Bankruptcy (Scotland) Act 1856
| Jurisdiction | UK Non-devolved |
| Citation | 1856 c. 79 |
| Year | 1856 |
(19 & 20 Vict.) C A P. LXXIX.
[29th July 1856]
'WHEREAS it is expedient to consolidate and amend the Laws relating to Insolvency and Bankruptcy, and for regulating the Sequestration of Estates of Bankrupts, inScotland: ' Be it enacted by the Queen's most Excellect Majesty, by and with the Advice and Consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the Authority of the same, as follows:
I Short Title and Commencement of Act.
I. This Act may be cited as the ‘Bankruptcy (Scotland ) Act, 1856,’ and shall come into operation on and after the First Day ofNovember One thousand eight hundred and fifty-six.
II G. 3. c. 137. 2 & 3 Vict. c. 41. and 16 & 17 Vict. c. 53. repealed.
II. The Acts passed in the Sessions of Parliament holden in the Fifty-fourth Year of the Reign of His Majesty KingGeorge the Third, Chapter One hundred and thirty-seven, and in the Second and Third Year of the Reign of Her present Majesty, Chapter Forty-one, and in the Sixteenth and Seventeenth Year of the Reign of Her present Majesty, Chapter Fifty-three, are hereby repealed; saving always their Effect in regard to any Act or Deed done or granted prior to the Date of this Act coming into operation.
III Effect on existing Sequestrations.
III. All Sequestrations awarded on and after the said Date, or Proceedings occurring on or after the said Date in Sequestrations which have been awarded before it under former Acts, unless it be otherwise herein-after provided, shall, if and so soon as an Interlocutor to that Effect pronounced by the Lord Ordinary shall become final, or if and so soon as an Interlocutor to that Effect shall be pronounced by the Court, be regulated by this Act: Provided always, that until such Interlocutor by the Lord Ordinary shall become final, or until such Interlocutor shall be pronounced by the Court, Proceedings in Sequestrations awarded before the said Date shall be conducted as if the Acts hereby repealed were still in force, and such Proceedings shall thereon be as valid as if the said Acts were unrepealed.
IV Construction and Meaning of certain Words.
IV. In this Act the Words ‘Lord Ordinary’ shall mean the Lord Ordinary officiating on the Bills in the Court of Session; the Word ‘Deliverance’ shall include any Order, Warrant, Judgment, Decision, Interlocutor, or Decree; the Words ‘Clerk or Officer of the Court of Session’ shall include the Keeper of the Register of Abbreviates of Adjudications; the Word ‘Accountant’ shall mean the Accountant in Bankruptcy appointed under this Act; the Word ‘Gazette’ shall signify theEdinburgh Gazette; the Word ‘Commissioners’ shall mean a Majority of the Commissioners elected under the Provisions of this Act; the Words ‘Property’ and ‘Estate’ shall, when not expressly restricted, include every Kind of Property, Heritable or Moveable, wherever situated, and all Rights, Powers, and Interests therein capable of legal Alienation, or of being affected by Diligence or attached for Debt; the Word ‘Moveable’ shall include Personal, and the Word ‘Heritable’ shall include Real; the Word ‘Security’ shall include Securities, Heritable or Moveable, and Rights of Lien, Retention, or Preference, and Conveyances thereof and any Part thereof; the Word ‘Sheriff’ shall include Sheriff Substitute, unless the Context indicate the contrary; the Word ‘Successors’ shall include all Persons who have succeeded to any Property which was vested in a Party deceased at the Time of his Death, whether as Heirs, Heirs Apparent, Trustees under voluntary Conveyances, Representatives by Deed or otherwise, Executors, Administrators, or nearest of Kin, or as Assignees, or Legatees, and shall also include Singular Successors where they have acquired the Right; the Word ‘Vote’ shall, as well as the ordinary Meaning thereof, include a Consent to any Offer of Composition, and to a Discharge of the Debtor, and also a Dissent from such Offer or Discharge; the Word ‘Company’ shall include Bodies Corporate, Politic, or Collegiate, and Partnerships; the Words ‘Partner of a Company’ shall include the Members of such Bodies; the Words ‘Debtor,’‘Bankrupt,’ and ‘Creditor’ shall apply to Companies as well as Individuals, and shall include Aliens, unless in this, and also in the other Cases herein-above specified, a different Construction shall be provided.
V Reckoning of Time.
