« ПретходнаНастави »
court, which appears to be of no value to creditors, but nevertheless it may be reasonable and expedient that the said provisional assignee should make or join in making some conveyance or assignment of the same, and that the same should be done without the expence attending advertisements and meetings of creditors as prescribed by the said first mentioned act in certain cases : Be it therefore enacted, “ That it shall and may be lawful for the said court, at any time after the day gazetted for the hearing of the matters of the petition of any insolvent debtor, if no creditor shall have become assignee of his or her estate and effects, and if it shall appear fit, upon such notice given by advertisement or otherwise to the creditors or any of them as the said court shall in any case direct, to order the said provisional assignee to make or join in making any conveyance or assignment of any such interest as to the said court may appear just and reason
without observing the provisions of the said first mentioned act as to the sale of real property, by the provisional or other assignees of the estates of insolvent debtors (m).”
Sect. 6. “ And it is further declared and enacted, that all assignments and conveyances heretofore made or to be made by such provisional assignee in any such cases, by order of the said court, shall be and the same are hereby declared to be good and valid to all intents and purposes, any thing in the said first mentioned act or in any other act to the contrary notwithstanding."
Sect. 7. “ And whereas it is expedient to prescribe a form of conveyance and assignment from the provisional assignee to any other assignee or assignees when appointed by the said court, and also to remove any doubts as to the validity or effect of any conveyances or assignments at any time heretofore made and executed by the said provisional assignee, by virtue of any order of the said court;” Be it therefore declared and enacted, “That every conveyance and assignment hereafter to be made and executed by the provisional assignee for the time being, to any other assignee or assignees, by virtue of any order of the said court, shall be in such form as is to this act annexed; and that every such conveyance and assignment, and also every conveyance and assignment at any time heretofore made and executed by the provisional assignee for the time being, in obedience to any order of the court for relief of insolvent debtors, shall be deemed and taken to be valid and effectual to all intents and purposes whatever, and fully and effectually to vest and to have vested all and every estate and estates, real and personal, and all and every right, title, interest and trust in and to the same, of what nature or kind soever, to which the insolvent debtor in each case respectively shall or may be or shall or may have been entitled in any manner or by any means whatsoever, or which such insolvent debtor shall or may be or shall or may have been required by law to convey and assign in trust for his or her creditors.”
(m) See Ex parte Sidebotham, Re Barrington, 1 Mont. & Ayr. 664.
1 & 2 VICT. c. 110. “ An act for abolishing arrest on mesne process in civil actions, except in
certain cases; for extending the remedies of creditors against the property of debtors ; and for amending the lans for the relief of insolvent debtors in England."
Sect. 11. “ And whereas the existing law is defective in not providing adequate means for enabling judgment creditors to obtain satisfaction from the property of their debtors, and it is expedient to give judgment creditors more effectual remedies against the real and personal estate of their debtors than they possess under the existing law: Be it therefore further enacted, That it shall be lawful for the sheriff or other officer to whom any writ of elegit, or any precept in pursuance thereof, shall be directed, at the suit of any person, upon any judgment which at the time appointed for the commencement of this act shall have been recovered, or shall be thereafter recovered, in any action in any of her majesty's superior courts at Westminster, to make and deliver execution unto the party in that behalf suing, of all such lands, tenements, rectories, tithes, rents and hereditaments, including lands and hereditaments of copyhold or customary tenure, as the person against whom execution is so sued, or any person in trust for him, shall have been seized or possessed of at the time of entering up the said judgment, or at any time afterwards, or over which such person shall at the time of entering up such judgment, or at any time afterwards, have any disposing power which he might without the assent of any other person exercise for his own benefit, in like manner as the sheriff or other officer may now make and deliver execution of one moiety of the lands and tenements of any person against whom a writ of elegit is sued out; which lands, tenements, rectories, tithes, rents and hereditaments, by force and virtue of such execution, shall accordingly be held and enjoyed by the party to whom such execution shall be so made and delivered, subject to such account in the court out of which such execution shall have been sued out as a tenant by elegit is now subject to in a court of equity : Provided always, that such party suing out execution, and to whom any copyhold or customary lands shall be so delivered in execution, shall be liable and is hereby required to make, perform and render to the lord of the manor or other person entitled, all such and the like payments and services as the person against whom such execution shall be issued would have been bound to make, perform and render in case such execution had not issued (n); and that the party so suing out such execution, and to whom any such copyhold or customary lands shall have been so delivered in execution, shall be entitled to hold the same until the amount of such payments, and the value of such services, as well as the amount of the judgment, shall have been levied : Provided also, that as against purchasers, mortgagees, or creditors who shall have become
(1) Ante, pt. 1, pp. 47, n. (0), 301, n. (m), 342, 11. (m).
such before the time appointed for the commencenient of this act, such writ of elegit shall have no greater or other effect than a writ of elegit would have had in case this act had not passed.”
