Insolvency Act 1843 No 22a (NSW)

No. XIX.

An Act to amend an Act int i tuled " An Act for

to

" giving relief to Insolvent Persons and providing

" for the administration of Insolvent Estates and

" to abolish Imprisonment for Debt." [21st

December, 1843.]

WH E R E A S an A c t was passed by t h e Council of N e w Sou th W a l e s in t h e fifth year of t h e re ign of

Governor and Legis la t ive

H e r presen t Majesty in t i tu led " An Act for giving relief to Insolvent

" Persons and providing for the due collection administration and

" distribution of Insolvent Estates within the Colony of New South

" Wales and for the prevention of frauds affecting the same" and

whereas it is expedient and necessary to amend the same Be it there­

fore enacted by H i s Exce l lency t h e Governor of N e w South W a l e s

w i th t h e advice a n d consent of t h e Legis la t ive Council thereof T h a t from and after t h e pass ing of th i s A c t so m u c h of t he said recited Ac t as relates to t he appo in tmen t of Chief Commissioners Commissioners or o ther min is te r ia l officers for t h e purpose of carrying in to effect the

provisions of t h e said Ac t and also so m u c h of t h e said Ac t as re la tes

to t h e t a k i n g of fees by t he said Chief Commissioners Commissioners a n d o the r minis ter ia l officers shall be and t h e same are hereby repealed.

2. A n d be i t enacted Tha t from and after t he pass ing of th i s

A c t it sha l l and may be lawful for t h e Governor of t h e said Colony for t h e t i m e be ing or for t h e officer adminis te r ing t h e Government for and on behalf of H e r Majesty and subject to Her Majesty 's approval to appo in t a Chief Commissioner for Inso lvent Es t a t e s for all pa r t s of t h e Colony not be ing wi th in t h e Dis t r ic t of P o r t Phi l l ip and for t h e said Governor or officer adminis te r ing t he Government in l ike m a n n e r to appoin t such Commissioners resident in t he count ry pa r t s

of t h e said Colony a n d o ther minis ter ia l officers as m a y be necessary

to ca r ry in to effect t he provisions of t h e said A c t and such Chief Commissioners Commissioners or other minis ter ia l officers as wel l as t he Chief Commissioners Commissioners or o ther minis ter ia l officers already appoin ted unde r t he said reci ted Ac t to suspend or remove and to appoin t other persons in the i r stead respectively as occasion may from t ime to t ime in t h e opinion of t h e said Governor requi re .

3. A n d be i t enac ted Tha t from and after t h e pass ing of th i s A c t t h e several fees ment ioned in t h e Schedule to th i s Ac t annexed marked A and no others shall be t aken in all m a t t e r s or th ings to he done unde r th is or t he said reci ted A c t Provided tha t in cases of ex t r eme pover ty it shal l be lawful for any Commissioner a t his discretion to r emi t any of such fees.
4. A n d be it enacted Tha t t h e said fees shal l be and the same arc hereby declared to be payable for and on behalf of H e r Majesty a n d H e r Successors for t h e suppor t of t h e Commissioners and o ther officers of t he said insolvent estates and the i r necessary con t ingen t expenses and t h a t t he same m a y in all cases be recovered by H e r Majes ty and H e r Successors in t h e same m a n n e r as all o ther sums of money and debts due to t h e Crown m a y be recovered.

5. A n d be i t enacted Tha t if after paymen t of t h e salaries of

t h e said Commissioners a n d minis ter ia l officers a n d the i r necessary

con t ingen t expenses the re shall be any surp lus r ema in ing out of the p roduce of t h e said fees such surp lus shall be applied towards t he general revenue of t h e said Colony.

6. A n d whereas by t h e said reci ted A c t it is enacted t h a t it

shal l and m a y be lawful for t he J u d g e s of the Supreme Cour t a t Sydney a n d for t h e Res ident J u d g e a t P o r t Phi l l ip from t ime to t i m e as they

shall t h i n k fit to m a k e such ru les orders and regula t ions for ca r ry ing

t h e said Ac t in to effect and also touch ing t h e form and m a n n e r of pro­ ceeding as to t h e m shall seem fit and whereas it is necessary to m a k e fur ther provision in respect to any such ru les orders or regula t ions Be i t therefore enacted Tha t all orders rules or regula t ions which m a y a t any t ime after t h e pass ing of th is Act be made by t h e said J u d g e s or Resident Judge shal l w i th in th i r ty days after t h e p romulga t ion of t he same be laid before t he Legislat ive Council of th i s Colony if t he Council be t h e n s i t t ing and if not s i t t ing t hen wi th in

t h i r t y days after t he said Council shal l nex t thereaf ter assemble.

7. A n d whereas cer ta in notifications arc requi red by the t w e n t i e t h th i r ty-four th s ixt ie th seventy-seventh and e ighty-e ighth sect ions respectively of t he said reci ted Ac t to be m a d e by publ ic adver t i sement in the Government Gazette of the said Colony a n d

whereas such notifications in t h e Government	Gazette	publ ished	a t
Sydney	have been found pract ical ly inconvenient wi th in	t h e	Dis t r ic t

of P o r t Phi l l ip Be i t enacted Tha t in all cases of insolvency wi th in

t h e Dis t r ic t of P o r t Phi l l ip such notifications shall be made by

adver t i sement in one or more of t h e publ ic newspapers publ ished a t

M e l b o u r n e ins tead of t h e said Government Gazette.

