CHAPTER XXIV.

INTEREST AND USURY.

Eight per cent. per annum is the legal rate of interest; but on contracts, interest at the rate of ten per cent. per annum may be charged by express agreement of the parties.

Usury entails the forfeiture of the principal sum, without interest, to the school fund of the county in which the suit is brought.

CHAPTER XXV.

ASSIGNMENTS FOR BENEFIT OF CREDITORS.

No general assignment of property by an insolvent, or in contemplation of insolvency, for the benefit of creditors shall be valid, unless it be made for the benefit of all his creditors in proportion to the amount of their respective claims. And such assignments shall have the effect to discharge any and all attachments on which judgment shall not have been taken at the date of such assignment; and after the payment of the costs, and disbursements thereof, including attorneys' fees allowed by law, in case of judgment, out of the estate of the insolvent, such claim or claims shall be deemed as presented, and share pro rata with other claims, as hereinafter provided.

In the case of an assignment for the benefit of all the creditors of the assignor, the assent of the creditors shall be presumed.

The debtor shall annex to such assignment an inventory, under oath, of his estate, real and personal, according to the best of his knowledge, and also a list of his creditors and the amount of their respective demands, but such inventory shall not be conclusive as to the amount of the debtor's estate, and such assignment shall vest in the assignee the title to any other property belonging to the debtor at the time of making the assignment. Every assignment shall be in writing and duly acknowledged in the same manner as conveyances of real

estate, and recorded in the county where the person making the same resides, or where the business in respect of which the same is made has been carried on.

The assignee shall also forthwith file with the Clerk of the Circuit Court of the county where such assignment shall be recorded, a true and full inventory and valuation of said estate under oath, so far as the same has come to his knowledge, and shall then and there enter into a bond to the State of Oregon, for the use of the creditors, in double the amount of the inventory and valuation, with two or more sufficient sureties, to be approved by said Clerk, for the faithful performance of said trust; and the assignee may thereupon proceed to perform any duty necessary to carry into effect the intention of said assignment.

The assignee shall forthwith give notice of such assignment by publication in some newspaper in the county, if any, and if none, then in the nearest county thereto; which publication shall be continued at least six weeks; and shall forthwith serve a notice by mail to each creditor of whom he shall be informed, directed to their usual place of residence, and notifying the creditors to present their claims, under oath, to him within three months thereafter.

At the expiration of three months from the time of first publishing notice, the assignee shall report and file with the Clerk of the Court a true and full list, under oath, of all such creditors of the assignor as shall have claimed to be such, with a statement of their claims, and also an affidavit of publication of notice, and a list of the creditors, with their places of residence, to whom notice has been sent by mail, and the date of mailing, duly verified.

Any person interested may appear within three months after filing such report, and file with said Clerk any exceptions to the claim or demand of any creditor, and the Clerk shall forthwith cause notice thereof to be given to the creditor, which shall be served as in case of a summons, returnable at the next term; and the said Court shall, at such term, proceed

to hear the proofs and allegations of the parties in the premises, and shall render such judgment thereon as shall be just, and may allow a trial by jury thereon.

If no exception be made to the claim of any creditor, or if the same has been adjudicated, the Court shall order the assignee to make, from time to time, fair and equal dividends among the creditors of the assets in his hands in proportion to their claims, and as soon as may be, to render a final account of said writ to said Court, who may allow such commissions to said assignees in the final settlement as may be considered just and right.

The assignee shall at all times be subject to the order of the Court or Judge; and the said Court or Judge may, by citation and attachment, compel the assignee, from time to time, to file reports of his proceedings, and of the situation and condition of the trust, and to proceed in the faithful execution of the duties required by this Act.

