CHAPTER
69
BANKRUPTCY |
ARRANGEMENT OF
SECTIONS |
SECTION |
PRELIMINARY |
|
|
Exclusion of companies, etc. |
PART I
ADJUDICATION AND VESTING OF PROPERTY |
Adjudication |
Petition for adjudication in bankruptcy. |
Proceedings in relation to a debtor's summons. |
|
Proceedings if debt of petitioning creditor is
contested. |
Advertisement of order of adjudication. |
Definition of commencement of bankruptcy. |
Creditors bound by bankruptcy proceedings. |
Power after presentation of petition to restrain
suits, etc., and appoint receiver. |
Appointment of Trustee |
Meeting of creditors for appointment of persons
to administer bankrupt's property. |
Description of bankrupt's property divisible
amongst creditors. |
Regulations as to first meeting of creditors. |
Devolution of property on trustee. |
Evidence of appointment of trustee. |
PART II
ADMINISTRATION OF PROPERTY |
General Provisions
affecting Administration of Property |
|
Conduct of trustee and appeal to court against
trustee. |
Regulations as to general meetings of creditors
subsequent to first meeting. |
Dealing with Bankrupt's
Property |
Possession of property by trustee. |
Disclaimer as to onerous property. |
Limitation of time for disclaimer. |
Power of trustee to deal with property. |
Power to allow bankrupt to manage property. |
Power of trustee to compromise, etc. |
Power of trustee to accept composition or
general scheme of arrangement. |
Trustee if counsel and attorney may be paid for
services. |
Trustees to pay money into bank. |
Payment of Debts and
Distribution of Assets |
Description of debts provable in bankruptcy. |
|
Preferential claim in case of apprenticeship. |
Power of landlord to distrain for rent. |
Proof in case of rent and periodical payment. |
|
Proof in respect of contracts. |
Allowance to bankrupt for maintenance or
service. |
|
Provision as to secured creditor. |
Dividends |
Distribution of dividends. |
Provision for creditors residing at a distance,
etc. |
Right of creditor who has not proved debt before
declaration of a dividend. |
|
Bankrupt entitled to surplus. |
|
Close of Bankruptcy |
|
Discharge of Bankrupt |
|
Effect of order of discharge. |
Exception of joint debtors. |
Release of Trustee |
|
Duty of trustee as to unclaimed dividends and
outstanding property. |
Effect of release of trustee. |
Status of Undischarged
Bankrupt |
Status of undischarged bankrupt. |
Audit |
Return of statement to Registrar. |
Return of accounts to Registrar. |
|
|
PART III
CONSTITUTION AND POWERS OF COURT |
Description of Court |
A judge's powers in chambers. |
Court may delegate authority. |
|
|
|
PART IV
SUPPLEMENTAL PROVISIONS |
As to Proceedings |
Supplemental provisions as to proceedings in
bankruptcy. |
Consequences of annulling of adjudication. |
Formal defects not to invalidate proceedings. |
As to Trustees and
Committee of Inspection |
Provisions as to trustee, etc. |
Power of court on failure of creditors to
appoint trustee. |
As to Power over Bankrupt |
Post letters addressed to bankrupt. |
Arrest of bankrupt under certain circumstances. |
As to Property Devolving
upon Trustee |
Proceeds of sale and seizure of goods. |
Appropriation of portion of salary to creditors. |
Avoidance of voluntary settlements. |
Avoidance of fraudulent preferences. |
Payment of money by agents to trustee. |
Protection of certain transactions with
bankrupt. |
Protection of certain transactions entered into
by or in relation to the property of the bankrupt. |
As to Discovery of
Bankrupt's Property |
Power of court to summon persons before it
suspected of having property of bankrupt. |
Examination of parties by court. |
Order of court for payment of amount admitted on
examination. |
Seizure of property of bankrupt. |
Joint and Separate
Estates |
One partner may be petitioned against. |
Dismissal of petition against some respondents. |
Property of partners to be vested in same
trustee. |
Joint creditor may prove for purpose of voting. |
Joint and separate dividends. |
Suits by trustees and bankrupt's partners. |
Evidence |
Evidence of proceedings at meeting of creditors. |
Evidence of proceedings in bankruptcy. |
|
Miscellaneous |
Power of assignee to sue. |
Saving as to joint contracts. |
Exemption of deeds, etc., from stamp duty. |
|
Removal of bankrupt from trusteeship. |
A debtor may petition against himself. |
PART V
PERSONS HAVING PRIVILEGE OF PARLIAMENT |
|
PART VI
LIQUIDATION BY ARRANGEMENT |
Provisions as to liquidation by arrangement. |
PART VII
COMPOSITION WITH CREDITORS AND MISCELLANEOUS |
Provisions as to composition by creditors. |
Registration of resolutions of creditors
conclusive in certain cases. |
|
|
Security for debt given after arrest. |
|
SCHEDULE - Description of Traders. |
CHAPTER 69 |
BANKRUPTCY |
An Act
relating to bankruptcy. | 13 of 1870
5 of 1871
10 of 1954
43 of 1964
46 of 1964
21 of 1972
5 of 1987 |
[Commencement 15th
March, 1870] |
PRELIMINARY |
1. This Act may be cited as the Bankruptcy Act. | Short title. |
2. In this Act, unless the context otherwise requires- | Interpretation. |
"court"
means the Supreme Court; |
"debt
provable in bankruptcy" includes any debt or liability by this Act made
provable in bankruptcy; |
"judge"
includes the Chief Justice, a Senior Justice and a Justice of the Supreme
Court; |
"person"
includes a body corporate; |
"prescribed"
means prescribed by rules to be made under this Act; |
"property"
includes money, goods, things in action, land, and every description of
property, whether real or personal; also obligations, easement and every
description of estate, interest and profit, present or future, vested or
contingent, arising out of or incident to property as above defined; |
"Registrar"
means the Registrar of the court; |
"rules"
means rules made under this Act; |
"secured
creditor" means any creditor holding any mortgage, charge or lien on the
bankrupt's estate, or any part thereof, as security for a debt due to him; |
"trader"
means the several persons in that behalf mentioned in the
Schedule to this Act. |
3. A partnership, association or company corporate, or
registered under the Companies Act, shall not be adjudged bankrupt under this
Act. | Exclusion of companies, etc. |
PART I
ADJUDICATION AND VESTING OF PROPERTY |
Adjudication |
4. A single creditor, or two or more creditors, if the
debt due to such single creditor, or the aggregate amount of debts due to such
several creditors from any debtor amount to a sum of not less than two hundred
dollars, may present a petition to the court, praying that the debtor be
adjudged a bankrupt, and alleging as the ground for such adjudication any one
or more of the following acts or defaults, hereinafter deemed to be and
included under the expression "acts of bankruptcy"- | Petition for adjudication in bankruptcy. |
(1) that the
debtor has, in The Bahamas or elsewhere, made a conveyance or assignment of his
property to a trustee or trustees for the benefit of his creditors generally; |
(2) that the
debtor has, in The Bahamas or elsewhere, made a fraudulent conveyance, gift,
delivery or transfer of his property or of any part thereof; |
(3) that the
debtor has, with intent to defeat or delay his creditors, done any of the
following things, namely, departed out of The Bahamas, or, being out of The
Bahamas, remains out of The Bahamas, or, being a trader, departed from his
dwelling house, or otherwise absented himself, or begun to keep house; |
(4) that the
debtor has filed, in the prescribed manner in the court, a declaration
admitting his inability to pay his debts; |
(5) that
execution issued against the debtor on any legal process for the purpose of
obtaining payment of not less than two hundred dollars, has, in the case of a
trader, been levied by seizure and sale of his goods; |
(6) that
the creditor presenting the petition has served in the prescribed manner on the
debtor a debtor's summons, requiring the debtor to pay a sum due, of an amount
of not less than two hundred dollars, and the debtor, being a trader, has, for
the space of seven days, or not being a trader, has, for the space of three
weeks succeeding the service of such summons, neglected to pay such sum, or to
secure or compound for the same. |
But no person
shall be adjudged a bankrupt on any of the above grounds unless the act of
bankruptcy on which the adjudication is grounded has occurred within six months
before the presentation of the petition for adjudication; moreover, the debt of
the petitioning creditor must be a liquidated sum due at law or in equity, and
must not be a secured debt, unless the petitioner state in his petition that he
will be ready to give up such security for the benefit of the creditors, in the
event of the debtor being adjudicated a bankrupt, or unless the petitioner is
willing to give an estimate of the value of his security, in which latter case
he may be admitted as a petitioning creditor to the extent of the balance of
the debt due to him, after deducting the value so estimated, but he shall, on
an application being made by the trustee within the prescribed time after the
date of adjudication, give up his security to such trustee for the benefit of
the creditors upon payment of such estimated value. |
5. A debtor's summons may be granted by the court, on a
creditor proving to its satisfaction that a debt sufficient to support a
petition in bankruptcy is due to him from the person against whom the summons
is sought, and that the creditor has failed to obtain payment of his debt,
after using reasonable efforts to do so. The summons shall be in the prescribed
form, resembling, as nearly as circumstances admit, a writ issued by the court.
