CHAPTER
70
DEBTORS |
ARRANGEMENT OF
SECTIONS |
PRELIMINARY |
SECTION |
|
|
PART I
ABOLITION OF IMPRISONMENT FOR DEBT |
Abolishes imprisonment for debt. |
Circumstances under which courts may commit to
prison. |
Persons not to be arrested on mesne process
unless good cause on oath be shown. |
How sequestration may issue. |
Effect of this Part of Act. |
PART II
PUNISHMENT OF FRAUDULENT DEBTORS |
What cases in bankruptcy shall be deemed a
misdemeanour. |
|
|
Misdemeanour by creditor. |
Debtors making arrangement liable for any unpaid
balance before composition. |
Trustee may on report be ordered to prosecute
bankrupt. |
PART III
WARRANTS OF ATTORNEY AND COGNOVITS |
Every cognovit actionem to be of force
must be signed by the attorney for the person executing it. |
A justice of the peace must witness a warrant of
attorney on the Out Islands. |
Proof not to be given of bad execution of
cognovit. |
Circumstances which render void or make
fraudulent cognovits. |
|
SCHEDULE - Description of Traders. |
CHAPTER 70 |
DEBTORS |
An Act
for the abolition of imprisonment for debt, for the punishment of fraudulent
debtors and for other purposes. | 9 of 1870
13 of 1870
46 of 1964
5 of 1987 |
[Commencement 15th
March, 1870] |
PRELIMINARY |
1. This Act may be cited as the Debtors 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; |
"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, easements, 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; |
"trader"
means the several persons in that behalf mentioned in the
Schedule to this Act. |
PART I
ABOLITION OF IMPRISONMENT FOR DEBT |
3. With the exceptions hereinafter mentioned, no person
shall be arrested or imprisoned for making default in payment of a sum of
money. | Abolishes imprisonment for debt. |
There shall be
excepted from the operation of the above enactment- | Exceptions. |
(a) default in
payment of a penalty or sum in the nature of a penalty, or other than a penalty
in respect of any contract; |
(b) default in
payment of any sum recoverable summarily before a justice or justices of the
peace; |
(c) default by
a trustee or person acting in a fiduciary capacity and ordered to pay to the
court any sum in his possession or under his control; |
(d) default by
an attorney or solicitor in payment of costs, when ordered to pay costs for
misconduct as such, or in payment of a sum of money when ordered to pay the
same in his character of an officer of the court making the order; |
(e) default in
payment for the benefit of creditors of any portion of a salary or other income
in respect of the payment of which any court having jurisdiction in bankruptcy
is authorised to make an order; |
(f) default in
payment of sums in respect of the payment of which orders are in this Act
authorised to be made: |
Provided that no
person shall be imprisoned in any case excepted from the operation of this
section for a longer period than one year: |
Provided also that
nothing in this section shall alter the effect of any judgment or order of any
court for payment of money, except as regards the arrest and imprisonment of
the person making default in paying such money. |
4. Subject to the provisions hereinafter mentioned, and
to the rules, any court may commit to prison for a term of six weeks, or until
payment of the sum due, any person who makes default in payment of any debt or
instalment of any debt due from him in pursuance of any order or judgment of
that or any other competent court: | Circumstances under which courts may commit to prison. |
Provided- |
(a) that the
jurisdiction by this section given of committing a person to prison shall, in
the case of any court other than the court, be exercised only by an order made
in open court, and showing on its face the ground on which it is issued; |
(b) that such
jurisdiction shall only be exercised where it is proved to the satisfaction of
the court that the person making default either has, or has had since the date
of the order of judgment, the means to pay the sum in respect of which he has
made default, and has refused or neglected, or refuses or neglects to pay the
same. |
Proof of the means
of the person making default may be given in such manner as the court thinks
just; and for the purposes of such proof the debtor and any witnesses may be
summoned and examined on oath, according to the rules. |
Any jurisdiction
by this section given to the court may be exercised by a judge sitting in
chambers or otherwise in the prescribed manner. |
For the purposes
of this section, any court may direct any debt due from any person in pursuance
of any order or judgment, of that, or any other competent court, to be paid by
instalments, and may, from time to time, rescind or vary such order. |
Persons committed
under this section by the court, may be committed to the prison in which they
would have been confined, if arrested on a writ of capias ad satisfaciendum,
