Debtors relief (1842) (WA)
WESTERN AUSTRALIA.
ANNO SEXTO
VICTORIA] REGINA].
No. XI.
An Act for the relief of Insolvent Debtors
not in custody.
HEREAS it is expedient that the rights of creditors, and the
V V property of debtors, should; be ;protected from the injurious
consegnences of ill-advised and vexatious executions;, and, that the
ind tthernent which atpresent exists to .sorne creditors to issue executions
the prejudice ofithe sights Of others' should be removed ; and that
| 6th Viet. No. H. | 1842 |
every facility should be afforded to debtors desirous to consult the
the interest of all their creditors :—Be it therefore enacted by His Excellency the Governor of Western Australia, by and with the advice and consent of the Legislative Council thereof, that, from and after the passing of this Act, it shall be lawful for any person, or persons,
Any insolvent mny peti- or any public, body, company, or trading firm or copartnership, to
| gicEn | chat rh | C | friovm | i 1 L°butuels°.r apply | 11 ply to the Civil Court of this Colony by petition in writing, setting forth that he, she, or they, is or are insolvent, and praying that he, she, or they may be declared insolvent by the Court, and that his, her, or their effects may be distributed for the benefit of his, her, or their creditors, and for alull and perfect discharge from all his, her, Or their then existing debts and liabilities; which petition shall be subscribed by such petitioner or petitioners, and after presentation to the said Court, or to the Commissioner thereof at chambers, shall be filed therein of record. |
| petitioner to | sel:e• | AND be it enacted, that with such petition shall in like man- |
| auktof | an newts |
to be tiled in the Court ner be presented to the said Court a schedule, containing a full, true
and particular account and description of all the persons to whom such petitioner shall then be indebted, or who to his knowledge or theliel shall claim to be his creditors, together with the nature and amount of their debts and claims respectivel y ; and the bona fide considerations of, or for, such debts and claims respectively ; distin- guishing admitted debts or claims from debts or claims disputed ; with the additions and places of abode of all such creditors or persons claiming to be creditors respectively ; and a full true, and particular account and discovery of all the estate and effects, real and personal, in possession, reversion, remainder, or expectancy, of every nature and kind whatsoever, which such petitioner, or any person in trust for him, or for his use, or benefit, in any manner shall then be seized, or possessed of, or interested in, or entitled unto, either solely, or j ointly with any other person, or persons, or which such petitioneror any person in trust for him, or for his benefit, either solely or
jointly with any other person or persons, at the time of the presen-
tation of such schedule shall have any power to dispose of, or charge
for the benefit of him the said petitioner ; together with a full, true
and particular account of all debts then owing to such petitioner, or
to any person in trust for him, or for his benefit, either solely, or
jointly with any other person, and the names, additions, and placesof abode of the persons from whom such debts shall be due, and which,
and what part, or parts, of such estate and effects shall at the time of the presentation of such schedule be in any manner applicable to
1842. 6th Viet. No. 11.
the discharge of the demands of his creditors, or can be made available for their benefit; which Schedule shall be subscribed by the petitioner in the presence of two witnesses, and after the presentation thereof as aforesaid be by the petitioner filed in the said Court of Record, together with all Books, Papers, Deeds and Writings in any way relating to such Petitioner's estate or effects in his or her pos- session, custody or controul—Provided that in else it shall upon any examination or hearing as hereinafter mentioned appear, that any sche- dule is defective by reason of any unintentional mistake or omission therein, it shall be lawful for the Court to permit the same at the discretion of such Court to be thereupon forthwith amended, and that every creditor of the said insolvent shall be entitled to view the said schedule at all reasonable times, and to make extracts therefrom for his-or her or their private use.