It shall state that, in the event of the debtor failing to pay the sum
specified in the summons, or to compound for the same to the satisfaction of
the creditor, a petition may be presented against him, praying that he may be
adjudged a bankrupt. The summons shall have an endorsement thereon to the like
effect, or such other prescribed endorsement as may be best calculated to
indicate to the debtor the nature of the document served upon him, and the
consequences of inattention to the requisitions therein made. | Proceedings in relation to a debtor's summons. |
Any debtor served
with a debtor's summons may apply to the court in the prescribed manner, and
within the prescribed time, to dismiss such summons, on the ground that he is
not indebted to the creditor serving such summons, or that he is not indebted
to such amount as will justify such creditor in presenting a bankruptcy
petition against him; and the court may dismiss the summons, with or without
costs, if satisfied with the allegations made by the debtor, or it may, upon
such security (if any) being given as the court may require for payment to the
creditor of the debt alleged by him to be due, and the costs of establishing
such debt, stay all proceedings on the summons for such time as will be
required for the trial of the question relating to such debt. |
6. A petition praying that a debtor may be adjudged a
bankrupt (in this Act referred to as a bankruptcy petition) shall be served in
the prescribed manner. At the hearing, the court shall require proof of the
debt of the petitioning creditor, and of the trading, if necessary, and of the
act of bankruptcy, or, if more than one act of bankruptcy is alleged in the
petition, of some one of the alleged acts of bankruptcy, and if satisfied with
such proof, shall adjudge the debtor to be bankrupt. The court may adjourn the
petition, either conditionally or unconditionally, for the procurement of
further evidence, or for any other just cause, or may dismiss the petition,
with or without costs, as the court thinks just. | Proceedings on petition. |
7. Where the debtor appears on the petition, and denies
that he is indebted to the petitioner, or that he is indebted to such amount as
would justify the petitioner in presenting a bankruptcy petition against him,
the court, upon such security (if any) being given as the court may require for
payment to the petitioner of any debt which may be established against him in
due course of law, and of the costs of establishing such debt, may stay all
proceedings on the petition for such time as may be required for trial of the
question relating to such debt, and such trial shall be had in manner
hereinbefore provided with respect to disputed debts under debtor's summonses. | Proceedings if debt of petitioning creditor is
contested. |
Where proceedings
are stayed, the court may, if by reason of the delay caused by such stay of
proceedings, or for any other cause it thinks just, adjudge the debtor a
bankrupt on the petition of some other creditor, and shall thereupon dismiss,
upon such terms as it thinks just, the petition, proceedings in which have been
stayed as aforesaid. |
8. A copy of an order of the court adjudging the debtor
to be bankrupt shall be published in the Gazette, and be notified
locally in such manner (if any) as may be prescribed, and the date of such
order shall be the date of the adjudication for the purposes of this Act, and
the production of a copy of the Gazette containing such order, as
aforesaid, shall be conclusive evidence in all legal proceedings of the debtor
having been duly adjudged a bankrupt; and of the date of the adjudication. | Advertisement of order of adjudication. |
9. The bankruptcy of a debtor shall be deemed to have
relation back to and to commence at the time of the act of bankruptcy being
completed on which the order is made adjudging him to be bankrupt; or, if the
bankrupt is proved to have committed more acts of bankruptcy than one, to have
relation back to and to commence at the time of the first of the acts of
bankruptcy that may be proved to have been committed by the bankrupt, within
twelve months next preceding the order of adjudication; but the bankruptcy
shall not relate to any prior act of bankruptcy, unless it be that, at the time
of committing such prior acts, the bankrupt was indebted to some creditor or
creditors in a sum or sums sufficient to support a petition in bankruptcy, and
unless such debt or debts are still remaining due at the time of the
adjudication. | Definition of commencement of bankruptcy. |
10. Where a debtor shall be adjudicated a bankrupt, no
creditor to whom the bankrupt is indebted in respect of any debt provable in
the bankruptcy shall have any remedy against the property or person of the
bankrupt in respect of such debt, except in manner directed by this Act; but
this section shall not affect the power of any creditor holding a security upon
the property of the bankrupt to realise or otherwise deal with such security in
the same manner as he would have been entitled to realise or deal with the same
if this section had not been passed. | Creditors bound by bankruptcy proceedings. |
11. The court may, at any time after the presentation
of a bankruptcy petition against the debtor, restrain further proceedings in
any action, suit, execution, or other legal process against the debtor in
respect of any debt provable in bankruptcy, or it may allow such proceedings,
whether in progress at the commencement of the bankruptcy or commenced during
its continuance, to proceed upon such terms as the court may think just. The
court may also, at any time after the presentation of such petition, appoint a
receiver or manager of the property or business of the debtor against whom the
petition is presented, or of any part thereof, and may direct immediate
possession to be taken of such property or business or any part thereof. | Power after presentation of petition to restrain
suits, etc., and appoint receiver. |
Appointment of
Trustee |
12. When an order has been made adjudging a debtor
bankrupt (herein referred to as an order of adjudication) the property of the
bankrupt shall become divisible amongst his creditors in proportion to the
debts proved by them in the bankruptcy; and for the purpose of effecting such
division, the court shall, as soon as may be, summon a general meeting of his
creditors, and the creditors assembled at such meeting shall and may do as
follows- | Meeting of creditors for appointment of persons to
administer bankrupt's property. |
(1) they shall
by resolution appoint some fit person, whether a creditor or not, to fill the
office of trustee of the property of the bankrupt, at such remuneration as they
may from time to time determine, if any; or they may resolve to leave his
appointment to the committee of inspection hereinafter mentioned; |
(2) they shall,
when they appoint a trustee, by resolution, declare what security is to be
given, and to whom, by the person so appointed before he enters on the office
of trustee; |
(3) they shall,
by resolution, appoint some other fit persons, not exceeding five in number,
and being creditors qualified to vote at such first meeting of creditors, as is
in this Act mentioned, or authorised in the prescribed form by creditors so
qualified to vote, to form a committee of inspection for the purpose of
superintending the administration by the trustee of the bankrupt's property; |
(4) they may,
by resolution, give directions as to the manner in which the property is to be
administered by the trustee; and it shall be the duty of the trustee to conform
to such direction, unless the court, for some just cause, otherwise orders. |
13. The property of the bankrupt divisible among his
creditors, and in this Act referred to as the property of the bankrupt, shall
not comprise the following, particulars- | Description of bankrupt's property divisible amongst
creditors. |
(1) property
held by the bankrupt on trust for any other person; |
(2) the tools
(if any) of his trade, and the necessary wearing apparel and bedding of
himself, his wife and children, to a value, inclusive of tools and apparel and bedding, not exceeding eighty dollars in
the whole; |
but it shall
comprise the following particulars- |
(3) all such
property as may belong to or be vested in the bankrupt at the commencement of
the bankruptcy, or may be acquired by or devolve on him during its continuance; |
(4) the
capacity to exercise and to take proceedings for exercising all such powers in
or over or in respect of property as might have been exercised by the bankrupt
for his own benefit at the commencement of his bankruptcy or during its
continuance; |
(5) all goods
and chattels being, at the commencement of the bankruptcy, in the possession,
order or disposition of the bankrupt, being a trader, by the consent and
permission of the true owner of which goods and chattels the bankrupt is
reputed owner, or of which he has taken upon himself the sale or disposition as
owner: |
Provided that
things in action, other than debts due to him in the course of his trade or
business, shall not be deemed goods and chattels within the meaning of this
clause. |
14. The general meeting of creditors to be summoned, as
aforesaid, by the court (in this Act referred to as the first meeting of
