Debtors’ Relief Act 1840 No 29a (NSW)

No. XXIV.

An Act to revive and continue for a limited time an Act passed in the Second Year of the Reign of Her present Majesty for the relief of Debtors in execution for Debts which they are unable to pay and to make certain

Amendments therein. [20th October, 1840.]

of Her present Majesty Queen Victoria intituled " An Act to revive

W H E R E A S an Act of the Governor and Legislative Council of New South Wales was passed in the second year of the reign

" and continue for a limited time an Act passed in the second year of " the reign of His late Majesty King William the Fourth intituled " ' An Act for the relief of Debtors in execution for Debts which they " ' are unable to pay' " which said Act was to he and continue in force until the first day of October one thousand eight hundred and forty and it is expedient that the same should be altered and amended and

2 Y — V O L . 2. except

except in as far as so altered and amended should he revived and con­ tinued for a limited time Be it therefore enacted by His Excellency the Governor of New South Wales with the advice of the Legislative Council thereof That the said recited Act shall by virtue of this Act be adjudged deemed and taken to have been in full force and effect from and after the said first day of October until the passing of the present Act and from thenceforth as hereby amended shall be and continue in the like force until the first day of October one thousand eight hundred and forty-two.

2. Provided always and be it enacted That after the passing of this Act the schedule of every prisoner need not be deposed to by any affidavit but the insolvent shall be examined on oath as to the con­ tents thereof viva voce at the hearing and such schedule shall be either in the form prescribed by the said recited Act or in such other form as the Judges shall from time to time prescribe and it shall be lawful for the Judge presiding at such hearing or at any adjournment thereof to allow or direct any amendment or amendments to be made of and in any such schedule as the justice of the case may require or to remand the insolvent for the purpose of making any such amend­ ment.

3. And be it enacted That it shall be lawful for the Judge before whom the rule for bringing up the insolvent shall be return­ able to dispense with service of the schedule and of such rule upon the detaining creditor in any case (if such shall appear to be proper) on such terms as to such Judge shall seem meet and also that in any case such amount in value shall or may be allowed by such Judge to be retained by the insolvent of his or her apparel bedding and neces­ saries less than twenty pounds as to such Judge shall under the cir­ cumstances seem proper.

4. And be it enacted That from the time of the filing of the schedule of any prisoner under the said recited Act (so by this Act revived and continued as aforesaid) all and singular the estate and effects real and personal whether in possession reversion remainder or expectancy and also all the rights monies debts and credits of such prisoner shall (subject to the control of the Court and to the award or determination of the presiding Judge at any such hearing as aforesaid) be and continue to be vested in the detaining creditor or creditors or (if such Court or Judge shall at any time so order) in such assignee or assignees as shall be named by such Court

hearing of the case shall or lawfully may at any time and from time or Judge for the benefit of such creditor or creditors and after the first	to time be sold or otherwise disposed of as the Court or such Judge
shall direct or (in the absence of any such direction) as such creditor or assignee may think best and whenever any purchaser shall (for better security) so require it shall be lawful for any Judge to direct the insolvent at any time to concur in any such sale or disposition and the non-compliance with any such direction shall or may be dealt with and punished as for a contempt of the Court.
5. And be it enacted That in every case where under the seventh section of the said recited Act the insolvent is punishable for or in respect of any act done or committed after the commencement of his or her imprisonment in execution such insolvent shall be equally liable to punishment although such act was done or committed prior to such imprisonment and in every case where it shall be made to appear that the insolvent hath culpably squandered his means or put his creditor to any unjustifiable and unnecessary expense it shall be lawful for the Judge to order and direct the said insolvent to be com­ mitted to the common gaol for such period or periods not exceeding one year in the whole as to such Judge shall seem proper.

6. And be it enacted That in all cases where a debtor discharged under this or the said recited Act shall be again taken in execution in respect of any sum or demand due at the time of such discharge it shall be unnecessary for him to file any fresh schedule except in respect of property (if any) subsequently acquired by him but a rule or order may be obtained under the said Act upon a certificate (to be recited therein) of such former discharge which need bo served upon the detaining creditor's attorney only and may be made returnable at any time two days after service Provided that in all other respects the proceedings under such rule or order shall be the same as if this present section had no existence.