Debtors’ Estates Distribution Act 1830 No 8a (NSW)

No. VII.

An Act for the relief of Debtors and for an

equal distribution of their Esta tes and Effects

amongst Creditors. [2nd April, 1830.]

WH E R E A S Inso lvent Debtors and for an equal d is t r ibut ion of the i r

it is expedient to m a k e provision for t h e relief of

es ta tes and effects amongs t the i r credi tors unde r certain res t r ic t ions Be it therefore enacted by H i s Excel lency the Governor of New South Wales wi th the advice of t he Legis la t ive Council T h a t from and after t he pass ing of th i s Act as often as any act ion or suit shall be; com­ menced in the Supreme Cour t of N e w South Wales for t h e recovery of any debt or damages (except as hereinafter excepted) a n d process shall be issued t he r eupon against any person or persons res id ing or ca r ry ing on business in New South Wales or any place w i th in t he Dependencies thereof and it shall be m a d e to appear to the; satisfaction of any J u d g e of t he Supreme Court at Chambers before t h e r e t u r n of such process or to the said Cour t at any time after the; r e t u r n of such process and before execution sued out in any such act ion or suit t ha t t h e person or persons agains t whom such process shall have issued is or a re unable; t o pay twen ty shil l ings in t h e p o u n d to all his her or the i r credi tors i t shall be lawful for such J u d g e or Cour t respectively to cause such person or persons to be forthwith summoned by a wr i t t en notice which shall be left at his her or the i r usual or last place of abode and also publ i shed in one or more newspapers and the said summons shall r equ i re such person or persons to a t t end and be; personal ly present a t the Cour t a t a cer ta in fu ture day to be specially appoin ted in such s u m m o n s and which said day shall be at t he nex t s i t t ing of t he Cour t or as early as m a y b e after for fu r ther examina t ion and enqui ry and in t he mean t ime it shal l be lawful for such J u d g e or Cour t respectively if t he emergency of t he ease shall so requi re to restrain such person or persons so appear ing to be insolvent from disposing of his he r or the i r es ta tes or effects and if i t shal l further be made to appear to such Judge or Cour t respectively t h a t t he estates and effects of such person or persons so appea r ing to be insolvent are or may be exposed and l iable to fraud or waste it shal l be lawful for

such J u d g e or Cour t respectively to nominate and appoin t one; or more of t he credi tors of such person or persons as a provis ional t ru s t ee or t rus tees wi th full power and au tho r i t y to discover collect receive and hold all and every t h e estates and effects of such person or persons subject to the orders of such Judge; or Cour t respectively u n t i l further proceedings shall be h a d in t h e m a n n e r hereinafter provided and directed.

2. A n d be it fu r ther enacted That after due enqu i ry and examinat ion of t he person or persons so appear ing to be insolvent as aforesaid on t h e day appointed in m a n n e r as aforesaid or if such person or persons shal l abscond or fail to a t t e n d t h e said Cour t after be ing summoned as aforesaid and upon proof being duly made thereof them in ei ther such case it shal l be lawful for t he said Court upon being satisfied tha t such person or persons is or are unab le t o pay twen ty shi l l ings in t h e pound to all his her or the i r creditors to declare: h im her or t h e m insolvent accordingly and to t ake order for discovering collecting and selling all t he estates debts and effects of such insolvent or insolvents and d is t r ibut ing the produce thereof equal ly and ra te- ably amongs t all his her or the i r credi tors and for tha t purpose to au thor ize th ree or more creditors of the said insolvent or insolvents to

