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nee; and all such persons whose act or
consent is so necessary are hereby indemni-
fied for all things done or permitted pur-
suant to such order. (B. L. C. Act, 1849,
s. 128.)

No distress for rent made and levied J>iMres8 not
after an act of bankruptcy upon the goods ^meM^'
or effects of any bankrupt, whether before ^y^^^
or after the issuing of the fiat or the filing of rem dm;

^t ^'a' ^ ?• J' j^ jfi. 1 ^ '^ thelandloi-d

the petition for adjudication of bankruptcy, to prom
shall be available for more than one year's iZiSL
rent accrued prior to the date of the fiat or
the day of the filing of such petition, but
the landlord or person to whom the rent
shall be due shall be allowed to come in as
a creditor for the overplus of the rent
du^i and for which the distress shall



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15a



BANKRUPTCY ACT, 1861.



Where

bankrupt is

a trugtee,

theLord

Chancellor

may order

convepanee

orcugign-

mentto

another

trugtee.



Titles to
property
gold not to
be im-
peached,
tmless pro-
eeedingg
taken to
annul and



not he availMe. (B. L. C. Act, 1849, s.
129.)

If any bankrupt shall as trustee he seised,
possessed of, or entitled to, either alone or
jointlpi any real or personal estate, or any
interest secured upon or arising out of the
same, or shall have standing in his name
as trustee, either alone or jointly, any go-
vernment stock, funds, or annuities, or any
of the stock of any puhlic company, either
in Engla/nd, Scotland, or Ireland, it shall
he lawful for the Lord Chancellor, on the
petition of the person entitled in possession
to the receipt of the rents, issues, and pro-
fits, dividends, interest, or prodv^ce thereof,
on due notice given to all other persons (if
any) interested therein, to order the assig-
nees and all persons whose act or consent
thereto is necessary to convey, assign, or
transfer the said estate, interest, stock,
funds, or annuities, to such person as the
Lord Chancellor shall think fit, upon the
same trusts as the mid estate, interest,
stock, funds, or annuities were subject to
before the bankruptcy, or such of them as
shall be then subsisting and capable of tak-
ing effect, and also to receive and pay over
the rents, issues, and prefits, dividends,
interest, or produce thereof, as the Lord
Chancellor shall direct. (B. L. C. Act,
1849, s. 130.)

No title to any real or personal estate
sold under any bankruptcy shall be im-
peached by the bankrupt, or any person
claiming under him, in respect of any de-
fect in the fiat or petition for adjudication,
or in any of the proceedings under the



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POWEB OVER BANXRUPT'S ESTATE. 151

mmCytLnless the bankrupt shall within the didypro-
time allowed by this Act have commenced '^'^^**^'
proceedings to dispute, dismiss, or annul
the fiat, petition, or adjudication, and duly
prosecuted thesame^ (B. L, C. Act, 1849,
8. 131.)

After the adjudication of bankruptcy in Tkeemrt,
arty case shall have been advertised in the J^^^**
London Gazette, it shall be lawful for^^^
the Court to order any treasurer or other <tc.,ora^
officer y or any banker, attorney, or solicitor, ^^t^"^'
or other agent of the bankrupt, to pay and ^^^ic.
deliver over to the Official Assignee, or to
the Bank of England, to the credit of the
Accountant in Bankruptcy, according to the
rules which may be in force with respect
to payment into the Bank of England of
moneys due to any bankrupt's estate, all
moneys or securities for money in his cus-
tody, possession, or power as such officer or
agent, and which he is not by law entitled
to retain as against the bankrupt or his
assignee. (B. L. C. Act, 1849, s. 132.)

All payments really and bond fide made paymmu,
by any bankrupt, or by any person on his ^j^^^^
behalf, b^ore date of the fiat or the filing «*c.. «c«r^
of a petition for adjudication of bankruptcy, u^^}*^
to any creditor of such bankrupt, and all ^r^^^d
payments really and bond fide made to any a^amsigoods
bankrupt before the date of the fiat or the %^^
filing of such petition, and all conveyances gj*^^^'^*
by any bankrupt bond fide made and exe- norwti^ of
cuted before the date of the fiat or the filing b^^Sm^u^,-
of such petition, and all contracts, dealings
and transactions by and with any bankrupt
really and bond fide made and entered into
before the date of the fiat or the filing of



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152



BANKRUPTCY ACT, 1861»



but nothing
herein to
give vcUiditv
to pai/merUSf
cfec, byicay
o/fravdur
lent pr^er-
tnce.