4 P — V O L . 2. 8.

8. A n d whereas b y t h e fifth section of t h e said reci ted A c t i t

is enacted t h a t t h e f raudulen t a l ienat ion or t ransfer of any p rope r ty shal l cons t i tu te an act of insolvency and in t h e following section i t is enac ted t h a t every al ienat ion or t ransfer of p roper ty wi thou t va luable considera t ion by any person a t t h e t ime insolvent or who thereby shall b e rendered insolvent shall be a n d the same is declared to be fraudulent a n d void provided t h a t no conveyance or ass ignment executed pr ior to t h e pass ing of t h a t Ac t u n d e r t h e provisions of t h e A c t passed in t h e

fifth year of t h e re ign of H e r presen t Majesty in t i t u l ed " An Act for

" the further amendment of the Law and the better advancement of " Justice'''' and in conformity w i t h those provisions should be deemed f raudulen t or void ei ther u n d e r t ha t or t h e preceding section and whereas i t is expedient to protect conveyances and ass ignments here­ after executed in conformity w i t h t he provisions of t h e said last reci ted A c t a n d for t h a t purpose to ex tend the operat ion of t h e said proviso Be i t therefore enacted T h a t after t h e pass ing of th i s Ac t no conveyance or a s s ignmen t wh ich shall be m a d e u n d e r and executed in conformity with

t h e provisions of t h e said A c t for t he be t t e r advancement of jus t ice shall

be deemed f raudulen t	wi th in t he i n t en t or m e a n i n g of t he said A c t	for
t h e relief of insolvents or	shal l be void u n d e r	or be in any m a n n e r

affected b y t h e said las t men t ioned A c t or any p a r t thereof no r shall a n y person hav ing executed any such conveyance or ass ignment in conformity wi th t h e said provisions of t h e said A c t for t h e fur ther

a m e n d m e n t of t he law a n d t h e be t t e r advancement of jus t i ce be after­

wards l iable to be adjudged insolvent by reason thereof or of h i s n o t po in t ing out or no t be ing able to poin t out to t h e Sheriff or his officers any p rope r ty belonging to h im sufficient t o satisfy any wr i t in t he h a n d s of such Sheriff a n y t h i n g in t h e said A c t passed for t h e relief of

insolvents n o t w i t h s t a n d i n g Provided a lways t h a t i t shal l be lawful for

one of t h e J u d g e s of t he Supreme Cour t upon t h e pe t i t ion of any n u m b e r of credi tors whose debts shall a m o u n t to one-fifth of t h e whole a m o u n t of t he debts of t h e said debtor appear ing on the said deed of a s s ignment to s u m m o n t h e said debtor before h i m and cause h i m to be examined by the said creditors t o u c h i n g t h e s ta te of his affairs pre­

vious and subsequent t o m a k i n g t h e said ass ignment a n d all o ther

m a t t e r s r e l a t ing to his es ta te and effects as to t h e said J u d g e m a y seem fit and t h a t any such debtor refusing to answer any ques t ion wh ich shal l be p u t to h i m on such examina t ion or who shall answer

evasively or unsat isfactor i ly shal l be l iable to be commit ted to p r i son

by t h e said J u d g e u n t i l he shal l answer such ques t ion in a full fair and
satisfactory	m a n n e r .

9. Provided always and be i t enac ted T h a t every t rus tee ap­ pointed by and hav ing executed any such conveyance or ass ignment as aforesaid shal l be subject to t h e same liabil i t ies w i t h respect t o t h e keep ing of accounts of all monies a n d p rope r ty coming to his h a n d s or be ing u n d e r his care or control in t h a t capaci ty and to t h e deposi t ing of such monies in some publ ic b a n k and w i t h respect t o t he wi thd raw­ ing of t h e same theref rom as t h e t rus tees of any insolvent person are by t h e said A c t for t h e relief of insolvents subject t o i n those cases a n d i t shal l be lawful for t he Supreme Cour t or any J u d g e thereof by

r u l e or order in t h a t behalf made (after ru le or s u m m o n s to shew

cause as in any ord inary case) u p o n t h e compla in t or appl ica t ion of

any creditor or of t h e debtor or any o ther in teres ted pa r ty to requi re

and compel any such t rus t ee if t h e Cour t or J u d g e shall see fit so to order to m a k e out a n d deliver to t h e person so app ly ing or to file in t h e proper office of the Supreme Cour t a full t r ue and par t i cu la r account on oa th of all such monies and p roper ty and of t he appro­ pr ia t ion thereof or if need be to direct a n y such t rus tee to a t t e n d

before t h e Mas t e r or P r o t h o n o t a r y of t he Cour t and submi t himself t o

be

be examined touch ing t h e execut ion of his t r u s t and u p o n t h e	coming
in of t h e repor t upon any such examina t ion or on sufficient	g rounds
shewn to such Cour t or J u d g e upon affidavit w i t h o u t any such	repor t

or examina t ion or upon t h e res ignat ion absence from t h e Colony or dea th of any such t rus tee to appoin t a new t rus tee in t h e place of a n y of t h e t rus tees original ly appointed a n d so from t ime to t ime as occasion m a y requi re and to direct any t rus t ee to pay over to any c la imant or person or in to t he h a n d s of some officer of t h e Cour t a n y s u m of money alleged or proved as t h e case m a y be to be due to such c la imant or person ei ther by such t rus tee or t h e debtor for whose es ta te h e shal l have been appoin ted or t h e a m o u n t of any balance appea r ing t h e n to be in his hands to t h e credit of such es ta te and every such order to enforce by a t t a c h m e n t or execut ion as in cases of t h e l ike n a t u r e a n d t h e costs of every such proceeding and ru le or order as aforesaid sha l l be in t h e discretion of t he Cour t or J u d g e

m a k i n g such ru l e or order.