t o be for such purpose chosen by t h e major p a r t in n u m b e r and va lue of such creditors wi th in t h e said Colony or in case such creditors do no t agree t h e n any other fit or proper person or persons to be for t h a t purpose nomina t ed by t h e said Cour t to act as and be t rus tees or t ru s t ee for t he benefit of t he credi tors of such insolvent or insolvents and t h e r e u p o n all t he es ta te debts effects and p roper ty of w h a t n a t u r e or k ind soever of r igh t be longing or due or owing to or held by for or on behalf of such insolvent or insolvents at t h e t ime of i ssu ing such s u m m o n s as aforesaid shal l vest in such t rus tees or t r u s t ee for t h e purposes of t h i s Ac t a n d i t shall be lawful for t he said Cour t from t ime to t ime to m a k e such orders as shall be necessary for be t te r discovering collect ing selling and real iz ing t h e estate debts and effects of t he person or persons so declared insolvent and for m a k i n g a ra teab le d is t r ibu t ion of t h e p roduce thereof amongs t all t h e credi tors of such insolvent person or persons or if occasion shall r equ i re for ves t ing or disposing of t h e same or any p a r t thereof in any securit ies mos t beneficial e i ther for such insolvent person or persons or his her

or the i r credi tor or credi tors u n t i l such d is t r ibu t ion can be made .

3. Provided always and be i t fur ther enacted T h a t as often as
t h e debts due or claimed of and from such person or persons so

appear ing to be insolvent shall exceed in t h e whole a m o u n t t h e s u m

of two h u n d r e d a n d fifty pounds it shal l be lawful for such Cour t t o

enqu i re in to t he fact of such person or persons be ing insolvent w i t h t he assis tance of two assessors u n d e r t h e directions of such Cour t in l ike m a n n e r as issues of fact are now by law directed to be t r ied and at t h e t r i a l of every such issue every such person so appear ing to be insolvent shal l produce his or he r books of account and be l iable to be examined u p o n oath touch ing and concern ing all his or her affairs and dealings and it shall also be lawful for any creditor or credi tors to contest such books of account and deal ings a n d adduce evidence before t he said Cour t to discredit t h e same a n d after t h e verdict or finding of such assessors t he said Cour t shal l declare such person or persons to be insolvent or no t insolvent as t h e verdict m a y be a n d in case such person or persons shall be declared insolvent t h e Cour t shall t h e n proceed in t he m a n n e r hereinbefore provided for collecting and d i s t r ibu t ing such insolvent ' s estates and effects or in case such person or persons shall be found n o t to be insolvent t hen t h e Cour t shal l supersede all proceedings had w i t h a view to insolvency as hereinbefore directed a n d shall remi t such act ion or suit commenced in t h e said Cour t as aforesaid to t he s ta te in which t h e same was before t h e com­

mencemen t of such proceedings.

4. A n d be i t fur ther enacted T h a t t h e costs of enqu i r ing in to and

declar ing any insolvency or superseding t h e proceedings thereon as hereinbefore directed shal l i n no ease exceed in t he whole t h e s u m of five pounds unless t h e Mas te r or o ther officer of t h e said Cour t shal l i n t a x i n g t h e costs of such proceedings certify upon every bil l where in t h e sums charged shal l exceed t h e s u m of five pounds t h a t every act m a t t e r and t h i n g done for which any such ex t r a charge was m a d e was necessary and indispensable to t he due invest igat ion of t h e case.

5. A n d be it fur ther enacted Tha t if such insolvent pe r son or persons shall m a k e a full and t r u e disclosure discovery and su r render of all his he r or the i r estates goods debts and effects and shall conform to t he orders and directions of t h e said Supreme Cour t a n d if such person or persons snail be in ac tua l custody a t t he t ime of such disclosure discovery and su r render it shal l be lawful for t he said Court to order a n d direct t h a t any such person or persons shall be discharged from actual custody for thwi th or if such person or persons shall no t be in ac tua l custody at t h e t ime aforesaid t hen to order and direct t h a t t h e proceedings u p o n any wri t or o ther process as aforesaid shall be

staid

staid so as to exempt such person or persons from ac tua l impr i sonment a n d if a n y person or persons so declared insolvent as aforesaid not being in ac tua l custody at t he t ime of such declarat ion of insolvency shal l fail to m a k e a t r u e disclosure and discovery of any his he r or the i r es ta te or estates and effects or shall otherwise refuse to conform to t h e orders or direct ions of t he said Cour t i t shal l be lawful for the said Cour t to cause such person or persons to be ar res ted and impr isoned or if a l ready in ac tual custody to be deta ined and kep t in pr i son un t i l he she or they shall m a k e such disclosure and discovery and in all respects conform to such orders and directions.

