William Rainey Harper.

The Bengal and Agra annual guide and gazetteer, for 1841- online

. (page 39 of 162)
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the examination and cross-examtioa of any person making or
joining in nuch affidavit or solemn affirmation.

XXXVI. And be it further enacted, that when there has been
vutnal credit given by the insolvent or insolvents and any other per-
son or persons, one debt or demand may be set against other, and
all such ddits, dnes, and claims as be proved under a commission
of bankruptcy, according to the provisions of an act passed in the
sixth year of the reijirn of his present Majesty, intitulea ' An Act to
amend th^ kat$ relating to JBattkrupts,* or may hereafter be proveable
onder SDch oomraisiun by virtue of any act hereafter to be passed,
may also be proved upon any such hearing as is hereinbefore men-
tioned, in the same manner, and subject to the like deductions con-
ditions, and provisions, as in the said last mentioned act or set forth
and prescribed *

* James Young and others, appellants, and the Bank of Bengal respon-
denU. 1 Dea, C. B. 632. 8. C. 1 Moore Ind. App. 87.

* Palmer and Co. having borrowed a large sura of the Bank of Bengal .
deposited Company's pa|}er with the Bank to a great amount as a coTlu-
tenil security, accompanied with an agn^mont In writing, authorizing
the Bank, in default of a repayment of the loan by a given day, to sell the
Company's paper for the rennbursement of the I»ank, rendering to Pal-
mer ancl Co. any surplus. '

Before default was made in repayment of the loan, Polmrnr and Co.
were declared insolventa under the Indian Insolvent Act, 9 Geo. 4. c. W,
hj the 'iS Section, of which It was declared, that when there had been
mutoni credit given by the insolvents and any other person one debt or
demand might vo set off against the other, and all such debts as might
be proved under a eommuiion of bankrmituy in Bruland ml^ht be prov«
ed in the same JuanncT under the 1 n<fian Insolvent Act. At the lime of
the adjadicstion of insolvency, the Bnnk were also holders of two pro-
missory noto of Palmer aiid Co., which thoy had discounted for tneia

Hearing of pe-

Insolvent or ere*
ditor may he
heard in person
or by counsel.

Court may order
insolvent in cus-
tody to be
brought up :
Aud summon
him, his wife,
and others,

known or sus>
pected to postt-
esd any effects of
or to be iudebt-
ed to insolvent ;
or capable of
giving informa-
tion heneficiul to
creditors ;
and examine all

{larties appear-

Expenses of
witnesses, to bo

Where creditor
or other person
Is distant above
loo miles, or in-
capable of at-
tending, Court
receive affidavit.
And permit in-
terrogatories to
be fUecL

Mutual debts
may be set-off
an.i all debts
proveable in
cases of bank-
ruptcy, under
« O. 4 c 16, or
subsequent acts,
may be provad
upon hearing.

Digitized by


• GEORGE IV. Ctp. 71.


Credltott mf
claim felthoufb
omitted in tehe-
dul«, or iriMTtMl
for let! than

Id caae of ad-
judication of act
of inaoltr«ney,
and no schedule
filed, and claim
oktfected to,
•ame to be heard

Order of Court
upon hearing,
that insolvent
entitled to the
benedt of the

for discharge,
to dismiss or a-
mend petition
or schedule,
a4Joum hearing,
refer to exami-

Remand insol-

eommit for debt
if not in cttsto-

cancel or renew
order for main-

Public notice to
be given by as-
signee of orders
•n hearing.

Discharge to
entitled to sums
payable by way
•f annuity.

XXX VH. And be it further enacted, that when ftny petition
shall have been presented under this act to any of the said Courtc
for the relief of insolreut debtors, either br an insotrent or by any
creditor or creditors of such insolvent, it shall be lawful for any per*
son or }»erson8 to whom sach insolvent shall be iud^Ked, at any time
before or alter the discharge of such insolvent, to make claim upon
the estate of such insolvent, and to prove his or their debt or debts,
whether due by such insolTeiit solely, or jointly with any other per*
son or persons, and shall be entitled to and receive a dividend thereon
rateably wiih the other creditors of the said insolvent, although th«
name of such creditor may have been wholly omitted by the said in-
solvent, in his or her schedule, or may have been inserted for a smal*
ler amount than the debt really due to such person ; And in tlie case
of an adjudication of an act of insolvency nnder this act, then ml*
though no schedule shall have been filled by such insolvent, and
where any ohjection to the existence or amount of such debt, so
claimed, shall be made by such insolvent or any creditor, such Court
shall hear the same, and make such order thereon as may seem mt^
and just.

