellaneous.

Commencement of Act.

3. This Act shall come into operation on a day to be fixed by the Governor by Proclamation to be published in the Government Gazette.

Interprotation. 4. In this Act, and the rules in the Second Schedule hereto, the following terms have the meanings hereinafter respectively assigned to them, if not inconsistent with the context, or subject matter, that is to say-

" Accountant " means the Accountant of the Court of Insolvency, and includes the Clcrk of any Local Court hereby continued, or hereafter proclaimed as a Local Court of Insolvency, when acting as Accountant :

Bill of sale " means and includes bills of sale, assignments, transfers, declarations of trust without transfer, and other assurance6 of personal chattels ; and also powers of attorney, authorities or licenccs to take possession of personal chattels as security for any debt, but sh~ l l not include the following documents, that is to say :-Assignments for the benefit of the creditors of the person making or giving the same, marriage settlements, transfers or assignments of any ship or vessel, or any share thereof, transfers of goods in the ordinary course of business of any trade or calling, bills of sale on goods in foreign parts or at sea, bills of lading, warchouse- keepers' certificates, warrants or orders for the dclivery of goods or any other documents used in the ordinary coursc of busincss as proof of thc possession or control of goods or authorising or purporting to au thorisc, either by indorsement or by delivery, the possessor of such document to transfer or receive goods thereby represented.

Court of Insolvency- " nieans the Court of Insolvency hereby continued :

'' Commissioner of Insolvency " means the Commissioner of the Court of Insolvency :

U Court " means the Court of Insolvency, or the Local Court of Insolvency, having jurisdiction in the matter referred to :

49" 50' VICTORIAE, No. 385. /

The InsoEvent Act.-1886.

;* Commissioner " means the Commissioner of the Court, and includes the Special Magistrate of any Local Court hereby continued, or hereafter proclaimed as a Local Court of Tnsol- vency, when acting as a Commissioner of Insolvency :

Extraordinary resolution " means a resolution carried by seven- eighths in value and three-fourths in number of the creditors present personally, by attorney, or by proxy, at a meeting of creditors and voting on the resolution; every creditor for under Five Pounds being reckoncd in value only :

'C Insolvency petition " means a petition for adjndication of insolvency :

Liability" includes any compensation for work or labor done, any obligation or possibility of an obligation to pay money or money's worth pursuant to or on the breach of any express or implied covenant, contract, agreement, or undertaking, whether such breach does or does not occur, o r is or is not likely to occur or capable of occurring before the certificate is awarded to the insolvent; and generally includes any express or implied covenant, contract, agreement, engagement, or undertaking to pay, or capable of resulting in the payment of money, or moncy's worth, whether such payment be as respects amount fixed or unliquidated, and payable in one sum or by instalments, or periodical payments ; as respects time, present or future, certain or dependent on any one contingency, or two or more contingencies, as to mode of valuation capable of being ascertained by fixed rules or assessable only as matter of opinion:

-' Messenger" means the Messenger of the Court of Insolvency, and includes the Bailiff of any Local Court hereby continued, or hereafter proclaimed as a Local Court of Insolvency, when acting as Messenger :

"Official Receiver" means the Official Receiver of the Court of Insolvencv, and includes the Clerk of any Local Court hereby contirked or hereafter proclaimed as a ~ o c a l Court of Insolvency when acting as an Official Receiver:

" Prescribed form" means in the appropriate form given in the First Schedule hereto, or prescribed by rule or a form to the like effect, or as near thereto as circumstances will permit :

"Property" includes money, goods, things in action, land, and every description of property, whether real or personal, and whether situate in South Australia or elsewhere ; also, obligations, easements, and every description of cstate, interest, and profit, present or future, vested or contingent, arising out of or incident to property, as above defined :

" Provable debt " means any debt or liability by this Act made provable in insolvency :

C L Registrar "

49' & 50' VICTORIAX, No. 385.

The Jnsolvent A c t . 1886.

PART r. Registrar " means the Registrar of the Court of Insolvency, and includes the Clerk of any Local Court hereby continued, or hereafter proclaimed as a Local Court of Insolvency, when acting as a Registrar :

"Rule" means a rule contained in the Second Schedule to this Act, or made under the authority of this Act:

Special resolution" means a resolution carried by three-f ourths in value and one-half in number of the creditors present personally, by attorney or by proxy, at a meeting of creditors and voting on thc resolution, every creditor for under Five Pounds being reckoned in value only :

Trustce," except in Part XI., means and includes the trustee or trustees for the time being of any insolvent estate, and includes thc Official Receiver and the Clerk of a Local Court hereby continued or hereafter proclairued a Local Court of Insolvency, when acting as an Official Beceiver. In Part xr. '' trustee" means the trustee or trustees of any deed made in pursuance of Part XI. :

Repeal of Acte. 5. The following Acts shall be repealed from and after the commencement of this Act, namely-

No. 11 of 1865-6, intituled " An Act to enable any Commissioner of the Court of Insolvency, although not named in a j a t , to prosecute the same and to exercise and carry into effect the powers and authorities thereof ":

The Insolvent Act, lb6O " : The Insolvent Amendment Act, l867 " :

Insolvent Further Anlendmen t Act, 1870 " :

No. 44 of 1876, intituled "An Act to further amend 'The Insol- vent Act, 1860'" :

No, 54 of 1876, intituled "An Act to amend the cIn~olvent Further Amendment Act, 1870 ' " :

Part 11. of No. 195 of 1880, intituled '%n Act to extend the Jurisdiction of Local Courts."

Insolvency Act, l88 1 " :

The Insolvency Act, 1882 " :

No. 326 of 1884, intituled '' An Act to amend the Law relating to Deeds of Assignment " :

Ssving cIause. Provided that this repeal shall not affect anything done or suffered before thc commencement of this Act, or anv right or title accrued, or obligation or liability incurred, or duty br restriction imposed, before the commencement of this Act, by or under anv such repealed Act, nor shall this repeal, except as hereinafter piovided, interfere with the prosecution or affect the course of any legal

proceedings

The Insolvent A c t . 1 8 8 6 .

*roceedings pending in insolvency, o r otherwise under any such PART 1.

repealed Act, before the commencement of this Act, but, subject to the provisions i n this Act, such proceedings shall be prosecuted, heard, adjudicated, determined, and carried out under the said Acts as if this Act had not been passed ; nor shall this repeal interfere with the institution or prosecution of any proceeding in respect of any offence committed against, or any penalty or forfeiture incurred under any of the said Acts hereby repealed prior to the commencement of this Act.

6. The Court of Insolvency and the several Local Courts of Cou* Ins0lven"*

Insolvency continued by this Act shall, in reference to all matters in the present Court of Insolvency and the present Local

Courts of Insolvency respectively, at or before the commencement of this Act, respectively have and exercise all the powers of the present Court of Insolvency and Local Courts of Insolvency respectively, and the Commissioners thereof respectively, and such matters shall be continued and completed in the Court of Insolvency and the Local Courts of Insolvency respectively continued by this Act.

7, Every act of insolvency, petitioning creditor's debt, or other Mattera whichwould matter or thing committed or incurred before the commencement of have authorised

proceedings under this Act, and which would have authorised proceedings under any wealed Act ~ ~ ~ c i e d Act hereby iqxaled, shall, after the commencement of this Act, Fe under this Act,

sufficient to authorise proceedings under this Act, which proceedings shall be instituted, conducted, and brought to a conclusion under the provisions of this Act.

8, All matters pending in the Court of Insolvency or any Local Matters pending ifi preaent Uourta to be Court of Insolvency at the commencement of this Act under the ,,g,,a;.

provisions of any Act hereby repealed, and all matters required to hereby continued. be done to wind up estates of persons previously adjudicated insolvent, or to carry out, fulfil, and complete anything required, permitted, or directed to be done under the provisions of such Act, shall be heard, adjudicated, carried out, and completed as in such Act provided in the Court of Insolvency or proper Local Court of Insolvency, as the case may be.

9. Where in any Act or Ordinance, or in any Imperial Statute Meaning of .4 fiat 'D

having the force of law in the said province, or in any instrument and " adjudication."

made before the comniencement of this Act, mention is or may be made of any fiat or adjudication of or in insolvency, the words in reference to "fiat" or "adjudication" shall be construed to extend to; and include, an adjudic&on of insolvency under this Act.

10. No corporation or body corporate shall be adjudicated in- Corporation or body solvent or make any composition or deed of assignment under this corporate. Act.

PART

49' & 50" VICTORIE, No. 385

The insolvent A c t . 1 8 8 6 . 7

PAX? 11. PART 11,

COURTS OF INSOLVENCY AND APPEALS TO THE SUPREME COURT.

COu*@"nsO1vency continued. 11. The Court of Insolvency, under The Insolvent Act, 1860," and the Acts amending the same, shall continue to be thc Court of Insolvency under &is Act, and all its judgments and records shall be judgments and rccords,uf the Court of Insolvency. Sudl Court shall be presidtd over by a Commissioner, who shall hold his office during good behaviour, or by a Judge of the Supreme Court: Provided that it shall be lawful for the Governor, upon the address of both Houses of Parliament, to remove such Commissioner, The present Commissioner shall be the first Commissione~, and every vacancy in the office of Commissioner shall be supplied by the Governor by Proclamation in the Govewzment Gazette,

Judge may act as 12, Any Judge of the Supreme Court may act as Commissioner Commissioner. of Insolvency, either concurrently with the Commissioner of Insol-

vency or 'otherwise, and while so acting shall have and may exercise all the powers of the Court of Insolvency and Commissioner thereof.

Gi.overnor may 13. The Governor may from time to time appoint and remove appoint and remove ac60g comm~oner. an Acting Commissioner of Insolvency, who, while holding office,

shall have and may exercise all thc powcrs of the Court of Insolvency and ~omkissioner thereof.

-

Officer not to practice 14, NO Commissioner or other ministerial officer to be appointed as solicitor, &c. by virtue of this Act shall, during his continuance in such office, practise as a barrister, attorney, solicitor, or proctor, but this pro- hibition shall not extend to any Acting Commissioner.

Court to bo a Court of Record.

15. The Court of Insolvency shall continue to be a Court of lam and equity for thc purposes of this Act, and shall have a, seal for all records, documents, and proceedings, and all copies thereof requiring sealing ; and shall have and use all powers, rights, incidents, and privileges of a Court of Record ; and the said Court shall have the power of fining in a suamary way, or of suspending or rcmoving any of the officers of the said Court (except the Official Receiver), who shall be guilty uf any negligence, wilful or unnecessary delay, or other misconduct whatsoever.

Court may make rules.

16. The Court of Insolvency shall, from time to time, make rules regulating the duties to be performed hy all officers of all Courts, and the practice of such Courts and the forms of pro- cecdinga and notices. and the days on which advertisements are to appear, where not provided for in this Act, and generally for better carrying this Act into effect. No such rules shall have any force until approved by the Chicf Justice of the Supreme Court, confirmed by the Governor, and published in the Govern- ment Gazette.

49O & 50' VICTORIR, No. 385 7 Y

The Insolvent Act,-1886.

17, The rules in the Second Schedule hereto shall come into YART 11.

force immediately on this ,%ct coming into operation, and shall Rules. ,main in force until repealed or altered by rules to be made under the last preceding section.

18. All proceedings and matters to be heard bv the Court of Placeofsittingsof Insolvency shall be heard and determined at the I~solveacy Court court.

House, Victoria-square, Adelaide, or at such other place as the Governor shall appoint. The Comrnissionor of Insolvency may hear and determine out of Court all matters and things relating to any debtor or insolvent, or his estate, or. the trustee under the insolvency or assignment, or any proceeding or matter in insol- Power of

Commissioner. vency or otherwise, in respect of which the Court his jurisdiction, except the hearing, rehearing, or public examination of such insolvent, and the awarding of a certificate to the insolvent, or the granting of a, oertificutc of the validity of a deed of assignment, and any dctcrmination of the Commissioner on any such matter or thing shall be deemed a dctmminntion of the Court of Insol- vency.

19. The offices of the Court shall be open for the dispatch of Otlices to be open business daily throughout the year, Sundays, Christmas Dav, Good daily.

Friday, Monday and Tucstlay in Easter week, and days whi"ch may be duly gazetted as public holidays, exccptd ; and the Court may sit for the dispatch of business on any day except the days aforesaid.

20. The Court of Insolvency shall have jurisdiction and control Jurisdictionof Court- in all matters of insolvency, and -particularly shall have the jurisdictions following :-

I. To hear and determine any matter in insolvency, so far ns the trustee is concerned, relating to the disposition of the insolvent's estate and effects, or of any estate or effects taken under the insolvency, and claimed by the trustee for the benefit of the creditors, or relating to m y acts donc or sought to be clone by the trustce, by virtue of the insolvency :

11. I n any mattcr of insolvency, as between the trustee and any creditor or other p~rsonvappcaring and submitting to the j urisdiction of' the Court :

111. To grant, with or without suspension, or to refuse to any insolvent, a certificate of the Court :

IV. To punish any insolvent as herein provided :

V. In any othcr matter, whether insolvency or not: where the Court, by virtue of this Act, has jurisdiction over the subject of the application.

21. The Local Court of Port, Augustn, the Local Court of LocalCourtaof ~ l ~ d ~ tone, In~o1vency continued.

Conutitution of now Local Courts of Insol- venoy.

Jurisdiction of Local Courts of Ineolvency.

Powers and duties of officere of Local Court of Insolvency.

Commissioner may order proceedings to be romoved.

49" & 50' VICTORIIE, No. 385

The Itasolvent Act.-1816. p. -- .. -- - A L - - - --

Gladstone, the Local Court of Mount Gambier, and the Local Court of Moonta, as established as Local Courts of Insolvency undcr the provisions of .Act 195 of 1880, intituletl. " An Act to extend the Jurisdiction of Local Courts," shall continue as such Local Courts of Insolvency.

22, The Governor may, by Proclamation in the Government Gazette, constitute any Local Court a Local Court of Insolvency, and may by like meaus disestablish any Local Court of Insolveucy whatever. Every Special Magistrate now or hereafter appointed shall be, and is hereby declared to be, a Special Magistrate of every Local Court of Insolvency.

23, All jurisdictions, powers, and rights conferred by this Act on the Court of Insolvency are hereby vested in and shall be exercisable by every Local Court of Insolvcncy, subject to the like appeal to the Supreme Court as is hereinafter given from the Court of Insolvency ; but po Local Court of Insolvency shall have power to make rules or order the removal to such Court of proceedings in any other Court of Insolvency.

24. The several powers, functions, duties, and immunities of the respective underrnentioncd officers of the Court of Insolvcncy shall be vested in and exercised, performed, a,nd enjoyed by the respective undermentioned corresponding ofiicers of every Local Court being a Local Court of Insolvency,

Officer of Court of Insolvency. Corresponding Officer of Local Court.

Commissioner Official Receiver Accountar~t Registrar Messenger

Special Magistrate Clerk Clerk Clerk Bailiff

25. The Insolvency jurisdiction hereby conferred on Local Courts of insolvency shall be concurrent with that of the Court of Insol- vency; and the Commissioner of Insolvency may, at his discretion, but having regard to the wishes of creditors, and after notice to the insolvent, who shall be entitled to be heard on the application, order that any proceedings in the Court of Insolvency be removed to any Local Court of Insolvency, and any Special Magistrate, guided by similar principles, may order that any proceedings in the Court over which he shall preside shall be removed to the Court of Insolvency or to any other Local Court of Insolvency. Upon such order being made, the whole of such proceedings, with a copy of such order, shall be transmitted accordingly, and, shall thereupon become records of the Court whereto the samc shall be removed. The Court may, on being satisfied that personal notice to the insolvent would be difficult or expensive, order notice to be given to him by advertisement, or in such other manner as t h ~ Court may think fit,

49@ & 50° VICTORIIE, No. 385.

26, The C~ornmissioner of Insolvency may, at his discretion, PART 11.

I~aving regard to the wishes of creditors, order that a11y proceed- comdssionermay

ings in any Local Court of Insolvency shall be removed to the be rumoved pmmedings from to

Court of Insolvency ; and upon. such order being made and notified Looai court to court

to the Local Court of Insolvency, the whole of such proceedings lnsO1vency.

shall be forthwith transmitted to the Court of Insolvency, and shall become records thereof.

27, From and after thc making of any order made under either After ~ e m o ~ a l Co~rt to whlch proceedrngs of the preceding sections, all functions, powers, and authorities removed shall have

vested in the Caul t of Insolvency, or the Local Court of Insolvency, j urisdiction over matter.

as the case may be, in reference to the proceedings ordered to be removed, shall become vcsted in the Court to which such proceedings shall be ordered to be removed, and all funds in the hands of the Official Receiver, or any trustee or other officer of such Court, shall be forthwith trcznsftwed and paid over to the Official Receiver of thc Court to which such proceedings shall be removcd, subject to all just allowances.

28, Any practitioner of the Supreme Court, trustee, auctioneer, court may order practitioner of tbe messenger, or bailiff who shall have in his possession or under his Supremo Court,

control a'ny goods or moneys belonging to the estate of any insolvent trustee, auctioneer, messenger, or bailiff

may be summoned before the Commissioner, who may ordcr such prnctitioncr of the Supreme Court, trustee, auctioneer, mcmenger, or bailiff to delivcr such goods to the twstee, or to pay such moneys into Court within a timk to be named in such order: Provided that nothing herein contained shall affect any lien which such practitioner, trustee, auctioneer, messenger, or bailiff' may have on such goods or money.

29. Any such practitioner, trustcc, auc tionecr, messenger, or bailiff If practitioner, tn~stee, auctioneer, not obeying such order may be committed to gaol by the Commis- ,e,,enge,,ba~~

sioner, by warrant, until shall deliver such goods or pay such dieobey order, Cam- missioner may moneys, and, in addition thereto, such order may, on the order of the puniak

Commissioner, be removed into the Supreme Court, and there filed of record, and thereupon shall be deemed an order of the Supreme Court, and further proceedings may be had thereupon accordingly.

30. Every Court of Insolvency Inay reverse, review, rescind: or Court may vary order.

vary any adjudication, judgment, or order made by it.

31, All proceedings in Insolvency shall, in the option of the person Court where proceed-

instituting the same, be instituted either in the Court of Insolvency ings to be instituted

or in the Local Court of Insolvency holding sittings nearest in a direct line to the place, or one of the places, where the debtor or insolvent carries on business or resides at the time of the institution of such proceedings.

32, If any insolvent, trustee, creditor, or debtor, or any Appeal to Supreme

person claiming to be a creditor, or any person who shall have court.

appeared B-385.

49' 8r 50' VICTORIA$ No. 385. -

The Insolvent Act.--1 886.

PART appeared and submitted to the jurisdiction of any Court, or who shall be affected by any order. dettlrminatio~i, or direction of any such Court or of any Commissioner, shall be dissatisfied with any order, determination, or direction of such Court or Commissioner, in respect of a matter of fact or of law, or of the admission or rejection of evidence, the person so dissatisfied Inay appeal therefrom to the Supreme Court : Provided that, if no such appeal shall be entered within twenty-one dsys from the date of any such order. determination, or direction, and thereafter duly prosecuted, every such order, determination, or direction shall be final.

security for costs. 33, Every appeal shall be subject to such regulation, in rcgard to security for costs, as shall be directed by rule, and in default of such rule shall be subject to the clirection of the Supreme Court in each particular case.

Appenls conducted ' 34. All such appeals s h d be brought on and conducted in con-

acconiing to rules. formity with the rules in that behalf contained in the Second Schedule hereto.

Power of supreme 35, The Supreme Court, on the hearing of any such :tppea: Court on appeal. shall have power to rescind, vary, reverse?, or ror~fi~.m any order,

determination, or direction appealed against, and shall have l)ower, to give such decision in the matter appealed horn as ought, 111 thc opinion of the Supreme Court, t o hate been given in the f i ~ s t instance. The Supreme Court may adjourn any appeal fbr further consideration, and in the meantime refer any matter to the Court or Commissioner for amendment, or requil-c the Court or Commis- sioner to report 011 any matter, in respect of which the Supreme Court may rcquirc further information ; or where the Slipreme Court shall be of opinion that it cbannat do complcte justice, i t may require the Court or Commissioner to re-hear the whole matter. The Supreme Court shall have power to order the costs of any appeal to he paid by either party, or part thereof by one party and part by another party, or to direct that the whole or some part thereof shall be ydid out of the estate of tlic insolvent in the matter of whose insolvency the appeal has been brought.

NO appeal to 1,ocal 36, The decision of the Supreme Court, on the I-rearing of any Court of Appeals. appcal, shall be final and conclusive, and no appeal shall be allowed

therefrom to the Local Court of Appeals.

Court may remit special case to Supreme Court.

37. Any Court may remit any question of law, by way of special case, to the Supreme Court, which shall have the same powers as if the question had been brought bcfore it by wily of appeal ; and the decision of the Suprerne Court, i ts c t h t i t d by the Master thereof. shall be filed in the Court wheuce such special -case shall have been remitted, and shall have the operation and effwt of' a decision or determination of such Court.

49' & 50' VICTORILE, No. 385. -

I he Irsolve~rt A c t . 1 8 8 6 . r -

- --- - - -- --p

38, In any casc in which any Court shall, in consequence of the oppos~tio~ of any creditor, or at the instance of any creditor, remit any qucstion of law by way of special case to the Sopreme Court, there shall 'be stateh in such special case the rrame or names of the creditor or creditors at wLose instance, or in consequrricc of whose opposition, such special case has been remitted, and such creditor or creditors shall be deemed to be a party o r prties to, and shall conduct such special case beforc the Supreme Court, ancl the Supreme Court shall have the same power in respect to the costs of such sperial case as is provided in respect of appeals.

39, Any Court may refer any question or q~est~ions of fact in insolvency for trial in the Supreme. Court, and shall thereupon direct a writ. of summous to ba issucd out of the Suprerrle

Costs in special cases.

Court may refer quections of fact for trial in Supreme Court.

~ L o r t by it person to bc named by it as plaintiff against a p r i o n to be named by it as defendant, and sliall cause such question or questions to be stated for trial, and the same shall be tried in tlic manner pro~ided by the "Supreme Court Procedure Amendment Act," with reference to trials of questions of fact without formal pleadings. In casc the persons so named as plaintiff and defendant respectiwly shall riot agree upon thc question or qucstions of fact, the same sllell be settled by thc Vorntrlissioner.

40. l'hr finding of the jury upon any such question shall be Findings of fact to be certified by the Associate or other proper officer of the Supreme certified to Court.

Court to the Court referring the question, which shall make such order in the matter as it shall think fit.

41. There s l i d be an officer of the Court of Insolvency styled OfficialReceiver.

the Official Receiver : John Cherry, Esquire, shall be thc first Official Receiver.

The duties of the Official Receiver shall be as follows- His duties.

I. To investigate and report to the Court u p m the accounts of Report on truatee7s

the trustee under every insolvency : accounte.

11. To act as sole trustee of every insolvent estate until a trustee hot as trustee.

shall be appointed, a.nd also whenever there shall for the time being be no trustee:

111, To superintend, control, and manage the funds belonging to Manage funds in

the insolvents' estates, and funds which shall come into C o u ~ ' t .

Uourt in any rnatter to be prosecuted therein under or by virtue of this *\ct ; and to keep proper books of account relating to such funds, arid to give such security, and be subject to such rules, and act in such manner as may, by the Commissioner, or by any rule, be from time to time directed :

lv. To recover and receive all personal estate and the rents and Recover imolventa'

profits of all real estate, and the proceeds of the sale of all estate.

the

l 2l 49° & 50' VICTORIW, No. 385. - -.


PABT rr. the real and personal estate of all insolvents, except where otherwise directed by the Court or provided by this Act, and to forthwith lodge in some incorporated bank h a ~ i n g a place of business in Adelaide, to his credit as Official Xeceiver, all stock in any public company and all moneys and public securities, and all bills, not&, and other negotiable instruments :

Publish account of insolvent estates.

v. To publish in the Government Guxedte, on or before the first day of Illarch i n every year, an account made up to t,he thirty- first dny of December preceding, in the prescribed form, of all estates in insolvency that have during the year ending on such thirty-first day of 'December been in any way in or before the Court,

PubliahnoticaOf deed. VI. TO publish in the Government Gazette al: notices received by him of any deed under Part XI, of this ,4ct :

Deliver up VII . TO deliver up to the insolvent, or his personal representatives, books. with the consent of the Court, after ten years from adjudication, all books of accounts deposited with him, or to destroy, or otherwise dispose of them, as the said Court shall direct.

observance VIII . TO enforce the observance by trustees of deeds of assignment of duties by trustees. of sub-sections W., v., and vrr, of section 284.

Other duties. rx. To perform all other duties imposed on him by this Act.

Protection to Official 42. No Official Receiver shall be personally responsible for any Receiver. act done by him, or by his order or authority, in the execution of

his duty, by reason of the petitioning creditor's debt or act of ixlsol- vency upon which any adj~dicat~inn shall have been grounded, being insufficient to support such adjudication.

Official Rereiver not 43. No Official Receiver shall be personally answerable by reason personally anewer- able in certain case. of having received any money, bills, notes, or other negotiable

instruments under any insolvency in his character of Official Receiver, where he shdl have paid or deposited such money, bills, notes, or other negotiable instrumex&s during the prosecution of the insolvency in some incorporated hank in Adelaide, to the credit of the Official Receiver, and shall have given credit for such payment and deposit to the particular estate for which such money, bills, or other negotiable instrument,^ shall have been received, and after such payment or deposit shall not have dealt with such money, bills, notes, or o!her negotiable instruments otherwise than in the execution of his duty as Official Receiver.

If action brought against Qfftcial

a. If any action shall be brought against any Official Receiver 'Receiver, court may in respect of any case coming within either of the two preceding net same aside. sections, the Court in which the same shall be brought, or a Judge

or Special Magistrate thereof, may, upon the application of the Official Receiver, and upon an affidavit of facts, set aside the proceedings in such action, so far as the Official Receiver is concerned, with such costs, or without costs, as to the Court, J d g e , or Special Magistrate shall seem meet. 45. On

49' & 50" VICTORIE, No. 385.

The Insohent A c t . 1 8 8 6 . "-- - - -- -- S-

45. 011 the death, resignation, or removal of any Official _ P * ~ T IX-

Receiver, the Official Receiver appointed in his stead shall, by powers of new official virtue of his appointment, be entitled to act in each insolvency, and Receiver.

appointlnent shall, in contern1 lation of law, have relation back to the death, resignation, or removal of the previous Official Receiver.

46. All rights vested in any Oficial lEeceiver shall vest in and Official Receiver for time being to exercise be exercisable by the Official Receiver for the time being, and all rights of previous

judgments recovered by, and rccognizat~ces given to, ally Official VfficialReceiper. Receiver, may be enforced by the Gfficial deceiver for the time being, in his own name, as fully and effectually as if the same had been recovered by or given to him.

47. During the temporary absence of the Official Rcceivcr from $ ~ ~ ~ ~ ~ ~ ' t ~ J '

illness, leave of absence, 01- other reasonable cause, the Commissioner Official Receiver.

may, by writiug under his hand and scal, noniiriate some person to act as Acting Official Receiver; and the person so nominated shall, on giving such security as the Commissioner may direct, exercise, perform, and have all the powers, dutics, and immunities of the Official Receiver.

48. There shall bc an officer of the Court of Illsolvency styled Registrar- the Registrar: Ro'uert Blunt, Esquire, shall be the first Registrar.

'I'he duties of the Registrar shall be as follows :-

I. To act as clerk of the Court:

11. To keep the records of the Court:

rI I. 'I'o tax costs :

~ v . To perform all such other duties as sliall be imposed on him by Rule or by order of the Commissioncr.

49. There shall be an officer of the Court of lnsolvencv styled the Accountant. ' h e present Accountant of the Court shnli be the first Accountant under this Act.

The dutics of thc Accountant shall be as follows:--

I. To investigate the books and accounts of the insolvent, to prepare thercfrom a schedule and balance-sheet of the insolvent's property: dealings, and transactions, as far as the said books and accounts afford materials for preparing the same ; and to file such balance-sheet with the Registrar ten days, and such report with thc Registrar seven days at least Lefore the day appointed for the second sitting under the insolvency :

11. To report as to the keeping of accounts by the insolvent ; whether the insolvent has rendered and given him all necessary assistance and information in his power ; whether any books or papers appear to be missing, or to

have

49O & 50' VICTOKILE, No. 385. -. . - - - - -

The Insoluettt A c t . 1 8 8 6 .

PART IT. . -- have been falsified or destroyed ; the (.ausc of the insol.

vmcy ; and whether any property appears unaccounted for :

111. l'o attend the Court at such sittings under the insolvency as the Court may require,

Removal and appointment of 50, The Governor may from time to time, as occasion may Offlcid Receiver. require, appoint an Official Receiver, Registrar, or Accountant, and

from time to time remove ;;my Official Receiver, Hegistrar, or Ac- countant. Notice of such appointment or removal shall be given in the Government Gazette, and shall be conclusive evidence thereof.

Messenger. 51. There shall be a messenger or messengers of the Court of Insolvency, who shall be appointed by the Court, and shall give such seculity, and be subject to such rules, and act in such matters, as may by any rule or by the Commissioner be from time to time directed: Every messenger shall hold his oflicc during the pleasure of the Court, and shall be removable, if the Court shall see fit, upon the mere complaint of the Otficial Heceiver, of his misconduct or inefficiency, without any formal proot : Every messenger shall be entitled to receive such fees for any duties by him as are mentioned in the Fourth Schedule hereto, such fees to bc taxed and allowed by the Court or Registrar ; and in case the estate of the insolvent is insufficient to pay such fees, they shall, upon the warrant in writing of the Commissioner, be paid out of "The Un- claimed Dividend Fund."