6. A n d be i t fur ther enacted Tha t t he order of t h e said Court for t he disci targe of any insolvent debtor from actual custody or t he order of the said Court for s tay ing proceedings against any insolvent debtor so as to exempt h i m or he r from ac tua l impr i sonment shall protect h i m or her from future personal ar res t or de tent ion for or in respect of any debt (other t h a n hereinafter excepted) cont rac ted and due and owing a t t h e t i m e such order for t h e discharge from actual custody or order for s tay ing proceedings shal l have been made.

7. A n d be it fur ther enacted Tha t if such insolvent person or persons shal l m a k e such disclosure a n d sur render of his he r or thei r estates a n d effects and shall conform to t he orders of t he said Cour t as aforesaid t h e same shal l a n d m a y wi th t h e consent in wr i t ing under the h a n d s of t h e major pa r t in n u m b e r and value of t h e creditors of such insolvent person or persons be certified by any J u d g e of t he Supreme Cour t u n d e r t h e seal of such Cour t and such certificate may be pleaded and shal l be a ba r t o all suits a n d compla in ts for t he recovery of any debt or damages (except as hereinaf ter excepted) due or claimed for any cause pr ior to t he t ime of his her or the i r being decdared insolvent as aforesaid Provided a lways t h a t no person who shal l be declared insolvent a second t ime or oftener shall be ent i t led to such certificate as aforesaid.

8.    A n d be i t fur ther enacted Tha t if at any t ime wi th in e ighteen

m o n t h s after any such insolvent person shall have been requi red to su r render his or he r es ta te and effects as hereinbefore directed it shall be discovered t h a t he or she h a t h been gui l ty of any wilful misrepre­ sen ta t ion concealment or f raudulent disposal of or concerning his or he r es ta tes or effects or any p a r t thereof t h e n and in every such case it shal l be lawful for t h e said Cour t upon a s t a t emen t m a d e upon the oa th of one or m o r e credible persons to such effect and laid before t he said Court to requ i re t he insolvent person impl ica ted b y such s t a t emen t

fully to answer t he same a n d if after due enqu i ry in to t he t r u t h of t he

m a t t e r al leged in such s ta tement t he said Cour t shall be satisfied t h a t such insolvent person h a t h been gui l ty of any such wilful misrepresen­ ta t ion concealment or f raudulen t disposal of or concerning his or her estates and effects or any pa r t thereof then and in every such case such person shal l be deprived of all t h e benefit and protec t ion to be derived from th i s L a w or Ord inance a n d m a y be ar res ted and imprisoned u n t i l he or she shal l m a k e a full disclosure a n d discovery of his or her said es ta tes and effects a n d ent i rely conform to such orders as t he Cour t shal l wi th a view to t he jus t ice of t h e case m a k e in such

behalf.

9. A n d be i t f u r t he r enac ted T h a t t h i s Ac t shal l no t ex tend to

discharge any debtor or debtors seeking t h e benefit thereof w i t h respect to any debt due to H i s Majesty or H i s Successors or to any debt or pena l ty w i t h which he or she shal l s t and charged at t h e suit of t h e Crown or of any person for any offence commi t t ed agains t any

A c t or Ac t s of Pa r l i amen t or A c t or Ac t s of Counci l in N e w South

W a l e s re la t ive t o any b r a n c h of t h e publ ic revenue at t h e suit of the Sheriff or o ther publ ic officer in New South W a l e s upon any bail

bond

bond en tered in to for t h e appearance of any person prosecuted for a n y such offence unless t h e Governor of N e w Sou th W a l e s for t h e t i m e - be ing shal l certify unde r his h a n d his consent t o such discharge.

