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Effect of discharge. Contracts
12, 1813, &c.
I Future cthtracts.
TITLE 1. $ 30. This Article being a revisal and continuation of the act, en
titled "An act for giving relief in cases of insolvency,” passed the
twelfth day of April, one thousand eight hundred and thirteen, a dissince April charge granted pursuant to the provisions hereof, shall discharge and
exonerate such insolvent from all debts due at the time of the assignment, or contracted before that time though payable afterwards, founded upon contracts made since the said twelfth day of April, one thousand eight hundred and thirteen, within this state, or to be executed within this state; and from all debts owing to persons resident within this state, at the time of the first publication of the notice of the application for such discharge, or owing to persons not residing within this state, who united in the petition for his discharge, or who shall accept a dividend from his estate. 34
$ 31. With respect to all contracts which shall be made after this Article shall commence and take effect as a law, every such discharge shall also exonerate such insolvent from all liabilities incurred by him by making or endorsing any promissory note or bill of exchange, previous to the execution of his assignment; 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 the assignment by such insolvent. 35
S 32. In any action which shall be brought against such insolvent or his personal representatives, a discharge granted pursuant to the provisions of this Article, may be pleaded, or given in evidence, under the general issue and notice thereof, in bar of any action upon any contract, made by such insolvent since the said twelfth day of April, one thousand eight hundred and thirteen, within this state, or to be executed within this state; or made with persons resident within this state, at the time of the first publication of the notice of the application for such discharge; or made with persons not residing within this state, who shall have united in the petition for such discharge, or who shall accept a dividend from the estate of such insolvent; and in bar of any action upon any liability of such insolvent, incurred by making or endorsing any promissory note or bill of exchange, previous to the execution of his assignment; 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 the assignment by such
insolvent. Ib. To exo- S 33. Every such discharge shall also exonerate the insolvent to arrest or im- whom it shall be granted, from any arrest or imprisonment thereafter, prisonment.
in any suit, or upon any proceeding, founded upon any debt whatev
Ib. Bar in certain actions upon contract.
(34) 1 R. L. 463, 88. (35) Laws of 1819, p. 118, § 11.
er, contracted by him previous to the execution of the assignment of ART. 3. his estate as herein directed; or in any suit, or upon any proceeding, founded upon any liabilities incurred by him by making or endorsing any promissory note or bill of exchange, previous to the execution of his assignment; 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 mobey secured thereby, whether such payment be made prior or subsequent to the execution of his assignment. 36
S 34. If such insolvent be in prison in any suit or proceeding, ib. founded upon any contract or liability, in which he is exempted from imprisonment according to the last section, he shall be discharged therefrom, upon producing the discharge granted pursuant to the provisions of this Article, and upon endorsing his appearance on any mesne process upon which he may be so imprisoned. 36
$ 35. Every discharge granted to an insolvent under this Article, Discharge shall be void in each of the following cases :
1. If such insolvent shall have wilfully sworn false, in his affidavit annexed to his petition, or upon his examination, in relation to any material fact concerning his estate or his debts, or to any other material fact:
2. If, after the presentation of his petition, he shall sell, or in any way transfer or assign, any of his property, or collect any debts due him, and shall not give a just and true account thereof on the hearing of his application ; and shall not also pay, or secure the payment, of the money so collected, or the value of the property so assigned, as herein before directed :
3. If he shall secrete any part of his estate, or any books or writings relative thereto, with intent to defraud his creditors :
4. If he shall fraudulently conceal the names of any of his creditors, or the amount of any sum due to any of them :
5. If, in order to obtain his discharge, he shall procure any person to become a petitioning creditor, for any sum not due from himn to such person in good faith :
6. If he shall pay, or consent to the payment of, any portion of the debt or demand of any of his creditors, or shall grant, or consent to the granting of, any gift or reward to any such creditor, upon an express or implied contract or trust, that the creditor so paid or rewarded should become a petitioner in behalf of such insolvent, or that he should abstain or desist from opposing the discharge of such insolvent:
7. If he shall be guilty of any fraud whatever, contrary to the true intent of this Article.37
Whon creditor may petition.
ARTICLE FOURTH. .
imprisoned on Execution in Civil Causes.
2. Petition what to state ; to be accompanied by affidavit ; contents of affidavit. 3. Officer to make order requiring other creditors to appear, &c. 4. Notice of such order, how to be published. 5. Copy of order to be served on debtor or on jailer. 6. On the day appointed, officer to hear proofs and allegations of parties, &c. 7. When officer to order debtor to be brought before him for examination, 8. Debtor when brought up, to be examined on oath. 9. If debtor refuse to be examined, officer may commit him to close confinement. 10. Officer then to take other proof of the debts, &c. 11. When order to be made requiring debtor to deliver account of his creditors, &c. 12. If two-thirds of creditors have not united in petition, proceeding to be dismissed. 13. Duty of debtor, after service of order; effect of compliance therewith. 14. When creditor may demand that debtor's case be submitted to a jury; proceedings 15. Certain provisions of Article Third, extended to proceedings under this Article. 16. When officer is to grant debtor a discharge. 17. Effect of such discharge ; how impeached, and when void. 18. If debtor do not comply with the order, &c. officer to execute assignment. 19. Effect of such assignment. 20. Such debtor not to be discharged, unless he and his creditors petition, &c. 21. Proceedings upon such petition ; assignment to whom to be executed. 22. Certain property to vest in the persons to whom officer shall assign.
