AN ACT FOR RELIEF OF DEBTORS AND FOR THE BETTER SECURITY OF CREDITORS.

Hawke's Bay Times, Volume II, Issue 72, 13 November 1862, Page 6 (Supplement)

AN ACT FOR RELIEF OF DEBTORS AND FOR THE BETTER SECURITY OF CREDITORS.

[ls th September, 18G2.] Be it enacted by the General Assembly of New Zealand in Parliament assembled and by the auathority of the same as follows : Short Title. I. The Short Title of this Act shall bo the “Debtors and Creditors Act 1862.” Ordinances repealed. 11. An Ordinance passed in the year is 11 in the 3rd Session ol the Legislative Council of the colon v of New Zealand intituled “An Ordinance for the relief of persons Imprisoned for Debt,” and “The Imprisonment ior Debt Ordinance Amendment Act, 1861,” are hereby respectively repealed. Debtor under 'Execution may Petition under Act. 111. It shall be lawful for any Debtor who shall have been taken in execution under any process issuing from the Supreme Court or from any Court ot interior Jurisdiction for any debt or sum of money to apply by petition to a Judge of the Supremo Court for discharge from custody and for relict according to the provisions of this Act. Debtor may petition for sequestration. I\ . It shall be lawful ior any Debtor not being a prisoner in custody with the concurrence of one or more Creditor or Creditors to the extent of not less than Titty Pounds in the whole to OPP'J Petition to a J udge of the Supreme Court for sequestration of his estate for the benefit ol his Creditors and lor relief according to the provisions of this Act. What Petition shall stale. \. The Petition by any Debtor who shall bo in custody as aforesaid shall state the time of the prisoner's committal to prison and the name or names of the person or persons at whose suit he shall be detained in custody and the debts or sums of money' tor which he shall bo so detained and that he hath caused notice in writing of his intention to present such Petition to be personally served on such detaining Creditors as aforesaid or their Attorneys or agents which notice shall be served accordingly The Petition whether by r any Debtor in custody or by 7 any Debtor not in custody 7 shall also set forth cither in its body or by way ol Schedule a full true and particular account ot all the Petitioner’s debts liabilities and engagement and the respective amounts thereof as nearly as may be and to whom owing with the names places of abode and descriptions of the persons to whom owing and the respective considerations lor the same And also of all monies due to or payable to him from any person or persons or on any account whatsoever and of all income whereof lie shall be in receipt from any office place or employment whatever and of all real and personal estate and effects whatsoever of or to which he shall bo possessed or entitled in possession reversion remainder or expectancy or of which he shall have power to dispose and all such other particulars as shall from time to time by any 7 rule or order in that behalf bo directed for the purpose of enabling the Court: to judge as to the state circumstances and condition of the Petitioner The Petition shall be subscribed by the Petitioner and shall bo forthwith filed in the Court for the District. within winch such debtor shall bo confined or shalljiave residedJor carried on business. II hen a Creditor may petition. YT. If any debtor being taken in execution for any debt shall remain in custody for three days and shall fail within that period to satisfy such debt or to lodge in Court such security for the same as to the Court in its discretion shall seem sufficient or if any debtor not being in custody shall fail (o satisfy any debt and costs for which judgment shall have been recovered in the Supremo Court or any inferior Court of Judicature in the Colony and which judgment shall not be under appeal and shall tail to lodge in Court such security for the same as to the Court in its discretion shall appear sufficient within fourteen days after the recovery of such judgment or if any Debtor shall within fourteen days before the filing of the Petition hereinafter mentioned have absented himselt from his usual place of business or abode in such manner as shall reasonably implv the intention to defeat or delay the just demand of any Creditor or to avoid (lie Service of anv summons to appear in answer to any action or suit before the Supremo or any inferior Court of Judicature or it any Debtor shall with intent to defeat or defraud his Creditors suifer any of his real or personal estate to bo taken in execution or other legal process or shall at any time knowing that he is at the? time unable to me I his engagements fraudulently and with intent to prevent the same being divided among the general body of bis Creditors have made away with mortgaged encumbered or charged any part of his property of what kind soever or if being a trader he shall at any time pawn pledge or dispose of otherwise than bo bond fide transactions in the ordinary way of bis trade any of his goods or chattels which have been obtained on credit and remain unpaid for it shall be lawful for any Creditor or Creditors of such person to the extent of not less than Fifty Pounds to apply by Petition to any Judge of the Supremo Court setting forth in such. Petition any of the above recited causes and the particulars of the debt or debts due and owing to him or them and praying for the sequestration and cession of the estate of such Debtor for the benefit of the Creditors generally in the