XaXVIII. And be it further enacted, that upon the hearing of
any such petition it shall be lawful for the Court to adjudge that the
insolvent is eniiiled to the benefit of this act, and to order his imroe*
diaie discharge from custody accordingly, or to dismiss or amend th«
petition, or to order the insolvents to amend his, her, on their sche-
dule or schedules, or to adjourn the furtlier hearing of the petitimi
until a further day,T>r to make a reference to the examiner, or other
proper officer of the Court, to make inquiry into any matter of ac-
count, or into the truth of the schedule or schedules, and to report
thereon to the Court ; and it shall also be law ful for the ( ourt to re*
maud the insolvent qt insolvents to prison, until the further hearinfp
of the petition, or until final order be made in the matter thereof, or
to commit the insolvent or insolvents to custody for any debts
if he, she, or they shall not be in custody at the time of the hearing,
and to cancel or renew any such certificate as is hereinbefore
mentioned, which may have been given for the purpose of protecting
the insolvent or insolvents from arrest, or to make any fresh order for
protecting the insolvent or insolvents from arrest, until final oider
shall be mads in the matter of the petition before the Court, and to
order ancl direct that the assignee or assignees shall make aomo
reasonable allowance for maintenance until such final order, the
amount of which shall be fixed by the Court ; and shall not exceed
five sicca rupees per week : Provided always that in case of tho
Court dismissing any petition, the acts, previously done by the asai|^-
nee or assignees, or any person or persons acting under his or their
authority, in pursuance of this act, shall be valid; but in such case
the court shall make such order for re-assigning and redelivery to the
insolvent, the residue of his or her estate and eflTeets, as the case
shall require, whereupon the same shall be revested in such insol-
vent accordingly .

XXXIX. And be it further enacted, that the Court, hi which any
order shall be made upon any such hearing, as is hereinbefore <nen*
tioned, shall also order that the assignee or assignees shall give such
notice of such order having been made as to the Court shall seem fit
and convenient.

XL. And be it further enacted, thatthedischargeof any such
insolvent so adjudicated as aforesaid, shall and may extend to any
sum and sums of money, which shall le payable by way of annuity
or otherwise, at any future time or times, by virtue of any bond, co-

satisfying the principal and interest due on the loan, produced a eonal-
derabie surplus.

In an action by the assignees of Pahner and Co. against the Bank to
r«TOver the amount of this surplus.

htld, that the Bank could not set off thesmountofthe twoprosftis-
sory notes, snd that the case did not come within the clause of mutual
Ctiuit In the Bankrupt Act.

Digitized by




Tenant, or other security whatsoeTer ; and that ererj person and per-
sons who would be a creditor or creditors of such insolTent for such
sum or siuns of money, if the same were presently due» shall be ad*
missible as a creditor or creditors of sucn insolvent for the value of
snch sum or sums of money so payable as aforesaid ; which value
the said Court shall, upon application at ony time made in that be-
half, ascertain, regard beine had to the original price given for such
sum or sums of money, deducting therefrom such diminution in the
value thereof as shall have been caused by the lapse of time since the
grant thereof to the time of filing such insolvent's petition; and such
creditor or creditors shall be entitled, in respect of such value, to the
benefit of all the provisions made for creditors by this act, without
prejudice nevertheless to the respective securities of such creditor or
creditors, excepting as respects such insolvent's discharge under this

XLI. And be it further enacted, that if at the time of anj such
hearing and order any suit or action shall be pending a^inst the
insolvent or insolvents in any Court within the British territories in
the East Indies^ or for any debt, claim, obligation, or demand admit-
ted in the schedule of the insolvents, or disputed as to amount only.
every plaintiff in such suit or action shall discontinue the same, and
shallpay all costs incurred subsequent to his having notice of such
hearing and order ; and in case oFsuch discontinuance, the insolvent
or insolvents shall not, by virtue of any suoersedeas, nonsuit, or iudg-
ment as in case of nonsuit in any sucn suit or action, be relieved
from the debt, claim obligation, or demand, for which it shall have
been brought, or entitled to claim from the plaintiff or plaintiffs any
of the costs of any such suit or action incurred before the plaintiff or
pUuntiffs had notice of the hearing and order aforesaid.