10.    A n d be i t enacted T h a t if any such t rus tee as aforesaid or any

official or elected assignee appoin ted after the pass ing of th i s Ac t in any insolvent es ta te shall a t a n y t ime after t h e pass ing of th i s A c t wilfully re ta in in his hands or keep or have a t any b a n k or in t h e hands of any person for his own pr iva te benefit or otherwise t h a n to t h e credit of t h e es ta te by n a m e for which he shal l be ac t ing any s u m of money exceeding ten pounds for any longer space or period t h a n one m o n t h or shal l in any m a n n e r f raudulent ly m a k e away wi th or appro­ pr ia te to his own use or otherwise misapply any money or p rope r ty whatsoever in his hands or u n d e r his custody or care as such t rus tee or assignee he shall be deemed gui l ty of a misdemeanor a n d be ing convicted thereof shall be l iable to a fine not exceeding th ree t imes t he a m o u n t of t h e s u m re ta ined or to impr i sonmen t for any t e r m no t exceeding one year a t t h e discret ion of t h e Cour t .

11. A n d for the protect ion of purchasers c la iming u n d e r any

such t ru s t ee as aforesaid Be it enacted Tha t it shal l no t in any case be necessary for any person pu rchas ing any p roper ty w h e t h e r l and or

chat te ls bond fide and for va luable considerat ion from t h e t rus tee or

t rus tees appo in ted by or otherwise lawfully ac t ing for t he t ime be ing u n d e r any such conveyance or ass ignment as aforesaid or advancing any money on the same on loan to inqu i re in to t he necessi ty or pro­ pr ie ty of a n y such sale or loan or to see to t h e appl icat ion of t h e money pa id or advanced nor shal l t h e t i t le of such person bo in any­

wise impeached or inval idated by reason of any fraud or defect of
which he shall have h a d no not ice provided t h a t such conveyance or

a s s ignment shall have been duly advert ised and t h a t by reference	to
t h e schedule the re to t h e creditors hav ing executed t h e deed shall	a t

t he t ime of such sale or loan appa ren t ly cons t i tu te t h e major i ty in n u m b e r and in value of t h e creditors named in or otherwise indicated by such schedule.

12. A n d be it enacted Tha t after t h e pass ing of t h i s A c t i t shall

be lawful for t he Chief Jus t i ce of the Colony and t h e Res iden t J u d g e a t

P o r t Phi l l ip respectively to appoin t w i th in t h e l imi ts of the i r several

ju r i sd ic t ions such n u m b e r of fit persons to be and be called Official

Ass ignees of Inso lvent Es ta t e s as m a y be from t ime to t i m e requi red a n d in case of res ignat ion dea th absence or incapaci ty of any of t h e m from t ime to t i m e to appoint o thers in the i r place respectively and a t any t i m e to remove any such assignee from office and appoin t ano the r in his s tead a n d from and after t he t ime of t he first appo in tmen t of such assignees as aforesaid t h e power of appoin t ing a provis ional t ru s t ee

shal l cease a n d t h e J u d g e by w h o m any es ta te shall be placed under

seques t ra t ion shal l a t t h e same t i m e by order unde r his h a n d appoin t one of t he said persons as and to be t h e official assignee of and for

such

such es ta te which assignee shal l t he r eupon and f rom thencefor th become and act as and con t inue to be ei ther alone or jo in t ly wi th t h e elected assignee (if one shal l thereaf ter be elected by t h e creditors there in) t h e assignee or one of t he assignees (as t h e case may be) of such insolvent es ta te u n t i l t h e insolvency shal l be superseded or t h e t h e affairs of such es ta te have been finally w o u n d u p and the proceeds thereof disposed of Prov ided t h a t in case t he official assignee so appoin ted shall be dismissed from office or be removed from his t r u s t for misconduct or o ther sufficient cause or shall res ign t h e same leave t he Colony or die i t shal l be lawful for t h e said Chief J u s t i c e or Res iden t J u d g e as t he case m a y be to appoin t ano ther official assignee in his place who shal l t he reupon succeed to all t he r igh t s powers dut ies and liabilities of h is predecessor.

13 . A n d be i t enacted Tha t after t h e pass ing of th i s A c t i t

shal l no t be necessary for t h e creditors of a n insolvent estate to elect any t rus tee or assignee of such estate b u t t h a t in case they shall t h i n k fit t o do so t h e y shal l or lawfully m a y at t h e t ime in t h e m a n n e r and according to t h e ru les provided for t he election of t ru s t ees by t h e said rec i ted Ac t for t h e relief of insolvents elect one assignee only which said assignee after be ing confirmed by t h e Cour t as by t h e said A c t in t h a t behalf is provided shall act in all t h ings jo in t ly w i th the official assignee appoin ted for t h e same esta te except in so far as e i ther of t h e m m a y at t he t ime b y consent of t h e Chief Commissioner have

u n d e r t a k e n some pa r t i cu la r du ty a t the reques t of t h e o ther of t h e m .