manner provided by this Act The Petition shall be subscribed by the Petitioner or Petitioners and shall bo forthwith filed in the Court for (lie District in winch such person shall have resided or carried on business. Petition shall la sworn to and vouched. VII. Any Petition by debtor or by Creditor as hereinbefore provided may be presented at any sitting of the Supreme,' Court or before a judge in chambers and every Petitioning Debtor or Creditor shall specify by affidavit the allegations contained in such Petition and every petitioning Creditor shall produce such vouchers statements of accounts or other evidence as to the Court shall appear necessary in support of his claim. Siitiny of Court. VIII. The Court shall sit for the dispatch of nil business accruing under the provisions of this Act at such places and on such days as the Judge presiding in such Court shall from time

to time by notice in tho Government Gazette of the Province in which tho Court shall be held appoint Provided that applications and hearings except for a final hearing may be made to or before a Judge in Chambers. Appointment and notice of hearing. IX. When any application shall be made by Petition by Debtor or Creditor in the manner herein provided, it shall be lawful for the Court, on besatisfied of the truth of tho matters contained in such petition to appoint a day for tho hearing of such petition, of which notice shall be given by advertisement not less than fourteen days before the day so appointed in the Government Gazette of the Province within which proceedings are taken and in at least one local newspaper. In the case of a Petition by a Debtor such Debtor shall immediately after filing his Petition cause notice thereof to be given by letter to every Creditor whoso name shall appear in the Petition or in the Schedule attached thereto and such notice shall bo delivered or addressed by the post to the address of every such Creditor not less than fourteen days before the day appointed for hearing. In tho case of a Petition by a Creditor or Creditors it shall be lawful for the Court to grant a rule either nisi or absolute as the Court shall think fit calling upon tho Debtor to appear in person before the Court in tho place appointed for hearing the Petition and aiterwnrds at such time and from time to time as the Court shall think fit in order that such other proceedings shall be taken as arc herein provided. Procedure on hearing. X. Every Debtor who shall have filed a Petition in the manner herein provided or who shall bo ordered by rule of Court in tho manner hereinbefore provided to appear at the bearing ol Petition by a Creditor or Creditors shall attend or bo brought up cu the day appointed for the hearing of such Petition and the Court shall on such day or on any subsequent day which shall be appointed in that behalf examine such Debtor on Oiltli as lo the truth of the matters contained iu the Petition and as to all other matters requisite for enabling the Court to ascertain the true state and condition of the Debtor’s allairs and bis conduct and circumstances so far as may bo material for the purpose of this Act and the Debtor shall attend from time to time on such days and times for the purpose of such examination until the final hearing as tho Court shall appoint And upon consideration of tho matters aforesaid it shall be lawful for the Court to make such Order or several Orders and either at one time or from lime to time as to the Court shall seem fit for tho relief of such Debtor and for releasing and discharging such Debtor and bis Estate from all or any otThe debts liabilities or engagements specified in such Petition or any part or parts thereof and the Court may by any such Order order and direct tho Debtor to cede and deliver convey and assign all his estate and effects or any part thereof to such person or persons as to the Court shall seem fit which person or persons may bo recommitted by the Creditors but which recommendation it shall not bo obligatory on the Court to adopt Such conveyance and assignment to contain all requisite powers for enabling some person or persons named therein to recover ami receive debts monies goods chattels estate and effects iu any way belonging to or duo and payable to the Debtor or any of such debts or monies goods chattels estate or effects in particular upon such trusts with such powers subject to such conditions and in such manner as to the Court shall seem fit for the purpose of selling disposing of getting in and receiving or otherwise realizing such estate monies goods chattels and clfoets and thereout of satisfying all costs charges and expellees incurred by order of the Court or incidental to the execution of such trusts and all fees of Court and such other sums of money as shall be ordered by the Court and subject thereto for the purpose of such a just distribution and administration of such estate and effects between and amongst and for the benefit of all or any of lire Creditors of the Debtor by way of pro rata distribution subject to existing legal priorities or otherwise and inclusive or exclusive of any creditors of the Debtor either in whole or in part and generally in such manner in all respects as the Court in the fullest and most, absolute discretion may think fit and shall in and by any such order direct And it the Debtor alter any such order made shall not within such time as shall be limited in (hat behalf by such order make such cession and delivci-y conveyance and assignment and give