61

Corporations deemed

TITLE 1. and the said court shall proceed therein, in the same manner, and with the like authority, as the officer who commenced such proceedings." $7. A corporation shall be deemed a creditor within the meaning creditors un- of all the provisions of this Title; and may present, or unite in, any petition, as other creditors under either of the preceding Articles. Any such petition may be signed by a director or other officer of the corporation, thereto duly authorised under its common seal; and any affidavit required of creditors by the preceding Articles, may be made and signed, by such director or officer. 62

der this Title, &c.

Partners and joint compauiee.

S8. Whenever partners or joint companies, are creditors of any debtor, any petition and any affidavit required by the preceding Articles, of creditors, may be made and signed by either of the partners, or any one of such company.63

Creditors in other states

$9. Creditors residing out of this state and within the United may petition; States, may petition and unite in any petition, in the same manner as

their accounts and affidavits

resident creditors, under either of the preceding Articles. They shall annex to every such petition the original accounts or sworn copies, and the original specialties or written securities, if any, on which their demands arise or depend. Affidavits sworn to by them, before How verified. a judge or clerk of a court of record of the state, district or territory

in which they reside, duly authenticated under the seal of such court,
shall be received by every officer or court, in proceedings under this
Title, in the same manner as if such affidavits were made before a
officer in this state."
proper

63

Debts purchased for

S 10. Whenever a petitioning creditor, under either of the forego

less than their ing Articles, shall have purchased or procured to be assigned to him,

nominal

amount.

any debt or demand against the debtor in respect to whom or whose estate he is a petitioner, for less than the nominal amount of such debt or demand, and whenever any executor or administrator shall petition in respect to any such debt or demand, the person petitioning shall be deemed a creditor, to the amount only of the sum or value actually and in good faith paid by him, or by his testator or intestate, for such debt or demand.64

Creditor

having secu

$11. Whenever a petitioning creditor, under the first, second, third, or fourth Articles of this Title, shall have in his own name, or mitos in trust for him, any mortgage, judgment, or other security, or as

rity not per

tition, unless

he relinquish

his security signment by way of security, for securing the payment of any sum of

money, upon any real or personal estate of the debtor, in respect to whom or whose estate he is a petitioner, he shall not become a petitioner in respect to the debt so secured, unless he shall add to his signature to the petition, a declaration in writing, that he relinquishes to the assignees or trustees, who shall be appointed pursuant to such pe

(61) Laws of 1827, p. 8. (62) Laws of 1817, p. 46, § 14; 1822, p. 239, § 5. (63) 1.Rǝ L. 157, § 1 ; 162, § 20; 461, § 4. (64) 1 R. L. 460, § 1; 1817, p. 45, § 6.

tition, every such mortgage, judgment or other security, for the bene- ART. 7. fit of all the creditors of such debtor; which declaration shall operate as an assignment of such mortgage, judgment or security to the assignees or trustees, who shall be subsequently appointed under the proceedings upon such petition, and vest in them all the rights and interest of such petitioning creditor therein.65

feit double,

$ 12. Every creditor who shall swear, in any proceedings under Creditors this Title, that any sum of money is due to him from any debtor, false to forwhich is not really due, or that more is due than the sum really due, &c. knowing the same not to be due, shall forfeit double the sum so falsely sworn to be due, to the assignees or trustees of the estate of such debtor, to be recovered by them.66

wife, &c. pœnaed;

creditor ex

$ 13. On the hearing of any petition under the third, fourth, fifth Debtor's or sixth Articles of this Title, the officer or court before whom the when subsame may be pending, may adjourn the same from time to time, and debtor or may issue a subpœna, requiring the wife of the debtor, or any other amined. person, whether an opposing creditor or not, to appear and testify concerning the subject matter; and the debtor, and any creditor, may in all cases be examined at the instance of any creditor, in any proceedings under those Articles.67

re

pear.

$14. The appearance of every person duly subpoenaed and neglect- Persons subing or refusing to appear, may be enforced by attachments to be is- fusing to apsued by such officer or court; and if, after appearance, any such person shall refuse to testify, he shall be committed to prison, until he submit.67

case of wil

$15. Every person disobeying such subpoena wilfully, shall for- Penalty in feit one hundred and twenty-five dollars, to be recovered by, and in ful disobe the name of, the party at whose instance he was subpoenaed.68

dience.

testimony,

kept.

$ 16. Whenever any hearing shall be had before any officer singly, Minutes of or before him and a jury, or before a court, under any of the pro- &c. to be visions of this Title, it shall be the duty of such officer, or of the presiding judge of the court, to keep minutes of the material parts of the testimony delivered before him, and of the examinations of any debtor.

moned and

$ 17. Every person who shall be summoned as a juror under the Jurors sumprovisions of this Title, and shall refuse or neglect to attend, without neglecting to reasonable cause, to be determined by the officer issuing such sum- feit $10 each. mons, shall forfeit ten dollars, to be recovered by any creditor at whose instance such summons was issued.

attend to for

$18. The sheriff or constable summoning a jury under the pro- Fees for sumvisions of this Title, shall be entitled to receive one dollar and ning jury

jurors fees, &c.

