Insolvency Act 1841 No 17a (NSW)

No. XVII .

An Act for giving relief to Insolvent Persons and providing for the due Collection Admin­ istration and Distribution of Insolvent Estates within the Colony of New South Wales and for the prevention of Frauds affecting the

person

same. [29th December, 1841.]

WH E R E A S i t is expedient and necessary to m a k e provision for giving re l i e f to such persons as by misfor tune and wi thout	having been gui l ty o f fraud or dishonesty are or m a y become insolvent
and for the due col lect ion adminis t ra t ion and dis t r ibut ion of insolvent estates w i t h i n the Colony of N e w Sou th W a l e s and for t h e prevent ion of frauds affecting t h e same Be it therefore enac ted by H i s E x c e l l e n c y
the Governor o f New Sou th W a l e s wi th the advice of the Legis la t ive
Counci l t he reof T h a t i t shall and m a y be lawful for the Ch ie f J u s t i c e for the t ime be ing o f t h e Supremo Cour t o f New South W a l e s to appoint some fit and proper person resident at Sydney to be Chief Commiss ioner o f I n so lven t E s t a t e s in and for al l parts o f the Co lony
not be ing wi th in t h e D i s t r i c t o f P o r t Ph i l l ip and for the President
J u d g e in the Dis t r i c t o f P o r t Ph i l l ip to appoint some fit and proper

person resident at Me lbourne to be Chief Commiss ioner of Inso lven t E s t a t e s in and for the said distr ict and for the said Ch ie f J u s t i c e and

Res iden t J u d g e respect ively to appoint such Commiss ioners resident

in t h e count ry par ts o f the said Colony and o ther min is te r ia l officers as m a y b e necessa ry to carry in to effect t he provisions of th i s A c t and such Ch ie f Commiss ioner and other Commiss ioners and Officers from t ime to t ime to suspend or remove and to appoint other persons in

the i r s tead respect ively.

2 . A n d whereas i t is necessary to m a k e provision for defraying

such o f t h e necessary expenses o f ca r ry ing th is A c t in to effect as are

no t otherwise hereinafter provided for B e i t enacted T h a t i t shall be lawful for the J u d g e s o f the Supreme Court in Sydney and t h e Res iden t J u d g e at Me lbou rne respect ively to cause such moderate fees to be paid for presiding at mee t ings of creditors and on al l proceedings in Inso lvency as to the said J u d g e s respect ively m a y seem mee t the said fees to be t aken b y the Commiss ioners or other officers employed in ca r ry ing th is A c t in to effect as the said J u d g e s may direct .

3 . A n d be i t enacted Tha t from and after the first day of

F e b r u a r y nex t i t shall and m a y be lawful for any J u d g e of the Supreme

Cour t o f the said Colony upon the pet i t ion in wr i t ing of any person se t t ing forth tha t he is insolvent and desirous of surrendering his estate for t h e benefit o f his creditors e i ther to direct such person to appear before h i m to be examined touch ing his said insolvency or to receive such o ther proof thereof by affidavits of the said insolvent and others as to the said J u d g e m a y seem fit or to direct such pet i t ioner to appear before any such Commiss ioner as aforesaid and to direct such Commis­ s ioner to examine t h e pet i t ioner in manne r aforesaid and to t ake proof o f the ma t t e r s aforesaid and i t shal l and may be lawful for any J u d g e

o f the said Supreme Cour t on considering the report o f any such Com­

miss ioner or upon proof of the mat te rs aforesaid to his satisfaction to accep t t h e surrender o f such estate and by order under his hand to place the same under sequestra t ion in the hands of the Ch ie f Com­ miss ioner in and for t ha t part o f the Colony in which such insolvent

shal l reside.

4 . A n d be i t enacted T h a t i t shall in l ike m a n n e r be lawful for

any J u d g e o f the said Supreme Court upon the l ike pet i t ion o f any person legal ly vested wi th the adminis t ra t ion of the estate of any person deceased or with the estate o f any other person s i tuate in the said Colony in t rus t for creditors s ta t ing the insolvency o f such estate or

upon the l ike pet i t ion s ta t ing t h e insolvency of the es ta te o f any com­

pany t rading or hav ing any es ta te or effects wi th in t h e said Colony made by t h e g rea te r number o f the par tners o f such company who at the time; o f present ing the pet i t ion are wi th in the said Colony to examine the pet i t ioner or pet i t ioners or cause h im or them to be examined in manner aforesaid or to t ake or cause to b e t aken proof o f t h e ma t t e r s aforesaid in m a n n e r hereinbefore provided and it shall be lawful for any J u d g e o f the Supreme Cour t upon proof o f the ma t t e r s aforesaid to his satisfaction to accept t h e surrender o f any such estate and to place the same under sequestra t ion in manne r aforesaid and after the order for any such sequestra t ion is made the l ike proceedings shal l and m a y be had and t ake place concern ing such estates and the persons in whom the adminis t ra t ion the reof is lega l ly vested and the par tner or par tners o f such companies as are here in provided concern­ ing o ther estates and other insolvents .

5 . A n d be i t enacted T h a t i f any person hav ing any property personal or rea l wi th in the said Colony shall depart therefrom or be ing out o f the said Colony shall remain absent therefrom or shall depart from his dwell ing-house or otherwise absent h imse l f with in ten t to

defeat

defeat or delay his creditors in obta in ing payment of the i r debts or having aga ins t h i m t h e sentence of any competen t Court being there­ u n t o requi red shal l not satisfy the same or shal l n o t point out to the

officer charged with the execut ion the reof sufficient disposable property
to satisfy the same and i f i t shall appear from the re turn made by such
officer or h is affidavit t ha t he has not found sufficient disposable p r o ­
per ty of such person to satisfy such sentence or shal l m a k e or cause t o be m a d e e i ther wi th in t h e said Colony or elsewhere any fraudulent a l ienat ion t ransfer gift surrender delivery mor tgage or pledge of a n y of his es ta te goods or effects rea l or personal or give or execu te any fraudulent war ran t o f a t to rney or cognovit ac t ionem whereby the same or any p a r t t he reof m a y be affected shall be deemed the reby to have

commi t t ed an act o f insolvency.

6. A n d be it enacted T h a t every a l ienat ion t ransfer gift surren­

der or delivery mor tgage or pledge of any es ta te goods or effects real or personal or warrant o f a t to rney or cognovit ac t ionem made by a n y person who at t h e t ime is ac tua l ly insolvent or who by any such al iena­ t ion t ransfer gift war ran t o f a t torney cognovi t ac t ionem surrender or delivery shall be rendered insolvent to any person whatsoever wi thout va luable considerat ion shall be and is hereby declared to be fraudulent and absolute ly void Provided always tha t no conveyance or assign­ m e n t which shall have been execu ted prior to the passing o f th is A c t

under the provisions of an A c t o f the said Governor and Counci l

passed during the present Session in t i tu led " An Act for the further amendment of the Law and for the better advancement of Justice " and in conformity wi th those provisions shal l be deemed fraudulent or

void wi th in th is or the n e x t preceding section.

7. A n d be it enacted Tha t a l l a l ienat ions t ransfers gifts sur­

renders or deliveries o f any goods or effects rea l or personal made by any person after he has contrac ted any debt and within twelve months preceding the commission of any act o f insolvency by h im or preceding t h e sequestrat ion o f his es ta te as insolvent or preceding any t ime at which i t shal l be made to appear by p roof t h a t he was ac tua l ly insol­ vent to any person whatsoever wi thout valuable consideration shall b e and are hereby declared to b e l iable to be set aside on a summary appl icat ion to and by order o f the Supreme Cour t at the ins tance o f any credi tor o f the said insolvent whose debt was cont rac ted or the cause of whose debt had arisen prior to the m a k i n g of such al ienat ions t ransfers gifts surrenders or deliveries in so far as such credi tor would the reby b e prevented from receiving the full amount o f his said debt.

8. A n d be it enacted T h a t a l l a l ienat ions transfers gifts sur­

renders deliveries mor tgages or pledges o f any estate goods or effects rea l or personal warrants o f a t torney cognovi ts ac t ionem and judg­ men t s entered up thereon made by any person being insolvent or in contempla t ion of surrendering his es ta te as insolvent or knowing tha t legal proceedings for obta in ing an order for the sequestrat ion of his es ta te a s insolvent have been commenced or wi thin s ix ty days preceding t h e m a k i n g of any order for sequest ra t ion o f his es ta te as insolvent and hav ing the effect o f preferring any then ex is t ing creditor to another shal l be and are he reby declared to be absolute ly void.

9 . Provided always and be it enacted T h a t i f any person shal l lawfully and bond fide purchase or acqui re any o f t h e estate goods or effects real or personal which have been al ienated transferred given surrendered or delivered by any insolvent person in the manner set forth in any of the th ree last preceding clauses o f th is A c t from any person to whom such estate goods or effects have been so a l ienated t ransferred given surrendered or delivered by any t rue barga in or ag reement for a j u s t and competent pr ice or in satisfaction o f any l a w -

ful debt due to h im no th ing conta ined in th is A c t shall ex tend or be

const rued

const rued to annul or affect any r ight which any such person has law­ fully and bond fide purchased or acquired in such estate goods or effects bu t in a l l such cases the persons to whom such estate goods or effects were al ienated t ransferred given surrendered or delivered by the insol­ ven t shal l be bound and obliged to pay the t rue value o f al l such estate goods and effects by t hem disposed o f to a th i rd par ty to or for behoof o f such o f the credi tors o f the insolvent as in v i r tue of the provisions o f th is A c t shall be ent i t led to have t h e al ienat ions t ransfers gifts sur­ renders or deliveries o f such es ta te goods or effects by the insolvent declared to be void or set aside.

1 0 . A n d be i t enacted T h a t a l l warrants o f a t torney and cog­

novi ts ac t ionem al ienat ions transfers gifts surrenders deliveries mort ­ gages or pledges of any es ta te goods or effects rea l or personal made

b y any person after any order o f sequestrat ion of his estate has been
made and before he shall have obtained his certificate as hereinafter

ment ioned shall be and are hereby declared to be absolutely void.

1 1 . A n d be it enacted Tha t a l l acqui t tances surrenders or dis­

charges o f any j u s t debt or o f any securi ty for any ju s t debt or other ma t t e r or th ing payment or delivery of which has not been actual ly and bond fide received made by any person be ing insolvent or in contempla t ion of surrendering his es ta te as insolvent or knowing tha t lega l proceedings for obta in ing an order for sequestra t ion o f his estate as insolvent have been commenced or after any such order has been made or wi th in s ix ty days preceding t h e m a k i n g of any such order hav ing the effect to deprive his creditors of t h e benefit o f any debt

or other ma t t e r or th ing shall be and are hereby declared to be

absolute ly void.