creditors) shall be held in the prescribed manner and subject to the prescribed
regulations as to the quorum, adjournment of meeting and all other matters
relating to the conduct of the meeting or the proceedings thereat: | Regulations as to first meeting of creditors. |
Provided that- |
(1) every
meeting held under this section shall be presided over by the Registrar or, in his
absence, by such chairman as the meeting may elect; |
(2) a person
shall not be entitled to vote as a creditor unless at or previously to the
meeting he has, in the prescribed manner, proved a debt provable under the
bankruptcy to be due to him; |
(3) a creditor
shall not vote at the said meeting in respect of any unliquidated or contingent
debt, or any debt the value of which is not ascertained; |
(4) a secured
creditor shall, for the purposes of voting, be deemed to be a creditor only in
respect of the balance (if any) due to him after deducting the value of his
security; and the amount of such balance shall, until the security be realised,
be determined in the prescribed manner. He may, however, at or previously to
the meeting of creditors, give up the security to the trustee, and thereupon he
shall rank as a creditor m respect of the whole sum due to him; |
(5) votes may
be given either personally or by proxy; |
(6) an ordinary
resolution shall be decided by a majority in value of the creditors present personally
or by proxy at the meeting and voting on such resolution; |
(7) a special
resolution shall be decided by a majority in number, and three-fourths in value
of the creditors present personally or by proxy at the meeting and voting on
such resolution. |
15. (1) Until a trustee is appointed the Registrar
shall be the trustee for the purposes of this Act, and immediately upon the
order of adjudication being made the property of the bankrupt shall vest in the
Registrar. On the appointment of a trustee the property shall forthwith pass to
and vest in the trustee appointed. | Devolution of property on trustee. |
(2) The expression
"trustee," when used in this Act, shall include the person for the
time being filling the office of trustee, whether he be the Registrar or not;
but when the Registrar holds the office of trustee, he shall, unless the court
otherwise orders, in the administration of the property of the bankrupt, apply
to the court for directions as to the mode of administering such property and
shall not take possession thereof unless directed by the court. | Definition of trustee. |
16. The appointment of a trustee shall be reported to
the court; and the court, upon being satisfied that the requisite security has
been entered into by him, shall give a certificate declaring him to be trustee
of the bankruptcy named in the certificate, and such certificate shall be
conclusive evidence of the appointment of the trustee, and such appointment
shall date from the date of the certificate. When the Registrar holds the
office of trustee, or when the trustee is changed, a like certificate of the
court may be made, declaring the person therein named to be trustee, and such
certificate shall be conclusive evidence of the person therein named being
trustee. | Evidence of appointment of trustee. |
PART II
ADMINISTRATION OF PROPERTY |
General
Provisions affecting Administration of Property |
17. The bankrupt shall, to the utmost of his power, aid
in the realisation of his property, and the distribution of the proceeds
amongst his creditors. He shall produce a statement of his affairs to the first
meeting of creditors, and shall be publicly examined thereon on a day to be
named by the court, and subject to such adjourned public examination as the
court may direct. He shall give such inventory of his property, such list of
his creditors and debtors, and of the debts due to and from them respectively,
submit to such examination in respect of his property or his creditors, attend
such meetings of his creditors, wait at such times on the trustee, execute such
powers of attorney, conveyances, deeds and instruments, and generally do all
such acts and things in relation to his property and the distribution of the
proceeds amongst his creditors as may be reasonably required by the trustee, or
may be prescribed by the rules, or be directed by the court by any special
order or orders made in reference to any particular bankruptcy, or made on the
occasion of any special application by the trustee or any creditor. | Conduct of bankrupt. |
If the bankrupt
wilfully fails to perform the duties imposed on him by this section, or if he
fails to deliver up possession to the trustee of any part of his property which
is divisible amongst his creditors under this Act, and which may for the time
being be in the possession or under the control of such bankrupt, he shall, in
addition to any other punishment to which he may be subject, be guilty of a
contempt of court and may be punished accordingly. |
18. The trustee shall, in the administration of the
property of the bankrupt, and in the distribution thereof amongst his
creditors, have regard to any directions that may be given by resolution of the
creditors at any general meeting, or by the committee of inspection; and any
directions so given by the creditors at any general meeting shall be deemed to
override any directions given by the committee of inspection; the trustee shall
call a meeting of the committee of inspection once at least every three months,
when they shall audit his accounts, and determine whether any or what dividend
is to be paid; he may also call special meetings of the said committee as he
thinks necessary. | Conduct of trustee and appeal to court against
trustee. |
Subject to the
provisions of this Act, and to such directions as aforesaid, the trustee shall
exercise his own discretion in the management of the estate, and its
distribution amongst the creditors. The trustee may from time to time summon
general meetings of the creditors for the purpose of ascertaining their wishes;
he may also apply to the court in the manner prescribed for directions in
relation to any particular matter arising under the bankruptcy. The bankrupt or
any creditor, debtor or other person aggrieved by any act of the trustee may
apply to the court, and the court may confirm, reverse or modify the act
complained of, and make such order in the premises as it thinks just. The court
may, from time to time, during the continuance of a bankruptcy, summon general
meetings of the creditors for the purpose of ascertaining their wishes, and
may, if the court thinks fit, direct the Registrar to preside at such meetings. |
The trustee shall,
in relation to, and for the purpose of acquiring or retaining possession of the
property of the bankrupt, be in the same position in all respects as if he were
a receiver of such property appointed by the court, and the court may, on his
application, enforce such acquisition or retention of property accordingly. |
19. The provisions of this Act with respect to the
first general meeting of creditors shall apply to any subsequent general
meeting of creditors in a bankruptcy, with this exception, that subsequent
meetings of creditors may be summoned by the trustee, or by a member of the
committee of inspection, and that such meetings may, unless otherwise directed
by the court, in the case of meetings summoned by the court be presided over by
any person chosen by the creditors assembled at such meeting, and that any creditor
whose debt has been proved, or the value of whose debt has been ascertained at,
or subsequent to, such first meeting, shall be allowed to be present and to
vote thereat. | Regulations as to general meetings of creditors
subsequent to first meeting. |
Dealings with
Bankrupt's Property |
20. Where any portion of the property of the bankrupt
consists of stock, shares in ships, shares or any other property transferable
in the books of any company, office or person, the right to transfer such
property shall be absolutely vested in the trustee, to the same extent as the
bankrupt might have exercised the same if he had not become bankrupt. | Possession of property by trustee. |
Where any portion
of the property of the bankrupt consists of things in action, any action, suit
or other proceeding for the recovery of such things instituted by the trustee
shall be instituted in his official name, as in this Act provided; and such
things shall, for the purpose of such action, suit or other proceedings, be
deemed to be assignable in law, and to have been duly assigned to the trustee
in his official capacity. |
The trustee shall,
as soon as may be, take possession of the deeds, books and documents of the
bankrupt, and all other property capable of manual delivery. The trustee shall
keep, in such manner as the rules shall direct, proper books, in which he
shall, from time to time, make or cause to be made entries or minutes of
proceedings at meetings, and of such other matters as the rules shall direct,
and any creditor of the bankrupt may, subject to the control of the court,
personally or by his agent inspect such books. |
21. When any property of the bankrupt acquired by the
trustee under this Act consists of land of any tenure, burdened with onerous
covenants, of unmarketable shares in companies, of unprofitable contracts or of
any other property that is unsaleable, or not readily saleable, by reason of