III. AND be it enacted, that thereupon, or as soon after as con- A day to be appointed for
| veniently may be, a day and place shall be appointed by the said the hearing | of the petition. |
| Court, or the said Commissioner at chambers, for the bearing of the matters of the said petition, and the said Court or Commissioner shall at the said time order notice to be given by the petitioner, or some person on his behalf, in one or more of the public newspapers, and in such other manner as the said Court or Commissioner may in each case think fit, to le several creditors of the petitioner, or their agents, of the presentation and filing of such petition and schedule, and of the day and place so appointed ; and in the meantime, | |
| if it appear to the said Count() be expedient, it shall be lawful for | |
| the saidCourt orCommissioner toappoint some Officer of the Court, or other person, as and to be provisional assignee of the estate and effects of the said petitioner. |
| ineebotto:ftopreoxpeeeru | tytea | tceap | igrno: |
| IV. | AND bD | e | it | enacted | dh | , that such petitioner shall | , immediately | t |
after the presentation of such petition as aforesaid, duly execute a visional assignee.
conveyance and assignment to the provisional assigneeyt the Court, in the form in the annexed schedule, of all the estate„ right, title, interest, and trust of such petitioner in and to all the real and per- sonal estate and effects of the said petitioner, both in this colony and elsewhere, and of all future estate, right, title, interest, and trust., of such petitioner in onto any real or personal estate or effects within, this Colony or elsewhere, which such petitioner may purchase or which may revert, descend, be devised, or bequeathed, or come to him, or her, or become due to him or her before the day so appointed as aforesaid for hearing the matter Of his or her petition, and of all debts due or growing due or to be due to him or her before the day
| 6th Viet. No. 11. | 1842. |
| last aforesaid, which conveyance and assignment, so executed as aforesaid, in form aforesaid, shall vest all the real and : personal estate arid effects of such petitioner, and all such , future estate and effects as aforesaid, of every nature and kind whatsoever, and all snch. debts | • | , |
as aforesaid, in the said provisional assignee—Provided , always that
| Allowance to petitioner i t-shall he law fu l for the said Court, immediately after the execution ; | 9n C |
| for sustenance between |
| assignment and hearing. of conveyance and assignment to order and direct that toe pro- | such |
visional or other assignee shall pay or allow to such debtor out of any assets which may come to the hands of such assignee under:or
by virtue of such conveyance or assignment such daily ,or other
periodical gum as the Court in its discretion shall : seem meet for4esustenance of such debtor and -his family between the date of .such
orde •-and the day appointed for hearing the matters of his petition.
V.. AND be it enacted, that from and after the due execution of
Execution not to issue such con vey ance and assignment as aforesaid no process of execution
| mem for any debt in the snail Issue against the propertyof the petitioner for, or respect of, | after execution of assign- , |
| schcdule• any debt or liability which shall haveheen included in such schedule, |
or amended schedule, -as aforesaid, unless and until his petition lie dismissed by the said Court as hereinafter mentioned, except ,such process as ma y issue by order of the said Court on any judgmeatto
| . | be entered .up trader any such warrant of attorney ms .hereinafter |
mentioned.
, •
VI. AND be it enacted, that it shall be lawful for the said prp..
visional assignee to take possession himself, or by a messenger ofthe
| Provisional assignee | to |
| take possession, and, | ir Court, or other person or persons, appointed by him, of all the real |
| ordered by the Court, | |
| dispose of the property | toc'r and personal estate and effects of every such . petitioner • and if the Court shall so order, to sell or otherwise dispose • of: sirch personal estate and effects, and out of the proceeds thereof to defray all such cosis anti expenses of taking possession and disposing of the same, as shall be allowed by the "Court ; , and to ancoUnt for the :piOnce of |
| the debtor. |
| such sale or disposition to the 'Court. | ' |
| Provisional nssignee may | VII. AND be it enacted, that it shall be lawful for the said pro- |
sue for nod recover debts. visional
| assionee to sue in his own palm; if the Court shall so order, for the recovering any estate, debts, effects, or right& of any :such petitioner, | 2,, |
Property in hands of pro- VIII. ..AND be it enacted, that if such provisional assignee shall
visional assignee roberesign, or be removed from hisffice:s. uch estates, monies, and effects,
| vested | d in his successor on |
| resignation, site. | so vested in him by virtue of any such conveyance or assignments |
1842. 6th Viet. No. 11.
as aforesaid, shall riot remain in him, nor be vested in his assigns,
heirs, executors or administrators, bit shall in every such ease go to,
and, be vested in, his successor in office appointed by the said
',Court.
| . | . |
IX. AND be it.enacted, that, if upon the day appointed for the Proceedings on hearing
hearing of any such petition as aforesaid no' creditor shall appear to where= creditor appears.
