Insolvent Debtors Act 1845 (SA)

No* 1

I

U--	--	- --
i

By His Excellency GEORGE GREY, Egguire, Governor and Commandw-in- i

Chicf of Ifcr Mujesty's Provime of ' %ui% Australia atld its Depettclencie3,

ancl Vice-Admiral of	tlic same, by	f
b 72d with the advice and cowent of the
Leyislativc Council.	W

' AN OXDINANCB for further crhewlinrir an Ordimnct! of the

REAS bp an Ordinance of the Governor and Council of Recited Ordinmnc, 1841 KO 1 as to

\JT"kis c , passed on tl& t~reiitpaerond b y of June, gran;ing ;e~ificntos

one thousand eight hundred and foijy-me, intituled An Act for of~onforrnit~in the,

" r&ing relid to Inlprisolled I~ISO~IWI~ I)&~O~S, nlld t o make pro- manner 6 G. 4, c. mentioned 16, which in

'c h i o n for thc administration of thcq Estates of Insolrent Debtors reqyhs c~tificate be slprd by n certaur

" in South Anstrrlin," it is amongst ofher things enacted, that every proportionafm

yesson cleclarcd insolvent, rithcr 011 lbs own pctition or on the yeti- ~ ~ t o r i

tion of any creditor, who shall hwe ch#y and in all things coiiforx~ml

to the laws in forcc coticcniilig insolv$nts at the time of issuing the fiat agninst him, shall be clischarged ffom all clcbts due by him when he bccnme iusolvcnt, and from all &aims and demands proveable

under thc fiat and inscrtcd in his ~cl&clulc, in case hc shall obtain

a certificate of such conformity, si,$ 'm cd and allowed and verified

upon oath in the manner n~cntionecl l$ the Statute made and p2ssed in the sixth year of His late Maje+y King Georgc the Fotuth, intitulrd An Act to n~ncnd the &aws relating to Banluupts,"

~vhicli Statute requires a ccrtific t confonuity to be signed by a

certain proportion of the cmdito: b d i ~ ~ @ :

And wliereas by an Ordinance of he Gbvei6or and Council of A*n 'Niteso"mnce f IS44, Zio. fi,~esprrting ,

this Pmvincc, passcd on tlic twmt)+cighth day of Febi~mry, one pnntiugrwti8ratu

tllousnnd ciglit hnndrcd and forty-fnml for oincnding the first recited oEmnf-'~t I'

Orfinancc, provision is amongst 0th thin$ made for granting to

any person declared insolvent after e pwsmg of the now reciting

A Ordi name,

Ordinance, either on his ow4 petition or on the petition of a creditor, who shall in d things ha* conformed himself to the l a m in force concerning insolvents at tlik time of issuing the fiat of insolvency

a	against him, a certificate of mch conformity to be signed and allowed, and subject to such provi40ns as are therein mentioned, and i t is declared that i t shall not be'r'~equisite for such certificate to be signed
by any of the creditors of s~&h insolvent:

F

B

Recitea the difficulty And whereas after the yttssing of the first-recited Ordinance, and.

e~~erienced bp per-

sons dcclared insolvent	before the passing of the l&-recited Ordinance; many persons were
under the first-recited	declared insolvent, either cf$ their o~vn petition or on the petition
Ordinmco in pro-
ciirinn cel*tifimtes	of creclitors, which person$! have conformed to the laws in force

"@C' ' 7 cmditonp.' cpncerning &solvents at th%tirne of issuing tlie respective fiats a ~ i n s t

required by 6 G. 4,

C. 16, them. but few of such ers sons have been able to obtain certificates of confoknity, signed byLthe $roportion of creditors, and allowed and

