Proviso. Transfer to creditor of for sale invalid. provisions of section 22 of this Act, to any other person, for the purpose in each of the said cases of paying rateably and proportionately and without preference or priority all the creditors of the debtor their just debts; nor to any bona fide sale or payment made in the ordinary course of trade or calling to innocent purchasers or parties; nor to any payment of money to a creditor, nor to any bona fide conveyance, assignment, transfer or delivery over of any goods, securities or property of any kind, as above mentioned, which is made in consideration of any present actual bona fide payment in money, or by way of security for any present actual bona fide advance of money, or which is made in consideration of any present actual bona fide sale or delivery of goods or other property; provided that the money paid, or the goods or other property sold or delivered, bear a fair and reasonable relative value to the consideration therefor. R.S.M. c. 8, s. 44. 45. In case of a valid sale of goods, securities or proconsideration perty, and payment or transfer of the consideration or part thereof by the purchaser to a creditor of the vendor, under circumstances which would render void such a payment or transfer by the debtor personally and directly, the payment or transfer, even though valid as respects the purchaser, shall be void as respects the creditor to whom the same is made. R.S.M. c. 8, s. 45. Security void payment to be returned 46. If a payment has been made which is void under given up upon this Act, and any valuable security was given up in consideration of the payment, the creditor shall be entitled to have the security restored or its value made good to him before, or as a condition of, the return of the payment. R.S.M. c. 8, s. 46. Payment of wages protected. 47. Nothing herein contained shall affect the priority of a claim for wages or salary under section 28 of this Act, or shall prevent a debtor providing for payment of wages or salary due by him in accordance with the provisions of the said section. Nor shall anything herein contained affect any payment of money to a creditor where such creditor, by reason or on account of such payment, has lost or been deprived of or has in good faith given up any valid security which he held for the payment of the debt so paid, unless Exchange of the value of the security is restored to the creditor, nor the substitution in good faith of one security for another security for the same debt, so far as the debtor's estate is not thereby lessened in value to the other creditors. Nor shall anything herein contained invalidate a security given to a creditor securities protected. assignments for a pre-existing debt where, by reason or on account of Certain the giving of the security, an advance in money is made to to be valid. the debtor by the creditor in the bona fide belief that the advance will enable the debtor to continue his trade or business and to pay his debts in full. R.S.M. c. 8, s. 47. assignee. 48. Except as is hereinafter otherwise provided, the Rights of assignee shall have an exclusive right of suing for the rescis-action of sion of agreements, deeds and instruments or other transactions made or entered into in fraud of creditors, or made or entered into in violation of this Act. certain cases, refuses. (2) If at any time a creditor desires to cause any pro- Creditor may ceeding to be taken which, in his opinion, would be for proceed in the benefit of the estate, and the assignee, under the author- if assignee ity of the creditors or inspectors, refuses or neglects to take such proceeding, after being duly required so to do, the creditor shall have the right to obtain an order of a judge of the Court of King's Bench authorizing him to take the proceedings in the name of the assignee, but at his own expense and risk, upon such terms and conditions as to indemnity to the assignee as the judge may prescribe; and thereupon any benefit derived from the proceedings shall, to the extent of his claim and full costs, belong exclusively to the creditor instituting the same for his benefit; but if, before such order is granted, the assignee shall signify to the judge his readiness to institute the proceedings for the benefit of the creditors the order shall prescribe the time within which he shall do so, and in that case the advantage derived from the proceeding, if instituted within such time, shall belong to the estate. suing for rescission of void transactions for creditors (3) Where there is no valid assignment for the benefit creditors of creditors, one or more creditors may, for the benefit of creditors generally, or for the benefit of such creditors as have been injured, delayed, prejudiced or postponed by the benefit of impeached transaction, sue for the rescission of or to have generally. declared void agreements, deeds, instruments or other transactions made or entered into in fraud of creditors or in violation of this Act or thereby declared void; and in case any amendment of the statement of claim be made, the same shall relate back to the commencement of the action for the purpose of the time limited by section 40 hereof. and sale of affected. (4) In any action under this section the court may Delivery over direct delivery of any property in question to the assignee property or a sheriff or a receiver, and may order a sale thereof and such distribution of the proceeds as may seem equitable, either through the assignee or through a sheriff or receiver or otherwise as may seem proper. Distribution Following proceeds of property fraudulently transferred. Taking proceeds under execution. Creditors suing on behalf of himself and other creditors. Protection of innocent purchasers. (5) In case of a transaction void under this Act as entered into with intent to give a preference or having the effect of giving a preference, the subject matters shall not be seizable or attachable or liable to sale for the satisfaction, according to priorities otherwise prevailing, of judgments, attachments or other process, except executions; but, where not realized under execution so as to be distributable by a sheriff or bailiff among creditors, the court shall have and exercise jurisdiction to realize the same for the benefit of all the creditors, and to distribute the proceeds among them rateably and proportionately. R.S.M. c. 8, s. 48. 