Insolvency Act 1867 (SA)

ANNO TRICESIMO PRIM0

No. 13.

Art Act to amend the Insolvent Act, 1860.

[Assented to, 19th December, 1867.3

HEREAG it is expedient to amend The Insolvent Act, *rearnblbl"

W 18609'-Be it therefore Enacted, by the Governor-in-Chief of the Province of South Australia, with the advice and consent of

the Legislative Council and House of Assembly of the said Province,

in thia present Parliament assembled, as follows :

l. This Act may be cited as The Insolvent Amendment Act,

1867."

. 5. Any

2. Except in so far as the same is inconsistent with this Act, lncOrpOration*

"The Insolvent Act, 1860," ghall be incorporated and read herewith

88 forming one Act.

illness, leave of absence, or other reasonable cause, the ~ommissioner Aaaignee, commis- 3. During the temporary absence of the Official Assignee from f~~ f t; ;~ '~"=

@hall, by writing under his hand and seal, nominate some person to ::;::'J

act as the deputy of such Official Assignee ; and the person so

nominated shall, on giving such security as the Commissionex of ~nmlvency may direct and after his nomination has been confirmed

by the Governor, have and exercise all the powers of such Official

Assignee.

bp a creditor or by a debtor, may be attested either by the Official by practitioner 4. Any petition for adjudication of insolvency, whether presented %$ii$' ;f;$;-

Assignee or by a practitioner of the Supreme Court. supreme court,

112 31" VICTORIB, No. 13,

The Insolvent Amendwmt Act.-1867. .- -

Any debtor impri-

soned in any gaol m y 5. Any debtor in actual custody for debt in any gaol in the said

Province may petition for adjudication in form4 pauper4 in the

~ e t i t i o n i r f o n ~ t i

paupsrio. mode prescribed by the forty-sixth and forty-seventh sections of the Insolvent Act, 1860, and the notice by such sections required to be given may be attested by the keeper of the gaol in which such debtor is confined.

Recopnkancea m s be

taken before any 6. Any surety proposing to enter into a recognizance as provided by the sixtieth section of the said Act, may enter into and acknowledge

fipscinl &fBgimate,

the same before any Special Magistrate, and the same shall thereupon be of the like validity, force, and effect, as if such recognizance had been duly entered into beforc the Court itself, and the form of recogni- zance contained in the Schedule Q, to the said Act, may be altered accordingly.

Lnaolvent to be

examined without 7. Notwithstanding the one hundred and twenty-first section of

being sworn, on the " Insolvent Act, 1860," every insolvent may be examined with-

makingdec1aration*	out having been sworn, on signing a declaration in the form T, in
the Schedule to such Act ; and notice to the insolvent, as required
bv the said section, shall be deemed sufficient if entered in a book to

how to be entered. opposition^ bb kept by the official Assignee, to be called the Opposition Book,

three days at least before any sitting or adjourned sitting for the last examination of the insolvent: Provided that where any last examina- tion shall be adjourned for any special purpose, to be mentioned in

the minute of adjournment, no matters shall be considered at such

adjourned hearing other than those mentioned in such minute.

Trade nasignee may

t e appointed at 8. If no trade assignee shall have been chosen and appointed at

subsequent meeting.	the first public sitting under the insolvency or at some adjournment thereof, it shall be lawful but not obligatory on the Court to permit
an assignee to be chosen and appointed at some subsequent public
meeting under the insolvency.

Bpecial messenger

may bo appointed in	9. The Court may appoint a special messenger in any insolvency, to act in such matters as may be referred to him, whenever by rcason of distance or other sufficient cause it shall not be deemed advisable that the messenger of the Court shall so act; in which case the messenger of the Court shall not be entitled to act therein.
certain cases,

Insolvent In

on order or attach- 10. If any insolvent at the time fixed for his surrendering, or at

ment for payment OE any time thereafter, shall be in prison or in custody on civil process

may be of any Court of Common Law or Equity, having been arrested or

diecharged.

committed to prison for debt, or upon any attachment, or order, or commitment for, or respecting the non-payment of money, or for contempt of any Court, and from which imprisonment he might be discharged upon payment of money, the Court s h d have full power to order the immediate release of such - insolvent from custody in the like manner as is provided by the fifty seventh section of the said Insolvent Act, 1860, in respect to insol- vents in custody for debt or damages, and the form of warrant contained in the Schedule E7 to the said Act may be altered so as to

meet

-- -- -

The li~solvent Amefzdmetz t Act,-1867.

meet the circumstances of any such case; and in the construction of the fifty-ninth section of the said Act, the words The warrant of

the Court for his release from custody at the suit of any creditor,"

shall be taken to mean and include any warrant issued under the

provisions herein contained.

