[Ord. 1 anno 1872.]

No. XC.

nishee shall have paid the debt due by him by way of fraudulent preference of the person to whom the amount was due by him, or of the garnishing creditor.

Proof of Debts.

84. Where there has been mutual credit given by the insolvent and any other person, or where there are mutual debts between the insolvent and any other person, the official assignee shall state the account between them, and one debt or demand may be set against another, notwithstanding any prior act of insolvency committed by such insolvent before the credit given to, or the debt contracted by him; and what shall appear due on either side on the balance of such accounts, and no more, shall be claimed or paid on either side respectively; and every debt or demand provable against the estate of the insolvent, may also be set off in manner aforesaid against such estate.

85. Any person who shall have given credit to the insolvent How debts not upon valuable consideration, for any money or other matter or payable at time of Insolvency thing whatsoever which shall not have become payable when such may be proved. insolvent committed an act of insolvency, and whether such credit shall have been given upon any bill, bond, note or other negotiable security, or not, shall be entitled to prove such debt, bill, bond, note, or other security as if the same was payable presently, and receive dividends equally with the other creditors, deducting only thereout a rebate of interest for what he shall so receive at the rate of six per centum per annum to be computed from the declaration of a dividend to the time such debt would have become payable according to the terms upon which it was contracted.

and persons

may prove.

86. Any person who at the time of adjudication of insolvency, How sureties shall be surety or liable for any debt of the insolvent, if he shall liable for debts have paid the debt, or any part thereof in discharge of the whole of an Insolvent debt, (although he may have paid the same after the filing of the petition for adjudication of insolvency,) if the creditor shall have proved his debt under the insolvency, shall be entitled to stand in the place of such creditor as to the dividends and all other rights under the insolvency which such creditor possessed or would be entitled to, in respect of such proof; or if the creditor shall not

have proved, such surety or person liable, shall be entitled to prove his demand in respect of such payment as a debt under the insolvency, not disturbing any previous dividends, and may receive dividends, with the other creditors, although he may have become surety or liable, as aforesaid, after an act of insolvency committed by the insolvent.

bottomry or

bonds, and

87. The obligee in any bottomry or respondentia bond, and the Obligees in assured in any policy of insurance, made upon good and valuable respondentia consideration, shall be admitted to claim, and, after the loss or assured in Po. contingency shall have happened, to prove his debt or demand in licy of Insur. respect thereof, and receive dividends with the other creditors, as to claim and if the loss or contingency had happened before the adjudication of prove and re. insolvency against such obligor or insurer; and the person effecting ceive divi

ance, admitted

after loss to

any policy of insurance upon ships or goods with any person (as a dends.

Person ac

Insurance ad mitted to

subscriber or underwriter) having become or becoming insolvent, tually effecting shall be entitled to prove any loss to which such insolvent shall be liable in respect of such subscription, although the person so effecting such policy was not beneficially interested in such ships or goods, neficially inin case the person so interested is not within the Colony.

prove loss in

case person be.

terested is not in Colony.

creditor may

prove.

88. Any annuity creditor of any insolvent, by whatever assur- How annuity ance the same may be secured, and whether there were or were not any arrears of such annuity due at the insolvency, shall be entitled to prove for the value of such annuity, which value the Court upon application in that behalf made, shall ascertain, regard being had to the original price given for such annuity, deducting there from such diminution in the value thercof as shall have been caused by the lapse of time since the grant thereof to the adjudication of insolvency.

annuities

solvent shall be

89. It shall not be lawful for any person entitled to any annuity How collateral granted by any insolvent to sue any person who may be collateral sureties for surety for the payment of such annuity until such annuitant shall granted by In. have proved against such insolvent's estate for the value of such liable to anulannuity, and for the arrears thereo; and if such surety, after such ments, and proof, pay the amount proved, he shall be thereby discharged from under Insolall claims in respect of such annuity; and if such surety shall not (before any payment of the annuity subsequent to the insolvency shall have become due) pay the sum so proved, he may be sued for

shall come in

vency.

the

of an Insol.

ble on a con

the accruing payments of such annuity, until such annuitant shall, have been paid or satisfied the amount so proved, with interest thereon at the rate of six per centum per annum, from the time of filing the claim and of notice thereof being given to such surety; and after such payment or satisfaction such surety shall stand in the place of such annuitant, in respect of such proof, to the amount so paid or satisfied by such surety, and the certificate of the insolvent shall be a discharge to him from all claims of such annuitant or of such surety in respect of such annuity; provided that such surety shall be entitled to credi, in account with such annuitant, for any dividends received by such annuitant under the insolvency before such surety shall have fully paid or satisfied the amount so proved.

