« PreviousContinue »
therein shall be liable, jointly and severally, for the amount thereof, conditioned for the faithful performance of the duties devolving upon said assignees. The amount of such bond shall be determined by the majority of creditors : should not the creditors so determine, the amount of said bond shall be fixed by the court having jurisdiction of the failure. Sec. 13. The assignees shall apply by petition to the court, who Duty of
assignees. shall have ordered a meeting of creditors, to be authorized to sell at public auction, and to the best and highest bidder for cash, all the insolvent debtor's property of whatsoever nature or kind; and said assignees shall give at least twenty days public notice, in the same manner as notice for a meeting of creditors of all sales of the property of said insolvent, giving at the same time a full description of the property to be disposed of: Provided, however, that if any of the property surrendered be of a perishable nature, the assignees shall be authorized to sell the same, on giving at least five days notice of such sale by publication or notice of such sale as in sale on execution.
Sec. 14. The assignecs shall deposit all funds belonging to the Their responfailure, in their joint names, so that nothing can be drawn without the consent of all. Said funds shall remain inviolable, and shall never be loaned, used or mixed with the personal affairs of the assignees; and, finally, the said assignees shall make a distribution of the proceeds of the property of the insolvent, agreeably to the direction of the court; said assignees may sue and be sued, either as plaintiffs or defendants, in every thing which respects the rights and actions, which may belong to the insolvent, or which may concern the mass of the creditors. All suits brought against the insolvent anterior to his surrender of property, before the courts of other counties, shall be transferred to the court having jurisdiction in the county in which said insolvent shall have presented his schedule, and may be continued on motion and notice against his assignees.
Sec. 15. Whenever a dividend shall be declared, the assignees Dividendo. shall make out a statement containing the names of the several creditors, mentioning the sums which are due them respectively; and the said statement shall, besides, contain the pro rata sums to be divided among all the creditors. Said assignees shall deposit said statement in the clerk's office of the court, who shall order that notice be given to the creditors in the same manner as. for the meeting, that they show cause within fifteen days next following the publication, why the said statement should not be accepted, and the distribution made agreeably to its contents.
Investigation of creditors.
Sec. 16. Two or more creditors may at any time make a motion to know if the assignees have funds in their hands, and the said assignees shall be required to present their accounts, and if they have funds
they shall distribute them without delay. Penalties of Sec. 17. Should the assignees refuse or neglect to render their ac
counts as required by the preceding Section, or to pay over a dividend, when they shall have, in the opinion of the court, sufficient funds for that purpose in their hands, the court shall immediately
discharge such assignees from their trust, and shall have power to discharged
appoint others in their place. The assignees so discharged shall deliver over to those appointed by the court, all the funds, property, books, vouchers and securities belonging to the insolvent, without charging any commission or expenses thereon, and shall also be condemned to pay to the new assignees, for the benefit of the mass of the creditors, twenty per cent. in addition to the amount of funds in their
hands. Refusal to ap
Sec. 18. If, on the day appointed for the meeting, the creditors, point assignees.
although duly summoned, do not attend, or refuse to appoint one or more assignees, it shall be lawful for the judge before whom the said meeting may take place, to authorize the Sheriff of the county to receive the surrender of property offered by the debtor, and to perform in every respect the functions of assignee, and for the faithful performance of said trust, he shall be responsible on his official bond:
Provided, that if any of the creditors should choose to take that Judge may charge, the judge shall appoint said creditor for that purpose, upon appoint.
said creditor giving bond, with good and sufficient security propor
tioned to the value of the property committed to his charge. Fees of assignees. Sec. 19. The assignees, collectively, shall be entitled to charge and
receive for their services, to wit: ten per centum upon a sum not ex. ceeding ten thousand dollars ; eight per centum upon sums above ten thousand dollars, and not exceeding thirty thousand dollars ; six per centum upon sums above thirty thousand dollars, and not exceeding
sixty thousand dollars; and four per centum on all sums exceeding Counsel fees. sixty thousand dollars : Provided, that the said commissions shall be
allowed only, on such net sums of money as shall actually come to their hands, or be distributed by them. The mass of creditors shall in no manner be liable for the fees of counsel of the insolvent debtor in conducting a surrender of the property.
Sec. 20. That in case, after the appointment of said assignees, any one or more of the creditors of the insolvent debtor should deem necessary to oppose it, on the ground of some fraud having been committed by the said insolvent debtor, or of the appointment not having
been legally made, he shall, within ten days next following the appointment of said assignees, lay before the court which has already taken cognizance of the case, his written opposition, stating specially the several facts of nullity of the said appointment, or of fraud by Opposition of him alleged against the insolvent debtor, whereupon, in case of accusation of fraud, after having received the said insolvent debtor's answer, the court shall order a jury to be summoned, of not less than Jury. six men, to be summoned in the same manner as juries are summoned in the District Court, for the purpose of deciding on the said accusation.
Sec. 21. On the day or at the term appointed in such order, or Proof of fraud. any subsequent day or term, the court shall proceed to hear the proofs and allegations of the parties; and before any other proceedings be had, shall require proof of the publication of the notice as herein provided
Sec. 22. Upon such an accusation of fraud, the creditor who shall Rights ou have brought the same, shall have the right to interrogate the insolvent debtor on oath, and put to him such written questions, as to the Investigation state of his affairs, and the several transactions in which he may have been engaged anterior to his failure, as he shall think proper; and the insolvent shall answer, in writing, to the said interrogatories, in a pertinent and distinct manner; and every equivocal answer on his part shall be construed against him.