1 2 . A n d be i t enacted T h a t al l payments made to any creditor

by any person not compelled by legal process to make the same and
knowing h imse l f to be insolvent or in contempla t ion of surrendering his estate; as insolvent or knowing tha t legal proceedings for obta ining an order o f sequestra t ion for his es ta te as insolvent have been commenced or tha t any such order has been made shall be and are he reby declared to be fraudulent bu t al l payments real ly and bond

fide made by any insolvent or by any person on his beha l f to any

creditor before any order made for the sequestrat ion o f his estate is known to the insolvent or to such creditor shall be valid and al l payments real ly and bond fide made to any insolvent or to any person legal ly ent i t led to receive the same on his b e h a l f before any order is made for the sequestrat ion of the estate of the insolvent on his sur­

render the reof or before sequestrat ion of his estate has been adjudged	a t the ins tance of his creditors shall be valid provided such person so
m a k i n g paymen t to the insolvent or to any person on his beha l f had not at the t ime o f such payment not ice o f any order for the sequestrat ion
of the estate o f the insolvent having been made bu t i f any person shall so
receive any payment hereinbefore declared to be a fraudulent payment from the insolvent or i f any person shall so m a k e any payment to the insolvent or to any person on his b e h a l f after an order for sequestra­ t ion has been made on the surrender of the insolvent or after adjudi­ ca t ion o f sequestrat ion at t h e ins tance of the insolvent ' s creditors or hav ing at the t ime of such payment not ice o f any order for such sequestra t ion hav ing been made at the ins tance of the insolvent 's creditors provided such sequestrat ion shall thereaf ter be adjudged in m a n n e r hereinafter ment ioned the person so receiving payment from t h e insolvent shal l be bound and obliged to repay for the benefit of the credi tors of the insolvent the sum so received by h im and the person so m a k i n g such payment to the insolvent or on his beha l f shall
be l iable aga in to pay for the benefit of the creditors o f the insolvent
the sum so paid by h im to the insolvent or to any person on his behalf .

1 3 . A n d be i t enacted T h a t i t shal l and m a y be lawful for

any J u d g e o f t h e Supreme Court upon pet i t ion made in wri t ing aga ins t any person hav ing commi t t ed any such act o f insolvency as aforesaid by any creditor or creditors w h o s e debt or debts amount to the va lue hereinafter provided and se t t ing forth the amount o f the debt o f such creditor and the cause t h e r e o f and the al leged act o f insolvency and praying t ha t t h e estate o f such person m a y be sequestra ted for t h e benefit o f his creditors upon proof the reof to the satisfaction o f the said J u d g e by the examina t ion of t h e part ies or e i ther o f t h e m or o ther­ wise as the said J u d g e shal l require and provided there shall be produced to the said J u d g e toge ther wi th such pet i t ion the affidavit or affidavits and cert if icate hereinafter requi red by order under his hand to p lace t h e estate o f every such person or persons under sequestra t ion in t h e hands of the Chie f Commiss ioner un t i l the same shal l in m a n n e r hereinafter ment ioned be adjudged to be sequest ra ted or the said

pet i t ion shal l be discharged.

1 4 . A n d be i t enacted T h a t no estate shall be placed under

sequest ra t ion unless the debt o f a s ingle credi tor pet i t ioning tha t the same may be sequestrated shall amount to fifty pounds or unless the debts o f two or more credi tors so pet i t ioning shal l j o i n t l y amount to one hundred pounds and every person who has given credit to another

upon valuable considerat ion for any sum payable at a cer ta in t ime

which t ime shal l not have arrived when the ac t o f insolvency was commi t t ed m a y so pet i t ion or j o i n in pe t i t ioning as aforesaid whe the r he shal l have any secur i ty for the same or not .

1 5 . A n d b e it enac ted Tha t every pet i t ioning credi tor shall

before present ing any pet i t ion for having any es ta te p laced under sequest ra t ion m a k e an affidavit in wr i t ing before one o f the J u d g e s or a Commiss ioner (which affidavit shal l bo filed with t h e proceedings in t h e estate) o f the t ru th of his debt and the cause the reof and shal l l ikewise give securi ty t o t h e sat isfact ion of the Ch ie f Commiss ioner for the payment o f the necessary fees and charges for prosecut ion o f t h e said sequest ra t ion un t i l the choice or appoin tment o f t rus tees and the said Ch ie f Commiss ioner shal l for thwith endorse on every such pe t i t ion a certificate t ha t such securi ty has been found and shal l s ign

t h e same.

1 6 . A n d be i t enacted T h a t t h e credi tor or creditors on whose

pet i t ion any order for sequest ra t ion shal l be made shal l a t h is or t he i r

own cost prosecute a l l the proceedings in t h e	said sequestrat ion	un t i l
t h e e lect ion or

t ioned and the same hav ing been first t axed and ascer ta ined by t h e appointment o f t rus tees in m a n n e r hereinafter men­

Ch ie f Commiss ioner the t rus tee or t rus tees shal l re imburse t h e said creditor or creditors out o f the first money tha t shal l be received and t h e costs incur red under any sequest ra t ion after the election or appoint­ men t o f t rus tees shal l in t h e first p lace and before any other debt b e paid out o f the free residue of the insolvent es ta te when i t shall b e sufficient for the same and when the said free residue shall be insufficient for the payment thereof a l l t he creditors who have proved debts agains t the insolvent es ta te shall be personal ly l iable to the t rustee or t rus tees for t h e same in proport ion to such debts and the said t rus tee or t rus­ tees shal l and m a y recover t h e same b y summary appl icat ion to and b y order o f the Supreme Cour t or any J u d g e thereof .

17. A n d be i t enacted T h a t any credi tor or creditors o f any company m a y in l ike manne r as aforesaid pe t i t ion agains t a l l or any one or more o f t h e par tners o f any such company to have the es ta te o f such company placed under sequestra t ion provided any such pa r tne r has commi t t ed any ac t o f insolvency wi th in ten t or in such manne r as to defraud t h e credi tors o f such company or to defeat or to delay t h e m

in

in obta in ing payment o f t h e debts due b y such company or provided the sentence of any competent Cour t has been obtained against such company and t h e par tners the reof be ing the reun to required have no t satisfied the same or pointed out to the officer charged with the execu t ion of such sentence sufficient disposable property to satisfy the same and provided it shall appear from the re turn made by such officer or h is affidavit t ha t he has not found sufficient disposable proper ty o f such company to satisfy such sentence and every order for sequestra­ t ion issued upon such pet i t ion shal l be valid a l though i t do not include

al l t he par tners o f t h e company and after the order for sequest ra t ion

of any such es ta te is made t h e l ike proceedings shall and m a y be had

and t a k e place concern ing such es ta te and such par tner or par tners as are here in provided to be had and t ake place concerning other estates and o ther insolvents Provided always tha t no th ing herein conta ined shal l ex tend or be construed to prevent the creditor or creditors of any company from proceeding against any par tner or the separate estate

o f any par tner thereof in respect o f debts due by such company in

t h e same way in which it is herein provided tha t t h e credi tors of any person m a y proceed agains t h im and his es ta te in respect o f debts due by such person in his individual capaci ty .

1 8 . A n d b e i t enacted T h a t any credi tor or creditors o f the

es ta te o f any person deceased m a y in l ike manne r as aforesaid	peti t ion
to have such es ta te placed under sequest ra t ion as insolvent	provided

t h e person in whom t h e adminis t ra t ion of such estate is legal ly vested has commit ted any act o f insolvency wi th in ten t or in such manne r as to defraud the credi tors o f such es ta te or to defeat or delay t h e m in obta in ing payment of the debts due to such es ta te or provided the sen tence of any competent Court has been obta ined against any such es ta te and t h e person in whom t h e adminis t ra t ion the reo f is legal ly vested has no t satisfied t h e same or being thereunto required pointed ou t to the officer charged wi th the execut ion of such sentence sufficient disposable proper ty to satisfy the same and provided i t shall appear from t h e re tu rn made by such officer or his affidavit t ha t he has not found sufficient disposable proper ty be longing to such estate to satisfy such sentence and after the order for any such sequestra t ion is made the l i ke proceedings shal l and m a y be had and t ake p lace concern ing such estates and the persons in whom t h e adminis t ra t ion thereof is l ega l ly vested as are herein provided to bo had and t a k e place concern ing other estates and o ther insolvents .

1 9 . A n d be i t enacted T h a t every privi lege and power given

by th is A c t to any creditor in respect o f any debt due to h i m in­ dividually by any insolvent and every l iab i l i ty or pena l ty imposed by this A c t on any such creditor shall be and is he reby declared to be given to and imposed on t h e par tner or par tners o f any company in respect o f any debt due to such company by any insolvent and to be given to and imposed on every person legal ly vested wi th the adminis t ra t ion of t h e estate o f any person deceased or o f any person lega l ly or ac tual ly incapable o f the adminis t ra t ion of his es ta te or of t h e estate o f any other person s i tuated wi th in th is Colony in respect of any debt due to such estate by any insolvent Provided always t ha t in reckoning the number o f votes at any mee t ing of credi tors or the n u m b e r o f creditors who have signed t h e certificate o f any insolvent t h e par tners o f any company and any persons in whom the j o i n t adminis t ra t ion o f any estate is vested as aforesaid shal l be ent i t led to only one vote and shal l bo considered as one person.

20 . A n d be i t enacted T h a t the par ty obta ining any order for

sequestra t ion shal l forthwith lodge t h e same wi th the Sher i f f o f th i s Colony at h is office in Sydney or i f obtained wi th in the Dis t r i c t of

P o r t

P o r t Ph i l l i p wi th t h e Sher i f f o f tha t distr ict and the Sher i f f shal l enregis ter the said order and note thereon the day and hour of i ts production and shal l for thwith deliver or cause the same to be delivered to the Ch ie f Commiss ioner who shal l cause t h e same to be notified i n the Government Gazette o f the Colony and every insolvent ob ta in ing any order for sequestrat ion shall also lodge with the Ch ie f Commis­ sioner a l ist conta in ing to the best o f his knowledge and be l i e f t h e names and places o f abode o f his several creditors.

2 1 . A n d b e i t enacted T h a t the Chie f Commiss ioner upon any

es ta te be ing placed under sequest ra t ion in his hands shal l by his mes­ senger authorized by warran t under his hand enter and seize and lay an a t t achment on the monies securi t ies for money estate and effects wheresoever or with whomsoever t hey shal l b e and m a k e an inventory t h e r e o f and i t shall be lawful for the insolvent or any o f the credi tors or for t h e agent o f any of the creditors o f t h e insolvent to accompany t h e messenger and to be present wi th h im while m a k i n g out t h e inventory aforesaid.

22 . A n d be i t enacted T h a t when any moveable property

be longing to any insolvent es ta te is a t t ached	as aforesaid in vir tue ' o f
any order for the sequest ra t ion	the reof the messenger m a k i n g such

a t t a c h m e n t shall leave wi th the person in whose possession any such proper ty is a t tached a copy of the said inventory having subjoined the re to a no t ice t ha t the property o f t h e insolvent has been a t t ached by the said messenger by v i r tue o f an order for the sequestrat ion the reof and tha t any person who knowing t h e same to have been so a t t ached shall dispose o f remove re ta in embezzle conceal or receive t h e same or any par t thereof with in ten t to defeat t h e said a t t a c h m e n t i s l i ab le on convict ion of such offence to be imprisoned wi th or wi thout ha rd labor for any period not exceeding th ree years Provided a lways t ha t i t shall be lawful for such messenger to secure on the premises by seal ing up any reposi tory room or closet any ar t ic les which in the discharge of his duty i t shal l seem to h i m expedient so to secure causing no unnecessary h indrance or inconvenience to any par ty by so doing or to leave some person on the premises in custody the reo f and t h e said messenger shall for thwith repor t his execut ion of the said a t t achmen t to the Ch ie f Commiss ioner who shall t a k e such measures and give such direct ions for the safe custody of t h e said property as to h i m shall seem fit.