Bond fide
purchaiea
twttobe



such petition^ and all executions and attach'
ments against the lands and tenements of
any bankrupt bond Jide executed by seizure ^
and all executions and attachments against
the goods and chattels of any bankrupt bond
fide executed and levied by seizure and sale
before the date of the fi^t or the filing of
»uch petition^ shall be deemed to be valid,
notwithstanding any prior act of bank-
ruptcy by such bankrupt committed, pro^
vided the person so dealing with or paying
to or being paid by su>ch bankrupt^ or at
whose suit or on whose account such execu-
tion or attachment shall have issued, had
not at the time of such payment, conveyance,
contract, dealing or transaction, or at the
time of so executing or levying such execu^
tion or attachment, or at the time of mak-
ing any sale thereunder, notice of any prior
act of bankruptcy by him committed: Pro-
vided also, that nothing herein . contained
shall be deemed or taken to give validity to
any payment or to any delivery or transfer
of any goods or chattels made by any bank-
rupt, being a fraudulent preference of any
creditor of such bankrupt, or to any con-
veyance or equitable mortgage made or
given by any bankrupt by way of fraudulent
preference of any creditor of such bankrupt,
or to any execution founded on a judgment
on a warrant of attorney or cognovit ac^
tionem or judge's order obtained by consent
given by any bankrupt by way of fraudu-
lent preference. (B. L. C. Act, 1849, s.
133.)

No purchase from any bankrupt bond
fide and for valtmiile consideration, where



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AS TO WAERAl^T OF ATTORNEY. 163

the purchaser had notice at the time of such impeaoud
purchase of an act of bankruptcy by such ^^SL
bankrupt committed^ shall be impeached by JJS'^,"^
reason thereof unless a fiat or petition for ^c^umed
adjudication of bankruptcy shall have been twdve
sued out or filed within twelvemonths after S^o/^
sv^h act of bankruptcy. (B. L. C. Act, ^(^nkruptcy.
1849, s. 184.)

Every warrant of attorney to confess o^rtain
judgment m any personal action, given by auomey,
any bankrupt after the commencement ©/"S?^'
this Act^ and within tu)o months of the fil- ^^JJord«-.
ing of a petition for adjudication of bank- given wuhm
ruptcy by or against such bankrupt, and o/ filing
being for or in respect of (wholly or inf^^JSia^
part) an antecedent debt or money demand, ^*^-
and every cognovit actionem or consent to
a judge's order for judgment given by any
bankrupt, at any time after the commence-
ment of this Act, and within two months of
the fling of any such petition in any action
commenced by collusion with the bankrupt,
and not adversely, or purporting to have
been given in an action, but having been in
fact given before the commencement of any
action against the bankrupt, such bankrupt
being unable to meet his engagements at the
time of giving such warrant of attorney,
cognovit actionem, or consent [as the case
may be) shall be deemed and taken to be
null and void, whether the same shall have
been given by such bankrupt in contempla-
tion of bankruptcy or not. (B. L. C. Act,
1849, s. 135.)

If after the commencement of this Act warranto
any warrant of attorney to confess judg- trTc^^^
ment in any personal action^ or any cognovit "^^em,

H 8



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154



BANKBUPTCY ACT, 1861.



given bp
any trader
to be void,
unUuthe
same or a
copy thereof
beJUedt dsc^
vfithin
ttotnty-<m§
days after
the execution
theretf.



3 Geo. 4,



Jw^ge's
order ob-
tained by
coTisent given
by any
trailer de-
fendant to
be void,
unless the
same or a
copy thertqf
be fled
within



actionem in any personal action, shall have
been given by any such trader, and stick
warrant of attorney or cognovit actionem^
or a true copy thereof, shall not have been
filed with the officer acting as clerk of the
docquets and judgments in the Court of
Queen's Bench within twenty-one days next
after the execution thereof, in m/inner and
form provided by an Act passed in the third
year of the reign of His late Majesty King
George the Fourth, intituled " An Act for
preventing Frauds upon Creditors by secret
Warrants of Attorney to confess Judgment,''
every sttch warrant of attorney and cognovit
actionem shall be deemed fraudulent, null
and void, to all intents and purposes what-
ever; and if any such warrant of attorney
or cognovit actionem which sliaU be so filed
as aforesaid shall have been given subject
to any defeasance or condition, such de*
feasance or condition shall be written on the
same paper or parchment on which such war-
rant of attorney or cognovit actionem shall
be written, before the time when the same
or a copy thereof respectively shall befiled^
otherwise such warrant of attorney or cog-
novit actionem shall be null and void to all
intents and purposes whatever. (B. L. C.
Act, 1849, s. laa)

