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ACT of the British Parliament, “to amend the Law relating to
Bankruptcy and insolvency in England ;" so far as relates to Nontraders going or remaining Abroad; to Debtors about to depart from England; the absence of Creditors in a Foreign Country; the Service of Summons out of England; the recovery of Bankrupt Property, wherever situate ; the swearing of Affidavits, &c., Abroad; the adjudication of Colonial Property; and a deduction from the Pay, Salaries, and Pensions of Bankrupts, for their Creditors.
[24 & 25 Vict., cap. 134.]
[August 6, 1861.) LXX. If any person, not being a trader, shall, with intent to defeat or delay his creditors, depart this realm, or being out of this realm shall with such intent remain abroad, or shall with such intent make any fraudulent conveyance, gift, delivery, or transfer of his real or personal estate, or any part thereof respectively, such person shall be deemed to have thereby committed an Act of Bankruptcy : provided always, that before any adjudication in bankruptcy shall be made against the debtor under this section the following rules shall be observed :
1. A copy of the petition for adjudication shall be served personally on the debtor, either within the jurisdiction, or in such place or country, or within such limits abroad, as the Court shall, upon application for that purpose, direct :
2. Such copy petition shall have endorsed thereon a memorandum, in a form to be settled by a general order, specifying the time within which the debtor is to appear on such petition ; and such time shall, when the service is to be made abroad, be the time which the Court shall think reasonable, having regard to the place or country where the service is to be made :
3. In no case shall the time for appearance be less than 30 days after service:
4. If such personal service has not been effected, the Court must be satisfied that every reasonable effort was made to effect the same, and that the attempts to serve such petition came to the knowledge of the debtor and were defeated by his conduct :
5. If at the expiration of the time limited for appearance the Court shall on the hearing of such petition be satisfied that an Act of Bankruptcy has been committed within the meaning of this section, it may adjudge such debtor to be a bankrupt :
Provided always, that no non-trader, who shall be abroad at the time of the passing of this Act, shall be deemed to remain abroad with intent to defeat or delay his creditors until the expiration of 6 months after the passing of this Act.
LXXVIII. The judgment debtor summons shall, unless the Court shall in any case otherwise direct, issue according to the following rules :
Where the debtor is in England, then out of the Court of Bankruptcy for the district in which the debtor usually lives, or at the time of the issuing of the summons happens to be:
Where the debtor is not in England, then out of the Court of Bankruptcy for the district in which is the debtor's usual or last named place of abode in England.
LXXIX. Where the debtor is in England the summons shall be served personally, unless the Court issuing the same shall in any case direct that service in some other manner shall be good service: Where the debtor is not in England, the Court, upon such evidence as shall satisfy it that the service will be effectual to give notice to the debtor, may order service to be made in such manner and form as it shall deem fit, and shall appoint a time by such order for the appearance of the debtor.
CXXVII. The creditors' assignee shall manage, and, except as herein provided, realize and recover the estate belonging to the bankrupt, wherein situated, and convert the same into money, and he shall pay all moneys not necessarily retained for current expenses, all Exchequer Bills, India Bonds, and all other public securities, and all bills, notes, and negotiable instruments belonging to the estate, forthwith upon receipt thereof, into the Bank of England, to the account of the accountant in bankruptcy, unless in the case of any adjudication in a county district there shall be no branch of the Bank of England in the locality, and then into such bank as the Court shall direct, to the credit of an account to be opened in such bank by such assignee in his official character.
CXXXIV. The Court mayorder such portion of the pay, half-pay, salary, emolument, or pension of any bankrupt as, on communication from the Court, the Secretary of State for War, or the Secretary of State for India, or the Lords Commissioners of the Admiralty, or the Commissioners of the Customs or Excise, or the Chief Officer of the Department to which such bankrupt may belong or may have belonged, or under which such pay, half-pay, salary, emolument, or pension may be enjoyed by such bankrupt, may officially sanction to be paid to the assignees, to be applied in payment of the debts of such bankrupt; and such order and sanction being lodged in the office of Her Majesty's Paymaster-General, or of the Secretary of State for India, or of any other officer or person appointed to pay or paying any such
pay, half-pay, salary, emolument, or pension, such portion of the said pay, half-pay, salary, emolument, or pension as shall be specified in such order and sanction shall be paid to such assignees until the Court shall make order to the contrary.