14. A n d be i t enacted T h a t every appo in tmen t so made of any

official assignee as aforesaid in a n d for any insolvent es ta te shal l from t h e t i m e of t h e m a k i n g thereof have t h e same effect in t he law of

divest ing from t h e insolvent or insolvents all h is or the i r es ta te r i gh t s

a n d proper ty of every k ind and of ves t ing t h e same in such assignee and (in case of a previous appo in tmen t in t h e same estate) of divest ing such es ta te r igh t s and proper ty from t h e assignee previously appointed and of ves t ing t h e same in his successor as by t he said recited A c t for t h e relief of insolvents is (wi th respect to t h e ves t ing of an insolvent ' s es ta te in t h e Chief Commissioner) conferred on t h e J u d g e ' s order for

p lac ing t h e es ta te u n d e r seques t ra t ion Provided t h a t upon t h e con­

firmation of any such elected assignee as aforesaid all such es ta te

r i gh t s and p roper ty as aforesaid shal l vest in t h e official assignee for

t h e t i m e be ing jo in t ly only w i t h such elected assignee and al l and

s ingula r t h e powers privi leges r igh t s dut ies a n d liabili t ies in al l respects which by the said Ac t now a t t ach or belong to or devolve on

t i m e be ing of an insolvent estate shal l after t he pass ing of th i s Ac t in	or which m a y lawfully be enjoyed or exercised by t h e t rus tees for t he
l ike m a n n e r and to t he same ex ten t a t t ach and be long to and devolve upon and may be c la imed enjoyed a n d exercised by t h e assignees of every insolvent es ta te seques t ra ted after t h e pass ing of th i s Act (separately or jo in t ly as t h e case m a y be) whe the r official or elected.

15 . A n d (for t h e be t t e r pro tec t ion of purchasers and others) Be

i t enacted and declared Tha t the same t i t le to p roper ty whe ther l and or cha t te l s be longing to or forming pa r t of any insolvent es ta te whe ther legal or equi tab le and whe the r in possession or in reversion only or expectancy shall or m a y be conveyed or t ransfer red in fee or otherwise as t he case m a y be to any purchase r mor tgagee or o ther person by the assignee or assignees of such es ta te for t he t ime be ing as t he insolvent himself h a d or was by law ent i t l ed or able to convey or t ransfer immedia te ly before t he seques t ra t ion of t he same estate and i t shal l no t be essential to t he val idi ty of any such conveyance or t ransfer (so far as i t respects t h e r i gh t of any person to execute t h e same as assignee) to prove more t h a n t h e fact of h is appo in tmen t or in t he case of an elected assignee his confirmation in t h a t charac ter t h a t a t t h e t ime of

t he

t h e execut ion of t h e i n s t r u m e n t he h a d not been removed from office

a n d t h a t t he re was t h e n no assignee in or of t h e estate in quest ion o ther

t h a n the a s s i g n e e or assignees execu t ing t h e same ei ther official or elected of which several facts t he certificate of t he Chief Commissioner

endorsed on such i n s t r u m e n t of t ransfer shall be conclusive evidence.

16. A n d be i t enacted Tha t after t h e pass ing of th i s Ac t t h e

certificate requ i red by t h e said Act for t h e relief of insolvent persons as a pre l iminary to t h e insolvent ' s discharge from his debts shall no t be necessary nor shall any such certificate be given or applied for b u t i n l ieu thereof a certificate in t h e t e r m s or to t h e effect hereinafter conta ined shall be g ran ted by the Chief Commissioner e i ther at Sydney or Me lbourne as the case m a y requ i re which w h e n allowed by t h e Cour t as hereinaf ter men t ioned shal l have in all respects t h e same effect and be a t t ended in o ther respects wi th t h e same consequences as a certificate unde r t h e said reci ted Ac t for t h e relief of insolvent persons when in l ike m a n n e r allowed would have and be a t tended wi th in case t he presen t Ac t were no t passed and the Commissioner ' s said certificate shal l be pleadable in l ike m a n n e r and shall or m a y be revoked or made void for t h e same causes and every cont rac t or securi ty m a d e or given as a considerat ion or w i th in ten t to induce any credi tor to forbear opposit ion to t he g ran t ing or al lowance of any such certificate shal l be deemed f raudulent and absolutely void and every such certificate shall be u n d e r t h e h a n d and seal of t h e Commissioner g r a n t i n g t h e same and be to t h e effect t h a t in so far as appears to or is k n o w n by such Commissioner t h e insolvent has in all t h ings con­ formed himself to t he provisions and requ i rement s of t he said Act for t h e relief of insolvent persons and has not been gui l ty of any offence or misconduct by reason whereof t h e g ran t ing of such certificate can lawfully according to t he presen t A c t be refused or suspended.