Every judges order made by consent
given after the commencement of this Act
by any su^ch trader defendant in any per-
sonal action, and whereby the plaintiff in
such action shall be authorised forthwith
after the making of such order, or at any
future time, to sign or enter up judgment,
or to issue or take out execution in such



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AS TO judge's ordeb, &c. 155

action, and whether such order shall be twerup-me
made subject to any defeasance or condition ^nk^^^
or not, in case the action in which such ''^^^^^^^
order shall be made shall be in the Court cogn<mt»
of Queen's Bench, or in case the ax^tion ^^^^'^^
wherein the same is made shall be in any
other court, a true copy of such order shall,
together with an affidavit of the time of
such consent being given, and a description
of the residence and occupation of the de-
fendant, be filed with the officer acting as
clerk of the docquets and judgments in the
said Court of Queen's Bench within twenty-
one days after the making of such order, in
like manner as a warrant of attorney in
any personal action and a cognovit ac-
tionem given by any defendant in any per-
sonal action, or copies thereof and affidavits
of the execution thereof respectively, may
be filed with the said clerk within the space
of twenty-one days after such warrant of
attorney or cognovit actionem shall have
been executed, otherwise such judge's order,
and any judgment signed or entered up
thereon, and any execution issued or taken
out on such judgment, shall be null and
void to all intents and purposes whatever ;
and the provisions respectively contained in
the said Act passed in the third year of the
reign of His late Majesty King George the
Fourth, intituled " An Act for preventing z Geo. 4,
Frauds upon Creditors by secret Warrants ^' ^^•
of Attorney to confess Judgment," and in
an Act passed in the Parliament holden in
the sixth and seventh years of the reign of
Her Majesty, intituled ^* An Act to enlarge 6 <fe r ric<.
the Provisions of an Act for preventing *' ^'



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156 BANKEUPTCY ACT, 1861.

Frauds upon Creditors hy secret Warrants
of Attorney to confess Judgment" for
liberty to file warrants of attorney and cog-
novits actionem^ or copies thereof with the
clerk of the docquets and judgments, and
for the said clerk to make certain entries
and search in relation thereto, and for
entering satisfaction thereon, and for fees
for search and filing and taking office copies^
shall extend and he applicable to every such
judge^s order, in like manner as to warrants
of attorney and cognovits actionem men-
tioned in the said Acts. (B. L. C. Act,
1849,8.137.)
Deeds and No deed, convcyaucc, assignment, surren-

i^^ments dcr, admission, or other assurance of or to

&Sb^?y . ^ '"'^^l^'f^Q solely to any freehold, leasehold,
Wit luibu copyhold, or customary messuages, lands, or

%^y!^^ tenements, or to any mortgage, charge, or

other incumbrance upon, or any estate, right,
or interest of and in, any messuages, lands,
tenements, or personal estate, being the
estate of or belonging to any bankrupt, or
part or parcel thereof, and which after the
execution of such deed, conveyance, assign-
ment, surrender, or assurance respectively
shall, either at Law or in Equity, be or re-
main the estate and property of such bank*
rupt, or of the assignee appointed or chosen
under any bankruptcy, and no power of
attorney, writ of supersedeas and pro*
cedendo, order, certificate of conformity^
affidavit, or other instrument or writing
whatsoever relating solely to the estate of
effects of any bankrupt, or to any paH
thereof, or to any proceeding under ang
bankruptcy, and no affidavit, bond, or othef



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LAST EXAMINATION. 157

proceeding under this Act, and no advertise^
ment inserted in the London Gazette
relating solely to matters in Bankruptcy^
shall be liable to any stamp duty, or to any
other duty whatsoever, save and except such
stamp duty as is mentioned in Schedule C.
to this Act annexed. (B. L. C. Act, 1849,
s. 138.)
As to the last examination :
140. The Court shall, forthwith after the court
meeting for the choice of an assignee by the ^^J^ for
creditors, appoint a public sitting on a day not last exam-
later than sixty days from the date of such^iiStion
meeting, and shall give notice of such sitting c^^;
in the London Gazette, and in such news-
papers as the Court shall direct, for the bank-
rupt to pass his last examination, and also,
unless the Court shall in any case otherwise
direct, to make application for his discharge ;
but the Court shall have power to enlarge the
time appointed for such sitting, or to adjourn
the same.*



* Under the B. L. C. Act, 1849, s. 104 (not repealed,
except virtually as to the period specified), the Court
forthwith, after the adjudication was confirmed, ap-
pointed " two public sittings of the Court for the bank-
rupt to surrender and conform, the last of which sittings
shall be on a day not less than thirty days and not more
than sixty days from such advertisement" (of the
adjudication). The present section will enable the
Court in small and unimportant cases, — the number of
which will increase very largely under the operation of
this Act, — materially to abridge the term limited for the
last examination. The provision that where the Court
shaU so direct, the sitting for the last examination
shall be also that for determining the question of the
bankrupt's discharge, will also, in the same class of
cases, materially facilitate the progress of business and



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158



BANKRUPTCY ACT, 1861.