and every order of committal by the court shall, subject to the rules, be
issued, obeyed and executed in the like manner as such writ. |
No imprisonment
under this section shall operate as a satisfaction or extinguishment of any
debt or demand, or cause of action, or deprive any person of any right to take
out execution against the lands, goods or chattels of the person imprisoned, in
the same manner as if such imprisonment had not taken place. |
Any person
imprisoned under this section shall be discharged out of custody upon a
certificate signed in the prescribed manner to the effect that he has satisfied
the debt, or instalment of a debt, in respect of which he was imprisoned,
together with the prescribed costs (if any). |
5. A person shall not be arrested upon mesne process in
any action- | Persons not to be arrested on mesne process unless
good cause on oath be shown. |
(a) where the
plaintiff in any action in the court in which, if brought before the
commencement of this Act, the defendant would have been liable to arrest,
proves at any time before final judgment, by evidence on oath, to the
satisfaction of the court, that the plaintiff has good cause of action against
the defendant, and that there is probable cause for believing that the
defendant is about to quit The Bahamas, unless he be apprehended, and that the
absence of the defendant from The Bahamas will materially prejudice the
plaintiff in the prosecution of his action, the court may, in the prescribed
manner, order such defendant to be arrested and imprisoned, for a period of six
months, unless and until he has sooner given the prescribed security, not exceeding
the amount claimed in the action, that he will not go out of The Bahamas
without the leave of the court; |
(b) where the
action is for a penalty or sum in the nature of a penalty other than a penalty
in respect of any contract, it shall not be necessary to prove the absence of
the defendant from The Bahamas will materially prejudice the plaintiff in the
prosecution of his action, and the security given (instead of being that the
defendant will not go out of The Bahamas) shall be to the effect that any sum
recovered against the defendant in the action shall be paid, or that the
defendant shall be rendered to prison. |
6. Sequestration against the property of a debtor may be
issued by the court in the same manner as if such debtor had been actually
arrested. | How sequestration may issue. |
7. Nothing in this Part of this Act shall in any way
affect any right or power, under the Bankruptcy Act, to arrest or
imprison any person. | Effect of this Part of Act. |
PART II
PUNISHMENT OF FRAUDULENT DEBTORS |
8. Any person adjudged bankrupt, and any person whose
affairs are liquidated by arrangement in pursuance of the
Bankruptcy Act, shall, in each of the cases following, be deemed guilty of a
misdemeanour, and on conviction thereof shall be liable to be imprisoned for
two years, that is to say- | What cases in bankruptcy shall be deemed a
misdemeanour. |
(a) if he does
not, to the best of his knowledge and belief, fully and truly discover to the
trustee administering his estate for the benefit of his creditors, all his
property, real and personal, and how, and to whom, and for what consideration,
and when he disposed of any part thereof, except such part as has been disposed
of in the ordinary way of his trade (if any) or laid out in the ordinary
expense of his family, unless the jury is satisfied that he had no intent to
defraud; |
(b) if he does
not deliver up to such trustee, or as he directs, all such part of his real and
personal property as is in his custody or under his control, and which he is
required by law to deliver up, unless the jury is satisfied that he had no
intent to defraud; |
(c) if he does
not deliver up to such trustee, or as he directs, all books, documents, papers
and writings in his custody or under his control, relating to his property or
affairs, unless the jury is satisfied that he had no intent to defraud; |
(d) if, after
the presentation of a bankruptcy petition against him, or the commencement of
the liquidation, or within four months next before such presentation or
commencement, he conceals any part of his property to the value of
forty dollars or upwards, or conceals any debt due to or from him, unless the
jury is satisfied that he had no intent to defraud; |
(e) if, after
the presentation of a bankruptcy petition against him or the commencement of
the liquidation, or within four months next before such presentation or
commencement, he fraudulently removes any part of his property of the
value of forty dollars or upwards; |
(f) if he
makes any material omission in any statement relating to his affairs, unless
the jury is satisfied that he had no intent to defraud; |
(g) if, knowing
or believing that a false debt has been proved by any person under the
