1813: 54 George 3 c.23: An Act to amend an Act of the Fifty-third Year of His Majesty’s Reign, intituled An Act for the Relief of Insolvent Debtors in England.
[10th December 1813.]
WHEREAS an act passed in the fifty-third year of His Majesty’s reign,
intituled An Act for the Relief of Insolvent Debtors in England, and it is expedient to amend the said act; be it therefore enacted and declared by the King’s most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons, in this present parliament assembled, and by the authority of the same,
[Place for holding the Court.]
that it shall be lawful for the commissioner appointed Or to be appointed by virtue of the said act to hold the Court established by virtue of the said act, and to exercise his office as occasion shall require, in any part of England; but nevertheless such commissioner shall at all times have an office in some convenient place, either in the cities of London or Westminster, or in the county of Middlesex, within the bills of mortality, for the dispatch of business.
[Taking oath previous to petition repealed.]
II. And whereas it is required by the said act that every prisoner applying by petition to the said Court to be discharged by virtue of the said act shall previously take the oath required by the said act, and that such petition, with the schedule in the said act mentioned, and the said oath, shall be filed as in the said act mentioned; and it has been found inconvenient that such oath should be taken previous to such petition, and the order thereon; be it therefore further enacted, that so much of the said act as requires such oath to be taken before the presenting of such petition, and to be filed therewith, and that notice thereof should be given as provided by the said act, be and the same is hereby repealed from and after the passing of this act.
[Petition to contain an offer to take oath.]
III. And be it enacted, that instead thereof, from and after the passing of this act, such petition shall contain an offer to take the oath required by the said act, in such form as the circumstances of the case shall require; and that the said oath shall be taken upon or after the examination of such prisoner under the said act, and shall thereupon be filed as the said act directs; and that the notice required by the said act to be given upon the order made on such petition shall not extend to such oath: Provided always, that in all cases in which such oath shall have been taken before the passing of this act, the same shall be of the same force and effect as if this act had not been made, and the said Court shall proceed therein accordingly if the said Court shall think fit.
[Notices under recited act how to be given.]
IV. And be it further enacted, that in all cases in which notices of the petition of any prisoner for discharge under the said act, and of the schedule of such prisoner, and a copy of the order on such petition, are required by the said act to be served on creditors or persons claiming to be creditors of such prisoner, it shall be lawful for the Court established by virtue of the said act to dispense with such service, and to order that notice of such several matters may be in the form or to the effect expressed in the schedule to this act marked (A.), or in such other form or to such other effect as the said Court shall direct, and that such notice may be given either by advertisement in the London Gazette or other newspaper or newspapers, or in such other manner as the said Court shall see fit; and it shall be lawful to comprise notices on behalf of several prisoners in the same advertisement or instrument, if the said Court shall so order; and it shall be lawful for the said Court either to direct lists of the creditors, or persons claiming to be creditors of each of such prisoners, to be annexed to such notice, or to direct that such notice shall refer to the schedule delivered by each of such prisoners, filed in the proper office of the said Court; and such notice so given according to the order of the said Court shall be deemed sufficient notice to the creditors described in such list, or described in such schedule, as the case may be, any thing in the said act to the contrary notwithstanding; and it shall in like manner be lawful for the said Court to order any other notice required or authorized by the said act or by this act, to be given by advertisement in any newspaper or newspapers, or in any other manner, as to the said Court shall seem fit.
[Defective notices to be remedied.]
V. And be it further enacted, that in case of defect in the form or manner of service of any notice required or authorized by the said act or by this act, or in the insertion of such notice in the London Gazette, or in any newspaper, or in any mode of notice ordered by the said Court, it shall be lawful for the said Court from time to time to adjourn the hearing of any petition, and to make such further order respecting the same, or respecting such notice, as to the said Court shall appear to be reasonable.
[Rate to be paid for advertisement.]
VI. And be it further enacted, that in case any advertisement to be inserted, under the authority of the said act or of this act, in any newspaper, shall contain more than fifty words, there shall be paid for the insertion thereof at the rate of sixpence for every ten words contained in such advertisement beyond the number of fifty words, over and above the sum of three shillings mentioned in the said act, and no more.
[In adjudications creditors need not be specified.]
VII. And be it further enacted, that in the adjudication of the said Court that any prisoner is entitled to the benefit of the said act and the order thereon, it shall not be necessary to specify the several creditors and persons claiming to be creditors of such prisoner, as required by the said act; but it shall be sufficient, if the said Court shall think fit, to refer in such order to the schedule sworn to by such prisoner, specifying such creditors or persons claiming to be creditors of such prisoner either generally or specially, or with such exceptions as the circumstances of the case shall appear to the Court to require.
[Court empowered to order prisoners to be brought before it.]
