| saleable a t i ts fair value Be it therefore enacted by H i s Excel lency the Governor of New South Wales w i th t he advice and consent of the Legis la t ive Council thereof Tha t from and after t h e pass ing of th is A c t a n y person resident in the said Colony who is desirous of ob ta in ing t ime | for |
No. IV.
An Act to prevent the waste of the Proper ty of Debtors under process of Law. [22nd Sep
tember, 1843.]
| WH E R E A S | now and for some t ime pas t effected u n d e r process of law be |
| i t is expedient t h a t t h e waste of p roper ty of | debtors |
| res t ra ined un t i l public; confidence | shal l revive | and proper ty be | again |
| for t h e p a y m e n t of his debts m a y draw | u p | a | s t a tement | of h is | assets |
| a n d liabilit ies a n d verify the same on oa th before any | Commissioner |
| of t h e Supreme Cour t of t he said Colony for t a k i n g affidavits | who is |
| hereby author ized to adminis te r t h e same in t h e form in t he | Schedule |
| to th i s A c t appended m a r k e d A and if a major i ty | consist ing | of | no t |
| less t h a n three-four ths in n u m b e r and va lue of such person 's | credi tors |
shal l on inspect ion of such verified s t a t emen t duly execute a let ter of l icense to h im for any t ime they m a y t h i n k fit not exceeding the dura t ion of th i s Ac t in t he form or to t h e t enor a n d effect of the Schedule
| here to appended marked B such le t ter of license shall be b ind ing | no t |
| only on those ac tual ly execut ing t he same b u t also on all o ther | t h e |
creditors of t he person in whose favour i t shal l be m a d e as fully and effectually as if such last men t ioned creditors had executed i t t hem selves Provided never theless t h a t no such le t ter of l icense shal l be of any effect u n t i l t he verified s t a t emen t on inspect ion of which the same shal l have been executed wi th a certificate endorsed the reon in t h e form in t h e Schedule to th i s A c t appended marked C and signed by all t he creditors who have signed such le t te r of license shall be filed of record in t h e said Supreme Cour t nor shall any such le t t e r of l icense be held to b ind any credi tor no t execu t ing t h e same unless not ice of i ts existence in t h e form in t h e Schedule here to appended marked D shall be served e i ther u p o n h i m if he resides wi th in t h e said Colony or upon his author ized agent or a t t o rney if he resides out of t he said Colony and unless such not ice shall be publ i shed in t he New South Wales Government Gazette or if such debtor be res ident in the Dis t r ic t of P o r t Ph i l l ip in some publ ic news paper publ i shed in t h e Town of Me lbourne Provided always t h a t a n y
| credi tor res iding in t h e said Colony m a y author ize any person | by |
wr i t i ng u n d e r his h a n d to execute in his n a m e such le t t e r of l icense a n d sign such certificate and t h e agen t or a t to rney of any credi tor res id ing out of said Colony duly appoin ted to act general ly on his behalf may in t he n a m e of his pr incipal execute such le t ter of l icense and sign such certificate.
| 2. A n d whereas a m o n g t h e debts appea r ing in such | verified |
s t a t emen t the re may be book debts and such others as by law would n o t bear interest and i t is expedient and equi tab le t h a t all debts should be p u t on an equal footing Be i t enacted Tha t all book debts a n d other debts of t h a t n a t u r e shall bear in teres t du r ing the cont inuance of such le t te r of license in t he same way as al l o ther debts provided for in such le t ter of license.