XLU. And be it further enacted, that every such assignee as
aforesaid, shall, with all convenient speed, take possession, by him-
self, or by means of messengers or the Court, or by other fit and
proper persons, of all the real and personal estate and effects of the
msolvent of which immediate possession may be obtained, and shall
use his or her best endeavours to seize, obtain, recover, and reduce
into possession as speedily as possible, the rest of such estate and
effects, and all debts, claims, and choses in action, which by such
assignmtnt he shall have been empowered to obtain, recover and get

XLI11. And be it further enacted, that if any such insolvent or
insolvents as are before mentioned, at the time of filing his, her, or
their petition, or at the time of any such adjudication ofan act of in-
solvency as aforesaid, shall, by the consent and permission of the true
owner thereof, have in his, her, or their possession, order or disposi-
tion, any goods or chattels whereof, he, she, or they is or are reputed
owner, or of which he, she, or they have undertaken the sale, alter-
ation, or disposition, as owner, the Court in which the petition shall
bAve been filed, or by which such adjudication shall have been pro-
nounced, shall have power to sell and dispose of the same for the bene-
fit of the creditors of such insolvent or insolvents ; provided that no-
thing herein contained shall invalidate or affect any transfer or as-
signment of any ship or vessel, or any share thereof, made as a se-
curity for any debt or debts, either by way of mortgage or assignment,
according to the provisions of an act of rarlianient made in the sixth
year of the reign of his present Majesty, and intituled J,n Act /or the
reaulerma of Hritish vesteU.

XLIV. And be it further enacted, thai if any insolvent or insol-
vents shall have mortgaged, pledged, pawned, or deposited any real
or personal estate, or any effects, deeds, or written instruments, with
a reservation to himself, herself, or themselves ofa power of redeem-
ing the same, his, her, or their assignee or assignees shall have the
laxne right and power of redemption, as the insolvent or insolvents
would have had, if the assignment had not been made.

XLV. And be it enacted, that if any insolvent or insolvents
shall at the time of filing his, her, or their petition for relief in any
such Court for the relief of insolvent debtors, or at the time of ony
such adjudication of an act of insolvency as aforesaid, or at any time


And creditor to
rank according
to value to be
aseertained by

Actions pend-
ing, on bearing,
or for claims
admitted in the
schedule, or
disputed as to
amount only, to
be discontiuued.

Assignee to take
immediate pos-
session and^ re-
cover insol-
vent's estate.

The Court may
sell the reputed
property of the


Not to affect
any transfer of
a ship duly

Assignee may
redeem any pro-
perty of insol-
vents, redeem-
able by them.

"Where Insol-
vent beneficially
entitled to Gov-
ernment or
other pttbUo

Digitized by


9 GEORGE IV. Cap. 73.

iFUtT It.

stock in Gr««t
Britain or Ire-
land. Court may
order transfer
thereof to aa-

Proriao, that
transferree be
described aa as-

S' piee, and no
ridends pay-
able or fntore
transfer made,
except under
power executed
oefore an oiBcer
of Court and an-
other, and seal

Assignee, with
approbation of
Court and eon-
sent of creditors
in India to cer-
tain amount,
may compro-
mise debts due
to insolrent.
and submit to
arbitration ge-

Assignee may
with like ap-
probation and
consent prose-
cute and defend
actions at law
and in equity,
and defray cosu
•ut of estate.

Court may al-
low them to
join partners
who hare not
joined in peti-

Release by
partner void.

But not liaUe
to costs of suit.