Court may authorise messenger to act a8 ap- 52. The Court may, by order, in each particular case, with praiser or auctioneer, the consent of the trustee (if any ), authorise any messenger or

other person to act as appra-iser or auctioneer for the purpose of valuing or selling any goods of any insolvent.

Court map appoint special messenger, 53, The Court may appoint a special messenger in any insolvency

to act instead of the meskenger of the Court in such matters as may be referred to such special messenger, whenever. by reason of distance or other cause, it shall not be deemed advisable that the messenger of the Court shall act.

Summonses, &C.. may be signed by Official 54. A l l summonses, orders, warrants, and other instruments, ReceiverorRegistrsr. evidence, records, and proceedings may be signed by the Commis.

sioner, the Official Receiver or the Registrar, and shall be sealed with the seal of the Court,

Fear. 55. 'l'he rscvcril fees and sums set forth in the Fifth Scheduk nereto shall be taken by the Ofiaial Rec:eivrr in respect of the ~usiness therein specified, and shall be paid by him to the Treasurer of the province in aid of the f nnds of the General Revenue, except the fee for the schedule and the charge for advertising. Iu all cases

* of appeal to the Supreme Court, that Court is hereby authorised to receive and take such fees as it would have taken in the case of an appeal from the decision of a Judge of such Court.

66. The

49" & 50' VICTORIA$ KO. 385. - - " - P - - -

The lr?solvent A c t . 1886. _ -

56. The salaries of the (:ommisfioner. and ministerial, and other PAKT SE.

of the Court (excepting the ac'countant and mcsseng~rs), salarie*

stlall be in lien of all fees and emoluments whatsoever, and shall be p id out of the Cieueral Revenue of' the said province.

PART 111. PABT 1x1.

ACTS OF INSOLVENCY.

57. If any debtor shall depart the said province, or, being Departing the pro-

out of the said proviiice, shall remain absent therefrom. or shall ; ~ ~ , o ~ ~ , " ~ ~ , " ~ -

depart fiom his dwelling-house, or otherwise absent h im4f , or absent.li~epinghouse,

begin to keep his house, or suffrr himself to be armstcd or taken in ~ ~ f ~ ~ ~ n ~ ~ ~ & & e n t

execution for any debt not due, or yield himself to prison, or suffer grant.

himself t o be olltlawed, or procurc hirnsclt' to be arrested or talwn in execution, or his goods, money, or chattels to bc attached, seqlies- tratcd. or taken in ( scacution ; or make or cause to be mitclc, either within the said province or elsewhere, any fraudulent grant or conveyance of anp of his lands, tenements, goodq or chattels, or :' make or cause to be made ally fraudulent gift, delivery, or transfer of any of his goods 01, chattels ; every sucb debtor doing, buffering, p1 ocuring, executing, permittmg, ma.king, 01% cansing to bc made, ally of the acts, deeds, or rnnttt3rs aforesaid, with intcnt to defkat or delnv his creditors, or whpreby his creditors shall or mav Irc defeated or delayed, shall be deemed to have thereby cornmitt& on act of insolvency.

58. If any person having been arrested or committed to prison Lying in pison or

for debt, or upon any attachment, or order, or commitn~ent ior or e s c a ~ i n g o u " ~ p ~ ~ ~ ~ ~ .

respecting the non-pnymclrt of money, and from which imprisonment he might be tli&haryed upon pnym~nt of rnoncv, shall upon such or any other arrest or commitment for debt or n ~ i - ~ n ~ r n e n t of moliey, or upon any clotc-ntion for debt, lie in prison tor twenty-one days, or having been arrested for anv cause, or being in prison for any cause. shall lie in prison as aforesaid after any detainer for dcbt lodged against him and not discharged, or if anv such person haring been arrested. committed, or detained for debt, shall cscaye out of prison or custody ; or if any person shall abscond or keep oat of the way to sviid being taken or served with auy proccss for debt out of m y (hurt ; the person so lying in prison, escaping, absconding, or keeping out of the way, shall be deemed to have committed an act of insolvency on the first day of such arrest, commitment or detention, or on the first day of the absconding or concealment of sucn debtor, as the case may be.

59. If any debtor shall file, in the office of the Registrar a Deulmationof insol- declaration of insolvency, in the prescribed form, signed by such debtor, and attested by an Official Receiver: Kegistrsr, practitioner of the Supreme Court, Justice of the Peace, or Clerk of a Local Court, every such debtor shall be deemed to have committed an act of insolvency at the time of filing such declaration: Provided a

petition

49" & 50" VICTORIE, No. 385.

Com~uncling with petihoning creditor.

h'ot compounding with judgment creditor after notice 80 to do.

The Iitsolvent A c t . 1 8 8 6 .

petition for adjudication be filed by or against such debtor within two months from the filing of such declaration. The Registrar receiving such declaration shall forthwith cause a copy thereof to be inserted in the Governm~nt Gazette.

60, If any debtor, after the filing of any petiticn for adjudication of insolvency against him, shall pay money to the petitioning creditor, or give or deliver to such pctitioi~iu~: crcditor any satisfaction or security for his debt, or for any part theh:of, whereby such peti. tioning creditor may receive nlnre in the pound in respect of his debt than the other creditors, such payment, gift, delivery, sitisfac- tiou, or security shall be an act of insolvency, and if adjudication of insolvency shall have been made under such petition, the Court may either declare such adjudication to be valid, and direct the same to be proceeded with, or may order it to be annulled, anti a new petition for adjudication may be filed, and such new petition may be supported by proof either of such !a&-mentioned or of any other act of insolvency.

61, If any plaintiff shall recover judgment in the Supreme Court or any I m a l Court for Twenty Pounds or upwards, and shall be entitled to levy execution upin such judgment for Twenty Pounds or upwards, and thc clefendaut sl~all not, within fourteen days after notice in writing personally served upon him, requiring immediate payment of such judgment dcbt, pay, secure, or compound fbr the same, to thc satisfaction of such plaintiff', the defendant shall be deemed to have committed an act of insolvency on the fifteenth day after the service of such notice: Provided that if execution shall in the meantimc bc stayed or restrained by any rule, order, or proceeding in any Court of Justice no further proceeding shall be had on such notice ; but it shall bc lawful for such phi11 tiff, when again er1 titled to 1cv)- execution an such j udgment for Twenty Pounds or upwards, to taroceed again by notice in manner aforesaid.

money or fo~rteen NOn-pPent* Of

62, If any decree or order shall be made by the Supreme Court,

days after peremptory or any Judge thereof, or by any Court of lniolvency, or any Corn-

day Axed. missioner, ordering any person to pay a sum of moncy, and such t)erson shall disobev such decrec or order after due service upon

I

him, the person entitled to rcceive slxh sum nrider such decree or order, or interested in enforcing the payment thereof, may apply to the said Supreme Court, or any Judge thereof, whether such decree or order shall have been made by the Supreme Court or a Judge or not, or to the Court or Commis~ioner making such order, for an order fixing a peremptory day for the payment of such money ; and if the person liable to pay, being yersonaliy served with such last-mentioned order, not less than fourteen days before the day therein appointed for the payment of such money, shall neglect to pay the same on or before the peremptory day so fixed, he shall be deemed to have committed an act of insolvency on the day after such peremptory day.

49' & 50° VICTORIfi, No. 385

63. If exccutiou issued on any judgment against a dcbtor for the purpose of obtaining payment of ilot less than Twenty Younds he levied bu seizure and sale of his goods, or if any such

be returneil unsatisfied to the extent of T ~ v ~ n t y Pounds or upwards, the debtor shall be deemed to have committed an act of insolvency at the time of such sale or return: Provided that an insolvency petition be presented against or by the debtor within fonr weeks a f t 6 the date of such sale or unsatisfied execution: Prwided that Qle Court may reverse such adjudication on its being paved that such return is improper and uiitrue, the bwden of which proof shall be on the insolvent.

64, If, at a meeting of creditors under section 262, or some ndjonxnrnent thereof, a resolution accepting n proposal for a composition or schcme. or for thc cxccution by the debtor of a deed of' assign- mcnt under Part XI. of this Act, or a resolution bp a majority in value of the creditors present personally, by a t to rne~ , or by proxy that such meeting shall not bc deemed an act of insdlvency, bc not duly passed, or if the debtor shall not execute a deed of assignment pursuant to a resolution theretbr within seven days from the passing of sueh resolution, or if u resolution accepting a proposal for a composition or scheme be not duly confirmed as provided by section 265. subsection I , the debtor shall be deemed to have committed a n act of insolvency orr the date of thc first meeting of creditors : Provided that a petition that the debtor* bc adjudicated insolrcnt be filed within two months from the date of slich first meeting.

65. If any composition or scheme of a.rmngcmcnt shall bc rejected or annulled under section 265, subsections V I . or V I I I . , the first rncctixij: of creditors shall be dwnred on act of insolvmcy on the part of the ilcbtor, provided adjudicntior~ of insolvency bc obtained against him within seven days from the date of the order of rejection o r annulment.

PART 111.

Exocution levied or returned unsatisfied for Twenty Pounds.

If at meeting of creditors special resolution accepting composition or scheme of arrangement, or that debtor execute deed, not carried, or if ilcbtor do not execute deed.

If composition or schcn~e rejected or annulled by Court.

66. If the Court shall declare any deed exccnted by a debtor in pursuance of Par t xr. of this Act to be void, the debtor shall

Declaration by Court that deed under l'nrt XI. void,

be deemed to have committed an act of insolvmcy on thc date of the meeting of creditors at which such deed was resolved upon : Provided adjudication of insolvency bc obtained not later than fbur- teen days from the date of such dcrd being so drclarod void.

67. If any debtor in actual custody for debt in any gaol give Noticeof intention to notice, attested by the keeper of the gaol and in the prescribed petition as s pauper.

form, to a Registrar of his intention to petition as n pauper for adjudication of insolvency against himself, the giving of socl1 notice shall be deemed an act of insolvency committed by the debtor a t the time of the receipt of sueh notice by the Kegis- h r . The Registrar shall make an entry of such notice, and the time of receiving the same, in a book to be kept for that Purpose, and the production of such notice, and of thc entry thereof in the said book, shall be evidence of the act of insolvency, without further proof. 68. No

C-385.

49' & 50' VICTORIE, No. 385.

The Insolvent Act.-X 886.

PART 111. 08. No person shall be liablc to become ins;olvent by reason of NO person to be adju: 813Y act of insolvency committed more than twelve months prior to di~&d On an act if th6 filing of the petition for adjudication of insolvency againit him ; insolvency more than twelvemonthsold. and no adiudication of insolvencv shall be deemed invalid bv

reason of the act of insolvency Ling prior to the debt of t& petitioning creditor, provided there be a sufficient act of insolvency subsequent to such debt.

Notice to corporation, 69, If an agent of any body corporate or public company shall &C. have had notice of any act of insolvency, such body corporate or

company shall be deemed to have had such notice.

PART IV. PART TV.

ADJUDICATION O F INSOLTTENCY AND PROCEEDINGS 'I'HEREUNDER.

Adjudication obtained 70. Adjudication of insolvency shall be 01) tsined on petition in on petition.

the prescribed form, i~ttestetf by an Official Xeceivcr, Ttegistrar, practitioner of the Supreme Court, Justice. of the Peace, or Clerk of a Local Court, and if presented by a debtor petitioning as a pauper, seven days at least shall intervene between the act of insolv~ncy and the filing of the petition. No fees shall be talrcn in the case of a debtor pctitioning as a, paup~r.

Amount of petitioning creditor's debt. 71. The amount of the debt of any creditor petitioning for ndjudi-

cation of insolvency shall be as follows-the debt of anv sinele U

creditor, or of twb or more partners, shall amount to 'l'wenty Pounds; the debt of two creditors shall amount to Thirty Pounds; and the debt of three or morc creditors shall amount to Forty Pounds ; and every person who has given credit upon valuable considerl.,ztion for any sum payable at a certain timc, which time shall not have arrived, may so petition or job in petitioning, whether he shall hold any security fbr such sun1 or not.

Petition m8.v be filed 72. A petition for adjudication of insolvency against any person by public o5cer of copartnership. indebted in the amount aforesaid to any copartnrrship duly authorised

to sue or be sued in the n a n ~ of a public officcr, may be filed by such public officer as the nominal petitioner for and on behalf of such copartnership.

Keeper shall certify name of detaining 73. I n case of a debtor petitioning as a pauper, the keeper of creditor. the gaol in which such debtor is imprisoned shall, by memorandum

on the petition, certify the name of the detainingw creditor of the petitioner.

Petitioning creditor to 74, If the petitioning creditor in any insolvency petition shall obtain adjudication wi~KB three dsvs. not obtain adj udicnt ion within three days after h$ itetition shall

have been filed, or within such cxtcnded time as shall be allo\ved by the Court, the Court may a t any time within fourteen days then next following, upon the application of any other creditor or

creditors

I T

49" .& 50" VICTORIW, No. 385

Tlhe Insolvent A c t . 1 8 8 6 . -

to the requisite amount, or of the debtor, proceed to $Ijudicate on such petition; but if the petitioner, or some other creditor or creditors, or the debtor shall not within such fourteen days, or within such extended time as may be granted by the Court for that purpose, apply to the Court to adjudicate, no fmther proceedings shall be taken on the petition, and such petition shall be considered to be dismissed.

75. Any creditor, whose debt is sufficient to entitle him to petition for adj jodication of insolvency against all the partncrs in any firm Inay petition for such adjudication against one or more such partners ; and on an? petition for adjudication agaiust two or more persons the Court may dismiss the same as to one or more of such persons, and grant an adjudication agaiust thc other or others.

76. When an adjudication of insolvency has been made against LZ partner in a firm, and any other partner is out of the said province, or of unsound mind (whether so found by inquisition or not), the Court shall have jurisdiction, without ad j udging him an insolvent, and on proof to the satisfaction of the Court that the film are unable to pay their debts as they become due, to make an ordcr in insolvmcy fbr the administration, according to the Inw of insolvency, of the joint property of' the members of the firm. On such ordcr being madc, the property of the firm shall vest and be administered as if an insolvency petition had been presented and an order of adjudication made in the first instance against all the members of' the firm.

77. If the debt stated by the petitioning creditor in his affidavit, or in his petition for adjudication, shall not bc due, or if aftcr a petitioti for adjudication of insolvency filed, it shall not bc proved tlint the person against whom such petition was filed had cornmitted an act of insolvency at the time of the filing of such petition, and it shall also appear that such petition was filcd frandulently or maliciously, the Court shall, upon petition of the person against whoin any such petition was so filed, examine into the same and order satisfsctiotl to be made to him for the damages sustaiued.

78. If any petitioning creditor shall, after the adjudication of insolvency, receive any money, satisfaction, or security for his debt, or any thereof, whereby such petitioning creditor may receive more in the pound, in respect, of his debt, than other creditors, such petitioning crcditor shall forfeit his mhole debt, a n d shall also repay a i d deliver up such money, satisfaction, or security, or the full valne thereof, to the truster for the benefit of the creditors of such insolvent.

79. Whenever anv insolvency petition shall have been filed agaiust any person, a i d i t shall be proved to the satisfaction of the Court that there is probable cause for believing that such Person is about to quit the said province, or to remove or

Creditor of firm may petition againat any partner.

If one partner adjudicated and another out of province or of u n - sound mind, Court may make order for administration of joint property.

Penalty if petitioning creditor's debts not due, or potition filed fraudulently and maliciotisly.

Petitioning creditor receiving money, &C., i n payment of debt.

If person about to quit province or remove goods Court may issue warrant.

conceal

20 49' & 50' VICTORIiE, No. 385.

l h e Imoluent A c t . 1 8 8 6 . . --

PAW Iv. conceal any of his goods and chattels with intent to defraud his p-".--

creditors, the Court may issue a warrant directed to the messcnger and his assistants, or to such person as the Court shall think fit, to arrest the person petitioned against, and to seize his personal estate, and to keep such person and estate until the expiration of the time allowed for adjudication on such petition, or until such person shall be adjudged insolvent under such petition, and be thereon dealt with according to this Act.

Person arrested may 80. Any person arrested upon any such warrant under the last obtain order to show cause why he preceding section, or any pr:1.son whose p ~ r s o i d cstatc s l d have been not be diacllarged- seized under any such warrant, may apply at any time after such arrest

or seizure to the Court for an 'order on the petitioning creditor to show cause wliy the applicant should not be dischar&d out of custody, or why his personal estate should not be d ~ l i r e ~ c d up to him, and the L'ourt may mttlie nbsolutcl such order or discharge the same.

court may summon 81. The Court may, before adjudication, summon before it the perBon insolvency, topr0ye &C. act debtor or any o t l l t ~ person whom such Court shall believe capable of

giving any informatio~~ concerning anv act of insolvency committed by the debtor, and may require any sn& person to produce any books, writings, ant1 documents in his possession, or under his corltrol. Thr: Court may exa~x~irie such person 1113011 oath conccvning such act of' insolvency. If the person summoncd sllall not come betbrc the Court at the timc appointed, havilig no lamf'ul impcdimerit made known to the Court., and allowed by it, the Court may issue a warrant to arrest such person, and to bring him before the Court for examination, and also to seize all books, mritinw and documents which such

' r , person may he sumrnonccl to produce. Jhe Court may also fine or fine and imprison the person so summoncd and neglecting to appear.

Affidavit in certain 82. An affidavit in proof of an act of insolvency, or of a petition- cases may be sworn before petition. ing crediter's debt, or any other matter in support of an insolvency

petition, may be sworn before the date of such petition or of the filing thereof ; and it shall be suficient if such affidavit shall be intituled in the Court in which such petition shall afterwards be filed.

Cowt mayadjudicate. 83, The Court under n creditor's petition, on proof of the petitioning creditor's debt n l d the act of insolvency, or in case of the failure of the petitioning creditor duly to obtain such adjuclication, then upon the application of another creditor, to be made at the time and in the manner hereinhefore appointed, and on proof of such other creditor's debt and of the act of' insolvency, or upon the application of the person indebted on proof of' the act of insolveocy, and under a debtor's petition upon the application of the debtor and on p o o f of the act of insolvency, shall, in the prescribed form, adjudge such debtor insolvent.

84. In the case of a person adjudicated insolvent on the petition of a creditor, the Court may amend any error or supply

any

49' & 50' VICTORIE, No. 385. - The hso1ven.t Act.-1886.

my omissions in the name or addition of the insolvent in any of the proceedings prior to or under the insolvency, and notice therof shall be given by the Official Receiver by advertisement in the Governtncnt Gazette. In any such case the proceedings as %mended shall in all Courts be read and have the like force and

as if they had originally been in the amcnded fbrm.

85. Prior to a petition by an insolvent debtor for adjudication of insolvency cvery insolvent shall convene a meeting of his creditors, in the same nmnner as is prescribed in clause 262, Part XI. of this Act, and until such meeting can be held the Court of Insolvency or any Local Court of Insolvency shall have the same jurisdiction as to staying proceedings and exercisable in the same manner as is provided by clause 283: Provided that this clause shall not apply to imprisoned debtors.

86. Subject to the last preceding clause, any debtor may petition for adjudication of insolvcncy against himself, mcl an adjudication obtained on such petition, or at the instance of an insolvent, shall have on the property, ricalings, and transactions of the insolvent, the like operation and effect, and the title of the trustee shall have the like relation as if the adjldicntion had proceeded on the petition, or at the instance, of a creditor: Provided that nG adjudication shall, except in case of it pauper dcbtor, hcreinbcforc mentioned, be had on the application of such debtor, except upon payment of the proper fees and charges.

87. If after adjudication of insolvency the debt of the petitioning creditor be found by the Court to be insufficient to support such adjudication, the Court may, upon the application of any othcr creditor proving a debt sufficient to support an acl.jutlication, or which being added to thc petitioning creditor's debt is sufficient for that purpose, order, in the pr~scribecl form, such last-mentioncd debt to be substituted for or addcd to the debt of the petitioning creditor, and thereupon the adjudication shall be as valid as if the petitioning creditor's debt had been sufficient.

88. The Court shall forthwith, aftcr acljudication, appoint two public sittings of thc Court under the iusolvency, the first to be held not earlier than seven days, nor later than fburtccn from thr date of adjudication-and the second to bc held not earlier than twcntv-eigtt days, nor later than thirty-five from the first sitting ; and shall cause notice of such adjudication and of such public sittings to be given by advertisement in the Governmeut Gazette ; and shall fix an amount for which the Officiai Receiver shall be a judgment creditor of such insolvent, ; and may, from time to time, until the insolvent passes his last examination, substitute another amount for the amount so fixed. Every such order shall have tflie effect of a judgment in the Supreme Court; but i t shall not be enforced uor shall judgment thereon be entered up without lcavc of the Court.

89. The Court, after adjudication, shall, at the instance of the official Receiver or trustee. issue a warra~it to the messenger to seize

Insolvent to convene meeting of creditors prior to petition.

1)ebtor may petition for ad judient,ion.

Court may substitute another ereditor'sdebt where petitioning creditor's debt insufficient.

Court to appoint two public sittings.

Court may issue warrant to seieo estate. U

$1 the personal estate of the insolvent. 90. I n

49' & 50' VICTORIAZ, No. 385.

The Insolvent Act .1886 .

PART TV. 90. I n the casc of a pcrwc'n acljjndged insolvent on the petition of Service of ittljudicd- a creditor, the OfIicial lteceiver s l d l fbrth~vith cause a duplicate of tion. the adjudication to be served up011 such insolvent or by

leaving the same at the usual oi lnst-known place of abode-of such Insolvent may S ~ O W insolvent. ,4ny person adjudgecl insolvent on a creditor's petition causeagainst adjudi- may, within seven dnvs from the servir*e of the duplicate of the cat ion. adjudication, or such cstendcd timc as tlic Corlrt ma). allow not ex-

ceeding fourtren claw in the nholv, or at tlln first public sitting under his ir~solvencv, sllow cause to the Cotlrt against the validity of such adjudication ; -and if he shall show to tire satisfaction of t h e Court that the petitioning c:reclitorls debt or act of insolwncy grouncl- ing such adjudication, or both of them, arc insufficient to support such ad jnclication, and if no other petitioning creditor's debt and act of insolvency, or snch onc of such mattcrs as shall be required to support such adjudication slid1 be proverl. the Court shall order such adjudication to be reversed, autl shall forthwith cause iioticc of such reversal to be given in the Government Gazette.

Court to fix period for surrender.

91, I n the case of a lwrson adjudged insolvent on the petition of a creditor. the Court shall, in the adjudication, fix a period not exceeding fourteen days from the date of adjudication, within which thc iiisolvent is to sunwider and corifonn, slid may from time to time enlarge such period, and shall cause notice thereof to appcar by advertiscmcnt with cncli notice of adjudication,

Person adjudicated on his own petition 92. Any adjudged insolvent on his own petition or on to surrender within his own application shall surrender and conform within three days three days. after such adjudication, and before three o'clock in the afternoon of

the last day.

Insolvent free from arrest in coming to

93. Evcry person who shall be ncljndqed insolvent s11a11 be free surrender. from arrest or i~riyvisolmcnt by any credhor in coming to snrrender;

and every insolvent, after surrender, shall be free from arrest or imprisonment by any creditor, so long as he shall have the protection of the Court as hereinafter provided.

Insolvent imprisoned 94, If any insolvent shall, at the time of surrender, or at any to bo released. tirnc thereafter, bc in prison, or in custody cm civil process of ally

Court having beerr wrested or cormiitted to prison for dcbt or damages, or upon any attachment or order or coamitment for or respectiug the non-payment of money, or for contempt of any Court, and from which imprisonment hc might be discharged upon payment of money, the Court may, by warrant, order his immediate release : Provided that such rclcusc shall in nowise affect any ri@t of any creditor against the insolvent, except the right of detainmg him in prison so long as he shall h a w the protection of the Court.

I n s o l ~ t surrender- 95. Every iiisolvent shall, immediately upon surrendering, be ing in custody at suit of official Receiver. deemed to be in custody for debt at the suit of the Official Receiver

for such a sum as the Court may, by such order or substituted order as aforesa,id, have directed ; and the messenger of the Court

shall,

49' 8r V 50" VICTORIE, No. 385. C_------

Tht Jizsolvent Act.--1 886.

&all, upon receiving thc marrant of the Court. lodge thc insolvent in gnol and such insolvmt shall not hc dischaxgeil tlierefrom until he shall h a w 11ass"ed hi3 last cuamination, unlcss hc shall have

the protection of the Court.

96. After adjudication, the Court may direct any insolvent to be discharged out of custody at the suit of the Official Receiver, on his finding sufficient surety to t3nter into ;I r e c o g n i ~ n . ~ ~ ~ to the Official lieccirer in such sum as thc Court s l d l order for thc pcrsoiza,l appearance of the insolvent in such Conrt when lawfully required until lie shall pass his last examination, and thc~eupon the Court &l1 grant protection to thc said insolvent: Provided that the surety of the insolvcnt, or if more than one, the sureties, or any of tliern, may render snch insnlv~nt to gaol in disr:harge of the lmognizanee. TIE Court mav witlidraw slich protection either entircly or for sowe clcdinite pcriod, or nntil the insolvcnt shall h i i ~ e found other surety to m I argrr amount, and thcrcupon str;dl order such insolvent again it1 to custody. The Cowt may again order thc d i s h r g e of, a ~ i d grant protection to, any insolvent so wndered to gaol, or whose protection shnll be so withdrawn, 011 his fintlirig ~urcty as though hc had jus t thcii surrcndelccl. The Court niay dispense with bail in ;my case it may think fit.

97, Any recognizni~ccs may be eiitcrcd into a11(1 :icknowlcdged bufbre any Commissioner, IEtegist~w, Spccinl Magistrate, or Justice of thc, Pence.

PART IT.

C o u ~ t may &charge insolvent out of custody on finding sureties.

Pcrsons empowered to take recognimoceu.

Court empowered to orcler ~nliterial

98, The Court shall have power to order any insolvent in prison, a.

or in custody urr der nuy process, n t t i r c11 nlcn t, crccution, conlrnit- ,itnesl in to nicnt, or sentence, 01' ally p1 isoner in an!; of l l c r %faj jesty's gaols, he brought before

Court. 01. wrving any scntcwce, ;I rrcl who shall l.x :L necessary or matcri;;tl witness in any matter pending in thc Court, to be brought before the C'onrt, or some o f i ces thcreof.

99. The keepers of all of Her Majesty's Gaols, and all other Keepers of gaols shall obey order to bring persons having thc custody of an insolvcnt or prisonrr, shall obey up prisoncr.

any orcler madc by tbc Court for bringing np such insolvcnt or lxismwr, or for rrcciving or uctaining any insolvent, or for the rclraso of any illsolvent ; and if any action or otlrcr procreding shall be brought against snch keeper or other person for obeying such order ire may plend not guilty by t l ~ i s Act, illld givc S L I C ~ ~ order h evidence.

100. Not lntcr than six days beforc the first public sitting under Insolvent to file schedule six days the iosolvcl l~~, or such cxtcirded time as the C o ~ ~ r t may allow, the

first holvent sIi;rll file irk Court sohdule which shall sat out, as far as practicable. thc particulars of his asscts ancl liabilitics, the names, 'csiclcnces, and occnp;~tions of his creditors, the securities held by them respectively, the valne at which hc estimates the same, the dates on which they were rospcctively given, and thc amount prov- "bl after deJucting such value. The schedule shall be signed by

the

49' & 50' VICTORIA!, No. 385.

Notice of first exanination.

Insolvent to deliver up books of account and attend accountant.

insolvent after certificate to attend trustee or any Court when required.

Court may grant search- warrant.

The Insolvent Act .1886.

the insolvent and verificd by his affidavit, or that uf sorrleoiie else able to vcrifv the sstrne. Ally -insolvent failing to file the nborc schedule shd l be deeme(1 guilty of contempt of Court : . Provided that the Court may dispense with the filing of the said schedule.

101, The Official Receiver shall, three days a t least before the day appointed by the Court for the first public sitting under the insolvency, cause notice of such sitting to be given in the rna~liner directed by rule to every creditor of the insolvent so far as known to him.

102. The insolvent shall forthwith aftw surrender, or after the period l i m i t d for his surrender, deliver up to the Official Receiver all the books of account, papers, and writings ~.c.lating to his estate in his c~lstody or power, and shall discover such as are in thc custody or power of any other person, ant1 snch insol\-cnt, shall post and make up his books and aocomh to the date of the adjudication ; and, if not in prison or in custody, shdl at tmd the accountant, a t such place and when and as often as he shall be required, or, if such insolvent shall bt? in pl-ison or in custody, he shall attend the accountant or some person appointed bp him, at the gqol or place of custody, and shall furnish to him such particulars of his debts ancl credits, cstrttc w ~ ~ t l eff(.cts, transactions aud dealings, as arc necessary to enable such ciccountsnt to preyare the insolvent's schd~rle and balance-shcct by this Act requirecl ; and shall also, when and as often as required by the trustee, assist in making out the accounts of his estate; and Boch insolvent, after he slmll have surrendered, may, at all reason:kble t i nm before he shall pass his last examination, illspwt his books, ;mpcrs, and writiizgs, in the prcscnce of the Official lteceivw, or aniy person appointcd by him, and bring with him each tinw any two persons to assist hiin.

103. Every insolvent, after he shall httvc passed his lmt cxamina- tion, shall upon demand in writing given to him, or left at his usual place of abode, attend the trustee to settle any account between his estate and RIiY debtor or creditor, or attend any CJonrt of Jnsticc, or any arbitration to give evidence touching the salrlc, or do any act necessary fbu gctting in or protectine his said estatc, for P which attendance he shall be l>i~id, Eight Shillings pcr day by tlw trustcc out of his estate, and also his reasonable travelling expenses to be allowed bv the Court ; and if any insolvent shall ncglect to comply with the of this section he shall for every such offence forfeit and pay to the trustee, for the benefit of the estate. a sum of not exceeding Twenty I'ouncls.