| 3. A n d be i t enac ted Tha t before any such le t ter of l icense |
shal l be g r an t ed i t shall be i ncumben t on every such debtor to call a general m e e t i n g of his credi tors in order to lay before t h e m such verified s t a tement as aforesaid and t h e n a m e s of t he aforesaid major i ty of creditors in n u m b e r and value shal l be signed to such le t te r of l icense a t such mee t ing or wi th in t h i r t y days after t h e same shal l be he ld Provided always t h a t any credi tor res iding in t h e said Colony m a y author ize any person to a t t e n d a t such mee t ing on his behalf a n d to vote the rea t and t h e agent or a t to rney of any credi tor resident
| out of t h e Colony duly appointed | as such | m a y a t t e n d | such | m e e t i n g |
a n d vote the rea t on behalf of such credi tor Provided also t h a t seven days ' not ice a t t h e least shall be given of every such meet ing in t he Government Gazette or if such debtor be resident in t he Dis t r ic t
| of P o r t Ph i l l ip | in | some publ ic newspaper publ i shed in t h e Town | of |
| Me lbourne . |
4. A n d be i t enacted Tha t no person shall be accounted as a credi tor for t h e purposes of th i s Ac t who shall owe a debt t o such debtor equa l to or la rger t h a n the a m o u n t entered against h is n a m e in such verified s t a t emen t as a creditor and t h a t any credi tor owing a
smal ler
| smaller debt to such debtor t h a n t h e a m o u n t entered agains t h is | n a m e |
in such verified s t a t emen t shall vote and sign for t h e ba lance only.
5. A n d be it enacted Tha t such le t ter of license shal l on or
| before t he expi ra t ion | of t he said t h i r t y days be filed of record | in | t he |
Supreme Cour t of New South Wales wi th the said verified s ta tement and shal l be the re open to inspection on payment of t he s u m of one shi l l ing and be capable wi th t h e said verified s ta tement of be ing referred to in all proceedings in t he said Cour t in t he same m a n n e r as p leadings may now be Provided always t h a t on t he order of a J u d g e of t h e said Cour t correct ions in or addi t ions to the said le t t e r of l icense and verified s ta tement may be made after t he filing thereof.
6. A n d be it enacted Tha t if any credi tor after hav ing become so bound as aforesaid by such le t te r of license shall con t ra ry to i ts i n t en t issue any process or fail to stay proceedings on any process a l ready issued out of any Court in t he said Colony for t h e recovery of any s u m ment ioned in t h e verified s t a t emen t on which such le t ter of license shall have been g ran ted it shall bo lawful for t h e debtor agains t whom such process shall have been issued to apply on affidavit e i ther to t h e Supreme Cour t in the t e r m t ime or to a J u d g e thereof in vacat ion for a ru l e nisi or an order cal l ing upon t h e credi tor issuing such process to shew cause w h y such process if issued after t he debtor issuing the same shall have become bound by such let ter of license as aforesaid and all proceedings had thereon should not be set aside and all fur ther proceedings s tayed t he r eon or why such proceed ings t a k e n in any process previously issued by a credi tor after he shall have become so bound as aforesaid should not be set aside and such Cour t or J u d g e is hereby directed to order such process to be set aside and fur ther proceeding to be stayed thereon or such pro ceedings to be set aside accordingly as t he case may be and to award costs of t he appl icat ion on its be ing made appear on affidavit t h a t t h e credi tor issuing such process or proceeding on such process a l ready issued as aforesaid was before i ssuing such process or t a k i n g such proceeding on process a l ready issued bound by such le t ter of license as aforesaid Provided nevertheless t h a t n o t h i n g herein shall be cons t rued to prevent any creditor in cases of difference if he con siders the a m o u n t of his c laim is incorrectly inser ted in or improper ly omi t ted from such verified s t a tement to sue for t he same in any com pe ten t Cour t in t h e said Colony and in the event of his ob ta in ing a verdict for any a m o u n t where his claim was entirely omi t t ed in such