Sankrupti
apprehmded
by 1



adjawm
Uut exami-
nation
tine die.



IfUvnkrwf^
in prison or
cuitodpt
Court majf
appoint a
person to
attend him
with books,
papers, dec,
to enable
kim to
prepare
balance
sheet.



If any bankrupt apprehended by any
warrant of the Court shally within the time
allowed for him to surrender, submit to be
examined^ and in all things conform, he
shall have the saine benefit as if he had
voluntarily surrendered. (B. L. C. Act,
1849, s. 161.)

It shall be lawful for the Court at the
time appointed for the last examination of
the bankrupt, or at any enlargement or adr
joumment thereof, to adjourn such examina-
tion sine die ; and in such case the bank-
rupt shall be free from arrest or imprison-
ment, for su^h time {if any) as such Court
shall from time to time, by endorsement
on the summons of the bankrupt, think
fit to appoint. (B. L. C. Act, 1849, s.
162.)

Whenever any bankrupt is in prison or
in custody under any process, attachment,
execution, commitment, or sentence, the
Court may appoint a person to attend him
from time to time, to produce to him his
books, papers, and writings, in order that
he may prepare his balance sheet, and show
the particulars of his estate and effecU
previous to his last examination and di«-
covery thereof (B. L. C. Act, 1849, &
163.)



economise expense. At present there are very ro^sssf
last examination sittings, at which the bankrupt pa9|K
quite as matter of course, scarcely a word being saidoft
the subject by any party, and at which, for anyth]]||
that ever appears, the bankrupt might with entifl
expediency have also received his discharge. Tkl
present section will enable the Court to remove tilil
fruitful source of delay, vexation, and expense.



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STATEMENT OP ACCOUNTS. 159

141. The bankrupt shall prepare such state- Thebank-
ment of his accounts, and in such form as^^^ad
general orders or as the Court in any case shall ^^inaiit
direct, and shall subscribe such statement, and of aooounts.
file ike same in court ten days at least before

the day appointed for the last examination, or
adjournment thereof; and such statement may
before such last examination be amended from
time to time as occasion shall require and the
Court shall direct; and the bankrupt shall
make oath of the truth of such statement,
whenever he shall be duly required by the
Court so to do ; and the last examination of
the bankrupt shall in no case be passed unless
his statement shall have been duly filed as
aforesaid.

142. The statement of accounts, when filed statement
in court, shall be open to the inspection of all tobe^TOn*
creditors, who may take copies of and extracts ^^^
from the same, subject to such regulations as
general orders shall direct; and an abstract
thereof shall be printed, and a printed copy

of such abstract shall be sent by post with-
in a week from the filing thereof, by the
Official Assignee, to each creditor who has
proved.

143. In the preparation of such statement offidai

of his accounts the bankrupt shall be assisted to^^^in
by the Official Assignee, who shall prepare and ^g^^
file in court, together with such statement, a ment, and
report upon the state of the affairs of the there^with
baiikrupt, setting forth such facts and particu- I^^^q
lars as may be required by the Court, or as it J^^ ^.^
shall in the opinion of such assignee be im- affairs.
portant for the Court to be informed of: Pro- Power to
tided that if it shall in any case appear to the ^Lnce
Court that there are special circumstances ren- *° ba^^^rupt



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n



160 BANKRUPTCT ACT, 1861.



to make derfng it neccssarj that the bankrupt should
ment^er be assisted in the preparation of such statement