104, If it shall appear to the Court that thcrc is rcason to susp~c t that any property of any insolvent is concealed in any house or other place, the Court map, on the application of the trustee or any creditor, grant a search-warrant to any person appointed by the Court, and such person may execute such warrant, and shall be entitled to the same Pl-otection as is

allowed

49' & 50' VICTORIW, No. 385. - The Insolvent Act.-1886.

allowed by law in the case of a search-warrant for property reputed PART ~ v .

to be stolen or concealed.

105. NO action shall be brought against any messenger or his NO sotion to be

, assists* t, or other person appointed by the Court, for anythiog done ~~~~~~~~$~ after in obedience to any warrant of the Court, unless perusal and copy demand of perusal of of such warrant has been demanded by notice in writing, signed by wammt.

the party intending to bring such action, or by his attorney 6r agent, and served on such messenger, assistant, or other person, or left at his usual or last-known placc of abode in the said province, and unless such demand has been refused, or has been for six days neglected to be complied with.

106. If after such demand and compliance therewith, any action Messenger entitled to verdict notwithstand- be brought against such messenger, assistant, or other person, ing in warnfa

without making the petitioning creditor if living a defendant, the defendant at the trial of such action shall, on proof of such - warrant, be entitled to a verdict, notwithstanding any defect of jurisdiction in the Court by which such warrant shall have bcw granted; and if such action be brought against the petitioning creditor, and such messenger, assistant, or other person, such messenger, assistant, or other person shall, on proof of such warrant, be cntitlcd to a verdict, notwithstanding any such defect of jurisdiction ; and if a verdict shall be given against the petitioning creditor for an amount carrying costs, the plaintiff shall recover his costs against him, to be taxed so as to include such costs as the plaintiff is liable to pay to such messenger, assistant, or other person,

107. In any such action brought against the petitioning creditor Proof of defendant being petitioning either alone or jointly with any messenger, or assistant, or other creditor euficient to

person so appointed by the Court, for anything done in obedience make him liable. to the warrant of the Court, proof by thc plaintiff in such action that the defendant, or defendants, or any of them, is or are petitioning creditor or creditors, shall be sufficient for the purpose of making such defendant or defendants liable in the same manner and to the same extent as if the act complained of in such action had been done or committed by such defendant or defendants.

108. Any person acting under warrant of the Court, may break I'owersof person acting under Court'e open any house, chamber, shop, warehowe, trunk, chest, or other ,,,,t.

receptacle of any insolvent., where such insolvent or any of his property shall be suspected to be, and seize upon the body or property of the insolvent; and if the insolvent be in prison or in custody, the person acting under such warrant may seize any property of the insolvent (his necessary wearing apparel only excepted) in the custody or possession of such insolvent, or of any other person in any prison or place where such insolvent is in prison or custody.

109. If any insolvent shall be arrested for debt or on any escape InaoFnt, whits

warrant hold~ng prot&ion D-385.

4 9 O & so0 VICTORIE, No. 385.

The Insolvent Act.--P 886. - - -

PABT iv. warrant in coming to surrender, or shall after his surrender, and order, entitled to while protected by order of thc Court, be so arrested, he shall, &scharge on arrest on producing such protection to the person arresting him and for debt.

giving him a copy thereof, be immediately discharge6 ; and if any person shall detain any insolvent after he shall have shown such protection to him, except for so long a time as shall be necessary for obtaining a copy of the same, such person shall forfeit to such insolvent, for his own use, the sum of Fivo Pounds for every day he shall detain such insolvent, to be recovered, with costs, by action in the name of the insolvent.

Petitioning creditor 110, Every petitioning creditor shall, at his own cost, file and entitled to costs on appointment of yrosecute his petition until the conclusion of the first sitting under truetee. the insolvency; and after such sitting the petitioning creditors'

costs shall, unless the Court shall otherwise order, be paid out of the estate of the insolvent in course of priority, to be settled bp rule.

No objection to pro- 111. It shall be no objection to arly proceedings in insolvency that ceedings that same concerted between the petition, adjudication, or act of insolvency has been concerted or insolventandcreditor. agreed upon between the insolvent, and any creditor or other

person.

If inaolventdie,Court 112. If ally insolvent shall die after adjudication, the Court may may still proceed. proceed in the insolvency as if such insolvkut were living.

Courtmay summm 113. After adjudication the Court may snmmoil before it the auy person capable of givinginformation as insolvent, his wife, or any person known or suspected to have any of to imol?ent's estate. the estate of the insolvent in his or her possession. or who is su~nosed

to be indebtcd to the insolvent, or whd is belic&l to be capjble of giving information concerning the person, trade, dealings, or estate of the insolvent, or concerning any act of insolvency committed by him, or any information material to the full disclosure of his dealings ; and the Court may require the insolvent, or his wife: or such person to produce any books, papers, deeds, writings, or other documents in his or her custody or power; and if the insolvent, or his wife, or such person so summoned as aforesaid, shall not come before the Court at the time alppointed, having no lawful impediment (made known to the Court at thc time of its sitting, and allowed by it), the Court may, by warrant, authorise any messenger or other person to apprehend and arrest the person summoned, and bring him or her before the Court for examination.

If person keeping out of wrty Court 11lay 114, Where it shall be shown by affidavit to the satisfaction of order substituted the Court, that any person to whom any such summons is directed as service of summons. aforesaid is keeping out of the way and cannot be personally served

therewith, and that due pains have been taken to effect such personal servicc, the Court may order. by indorsement upon the summons, that delivering a copi of such krnnlons to the 'wife or servant, or some adult inmate of the house or family of such person at his usual or last-known place of a b d e or business, and explain- ing the purport thereof to- such wife, servant, or inmate, shdl be

equivalent

49' & 5 8 VICTORIE, No. 385

,pivalent to personal service, and in every such case the service of PART ~ v .

summons: in plmuancc of such ordcr, shdl be of the same force and effect as if the party to whom such summons was directed had been personally scr r ed therewith.

115. If i n ally case it shall bc proved to the satisfitction of the rf insolvent avoid service of summons Court that any insolvent is keeping out of the way, and cannot be Court war-

prsonally served with a summons, and that due pains have been rant

t&cn to effect such personal service, or that there is probablc cause for believing that he is about to qnit the said province, or to remove or conceal any of his goods the Court may, by warrant, authorise any messenger or other person to apprehend and arrest such insolvent, and bring him before the Court for examination.

116. Upon the appearance of any person summoned or brought Court may examine bcfore thc Court upon any warrant ss aforesaid, or if any pexson any person.

be present at any sitting of the Court, the Court may examine such person upon oath, either by word of mouth or by itlterrogatories in writing, concerning the person, trade, dealings, or estate of any insolvent, or concerning any act or acts of insolvency by any insolvent committed or supposed to be committed, and reduce into writing the answers of every such person, and such person shall sign such answers.

117. If any insolvent, apprehended by any warrant of the Court, insolvent appre- shall. within thc time allowed for him to surrender, submit to be ~ ~ & ~ d ~ ~ m a ~

examined, and in all things conform, he shall have the same benefit as if he had voluntarily surrendered.

118. Thc Court may from time to time, on e z parte application, co,,,t may order in-

order that, for a period of not cxceediilg three months from the ; $ ? ~ ~ ~ ~ ~ ~ ~ , " ~ ~ ~ $ date of anv such order, all post letters directed or addressed to any Receiver or Trustee.

insolvent &all be redkectgd, readdressed, sent or delivered by the Postmaster-General, or the officers acting under him, to the Official Receiver, trustee, or other person named in such order, and the Postmaster-General or any officer served with such order shall obey the same.

119, The Official Receiver, if the Court shall so ordcr, may, OfficialRecciver may

befbre the first sitting under the insolvency, sell or otherwise dispose fi~p""~" pro-

of any property of an insolvent which shall be of a perishamble nature, or the holding possession whereof until such sitting would, in the opinion of the Court, be prejudicial to the insolvent's estate, but shall not interfere after the appointment of a trustee as to the time or manner of effecting any sale of an insolvent's estdte or any part thereof.

120. The following provisions shall be observed with regard to v0 tbg .t public;

the voting of creditors at every public sitting under an insolvency: B'tthg~.

I. A creditor shall not vote unless he shall have proved or shall at such sitting of the Court ?rove a debt due to him from the insolvent : 11. A

49' & 50' VICTORIE, No. 385.

Creditor of firm may for certain purposes prove againet partner,

--

The Insolvent A c t . 1 8 8 6 . --- -

11. A creditor shall not vote in respect of any unliquidated or contingent debt, or any debt the value of which is not ascertained :

111. A secured creditor shall, for the purposes of voting, be deemed to be a creditor only in respect of the balance (if any) due to him after deducting the value of his security; and the amount of such balance shall, until the security be realised, be determined or assessed by the Court. He may, however, give up the security, and thereupon he shall rank as a creditor in respect of the whole sum due to him :

IV. A creditor shall not vote in respect of any current bill of exchange or promissory note held by him under discount, unless he is willing to trcat the liability of every person who is liable thereon antecedently to the debtor, and whose estate is not in course of administration under this Act, as security in his hands, and to estimate the value thereof and deduct the same from his proof, in which case he shall, on applioation being made by any person interested, give up such security for the benefit of the creditors or the debtor upon payment of such estimated value: Provided always that such estimate (except so far as the creditor may receive any payment as aforesaid in respect thereof) shall not prejudice the right of such creditor to receive from the estate of the debtor a dividend upon the whole amount of such bill or note :

v. Creditors may vote in person or by attorney or proxy :

vr. Every instrument appointing a proxy shall be in a form issued by the Official Receiver :

VII. An instrument appointing a proxv shall not be available except for the purpose of votind at a specified sitting of the Court, or at any adjournment thereof:

VIII . Not more than one form of instrument appointing a proxy shall be issued to the same creditor for the same meeting:

rx. A person shall not be appointed as proxy for a creditor if he is solicitor for the insolvent, or a partner with or s person in the employment of the insolvent's solicitor :

X. No prosy shall vote for the appointment of himself as trustee unless he is specially authorised to do so by the instrument of proxy :

XI. -4 creditor may appoint the Official Receiver as his proxy.

121. In the case of an adjudication against one partner in a firm any creditor to whom that partner is indebted jointly with the other partner or pmtners, or any of them, may prove his debt for the purpose only of voting on the choice of trustee. and of being heard on the last examination of the insolvent against his immediate discharge, and upon the class of certificate to be awarded to the

insolvent,

49" & 50' VICTORIE, No. 385. ---C--

-+

2%e Irhsoluent A c t . 1 8 8 6 ,

insolvent, and respecting the commission by the insolvent of any of the offe~lces hereinafter mentioned and the punishment to be awarded therefor; but such creditor shall not receive any dividend out of the separate estate of the insolvent until dividends sufficient to pay

the separate creditors the f u l l amount of their respective debts, interest, as by this Act provided, shall have been declared.

PART V. TRUSTEES.

122. At the first or second meeting under the insolvency, a trustee of the insolvent's estate may be chosen by the votes of the majority in value of the creditors present, either personally or by attorney, or by proxy, for Ten Pounds and upwards.

123. When a trustee shail have been chosen by the creditors such choice shall be submitted to the Court for confirmation, and any creditor entitled to vote on the choice may be heard for or against such confirmation. The Court may confirm or refuse to confirm such choice, and if the Court confirm such choice the trustee shall be deemed duly appointed. If the Court refuse to confirm such choicc, another creditor m a y be chosen as trustee, and so on, until the choice be confirmed.

124. Any trustee may resign his office, and the Court shall have power either to accept or reject any such resignation; and the Court may remove any person from the office of trustee on any sufficient ground.

125, In case of the death, resignation, or removal of any trustee, a new trustee may bc appointed at the ncxt or any subsequent public sitting under the insolvency. '_l.'he Official Receiver shall cause notice of such death, resignation, or removal, and that at the next public sitting a new trustee rnav be appointed, to be given by advertisement in the Government @azette.

126. All the real and personal property that may bclong to or be vested in any insolvent at the commencement of the insulvency, or that may be acquired by or devolve on him befbre he shall have obtained a certificate of the Court, shall vest in the trustec, including under that term the Official Receiver, while acting as trustee for the benefit of the creditors of the insolvent, with the following ~ X C C ~ tions-

I. Property held by the insolvent in trust for any other person :

YART IY.

Trustee may be chosen.

Court may confirm or reject choice.

Trustee may resign. Court may remove trustee.

Official Receiver to give notice of intended appointment of new trustee.

All property of insolvent to yeet in trustee.

Trust property. Bankruptcy Act, 1883, S. 44.

11. Such articles of household furniture, wearing apparel of the insolvent and his family, tools, implements of his trade, and other like necessaries, not exceeding in the whole the value of Thirty Pounds, as the insolvent shall specify and

select,

49' & 50' VICTORIE, No. 385 - The Itmlvent A c t . 1 8 8 6 .

p- P- -- - ---_ PABT v. select, or the trustee or Court allow as excepted articles,

and such excepted articles shall be exempt from any distress for all rent due from the insolvent at the date df his adjudication.

Insolvency torelate 127. 'l'he insolvency of a debtor, whether the same takes place back.

on the debtor's own pctition or upon that of a creditor or creditor's shall be deemed to have relation back to and to commence at the time of the act of insolvency being committed on which the adjudication is made against him, or if the insolvent is proved to have committed more acts of insolvency than one to have relation back to and to commeuce at the time of the first of the acts of insolvency proved to be committed by the insolvent within twelve months next preceding the date of the filing of the insolvency petition. But no insolvency petition or adjudication shall be rendered invalid by reason of any act of insolvency anterior to the debt of the petitioning creditor.

Passing of property. 128. 'l'he property of the insolvent vesting under the adjudication shall pass from trustee to trustee, including under that term the Official Receiver while acting as trustee, and shall vest and pass as aforesaid without any conveyance, assignment, or transfer whatever.

Duplicata adjudica- 129, The Court shall, at the request of the trustee, give to him tion may be registered. a duplicate of the adjudication, which duplicate may be registered

in the General ~ e k i s t r ~ Office of the said province, and such registration shall have the like effect to all intents a.nd purposes as the registration of a conveyance or assignment fiom the insolvent to the Official Receiver would have had ; and the title of any purchaser, for valuable consideration, withont notice of thc insolvericy, of property passing under the adjudication, who shall have duly registered his purchase deed, previously to the registration of the adjudication, shall not be invalidated by reason of the adjudication, or of thc vesting of such property in the trustee, unless the duplicate of the adjudication shall be registered within four months from the date of the adjudication.

D i e c h ~ e r o f o ~ e ~ u a 130. Where any part of the property of the insolvent consists of property. land of any tenure burdened with onerous covenants, of shares or

stock in companies, of unprofitable contracts, or of any other property that is unsaleable, or not readily saleable, by reason of its binding the possessor thereof to the performance of any onerous act, or to the payment of any sum of money, the trustee, notwithstanding that he has endeavoured to sell or has taken possession of the property, or exercised any act of ownership i r i relation thereto, but subject to the provisions hereinafter contained, may, by writing signed by him, disclaim the property.

Operation of disclaimer.

131. The disclaimer shall operate to determine, as from the date of disclaimer, the rights, interests, and liabilities of the insolvent and

his

4 9 O & 5oa VICTORIA, No. 385. - - -- -- -- --

31

The Insolvent Act.-1 886. - . -- - --

his estate in or in respect of the property disclaimed and shall PART v. also dischalge the trustcc from all personal liability in 'espect of the poperty disclaimed as from the date when the iropcrty vested in him, but shall not, except so far as is necessary for the purpose of releasing the insolvent and his estate and the trustee from liability, affect the rights or liabilities of any other person.

132. Any person i~ijurcd by the opcration of the disclaimer P,,, injll& by

&all bc deemed to bc a creditor of the insolvent to the extent of di+mertobea creditor .

the injury, and may accordingly prove the same as a debt under the insolvency: Provided that no proof shall bc admitted on behalf of any creditor for prospective loss in respect of rent to become due, or co17enants or agreements to be performed after the date of the disclaimer, under any lease, or ngrerrrrent for leasc or letting, until all the other creditors shall have been paid 'l'wcnty Shillings in the Pound and interest, as hcreinaf ter mentioned.

133. A trustee shall not be entitled to disclainz a lease without Tru~tee not to disclaim lease with-

the leave of the Court, except in anv cases which may be me- out leave. scribed by rule, and the ~ o u ; t may, &fore or on granting &cl1 leave, require such notices to be iiven to persons interested, and impose such tcrms as a condition of granting leave, and make such orders with respect to fixtures, tenant's irnprovernents, and other matters arising out of the tenancy, as the Court thinks just.

134. The trustee shall not be entitled to disclaim any property Trusttlecaunot disclaim in certain in pursuance of section 130 in any case where an application iri c,ses.

writing has been made t o the trustee by any person interested in the propertv, requiring him to decide whether he will disclaim or not, and thb trustee has for a period of tweuty-eight days a f t ~ r the receipt of the application, or such extended period as may he allowed by the Court, declined or neglected to give notice whether he dis- claims the property or not : and, in the case of contract, if the trustee, after such application as aforesaid, does not within the said period or extended period disclaim the contract, he shall be deemed to have adopted it.

135. The Court may, on thc application of any person who is, court may rencimi as against the trustee, entitled to the benefit or s l h j e c t to the burden contract.

of a contract made with the insolvent, make an order rescinding the contract on such terms as to payment by or to either party of damages for the non-performance of the contract, or otherwise, as to the Court may seem equitable, and any damages payable under the order to any such pcrson may be proved by him as a dcbt under the insolvency.

136. The Court may, on application by any person either claiming court mate vetiting order. any interest in any disclaimed property, or under any liability not

discharged by this Act in respect of any disclaimed property, and on hearing such persons as it thinks fit, make an order for the vesting of the property in or delivery thereof to any person entitled thereto,

OS

49' & 50° VICTORIW, No. 385.

Trustee may exercise powers vested in insolvent.

Estate tail,

Court may order insoli~ent to join in conveyance.

Mortgagee may sell afWr giving notice.

The Insolvent A&.--1d86. -

or to whom it may seem just that the same should be delivered bp way of compensation for such liability as aforesaid, or a trustee for him, and on such terms as the Court thinks just; and on any such vesting order being made, the property comprised therein shall vest accordingly in the person therein named in that behalf without any conveyance or assignment for the purpose : Provided always, that where the property disclaimed is of a leasehold nature, the Court shall not make a vesting order in favour of any person claiming under the insolvent, whether as under sub-lessee or as mortgagee by demise except upon the terms of making such person subject to the same liabilities and obligations as the insolvent was subject to under the lease in respect of the property at the date when the insolvency petition was filed, and any mortgagee or under-lessee declining to accept a vesting order upon such terms shall be excluded from all interest in and security upon the properly, and it' there shall be no person claiming under the insolvent who is willing to accept an order upon such terms, the Court shall have power to vest the insolvent's estate and interest in the property in any person liable either personally or in a representative character, and either alone or jointly with the insolvent to perform the lessee's covenants in such lease, freed and discharged from all estates, incumbrances, and interests created therein by the insolvent.

137. All powers vested in any insolvent which he may legally exercise for his own benefit may be exercised by the trustee for the benefit of the creditors in such manner as tlie insolvent might have exercised the same, and the trustee may deal with any property to which the insolvent is beneficially entitled as tenant in tail in the same manner a~s the insolvent might have dealt with it, and sections 56 to 73, both inclusive, of the act of the session of thc third and fourth years of the reign of King Willism the Fourth, Chapter 74, " for the abolition of fines and recoveries, and for tlie eubstitution of more simple modes of assurance " as adopted and construed by The Estates Tail Act, 1881," shall ex tend and apply to proceedings under this Act as if those sections were here re-enacted and made applicable in terms to those proceedings.

138. The Court may, upon the application of the trustee, or of any purchaser from hkn of any p i t of the insolvent's cstate, if such insolvent shall not trv the validity of the adjudication, order the insolvent to join in any conveyance of such estate or any part thereof; and if he shall not execute such conveyance within the time directed by the order, such insolvent, and all persons claiming under him, shall be estoppcd from objecting to the validity of such conveyance, and all estate, right, or titlc, which such insolvent had therein, shall be as effectually barred by such order as if such conveyance had been executed by him.

139. In case of mortgages, whether legal or equitable, the mortgagee shdl be entitled to sell the property mortgaged by public auction, upon giving fourteen days' notice, in writing, containing

such

49' & 50' VICTORIE, No. 385.

such particulars as may be required by rule, to the trustee PART V.

of the insolvent's estate of his intentioq to make such sale, and of the proposed time and place of sale ; and the trustee shall, if so

join in the conveyance to the purchaser at the expense of the person making such request : Provided that the Court may, on r e q u ~ t of the trustee, at any time previous to the sale, make all order suspending such sxle, or requiring thc purchase-money to be paid into Court, pending any inquiry mto the validity of the mortgage, or make such othcr order, or alter or vary any order, or give such directions as to the payment of the costs of the application, inquiry, or order, as to such Court shall seem fit: Provided also that every mortgagee shall be at liberty to require the trustee of the insolvent's estate to sell the property comprised in his security by public auction, and generally to conduct the sxle thereof, and thereupon it shall be lawful for such mortgagee to bid and becnmtl the purchaser at such sale without any special ordcr in that behalf: Provided, however, that the trustee may require an undertaking by or on behalf of such mortgagee to bid at such sale such a sum of money as in the opinion of the trustee will cover and for the purpose of covering the cost of such sale.

140. If any insolvent shall have granted, conveyed, assurcd, or Mo%aged~pe*y may be redeemed be- pl~d6ed any real or personal estate, or deposited any deeds, upon fore the.

condition or power of redemption at a fbture day, by payment of money or otherwise, the trustee may, before the timc of the performance of such condition, make tender or payment of money or other performance, according to such condition, and after such tender, payment, or performance, such real or personal estate may be sold and disposed of for the benefit of the creditors.

141. The trustee may, with the approbation of the Court, Trustee may appoint

appoint thc insolvent to superin tend the management of the to manage

estate, or to carry on the insolvent's trade or business, and otherwise to aid him in administering the insolvent's estate and effects, in such manner and on such terms as he may think best for the benefit of the creditors.

142. The trustee shall be subject to the orders of' the Court in Trustee auhject to his conduct as trustee, and the Court may at all times summon the order of court.

trllstec. and require him to produce all books, papers, deeds, writings, *

and othcr documents relating to the insolvency in his possession or under his control, and direct him to pay and deliver over to the C)ffieid Receiver all moncys, books, papers, deeds, writings, and other documents which may come to his possession or be under his control as trustee.

143. The majority in value of the creditors present in person or Remuneration to by attorney or proxy, at any mceting for declaring a dividend may trustee.

allow to the trustee a sum by way of remuneration for his services : Provided that any sum so allowed shall be approved by the Commis- sioner, and shall not exceed five per cent. upon the amount apl~licable to the purposes of dividends under the insolvency.

E-385. 144, All

49' & 50' VICTORLE, No. 385

Moneys received by trustee to be paid into Court.

The Insolvent A c t . 1 8 8 6 . m

144. All moncys arising from the rc:disation of the estate shall be paid into Court by the trustee within ten days after receiving the same, together with a full statement of account relating thereto, and the trustee shall give the Official Receiver such further infor- .

mation with reference thereto as he may require ; and any trustee retaining in his hands any such money exceeding the sum of Twenty Pounds -for a period exceeding ten days, or failing to furnish such account, or failing to furnish the Official Receiver with such in- fornlation with reference thereto as he may require, shall suffer the following consequences, that is to say-

I. He shall pay interest at the rate of 'Cwenty Pounds per centum per annum on the amount of such moneys so retained by him, to be computed from thc timc or respective times of his rcccipt of suc'l~ moneys, and such interest shall be deemed portion of the estate for which such trustee is liable to account :

11. The Court inay also, unless he can show to the Court a sufficient reason for such retention of money, failure to furnish accounts or information, as the case may be, remove him from his office, and he shall then have no claim for remuneration :

The Court may also order him-

III. To pay to any creditor, or the Official Eeceiver, all costs and expenses incurred through such misconduct, default, or removal :

IV. To pay into Court, to the credit of the estate, a sum not exceeding One Hundred Pounds for every such misconduct or default.

145. The trustee in realising the estate shall, as far as practicable, Trustee to consult wishes of creditors as to realisation. consult the wishes of the creditors thereon, and for that purpose

- may summon meetings of the persons claiming to be creditors. and shall at all times furnish the Official Receiver with such information and particulars relating to the estate as the Official Receiver shall require.

Court may authorise 146. If any insolvent shall, at the timc of the adjudication be a trustee to sue in member of a firm, the Court may authorise the trustee to commence of insolvent and partner. or prosecute any action or other proceeding in the name of the trustee

and of the remaining partner against any debtor or otller perm11 against whom the firm may have a right of action; and such judgment or order may be obtai~~ed therein as if such action or other proceeding had been instituted with the consent of such partner; and any release of the debt or right of action given by such partner aftcr he shall have had notice of the trustee's intention to apply for such authority, or of the Court having granted same, shall be void. Notice of such application shall be given to such partner, by leaving the same at his last known place of business or abode in the said province, and he shall be at liberty to show cause

against

49' & 50' VICTORIAi, No. 385.

The Znsolvent A c t . 1 8 8 6 . - ~ains t it, and if no benefit be claimed by him by virtue of the said ]'ART V.

% &ion or proceeding, be shall be indemnified against the costs thereof in such manner as the Court may direct. The Court may order that so much of the proceeds or subject-matter of such action or proceeding as the Court may think fit be paid, delivered, trans- ferrcd, assigned,, or conveyed to such partner,

147. The trustee may commence, prosecute, or defend any action Trustee may commence or defmd

or other proceeding which the insolvent might have commenced and action.

prosecuted or defended, and shall be allowed, out of the estate, the costs to which he may be put.

148. The trustee may compound, give time, or take security Trustco pound, &C. may corn- for any debts due to the insolvent's estate, or any right of action belonging thereto, and tnay submit to arbitration any difference or dispute between the trustee and any other person relating t o such estate.

149. The trustee may, at his discretion, sell, assign, and convey Trustee may sell

all or a,ny of the real and personal estate of the insolvent, and also property OQ insolvent.

the books of thc insolvent relating to his trade, dealings, or estate.

150. All persons from whom the trustee shall have recovered Protection to persons doidling with truatco or rcceivcd any real or persoid estate shall, in the event of the ,,,,,dju,,on

petition for adjudication or the adjudication being dismissed, rcvcrsed, reversed.

or annulled, be relieved and discharged from all claims and demands which may thereafter be made in respect of such estate by the person adjudicated and all pcrsons claiming under him : Provided that in the c& of a person from wlrom such estate shall have been recovered or received, not under judgment or order of a Court, such person shall not have had noticc of any proceeding to dismiss, disputc, reverse, or annul the petition or adjudication, or such proceeding shall not have been commenced and prosecuted within the time and in the manner hereby provided.

151. If any trustee, indebted to the estate of which he is such Trustee's certificate not to free him from trustee in respect of money, being part of the estate of the insol- cl,i,, ,,ta,.

vent retained or employcd By him, become insolvent, and obtain his certificate, it s l d l have the effect only of freeing his person from arrest and imprisonment, but his future effects (his tools of trade, necessary household goods, and the necessary wearing apparel of himself, his wife and children excepted, not exceeding in value Thirty Pounds) shall remain liable for so much of such debt as shall not be paid by dividends undcr his insolvency, and for interest at the ratc of Eight Pounds per centum per amum on the whole debt.

152. If a trustcc shall, under any circumstances whatever, make Tnustees not to share

any arrangement for or accept from the insolvent, or m y solicitor, or charge commission.

auctioneer, or any other person that may be employed about an insolvency, or with whom any contract, express or implied, may be made in connection with any insolvency, any commission, discount,

share

4g0 & 50' VICTORIE, No. 385.


P*" v- . share of commission, or discount gift, remuneration, or pecuniary or other consideration or benefit whatever, beyond the remuneration fixed by the creditors, and payable out of the estate, or shall make any arrangement for givihff up, or give up, any part of his remuneration to the insolvent, or any solicitor or other person that may be employed about an insolvency, he shall be deemed guilty of a misdemeanor.

Trustee not to be paid additionally for ordinary duties.

Removal of trustee not to abate action.

153. Where a trustee receives remuneration for his services as such, no payment shall be allowed in his accounts in respect of the performance by any other person of the ordinary duties which are required by statuteor rules to be performed by himself.

154. Whenever a trustee shall die, resign, or be removed, or a new trustee shall be appointed, no action or procccding shall thereby be abated or ceasc ; but the Court in which any action or procccding is depending may allow any requisite substitution or addition, and such action or proceeding shall be prosecuted in such substituted name or in the added name jointly with the former.

If trustee bring action 155. If the trustee commence any action or procccding for any before time for dis- putinginsolvency has money due to the insolvent's estate beforc the time allowed for the e1a~8"* defendant insolvent to dispute thc insolvency shall have elapsed, any defendant map pay money into court. in any such action or proceeding may, after notice givcn to the

trustees, pay the same or any part thereof into the Court in which such action or proceeding is brought, and all proceedings with respect to the money so paid into Court shall thereupon be stayed until such time shall have elapsed. If within that timc the insolvent shall not commence proceedings adverse to the adjudication as provided by this Act, or if he shall not duly prosecute the same, the money shall be paid to the trustee ; but otherwise shall abide the event of such proceedings, and upon such event shall be paid either to the trustec or the person adjudged insolvent, as the Court shall direct, and after the payment into Court, the person so adjudged insolvent shall not proceed against the defendant for recovery of the same money.