17. A n d be i t enacted Tha t a t any t i m e after t h e expi ra t ion of

four teen days from t h e day of t he ho ld ing of t h e th i rd mee t ing of	his
credi tors or where no such meet ing shal l have t a k e n place t h e n	after

t h e expi ra t ion of t h i r t y days from t h e da te of t he first mee t ing it shal l be lawful for a n y insolvent to cause an adver t i sement to be inser ted in t h e Government Gazette or if a t Me lbourne in two of t he newspapers pub l i shed t he r e notifying his in ten t ion to apply to t h e Chief Commis­ sioner on some day to be appointed by such Commissioner a n d n a m e d in such adver t i sement be ing no t less t h a n one calendar m o n t h nex t following t h a t a certificate unde r th i s Act may be gran ted to h i m a n d every insolvent shall so apply and be hea rd in t he m a t t e r of such appl i ­

cat ion on some par t i cu la r day of t he week to be set apa r t specially in	all cases al ike for t h a t purpose and a copy of every such adver t i sement
shal l be publ ic ly exhibi ted together wi th a copy of t he nex t succeeding section of th is A c t on a board in some conspicuous p a r t of t he ha l l or room in which mee t ings of creditors before t h e Chief Commissioner shal l usua l ly be holden for n o t less t h a n twenty-one days consecut ively n e x t preceding t h e day of appl icat ion there in specified and on t h e day so n a m e d and appoin ted and on any day or days of ad journment therefrom if necessary t he Chief Commissioner shall proceed to inqu i re in to and de termine on the m a t t e r of such appl icat ion and the assignee or assignees and any credi tor or creditors of the insolvent m a y be hea rd a n d any witness or witnesses examined thereon and t h e said Commis­ sioner h a v i n g reference to t he conduc t of t h e insolvent as well before as after t he insolvency shall ei ther g ran t t he certificate and in such case e i ther wi thou t qualification or subject to such condit ions as t h e c i rcum­ stances m a y appear to h i m to requi re or shal l suspend for any t ime n o t exceeding one year or absolutely refuse t he g ran t ing of the same b u t subject in each case to confirmation a l tera t ion or disallowance by
t h e Cour t as hereinaf ter provided.

18 . A n d be i t enacted Tha t t h e insolvent ' s certificate shal l be

refused in every case where t h e same would if g ran ted by his creditors have been refused al lowance by t h e Cour t or if al lowed would have been void u n d e r t h e said A c t for t h e relief of insolvents and also where t h e insolvent shall no t have m a d e a full and fair disclosure and sur render of h is p roper ty in possession revers ion and expectancy or shall in any o ther respect have wilfully violated or knowing ly omi t t ed to comply w i t h t h e provisions of t he said A c t or shal l have con t rac ted any debts or debt w i t h o u t i n fact i n t end ing to pay or h a v i n g h a d a t t h e t ime any reasonable or p robable expecta t ion of be ing able to pay t h e same or where be ing a t t h e t ime indebted he shall have squandered his means or unjustif iably m a d e away wi th or disposed of o therwise t h a n bond

fide a n d for a va luable considerat ion any of his p rope r ty or by habi t s

of in toxica t ion gambl ing or ex t ravagance have d iminished his means of p a y m e n t or where he shal l have unlawful ly expended for his own benefit or appropr ia ted to his own use any t r u s t funds or o ther p roper ty of wh ich he shal l at t he t i m e have h a d t h e charge or disposit ion as t ru s t ee or as a n agen t only or whe re h e shall in contempla t ion of insolvency or k n o w i n g himself t o be insolvent have given any credi tor any f raudulen t or un jus t preference and such certificate shal l be refused or suspended where t h e insolvent shal l have t aken t h e benefit of t h e Inso lven t A c t a t any t ime wi th in t h r ee years previously or where be ing a person engaged in t r ade of any k ind he shal l have omi t ted to keep reasonable accounts or ent r ies of h is receipts and p a y m e n t s or whe re the re shall be any unsatisfied j u d g m e n t agains t h i m in any act ion for assaul t seduct ion breach of promise of mar r i age cr iminal conversat ion or a n y o ther mal icious in jury or where he shal l i n any act ion sui t or o ther proceeding a t law or in equ i ty have p u t any credi tor to any vexat ious or unjustif iable expense by any frivolous or inequi tab le defence or c laim or w h e r e h e shal l be ing reasonably requ i red so to do have refused or neglected to afford t h e assignee or assignees his assistance in collecting obta in ing possession of and selling or o therwise real iz ing his debts a n d proper ty or any p a r t thereof.
19. A n d be i t enac ted Tha t in every case where unde r t he p re ­ ceding section t h e Chief Commissioner shal l be requi red or au thor ized t o refuse and no t mere ly to suspend the insolvent ' s certificate and shal l refuse t h e same i t shall be lawful for h i m if t h e c i rcumstances appear to h i m to be such as call for p u n i s h m e n t to hold t he insolvent to bai l to appear before t h e Supreme Cour t a t such t i m e as m a y be n a m e d b y the said Commissioner and in default of bai l to commit t he insolvent

fo r thwi th to pr i son the re to r e m a i n u n t i l t h e nex t ensu ing s i t t ing of

t h e Cour t in i ts insolvency jur i sd ic t ion Provided t h a t in every such case t h e said Commissioner shall fo r thwi th repor t to t h e said Court in wr i t ing unde r his h a n d t h e examina t ion a n d evidence t aken in t he