10. A n d be i t fu r ther enacted T h a t th i s A c t shall n o t e x t e n d

or be const rued to ex tend to d ischarge any debtor w ho shal l be indebted for damages recovered in any act ion for c r imina l conversa­ t i on wi th t h e wife or for seducing t h e daugh te r or se rvant of t he plaintiff in such act ion or for b reach of promise of m a r r i a g e m a d e to t h e plaintiff in such act ion or for damages recovered in any act ion for a mal ic ious prosecut ion or for a l ibel or for s lander or in any other act ion for a mal ic ious in jury done to t h e plaintiff t h e r e i n or in any

ac t ion of covenant or t respass to t h e person or p roper ty of t h e plaintiff

t he re in where it shal l appear to t h e satisfaction of t h e said Cour t t h a t t h e in jury compla ined of was malicious unless t h e plaintiff or plaintiffs in any such ac t ion or act ions shal l consent in wr i t i ng to the discharge of such debtor or debtors on be ing admi t t ed to prove his he r or the i r debt or damage aga ins t t h e estate of such debtor or debtors and receive a ra teab le propor t ion of t he produce of t h e estate and effects of such debtor or debtors wi th his her or t he i r o ther credi tor or creditors as hereinafter provided and enacted.

1 1 . A n d whereas i t somet ime happens t h a t persons w ho are

pr isoners in execution in gaol for debt or damages will r a the r spend the i r subs tance in pr ison t h a n discover a n d deliver up t h e same towards satisfying to thei r creditors the i r j u s t debts or so much thereof as such subs tance will ex tend to pay for r emedy whereof Be i t enacted T h a t if any pr isoner who shall be commi t t ed or charged in execut ion in any pr i son or gaol in N e w South W a l e s or t h e Dependencies thereof for any debt or damages besides costs shal l not w i th in t h r ee calendar m o n t h s n e x t after every such pr isoner shall be commit ted or charged in execut ion m a k e satisfaction to his or her creditor or creditors who shal l charge any such pr isoner in execut ion for such debt damages and costs then such creditor or creditors m a y requi re every such pr isoner (on giving seven days not ice in wr i t i ng to h i m or her of such credi tor ' s design) to give in to t h e Sup reme Cour t w i th in the first four days of t h e t e r m which shal l nex t ensue t h e expi ra t ion of t h e said seven days a t r u e account in wr i t ing to be signed wi th t h e proper n a m e or m a r k of every such pr isoner of all the rea l a n d personal es ta te of such pr isoner and of all i ncumbrances affecting t he same to t he best of h is or he r knowledge and belief in order t h a t t h e es ta te and effects of such pr isoner m a y be divested out of h i m or her and may by t h e said Cour t be ordered to be assigned and conveyed in m a n n e r and for t h e purposes hereinaf ter declared.

12. A n d be i t fu r ther enacted T h a t every such creditor or credi tors shall also give seven days not ice in wr i t ing of such his her or the i r i n t en t ion to requ i re any such pr isoner to be b r o u g h t u p as aforesaid to all a n d every o ther credi tor and creditors of every such pr isoner if any at A\rhose suit any such pr isoner shal l be detained or charged in custody if such o the r credi tor or creditors can be m e t w i t h a n d if no t t h e n to t he a t to rney or a t torn ies last employed in t h e act ion or sui ts in which any such pr isoner shall be so deta ined or charged in custody by any such o ther credi tor or credi tors and shall l ikewise give a l ike not ice in w r i t i n g to t h e Sheriff of New South Wales and gaoler or keeper of t he gaol or pr ison in which any such pr isoner shal l be detained in custody of such his or her i n t en t ion to have any such pr isoner so b rough t u p and to requi re such Sheriff and gaoler or keeper to b r i n g u p every such pr isoner accordingly a n d every such notice which shal l be so given to t he Sheriff and gaoler or keeper shall be so given one day at least before t h e t ime appointed for any such pr isoner to be so b rough t u p and thereupon the Sheriff and gaoler or

keeper

keeper shall a t the costs of such creditor or creditors cause every such pr isoner to he b r o u g h t u p as by such notice in wr i t ing shall be requi red to t he said Cour t as aforesaid toge ther with a copy of causes of his or her detainer the re .

