No. XIV.
An Act to remove difficulties in the disposal
administration and distribution of Insolvent
| Estates . | [31st October, 1846.] |
| WH E R E A S an Act was passed in t h e fifth year of t h e re ign of | H e r present Majesty in t i tu led " An | Act for | giving relief | to |
| " Insolvent | Persons | and providing for the due collection | administra- |
| " tion and distribution | of Insolvent | Estates | within the Colony of New |
| " South Wales and for | the prevention | of frauds | affecting | the same'" |
| A n d whereas ano the r A c t | was passed in t h e seventh year of t h e re ign |
| of H e r present Majesty in t i tu led " An Act to amend | an Act | intituled, |
| " ' An Act for giving relief to Insolvent | Persons and providing for the |
| " ' administration | of Insolvent | Estates and to abolish Imprisonment | for |
| " ' Debt' | " | A n d whereas ano the r | A c t was passed in t h e e igh th year |
| of t h e re ign of H e r present Majesty in t i tu led " An | Act | to amend | the |
| " Act passed in the fifth year of Her Majesty's | reign for the relief |
| " of Insolvent Debtors and also the Act lately passed for amending | the |
| " same | and | abolishing | Imprisonment | for | Debt" | A n d whereas i t |
is expedient for faci l i ta t ing t h e sale a n d real izat ion of t h e estates of insolvent persons by t h e assignees a n d t rus tees thereof and for lessening t h e expense of conveyances on such sales and for r emoving doub t s as to t he es ta te a n d in teres t conveyed by such assignees a n d t rus tees and as to t he powers possessed by such assignees and t rus tees t h a t t he said reci ted Ac t s should be amended Be i t therefore
| enac ted by H i s Excel lency t h e Governor of N e w | South W a l e s wi th | t h e |
| advice a n d consent of t h e Legislat ive Counci l thereof T h a t every | order |
heretofore m a d e or hereafter to be m a d e by any J u d g e appoin t ing any person to be official assignee of a n d for any es ta te placed or to be placed unde r seques t ra t ion shall be deemed to have h a d a n d after t he pass ing of th i s Ac t shal l have t h e effect of ves t ing in such official assignee absolutely or for such es ta te and in teres t as t he insolvent had there in all t he real and personal p roper ty of t h e insolvent which belonged to was vested in or was due to such insolvent or t o which he was in any m a n n e r ent i t led a t t h e t ime w h e n t h e order for p lacing his
| or he r es ta te u n d e r seques t ra t ion was made and also all | t h e | real | and |
personal estate which since such last ment ioned order h a t h been shal l have been or shall be purchased by or which h a t h or shal l have rever ted descended or come to or which shal l rever t descend or come to t h e insolvent d u r i n g t h e con t inuance of such seques t ra t ion a n d before such insolvent h a t h or shall have obta ined or shal l obta in his or her certificate and al lowance thereof as in t h e said reci ted Ac t s is provided.
| 2. A n d be i t enacted | T h a t t h e | order of t h e Cour t | heretofore |
m a d e or hereafter to be m a d e confirming t h e election of any assignee heretofore elected or hereafter to be elected by t h e credi tors of any insolvent estate shall be deemed to have divested and shal l divest t h e official assignee and shall be deemed to have vested and shal l vest in such official assignee jo in t ly wi th such confirmed assignee as aforesaid all t he real and personal p roper ty of such insolvent which shall so be deemed to have vested or which shall vest in such official assignee upon his a p p o i n t m e n t as aforesaid and for such es ta te and interes t and t h a t t h e order confirming t h e election of any such assignee as aforesaid or any copy thereof signed by the Chief Commissioner in and for all pa r t s of t h e Colony not comprehend ing the Dis t r ic t of P o r t Phi l l ip and certified by such Commissioner to be a copy thereof shall be received and taken by all Cour t s of Ju s t i ce in t h e said Colony as conclusive evidence t h a t such assignee has been du ly elected.
3. A n d be it enacted Tha t all deeds now executed or which shall
| after t h e pass ing of th i s Ac t be executed by the official assignee | for |
t h e t ime being of any insolvent estate or by t h e assignee for t he t ime being elected by t h e creditors and confirmed by the Cour t as aforesaid and by the official assignee for t he t ime be ing or by any t rus tees or a t rus tee for the t ime be ing whose election has been confirmed or by t he t rus tees or t r u s t ee for the t ime be ing appointed provisionally p u r p o r t i n g to convey assign release or assure any p a r t of t h e real or personal p roper ty of an insolvent to any purchaser or purchasers mor tgagee or mor tgagees or o ther person or persons in fee s imple or for o the r less es ta te or in te res t shall be and be deemed to have been from the t ime of t he date or execut ion thereof valid and effectual bo th a t Law and in E q u i t y for conveying ass igning releasing and assur ing such real and personal p roper ty in fee s imple or for o ther less estate and interes t in such deed men t ioned or expressed to be conveyed assigned released or assured to t he purchaser or purchase r s mor tgagee or mor tgagees or o ther persons or person and t h a t such purchaser or purchasers mor t
| gagee or mor tgagees or o ther person or persons a n d every person or |
persons c la iming unde r h i m or t h e m shal l be deemed to have been relieved and shall after the pass ing of th i s Ac t be relieved from inquir i n g or ascer ta in ing whe the r t he adver t i sements have been or shall have
| been inser ted a n d meet ings of creditors called or direct ion of | credi tors |
obtained as in t he said Acts provided no twi th s t and ing the same have not been or shall no t have been or shal l not be inser ted called or obta ined a n d t h a t any person who ha th dealt or cont rac ted wi th or t a k e n any conveyance or o ther assurance from any assignee or assignees for t h e t ime being or t r u s t ee or t rus tees for t he t ime be ing as aforesaid of any insolvent es ta te or shall deal or contract wi th or t ake any con veyance or o ther assurance from any assignee or assignees or t rus tee or t rus tees for t he t ime being as aforesaid of any insolvent es ta te shall be deemed not to have been bound and shal l not be bound to inqui re in to or ascer tain t he power or au tho r i t y of such assignee or assignees or t rus tee or t rus tees for t h e t ime be ing as aforesaid w i t h respect to such deal ing cont rac t ing conveyance or assurance as aforesaid b u t t h a t such assignee or assignees or t rus tee or t rus tees for t he t ime be ing as afore said shal l for t he purposes aforesaid and as be tween h i m or them and such person or persons as aforesaid be deemed and considered to have
been and shall be deemed and considered as beneficial owners of the rea l a n d personal p rope r ty of t he insolvent P rov ided always t h a t no th ing in th i s Ac t conta ined shall be const rued to exonera te any such official assignee confirmed t rus tee or assignee for t h e t ime being as aforesaid or t r u s t ee for t h e t ime be ing appoin ted provisional ly as
| aforesaid from any l iabi l i ty for t h e unobservance or | nonperformance |
of his or t he i r du ty as such assignee or t rus tee as aforesaid.