VIII. And be it further declared and enacted, that the said Court shall have full power, and the same is hereby authorized, by any order for that purpose, to require the sheriff or sheriffs, keepers or gaolers of any prison, or any other officer haring the custody of any prisoner, to bring before such Court, or any justices of the peace at any quarter session or adjourned or special session of the peace, or out of session, as to the said Court shall seem fit, any such prisoner, for any of the purposes authorized by the said act or by this act; which order every such sheriff, keeper, gaoler, or other officer shall obey; and for so doing such order shall be a sufficient warrant.
[Court may order prisoners to be examined before justices in quarter sessions.]
IX. And be it further enacted, that in case the said Court, instead of ordering any prisoner to be brought before the said Court for examination, shall direct such prisoner to be examined before His Majesty’s justices of the peace for any county, riding, tor sessions, division, or place, at a general session of the peace, or any adjournment thereof, and it shall appear to the said Court, from the circumstances of the case, to be proper to authorize such justices to certify their opinion whether such prisoner is entitled to be discharged under the authority of the said act, it shall be lawful for any creditor or creditors of such prisoner to oppose such discharge before such justices, who shall thereupon proceed to determine whether such prisoner is or is not entitled to the benefit of the said act, and shall certify such determination to the said Court, established by virtue of the said act; and it shall thereupon be lawful for the said Court to proceed to adjudge accordingly, as the said Court might have done in case such prisoner had been brought before the said Court, and it shall not be lawful for any creditor or person claiming to be a creditor of such prisoner to oppose the discharge of such prisoner before the said Court, unless due notice shall not have been given to such creditor, or person claiming to be a creditor, according to the order of the said Court for that purpose, or unless some fraud or improper conduct of such prisoner, or some irregularity not in question before the said justices, shall be made appear to the satisfaction of the said Court.
[Notice to be given of examination before justices.]
X. And be it further enacted, that the notice to be given of the examination of any prisoner before justices of the peace at their quarter session, or any adjournment thereof, may be given by advertisement in some public newspaper, according to the order of the said Court for Relief of Insolvent Debtors, in the form or to the effect expressed in the schedule to this act marked (B), or in such other form or to such other effect as the said Court shall direct; and it shall be lawful to include any number of prisoners in such notice, if the said Court shall so order.
[Gaolers may be examined by the Court or quarter sessions.]
XI. And be it further enacted, that the said Court, and also the justices of the peace to whom the examination of any prisoner shall be referred by the said Court, shall respectively have full power, and they are hereby authorized, by order of the said Court, or of the said justices respectively, as the case shall require, to cause the keepers or gaolers, or other officers of any prison, or any other person, to come before such Court or justices, as the case shall require, and to examine such gaolers, keepers, officers, or other persons respectively on oath touching any matter relating to the execution of the said act and of this act, as to the said Court and the said justices respectively shall seem fit; and if any such gaoler, keeper, officer, or other person who shall be so examined, shall wilfully forswear or perjure himself or herself op such examination, and shall be lawfully convicted thereof, he or she so offending shall suffer such punishment as by law may be inflicted on persons convicted of wilful and corrupt perjury.
[Sheriffs and gaolers indemnified.]
XII. And be it further enacted, that all and every sheriffs, gaolers, keepers, or other officers of any prison or prisons, who have done or shall do any thing in obedience to any order of the said Court, or of any justice or justices of the peace,authorized by any order of the said Court by virtue of the said act or of this act, shall be and is and are hereby indemnified for and in respect of any thing so done; and every such order shall be a sufficient discharge to such sheriffs, gaolers,keepers,and other officers respectively, for whatsoever hath been or shall be done by them respectively in obedience thereto, and shall indemnify them respectively against any escape or action for escape, or any action or actions whatsoever which hath been or shall or may be brought against any such sheriffs, gaolers, keepers, or other officers respectively, for any thing which hath been or shall be so done as aforesaid; and such sheriffs, gaolers, keepers, and other officers respectively, shall and may plead to any such action the general issue, and give the said act and this act in evidence; and on production of such order or orders as aforesaid, a verdict shall be given for the defendant or defendants in any such action; and on such verdict, or if the plaintiff or plaintiffs in any such actions shall be nonsuited, or discontinue his, her, or their action, or if judgment shall be had for the defendant or defendants on demurrer,
[Treble costs.]
the defendant or defendants shall have treble costs.
[Provisional assignee may be appointed.]
XIII. And be it further enacted, that in case no fit person shall be willing to accept the office of assignee of the estate and effects of any prisoner under the said act, it shall be lawful for the said Court to order such estate and effects to be assigned to an officer of the said Court to be appointed for that purpose, and to be called The Provisional Assignee of Insolvent Debtors in England: and such estate and effects shall be thereby vested in such provisional assignee and his successors, and shall not remain in him if he shall resign or be removed from his office, or in his heirs, executors, or administrators in case of his death , but shall in every such case go and be vested in his successor in office; but such officer shall not be bound to do any act with respect to such estate or effects, except to convey or assign the same to any person or persons to be appointed by the said Court assignee or assignees thereof for the purposes of the said act; but in case no person will accept the office of assignee of such estate and effects, and the same shall therefore remain vested in such provisional assignee,and it shall appear that there are or may be estate or effects which may be applicable to payment of the debts of such prisoner, it shall be lawful for the said Court to make such order for the preservation and care thereof as to such Court shall seem necessary, and to appoint a receiver or receivers of such estate or effects, with such allowances and giving such security for the same, as to the said Court shall seem fit; and such receiver or receivers shall duly account for and apply such estate and effects under the order of the said Court, and shall sell and dispose of or let and set the same, if necessary, as the said Court shall direct, and shall be removed as the said Court shall think fit.
