Proceedings in cases of appeal; Court to hear appeil. 211; Dudley, 368; 2 46; 10 titled to be discharged from confinement, on his giving bond and sufficient sureties to the plaintiff, to be forthcoming, and to abide Supreme by the decision of the Supreme Court; and if the said appeal shall.. 41, be determined against the prisoner, and he be not surrendered, 432: 2 Hill, 501: (which the surety is hereby authorized to do,) before the first day Spears, 65, 94; 1 of the Circuit Court next succeeding the determination of such ap- Rich, peal, then the Clerk of the Court shall, on the application of the Rich., 9. 87; 11 plaintiff or his agent, forthwith issue an order on the said bond ler's against the prisoner and his sureties, as in cases of estreated recognizances; but in case the said prisoner should appear, or be surrendered, as aforesaid, then the said Clerk or Trial Justice shall forthwith proceed to empannel a jury and try the case, as provided for in the preceding Sections, with the same liabilities, rights and privileges as aforesaid. Rich., 351; M Co npilation, p. 173. Creditors allowed to examine applicant for discharge; pen to answer. 1 Rich., 62. SEC. 29. It shall and may be lawful for the creditor or creditors of any person applying for the prison bounds, or for any of the provisions of this Chapter for the relief of insolvent debtors or im- alty for refusal prisoned debtors, either in person or by attorney, to examine and cross-examine such applicant, on oath, in the presence of the Judge, § 1; 2 M-M., 52, Clerk of Court or Trial Justice, before whom he shall move for his discharge from imprisonment, touching the truth of his schedule, and touching the nature and extent of his property, rights and credits, liable to be assigned for the benefit of his creditors. And the refusal of any such applicant to answer, fully and directly, all or any proper questions put to him in the course of such examination, shall prevent his discharge, if otherwise entitled thereto, until he shall have fully answered the same. Debtor to pro Ib., 2. SEC. 30. If, on such examination, it should appear that he has kept books, in relation to his trade, profession or occupation, he duce books, &c. shall be required to produce the same, if in his possession or power, and, on failure to do so, he shall be deprived of his discharge until he shall produce the same. Submission of issues to jury, &c SEC. 31. Nothing contained in Sections 23, 24 and 25 of this Chapter, shall be construed to deprive a Judge, sitting in open 1833, V1,495, 5 Court, of the power to submit to the jury already impanneled, ail issues arising under the twenty-first Section of this Chapter, in the same manner as is now practiced; but in all cases where the plaintiff shall appeal from the verdict of the jury, the defendant shall be entitled to his enlargement, pending the appeal, on the terms prescribed in the twenty-eighth Section of this Chapter. No discharge to be granted SEC. 32. In all cases where a prisoner applies for the benefit of the prison bounds, or for his discharge as a poor prisoner, the Judge until delivery of or Clerk of the Court, before whom the application shall be made, shall not discharge him from his confinement until the property property, &c. Ib., 6. Clothing for poor prisoners. contained in his schedule is produced and delivered to the assignee of such prisoner, if it be, or has been, within the power of the prisoner to deliver the same since the time of his arrest. SEC. 33. Poor prisoners shall be furnished by the County Com1842. XI, 226; missioners, in their respective Counties, with necessary clothing, the cost thereof to be defrayed out of the fines and forfeitures collected in their Counties. 1869, XIV, 274, 22. Creditor authorized to dis &c. SEC. 34. Every creditor in this State who may have taken, or charge debtor, shall take, in execution, the body of any debtor, by order of a com1815, VI.1. 1. petent Court, shall be, and he is hereby, authorized, with the consent Miller's Compi of such debtor, to discharge him from his arrest, and suffer him to lation, p. 216. go at large, without disparaging or weakening the force of his judg ment: Provided, nevertheless, That the granting the said indulgence shall in no wise incapacitate or prevent the plaintiff from afterwards issuing executions against his property, on the said judgments. What property passes by assign vent debtor. 