13 . A n d be i t fu r the r enacted Tha t every such pr isoner who in

pursuance of th i s Ac t shall be so b r o u g h t up to t h e said Cour t shal l on proof be ing the re first m a d e of such notices as aforesaid hav ing been given deliver in the re in open Court upon oa th wi th in t he t ime herein­ before for that, purpose prescribed a full t r u e and j u s t account disclosure and discovery in wr i t i ng of the whole of his or he r rea l and personal es ta te and of all books papers wr i t ings and securit ies re la t ing the re to and of all incumbrances t hen affecting t he same and the respective t imes w h e n made to t he best of his or her knowledge and belief which account shall he subscribed with t h e proper name or m a r k of the pr isoner who shall so deliver in t h e same.

14. A n d be it fur ther enacted That on the del ivering in of any such account t h e es ta te and effects of every such pr isoner shal l be by h im or her assigned and conveyed by a short indorsement on the back of every such account to such person or persons as t he said Court shall order or direct in t rus t and for t h e benefit of t he credi tor or creditors who shall have requi red any such pr isoner to be b rough t up as aforesaid and of such o ther creditor or creditors (if any) of every such prisoner at whose sui t such pr isoner shall be charged in custody or execut ion and who shall by any memo­ r a n d u m or wr i t ing to he signed by such creditor or credi tors before any such conveyance or ass ignment shall be made consent to any such prisoner 's being discharged out of gaol or pr i son a t his or their suit and agree to accept a propor t ionable dividend of such pr isoner ' s es ta te and effects with the credi tor or credi tors who shall have requi red any such pr isoner to be b rough t up and if there shall he no other credi tor or creditors or t he r e be ing any such if he she or they shall not agree in wr i t i ng to d ischarge such prisoner and accept such propor t ionable dividend as aforesaid then in t r u s t for t h e creditor or credi tors only who shall requi re any such pr isoner to be b rough t up for t he purpose aforesaid and if any overplus shall r emain of any such pr i soner ' s es ta te after p a y m e n t of the debt or damages and costs which shall be due to any creditor or credi tors at whose suit any such pr isoner shall in pursuance of th i s Act be discharged out of gaol or prison and all reasonable charges same shall be paid to such pr isoner his or he r executors adminis ­expended in or by means of ge t t i ng in such es ta te and effects t he t ra to rs or assigns.
15. A n d be it fu r ther enacted Tha t upon every such discovery

ass ignment and conveyance being made and executed to t he satis­ faction of t h e said Cour t every such pr isoner shall by the said Cour t be discharged and set at l iberty in t h e act ions and charges a t the suit of t h e creditor or credi tors who shall r equ i re h i m or her so to be brought u p and also in the act ions and charges of every o ther creditor who shall sign such consent as aforesaid for his or her discharge.

16. A n d whereas it is expedient to m a k e some provision for the relief of debtors confined in gaol for debts which they have no prospect of be ing ever able to pay Be it therefore enacted Tha t any person be ing in execut ion upon any j u d g m e n t for any debt, or damages (not hereinbefore excepted) and w ho shall have been in prison t h e r e u p o n for the space of t h ree calendar m o n t h s before the t ime of his or her application to be relieved may on giving fourteen days not ice of such his in tent ion to the credi tor or creditors a t whose suit such debtor shall be charged in execut ion or detained apply to the said Cour t upon some certain day du r ing te rm to be b rough t before

t he

t h e said Cour t a n d discharged out of custody as to such execut ion or deta iner by t h e ru le or order of t h e said Cour t and it shal l he lawful for t he said Cour t to cause such debtor to be b r o u g h t u p and duly examined in Cour t t o u c h i n g his means of pay ing such debt or damages a n d if t h e said Cour t shal l be satisfied t h a t such debtor h a t h no means of p a y i n g such debt or damages i t shall be lawful for t h e said Cour t t o m a k e a ru l e or order for t h e discharge of such debtor out of custody as to all and every such execut ion or detainer .