its binding the possessor thereof to the performance of any onerous act or to
the payment of any sum of money, the trustee, notwithstanding he has
endeavoured to sell, or has taken possession of such property or exercised any
act of ownership in relation thereto, may, by writing under his hand, disclaim
such property, and, upon the execution of such disclaimer, the property disclaimed
shall, if the same is a contract, be deemed to be determined from the date of
the order of adjudication; and if the same is a lease be deemed to have been
surrendered on the same date, and if the same be shares in any company be
deemed to be forfeited from that date, and if any other species of property it
shall revert to the person entitled on the determination of the estate or
interest of the bankrupt; but if there shall be no person in existence so
entitled, then in no case shall any estate or interest therein remain in the
bankrupt. Any person interested in any disclaimed property may apply to the
court, and the court may upon such application, order possession of the
disclaimed property to be delivered up to him, or make such other order as to the
possession thereof as may be just. | Disclaimer as to onerous property |
Any person injured
by the operation of this section shall be deemed a creditor of the bankrupt to
the extent of such injury, and may accordingly prove the same as a debt under
the bankruptcy. |
22. The trustee shall not be entitled to disclaim any
property in pursuance of this Act in cases where an application in writing has
been made to him by any person interested in such property, requiring such
trustee to decide whether he will disclaim or not, and the trustee has for a
period of not less than twenty-eight days after the receipt of such
application, or such further term as may be allowed by the court, declined or
neglected to give notice whether he disclaims the same or not. | Limitation of time for disclaimer. |
23. Subject to the provisions of this Act, the trustee
shall have power to do the following things- | Power of trustee to deal with property. |
(1) to receive
and decide upon proof of debts in the prescribed manner, and for such purpose
to administer oaths; |
(2) to carry on
the business of the bankrupt so far as may be necessary for the beneficial
winding up of the same; |
(3) to bring or
defend any action, suit or other legal proceeding relating to the property of
the bankrupt; |
(4) to deal
with any property to which the bankrupt is beneficially entitled as tenant in
tail in the same manner as the bankrupt might have dealt with the same; and the Estates Tail Barring Act shall extend and
apply to proceedings in bankruptcy under this Act as if the said Act, and the
Act of the Imperial Parliament to which it refers, were here re-enacted and
made applicable in terms to such proceedings; |
(5) to exercise
any powers the capacity to exercise which is vested in him under this Act, and
to execute all powers of attorney, deeds, and other instruments expedient or
necessary for the purpose of carrying into effect the provisions of this Act; |
(6) to sell all
the property of the bankrupt (including the goodwill of the business, if any,
and the book debts due or growing due to the bankrupt) by public auction or
private contract, with power, if he thinks fit, to transfer the whole thereof
to any person or company, or to sell the same in parcels; |
(7) to give
receipts for any money received by him, which receipt shall effectually
discharge the person paying such moneys from all responsibility in respect of
the application thereof; |
(8) to prove,
rank, claim and draw a dividend in the matter of the bankruptcy or
sequestration of any debtor of the bankrupt. |
24. The trustee may appoint the bankrupt himself to
superintend the management of the property or of any part thereof, or to carry
on the trade of the bankrupt (if any) for the benefit of the creditors, and in
any other respect to aid in administering the property in such manner and on
such terms as the creditors direct. | Power to allow bankrupt to manage property. |
25. The trustee may, with the sanction of the committee
of inspection, do all or any of the following things- | Power of trustee to compromise, etc. |
(1) mortgage or
pledge any part of the property of the bankrupt for the purpose of raising
money for the payment of his debts; |
(2) refer any
dispute to arbitration, compromise all debts, claims and liabilities, whether
present or future, certain or contingent, liquidated or unliquidated,
subsisting or supposed to subsist, between the bankrupt and any debtor or
person who may have incurred any liability to the bankrupt, upon the receipt of
such sums, payable at such terms, and generally upon such terms as may be
agreed upon; |
(3) make such
compromise or other arrangement as may be thought expedient with creditors, or
persons claiming to be creditors in respect of any debts provable under the
bankruptcy; |
(4) make such
compromise or other arrangement as may be thought expedient with respect to any
claim arising out of or incidental to the property of the bankrupt made or
capable of being made on the trustee by any person or by the trustee on any
person; |
(5) to divide
in its existing form amongst the creditors, according to its estimated value,
any property which from its peculiar nature or other special circumstances
cannot advantageously be realised by sale. |
The sanction given
for the purposes of this section may be a general permission to do all or any
of the above-mentioned things, or a permission to do all or any of them in any
specified case or cases. |
26. The trustee may, with the sanction of a special
resolution of the creditors assembled at any meeting of which notice has been
given specifying the object of such meeting, accept any composition offered by
the bankrupt, or assent to any general scheme of settlement of the affairs of
the bankrupt, upon such terms as may be thought expedient, and with or without
a condition that the order of adjudication is to be annulled, subject
nevertheless to the approval of the court, to be testified by the judge of the
court signing the instrument containing the terms of such composition or
scheme, or embodying such terms in an order of the court. | Power of trustee to accept composition or general
scheme of arrangement. |
Where the
annulling of the order of adjudication is made a condition of any composition
with the bankrupt or of any general scheme for the liquidation of his affairs,
the court, if it approves of such composition or general scheme, shall annul
the adjudication on an application made by or on behalf of any person
interested, and the adjudication shall be annulled from or after the date of
the order annulling the same. |
The provisions of
any composition or general scheme made in pursuance of this Act may be enforced
by the court, on a motion made in a summary manner, by any person interested,
and any disobedience of the order of the court made on such motion shall be
deemed to be a contempt of court. The approval of the court shall be conclusive
as to the validity of any such composition or scheme, and it shall be binding
on all the creditors, so far as relates to any debts due to them, and provable
under the bankruptcy. |
27. A trustee shall not, without the consent of the
committee of inspection, employ a counsel and attorney or other agent, but
where the trustee is himself a counsel and attorney, he may contract to be paid
a certain sum, by way of percentage or otherwise, as a remuneration for his
services as trustee, including all professional services, and any such contract
shall, notwithstanding any law to the contrary, be lawful. | Trustee if counsel and attorney may be paid for
services. |
28. The trustee shall pay all sums from time to time
received by him into such bank as the court may direct, and if he at any time
keeps in his hands any sum exceeding two hundred dollars for more than ten
days, he shall be subject to the following liabilities, that is to say- | Trustees to pay money into bank. |
(1) he shall
pay interest at the rate, of twenty dollars per centum per annum on the excess
of such sum, above two hundred dollars, as he may retain in his hands; |
(2) unless he
can prove to the satisfaction of the court that his reason for retaining the
money was sufficient, he shall, on the application of any creditor, be
dismissed from his office by the court, and shall have no claim for
remuneration, and be liable to any expenses to which the creditors may be put
by or in consequence of his dismissal. |
Payment of Debts
and Distribution of Assets |
29. Demands in the nature of unliquidated damages,
arising otherwise than by reason of a contract or promise, shall not be
provable in bankruptcy, and no person having notice of any act of bankruptcy
available for adjudication against the bankrupt shall prove for any debt or
liability contracted by the bankrupt subsequently to the date of his so having
notice. | Description of debts provable in bankruptcy. |
Save, as
aforesaid, all debts and liabilities, present or future, certain or contingent,
to which the bankrupt is subject at the date of the order of adjudication, or
to which he may become subject during the continuance of the bankruptcy by
reason of any obligation incurred previously to the date of the order of