oppose the same, it shall lawful for, the said Court to give the said
petitioner (upon his or her swearing to the truth of his or her schedule) a full and perfect discharge from all the debts in the laid schedule, and from all liability arising therefrom, or in its discretion to postpone the hearing of such application to a future period : or to dismiss such petition.
| AND be it enacted, , that if upon the day so appointed as aforesaid for hearing the matters of such petition it shall appear to | Zo | totirese foofrrnettle | tT ?ea; |
X.
the Satisfaction of the Court that the petitioner is in fact insolvent, signee•
then the said Court shall declare him to be insolvent accordingly,
And thereupon the said provisional assignee shall summon a meeting
of the creditors of the said petitioner by notice in the Gazette and such other newspaper Or newspapersas the said Court shall direct, for any day not less than 'one month nor more than three months from the day of Such hearing as aforesaid to choose an assignee or assignees of the estate and effects of such insolvent by the votes of a majoritymajOrity in numbers and value of such creditors; or their lawful agents present at such meeting.
XI. AND be it enacted, that the choice of an assignee or assignees General effect of appoint•
at any such meeting as aforesaid shall have the effect of immediately meat of assignees,
transferring to and vesting in such assignee or assignees, subject to the orders-of the Court, in trust for the creditors, and thereupon and thenceforth of divesting from , the, provisional assignee all and every the estate and effects, both real ;and personal, rights, duties, claims choses in action, and powers, of suchinsolvent, previously vested in such provisional assignee, ,together with all deeds and , writings res- pecting the same, and every, such, assignee : or assignees during the term.of his,or their appointment . shall have such and the like means of recovering, and disposing of, the said estate, effects and property, and of enforcing the said rights, claims, and interests, and, of executing the said powers, in his, or their name, or names, as such assignee; or assignees; as the insolvent 'would, or might; have had if he had, not been declared insolvent—Provided always, that it shall be lawful
| 6th Vict. No. 11. | 1842, |
for the Court to direct such assignee or assignees to permit the in- solvent to retain to his own use such of the wearing apparel, bedding, and other necessaries of such insolvent and his family, not exceeding in the %%hole the value of Fifty Pounds, as the said Court shall think fit, and all such articles so permitted to be retained, shall thenceforth be exempted from the operation of this Act, anything in this Act contained to the contrary notwithstanding.
| . | AND be it enacted, that upon the day • so appointed as |
| Coarttobearinsolvent and aforesaid for hearin | creditors, and to examine• the matters of suchpetition. and upon every or |
| witnesses, &c, any day to which such hearing shall be adjourned, it shall be lawful |
for the insolvent and any of his creditors to be heard before the said Court, either in person or by counsel, in support of, or in opposition to, his petition, and the whole matter and substance of such petition shall, or may, be enquired into and examined by the said Court, or by any such creditor or creditors, as well respecting the claims of the
creditors who shall be absent, as of those who shall be present, and
it shall be lawful for the said Court upon any such hearing, or at any time within six months after the presentation of the insolvent's petition, upon the application in a summary form of any assignee or creditor of such insolvent, as often as occasion may require, to summon such insolvent, or his wife, or any other person who shall be known or suspected to have any of the estate or effects of such insolvent in his, or her possession or controul, or any person whom such assignee or creditor shall believe to be indebted - to the insolvent, or to be capable of giving information to enable the said Court or the assignees more easily to discover, or obtain possession of, the estate and effects of such insolvent, or any person professing, or stated in the schedule, to be
a creditor of such insolvent, and to examine the said insolvent, or his
wife, or such other person as aforesaid, or such professed or stated creditor, before the said Court in the same way as any witness may be examined before the said Court in any action at law—Provided, that where any such person shall reside more than sixty miles from the place of the sitting of the said Court, or shall he incapable of attending by reason of sickness or infirmity, it shall he lawful for the said Court to permit interrogatories to be exhibited to such person for his or her examination and cross-examination upon oath before
any person to be by the said Court for that purpose appointed.