17. A n d be i t fur ther enacted Tha t every debtor who shal l be so b r o u g h t u p by his own desire shall in l ike m a n n e r prove the giving of such not ice as las t aforesaid and deliver in open Cour t a full and j u s t account of any estate a n d effects of which he m a y be possessed as hereinbefore is directed wi th respect to pr isoners b r o u g h t u p a t t h e

reques t of the i r credi tors .

18 . A n d be it fur ther enacted T h a t before any order for t h e discharge of such debtor as last aforesaid shal l be m a d e t h e Cour t shal l r equ i re such debtor to assign a n d convey any es ta te and effects which he m a y possess or to which he m a y be ent i t led by a shor t indorsement on t h e back of every such account as aforesaid to such person or persons as t h e Cour t shall order or direct in t r u s t for t h e benefit of t he credi tor or creditors at whose suit he or she shall be charged in execut ion or deta ined as aforesaid and also to execute a w a r r a n t or w a r r a n t s of a t to rney to au thor ize t h e en te r ing u p of a j u d g m e n t or j u d g m e n t s aga ins t such debtor or debtors in t h e said Sup reme Cour t in the n a m e of t h e assignee or assignees of such insolvent debtor or insolvent debtors for t he a m o u n t of t h e debts wh ich shal l appear a t t h e t i m e of t h e examina t ion as aforesaid to be due or claimed to be due from such pr isoner or so m u c h thereof as shall appear at t h e t ime of execut ing such w a r r a n t of a t to rney to be due a n d unsatisfied and the order of t h e said Cour t for enter­ ing u p such j u d g m e n t shall be a sufficient a u t h o r i t y to t h e proper officer for en te r ing u p t h e same a n d such j u d g m e n t shall have t h e force of a recognizance and if at any t ime it shal l appear to t h e satisfaction of t he said Cour t t h a t such debtor or debtors is or are of abi l i ty to pay such debts or any p a r t thereof or t h a t he or she or they is or a rc dead leaving assets for t h a t purpose t he said Cour t m a y pe rmi t execut ion to be t a k e n ou t upon such j u d g m e n t for such sum of money as u n d e r all t h e c i rcumstances of t h e case t he said Cour t shal l order such s u m to be d is t r ibuted ra t eab ly amongs t t h e creditors of to be j u s t and reasonable and such fur ther proceedings shall and may such debtor or debtors in such m a n n e r as to t he said Cour t shall appear be h a d u p o n such j u d g m e n t as m a y seem fit in the discretion of t h e

said Cour t from t i m e to t ime un t i l t h e whole of t h e debts due to t h e

several persons agains t w h o m such discharge shal l have been obta ined shal l be fully paid and satisfied toge ther w i th such costs as t h e said Cour t shal l t h i n k fit to award and no scire facias shall be neces­ sary to revive such j u d g m e n t on account of lapse of t ime b u t execut ion shal l a t all t imes issue the reon by v i r tue of t h e order of t h e said Cour t Provided a lways t h a t in case any such appl ica t ion agains t a n y such debtor or debtors shall appear to t h e said Cour t to be i l l-founded a n d vexat ious it shal l be lawful for t h e said Cour t no t only to refuse to m a k e any order on such appl icat ion b u t also to dismiss t h e same wi th such costs agains t t h e p a r t y or par t ies m a k i n g t h e same as to t h e said Cour t shal l appear reasonable and the said costs shal l be paid accordingly.

19.    A n d be it fu r ther enacted Tha t t h i s L a w or Ordinance shall

be a n d con t inue in force u n t i l t h e t h i r d day of A p r i l which wil l be in

t h e year of our Lord one t housand eight h u n d r e d and th i r ty - two and

shal l t h e n cease and determine .

No . V I I I .