Bankruptcy (Scotland) Act 1913
| Jurisdiction | UK Non-devolved |
| Citation | 1913 c. 20 |
Bankruptcy (Scotland) Act, 1913.
(3 & 4 Geo. 5.) CHAPTER 20.
An Act to consolidate and amend the Laws relating to Bankruptcy in Scotland.
[15th August 1913]
Be it enacted by the King's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:
1 Short title.
1. This Act may be cited as theBankruptcy (Scotland) Act, 1913.
2 Construction and meaning of certain expressions.
2. In this Act, unless a contrary intention appears, ‘Lord Ordinary’ shall mean the Lord Ordinary officiating on the Bills in the Court of Session; ‘deliverance’ shall include any order, warrant, judgment, decision, interlocutor, or decree; ‘clerk or officer of the Court of Session’ shall include the keeper of the registers of inhibitions and adjudications; ‘accountant’ shall mean the accountant of court appointed under the Judicial Factors (Scotland) Act, 1889; ‘Gazette’ shall mean the Edinburgh Gazette; ‘commissioners’ shall mean a majority of the commissioners elected under the provisions of this Act; ‘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 or voluntary alienation, or of being affected by diligence or attached for debt, and any non-vested contingent right of succession or interest in property conceived in favour of the bankrupt under the will or settlement of any person deceased, or under marriage contract, or under any other deed, instrument, or writing of an irrevocable nature; ‘moveable’ shall include personal; and ‘heritable’ shall include real; ‘security’ shall include securities, heritable or moveable, and rights of lien, retention, or preference, and conveyances thereof and any part thereof; ‘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; ‘vote’ shall include a consent to any offer of composition, deed of arrangement, recall of sequestration, or private sale of heritage, and to a discharge of the debtor, and also a dissent from such offer, deed of arrangement, recall, private sale, or discharge; ‘company’ shall include bodies corporate, politic, or collegiate, and partnerships; ‘partner of a company’ shall include the members of such bodies; ‘debtor,’‘bankrupt,’ and ‘creditor’ shall apply to companies as well as individuals, and shall include aliens; ‘undischarged bankrupt’ shall include a person whose estate has been sequestrated and who has not received his discharge from a competent court in Scotland; ‘summary sequestration’ shall mean a sequestration to which the provisions of sections one hundred and seventy-four, one hundred and seventy-five and one hundred and seventy-six of this Act apply.
3 Reckoning of time.
3. Periods of time in this Act shall be reckoned exclusive of the day from which such period is directed to run.
4 Dates of deeds.
4. The date of a deed under this Act, or under the Act passed in the Parliament of Scotland held in the year one thousand six hundred and ninety-six, chapter five, shall be the date of the 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.
Constitution and Effects of Notour Bankruptcy.
5 Notour bankruptcy of individuals.
5. Notour bankruptcy shall be constituted by the following circumstances:—
| 1st. | By sequestration, or by the issuing of an adjudication of bankruptcy or the granting of a receiving order in England or Ireland; or |
| 2nd. |
By insolvency, concurring— (a )—(1) With a duly executed charge for payment, where a charge is necessary, followed by the expiry of the days of charge without payment; (2) Where a charge is not necessary, with the lapse without payment of the days which must elapse before poinding or imprisonment can follow on a decree or warrant for payment of a sum of money; (3) With a poinding or seizure of any of the debtor's moveables for non-payment of rates or taxes; (4) With a 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 sequestration for rent. |
6 Of a company.
6. 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.
7 Commencement of notour bankruptcy.
7. 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 or after the expiry thereof and any second or subsequent constitution of notour bankruptcy shall be available for all the purposes of section ten of this Act as well as for the purpose of applying for sequestration of a debtor's estates.
8 Deeds made void by this Act, and alienations of property voidable, may be set aside by way of action, &c.
8. 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: and this section shall apply as well in the sheriff court as in the Court of Session.
9 May be by trustee.
9. The trustee on a sequestrated estate, whether representing prior creditors or not, shall, under this Act, 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.
Pari passu Ranking of Diligence.
10 Arrestments and poindings.
10. 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 ranked pari 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, 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.
Sequestration, when competent.
11 Sequestration may be awarded in cases herein enumerated.
11. 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 of Scotland:
(a ) On his own petition, with the concurrence of a creditor or creditors, qualified as herein-after mentioned;
(b ) On the petition of a creditor or creditors, qualified as hereinafter mentioned, provided the debtor be notour bankrupt, and have within a year before the date of the presentation of the petition resided or had a dwelling house or place of business in Scotland; or otherwise, in the case of a company being notour bankrupt, as hereinbefore provided, if it have within such time carried on business in Scotland, and any partner have so resided or had a dwelling house or if the company have had a place of business in Scotland:
2nd. In the case of a deceased debtor who at the date of his death was subject to the jurisdiction of the supreme courts of Scotland:
(a ) On the petition of a mandatory to whom he had granted a mandate to apply for sequestration;
(b ) On the petition of a creditor or creditors qualified as hereinafter mentioned.
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