1759. IV,88,2 1; Rich., 395; 3 SECTION 1. By virtue of the assignment of a petitioner for relief m-nt of insol- as an insolvent debtor, as provided in Chapter CXXIII of this Act, all property, real or personal, in possession or in action, then be1 MeM.. 373; 1 longing to the petitioner, whether included in his schedule or not, MC, 52. 247; 4 shall pass to his assignee, and may be taken possession of or sued for by him, naming himself as assignee. And, to such action, no release of the insolvent, or of any one claiming under him, shall be or constitute any bar. McC., 509. Assignees to for be trustees creditors, &c. Ib, 89, § 3. SEC. 2. The person to whom the said assignment is made, shall be trustee for all and singular the creditors of the said petitioner, who are willing to come and receive their dividends, and who shall, within twelve months after his discharge, deliver unto the said trustee, an exact account, upon oath, of the several debts and demands to them owing. tees. Ib. SEC. 3. The said trustee, after having sold the said petitioner's Duties of truslands and effects and collected the several debts due to him, (which they are hereby required to do with the utmost expedition,) shall thereout first satisfy and discharge the costs of suit and other costs and fees provided for by Section 12 of Chapter CXXIII of this Act, and shall next deduct and retain, in his own hands, a reasonable recompense for his trouble in executing the said trust, to be fixed and allowed by the Court by whom such person was appointed trustee. And such trustee shall, within one month thereafter, divide the remaining balance of the said estate among such of the creditors who deliver in the amount of their demands within the time aforesaid, according and in proportion to their several and respective debts, first giving three months' public notice of the time. and place when and where such division is to be made. Division of debtor's estate. made every six months, &c Ib. SEC. 4. In case it shall happen that the whole of the petitioner's Dividend to he estate shall not have come to the hands of the said trustee by the time prescribed for making such division, then such trustee shall, at the end of every six months thereafter, make a dividend of so much of the same as shall come to his hands, among such creditors as aforesaid, until the whole shall be received. Order in which Ib., 24. SEC. 5. Judgments and executions shall be paid in their order, dots are to be out of the proceeds of the property on which they constitute a lien; paid. and mortgages, out of the proceeds of the mortgaged property; and such and so much of the judgments, executions and mortgages as remain unpaid, and all other debts, out of the property free from liens, rateably and in proportion. mortgage debt, SEC. 6. No payment shall be made to any judgment or mortgage Judgment and creditors without an affidavit of the sum really and bona fide due, made and rendered to the assignee. Act, shall State, in &c. Ib., 22 4. 5. 1 McC., 375. Insolvent debtors not to plead statute of limi tations. by Bay, 429; 1 N. 1b., 91.10; 1 & McC., 109: Spears. 244; 7 SEC. 7. No person who has taken the benefit of the provisions of Sections 9 to 16, inclusive, of Chapter CXXIII of this ever afterwards pleal the Statute of Limitations of this bar to any action that may afterwards be brought against him any person or persons that were his creditors, for any demand or Dudley, 244; i cause of action that existed at the time of exhibiting the petition Rich., 43. for the discharge of the said person when in custody. And in case the Statute of Limitations shall be pleaded by any such person or persons, the said plea shall be set aside by the Court where such action shall be brought, upon motion made by the plaintiff or his attorney in such action, upon producing the record of his discharge as an insolvent. Proceedings to be taken by creditors not willing to accept dividend, &c. Ib., 92, 11. If debtors con ceal debts due owing the same to pay to the as signees. Ib., 93, 17. SEC. 8. Whenever any person in custody shall once petition for his discharge, the creditor or creditors of such persons, by note, book account or contract, not willing to accept a dividend of such petitioner's estate, in order to perpetute the testimony of his, her or their demand, may be at liberty to prove the quantum of the said demand or balance due from, or against, such petitioner at the Court when such petitioner shall apply for his discharge; and a minute or