2 3 . A n d b e it enacted T h a t t h e Commiss ioners o f I n s o l v e n t

E s t a t e s in the i r respect ive dis tr icts shal l aid and assist in car ry ing th is

A c t and the provisions the reof in to effect and for tha t purpose shal l

do and execu te al l such mat te r s and th ings as they shal l be required to do and execu te by any ru le or order o f t h e Supreme Cour t or any

J u d g e the reof by v i r tue of th is A c t .

2 4 .    A n d be i t enacted Tha t t h e Sheriff o f this Colony or o f any

dis t r ic t t he reof ei ther by h imse l f or by his deputies be ing the reun to required by the Chie f Commiss ioner shall wi th in the distr icts in which t hey have respect ively been or shal l be appointed to ac t do and execu te the duties directed by th is A c t or by any rule or order o f t h e Supreme Cour t or any J u d g e the reof in pursuance of th is A c t to be done and execu ted by a messenger and shal l receive to the i r own use for such service out o f the assets o f any insolvent es ta te as to which they m a y be so employed such reasonable fees as are or shall be al lowed by the Supreme Court for the i r service.

2 5 .    A n d be it enacted T h a t every pet i t ioning creditor who shall

duly obta in any order for p lac ing t h e es ta te o f his debtor under sequest ra t ion as aforesaid shal l forthwith t ake out the process o f the Supreme Cour t to summon the debtor t h a t he appear before t h e said Cour t on a cer ta in day to be appointed by the J u d g e m a k i n g such order

as

as to the said J u d g e m a y seem fit to shew cause why his es ta te should not by sentence of the said Court be adjudged to be sequestrated foi the benefit o f his credi tors and t h e service o f the said summons shall be made in the same manne r as is or shall be by law provided for the service o f any o ther summons of the said Court Provided tha t i f any debtor has been forty days absent from his usual p lace of residence or business wi th in the said Colony copies o f t h e said summons shall also be inser ted in th ree successive publ icat ions o f the Government Gazette

of t h e said Colony.
2 6 . A n d be i t enacted Tha t upon the day appointed for any person to shew cause why his es ta te should not be adjudged to be sequest ra ted it shall and m a y be lawful for the Court to receive proof

o f t h e ma t t e r s aforesaid and to adjudge and finally determine thereon

whether the said person having been thereto lawfully summoned shall appear to the said summons or not or upon sufficient cause being shewn to the satisfaction of the said Court to delay the said adjudi­ cat ion and determinat ion for any reasonable t ime a t discret ion and if t h e pet i t ioning creditor shall m a k e default in appearing or proving his said debt or t h e ac t o f insolvency to the satisfaction of the Court it shal l and m a y be lawful for the said Court to supersede t h e said order for sequestra t ion and to dismiss the said pet i t ion or to require further p roof o f the mat te r s contained therein as to the said Court shall seem fit and whenever any such peti t ion shall be dismissed by the said Court all quest ions affecting the estate o f the person against whom it w a s presented or any r igh t o f such person or o f his creditors or debtors o r the val idi ty o f any al ienat ion t ransfer gift surrender delivery mor tgage pledge warrant o f a t torney cognovit ac t ionem payment acqui t t ance o r discharge made by such person or payment made to such person shall be judged of and determined as i f such peti t ion had never been presented.

27 . A n d be i t enacted T h a t i f i t shall appear to the Court

upon such pet i t ion for sequestra t ion tha t the said pet i t ion was unfounded and vexat ious or mal ic ious it shal l and m a y be lawful for t h e said Court to allow the said person on his applicat ion for the same for thwith to prove any damage alleged to have been by h im sustained thereby and to award to the said person such satisfaction for the said damage not exceeding two hundred pounds as the said Court shal l deem fit and compel payment thereof by summary process or leave the said par ty to his ac t ion for the said injury.

2 8 . A n d be i t enacted T h a t i f after any order has been made

for the sequestrat ion o f any estate the debts o f the pet i t ioning creditors

or any of t h e m be found insufficient to ent i t le such credi tors to apply for and obta in such order for sequestrat ion or i f such order shall be superseded in consequence of the consent or default o f the pet i t ioning creditor or creditors or his or the i r col lusion wi th the insolvent i t shall be lawful for the Supreme Cour t or any J u d g e upon the application

of any other credi tor or creditors whose debt or debts amount t o the

value hereinbefore provided and have been incurred prior to the said order for sequestrat ion and who shall produce at the t ime of mak ing such applicat ion the affidavit or affidavits and the cert if icate herein­ before required to order tha t the said sequestrat ion shall be revived and be proceeded in as i f i t had been or iginal ly obtained on the pet i t ion
of the creditor or creditors las t ment ioned and thereaf ter the said

sequest ra t ion shall be revived with al l t he consequences and effects

thereof as i f i t had never been superseded.

2 9 . A n d be it enacted T h a t i f any person against whom any

order for sequestra t ion shal l have been made shall pay any money to the person who obtained the same or give or deliver to any such person any satisfaction or securi ty for his debt or any par t t he reo f whereby

3 H—VOL . 2 . such

such person m a y receive more in the pound in respect o f his debt t han he would he ent i t led to receive i f the sequest ra t ion were proceeded in and the estate dis t r ibuted among the credi tors the reof according to the i r legal r ights and preferences such paymen t gift delivery satisfac­ t ion or secur i ty shal l be a new act o f insolvency and every person so receiving such money gift delivery sat isfact ion or securi ty shal l in t h e event o f the sequestra t ion be ing afterwards proceeded in by any other credi tor or credi tors in manne r hereinbefore ment ioned deliver up such securi ty and shal l repay the said money gift or the full value the reof to such person or persons as the Court shall appoint for the benefit o f the creditors o f such insolvent and shall pay al l t he costs which shal l be incurred by any other credi tor in obta ining the revival

o f t h e said sequestrat ion.

3 0 . A n d be i t enacted Tha t further execu t ion of any j u d g m e n t

or process against the person or estate o f any insolvent shall after any order for sequestra t ion of such es ta te is lodged wi th t h e Sher i f f for regis t ra t ion be stayed and i t shal l and m a y be lawful for the person having r igh t to such j u d g m e n t to prove his debt and costs against the sequestrated es ta te and to t ake t h e benefit t he reof upon distr ibution of the said es ta te ra teab ly wi th t h e other creditors and where any property has been a t tached by legal process for satisfaction of any j u d g m e n t and has not been sold such proper ty shall be placed under sequest ra t ion in the same manner as any other part o f the insolvent estate .

3 1 . A n d be it enacted T h a t no ac t ion shall be b rough t agains t

any insolvent for any debt or demand proveable agains t his es ta te and al l proceedings in any ac t ion t hen pending shall upon any order being made for the sequestra t ion o f such es ta te in v i r tue the reof be stayed and it shal l and m a y be lawful for the plaint i f f in such ac t ion to prove his debt together with the t axed costs o f i t then incurred agains t the sequestrated es ta te and to t a k e the benefit t he reof upon distr ibution o f t h e said estate Provided however tha t al l act ions pending against any insolvent for damages al leged to have been sustained from any in jury or wrong or b reach of any cont rac t commit ted by h im such damages be ing uncer ta in or for recovery of any c la im unl iquidated as to i ts amount and al l proceedings there in shall upon any order be ing made for the sequestra t ion o f his es ta te be stayed unt i l a t rustee or t rus tees shall be elected for the adminis t ra t ion the reof i f t he sequestra t ion shall r emain in force so long and thereupon t h e plaint i f f in such ac t ion after summoning the t rus tee or t rustees to t a k e up and

defend the said ac t ion m a y proceed to obta in the j u d g m e n t o f the

Cour t thereon and the said j u d g m e n t when recovered together wi th t h e t a x e d costs o f suit shall be a debt proveable against the said estate .

3 2 . A n d be it enacted Tha t any insolvent who at the t ime

any order for the sequestra t ion o f his es ta te is lodged wi th the Sher i f f for regis t ra t ion shall be in custody of t h e said Sheriff or o f any

gaoler or officer e i ther under mesne process or in execut ion on any

j u d g m e n t for any debt or demand proveable under th i s A c t shall be

ent i t led to b e on the order o f any J u d g e and shal l be forthwith discharged out o f custody in respect the reof e i ther absolute ly or on such condit ion or condit ions as such J u d g e shall t h ink fit to impose.

3 3 . A n d be i t enacted T h a t a l l ac t ions commenced by any

person whose estate shall afterwards be placed under sequestrat ion as insolvent for any debt or demand due to the said estate and al l pro­ ceedings therein shall upon the order o f such sequestrat ion being made be s tayed unt i l t h e t rus tee or t rustees thereaf ter chosen for t h e admin­ is t ra t ion of the said estate shall m a k e e lec t ion to prosecute or discon­ t inue t h e same and t h e t rus tee or t rus tees shall be bound to m a k e such

elect ion

elect ion wi th in s ix weeks after no t ice to t ha t effect shal l be served

upon h i m or t h e m by any defendant in any such ac t ion or otherwise shal l be deemed to have abandoned the same Provided however t ha t any insolvent person shall be permit ted to cont inue in his own n a m e and for his own benefit any act ion commenced by h im previous to his insolvency for any personal in jury or wrong done to h imse l f or to any

of his family.