Assignee may
execute powers
vested in insol-

Assignee to
sell the proper-
ty, subject to
direction and
control of the

Court may
consider sU cir-

before he or she shall become entitled to his or her final discharge ac-
cording to this act, have any Goremmcut stock, funds, or annuitiea,
or any of the stock of any public Company either in England, Sect'
land or Ireiandy standing in his, her, or their own name or names, in
his, her, or their own right, it shall be law ful for toch Court, n heuerer
it shall deem fit so to do, to order all persons whose act or consent is
thereto necessary, to transfer the same into the name or names of such
assignee or assignees as aforesaid, and all snch persons, whose set or
consent is so necessary as aforesaid, are hereby indemnified for all
things done or permittea pursuant to such order ; Provided always,
that in all transfer the name or names of any such assignee or as*
signees, the transferee or transferees shall be described as assiernee or
assignees of tlie esute and effects of the insolvent ; and no dixidend
shall be payable to, nor any future transfer made by any person of
any such stock, funds, or annuities, except under a power of attorney
in the nsualform required for the receipt of dividends upon or trans-
fer of such stock, funds, and annuities respectively, duly executed by
•och assignee or assignees, and attested by two credible witnesses, one
of whom shall be an officer of such Court for the relief of insolvent
debtors^ and to which attest ati o n the seal of such Court shall be af-

XLVl. And be it further enacted, that after the hearins of any
such petition and schedule, as hereinbefore mentioned, it shall be law.
ful for the assignee or assignees, by and with the approbation of such
Court, and by and with the consent of any creditor vihose claims
after such hearing shall appear to amonnt to more than half of all the
debts due from the insolvent to persons resident within the Brititk
territories in the East Indies, to take such reasonable part of any
debts due to the petitioner or petitioners, as may by composition l>e
gotten, in full discnarge of such debts ; And to submit to arbitration
any difference or dispute between the assiji^nee or assignees, and any
other person or persons, for or on account or by reason of any thing
relating to the estate and effects of such prisoner.

XL VII. And be it further enacted, that il shall be lawful for the
assignee or assignees, by and with the like apprt^bation and consent,
to commence and prosecute or defend any suns or actions at law or
in equity, which the insolvent or insolvents might hare commenced
and prosecuted or defended, and to defray the costs to which he or
they may be put, in respect of such suits or actions, out of the pro-
ceeds of the estate and effects of the insolvent or insolvents ; and if
there be any partner or partners of the insolvent or insolvents who
hath not or nave not joined in the petition, it shall be lawful for the
Court to authorize the assignee or assignees tojoin such partner or
partners with himself or themselves as plaintiffs in such suit or ac-
tion : and if such partner or partners shall execute any release of
the debt or demand for which such suit or action is brought, the
release shall be void : Provided always, that such partner or part-
ners, if he, she, or they shall take no part in the prosecution or de-
fence of such suit or action, shall not he liable to pay costs in respect
of the some.

XLVl II. And be it further enacted, that all powers rested in
any such insolvent or insolvents as are aforementioned, which he,
she, or they might lawfully execute, for his, her, or their benefit,
might be executed by his, her, or their assignees, for the benefit
or his, her, or their creditors.

XLIX. And be it further enacted, that from time to time, as
possession is obtained of any of the estate or effects of any insolvent
or insolvents, the assignee or assignees shall with all convenient
speed make sale of the same ; subject nevertheless to the direction
and control of the Court by authority ol which he or they shall have
been appointed, in case any application shall be made to such Court
by any insolvent, or any trediior or mortgagee, in all which cases
such Court shall have full power and authority to delay or postpone
the sale of any property, and to moke such other order regulating
the same as to such Court shall seem meet.

L. And whereas, the insolvenu may be entitled to annuities for
their ovvn lives, or other uDccrtain interests, or to rev ersiousry or

Digitized by





oontingent interesU, or maj hare made advance of money for the
cakivation of lands, or may be interested in property in other ways,
in which the immediate sale thereof for payment of their debts may
be Tory prejudicial to them and to their creditors, and it may be pro-
per in some cases to defer the sale of such property, and to put it
under temporary management, or to authorise the rauing of money
by way of mortgas;e for payment of the debts or part of the debts of
an insolvent, and for defraying the expences attendin^r the execntion
of this act, instead of selling for such purpose ; Be it enacted, that
in all such cases it shall be lawful for tlie said Courts for the relief of
insoWent debtors, at any time, to take into consideration all circum-
atances affecting any property of the prisoner which shall have been
assigned under the provisions of this act : and if it shall appear to
any such Court, that it would be reasonable to make any special or-
der touching the same, it shall be lawful for such Court to do ; and
to direct that so much of the said property as it may be expedient not
to sell immediately, according to the provisions of this act, shall not
be so sold ; and from time to time to order and duect in what man-
ner such property shall be managed, for the benefit of the creditors
of such insolvent, until the same cai^ be properly sold, or until pa^r-
ment of such creditors be effected, according to the provisions of this
act ; and to make such order touching the sale or disposition of such
property as to such Court for the relief of insolvent debtors may
teem reasonable and beneficial, and upon such terms and conditions,
with respect to the allowance of interest on debts not bearing inter-
est, or other circumstances, as to such Court shall seem just ; and
if it shall appear that the debts of any such insolvent or insolvents
can be discharged by means of money raised by way of mortgage on
any of the said property of the said insolvent or insolvents, instead of
raising the same by sale, it shall be lawful for the said Court so to
order, and to give all necessary tlirections for such purpose ; and gen-
erally to direct all things which may be proper for the discharge of
the debts of such insolvents, as may most be consistent with the in-
terest of such petitioner or petitioners, and of his, her, or their credi-
tor or creditors.