PART VI.

PROPERTY AND TRANSACTIONS AFFECTED BY INSOLVENCY.

Reputed ownorship. 156. If any insolvent, at the time he becomes insolvent, shall, by the consent and permission of the truc owncr thcrcof, have in his posscssion, order, or disposition, any goods or chattels whereof he was reputed owner, or whereof he had taken upcn him the sale, alteration, or disposition, as owner, the Court shall haw power to order the same to be sold and disposed of for the benefit of the creditors under the insolvency.

157. Nothing

49' & 50' VICTORIW, No. 385.

TXe Insolvent A c t . 1 8 8 6 . _C

157. Nothing in the last preceding section contained shall in- PART VI.

0l. aff~ct- Protected transactions.

r. Any transfer or assignment of any ship or vessel, or any share thereof made as security for any debt or debts, either by way of mortwiwe or a~s i~n tnen t , duly registered ,? .B according t,o the provisions of an Act of the Imperial Yarliarncnt made and passed in the 17th and 18th years of thc reign of Her Majesty, called the " Mcrchctrits' Shipping Act, 1864," or any amendment thereof:

11. Any purchase or security duly perfected under the pro- +ions of an Act of the Governor and Legislative Council of the said provincc, passed on the 5th day of March, 1556, being No. 4 of 1855-6, intitulecl An Act to give a Prefcrnhle Lien on Wool from Season to Season, make Mortgages of Shccp, Cattle, and Horses valid, without delivery to thc BIor tgagee" :

III. Any duly registered bill of sale.

158. Any settlement of property made after this Act shall settlements. come into operation, not being a settlement madc before arid in consideration of marriage, or in pursuance of a binding contract pntered into before and in co~lsicleration of marriage, or made in favor of a purchaser or incutnbrancer in good faith a d for valuable conside~ation, or a settlement made on or for thc wife or children of the scttlor of property which has accrued to the settlor aftcr marriage, in right of his wife shall, if the settlor becomes insolvent a t any time within scvcn years after the date of the settlement, hc void against the trustcc in insolvency, unless thc partics claiming under thc scttl~ment c m prove that thc sc~tlor was at the time of making the settlement able to pay a11 his debts without the aid of the property comprised in the settlement, and that the interest of thc settlor in such property had passed to the trustee of such settlement on the execution thereof.

159. Any coveuant or contract made after this Act shall come Contracts to settle aftcr acquired into opcrntion in considcmtion of nrarriiige for the futurc scttlrment property.

on or for the scttlor's wife or cliildrcn of any money or property wherein he had not a t the date of his marriage any estate or interest, whether vested or contingent in possession or remainder, and not being money or property of or in right of his wife, shall, on his becoming insolvent before the property or money has been actually transferred or paid pursuant to thc coiltract or covenant, bc void against the trustee in insolvcncy.

160. Settlement skd l for the purposes of the two last preceding Definition of sections include any conveyance or transfer of property. settlement.

161. Every conveyance, transfer, or mortgage of property, or charge preferences Ayoidanceof in certain thereon made, every payment made, esery obligation incurred, and ca80s,

every judicial proceeding suffered by any person unable to meet his engagements

4g0 & 50" VICTORIZ, No. 385.

The Znsolvent A c t . 1 8 8 6 .

PART vr. engagements in favor of any creditor, or any person in trust for any creditor, wit,h a view of giving such creditor preference over the other creditors, shall, if the person making, incurring, or suffering the same is adjudicated insolvent on a petition presented within three months after the date of making, giving, incurring, or suffering the same, be deemed fraudulent and void as agminst the trustee. This section shall not affect the right of any making title in good faith and for valuable consideration through or under a creditor of the insolvcnt.

Rill of sale. 162. Every bill of sale for securing money givcn by any person then unable $0 meet his engagements, and afterwards becoming insolvent, shall, unless duly registered at least ninety days before the date of the filing of the insolvency petition agai~ist such person, be void, except as a security for an advance or loan made or agreed to be 'made at the time of the execution thereof.

Government securities, &C., in 163. If any insolvent shall have any Government securities, or any insolvent*sname,may shares, stock, or interest of or in any public company standing in his be orden' be name in his own right, the Court may urdcr all persons whose act or transferred to trustee.

consent is thereto necessary to tranifer the same into the name of the trustee, and to pay d i dividends upon the same to the trustee, and all such persons nre hereby indcmliifiecl for all things donc or permitted pursuant to such order.

C

Court may order goods seized to he

164. All goods of any insolvent which sllall at the time of the delivered to trustee. filing of the petition for adjudication be under seizure by virtue of

any process of any Court, shell, upon demalrd, be delivered up by all persons having the custody of the same to the trustee, and the Court may make order accordingly: Provided that the creditor, at whose suit such process shall have bem issucd, shall be entitled to receive from the trustee, out of the proweds of such goods, the actual costs of such process.

If in6olu-ententitled 165. If' any insolvent shall, as trustee, either dolie or jointly, as trustee to Governluent stock, be seized or possessed of, or entitled to, any real or personal estate,

COufi or any interest therein, or have standing in his mrne any Govern- tranufcr. merit stock, funds, or securities, or any stock of any public or incorporotcd company, the Supreme Court may, on the petition of the pcrson entitled in possession to the receipt of the rents, profits, or produce thereof, order the insolvent, and all persons whose act or consent thereto is necessary, to convey, assign, or transfer sueh estate or other premises to such pcrson as the said St~prerne Court shall think fit, upon the same trusts as the same were subject to before the insolvency, or such of them as shall be then subsisting and capable of taking effect ; and also to receive and pay over the rcnts, profits, and produce thcrcof as the said Supremc Court shall direct.

Title of purchnasr under insolvency not

166. No title to any real or personal estate sold under any insol- to beimpeached. vency shdl be impeached by the insolvent or any pcrson claiming

under

49O & 50" VICTORIW, No. 385. 39 -.

I'hc Insoleient A c t . 1 8 8 6 .

under him, in respect of any dcfect in the petition or adjudication, --. PAW or in any proceeding under the same, unless the petition shall have been dismissed, or adjudication reversed or annulled, as by this *4ct povided. ,

167. After the adjudication of insolvency, it shall be lawful for COW may order banker, &C., to the Court to order any trcasorer or other officer, or any banker, delivertotrustee,

practitioner of the Supreme Court, or other ageilt of the insolvent t o pay over and deliver to the trustee all money or securities tor money in his custody, possession, or power as such officer or agent, and which hc is not by law entitled to retain as against the insolvent or his trustee.

168. The following acts and transactions, if prior to the filing of Protected

the insolvency petition, shall be valid notwithstnnding any previous transactions.

act of insolvency - All payments really and bond $de made by any insolvent, or by

any person on'l~iis behalf, to any creditor of such insolvent:

All payments really and bond filXe made to aEy insolvent:

All conveyances and transfers by any insolvent bo@dJ;de made and executed:

All contracts, dealings, and transactions, by and with any insolvent, really and bond Jde rnadc and entered into :

All executions and attachments against the lands and tenements of any insolvent bond fide executed by sale :

All executions and attachments aqainst the goods and chattels of any insolvent bond j d e executed and levied by seizure and sale :

Provided the person so dealing with such insolvmt, or paying to or being paid by such insolvent, or at whose suit or on whose account such execution or attachment shall have been issued, had not, at the time of such payment, conveyancc, contract, dealing, or transaction, or at the time of so executing or levying such execution or attachment, or at thc time of making any sale thereunder, notice of any prior act of' insolvency committed by the insolvent.

169. Nothing in the preceding section contained shall give NO ~rotection when validity to any payment, conveyance, transfer, contract, dealing, or "audule"t preference.

transaction, which is a fraudulent preference, or any execution or attachment founded on any judicial proceeding obtained by consent, and given by an insolvent b) way of fraudulent preference.

170. Every Judge's order made by consent given after the corn- Registration of Judge's order made mencement of this Act by any defendant in any action, except for by

the recovery of land, and whereby the plaintiff in such action shall be authorised forthwith, after the making of such order, or at a future time, to sign and enter up judgment, or to issue or to take out

cxecution

49' & 50' VICTORIE, No. 385


VI. execution in such action, and whethcr such order shall be made subject to any defeasance or condition o r not, shall be deemed fraudulent and void against the trustee of any insolvent, unless the same shall be registered in the manner prescribed for the registration of warrants of attorney and cog~,ol:it nctionem in and by an Act of the Governor antl Legislative Council of the said pro. vince, made on nineteenth day of October, one thousand eight hundred and forty-one, and bcing No. 8 of that ycnr, intituled c c A n Act to provide for the Registration of Deeds, Wills, Judgments, Conveyances, and other Instruments."

PART VII. PART VTI.

INSOLVENTS' EXAMINATIONS ,4ND CERTIFICATES. Last oxidnation of insolvent. 171, At, every sitting for the last exnrnination of the insol-

vent the Court shall examirie the balance-sheet and schedule of the insolvent, and inquire into his dealings and transactions and as to his property and effects, upon the oath of the insolvent and of such witnesses as the Court shall think fit, and shall receive the accountant's report thel-eon ; and the Official Receiver and trustee, or either of them, without notice, and any creditor of the insolvent, antl any creditor to whom the insolvent is indebted, jointly with any partner or partners, may, if he shall have given notice to the insolvent, as prescribed by rule, be heard rcspccting thc certificate to be awarded to the insolvent, and respecting the commission by the insolvent of any of the offences hereinafter mentioned, and the punishment to be awarded therefor, and for that purpose may put such questions to the insolvcnt and cxnnline; such witnesses as the said Court shall think fit, touching the dealings and transactions of such insolvent, and his property and effects. When any last examination shall bc adjourncd for any spccial purpose the same shall be mentioned in the minute of adjournment, and no matters shall be considered at the adjourned examination other than those mentioned in such minute.

Court may award certificate. 172. After such examination shall have been finished, the Court

may award to the irisolvent a certificate as hereinafter provided, a d thereupon the insolvcnt, if in prison a t the suit of th'c Official Receiver, shall be discharged, and if out on bail, the recognizances of his sureties shall become void.

Court may adjourn examination s i w die. 173. If at any sitting of the Court for the last examination of the

insolvent it shall appear to the Court that the insolvent has, or is suspected to have, &)r real or personal property, which the i n s o l ~ t shall neglect or refuse to make available for division amongst his creditors, the Court may adjourn such examination sine die ; and in such case the insolvent shall be free from arrest or imprisoll- ment for such time (it' any) as the Court shall, from time to time, order; and the insolvent, while not protected by the Court from arrest, shall be liable to be arrested arid imprisoned at the suit of any of his creditors. 174. The

49O & 50' VICTORIE, No. 385. 41 -

The Insolvent Act.1886.

174. The Official Receiver shall, nine days at least before the PART

sitting appointed by the Court for the last examination of the ofioid Receiver to insolvent, cause notice of such sitting to be given in manner givenoticeofl"t examination. directed by rule, to every creditor of the insolvent whose debt shall amount to Ten Pounds, or to the agent of each such creditor who shall be resident out of the said province, so far as such creditor or agent, or his address, shall be known to him.

175. If any insolvent shall have committed any of the offences Impriaanrnont of

in this section mentioned, the Court, may at the timc of awalding a certificate to the insolvent, whether such certificate be one awarded after the last examination of such insolvent, or one awarded in lieu of 3 certificate that has been recalled in pursuance of this Act, by order adjudge such insolvent to be imprisoned with or without hard labor, at the suit of the trustee as such judgrnent creditor as hereinafter mentioned, for any period not exceeding three years, to bc computed from the date of such order; and the messenger of the Court shall, upon 'eceiving the warrant of the Court thereon, lodge the insolvent in gaol-

r. If the insolvent shall, at any time, in contemplation of ne8troyina bookl.

or after adjudication of insolvency, with intent to conceal the state of his affairs, or to defeat the object of the Law of Insolvency, have destroyed any book, paper, deed, writing, or other document relating to his trade, dealings, or estate :

11. If the insolvent shall, with the like intent, have kept or Keepingfalse books.

caused to be kept, false books, or have made false entries in, or withheld entries from, or wilfully altered or falsified any book, paper, deed, writing, or other document rclatirig to his trade, dealings, or cstate :

m. If thc insolvent shall, by any manner of fraud or by means Contracting debt# by fraud or false pre- of false pretences, have contracted any debt or obtained

from any creditor the forbearance of any debt :

IT. If thc insolvelit shall have contracted any debt without Contracting debt without expectation having any reasonable or probable expectation of pay- of P,,,.

ment at the timc when the same was contracted. The receipt of any money, goods or chattels by the insolvent from the person with whom such debt was contracted, such money, goods or chattels, being the subject-matter of such debt, shall not necessarily be deemed to have given the insolvent reasonable or probable expectation of payment :

v. If the insolvent shall, at any timc within two months next ' J l l d u e ~ s r e n c e -

preceding the filing of the petition for adjudication of insolvency, fraudulently, in contemplation of insolvency, and not under any pressure from any of his creditors, with

in tent

49' & 50" VICTORIE, No. 385 --.p- -

The Insolwent A c t . 1 8 8 6 , -

PART ~ 1 1 . intent to diminish the sum to be divided among his creditors, or, to give an undue preference to any of his creditors, have paid or satisfied any such creditor wholly or in part :

Concealment or making away with property.

VI. If the insolvent shall at any time after the filing of t h e petition for adjudication of insolvency, and wit h in tent to diminish the sum to be divided among his creditors, or to give an imdue preference to any of his creditors, have concealed from the Court, or the trustee, any debt due to or from him, or have concealed or made away with any part of his property of' what kind soever, the offence of concealing property or debts shall be complete on the first concealment, and shall not be condoned by subsequent restitution or disclosure :

Accounting for V I T . If the insolvent shall undcr his insolvency, or at any meeting property by fictitious loeees. of his creditors within three months next preceding the

filing of the petition for adjudication of insolvency. have attempted to account for ailY of his prop~rty bp fictitious losses or expenses :

Putting creditor to VIII. If the insolvent shall, within six months next preceding the expense by frivolous defence to action. filing of the petition for adjudication of insolvency, haw

put any of his creditors to any unnecessary expense by any vexatious and frivolous dcfencc or delav to anv action for the recovery of any debt or demand 1;rovablk under his insolvency, or shall be indebted in costs incurred in any action so vexatiously and frivolously defended :

Withholding books, writings, &C.

IX. If the insolvent shall at any time after the filing of the petition for adjudication of insolcencv have wilfully pre- vented or \I-ithhcld the production dt' any book, paper, deed, writing. or other document relating to his t,rade, dealings, or estate :

Omitting to keep X. If the insolvent shall, wilfullv and with intent to conceal books, or beeping same imperfectly, &C. the true state of his affairs, 'have omitted to keep proper

books of account, or havc kept his books imperfectly, carelessly, or negligently :

Gaming andtimebar- xr, If the insolvent shall at any time within one year next gains. preceding the filing of the petition for adjudication uf

insolvency havc lost by any sort of c*arning or wagering 8. in one day Twenty Pounds, or mitlm such pear Two

Hundred Pounds :

pmperty X I I . If the insolvent shall, otherwise than in the way of his trade, obtained on credit otherwise than in way have pawned, pledged, or disposed of m y property which of trade. he shall have obtained on credit and shall not have paid

for, unless the Court shall be satisfied that he had no intent to defraud :

49' & 50 VICTORIE, No. 385. 43 _.---c-


~ 1 1 1 . If thc insolvent shall at any time within six months next PART YII

preceding the filing of the petition for adjudication of Fraudulent disposal insolvencv, fraudulently, in contemplation of insolvency, of property.

and not &drr any pressure from any of his creditors, with intent to diminish the sum to be divided amongst his clwiitors, have made away with, mortgaged, or charged any part of his proprrtp of whad kind soever.

176, The ORicial Receiver shall have power with the approval Official Receivers'

of the Court, to proceed with charges against the insolvent, and the ~ ~ ~ ~ , P ~ ~ ~ ~ ~ ~ ~ , " ~ ~ ~ costs thereof shall be paid out of the unclaimed dividend fund. so dividend fund. far as the insolvent's estate shall be insufficient for that purpose. '

177. If' any insolvent shall have made a full disclosure of his First-c1ass ce*ificate estate and effects, and in all tlrings conformed to the law of insolvency, arrd conducted himself to the siltisfaction of the Court since his surrender, and shall not be fonnd to h a v e committed any of the offcnccs mentioned in section 175, and if the Court shall be satisfied that his insolvency has arisen from unavoidable losses or misfortunes, and that such insolvent has not on any former occasion been insolvent within the said province, the Court shall award to the insolvent ii c~rtifir:;ite of the Court to be called a first-class certificate, which certificate shall discharge the insolvent from all provable debts.

178. If any insolvent shall have made a full disclosure of his ce*i6-

estate and effects, and in all things conformed to the law of insolvency, but slmll not havc conduc terl himself to the entire satisfaction of the Court since his surrender, or if he shall havc committed any of the offeuces mentioned in section 175, or if he shall on any former occasion have been insolvent, 014 if his insolverlcy has not wholly arisen from unavoidable losses or misfortunes, or if the trade, busiaess, or employment of the insolvent has been carried on without proper supervision, or without keeping proper boolrs of account, or if he has postponed longer than was excusable, or has neglected the committing of an act of insolvency by filing a declaration of insolvency, the Court shall award to such insolvent a certificate, to be called a second-class certificate, which shad1 discharge the insolvent from all provable debts.

179. The Court may suspend the operation of any second-class Suspension of second- certificate, so far as regards the insolvent's future estate and effects c~ass certificate.

for a period not exceeding three years, and in such case shall retain the certificate dur~ng the period of suspension. If any such insolvent has, within ten years from the filing of the insolvency petition h e n previously insolveut within thc said province, and if the estate has not paid Ten Shillings in the pound, such certificate shall be suspended for onc year.

180. If any insolvent shall not have made a full disclosure of his ~hird-classce~ti~cate estate and effects, or shall not otherwise, to the satisfaction of the Court, havc conformed to the law of insolvency, the Court shall

award

44 49' & 50' VICTORIA?, No. 385. - . - .. -- - - - - - - -- - -_

The lnsolv~nt A c t . 1 8 8 6 .

PART m. award to such insolvent a certificate, to be called a third-class certificate, which certificate shall dischltrge the insolvent .from all provable debts ; but the future estate and effects of such insolvent shall at any time be liable to be seized and taken in execution by the trustee, as such judgment creditor, as hereinafter mentioned.

Insdventnot entitled 181, An insolvent shall not be entitled to pass his last exami. to pass examination until estate dis- nation until his estate has been realised and distributed ; but the tributed. Court may, on being satisfied that he has duly surrendered his

property, and that there is no further occasion for his services in the insolvency, conclude the examination, and award him a certificate : Provided that after the day appointed for the last examination of an insolvent he shall be free from arrest at the suit of the Official Receiver or of any creditor in respect of any debt provable under the insolvcncy, unless the Court shall otherwise order,

Certificate not to 182. No certificate awarded to any insolvent shall release or release insolvent's partner. discharge any person who was a partner with such insolvent, or was

jointly bound with or had made any contract jointly with such insolvent.

Contract to forbear 183, Any contract or security made or given by any insolvent opposition void. or othcr person to or in trust for any creditor, with intent to

persuade such creditor to forbear opposing the awarding of' a. first or second class certificate, or to forbear to petition for the recall of any certificate already awarded, or to forbear being heard respecting the adjudging of' the insolvent to be imprisoned, or as a consideration for any such forbearance, shall be void, and the money thereby secured or agrced to be paid shall not be recoverable, and the patty sued on such contract or security may plead generally that he is not liable by virtue of this section, and give this Act and the special matter in evidence.

After certificate 184. No insolvent, after his certificate shall have been awarded, insolvent not liable for provable debt. shall be liable to pay or satisfy any provable debt, or any part of

such debt, upon anv contract. ~~rurnise. or agreement, made after the filing of ihhe petkition for adjidicatiod of iGolvcncy and if any insolvent be sued upon any such contract, promise, or apeen~cnt, he may plead generally that he is not liable by virtue of this section, and give this Act and the special niatter in evidence.

Insolvent arrested after certificate awarded to be discharged on ontry of appearance.

185. Ally insolvent who, after his certificate has been awarded, shall be arrested, or have any action brought against him for any provable debt, shall be discharged upon entering an appra.rance, and may plead in general .that thc cause of action accrued before he became insolvent, and may give this Act and the special matter in evidence, and the certificate of the Court shall be conclusive evidence of the insolvency, petition for adjudication of insolvency, and other proceedings precedent to the date of such certificate ; and if any such insolvent shall be taken in execution, or detained in prison for S U C ~ debt, claim, or demand, whcre judgment has been obtained

before

49' & 50' VICTORIE, No. 385. __-- - -- L -- -- - .

The Insolvent Act.-1886. 1 _ _-- pp- p .-- P

before the awaxding of his certificate, any Judge of the Court wherein .udgment has been so obtained, on thc insolvent producing his J certificate, may order any person who shall have such insolvent in custody by virtue of such execution to discharge such insolvent

exacting any fee.

186, No such certificate shall be delivered to the insolvent until the expiration of the time allowed for entering an appeal, and

if an appeal be duly entered against the judgment of the Court as the awarding of the certificate, or the class or suspension

thereof, and notice of such appeal be duly given to the Court, the certificate shall be kept by the Court to abide the judgment of the Supreme Court.

187. When it shall appear to the Court that the insolvent is indebted to any creditor residcnt out of the jurisdiction of the Court who shall not hnvc proved his debt, any certificate awarded to the insolvent sl~all be provisional only fbr such period as the Court shall think sufficient to enable each such creditor to be heard respecting the certificate to be finally awarded to such insolvent, and respecting the adjudging of such insolvent to be imprisoned.

Certificate not to be delivered until after time allowed for appealing.

When creditor out of the colony certificate to be provisional only.

188. The judgment of thc Court shall, except in the case of ~ ~ ~ ~ ~ $ & f ~ ~ ~ t appeal. be find and conclusive, unless the Court shall see good and grant rehearing. sufficient cause to grant a rehearing, in which case the Court may, upon the application of thc insolvent, of the trustee or Official Receiver, or of anv creditor of the insolvent, and subject to such order as to deposit bf a sum for costs and to notices to the insolvent and to creditors as the Court shall direct, grant a rehearing, and rchear the matter accordingly.

189. Upon such rehearing the Court shall have the same power, po-er~of COU* rehearing. as far as the case will admit, as upon an original hearing. If any

certificate previously awarded shall not upon such rehearing be confirmed, such certificate shall have no force or effect, and the Court may order the same to be delivered up to the Court and cancelled.

190. Where any irlsolven t has bccn adjudged to be imprisoned Trustee may release insolvent adjudged to at the suit of the trustee as judgment creditor, the trustee may, impriaooed.

by leave and upon the order o i the Court, discharge such insolvent from execution.

191. When any insolvent shall have passed his last examina- ~ ' ~ , " n ~ ~ ~ d ~ ~ f " " a tion, the trustee shall be deemed a judgment creditor of the insolvent for the total amount of the debts which shall by the accounts relating to the insolvent's estatc appear to be due to him from his creditors, and the Court shall, on the application of the trustee, grant a certificate of such judgment under seal.

192. Except whcre a first-class certificate has been awarded, or Trustee may enter UP judgment in Supreme court.

49' & 50" VICTOKIE, No. 385

The I?z.roEcent Act -1886. -.p - .- - - -. -- --

p~~~ vlr* - - a second-class certificate has been awarded without suspension, the trustee may enter up judg.mmt on the said certificate of j-udgment in the Supreme Court m the prescribed form, and such judgment shall be a judgment of the Supreme Court.

Court may permit execution on judgment.

193. If at any time it shall appear to the satisfaction of the Court that the insolvent is able to pay such judgnient, or any part thereof, the Court may permit, execution to be taken out upon sucll judgment, either for ill; whole amount or for soch sum as, having regard to all the circu~nstances of the case, the Court shall order, and such further proceedings may be had upon such judgment as the Court may, from time to time, direct, until the whole of such judgment shall be paid, together with such costs as the Court shall ordcr, and such judgment need not be revived on account of lapse of time, but executibn may at any time issue there011 by order of the Court, and the production of m y such certificate and an order of the Court to the proper officer of the Supreme Court shall be sufficient authority to him to issue and seal the necessary writ. In case any applkation for leave to issue execution under this section shall appear to the Court to be ill-founded or vexatious, the Court may dismiss the application with such costs against thc trustee as the Court shall order. The estate and cffects acquired by, or which may devolve on: any insolvent after thc date for which his certificate has been suspended, shall not bc liable to be seized under any cxecution issued under this section.

Trustee for time being same powers 194. The trustee for the time being may issue and enforce as original trustee. execution upon any judgment under section 193, as fully to all

intents and purposes as the trustee who entered up judgment.

PART VIII.

ADMINISTRATION OF ESTATES. C*~tormayprope. 195- At the sittings appointed by the Court for the choice of

trustee, and for the last examination of the insolvent, and at every adjourned sitting held for either of such purposes, and at every other sitting under the insolvency whereof, and of the purport whereof ten days' notice at least shall have been given in the Ouvernmen.t GaxettP, evrry creditor may prove his deht either viud coce or by furnishing an affidavit to the Court verifying an account showing particulars of his debt. The Court may, however, dispense with such particulars on such conditions, i f any, as it shall think fit.

*gent m q P W V ~ on 196. The agent, servant, or clerk of any creditor may prove a debt. behalf of pincipal.

and shall swear that he is such agent, servant, or clerk, and that hc is authorised to make such proof.

hoof not to be filed 197, No proof of debt by affidavit shall be filed of record as a until allowed by court. proof until allowed by the Court ; and the Court rnny examine upon

oath any person claiming to prove any debt, or may require such further pioof, and examine soch other persons in relation thereto as the Court shall think fit. 198. Every

$ 49' 8: 50' VICTORIW, No. 385.

The Insolvent Act.-1 $86.

198. Xvery person with whom any insolvent shall have bonir jde vllI.

any provable debt before the filing of the petition for Bona$dscreditom entitlecl to prove,

of insolvency shall, notwithsta.ndir1~ any prior act of insolvency committed by such insolvent, be admitted to prove the act of insolvency. %me as if no such act of insolvency had been committed.

199. The following provisions shall apply in the case of a securea creaitom. holding security over property of the insolvent-

I. If n secured creditor realises his security he may prove for the balance due to him after deducting the nct amount realised :

11. If a secured creditor surrenders his security to the trustee for the general benefit of the creditors, he may prove for his whole debt :

1 1 1 . If a sccurecl creditor does not cithcr realise or snrrcnder his security he shall state in his proof thr particidrzrs of his security, the date when it was given, and the value at which he assesses it, and shall be entitled to receivc a dividend only in respect of the balance due to him after deducting the valuc so assessed :

IV. TFThel.e a security is so valued thc trustee may at any time redeem it on payment to thc creditor of the rtsscsscd value:

v. If the trustee is dissatisfied with the value at which a security is assessed, he may require that the properLy comprised in any security so valued be offered for sale at such times and o n such terms and conditions as may he agreed on between the creditor and the trustee, or as, in default of such agreement, the Court may direct. If the sale be by public auction the creditor or the trustee an behalf of the estate may bid or purcllasc :

vr. 'l'hc creditor may at any time, by notice in writing, require the trustee to elect whether he will or will not exercise his power of redeeming the security or requiring it to Isc realised, and if the trustee does not, within three months after receiving the notice, signify in writing to the creditor his election to exercise the powcr, he s l d l not be entitled to exercise it, and the equity of redemption, or any other interest in the property comprised in the security which is vested in the trustee, shall vest in the creditor, and the amount of his debt shall be reduced by the amount at which the security has been valued:

VII . Where a creditor has so valued his security hr may at any time amend the valuation and proof' on showing to the satisfaction of the trustee or the Court that the valuation and proof were made bond $de on a mistaken estimate, or that the security has diminished or increased in value since its previous valuation ; but every such amendment shall be made at the cost of the creditor, and upon such terms as

the

49'' & 50" VICTORIA$ No. 385


PART vm. e the Court shall order, unless the trustee shall allow the

amendment without application to the Court:

vIrr. Where a valuation has been amended in accordance with the foregoing subsection, the creditor shall forthwith repay any surplus dividend which he may have 'eceived in excess of that to which he would have been entitled on the amended valuation, or, as the case may be, shall be entitled to br paid out of any moncy for the time being available for dividend, any dividend or share of dividend which he may have failed to receive by reason of the inaccuracy of the original valuation, before that money is made applicable to the payment of any future dividend ; but he shall not be entitled to disturb the distribution of any dividend declared before the date of the amendment:

IX. If a creditor, after having valued his security, subsequently realises it, or if it is realised under the provisions of sub- section v., the nct amount realised shall be substituted for the amount of any valuation previoasly made by the creditor, and shall be treated in all respects as an amended valuation made by the creditor:

X. If R secured creditor does not comply with a l l the foregoifig subsections, so fir as applicable, he shall be excluded fkom all share in any dividend :

xr. Subject to the provisiocs of sub-section W., a creditor shall in no case receive more than Twenty Shillings in the pound, and interest as provided by this Act.

Distreas for rent not 200, No distress for rent. made and levied u y or1 the goods of any available beyond certain amount. insolvent, slid1 be available where the tenement is lct by the m c k ,

for more than four weeks' rent, or where the tenement is: let for any other term less than a year, for Inore than the rent accruing due in two terms of payment or where the tenement is let for one year or upwards, for more than a year's rent unless such goods shah have been bona' f de sold under such distress, previously to the filing of the petition for adjl~iication of insolvency ; but the landlord, or person to whom the rent shall be due, shall- be allowed to come in as ,z creditor for the overplus for which the distress shall not be available.