No assignment shall be declared fraudulent or void for want of any bill or inventory as provided in the Act. The Court or Judge may, upon application of the assignee, or any creditor, compel the appearance in person of the debtor before such Court or Judge forthwith, or at the next term, to answer under oath such matters as may then and there be inquired of him; and such debtor may then and there be fully examined under oath as to the amount and situation of his estate, and the names of the creditors and amounts due to each, with their places of residence, and may compel the delivery to the assignee of any property or estate embraced in the assignment.

The assignee shall, from time to time, file with the Clerk of the Court, an inventory and valuation of any additional property which may come into his hands under said assignment after the filing of the first inventory, and the Clerk may thereupon require him to give additional security.

Any creditor may claim debts to become due, as well as debts due, but on debts not due a reasonable abatement shall be made when the same are not drawing interest; and all cred

itors who shall not exhibit their claims within the term of three months from the publication of notice as aforesaid, shall not participate in the dividends until after payment in full of all claims presented within said time and allowed by the Court.

Any assignee as aforesaid, shall have as full power and authority to dispose of all estate, real and personal, assigned, as the debtor had at the time of assignment, and to sue for and recover in the name of such assignee everything belonging or appertaining to said estate, and generally do whatsoever the debtor might have done in the premises; but no sale of real estate belonging to said trust shall be made without notice, published as in case of sales of real estate on execution, unless the Court shall order and direct otherwise.

In case any assignee shall die before the closing up of his trust, or in case any assignee shall fail or neglect, for the period of twenty days after the making of any assignment, to file an inventory and valuation, and give bonds as required by this Act, the Circuit Court, or Judge thereof, of the county where such an assignment may be recorded, on the application of any person interested, shall appoint some person to execute the trust embraced in such assignment, and such person on giving the bond, with sureties, as required above of the assignee, shall possess all the powers conferred on such assignee, and shall be subject to all the duties hereby imposed, as fully as though named in the assignment; and in case any security shall be discovered insufficient, or on complaint before the Court or Judge, it should be made to appear that any assignee is guilty of wasting or misapplying the trust estate, said Court or Judge may direct and require additional security, and may remove such assignee, and may appoint others instead; and such person so appointed, on giving bond, shall have full power to execute such duties, and to demand and sue for all estate in in the hands of the person removed, and to demand and recover the amount and value of all moneys and property or estate so wasted and misapplied, which he may neglect or refuse to make satisfaction for, from such person and his sureties.

Upon the application of two or more creditors therefor by petition to the Judge of the Circuit Court of the County in which such assignment is or should be recorded at any time within thirty days from the making or recording of such assignment, it is the duty of the Circuit Judge to direct the Clerk of the Court to order a meeting of the creditors of the debtor to choose an assignee of the estate in lieu of the assignee named by the debtor in his assignment; thereupon the Clerk of the Court shall forthwith give notice to all the creditors of said debtor to meet at his office at a time stated, to select an assignee. Such assignee shall be a resident of the same county as the assignor. The creditors may appear in person or by proxy, and a majority in number and value of said creditors attending such meeting shall select an assignee. In the event that no one receives a majority vote of said creditors who represent at least one-half of all claims represented at such meeting, then and in that event said Clerk shall certify that fact to the Judge of the Circuit Court, and thereupon said Circuit Judge shall select and appoint an assignee. The assignee so selected by the creditors, or appointed by the Circuit Judge, upon giving the bond required of an assignee, shall possess all the powers and be subject to all the duties, as fully to all intents and purposes as though named in the debtor's assignment. From the time of the pending of an application to elect an assignee by the creditors, and until the same shall be terminated by the election or appointment, no property of the debtor, except perishable property, shall be sold or disposed of by any assignee, but the same shall be safely and securely kept until the election or appointment of an assignee.

Whenever it shall appear to the satisfaction of the Court or Judge thereof, when the assignment is pending upon the final report of the assignee chosen by the creditors or otherwise, that the assignor has been guilty of no fraud in making the assignment, nor concealment or division of his property, or any part thereof, in order to keep the same beyond the reach of his creditors, but that he has acted fairly and justly