49. In the case of a gift, conveyance, assignment or transfer of any property, real or personal, which in law is invalid against creditors, if the person to whom the gift, conveyance, assignment or transfer was made shall have sold or disposed of, realized or collected, the property or any part thereof, the money or other proceeds or the amount thereof, whether further disposed of or not, may be seized or recovered in any action by a person who would be entitled to seize and recover the property if it had remained in the possession or control of the debtor or of the person to whom the gift, conveyance, transfer, delivery or payment was made, and such right to seize and recover shall belong, not only to an assignee for the general benefit of the creditors of the said debtor, but, in case there is no such assignment, shall exist in favor of all creditors of such debtor. (2) Where there has been no valid assignment for the benefit of creditors, and the proceeds are of a character to be seizable under execution, they may be seized under the execution of any creditor, and shall be distributable rateably amongst the creditors under "The Executions Act" or "The County Courts Act" or otherwise. (3) Where there has been no valid assignment for the benefit of creditors, and whether the proceeds realized as aforesaid are or are not of a character to be seized under execution, an action may be brought therefor or to recover the amount thereof by a creditor (whether a judgment creditor or not) on behalf of himself and all other creditors, or such other proceedings may be taken as may be necessary to render the said proceeds or the amount thereof available for the general benefit of the creditors. (4) This section shall not apply as against innocent purchasers of any such property. R.S.M. c. 8, s. 49. EXAMINATION OF ASSIGNORS AND OTHERS. of assignor or 50. Where there has been an assignment for the benefit Examination of creditors the assignee or assignees, upon resolution passed employees. by a majority vote of the creditors present or represented at a meeting of the creditors of the assignor regularly called, or upon the written request or resolution of the majority of the inspectors of the estate, may, without an order, examine the assignor or any person who is or has been an agent, clerk, servant, officer or employee of any kind of the assignor, upon oath, before a master or local master or a special examiner of the Court of King's Bench, or before a deputy clerk of the Crown of the Court of King's Bench, or before the judge of the County Court of the judicial division within which such assignor resides, or may, by the order of a judge of any court aforesaid, examine the assignor on oath before any other person to be specially named in such order, touching the estate and effects of the assignor, and as to the property and means he had when the earliest of the debts or liabilities of the assignor existing at the date of the assignment was incurred, and as the property and means he still has of discharging his debts and liabilities, and as to the disposal he has made of any property since contracting such debt or incurring such liability, and as to any and what debts are owing to or by him. R.S.M. c. 8, s. 50; 6-7 Ed. 7, c. 1, s. 1. part. upon exami assignor. 51. The rules and procedure from time to time in force Procedure in the Court of King's Bench for the examination of judg- nation of an ment debtors shall, as far as may be, apply to an examination under this Act of an assignor in all respects as if the assignor were a judgment debtor. R.S.M. c. 8, s. 51. When as questions. 52. If such assignor does not attend as required by any signor does appointment, or appointment and order, as the case may be, not attend served on him, and does not allege a sufficient excuse for not to answer attending, or, if attending, refuses to disclose his property or his transactions respecting the same, or does not make satisfactory answers respecting the same, or, if it appears from such examination of the assignor that such assignor has concealed or made away with any part of his property in order to defeat or defraud his creditors or any of them, any judge of any of the courts aforesaid may order the assignor to be committed to the common gaol of the judicial district in which he resides for any term not exceeding twelve months. R.S.M. c. 8, s. 52. 53. Any person liable to be examined under section 50 Service of of this Act may be served with an appointment signed by appointment. Conduct of examination. Compelling attendance and production of books. Calling upon persons hav tion as to assignor's affairs to give evidence documents, etc. the judge or officer mentioned in the said section, or a copy thereof, and, where the examination is to take place under an order, also with a copy of the order; such service to be made at least forty-eight hours before the time appointed for the examination; and the person to be examined is to be paid the same fees as a witness. R.S.M. c. 8, s. 53. 54. The examination under section 50 shall be conducted in the same manner as in the case of an oral examination of an opposite party, in a suit or action. R.S.M. c. 8, s. 54. 55. Any person liable to be examined under section 50 may be compelled to attend and testify and to produce books and documents, in the same manner and subject to the same rules of examination, and the same consequences of neglecting to attend or refusing to disclose the matters in respect of which he may be examined, as in the case of a witness in an action in the Court of King's Bench. R.S.M. c. 8, s. 55. 56. If any person has, or is believed or suspected to ing informa- have, in his possession or power any of the assignor's property, or any book, document or paper of any kind relating in whole or in part to the assignor, his dealings or property, and produce such person may, upon resolution passed by a majority vote of the creditors present or represented at a regularly called meeting of the creditors of the assignor (exclusive of such person, if he is a creditor), or upon the written request or resolution of the majority of the inspectors of the estate, be required by the assignee to produce such books, documents or papers for the information of such assignee, or to deliver over to him any such property of the debtor. Examination of person falling to produce documents or to deliver property. Enforcing attendance and production. (2) If such person fails to produce the said book, document or other paper, or to deliver over such property, within four days of his being served with a copy of the said resolution and a request of the assignee in that behalf, or if the assignee or the majority of the inspectors is or are not satisfied that full production or delivery has been made, the assignee may, without an order, examine the said person before any of the officers mentioned in section 50 touching any such property or document or other paper which he is supposed to have received. (3) Any such person may be compelled to attend and testify, and to produce upon his examination any book, document or other paper which under this section he is liable to produce, in the same manner and subject to the same rules of examination, and the same consequences of neglect |