Proof by aervmt or clerk.

201. When any insolvent shall have been indebted at the time of the filing of the petition for adjudication to any servant or clerk of such insolvent, in respect to the wages or salary of such servant or clerk, the Court may, upon proof thereof, order so much as shall be due, not excecding three months' wages or sadary, and not exceeding Thirty Pounds, to be paid to such servant or clerk out of the estate of the insolvent, and such servant or clerk shall bc at libcrty to prove for any sum exceeding the amount ordered to be paid.

49' & 50' VICTORIW, No. 385- 7

The Insolven,t ,4ct.-1886.

202. When any insolvent shall have been indebted at the time of --- PART vm. the filing of thc petitiorl for adjudication to any laborer or workman ~roof by kborer or '

of such insolwot, in respect of the wages or labor of such laborer or w0rkm8n.

workman, the Court may, upon proof thereof, order so much as shall be due, not exceeding Six Pounds, to be paid to such laborer

workman out of the estate of such insolvent, and such laborer or workman shall be at liberty to prove for any sum exceeding

amount.

203. Where any person shall have been an apprentice to an ~ m o f b y crppmntiae. insolvent at the time of the filing of the petition for adjudication the filing of such petition shall be a discharge of the indenture whereby such apprentice was bound ; and if any sum shall have been bond j d e paid bp or on behalf of such apprentice to the insolvent as an apprentice fee, the Court may, upon poof thereof, order to be paid out of the cstate of the insolvent to, or for the use of, such apprentice any sum, which the Court shall think reasonable, regard being had, in estimating such sum, to the amount so paid by or on behalf of such apprentice, and to the time during which such apprentice shall have served under such apprenticeship previously to the filing of such petition.

204. Where there has been mutual credit given by the insolvent ~ ; " , ; ~ ~ ; e ~ ~ f l . and any other person, or where there are mutual debts between the insolvent and any other person, the Court shall state the account between them, and one debt or demand may be set against another, notwithstanding any prior act of insolvency committed by such insolvent before the credit given to or the debt contracted by him, and what shall appear due on either side on the balance of such account, and no more, shall be claimed or paid on either side respcctively, and every debt or demand hereby made provable against the estate of the insolvent may also be set off in manner aforesaid against such estate, provided that the person claiming the benefit of such set-off had not, when such credit was given, notice of an act of insolvency by such insolvent committed.

205. h y person who shall have given credit to the insolvent Creditor giving credit may prove for debt aa upon valuable corlsideration for any money or other matter or thing if ,,ae pre8ently,

wl~atsoever, which shall not have become payable when such insolvent committed an act of insolvency, and whether such credit shall have been given upon any bill, bond, note, or other negotiable security or not, shall be entitled to prove such debt, bill, bond, note, or other security as if the same were payable presently, and receive dividends thereon less a proportionate rebate of interest at a rate according to any special rate paid or allowed, or agreed to be paid by the insolvent, or if there shall be no such rate, at the rate of Eight Pounds per centum per annum, to be computed from the declaration of a dividend to the time such debt would become payable according to the terms upon which i t was contracted.

206. Any person who at the time of the filing a petition for S W ~ Y O ~ M ~ Y stand in plsce of adjudication .mdiwr or

49' & 50' VICTORIW, No. 385.

O bligee in bottomrp 0; reapoladentia bond may prove.

Annuity creditor may prove.

, Position of surety of annuity granted by insolvent.

The Insolvent ,Act.-1886.

adjudication of insolvency shall be surety or liable for any debt of the insolvent, or bail for the insolvent, either to the Sheriff or to the action shall, if he shall have paid the debt, or any part thereof in discharge of the whole debt (although he may have paid the same after the filing of the petition for adjudication), if the creditor shall have proved his debt, undcr the insolvency, be entitled to stand in the place of such creditor as to the dividends and all other rights under the itlrcolvency which such creditor possessed or would be entitled to in respect of such proof; or if the creditor shall not have proved, such surety or person liable, or bail shall Fe entitled to prove his demand in respect of such payment as a debt under tne insolvency, not disturbing the former dividends, and may receive dividends with the other creditors, although he may have become surety, liable or bail as aforesaid, after an act of insolvency committed bp the insolvent: Providcd that such person had not, when he became surety or bail, or so liable as aforesaid, notice of any act of insolvency committed by such insolvent.

207, The obligee in any bottomry or ~espondentia bond, and the assured in any policy of insurance made upon good and valuable consideration shall be admitted to claim, and after the loss or contingency shall have happened to prove his debt or demand in respect thereof, and receive dividcnds with the other creditors as if thc loss or contingency had happened beforc the filing of the petition for adjudication of insolvency against the obligor or assurer ; and the person effecting any policy of insurance upon ships, or goods (w~th any subscriber or underwriter), who shall become insolvent shall be entitled to prove any loss to which such insolvent shall be liable in respeet of such subscription, although the person so effecting such policy was not beneficially interested in such ship or goods, in case thc person so interested is not within the said province.

208, Any annuity creditor of any insolvent, by whatever assurance the annuity may be secured, and whether there mere or were not any arrears of the same due at the insolvency, shall be entitled to prove for the value of such annuity, which value the Court shall ascertain, regard being had to the original price given for such annuity, and to such diminution in the valuc thereof as shall have been cnlised by thc lnpsc of time since the grant thereof to the date of the filing of the petition for adjudication.

209. It shall not be lawful for any person entitled to any annuity granted by any insolvent to sue any person who may be collateral surety for the pa.yment of such annuity until such annuitant, shall have proved against such insolvent's estate for the value of such annuity and for the arrears thereof; and if such mrcty, after such proof, pay the amount proved for, he shall thereby be discharged from all claims in respect of such annuity ; and if such surety shall not (before any payment of the annuity subsequent to the insolvency shall have become due) pay the sum so proved, he may be sued for the accruing p y n c n t s of such annuity w t i l such annuitant shall

have

49" & 50" VICTORIAi, No. 385.

The Ifisolvent. Act,-1886. - have been paid or satisfied the amount so proved for with interest PART vllI.

thereon at the rate of Eight Pounds per centum per annum from the time of notice of such proof and of the amaunt thcrcof being given to such surety, and after such payment or satisfaction such surety shall stand in'the place of such annuitaut in respect of such proof to the amount so paid or satisfied by such surety : Provided that such

shall bc cntitlcd to credit in account with such annuitant for any dividends received by such annuitant under the insolvency before such surety shall have fully paid or satisfied the amount so

210. If any insolvent shall, before the filing of the petition for pmOf of ,tin,nt

adjudication, have contracted any debt payable upon a contingency debt.

which shall not haw happened bcfore thc filing of such petition, the person wit11 whom such debt has been contracted may apply to the Court to set a value upon such debt ; and the Court shall ascertai~l the value thereof and admit such person to prove the amount so ascertained, and to receive dividends theveon ; or if such value shall not be so ascertained before the contingency shall have happened, then such person may, after such contingency shall have happened, prove in rcspcct of such debt and vcccive dividends with the other creditors, not disturbing any former dividends: Provided such person had not, when such debt was contracted, notice of any act of insolvency by silch insolvent committed.

211, All debts or liabilities, present or future, liquidated or un- ~ l l debts or liabilitiee deemed provable liquidated, certain or contingent, to which an insolvent shall be debts.

subject at the date of the filing of the insolvency petition, or to which he may become subject by reason of any obligation incurred previously to such date, shall be deemed provable debts : Provided that nothing herein contained shall apply to demands in the nature of udiquidated damages arising otherwise than by reason of a contract or promise.

212. An estimate shall be made according to the rules, so far as Trustee to make

they may be applicable, and when they are not applicable then, of proyable

at the discretion of the trustee, of the value of any such provable debt as aforesaid, and which by reason of its being subject to any contingency or contiugencies or for any other rcason does not bear a certain value.

213. Any person aggrieved by any estimate made by the trustee Person aggrieved by as aforesaid? may appeal to the Court, and the Court may, if it think trustee's estimate

may appeal to Court the value of the debt or liability incapable of being fairly eatimnted, makc an order to that effect, and upon such order being made such debt or liability shall for the purposes of this Act be deemed not to be a provable debt ; but if the Court think that the value of thc debt or liability is capable of being fairly estimated, it may direct such value to be assessed with the consent of all parties interested before the Court itself without the intervention of a jury, or if such parties do not consent, then by a jury, either before the Court

itself

49" & 50° VICTORIfi , No. 385. - -p. --P- \.

The Insolvent A c t . 1 886.

PART VIII. itself, or before some other. competent Court, and may give all - necessary directions for such purpose, and the amount of such value when assessed shall be a provable debt.

hbmst on provable 214, Upon all debts or sums certain, payable at a certain time or debts. otherwise, whereupon interest is not reserved and agreed for, and

which shall be overdue at the date of filing the petition for acljudi. cation and provable thereunder, the creditor shall be entitled to prove for interest at the rate of Eight Pounds per centum per annum up to the date of the filing of such petition from the time when such debts or sums certain were payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing giving notice to the debtor that interest will be claimed from the date of such demand.

Proof for costa 215. Any person who shall obtain in any legal proceeding any judgment, decree, or order entitling him to costs against a perso; who shall thereafter become insolvent, shall be entitled to prove for such costs, although not taxed at the time of the filing of the insolvency petition.

Rent to be provable 216, In all cases in which the insolvent is liable to pay any rcnt or as if due from day to day. othex payment falling due at fixed or stated periods, and the adju-

dication of insolvency shall happen at any time other than one of such fixed or stated periods, it shall be lawfill for the person entitled to such rent or other payment to prove for a proportionate part thereof up to the day of the adjudication of insolvency, in such manner as if the said rent or payment were due from drty to day and not at such fixed or stated periods as aforesaid.

creditor may prove 217. If any insolvent shall have contracted, before the filing of a f0rin8ament8unpaid when petition filed. petition for adjudication, anv debt payable by way of instalments, the

creditor may prove for the amount 'of such instalments remaining unpaid at the time of such petition.

proof in respect of 218. If any debtor shall, at the time of adjudication, be liable atinctcontracts. in respect of distinct contracts as member of two or more distinct

firms, or as a sole contractor .and also as a member of a firm, the circumstance that such firins are in whole or in part composed of the same individuals, or that; the sole contractor is also one of the joint contractors, shall not prevent proof and receipt of dividend in respect of such distinct contracts against the estates respectively liable upon such contracts.

Rate8 due tocommis- 219, The Court shall order payment out of the estate and effects doner of Wateraorb

c o o t i n , of the insolvent of all such rates as may be dae from him to Didriot Councilwith- the Commissioner of Waterworks, or to any Corporation or District in twelve month, to be paid in full. Council, at the time of his being adjudicated insolvent : Provided

such rates have become due during the twelve months immediately preceding the filing of the petition of adjudication.

220. 30

49' & 50" VICTORIE, No. 385.

220, No creditor to whom the insolvent is indebted in respect of PART w r r .

any provable debt undcr the in solvencv shall have any remedy Cgediwn bound by '

qainst the property or person of the insolvent in ~espect of such $,"2:yprn' debt, except in manner directed by this Act, but this section shall not affect the power of any creditor holding a secwity upon the

P ropcrty of the debtor, to redise or otherwise deal with such security in the samc manner as he would have been entitled to realise or deal with the same if this section had not been passed.

221, The Court may at any time after the presentation of an Court mayrestrain insolvency petition restrain f urther proceedings in any action, suit, vmeedin@.

ur other legal process against the debtor in respect of any provable debt, or it may ~ 1 1 0 1 ~ such proceedings whether in progress at thc commencement of the insolvency, or commenced during its continuance, to proccecl upon such terms as the Court may think just.

222. Whenever it shall appcnr to the trustee, or to any creditor court may expunge

who has proved a dcbt to the amount of Twrnty Pounds or up- proof- wardsj that any debt proved is not Justly due, either in whole or in part, such trustee or creditor may make representation thereof to the Court, and the Court may summon and examine upon oath any person who shall havc so proved, togetlw with any pwson whose evidence may uppcar to the Court to bc material, either in support of, or in opposition to, any such debt, and if the Court npon the evidence given on both sides, or (if thc person who shall have proved shall not attend to be examined, having been firbt duly summoned, or notice having been left at his last place of abddp), upon the evidence adduced by such trustee or creditor, shall be of opinion that such debt is not due either. wholly or in part, the Court shall hr. at liberty to cxpnnge the proof thereof, eitllcr wholly or in part: Providcd that such trustcc or creditor requiring such investigation shall, before it is instituted, sign an undertaking, to be filed with the proceedings, to pay such costs as the Court shall adjudge to the creditor who has proved such debt, such costs to be recovered by application to the Court, upon which an order for paynwnt thereof may he made by the Court.

223. Nu creditor having security for his dch t, or l ~ a v i i l ~ made Creditor haring security not to any attachment of the goods and chattels of the insolvent, shall receipemorethan

receive upon such security or attachment more than a ratable ratable PS* of debt-

part of such debt. except in respect of any execution levied by seizure and sale, or any mortgage of or licn upon any part of the property of such insolvent given before the filing of the insolvency petition : Provided always that nothing herein contained s l d be deemed to give validity to any bill of sale or judicial proceeding, declared t o be void by any ~rovision of this Act, or to any execution, seizure, or sale, levied. or made under or by virtue of any

judicial proceeding or bill of sale.

49" & 50' VICTORIE, No. 385.

Dividend.

- -\

The Insolvent Act.- 1886.

224. The Court shall, whenever it shall think fit, appoint a public sitting (of which public sitting, and of the purport whereof, ten days' noticc shall be given in the Gouer?zment Gazette) to audit the accounts of the trust& arid the Official Xeceiver, and at such sitting the trustee and Official Receiver shall each deliver, upon oath, s true account in writing of a11 money received by them respectively, and when and on what account, and how the same has been employed, and the Court shall examine such statement, and compare the receipts with the payments, and ascertain what balances have bccn from time to time in the hands of such trustee and Official Receiver respectively, and the Court may examine the trustee and Official Receiver, upon oath, touching the truth of such account, and may make therein all just allowances.

225. 'l'he Court shall, whcnevcr it shall think fit, when there are assets wherewith a dividend may hc made, appoint a public sitting (of which public sitting and of the purport mhercof, twcnty- one days' notice shall bc given in the Gvuernment Gazette) to order a dividend of the insolvent's cstate, and shall at such sitting make order for such part of the net produce of the insolvent's estate as it may think fit, to be forthwith divided amongst such creditors as have proved their debts under the insolvency, in proportion to their rcspcctivc debts, which order shall contain an account of the amount of thc debts proved, of the money to be divided, of how much in the pound is then ordered to be paid to the creditors, and of the money allowed by the Court to be retained, and of the reason for retaining the same ; and the Official Receiver, in pursuance of such order,'shall forthwith pay suck dividend in manner directed by rule relating to the modc of payment of dividends by the Official Receiver; but no dividends shall bc dcclared uilless the accounts of thc trustee shall have been first audited.

E"inal dividend. 226. If the insolvent's estatc shall not have been wholly divided upon the first dividend, the Court shall, within eighteen months after the filing of t.he petition fbr adjudication of insolvency, appoint a public sitting (whereof, and of the purport whereof; twenty-one days' notice shall bc given in the Gocornm~nt Gazette) to make n second dividend, and at such sitting, but after such an audit as is directed by this Act, shall order the balance in hand to be forthwith divided among such creditors as shall have provcd their debts, and such second dividend shall be final, unless any action or legal proceeding relating to the estate he depending, or any part of the estate be outstanding, or unless some othcr cstate or effects of the insolvent shall afterwards come to the hands of the trustee, in which case he shall, as soon as may be, convert such estate and effects into money, and within two months after thr same shall be corwcrted the same shall also be divided in manner aforesaid.

NO action to be 227. No action for any dividend shall be brought against any bmu8ht for aividend. trustee by any creditor who shall have proved under the insolvency;

but

49' & 50' VICTOKIE, No. 385

The Insolvent A c t . 1 8 8 6 . - .

but if the Official Receiver shall refuse to pay such dividend, the Court may order payment thereof with interest for the tinlc it shall have been withheld, and may also order the costs of the application.

228. The Court may, as often as may be expedient, direct any money which shall'be standing to the credit of the Official Receiver (herein called floatiug balnnc~) to he invested in the purchase of Government Securities, or lent to the Trustees of the Savings Rank of South Australia, or dcpsited at interest with any irlcorporated Baalr carrying ou hsiness in the said province, alld direct the sale or exchange of such Government Securities, or the withdrawal of the said moneys or any part thcrcof from such Banks, and the interest arising from such investment shall be paid to the Treasurer for the public use of the said province.

229. That all dividends not clnirned within six years from the declaring thereof, and also any undivided surplus of an insolvent's estate over and above the amount finally directed to be divided amongst the creditors of any insolvent, shall bc carried to an account to be called the " ~ n c l a i m e i Uividcnd Fond," and such fund, except where otherwise specially directed by this Act, shall, for the purposes of investment and realising, be deemed part of the floating balmcc before mention&i : .ind all dividends not claimetl within six years from the declarir~g thereof shall 110 t be after \vards claimable, unless the Court shall otherwise order, and shall be paid to the Treasurer for the public use of the said province, but on the order of the Court any unclaimed dividend s l d l be paid by tlle 'Creasnrer to the person named in such order,

230. Whenever the balance to the credit of any estate six years after the date of the petition for adjudication, whether a dividend has bccn declared or not, is less than Ten Pounds, or being more than Ten Pougds. is nc\-crthcless insufficient to pay the creditors a dividend of One Penny in tlic Pound, such balance shall be paid to the credit of the TJnclainzed Dividend Fund.

231. The Court may from time to time make such allowance to the insolvent out of his estate, until he shall have passed his last examination, as shall be necessary for the support of himself and family.

232. Every ihsolvent may retain the " excepted articles" rnen- tioned in section 126 ; and such excepted articles shall not be sold or disposed of in the insolvency, or be taken in execution at the suit of any creditor entitled to prove under the insolvency. An inventory of such excepted articlcs, with a valuation of thc same, and a certificate signed by the appraiser or other person making such valuation, attesting the truth thereof, and stating when and where such articles were seen and valued, shall be filed in Court ; and the reasonable expenses and charges of and for such valuation: when taxed, shall be paid by the Official Receiver out of the proceeds of the estate of the insolvent under the order of the Commissioner.

Floating balance to be invested.

Unclaimed Dividend Fund.

Transfer to Unolaimed Dividend Fund.

Allowance to insolvent for support.

Excepted articles.

4.9' & 50' VICTORIE, No. 385,

The Insolwnt Act. - 1886.

PABT V I I ~ . 233. If the estate of any insolvent after payment of or allowance Payment ofaurplus for all costs, charges, and expenses shall be sufficient to pay 'L'wenty to maolvent, Shillings in the Pound, and interest, as hereinafter mentioned, and

leave ;surplus, the court may order such surplus to be paid to such insolvent, his executors, administrators, or assigns, and every such insolvent shall be entitled to recover the remainder, if any, of the debts due to him. The interest to be: paid to creditors shall be as follows : As to debts legally carrying interest-interest shall be paid at the rate agreed on, or by law payable thereon, to be calculated from the date of the filing of the petition for adjudication, such interest, or a ratable proportion thereof, to be paid in preference to interest on other debts. As to all other debts, interest shall be paid from the said date at the rate of Eight Pounds per centum per annum.

Pasr ~x. PART IX. COMPOSITIONS AFTER INSOLVENCY.

Court may order 234, The Court may, at any public sitting under an insol- composition. vency, with the consent of a majority in number, and three-fourths

in value of the creditors present, in person or by proxy, order that a composition be accepted in satisfaction of the provable debts due to them from the insolvcnt, or that a scheme of arrangement of the insolvent's affairs be approved.

Notice of meeting, sub S. 2.

235. Such order'shall not be made unless there has been circu- lated among the creditors, not less than three days before the sitting, a notice stating generally the terms of the proposal for the composition or scheme.

Voting, sub S, 3. 236. Creditors whose debts do not amount to Five Pounds shall not be reckoned in number under this part of this Act.

OBcial Receiver to 237. On the application for such order the Official Receiver shall report. sub 8. 4. report as to the composition or scheme, and if the Court is of

opinion that the same is not reasouable, or not calculated to benefit the general body of creditors under the insolvency, or that the insolvent has committed any such misconduct as would justify the Court in ordering such insolvcnt to be irnprisoncd under this Act, the Court may refuse to order that the composition be accepted, or the scheme be approved, but otherwise shall make such order.

Order binding on 238. A composition or scheme so ordered or approved by the creditorrr, sub S. 6. Court shall bc binding on all the creditors, so far as relates to any

provable debts.

Order conclusive ae 239. The order of the Court shall be conclusive as to the validity " yalidity* of the composition or scheme, and shall, unless otherwise provided

in such order, vest all the real and personal property of the insolvent in the persons and on the conditions mentioned in such order; and

an!:

49O & 50' VICTORIS, No. 385.

The Insolvent Act.-1886, - m "L-

any such order vesting any real estate of the insolvent in any such P~~~ Ix-

ers sons shall be dcemcd a transfer of the same within the meaning: if the Real I'ropmty Act, or any other Acts for the time being regulating the transfer of real property, and shall entitle the person in whom the same is so vested to become the registered proprietor thereol.

240. The provisions of any composition or scheme under this Enforckgof order, part may be enforced by the Court on a motion made in a summary sub-sec. 7.

manner by any person interested.

241. Every order of Court ordering the acceptance of a con:- ~ f f e c t of order, position, or approving a scheme of arrangement, shall operate as an sub-sec. 8.

annulment of the adjudicaticn of insolvency and dismissal of the insolvency petition, but without affecting the validity of any ves ting order mder section 259. Such order shall operate to all intents and purposes as if the same were a certificate of the first class, arid shall bc conclusive evidence of the proceedings in insolvency, and the consent of the requisite creditors: Provided that if the insolvent makes default in payment of any sum due by him in pursuance of a composition or scheme under this part, the Court may, on application by the person to whom the sum is due, order that the insolvency be revived, and thereupon the insolvency so far as the insolvent ancl any estate remaining vested in him and undisposed of at the time of such order of reviver are concerned shall be revived, and continue as if the composition or scheme had not been accepted or approved.

PART X. OFFENCES,

(I.) If any insolvent shall not, upon the day limited for his sur- Not surrendering. render, and before three o'clock of such day, or at the hour and upon the day allowed him for finishing his examination after notice thereof in writing served upon him personally, or left at his usual or last known place of abode or business, and notice given in the Government Gazette of the filing of the petition for adjudication against him, and of the sittings of the Court (having no lawful impediment proved to the satisfaction of, and allowed by, the Court at such time), surrender himself to such Court, and sign or subscribe a surrender, and submit to be examined before such Court from time to time:

(11.) Or if any insolvent upon his examination shall not discover Not " 8 ~ 1 0 h . ~ 0"-

all his real and personal estate, and how and to whom, upon what consideration and when he disposed of, assignad, or transferred any of such estate, and all books, papers, and writings relating thereunto, except such part as shall have been really and bonci Jide before sold or disposed of in the way of his trade or business, or laid out in the ordinary expenses of his family : (111,) Or

g-as5.

4 9 O & 50' VICTORIW, No. 385.


PABT X. .-

(111 .) Or if any insolvent upon his examination shall not deliver N Q ~ delirering estate. up to the Court all such part of such estate as shall not

have been sold or dispos& of as aforesaid, and all bnoka, papers! and writings, relating thereunto as shall be in his possession, custody, or power (except the excepted articles mentioned in section 126) :

Embezrlementof $10. (m,) Or if any insolvent shall remove, conceal, or embezzle any part of such estate to the value of Ten Pounds or upwards, or any book of account, paper, or writing relating thereto, with intent to defraud his creditors :

Punishment. Every such insolvent shall be deemed guilty of felony and be liable to imprisonment, with or without hard labor, for any term not exceeding seven years.

Falsifying books, &c. 243, If any insolvent shall, after committing an act of insolvency, or in contemplation of insolvency, or with intent to defeat the object of the law relating to insolvents, destroy, alter, mutilate, or falsify any of his books, papers, writings, or securities, or make or be privy to the making of any false or fraudulent entry in any book of account or other document with intent to defrand his creditors, or any of them, cvery such insolvent shall be deemed guilty of misdemeanor, and on conviction be liable to imprisonment for any term not exceeding three years with or without hard labor.

Obtaining goods on oredit with intent

244. If any insolvent shall, within three months next preceding to defraud. the date of the filing of the petition for adjudication of iusolvency,

under the false color and pretence of carrying on business and dealing in the ordinary course of trade, obtain on credit from any other person any goods or chattels with intent to defraud the owner thereof, every such insolvent shall be deemed guilty of a niisdemeanor, and on conviction be liable to imprisonment for any term not exceeding two years, with or without hard labor.

.4bsconding with 245. If any insolvent, with intent to defraud, shall, after or within PmPew. four months before adjudication of insolvency against him, quit the

said province, and take with him, or attempt to make preparation for quitting the said province, and for taking with him any part of his property to the amount of Ten Pounds or upwards, which ought by law to be divided amongst his creditors, he shall be guilty of felony, punishable with imprisonment for a term not exceeding two years, with or without hard labor.

Qivbg fdae eriaenceb 246. Any person who shall upon any examination upon oath or affirmation, or declaration authorised or directed by this Act, or in any affidavit, or deposition, or solemn affirmation or declaration under this Act. or statement accompanying an assent, or made for the purpose of agsenting to a deed under Part XI. of this Act, wilfully and corruptly give false evidence, or wilfully and corruptly swear or affirm, or declare or state any thing false, being convicted thereof, shall be liable to the penalties of wilful and corrupt perjury.

247. The

4 4 & 50° VICTOKIE, No. 385. --

The litsolvent Act.--l 886. --

247, The Court shall have power to commit any person whom it may believe to have committed, or who may be chttrged before it with the conmission of any of the offences in this part specified, to take his trial at the criminal sittings of the Supreme Court, and to grant or refuse bail to such person.

248. If any insolvent, or the wife of any insolvent, or any debtor, or wife of any debtor, or if any other person shall refuse to be sworn, or if any of the aforesaid persons shall refuse to answer any lawful question put by the Court, or shall not fully answer any such question to the satisfaction of the Court, or shall refi~.se to sign and subscribe his or her examination when reduced into writing (not .having any lawful objection allowed by the Court) or shall not produce any books, papers, deeds, and writings, or other documents in his or her custody or power relating to any of the matters under inquiry, which any such person as aforesaid is required by the Court to produce, and to the production of which he or she shall not state any objection allowed by the Court, the Court may by warrant commit such person to prison, thert: to remain without bail until he or she shall do the required act; and if any person be committed by the Court for refusing to answer or for not fully answering any question put to hitn or her by the Court, such Court shall, in the warrant of commitment, specify every such question.

249. If any person so committed under the last preceding section shall bring any habens corpus in order to be discharged from such commitment, and there shall appear on the return of such habeas corpus any insufficiency in the form of the warrant by reason whereof such person might be discharged, the Court or Judge before whom such person shall bc brought by habeus corpus shall commit such person t o the same prison, thcre to remain until he shall do the required act, unless it shall be shown t o such Court or Judge by the person committed, that he has fully answered all lawful questions put to him by the Court, or if such person was committed for refusing to be sworn, or for not signing his examination, unless it shall appear to such Court or Judge that he had a sufficient reason for so refusing. Such Court or Judge shall, if required thereto by the person committed. in case the whole of the examination of the person so committed shall not have been stated in the warrant of commitment, inspect and consider the whole of the examination of such person whereof any such question was a part, and if it shall appear from the whole examination that the answer or answers of the person committed is or are satisfactory, such Court or Judge shall order the person so committed to be discharged.

2b0. If any person shall disobey any lawful rule or order of the Court, the Court may commit the person so offending to gaol, there to remain without bail or mainprize until such Court or the Supreme Court shall make order to the contrary.

Power to commit.

Refusing to be sworn or sign examination.

Person so committed not to be released on account of insufficiency of form of warrant.

Disobeying order of Court.

49' & 5oU VICTORIE, No. 385 -

The Insolvent Act.-1886. - -

PART X. 251, Any person who shall wilfully conceal any real or personal Concealing property estate of the insolvent and who shall not within forty-two days after of insolvent. the filing of the petition for adjudication of insolvency, discover such

estate to the Court or to the trustee, shall forfeit the sum of One Hundred Pounds, and double the value of the estate so concealed; and any other person who shall, after such time, voluntarily discover to the Court or trustee any part of such insolvent's estate, not before come to the knowledge of the trustee, shrtll be allowed Five Pounds per centum thereupon, and such furthcr reward as the trustee, with the consent of the Court, shall think fit to be paid out of the estate recovered on such discovery.

Obtaining property 252. If any creditor of an insolvent shall obtain any sum of for forbearing to oppose, &C. money, or any goods, chattels, or security for money from any person

as an inducement for forbearing to oppose, or for consenting to the certificate of such insolvent, or for forbearing to petition for the recall of the same, every such creditor, so offending, shall forfeit and pay for every such offence, the treble amount or value of such money, goods, chattels, or security so obtained.

officers taking fees 253, If any Commissioner, Official Receiver, Registrar, accoun- improperly. tant, clerk, messenger, trustee, or other officer or person whoso-

ever, shall, for any thing done. or pretended to bc done, under this Act, or the law relating to insolvents, or under color of doing anything under this Act or such law, frsuduleiltly and wilfully demand or take, or appoint or allow any person whomsoever to take for him, or on his account or for or on nccount of any person by him named, or in trust for him, or for any other person by him named, any fec, emolument, gratuity, sum of money, or anything whatsoever, other than is allowed by this Act, or such law as aforesaid, such person shall, on conviction, forfeit and pay a sum not exceeding Five Hundred Pounds, and be thenceforth incapable of holding any office or place under Her Majesty.