L verified upon oath in the nl&ncr mentioned in the said Statute passed in the sixth year of His 1ataiXajcsty Icing George the Fourth, owing in some cases to tlie obd~urni$ of creditors, and in others to tlie porerty of debtors, and the difficulty ;of obtaining and verifying the signatures of creditors to such certificates, and it is therefore deemed reasonable and expedient to give to thq provisions of the last-recited Ordinance respectixg certificates a retr4spective operation:

j

,

Enacts that the pro-

vieiona of the aecond- Be it therefore Enacted, gy'13is Excellency the Governor of South

recited Ordinnnco Australia, by and with the advice and consent of the Legislative

p m d in 1844, re-

specting certificates	Colincil thereof, That so mu& of the said last-recited Ordinance passed
of conformity, ehdl '	in the year one tliou~sand ei@t hundred aud fortyfour, as relates to the

extend to all pcrrione ,

dcclnred insolvent	gmntiig or allowance of ccx'tificates of conformity, shall bc deemed to
since tbo passing of	extend to and inclnde eve& person declared insolvent eitlicr on llis

the first-recited Urdi-

nnnco (22nd June,	own petition or on the pcti$on of a creditor, since the passing of the
1841).	first-lncntioned Ordinance, $rho slzall have in all things conformed

Ilimsclf to the laws in force &m:o1ning insolvmts at tlzc thee of issuing

tlir fiat of illsolvcncy aai~iii(t, him, a i d that nll thr nznct~lrnwts of tllc

said last-rccitcd Ortliizinzccl' rcliiting to tlir ~nctlwil of ol>ti~iniilg rrr-

tificntcs, and to thcir ctfcct$nd tlrc protection gircn thrrcby, sod the

mcthod of pleading the some, and the causes for rendering the same

void, and to contracts or $mxuities made or giren with intent to

persuade creditors to forbear o1)posing or to consent to the allorvance

of certificates, and to contrwts, prornlses, or agreements by insolwnts .

.

for paying clebts from whicf! they &all have been clischwgccl, and all

-.	enactn~ents relating directl$ ox inclirectly to certificates of confoixiity,
sliilll be construed as if s~ick~ enactments had been originally niade to
extend to all persons duly ~ c c l a ~ e d inso1.r-cnt in this Provixzce bcfore the passing of the said last-iccited Orcliimnce, an4 escrpt that where

But certificntca in by the last-rccited Ordinn\jce it is $roviclcd that rertifientcs of con-

rnpcot dnte

f 1 P f formity slmll be nllowcd bq thc Comliiissioner, nnd confinncd by the

tho 1ut-rcci tetl Odi-

PllowBd ,SuI~rchc Court, it is l~ci*eb$dccln~d that nll ccrtificntcs of conformity

,

by th0 ~udge.	graiitcd to persons dccliu.c$ insolvent under fiats issurd before the
passing of the last-recited atdinancc s l d l and mny be r\llo.rvecl by tho .
Judge of the Supreme Court, and' being M, allowed &all ba god
'without further confirmatio&.

TT Pmvided

+

11. Provided always and be it Bnacted, That no certificate of con- cefiflcab s.t b b. available aqainst cm-

forrnity to be hereafter allowed	aforesaid to any debtor declared &ors ~ i d m g	in New
insolvent before the passing of th f	said Ordinance made in the year

one thousand eight hundred and forty-four, shall be available against six month

any creditors residing out of this province, until the expiration of the after of insolvent's the publication appliorr-

times following, that 1s to say-as'to creditors residing in New South tion for certitiawte

Wales or Vau Diemen's Land, I til sir ~aleudar months after the & $ &, ~ ~, ~ ~ L

application by the insolvent for s&h certificate shall have been pub- creditor8 reaiding elsewhere out of the

lished in the Governntmt Gazeke; and as to creditom residing P r~virm, not until

elsewhere out of this Province, 4ot until eighteen months after the eighteen month rtter

publication of such application sball haye been made as aforesaid; m& pubIhtiop.

