Слике страница
PDF
ePub

ditaments, which would have been liable thereto in case no such certificate had been granted, and no such discharge had been obtained."

Sect. 12. "And whereas it is expedient that further provision should be made for the protection of purchasers against secret acts of bankruptcy and fiats in bankruptcy; be it therefore enacted, that all conveyances by any bankrupt bona fide made and executed before the date and issuing of the fiat against such bankrupt shall be valid, notwithstanding any prior act of bankruptcy by him committed, provided the person or persons to whom such bankrupt so conveyed had not at the time of such conveyance notice of any prior act of bankruptcy by him committed."

Sect. 13. "And be it enacted, that no purchase from any bankrupt bonâ fide and for valuable consideration, where the purchaser had notice at the time of such purchase of an act of bankruptcy by such bankrupt committed, shall be impeached by reason thereof, unless the commission against such bankrupt shall have been sued out within twelve calendar months after such act of bankruptcy."

Sect. 14. "And be it enacted, that this act shall not extend to Ireland."

2 & 3 VICT. c. 29.

"An act for the better protection of parties dealing with persons liable to the bankrupt laws."

"Whereas by an act passed in the sixth year of the reign of his late Majesty King George the Fourth, intituled 'An Act to amend the Laws relating to Bankrupts,' it was among other things enacted, that all payments really and bonâ fide made by any bankrupt, or by any person on his behalf, before the date and issuing of the commission against such bankrupt, to any creditor of such bankrupt (such payment not being a fraudulent preference of such creditor), should be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed, and that all payments really and bona fide made to any bankrupt before the date and issuing of the commission against such bankrupt should be deemed valid, notwithstanding any prior act of bankruptcy committed, and that such creditor should not be liable to refund the same to the assignees of such bankrupt, provided the person so dealing with the bankrupt had not at the time of such payment to such bankrupt notice of any bankruptcy committed: And whereas by an act passed in this present session of parliament, intituled An Act for the better Protection of Purchasers against Judgments, Crown Debts, Lis pendens, and Fiats in Bankruptcy,' it is amongst other things enacted, that all conveyances by any bankrupt bonâ fide made and executed before the date and issuing of the fiat against such bankrupt shall be valid, notwithstanding any prior act of bankruptcy by him committed, provided the person or persons to whom such bankrupt so conveyed had not at the time of such conveyance notice of any prior act of bankruptcy by him committed: And whereas it is expedient that further protection should be given to persons dealing with bankrupts before the issuing of any fiat against them: be it therefore enacted by, &c., that all contracts,

[ocr errors]

dealings and transactions by and with any bankrupt really and bonâ fide made and entered into before the date and issuing of the fiat against him, and all executions and attachments against the lands and tenements, or goods and chattels of such bankrupt, bona fide executed or levied before the date and issuing of the fiat, shall be deemed to be valid, notwithstanding any prior act of bankruptcy by such bankrupt committed; provided the person or persons so dealing with such bankrupt, or at whose suit, or on whose account such execution or attachment shall have issued, had not at the time of such contract, dealing or transaction, or at the time of executing or levying such execution or attachment, notice of any prior act of bankruptcy by him committed; provided also, that nothing herein contained shall be deemed or taken to give validity to any payment made by any bankrupt, being a fraudulent preference of any creditor or creditors of such bankrupt, or to any execution founded on a judgment on a warrant of attorney or cognovit given by any bankrupt by way of such fraudulent. preference."

Sect. 2. "And be it further enacted, that this act may be repealed or altered by any other act in this present session of parliament."

7 GEO. IV. c. 57.

"An act to amend and consolidate the laws for the relief of insolvent Debtors in England.

