Page images

$49. The court shall tax the costs and expenses of the debtor, in- ART. 1. curred in obtaining such order, and shall cause the same to be paid by the attaching creditor, and may enforce the payment thereof by attachment.14

Ib. Costs.

of bond when


350. If the court determine that the allegations contained in the Ib. Penalty petition are not proved, then the obligee in the bond given by or in to be rece behalf of such debtor, may recover the penalty thereof with costs; one moiety of the penalty may be retained by the obligee or his representatives, and the other moiety shall be paid to the trustees to be appointed as herein after mentioned, to be disposed of by them, as part of the property and effects of such debtor; or if no trustees be appointed, such moiety may be retained by the obligee.14

persons re

perty from

$51. If any person to whom a debtor shall have assigned or deli- Petition by vered any property, on a valuable consideration, or to whom the debt- ceiving proor may have made payments, after the publication of the notice of at- debtor. tachment, shall desire to contest the fact of such debtor's being nonresident, concealed or absconding, within the meaning of this Article, he may do so, on executing a bond similar to that required of a debtor in the previous forty-fifth section, and within the time allowed to the debtor for that purpose; and on his application to the court to which such proceedings are or shall be reported, the court shall direct such allegations to be tried by a jury, and shall direct the proper proceeding for that purpose.



$52. A decision by a jury, in any case, where a trial may be had, Jury trial: pursuant to the provisions of this Article, if not set aside by the court, on certain shall have the same effect in all cases as the determination of a court without such trial; and the same proceedings may be had upon the bond executed by any other person than the debtor, as are herein provided in respect to the bond of such debtor, in the like cases and with the like effect.

tition and

of proceed

$ 53. The proceedings upon any warrant, that may be issued, pur- Effect of po suant to the provisions of this Article, shall not be in any manner bond as stay stayed or affected, by such petition or bond, given as herein before ings. provided, until an order discharging such warrant shall be granted; except that no sale of any property, other than such as may be perishable, shall be had, and no payment of any debts, shall be made, by any trustees appointed under such attachment, until a determination be made by the court to which such petition shall be referred.

for discharge

$54. Every debtor against whom any warrant of attachment shall Application be issued, may, at any time before the appointment of trustees as here- of warrant. in after mentioned, apply in person or by attorney to the officer, who issued such warrant, for an order to discharge the same.15

(14) 1 R. L. 157, § 7. (15) Ib. p. 162, § 21.

[merged small][merged small][merged small][ocr errors][ocr errors]

When war

$56. Upon such bond being executed and delivered, the said offidischarged. cer shall thereupon grant his order, discharging all warrants that may

rant to be

have been issued by him, or of which notice shall have been given to him, against such debtor; and no further or other proceedings shall be had under the provisions of this Article, founded upon any demands included in such bond. 16

Bond how prosecuted, &c.

Consequences of omission.

$55. Upon such application, such debtor or his agent shall execute and deliver to the officer to whom the same is made, a bond to the creditors prosecuting the attachment, in a penal sum double the amount of the debts sworn to by such creditors, with such sureties as shall be approved by the said officer, conditioned that they will pay to each attaching creditor the amount justly due and owing by such debtor, to him, at the time when he became an attaching creditor, on account of any debt so claimed and sworn to by him, with interest thereon. 16

addition to such Condition

Trustees when to be

$58. If the debtor against whom such warrant of attachment shall appointed. be issued, shall not appear and satisfy his creditors, within the time

for that purpose limited in the notice herein before directed, and if such warrant shall not have been discharged, the officer who issued the same, shall, within three months after the expiration of the time so limited, upon due proof of the publication of such notice, nominate and appoint three or more fit persons, to be trustees for all the creditors of such debtor.17

Ib. To be recorded.

$57. Every such bond shall be held for the common benefit of all the attaching creditors, and may be prosecuted at any time within six months after its date, and not afterwards, by them jointly, or by any one of them separately, in respect to his separate demand; and in every such action the prosecuting creditor shall establish his demand, in the same manner as in an action against the debtor. 16

Appointment, &c. evidence.