and if within the respective timed aforesaid, any such creditor slmll cause notice in writing to be givc to the insolvent, or to be left at

his usual place of abode, if such,be I~ I IOTV~, and if not, shall came H

such notice to be inserted in the doveniment Gaze.ettc, of the intention of such creditors to oppose the finaiallowance of such certificate, then upon good cause being creditors? at n time to be

fixed upon by the Judge, it for the Judge to order

that the allowaiice of such	shall be annulled, or that the
allowance thereof slid1 be	for such time as he shall thiilk

fit; and upon sucll order being made, the certificate shall beconie void and of no cffecft, or it shall be suspended, as the

case may require: Providcd al~vayi, that if no cause shall be shewn h

for anndlling or suspending a certificate within the respective times hereby allowed for that purpose, s3ch certificate shall relate to and

have effect from the time of the allowance thereof; and that until

the expiration of the time hereby aoowed for creditors to oppose the

allowance of a certificate, such certificate so allowecl shall, in the	-
meantime, be available against dl creditors residing within tlie jurisdiction of the Court, and alsd against wery credtor residing oat of the j~uisdictioii of the CO&, who shall haw opposed the nllowance of such certificate, either by himself or some agent

specially authorizcd in that bchalf. I

111, And be it Enacted, That it id1 be 1a1v-f--11 for the now Com- Power for tho Com- missioner to do all .

missioner of Insolve~lcy, or for any Coilimissioner of the said Court, thing 4 anr fiat

to be hereafter appointed ~under powers of the bereinbefore i-yd since the

ynwng of Ordinance

recited Ordiual~ces, or citllrr of thein,lo do and perform o u sttch mattel-s .f 2znd J, , ~ P, 1811,

and things as inay Ilcrcitftel* be reql$rcd to bc donc tinder tiny fiat ns i f llc he hnd mifiht been hnrc n~uied done

of insolvency wllicll may l i n ~ c becn prantcd sillcc the pnssiitg of the in ,h fia ~ X C C, ~ . .

first-recited Ordinance, whctllcr sudf matters and things date to the printing to persona crr'ificrtcs declnred

~ l i t i n g the acco~mts of official OS otl~cr assignees, the ordering insolcent btfore

dividends to be made, or otllwwis ho~vsoc~er, as he might have ~ ~ ~ \ T ~ ~ ~ & ~ ~ ~

done if he had becn na~ned in such at as the Commissioner before

lvlmu the mattcrs tllercof ~ c r c to prosccutecl, *saw and csccpt 0111~' the granting or allowing of ccrt$ficntes of conformity to persons declared insolvent before the passing\:of the secoqd-recited Ordinance.

t.

IV. And be it Enacted, That if wtthin seven days nftcr thc pub- Ifwithin svcu s a p such declaration of insolvency aher publicntion of

h i o n in the Govrrrment Gazette 04 declaration of insol-

a debtor, as is mentioned in the fi &recited Ordinance, passed in vcnCr+ J;. editor dm

the not mm out a $at, tha

debbr m&ng the

declaration may the year one thousand hundred and forty-one, some creditor

petition the court fir shall not sue out a fiat against the debtor making such

refief	a	declaration, it shall be	for such debtor not being in custody,
fiat may isaue.

at any time within after the publication of such de-

claration, or within not exceeding two calendar Supreme Court, stating and is desirous that all be vested in the Official

months, as the cause shown, to allow, and

in case n fiat	sued out against hiin by
some

debtors,'according to

the ~rovisions of the Ordin&ces respecting insolvent debtors, and

praying to have the benefit of such Ordinances, which petition shall

be subscribed by such petiti her; and upon the presenting of such	-
pctition, it shall be ielavful f o k y Judge of the Supreme Court, or in case of his illness or absence! for s ich person as the Go~ernor may

The aame proccediuga

to be had as upon think fit to appoint by mritin under 1;s hand for that purpose, tb

a fiat issued at the	issue a fiat authorizing the p *itioner to'prosecute his petition; and, B
suit of a creditor.	tliercupon such proceedings sI$nll and may be had, and with the like
cffcct with respect to declnr?hg the said petitioner to be ineolvei~t,
and other of debts, the and the nl-
respects as if' the petitioner insolvent upon a fiat
issued at the suit of n That the same
fces of Court upon this clause, and upon the proceeding coiislscq&mt tlicreon, s l i d be payable as in the case of n fiat issued on tl . pctition of an imprisoned insolvent debtor.

