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Of voluntary Assignments by a Debtor imprisoned in Execution in Civil Causes.
SEC. 1. Certain debtors charged in execution, may petition court for their discharge.
2. When certain other imprisoned debtors may petition.
3. Notice to be served on the creditor, &c.
4. Contents of petition; account to be annexed to it.
5. Affidavit to be endorsed on petition; form thereof.
6. Court how to proceed upon the presenting of such petition.
7. May adjourn hearing; limitation of adjournment.
8. Proceedings at the adjourned hearing.
9. Assignees to be appointed, and how; effect of assignment.
10. Delivery of property assigned to be proved, or security to be given.
11. Applicant when ordered to be discharged; duty of sheriff thereupon.
12. Certain remedies reserved against property of such applicant, notwithstanding his` discharge.
13. If convicted of perjury in the proceedings, execution may issue against his body.
14. Rights, powers, and obligations of the assignees.
15. Assignees how to dispose of the property assigned to them.
16. When creditors may notify debtors to apply for discharge under this Article.
32. Every person so imprisoned for a sum exceeding five hundred dollars, may in like manner petition for his discharge, after he shall have been imprisoned for three months. 51
$1. Every person, except plaintiffs, and lessors of a plaintiff, and who may defendants, imprisoned for costs only, who shall be imprisoned by der this Arti virtue of one or more executions in civil causes, upon which there shall be due, a sum not exceeding five hundred dollars, may at any time petition the court from which such process issued, or the court of common pleas of the county in which he is imprisoned, for his discharge from such imprisonment, on his compliance with the provisions of this Title. 50
33. Fourteen days previous notice of the time and place at which such petition will be presented, together with a copy of such petition and the account of his estate herein after directed, shall be personally served by such debtor, on the creditors at whose suit he shall be imprisoned, their personal representatives or their attorney.51
(50) 1 R. L. 349, § 4 & 5 ; Session laws of 1813, chap. 203, § 49; Laws of 1818. p. 156, 13 (51) 1R. L. 349, § 4.
Notice how served.
34. Such petition shall set forth the cause of the imprisonment of the applicant, and shall have annexed to it, a just and true account petition. of all his estate real and personal, in law and equity, and of all charges affecting the same, both as such estate and charges existed at the time of his imprisonment, and as they exist at the time of preparing such petition; together with a just and true account of all deeds, secu- Account rities, books and writings whatsoever relating to the said estate and the charges thereon, with the names and places of abode, of the witnesses to such deeds, securities and writings. 51
Court how to proceed.
Adjournment of hearing.
Proceedings at adjourned day.
Assignees to be appointed.
Discharge when ordered.
$5. At the time of presenting such petition, the following affidavit shall be endorsed thereon, and shall be sworn to by the applicant :
"I, the within named petitioner, do swear, (or affirm, as the case may be) that the within petition and account of my estate and of the charges thereon, are in all respects just and true; and that I have not, at any time or in any manner, disposed of or made over, any part of my property, with a view to the future benefit of myself or my family, or with an intent to injure or defraud any of my creditors."52
$ 6. Upon the presenting such petition, and due proof being made of the service of a copy thereof, and of the account thereto annexed, with the notice herein before required, the court shall order the applicant to be brought before it, on a day to be assigned; and on such day, and such other days as the court shall appoint during the same term, shall proceed in a summary way to hear and determine the proofs and allegations of the parties, and may examine the applicant or his wife, or any other person, on oath; and if satisfied that the petition and account of the applicant are correct, and that his proceedings are just and fair, shall order an assignment to be made of all his property, (except the articles which are by law exempt from execution) or of so much thereof, as shall be sufficient to discharge the executions on which he shall be imprisoned. 52
$7. Upon sufficient cause shown by any creditor, the court may adjourn the hearing of such petition to the next term thereof; but no adjournment shall be made, extending beyond the next term.52
$ 8. At such adjourned hearing, no objections to matters of form shall be received; and unless the opposing creditor shall then be able to satisfy the court, that the proceedings on the part of the prisoner are not just and fair, the court shall order an assignment as aforesaid, and grant a discharge as herein after directed. 62
$9. The court shall appoint one or more assignees, and the assignment shall be made to the persons so appointed by an endorsement on such petition; which shall vest in the assignees, all the estate, right and interest of the applicant, in all the property, real and personal, so directed to be assigned, for the benefit of the creditors upon whose executions he is imprisoned. 52
$10. Such applicant shall furnish satisfactory evidence to the court, of the actual delivery to the assignees so appointed, of all the property so directed to be assigned; or he shall give such security for the future delivery thereof, as the court shall approve. 53
$ 11. Upon such assignment being made, and such evidence or security being furnished, the court shall order the discharge of the applicant from his imprisonment, by virtue of any execution which shall
(52) 1 R. L. 349, § 4. (53) Laws of 1818, p. 10, § 1 & 2.