adjudication, shall be deemed to be debts provable in bankruptcy, and may be
proved in the prescribed manner before the trustee in the bankruptcy. |
An estimate shall
be made according to the rules for the time being in force, so far as the same
may be applicable, and where they are not applicable, at the discretion of the
trustee, of the value of any debt or liability provable as aforesaid, which by
reason of its being subject to any contingency, or contingencies, or for any
other reason, does not bear a certain value. |
Any person
aggrieved by any estimate made by the trustee, as aforesaid, may appeal to the
court, and the court may, if it thinks the value of the debt or liability
incapable of being fairly estimated, make an order to that effect, and upon
such order being made, such debt or liability shall, for the purposes of this
Act, be deemed to be a debt not provable in bankruptcy; but if the court thinks
that the value of the debt or liability is capable of being fairly estimated,
it may direct such value to be assessed with the consent of all the parties
interested before the court itself without the intervention of a jury, or if
such parties do not consent, by a jury, either before the court itself or some
other competent court, and may give all necessary directions for such purpose,
and the amount of such value when assessed shall be provable as a debt under
the bankruptcy. |
"Liability"
shall for the purposes of this Act include any compensation for work or labour
done, any obligation or possibility of an obligation to pay money or money's
worth on the breach of any express or implied covenant, contract, agreement or
undertaking, whether such breach does or does not occur, or is or is not likely
to occur, or capable of occurring, before the close of the bankruptcy, and
generally it shall include any express or implied engagement, agreement or
undertaking to pay, or capable of resulting in the payment of money or money's
worth, whether such payment be as respects amount fixed or unliquidated; as
respects time present or future, certain or dependent on any one contingency or
on two or more contingencies; as to mode of valuation capable of being
ascertained by fixed rules, or assessable only by a jury, or as matter of
opinion. |
30. The debts hereinafter mentioned shall be paid in
priority to all other debts. Between themselves such debts shall rank equally,
and shall be paid in full, unless the property of the bankrupt is insufficient
to meet them, in which case they shall abate in equal proportions between
themselves, that is to say- | Preferential debts. |
(1) All debts
due to the Crown whether as Crown revenues or on account of the Consolidated
Fund of The Bahamas. |
(2) All wages
or salary of any clerk or servant in the employment of the bankrupt at the date
of the order of
adjudication, not exceeding four months' wages or salary, and not exceeding two
hundred dollars; all wages of any labourer or workman in the employment of the
bankrupt at the date of the order of adjudication and not exceeding two months'
wages. |
(3) All contributions payable pursuant to the National Insurance Act. |
Save as
aforesaid, all debts provable under the bankruptcy shall be paid pari passu. |
31. Where at the time of the presentation of the
petition for adjudication any person is apprenticed or is an articled clerk to
the bankrupt, the order of adjudication shall, if either the bankrupt or
apprentice or clerk give notice in writing to the trustee to that effect, be a
complete discharge of the indenture of apprenticeship or articles of agreement;
and if any money has been paid by or on behalf of such apprentice or clerk to
the bankrupt as a fee, the trustee may, on the application of the apprentice or
clerk, or of some person on his behalf, pay such sum as such trustee, subject
to an appeal to the court, thinks reasonable, out of the bankrupt's property to
or for the use of the apprentice or clerk, regard being had to the amount paid
by him or on his behalf, and to the time during which he served with the
bankrupt under the indenture or articles before the commencement of the
bankruptcy, and to the other circumstances of the case. | Preferential claim in case of apprenticeship. |
Where it appears
expedient to a trustee he may, on the application of any apprentice or articled
clerk to the bankrupt, or any person acting on behalf of such apprentice or
articled clerk, instead of acting under the preceding provisions of this
section, transfer the indenture of apprenticeship or articles of agreement to some
other person. |
32. The landlord or other person to whom any rent is
due from the bankrupt may at any time either before or after the commencement
of the bankruptcy, distrain upon the goods or effects of the bankrupt for the
rent due to him from the bankrupt, with this limitation, that if such distress
for rent be levied after the commencement of the bankruptcy it shall be
available only for one year's rent accrued due prior to the date of the order
of adjudication, but the landlord or other person to whom the rent may be due
from the bankrupt may prove under the bankruptcy for the overplus due for which
the distress may not have been available. | Power of landlord to distrain for rent. |
33. When any rent or other payment falls due at stated
periods and the order of adjudication is made at any time other than one of
such periods, the person entitled to such rent or payment may prove for a
proportionate part thereof up to the day of the adjudication as if such rent or
payment grew due from day to day. | Proof in case of rent and periodical payment. |
34. Interest on any debt provable in bankruptcy may be
allowed by the trustee under the same circumstances in which interest would
have been allowable by a jury if an action had been for such debt. | Interest on debts. |
35. If any bankrupt is at the date of the order of
adjudication liable in respect of distinct contracts as member of two or more
distinct firms, or as a sole contractor, and also a member of a firm, the
circumstance that such firms are in whole or in part composed of the same
individuals, or that the sole contractor is also one of the joint contractors,
shall not prevent proof in respect of such contracts, against the properties
respectively liable upon such contracts. | Proof in respect of contracts. |
36. The trustee, with the consent of the creditors,
testified by a resolution passed in general meeting, may from time to time,
during the continuance of the bankruptcy, make such allowance as may be
approved by the creditors to the bankrupt out of his property for the support
of the bankrupt and his family, or in consideration of his services if he is
engaged in winding up his estate. | Allowance to bankrupt for maintenance or service. |
37. Where there have been mutual credits, mutual debts
or other mutual dealings between the bankrupt and any other person proving or
claiming to prove a debt under his bankruptcy, an account shall be taken of
what is due from the one party to the other, in respect of such mutual
dealings, and the sum due from the one party shall be set off against any sum
due from the other party, and the balance of such account, and no more, shall be
claimed or paid on either side respectively; but a person shall not be entitled
under this section to claim the benefit of any set off against the property of
a bankrupt in any case where he had at the time of giving credit to the
bankrupt notice of an act of bankruptcy committed by such bankrupt and
available against him for adjudication. | Set off. |
38. A creditor holding a specific security on the
property of the bankrupt, or on any part thereof, may, on giving up his
security prove for his whole debt. | Provision as to secured creditor. |
He shall also be
entitled to a dividend in respect of the balance due to him after realising or
giving credit for the value of his security, in manner and at the time
prescribed. |
A creditor holding
a specific security as aforesaid and not complying with the foregoing
conditions shall be excluded from all share in any dividend. |
Dividends |
39. The trustee shall from time to time, when the
committee of inspection determines, declare a dividend amongst the creditors
who have proved to his satisfaction debts provable in bankruptcy, and shall
distribute the same accordingly; and in the event of his not declaring a
dividend for the space of six months, he shall summon a meeting of the
creditors, and explain to them his reasons for not declaring the same. | Distribution of dividends. |
40. In the calculation and distribution of a dividend
it shall be obligatory on the trustee to make provision for debts provable in
bankruptcy appearing from the bankrupt's statements, or otherwise, to be due to
persons resident in places so distant from the place where the trustee is
acting that in the ordinary course of communication they have not had
sufficient time to tender their proofs, or to establish them if disputed, and
also for debts provable in bankruptcy, the subject of claims not yet
determined. | Provision for creditors residing at a distance, etc. |
41. Any creditor who has not proved his debt before the
declaration of any dividend or dividends, shall be entitled to be paid out of
any moneys for the time being in the hand of the trustee any dividend or