bankruptcy or liquidation, he fails for the period of a month to inform such
trustee, as aforesaid, thereof; |
(h) if, after
the presentation of a bankruptcy petition against him, or the commencement of
the liquidation, he prevents the production of any book, document, paper or
writing affecting or relating to his property or affairs, unless the jury is satisfied
that he had no intent to conceal the state of his affairs or to defeat the law; |
(i) if, after
the presentation of a bankruptcy petition against him, or the commencement of
the liquidation, or within four months next before such presentation or commencement,
he conceals, destroys, mutilates or falsifies, or is privy to the concealment,
destruction, mutilation or falsification of any book or document affecting or
relating to his property or affairs, unless the jury is satisfied that he had
no intent to conceal the state of his affairs or defeat the law; |
(j) if, after
the presentation of a bankruptcy petition against him, or the commencement of
the liquidation, or within four months next before such presentation or
commencement, he makes or is privy to the making of any false entry in any book
or document affecting or relating to his property or affairs, unless the jury
is satisfied that he had no intent to conceal the state of his affairs or to
defeat the law; |
(k) if, after
the presentation of a bankruptcy petition against him, or the commencement of
the liquidation, or within four months next before such presentation, or
commencement, he fraudulently parts with, alters or makes any omission or is
privy to the fraudulently parting with, altering or making any omission in any
document affecting or relating to his property or affairs; |
(l) if, after
the presentation of a bankruptcy petition against him, or the commencement of
the liquidation, or at any meeting of his creditors within four months next
before such presentation or commencement, he attempts to account for any part
of his property by fictitious losses or expenses; |
(m) if, within
four months next before the presentation of a bankruptcy petition against him,
or the commencement of the liquidation, he, by any false representation or
other fraud, has obtained any property on credit and has not paid for the same; |
(n) if, within
four months next before the presentation of a bankruptcy petition against him
or the commencement of the liquidation, he, being a trader, obtains, under the
false pretence of carrying on business and dealing in the ordinary way of his
trade, any property on credit, and has not paid for the same, unless the jury
is satisfied that he had no intent to defraud; |
(o) if, within
four months next before the presentation of a bankruptcy petition against him,
or the commencement of the liquidation, he, being a trader, pawns, pledges or
disposes of, otherwise than in the ordinary way of his trade, any property
which he has obtained on credit and has not paid for, unless the jury is
satisfied that he had no intent to defraud; |
(p) if he is
guilty of any false representation or other fraud for the purpose of obtaining
the consent of his creditors, or any of them, to any agreement with reference
to his affairs or his bankruptcy or liquidation. |
9. If any person who is adjudged a bankrupt, or has his
affairs liquidated by arrangement, after the presentation of a bankruptcy
petition against him, or the commencement of the liquidation, or within four
months before such presentation or commencement, quits The Bahamas, and takes
with him, or attempts or makes preparation for quitting The Bahamas, and for
taking with him any part of his property to the amount of eighty
dollars or upwards, which ought by law to be divided amongst his creditors, he
shall (unless the jury is satisfied that he had no intent to defraud be guilty
of felony, punishable with imprisonment for two years. | Felony by debtor. |
10. Any person shall, in each of the cases following,
be deemed guilty of a misdemeanour and, on conviction thereof, shall be liable
to be imprisoned for one year, that is to say- | Misdemeanour by debtor. |
(a) if, in
incurring any debt or liability, he has obtained credit under false pretences,
or by means of any other fraud; |
(b) if he has,
with intent to defraud his creditors, or any of them, made, or caused to be
made, any gift, delivery or transfer of or any charge on his property; |
(c) if he has,
with intent to defraud his creditors, concealed or removed any part of his
property since, or within two months before the date of any unsatisfied
judgment or order for payment of money obtained against him. |
11. If any creditor in any bankruptcy or liquidation,
by arrangement or composition with creditors in pursuance of the
Bankruptcy Act, wilfully, and with intent to defraud, makes any false claim, or