have been specified in his petition; and the sheriff shall discharge ART. 6. him accordingly, on being served with such order, without any detention on account of any fees. 54
$12. Notwithstanding such discharge, the party in whose favor Property of applicant any execution shall have been issued, shall be entitled to the same still liable. remedies against such applicant, by execution against his property only, or by suit on the judgment upon which such execution was issued, for any balance that may be due thereon, as he might have had, if such execution had not been issued; but the applicant shall not be held to bail in any such suit, nor shall execution issue against his person, on any judgment obtained therein.55
$ 13. If the applicant shall be convicted of perjury in any of the Body when proceedings authorised by this Article, the party at whose suit he was imprisoned, may issue execution against the body of such applicant.55
14. The assignees shall be vested with all the rights in, and pow- Rights, &e. ers over, the property so assigned, which are specified in the eighth Article of this Title; and shall be subject to the same duties, obligations and control in all respects, except as herein otherwise provided.
$15. It shall not be necessary for such assignees to publish any Their duty. notice, calling a general meeting of creditors; but they shall proceed to collect, sell and distribute the proceeds of the property assigned to them, as follows:
1. They shall pay the jail fees, on the imprisonment and discharge of such applicant:
2. They shall distribute the nett produce of the property that shall come to their hands, among the creditors who charged such applicant in execution, previous to the exhibition of his petition, in proportion to the amounts due on their respective executions; and for that purpose, shall give personal notice to such creditors or their attorneys, of the time and place of making a dividend, instead of publishing such notice:
3. They shall pay over to such applicant or his personal representatives, the surplus which may remain, after discharging such executions, and defraying their expenses. 54
be notified to
3 16. When any person shall have remained charged in execution Debtor may for the space of three months, after being entitled to make an appli- apply for dis cation for his discharge according to the provisions of this Article, without having made such application, and without having applied for a discharge, under the third or fifth Articles of this Title, any creditor, at whose suit he shall have so remained charged, and his personal representatives, may, by notice in writing subscribed by him or them, require such prisoner to make application for his discharge according to the provisions of this Article. 56
(54) 1 R. L. 349, § 4. (55) 1 R. L. 351, § 7. (56) 1 R. L. 353, § 13. VOL. II. 5
Consequences of his omission or
$ 17. If within thirty days after personal service of such notice, such prisoner shall not present a petition to a proper officer, either under the third or fifth Articles of this Title; or shall not serve upon the creditor giving such notice, or his attorney, a copy of a petition and of an account of his estate, with notice of his intention to apply for his discharge according to the provisions of this Article; or if, after presenting such petition under the said third and fifth Articles, or serving a copy of a petition under this Article, such prisoner shall not diligently proceed thereon to a decision; he shall be forever barred from obtaining his discharge from any execution in which he shall be so imprisoned, under the provisions of this Article, or of the said third and fifth Articles.57
General Provisions applicable to Proceedings under the several preceding Articles, or some of them.
SEC. 1. To what officers applications are to be made under the preceding Articles.
2. When to be made to officer in the county where insolvent resides, &c.
3. Discharge granted in county where insolvent is imprisoned by collusion, void, &c. 4. When application may be made to officer residing in another county.
