« PreviousContinue »
a jointure, and not a mere power to revoke one previously made, and the question was whether that jointure might be settled subject to a future revocation, and it was held that it might, and that after such revocation a new jointure might well be made under the original power. Mr. Sugden suggests in a note, p. 319, that in the report of the same case in 1 Vent. 197, the reporter mistook the argument of counsel for the opinion of the court. But the resolution in Ventris is perfectly reconcilable with that which is stated in Keble. Ventris states that the court resolved that on a feoffment to uses, with power of revocation, when he bath executed that power, the party cannot limit new uses; but if it had been with a power to revoke and limit new uses, then he might revoke and limit new uses, with a power of revocation annexed to those uses, which if he did afterwards revoke, he may again limit new uses according to the new power, and so on in infinitum. But always the new uses must correspond to the circumstances, &c. which the first power appoints, for that is the foundation. To be sure this was not the case before the court, but this is not necessarily inconsistent with the decision. It does not deny that if the party had a power originally to limit those uses,
may be well executed with a power of revocation annexed to the execution quoties toties, which was the point stated in Keble.
The cases cited by Mr. Sugden, 1 Ch. Ca. 241, and 2 Ch. Ca. 46, I admit support the position stated by him. They were cases of voluntary settlements where the use resulted to the donee of the power in the case of a revocation of the prior
The cases however are not fully reported. But I cannot successfully distinguish them from the cases in 1 Str. 584, and notwithstanding Mr. Sugden's ingenious explanation I think that case overrules those in the Chancery Cases. It is evident on reading the report that the court held that the power to revoke did not include a power to limit new
On the whole I am satisfied that the authorities warrant the following positions :
1. That a power to limit uses may be well executed by a limitation subject to a revocation and after such revocation the power may be again exercised by limitation in the same manner toties quoties: And in every new limitation the uses will take effect out of the original seizin by way of substitution of the intermediate revoked limitations. Digges's case, 1 Rep. 173, b; Adams v. Adams, Comp. 651.
2. That where a power is given to limit and revoke uses and a limitation is made without reserving a power to revoke them in the deed creating the limitation, no revocation can afterwards be made, but the limitation is absolute. Hele v. Bond, Pr. Chan. 474 ; 1 Eq. Cases Abridg. 342. [Sugden on Powers, 3d edit. appendix 654.]
3. But that there is no sufficient authority that a mere power of revocation of uses already declared reserved to a party, will entitle him to limit new uses upon the revocation of the old. On the contrary, that the weight of authority is that a power to limit new uses must be expressly or impliedly given, or it cannot be exercised although the donee of a power be clothed with an interest. Semble, Ward v. Lenthal, 1 Sid. 343; Semble, 3 Keble 7; R. 1 Vent 197; S. C. R. 1 Str. 584. Contra. Dictum per Chancellor, Anon. 1 Ch. Cas. 241; Colston v. Gardner, 2 Ch. Cas. 46; and per Twisden, in Smith w. Wheeler, 1 Modern, 41.
RT. VI.-BANKRUPT AND INSOLVENT LAWS.
In our last number we promised to give some account of the insolvent laws of New York. An insolvent system has been in force in that state for
many years, and has at various times been modified and amended. The present laws on this subject are divided into several branches, 1. Attachments against absconding, concealed, and non-resident debtors: 2. Attachments against debtors confined for crimes : 3. Voluntary assignments made pursuant to the application of an insolvent and his creditors : 4. Proceedings by creditors, to compel assignments by debtors imprisoned on execution in civil cases : 5. Voluntary assignments by an insolvent, for the purpose of exonerating bis person from imprisonment: 7. Voluntary assignments by a debtor imprisoned in execution in civil causes.
I. In the case of non-resident and concealed or absconding debtors, any creditor having a demand to the amount of $100, or any two having demands to the amount of $150, or any three to the amount of $200, can, on application to the proper
Bankrupt and Insolvent Laws.
magistrate, and the facts being duly verified, obtain one or inore warrants to the sheriff of every county in which the debtor may have property, commanding him to attach and safely keep all the estate, real and personal, of the debtor in his county, with all books of accounts, vouchers, and papers relating thereto. After the property is taken into the custody of the sheriff an inventory of it is made, and the perishable goods sold without delay. Provisions are also introduced for settling the questions which may arise where the property seized is claimed by other persons.