certificate thereof shall be entered with the Clerk of the said Court of the sum or balance due to such creditor or creditors; which minute or certificate shall thenceforth be good evidence of the sum so certified to be due from the said petitioner, and shall thenceforth be deemed as an account liquidated and stated, and recoverable as such against the said petitioner, his executors or administrators, without further evidence than the said certificate of the said Clerk of the Court; and against which debt or demand, or any action for the same, the Statute of Limitations shall not be a bar, nor pleadable. SEC. 9. In case any insolvent debtor, at the time when he shall to them, persons render an account of his, her or their estate, shall conceal any debts that may be owing to him, it shall not be lawful for the person or persons owing such debts to pay the same, or any part thereof, to or for the use of such insolvent debtor; but such person or persons shall be, and are hereby, made liable to pay such debts, and every part thereof, to the assignee of such debtor, for the use of his creditors. And such assignee may sue for the same in his own name; in which suit, no release of such insolvent debtor, his executors or administrators, or any trustee for him subsequent to the rendering such account, shall be any bar. Debtor obliged to assist trust e, &c. Ib., 94, § 19. In what cases plaint ff shall be SEC. 10. Every insolvent debtor, who shall make an assignment of his estate, in trust for the use of his creditors, shall be obliged to assist thetrustee at all times when thereunto required, in the recovery of the debts assigned, and in every other matter which shall be thought necessary for the benefit and advantage of the creditors; and, in consideration thereof, such trustee shall have power, and he is authorized, in all cases where he shall be of opinion such insolvent debtor has acted justly and honestly, to make him such allowance for the subsistence of such insolvent debtor and his family, (if any he has,) as the said trustee shall think meet: Provided, That such allowance do not exceed five per cent. of all the money received upon such insolvent debtor's account. SEC. 11. Where any person shall be taken on mesne or final proliable for mai cess in any civil suit, and, from inability to pay the demand, debt or damages, or find bail, if committed to the jail, and such person has no lands, tenements, goods, chattels, or choses in action, whereby tenance of debtor, &c Proviso. Ib., § 20; 1817, VI, 66: 1839, XI, 46. § 30. 2 N. & McC.. 377; 4 Mec., 508; 3. Bil, 422; 2 Spears, 400; Brev., 291, 391; his maintenance in jail can be defrayed, the plaintiff, or person at whose instance such party shall be imprisoned, shall pay and satisfy the same; and if such person, or his attorney, shall refuse or neglect, after ten days' previous notice, to pay, or give security to pay the same, when demanded, the Sheriff, or Jailer, in whose custody such MM., prisoner is, may discharge him from such confinement: Provided, Rich., 33: 4 323; 6 however, That such prisoner shall, before he is discharged, render, Rich., 228. on oath, a schedule of all his estate, and assign the same. Dudley, 71; 2 340 3 Strob., 161; 3 Fifty per cent. allowed to per sons discovering concealed es SEC. 12. Any person who shall, within twelve months after the discharge of any such prisoner, voluntarily come in and make a discovery of any part of such debtor's real or personal estate, sub- tat sisting at the time of his swearing off, as shall not be comprised in 1759, V, 93, 18. his schedule, shall be allowed after the rate of fifty per cent. out of the net produce of such estate so discovered, and which shall be recovered on such discovery, to be paid by the trustee or assignee of such debtor's estate and effects. TITLE VII. OF LEGAL NOTICES AND FEES. CHAPTER CXXV. Of the Publication of Legal Notices. SECTION 1. It shall be the duty of the Attorney General, the Comptroller General and the Secretary of State, conjointly, to designate, by public notice in one or more newspapers in this State, in which all legal notices, advertisements, or publications for the State, of any and every character required by law to be made. public, shall be published; and further to designate a proper number of newspapers for the several Counties of this State, in which The Attorney General, Comp troller General State to desiga'e papers. and Secretary of 1870, XIV,351,81. |