Before adjudication Ind-,
| tioner to execute warrant | XIII. AND be it further enacted, that before any adjudication |
of attorney to contessjudg-
| moot for amount of debts | shall be made in the matter of any such petition | b | , the said C | Court | shall |
| 1E342. | 6th Viet. No. 11. |
| the entering up of a judgment against such petitioner in the said di rect tt o tetxme ec utthe 32C o utrot e an | require the petitioner to execute a Warrant of Attorney to authorize in schedule on which from. | |
| ||
| amongst the creditors of such petitioner, and such further proceedings | ||
| shall and may be had upon such judgment as may seem fit to the |
| • | discretion of the said Court from time to time, until the whole of the debts due to the several persons against whom such discharge shall have been obtained shall be fully paid and satisfied, together withsuch costs |
as the said Court shall think fit to award ; and no scire .facias shall be
necessary to revive such judgment . on account of any lapse of time, but execution shall at all times issue thereon by virtue of the order of the said Court—Provided always, that in case any such applica- tion shall appear to the said Court to be ill-founded and vexatious, it shall be lawful for the said Court not only to refuse to make any order on such application, but also to dismiss the same with such costs against the party or parties making the same as to the said Court shall appear reasonable, and the said costs shall be paid accordingly.'
XIV. AND be it enacted; that the real estate of any such peti-
tioner either in possession, reversion, or expectancy, shall be sold at side of petitioner's real es- such time or times, in such mode.or manner and at such place or tate, how, whelland where. ,places as shall be approved in writing under their hands by the major
part in value of the . creditors of such petitioner, who shall meet together on notice of such meeting published thirty days previous thereto in the Government Gazette and in some other newspaper published within this Colony.
| 6th Viet. No. 11. | 1842. |
XV. AND be it enacted, that the assigneeor assigness for the
| , | ,. |
| Assignees to render ac: Urne, being of every such insolvent shall once in every three months | ounts. Proviston for Ap- | |
|
the Registrar of the said Court a jtist and true account in writing of all the effects, monies and property collected, received, or possessed by him; or them, as such assignee Orassignees, and ofthe sale, disposal, appropriation,* distribution thereof respectively.; and every such account shall be Signed by the assignee, , or assignees, so rendering the same, and be afterwards filed in the said Court of Record. And it shall be lawful for the said Court at any time, upon any application of; or complaint made in a summary way by the insolvent, or any Person interested in the due distribution of such insolvent's estate or without any such application or coMplaint, to remove any assignee or assignees so appointed for neglect of duty in that or any other respect, and to appoint another, or other, assignee or. assignees, in his or their , place and stead, and also to appoint a new assignee or assignees in the place or stead of any assignee or assignees who may have died in the Colony or may be desirous to depart therefrom, or may become incapable to act from, sickness or otherwise; and every, such appointment shall have the effect of divesting from any assignee so displaced or , replaced; and of vesting in such new assignee
er assignees(together with the surviving or continuing assignee.or
assignees, if any) all and every the estate and'effects both real and personal, rights, duties, claims, choses in action, and powersof such insolvent then remaining to be distributed under the provisions of this Act ;_ and no action, suit, or proceeding, relative to the affairs of, such insolvent's estate shall abate or be otherwise prejudiced; by reason of any such death, departure, or new appointment ; but the same may be continued or in the name or names of the con- tinuing or surviving assignee or assignees, or the assignee or assig- nees so newly appointed—Provided that if it shall at any time be made to appear that no further assets of the insolvent remain to he distributed or disposed of; or are likely to be collected, by any such assignee or assignees, then it Shall be lawful. for the,said Court to audit and• allow all such accounts of. such assignee or assignees, and to grant to him or them thereupon his or their .discharge in respect thereof.
XVI. AND be it enacted, that in case any such assignee so- re-
| Assignees removed, tc., moved or replaced as aforesaid; or the heirs executors;adminis- | failingto deliver up ussets, | |||
| ||||
| imprisonment. |
1842. 6th Viet. No. 11.
for and deliver up all the effects, monies, and property7booki,ipapers;3 Writings.; deeds and evidences of, and belonging to the estaterof any' insolvent in his, her, or their hand or hands to the- surviving 6rsCOIF-7
timing or new assignee or assignees of such insolvent, in Jobedienãe;
to - the order . of the said Court made thereupon, and after serviee-Of
cent of such order, it shall and may be lawful for the said Court tOt
order the person or persons so offending to be arrested and committed: to any Cominón Gaol, thereto remain without bail until such person or persons shall have complied with such order or until the said Court shall make order to the contrary.
