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vent at the time of presenting his petition, to creditors residing within ART. 3. the United States; that such insolvent has honestly and fairly given a true account of his estate, and has in all things conformed to the matters required of him by this Article; the officer or court before whom the application shall be pending, shall direct an assignment of all such insolvent's estate, both in law and equity, in possession, reversion, or remainder, excepting from the articles mentioned in his inventory, such articles of wearing apparel and bedding, as in the opinion of such officer or court, shall be reasonable and necessary for such insolvent and his family to retain, and also the arms and accoutrements required by law to be provided by any citizen enrolled in the militia.32
$26. When any of the matters in the last section required to be Finding of established previous to granting an order of assignment, shall have sive. been submitted to a jury as herein provided, and shall have been found in favor of the insolvent, such finding shall be conclusive as to such matters, upon the officer or court before whom the proceedings are pending, and the officer or court shall direct an assignment accordingly.
to whom to
$27. Such assignment shall be made to the person or persons who Assignment shall have been nominated as assignee or assignees, by the petitioning be made. creditors, or by such a number of the said petitioners, as shall have owing to them a major part of the debts, constituting the two-thirds as berein required.32
$28. Such assignment shall vest in the assignees all the interest Effect of the of such insolvent at the time of executing the same, in any estate or property, real or personal, whether such interest be legal or equitable; but no contingent interest shall pass to the assignees by virtue of such assignment, unless the same shall become vested within three years after the making of the assignment; and in case of its becoming so vested, it shall pass to the assignees, in the same manner as it would have vested in such insolvent, if no assignment had been made by him.
charge to be
$29. Upon such insolvent's producing a certificate under the hands When dis and seals of the assignees, executed in the presence of such officer, or granted. of two witnesses and proved by the affidavit of one of them, stating that such insolvent has assigned and delivered for the use of all his creditors, all his estate so directed to be assigned, and all the books, vouchers and securities relating to the same, and upon his also producing a certificate of the county clerk, that such assignment has been duly recorded in his office, the officer or court who directed such assignment, shall grant to such insolvent a discharge from his debts and from imprisonment, which shall have the effect declared in the succeeding sections of this Article.33
(32) 1R. L. 462, § 5; Laws of 1817, p. 42, § 2. (33) 1 R. L. 463, § 8.
12, 1813, &c.
$30. This Article being a revisal and continuation of the act, entitled "An act for giving relief in cases of insolvency," passed the twelfth day of April, one thousand eight hundred and thirteen, a dissince April charge granted pursuant to the provisions hereof, shall discharge and exonerate such insolvent from all debts due at the time of the assignment, or contracted before that time though payable afterwards, founded upon contracts made since the said twelfth day of April, one thousand eight hundred and thirteen, within this state, or to be executed within this state; and from all debts owing to persons resident within this state, at the time of the first publication of the notice of the application for such discharge, or owing to persons not residing within this state, who united in the petition for his discharge, or who shall accept a dividend from his estate.34
Effect of diseharge.
Ib. Future contracts.
ib. Bar in
certain actions upon contract.
$ 31. With respect to all contracts which shall be made after this Article shall commence and take effect as a law, every such discharge shall also exonerate such insolvent from all liabilities incurred by him by making or endorsing any promissory note or bill of exchange, previous to the execution of his assignment; or incurred by him in consequence of the payment, by any party to such note or bill, of the whole or any part of the money secured thereby, whether such payment be made prior, or subsequent, to the execution of the assignment by such insolvent.35
$ 32. In any action which shall be brought against such insolvent or his personal representatives, a discharge granted pursuant to the provisions of this Article, may be pleaded, or given in evidence, under the general issue and notice thereof, in bar of any action upon any contract, made by such insolvent since the said twelfth day of April, one thousand eight hundred and thirteen, within this state, or to be executed within this state; or made with persons resident within this state, at the time of the first publication of the notice of the application for such discharge; or made with persons not residing within this state, who shall have united in the petition for such discharge, or who shall accept a dividend from the estate of such insolvent; and in bar of any action upon any liability of such insolvent, incurred by making or endorsing any promissory note or bill of exchange, previous to the execution of his assignment; or incurred by him in conse quence of the payment, by any party to such note or bill, of the whole or any part of the money secured thereby, whether such payment be made prior, or subsequent, to the execution of the assignment by such insolvent.
Jb. To exo. nerate from
$33. Every such discharge shall also exonerate the insolvent to arrest or im- whom it shall be granted, from any arrest or imprisonment thereafter,
in any suit, or upon any proceeding, founded upon any debt whatev
(34) 1 R. L. 463, § S. (35) Laws of 1819, p. 118, § 11.
er, contracted by him previous to the execution of the assignment of ART. 3. his estate as herein directed; or in any suit, or upon any proceeding, founded upon any liabilities incurred by him by making or endorsing any promissory note or bill of exchange, previous to the execution of his assignment; or incurred by him in consequence of the payment, by any party to such note or bill, of the whole or any part of the money secured thereby, whether such payment be made prior or subsequent to the execution of his assignment.36
$34. If such insolvent be in prison in any suit or proceeding, Ib. founded upon any contract or liability, in which he is exempted from imprisonment according to the last section, he shall be discharged therefrom, upon producing the discharge granted pursuant to the provisions of this Article, and upon endorsing his appearance on any mesne process upon which he may be so imprisoned. 36
$35. Every discharge granted to an insolvent under this Article, Discharge shall be void in each of the following cases:
1. If such insolvent shall have wilfully sworn false, in his affidavit annexed to his petition, or upon his examination, in relation to any material fact concerning his estate or his debts, or to any other material fact:
2. If, after the presentation of his petition, he shall sell, or in any way transfer or assign, any of his property, or collect any debts due him, and shall not give a just and true account thereof on the hearing of his application; and shall not also pay, or secure the payment, of the money so collected, or the value of the property so assigned, as herein before directed:
3. If he shall secrete any part of his estate, or any books or writings relative thereto, with intent to defraud his creditors:
4. If he shall fraudulently conceal the names of any of his creditors, or the amount of any sum due to any of them :
5. If, in order to obtain his discharge, he shall procure any person to become a petitioning creditor, for any sum not due from him to such person in good faith:
6. If he shall pay, or consent to the payment of, any portion of the debt or demand of any of his creditors, or shall grant, or consent to the granting of, any gift or reward to any such creditor, upon an express or implied contract or trust, that the creditor so paid or rewarded should become a petitioner in behalf of such insolvent, or that he should abstain or desist from opposing the discharge of such insolvent :
7. If he shall be guilty of any fraud whatever, contrary to the true intent of this Article.37
(36) 1 R. L. 463, § 8. (37) 1 R. L. 466, § 13.