m a t t e r toge the r w i t h such his opinion a n d t h e g round or g rounds

thereof and of such repor t t h e insolvent shal l be ent i t led to a g ra tu i tous copy twenty-four hour s a t t h e least before t h e day of such s i t t ing a n d the Cour t shal l a t such s i t t ing a n d on any day or days of ad journment

therefrom if necessary proceed to i nqu i r e in to a n d de te rmine t h e

m a t t e r a n d shal l after hea r ing t h e insolvent a n d also (if jus t ice appear so to requi re) any witnesses or o ther evidence which he m a y adduce in his defence and t h e assignees or any credi tor if t h e Cour t shal l t h i n k

fit i n reply ei ther g r a n t t he certificate or confirm t h e refusal thereof

and in t h e last men t ioned case i t shal l be lawful for t he Cour t to sen­

tence t he insolvent t o such p u n i s h m e n t no t exceeding impr i sonment for

one year as t h e said Cour t shal l t h i n k fit t o award.

20. A n d be i t enacted T h a t a t t h e n e x t s i t t ing of t he Cour t in

i ts insolvency jur isdic t ion after g r a n t i n g or refusal or suspension of

any certificate t he said Cour t shall i n l ike m a n n e r have power on the

complaint

compla in t or appeal of t he insolvent or t he assignees or any creditor to confirm reverse or a l ter t he decision of t he Commissioner and in every case t h e insolvent ' s certificate when g ran ted shal l a t such n e x t s i t t ing be presented to t he Cour t by t h e Chief Commissioner for i t s a l lowance thereof and the Cour t shall t h e n proceed to inqui re in to

a n d de te rmine the m a t t e r and u n t i l t h e insolvent ' s certificate shall

have been so allowed i t shall be of no force or val idi ty whatever .

2 1 . A n d be it enacted T h a t if any insolvent or witness shall

whi ls t under examina t ion before t he Chief Commissioner be gu i l ty of prevar ica t ion or evasion or if such insolvent or witness or any other person shal l whi ls t such Commissioner shall be publ ic ly and openly engaged in t h e dut ies of his office con temptuous ly i n t e r r u p t t h e pro­ ceedings before h im or be gui l ty of any o ther con temptuous or indecent conduct it shall be lawful for such Commissioner to commit t he par ty so offending to pr ison for any t e r m not exceeding four teen days.

22. A n d whereas by the aforesaid Ac t for t he relief of insolvent persons it is enacted that if any insolvent under examina t ion before t h e Court or Commissioner shal l refuse to answer any lawful quest ion p u t to h im he m a y be commit ted to pr ison un t i l he shal l submi t to m a k e such answer Be i t enacted Tha t after t h e pass ing of th i s Ac t no quest ion p u t to an insolvent on any such occasion shal l be deemed unlawful by reason only t h a t t h e answer there to m a y expose h i m to p u n i s h m e n t unde r th i s Act Provided t h a t no such examina t ion or any answer there to shall be admissible in evidence agains t such insolvent (o ther t h a n on a prosecut ion agains t h i m for per jury) except for t he purposes of th i s Act only.

23 . A n d be it enacted Tha t in every case where t he insolvent

shall not at any t ime wi th in six calendar m o n t h s after t h e ho ld ing of

t h e t h i r d mee t ing (or where t he r e shal l have been no such meet ing)

w i th in n ine calendar m o n t h s after t he first mee t ing have applied for h is certificate it shal l be lawful for t h e Chief Commissioner on the appl ica t ion of t h e assignees or of any creditor to requi re t he said insolvent (and in case of his refusal or neglect to compel him b y w a r r a n t ) to appear before such Commissioner and be examined touch ing h is insolvency and the reupon and from thencefor th it shall be lawful for t h e Chief Commissioner to deal wi th such insolvent and g ran t refuse or suspend his certificate and in case of refusal thereof to commit h i m and for t he Cour t thereafter to proceed in t h e m a t t e r and

p u n i s h or otherwise deal w i th such insolvent the same as if t h e	cert i-
cate h a d in fact been applied for by himself.
24. A n d be it declared and enacted T h a t in all cases where by th i s A c t any power or du ty is conferred on or en t rus ted to t h e Sup reme Cour t such power or d u t y is and shall be t a k e n to be conferred on a n d en t rus ted to t h e Res iden t J u d g e a t Melbourne in respect of all cases the re .

25. A n d be i t enacted Tha t it shall be lawful for the Chief Commissioner a t h is discret ion to award to t he insolvent a reasonable weekly allowance for his suppor t out of t h e estate such al lowance to be paid to h i m by t h e official assignee and to cease w h e n t h e th i rd mee t ing shall have t aken place or sooner if t he said Commissioner shal l at any t ime th ink fit.

26. A n d whereas t h e present power of ar res t for debt has been found to be oppressive and unnecessary Be it enacted Tha t after t h e thi r ty-f i rs t day of M a r c h now n e x t ensu ing no person shall be arres ted or impr i soned on any civil process i ssuing out of any Cour t of L a w or on any execut ion issuing out of any Cour t of E q u i t y in any sui t or proceeding ins t i tu ted for the recovery of any money due upon a d ­ j u d g m e n t or decree founded upon cont rac t or due upon any contract expressed or impl ied or t he recovery of any damages for t h e non­

performance

performance of any contract except in t he cases and in t h e	m a n n e r
hereinaf ter provided or in act ions of t respass t rover or case.

