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Court how to proceed.
TITLE 1. S 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
adjourn the hearing of such petition to the next term thereof; but no
adjournment shall be made, extending beyond the next term. 52 Proceedings $8. At such adjourned hearing, no objections to matters of form
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 $ 9. The court shall appoint one or more assignees, and the assign
ment 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
S 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
S 11. Upon such assignment being made, and such evidence or security being furnished, the court sball 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.
at adjourned day.
Discharge when order
have been specified in his petition ; and the sheriff shall discharge ART. 6. him accordingly, on being served with such order, without any dem tention on account of any fees. 54
$ 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
$ 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, &c.
i of assignees. 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
$ 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 disa cation for his discharge according to the provisions of this Article, Ch 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) I R. L. 351, 57. (56) 1 R. L. 353, § 13. VOL. II.
be notified to
omission or neglect.
TITLE 1. $ 17. If within thirty days after personal service of such notice,
m such prisoner shall not present a petition to a proper officer, either unees of his der 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
General Provisions applicable to proceedings under the several
preceding Articles, or some of there
2. When to be made to officer in the county where insolvent resides, &c.
30. Debts due to this state, except taxes, embraced in this Title, &c. Officers to S 1. Applications for attachments, under the first Article of this whom applications are to Title ; for the appointment of trustees under the second Article ; for be made.
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
cases of im
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. 58
$ 2. 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 officer. 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.co
S 3. 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.
S 4. 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
S 5. In case of the death, sickness, resignation, removal from of- Proceedings fice, absence from the county of his residence, or other disability, of unuod 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
56. If there be no officer in the same county, competent under the 1b. Proceodlast section to continue such proceedings, then any judge of the county bo not 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) IR. L. 157, 91; 349, § 4; 460. § 1; Laws of 1817, p. 41, $1; 1819, p. 115, $ 1. (58) Laws of 1918, p. 277, § 1. (60) 1 R. L. 471, § 26 ; Laws of 1817, p. 45, 58; 1823, p. 35.
der this Title &c.
Creditors in other states
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 $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 seal; and any affidavit required of creditors by the preceding Articles, may be made
and signed, by such director or officer. 62 Partners and S 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
S 9. Creditors residing out of this state and within the United muy petition; States, may petition and unite in any petition, in the same manner as counts and 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- $ 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
S 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 per in trust for him, any mortgage, judgment, or other security, or as
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
Creditor having socurity not per
he relinquish his security.