such power as aforesaid or in the first instance if (be Court shall think tit tlie Court, may order the Registrar of the Court or such other person as the Court shall in that behalf appoint in the name and on behalf of tho Debtor to make and execute such cession and delivery conveyance and assignment and to execute such power and to make and execute all necessary ads, deeds and instruments whatsoever for vesting (ho estate and effects of such debtor in the person or persons appointed by the Court, upon the trusts, and iu maimer aforesaid And all such acts, deeds, and instruments done and executed under such last mentioned order shall bo as effectual as if dune or executed by such debtor And upon compliance by (be debtor with tho terms of such order, the effect, thereof shall be lo release and discharge the debtor from any debts, liabilities and engagements specified therein and from liability in respect thereof but so far only and lo such extent and at such time and in such manner and upon such terms and conditions as shall be specified iu such order and every such order shall be published in the Government Gazette of tho Colony and also of the Province in which the petition is heard. Adjournment of lleariny S;c. XI. Tho Court may from time to time adjourn (lie hearing of any Application or Petition under (Ins Act to any time or place which it shall think fit and may examine the Applicant or Petitioner upon Oath as to the matters stated in the Application or Petition and any Creditor or person claiming to be a Creditor of tho Applicant or Petitioner may attend any hearing of such Application or Petition, and may cither by 7 himself or Counsel bo hoard in opposit ion thereto and by leave of the Court may csnminclheApplicant or Petitioner and any Witnesses which the Court shall think fit and may by such leave as aforesaid produce

and read Court any letters or documents whatever iii'any way relating to the affairs of the Applicant or Petiiioneiyand the Court shall have power to summon and compel the attendance of Witnesses and (lie production of such books papers or writings as (o it shall seem fit. In absence §c. of Debtor Creditor may prosecute proceedings. XII. If upon the day appointed for the hearing of any Petition by a Debtor the Petitioning Debtor shall not appear or if such Petitioning Debtor shall fail to issue the required notice to Creditors or otherwise fail to comply with the requirements of this Act it shall be lawful for any Creditor of sucli Debtor to take up and prosecute such proceedings and thereafter such proceedings shall be conducted in the same manner as if the Petition had in the first instance been made by a Creditor. Service of Orders. XIII. Any rule or order of Court under this Act may be served either personally or by being left at the last or most usual place of abode of the person to be served or it he shall have no such place of abode then by being published once at least in some local newspaper circulated in the Province in which the Court shall be held. Court shall exercise powers notwithstanding death or absence of Debtor. XIV. In case any Debtor shall ponding any proceedings under this Act die or in case any Debtor alter notice of proceedings shall leave the Province in which he shall have resided at the commencement ot such proceedings or in case he shall tail to attend at any time or place when and at which lie was bound to attend pursuant to the provision of this Act or siiall refuse to submit to examination or to obey any order of Court the Court may notwithstanding such death absence failure refusal or neglect forthwith exorcise all powers hereby vested in the Court of conveying assigning disposing of*and otherwise dealing with the estate and effects of such Debtor. Court way discharge Debtor. XV. The Court upon full compliance by a Debtor with the terms of any order of Court made in that behalf or in accordance therewith may order the Debtor to be discharged from custody and he shall bo discharged accordingly and it shall be the duty ot ail Sheriffs and Gaolers to obey such order. Effect of order of discharge. XI I. Any order of the Court under this Act disearging a Debtor from any debts claims or demands shall have the effect of discharging him from the same and if thereafter tie shall be arrested or it any action shall be brought against him for any such debt claim or demand he shall bo discharged upon entering an appearance and may plead that the cause of action arose in respect ot a d ■ bt claim or demand from which lie had been discharged under this Act and mav give this Act and the special matter in evidence and the order of discharge shall be sufficient evidence of all proceedings precedent thereto. Court way issue interim sequestration. XI It. In (he case of a Petition ol'cither Debtor or (.reditor under this Act at any time after the making or tiling of such Pedtion it shall be lawful tor the Debtor or for any Creditor of such Debtor to apply to the Court for an ad interim order of sequestration ot the estate and effects of tlie Debtor and the Court may in its discretion either make or reiuso to make such order accordingly and may by any such order direct that (he estate and effects of the Debtor or any part thereof shall be taken and held by such person or persons in such manner lor sucli time and otherwise in all respects as the Court shall from time to time direct subject to such lurtlier order of the Court as may be made under or in pursuance of the provisions ot tins Act And every