B

lnsolvont to nnnex r

potition n etatement V. And be it further ~ m c @ d, 'l'hnt to every pctition by nn in-

solvent debtor for eithcr $.unclci* this or any formcr Ordinnnce,

of his cff~cta.

tliorc shall bc anncsed n stntcn$.nt of all the real and pcrsonnl estate of such petitioner, according toba form to be prescribed by the said

Court., 3

hlistnke in nnme or B*

in stntement of dcbts VI. And wlvllereas it may sobletimw linppen than the Cl~~ist ian

,	in S	,	h, , name or suninme of n crcditoi. .'pr debtor of such insolvciit may bc
fmud,

,insolvent* hprcjudice mistalrcii or inipcrfcctly or crroqcously spclt in his schcdulc, or thiit

a dcbt of or n claim upo~i a bnli@ce dur from such insolvent may be

~pccificd in his schcdule do smorit to ns nforrsnid, at an amount which is not csactly the actual n~norlni thcrcof, without any fraud or cril

,

, intention on the port of thc! inwlvcnt, be it Ennctcd, That in snch cascs the said insolvent shall b d cntitlcd to all the boiwfit and pro- tection of t h i s and former for tlw rqlief of insolvent

. dcl?tors.

To rfimovc doubts nu	VII, And ~vl~ercas	mnuy	insolvent drbtors haw pc-	,
to tho effect of orclern

hcrctnforo for titiolied thc S U ~ S C ~ C Cburt the provisions of the

ecited Ordiiiance,

in divers cases been

nlacle

from cudody, and have been declared#entitled to the relief prayed made whereby the petitioners have bc L n ordered to be discharged

for by them respectively, either absq)utely or subject to certain conditions in the said orders rnentio d. respectively; and doubts

have been exprcssed as to the effect o f such orders, be it therefore	Enacted, That all such orders as last &foresaid for the discharge of
imprisoned insolvcnt debtors as sl~all h&e been heretofore, or shall
be hereafter lawfdly made, shall
as if they had been orders rnaile in for the relief of im-
prisoned insolvent debtors, under of the Act of Par-
liament passed in the seventh year Icing George
the Fourth, intituled " An Act to the Laws
for t5e relief of Insolvent Debtors England:" Provided that nothing in this clause contained shall 6e construed to apply to cer- tificates of conformity granted or to ke hereafter granted to im-
prisoned insolvent debtors. 'i

E

VIII. And in order to prevent th4 inconvcnicncc which may power of Court, kn., k

nrim from any dcfrct in any of tllc ljm&cdingH previous to or	to amend procacding*,
under a fiat. be i t lhactccl, That i t s6:lll be lawful for the Com-
missioner, with respect to iny p o c e e d h ~ ~ s before him, or for the
said Court, or any Judge thereof, with fxespect to any proceedings
previous to or undcr a fiat, upon appli6ation for such purpose, to
cause such proceedings to be amended n such manner as circunl-
-stances may require, and upon such t e p s as to .costs or otherwise

as the Cowt, Judge, or Conmissioner gespectively may tliink just	ir:	-
and proper.	q
b

IX. And whereas the twenty-fifth nqd twcntysevcn th sections For rec!iiying mia-

are n~isplaccd in tile first-rccitccl Orcli~innce, bc i t Enacted, That 26th and 27tbscctiolu tnke aa to placing

the said Ordinance shall be rend and c;bnstrued as if the twenty- i ~ f i r ~ ~ - ~ 0 ~ ~ t e ~ 0&-

name.

m ~ n t h	section had been pllncccd	the twcnty-fifth section
tllcrcin*

XI'. And

XI. And be it Enacted, *hat this Ordinance shall commence and

take effect from and after the passing hereof.	;G
4
%
p . G. GREY,