27. Provided a lways a n d he it enac ted Tha t t he preceding section shal l no t ex tend to any proceeding as for con tempt to enforce civil remedies no r to act ions for fines or penal t ies or on promises to m a r r y or for seduct ion or c r iminal conversat ion or libel or assaul t or for monies collected by any publ ic officer or by any person in a publ ic capaci ty or for any misconduct or neglect in office or in any profes­

sional employment .
28. Prov ided also and be i t enacted Tha t in all cases where by

t h e foregoing enac tment a defendant cannot be ar res ted or imprisoned i t shall be lawful for the plaintiff who shal l have obta ined a j u d g m e n t or decree aga ins t such defendant in any Cour t of I lecord or Cour t of R e q u e s t s in said Colony to apply to any J u d g e of t h e Cour t

in which t h e suit is b r o u g h t for a w a r r a n t to a r res t t h e defendant in

such sui t P rov ided t h a t such plaintiff shall by t h e affidavit of himself or some other person or persons shew to t h e satisfaction of a J u d g e of such Cour t of Reco rd or Commissioner of t h e Cour t of Reques t s (as t h e case may be) t h a t t h e defendant is about to remove any of his p rope r ty out of t h e jur isdic t ion of t he Cour t in which such sui t is b r o u g h t wi th in t en t to defraud his credi tor or creditors or t h a t t h e defendant has p roper ty or r i g h t s in ac t ion which he f raudulen t ly conceals or t h a t he has r igh t s in act ion or some interest in any publ ic or corporate stock money or evidences of debt which he un jus t ly refuses to apply to t h e p a y m e n t of any j u s t j u d g m e n t or decree which shal l have been pronounced agains t h i m or t h a t he has any o ther m e a n s whereby (in t h e opinion of t h e said J u d g e or Commissioner) he can pay the same a n d refuses to do so or t h a t he has ass igned removed or disposed of or is about to dispose of any of his p roper ty w i t h in t en t to defraud his credi tor or credi tors or t ha t he f raudulent ly

cont rac ted t he debt or incur red t he obl igat ion respect ing which such

sui t is b rough t and tha t such j u d g m e n t or decree will be defeated unless such defendant be apprehended in any of such cases it shall be lawful for such J u d g e or Commissioner to order and direct t h a t such defendant shall be held to bai l for such s u m as to h im shall seem meet n o t exceeding t h e a m o u n t of such j u d g m e n t or decree such order or

direct ion to be unde r t h e h a n d and seal of said J u d g e or Commissioner.

29. A n d be it enacted T h a t i t shal l be lawful for any person so

ar res ted to apply on affidavit a t any t i m e after such arrest to any such

Cour t of Requests (as t h e case m a y be) for a n order or ru le on t h e	Cour t of Record or any J u d g e thereof or t h e Commissioner of t h e
plaintiff in any such act ion or suit to shew cause why t h e defendant should not be discharged out of custody and i t shal l be lawful for such Cour t or J u d g e or such Commissioner to m a k e absolute or discharge such order or ru l e and to direct t h e costs of t h e appl icat ion to be pa id by ei ther pa r ty or t o m a k e such order there in as to such Cour t J u d g e or Commissioner shal l seem fit.
30. A n d be i t enacted Tha t any defendant commi t t ed as hereinbefore provided shall unless discharged in m a n n e r aforesaid r e m a i n in custody in t h e same m a n n e r as other pr isoners on cr iminal process u n t i l he pays t he debt or demand agains t h i m wi th costs of sui t or un t i l he give securi ty to t h e satisfaction of t h e Cour t J u d g e or Commissioner (as t he case m a y be) t h a t the debt or demand wi th costs shal l be paid wi th in such t i m e as to such Court J u d g e or Commiss ioner shal l seem reasonable or u n t i l he shall prove to such Cour t J u d g e or Commissioner t h a t he has assigned over his p rope r ty in such m a n n e r as shall be satisfactory to a majori ty of his credi tors in n u m b e r and va lue or u n t i l he shall sequest ra te unde r t h e provi­
sions of t he Ac t in t i tu led " An Act for the relief of Insolvent Debtors."

S C H E D U L E

S C H E D U L E	R E F E R R E D	T O .
A.

Schedule of Fees to be taken by Commissioners and others in Insolvent Estate proceedings.

C H I E F COMMISSIONER.

£ s. d.

U p o n f i l ing e v e r y p e t i t i o n b y a p e r s o n s u r r e n d e r i n g h i s e s t a t e as i n s o l v e n t i nc lud ­

i n g t h e J u d g e ' s o r d e r t h e r e o n w h e r e t h e a s se t s s h a l l a p p e a r n o t t o e x c e e d

£ 1 0 0 0 2 6

W h e n above a d v e r t i s i n g t h a t a m o u n t . . . . . . . . . . . . . . . . . . . . . . . . 0 5 0

F o r d r a w i n g a n d i n s e r t i n g e a c h a d v e r t i s e m e n t bes ides t h e e x p e n s e s p a i d for

w h e n r e q u i r e d t o b e d o n e b y h i m . . . . . . . . . . . . 0 2 6

U p o n r e c e i v i n g a n d filing e v e r y p e t i t i o n a g a i n s t a p e r s o n h a v i n g c o m m i t t e d a n

ac t of i n s o l v e n c y . . . . . . . . . . . . . . . . . . . . . . . . 0 5 0

