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. $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 warrant. $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 of sureties. 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. Sureties when to jus tify. Seizures un der this Ar $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. $73. A seizure made by virtue of any attachment under the proticle, 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, respecting 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after satisfying the creditors, shall be paid to the overseers or superintendents, at whose instance any warrant so superseded may have issued. ARTICLE SECOND. Of Attachments against Debtors confined for Crimes. 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. any debtor When and by cation may $1. Whenever any debtor shall be imprisoned in the state pri- ART. 3. son, for any term less than his natural life; and whenever 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 pointment. $3. Such appointment shall have the same effect, as the publication Effect of ap of 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.29 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 ARTICLE THIRD. 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. TITLE 1. Who may be discharged. Petition by whom to be signed. Executors and adminis trators. Affidavit of petitioning creditor. SEC. 3. When executors and administrators may become petitioning creditors. 4. Each petitioner to make affidavit; its form. 5. Insolvent to deliver with his petition, a schedule; its contents. 6. To what officer petition is to be presented. 7. Affidavit to be made by insolvent; its form. 8. Officer to make order requiring creditors to show cause. 9. Order to direct when and where cause to be shown, 10. Officer to direct notice of order to be published in certain newspapers. 12. Hearing of the parties; proof of publication of notice to be required. 16. Twelve of the persons so summoned to be drawn and sworn. 17. Proceedings before jury; their verdict conclusive. 18. Verdiet to be recorded in minutes of the proceedings. 19. But one hearing before a jury proceedings in case they cannot agree. 20. Insolvent may be ordered to produce his wife, if a non-resident. 21. If she do not attend as ordered, debtor not to be discharged, unless, &c. 22. Insolvent may be examined on oath ; his evidence may be impeached. 23. When insolvent to make certain payments or give security, before his discharge. 24. Insolvent who has given preference to a creditor, debarred from being discharged. 27. Assignment to whom to be made; creditors to nominate. 28. Effect of the assignment; what property to vest in assignees. 29. Upon insolvent's producing certain certificates, discharge to be granted to him. 31. Effect of discharge as to certain contracts made after this Article takes effect. $ 1. Every insolvent debtor may be discharged from his debts as herein after provided, upon executing an assignment of all his estate for the benefit of his creditors, and upon the provisions of this Article being complied with.24 S2. The petition for that purpose shall be signed by him, and by so many of his creditors residing within the United States, as have debts in good faith owing to them by such debtor, then due or thereafter to become due, and amounting to at least two-thirds of all the debts owing by him to creditors residing within the United States.24 S3. Executors and administrators may become petitioning creditors for the discharge of an insolvent, under the order of the surrogate to whom they may be liable to account, or of the chancellor, or any equity judge having jurisdiction; and shall be chargeable only for such sum as they shall actually receive on the dividend of the insolvent's estate.2 25 $ 4. Every such petition shall be accompanied by the affidavit of each petitioning creditor, to be taken before any officer authorised to take affidavits to be read in courts of record; which affidavit shal state, that the sum specified therein and annexed to the name of the petitioner subscribed to such petition, is justly due to him, or will be (24) 1 R. L. 460, § 1. (25) Ib. 465, § 11. come due to him at some future time to be specified therein; and shall state the nature of the demand, and whether arising on any written security or otherwise, with the general ground and consideration of such indebtedness; and that neither he, nor any person to his use, hath received from such insolvent, or any other person, payment of any demand or any part thereof, in money or in any other way whatever, or any gift or reward whatsoever, upon any express or implied trust or confidence, that he should become a petitioner for such insolvent.26 ART. 3. schedule. $5. Every such insolvent shall annex to, and deliver with, his Insolvent's petition, to the officer to whom it shall be presented, a schedule, containing, 1. A full and true account of all his creditors: 2. The place of residence of each creditor, if known to such insolvent; and if not known, the fact to be so stated: 3. The sum owing to each creditor, and the nature of each debt or demand, whether arising on written security, on account, or otherwise: 4. The true cause and consideration of such indebtedness in each case, and the place where such indebtedness accrued: 5. A statement of any existing judgment, mortgage, or collateral or other security, for the payment of any such debt: 6. A full and true inventory of all the estate both real and personal, in law and equity, of such insolvent, of the incumbrances existing thereon, and of all the books, vouchers and securities relating thereto.27 presented. 36. Every such petition may be presented to any officer specified To whom in the first section of the seventh Article of this Title, or to any judge of any county court. affidavit. $7. An affidavit in the following form, shall be annexed to the Insolvent's said petition, account and inventory, and shall be sworn to and subscribed by such insolvent, in the presence of such officer, who shall certify the same: "I, do swear, (or affirm, as the case may be,) that the account of my creditors, and the inventory of my estate, which are annexed to my petition and herewith delivered, are in all respects just and true; and that I have not, at any time or in any manner whatsoever, disposed of, or made over, any part of my estate, for the future benefit of myself or my family, or in order to defraud any of my creditors; and that I have in no instance created or acknowledged a debt for a greater sum than I honestly and truly owed; and that I have not paid, secured to be paid, or in any way compounded with, (26) 1 R. L. 461, § 3. (27) Ib. 462, § 5 & 6; Laws of 1917, p. 46, § 11. VOL. I. 3 TITLE 1. Order to show cause. Time and place of showing cause. Notice of order. Time of publication. Hearing. Demand of jury. any of my creditors, with a view fraudulently to obtain the prayer of my petition."28 $8. The officer receiving such petition, schedule and affidavit, shall make an order, requiring all the creditors of such insolvent to show cause, if any they have, at a certain time and place to be specified by him, why an assignment of the insolvent's estate should not be made, and he be discharged from his debts.29 $9. If the officer making such order be a judge of a county court, and not of the degree of counsellor at law, the order shall require such cause to be shewn at the term of such court, to be held next after the expiration of the time of publication of the notice thereof, as herein after directed; and the order shall specify the time and place at which such term will be held. In every other case, the order shall require such cause to be shewn before the officer to whom the petition shall be presented.29 $10. The officer granting such order, shall direct notice of its contents to be published in the state paper, and in a newspaper printed in the county in which such application is made, if there be one, and if there be none, in a newspaper printed nearest to such county; and if one-fourth part in amount of the debts owing by such insolvent, shall have accrued in the city of New-York, or be due to creditors residing there, such officer shall also designate a newspaper in that city, in which such notice shall be published.29 $ 11. If all the creditors of such insolvent reside at a less distance than one hundred miles from the place at which they are required by such order to show cause, the said officer shall direct such notice to be published once in each week for six weeks successively; and if any of such creditors reside more than one hundred miles from such place, the notice shall be directed to be published once in each week for ten weeks successively.29 $12. On the day or at the term appointed in such order, or on any subsequent day or term that the officer or court before whom cause is required to be shown, may appoint, the said officer or court, as the case may be, shall proceed to hear the proofs and allegations of the parties; and before any other proceeding be had, shall require proof of the publication of the notice as herein directed. $ 13. Every creditor opposing the discharge of an insolvent under this Article, may, at the time appointed for the first hearing, demand of the officer or court before whom such hearing shall be had, that the case of such insolvent be heard and determined by a jury; and shall be entitled to an order to that effect, upon filing with such officer or (28) 1 R. L. 462, § 5; Laws of 1819, p. 116, § 2. (29) 1. R. L. 462, § 5 & 6 ; Laws of 1815, p. 279, § 6. |