Appointment. Order

$60. The officer making such appointment, shall endorse thereon to be endora- an order allowing it to be recorded; which shall entitle it to be recorded by the clerk of any county, to whom it may be presented for that purpose.

ed, &c.

$59. If such appointment of trustees be not made within the time above prescribed, the warrant of attachment shall be deemed to be discharged and annulled.

$61. The trustees shall cause their appointment to be recorded in the office of the clerk of every county, in which any property shall have been seized, under the warrant of attachment against such debtor, within one month after their appointment.18

S62. Such appointment of trustees, the record thereof, and the transcript of such record duly certified, shall in all cases, except on

(16) 1 R. L. 162, § 21. (17) Ib. p. 159, § 8. (18) Ib. p. 163, § 26.

hearing of a petition referred to any court as herein before provided, ART. 1. be conclusive evidence that the debtor therein named was a concealed, absconding or non-resident debtor, within the meaning of the foregoing provisions, and that the said appointment and all the proceedings previous thereto, were regular. 19

&c. not to


$63. Where any debtor against whom proceedings may have been When death, commenced, as herein authorised, shall die or become insane, after abate prothe expiration of the time limited in the order for his appearance, the proceedings shall, notwithstanding, be continued to a final conclusion, in the same manner, and with the like validity, as if such debtor had lived or remained sane.20

abate them.

$ 64. If any debtor against whom any such warrant of attachment When to shall have been issued, shall die or become insane, before the time limited for his appearance, the proceedings thereon shall be stayed, and the property seized thereby shall be delivered to his personal representatives, or to the committee of his estate.

make return,

$65. Upon the appointment of trustees being made, every sheriff Sheriff to to whom any warrant against the estate of such debtor may have been &o. issued, shall return the same, with his proceedings thereon, to the officer who issued the same, or to the officer who issued the first warrant against such debtor, in case warrants shall have been issued by several officers; and such officer shall cause the same to be filed, within thirty days thereafter, in the office of a clerk of the supreme court.21

$66. Every sheriff to whom a warrant may have been delivered, Return how may be compelled by the officer having jurisdiction over the proceedings thereon, to return such warrant, and the inventory required to be taken by him, by an order of such officer and by process of attachment for disobedience thereof, on the application of any creditor, or of the debtor, and on proof of the neglect of the sheriff.

&c. to be

$67. Every officer who shall issue any warrant, pursuant to the Affidavite, foregoing provisions, shall cause the affidavits of the creditors pre-filed. sented to him, or transmitted to him, by any other officer, who shall have issued a subsequent warrant, to be filed in the office of a clerk of the supreme court, within thirty days after receiving the same.21

port to su

$68. Within twenty days after the appointment of any trustees Officer to re by such officer, he shall make a report to the supreme court, to be preme court. filed with the clerk thereof, of all the proceedings had before, or done by, him, under this Article; after which, the supreme court shall have jurisdiction over such proceedings. Such report, and a certified copy thereof under the seal of the court, and attested by the clerk,

(19) 1 R. L. p. 163, § 26. (20) Ib. § 22. (21) Ib. § 25.

TITLE 1. shall be conclusive evidence, that the proceedings stated therein, were had before such officer.22

Certiorari to remove proceedings.

Powers of supreme court.

Notice of names, &c. of sureties.

Sureties when to jus tify.

$69. The proceedings had before any officer, under the provisions of this Article, may also be removed into the supreme court, previous to any report, by certiorari, at the instance of the debtor or of any creditor; but such certiorari shall not stay any proceedings on such


$70. Upon an examination of the return to such certiorari, or of the report made by the officer as herein before directed, the supreme court may correct any errors therein, and make such order as shall seem just; and may remit the proceedings to the officer who issued the warrant, or to any other officer having authority to issue such warrant; or the said court may proceed to do such acts and things, as remain to be done, to complete the proceedings.