When creditor may petition.
Contents of petition and affidavit.
Notice of order.
Of Proceedings by Creditors, to compel Assignments by Debtors imprisoned on Execution in Civil Causes.
SEC. 1. When creditor may petition to compel assignment of debtor's estate.
2. Petition what to state; to be accompanied by affidavit; contents of affidavit.
3. Officer to make order requiring other creditors to appear, &c.
4. Notice of such order, how to be published.
5. Copy of order to be served on debtor or on jailer.
6. On the day appointed, officer to hear proofs and allegations of parties, &c.
7. When officer to order debtor to be brought before him for examination.
8. Debtor when brought up, to be examined on oath.
9. If debtor refuse to be examined, officer may commit him to close confinement.
10. Officer then to take other proof of the debts, &c.
11. When order to be made requiring debtor to deliver account of his creditors, &c. 12. If two-thirds of creditors have not united in petition, proceeding to be dismissed. 13. Duty of debtor, after service of order; effect of compliance therewith.
14. When creditor may demand that debtor's case be submitted to a jury; proceedings. 15. Certain provisions of Article Third, extended to proceedings under this Article. 16. When officer is to grant debtor a discharge.
17. Effect of such discharge; how impeached, and when void.
18. If debtor do not comply with the order, &c. officer to execute assignment.
20. Such debtor not to be discharged, unless he and his creditors petition, &c.
S1. When any person shall have been actually imprisoned for more than sixty days upon execution in any civil action, any creditor having a demand against such person to the amount of twenty-five dollars, for which a suit might then be brought, may apply by petition to any of the officers enumerated in the first section of the seventh Article of this Title, to compel an assignment of the estate of such debtor.38
S2. The petition shall state the nature and object of the application; and shall be accompanied by an affidavit of the creditor, stating, that such imprisoned debtor is justly indebted to him in a certain sum, therein to be specified, then due; that such debtor is imprisoned in a certain county therein to be named, under an execution against him in some civil action; that he has been so imprisoned for more than sixty days, and that such creditor is apprehensive, that the estate of such debtor will be wasted or embezzled.38
Order for creditors to
$ 3. Upon such application being made to such officer, he shall appear, &c. make an order requiring the creditors of such imprisoned debtor, to
appear before him at a certain time and place to be specified in the order, and determine whether they will unite in a petition for an assignment of such debtor's estate. 38
$ 4. The creditor making such application, shall cause notice of such order to be published once in each week, for eight weeks successively, in the state paper, and in a newspaper printed in the county where such debtor is imprisoned, if there be any, and if there be
(38) Laws of 1817, p. 41, § 1.
none, then in a newspaper printed nearest to the place of such impri- ART. 4.
$5. Such creditor shall also, within ten days after the granting of Copy to be such order, serve a copy thereof on the debtor, or on the keeper of debtor. the jail where such debtor is imprisoned, who shall deliver the same to such debtor.39
$6. On the day appointed for showing cause, or on such subse- Hearing of quent days and times as the officer making the order shall direct, upon proof being made to him of the due publication of such notice and of the service of such order, such officer shall proceed to hear the proofs and allegations of the parties.39
ordered to be
$7. If at the time of such hearing, any of the creditors of such im- When debtor prisoned debtor shall unite in a petition for the assignment of such examined. debtor's estate, and shall accompany such petition with the same affidavit of each creditor, as is required in the fourth section of Article third of this Title, (except that such affidavits respectively shall state, that the sums therein specified, were due from such debtor, at the time of granting the order for publication of notice to creditors, as herein before required,) the officer to whom the same may be presented, may order such imprisoned debtor to be brought before him, to be examined touching his debts.
38. Upon such debtor being brought before the said officer, he How to be shall be examined on oath, concerning his creditors, the sums of money due to them respectively, and the places of their residence.
fusing to be
to be commit
$9. If the debtor refuse to be so examined, or shall not give full Debtor reinformation concerning the matters so inquired of him, the officer examined, shall, by order in writing, commit him to close confinement in the ted. jail of the county in which he shall be imprisoned, in which order the cause of such commitment shall be particularly specified; and such debtor shall thereupon be closely confined without being entitled to the liberties of the jail, until he shall consent to such examination, and give such information.
to be taken.
$10. Upon any debtor being so committed, the said officer shall other proof proceed to take other proof, of the debts owing by such debtor, and the names and residence of his creditors, and of the sums due to them respectively.
$ 11. If it shall appear by the examination of the debtor or by other proof, satisfactorily to the said officer, that creditors residing with- required to in the United States, having debts due to them, amounting to two- count, &c. thirds of all the debts owing by such imprisoned debtor to creditors within the United States, have petitioned in the manner herein before