XVII. PROVIDED always, and be it enacted; that if the ma-
jority in numbers and in value of the creditors of the insolvent shall, in what ease insolvent's by writing under their hands attested respectively by two witnesses, !it'll:. Pr°11C"Y n" b. • consent absolutely to release and forego all claim to and interest in
the future or after acquired, property of such insolvent, then upon
the production to the Court of such written consent, and upon ail-.
davit at the same time made and filed by the insolvent that such. consent was fairly obtained by him, and without any money or other consideration paid, or given, or to be paid, or given, or contract or. security of any kind entered into by`such insolvent, or; to , the best of his knowledge and belief, by any 'other / person, to persuade or induee. -any creditor' to sign, 'or give sueh'eonsent, the Court shall direct the Warrant. of Attorner(iftnny)'execitted by such petitioner to be . given up Ito such petitioner; of his °vier lawful representatives to be cancelled, and the .judgment . (if any) entered upthereon . to be
vacated; and that thenceforth every debt included in such schedule•
as aforesaid shall be and be deemed absolutely released and discharged -to all intent's' and purposes whatsoever—Provided that no creditor signing such consent as aforesaid, whose debt is below Ten Pounds,':. shall be reckoned in number, but his debt shall only be computed
in value .--J-Provided further; that: no:damages recovered against any
Such'insolvent Many action for Criminal Conversation, ,or Seduction,
or Breach . of Promise of Marriage,., or :for a ,Malicious Prosecution,
or for Libel, Slander; or any other Malicious Injury, or any costa recovered-in any such action ? shall be deemed to be discharged by
any such release asaforesaid; unless the party entitled to such damages
or_costs shall join in and sign such release.
| jtVIII." PROVIDED always and be it enacted, that if at any icawicaotr: | CeoftrSOShOgiOur | tyorma | disy- |
| timp within tstelttine | ntha aftthihe. making- of an | y such order of | . |
discharge from liability as aforesaid, it shall, open the application of
| 6th Viet. No. 11. | .184- |
any creditor of the insolvent, appear to the satisfaction of the •.Court that such insolvent bath obtained such order of discharge by or through the means of any fraud, deceit, concealment,•isrepresen- tation, or undue practice whatsoever, it shall be lawful for the Court to declare such order of discharge to he absolute, null and void, and thereupon and thenceforth it shall be lawful for every creditor of such insolvent to proceed against such insolvent, and against all his then unapplied, and all his future or after acquired property and effects, the same as if such order of discharge had never been obtained —Provided that in case any such application shall appear to the Court to be vexatious, or ill-founded, it shalt be lawful for the Court in its discretion to dismiss the same with costs.
| On satisfaction of ached- | X IX. AND be it enacted, that if any such petitioner as aforesaid |
rated debts,Courtto direct shall execute such conveyance and assi gnment as aforesaid but shall
re-assignment to petal-
| crier. | fail to obtain such release or discharge from the Court or from his creditors as hereinbefore mentioned, and it shall be made to appear at any time thereafter to the satisfaction of the said Court that all the debts stated in the schedule of such petitioner have been paid or satisfied ; it shall be lawful for the said Court on the application of such petitioner or his lawful representatives, to order and compel the assignee or assignees for the time being forthwith to execute a re- conveyance and re-assignment to such petitioner, his or her heirs, executors, administrators or assigns, of all property remaining in the possession or subject to the controul of such assignee or assignees by virtue of such conveyance and assignment or otherwise by virtue of his or their office of assignee or assignees, and in every such case the said Court shall direct the Warrant of Attorney (if any) executed by such insolvent to be given up to him to be cancelled and the judgment (if any) entered up thereon to be vacated. |
| Certain offences to | be XX. AND be it enacted, that if any such insolvent or person |
| deemed felonies. | praying to be discharged under the provisions of this Act shall. wilfully embezzle, secrete, conceal, or •omit to. discover any part of his real or persanal estate or effects above the value of two pounds, with intent to defraud his creditors or to diminish the funds or amount to be distributed amongst them,-or shall knowingly and wilfully inseit, or omit, or cause to he inserted or omitted, in his schedule any matter or thing whatsoever contrary to or for the purpose "of concealing the truth, such insolvent or petitioner shall be deemed guilty of felony, and shall be liable to be imprisoned for any term |
| 1842.- | 6th Viet, No. 11. |
not exceeding three years, or to be transported for any term not
exceeding seven years, as the Court shall think fit to order. And False swearing to be sub.