LI. And be it further enacted, that the assignee or assignees of all
such insolvents as are hereinbefore mentioned, shall keep accounts of
the property, debts, and credits of such insolvents, whether belong-
ing or due to or from such insolvents solely, or jointly with any
other person, or persons wherein they shall enter all property of
the insolvents received by them, and all payments made by them ;
Ufakh accounts any creditors may inspect at all seasonable time ;
and it shall be lawful for the Courts for the relief of insolvent debtors,
at all times to summons the assignees before them, and require them
to produce all books, papers, deeds, writings, and other documents
in their possession, which in any way relate to the petition of the
insolvent or insolvents ; and if such assignee or assignees so sum*
moned shall not come before such Courts respectively at the time
appointed, or shall not bring with him or them such documents as are
aforementioned, it shall be lawful for such Courts respectively, to
issue attachments, and to cause such assignee and assignees to be
brought before them, and to commit such assignee or assignees to
prison until he o? them shall submit to the Court, by which he or
they shall have been summoned.

LI I. And be it further enacted, that whenever it shall appear by
the accounts of any assignee or assignees that a dividend may be
beneficially made amongst the creditors, it shall be lawful for any
Co art for the relief of insolvent debtors, to summon before it the
assignee or assignees, and to direct that such public notice, as to
the Court may seem meet, shall be given of a further hearing of the
petition on a certain day, for the purpose of making a dividend :
and on the day so fixed, the insolvent or insolvents, and assignee or
assignees, and any creditors who shall be willing so to do, shall at-
tend the Court, and all objections to the schedule of the insolvent
or insolvents, and to the accounts or conduct of the assignees, and
any claims of any creditors which shall not have been previously
determined, ahall be ilieu heard and determined, either by such

eumstanoe af-
fecting property
of insolvents ;

may make any
special order
touching the

May defer the
sale of proper-
direct the ma-
nagement of it
until sale.

regulate the sale
or disposition as
to allowance of
interest on debts
not bearinff in-
terest or other-

may order pro-
perW to be
mortgaged in-
stead of being

and give gene-
ral directions as
to discharge o£

Assignee to
keep accounts of
estates i

open to credit^

Courts may
summon assig-
nee, and require
Erodnction of
ooks, &c

Assignee liable
to attachment
for disobedience

When assig-
nee's accounts
shew that divl-
dend may bo

Court to sum-
mon assignee,
and direct no-
tice of hearing,
all parties may
attend, and ob-
jection to sche-
dule, accounts
and disputed
claims beard

Digitized by


GEORGE IV. Ctp. 73.

[past u.

end determined,
or referred to

And insolvent
and others exa-

and dividend
declared or

other order

Mo dividend to
joint creditors
out of separate
estate until

separate credi-
tors paid in

nor d converso.
Dividend to se-
parate creditors
according to in-
in joint estate.
Unless the Court
certifies that
all the property
and creditors are
in India,
Ihen until after
18 month's no-
tice of petition
in Lonoum Oa-

Assignee to re-
serve l-3d of
propertv to be
disposea of as
Court shall or-
der, and divi-
dend made of
S-Srds only.
After 18 months
assignee to ap-
ply to Court for
and proceed to
distribute a-
mount reserved
and found in
hand so as to
place all credi-
tors, Indian and
British, on equal
rateable divid-
end be receivetL
Whether debt
in schedule or

Where creditor

Online LibraryWilliam Rainey HarperThe Bengal and Agra annual guide and gazetteer, for 1841- → online text (page 39 of 162)