4. A n d be i t enacted Tha t any mor tgagee or mor tgagees or
| i n c u m b r a n c e r | or | i ncumbrance r s | or any person | or persons c la iming | by |
from t h r o u g h or u n d e r h im or t h e m who h a t h or have t a k e n or who shal l t a k e a release conveyance or o ther assurance of t h e equi ty of r edempt ion or o ther es ta te or in teres t of any official assignee for t he t ime being or official and confirmed assignees for t h e t i m e be ing or confirmed t rus tee or t rus tees for the t ime being or t rus tee or t rus tees for t h e t ime be ing appoin ted provisionally shall no t the reby be deprived of any r igh t or benefit which such mor tgagee or mor tgagees or i ncumbrance r or i ncumbrance r s or such person or persons c la iming b y from t h r o u g h or u n d e r h i m or t h e m would have had if such release conveyance or other assurance had not been m a d e a n d t h a t any subsequent mor tgagee or
| mor tgagees or i n c u m b r a n c e r | or incumbrance r s or any person or | persons |
| c la iming by from t h r o u g h u n d e r or in t rus t for h im or t h e m shall | not |
| be | en t i t l ed | to enforce his or the i r m o r t g a g e | or | mor tgages | or | incum |
brance or incumbrances as agains t t h e mor tgaged es ta te or pr ior mor t gagee or mor tgagees or person or persons c la iming or to c la im t h r o u g h h i m or t h e m wi thou t first g iv ing full effect bo th a t Law and in E q u i t y
| to | t h e claim of | such pr io r mor tgagee or mor tgagees | i n c u m b r a n c e r | or |
| i ncumbrance r s or person or persons | c la iming by from | t h r o u g h or | u n d e r |
| h i m or t h e m who h a t h | t a k e n or shall hereafter t ake a release convey |
| ance or o the r assurance as aforesaid to t he full | a m o u n t | of h is a n d |
| the i r p r inc ipa l and in teres t and o ther monies in and by such | pr ior |
| m o r t g a g e or mor tgages i ncumbrance | or | i ncumbrances | expressed | or |
| in tended to be secured. |
| 5. A n d be it enac ted T h a t any order of t he Supreme Cour t aforesaid whereby t h e es ta te of any insolvent shal l be ordered to be released from seques t ra t ion shal l be deemed to have h a d and shall have t h e effect of re-vest ing in t h e insolvent all t he real and personal p roper ty of t h e insolvent undisposed of which by v i r tue of any of t h e said reci ted Ac t s or th i s A c t was vested or shal l be ves ted in anv assignee or assignees t rus t ee or t rus tees of any insolvent es ta te in | t he same m a n n e r as if h i s es ta te had never been placed unde r | seques |
| t ra t ion . |
| 6. A n d be i t enacted Tha t t h e duly author ized agen t of any creditor res iding wi thou t t h e ju r i sd ic t ion of t he Supreme Court | of | t h e |
said Colony shal l have au tho r i t y to do all acts m a t t e r s a n d th ings au thor ized to be done by any creditor of an insolvent estate unde r and by v i r tue of t h i s Act or of t he said reci ted A c t s or any of t h e m as fully and effectually as such credi tor could or m i g h t have done if
R I D E R ,
A n d whereas by t h e secondly hereinbefore reci ted Act t he
Chief Commissioner is author ized a n d directed in cer ta in cases to
refuse t h e inso lvent h i s certificate Be i t enacted T h a t in all cases
| where unde r t h e provisions of t h e said Ac t t h e said Chief | Commissioner |
| e i ther a t | Sydney or M e l b o u r n e | shall | have | refused | or shal l | hereaf ter |
refuse to g r a n t t h e insolvent h is certificate and t h e decision of t he Chief Commiss ioner shall have been confirmed on appeal by the Supreme Court it shall be lawful for t h e said Supreme Cour t on appli
cation
cation to be m a d e by the insolvent and a t t h e reques t of t h e major i ty in n u m b e r of t h e creditors who shall have proved in his estate from t ime to t ime to al ter and to va ry t h e said decision a n d to suspend t h e said certificate for such per iod as to t h e said Cour t shal l seem reasonable and j u s t and t h e n g r a n t t h e same Provided t h a t n o such
| appl icat ion shal l be m a d e u n t i l after two years shall have elapsed | from |
| t h e date of such refusal by t h e Chief Commissioner . |