| any occasion wilfully forswear himself in any oath taken under the | any such insolvent or petitioner or any other person who shall upon 4at the penalties ofper- |
| provisions of this Act, shall suffer such punishment as by law may lse inflicted for wilful and corrupt perjury. |
XXI. AND he it enacted, that in all cases in which no provision
| or no sufficient provision in that behalf is by this Act made, it shall | aw | ouarrtdincaoystem.akerules |
| be lawful for the said Court from time to time, upon any application a | and C |
| in a summary way made for that purpose, or without any such application, to make and prescribe all such rules and orders, touching and concerning the discovery, collection, disposal, and distribution of the estate, debts, and effects of the insolvent, and the manner of proceeding before, or applying to; the said Court, under this Act, and likewise in respect of the several Fees payable by or to any person or persons, and otherwise for facilitating or more fully carrying into effect the' objects of this Act, as to the said Court shall seem expedient, and such Rules and Orders from time to revoke and alter, as to the Court shall seem requisite; and all Rules and Orders so made and prescribed shall be of the same force and effect as if they had been inserted in this pa sent Act ; and the said Court shall in all cases whatsoever of application made to, or proceedings had, or taken, before, or by authority of, the said Court, have full power to award or refuse costs at its discretion, such costs to be paid out of the insolvent's estste or by and to such party or parties,,„as the Court shall in each case think fit to order. |
XXII. PROVIDED always and be it enacted, that this Act shall
| not extend to or affect any debt or sum of money due to Her Majesty. certain casesto which the | Act is not to extend. |
XXIII. AND be it enacted, that this Act may be amended or Act natty be amended.
repealed by any Act to be passed during the present Session.
JOHN HUTT.
GOVERNOR.
Passed the Council
2 tst July, 1842.5
EDWARD C. SOUPER,
Acting Clerk of the Council.
| 6th Viet. No. 11. | 1842 |
SCHEDULE REFERRED TO BY THE ANNEXED ACT.
FORM OF CONVEYANCE AND ASSIGNMENT.
| This indenture made the | day | in | |
|
B, real and personal, vested and future of every nature and hind whatsoever, with their and every of their rights and appur- tenances unto the said C D, his successors acid assigns, according to the respective natures, properties; and tenures thereof. In trust neverthe- lesi to and for the use, benefit and advantage of the creditors of the
yea?• of our Lord one thousand fro., between A B of sixth gear of the reign of Her Majesty Queen Victoria in that behalf, of the other part. Whereas the said A B has this day filed hid (or her) petition to the Civil Court, praying for his (or her) discharge from his (or her) existing debts and liabilities by virtue of the said: Act. Now this indenture witnesse th: that in obedience to the said Act he (or she) the said A B doth hereby convey, assign, transfer andset over unto the said CD, as such Provisional Assignee as aforesaid, his successors and assigns, all the estate, right, title, interest and trust the said A B'in and to all the real and personal estate and effects' of the said A B both in the said Colony and elsewhere, together' with all deeds, evidences, and writings touching and concerning the said estate and effects and all future estate, right, title, interest and trust of the said A B in and to all the real and personal estates andi effects within the said Colony or elsewhere which the said A B may purchase, or which may revert, descend, be devised or bequeathed, or come to him (or her) or become due to him (or her) before the day; appointed by the said Court for hearing the matters of his (or her) petition, together with alt deeds, evidences, and writings touching and concerning the same, and all debts due or growing due to the said A B. To have, hold, receive, and take all and every the said estate and effects of the said A
in the Colony of Western Australia ofthe one part
and C D, Provisional Assignee of the estate . and effects of the said
| 1842, | 6th Viet. No. 11. |
said A B under the provisions of the said Act. Provided always that these presents are upon this express condition that in case the petition of the said A B shall be dismissed by the said Court, then these presents and the conveyance and assignment hereinbefore made shall from the dismission of such petition be null and void to all intents and purposes.
In witness whereof the said parties have hereunto set their hands
and seals the day and year first above written. •
Signed, sealed, and delivered by the abovenamed A B and C 1) in the presence of
Printed by authority of the Government, by IL. Stirling, Printer.
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