(65) 1 R. L. 461, § 2; Laws of 1817, p. 44, § 5. (66) 1 R. L. 467, § 15. (67) 1 R. L. 47, § 16; Laws of 1819, p. 117, § 4. (68) 1 R. L. 463, §7; Laws of 1819, p. 117, § 4.

TITLE 1. twelve and a half cents; and each juror attending and sworn, twentyfive cents. The said fees, together with all other expenses of the hearing of any case by a jury, shall be paid by the creditors requiring the same.69

$ 19. Every discharge granted under the third, fourth and fifth Articles of this Title, shall be recorded by the clerk of the county in Evidence of which it was granted; and the original discharge, the record thereof, and a transcript of such record duly authenticated, shall be conclusive evidence of the proceedings and facts therein contained.70

facts stated

therein.

Discharges to be recorded.

Assignments to be record

S20. Every assignment executed under the third, fourth, fifth ed; how far and sixth Articles of this Title, shall also be recorded by the clerk of

evidence.

the county in which it was executed, upon being acknowledged or proved in the same manner as deeds of real estate; and such original assignment, the record thereof, and the transcript of such record, shall be received in evidence, in the same manner and with the like effect as deeds of real estate duly recorded.

Insolvent ar

rested after how to pro

discharge,

Cause which may be shown by plaintiff.

$21. If any insolvent discharged under the third, fourth, fifth or sixth Articles of this Title, shall be arrested on mesne process, in a suit upon any debt or liability in which he is exempted from imprisonment as in those Articles declared, and shall apply to any officer to discharge him from such arrest, such officer shall cause reasonable notice to be given to the plaintiff in such suit, to show cause why such insolvent should not be discharged from such arrest.

"When insolvent may be discharged, notwithstanding such refusal.

S 22. The plaintiff in such suit may show as cause against such discharge, any fraud committed by such insolvent in obtaining his discharge, or any cause for avoiding such discharge, declared in the said Articles; and such officer may require such insolvent to be held to bail in such process, as if no such discharge had been granted."1

$23. Whenever an assignment shall have been executed to one or more assignees, appointed pursuant to the provisions of the third, to sign cer fourth, fifth, or sixth Articles of this Title, and they or any of them,

Proceedings where assignee refuses

of assignment.

shall refuse to sign a certificate of the fact that such assignment has been executed, upon complaint made to the officer or court who directed such assignment, the assignee so refusing, shall be cited to appear and the matter shall be investigated.

$ 24. If it shall appear that such assignment has been duly executed, and that such insolvent has delivered all his estate directed to be assigned, and all the books, vouchers and securities relating to the same, capable of delivery, such officer or court may grant a discharge of the debtor, notwithstanding the refusal of the assignees to certify the fact of an assignment.

(69) Laws of 1819, p. 118, § 10. (70) 1 R. L. 464, § 8 ; Laws of 1819, p. 116, § 3. (71) Laws of 1819, p. 116, § 3.

Or appoint

$25. Or, in such case, the officer or court may revoke the ap- ART. 8. pointment of assignees, and grant a certificate of such revocation, which shall be recorded in the office of the clerk of the county; and ment of asthereupon the assignment that may have been previously executed to be revoked. the assignees so refusing to certify, shall be void.

signees may

signment di

$ 26. The officer or court shall thereupon direct a new assignment And new asto be made to such persons as shall be appointed for that purpose; rected. and in case of such new assignment being executed, the certificate of the assignees to the fact, shall be required in the same manner as of the first assignees.

to

327. All proceedings under the second, third, fourth and fifth Ar- When proticles of this Title, shall be filed by the officer before whom the same be filed with shall have been consummated, within three months thereafter, with county clerk. the clerk of the county in which such officer resides.72

$28. Nothing in this Title contained, shall be construed to impair Landlord's or affect the right of any landlord to distrain upon any property vested in trustees under this Title, for any amount not exceeding the last year's rent, due for any real estate on which such property shall be, or from which it shall have been removed.73

right to distrain for last year's rent, saved.

af

Debts, &c. to
United States

$ 29. No debt or duty to the United States shall be in any way fected by a discharge under the provisions of this Title: nor can any not affected. debtor to the United States be discharged or exonerated from imprisonment by any proceedings under this Title, in any suit or proceeding founded upon a debt to the United States.

Debts to

embraced in

cept debts for taxes.

$30. All debts and duties to this state, except taxes, shall be affected by proceedings under this Title, in the same manner, as debts this state to individuals and debtors may be discharged and exonerated from this Title, eximprisonment, in suits brought in the name of the state, in the same manner as in suits by individuals; and in such case, whenever it shall be necessary to serve any notice upon plaintiffs, according to the provisions of this Title, the same may be served on the attorney-general, and the attorney-general shall, in all proceedings under this Title, represent the state.

