Insolvent Laws.

The after acquired estate of the debtor is of course subject to execution for so much of his debts as the insolvent assignment does not satisfy; but if a majority in number and in value of the creditors of any insolvent residing in the United States or having a known attorney therein, shall consent in writing thereto, an order may be made by the court, on application of the debtor, and notice given, to exempt all after acquired property from execution for any debt or cause of action existing previously to such discharge, for seven years thereafter; and if, contrary to such order, an execution issues, it will be set aside, on application to the court, with costs. (a)

If upon the hearing of any petitioner it appears to the court that there is just ground to believe, either, (b)

1. That the insolvency of the petitioner arose from losses by gambling, or by the purchase of lottery tickets; or

2. That the petitioner has embezzled or applied to his own use any money or other property with which he has been intrusted, either as bailee, agent, or depositary; or

3. That he has concealed any part of his estate or effects, or conveyed the same in such a manner as, and with the intent, to defraud his creditors; it is the duty of the court to commit him to jail for trial at the Court of Quarter Sessions.

If upon such trial he is convicted, he is guilty of a misdemeanor, and subject to imprisonment for the terms specified by the act. (c)

There are other penal provisions, which it is unnecessary to

enumerate.

No one, however, is entitled to the benefit of the act for the abolition of arrest and imprisonment for debt, who has not been a resident in the state for twenty days previous to the commencement of suit against him, (d) nor for the benefit of the insolvent laws, who has not been a resident for six months or been imprisoned for three months immediately previous to his application. (e)

Voluntary assignments.-A voluntary conveyance by a debtor in failing circumstances, of property not subject to any lien, in trust for the benefit of creditors, has always been considered in

(a) Purd. Dig. 611. (b) Ib. 612. (c) Ib. 612. (d) Ib. 582.

(e) Ib. 607.

Insolvent Laws.

Pennsylvania as valid and founded on sufficient consideration, (a) and the legal estate passes thereby to the assignees, though their assent is not expressed. (b) Formerly, also, it was no objection to the validity of an assignment, that it gave a preference to certain creditors, or excluded those who should not execute a release within a fixed time, (c) even though the surplus was to be paid to the debtor. (d) By the act of 17th April, 1843, however, all assignments for the payment of debts in which a preference is given to one or more creditors, except for the wages of labor, not exceeding in all fifty dollars, are to be held and construed to enure for the benefit of all creditors in proportion to their respective demands. (e) It would seem that an assignment for releasing the creditors only, is within the meaning of the act. (ƒ) The preference referred to is only that given by the assignment itself, and a judgment confessed at the same time with such a voluntary conveyance to certain bona fide creditors, in order to give them a priority, is not affected by the pvovisions of this act. (g)

It is essential that the assignment should be put entirely out of the assignor's control, for otherwise an execution will be preferred to it. (h) There must be an actual transfer of the property from the assignor to the assignee; (i) but the assignee need not take possession till the thirty days limited by act of assembly for making an inventory have expired; (k) and indeed the retention of possession by the assignor, after the recording of the assignment and appraisement, is never per se fraudulent. (1)

The assignment must be of the whole of the debtor's property, whether partnership or separate, and must contain words apt

(a) Beard v. Smith, 4 Dall. 35 note; Wilt v. Franklin, 1 Binn. 514; See cases in Wharton's Digest, 4th ed. tit. Debtor and Creditor, D.

(b) Gray v. Hill, 10 S. & R. 436.

(c) Wilt v. Franklin, 1 Binn. 514; Lippincott v. Barker, 2 Binn. 186; Hower v Geesaman, 17 S. & R. 254.

(d) Livingston v. Bell, 3 W. 198.

(f) Seal v. Duffy, 4 Burr. 275, Gibson C. J.

(e) Purd. Dig. 90

(g) Blakely's Appeal, 7 Pennsylvania Law Journal 333.

(h) McKinney v. Rhoads, 5 W. 343.

(i) Hower v. Geesaman, 17 S. & R. 254.

(k) Mitchell v. Willock, 2 W. & S. 253.

(1) Titler v. Maitland, 5 W. & S. 307; Dallam v. Fitler, 6 W. & S. 323.