90. If any insolvent shall, before the adjudication of insolvency, How Creditor have contracted any debt payable upon a contingency which shall vent in respect not have happened before the filing of such petition, the person of a debt paya- with whom such debt has been contracted may, if he think fit, tingency, to be apply to the Court to set a value upon such debt, and the Court is admitted. hereby required to ascertain the value thereof in such mode as to the Court shall seem just and to give all necessary directions for such purpose, and to admit such person to prove the amount so ascertained, and to receive dividends thereon; or if such value shall not or cannot be ascertained before the contingency shall have happened, then such person may, after such contingency shall have happened, prove in respect of such debt, and receive dividends with the other creditors, not disturbing any previous dividends.

have been

pledged by him, owner

91. In case of the insolvency of any agent intrusted with the On Insolvency possession of goods, which shall have been pledged by him, the of Agent in. trusted with owner of any goods so intrusted to such agent, and which shall have goods which been redeemed by such owner after having been pledged by such agent, shall in respect of the sum paid by him on account of such may prove for agent for such redemption, be held to have paid such sum for the use of such agent before his insolvency, or in case such goods shall not be so redeemed, the owner shall be deemed a creditor of such agent for the value of the goods so pledged at the time of the pledge, and shall if he shall think fit, be entitled in either of such cases to prove for or set off the same so paid, or the value of such goods, as the case may be.

amount paid

to redeem or

for value if unredeemed.

92. Upon

and overdue at

92. Upon all debts or sums certain, payable at a certain time or How interest otherwise, whereupon interest is not reserved or agreed for, and upon debts payable at a which shall be overdue at the adjudication of insolvency and prove- certain time, able thereunder, the creditor shall be entitled to prove for interest, time of adju to be calculated at the rate of six per centum per annum, up to the dication, to be proved. date of the adjudication, from the time when such debts or sums certain became payable, if such debts or sums be payable by virtue of some written instrument at a certain time, or if payable otherwise, then from the time when demand of payment shall have been made in writing, so as that such demand shall give notice to the debtor that interest will be claimed from the date of such demand until the time of payment.

with Insolvent

before Insol

prove costs of

not taxed at

93. If any plaintiff in any suit, shall have obtained any sen- Party in suit tence or order, against any person who shall thereafter become insolvent, for any debt or demand in respect of which such plaintiff vency may shall prove under the insolvency, such plaintiff shall also be enti- suit though tled to prove for the costs which he shall have incurred in obtaining time of Insol. the same, although such costs shall not have been taxed at the time vency. of the insolvency; and if any defendant shall have obtained any sentence, or order in any such suit, against any person who shall thereafter become insolvent, such defendant shall be entitled to prove for the costs which he shall have incurred in obtaining the same, although such costs shall not have been taxed at the time of the insolvency.

commenced

solvency.

94. No creditor who has instituted any suit against any insol- As to suits vent in respect of a demand prior to the insolvency, or which might before adjudi. have been proved as a debt under the insolvency, shall be entitled cation of In. to continue the proceedings after the adjudication, but he may file his claim and prove under such insolvency: and where any such creditor shall have brought any suit against such insolvent jointly with any other person or persons, the adjudication against the insolvent shall not affect such suit against such other person or persons, and upon a suggestion of the insolvency being filed with the Registrar, the suit shall proceed against such other person or persons Provided always that any creditor who shall have s> proved or claimed, if the petition for adjudication be afterwards annulled, or dismissed, may proceed in the suit against the insolvent as if he had not so proved or claimed. Hh

VOL. IV.

95. If

[Ord. 1 anno 1872.]

Proof in respect of Distinct Contracts of Insolvent.

Proof in res. pect of Dama. ges incurred

by Insolvent.

Proof of res

No. XC.

95. If any insolvent shall, at the time of adjudication, be liable upon a y Bill of Exchange or Promissory Note, in respect of distiuct contracts as members of two or more firms carrying on separate and distinct trades, and having distinct estates to be wound up in insolvency, or as a sole trader and also as the 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 and receipt of dividend in respect of such distinct contracts against the estates respectively liable upon such contracts.

96. If any insolvent shall be liable, by reason of any contract or promise or otherwise, to a demand in the nature of damages which have not been and cannot be otherwise liquidated or ascer tained, it shall be lawful for the Court on application of the official assiguee or of the creditor to direct such damages to be assessed in such manner as to the Court shall seem just, and to give all necessary directions for such purpose; and the amount of damages when assessed, shall be proveable as if a debt due.

97. If any insolvent shall be liable by reason of any contract pect of Policies or promise to pay premiums upon any policy of insurance, or any of Insurance. other sums of money, whether yearly or otherwise, or to repay to or indemnify any person against any such payments, the person entitled to the benefit of such contract or promise may, if he think fit, apply to the Court to set a value upon his interest under such contract or promise, and the Court is hereby required to ascertain the value thereof in such manner as to the Court shall seem just, and the value when ascertained shall be proveable as if a debt due.

Proof for pro part of pay ments falling due at fixed periods.

portionate

98. In all cases in which any insolvent is liable to pay any rent or to make any other payments falling due at fixed or stated periods, and the adjudication of insolvency shall happen at any time other than one of such fixed or stated periods, it shall be lawful for the person entitled to such rent or other payments to prove for a proportionate part thereof up to the day of such adju. dication, in such manner as if the said rent or payments grew due from day to day, and not at such fixed or stated periods as aforesaid.

99. Any