| verified s t a tement or for any a m o u n t | grea te r | t h a n the s u m set out in |
| such verified s ta tement where any s u m shall be specified there in then |
he shal l no t en ter u p j u d g m e n t on t h e same b u t shall be ent i t led to have t he amoun t of such verdict wi th taxed costs u p to t he t ime of p rocur ing tin; verdict inser ted in such verified s t a tement and if upon such to ta l sum being so inserted in any such verified s t a tement it shall appear t h a t such major i ty in n u m b e r and value of t he creditors t h e n appear ing thereon shal l no t have executed the le t te r of license g ran ted on inspection of such verified s ta tement such le t ter of license shal l be deemed to be void unless wi thin t h i r t y days from the t ime of t he verified s t a tement being so amended as aforesaid such let ter of l icense shall be executed by as m a n y creditors as will then m a k e u p the three-four ths in n u m b e r and in value in which case it shall b ind t h e pa r ty obta in ing such verdict as aforesaid in t he same way as the o ther credi tors Provided fur ther t h a t if any debtor after his verified s t a t emen t shal l have been filed as aforesaid shall procure any one or more of his creditors besides those who shall have already executed his le t ter of license to execute t he same such execution shall he valid and shall no tw i th s t and ing the creditor or creditors so execut ing shall no t s ign t he certificate hereinbefore men t ioned have t he same
effect as t hough such credi tor or credi tors h a d executed such let ter of l icense a n d certificate as hereinbefore provided b u t no such subse quen t execut ion shal l be b ind ing on t h e rest of t h e creditors in any case where an addi t ion to t h e or ig inal list of l iabilit ies in t he verified s ta tement as aforesaid shall have rendered such execut ion necessary to m a k e u p t h e requis i te a m o u n t in n u m b e r and value unless not ice
| thereof in t h e form in t h e Schedule here to appended marked E | shall |
be before the expira t ion of t h e t h i r t y days aforesaid or a t any t ime before they commence to r u n left a t t h e residence of such of t he credi to rs as reside in t he said Colony or a t t h e residence of t he author ized
| agents or a t torn ies of such creditors as reside out of t h e said | Colony |
| or unless such not ice shall wi th in t he l ike t ime be publ i shed in | t h e |
| New South Wales Government | Gazette. |
| 7. A n d whereas | a debtor m a y t h r o u g h inadver tence omit | to |
| inser t in his verified s ta tement t h e n a m e of some creditor whose | debt |
| he does not in t end to dispute | Be it therefore enacted That i t shall be |
| lawful for such debtor a t any t ime after h is verified s t a t emen t | shall |
have been filed as aforesaid to inser t t he n a m e and the a m o u n t of t he debt of such creditor so omi t ted in his said verified s t a tement such inser t ion to be witnessed by t h e Chief Clerk or other officer appointed for t h a t purpose by t h e J u d g e s of t h e said Supreme Cour t and such debt and inadver tence shal l a t t he t ime of such insert ion be verified and accounted for by affidavit to be filed wi th and a t t ached to his verified s t a t emen t and such addi t ion so made to such verified s t a tement shal l have t h e same effect in all respects as is hereinbefore provided for those cases where t h e a m o u n t of verdic t and costs in any disputed
| m a t t e r shall be inser ted in such verified | s ta tement . |
8. A n d whereas cases m a y arise where verdic ts m a y be recovered
agains t a debtor so obta in ing a le t ter of l icense as aforesaid for other causes t h a n l iquidated damages Be it therefore enacted Tha t such verdic ts if founded on causes of act ion exis t ing before the da te of such le t te r of license shal l w i t h t axed costs u p to t h e t ime of p ronounc ing t h e same be dealt w i th a n d have t h e same effect as hereinbefore provided for verdicts in t h e case of d isputed claims where such verdicts shall be for a sum n o t entered in such verified s t a t emen t as aforesaid or for a grea ter sum t h a n the one entered in such verified s t a tement as afore said.