3 4 . A n d b e i t enacted T h a t the Ch ie f Commiss ioner shall

after any estate has been placed under sequestra t ion upon surrender the reof as insolvent or has been adjudged to b e sequestrated forth­ with cause not ice the reof to be given in t h e Government Gazette

of th is Colony and shall thereby appoint two publ ic mee t ings of the
creditors o f such es ta te a t such t imes and places as he shal l deem mos t convenient for al l t h e part ies concerned the first for receiving proof of debts agains t the said es ta te and the second for the same purpose and for e lec t ing a t rus tee or t rus tees for the collect ion adminis t ra t ion and dis t r ibut ion thereof and such publ ica t ion shall be deemed notice the reof to al l persons and the t imes and places so fixed for the holding
of any o f the mee t ings aforesaid m a y on cause shewn to t h e Chief

Commiss ioner by any par ty dissatisfied wi th the appointment so made be al tered o f which al terat ion no t ice shall be forthwith given in t h e Government Gazette Provided always tha t i f i t shal l appear to the said Commiss ioner before causing not ice to be given as aforesaid tha t the goods and effects o f the insolvent avai lable for t h e payment of his debts are not above t h e value of one hundred pounds he shall specify the same in the said adver t isement and shall there in also give not ice t ha t unless i t shal l be shewn at the first mee t ing cal led as aforesaid tha t the goods and effects o f the insolvent exceed the said value o f one hundred pounds the Commiss ioner holding such meeting- will summar i ly proceed to r ank the debts which shall be proved at such mee t ing according to the i r respect ive preferences and to direct t h e proceeds of the insolvent estate to be for thwith distr ibuted accordingly b y a t rustee or t rustees to be then elected by the greater par t o f the creditors in number and value a t tending a t such meet ing and in such case the said insolvent shall a t such first meet ing a t tend before t h e creditors to account for his insolvency and shall being thereunto required do and perform therea t al l such other ma t t e r s and th ings as are hereinafter required to be done or performed by h im at any meet ing of the creditors under the provisions of th i s A c t and i f a t t he said first mee t ing i t shall still appear to the	Commiss ioner before whom the same is ho lden tha t the avai lable assets
of t h e said estate do not exceed the amount of one hundred pounds i f
shall and m a y be lawful for the said Commiss ioner to r ank the creditors who shall prove the i r debts at such mee t ing according to the legal order o f the i r preference and for the creditors to elect a t rus tee or t rustees for the col lect ion adminis t ra t ion and dis t r ibut ion of the estate
of the said insolvent according to t h e order o f r ank ing and to direct
t h e said t rustee or t rus tees forthwith to collect adminis ter and dis tr ibute t h e same accordingly and fur ther at t he said first meet ing the said Commissioner shal l execu te al l the powers and author i ty which m a y be executed by h im at any meet ing of creditors under the provisions of th is A c t and shall also do and perform therea t all ma t te r s and th ings required to be done for the final se t t lement o f the said es ta te and the major i ty o f the creditors present a t t he said mee t ing shal l then determine what part o f the wearing apparel bedding household furniture and tools o f t rade of the insolvent shal l be excepted from t h e sale o f his moveable property and shall be allowed to h i m and shal l also give to the said t rus tee or t rustees such directions as to the managemen t o f the said estate as to t h e m shall

seem

seem fit unci no o ther meet ing shall thereafter be holden unless upon

cause shewn the said Commiss ioner shall th ink fit to order the same.

3 5 . A n d be it enacted T h a t in a l l cases where any meet ing o f

creditors for the proof o f debts or for the elect ion o f t rustees shall be appointed to be holden in Sydney the same shall t ake p lace before t h e Chie f Commiss ioner and i f in any par t o f the Colony o ther than Sydney then before the Commiss ioner o f such place and the said Com­ missioners shall respectively t ake t h e votes o f the credi tors and declare the par ty or par t ies elected t rus tee or t rus tees o f the said estate and in a l l cases where such mee t ing shall be holden before any Dis t r i c t Commiss ioner he shal l for thwith certify to the Chief Commiss ioner the proceedings thereat .

3 0 . A n d be it enacted T h a t every credi tor shal l prove his debt

agains t the said estate by affidavit or otherwise to the sat isfaction of the Commiss ioner who shall admit any debt or re jec t t h e same as not proved subject to appeal from his decision to any J u d g e o f the Supreme Court and i t shal l and may be lawful for the said J u d g e on the appli­ ca t ion of any par ty interes ted finally to admit or re jec t any debt admit ted or rejected by the said Commiss ioner or to allow any act ion which m a y have been ins t i tu ted for the proof or recovery of any such debt agains t the insolvent prior to the sequest ra t ion and which has in consequence the reof been stayed to be proceeded in after the elect ion

o f a t rus tee or t rus tees shal l have t aken place and after the t rus tee or

t rus tees so elected shall have been duly summoned to t ake up and defend such ac t ion and i f the plaintiff shal l thereafter obtain j u d g m e n t thereon he shal l be ranked on the insolvent es ta te for the amount o f such j udgmen t .

3 7 . A n d be i t enacted Tha t al l debts due by any insolvent a t

t he t ime of adjudication or surrender m a y be proved agains t his estate and when there has been m u t u a l credit given by the insolvent and any other person or where there are m u t u a l debts between t h e insol­ vent and any o ther person upon which a set-off can by law be pleaded on e i ther side the Commissioner t ak ing t h e proof o f debt shal l there­
upon s tate t h e account between t h e m and shal l set one debt or

demand against the o ther and what shall appear due on e i ther side on the ba lance of such account and no more shal l be allowed to be proved or c la imed or paid on e i ther side respect ively Provided tha t t h e person c la iming the benefit o f such set-off had not when such credit was given or when the cause o f his debt accrued not ice o f the said insolvency A n d provided always t ha t i t shall and m a y be lawful

for any J u d g e of the Supreme Court on appl icat ion of any person

interes ted who shal l consider h imse l f aggrieved by any such decision

o f any Commiss ioner to review the same and to pronounce such judg­

m e n t or to direct or allow such fur ther proceedings as to the J u d g e

shal l appear j u s t and proper.

3 8 . A n d be i t enacted T h a t in al l quest ions upon this A c t

every "person to whom the insolvent was a t the t ime o f t h e surrender

or adjudication o f sequestrat ion of his es ta te under lega l obl igat ion to pay money at a cer tain future t ime shall be accounted a creditor

de prasenti and shall be ent i t led to prove his debt for the amount o f the money specified in the obl igat ion bu t in case the said debt

shall not have become payable at any t ime when such creditor shall give any vote at any mee t ing of credi tors in respect thereof or at t he t ime o f dis t r ibut ing the said estate or o f the payment o f any dividend thereon and shal l not bear interest unt i l the t ime of payment or shall bear interest a t a less ra te t han ten per cent, per annum the said debt shall be valued in vot ing and such creditor shall receive payment t he reo f or dividend thereon only after deduction thereout o f a rebate o f in teres t o f ten per cent , per annum or o f so m u c h per cent .

per

per annum as shal l correspond with the difference between the ra te of in teres t payable on such debt and the ra te o f t e n p e r cent, per annum as t h e case m a y be to be computed from the t ime o f vot ing or the dis t r ibut ion of the es ta te or payment o f the dividend to the t ime when such debt would have become payable according to the t e rms on which

was	contrac ted .
3 9 . A n d be it enacted Tha t any creditor who shal l have or

hold any securi ty on l ien upon any par t o f t h e insolvent es ta te shall when he is the pet i t ioning creditor be obliged upon oath in the affidavit accompanying the peti t ion and when he is not the pet i t ioning credi tor in t h e affidavit produced by h i m a t the t ime of proving his debt to put a value upon such securi ty so far as his debt may thereby be covered and to deduct such value from the debt proved by him and to give his vote in al l ma t te r s respect ing the insolvent estate as creditor only for the ba lance which ba lance shal l be specified in his affidavit without prejudice to such valuat ion be ing afterwards corrected and wi thout prejudice to the amount o f the said debt in other respects and in case any creditor shal l hold any securi ty or l ien for payment

o f his debt obtained prior to the order for sequestrat ion of the insolvent
es ta te and not l iable to b e set aside by v i r tue o f th is A c t upon any

par t o f the said estate the amount o f value o f such secur i ty or lien
shall b e deducted from his debt and he shall only be ranked for or receive payment o f or a dividend for the ba lance after such deduction and i f any dispute shal l arise about t h e value of such securi ty the creditor or c la imant shall upon oath put a value upon it and the t rustee or t rus tees shall then have an option ei ther o f t ak ing an ass ignment

of the securi ty for t h e benefit o f the creditors at large on payment of

the value so est imated out o f the first assets o f the insolvent estate or o f reserving the full effect o f i t to the credi tor h imse l f and in e i ther case the credi tor shall be ranked on the divisible fund for the ba lance

o f his debt so ascer ta ined together with the other creditors such creditor

be ing in no event ent i t led to draw more than full payment o f the debt Provided however tha t no creditor who shal l hold any secur i ty or l ien shall be ent i t led to any preference or advantage in respect thereof or to reckon as a part o f his debt covered thereby any debt which shall have arisen or accrued to h i m subsequent to the order for seques­ t ra t ion .

4 0 .    A n d be it enacted T h a t no person whose debt depends upon

a con t ingency or an uncer ta in condit ion shal l be ent i t led to pet i t ion or jo in in the pet i t ion for the sequestrat ion of any estate or to vote in the	choice o f t rus tees or in any of the other proceedings here in specified
so long as t h e cont ingency shal l not happen or the condit ion shall not
be performed Provided always tha t the creditor in any such debt cont rac ted before the order for sequestrat ion shall have been, made m a y i f he th ink fit while the cont ingency or condit ion upon which such debt depends shall not have happened or shall not have been performed apply to the t rustee or t rustees to set a value upon such debt and the t rustee or t rus tees are hereby required to ascertain the value the reof and t o admit such creditor to prove the amount so ascer­ ta ined and such creditor shall thereafter b e ent i t led to vote and to receive dividends Or payments as i n respect o f a debt o f the value of the a m o u n t so ascer tained and i f such value shall not be ascertained before the con t ingency shall have happened or the condition shall have been performed then such creditor m a y after such cont ingency shall have happened o r such condit ion shal l have been performed prove in respect o f such debt and receive dividends or payments with the other creditors Provided always t ha t w h e n the credi tor i n any such debt or claim the con t ingency of which shall not have happened or the condition
of which shall not have been performed and the value of which shall

not

not have been ascer ta ined as aforesaid shal l en te r a c la im on the es ta te in respect o f such debt the t rus tee or t rustees shal l r ank the c l a iman t as i f t he cont ingency had happened or the condit ion had been performed and shall for thwith apply to the Supreme Court or any J u d g e thereof to m a k e an order and the said Court or J u d g e shal l m a k e such order for securing the dividend or sum which t h e c la imant would be ent i t led to

draw un t i l t he con t ingency or condit ion upon which the debt depends

shal l happen or be performed when the sum so secured shall be paid to the c la imant or to the general credi tors as the case m a y b e and any interest which m a y in the mean t ime arise and be received thereupon shall be long to and be paid to t h e other creditors.

4 1 . A n d be i t enacted T h a t no distress for rent shall be made

or levied or proceeded in after any order made for sequestrat ion as aforesaid bu t the landlord or par ty to whom the rent shal l be due shall be ent i t led to receive out o f the assets o f the estate so m u c h ren t as shal l be then due not exceeding s ix mon ths ' r en t in t h e whole and shall be allowed to come in as a creditor and share ra teably wi th the other creditors for the overplus.

4 2 . A n d be i t enac ted T h a t i t shall be lawful for the t rus tee

or t rustees to pay to any c le rk or servant s ix m o n t h s ' salary or wages

in full out o f t h e insolvent es ta te provided so m u c h shall be ac tua l ly

and bond fide due at the t ime o f the order for sequestrat ion made.

4 3 . A n d b e i t enac ted Tha t when by reason o f the absence of

any person from the Colony or for any other cause appearing to the Ch ie f Commiss ioner the said Commiss ioner shall be o f opinion tha t a c l a iman t who has not proved his debt m a y eventual ly be ab le to es tabl ish the same it shal l and m a y be lawful for the said Commiss ioner to allow such c la im to be entered in the proceedings in the insolvent es ta te and to give reasonable t ime for proving t h e same and in t h e mean t ime to m a k e such order for secur ing the amount the reof in case the said c la im shal l be afterwards establ ished as the said Commiss ioner shall see fit.