CXCIV. Every deed, instrument, or agreement whatsoever, by which a debtor, not being a bankrupt, conveys a covenant or agrees to convey his estate and effects, or the principal part thereof for the benefit of his creditors, to make any arrangement or
agreement with his creditors, or any person on their behalf, for the distribution, inspection, conduct, management, or winding-up of his affairs or estate, or the release or discharge of such debtor from his debts or liabilities, shall, within 28 days from and after the execution thereof by such debtor, or within such further time as the Court in London shall allow, be registered in the Court of Bankruptcy; and in default thereof shall not be received in evidence.
CXCV. No deed or instrument whatever required to be registered as aforesaid shall be registered unless in addition to the ordinary stamp duty it also be impressed with or have affixed to it a stamp denoting a duty computed at the rate of 5 shillings upon every £100, or fraction of £100, of the sworn or certified value of the estate or effects comprised in, or to be collected or distributed under, such deed or instrument: Provided, that the maximum of ad valorem duty payable in respect of any such deed or instrument shall be £200.
CXCVI. Every such deed, on being so registered as aforesaid, shall have a memorandum thereof written on the face of such deed, stating the day and the hour of the day at which the same was brought into the office of the Chief Registrar for registration.
CXCVII. From and after the registration of every such deed or instrument in manner as aforesaid, the debtors and creditors, and trustees, parties to such deed, or who have assented thereto or are bound thereby, shall in all matters relating to the estate and effects of such debtor be subject to the jurisdiction of the Court of Bankruptcy, and shall respectively have the benefit of and be liable to all the provisions of this Act, in the same or like manner as if the debtor had been adjudged a bankrupt, and the creditors had proved, and the trustees had been appointed creditors' assignees under such bankruptcy; and the existing or future trustees of any such deed or instrument, and the creditors under the same, shall as between themselves respectively, and as between themselves and the debtor and against third persons, have the same powers, rights, and remedies, with respect to the debtor and his estate and effects, and the collection and recovery of the same, as are possessed or may be used or exercised by assignees or creditors with respect to the bankrupt, or his acts, estate and effects in bankruptcy; and, except where the deed shall expressly provide otherwise, the Court shall determine all questions arising under the deed according to the law and practice in bankruptcy, so far as they may be applicable, and shall have power to make and enforce all such orders as it would be authorized to do if the debtor in such deed had been adjudged bankrupt, and his estate were administered in bankruptcy.
CXCVIII. After notice of the filing and registration of such deed has been given as aforesaid, no execution, sequestration, or other process against the debtor's property in respect of any debt, and no process against his person in respect of any debt, other than
such process by writ or warrant as may be had against a debtor about to depart out of England, shall be available to any creditor or claimant, without leave of the Court ; and a certificate of the filing and registration of such deed under the hand of the Chief Registrar and the seal of the Court shall be available to the debtor for all purposes as a protection in bankruptcy.
CXCIX. In case any petition shall be presented for an adjudication in bankruptcy against a debtor after his execution of such deed or instrument as is hereinbefore described, and pending the time allowed for the registration of such deed or instrument, all proceedings under such petition may be stayed, if the Court shall think fit; and in case such deed or instrument shall be duly registered as aforesaid, the petition shall be dismissed.