[A recognizance to be entered into by the prisoner, instead of an engagement as under the recited act.]
XIV. And be it further enacted, that so much of the said act as requires any such prisoner to execute an engagement for payment of the debts or demands of the persons against whom such prisoner shall be adjudged by the said Court to be entitled to the benefit of the said act, and as directs any proceeding on such engagement, shall be and the same is hereby repealed; and instead thereof the said Court shall require such prisoner to enter into a recognizance to the King’s Majesty for the full amount of such debts; and it shall be lawful for any creditor or creditors of such prisoner from time to time to apply to the said Court to have such recognizance put in suit, and the same shall be put in suit in pursuance of the order of the said Court for that purpose, if the said Court shall see fit; but all proceedings thereon shall be subject to the order of the said Court; and any money which shall be recovered upon any such recognizance shall be paid and applied, under the order of the said Court, in the same manner as any money which might have been recovered under such engagement as aforesaid, and the judgment directed by the said act to be entered thereupon, might have been paid or applied under the authority of the said act; and the said Court shall in all cases proceed upon such recognizance as the said Court might have done under the authority of the said act, upon die engagement and judgment thereupon by the said act required to be executed and entered as aforesaid; Provided always, that in case any proceeding shall be had upon the said recognizance, the creditor or creditors desiring the same shall be at the expense of all proceedings thereupon, but shall be at liberty to retain such expenses, and all expenses attending any application to the said Court touching the same, out of any money to be recovered thereon, if the said Court shall so direct; and in case any application shall be made to the said Court for liberty to proceed on any such recognizance, such Court shall order the costs of such application, or of any opposition thereto, to be paid as to the said Court shall seem just.
[Court may receive affidavits of the service of notice, or of any proceeding.]
XV. And be it further enacted, that in case the said Court shall think fit, it shall be lawful for the said Court to receive affidavits of the service of any notice, or of any formal proceeding in the execution of the said act or of this act, such affidavits being sworn either before any officer of the said Court appointed by the said Court for that purpose, or before any master extraordinary in Chancery, or any commissioner for taking affidavits in the Court of King’s Bench, Common Pleas, or Exchequer; which affidavits such officer, master, or commissioner is hereby authorized to take; and if any person making any such affidavit before any such officer, master, or commissioner, shall wilfully forswear and perjure himself or herself, and shall be lawfully convicted thereof, he or she so offending shall suffer such punishment as by law may be inflicted on persona convicted of wilful and corrupt perjury.
[No Court of appeal.]
XVI. And be it further enacted, that so much of the said act as provides a Court of appeal from the Court established by virtue of the said act, shall be and the same is hereby repealed.
[Continuance of act.]
XVII. And be it further enacted, that this act shall continue in force until the first day of November One thousand eight hundred and eighteen, and thenceforth to the end of the then next session of parliament, and no longer.
[Act may be repealed or altered this session.]
XVIII. Provided always, and be it further enacted, that this act or any part thereof may be repealed or altered by any act or acts to be made in this present session of parliament.
SCHEDULE (A.)
Notice to creditors of hearing petitions in Court.
By order of the Court for Relief of Insolvent Debtors, the petition [or petitions] of A.B. late of ________ and now a prisoner in ________ [ or, of A.B. late of, &c. C.D. late of, &c. ________ &c. &c.] will be heard on the ________ day of ________ at ________.
List of the creditors of the said A.B.
E.F. of ________
G.H. of ________
or if such list shall not be added to such notice there may be added:
The names of the creditors of the said A.B. appear in a schedule annexed to his petition, filed in the office of the said Court at to which any creditor may refer.
SCHEDULE (B.)
Notice to creditors of the examination of a prisoner before justices at their quarter sessions of the peace, and that such justices are authorized by the Court to certify whether the prisoner is entitled to the benefit of the said act.
By order of the Court for the Relief of Insolvent Debtors, A.B. late of ________, and now a prisoner in ________ [or, A.B. C.D. &c. as the case may be] will be examined before the justices of the peace for ________, assembled at their quarter sessions of the peace at ________, on the ________ day of ________, for the purpose of determining whether the said A.B. is [or, the said A.B. C.D. &c. are] entitled to the benefit of the act for the relief of insolvent debtors; and all creditors of the said A.B. [or, of the said A.B. C.D. &c. as the case may be] are required to attend accordingly, if they shall think fit.
Source: Nicholls, The Practice of the Court of Relief for Insolvent Debtors, 4th ed.