4 4 . A n d be i t enac ted T h a t the mode of se t t l ing in teres t upon

c la ims shall be as follows viz. : — T h e pr inc ipa l sum of each debt on which interest is chargeable toge ther with t h e arrears o f interest i f there be any due upon i t a t the t ime the order for sequestrat ion was made shall be accumula ted as at t he date o f the said order for t h e purpose o f the c la imant being ranked for and rece iv ing payment o f such accumula ted sum toge ther with the pr incipal sums o f such debts as do not bear interest or from which there m a y be a rebate o f in teres t

as not being payable t i l l an after period and t h e assets o f an insolvent	es ta te shall be applied—first in payment according to the lega l order
of preference of al l the preferent debts and secondly in payment o f a l l
t he o ther accumula ted sums so ranked wi thout a l lowing any in teres t
upon them from and after the date o f t h e order for sequestrat ion i f t he
said assets shall not be sufficient to discharge al l t he c la ims due by the insolvent es ta te bu t i f after d ischarging t h e whole o f such c la ims there shal l be any residue left o f the sequestrated estate the creditors shal l also be ent i t led to c la im out o f such residue any ar rear o f interest which m a y be due to t h e m as ar is ing s ince the date o f the said order for sequestrat ion upon the respect ive sums ranked as hereinbefore ment ioned.

4 5 . A n d be i t enac ted T h a t any debt which was due or the

cause of which arose prior to the order for sequestrat ion o f any estate m a y be proved at any mee t ing of t h e credi tors appointed before any Commiss ioner at any t ime before the final distr ibution of the es ta te and any credi tor m a y after t h e second meet ing called by the Ch ie f Commiss ioner in manne r hereinbefore provided at his own expense ca l l such meet ing express ly for the purpose of proving his debt

P r o v i d e d

Provided always t ha t when any debt is so proved after any dividend has been paid to the creditors such dividend shall not in any way be disturbed or affected by or in respect o f any such debt bu t such creditor shall receive payment o f his debt out o f the future assets o f the es ta te in the same proport ion as the other creditors shal l have already received and shall afterwards receive payment A n d provided also t h a t when any such debt is proved after the p lan of dis tr ibut ion

of such estate has been confirmed and in consequence o f the proof of
such debt any a l tera t ion in such plan o f distr ibution or any further proceedings in the sequestrat ion shall be rendered necessary the creditor proving such debt shal l be l iable for al l expenses which may be incur red in consequence of any such al terat ion or proceedings.

4 6 . A n d be i t enacted T h a t in al l cases o f votes given by

credi tors under th is A c t when creditors are to be counted in number no creditor whose debt is below fifty pounds sterl ing shall be reckoned in number but the debt due to such creditor shall be computed in value and tha t in al l cases in which any deduction is directed by the provisions of th is A c t to be made from t h e amount o f the debt o f any credi tor the vote o f such creditor shall s t i l l be counted in value to the ex ten t o f the ba lance remain ing after such deduction and such creditor shal l also b e reckoned in number provided such ba lance amounts to ten pounds and upwards.

4 7 . A n d be i t enacted T h a t in a l l cases where under t h e pro­

visions o f th is A c t the creditors o f any insolvent es ta te are required or ent i t led to meet and to vote in any ma t t e r regarding such estate any creditor so ent i t led m a y a t tend and vote at such meet ing personally or by agent authorized by any wr i t ing under the hand of the said creditor or by any power of a t torney to tha t effect duly execu ted upon proof t he reo f to the satisfaction o f the Commissioner or o ther person presiding at such meet ing .

4 8 . A n d be i t enacted T h a t at the second mee t ing cal led as

aforesaid or any adjournment t he reo f ( i f the said Commiss ioner shall find i t necessary to adjourn the same which he is hereby authorized and empowered to do) a t rustee or t rus tees no t exceeding three in number shal l be chosen for t h e col lect ion adminis t ra t ion and distri­ bu t ion o f t h e insolvent estate and effects and al l creditors who have proved debts against the insolvent es ta te shal l be ent i t led to vote in such choice and the choice shall be made by the votes o f the greater par t in n u m b e r and value of the creditors or the i r agents present

and ent i t led to vote	Provided however tha t i t shall be competent
adminis t ra t ion the reof and who shall complain of any such election	to any person interes ted in any such insolvent estate or the due
upon giving wi th in two days after t h e said elect ion a not ice in
wri t ing of the par t icu lars of such complain t to the said Commissioner at any t ime before the e lec t ion is confirmed in manner hereinafter ment ioned to br ing t h e same under the review of the Supreme Cour t or any J u d g e the reof who shall summar i ly decide and m a k e such order thereon as the j u s t i c e o f the case may require Provided a lways tha t i t shall be lawful for any person interested in the due admins t ra t ion of the estate at any t ime after the confirmation to apply to the Cour t to reca l l the confirmation and set aside the elect ion on the ground tha t such election was fraudulently made bu t i f the Court shall decide against such applicat ion the par ty fai l ing therein shall pay al l such costs to the other party as the Court shall award.

4 9 . A n d be i t enacted T h a t in no case shall i t be competent

for the creditors to elect as t rustee the insolvent h imse l f nor any minor nor any prac t i s ing a t torney nor any person who having had his estate at any t ime surrendered or adminis tered as insolvent or placed under sequestrat ion shall not have obtained his cert if icate under some former

law

law of this Colony or who shal l not have obtained the sequestrat ion to be superseded or who shall not have obtained his cert i f icate and allow­ ance the reof as hereinaf ter provided nor any person not resident wi th in

t h e ju r i sd ic t ion of the Supreme Court .

5 0 . A n d be i t enacted T h a t i t shal l and may be lawful for t h e

Supreme Cour t or any J u d g e the reof on cause shewn by the C h i e f

Commiss ioner or any person interes ted in the due adminis t ra t ion of the insolvent es ta te by order to appoint one or more fit and proper person or persons to be t rus tee or t rustees o f any insolvent estate provisionally and un t i l the creditors o f t h e said estate shall m a k e choice o f a t rus tee which t rus tee or t rus tees m a y be removed at the mee t ing of creditors for the choice o f a t rus tee i f the said credi tors shal l th ink fit but shall and m a y un t i l so removed act in t h e col lect ion adminis t ra t ion and distribu­ t ion of the said estate in a l l respects the same as t rustees elected by the creditors are by th is A c t authorized to do.

5 1 . A n d be it enacted T h a t al l t rustees so appointed by the

Court or J u d g e or elected by the creditors shall receive and be paid out
of the assets o f the said estate a reasonable compensat ion for the i r
care and di l igence in the said t rust to b e assessed by the Ch ie f Com­ missioner subject to the review of the said Court or J u d g e upon the pet i t ion o f any creditor or o f the said t rus tees or o f the insolvent .

52 . A n d be i t enacted Tha t so soon as the t rus tees elected by

the creditors or appointed by the Cour t or J u d g e shall have accepted the i r office i t shal l and may be lawful for the Supreme Court to m a k e an order confirming the appointment o f such trustees.

5 3 . A n d be it enacted T h a t every order made for p lac ing any

estate under sequestra t ion as insolvent shall so soon as made have the effect in law to divest the insolvent and al l persons adminis ter ing the whole or any part o f his es ta te for his use and behoof and to vest in 1he Ch ie f Commiss ioner for the use and purposes o f the sequestrat ion all the present and future es ta te real and personal and every r ight t i t le and interest in and to any property real or personal wheresoever the same m a y be known or found which shall belong or be due to or vested in such insolvent at t he date o f m a k i n g such order or which m a y thereaf ter be purchased or acquired by or m a y revert descend or be devised or come to the insolvent while the insolvent es ta te shal l remain under sequestrat ion in t h e hands o f the Chief Commissioner together wi th al l deeds vouchers papers and wri t ings respect ing the same and after the said order for sequestra t ion has been made ne i ther the insolvent nor any person c la iming th rough or under h im shall have

recover or to release or discharge the same or any part the reof ne i ther	the power to a l ienate give surrender deliver mor tgage pledge or to
shal l the same be a t t ached by any person as the property o f or be longing to the insolvent so long as the said estate shal l remain under sequestrat ion.

5 4 . And be it enacted T h a t every order made as here in directed

for confirming any t rus tee or t rus tees shal l so soon as made have the effect in law to divest the Ch ie f Commiss ioner and to vest in such t rus tee or t rustees for the uses and purposes o f t h e sequestrat ion and so long as such t rustee or t rustees shal l cont inue to hold the i r office as aforesaid all the present and future es ta te real or personal which shall have belonged or been due to such insolvent at the t ime when the order for p lac ing his es ta te under sequestrat ion was made or which m a y thereafter be purchased or acquired by or m a y revert descend or be devised or come to t h e insolvent during the con­ t inuance of t h e sequestrat ion and before he shal l obtain his certificate and al lowance the reof as hereinafter provided wheresoever t h e same m a y be found or known together wi th al l deeds vouchers papers and wr i t ings respect ing the same and the said t rustee or trustees shal l have

the

t he l ike remedy to recover the said estate o f the insolvent or any part thereof in his or the i r own name or names for the purposes o f the seques­ t ra t ion as t h e insolvent h imse l f migh t have had i f his es ta te had not been sequestrated and al l powers vested in any insolvent at the t ime the order for p lac ing his estate under sequestrat ion was made or which m a y thereafter become vested during the cont inuance of the seques­ t ra t ion and before he shall obtain his certificate and al lowance thereof which he migh t have legal ly executed for his benefit shall and may after the said order and until an order be made for confirming the appointment of a t rustee or t rustees as aforesaid be executed by the Chie f Commiss ioner and after such order is made for confirming such appointment such powers may be executed by such t rus tee or t rustees for the benefit o f the creditors in such manner as the insolvent migh t have executed the same and the said insolvent is hereby declared to be incapable to exercise or execu te any such powers as aforesaid.

5 5 . And be it enacted Tha t i f any insolvent at the t ime of any

order made for placing his estate under, sequestrat ion shall by the consent and permission of the t rue owner thereof have in his possession order or disposition any goods or chat te ls whereof he was reputed owner or whereof he had taken upon h imsel f the sale al terat ion or disposition as owner the t rustee shall have power to sell and dispose of the same for the benefit o f the creditors proving debts against the said estate Provided tha t nothing herein contained shall invalidate or affect any transfer or ass ignment o f any ship or vessel or any share thereof made as or securi ty for any debt or debts e i ther by way of mor tgage or assignment duly registered according to t h e provisions of any law in force for the regis ter ing of vessels.

5 0 . A n d be it enacted T h a t i t shall and may be lawful for the

t rustee or t rustees to take up and cont inue in his or the i r own name or names upon enter ing on .the record a suggestion of the insolvency tin; process in any suit or act ion commenced for any debt or demand due to the estate before the i r appointment or to discontinue the same as he or they shall see fit and also to commence any new suit or act ion for any debt or demand due to the estate o f any insolvent person and also on entering a l ike suggest ion to defend any suit or act ion pending against the insolvent re la t ing to or affecting the said estate and in all such cases the insolvent shall be a competent witness for e i ther party.