Whenever a warrant of attachment issues, the officer issuing the same is required to publish in certain newspapers a notice of the attachment, and that the estate attached will be sold for the payment of the debts due from the debtor, unless he appears and discharges the attachment, within three months from the first publication of the notice, in the case of an absconding or concealed debtor, and within nine months in the case of a non-resident debtor. The notice also states that the payment of any debts, and the delivery of any property belonging to the debtor, to him or for his use, and the transfer of any property by him, are forbidden by law. This prohibition in the case of nonresident debtors only extends to residents and property in the state. All sales and transfers of property by the debtor made after the publication of the notice are rendered void ; but this provision in the case of a non-resident debtor only applies to property in the state. And the persons indebted to the debtor or having possession of his property, are required, after the publication of the notice, to pay the debts and account for the property to the trustees of the debtor. This is confined to residents in the case of a non-resident debtor. And a payment or delivery of property to the debtor after the publication of the notice, is declared to be fraudulent. Any other creditors besides the original attaching creditors, are allowed
their claims before the officer who issued the warrant, and thus become attaching creditors. The statute contains suitable provisions by which any debtor proceeded agaiost.under the statute, may, by proving that he is not an absconding, concealed, or non-resident debtor, or by giving sufficient bonds to pay the debts of the attaching premijos, have the warrant for the attachment discharged, and his property released. If the warrant is not discharged within the time lim ited in the notice, the officer who issued to thin three cht
after the expiration of that time, is required to appoint three or more trustees for all the creditors of the debtor, who thereby become vested with all his property from the time of the first publication of the notice; and they are to receive the property from the sheriffs, and convert it into money, and collect the debts, and are to divide the moneys that come into their hands, after paying debts to the United States, ratably among the creditors.
II. On the application by any creditor of a person confined for a criminal offence, or by any of the relations of himself or his wife, trustees of his estate may be appointed, who have similar powers to the trustees of absconding debtors, and are to make a ratable distribution of the proceeds of his property among his creditors.
III. The next division of voluntary assignments, made pursuant to the application of an insolvent and his creditors, being more important, we give more at large, generally following the order of the new revised statutes. The numbers are the sections of the revised statutes, part 2, c. v. tit. 1, art. 3, in which the provisions are contained.
1. Every insolvent debtor may be discharged from his debts, upon executing an assignment of all his estate for the benefit of his creditors, and complying with the provisions of the law in relation thereto.
2. The petition for that purpose must be signed by him and by two thirds in amount of all his creditors residing in the United States.
3. Executors and administrators may become petitioning creditors, under the order of the surrogate or chancellor or equity judge.
4. The petition must be supported by the affidavit of each petitioning creditor, stating the nature and amount of his claim.
5. A schedule of the insolvent must be annexed to the petition containing, 1. A true account of all his creditors : 2. Their places of residence: 3. The nature and amount of the debt due to each of them : 4. The cause and consideration of the indebtedness, and the place where it accrued : 5. A statement of all sécurity held by creditors : and 6. A full inventory of all the real and personal estate of the insolvent, and of the books, vouchers, and securities relating thereto.
6. The petition may be presented to either of the following officers, circuit judges, supreme court commissioners, judges of county courts, and recorders of cities, but the officer must reside in the county in which the insolvent resides.. [See also Rev. Stat. Part II. ch. v. tit 1, art. 7.]
7. The petition must be accompanied by an affidavit of the insolvent, of which the form is given, stating the correctness of the account and inventory, and that he has made no transfer of any of his property in order to defraud his creditors, and that he has committed no fraudulent act in order to obtain the prayer of the petition.
8. The officer receiving the petition, is to make an order requiring all the insolvent's creditors 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.
10. The officer granting the order shall direct notice of its contents to be published in certain newspapers.
11. If all the creditors reside within one hundred miles from the place where they are required to show cause, the notice must be published once a week for six successive weeks; if any of them reside at a greater distance, the notice must be published once a week for ten successive weeks.
12. At the day appointed for the hearing or any subsequent day appointed, the proofs and allegations of the parties shall be heard.
13. Any creditor opposing the discharge can have the case tried before a jury.
17. The verdict of the jury is to be conclusive. 19. If the jury do not agree, the judge or court shall decide on the application, in the same manner as if no jury had been called.
20. If any creditor request it, the insolvent is required to produce his wife as a witness, if she does not reside in the state.
21. If she does not attend in such case, the insolvent cannot be discharged, unless he proves that he was unable to procure her attendance.
22. The insolvent may be examined on oath at the hearing; and any other evidence may be produced.
23. If it appear at the hearing that the insolvent, since making his schedule, has collected any debts or demands, or made any transfer of his property, he is required immediately to pay
VOL. IV.NO. VII.