F o r e v e r y affidavit u s e d t h e r e w i t h . . . . . . . . . . . . . . . . . . . . . 0 1. 0

F o r t h e J u d g e ' s o r d e r t h e r e o n . . . . . . . . . . . . . . . . . . . . . 0 5 0

F o r	e v e r y	s u m m o n s	of	d e b t o r	to	s h e w	cause	. . .	. . .	. . .	. . .	. . .	0	5	0
F o r	e v e r y	e x a m i n a t i o n	t a k e n	on	t h e	h e a r i n g — p e r	folio	of	9 0	w o r d s	. . .	. . .	0	0	4

F o r e v e r y p e r s o n e x a m i n e d or d o c u m e n t e x h i b i t e d . . . . . . . . . . . . 0 1 0

F o r m a k i n g u p a n d r e c o r d i n g t h e j u d g m e n t of t h e C o u r t t h e r e o n . . . . . . 0 5 0

F o r t a x i n g cos ts i n a n y case ( s a m e as i n t h e S u p r e m e C o u r t Office).

F o r m a k i n g e v e r y n e c e s s a r y a p p l i c a t i o n a n d r e p o r t t o t h e C o u r t o r a J u d g e a n d

m i n u t e of t h e o r d e r t h e r e o n . . . . . . . . . . . . . . . . . . . . . 0 2 6

F o r e v e r y w a r r a n t of a t t a c h m e n t of m o v e a b l e p r o p e r t y . . . . . . . . . . . . 0 2 6

F o r e v e r y s u m m o n s for t h e a t t e n d a n c e of a p e r s o n t o g i v e e v i d e n c e or b e

e x a m i n e d . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 5 0

F o r e v e r y cer t i f ied e x t r a c t f rom or copy of p r o c e e d i n g s r e l a t i n g t o i n s o l v e n t

e s t a t e s of l e ss t h a n 9 0 w o r d s . . . . . . . . . . . . . . . . . . . . . 0 2 6

A n d above t h a t n u m b e r p e r folio . . . . . . . . . . . . . . . . . . . . . 0 0 4

F o r e v e r y i n s p e c t i o n of p r o c e e d i n g s i n each e s t a t e n o t e x c e e d i n g h a l f a n h o u r . . . 0 1 0

F o r e v e r y s u m m o n s or o t h e r p rocess for p r o c u r i n g t h e a t t e n d a n c e of a n y p e r s o n

before t h e C o u r t o r a n y J u d g e or C o m m i s s i o n e r ( s a m e as i n t h e S u p r e m e

C o u r t	Office	on	s i m i l a r	c a se s ) .
C H I E F AND OTHER COMMISSIONERS.

F o r

p r e s i d i n g

a t

m e e t i n g

of

c r e d i t o r s

in

e s t a t e s

u n d e r

£ 1 0 0

asse t s

. . .

. . .

0

1 5

0

F o r

p r e s i d i n g

a t

a n y

o t h e r

m e e t i n g

of

c r e d i t o r s

p e r

d i e m

. . .

. . .

. . .

0

1 5

.

F o r e v e r y p roof of d e b t t o b e p a i d b y t h e p e r s o n offering i t . . . . . . . . . 0 1 0

F o r s w e a r i n g e v e r y affidavit b y t h e p a r t y s w o r n . . . . . . . . . . . . . . . 0 1 0

F o r e v e r y affidavit filed b y t h e p a r t y u s i n g i t . . . . . . . . . . . . . . . 0 1 0

F o r e v e r y p e r s o n e x a m i n e d b y t h e p a r t y p r o d u c i n g h i m . . . . . . . . . . . . 0 1 0

F o r m a k i n g u p t h e m i n u t e s a n d r e p o r t i n g w h e n n e c e s s a r y t h e p r o c e e d i n g s a t a n y

m e e t i n g of c r e d i t o r s . . . . . . . . . . . . . . . . . . . . . . . . 0 5 0

F o r e v e r y w a r r a n t for a p p r e h e n s i o n of i n s o l v e n t . . . . . . . . . . . . . . . 0 5 0

F o r e v e r y w a r r a n t of c o m m i t m e n t of a n y p e r s o n . . . . . . . . . . . . . . . 0 7 6

M E S S E N G E R ' S F E E S .

F o r m a k i n g e v e r y a t t a c h m e n t of p e r s o n or p r o p e r t y ( t h e s a m e as n o w p a i d for

se rv ice of c iv i l p rocess of t h e S u p r e m e C o u r t a n d m i l e a g e ) .

F o r m a k i n g i n v e n t o r y a n d n o t i c e a n d r e p o r t t o C o m m i s s i o n e r . . . . . . . . . 0 2 6

C o p y of d i t t o 0 2 6

A l l o w a n c e p e r d i e m to p e r s o n left in c h a r g e b y d i r e c t i o n of t h e C h i e f C o m m i s ­

s i o n e r w h e n n e c e s s a r y . . . . . . . . . . . . . . . . . . . . . . . . 0 3 0

S H E R I F F ' S F E E S .

F o r r e g i s t e r i n g e v e r y o r d e r for s e q u e s t r a t i o n a n d d e l i v e r i n g to C h i e f C o m m i s ­

s i o n e r . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0 1 0

4 Q — V O L . 2. N o . X X .