CC. If a debtor cannot obtain the assent of a majority in number representing 3-4th in value of his creditors, by reason of his being unable to ascertain by whom bills of exchange, promissory notes, or other negotiable securities accepted, drawn, made, or endorsed by him are holden, or by reason of the absence of creditors in a Foreign Country, or other similar circumstances, it shall be sufficient if he obtain the consent of a majority in number representing 3-4ths in value of all his other creditors to such deed or instrument as aforesaid ; provided that notice shall have been inserted by or on behalf of the debtor in one or more newspapers published in the county or place at which he shall have carried on business immediately prior to the date of such deed or instrument, requiring his creditors to signify their assent or to dissent from such deed or instrument by notice in writing addressed to the trustee or trustees thereof within 14 days from the insertion of such notice, and that the affidavit or certificate of the trustee or trustees shall state the circumstances of the case, and the same shall be allowed by the Court, and provided the deed or instrument be in such form as is expressed in Schedule (D.) to this Act annexed, which shall vest all the estate and effects of the debtor in the trustees of such deed, and provided that all such other conditions are as hereinbefore required be duly complied with.
CCVI. A copy of any petition filed in this Court for the Relief of Insolvent Debtors in England, or in any Court having jurisdiction for the relief of insolvent debtors, or in bankruptcy, in any of Her Majesty's dominions, colonies, or dependencies, and of any vesting order, schedule, order of adjudication, or other proceedings, purporting to be signed by the officer in whose custody the same shall be or his deputy, certifying the same to be a true copy of such petition, vesting order, schedule, order of adjudication or other order or proceedings, and appearing to be sealed with the seal of such Court, shall at all times be admitted under this Act as sufficient evidence of the same, and of such proceedings respectfully having taken place, without any other proof whatever given of the same.
CCVII. Any affidavit, declaration, or affirmation required to be sworn or made in relation to any matter under this Act may be lawfully sworn :
1. In England, Scotland, and Ireland, before any Court acting in matters of bankruptcy, or before any Registrar or Taxing Master thereof, or before any Commissioner for administering oaths in Chancery or any of the Superior Courts of Common Law ai Westminster, or before any officer of the High Court of Chancery, duly authorized to administer oaths in such Court, or before a magistrate of the county, city, town, or place where any such affidavit shall be sworn :
2. In any Colony, Island, Plantation, or place under the dominion of Her Majesty, before any Court, Judge, or person lawfully authorized to take and receive affidavits, affirmations, or declarations :
3. In any Foreign Parts out of Her Majesty's dominions, before a Judge or Magistrate, his signature being authenticated by the official seal of the Court to which he is attached, or by a Public Notary, or before a British Minister, Consul, or ViceConsul :
And every such Court, Judge, Officer, or other person is hereby authorized and required to administer the oath upon any
such affidavit, or to take such affirmation or declaration; and all Courts, Judges, Justices, Commissioners, and persons acting judicially, shall take judicial notice of the seal or signature (as the case may be) of any such Court, Judge, Officer, or other person attached, appended, or subscribed to any such affidavit or declaration, or to any
other document to be used for the purposes of this Act, or of other Acts in relation thereto.
CCVIII. The Court of Bankruptcy in London, and the District Courts of Bankruptcy in England, are in like manner authorized and required to administer oaths, or to receive affirmations or declarations, upon any affidavit or declaration or affirmation to be used in any matter of bankruptcy or insolvency under prosecution or hereafter to be prosecuted in any Court in Scotland, Ireland, or in any Colony, Island, Plantation, or place under the dominion of Her Majesty; and all such Courts shall take judicial notice of any affidavit, declaration, or affirmation so sworn or made.
CCIX. No fee shall be payable on the swearing of any oath, or the making of any affirmation or declaration, taken or made in the London Court, or in any District Court of Bankruptcy, in any matter of bankruptcy, arrangement or insolvency, within the United Kingdom, or in any of Her Majesty's dominions, Colonies, or dependencies, and no fee or reward whatever shall be taken or received by any Court or Magistrate for or in respect of the taking of such oath, or the making of such affirmation or declaration, other than such fee or reward as General Orders shall allow,