any proof, declaration or statement of account which is untrue in any material
particular, he shall be guilty of a misdemeanour, punishable with imprisonment
for one year. | Misdemeanour by creditor. |
12. Where a debtor makes any arrangement or composition
with his creditors under the provisions of the Bankruptcy Act, he shall remain
liable for the unpaid balance of any debt which he incurred or increased, or
whereof, before the date of the arrangement or composition, he obtained
forbearance, by any fraud: | Debtors making arrangement liable for any unpaid
balance before composition. |
Provided that the
defrauded creditor has not assented to the arrangement or composition otherwise
than by proving his debts and accepting dividends. |
13. Where a trustee in any bankruptcy reports to any
court exercising a jurisdiction in bankruptcy that in his opinion a bankrupt
has been guilty of any offence under this Act, or where the court is satisfied,
upon the representation of any creditor or member of the committee of
inspection, that there is ground to believe that the bankrupt has been guilty
of any offence under this Act, the court shall, if it appears to the court that
there is a reasonable probability that the bankrupt may be convicted, order the
trustee to prosecute the bankrupt for such offence. | Trustees may on report be ordered to prosecute
bankrupt. |
PART III
WARRANTS OF ATTORNEY AND COGNOVITS |
14. A warrant of attorney to confess judgment in any
personal action or cognovit actionem given by any person, then being in
New Providence, shall not be of any force unless there is present some attorney
of the court on behalf of such person expressly named by him and attending at
his request to inform him of the nature and effect of such warrant or cognovit
before the same is executed, which attorney shall subscribe his name as a
witness to the due execution thereof, and thereby declare himself to be
attorney for the person executing the same, and state that he subscribes as
such attorney. | Every cognovit actionem to be of force must be
signed by the attorney for the person executing it. |
15. Where a warrant of attorney or cognovit actionem
is given by any person residing at any Out Island, the same shall be of full
force and effect if at the time of the execution of the said warrant or
cognovit a justice of the peace shall be present, and shall subscribe his name
as a witness to the due execution thereof, and shall also certify that the
party so executing the warrant or cognovit did fully understand the nature and
effect thereof. | A justice of the peace must witness a warrant of
attorney on the Out Islands. |
16. A warrant of attorney to confess judgment or cognovit
actionem not executed in manner aforesaid shall not be rendered valid by
proof that the person executing the same did in fact understand the nature and
effect thereof or was fully informed of the same. | Proof not to be given of bad execution of cognovit. |
17. Where, in an action, a warrant of attorney to
confess judgment or a cognovit actionem is given, and the same or a true
copy thereof is not filed with the Registrar, within twenty-one days next after
the execution thereof, the same shall be deemed fraudulent and shall be void;
and if any such warrant of attorney or cognovit actionem so filed was
given subject to any defeasance or condition, such defeasance or condition
shall be written on the same paper or parchment, with the warrant or cognovit
before the filing thereof, otherwise the warrant or cognovit shall be void. | Circumstances which render void or make fraudulent cognovits. |
18. It shall be lawful for rules of court to be made
under section 76 of the Supreme Court Act for the purpose of generally carrying
into effect the provisions of this Act and for prescribing fees in relation to
any matter arising under the Act or the said rules of court. | Rules. |
SCHEDULE (Section 2) |
DESCRIPTION OF
TRADERS |
Apothecaries,
auctioneers, bankers, brokers, builders, carpenters,
carriers, inn keepers, tavern keepers, hotel keepers, coffee house keepers,
lime burners, livery stable keepers, printers, shipowners, shipwrights,
victuallers, warehousemen, wharfingers, persons insuring ships or their freight
or other matters against perils of the sea, persons using the trade of
merchandise by way of bargaining, exchange, bartering, commission, consignment,
or otherwise, in gross or by retail, and persons who, either for themselves or
as agents or factors for others, seek their living by buying and selling or
buying and letting for hire goods or commodities, or by the workmanship or the
conversion of goods or commodities; but a farmer, grazier, common labourer or
workman for hire, shall not, nor shall a member of any partnership, association
or company which cannot be adjudged bankrupt under the
Bankruptcy Act, be deemed as such a trader for the purposes of this act. |