57 . A n d be it enacted Tha t it shall and may be lawful for the

remove any t rustee or t rustees for insolvency or for any misconduct	person interested in the due adminis t ra t ion of the insolvent estate to Supreme Court on cause shewn by the Chief Commissioner or by any
in the said t rust or on account o f absence from this Colony and there­
upon and as often as any trustee shall die i t shall and m a y be lawful
for the said Court to order a new t rus tee to be elected and the same proceedings shall be had thereon as on the original elect ion of trustees and i t shall and may be lawful for the said Cour t in the mean t ime to make such order as may be necessary or expedient for the preservation
of the insolvent estate until such new t rus tee shall be elected and
confirmed.

5 8 . And be it enacted T h a t whenever on the death or removal

of any t rus tee any new t rus tee shall be elected and confirmed in
manner hereinbefore provided the order confirming the appointment
of such new trustee shall have the effect in law to vest in the new
t rus tee the whole insolvent es ta te present or future as hereinbefore par t icular ly described and every power r ight t i t le privilege and remedy vested in or competent to the former t rustee as t rustee before his death or removal as fully and to the same ex ten t as the same was vested in the former t rustee by the order made for confirming his appointment

3 I—VOL . 2. in

in manne r aforesaid Provided always tha t the death or removal o f any t rustee shall not affect the val idi ty or force o f any lawful act done by h im as t rus tee prior to his death or removal .

5 9 . A n d be i t enacted T h a t whenever a t rustee shall die or a

new trustee shall be chosen no suit or act ion rela t ive to the insolvent es ta te shall be thereby abated but the Court in which any such suit or act ion is depending or any J u d g e thereof may upon the suggestion

of such death or removal or tha t a new trustee has been chosen and

confirmed allow t h e n a m e o f the surviving or new trustee or t rustees to be subst i tuted in the place of the former and t h e said suit or act ion shal l proceed as i f such surviving or new trustee or t rustees had or ig inal ly commenced or defended the same.

6 0 . A n d be i t enacted T h a t every t rus tee on be ing confirmed

shall forthwith cause not ice o f the sequestra t ion and of his appoint­ men t to be given by advert isement in the Government Gazette and the Ch ie f Commissioner shall cause not ice o f every order made for the removal o f any t rus tee to be given by advert isement in the Govern­

ment Gazette.
6 1 . A n d be i t enacted T h a t i t shal l and may be lawful for any

t rus tee or t rustees at any t ime to ca l l a genera l meet ing of t h e credi­ tors and to require the i r direction concerning the collect ion or sale oi any par t o f the estate and the t rus tee or t rus tees shall call such mee t ing whenever they are there to required by one-fourth o f the creditors in value who have produced and proved thei r c la ims and t h e said t rustees shall pursue the direct ions o f the greater part in number and value o f the creditors a t tending such meet ing Provided always tha t twenty-eight clays' not ice at t h e least shal l be given of every such

mee t ing and of the purpose the reof in the Government Gazette.

6 2 . A n d be it enacted Tha t at a l l publ ic meet ings of creditors

held under and by vir tue of th is A c t other than those which it is here in provided shall be held before a Commissioner one o f the creditors present shall before any other business is proceeded in be chosen by the greater part in number and value of the creditors present to preside at such mee t ing and minutes o f every such last-mentioned mee t ing shall be subscribed and authent ica ted b y the creditor presiding at such meet ing in the presence of the said meet ing and shall be by h im t ransmi t ted to the Ch ie f Commissioner toge ther wi th a copy of

the Gazette conta in ing the not ice o f such meet ing to be annexed to the

proceedings in the estate.

6 3 . A n d be it enacted T h a t i t shall and may be lawful for the

t rustees to t a k e legal advice on any legal question affecting the insol­

vent es ta te or the adminis t ra t ion the reof and to employ an a t torney for the conduct ing and defending al l act ions and suits for or against the insolvent es ta te and to charge against the insolvent estate; a l l such fees as shall thereby be incurred and shall be allowed upon taxa t ion by the proper officer of the Supreme Court subject to the review of the Supreme Court or any J u d g e the reof upon the complaint

of the a t torney so employed or o f any person having an interest in the

due adminis t ra t ion o f the estate under sequestrat ion and when it shall be made to appear to the Supreme Court or any J u d g e the reof tha t any a t torney has improperly advised commenced conducted or defended any such act ion or suit or incurred any improper or unnecessary expense therein wi th the purpose of thereby benefit ing h imse l f and not with the bond fide purpose of thereby benefit ing the insolvent estate; it shall and may be lawful for the said Court or J u d g e to order the whole or any par t o f the costs o f such suit or act ion to be paid by such

a t torney as the said Court or J u d g e shall t h ink fit.

6 4 . A n d be it enacted T h a t i t shall and may be lawful for the

said t rustee or t rustees i f they shall see fit to employ the insolvent or

any

any o t h e r p e r s o n in the g a t h e r i n g and preservat ion of any crops 0r

p r o d u c e for any reasonable t ime necessary for the ga ther ing and p r e ­

s e r v a t i o n the reof and also to leave the said insolvent or to place a n y

o t h e r p e r s o n in the charge of any p r o p e r t y m a n u f a c t o r y or c o n c e r n

b e l o n g i n g	to the insolvent estate u n t i l	t he same shall be sold	d i s p o s e d
of o r w o u n d up and to m a k e to the said insolvent	or o t h e r	p e r s o n	s o

employed a reasonable a l lowance per diem for his labor.

6 5 . A n d be it enacted Tha t a t the meet ing for e lec t ing trustees

and at any adjournment t h e r e o f as aforesaid the insolvent or legal

a d m i n i s t r a t o r o f any i n s o l v e n t es ta te shall a t t e n d b e f o r e t h e c r e d i t o r s

t o a c c o u n t for the said insolvency and shall	being t h e r e u n t o	required
b y	t h e c r e d i t o r s l o d g e with the Commissioner to be by h im d e l i v e r e d	to

the t rus tee or t rustees w h e n confirmed a t rue i n v e n t o r y o f t h e whole

o f	s u c h	es ta te and	e f f e c t s real and	p e r s o n a l	w h e r e s o c v e r	the	same m a y
be s i t u a t e d and	of	al l estates and	e f f e c t s	in	e x p e c t a n c y	or	c o n t i n g e n c y

or t o w h i c h the insolvent m a y have any eventual r i g h t and al l debts

clue to and by h im to the b e s t o f his knoAvled<?e and be l ie f and al l

books of a c c o u n t s papers wri t ings d o c u m e n t s bi l ls and v o u c h e r s r e l a t i n g
to the said es ta te w h i c h are in his custody or power and the said

i n s o l v e n t or a d m i n i s t r a t o r shall upon b e i n g t h e r e u n t o r e q u i r e d

s u r r e n d e r t he said books papers wri t ings documents bi l ls and vouchers

to the Commissioner to be by h im delivered to the t rus tee or t rustees

A v h e n	c o n f i r m e d .
6 6 . And be i t e n a c t e d T h a t no i n s o l v e n t shall r e m o v e o u t of
the j u r i s d i c t i o n	o f the Supreme Court or to r e m o t e p a r t s wi thin this
Colony by w h i c h	is i n t e n d e d parts beyond the l imi ts w h i c h now are or

hereafter may be prescribed for locat ion w i t h i n the same u n t i l after

c o n f i r m a t i o n and al lowance of the a c c o u n t and plan of d i s t r i b u t i o n o f

the estate o f s u c h i n s o l v e n t as h e r e i n a f t e r m e n t i o n e d except with the

consent in w r i t i n g of t h r e e - f o u r t h s in n u m b e r and value of the creditors

WHO have proved debts a g a i n s t his es ta te certified to the Chie f Commis­

sioner or such insolvent shall have o b t a i n e d his certificate and t h e a l l o w a n c e the reof as hereinafter m e n t i o n e d and any of the J u s t i c e s of

the Peace shall and may upon the i n f o r m a t i o n on oath o f any t r u s t e e o r

c r e d i t o r or o ther person tha t any insolvent is about to remove o r i s

m a k i n g preparat ions to remove out o f the jur i sd ic t ion o f the said

Court or to r e m o t e parts wi thin th is Colony a s a f o r e s a i d c o n t r a r y t o

th is A c t g r a n t a w a r r a n t for the a p p r e h e n s i o n o f such i n s o l v e n t and

c a u s e such insolvent to be brought before h imse l f or any other J u s t i c e

o r J u s t i c e s o f the Peace and any J u s t i c e or J u s t i c e s before whom t h e

insolvent shal l be b r o u g h t shall and m a y i n q u i r e in to the m a t t e r s o f

t h e said i n f o r m a t i o n and e i t h e r c o m m i t the insolvent to any of He r

Majes ty ' s g a o l s u n t i l he shall be d i s c h a r g e d in due course o f law or

discharge h im out o f c u s t o d y a c c o r d i n g as he or they shall find such

i n f o r m a t i o n to be w e l l f o u n d e d or not and every such c o m m i t m e n t

shal l b e and r e m a i n in full force and effect un t i l t he insolvent shall

ei ther find s e c u r i t y in such m a n n e r and t o such a m o u n t as shall be ordered by any J u d g e o f the Supreme Court in tha t beha l f tha t he will

not go out o f the j u r i s d i c t i o n o f the said Cour t or to s u c h remote p a r t s

within the Colony as aforesaid contrary to th is A c t or s h a l l be

otherwise d i s c h a r g e d by the Supreme Court or any J u d g e t h e r e o f

a c c o r d i n g to law.

67 . A n d be i t enacted Tha t i t shall and may be lawful for the

Supreme Court or any J u d g e the reof upon the applicat ion o f the t r u s t e e or t r u s t e e s w h e n e v e r a n d so o f t e n as they shal l see fit to s u m m o n any i n s o l v e n t b e f o r e the Supreme Court or any Commissioner i f the said J u d g e shall see fit so to order whether the said insolvent shall have

o b t a i n e d his certificate and a l l o w a n c e thereof or not and i t shall be
l a w f u l for such Court or Commissioner to examine upon oath touching

all

al l mat te rs re la t ing to his t rade dealings or es ta te or which may tend to disclose any secret a l ienat ion transfer surrender delivery or conceal­ ment o f his estate or effects real or personal and to cause his examina­ t ion to he reduced to wr i t ing and signed by h im and annexed to the proceedings in the said estate.