Sect. 11. "And be it further enacted, that such prisoner shall, at the time of subscribing the said petition, duly execute a conveyance and assignment to the provisional assignee of the said court, in such form as is to this act annexed, of all the estate, right, title, interest and trust of such prisoner, in and to all the real and personal estate and effects of such prisoner, both within this realm and abroad, except the wearing apparel, bedding and other such necessaries of such person, and his or her family, and the working tools and implements of such prisoner, not exceeding in the whole the value of twenty pounds, and of all future estate, right, title, interest and trust of such prisoner, in or to any real and personal estate and effects, within this realm or abroad, which such prisoner may purchase, or which may revert, descend, be devised or bequeathed, or come to him or her, before he or she shall become entitled to his or her final discharge in pursuance of this act, according to the adjudication made in that behalf; or in case such prisoner shall obtain his or her discharge from custody without any adjudication being made in the matter of his or her petition, then before such prisoner shall be at large and out of custody, and of all debts due or growing due to such prisoner, or to be due to him or her before such discharge as aforesaid; which conveyance and assignment, so executed as aforesaid, in form aforesaid, shall vest all the real and personal estate and effects of such prisoner, and all such future real and personal estate and effects as aforesaid, of every nature and kind whatsoever, and all such debts as aforesaid, in the said provisional assignee; and the same shall be made subject to a proviso, that in case the petition of any such

prisoner shall be dismissed by the said court, such conveyance and assignment shall, from and after such dismission, be null and void to all intents and purposes; and the said court is hereby empowered to dismiss any such petition in the matter whereof a final adjudication shall not have been made in pursuance of this act, at any time when it shall seem fit to the said court to dismiss the same: Provided always, that where in any case, by leave of the said court, any amendment shall be made in any such petition, or an amended petition shall be filed as of the date of the original petition, which the said court is hereby empowered to do and authorize without dismissing such original petition, the assignment and conveyance executed in such case shall not thereby be affected, but shall stand good to all intents and purposes, notwithstanding such amendment or amended petition so filed as aforesaid."

Sect. 13. "And be it further enacted, that the filing of the petition of every person in actual custody, who shall be subject to the laws concerning bankrupts, and who shall apply by petition to the said court for his or her discharge from custody, according to this act, shall be accounted and adjudged an act of bankruptcy from the time of filing such petition; and that any commission issuing against such person, and under which he or she shall be declared bankrupt before the time appointed by the said court, and advertised in the London Gazette, for hearing the matters of such petition, or at any time within two calendar months from the time of filing such petition, shall have effect to avoid any conveyance and assignment of the estate and effects of such person, which shall have been made in pursuance of the provisions of this act: Provided always, that the filing of such petition shall not be deemed an act of bankruptcy, unless such person be so declared bankrupt before the time so advertized as aforesaid, or within such two calendar months as aforesaid; but that every such conveyance and assignment shall be good and valid, notwithstanding any commission of bankrupt under which such person shall be declared bankrupt after the time so advertised as aforesaid, and after the expiration of such two calendar months as aforesaid (i)."

Sect. 19." And be it further enacted, that it shall and may be lawful for the said court, at any time after the filing of the petition of any such prisoner as aforesaid as to the said court shall scem expedient, to appoint a proper person or persons, being a creditor or creditors of such prisoner, to be assignee or assignees of the estate and effects of such prisoner for the purposes of this act; and when such assignee or assignees shall have signified to the said court his or their acceptance of the said appointment, the estate, effects, rights and powers of such prisoner, vested in such provisional assignee as aforesaid, shall immediately be conveyed and assigned by such provisional assignee to the said assignee or assignees, in trust for the benefit of such assignee or assignees and the rest of the creditors of such

(i) As to the debts which would be deemed sufficient to support a fiat of bankruptcy against an insolvent trader,

see Jellis v. Mountford, 5 Barn. & Ald. 256; Ex parte Shuttleworth, Re Pacey, 2 Glyn & Jameson, 68.

prisoner, in respect of or in proportion to their respective debts, according to the provisions of this act; and after such conveyance and assignment by such provisional assignee, all the estate and effects of such prisoner shall be to all intents and purposes as effectually and legally vested by relation in such assignee or assignees as if the said conveyance and assignment had been made by such prisoner to him or them: Provided nevertheless, that no act done under or by virtue of such first conveyance and assignment shall be thereby rendered void or defeated, but shall remain as valid as if no such relation had taken place; and that every such conveyance and assignment as aforesaid to such provisional assignee, and a counterpart of every such conveyance and assignment by such provisional assignee to such other assignee or assignees, shall be filed of record in the said court; and a copy of any such record, made upon parchment, and purporting to have the certificate of the provisional assignee of the said court, or his deputy appointed for that purpose, endorsed thereon, and to be sealed with the seal of the said court, shall be recognised and received as sufficient evidence of such conveyance and assignment, and of the title of the provisional and other assignee or assignees under the same, in all courts, and before commissioners of bankrupt and justices of the peace, to all intents and purposes, without any proof whatever given of the same, or of any other proceeding in the said court in the matter of such prisoner's petition."