| 9. A n d be it enacted Tha t in t h e event of any such le t ter | of |
l icense becoming void as aforesaid by t h e inser t ion in t he verified s t a tement of any debt a n d costs recovered as aforesaid or by any
| t en t ly omi t ted t hen n o separate j u d g m e n t shal l be entered up against | addi t ion made the re to by any debtor as aforesaid of any debt inadver |
| t h e debtor in whose favour such le t ter of l icense shall have been g ran ted by any of h i s creditors for the i r individual debt bu t i t shal l be competent for t h e said Sup reme Cour t in t e r m t ime or any J u d g e thereof in vacat ion on t h e mot ion of any credi tor and on affidavit of t h e c i rcum |
| stances to order a j u d g m e n t to be s igned in t h e n a m e of the | pr incipal | |
| credi tor for t h e whole a m o u n t of t h e debts | specified in | such | verified | |
| s t a t emen t w i th t h e costs of t h e appl icat ion a n d to order a wr i t of | fieri | |
| facias to be issued the reon and lodged for thwi th w i t h t he Sheriff of t h e said Colony or his lawful depu ty wi th a copy of t he verified s ta tement of t h e debtor against w h o m such wri t shall be issued and the said Sheriff or h is depu ty shall t he reupon cause a levy to be made of all the proper ty of t h e said debtor a n d shall proceed to dispose thereof as such majori ty in n u m b e r and value of t he credi tors of such debtor shall requi re by |
| notice in wr i t i ng to be served on h i m for t h a t purpose or in default | of | |
| such not ice wi th in one m o n t h from t h e t ime of t he writ be ing lodged t h e n in such m a n n e r as any J u d g e of t he said Cour t shall by order unde r his h a n d direct and the proceeds realized shall be divided ra teably among |
all
| all t h e credi tors ment ioned in t he said verified s t a t emen t | Provided | tha t |
n o t h i n g here in contained shal l he cons t rued to prevent any credi tor after such division from proceeding separately against such debtor in any m a n n e r be m a y t h i n k fit for any a m o u n t t ha t m a y then remain due to h i m and provided fur ther t h a t no creditor shall be ent i t led to receive any p a r t of t h e money realized on such levy from the said Sheriff unless he shal l first p lace or cause to be placed in t he hands of t he said Sheriff an affidavit sworn by h i m or some credible person on his behalf o ther t h a n t he debtor himself before some Commissioner of t h e said Sup reme Cour t for faking affidavits shewing t he a m o u n t of his debt and how it was incur red all which affidavits t he said Sheriff is hereby directed to file in t h e said Supreme Court the re to be placed
| wi th t he original verified | s ta tement . |
10. A n d be it enacted Tha t it shal l be lawful for any one or more of t he creditors inserted in any such verified s t a t emen t as afore said a t any t ime after the execut ion of any such le t ter of l icense upon giving one m o n t h ' s not ice in wr i t i ng u n d e r his or the i r h a n d s to t he debtor who shal l have obtained such le t ter of l icense to cause h im to lay before h i m or t h e m an exact s t a t emen t of his affairs a t t ha t t ime and of w h a t he has been doing wi th h i s assets since he obta ined his letter of l icense and also to inspect his personal p roper ty and if such debtor shall neglect or refuse to give such s ta tement or allow such inspection it shal l be lawful for any of his said creditors to apply on affidavit of t h e c i rcumstances to t h e Supreme Cour t in t e r m t ime or to a J u d g e thereof in vacat ion for a r u l e nisi or a J u d g e ' s summons call ing upon t h e debtor so neglec t ing or refusing to shew cause why his le t te r of license should no t be adjudged to be void and it shall be declared by such Cour t or J u d g e to void accordingly unless on hear ing the m a t t e r reason be shewn to t he satisfaction of such Cour t or J u d g e for such neglect or refusal and in t he event of such le t ter of license be ing t h e n declared void proceedings shall be t a k e n in all respects thereaf ter as is hereinbefore provided in t h e event of a le t te r of license being declared void.