Forpingsignature of 254. If any person shall forge the signature of any Commis- officei or aed of Court, sioner, Official Receiver, Registrar, accountant, or other officer of the

Court of Insolvency, or of any Local Court of Insolvency, or shall forge or counterfeit the scar of any such Court, or knowingly concur in using any such forged or counterfeit signature or seal for the purpose of authenticating any such proceeding or document, or shall tender in evidence any proceeding or document with a forged or counterfeit signature of any Commissioner, Official Receiver, accountant, or other officer of any such Court, or a forged or counterfeit seal of any such the Court subscribed or attached thereto, knowing the same signature or seal to be forged or counterfeit, every such person shall be guilty of felony, and being convicted thereof shall be liable to be imprisoned for life, or for any term, with or without hard labor, and with or without solitary confinement.

*naehg adnaiae- 255* Any person who shall insert or cause to be inserted in the ment without authority. Government Gazette, or in any newspaper, any advertisement under

this

49' & so0 VICTORIJE, No. $35.

The Insolvent A c t . 1 8 8 6 . ye--

-

this Act, without authority, or knowing the same to be false in any material particular, shall be guilty of a misdemeanor.

256. If any keeper of a prison, or any gaoler to whose cus- Keper allowing tody any insolvent or other person shall be duly committed, shall

person to escape to forfeit $500.

refuse to receive such insolvent, or 0 t h person, or shall suffer him to escape, every such keeper or gaoler shall forfeit Five Hundred Pounds.

257. All sums of money forfeited under this Act, or by virtue of Application of any conviction for perjury committed in any oath, affirmation, or

forfelture.

declaration hereby directed or authorised, may, except when otherwise provided, be sued for by the trustee bf the insolvent connected therewith or interested therein, in the Supreme Comt or the Local Court of Adelaide, and the money so recovered (the charges of suit being deducted) shall, except where the contrary is provided by this Act, be paid to the credit of the Unclaimed Dividend Fund.

258. If any debtor shall, in any statement of assets or liabilities Wilful error or omis- submitted to a meeting of his creditors, make any wilful and material sion by debtor.

error or omission, he shall be guilty of a misdemeanor.

259. If any debtor, having executed any deed made in pur- Embezzlementb~ debtor. suance of Part XI. of this Act, or who shall thereafter cxccutc such

deed, shall remove, conceal, or embezzle any part of his estate and effects to the value of Ten Pounds or upwards, or anv books of account, papers, or writings relating thereto, with intent' to defraod his creditors, under such deed, every such debtor shall be deemed guilty of a misdemeanor, and be liable to imprisonment, with or without hard labor, for any tern1 not exceeding three years.

260. If any trustee under any deed made in pursuance of Part XI. T m ~ t e e e m b e z W ~ of this Act having executed such deed, shall remove, conceal, or embezzle any part of the estate of the debtor coming to his hands, possession, or control as such trustee, or by virtue of such deed, or any books of account, papers, or writings relating thereto, with intent to defraud the creditors of such debtor, every such trustee shall be deemed guilty of a misdemeanor, and be liable to imprisonment, with or without hard labor, for any term not exceeding three years.

261. Any information, summons, indictment, conviction, warrant, Descriptionof offence. Or other process shall be deemed to contain a sufficient description of the alleged offence, if such offence be therein described in the words ofthis Act, with such additions or variations as the circumstances of the case may require.

PART

49' & 50' VICTORIE, No. 385.


PART XI S PART XI.

COMPOSITIONS AND ASSIGNMENTS WITHOUT INSOLVENCY.

Meeting of creditors. 262. A meeting of creditors may be called by a debtor, his solicitor, or agent, by circulars delivered at or posted to the residence or place of business of each of the creditors not less than three nor more than ten days before the day of meeting. Such meeting shall be held at a time and place convenient to the majority in value of the creditors.

Stay of proceedings. 263. The Court of Insolvency, or any Local Court of Insol- vency, may, after the delivery or posting of the said circulars or any of them, and either before or after the meeting, on the application of the debtor or any creditor, order a stay of proceedings in any action, execution, or other legal process in respect of any debt or liability which would be provable under the insolvency if the debtor were adjudged insolvent, and may, at any time in its discretion, set aside such order. Such order, while in force, shall have the effect of atay- ing such proceedings until after such meeting, and any adjournment thereof :

I. I n the event of a resolution for a composition or scheme of arrangement being duly passed at such meeting or adjournment, in pursuance of the provisions hereinafter contained, the order shall have the effect of further staying such proceedings until the composition or scheme shall become binding on the creditors, or shall fail to be confirmed, or shall be rejected by the Court:

Ir. In the event of a resolution for a deed being duly passed at such meeting or adjournment, such order s l d l have thc effect of further staying such proceedings until the expiration of seven days from the passing of such resolution.

Frovisione as to meeting.

264. The following provisions shall be observed at all meetings of creditors held under this part of this Act-

Election of chairman. Sub sec. 3 and 4.

Statement of assets and liabilities.

I. The majority in number of the creditors present at such meeting, in person, by proxy, or by attorney, shall elect a chairman. The debtor shall attend such meeting, and submit a statement in writing signed by him of his assets and liabilities: Provided that if the debtor shall be in prison at the time of such meeting, it shall not be necessary for him to attend the same:

Peraons entitled to vote.

Ir. Every creditor may vote at such meeting, except in respect of an unliquidated or contingent debt or any debt the valne of which is not ascertained. Any certain debt payable an future shall, for the purpose of enabling the creditor to vote, be deemed payable at once:

111. For

49' & 50' VICTORIJE, No. 385. 7

The Insolvent A c t . 1 8 8 6 . -- -- m S ------p -W-.-

111. For the purpose bf voting a secured creditor shall, unless he Pda*

surrenders his security, state in writing the particulars of Secured creditor. his security, the date when it was given, and the value a t which he assesses it, and shall be entitled to vote only in respect of the balance (if any) due to him after deducting the value of his security. If he votes in respect of his whole debt he shall, in the event of n composition, deed of assignment, or insolvency resulting from the meeting, be deemed to have surrendered his security, unless the Court, on application, is satisfied that the omission to value the security has arisen from inadvertence :

IV. A creditor shall not vote in respect of any current bill of Creditor on current hill, discounted by exchange or promissory note held hy him under discount, him, muat trent

unless he is willing to treat the liability of every pcrson security the liability of pereon antecedently who is liable thereon antecedently to thc debtor, and who liable to debtor.

has not made st composition, or deed of assignment, or been adjudicated insolvent under this Act, as security in his hands, and to estimate the value thereof and deduct the same from his proof, in which case he shall, on application being made by any pcrson interested, give up such security for the benefit of the creditors of thc debtor upon payment of such estimated value : Provided always that such estimate (esccpt so far as the creditor may receive any payment as aforesaid in respect thereof) shall not prejudice the right of such creditor to receive from the estate of the debtor a dividend upon the whole amount of such bill or note :

v. The chairman of the meeting shall have power to admit or Chairman may admit or reject claim reject a claim to vote ; and may, for thc purpose of such ,O V,,.

meeting and any rcsolution p~,oposed thereat, in the event of any dispute as to the mount of a debt in respect of which any creditor claims to vote, determine such amount:

vr. A creditor may vote either i n person or by attorney appointed ~ttorney or proxy by deed, or by proxy, such proxy to be appointed by instrument in writing signed by the creditor and attested,:

~ I I . The chairman shall at the meeting determine whether the Cha;lnanla decision

meeting has been held at a time and place convenient to to place and time of meeting being con-

the majority in value of the creditors, and his decision ~enient to bo final,

shall be final, unless shown to be not hod fide : unless not 6onaBde.

. WII. If the chairman shall decide that the meeting has not been If c b a b n decide V meeting not held at

held at a time and place convcnien t to such majority, the and meeting shall lapse : Provided that the creditors may pass nient to creditors, a resolution that such meeting shall not be deemed an act meeting to lapse.

of insolvency.

265. The creditors may, at such meeting, or any adjournment Meetingrayraalso to accept composition thereof, by an extraordinary resolution, resolve to accept a pro- or

of posal arrangement.

49" & 50' VICTORIE, No. 385. - The Insolrent Act.-1886.

- PART posal for a composition in satisfaction of the-debts due to them from

the debtor, or a proposal for a, scheme of arrangement of the debtorls

Compositionor scheme not binding d e a a

I. The composition or scheme shall not be binding on the confirmed, creditors unless the resolution for the same is confirmed - -

by an extraordinary resolution passed at a subsequent meet. ing of creditors or some adjournment thereof, nor until after the lapse of seventeen days from such confirmation, and in the event of the Court appointing a day to con. sider the composition or scheme, the same shall not be binding on the creditors until the Court has approved it:

8ubaequent meeting 11. The subsequent meeting shall be held not less than seven to be held. nor more than fourteen days after the passing of such

resolution, at a time and place to be appointed by the chairman of the first meeting, and shall be called by the debtor, his solicitor or agent, by circulars delivered at or posted to the residence or place of business of each of his creditors within three days from the passing of the reso. lu tion :

Certificates of resolution~, aigned by chairman, to be filed in Court.

m. The chairman of eech meeting shall sign a certificate in the prescribed form of the resolution passed at such meeting, and such certificates shall, within three days of the date of the last resolution, be7 filed in the ~ o h t nearest in a direct line to the place where such subsequent meeting was held, whether such Court be the Court of Insolvency or a Local Court of Insolvency, and shall, in the absence of fraud, be conclusive evidence that thi meetings were duly convened and held and the resolutions duly carried:

Creditor may apply to Court to appoint a

W . Any creditor may, within fourteen days from the filing of day to coneider corn- such certificate, apply to the Court to appoint a day to poaition or ~cheme. consider the composition or scheme, which dav shall not

be earlier than twenty-one days from such 'filing, and notice of such appointment shall be given by advertisement in the Government Gazette :

h p creditor, on V. Any creditor may, on filing in Court three days at least giving notice, may OPPOS~. before the day appointed a notice of his intention to oppose

the composition or scheme, be heard against the same; but the debtor and any creditor may, without notice, be heard in favor thereof:

court may reject VI. Tf the Court shall be of opinion that the terms of the composition or scheme composition or scheme are not reasonable or are not cab

culated to benefit the general body of creditors, or if any such facts are proved as would under this Act justify the Court i n the case of insolvency in refusing or suspending a second-class certificate, or in adjudging the insolvent t o be imprisoned at the suit of the trustee, the Court may, in its discretion, reject the composition or schemer

VII. The

49' & 50" VICTORIE, No. 385. --.--

The Insolcent A c t . 1 8 8 6 .

vlr. The Court may approve the composition or sohcme, ancl in IT.

such event, or if no creditor shall within the time limited Court may wrove composition or

for that purpose apply to the Court to appoint a day to @&erne.

consider the same, the comwosition or scheme shall be binding on all creditols so far & relates to any provable debts:

vrIr. Tf d e f d t be made in payment of any instalment iluc in cOu*mayannul composition or pursuance of the composition or schcme, or if it appears schurne.

to the Court that the composition or scheme cannot, in consequence of legal difficulties or for any sufficient cause, proceed without injustice or undue dclay to the creditors or to the debtor, or that the approval of the Court was obtained by fraud, the Court may, on the application of any creditor or of the debtor, annul the composition or scheme, but without prejudice to the validity of any sale, disposition, or payment duly made or thing ddaly done under or in pursuance of the same:

IX. In the event of any composition or scheme being rejected E ~ ~ , " ~ ~ ~ ~ ~ & o r or annulled under the preceding provisions, the order effect, if adjudication

of rejection or annulment shall not take effect unless obtiined.

adjudication of insolvency be obtained by or against the debtor within sewn days from the date uf the order :

X. Every person who would be entitled to provc in insolvency Per?# deemed creditors.

shall be cleemecl a creditor within the meaning of this section ; and in case therc s l d l bc any dispute i s to the right of any person to be deemed n creditor, or as to the amount of his debt, or the value of his security, the Court may settle such dispute.

266. The creditors may, by special resolution at any rnceting $ ~ ~ ~ ~ ~ ~ : under this part of this Act, or any adjouriiment thereof, resolve deed of aesignment.

that the debtor execute a dced of assignment under this part of this Act to a trustee to be named in such resolution.

267. If such resolution be carried zt certificate thereof, in the cl lair man'^ certificate of resolution to be prescribed form, signed by the chairman shall be filed in the filed in c,,,,t.

Court nearest in a direct line to the place where such meeting shall bc held, whether such Court shall be thc Court of Insolvency or a Local Court of Insolvency, and such certificate shall, in the absence of fraud, be conclusive evidence that such meeting was duly convened and held, and such resolution duly passed.

268. The chairman signing the certificate mentioned in the ~ ~ ~ ~ ~ d ~ ~ , " " t last preceding section may, from time to time, grant a warrant debtor's personal

under his hand in the prescribed form authorising the person therein estate.

named and his assistants to seize all the personal estate of the debtor ; and such warrant shall have the same force and effect, and confer the same powers and authorities, as a warrant of the Court to seize the personal estate of an insolvent, and shall continue in force till superseded by a fresh warrant, or by the order of the trustee under

1-385. the

66 49" & 50" VICTORIE, No. 385.

The Insolvent Act.-1886.

PART XL the deed, or, in the event of the debtor's being adjudicated insolvent, by the warrant of the Court to seize the said estate.

Debtor may convey to trustees. 269. The debtor may, within seven days from the passing of

such resolution, convey and assign his real and personal estate by deed, for the benefit of his creditors, to the trustee named in such resolution.

Provbiom relating to deed. 270. Every such deed shall comply with the following pro-

visions- In pursuance of Part XI. of the Insolvent

I , I t sha,ll purport to be madc " in pursuance of Part XI. A C ~ , 1886. of the Insolvent Act, 1886" :

Schedule of property. 11. It shall contain in a first schedule, annexed, a true and particular account of all the property of which the debtor, or any person in trust for him, is possessed, or to which he, or any such person, is entitled legally or equitably in possession, revereion, remainder or expectancy, so far ss the debtor can set forth the samc, except such articles of household furniture, wearing apparel of the debtor and his family, tools or implements of his trade, and other like necessaries, not exceeding in the whole the value of Thirty Pounds, as the debtor shall srlect:

Schedule of creditore, III , It shall contain in a second schedule, the names of the several creditors of the debtor, and the sevcral amounts due, or supposed to be due, to them respectively : Provided that, with respect to any debt due on czn outstanding bill of exchange or promissory note, tile actual holder of which shall then be unknown to the debtor, it shall he sufficient if that fact be stated in such schedule with the amount of such bill or note, and the date whcn the same will fall due, and if the name of the last known holder thereof be given, and the names of the parties thereto, so far as known to the debtor:

Debtor's declaration verifying schedules.

IV. A declaration by the debtor, in the prescribed form, verifying the contents of such' schedules, shall be attached to the deed :

Trusteo to execute deed within seven days of debtor.

v. The decd shall be executed by thc trustee within seven days of the debtor's execution thereof, and "the execution by the debtor and trustee shall be respectively attested by an Official Receiver, Registrar, practitioner of the Supreme Court, Justice of the Peace for the said province, or clerk of a idocal Court; and each witness shall specify the date on which the execution so attested was made:

Notice of deed to be VI. Forthwith after the execution of the deed by the debtor, a given to the Registrar of I he Court. notice of the deed, containing the name, residence, and

description of the debtor, and the namc of the trustec, and specifying where the deed is lying for inspection and execution, shall bc given to the Registrar of the Court

wherein

49" & 50" VICTORIE, No. 385. 7

-


wherein the certificate of the last-mentioned resolution - was filed, and the cost of advertising the same in the Goz~er~zme?zt Gazette shall at the same time be paid:

vIr. The deed shall be assented to by three-fourths in value and Muat be assented to by three-fourths in one-half in number of the creditors, evcry crcditor for Talne in

under Five Pounds bcing reckoned in value only : number.

Secured creditors. vrrr. Every creditor, for thc purpose of this section, shall be

accounted a creditor for value for such sum only as upon an account fairly stated after allowing the value of securities or liens h& by such creditor,-and the amount of any debt or set-off owing from the creditor to the debtor shall appear to be the balance due to such creditor:

1s. The assrnts shall be givcn, as regards creditors resident in Assents to be obtained from resident the said province or having therein a known duly authorised within ten

agent, within ten days fiorn the execution of the deed d y ; fmmothers,

by the debtor, and as regards other creditors within six slx months.

months from such executl'on :

X. Every assent shall be given by signature to the deed, or by Assent by signature to deed or written written documcnt, and shall be accompanied by a state- dooument.

merit in the prescribed form, attested by one witness, which shall be deemed equivalent to a proof of debt in insolvency, and such statement shall be prepared by and at the cost of the creditor making the same:

XI. Any partner of a firm of creditors may sign or assent to the Partner may assent

deed and supply the requisite statement on behalf of the .gent for

firm, and any agent duly authorised may sign or assent to the deed and supply such statement on behalf of a creditor ; and such partner or agent shall aver in such statement that he is such partner or agent, as the case may be.

271. The form in the first part of the Third Schedule hereto hef form of deed.

may be used for any deed under this part of this Act, and when so uscd shall he of the same effect as if it were in the form of the deed in the second part of the said Schedule.

272, Everp such deed, until the same shall be set aside, as Deed arelease of all herein provided, shall release the debtor from all provable debts, provabla debts.

and shall vest in the trustee all the property of the debtor (except such necessaries as afurcsaid), upon the trusts and for the purposes in and by such deed declared, or dccnlcd to be declared; and the trustee may recover the property including choscs in action in his own ?lame, as trustcc for the estate of the debtor, in like manner as a trustee in insolvency.

273. From and after the execution of every such deed by the a11 persons bound by debtor and the trustee thereof, all parties to such deed, and all deed liable to pro&

sions of Act as if Persons bound thereby, shall, in all matters relating to the property, debtor adjudged ind

conveyed solvent.

68 49' & 50' VICTORILE, No. 385. --

The Insolve?zt A c t . 1 8 8 6 . -- P P- - -

PART XL conveyed and assigned by such deed, or belonging to or vestedin the - debtor prior to the execution of such deed, bc subject to the juris. diction of the Court, and shall, cxcept where the contrary shall bp declared or provided for by this AC; or the deed respecti\ely, have the benefit and be liable to a11 the provisions of this Act in the same or like manner as if the debto~ had becn adjudged insolvent and the creditors had proved and the trustee hart been appointed trustee under such insolvency ; and t h ~ existing or future trustee of anv such dccd, and the creditors under the samc, shall, as between themselves respectively, and as bctween themselves and the debtor, and against third pcrsons, have the same powers, rights, and remedies, with respect to the debtor and the property aforesaid, as are possessed or may be used or exercised by a trustee in insolvency, or creditors with respect to an insolvent, or his acts and property in insolvency.

to debtor. 274, After the execution of the deed by thc debtor the Court may, on his finding sufficient surety or surctics to enter into a recognizance to the Oficial Reccivcr, in the prescribed form, grant an order protecting the debtor from arrest from all process for such period as the Court may see fit, and the Court shall have power from time to time to renew such protection or to withdraw the same ; and if any debtor on the granting of such order shall be in prison or custody or shall thereafter he imprisoned or taken into custody 011 r i d process. having been arrested or committed to prison for debt or damages, or upon any attachment or order, or commitment for or respecting thc non-payment of money, or for contcmpt of Court, and from which imprisonment he might be discharged upon payment of money, the Court may, by warrant, order his immediate release: Provided that such release shall in nowise afftct the@ right of any creditor against the debtor, except the right of detaining him in prison so long as he shdl have thc protection of the Court.

Onproductionof pro- 275. If any debtor shall be arrested for debt, or on any escape tection debtor to bo discharged. warrant, while protected by order of the Court, he shall, on pro-

ducing such protection to the person arresting him, and giving him a copy thereof, be immcdiatcly discharged ; and if any person shall detain any debtor atfter he shall have shown such pwtection lo him, cxccpt for so long a time as shall br necessa1.j for obtaining a copy of the same, such pcrson shall forfeit to such debtor, for his own use, the sum of Five Pounds for every day he shall detain such debtor, to be recovered with costs, by action, in the name of the debtor.

* r o ~ * y i n ~ c p ~ k d 276. Any property which in the event of the debtor's ineolvencv ownership of debtor deemed nronertv would have been available to the trustec bv reason of the same

. L ., passing by having been in the possession, o~der, m. disI;osition of the debto~,

and of his having bccn reputed owner thereof, or having taken upon himself the sale, alteration, or disposition thcreof as owner, or for any other reason, shall be deemed to be property conveyed and ~tssigned by the deed.

49b & 50' VICTORIE, No. 385 69

The Insolvent Act.-1886. - 277. As long as any such deed shall remain in force the execu-

tion thereof by the debtor shall, so far as consistent with the. other Effect of execution of provisions hereof, be deemed for all purposes equivalent to-

deed.

(1) An act of insolvency committed by the debtor on the date of the meeting of creditors at which such deed was rcsolvetl upon :

(2) The filing of a petition for adjudication of insolvency against him :

(3) An adjudication of insolvency against him.

278. The creditors of every such debtor shall have the same rights nghta Creditore as in to haye insol- ~ m e respectively as to set-off, mutual credit, lien, and priority, and joint v,,Ys

and separate assets shall be distributed, as in insolvency, and thc right or remedy of any creditor against any person other than the clcbtor shall not bc prejudiced or affected by his bcing a party to any such deed as afbresaid, or by the samc being obligatory upon him ; and every person who would be entitled to prove in insolvency shall be deemed a creditor within the meaning of this part of this Act, and the trustee of any deed under this part of this Act shall have the same powers and duties as a trustee under an insolvency under section 212 ; and in case thcre shall be any dispute as to thc right of any person io yank as a creditor, or as to the an~ount of his debt, the Clourt shall have jurisdiction to ecttlc such dispute.

279. Any creditor who shall not appear as such in the schedule Creditor not &ppear- ing in schedule may to the deed may obtain the benefit of such deed by sending to the obtainbenefit of aced. trustee partical& of his debt, and n statement of account between him and the debtor, with a declaration verifying the same, in like manner as in insolvency, and by signing the dccd or assenting thereto in writing.

280. Any person stating himself in writing to be a creditor of inspect Creditorentitledto deed, &c. the debtor shall be entitled personally, or by his attorney or agent, at all reasonable times, on application to the trustee of the deed, or his attorney or agent, at the place where such deed may be lying for inspection and cxccution, to inspect such dccd and the schedules thcrrof, and the assents of creditors, and all statements and accounts furnished by creditors, and any books, accounts, papers, or documents relating to the property of the debtor which may be in the custody, control, possession or power of the trustee, and may make copies of or take extracts therefrom.

281. Arly creditor or tmstee may, upon making attidtlvit that "ustee Or creditor may cause debtor to he suspects thr delltor has not fully hisclosed his estate and cffccts, I, e examined in Court.

Or had, within two calendar months prior to the execution of the deed, made a fraudulent preference to any creditor, or that the debtor has concealed, or is making away with, or improperly or fraudulently dealing with the property of the debtor, or any part thereof, cause the debtor to appear and be examined in the Court.

49' & 50' VICTORIE, No. 385

/-

cation of thc Official Receiver, at the request of any P * ~ ~ XI-

creditor, forthwith p y into Court a11 moneys in his hands or to his credit belonging to the assigned estate ; and every trnstce retaining a,ny such moneys in his hands or under his control in contravention of this sub-section fbr a period of' one month after such application, and every trustee retaining money in his hands in contravention of thc last sub-section, slmll be subject to the like liabilities and penalties as if he had been a trustee in insolvency and wrongfully retained moneys in his hands contrary to section 144 of this Act :

yr. Out of the moneys so paid in the Official Receiver shall official Receiver to make payment as make any payments that the trustee shall direct on account dLected by

of the, estate :

vxr. Previously to declaring dividend out of the money paid Pile dividend-sheet:

into Court thc trustee shall file in Court a dividend-sheet, showing the amount of the dividends due to thc respective creditors, and the Official Receivcr shall pay such dividend out of the moneys so paid in. The provisions contained in scctions 229 and 230 shall apply to money paid into Court under sub-section v. of this section, and to dividends payable under this sub-scction :

Y I I I . He shall, one rnonth before the final winding up of the Give notice to creditors who have not estate, which shall not be earlier than twelve months from ,,,,,tcd to deed prior

the date of the deed, cause notice to be given, by letter to final winding "P:

through the General Post Office, toeach person appearing to be a creditor who shall not have assented to thc deed, stating the amount of the ciiviclcnd appearing due to him, and that unless he shall asscnt to the deed and claim thc said dividend within onc month from t,he posting of such notice, he will be excluded from all benefit oE the said dividend, and the trustee shall afterwards cause the amount of the said dividend to be divided amongst the remaining creditors : Provided that, if there shall bc any creditor residing beyond the jurisdiction of the Court, such notice shall be given six months bcfore the final winding tip of the estate :

IX. He shall, when the cstatc is finally wound up, make out a Make a f ind nccount when estate w o l d full and true account, verified upon oath by one trustee,

of the gross amount of all moneys which shall have come to his hands, showing how the same has been disposed of, and the mount in the pound paid to the creditors, and forthwith file the same, with the verifying affidavit, in Court.

X. He shall, within one month after demand, furnish to the ~cooun t to Official Official Receiver an account of the estate in the pres- Receiver.

cribed form.

49" & 50' VICTORIAZ, No. 385.


PART XI. 285. The Court may, at any time within twclvc months from collrt may declare the execution of the decd by the debtor, declare such deed to be deed void. void on the ground that the provisions of section 270 of this Act, or

some or one of them, have not been complied with, or on the ground of fraud, or of any wilful and material erlor or omission in either of the schedules annexed to the deed.

ned void ody 2 ad- 288. Any order of the Court under the last preceding section jua;cation obhinea declaring a deed void shall take effect only if adjudication of insol- within fourtean days. vency be obtained against the debtor- within fourteen days from

the date of the order; but after the order is made the deed shall be deemed an act of insolvency for the purpose of obtaining such adjudication,

Trueteo not to realise 287. The trustee shall not realise, make sale, or otherwise dis- within ten days of deak'* exsmltio,. pose of any portion of the debtor's propcrty, except property of a

perishable nature passing under the deed within ten dajs from the debtor's execution thereof.

Technical objeetiona 288. I n considering any application for an order declaring any not when Court be considered asked to such deed void, and in considering any application for a certificate mat certiiicateof under section 293, the Court shall not make any such order or validity, or to declare deed void. abstain from granting any such certificate, merely becsusc the

declaration required to be made by the debtor, or any schec!ule to the deed, or all or any of the statements required to be furnished by creditors arc! not in the prescribed form, or do not contain the pmticulars required by this Act, if the Court shall be of opinion that any omission or irregularity in any such declaration or statement was not wilful and material. g o r shall such order be made or certificate refused if the Court shall consider that the g rou~ds of objcction to the deed arc not substantial.

Indemnity to tn~stce 289. When any deed shall be declmed void, all acts bond $de under deed declared void. done under it by the trustee thereof, before service upon the trustee

of a copy of the order declaring it void, shall be valid and effectual. Service of the copy order may be effected either prrsonally or by leaving the same with the trustee's solicitor or at the place mentioned in the notice as the place where the deed is lying for inspection and execution.

Court to make jlat allowances to trustee, 290. The Court shall make all just allowances to the trustee,

and further, may make order that such trustee shall be indemnified, in such manuer as the Court shall provide, from and against all actions and other proceedings to hc brought against him far or arising out of any act or omission in relation to his trusteeship.

P m x e r o f e n t m e n t 2291. The Court may from time to time, on t,he application of 8 and removal of trustee. creditor or debtor or trustee, remove from his office any trustee

under a deed made either under Division V I , of the Insolvent Act, 1860, or under this part of this Act, and may appoint a new trustee or trustees either solely or jointly with the continuing trustee or

trustees,

49' & 50' VICTORIA?, No. 385 /-


ttu&es, and upon such appointment all property belonging to the PART xr. estate shall vest in the new trustee or trustees solely or

*,ktly with the continuing trustee or trustees, as the case may be, 3 and the new trustee or trustees shall have the same rights and

P avers and perform the same duties and be subject to the same liabilities if he or they had been the trustee or trustees to whom -- the original assignment was made.

292. Every deed purporting to be executed by the debtor and D e e d ~ i m d fmie

trustee, and to bc attested as hereinbeforc provided, shall be prirnl ztz;ee8,"g~tion fa& evidence of such execution and attestation respectively ; and every debtor's declaration attached to the deed in pursuance of the provisioll~ of this Act, and every statement accompanying a creditor's assent to such deed, shall be prim& &facie evidence of the making thereof and of the truth of the matters therein declared to or stated, and no such deed made in pursuance of a resolution as mentioned in section 266 shall be liable to be impeached or disturbed except in manner hereinbefore provided.

293. The trustee of a deed or the debtor may at any time Courtmay g w t certificate of validity apply to the Court to appoint a meeting to inquire into the ofdeed.

validity of the deed, of which meeting the trustee or the debtor shall give at least nine days' noticc to the creditors mhosc names appear in the schedule to the deed, by the like means and in like manner as is required to be given by the Official Receiver before the sitting for the last examination of an insolvent: and at such meeting the Court shall inquire whether the provisions of section 270 of this Act, affecting the validity of the deed, have been complied with, and if thc Court finds such provisions have been complied with, the Court shall thereupon grant a certificate of such finding in the prescribed form, and such certificate shall, in all Courts, be conclusive evidence of the due execution and validity of such deed.

204, The trustee of any deed may retain out of the estate, as a Remuneration of remuneration for his care and trouble in and about the execution trustee. of the trusts thereof, such a sum of money or percentage as may be allowed by the Court or fixed by the deed and approved by the Court.