11. I n any case in which the Court of Insolvency shall, in conse. Costa in special camea

quence of the opposition of any creditor, or at the instance of any creditor, remit any question of law by way of special case to the Supreme Court, there shall be stated in such special case the name or names of the creditor or creditors at whose instance, or i n conse- quence of whose opposition such special case has been remitted to the Supreme Court as aforesaid, and wch creditor or creditors shall

be deemed to be a party or parties to, and shall conduct such special

case before the Supreme Court, and the Supreme Court shall have the same power in raspect to the costs of such special case as is pro- vided in respect to appeals by clause 16 of the Insolvent Act of

1860.

12, In all cases in which the insolvent is liable to pay any rent or tionate for part propor- or rent,

other payment falling due at fixed or stated periods, and the adju- and other payment,

dication of insolvency shell happen at any time other than one of f~fi~fBP",,8~;~d	such fixed or stated periods, it shall be lawful for the person entitled Fir, C. 1s4,+9. m.
to such rent or other payment, to prove for a proportionate part
thereof, up to the day of the adjudication of insolvency in such manner as if the said rent or payment were due from day to day, and not at such fixed or stated periods as aforesaid.

13. If any insolvent shall have contracted before the filing of a Proof payable in by cam inrtal;. of debt

petition for adjudication any debt payable by way of instalments, the ,,,b. 24 $ 25llc. ,

creditor may prove for the amount of such instalments remaining c. 134, a- 161-

unpaid at the time of such petition.

14. If any debtor shall at the time of adjudication, be liable upon proof in rea~cct of

distinct contracts.

any bill of exchange or promissory note in respect of distinct con- ,,, ,, Ylc., c. 134,

tracts as member of two or more firms, carrying on separate and a. 152.

distinct trades, and having distinct estates to be wound up in insol-

vency, or as a sole trader and also as the member of the firm, the circum-

stances that such firms are i11 whole or in part composed of the same

individuals, or that the sole contractor is also one of the joint con-

tractors, shall not prevent proof and receipt of dividend in respect

of such distinct contracts against the estates respectively liable upon

such contracts.

15. If any insolvent shall, at the time of adjudication, be liable, by proof in respect of unliquidated damage8

reason of any contract or promise, to a demand in the nature of ,,,

26 via, 0,

damages which have not been and cannot be otherwise liquidated a. 163.

or ascertained, it shall be lawful for the Court of Insolvency to

direct such damages to be assessed by a jury in a Court of Law, and

to give all necessary directions for such purpose; and the amount of

damage when assessed, shall be provable as if a debt due at the

.time

31" VICTORIZ, No. 13.

' 4

The Insolvent Amendment Act.--1867.

time of the insolvency: Provided that, in case all necessary partie8 agree, the Court shall have power to assess such damages without reference to a Court of Law.

Notices to be in

QUU~&.	16. Anything in the Insolvent Act of 1860, to the contrary, not- withstanding, it shall not be necessary to publish any notice or advertisement in any newspaper, but all notice8 and advertisements required by the said Insolvent Act of 1860, or this Act, to be pub- lished in any newspaper, shall be deemed to be suficiently published
if inserted in the &ot& Australian Government Gazette.

'~pee *

publish aocounta. 17. The Official Assignee shall, on or before the 1st day of March

in every year, publish in the Gbuth Australiae Government Gazette,

an account made up to the 31st December preceding, in the form

in the Schedule to this Act, of all estates in insolvency that have

during the year ending on such 31st December been in any way in

or before the Court of Insolvency, and the trustees of any estate

being wound up under the arrangement clauses of the said Insolvent Act of 1860, shall, within one calendar month after demand, furnish to the Official Assignee an account of such estate, in the form of the said Schedule to this Act.

One PaZ8 ra'B8 may

be paid in full.	18. The Court, out of the estate and effects of the insolvent, shall order payment of al l such rates as may be due from him to the Commissioner of Waterworks, or to any Corporation or District Council at the time of his being adjudicated an insolvent: Provided such rates have become due during the twelve months immediately
preceding the insolvency.

In the name and on behalf of the Queen I hereby w n t to this Act.

D. DALY, Governor.