HC Deb 04 August 1913 vol 56 cc1194-201

The procedure enacted in this Act with regard to sequestration shall, in its application to summary sequestrations, be modified to the extent and effect following (that is to say):—

  1. (1) The trustee, within seven days after the date of deliverance declaring his election, shall apply orally to the sheriff to fix a diet for the examination of the bankrupt, and the sheriff shall by deliverance ordain the bankrupt to appear for public examination within the sheriff court house on a specified day and at a specified hour, being not sooner than seven nor later than fourteen days from the date of the sheriff's deliverence, and at the diet so appointed the bankrupt shall appear in public court, in presence of the sheriff for examination:
  2. (2) As soon as the trustee obtains his act and warrant, he shall take possession of all the property of the bankrupt and also of all his books and papers:
  3. (3) Not less than seven days prior to the diet fixed for the public examination of the bankrupt, the trustee shall give notice to the bankrupt requiring him to attend the said diet and shall also give notice in the "Gazette," and he shall also post to each creditor, who has lodged a claim, or who is mentioned in the 1195 bankrupt's state of affairs, or is otherwise known to the trustee, a circular, which notice and circular shall intimate the trustee's name and designation, his appointment as trustee, the day, hour, and place fixed for the examination of the bankrupt, the period within which claims shall be lodged, and also a specified day, hour, and place for holding a second meeting of creditors, being not sooner than seven nor later than fourteen days from the date of the examination of the bankrupt, and the trustee shall also give notice to the bankrupt to attend the said second meeting:
  4. (4) Creditors shall transmit their oaths and claims and grounds of debt to the trustee, not less than twenty one days before the said second meeting:
  5. (5) Where a dividend is to be made the trustee shall, not less than ten days prior to the said second meeting, adjudicate upon the claims of the creditors, admitting or rejecting them in whole or in part, and he shall prepare a list thereof, with his deliverance thereon, which list, with the claims, vouchers, and whole process shall be open to inspection by the bankrupt, and by the creditors, and where the trustee shall reject in whole or in part any claim, he shall post notice thereof to the creditor six days at least before the said second meeting of creditors:
    1. (6)—(a) (1) Where the bankrupt or any creditor intends to object to any deliverance by the trustee, admitting in whole or in part any claim, or (2) where any creditor intends to object to any deliverance, ranking any other creditor, or (3) where a creditor intends to object to a deliverance, rejecting in whole or in part his claim, the bankrupt or the objecting creditor respectively shall, in the first or second case, give notice to the trustee and to any creditor whose claim is objected to, and in the third case to the trustee, of firs intention and of the nature and particulars of the objection, by registered letter, posted three days at least before the said second meeting, and there shall be produced a copy of the letter of notice and the post office receipt for the letter at the said meeting:
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    2. (b) Where such notice has been given the trustee shall apply orally to the sheriff to fix a diet for the summary disposal of such objections, and, upon the diet being fixed, the sheriff clerk shall issue to the bankrupt, the trustee, or to any creditor desiring to lead evidence, a diligence to site witnesses and havers for that and any adjourned diet. The sheriff may, when necessary, grant second diligence:
    3. (c) At the diet so fixed for hearing objections the sheriff shall hear parties vivaâ voce, and after such proof, if any, as he may allow (which proof shall be recorded if desired by any of the parties), shall dispose of the objections summarily, and settle the ranking of the creditors so objected to. The sheriff may adjourn consideration of any of the matters mentioned in this Sub-section to another diet or diets:
    4. (d) In his interlocutor disposing of the objections, the sheriff shall issue findings in fact, and in law on which his judgment proceeds. Where the proof has not been recorded, the sheriff's findings in fact shall be final, and any party dissatisfied with the sheriff's judgment may appeal against his findings in law in the manner provided in Section one hundred and sixty-six of this Act, and where the proof has been recorded, any creditor may appear against the sheriff's findings in fact and in law in the manner provided in Section one hundred and sixty-six of this Act:
  6. (7) At the second meeting of creditors the bankrupt and the trustee shall attend, and the creditors may also attend by themselves or their mandatories, and the trustee and commissioners may fix a date for payment of the first or final dividend, or may postpone payment of a dividend to a date not later than three months after the date of the said second meeting:
  7. (8) If, at the second meeting, it is apparent to the trustee the commissioners—
    1. (1) that in consequence of appeals against any deliverance by the trustee, it is inexpedient to fix a time for declaring a dividend, the
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    2. trustee and commissioners may determine to declare a dividend as soon after the objections have been disposed of as in their opinion it is expedient to do so; or
    3. (2) that there will be no funds for division among the creditors, the creditors shall direct the trustee to report orally to the sheriff, and failing such direction, the trustee may then, or at any subsequent period, orally report to the sheriff that there will be no funds for division, who may thereupon, in writing, dispense with any further procedure in the summary sequestration:
  8. (9) Ten days at least, prior to the date fixed for the payment of a dividend, the trustee's accounts, with relative vouchers, shall be submitted to the commissioners for audit, and be approved of or modified and adjusted by the commissioners, who shall fix the trustee's remuneration, subject to review by the accountant at the instance of the trustee or the bankrupt or any creditor, provided that if the trustee or any creditor intends to appeal against the deliverance of the commissioners, the appellant must intimate his appeal to the accountant within six days after the date of the deliverance appealed against, and the accountant may hear parties viva voce, and shall as soon as convenient issue his deliverance, which shall be final, and he may find any of the parties liable in expenses; the amount of which expenses (if any) he shall fix in his deliverance. The law agent's account shall be taxed by the auditor of the Sheriff Court previous to the meeting of commissioners and shall be produced thereto:
  9. (10) If at any time subsequent to the payment of the first or any subsequent dividend the trustee shall have in hand funds, or shall be about to come into possession of funds which will admit of a dividend to the creditors, it shall be the duty of the trustee and commissioners to fix a date for payment of the second or any subsequent dividend; but before making up a state of ranking for any such second or subsequent dividend, the trustee shall insert a notice in the "Gazette" not less than twenty-one days prior to the date fixed for the payment of the 1198 said second or subsequent dividend, and specifying a date not less than seven and not more than ten days before the date fixed for payment of a second or subsequent dividend, as the last date for lodging claims in order to participate in the second or subsequent dividend; the trustee shall also send notice to any creditor mentioned in the debtor's state of affairs, or known to him, who has previously failed to lodge his claim, intimating the proposed dividend and stating the last day for lodging claims, and if new claims be lodged, the trustee shall adjudicate thereon, subject to an appeal, as provided by Sub-section (6) of this Section, and if, in consequence of the said new claims, or from any other cause, the state of ranking shall require to be remodelled, the trustee shall remodel the same in accordance with the provisions of Sub-section (5) of this Section, and any additional accounts of the trustee or law agents shall be previously taxed and adjusted, all as hereinbefore provided: Provided that the trustee and commissioners may, in the event of an appeal in terms of this Sub-section, postpone the payment of the dividend until after such appeal is finally determined:
  10. (11) Any creditor who may have failed to lodge his claim in time to participate in any previous dividend or dividends shall, if he lodges his claim in time, be entitled to an equalising dividend as well as to the new dividend upon the amount of the claim which may be sustained:
  11. (12) The trustee, or any creditor with the consent of the trustee and commissioners, or with the consent of the commissioners alone, may, at any time, call a meeting of creditors to consider and dispose of any matters to be specified in the notice calling such meeting:
  12. (13) In every summary sequestration, unless the trustee shall have previously been discharged, he shall, within ten days after the expiry of six months after the date of his act and warrant, transmit to the accountant a report in duplicate of the state of such summary sequestration, specifying (1) the amount of the funds recovered, (2) the amount 1199 of the dividend or dividends paid, (3) the amount and nature of the assets not realised, (4) the reason or reasons which have prevented him from realising the said assets, and (5) an estimate of the time when, in his opinion, these assets will be realised, and the accountant may call on the trustee for any written or oral explanations the accountant may wish to obtain, and the accountant shall engross on each of the said duplicates a docquet expressing approval or disapproval of the reasons given by the trustee for failing to realise the said assets One duplicate the accountant shall retain, and he shall deliver the other to the trustee, who shall engross the said report and docquet in the sederunt book of the estate, and the trustee shall likewise within ten days after the expiry of three months after the date of his first or any subsequent report under this Sub-section, transmit to the accountant an additional report specifying the particulars set forth in this Sub-section, which additional report shall be dealt with in the same manner as is provided with regard to the first report:
  13. (14) After the final division of the funds, or in any case where the sheriff has, in writing, dispensed with further procedure in a summary sequestration, the trustee may apply to the accountant for a certificate that he is entitled to his discharge, and he shall deliver to the accountant the sederunt book and accounts, with a list of unclaimed dividends, if any, and the accountant may, if he be satisfied that the trustee has complied with the one hundred and fifty-first Section of this Act, and with the provisions of this Act applicable to summary sequestrations, and is otherwise entitled to be discharged, and upon deposit in bank of any unclaimed dividends and unapplied balances as directed by Section one hundred and fifty-three of this Act, grant to the trustee a certificate under his hand setting forth that the trustee is entitled to obtain his discharge:
  14. (15) On obtaining the said certificate the trustee shall orally report the fact to the sheriff, who shall fix a diet for hearing any objections 1200 which may be made to the trustee obtaining his discharge, and the trustee shall publish in the "Gazette" seven days at least prior to the diet so fixed for hearing objections, a notice intimating the same, and if the bankrupt or any creditor shall appear at the diet so fixed, parties shall be heard vivâ voce, or if the sheriff thinks it expedient he may make a note of any objection, and of the trustee's answer thereto, and after such proof, if any, as he may allow, he may dispose of the objections summarily by granting or refusing the trustee his discharge. The sheriff may adjourn consideration of any matters mentioned in this Sub-section to any other diet or diets, and he may grant warrant to cite witnesses and havers, and in the event of the discharge being granted the sheriff's judgment shall be final, and he shall issue an interlocutor exonerating and discharging the trustee of all his actings and intromissions, and shall order his bond of caution to be cancelled and delivered up, and the sheriff clerk shall forthwith transmit to the accountant a signed extract of the discharge:
  15. (16) If the sheriff refuses to grant the trustee his discharge, the trustee may appeal against his judgment in the manner provided by Section one hundred and sixty-six of this Act:
  16. (17) Where the sheriff has in writing dispensed with further procedure in a summary sequestration the bankrupt may at any time petition the sheriff for his discharge, and the provisions of this Act relating to the discharge of a bankrupt (except the provisions as to the periods at which the bankrupt may so petition and as to the consent of creditors) shall apply.

Amendments made: In Sub-section (1), leave out the words "being not sooner than seven nor later than fourteen days from the date of the sheriff's deliverance."

In Sub-section (3), leave out the words "being not sooner than seven nor later than fourteen days from the date of the examination of the bankrupt, and the trustee shall also give notice to the bankrupt to attend the said second meeting."

In Sub-section (5), leave out the word "ten" ["not less than ten days prior"], and insert instead thereof the word "fourteen."

In Sub-section (5), leave out the word "six" ["six days at least"], and insert instead thereof the word "ten."

In Sub-section (7), leave out the words "the bankrupt and."

In Sub-section (10), leave out the words "twenty-one" ["in the Gazette not less than twenty-one days prior"], and insert instead thereof the word "thirty."

In Sub-section (10), leave out the words "seven and not more than ten," and insert instead thereof the words "fourteen and not snore than twenty-one."

In Sub-section (1), after the word "that" ["Provided that the trustee"], insert the words "in the application of the provisions of Sub-sections (5) and (6) of this Section to claims for second or subsequent dividends, and deliverances and appeals relative thereto, the date for payment of the dividend shall be substituted for the second meeting: Provided further that."