dividends he may have failed to receive before such moneys are made applicable
to the payment of any future dividend or dividends; but he shall not be
entitled to disturb the distribution of dividend declared before his debt was
proved, by reason that he has not participated therein. | Right of creditor who has not proved debt before
declaration of a dividend. |
42. When the trustee has converted into money all the
property of the bankrupt, or so much thereof as can, in the joint opinion of
himself and of the committee of inspection, be realised without needlessly
protracting the bankruptcy, he shall declare a final dividend, and give notice
of the time at which it will be distributed. | Final dividend. |
43. The bankrupt shall be entitled to any surplus
remaining after payment of his creditors, and of the costs, charges and
expenses of the bankruptcy. | Bankrupt entitled to surplus. |
44. No action or suit for a dividend shall lie against
the trustee, but if the trustee refuses to pay any dividend the court may, if
it thinks fit, order the trustee to pay the same, and also to pay out of his
own moneys interest thereon for the time that it is withheld, and the costs of
the application. | No action for dividend. |
Close of
Bankruptcy |
45. When the whole property of the bankrupt has been
realised for the benefit of his creditors, or so much thereof as can, in the
joint opinion of the trustee, and committee of inspection, be realised without
needlessly protracting the bankruptcy, or a composition or arrangement has been
completed, the trustee shall make a report accordingly to the court; and the
court, if satisfied that the whole of the property of the bankrupt has been
realised for the benefit of his creditors, or so much thereof as can be
realised without needlessly protracting the bankruptcy, or that a composition
or arrangement has been completed, shall make an order that the bankruptcy has
closed, and the bankruptcy shall be deemed to have closed at and after the date
of such order. | Close of bankruptcy. |
A copy of the
order closing the bankruptcy may be published in the Gazette, and the
production of a copy of such Gazette containing a copy of the order
shall be conclusive evidence of the order having been made, and of the date and
the contents thereof. |
Discharge of
Bankrupt |
46. When a bankruptcy is closed, or at any time during
its continuance, with the assent of the creditors testified by a special
resolution, the bankrupt may apply to the court for an order of discharge; but
such discharge shall not be granted unless it is proved to the court that one
of the following conditions has been fulfilled, that is to say, either that a
dividend of not less than fifty cents in the dollar has been
paid out of his property, or might have been paid except through the negligence
or fraud of the trustee, or that a special resolution of his creditors has been
passed to the effect that his bankruptcy or the failure to pay fifty cents in
the dollar has, in their opinion, arisen from circumstances for which the
bankrupt cannot justly be held responsible, and that they desire that an order
of discharge should be granted to him; and the court may suspend for such time
as it deems to be just, or withhold altogether, the order of discharge in the
circumstances following; namely, if it appears to the court on the
representation of the creditors made by special resolution, of the truth of
which representation the court is satisfied, or by other sufficient evidence,
that the bankrupt has made default in giving up to his creditors the property
which he is required by this Act to give up; or that a prosecution has been
commenced against him in pursuance of the provisions relating to the punishment
of fraudulent debtors, contained in the Debtors Act, in respect of any
offence alleged to have been committed by him against the said Act. | Order of discharge. |
47. An order of discharge shall not release the
bankrupt from any debt or liability incurred by means of any fraud or breach of
trust, nor from any debt or liability whereof he has obtained forbearance by
any fraud, but it shall release the bankrupt from all other debts provable
under the bankruptcy with the exception of- | Effect of order of discharge. |
(1) debts due
to the Crown; |
(2) debts with
which the bankrupt stands charged at the suit of the Crown or of any person for
any offence against a statute relating to any branch of the public revenue, or
at the suit of the Provost Marshal or other public officer on a bail bond
entered into for the appearance of any person prosecuted for any such offence. |
An order of
discharge shall be sufficient evidence of the bankruptcy, and of the validity
of the proceedings thereon, and in any proceedings that may be instituted
against a bankrupt who has obtained an order of discharge in respect of any
debt from which he is released by such order, the bankrupt may plead that the
cause of action occurred before his discharge, and may give this Act and the
special matter in evidence. |
48. The order of discharge shall not release any person
who, at the date of the order of adjudication, was a partner with the bankrupt,
or was jointly bound or had made any joint contract with him. | Exception of joint debtors. |
Release of
Trustee |
49. When the bankruptcy is closed the trustee shall
call a meeting of the creditors to consider an application to be made to the
court for his release. At the meeting the trustee shall lay before the
assembled creditors an account showing the manner in which the bankruptcy has
been conducted, with a list of the unclaimed dividends, if any, and of the
property, if any, outstanding, and shall inform the meeting that he proposes to
apply to the court for a release. | Release of trustee. |
The creditors
assembled at the meeting may express their opinion as to the conduct of the
trustee, and they, or any of them, may appear before the court and oppose the
release of the trustee. |
The court, after
hearing what, if anything, can be urged against the release of the trustee,
shall grant or withold the release accordingly, and if it withholds the release
shall make such order as it thinks just, charging the trustee with the
consequences of any act or default he may have done or made contrary to his
duty, and shall suspend his release until such charging order has been complied
with, and the court thinks just to grant the release of the trustee. |
50. Unclaimed dividends, and any other moneys arising
from the property of the bankrupt, remaining under the control of the trustee
at the close of the bankruptcy of any bankrupt, or accruing thereafter, shall
be accounted and paid over to such account as may be directed by the rules; and
any parties entitled thereto may claim the same in manner directed by the
rules. The trustee shall also deliver a list of any outstanding property of the
bankrupt to the prescribed persons, and the same shall, when practicable, be
got in and applied for the benefit of the creditors in manner prescribed. | Duty of trustee as to unclaimed dividends and
outstanding property. |
51. The order of the court releasing the trustee of a
bankruptcy shall discharge him from all liability in respect of any act done or
default made by him in the administration of the affairs of the bankrupt, or
otherwise in relation to his conduct as trustee of such bankrupt, but such
order may be revoked by the court on proof that it was obtained by fraud. | Effect of release of trustee. |
Status of
Undischarged Bankrupt |
52. Where a person who has been made a bankrupt has not
obtained his discharge, then, from and after the close of his bankruptcy, the
following consequences shall ensue- | Status of undischarged bankrupt. |
(1) no portion
of a debt provable under the bankruptcy shall be enforced against the property
of the person so made bankrupt until the expiration of three years from the
close of the bankruptcy; and during that time, if he pays to his creditors such
additional sum as will, with the dividend paid out of his property during the bankruptcy, make up fifty cents in
the dollar, he shall be entitled to an order of discharge in the same manner as
if a dividend of fifty cents in the dollar had originally been paid out of his
property; |
(2) at the
expiration of a period of three years from the close of the bankruptcy, if the
debtor made bankrupt has not obtained an order of discharge, any balance
remaining unpaid in respect of any debt proved in such bankruptcy (but without
interest in the meantime) shall be deemed to be a subsisting debt in the nature
of a judgment debt, and, subject to the rights of any persons who have become
creditors of the debtor since the close of his bankruptcy, may be enforced
against any property of the debtor, with the sanction of the court which
adjudicated such debtor a bankrupt, or of the court having jurisdiction in
bankruptcy in the place where the property is situated, but to the extent only,
and at the time and in manner directed by such court, and after giving such
notice and doing such acts as may be prescribed in that behalf. |
Audit |
53. The trustee, having had his quarterly statement of
accounts audited by the committee of inspection, shall, within the prescribed
time, forward the certified statement in the prescribed form to the Registrar,