1 1 . A n d l)e i t enacted Tha t if any of the credi tors of any
debtor who shall have obtained such le t ter of license as aforesaid shall discover after t h e execut ion thereof t h a t any false ent r ies or ma te r i a l omissions have been made in such verified s t a tement as aforesaid or t h a t t he debtor to whom such le t ter of license has been granted is
| or not in such verified s ta tement or t ha t he is t a k i n g steps to defraud | mak ing away wi th any of his effects whe ther the same be enumera ted |
| his said credi tors of t he proceeds thereof or to lessen in any way his means of pay ing his credi tors the i r j u s t debts or t h a t he in tends and is t a k i n g or has t aken steps to leave t h e Colony i t shal l be lawful for t he said Cour t in t e r m t ime or for a J u d g e thereof in vacat ion on appl icat ion suppor ted by affidavit t o t he above effect to g ran t a rule |
| nisi or a J u d g e ' s summons call ing upon such debtor to shew cause why |
| his le t ter of l icense should not be declared void and such Cour t or J u d g e is hereby empowered to declare such le t te r of l icense void if it shal l appear to t h e satisfaction of t h e said Cour t or J u d g e t h a t t h e said debtor is gui l ty of any of the above ac ts a n d such Cour t or J u d g e is also empowered on affidavit of belief and the g round of such belief t h a t such debtor is about to leave the said Colony in addi t ion to g r a n t i n g t h e ru le nisi or summons as aforesaid to issue a wri t of capias ad respondendum in such form as such Cour t or J u d g e m a y prescribe to t a k e t he said debtor and hold h im over in sufficient bai l no t to leave t he said Colony un t i l he is discharged from his debts by due course of law and if t h e said Cour t or J u d g e shall on hea r ing t he ma t t e r s afore said declare such le t t e r of license as aforesaid to be void such Court or |
J u d g e
J u d g e shal l a n d may order j u d g m e n t to be en te red u p in t h e n a m e of t h e pr inc ipa l credi tor as before provided for and proceedings shall be t aken thereon in all respects as is hereinbefore enacted in the case where j u d g m e n t is au thor ized to be en te red up in t he n a m e of t he
12. A n d be it enacted Tha t i t shal l be lawful for any creditor whose n a m e shall have been inserted in or added to any such verified s t a t emen t filed as aforesaid if he shal l be of opinion t h a t t h e n a m e of a n y person s igning any such le t ter of l icense as aforesaid is im proper ly inser ted as a credi tor in t h e verified s t a t emen t on inspect ion of which such le t te r of l icense shall have been g ran ted or is inserted the re in for a grea ter a m o u n t t h a n is due to h i m to apply to t he said Supreme Cour t in t e r m t ime or to a J u d g e thereof in vacat ion upon affidavit of t he c i rcumstances for a ru le or order which such Cour t or J u d g e is hereby empowered to issue direct ing such person so suspected of be ing improper ly inser ted in such verified s t a t emen t to file in t he office of t he said Supreme Cour t an affidavit s ta t ing t ha t t he sum for which his n a m e was inser ted in such verified s t a t emen t was due at t he t ime i t was so inser ted as well as how t h e same became due and copies of such ru le or order shal l be served personal ly on t h e debtor who filed such verified s t a tement as well as upon t h e person ordered to file such affidavit and if wi th in one week after such ru le or order shal l have been so served where the person directed to file such affidavit resides in t h e City of Sydney or Town of Me lbourne in t h e said Colony or w i th in t h i r t y days where he resides in any o the r p a r t of t he said Colony such affidavit shall no t be filed in obedience to such ru le or order t h e n i t shall be lawful for t h e credi tor a t whose ins tance such ru le or order m a y have been issued on affidavit of t h e c i rcumstances to app ly to t h e said Supreme Cour t in t e r m t ime or to a J u d g e thereof in vacat ion for an order to s t r ike the n a m e of t h a t person out of t he verified s ta tement on which such license may have been gran ted and if t he requis i te n u m b e r of credi tors shall no t t h e n appear to have executed