$71. Whenever any bond shall be executed by or in behalf, of any debtor, against whom proceedings may be instituted under this Article, or by or in behalf, of any claimant of any domestic vessel or of any share in such vessel, attached as the property of such debtor, the same shall not be taken by the officer authorised to receive such bond, until reasonable notice of the names and residence of the persons offered as sureties in such bond, be given to the attaching creditors.

$72. Whenever any such bond shall be proposed, the attaching creditors may require the persons offered as sureties therein, to establish their sufficiency in the same manner, and to the like extent, as bail are required to justify in civil actions.

Seizures under this Ar

$73. A seizure made by virtue of any attachment under the pro

ticle, to su visions of this Article, shall be deemed to supersede any such seizure

persede certain prior seizures.

that may have been previously made, under any warrant which shall have been issued at the instance of any overseers or superintendents of the poor, against any person, pursuant to the provisions of law, re-. specting the relief and support of indigent persons, or respecting the support of bastards; but the surplus of any property so seized, after satisfying the creditors, shall be paid to the overseers or superintendents, at whose instance any warrant so superseded may have issued.


Of Attachments against Debtors confined for Crimes.

SEC. 1. When and by whom application may be made for appointment of trustees.

2. Upon the production of certain documents, officer immediately to appoint trustees. 3. Effect of such appointment; rights and powers of trustees.

4. Trustees to pay debts, and to account; surplus how to be applied.

5. On discharge of debtor, trustees to deliver to him the property remaining, &c.

(22) 1 R. L. p. 163, § 25.


When and by

$1. Whenever any debtor shall be imprisoned in the state pri- ART. 3. son, for any term less than his natural life; and whenever any debtor shall be imprisoned in any penitentiary or county jail, for a criminal whom applioffence, for any term more than one year; application may be made be made. to any of the officers specified in the first section of the seventh Article of this Title, by any creditor of such debtor, or by any of his relatives, or by any relative of his wife, for the appointment of trustees to take charge of the estate of such debtor.23

to appoint

$2. Upon producing a copy of the sentence of conviction of such When officer debtor, duly certified by the clerk of the court under his seal of office, trustees. together with an affidavit of the applicant, that such debtor is actually imprisoned under such sentence, and is indebted in any sum whatever, the officer to whom such application shall be made, may immediately appoint two or more fit persons, to be trustees of the estate of such debtor.23


$3. Such appointment shall have the same effect, as the publication Effect of apof a notice of an attachment against an absconding debtor, as declared in the first Article of this Title; and shall vest in the trustees the same rights in, and powers over, the estate real and personal of such debtor, as the appointment of trustees of the estates of absconding debtors, as herein after declared in Article eighth of this Title.23

trustees in

their trust.

$4. Such trustees shall pay the debts of such imprisoned debtor, Duties of in the same manner as herein after directed in Article eighth of this execution of Title, and shall account in the like manner, and be subject to the same control, obligations and responsibilities. After paying such debts, and their disbursements and commissions, they may, under the direction of the officer who appointed them, or of the chancellor, or any equity judge having jurisdiction, from time to time, apply the surplus of any monies in their hands, to the support of the wife and children of such debtor, and of such other relatives as he may be bound to support, and to the education of his children.23

$5. Whenever any such imprisoned debtor shall be lawfully discharged from his imprisonment, the trustees so appointed, shall deliver up to him all the estate real and personal of such debtor, and all monies belonging to him, remaining in their hands, after retaining a sufficient sum to satisfy the expenses which they may have incurred in the execution of their trust, and their lawful commissions.23


Of voluntary Assignments, made pursuant to the Application of an Insolvent and his Creditors.

SEC. 1. Insolvent debtor may be discharged from his debts under this Article.

2. Petition to be signed by debtor, and by creditors to two-thirds of his debts.

(23) 1 R. L. 164, § 29 & 30.

« PreviousContinue »