and if he fails to do so he shall be deemed guilty of a contempt of court to be
punishable accordingly. | Return of statement to Registrar. |
54. Every trustee of a bankrupt shall from time to time
as may be prescribed, and not less than once in every year during the
bankruptcy, transmit to the Registrar a statement showing the proceedings in
such bankruptcy up to the date of the statement containing the prescribed
particulars, and made out in the prescribed form; and any trustee failing to
transmit accounts in compliance with this section shall be deemed guilty of a
contempt of court, and be punishable accordingly. | Return of accounts to Registrar. |
55. The Registrar shall examine the statements
transmitted to him, and shall call the trustee to account for any misfeasance,
neglect or omission which may appear on such statements, and may require the
trustee to make good any loss the estate of the bankrupt may have sustained by
such misfeasance, neglect or omission. If the trustee fails to comply with such
requisition of the Registrar, the Registrar may report the same to the court;
and the court, after hearing the explanation, if any, of the trustee, shall
make such order in the premises as it thinks just. | Duty of Registrar. |
56. The Registrar may at any time require any trustee
to answer any inquiry made by him in relation to any bankruptcy in which such
trustee is engaged, and may, if he thinks fit, apply to the court to examine on
oath such trustee or any other person concerning such bankruptcy; he may also
direct a local investigation to be made of the books and vouchers of the
trustee. | Powers of Registrar. |
PART III
CONSTITUTION AND POWERS OF COURT |
Description of
Court |
57. A judge may sit in chambers, and when in chambers
shall have the same jurisdiction and exercise the same power as if sitting in
open court. | A judge's powers in chambers. |
58. The court may, subject and in accordance with the
rules, delegate to the Registrar or any other officer of the court such of the
powers vested in it by this Act as it may be expedient for the court to
delegate to him. | Court may delegate authority. |
59. Subject to the provisions of this Act, the court
shall have full power to decide all questions of priorities, and all other
questions whatsoever, whether of law or fact, arising in any case of bankruptcy
coming within the cognisance of such court, or which the court may deem it
expedient or necessary to decide for the purpose of doing complete justice or
making a complete distribution of property in any such case; and no such court
as aforesaid shall be subject to be restrained in the execution of its powers
under this Act by the order of any other court, nor shall any appeal lie from
its decisions, except in manner directed by this Act; and if in any proceedings
in bankruptcy there arises any question of fact which the parties desire to be
tried before a jury instead of by the court itself, or which the court thinks
ought to be tried by a jury, the court may direct such trial to be had, and
such trial may be had accordingly in the court in the same manner in which jury
trials in ordinary cases are by law held in such court. | Powers of court. |
60. Any search warrant issued by the court for the
discovery of any property of a bankrupt may be executed in the same manner and
subject to the same privileges in and subject to which a search warrant for
property supposed to be stolen may be executed according to law. | Search warrants. |
61. Where the court commits any person to prison, the
commitment may be to such convenient prison as the court thinks expedient; and
if the gaoler of any prison refuses to receive any prisoner so committed, he
shall be liable for every refusal to a penalty of four hundred dollars. | Commitment to prison. |
PART IV
SUPPLEMENTAL PROVISIONS |
As to Proceedings |
62. The following provisions shall apply with respect
to proceedings in bankruptcy- | Supplemental provisions as to proceedings in
bankruptcy. |
(1) every
bankruptcy petition shall be accompanied by an affidavit of the petitioner in
the prescribed form, verifying the statements contained in such petition; |
(2) where two
or more bankruptcy petitions are presented against the same debtor, or against
debtors being members of the same partnership, the court may consolidate the
proceedings or any of them, upon such terms as the court thinks fit; |
(3) where the
petitioner does not proceed with due diligence on his petition, the court may
substitute as petitioner any other creditor to whom the debtor may be indebted
in the amount required by this Act in the case of a petitioning creditor; |
(4) a
corporation may prove a debt, vote and otherwise act in bankruptcy, by an agent
duly authorised under the seal of the corporation; |
(5) a creditor
may, in the prescribed manner, by instrument in writing, appoint a person to
represent him in all matters relating to any debtor or his affairs in which a
creditor is concerned in pursuance of this Act, and such representative shall
thereupon, for all the purposes of this Act, stand in the same position as the
creditor who appointed him; |
(6) when a
debtor who has been adjudicated a bankrupt dies, the court may order that the
proceedings in the matter be continued as if he were alive; |
(7) the court
may, at any time, on proof to its satisfaction that proceedings in bankruptcy
ought to be stayed, by reason that negotiations are pending for the liquidation
of the affairs of the bankrupt by arrangement or for the acceptance of a composition
by the creditors in pursuance of the provisions hereinafter contained, or on
proof to its satisfaction of any other sufficient reason for staying the same,
make an order staying the same, either altogether or for a limited time, on
such terms and subject to such conditions as the court may think just. |
63. Whenever any adjudication in bankruptcy is annulled
all sales and dispositions of property and payments duly made, and all acts
theretofore done, by the trustee or any person acting under his authority, or
by the court, shall be valid, but the property of the debtor who was adjudged a
bankrupt shall in such case vest in such person as the court may appoint, or in
default of any such appointment revert to the bankrupt for all his estate or
interest therein upon such terms and subject to such conditions, if any, as the
court may declare by order. A copy of the order of the court annulling the
adjudication of a debtor as a bankrupt shall be forthwith published in the Gazette
and notified locally in the prescribed manner, and the production of a copy of
the Gazette containing such order shall be conclusive evidence of the
fact of the adjudication having been annulled, and of the terms of the order
annulling the same. | Consequences of annulling of adjudication. |
64. No proceedings in bankruptcy shall be invalidated
by any formal defect or by any irregularity unless the court before which an
objection is made to such proceedings is of opinion that substantial injustice
has been caused by such defect or irregularity, and that such injustice cannot
be remedied by any order of such court. | Formal defects not to invalidate proceedings. |
As to Trustees
and Committee of Inspection |
65. The following provisions shall apply with respect
to the trustee and committee of inspection- | Provisions as to trustee, etc. |
(1) the
creditors may, if they think fit, appoint more persons than one to the office
of trustee, and when more than one are appointed they shall declare whether any
act required or authorised to be done by the trustee is to be done by all or
any one or more of such persons, but all such persons are in this Act included
under the term "trustee", and shall be joint tenants of the property
of the bankrupt. The creditors may also appoint persons to act as trustees in
succession in the event of one or more of the persons first named declining to
accept the office of trustee; |
(2) if any
vacancy occurs in the office of trustee by death, resignation or otherwise, the
creditors in general meeting shall fill up such vacancy, and a general meeting
for the purpose of filling up such vacancy may be convened by the continuing
trustee, if there be more than one, or by the Registrar on the requisition of any
creditor; |
(3) if, through
any cause whatever, there is no trustee acting during the continuance of a
bankruptcy, the Registrar shall act as such trustee; |
(4) the court
may, upon cause shown, remove any trustee. The creditors may, by special
resolution at a meeting specially called for that purpose, of which seven days'
notice has been given, remove the trustee and appoint another person to fill
his office, and the court shall give a certificate declaring him to be the
trustee; |
(5) if a
trustee be adjudged bankrupt, he shall cease to be trustee, and the Registrar
shall, if there be no other trustee, call a meeting of creditors for the
appointment of another trustee in his place; |
(6) the
property of the bankrupt shall pass from trustee to trustee, including under
that term the Registrar when he fills the office of trustee, and shall vest in
the trustee for the time being during his continuance in office, without any
conveyance, assignment or transfer whatever; |
(7) the trustee
of a bankrupt may sue and be sued by the official name of the "trustee of