Sec. 23. If the jury summoned for the purpose of deciding on the Penalty. accusation of fraud, brought against such insolvent debtor, declare in their verdict that said insolvent has been guilty of fraud, the said debtor shall forever be deprived of the benefit of the laws passed for the relief of insolvent debtors in this state.
Sec. 24. If the accusation of fraud brought against the debtor is declared to be ill-founded, or if there be no opposition to the surrender of his property, and, Provided said surrender has been made according to the provisions of this act, said debtor shall be released and fully discharged from any and all debts, until then contracted, and contracted after the passage of this act, and from every judicial proceeding relative to the same; Provided, always, that said insolvent debtor shall be released and discharged only from such debts and liabilities as he shall have set forth, and named in his schedule.
Sec. 25. Any insolvent debtor who shall be found guilty of fraud Fraud. as aforesaid, shall forever be deemed incapable of holding any office of trust or profit under the government of this state, shall moreover be liable to be prosecuted and punished as a perjurer, if he should be convicted of having forsworn himself in any of the decla
Insolvent to be released.
Penalty. rations he may have made agreeably to the provisions of this act, and
if convicted of fraud he shall be sentenced by the court to suffer imprisonment at hard labor in the state prison, for a term not less
than six months, nor more than two years. Powers of judge.
Sec. 26. If the Judge before whom the accusation of fraud is brought, or an opposition to the appointment of assignees is made, thinks that the interest of the mass of creditors of the insolvent may suffer by a delay of the approval of the appointment of the assignees, it shall be lawful for said Judge, all opposition notwithstanding, to approve previously the said appointment, if he finds that it has been
made agreeably to law. Fraudulent
Sec. 27. That all persons shall be considered as fraudulent bankbankrupts.
rupts, who shall be convicted of having concealed their property, with the intention to keep it from their creditors, as also those who shall be convicted of having concealed or altered their books, or papers, with the same intention.
Sec. 28. That every insolvent debtor shall also be considered as a fraudulent bankrupt who shall be convicted of having passed sham deeds for the purpose of conveying the whole or any part of his property and depriving his creditors thereof, or of having knowingly omitted to declare any of his property, rights, or claims in his schedule, or of having purloined his books, or any of them, or of having altered, changed, or made them anew, to an intent to defraud his creditors, or of having alienated, mortgaged or pledged any of his property, or of having committed any other kind of fraud to the prejudice of his creditors.
Sec. 29. If any debtor shall be convicted of having at any time benefit of the act. within three months next preceding his failure, sold, engaged, or
mortgaged any of his goods and effects, or of having otherwise assigned, transferred, or disposed of the same, or any part thereof, or confessed judgment in order to give a preference to one or more of his creditors over the others, whereby to receive any advantages in anticipation of his failure, to the prejudice of his creditors, he shall
be debarred the benefit of this act. His responsibili. Sec. 30. All insolvent debtors owing or accountable in any man
ner for public funds or property of whatever nature or kind; all unfaithful depositaries; all such as refuse or neglect to pay up all funds received by them as bankers, brokers, commission merchants, or for money, goods, or effects received by them in a fiduciary capacity,
shall be denied the benefit of this act. Presentation Sec. 31. If, after the presentation of his petition, the insolvent of petition.
shall sell, or in any manner transter or assign any of his property, or collect any debts due him, and shall not give a just and true account
The debtor may be debarred the
ties as an agent.
apply in person.
of the property so sold or transferred, and the moneys so collected and pay the same over to the assignees, within ten days after their Duty of insolvent. appointment, said debtor shall not receive the benefit of this act.
Sec. 32. Whenever any insolvent debtor has had the benefit of this concealing act, if thereafter, at any time, it is made to appear that he has concealed any part of his property or estate, or given a false schedule, or committed any fraud under the provisions of this act, it is hereby declared that he has forfeited all benefit and advantage which he would otherwise have had by virtue of this act, and he cannot avail himself of any of its provisions, in bar to any claim that may be in- Penalty. stituted against him.
Sec. 33. No person can apply for, or receive the benefit of this act, Insolvent to through an agent or attorney in fact. Sec. 34. From and after the surrender of the property of the insol- Surrender of
property Fent debtor, all property of such insolvent shall be fully vested in his assignee or assignees, for the benefit of his creditors, and shall not be liable to be seized, attached, taken, or levied on, by virtue of any execution issued against the property of said insolvent, and the assignees, who may be appointed, shall take possession of, and be entitled to claim and recover all the said property, and to administer, Control of. and sell the same, as herein provided.
Sec. 35. If there be any creditors residing without the limits of Non-residen this state, the judge shall appoint an attorney to represent them; but the fees of said attorney shall in no case be paid by the mass of creditors, but shall be levied on the amount of the sums which shall be recovered for the account of such nonresident creditors, at the rate of ten per centum : Provided, that in no case shall the whole fees allowed to counsel, appointed on behalf of said creditors, exceed the sum of three hundred and fifty dollars.
Sec. 36. In case the debtor who applies for the benefit of this act, Property of should have no property to surrender to his creditors, or if the appraised value of the property exhibited in his schedule, should not amount to more than one-third of his debts, in case he should already have received the benefit of this act, during the year next preceding, the judge before whom application is made, shall not admit him to the benefit of this law, unless it be proven to the said judge, by affidavit, sworn and subscribed to by two credible and disinterested
Proceedings. witnesses, that the debtor has really experienced the losses by him stated, and that the said losses may have reduced him to the situation in which he finds himself; Provided, all legal mortgages and liens, bona fide existing on such property at the time of the surrender, as aforesaid, shall remain good and valid, and may be enforced in the same manner as though no such surrender had been made.