S 1. When any person shall have been actually imprisoned for more than sixty days upon execution in any civil action, any creditor having a demand against such person to the amount of twenty-five dollars, for which a suit might then be brought, may apply by petition to any of the officers enumerated in the first section of the seventh Article of this Title, to compel an assignment of the estate of such debtor.38
S 2. The petition shall state the nature and object of the application; and shall be accompanied by an affidavit of the creditor, stating, that such imprisoned debtor is justly indebted to him in a certain sum, therein to be specified, then due ; that such debtor is imprisoned in a certain county therein to be named, under an execution against him in some civil action ; that he has been so imprisoned for more than sixty days, and that such creditor is apprehensive, that the estate of such debtor will be wasted or embezzled. 38
$ 3. Upon such application being made to such officer, he shall make an order requiring the creditors of such imprisoned debtor, to appear before him at a certain time and place to be specified in the order, and determine whether they will unite in a petition for an assignment of such debtor's estate. 38
S 4. The creditor making such application, shall cause notice of such order to be published once in each week, for eight weeks successively, in the state paper, and in a newspaper printed in the county where such debtor is imprisoned, if there be any, and if there be
(38) Laws of 1817, p. 41, § 1.
none, then in a newspaper printed nearest to the place of such impri- ART. 4.
ordered to be
S 5. Such creditor shall also, within ten days after the granting of Copy to be such order, serve a copy thereof on the debtor, or on the keeper of debtor." the jail where such debtor is imprisoned, who shall deliver the same to such debtor. 59
36. On the day appointed for showing cause, or on such subse- Hearing of quent days and times as the officer making the order shall direct, up-pa on proof being made to him of the due publication of such notice and of the service of such order, such officer shall proceed to hear the proofs and allegations of the parties. 89
3 7. If at the time of such hearing, any of the creditors of such im- When debso, prisoned debtor shall unite in a petition for the assignment of such examined. debtor's estate, and shall accompany such petition with the same affidavit of each creditor, as is required in the fourth section of Article third of this Title, (except that such affidavits respectively shall state, that the sums therein specified, were due from such debtor, at the time of granting the order for publication of notice to creditors, as herein before required,) the officer to whom the same may be presented, may order such imprisoned debtor to be brought before him, to be examined touching his debts.
$ 8. Upon such debtor being brought before the said officer, he How to be shall be examined on oath, concerning his creditors, the sums of money due to them respectively, and the places of their residence,
$ 9. If the debtor refuse to be so examined, or shall not give full Debtor reinformation concerning the matters so inquired of him, the officer examined, shall, by order in writing, commit him to close confinement in the ted. jail of the county in which he shall be imprisoned, in which order the cause of such commitment shall be particularly specified ; and such debtor shall thereupon be closely confined without being entitled to the liberties of the jail, until he shall consent to such examination, and give such information.
$ 10. Upon any debtor being so committed, the said officer shall Other proor proceed to take other proof, of the debts owing by such debtor, and the names and residence of his creditors, and of the sums due to them respectively.
$ 11. If it shall appear by the examination of the debtor or by oth- Wher er proof, satisfactorily to the said officer, that creditors residing with others in the United States, having debts due to them, amounting to two. count thirds of all the debts owing by such imprisoned debtor to creditors within the United States, have petitioned in the manner herein before
(39) Laws of 1817, p. 41, $1. VOL. II.
to be commit
When debtor required to deliver ac
Petition when to be disinissed.
or on service
Proceedings if debtor comply.
demand a jury.
TITLE 1. directed, for an assignment of such debtor's estate, and no good cause
to the contrary appear, the officer shall make an order, requiring such debtor, by a certain day to be therein specified, to deliver an account of his creditors and an inventory of his estate to such officer, upon oath, and to execute an assignment of his estate ; or that he shew cause why such an assignment should not be made by such officer. 40
S 12. If it shall not appear that two-thirds of the creditors of such disinigsed. imprisoned debtor, as aforesaid, 'have united in the said petition, all
further proceedings thereon shall cease, and such petition shall be
dismissed. 40 Duty of debt- S 13. Within ten days after service of the order requiring the asof order signment, such imprisoned debtor shall deliver to the officer making
such order, an account of all his creditors, and an inventory of his estate, with the books, vouchers and securities relating to the same, in all respects conformable to the account and inventory required of an insolvent debtor, in the preceding third Article of this Title ; and shall take and subscribe the oath in that Article required of a debtor petitioning for his discharge, and shall execute an assignment of his estate, and produce the evidence thereof, in the same manner, and
with the like effect, as prescribed in that Article.40 Creditor may S 14. Any creditor of such imprisoned debtor, may, at the time of
such debtor's rendering his account and inventory, demand that the case of such debtor be submitted to a jury; and shall be entitled thereto, on filing with the officer before whom the proceedings shall be had, a specification of the grounds of his objections to such debtor's discharge ; and the same proceedings shall be had in all respects, for the summoning of such jury, and for their determination of the matter, and with the like effect, as prescribed in the said third Article.
S 15. Such debtor may be examined in the same manner, and with the like effect, as is prescribed in the said third Article ; and may in like manner be required to pay, or secure the payment of, any debts collected by him, or the value of any property assigned by him, after the first publication of the notice to his creditors to appear, with the same exceptions as in that Article are specified; and if it shall appear that he has preferred any creditor as in the said Article specified, he shall in like manner be precluded from obtaining a discharge un
der this Article. Debtor when S 16. If such imprisoned debtor shall in all respects comply with
the order of the said officer, and with the provisions of the preceding sections of this Article, and if the jury shall determine in favor of such debtor ; or in case no jury shall be demanded, or they disagree, if the
Debtor may be examined,
to be discbarged.