6 8 . A n d be i t enacted Tha t i f any insolvent being lawfully

summoned as aforesaid to appear before the Supreme Court or any Commissioner shall not at the t ime and place appointed in the summons for his appearance come before such Court or Commissioner (having no lawful impediment at such t ime made known to and allowed by such Court or Commissioner) i t shall be lawful for such Court or such Commissioner under his hand to grant a warrant authorizing any officer o f the law or other person to apprehend such insolvent and forthwith to br ing h i m before such Court or Com­ missioner or to lodge h im in any prison therein to be detained unt i l the t ime which such Court or Commissioner as aforesaid shall have appointed anew on the applicat ion of the t rus tee or t rustees for his examina t ion and the gaoler o f every such prison shal l cause him. to be brought before such Court or Commissioner at the t ime and place specified in such warrant and every insolvent who shall abscond or conceal h imse l f wi th in th is Colony with the purpose and in ten t to evade being served wi th such summons or having been so summoned shall so abscond or conceal h imse l f with in tent to evade appearing at any such examina t ion to which he was summoned or to prevent any

warrant hereinbefore ment ioned from being executed upon h im or who

shall remove out o f the ju r i sd ic t ion of the Supreme Court or to remote

parts wi th in the Colony contrary to th is A c t shall be deemed gui l ty o f a
misdemeanor and shall on convict ion thereof suffer t ranspor ta t ion for any period not exceeding seven years or impr isonment with or without

hard labor for any period not exceeding th ree years.

6 9 . A n d be it enacted Tha t i f any insolvent shall at the second

meet ing of his creditors or any adjournment the reof held as aforesaid being thereunto required refuse to lodge a t rue inventory of his estate and effects or to surrender the books papers wri t ings documents bi l ls or vouchers re la t ing to his es ta te as aforesaid or shall at h is examina­ t ion before the Cour t or any Commissioner before-mentioned refuse to be sworn or shall refuse to answer any lawful question put to h im by such Court or Commiss ioner touch ing any of the mat te rs aforesaid or shall refuse to sign or subscribe his examina t ion so reduced into wri t ing as aforesaid (not having any lawful object ion allowed by such	Court or Commissioner) i t shall be lawful for such Court or Commis­
sioner by warrant under his hand to commit h im to such prison as
they shall th ink fit there to remain without bai l un t i l he submit to do the mat te rs aforesaid or to be sworn or m a k e answer to such lawful questions as shall by t hem be put to h im or sign and subscribe such examina t ion as aforesaid.
7 0 . A n d be it enacted Tha t after surrender or adjudication, of sequestrat ion of any estate as insolvent i t shall and m a y be lawful
for the Supreme Court or any J u d g e thereof upon the applicat ion of the said t rustee or trustees to summon before the said Court or any Commissioner the wife o f the insolvent or any other person known or suspected to have in possession any of the estate o f the insolvent or to be indebted to the insolvent or whom the said Cour t or Commis­ sioner may see reason to believe capable o f giving information concerning the person trade dealing or es ta te o f such insolvent or any information mater ia l to the full disclosure thereof and also to require such person to produce any books papers deeds wri t ings or other documents in his or her custody which m a y appear necessary to the verification or disclosure o f any of the mat ters aforesaid and i t shal l

and

a n d may be lawful for the Supreme Court or Commissioner to

examine every such person upon oath concerning" the person trade dealings or es ta te o f such insolvent and to cause his or her examina t ion to be reduced to wri t ing and signed by h im or her a n d annexed to the said proceedings and i f any such person shall upon be ing lawfully summoned to appear to be examined fail so to appear (having no lawful impediment made known to the Court or Commis­ sioner before whom such person is summoned at such t ime and allowed by them) it shall be lawful for such Court or Commissioner to grant a warrant authorizing and direct ing any officer o f t h e law o r other person to apprehend the person so summoned and failing t o appear and to br ing the said person before such Court or Commissioner

3 K—VOL . 2 . ance

ance in the said Cour t shal l be affected t h e same shal l again l ie open for inspect ion of the credi tors and not ice t h e r e o f shall be given as aforesaid.

9 1 . A n d b e it enac ted T h a t i t shal l and m a y be lawful for t h e

t rus tee or t rus tees after the expi ra t ion of the t ime appointed for t h e inspect ion of t h e said account and plan o f distr ibution and no objec t ion being entered there to or i f any object ion has been s ta ted after the Cour t has made order thereon as aforesaid to apply to the Supreme Court praying tha t t h e said p lan m a y be allowed and confirmed b y the Court and thereupon i t shall and m a y be lawful for the said Cour t to allow and confirm t h e same and such al lowance and confi rmat ion shall have the effect o f a final j u d g m e n t o f the said Court as between the insolvent and the creditors o f such insolvent respect ively and as to t h e amount o f any debt there in specified excep t against such creditors as shall afterwards be admit ted by the said Court in manne r hereinbefore provided to prove the i r debts and r a n k upon the same es ta te at any t ime before the final dis tr ibut ion thereof.

9 2 . A n d be i t enacted T h a t after confirmation and al lowance

o f the said account and plan of distr ibution the t rustees shall upon

the demand o f the said creditors dis tr ibute t h e said estate according there to and the remedy o f any creditor to obtain payment o f any dividend due to h im shal l be during the con t inuance in office o f the said t rustee or t rus tees by appl icat ion to any J u d g e o f the Supreme Cour t and the order o f the said J u d g e thereon.

9 3 . A n d b e i t enacted T h a t i f any t rus tee desire to resign his

office i t shall be lawful for such t rus tee to apply to the Supreme Court or a J u d g e the reof for leave to res ign his office or to surrender the said t rus t to the Ch ie f Commiss ioner as to any future estate or effects which m a y be acquired by t h e insolvent before he shall obta in his cert if icate and al lowance the reof and to be discharged and acqui t ted o f the said t rus t and i f no val id objec t ion be stated and i f t h e Court or

J u d g e be satisfied tha t the t rus tee has complied wi th t h e regula t ions

of th i s A c t so far as regards h im his appl icat ion m a y be granted

by t h e said Court or J u d g e bu t i f any object ion be stated there to the Cour t or J u d g e shall proceed to determine the same in a summary manne r and shall m a k e such order thereon as they shal l t h ink fit and i f t h e appl icat ion o f the t rus tee for leave to resign be granted t h e said Cour t or J u d g e shall thereupon m a k e such order as they or he shal l see fit for the preservat ion and adminis t ra t ion of the es ta te un t i l a new t rus tee be chosen and confirmed and for the discharge

and acqui t tance o f t h e said t rus tee and for t h e secur i ty and

payment o f any unc la imed dividends to t h e part ies ent i t led to t h e same and respect ing any future estate or effects which m a y be acquired by the insolvent before he shall obtain his cert i f icate and al lowance the reo f Provided always tha t no order o f the said Cour t or J u d g e al lowing the said t rustee to resign shal l prevent t h e t rustee thereaf ter chosen and confirmed in his stead from ca l l ing upon h im to account for any par t o f his conduct as t rus tee pr ior to his res ignat ion A n d provided always tha t before m a k i n g any appl icat ion for leave to res ign the t rus tee shall m a k e out a full s ta tement o f his accounts and of the s i tuat ion of t h e insolvent es ta te and shall cal l a mee t ing of the credi tors to consider the same o f which meet ing at least twenty-e ight days' no t ice shall be given b y advert isement in the Government Gazette i n t imat ing t h e purpose o f t h e mee t ing and also

t ha t t h e aforesaid s ta tement wil l in the mean t ime lie open for the i r

inspect ion in t h e office o f the Chie f Commiss ioner .

9 1 . A n d be i t enacted T h a t any insolvent m a y after the th i rd

publ ic mee t ing of his credi tors cal led by the Chief Commiss ioner as aforesaid and after his examina t ion ( i f any has been applied for and

ordered

o r d e r e d as a f o r e s a i d ) a p p l y to his c r e d i t o r s for a certificate t e s t i f y i n g

t h e i r	c o n s e n t	t o t h e d i s c h a r g e	o f t h e	i n s o l v e n t	b e i n g	g r a n t e d	b y the
Court	in m a n n e r	h e r e i n a f t e r	m e n t i o n e d	and	e v e r y i n s o l v e n t	who	s h a l l

have	o b t a i n e d	s u c h	c e r t i f i c a t e	s i g n e d	by t h r e e - f o u r t h s	in	n u m b e r	a n d
v a l u e	o f	t h e c r e d i t o r s	w h o h a v e	p r o v e d	debts	against	h i s e s t a t e	a n d

who s h a l l m a k e o a t h in w r i t i n g t h a t s u c h c o n s e n t a n d c e r t i f i c a t e w e r e

o b t a i n e d w i t h o u t f r a u d a n d w i t h o u t h i s h a v i n g u s e d a n y u n d u e m e a n s

or i n f l u e n c e or h a v i n g m a d e any s e c r e t c o m p r o m i s e w i t h h i s c r e d i t o r s

i n o r d e r to o b t a i n t h e i r c o n s e n t a n d c e r t i f i c a t e m a y a p p l y to t h e Supreme

Cour t to h a v e h i s cert if icate a l l o w e d Provided t h a t at l e a s t s i x w e e k s '

n o t i c e o f t h e d a y on w h i c h s u c h a p p l i c a t i o n is to be m a d e s h a l l h a v e

b e e n g i v e n by a d v e r t i s e m e n t in t h e Government Gazette a n d i f no

o b j e c t i o n be m a d e t h e r e t o by a n y of the c r e d i t o r s o f the i n s o l v e n t t h e

said Court s h a l l m a k e a n o r d e r a l l o w i n g s u c h c e r t i f i c a t e bu t i f a n y

o b j e c t i o n s h a l l be m a d e b y a n y c r e d i t o r t h e s a i d Cour t s h a l l j u d g e a n d

d e t e r m i n e	t h e r e o n	a n d s h a l l	r e f u s e	or s u s p e n d	t h e said	c e r t i f i c a t e	or
a l l o w	t h e s a m e	a b s o l u t e l y	or	c o n d i t i o n a l l y	as t h e j u s t i c e	o f the	case

s h a l l r e q u i r e Provided a l w a y s t h a t w h e r e in c o n s e q u e n c e o f t h e g o o d s

a n d e f f e c t s o f the i n s o l v e n t b e i n g u n d e r t h e v a l u e o f o n e h u n d r e d

p o u n d s the p r o c e e d i n g s in s u c h c a s e d i r e c t e d by t h i s A c t s h a l l h a v e

t a k e n p l a c e i t s h a l l be lawful f o r s u c h i n s o l v e n t at a n y t i m e n o t b e i n g

l e s s t h a n t h r e e m o n t h s a f t e r t h e s a i d first m e e t i n g to a p p l y to h i s

c r e d i t o r s f o r a c e r t i f i c a t e as a f o r e s a i d .