295. When the trustee shall declare any dividend, the sum Persons to whom proposed to be divided shall, except in the case of a final dividend, dividend to be paid.

be apportioned ratably amongst all the persons appearing to be creditors of the debtor; but the dividend shall be paid to such creditors only as have assented or shall assent thereto in writing, and no dividend shall be declared until fourteen days after the publica- tion of the last advertisement required by section 284, sub-section m.

296. No action for any dividend shall be brought against any Enforcing payment of trustee by any creditor ; but if such trustee shall refuse to pay such dividend, the Court may order payment thereof with interest for the t h e the same shall have been withheld, and may also order the costs

the application. 297. If, K-385.

49" & 50' VICTORIJE, No. 385 - The Insolve~zt Act. -1886. -

PART XI. 297, If, during the period of ten diiys after the debtor's execu. Oficer seizing tion of such deed as before-mentioned, and before such deed debtor's properts to have been assented to by the requisite majority of creditors, the pay proceeds into court. goods and chattels of such debtor shall be seized or sold by virtue

of any sequestration, execution, or other process at the suit of any creditor, the sheriff or bailiff charged with the execution of such process shall, after notice of such deed, pay the same into the Court out of which such process shall have issued, and the creditor at whose suit such process shall have issued shall not be cntitled to the proceeds thercof, or any part thereof, until the expiration of the said period of ten days, when, if such deed has then been assented to by the requisite majority of such creditors, the proceeds shall be paid to the trustee of such deed as part of the general estate of the debtor, or may be recovered by such trustee on summary application to the Court in which the same has been paid, and on proof of the requisites in that behalf.

Jurisdiction of court. 298. Subject to the power of removal contained in sections 26 and 26 of this Act, all jurisdiction and proceedings under t,his Act concerning any composition or scheme of arrangement, or concerning any decd madc under this part of this Act, or concerning any debtor or his creditors in relation to any such deed, or concerning the trustee of any E U C ~ deed or the property thereby conveyed or assigned, shall bc had, exercised, and taken by and in the Court in which the chairman's certificate, under sub-section I 11. of section 265 or under section 267 as the case may be, shall have been filed, and such certificate shall be deemed a proceeding in the Court in which the same shall be filed.

PART XII. PART XIX.

EVIDENCE. Deed to be evidence 299. In any criminal proceeding instituted by or under this Act, in criminal pro- aeedings. the production or proof of a deed purporting or expressed to be made

in pursuance of Part XI. of this Act, and proof that the same was executed by the debtor, shall be primci facie evidence of such deed and thc eontcnts thereof for all purposes of such criminal proceeding, not,withstanding any alleged defect in such deed or non-compliance with the provisions of this Act.

As to Uoverernment Gazette advertise-

300. If the insolvent shall not,'if within the said province at the merits being evidence date of adjudication, within twenty--one days nftcr the adverhsement

of the adjudication in the Government Gazette, or if in any other of Her Majesty's Australasian Colonies, il!cluding New Zealand, at the date of the adjudication, within three months after such advertisement, or, if elsewhere at the date of the adjudication, within twclve months after such advertisement, have comkenced proceedings in the said Court, to dispute, annul, or reverse the adjudication, and shall not have prosecuted the same with due diligence and with effect, the Gazette containing such advertisement shall be

conclusive

49' & 50" VICTORIE, No. 385


conclusive evidence that the adjudication was duly made on the date PART XII. 7

mentioned i n the advertisement, and that the person adjudicated insolvent became insolvent before the filing of the petition for adjudication.

301. The production of a certificate of the appointment of ment Certificate of trustee, a p ~ h t - con- the trustee, or, if there be no trustee, then that thc Official Receiver clusive evidence. is acting in the matter of the insolvency, under the hand of thc Commissioner or Registrar and the seal of the Court, shall in all Comts (except in the Court of Insolvency, on proceedings to set aside such adjudication) be conclusive evidence of the title of the trustee or Official Receiver, and that all the estate and effects of the insolvent have been duly vested in such trustee or Oficial Receiver, as the case may be.

302. Any deed of assignment, petition for adjudication of in- Procee~ingspurpor- ting to be verified to solvency, adjudication of insolvencv, certificate of appointment of be evidence.

trwtee, other certificate, deposition; or other proceeding or order in insolvency, purporting to have been filed in insolvency, or purporting to have bcen taken in any matters in insolvency, or purporting to be signed by the Commissioner, and appearing to be sealed with the seal of the Court, or any writing purporting to be a copy of any such document or proceetling as aforesaid and so scalcd, shall at all times, and on behalf of all persons, and whether for the purpose of this Act or otherwise, bc! admitted in all Courts whatever, as evidence of snch documents respectively, and of such proceedings and orders having respectively taken piace or been made, and be deemed respectively records of the Court, without any further proof thereof.

303. All Courts, and all persons judicially acting, shall take $ ~ ~ ~ f ~ ~ ~ ~ $ judicial notice of the signature of any Commissioner or Official Commiesioner, &C.

~eceiver, and of the seal i f the Court sibscribed or attached to any L

judicial or official proceeding or document under the provisions of this Act.

304. A copy of any commission, fiat, petition for adjudication, FOrei@ OouTb- or other proceeding or ordcr, filed in or made by any Court having jurisdiction ib bankruptcy in England, or in or by any Court having jurisdiction in bankruptcy or insolvcncy in any of the British dominions, purporting to be certified by the officer in whose custody the same shall be, or his deputy, to be a true copy of the original, and appearing to be sealed with the seal of such Court, shall at all times be admitted under this Act as sufficient evidence of the originals and of the filing or making thereof.

305. A copy of the Govewzmmt Gazette containing any adver- evidence.

tisement, by this Act directed or authorised to be made therein, shall be evidence of any matter contained in such advertisement. All proceedings or notices required by this Act to be inserted in the Government Gazette shall be sealed with the seal of the Court.

306, The

49' & 50' VICTORIAZ, No. 385.

The Insolvent A c t . 1 8 8 6 . - -

PART XII. 308. The provisions of an Act of the Lieutenant-Governor and ~~~~f Esidamcs. Legislative Council of the said Province, passed on the eleventh

day of November, 1852, being No. 2 of that year intituled An Act to Amend the Law of Evidence," shall be applicable to any matter or proceeding under the provisions of this Act, and to any matter, question, or inquiry arising in any Court out of or consequent upon any such matter or proceeding.

Deposition of deceaaed or sbuent 307, I n the event of the death or absence from the said province witness. of any witness deposing either vivd voce or by affidavit to the

petitioning creditor's debt or act of insolvency under any petition for insolvency filed either before or after the commencement of this Act, the deposition or affidavit of any such witness, purporting to be sealed with the seal of the Court, or a copy thereof, certified to be a true copy of such deposition by the Registrar of the Court, and purporting to be so sealed, shall, in all cases, be received as evidence of the matters therein deposed to.

308. All affidavits and declarations to be made or used in whom affi- insolvency, or in any matter or proceeding whatever under this Act, davits, &C., to be

BWOIP. may Fe sworn or made before the Court, or an Official Receiver, or ~ e ~ i s k r a r , or a practitioner of the Supreme Court, or a. Commis- sioner for taking affidavits in the Supreme Court, or a Justice of the Peace of the said province, or clerk of a Local Court ; or out of the said province before any person authorised to take affidavits in the place where such affidavit or declaration shall be sworn or made, or before any Notary Public or British Consul or Vice-Consul.

Evidence vivd wocs or by affidavit.

309. The Court of Insolvency may, in all matters within its jurisdiction, take the whole or any part of the evidence, either vivli voce, or by interrogatories in writing, or upon affidavit.

Insolvent to amwer 310. Any insolvent or debtor shall, in any examination in the a11 queetiona, even when answer Court, be compellable to answer any question put to him, notwith- criminates. standing such answer may tend to criminate him.

PART XIII. MISCELLANEOUS.

InB0lvent not 311. No person intending to become insolvent shall sell or dispose estate to pay CO&.

of any portion of his estate for the purpose of enabling such person to pay his costs of and incidental to such insolveney~ and any solicitor or agent receiving the proceeds of any estate, knowing the same has been sold for the purpose aforesaid, in payment of such costs, shall be liable to refund the same to the Official Receiver or trustees in such estate. In every case the costs of the insolvent's solicitor shall be liable to taxatioa, a11d such solicitor shall refund to the trustees or Official Receiver any amount received by him from the insolvent in cxcess of the amount allowed on such taxation,

01

49' & 50° VICTORIZ, No. 385. - -- -

The Insolvent A c t . l B 8 6 .

or receive from thc estate of such insolvent any amount so PART XXTI.

allowed in excess of the sum which he shall have SO received.

312. Any solicitor or agent acting under instruction of the Solicitor'aoragent'e debtor, for h e purpose cf enabling the debtor to obtain the protec-

charges.

tion of this Act, shall be allowed fair and reasonable charges out of the first proceeds of the estate.

313. Every practitioner of the Supreme Court practising therein P,,,, pactice. may appear and practise in the proceedings of any Court of Insol- vency ; and in case any person not being such a practitioner shall appear as a practitioner in any such Court, he shall be deemed @lty of contempt of Court, and be subject to all penalties incideut thereto.

314. Whenever an execution issued out of any Court is executed sale under execution. upon the goods and chattels of a debtor, such goods and chattels shall, in case of a sale thereof, be sold by public auction, and not by bill of sale or private contract, and unless such goods shall be of a perishable nature, at least five days' public notice of such sole shall be given.

315. The Court may in all matters, before it award such Costs. costs as to such Court shall seem fit and just, and in all cases in which costs shall be so awarded against any person, it shall and may be lawful for such Court to cause such costs to be recovered from such person, and in such manner as costs awarded by a rule of the Supreme Court may be recovered and the like remedies may be had upon an order of such Court for costs as upon a rule of the said Supreme Court for costs,

316. The proper officer of the Court shall, on the reasonable Production of proceedings. request of any insolvent or trustec, or of any creditor of such

insolvent having proved his debt, or on the like request of the solicitor of any such insolvent, trustee, or creditor, produce and show to him, at such time as the Court shall direct, every petition for adjudication, and adjudication, and all orders and proceedings under any such petition or adjudication, and the Court shall order the proper officer of the Court to permit such insolvent, trustee, creditor, or solicitor to inspect and examine, at all reasonable times, all books, papers, and writings relating to such petition, or adjudication, or the estate of the insolvent in the possession of the trustee, or filed in Court, and permit him to make copies thereof or extracts therefrom, and such officer shall provide for any such insolvent, trustee, creditor, or solicitor, requiring the same, office copies of such petition, adjudication, or other proceeding, books, papers, and writings, as aforesaid, or of such part thereof as shall be required, receiving such fee as may be prescribed by rule.

317. Every person summoned to attend before the Court as a Pemnaummon~to person suspected to have any of the estate of the insolvent in his attend.

possession, or who is supposed to be indebted to the insolvent, shall have

75 49" & 50" VICTORIB, No. 385, -

The insolvent Act.-1886.

PART xnr. have such costs and charges as the Court in its discretion shall think fit, and every other person summoned to attend before the Court as a'witness shall have his necessary expenses tendered to him in like manner as is now by law required upon service of a subpama to a witness in an action at law.

Emitation of action 318. Every action brought against any person for anything done pleading. in pursuance of this Act shall be commenced within three months

next after the act committed, and the defendant in any such action may plead the general issue, and give this Act and the special matter in evidence at the trial ; and if the act shall appear to have been lawfully done under the authority of this Act, or if such action was commenced after the time limited as aforesaid for bringing the same, the defendant shall be entitled to a verdict, and in such case, or if the plaintiff shall be nonsuited, or discontinue his action, after appearance thereto, or if judgment shall be given against the plaintiff, the Court in which ~ u c h action shall be brought shall order the plaintiff to pay to the defendant his fu l l and reasonable costs, charges, and expenses incurred irL and about any such action, to be taxed by the proper officer in that behalf, subject to reviewal in like manner and by the same authority as any other taxation of costs by such officer.

Forme. 319. The forms in the First Schedule may be used until altered by rule, and shall be dcemed sufficient for the purposes for which they are prescribed.

Applicati~n of A C ~ , 320. This Act shall extend to married womcn, aliens and deni- zens, both to make them subject thereto and to entitle them to all the benefits given thereby.

In the name and on behalf of Her Majesty, I hereby assent to this Bill.

WILLIAM C. F. ROBINSON, Governor.

SCHEDU IIKS.

49" & 50" VICTORIE, No. 385 /


SCHEDULES.

FIRST SCHEDULE.

No. 1.

Declaration of Insolvency by Debtor.

I, the undersigned of do hereby declare that I am unable to meet my engagements with my creditors. Dated this

day of one thousand eight hundrcd and Witness -

No, 2.

Notice of intentiolz by Debtor to Peti t ion as a Pauperfor A@u&catiow oflTnsolvency against himself.

Take notice that I. , formerly of in the Province of South Australia, , but now a debtor in actual cu~tody for debt in Her Majesty's Gaol at , intend to petition as a pauper for adjudication of insolvency against my self.

Dated the day of 18 . Witness-

J. H. Keeper of Her Majesty's Gaol at

No. 3.

Lyrcclilor's Peti t ion for Adjudication o f Insoluesacy.

To the [ N a m e of Court] The humble petition of 7 of sheweth- That of is indebted to your petitioner in the sum of

Twenty [zf two petitioners, not being partneru, Thirty, and g three or more, not being partners, Forty] Pounds, and that your petitioner ha^ been informed and believes that the said did lately commit a~ act of insolvency.

Your petitioner therefore humbly prays that, on proof of the requisites in that b?half, adjudication of insolvency may be made against the said

And your petitioner will ever pray, &c. Signed by the petitioner on the day of l8

in the presence of [If the petition be by partners alter the form accotdingly, and let it bc signed by

0% on behalf of himself and partners. If the petition be by several, not being Partners, then it must be signed by each ; and, in such case, the names of the several Petitioners should be stated in the attestation or attestations relating thereto

If the petition be againet a single partner by a creditor of the partner- S ~ P ' alter the form accordingly.]

No. 4.

No.

The Insolvent A c t . 1 8 8 6 . -

No. 4.

Petition by a Debtor fop, Adjudication of Insolvency against himsep.

To the [.Name of Court]- The humble petition of of sheweth-

That your petitioner, being unable to meet his engagements with his creditors, has committed an act of insolvency : Your petitioner therefore humbly prays that,, on proof of the requisites in that behalf. adjudication of insolvency may be made against him.

And your petit,ioner will ever pray, &c. Signed by the petitioner, on the day of 18 ,

in the presence of [If the petition be by partners, alter the form accordingly, and state the names of

the several petitioners in the attestation or attestations relating thereto respectively.)

No. 7 5 .

Petilion hy a Dehtor who has given Notice of Intention to Petition as a Pauper for Adjudication of Insolvency against himself,

To the [Name of Court]- The humble petition of of sheweth-

That your petitioner is now imprisoned in Her Majesty's gaol at for debt.

That on the day of 18 , your petitioner caused due notice to be given of hia intentioll to petition as a pauper for adjudication of insolvency.

That your petitioner has no property, except [Here state any property of which he ma be possessed, and the value tl~ereof l.

qour petitioner therefore humbly prays that, on proof of the requisites in that behalf, adjudication of insolvency may be made against him.

And your petitioner will ever pray, &c. Signed by the petitioner on the day of 18 , in the

presence of of I certify that of is the detaining creditor of the

above petitioner,

Keeper of Her Majesty's Gaol at

No. 6.

Order for adrnknistration, according to the Law of Insolvency, o f tfie joint property of the members of a firm.

[Name of Court andplace of sitting] the day of 18 . I n the matter of an application of , for an order for the

administration of the joint ptoperty of the membcrs of the firm of ,

Whereas an adjudication of insolvency has been made against of , a partner in the firm of of 9

and whereag of another partner in the said Arm is out of the s b d Province [or of unsound mind and whereas it hath R ; been proved to the satisfaction of this Court that the said rm of are unable to pay their debts as they become due, this Court doth order that the joint property of the said and of of the members of the said firm of be administered according to the Law of Insolvency.

Ry the Court, No. 7.

49' & 50" VICTOKIA2, No. 385. -

The irnsolvent Act.-1886.

No. 7.

irarrant to arrest the Person and seize the Books, Writ ings, and Documents o f a Person sunzmoned before Court to prove A c t o f Insolvency committed by the Debtor and not attending.

[Name of Court and place o f sittiny1 the day of 18 . In the matter of the petition of of for

adjudication of insolvency against of Whereas of , a person whom this Court believes capable

of giving information concerning an act of insolvency committed by the said , was summoned to appear before this Court required

10 any books, writings, or documents, add statement to that f lee t] on the day of 18 , and did not appear, having no lawful

impediment made known to this Court and allowed by i t : These are therefore to authorise and require you to arrest the said , and to bring him before this Court [if required to produce any books, writings, or documents add here], and also to seizc [mention the books, writings, or doctcments).

By the Court. To the Messenger of the Court and his Assistants ; or, To

No. 8.

Adjudication of InsoZvsnc,y on the Petition of a Creditor. [ N a m e of Court andplace of sitting] the day of

, 18 . In the matter of the petition of of

for adjudication of insolvency against of Upon the application of , and upon reading the petition of

, filed in this Court on the day of and upon proof of the requisites in that, behalf, this Court doth find that the said is insolvent within the meaning of the Insolvent Act, 1886, and that he became so before thc filing of the said petition, and doth itdjudgc him insolvent accordingly. And doth order and require the said to surrender himself to this Court on or before the day of 18 .

By the Court.

No. 9.

Adjzcdication of Insolvency on the Petition o f a Debtor. [Name of Court andplace ofai t t ing] , the day of , 18 .

In the matter of the petition of of Upon the application of the above-named , and upon reading his

petition filed in this Court on the day of , this Court doth find that the said is insolvent, and that he became so before the date of the filing of his said petition, and doth adjudge him inrolvent accordingly.

Bj; the Court.

No. 10.

Order f o r Debt to be Subetitzlted for or Added to Petitiorring Creditor's Debt. [flame o f Court and pkrce of sitting] the day of , 18 .

-

In the matter of of , an insolvent. Upon the application of of

a creeditor of the above-named insolvent, who has proved a debt of sufficient amount

h 3 8 5 .

VICTORIE, No.


ammnt to support an adjudication [or a debt which being added to the petitioning creditor'e debt is sufficient to support an adjudication]. and the debt of the petitioning creditor having been found by the Court to be insufficient to support the adjudication of insolvency against the above-named insolvent, it is hereby ordered that the debt of the said be substituted for the debt of the petitioning creditor for that the debt of the said be added to the debt of the petitioning creditor], and that the costs of stating such order as to costs of'any o f the pwtico concerned as the Court thinks j t .

By the Court.

No. 11.

Order f x m g Amount for which the O$iciaE Receiwr shall be n Judgment Creditor of the Insolvent.

[Name of Court andplace of ailling] the day of , 18 . In the matter of of an insolvcnt.

This Court doth order that the above-named insolvent stand indebted to , Esq., the Official Receiver [or the Clerk of the Loci11 Court of ]

in the sum of . [ v a n y other sum is substituted, add in lieu of heretofore ordered.]

By the Court.

No. 12.

Warrant to seize Personal Estate of Insolt~eut.

I Name of Court and place of sitting] the day of 18 . In the matter of of an insolvent.

Whereas the above-mentioned was adjudged insolvent on the day of 18 , these are to authorise and require you to seize all the personal estate of the said insolvent, except such articles of household furniture, wearing apparel of the inso'lvent and his family, tools, implctncnts of his trade, and other like necessaries as the insolvent may specify and select, or the trustee or Court may allow as excepted articles, not exceeding in the whole the value of Thirty Pounds. By the Court,,

To the Messenger of the Court and his Assistants. or To the Bailiff of the Local Court of

No, 13.

Order Recersitag Adjudication.

/ Name of Court and place uf sittzng] the day of , 18 . In the matter of of , an insolvent.

The above-named insolvent having shown to the satisfaction of this Court that the petitioning creditor's debt and the act of insolvency tor spec(f,y the particular matter deemed insu@cient, as the case may require] upon which the adjudication of insolvency made against the said on the day of , was grounded, were and are [or was and is] insufficient to support such adjudication, and no other debt and act of insolvency [or spec@ the particulur matter insupicient] sufficient to support such adjudication being proved, this Court doth order that the said adjudioation of insolvency be reversed, and the same is hereby reversed accordingly.

By the Court NO. 14.

VICTORIK, No.


No. 14.

Surrender.

Lxamc of Court a d place of sitting1 the day of 18 . In the matter of of an insolvent.

I, the abure-mentioned insolvent, do hereby surrender and submit myself to the court of Insolvency [or the Local Court of Insolvcncy of 1.

7.J7arrant to Discharge Imprisoned InsoZuerrt.

[Nanze of Court and place cf sitting] the day of , 18 . In the matter of of , an insolvent.

Whereas the ahove-named was on the day of 18 , adjudged insolvent, these are to require and authorise you to

discharge the said out of your custody, at the suit of mhomsoever he may be detained by you in prison for debt or damages or upon any attachment or order or commitment, for or respecting the non-payment of money, or for contempt of any Court if the said insolvent might he discharged from such imprisonment upon payment of money, and for so doing this shdl be your sufficient warrant.

A. B., Commissioner. (L.Y.) To the Keeper of Her Majesty's Gaol at

No. 16.

Urarrant to lodge Insolvent in Gaol.

[Name of' Court and place o f sittiny] the day of 18 . In the matter of of , an insolvent.

Whereas, by virtue of an order of this Court, bearing date the day of Id the above-named insolvent stands indebted to

Esquire, the Official Receiver [ o r the Clerk of the Local Court of 1, in the sum of Pounds, these are, therefore, to require and authorise you, immediately upon the receipt hereof, to take into your custody the body of the said and him safeiy convey to 'tier Majesty's Gaol, at , and him then deliver to the Keeper of the said Gaol, together with this precept ; and the Keeper of the said Gaol is hereby required and authorised to receive the said

into his custody, and him safely keep and detain until this Court shall make order to the contrary.

By the Court. TO thc Messenger of this Court [or the Bailiff of the

Local Court of 1, and to his Assistants, and to the Keeper of Her Majesty's Gaol at

, and his Deputy there. 1 No. 17,

Warrant to discharge Insolvent out of custody, at suit of O@cial Receiver.

[Nume of Court antd place of sitting] In the matter of of , an insolvent.

Whereas the above-named insolvent has obtained the protection of this Court; the=

4g0 & 5oQ VICTORIE, No. 385. \

The Insolvent Act.-1 886.

these are to authorise and require you to discharge the said out of your custody, at the suit of the Official Receiver [or Clerk

of the Local Court of j, and for so doing this shall be your sufficient warrant.

By the Court. To the Keeper of Her Majesty's Gaol at

No. 18.

Order f o r Ba i l .

[Name of' Court and place of sitfing] the day of , 18 . In the matter of of , an insolvent.

I t is ordered that the above-named insolvent be discharged out of custody on hi^ finding sufficient surety or sureties to enter into a recognizance to the Official Receiver [or Clerk of the Local Court of ] in the sum of

Pounds for the personal appearance of the said in this Court when lawfully required until he shal? have passed his last examination, (or be discharged out of custody without bail.)

By the Court.

No. 19.

Recognizance under L~ticme o f Court]

In the matter of of

Insokency.

an insolvent. Appeared personally this day , of , and

of and severally acknowledged that they owed to Esquire, the Official Receiver [or the Clerk of the Local Court of the sum of Pounds sterling. Dated the

1 7

day of 18 .

The condition of the above recognizance is such that, if the above-named insolvent shall personally appear in this Court in the matter of his insolvency, when lawfully required, until he shall h a ~ e passed his last examinatim, the above recognizance shall be void, otherwise shall remain in full force and effect.

Entered into and acknowledged before me the day of 18 . [If there is only one surety, or more than two, alter the form accordingly.]

No, 20.

Protection under Insolvency.

I n the matter of [ N a m e o f Court and p b c r o f sitting.] ( 3 of , a*

The above-named insolvent, having duly surrendered and conformed, is hereby protected from arrest for debt till the day of next. Dated this day of , 18 .

By thc Court.

[lf protection enlarged, a d d ] Enlarged to the day of next. Dated this

day of , l 8 , By the Court.

No. 21.

VICTORIAE, No.


No. 21. '

Search Warront.

[Name of Court and place of sitting] the day of , 18 . In the matter of of , an insolvent.

Whereas it doth appear to this Court that there is reason to suspect that property of the above-named insolvent is concealed in the house [or other place, describing it , as the case may be] of one of , in the said province; these are, therefore, to authorise and require you to enter, in the day time, into the said house [or othe?*place, describing i t ] , and there diligently to search for the said property ; and if any property of the said insolvent shall be there found by you to seize the same, and deliver the same to the Official Receiver [or the Clerk of the Local Court of 1.

By the Court. To

Messenger of the said Court, and his assistants. LOr] to the Bailiff of the Local Court of , and his assistants.

No. 22.

Warrant to arrest insolvent keeping out of the way and who cannot Le personally served with svmmons.

[ATame of Court a d place of sitting] the day of 18 . In the matter of of insolvent.

Whereas it has been proved to the satisfaction of this Court that the above-named insolvent is keeping out of the way and cannot be personally served with a summons, and that due pains have been taken to effect personal service of such summons [or that there is probable ground for believing that the said insolvent is about to quit the province, or to remove or conceal some of his goods]; these are therefore to authorise and require you to arrest the said insolvent and to bring him before this Court for examination. By the Court,

To the Messenger of this Court and his assistants. or To the Bailiff of the Local Court of and his assistants. or To of

No. 23.

Certificate of appointment g Trustee.

[Name of Court and place of sitting J the day of , 18 . In the matter of of , an insolvent.

This Court doth certify that of was this day appointed trustee of the above-mentioned insolvent'! estate.

By the Court, Commissioner.

No, 24.

Order for Imprisonment on last Examination of Insoluent.

LNarne of Court and place of sitling] the day of , l 8 . In the matter of of , an insolvent.

Whereas , the trustee of the said insolvent's estate [or the Official Receiver, or the Clerk of the Local Court of is a judgment creditor of the said

*I for the

sum of , and whereas it has been proved to the satisfaction of the Court that the said [here state the ofewe or ofences found to hove been cwnmitled], this Court doth adjudge that the said be imprisoned in Her Majesty's Gaol, at at the suit of the said trustee [W Official Receiver, or Clerk] for the term of

9

, unless he shall sooner satisfy the said debt. By the Court.

No, 25.

No.


[Name of Court andplace o f sitting] the day of , 18 . In the matter of of , an insolvent.

Whereas a petition for adjudication of insolvency, bearing date the day of , 18 , was filed against [or by] the above-named under which the said was duly adjudged insolvent, and wherea; the said i has finished his last examination. this Court doth find that the said has made a full disclosure of his estate and effects. and in all things conformed to the Law of Indvency, and has entirely conducted himself to the satisfaction of this Court since his surrender, and has not been found to have committed any the offences mentioned in section 175 of The Insolvent Act, 1885," and that his insolvency has arisen from unavoidable losses and misfortunes ; and this Court doth award to the said a certificate of the first-class, according to the provisions of The Insolvent Act, 1886."

Ry the Court.

No. 26.

Second-class C'ertzycate.

LName of Court and place of sitting./ the day of , 18 . In the matter of of , an insolvent.

Whereas a petition for adjudication of insolvency, bearing date the day of 18 , was filed against [or by-] the above-named

under which the said was duly adjudged insolvent 4 and whereas the said has finished his last examination, thia Court doth find that the said has made a full disclosure of his estate and effects, and in all things conformed to the law of insolvency since his surrender, but [here state the grounds for awarding second class certzjkate onZyl, and this Court cloth award to the said a certificate of the second-class, according to the provisions of ' I The Insolvent Act, 1886," [z;f this certtJkate is to be suspended, a d , and this Court doth direct that this certificate be suspended until the day of 18 .]

By the Court.

No. 27.

[Name of Court and place of sitting] the day of , 18 . In the matter of of , an insolvent.

Whereas a petition for adjudication of insolvency, bearing date the day of , 18 , was filed against [or by] the above-named under which the said wae duly adjudged insolvent, and whereas the said

has finished his last euamination, this Court doth find that the said [here state the particular groundsfor awarding this certificata] and this Court doth award to such insolvent a certificate of the third-class, according to the provisions of " The Insolvent Act, 1886."

By the Court.

No. 28.

Certz&?ate of Burn for which Trustee is a Judgment Creditor.

[Name of' Court and place cf sitting] the day of , l 8 . I n the matter of , an insolvent.

This Court doth certify that the trustee of the said insolve~t7s estate [or official Receiver, or Clerk af the Local Court of 1 is a judgment creditor of the alove-mentioned insolvent for the sum of , in trust for the creditors of the said insolventi

Ry the Court. No. 29.

No. _CC_

The Insolvent A c t . 1 8 6 6 . -.

No. 29.

~&grnent in Supreme Cvourt on CertzjEcate of Sum "for tuhioh I!rustee i s n Judgment Creditor.

In the Supreme Court. In the matter of of , an insolvent.

The trustee of the said insolvent's estate [or the Official Receiver of the Court of ~nsolrency] for the clerk of the Local Court of 1, having this day produced to this Court a certificate of the Court of Insolvenc~ [or Local Court of ~nsolvency of 1, showing that the said trustee [ o r Official Receiver] [or Clerk] is a judgment creditor of thc said for the sum of ;E . ~t is this day adjudged that the said trustee [or Official Receiver] [m. Clerk] recover against the said the sum of .

By the Court.

No. 30.


Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith.