ARTICLE EIGHTH,

Of the Powers, Duties and Obligations, of Trustees and Assignees under this Title.

Sec. 1. Assignees and trustees appointed under preceding Articles declared trustees, &c.

2. If there be only one, provisions having reference to several, to apply.

3. Powers of trustees where there are more than one.

4. Powers of survivor. Property in the hands of trustee dying, &c. provided for.

5. Trustees to take oath; oath to be filed, and where.

6. Trustees to be deemed vested with debtor's property, and from what time. 7. Powers of trustees.

(72) 1 R. L. 471, § 27; Laws of 1819, p. 118, § 12. (73) 1 R. L. 470, § 25; 437, § 12.

&c.

TITLE 1. SEC. 8. Trustees to give notice requiring debtors to pay, 9. Time and manner of publishing such notice.

t

10. Trustees may sue before day of payment, &c. named in notice.
11. Persons concealing property or debts, to forfeit double the amount, &c.
12. Debtor, &c. charged with concealing estate, may be brought up by warrant.
13. Person brought up to be examined; examination to be reduced to writing, &c.
14. If he refuse to be sworn, &c., officer to commit him, and how.

15. Proceedings in case such person shall bring a habeas corpus.

16. Sherift, &c. suffering such person to escape, to be indicted, and to forfeit $2,500. 17. Persons examined and answering, not liable to penalty; answers how far evidence. 18. Persons discovering concealed property, entitled to ten per cent.

19. Controversies between trustees and others, may be referred to three referees.

20. If referees be not agreed on, trustees to give notice of application, &c.

21 & 22. Referees how to be selected.

23. Selection to be certified to clerk of court, and rule to be entered.

24. Referees to have same powers, &c. as referees appointed by supreme court.
25. Report of referees where to be filed; conclusive if not set aside.

26. Trustees to convert estate into money; to keep account, &c.

27. Trustees within fifteen months, to call a general meeting of the creditors, &c.

28. Accounts to be adjusted, and amount of monies in hand declared.

29. Trustees to deduct disbursements and a commission of five per cent.

30 & 31. Duty of trustees under Article first, where bonds to retain property for the benefit of creditors, have been executed.

32. U. S. and sureties having a preference by laws of U. S. to be first paid.

33. Manner in which remainder is to be distributed among creditors.

34. Debts due as guardian, &c. to be first paid on such distribution.

35. Creditors whose debts are not due, to receive their proportion, deducting interest.

36. Mutual credits and mutual debts, when set off, &c.

37. Set-offs of demands purchased, &c. regulated.

38. Trustees may retain monies in their hands to meet demands in suits pending.
39. Penalties recovered by trustees to be deemed part of debtor's estate, &c.
40. If whole estate be not distributed, yearly dividends to be made, &c.

41. Creditors omitting to deliver accounts on first dividend, &c. provided for.
42. Dividends unclaimed for one year, deemed relinquished, and to be distributed.
43. Surplus remaining after settlement of estate, to be paid to debtor.

44. Certain debtors discharged under 3d, 4th and 5th Articles, entitled to allowance, &c.
45. Trustees to render account on oath; where filed; its contents, &c.

46. Trustees subject to order of certain courts; removable for cause shown.

47. Proceedings in common pleas, under this Title, removable into supreme court, &c.
48. If trustee be removed, or die, &c., new trustee may be appointed.

49. Trustee wishing to renounce, may apply for order to show cause, &c.
50. If officer who appointed is not in office, application to whom made.
51. Application to be accompanied by account of trustee's transactions, &c.
52. Affidavit of trustee to be annexed to account.

53. Order to be granted directing notice to persons interested to shew cause.
54. Notice to be published, how and for what time.

55. On the day appointed, &c., proofs and allegations to be heard.

56. When order may be granted allowing trustee to renounce, &c.

57. Trustee to execute assignment to such person as shall be appointed, &c.
58. Effect of such assignment; powers and duties of new assignee.

59. On certificate of assignment, &c. order to be granted discharging trustee.
60. Trustee thereupon discharged from his trust, subject to liabilities previously incurred.
61. New assignment where to be recorded; petition and proceedings where filed.

62. Expenses of proceedings to be paid by trustees renouncing.

$1. All assignees and trustees, appointed under any authority,

Assignees,

&c. trustees conferred by any of the provisions of the preceding Articles of this

for the benefit

of creditors. Title, in the several cases therein contemplated, are hereby declared

to be trustees of the estate of the debtor, in relation to whose property they shall be appointed, for the benefit of his creditors; and shall be vested with all the powers and authority herein after specified, and shall be subject to the control, obligations and responsibilities hereinafter declared, in respect to trustees.