9 5 . A n d be it e n a c t e d T h a t i f a n y i n s o l v e n t s h a l l h a v e c o m ­

m i t t e d a n y a c t h e r e i n d e c l a r e d to a m o u n t to t h e c r i m e o f f r a u d u l e n t

i n s o l v e n c y	or	s h a l l	a f t e r	s u r r e n d e r	o f h i s e s t a t e	or i n c o n t e m p l a t i o n	of
i n s o l v e n c y	or	a f t e r	n o t i c e	o f a n y o r d e r	for	s e q u e s t r a t i o n	o f h i s e s t a t e
h a v e	d e s t r o y e d	a l t e r e d	m u t i l a t e d	or f a l s i f i e d	or c a u s e d	to be	d e s t r o y e d

a l t e r e d m u t i l a t e d or f a l s i f i e d a n y of h i s b o o k s p a p e r s w r i t i n g s or

s e c u r i t i e s or m a d e or been p r i v y to t h e m a k i n g o f a n y f a l s e or

f r a u d u l e n t e n t r i e s in a n y b o o k o f a c c o u n t s or o t h e r d o c u m e n t w i t h

i n t e n t to d e f r a u d h i s c r e d i t o r s or i f a n y p e r s o n s h a l l h a v e p r o v e d a

f a l s e d e b t a g a i n s t t h e e s t a t e o f a n y i n s o l v e n t s u c h i n s o l v e n t b e i n g

p r i v y	t h e r e t o	or a f t e r w a r d s	k n o w i n g	t h e s a m e	s h a l l	n o t have	d i s c l o s e d
t h e	s a m e	to h i s t r u s t e e s within	o n e m o n t h	a f t e r	s u c h	k n o w l e d g e	s u c h
i n s o l v e n t	s h a l l	n o t b e	e n t i t l e d	to h i s c e r t i f i c a t e	or	a l l o w a n c e	a n d a n y
c e r t i f i c a t e	and	a l l o w a n c e	which	s u c h	i n s o l v e n t	m a y h a v e	o b t a i n e d

s h a l l be n u l l a n d v o i d .

9 6 . A n d be i t e n a c t e d Tha t a n y c o n t r a c t or s e c u r i t y m a d e or

g i v e n by a n y i n s o l v e n t or o t h e r p e r s o n f o r or i n t r u s t f o r a n y c r e d i t o r

or f o r s e c u r i n g t h e p a y m e n t o f a n y m o n e y d u e by s u c h i n s o l e n t a t

h i s i n s o l v e n c y as a c o n s i d e r a t i o n or w i t h i n t e n t to p e r s u a d e s u c h

c r e d i t o r to a g r e e to a c c e p t a n y o f f e r o f c o m p o s i t i o n or s e c u r i t y f o r

c o m p o s i t i o n or c o n s e n t to s i g n s u c h c e r t i f i c a t e s h a l l be a n d is h e r e b y

declared t o be f r a u d u l e n t	a n d v o i d a n d t h e money	t h e r e b y	s e c u r e d	or
a g r e e d	to be p a i d	s h a l l	n o t be	r e c o v e r a b l e .

9 7 . A n d be; it e n a c t e d T h a t e v e r y s u c h c e r t i f i c a t e when a l l o w e d

by t h e Supreme Court s h a l l h a v e the e f f e c t to d i s c h a r g e t h e i n s o l v e n t

f r o m a l l d e b t s d u e by h i m a t the t ime h i s estate w a s s u r r e n d e r e d or

a d j u d g e d to be s e q u e s t r a t e d a n d f r o m a l l c l a i m s a n d d e m a n d s p r o v e d

o r h e r e b y m a d e p r o v e a b l e a g a i n s t h i s e s t a t e b u t no s u c h c e r t i f i c a t e

a n d a l l o w a n c e t h e r e o f s h a l l h a v e e f f e c t to r e l e a s e or d i s c h a r g e a n y

p e r s o n who w a s p a r t n e r wi th s u c h i n s o l v e n t a t t h e t i m e o f h i s

i n s o l v e n c y or who was t h e n j o i n t l y b o u n d or who h a d m a d e a n y j o i n t

c o n t r a c t w i th such i n s o l v e n t .

9 8 . A n d bo i t e n a c t e d T h a t a n y t r u s t e e b e c o m i n g i n s o l v e n t

a n d b e i n g i n d e b t e d to t h e e s t a t e o f w h i c h he was t r u s t e e in r e s p e c t of

a n y s u m o f money i m p r o p e r l y regained o r e m p l o y e d b y h i m i f he

s h a l l

shal l obtain his certificate and al lowance the reof shall not be discharged

the reby as to his future effects in respect o f t h e said debt.

9 9 . A n d be it enacted T h a t any insolvent who after his cer t i ­

ficate has been allowed shal l have any act ion b rough t agains t h im for any debt c l a im or demand due by h im at the t ime his es ta te was surrendered or adjudged to be sequestrated proved or hereby made proveable agains t his es ta te m a y plead in genera l tha t the cause of act ion accrued before he surrendered his estate or t h e same was seques­ t ra ted as aforesaid and m a y give th is A c t and t h e special ma t t e r in evidence and such insolvent ' s certificate and al lowance thereof shall

be sufficient evidence o f the insolvency surrender or adjudication and

other proceedings precedent to the obta in ing the said cert if icate and al lowance the reof and i f any such insolvent shall be t aken in execut ion or detained in prison for such debt c la im or demand where j udgmen t has been obtained before the al lowance of his cer t i f icate i t shall be lawful for -any J u d g e o f t h e Supreme Court on proof by such insolvent
o f his cert if icate and a l lowance thereof to order any gaoler or officer

who shal l have the said insolvent in custody by v i r tue of the said execu t ion to discharge h im wi thout exac t ing any fee from the defendant and the said gaoler or officer shal l be and i s hereby indem­ nified for so doing.

1 0 0 . A n d be it enacted T h a t at any t ime or t imes after the

plan of dis tr ibut ion of any insolvent es ta te h a s been confirmed in m a n n e r hereinbefore ment ioned or after the dis tr ibut ion of the said es ta te has been directed to be made under the provisions o f th is A c t and before t h e insolvent shal l h a v e obta ined his cert if icate and allow­ ance thereof it shall and m a y be lawful for the t rustees o r a n y creditor

of t h e said estate to apply to the Supreme Court for a n order o f the

said Cour t for the impr isonment o f the said insolvent unfit satisfac­ t ion of his debt o r lawful discharge therefrom Provided t h e s a i d insol­ vent shal l first have been duly summoned to appear before such Cour t on the day whereon the said applicat ion shall be made to shew cause why such order should not be made and thereupon and upon proof to the sat isfaction o f the said Court tha t the said estate is not sufficient to discharge the debts proved or proveable against the said es ta te as aforesaid and tha t the insolvent ha th reasonable means of d ischarg ing the same or some par t the reof i t shal l and may be lawful for the Court to gran t the said order absolutely or condi t ional ly or to refuse the same as to the said Court shall seem j u s t and reasonable Provided t ha t w h e n t h e appl icat ion shal l be made by one or more creditors and	t h e said Cour t shall suspend the same upon the condit ion o f the insol-
A _ent paying any sum o f money periodical ly or o t h e r w i s e such payment
shal l be made to the t rus tees or to the Chief Commiss ioner as the case
m a y be for t h e benefit o f a l l t he creditors.

1 0 1 . A n d be it enacted Tha t t h e Ch ie f Commissioner shal l

en ter o f record and h a v e the custody of al l proceedings re la t ing to any insolvency under and by v i r tue o f th is A c t and the insolvent or any creditor who has proved shall at all reasonable t imes have inspect ion of the same and be permit ted to t ake ex t rac t s or copies therefrom at his own expense and ex t rac t s o f such proceedings signed by the said Commiss ioner shal l be received as evidence in a l l Cour ts o f J u s t i c e wi th in the Colony.

1 0 2 . And be it enacted T h a t whenever i t shal l be made to

appear to the Supreme Court or any J u d g e the reof tha t the Chief or other Commiss ioner as the case m a y be is prevented by il lness or any u n a v o i d a b l e cause from holding any meet ing which under the provi­ sions o f th is A c t is required to be holden b e f o r e any Commiss ioner it shal l and m a y be l a w f u l for the said Court or J u d g e to appoint a Commiss ioner for the special purpose of holding such mee t ing who

shal l

shall have for the purpose of such mee t ing the same powers and
authori t ies as are by th is A c t given to any Commissioner in the l ike case.

1 0 3 .    A n d be it enacted T h a t i t shall and m a y he lawful for the

J u d g e s o f the Supreme Court a t Sydney and for the Res iden t J u d g e

at P o r t Ph i l l ip from t ime to t ime as they shall t h i n k fit to m a k e such

rules orders and regula t ions for car ry ing th is A c t in to effect and also touch ing the form and manner o f proceeding and the fees to be taken

for any t h ing done under t h e same as to them shal l seem fit.

1 0 4 . A n d be it enacted and declared T h a t for al l the purposes

of th i s A c t the Supreme Court shal l and may be holden a t Sydney by

and before any one or more o f the J u d g e s of the said Court and at

P o r t Ph i l l ip by and before the Res iden t J u d g e there.

1 0 5 . A n d be it enacted and declared Tha t in every case where

any insolvent shall be resident wi th in the l imi t s wi thin which the R e s i d e n t J u d g e at P o r t Ph i l l ip has or shall have jur i sd ic t ion the words " Ch ie f Commiss ioner " used in this A c t shall be construed tc mean and apply to the Chie f Commiss ioner o f Inso lven t Es ta tes resident at P o r t Ph i l l ip and tha t where by th is A c t any ma t t e r oi t h ing re la t ing to the person or estate o f any such insolvent is required to be inser ted in the Government Gazette t he same shall also be in

l ike m a n n e r inserted in some publ ic newspaper publ ished at Port

Ph i l l ip .

1 0 6 . A n d be it enacted and declared T h a t in every case where

any insolvent shall be resident in any other par t o f t h e Colony t h a i wi thin the l imi t s wi th in which the Res iden t J u d g e at P o r t Ph i l l ip has or shal l have jur isd ic t ion t h e words " Chie f Commiss ioner " used in th is A c t shall be construed to mean and apply to the Ch ie f Commis­

sioner o f Inso lven t Es t a t e s resident at Sydney.

1 0 7 . A n d be i t enacted T h a t in all suits or ac t ions and in all

ind ic tments or informations under th is A c t where it shal l be necessary to a l lege or prove tha t any par ty became or was insolvent or tha t his es ta te was surrendered or sequestrated as insolvent or ordered or adjudged to be so sequestrated i t shall be sufficient mere ly to allege; t ha t such par ty be ing insolvent wi th in the meaning of th is A c t his es ta te was ordered or adjudged to be sequestrated without se t t ing forth such adjudication or any order for such sequestrat ion

or set t ing forth or proving any pet i t ion presented in the ma t t e r of the insolvency or any pet i t ioning creditor 's debt or meet ing of creditors or o ther proceeding under this A c t and proof o f such adjudication or

hand of the J u d g e or Officer s igning t h e same shal l (on proof o f such	order by the production thereof or o f any office copy the reof under the	s ignature and of t h e ident i ty o f t h e par ty there in named as insolvent )
be sufficient for the purposes of such al legat ion.

1 0 8 .    A n d be i t enacted T h a t th is A c t shall be in full force and

effect on the first day of F e b r u a r y n e x t from and after which day	an
A c t of the Governor o f th is Colony with the advice of the	Leg i s l a t ive
Counci l made in the second year o f the re ign of H e r Ma je s ty	Queen

V i c t o r i a in t i tu led " An Act to revive 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' and to make

" certain amendments therein " and also an A c t o f H i s E x c e l l e n c y

the Governor and Legis la t ive Counci l passed in t h e fourth year of the re ign of H e r present Majes ty in t i tu led " 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" shal l b e and the same are hereby repealed.

No . X V I I I .