Insolvent Laws.

to carry it, and the reservation of any interest whatever will render it fraudulent and void, not only as to the part reserved, but as to the whole. (a)

A legacy to a wife will not pass by a voluntary assignment, (b) and it would appear that a wife's survivorship in her choses in action is never so barred. (c) The consideration of this point is now, however, unnecessary, as by the act of 11th April, 1848, (d) all property, real and personal, of a married woman, is exempted entirely from her husband's control and from liability for his debts. Where one in an assignment transfers goods belonging to another, the creditors of the latter cannot claim a dividend among those of the former. (e)

Before the act of 1843, just referred to, it has been held that the time fixed by the assignment within which its conditions must be complied with, must be reasonable, and not indefinite or too distant, (f) and that, therefore, as by an act of assembly the accounts of the trustees must be settled within a year, a provision directing payment not to be made for more than a year is void against non-assenting creditors. (g)

The assignment must be recorded within thirty days after its execution, (h) in the county in which the debtor resides, or it will be considered as null and void against creditors. It will still, however, remain valid as against a subsequent voluntary assignee, (i) and dissenting creditors can only avoid it pro tanto. (k) If the assignor should take the benefit of the insolvent laws, such an assignment could only after that time be avoided by his trustees. (1)

The assignees under a voluntary assignment must also, within thirty days after the execution of the assignment, file an inventory or schedule of the property so assigned, in the Common Pleas

(a) Thomas v. Jenks, 5 R. 221; Hennessey v. The Western Bank, 6 W. & S. 300; In re Wilson, 4 Barr. 430; Miller v. Samuel, 7 Pa. Law Journ. 379.

(b) Skinner's Appeal, 5 Barr. 262.

(c) Hartman v. Dowdel, 1 Rawle 279; ib. (e) Dyott's Estate, 2 W. & S. 557.

(g) Sherer v. Lantzenheizer, 6 W. 543. (h) Act of 1818, Purd. Dig. 89.

(i) Seal v. Duffy, 4 Barr. 274.

(d) Pamph. D. 536.

(f) Pierpont v. Graham, 4 W. C. C. R. 232.

(k) Ib. See also Miller v. Samuel, ib. Sup.

(2) Ib.

Courts.

of the county where the assignor resides. (a)

Appraisers are then to be appointed by the court, who are to return an appraisement of the value of the estate; when this is done and the appraisement is filed, the assignees are to give bond. After the expiration of a year the assignee or assignees may be compelled, by citation in the Common Pleas, to appear and exhibit their accounts. (b)

The accounts of trustees are to be published under order of court, with notice that they will be allowed at a certain time, unless cause to the contrary be previously shown.

The Court of Common Pleas of the proper county have as complete jurisdiction over assignees, as over other trustees. They may be removed and new ones appointed, or they may be compelled to give just security.

After the purposes of the trust have expired, the court may compel the conveyance by the trustees of the legal estate, on application of the party interested. (c)

12. Courts.

The judicial power is invested in a Supreme Court, three District Courts, and sixteen Courts of Common Pleas. The judges of the Supreme Court hold Circuit Courts in the various counties. The jurisdiction of the District Courts, within their respective districts, is concurrent with that of the Courts of Common Pleas in the different counties.

(a) Act of 1836; Purd. Dig. 85.

(b) Ib.

(c) Purd. Dig. 85, 86.

8. EFFECT OF DEATH UPON THE RIGHTS OF CREDITORS.

1. Bills of Exchange and Promissory Notes.

All bonds, promissory notes, and bills of exchange drawn for a certain sum of money, and made payable to bearer, order, or assigns, are negotiable by indorsement thereon, so as absolutely to vest the property thereof in each and every indorsee successively; who may maintain actions against the makers, drawers, or indorsers. Such bonds, notes, and bills, are entitled to days of grace; and if indorsed after the day on which they are payable, and suit be brought by the indorsee against the maker, drawer, or obligor, the defendant may have the same defence he might have had if the action had been brought by the person to whom the instrument was originally made. If indorsed on or before the day on which it is made payable, the defendant may give in evidence any money actually paid before the instrument was indorsed to the plaintiff, on proving that the plaintiff had notice of such payment before the indorsement. (a)

(a) Swan's Statutes of Ohio, 587, 588.