of accounts by some person other than such

stances. OflScial Assignee, the Court may nominate
some such person to assist the bankrupt in
that behalf, and may allow to such person, out
of the bankrupt's estate, such remuneration as
to the Court, upon the taxation of such per-
son's bill of costs, shall seem just ; and in
such case the statement so prepared shall have
appended thereto a certificate signed by the
person appointed to assist the bankrupt in the
preparation thereof, expressing his approval or
disapproval thereof, and the particidars and
reasons of such disapproval.
As to proof of debts :
When and 144. Every creditor of the bankrupt may,
w debts ^£^g^ adjudication, prove his debt, by delivering
proved. q^ Sending through the general post, before
the appointment of the creditors' assignee, to
the Official Assignee, and after such appoint-
ment to the creditors' assignee, a statement of
such debt, and of the account, if any, between
the creditor and the bankrupt, together with a
declaration, signed by the creditor, appended
thereto, that such statement is a full, true, and
complete statement of account between the
Declaration creditor and the bankrupt, and that the debt
o7iebt!^ thereby appearing to be due from the estate of
the bankrupt to the creditor is justly due ; and
all bodies politic and public companies incor-
porated, or authorised to sue or bring actions,
may prove by an agent, provided such ageni
shall in his declaration declare that he is sudk
agent, and that he is authorised to make sudi
proof; and such declaration, signed by su^
creditor and agent respectively as aforesaid,'



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PEOOP OF DEBTS* 161

shall he in such form as general orders shall
direct.*

145. Any person who shall wilfully and cor- ^J^^^^
ruptly make any declaration for proof of debt j
as aforesaid, knowing the same, or the state- '
ment of account to which the same shall be
appended, to be untrue in any material parti-
cular, shall be deemed guilty of a misdemea-
nor, and shall be liable to undergo the pains
and penalties imposed upon persons guilty of
wilful and corrupt perjury.

If one or more of the partners of a firm ^jgjf 2Si«««
he adjudged bankrupt, any creditor to whom to t



the bankrupt is indebted jointly with the ^^xoe
other partners of the firm, or any of them, S^;^
shall be entitled to prove his debt, for the ?•^^*2P^
purpose only of voting in the choice of^amgnea,
assignees, and of being heard against the
allowance of the bankrupt's certificates, or
of either of sv^h purposes ; but such credi-
tor shall not receive any dividend out of
the separate estate of the bankrupt until
all the separate creditors shaU have received
the full amount of their respective debts.
(B;L. C. Act, 1849, s. 140.)
146. Every creditor of the bankrupt may Proof in
also after adjudication prove his debt, by depo- SSjSw,

* The provisions in this section, facilitating the proof
of debt, are new, and will satisfy a demand long and
^nrgeniij pressed by the commercial classes, that the
tiffle of creditors shonld not be wasted in perhaps dis-
tant attendances at a Court of Bankruptcy to make
fonnal proof of debts, as to which there is no doubt
wliatever. Even the alternative attendance before an
Affidavit Commissioner is felt, under such circum-
stances, to be a vexatious aggravation of the money

1088,



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16^



or before
a Registrar,
or by
affidavit.



Official
Assignee
to examine
all state-
ments of
account;
and make
out list of
creditors
who have
proved.



Power to

examine

upqnoatb.

alleged

creditors,

&c.



BANKRUPTCY ACT, 1861.

^tion in court or in chambers, or before ft
Begistrar at any meeting of creditors elsewhere
than in court, or by aflSdavit^ upon his own
oath, or upon that of any clerk or other person
in his employment ; Provided that where such
deposition or affidavit shall be made by any
other person than the creditor, the deponent
shall, in his deposition or affidavit, set forth
that he is duly authorised by his principal to
make the deposition or affidavit, and that it
is within his own knowledge that the debt
was incurred, and for the consideration stated,
and that to the best of his knowledge and
belief the debt still remains unpaid and un-
satisfied.*

147. The official or creditors' assignee, as
the case may be, shall examine all the state-
ments of account aforesaid, and compare the
same with the books, accounts, and other docu-
ments of the bankrupt, and shall from time to
time make out a list of the creditors who have
proved their debts, stating the amount and
nature of such debts, which list shall be open
to the inspection of any creditor who has proved
under the estate.

148, The Court may, on the application ci
the assignee, or of any creditor, or of the hexk^
rupt, or without any application, examine upoii
oath or otherwise any person tendering or wbd
has made a proof, and may summon any persOY
capable of giving evidence concerning mi^



* The proviso in this seotion will enable ci _

xnanagiDg clerks, and others, who in a large propogetlpL
of cases are the persons most immediately and aofliif
rately cognisant of the facts, to prove debta on the ||il i
of their principals.



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PROOF OP PEBTS, 163'

proof, and, in like manner, where the debt is
tendered on affidavit or statement, as herein-
before provided, may summon and examine on
oath or otherwise the person who has made the
affidavit or statement, and any other person
capable of giving evidence concerning the debt
sought to be proved.

Every person mth whom any bcmkrupt ^3^^^^
shall have really and bond fide contracted rapeeto/
any debt or demand before the isminy oft^Sa^



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