such ad interim order of sequestration may be published in the Government Gazette of (he Province or in some local newspaper circulated in the province where sucli sequestration sJuill take place and from and after such publication all dealings with and dispositions ol the estate and effects of the Debtor so ordered to be sequestered shall be deemed to be fraudulent ami void as against any Trustee afterwards appointed under the provisions of this Act. And the person or persons authorised in any such order may enter into take possession of and retain the estate and effects so ordered to bo sequestered as atoresaid subject to the direction of the Court And every such order or sequestration may bo registered by any person ajipointcd in that behalf by (he Court in any Register of Deeds or Register of Land ns against any land affected thereby provided that nothing in this Act contained shall prejudice any bond fide purchaser of any goods chattels or effects of the Debtor for valuable consideration and without express notice of such sequestration and no sucli sequestration of goods chattels or effects shall have any force or effect until possession shall have been taken under the same nor as regards real estate until such sequestration shall be registered as aforesaid. Court may grant interim, protection. XI 111. In the ease of a Petition either of any Debtor or of any Creditor under this Act at any time after (he making or filing of the Petition the Debtor may apply to the Court or to a Judge at Chambers for an ad interim order of protection which order the Court or Judge may in his discretion grant accordingly And the effect of every such order shall be to protect the person and estate of (he Debtor from arrest execution or other legal process for such time and in such maimer and upon such terms and conditions as the Court shall direct and as shall in and by such order be expressed and all Sheriff's Daililfs and other persons shall obey such order accordingly And all proceedings in contravention of such order may be itaxed or set aside by the Court, or a Judge in Chambers or in case of proceedings in a Court of inferior jurisdiction by the presiding Judge or Magistrate of such Court upon summary applictiou. Business may be wound v.p under inspection. XIX. If in any proceedings under this Act it shall appear to the Court exjjedient and for the benefit of the estate of a Debtor that the same shall bo wound up under inspection or that the trade or business of a Debtor shall be carried on wholly or in part or that the final closing of such t rade or business shall be suspended for any defined period of time the Court may upon the recommendation of the Creditors at any meeting

to be convened in pursuance of this Act make an order accordingly and such estate trade or business shall thereupon be managed wound up carried on suspended or finally closed in accordance with such order. When certain Creditors concur Court may sanction Deed of arrangement and take other steps. XX. If upon any hearing or examination of a Debtor under this Act it shall be made to appear to the satisfaction of the Court in such manner as the Court shall think fit that three-fourths in number and one-third in value or three-fourths in value and one-third in number of the Creditors within the Colonyjof any Debtor are desirous that the Estate of such Debtor shall bo wound up under the Deed of Arrangement Composition or otherwise the Court shall order all further proceedings under this Act to be stayed for such a period as the Court shall think fit and in such case the Debtor or any Creditor of the estate may at any time within the period during which the proceedings are so stayed produce to the Court a Deed of Arrangement or Composition signed by or on behalf of three fourths in number and one third in value or three fourths in value and one-third in number of Creditors in the Colony of such Debtor and the Court may consider the same and may examine on Oath tho Debtor and any of the Creditors who may desire to bo heard in support of or in opposition to the Deed and may make such other inquiry as it may think necessary and if tho Court shall be satisfied that the Deed has been duly entered into and executed and that its terms are reasonable and calculated to benefit the general body of the Creditors within the Colony under the Estate it shall by Order make a declaration of the complete execution of the Deed and direct tho same to be registered in tho Supreme Court and shall also cancel any former Orders as to it shall seem fit touching the Debtor or tho Debtors Estate and such deed shall thereafter be as binding on any Creditor who lias not executed the Deed as if ho had executed it provided such Deed is registered as aforesaid. Court may order winding v.p subject to Deed of Arrangement. XXT. In every such last-mentioned case the Court may if it shall think fit make such order and direction for tho winding up of the Debtors Estate under and in accordance with such deed of arrangement or composition but subject to such order and directions as the Court shall from time to time make in that behalf. In such cases Trustees shall remain subject to" Act. XXIt. In every such last-mentioned case tho trustees and all other persons concerned in the management and winding up of such estate shall bo subject to the same provisions of this Act as arc applicable to trustees and persons concerned in tiie management and winding up of estates under Ihc provisions of this Act. (To he Continued)