5. If officer die, &c. how proceedings commenced before him may be continued.
6. Proceedings in case there be no officer competent to continue.
7. Corporations deemed creditors under this Title; petitions and affidavits how made by them.
8. Petitions and affidavits of partners and joint companies how made, &c.
9. Creditors in other states may petition; accounts and affidavits to be annexed, &c.
15. Persons wilfully disobeying subpoena, to forfeit $125.
16. Minutes of testimony and of the debtor's examination, to be kept.
17. Jurors summoned under this Title, and neglecting to attend, to forfeit $10 each18. Fees of officers summoning jury, and of jurors; by whom paid.
19. Discharges to be recorded. Conclusive evidence of the facts contained therein. 20. Assignments to be recorded, &c. ; how to be received as evidence.
21. Insolvent arrested after his discharge may compel plaintiff to shew cause, &c.
22. Cause which may be shown by the plaintiff in such suit.
23. Assignee refusing to sign certificate of fact, may be cited, &c.
24. Insolvent who has duly assigned, &c. to be discharged notwithstanding such refusal
27. Proceedings under certain Articles to be filed with county clerk; and when.
$1. Applications for attachments, under the first Article of this cations are to Title; for the appointment of trustees under the second Article; for
Officers to whom appli
the discharge of an insolvent from his debts, under the third Article; to compel an assignment, under the fourth Article; and for the exemption of a debtor's person from imprisonment and arrest, under the fifth Article; may be made to either of the following officers: circuit
(57) 1 R. L. 353, § 13.
judges, supreme court commissioners, first judges of county courts, ART. 7. and any other judge of such courts, of the degree of counsellor at law in the supreme court, recorders of cities; and if made in the city of Schenectady, the mayor thereof; and applications under the third and fifth Articles, to any county judge, as in the said Articles specified; but no application under any Article of this Title shall be made to any alderman of the city of New-York. 58
$2. Applications under the third, fourth and fifth Articles of this Residence of Title, shall be made to an officer residing in the county in which the officer. insolvent, or imprisoned debtor, resides, or is imprisoned; and proof of such residence or imprisonment, shall be made at the time of presenting the petition, and before any order shall be granted thereon.58
cases of imby collusion,
$3. Where the insolvent shall, by collusion with any prosecuting Discharge in creditor, procure himself to be imprisoned in a county different from prisonment that of his residence, for the purpose of obtaining a discharge in such void. county, under the third or fifth Articles of this Title, a discharge granted in such county, where the insolvent is so imprisoned by collusion, shall be void; and if such collusion shall be proved on the hearing, it shall defeat the application.
$4. If there be no circuit judge, supreme court commissioner, re- Application corder, first judge of a county court, or any judge of such court of the to officer in degree of counsellor at law, residing within any county, and disin- county. terested as creditor or otherwise, to whom application can be made under the third, fourth and fifth Articles of this Title, then application under the said Articles may be made to any such officer residing in any other county; but no place shall be appointed for the hearing on any application, out of the county in which the insolvent resides, or is imprisoned.59
$5. In case of the death, sickness, resignation, removal from of Proceedings fice, absence from the county of his residence, or other disability, of tinued in case any officer, before whom any proceedings may have been commenced death, &c. Under the first, second, third, fourth or fifth Articles of this Title, the said proceedings may be continued by his successor in office, or by any other officer residing in the same county, who might have originally instituted such proceedings, in the same manner and with the like effect, as if originally commenced before him.60
ings if there
36. If there be no officer in the same county, competent under the b. Proceedlast section to continue such proceedings, then any judge of the county be no officer courts may attend at the time and place appointed for the hearing of any continue. matter, and may adjourn the same to the next court of common pleas to be held in and for the county in which such hearing was appointed;
(58) 1 R. L. 157, § 1; 349, § 4; 460. § 1; Laws of 1817, p. 41, § 1; 1819, p. 115, § 1. (59) Laws of 1818, p. 277, § 1. (60) 1 R. L. 471, § 26; Laws of 1817, p. 45, § 8; 1823, p. 35.