Limited Partnerships. void as against the creditors of the partnership, and any special partner participating in or assenting to any such arrangement, shall be held liable as a general partner. When the partnership becomes insolvent, no special partner can under any circumstances claim as a creditor, until the claims of all the other creditors of the partnership are satisfied. To form a limited partnership, the parties must severally sign a certificate, containing the name under which the partnership is to be conducted, the general nature of the business to be transacted, the names of all the general and special partners interested therein, distinguishing which are general and which are special partners, and their respective places of residence, the amount of capital contributed by each partner to the common stock, the period at which the partnership is to commence, and at which it will terminate. This certificate shall be acknowledged by the several persons signing the same, before an officer authorized by law to take the proof and acknowledgment of deeds, (to wit, the chancellor of the state, or one of the justices of the supreme court, or a master in chancery, or one of the judges of the court of common pleas,) and such officer is to certify the acknowledgment, under his proper signature, on the instrument itself, which is then to be filed in the office of the clerk of the county where the principal place of the business of the partnership is situated, to be recorded by him at large, in a book kept for the purpose and if the partnership has places of business situate in several counties, a transcript of this record, duly certified by the clerk, shall be filed and recorded in like manner in each. At the time of filing the original certificate, one or more of the general partners shall file an affidavit in the same office, stating that the sums specified in the certificate to have been contributed by each of the special partners to the common stock, have been actually and bona fide paid in cash. The partnership is not to be deemed to have been formed, until the preceding requisitions of the law have been complied with; and any false statement in the certificate or affidavit will render all the persons interested in the partnership liable for its engagements as general partners. The terms of the partnership shall be published immediately after their registry for at least six weeks, in some newspaper published in the county or counties Assignments by Insolvent Debtors. where the business is to be conducted, and if there is no such newspaper, then in a newspaper published in the county nearest to the place of business; and if this publication is not made, the partnership shall be deemed general. Every alteration in the partnership, or renewal or continuance thereof, beyond the original term fixed for its duration, shall be deemed a new partnership, and all the requisites prescribed for its original formation must be observed. No dissolution of such partnership can take place by acts of the parties, previous to the time specified in the certificate of its formation or renewal, unless a notice of the same be filed and recorded in the clerk's office in which the original certificate was recorded, and published once in each week for four weeks, in a newspaper circulating in each of the counties where the partnership may have places of business. (a) 7. Assignments by Insolvent Debtors. All assignments for the benefit of creditors are made to enure in proportion to their respective demands, to their equal benefit; and all preferences of one creditor over another, excepting mortgage and judgment creditors, (where the judgment has not been by confession, for the purpose of giving preference,) are to be deemed fraudulent and void. (b) The absolute transfer of a part of his estate by a debtor upon the eve of insolvency, to a particular creditor in payment of his debt, is valid. The assignment which the law repudiates, is the unequal assignment among the creditors of his entire estate. (c) An assignment of personal property situate in New Jersey, made in New-York, by a citizen of that state, and in conformity with its laws, will not pass the title, if the assignment is of a character prohibited by the laws of the latter state. (d) The debtor is required to annex to his assignment an inventory, verified by his oath, of his entire estate, real and personal, and a list of all his creditors, with the amount of their respective claims. The assignees, after giving notice to the creditors for (a) Elmer's Digest, 376 to 378. (b) Ib. 16. Limitation of Actions. the term of thirty days in two newspapers published in their vicinity, and entering into bond, with security, for the faithful performance of their trust, may proceed to sell the property, and perform all other duties necessary to carry into effect the objects of the assignment. At the expiration of six months, the assignee having given additional notice for the term of six weeks next preceding, to the creditors of the insolvent, must file with the clerk of the county, wherein the debtor resided at the time of the assignment, a true list of all persons claiming to be creditors, and a statement of their respective amounts, and at the next term of the Court of Common Pleas, any controversy between the assignee and the creditors as to particular claims, may be adjusted by the court. The assignee shall then proceed, from time to time, to make an equal dividend among the creditors of the assets which have come to hand. All creditors who do not exhibit their claims within the term of six months, as aforesaid, are to be barred of a