Sect. 20. "And be it further enacted, that the assignee or assignees of the estate and effects of any such prisoner shall, with all convenient speed after his or their accepting such conveyance and assignment as aforesaid, use his or their best endeavours to receive and get in the estate and effects of such prisoner, and shall, with all convenient speed, make sale of all such estate and effects; and if such prisoner shall be interested in or entitled to any real estate, either in possession, reversion or expectancy, such real estate within the space of six months after the conveyance and assignment made to such assignee or assignees in that behalf, or within such other time as the said court shall direct, shall be sold by public auction, in such manner and at such place or places as shall thirty days before any such sale be approved, in writing under their hands, by the major part in value of the creditors of such prisoner entitled to the benefit thereof, who shall meet together on notice of such meeting published fourteen days previous thereto in the London Gazette, and also in some daily newspaper printed and published in London or within the bills of mortality, if the prisoner before his or her going to prison resided in London or within the bills of mortality, and if such prisoner resided elsewhere within the united kingdom, then in some printed newspaper which shall be generally circulated in or near the place where such prisoner resided at the time aforesaid; and in case such prisoner shall be entitled to any copyhold or customary estate, the conveyance and assignment by such provisional assignee to such assignee or assignees as aforesaid, shall be entered on the court rolls of the manor of which such copyhold or customary estate shall be holden; and thereupon it shall be lawful for such assignee or assignees

to surrender or convey such copyhold or customary estate to any purchaser or purchasers of the same from such assignee or assignees, as the said court shall direct; and the rents and profits thereof shall be in the meantime received by such assignee or assignees for the benefit of the creditors of such prisoner, without prejudice, nevertheless, to the lord or lords of the manor of which any such copyhold or customary estate shall be holden (k)."

Sect. 22. "And whereas many persons who may petition the said court for relief under this act may be seized and possessed of lands, tenements and hereditaments, to hold for the term of their natural lives, with power of granting leases and taking fines, reserving small rents on such estate, for one, two or three lives in possession or reversion, or for some number of years determinable upon lives, or have power over such real or personal estate which such persons could execute for their own advantage, and which said powers ought, on such persons petitioning the said court for relief under this act, to be executed for the benefit of the creditors of such persons: Be it therefore enacted, "That in every such case all and every the powers of leasing such lands, tenements and hereditaments, and all other such powers as aforesaid, over such real or personal estates, which are or shall be vested in any prisoner who shall petition the said court for relief under this act, and all trusts or powers whatever vested in such prisoner, or created for his or her use or benefit, which such prisoner might legally execute for his or her own benefit, (except the right of nomination to any vacant ecclesiastical benefice,) shall be and are hereby vested in the assignee or assignees of the real and personal estate of such prisoner, by virtue of this act, so far as such prisoner could by law vest such power in any person to whom he or she might lawfully have conveyed such property, to be by such assignee or assignees executed for the benefit of all and every the creditors of such prisoner under this act."

1 WILL. IV. c. 38.

"An act to continue and amend the laws for the relief of insolvent debtors in England (1)."

Sect. 5. "And whereas it may often happen that some interest in lands and tenements may become vested in the provisional assignee of the said

(k) Ante, pt. 1, p. 307, n. (i). A court baron being a court of inferior jurisdiction, and not a court of record, the author apprehends that a short entry of the assignment to the general assignee on the steward's minutes of the court, would be sufficient evidence of a compliance with this section of the act. See Doe d. Smith v. Glenfield, 1 Bing. N. C. 729; 1 Sc. 699; Fisher v. Lane, 2 Sir W. Bl. 834; Rex v. Smith, 8 Bar. & Cr. 341; but

minutes only could not be given in evidence of an act in a court of record; Rex v. Smith, sup. ; and see ante, pt. 1, p. 307, n. (h)

(1) N. B. The act of 7 Geo. 4, c. 57, and this act, were continued by the 2 Will. 4, c. 44, until 1st June, 1835, and thence until the end of the then next session of parliament. Vide also sections 37 and 47 of 1 & 2 Vict. c. 110, post.

« ПретходнаНастави »