Sect. 19.“ Provided always and be it further enacted, That no judgment of any of the said superior courts, nor any decree or order in any court of equity, nor any rule of a court of common law, nor any order in bankruptcy or lunacy, shall by virtue of this act affect any lands, tenements or hereditaments, as to purchasers, mortgagees or creditors, unless and until a memorandum or minute, containing the name and the usual or last known place of abode, and the title, trade or profession of the person whose estate is intended to be affected thereby, and the court and the title of the cause or matter in which such judgment, decree, order or rule shall have been obtained or made, and the date of such judgment, decree, order or rule, and the account of the debt, damages, costs or monies thereby recovered or ordered to be paid, shall be left with the senior master of the Court of Common Pleas at Westminster, who shall forthwith enter the same particulars in a book in alphabetical order by the name of the person whose estate is intended to be affected by such judgment, decree, order or rule; and such officer shall be entitled for any such entry to the sum of five shillings; and all persons shall be at liberty to search the same book on payment of the sum of one shilling.”
Sect. 37. “ And be it enacted, That upon the filing of such petition by such prisoner, or on the filing of such petition by such creditor or creditors as aforesaid, and the evidence in support thereof, as the case may be, it shall be lawful for the said court for the relief of insolvent debtors, and such court is hereby authorized and required to order that 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 family, and the working tools and implements of such prisoner, not exceeding in the whole the value of twenty pounds, and all the 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, before he shall become entitled to his final discharge in pursuance of this act, according to the adjudication made in that behalf, or in case such prisoner shall obtain his full discharge from custody without any adjudication being made by the said court, then before such prisoner shall be so fully discharged from custody, and all debts due or growing due to such prisoner, or to be due to him or her before such discharge as aforesaid, shall be vested in the provisional assignee for the time being of the estates and effects of insolvent debtors in England ; and such order shall be entered of record in the same court, and such notice thereof shall be published as the said court shall direct; and such order when so made, shall, without any conveyance or assignment, 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 : Provided always, that in case the petition of any such prisoner shall be dismissed by the said court, such vesting order made in pursuance of such petition shall, from and after such dismission, be null and void to all intents and purposes: Provided also, that in case any such vesting order as aforesaid shall become null and void by the dismission of the prisoner's petition, all the acts theretofore done by the said provisional assignee, or any person or persons acting under his authority according to the provisions of this act, shall be good and valid, and no action or suit shall be commenced against such provisional assignee, or against any person duly acting under his authority, except to recover any property, estate, money or effects of such prisoner detained after an order made by the court for the delivery thereof, and demand made thereupon; Provided also, that when such vesting order shall have been made on the petition of a creditor as aforesaid, it shall be lawful for the said court, if it shall seem just and right, but not without proof made to the satisfaction of the said court of the consent of the petitioning creditor, to make order declaring such vesting order to be null and void, and the same shall thereupon be null and void to all intents and purposes."
Sect. 47. “ 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 appointment, 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 appointment of such assignee or assignees, 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 o 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, a certified copy of such vesting order as aforesaid, and a like certified copy of the appointment of 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.”
3 & 4 VICT. c. 82. “ An act for further amending the act for abolishing arrest on mesne
process in civil actions." -[Vide also 2 83 Vict. c. 39.) “Whereas by an act passed in the second year of the reign of her majesty, intituled ' An Act for abolishing Arrest on Mesne Process in Civil Actions, except in certain Cases ; for extending the Remedies of Creditors against the Property of Debtors; and for amending the Laws for the Relief of Insolvent Debtors in England, it was amongst other things enacted, that if any person against whom any judgment should have been entered up in any of her majesty's superior courts at Westminster should have any government stock, funds or annuities, or any stock or shares of or in any public company in England (whether incorporated or not), standing in his name in his own right, or in the name of any person in trust for him, it should be lawful for a judge of one of the superior courts, on the application of any judgment creditor, to order that such stock, funds, annuities or shares, or such of them, or such part thereof respectively as he should think fit, should stand charged with the payment of the amonnt for which judgment should have been so recovered, and interest thereon, and such order should entitle the judgment creditor to all such remedies as he would have been entitled to if such charge had been made in his favour by the judgment debtor; provided that no proceedings should be taken to have the benefit of such charge until after the expiration of six calendar months from the date of such order: And whereas doubts have been entertained whether the said provisions extend to the cases hereinafter mentioned; Now therefore be it declared and enacted by," &c., “ that the aforesaid provisions of the said act shall be deemed and taken to extend to the interest of any judgment debtor, whether in possession, remainder or reversion, and whether vested or contingent, as well in any such stock, funds, annuities or shares as foresaid, as also in the dividends, interest or annual produce of any such stock, funds, annuities or shares; and whenever any such judgment debtor shall have any estate, right, title or interest, vested or contingent, in possession, remainder or reversion, in, to or out of any such stock, funds, annuities or shares as aforesaid which now are or shall hereafter be standing in the name of the Accountant-General of the Court of Chancery or the Accountant-General of the Court of Exchequer, or in, to or out of the dividends, interest or annual produce thereof, it shall be lawful for such judge to make any order as to such stock, funds, annuities or shares, or the interest, dividends or annual produce thereof, in the same way as if the same had been standing in the name of a trustee of such judgment debtor: Provided always, that no order of any judge as to any stock, funds annuties or shares standing in the name of the AccountantGeneral of the Court of Chancery, or the Accountant-General of the Court of Exchequer, or as to the interest, dividends or annual produce thereof, shall prevent the Governor and Company of the Bank of England, or any public company, from permitting any transfer of such stocks, funds, annuities or shares, or payment of the interest, dividends, or annual produce thereof, in such manner as the Court of Chancery or the Court of Exchequer respectively may direct, or shall have any greater effect than if