To the Sheriff of South Australia. Qreeting- We command you that of the goods and chattels, lands, tenements, and heredita-

ments of the above-mentioned in your bailiwick, you cause to be made the sum of , which said sum was lately before us in our Supreme Court of South Australia, in a certain matter there depending, intituled '' In the matter of of , an insolvent," by a judgment of the said Court, bearing date the day of 18 , adjudged to be recovered by the trustee of the said insolvent's estate [or the Official Receiver of the Court of Insolvency] [or the Clerk of the Local Court of 1, against the said , and that you have the money before us in our said Court, inimediately after the execution hereof to be paid to the said trustee [or Official Receiver] [or Clerk]. And in what matter you hall have executed this our writ,

. make appear to us in our said Court immediately after the execution thereof. And have then there this writ.

Witness, &c.

No. 31.


Victoria, hy the Grace of God, of the United Kingdon1 of Great Britain and Ireland, Queen, Defender of the Faith.

To the Sheriff of South Australia. Greeting- Whereas by our writ we lately commanded you that of the goods and chattels of

the above-mentioned [bere recite the j e r i facias to the end] ; and on the day of you returned to us in our Supreme Court of South Australia aforesaid, that by virtue of the said writ to you directed, YOU had taken goods and chattels of the said to the value of the money aforesaid, which claid goods and chattels remain in your hands urnold for want of buyers. Therefore, we being desirous that the said trustee [or official Receiver] P r Clerk] should be satisfied his money aforcsuid command You that you expose to sale, and sell, or cause to be sold, the goods and chatteis of the said by you in form aforesaid taken, and every Part thereof for the best price that can be gotten for the same, and have the money arising from such sale before us in our said Court, immediately after the execution hereof to be paid to the said trustee [or Official Receiver] [or Clerk]. And have there then this writ.

Witness, &c. No. 32.

VICTORIW, No.


No. 32.

Writ of Venditioni Exponaa for Sale of Land. In the Supreme Court.

In the matter of , of , an insolvent. Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland

Queen Defender of the Faith. To the Sherif£ of South Australia greeting :

Whereas we have commanded you that of the goods, chattels, lands, tenementa, and hereditaments [here recite j e r i fucias]. And whereas it appears by your return to the said writ that the said hath no goods or chattels within your bailiwick [or as th,e case may be], but it hath been Suggested that the said hath certain lands within your bailiwick by sale whereof the said sum, or a portion thereof, can be made. Now, therefore, we command you to make sale and dispose of, and to convey to the purchasers thereof, so much of all such lands as the said or any person in trust for him is seized or possessed of at the time of the delivery to you of the said recited writ of fiwi fdcias or at m y time thereafter, or over which the said then or at any time afterwards, had or has any disposing powcr which the said might, without the consent of any person, exercise for his own benefit as may be required to produce the amount [or residue of the amount] as by the aforesaid writ of jieri faciae is directed to be levied, and that you have the said money before us immediately after the said sale to render unto the said trustee [or Official Receiver] [or Clerk1 for his debt to be then and there paid to the said trustee [or Official Receiver] [or Clerk]. And have there then this writ.

Witness, &c.

No. 33.

Warrant of Commitment. [Name of Court and Place oJ 8ittingI.

Whereas of in the Province of South Australia, was this day charged before the Court of Insolwncy [or the Local Court of Insolvency of 1, for that he [or whereas it appears to the Court of Insolvency for Local Court of Insolvency of that of

) in the Province of South

Australia ] did a t in the said Province, on the day of [set out ofence) against the form of the Act in such case made and provided ; these are, therefore, to command you to take the said and h safely convey to the Gaol, at in the said Province, and there to deliver h to the Keeper thereof, together with this precept : And I do hereby command you, the said Keeper of the said Gaol, to receive the said into your custody in the said Gaol, and there safely keep h until he shall be thence delivered by due course of law. Dated the day of l 8 .

By the Court. To the Messenger of the Court of Insolvency, or to

the Bailiff of the Local Court of

No. 34.

Chairman's CertQ'icate of Extraordinary Resolution for Acceptance of Composition, or Scheme of Arrangement, or for ConJirmation.

I hereby certify that at a meeting of the creditors of ~f , duly convened and held at on the day of 18 , the following extraordinary resolution Was duly passed, [Copy resolfition.]

Dated the day of 18 . Chairman.

No. 35.

VICTORIE, No.

The lizsolvent Act.-1886. /-

p -- - --

No. 35.

Chairman's Certr$cate of special resolution for deed of assiynme~at. I hereby certify that, at a meeting of the creditors of

of , duly con~ened and held a t on the day of 18 , a special resolution was duly carried that the said do execute a deed of assignment in pursuance of Part XI. of The Insolvent Act, 1886," to of as trustee.

Chairman.

No. 36. Farrant to seize personal estate of debter.

Whereas at a meeting of the creditors of 9 of , duly convened and held a t , on the day of , 18 , a special resolution was duly carried that the said do execute a deed of assignment in pursuance of Yart XI. of 'The Insolvent Act, 1886" to of as trustee : This is to authorise you to seize all the personal estate of the said

To A.U. of and his assis t~nts , , Chairman of the said meeting.

No. 37.

Declaration by Debtor vct$jit?,g Schedules.

SOUTH AUSTRALIA, I n the matter of the deed hereto annexed, made in pursuance to wit. 1 of Part XI. of " T h e Insolvent Act, 1886," whereby

[l]" conveys and assigns his real and personal estate to [2] as trustee, for the benefit of his crcditors, which deed is dated the l?] day of 18

1, [l] of C41 hereby cleclare as follows :- l. The foregoing first schedule contains a true and particular account of all the

property (except certain articles of houucholcl fnrniture, mcaring apparcl, and likc necessaries of myself and my family, which are hereunder specified, and which I claim to retain) of which I am possessed, or of which any pcrson or persons in trust for me is or are possessed, or to which I, or any such person or persons am, is, or are entitled legally or equitably in possession, reversion, remainder, or expectancy, so far as I am able to set forth the same.

2. The foregoing second schedule contains the names of my sevcral creditors, and thc amoimts respectively due to such creditors, so far as I am able to set forth the same.

R . The csceptcd articles referred to in the first paragraph of this declaration, and which I claim to retain, are set forth hereunder: L51

4. The excepted articles, mentioned in the last paragraph hereof, do not e x c ~ e d in value the sum of Thirty Pounds.

r 91 Declared a t C61 this [7] day of 1 8 ,

before me, the undersigned, a [B] of the said Province. L 101.

M-385. NO, 38,

Directions to be observed in the use of the foregoiny form. The blanks are to be filled up as follows :-

l. Name of debtor. 2. Name of trustee. 3. Date of deed. 4. Residence and occupation of debtor. 5. List of articles retained. 6. Place where declaration taken. 7. Date when declaration taken.

8. Official Receiver, Regktrar, Practitioner of the Supreme Court, Commissioner for taking affidavits in the Supreme Court, Justice of the Peace, or Clerk of Local Court, as the case may be.

9. Signature of debtur declaring. 10. Signature of person taking declaration.

No*

The Insolvent Act.-1886, --

No. 38. Statement by Creditor assenting to Deed.

In the matter of a deed made in pursuance of Part XI. of "The insolvent Act, 1886," in the Province of South Australia, by of

and dated the

Christim and surnames of creditor

and his partners (if any).

Addresse~ and occupationns of

creditor and partners (if any j.

day of

Amount of debt.

g 8 . d

Securities or liens, and value thereof.

Amount of set off.

-- fi S. a

Amount of balance due to creditor

where security

or set off. --- S 8 . d.

-- I, the above-named hereby state that the above particulars are

true and correct [if statement made by partner, add] and that I am a partner of the above-mentioned [names of other partners].

I:p&tatement mu& hy agent.] I , , of [residence, occupation] hereby state that the above particulars are true and correct, and that I am an agent of the said [names of creditor or creditors1 and duly authorised to make this statement and to sign or assent to the said deed.

Dated this day of , 188 . Witness- [Sig~ha lure].

Recognizance under Deed of Assignment.

[Name of C0urt.J In the matter of a deed made in pursuance of Part XI. of "The Insolvent

Act, 1886," Ly of dated the day 18 .

A ppearcd personally of and of " and severally acknowledged that they owed to Esquire, the

Ofticial Receiver [or thc Clerk of the Local Court of 1, the sum of pounds sterling.

Whereas the above-named has applied for an order protecting his person from all process.

Now the condition of the above recognizance is such that, if the said shall personally appear hefare this Court during the currcncy of the said protection or any enlargement thereof. when lawfully required, the above recognizance shall be void, otherwise shall remain in full force and effect,

Entered into and acknowledged by the said this day of , 18 , before me.

No. 40.

Protection under Deed of Assignment.

LName of Court and places oJ sitting] the day of 18 In the matter of a deed rnadc in pursuance of Part XI. of The insolvent

Act, 1886," hp of dated the day of 18 The above-named having procured sureties, is herehy protected

from arrest till the day of Dated this day of , 18 .

By the Court. [ I f

VICTORIW, 'No.


[If protection enlarged, add J Enlarged till the day of next. Dated this day of 18 .

By the Court.

No. 41.

Warrant to Release Jmprisoned Debtor.

[Name of Court and place of sitting] the day of 18 . In the matter of a deed made in pursuance of Part XI. of " The Insolvent Act,

1886," by of dated the day of 18 . Whereas thc above-mentioned has executed a deed in pursuance of

Part XI. of "The lnsolvent Act, 1886,"and has foundsufficient suretyasbylawrequired: These are to require and authorise you to discharge the said out of your custody at the suit of whomsoever he may be detained by you in pi san for debt or damages, or upon any attachment or order, or commitment for or respecting the non-payment of money, or for contempt of Court i f the said might be discharged from such imprisonment upon payment of money, and for so doing this shall be your sufficient warrant.

Ry the Court, To the keeper of W.M. Gaol, at

No. 42.

Certificate of clue Esecution and Validity of Deed of Assignment.

%me of Court and place of sitting] the day of 18

In the matter of'a Deed made in pursuance of Part XI,, of The Insolvent Act, 1886," by of , dated the day of , 18 .

Upon the application of the trustee of the above- mentioned deed, (or of the above-mentioned [name of debtor]), this Court doth find that the above-mentioned deed was duly made and executed under the provisions of Part sx. of The Insolvent Act, 18H6," and that the provisions of section 270 of the said Act affecting the validity of the said deed have been complied with.

By the Court.

49" & 50' VICTORIE, No. 385.

The Insolvent Act.-18%.

No. 43. Accotcnt of Estate to be furnished to O$cial Receiver, by Trustee, within one motrth

after demand [Section 284, subsection X], and Account to be published by Oflcial Receiver in the " Government Gazette." LSection 41, subsection v.]

- SECOND

49' & 50' VICTORIA2, No. 385

y-

SRCOND SCHEDULE.

RULES. 1. The Seal of the Court of Insolvency shall bcar the words " Court of Insolvency,

south Australia." The Seal of every Local Court of Insolvency shail bear the name of such Court. The Seal of every Court shall be kept by the ltegistrar.

2. Every declaration of insolwncy shall be filed in duplicate ; and the party a t whose installcc an adjudication is applied for, or his solicitor or agent shall bring to the Court one copy of the adjudication to be signed by the Commissioner filcd with the

and s copy to be so signed for each i a so l~en t requiring to be served. 3. A11 proceedings to be filed shall be fairly mritten or printed, or partly written

and partly printed on one side of a sheet or shcets of paper, and shall be of a size denoted by a pattern to bc lrcpt for that purpose at the office of the Official Receiver.

4. All notices of opposition to any insolvent shall be entered in a book (which the oficial Receiver is required to keep) to be called the " Opposition Book," and shall be signed by the opposing creditor, his solicitor, or agent, three clear days, exclusive of Sunday, before any hitting, or adjourned sitting, for the last examination of the insolvent

5 . All notices directed by the Act to be given by the Official llcceiver to creditors of the r ~ s ~ o c t i v e sittings for the first ancl last cuamination of any insolvent, and a11 other notices to be g i ~ c n by him to such creditors (the mode of giving which is not prescribed by the Act) shall he by letter, sent through the general post, to the a r l d r ~ ~ ~ give in the Schedule, if any, last filed, or to the last known place of business or resiilence of such creditors, or of their agents, if such creditors reside out of the colony ; and where the residences of creditors are out of the said province, and no agents are known, then by adrertisenrent in the Government Gazette.

6. Subject to the provisions of section 312 of the Act, the petitioning creditor's costs shall bc paid out of the first proceeds of tllc insolvent's estate, after payment of the Court fees and Messenger's fces.

7. Thc schedule shall, as near as circumstances will admit, be in a form from time to time to be prescribed by thc Commissioner, and to be kept in the office of the Official Receiver for the guidance of all persons interested.

8. After dividends shall be ordered by the Court, the same shall be paid by the OWrial Receiver to the creditors proring, or to their personal representatives, or agents, lawfully authorised, on production of every security mentioned in the proofs of debts. In cass uf the loss or non-production of the securities, the dividends may be paid on such indemnity as the Con~missioner shall, by order to bc filed with the proceedings, direct.

9. Rvcry notice given by n legal mortgagee under section 139 of the Act shall state the datc ancl registration reference, if any, of the mortgage, and the consideration therefor, and the place in Adelaide where the mortgage, and all other documents relating thercto, may be ~nspected a t any timc during the currency of the notice betwen the hours of ten in the forenoon and noon.

10. 15very notice givcn by an equitablc mortgagee under section 139 of the Act, shall state the consideration for the mortgage, and the particulars thereof, with dates, the clesc~iptic~n of the propelty mortgaged, and particulars of the deeds and document deposited, and whether the deposit was accompanied by a written memo- ratlclurn or other document, and if so, the date and particulars thereof, and the place in Adelaide where such clecds, documents, and inemorandurn of deposit, if any, may be inspccted at any time during the currency of the notice, between the hours of ten in the fhrenoon and noon.

11. In case of any notice under either of the two last preceding rules not containing the required particulars, the mortgagee, or person claiming to be so, shall Pay the costs of any investigation of his claim by the trustee.

12. I n case of an appeal to the Supreme Court against any order, determination, or direction of any Court or Commissioner, thc same shall be entered with the

in a book to be kept for that purpose, and shall be by notice signed by the appellant or his solicitor.

13. Thc Registrar shall forthwith upon such entry forward to tlic Master of the Sutreme Court, all the proceedings and evidcnee in the matter of the insolvency in 'vhlch s ~ c h appeal has arisen.

Within sel-en clays after the entry of such appeal, the appellant shall cause the same to be set down for hearing, and such appeal shall be duly prosecuted according to the procedure of the said Supreme Court.

51- The Official lieceiver shall security by bond to the Treasurer of the province, with two sureties, to be approved by the Commissioner, in the penal sum of 61,000, for the due performance of the duties of his office, and for properly

accounting

No. - The Insolvent Act.-1886.

accounting for all moneys and property that shall come to his hands; and the messenger shall similarly give security by bond with two sureties, to be approved by the Official Receiver, to the Official Receiver, in the penal sum of $400.

16. The Official Receiver shall, on the first day of Janudry in every year. or within a week thereafter, make a declaration in writing before the Commissioner, to be preserved and filed in the office of the Court, that the sureties of the Official Receiver are, to the best of his belief, alive and solvent ; and shall in such declaration state to the best of his knowledge and bclicf any change of residence of his sureties, or either of them.

17. The Official Iteceiver shall givc immediate notice in writing to the Com. missioner of the death ur insolvency of his siireties, or either of them; and shall thereupon, and a t any other timc, if required by the Commissioner, give fresh srcurity as aforesaid. to be approved by tile Clommiusioner.

18. No money8 shall be withdrawn from the banking account of the Official Receiver, or paid by him, esrept by cheques countersigned by the Commissioner or a Judge of the Supreme Court.

19. No transfer shall be made in the books of the Official Receiver from one account to another, except under the written authority of the Commissioner or a Judge of the Supreme Court.

20. S o investments shall be called in or dealt with, except under the written authority of thc Commissioner or a J u d g ~ of thc Suprcme Court.

21. The Official Receiver shall lrec;) the Cnclaimed Ilividend Fund in a separate account with some bank in Adelaide, to be approved of by the Commissioner or a Judge of the Supreme Court, and &all also obtain and keep a separate bank pass- book for the same.

22. Except in cases provided for in the next succeeding Rule, the Official Receiver shall keep a yeparate account for each insolvent cstatc in some bank in Adelaidc approved of by the Commissioncr or a Judge of the Supreme Court, and shall also obtain and keep a separate bank pass-book for each insolvent estate.

23. The last preceding rule shall not apply to any insolvent cstate when and so long as the amount to credit of such cstate shall be less than 230 ; and may, under the written authority of the Commissioner or a. Judge of the Supreme Court, be dispensed with in any particular estatc although the amount to the credit of such estate may exceed &30.

24. Every bill of costs charges fees and disbursements of any solicitor, or attorney, or measenger, under any adjudication of insolvency incurred prior to any sitting for an audit, shall be delivered to the Registrar for taxation five days at least before the day appointed for such sitting ; and in defzult thereof, if such sitting shall be acljournvd by reason of such default, such solicitor, or attorney, or messenger shall pay the costs occasioncd by the adjournment, and the amount thereof shall be deducted from the amount of such bill, alid no money shall be paid to any solicitor, attorney, or messcnger on account of any costs, charges, fees, or disbursements, until such bill shall hare been tasetl. No opposing creditor, except he be the trustee, shall be entitled to any costs out of the estate of any insolvent.

25. A11 bills of costs, charges, fees, and disbursements, shall be taxed by the Registrar : Provided that the Con~missioner shall have power to refer any such bill to the Master of the said Supreme Court for taxation. The Commissioner may review the tasation of any bill of costs, charges, fees, or disbursements whether such bill shall have been taxed by the Registrar or the Master of the said Supreme Court. 26. The Official Receiver shall, before any audit, enter in a book the names of all

the debtors to the insolvent's estatc as returned in his balance-sheet, and shall enter the reaeons why any debts are not paid on the opposite page ; and shall also keep a property-look, in which shall be entered in a clear manner the nature and description of all the property (save debts) belonging to each insolvent's estate, and the estimated value thereof, the amount (if any) realised by the sale and disposal of the same, and the reasons (if any) why the same are not sold and disposed of, and such books shall be produced to the Court at every audit.

27. The audit account of the trustee shall be made out in duplicate in the orclirW' form of a debtor and crcditor account, each item thereof being cntered according to its date, and a name, date, and proper explanation given to each item. One duplicate of such account shall be laid by the Official Receiver bcfore thc Corn- missioner three days at least prior to the day appointed for auditing such account, subject to the power of the Commissioner to require an account, digested under proper heads, t o he annexed to the audit account, should he think proper-and the other duplicate of such acconnt shall forthwith after its preparation be filed with the proceedings in the particular estate, and be a t all times open for inspection and perusal.

28. At

VICTORIE, No.


28. At el-ery audit meeting the Official Reccivcr shall lxodure his books, accounts, vouchers, and all other writings and papers connected with his receipts and

p p e n t s on account of the estate under audit, and the same silall be carefulIy exau;ined and compared with the audit account, and thc cause of any moneys remailling uncollected shall be t~scertained, and a minute thereof made and filed with the proceedings ; and all persons appearing to be indebted to the insolvent's estate may be forthwith summoned and examined in that behalf upon oa th ; and the

so taken shall be filed with the proceedings, and such directions may be given by the Cour-t as to any further proceeding thereupon as to the Court shall seen1 fit.. I'

29. The full and proper audit of the accourits in. each estate shall be minuted by the Con~missioner in the form in the Schedule hereto marlied A, which shall bc duly filed with the proceedings.

30. All the pr~ceedings relating to and held under every adjudication or petition for adjudication of insolvency, together with all books, papers, writings, and accounts relating to the estate and effects of eJrery insolvent, shall be open, without charge, for inspection and perusal, a t all reasonable times by the insolvent or person petitioned against, and his solicitor, and by every creditor of such insolvent or pcmon, and the solicitor of such creditor.

31. All office copies shall, except as to figures, bc fairly written at length, and delivered out without any unnecessary dclay, and in the order in which they shall hare been bespoken.

S ~ H E ~ I T L E A. [,Yame of Court a ~ t d p l a c c qf sitting.] the day of , 18 .

In the matter of 3 of , an insolvent. Memorandum that I, , Esquire, Commissioner of the Court of Insolvency [or Spovial

Magistritte of tbc Local Court of 1, hat this day, pursuant to notice in the J'outh Austrahan Goaernvient Gnretle, to audit the nccounts of the above-named insolvent's estate and effects.

, the trustee of the said insolvent's estate, and . the Official Receivcr [or Clerk of the said Imal Court], delivered upon oath the accounts respertively maiked and , heremto ~ n r ~ e x c d , as full, true, and p f e c t itccounts of all moncvs received by them respectively nnrlcr ttio :hove insolvency, and wlrcn and upon what account, and how and when the same have been expended : And I, , having examined the said accounts, and compared the receipts with the payulcnts, do find that thele i s now the sum of in the hands of the srtid Official Itecciver [ol. Clelk], [or in the Sank] to the credit of the said estate ,or as the case may Be).

THIRD SCHXDULE.

This Deed, maclc the day of , 18 , in pu r s~~ancc of Part X I . of "Insolvent Act, 1886," Setwcen of , in the provincc of South Australia, of the one part. and of , in the said province , of the othw part, Tl'itnesscth that the said

cloth hereby convey and assign all his real and personal e-t ate to the said , his heirs, executors, administr:ltor?, and assigns upon trust for the benefit of the creditors of the said , the trustee's remnneration to be £ p n centuin on the amount tlivisiblc amongst the creditors.

In witness whrxc.of thc said parties to thesc presents have hereunto set their hands and seal tllc day and year first befort,-written.

Signed, sealed, ancl delivered by the said this day of

18 , in the presence of the undersigned, a

)

Signed, sealed, and delivered by the said this day of

18 , in the prcsence of the undersigned, a

i \

This Deed made the day of , one thousand eight n~ndred and eighty , in pursuance of Part XI. of The Insolvent Act, 1886," bewteen of , in the province ~f South Australia

of the one px t , and a f , in the said province

49' 8r 50" VICTORILE, No. 385

The lizsolvent Act.-1886.

province of' thc other part : Witnesseth, that in consideration of (ne release hereinafter contained, the said [n~si.~?yllor dotli by these presents grant alld assign unto the said [ i ru~tee] his heirs, executors, administrators, and assigns, who and every other trustee or trustees for the tirnc being hereof are hereinafter called " the said trustee," a11 the real and personal property and estate, of which the said [assigaor] is possessed, or of which any person or persons in trust fur him is or are possessed, or to which he or any such person or persons is or are entitled legally or equitably in possession, reversion, remainder, or espcctancy, and which are more particularly described, so far as t he said [assignor] i.; able to set forth the same, in the First Schedule hereto annexed, exccpt such articles of household furniture and wearing apparel of the said [assignor] and his family, and other like necessaries, not exceeding in the whole the ~ a l u e of Thirty Pounds, as are mentioned as excepted articles in the declaration hereunto annexed, to the intent that the real and pcrsonal property and estate hereinbefore grantcd and assigned shall be held by the said trustee by virtue hereof and subject to the provisions of Part XI . of "The Insolvent Act, 18b6," with respect to assignments without ineolvency : And to the further intent that the said [assignor] shall be and he is hereby released from all debts and liabilities which, under the said Act. would have been urovabl~ under his insolvencv had he been adjudicated insolvent on the day of the daie of thew plesents : And 6 is hereby declared and agreed that in addition to and without any revocation, limitation, or rcst~iction whatsoever of the powers and authorities conferred upon tho said trustee bv virtue of the said Irisolvent Act. 1836. i t shall and nlav be lawful for the said trust&, when and as to him shall seem best, t o sol1 and dispo*se of the said estate and premises hereby conveyed and assigned, or intended so to be, to any person or persons whomsoever, either by public auction or private contract, or by both such methods. and either tonether or in lots. as ro the said trustee shall seem " most adcantageous, and subject to any special or other conditions, and in such manner in all respects as the said trustee may think proper, with full power to buy in or to rescind any contract for sale, and to re-sell without being respnsi'ule for any loss occasioned thercby, and to do, make, sign, clxecute, and deliver any act, thing,deetl, orinstrument whatsoever that maybe iieccssary fur complctinjiany suchsale or contract,and for vesting the property sold in the purchaser or purchasers respectil-ely. And it is declared that the receipt or receipts of thc said trubtee for the property sold, or any part thereof, shall effectually discharge the puichascr or purchasers yaying the same therefrom and from being concerned as to the disposition or application thereof in any way whatsoever, And it shall also be lawful for the said trustee, as soon as conveniently may be, to collect, get in, and rcceivo all outstanding debts and sums of money whatsoever, and to make, h i p , and g i ~ e all necessary ~ece ip ts and clischarges for all monies paid to him by any peisnn or persons m hatsower ; and tn pay all costs, charges, and expenses ol'thc said I ussignor], and of the said trustec of and preparatory and incidentaltothemaking,prepnration,;tntl cornpleticrri of thew presents, and all other costs, charges, and cvpcnses touching, rclating to, or conceining the esecution of the powers contained in these presents or conferred by the said Insol\ent Act. 1886, or otherwise : And it shall also be lawful for the said trustee to retain for his own remuneration a commission of per centum upon the amount in hi? hands, applicable for division amongst the crcditois : and after full pajment of all such charges, expenses, ant1 comnlission as aforesaid, the said trustee shall apply and appoition the residue of the moneys arising fiom the sale, dispodion, and getting in of the said premises he~einbcfore respccti\ely cunvoj ed and assigncd, and other the moncys coming to his hands hereunder in manner directcd in thc said YL1rt X T . of b-Thclnsolvent Act, 1886 ": And it is 1iescLy declared that incase the moneys a~ieing from the sale and getting in of the estate hereby conveyed and assigncd sliall be more than sufficient to satisfy the sc\cral debts and liabilities of the said [as.s~qizor 2 with interest as allowed by the said Act in the case of insolvency, together with a l costs, charges, expenses, and commission whatsoever of or incidental to the execution

. of the trusts hercof or payable hereunder, the said trustee shall pay the surplus, if any, unto the said [assignor], his exwutors, administrators, or assigns.

I n witness whereof the said parties to these presents have hcreuato sct their hands and seals the day and p a r first before wr~tten.

Signed, sealed, and delivered by the said the day of , 18 , i n ] the presence of the u~dersigned A

Signed, sealed, and delivered by the said the day of , 18 , i n \ the presence of the undersigned A

FOURTH

VICTORIB, No. ,

/

The Insolwen t Act.--1886.

FOURTH SCIIEDULE.

~ ~ ~ ~ ~ ~ t i n g warrant of seizure of goods, including in~entory and report, where the same do not exceed five folios of seventy-two words. .....

........................................ For every additional folio ........................... Allowancc to man in possession, per day.

................................ stllTice of duplicate of adjudication On every arrest, in Court, of an insolvent or other person committed. con-

......................................... veying him to gaol .......................... For the arrest of any person out of Court

For conveying the last-mentioned persons arrested to gaol, such reasonable travelling and other expenses of the person arrested as paid, and as may be allowed by the Court, in addition to mileage.

Sen.ice v£ warrant on gaoler to release imprisoned insolrent at the suit of the detaining creditor, and of warrant of detainer at the suit of the

.......................................... Official Assignee.. .................... Ser\ice of any other warrant or process on gaoler

.................................. Executing wcry search warrant Service of any summons or other process not specially provided for . .....

.............. ]hecution of warrant or order not hereinbefore specified For every mile beyond one mile and within eight miles from the Court,

tral eiling in the se r~ ice or execution of any process of the Court, each way ......................................................

Beyond eight miles from thc Court, such reasonable allowance as the Court or Registrar shall make.

Commission on selling, not exceeding, per centum (including auctioneer's charges) ..................................................

FIFTH SCHEDULE.

COUHT 'Fees.

Filing every declaration of insolvency .............................. Advertising ....................................... .(same as paid) IJiling every petition ............................................

.................. Order of Court for extending time for adjudication Hearing fee, if no adjudication made .............................. Adjudication of insolvency on the petitior. of a creditor, including order

for reversal (if any), ad~ert is ing meetings for choice of trustee, ............. hearing on last examination, and adjourned hearings.

I r .......... l h e likc, if made on the application or petition of the debtor , l

l h c like, if made on the petition or application of an imprisoned debtor . . For every warrant for seizure of goods. ............................ Taking recognizance of bail . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Order for discharge. ............................................. Every other order except the payment of wages. ..................... For every audit and dividend meeting, each. ..............,.......... For every hearing for special purposes, not at the instance of t'he insolvent,

and not requiring advertisin9 ................................ For every likc hearing, requiring advelti~ing, inclliding cost of advertise-

.................................................... ments For ewry summons to the insolvent or other person .................. For everr warrant for the apprchonsion of the insolvent or other person..

everS warrant of commitment. ................................ On the gross amount received on each estate up to the first £100, per

cent ....................................................... 2 10 0

For

49' & 50' VICTORIrE, No. 385-

The Insolvent Ac t . 1886 .

........................ For every further sum up to $400, per cent. ............................. For every sum beyond $400, per cent.. Fox every office copy of any document not exceeding five folios of seventy-

twowords .............................................. .................................... And for every additional folio Taxing costs .................................................

. . . . . . . . . . . . . . . . For every certificate to an insolvent under I'art TII. ............................. Filing every copy deed of assignment

Filing every document (except orders of the Court, proofs, or declaration .................................................. of debt) Certificate of validity of deed of assignment ........................ Every search .................................................. For preparing schedule, two and a half per centum on every estate up to

$500, and one per centum for every additional $100. ........................................ For every private meeting

a - P --- - _ I- - - - PP - . . - -- - . - - -. --

Adelaide : By authority, E. SPILLEB, Government Printer, North-terrace.