dividend, unless there should be a surplus after satisfaction of the debts exhibited, or unless such creditors should find other estate not accounted for by the assignee, before distribution. The creditors who thus become parties to the assignment, and they only, are forever barred from any future action at law or in equity against the debtor and his representatives, unless they should be able to establish fraud in the debtor, with respect to the assignment, by concealing part of his estate or otherwise. (a) 8. Limitation of Actions. All actions of detinue, trover, and replevin, all actions of debt, founded upon any lending or contract without specialty, all actions of account and upon the case, except such as concern the trade of merchandise between merchant and merchant, their factors and servants, must be commenced within six years from the time of the accruing of the cause of action. All actions of debt upon any sealed instrument for the payment of money, must be brought within sixteen years after the cause of action has accrued, or within sixteen years after the indorsement of a payment on the bond. Judgments of any court (a) Elmer's Digest, 17, 18, 19. Effect of Death upon the Rights of Creditors. of record within the state may be revived by scire facias or action of debt within twenty years next after the date of such judgment, and not after. (a) Upon judgments rendered in the courts of a sister state, there is no statutory limitation, but from an unexplained forbearance of twenty years, a presumption of payment would arise, which would extinguish the judgment. (b) The exception in the statute in regard to merchants' accounts, has been extended by equitable construction, so as to embrace the accounts of other persons not merchants, between whom there have been mutual dealings and credits; some of which are of more than six years, and others less. This equitable extension properly takes place in the case of mutual current accounts, or wherever any such connection appears between them as may fairly amount to an admission of unsettled accounts between the parties. (c) There is no law requiring an acknowledgment to be in writing to take a case out of the statute of limitation, but it must be an express promise to pay, or a direct and unqualified admission of a previous subsisting debt, which the party is liable and willing to pay. (d) There is a saving clause in favor of infants, feme coverts, and lunatics, of the period of their limitation after the removal of the disability. (e) A period of non-residence or absence from the state is not to be computed as a part of the term of limitation. (f) 9. Effect of Death upon the Rights of Creditors. Where the executor or administrator does not represent an estate as insolvent, debts are to be paid according to the order of priority fixed by the common law, except so far as it is controlled by the laws of Congress, giving preference to debts, of whatever dignity, due to the United States. To enable the personal repre (a) Elmer's Digest, 316. (c) Belles v. Belles, 4 Hals. 339. (b) Gulick v. Loder, 1 Green 68. (d) Ib. and Conover v. Conover, Saxe's Ch. Rep. 404. (f) Ib. 318. Effect of Death upon the Rights of Creditors. sentative to examine into the condition of the estate, and ascertain both the amount of assets and the extent of indebtedness, no creditor can bring an action against him, within six months after the decease of the testator or intestate, unless upon a suggestion of fraud, or for the physician's bill during the last sickness, funeral charges and expenses, and any judgments entered of record against such decedent during his lifetime, all of which are to be first paid out of either the personal or real estate. (a) Real estate cannot be sold, nor in any manner affected by a judgment against an executor or administrator. (b) But where a creditor has obtained judgment against an executor or administrator, and the personal estate is insufficient to satisfy the execution, he may require such representative to apply to the proper Orphan's Court for an order to sell the land of the decedent, and upon his neglect or refusal for the space of six months, the creditor himself may apply. (c) Where an executor or administrator believes that the personal estate is insufficient to pay the debts of the deceased, it is his duty, as soon as may be convenient, to exhibit under oath a true and full account of the personal estate and debts so far as he can discover the same, to the Orphan's Court of the county where the real estate, of which his testator or intestate died seized, is situate, and ask their aid in the premises: upon which the court is to make an order, directing all persons interested in such real estate to appear at a certain day therein mentioned, not less than two months from the making thereof, to show cause why so much of said real estate should not be sold, as will be sufficient to pay the debts of the decedent. This order is to be advertised for six weeks successively, at three of the most public places in the county, and in one or more newspapers. If the court upon a hearing shall be satisfied of the insufficiency of the personal estate, it may order the executor or administrator to sell the whole, or so much as it may deem necessary to discharge the debts of the estate. No part of the realty is however to be sold until the executor has applied all the personal estate which has come to his hands to the payment of debts. (d) The executor upon giving notice two months beforehand of the time and place, may proceed to sell so much of the realty as was (a) Elmer's Digest, 169. (b) Ib. 489. (c) Ib. 362. (d) Ib. 490. |