TITLE 1. Consequences of his omission or neglect. Officers to whom appli be made. $ 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 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 subpœna, 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. S1. 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. 353, § 13. judges, supreme court commissioners, first judges of county courts, ART. 7. and any other judge of such courts, of the degree of counsellor at law in the supreme court, recorders of cities; and if made in the city of Schenectady, the mayor thereof; and applications under the third and fifth Articles, to any county judge, as in the said Articles specified; but no application under any Article of this Title shall be made to any alderman of the city of New-York. 5 58 58 officer. 32. Applications under the third, fourth and fifth Articles of this Residence of Title, shall be made to an officer residing in the county in which the insolvent, or imprisoned debtor, resides, or is imprisoned; and proof of such residence or imprisonment, shall be made at the time of presenting the petition, and before any order shall be granted thereon. 33. Where the insolvent shall, by collusion with any prosecuting Discharge in creditor, procure himself to be imprisoned in a county different from prisonment that of his residence, for the purpose of obtaining a discharge in such void. County, under the third or fifth Articles of this Title, a discharge granted in such county, where the insolvent is so imprisoned by collusion, shall be void; and if such collusion shall be proved on the hearing, it shall defeat the application. cases of im by collusion, when made another 34. If there be no circuit judge, supreme court commissioner, re- Application corder, first judge of a county court, or any judge of such court of the to officer in degree of counsellor at law, residing within any county, and disin- county. terested as creditor or otherwise, to whom application can be made under the third, fourth and fifth Articles of this Title, then application under the said Articles may be made to any such officer residing in any other county; but no place shall be appointed for the hearing on any application, out of the county in which the insolvent resides, or is imprisoned. 59 how con of officers's 35. In case of the death, sickness, resignation, removal from of Proceedings fice, absence from the county of his residence, or other disability, of tinued in case any officer, before whom any proceedings may have been commenced death, &c. under the first, second, third, fourth or fifth Articles of this Title, the said proceedings may be continued by his successor in office, or by any other officer residing in the same county, who might have originally instituted such proceedings, in the same manner and with the like effect, as if originally commenced before him." 60 ings if there competent to 36. If there be no officer in the same county, competent under the Ib. Proceedlast section to continue such proceedings, then any judge of the county be no officer courts may attend at the time and place appointed for the hearing of any continue. matter, and may adjourn the same to the next court of common pleas to be held in and for the county in which such hearing was appointed; (58) 1 R. L. 157, § 1; 349, § 4; 460. § 1; Laws of 1817, p. 41, § 1; 1819, p. 115, § 1. (59) Laws of 1818, p. 277, § 1. (60) 1 R. L. 471, § 26 ; Laws of 1817, p. 45, § 8 ; 1823, p. 35. 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.61 Corporations deemed der this Title, &c. $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 seai; and any affidavit required of creditors by the preceding Articles, may be made and signed, by such director or officer. 62 Partners and joint compa nies. Creditors in other states their ac counts and affidavits. $8. 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 $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 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 proper officer in this state.63 Debts pur chased for nominal amount. $10. Whenever a petitioning creditor, under either of the foregoless than their ing Articles, shall have purchased or procured to be assigned to him, 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 security not per tition, unless he relinquish $11. Whenever a petitioning creditor, under the first, second, third, or fourth Articles of this Title, shall have in his own name, or mitted to pe in trust for him, any mortgage, judgment, or other security, or ashis 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) LR. L. 157, § 1; 162, § 20; 461, § 4. (64) 1 R. L. 460, § 1; 1817, p. 45, §6. ป 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 swearing 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 subpoena, 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 ing pœnaed re pear. $14. The appearance of every person duly subpoenaed and neglect- Persons subrefusing to appear, may be enforced by attachments to be is- fusing to ap sued 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 disobethe 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 attend to for $ 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. $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 jurors fees, (65) 1R. L. 461, § 2; Laws of 1817, p. 44, § 5. (66) 1 R. L. 467, § 15. (67) 1 R. L. 467, § 16; Laws of 1819, p. 117, § 4. (68) 1 R. L. 463, §7; Laws of 1819, p. 117, § 4. moning jury; &c. 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 Discharges to be recorded. $ 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. Assignments to be record evidence. $ 20. 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 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 discharge, how to pro ceed. Cause which may be shown by plaintiff. Proceedings where assignee refuses tificate of as signment. $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. S22. 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.71 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, 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. When insol vent may be discharged, notwith standing such refusal. S 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 B. L. 464, § 8; Laws of 1819, p. 116, § 3. (71) Laws of 1819, p. 116, § 3. |