the property of ———— a bankrupt," inserting the name of the bankrupt, and
by that name may hold property of every description, make contracts, sue and be
sued, enter into any engagements binding upon himself and his successors in
office and do all other acts necessary or expedient to be done in the execution
of his office; |
(8) the
certificate of appointment of a trustee shall, for all purposes of any law in
force in any part of the Commonwealth requiring registration, enrolment or
recording of conveyances or assignments of property be deemed to be a
conveyance or assignment of property, and may be registered, enrolled and
recorded accordingly; |
(9) any member
of the committee of inspection may resign his office by notice in writing
signed by him, and delivered to the trustee; |
(10) the
creditors may by resolution fix the quorum required to be present at a meeting
of the committee of inspection; |
(11) any member
of the committee of inspection may also be removed by a special resolution at
any meeting of creditors of which the prescribed notice has been given, stating
the object of the meeting; |
(12) on any
vacancy occurring in the office of a member of the committee of inspection by
removal, death, resignation or otherwise, the trustee shall convene a meeting
of creditors for the purpose of filling up such vacancy; |
(13) the
continuing members of the committee of inspection may act, notwithstanding any vacancy
in their body; and where the number of members of the committee of inspection
is for the time being less than five, the creditors may increase that number so
that it does not exceed five; |
(14) no defect or
irregularity in the election of a trustee or of a member of the committee of
inspection shall vitiate any act bona fide done by him; and no act or
proceeding of the trustee or of the creditors shall be invalid by reason of any
failure of the creditors to elect all or any members of the committee of
inspection; |
(15) if a member
of the committee of inspection becomes a bankrupt his office shall thereupon
become vacant; |
(16) where there
is no committee of inspection, any act or thing or any direction or consent by
this Act authorised or required to be done or given by such committee may be
done or given by the court on the application of the trustee. |
66. The Registrar may adjourn the first meeting of
creditors from time to time and from place to place, subject to the directions
of the court; but if at such first meeting of creditors or at some adjournment
thereof no trustee is appointed by reason of the prescribed quorum not being
present, or for any other reason whatever, the court may annul the
adjudication, unless it deems it expedient to carry on the bankruptcy, with the
aid of the Registrar as trustee. Moreover, if at any time during the bankruptcy
no new trustee is appointed to fill a vacancy in that office, the court may
either carry on the bankruptcy with the aid of the Registrar as trustee or
annul the order of adjudication, as it thinks just. | Power of court on failure of creditors to appoint
trustee. |
As to Power over
Bankrupt |
67. The court, upon the application of the trustee, may
from time to time order that, for such time as the court thinks fit, not
exceeding three months from the date of the order of adjudication, post letters
addressed to the bankrupt at any place or any of the places mentioned in the
order, shall be re-directed, sent or delivered by the postmaster or the
officers acting under him, to the trustee or otherwise as the court directs,
and the same shall be done accordingly. | Post letters addressed to bankrupt. |
68. The court may, by warrant addressed to any peace
officer or prescribed officer of the court, cause a debtor to be arrested, and
any books, papers, moneys, goods and chattels in his possession to be seized,
and him and them to be safely kept as prescribed until such time as the court
may order, under the following circumstances- | Arrest of bankrupt under certain circumstances. |
(1) if, after a
petition of bankruptcy is presented against such debtor, it appears to the
court that there is probable reason for believing that he is about to go abroad
or to quit his place of residence with a view of avoiding service of the
petition, or of avoiding appearing to the petition or of avoiding examination
in respect of his affairs, or otherwise delaying or embarrassing the
proceedings in bankruptcy; |
(2) if, after a
petition in bankruptcy has been presented against such debtor, it appears to
the court that there is probable cause for believing that he is about to remove
his goods or chattels with a view of preventing or delaying such goods or
chattels being taken possession of by the trustee, or that there is probable
ground for believing that he has concealed or is about to conceal or destroy
any of his goods or chattels, or any books, documents or writings which might
be of use to his creditors in the course of his bankruptcy; |
(3) if, after
the service of the petition on such debtor, or after an adjudication in
bankruptcy against him, he removes any goods or chattels in his possession above the value of twenty dollars,
without the leave of the trustee, or if, without good cause shown, he fails to
attend any examination ordered by the court. |
As to Property
Devolving upon Trustee |
69. Where the goods of any trader have been taken into
execution in respect of a judgment for a sum exceeding two hundred dollars and
sold, the Provost Marshal shall retain the proceeds of such sale in his hands
for a period of fourteen days, and upon notice being served on him within that
period of a bankruptcy petition having been presented against such trader,
shall hold the proceeds of such sale, after deducting expenses, on trust to pay
the same to the trustee; but if no notice of such petition having been
presented be served on him within such period of fourteen days, or if, such
notice having been served, the trader against whom the petition has been
presented is not adjudged a bankrupt on such petition, or on any other petition
of which the Provost Marshal has notice, he may deal with the proceeds of such
sale in the same manner as he would have done had no notice of the presentation
of a bankruptcy petition been served on him. | Proceeds of sale and seizure of goods. |
70. Where a bankrupt is in the receipt of a salary or
income, however derived, the court, upon the application of the trustee, shall
from time to time make such order as it thinks just for the payment of such
salary or income, or of any part thereof, to the trustee during the bankruptcy,
and to the Registrar, if necessary, after the close of the bankruptcy, to be
applied by him in such manner as the court may direct. | Appropriation of portion of salary to creditors. |
71. Any settlement of property made by a trader not
being a settlement made before and in consideration of marriage, or made in
favour of a purchaser or incumbrancer in good faith and for valuable
consideration, or a settlement made on or for the wife or children of the
settlor of property which has accrued to the settlor after marriage in right of
his wife, shall, if the settlor become bankrupt within two years after the date
of such settlement, be void as against the trustee of the bankrupt appointed
under this Act, and shall, if the settlor becomes bankrupt at any subsequent
time within ten years after the date of such settlement, unless the parties
claiming under such settlement can prove that the settlor was at the time of
making the settlement able to pay all his debts without the aid of the property
comprised in such settlement, be void against such trustee. Any covenant or
contract made by a trader, in consideration of marriage, for the future
settlement upon or for his wife or children of any money or property wherein he
had not at the date of his marriage any estate or interest, whether vested or
contingent in possession or remainder, and not being money or property of or in
right of his wife, shall, upon his becoming bankrupt before such property or
money has been actually transferred or paid pursuant to such contract or
covenant, be void against his trustee appointed under this Act. | Avoidance of voluntary settlements. |
"Settlement"
shall, for the purposes of this section, include any conveyance or transfer of
property. |
72. Every conveyance or transfer of property, or charge
thereon made, every payment made, every obligation incurred, and every judicial
proceeding taken or suffered by any person unable to pay his debts as they
become due from his own moneys in favour of any creditor, or any person in
trust for any creditor, with a view of giving such creditor a preference over
the other creditors, shall if the person making, taking, paying or suffering
the same becomes bankrupt, within three months after the date of making, taking,
paying or suffering the same, be deemed fraudulent and void as against the
trustee of the bankrupt appointed under this Act; but this section shall not
affect the rights of a purchaser, payee or incumbrancer in good faith and for
valuable consideration. | Avoidance of fraudulent preferences. |
73. Any treasurer or other officer, or any banker,
attorney, or agent of a bankrupt, shall pay and deliver to the trustee all
moneys and securities in his possession or power, as |