V. Periods of Time in this Act shall be reckoned exclusive of the Day from which such Period is directed to run.
VI Dates of Deeds.
VI. The Date of a Deed under this Act, or under the Act passed in the Parliament ofScotland held in the Year One thousand six hundred and ninety-six, Chapter Five, shall be the Date of recording of the Sasine, where Sasine is requisite, and, in other Cases, of Registration of the Deed, or of Delivery, or of Intimation, or of such other Proceeding as shall in the particular Case be requisite for rendering such Deed completely effectual.
Constitution and Effects of Notour Bankruptcy.
VII Notour Bankruptcy of Individuals.
VII. Notour Bankruptcy shall be constituted by the following Circumstances:
1st. By Sequestration, or by the issuing of an Adjudication of Bankruptcy inEngland or Ireland; or
2 d. By Insolvency, concurring either—
(A.) With a duly executed Charge for Payment, followed, where Imprisonment is competent, by Imprisonment or formal and regular Apprehension of the Debtor, or by his Flight or absconding from Diligence, or Retreat to the Sanctuary, or forcible defending of his Person against Diligence, or where Imprisonment is incompetent or impossible, by Execution of Arrestment of any of the Debtor's Effects not loosed or discharged for Fifteen Days, or by Execution of Poinding of any of his Moveables, or by Decree of Adjudication of any Part of his Heritable Estate for Payment or in Security; or
(B.) With Sale of any Effects belonging to the Debtor under a Poinding, or under a Sequestration for Rent, or with his retiring to the Sanctuary for Twenty-four Hours, or with his making Application for the Benefit ofCessio bonorum.
VIII Of a Company.
VIII. Notour Bankruptcy of a Company shall be constituted either in any of the foregoing Ways or by any of the Partners being rendered Notour Bankrupt for a Company Debt.
IX Commencement of Notour Bankruptcy.
IX. Notour Bankruptcy shall be held to commence from the Time when its several Requisites concur, and when it has once been constituted shall continue, in case of a Sequestration, till the Debtor shall obtain his Discharge, and in other Cases until Insolvency cease, without Prejudice to Notour Bankruptcy being anew constituted within such Period.
X Deeds void by this Act, &c. may be set aside by way of Action, &c.
X. Deeds made void by this Act, and all Alienations of Property by a Party insolvent or Notour Bankrupt, which are voidable by Statute or at Common Law, may be set aside either by way of Action or Exception, and a Decree setting aside the Deed by Exception shall have the like Effect, as to the Party objecting to the Deed, as if such Decree were given in an Action at his Instance.
XI May be by Trustee.
XI. The Trustee on a sequestrated Estate under this Act shall be entitled to set aside any such Deed or Alienation for behoof of the whole Body of Creditors, and in so doing shall be entitled to the Benefit of any Presumption which would have been competent to any Creditor.
Pari passu Ranking of Diligence.
XII Arrestments and Poindings.
XII. Arrestments and Poindings which shall have been used within Sixty Days prior to the Constitution of Notour Bankruptcy, or within Four Months thereafter, shall be rankedpari passu as if they had all been used of the same Date; provided, that if such Arrestments are used on the Dependence of an Action, or on an illiquid Debt, they be followed up without undue Delay; provided further, that any Creditor judicially producing in a Process relative to the Subject of such Arrestment or Poinding liquid Grounds of Debt or Decree of Payment within such Period shall be entitled to rank as if he had executed an Arrestment or a Poinding; and in case the first or any subsequent Arrester shall, in the meantime, obtain a Decree of Forthcoming and Preference, and thereupon shall recover Payment, or a Poinding Creditor shall carry through a Sale, he shall be accountable for the Sum recovered to those who, by virtue of this Act, may be eventually found to have a Right to a Ranking pari passu thereon, and shall be liable to an Action at their Instance for Payment to them proportionally, after allowing out of the Fund the Expense of recovering the same; and if any Arrestments be used for attaching the same Effects after the Period of Four Months subsequent to the Bankruptcy, such Arrestments shall not compete with those used within the said Periods prior or subsequent thereto, but may rank with each other on any Reversion of the Fund attached, according to Law and Practice.
Sequestration, when competent.
XIII Sequestration may be awarded in Cases herein enumerated.
XIII. Sequestration may be awarded of the Estate of any Person in the following Cases:
1st. In the Case of a living Debtor subject to the Jurisdiction of the Supreme Courts ofScotla...
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