TITLE 1. rect an assignment to be made to such assignee or assignees, as such officer shall appoint, of all the estate of such debtor, excepting such articles, as are by law exempt from execution. 45 How executed, &c. Discharge when to be granted. effect. $ 9. The insolvent shall execute an assignment, with the like effect as declared in the third Article of this Title, respecting the assignment of a debtor petitioning in conjunction with two-thirds of his creditors, and shall cause the same to be recorded in the same man $10. Upon producing and proving a certificate of the assignees and of the county clerk, as prescribed in the said third Article, of the execution and recording of such assignment, and of the delivery of the property assigned, or so much as shall be capable of delivery, with the books and papers relating to the same, the officer before whom the proceedings were had, shall grant a discharge under his hand and Its terms and seal; declaring, and such shall be its effect, that the person of such insolvent shall forever thereafter be exempted from imprisonment, by reason of any debt due at the time of his making such assignment, or contracted for before that time, though payable afterwards; and by reason of any liabilities incurred by him, by making or endorsing any promissory note or bill of exchange; 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.46 Insolvent discharged from prison. Debts not affected, &c. Discharge then void. $ 11. If such insolvent be in prison, in any suit or proceeding, founded upon any contract or liability, as to which he is exempted from imprisonment according to the last section, he shall be discharged therefrom, on producing his discharge granted pursuant to the provisions of this Article, and upon endorsing his appearance on any mesne process upon which he may be imprisoned.47 $ 12. No debt, demand, judgment or decree, against any insolvent discharged under this Article, shall be affected or impaired by such discharge, but shall remain valid and effectual against all the property of such insolvent, acquired after the execution of his assignment; and the lien acquired by any judgment or decree, upon any property of such insolvent shall not be, in any manner, affected by such discharge, 18 $ 13. Every discharge granted to an insolvent under this Article, shall be void in the same cases, so far as they are applicable, in which a discharge granted under the third Article of this Title, is therein declared to be void.49 (45) Laws of 1819, p. 116, § 2. (46) Ib. p. 118, § 11. (47) Ib. p. 116, § 3. (48) Ib. p.: 117, § 6. (49) Ib. § 5. ARTICLE SIXTH. 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. 17. Prisoner so notified, to be forever debarred, in certain cases, of the benefit of this Article, and of Articles 3 and 5. ART. 6. petition un cle. $ 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 Artivirtue 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 $2. 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.5 51 Ib. Notice how S3. Fourteen days previous notice of the time and place at which such petition will be presented, together with a copy of such petition served. 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 4. Such petition shall set forth the cause of the imprisonment of Contents 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 (50) 1 R. L. 349, § 4 & 5 ; Session laws of 1818, chap. 203, § 49; Laws of 1818. p. 156, §3. (51) 1R. L. 349, § 4. TITLE 1. Affidavit. proceed. $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 Court how to $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 Adjournment $7. Upon sufficient cause shown by any creditor, the court may of hearing. adjourn the hearing of such petition to the next term thereof; but no adjournment shall be made, extending beyond the next term.52 Proceedings at adjourned § 8. At such adjourned hearing, no objections to matters of form day. 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. 52 Assignees to be appointed. Assigned property. Discharge when order ed. $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 applicant $ 12. Notwithstanding such discharge, the party in whose favor Property of 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 liable. of assignees. $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 charge. S 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 din 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. YOL. I. 5 Consequences of his emission or neglect. [PART II. TITLE 1. $ 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 Officers to whom appli be made. ARTICLE SEVENTH. 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 each. 18. 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 25. Or the appointment of the assignees may be revoked and assignment avoided. 26. New assignment then to be directed, and if made, to be certified. 27 Proceedings under certain Articles to be filed with county clerk; and when. 28. This Title not to affect landlord's right to distrain for last year's rent. 29. Debts to United States, not affected by proceedings under this Title, &c. $1. Applications for attachments, under the first Article of this cations are to Title; for the appointment of trustees under the second Article; for 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. 358, § 13. |