Statute of Fruuds.-Assignment by Insolvent Debtor, etc. those already detailed under the same title as existing in New Jersey. (a) 5. Statute of Frauds. The statute of Alabama as to parol contracts is a transcript of the English statute of frauds, except in the last clause of the statute, the word "promise" as well as "agreement" is used. (b) When the possession of goods and chattels has remained in one person for the space of three years, as loanee, without any demand made and pursued by due course of law, on the part of the pretended lender, they shall be taken as to the creditors and purchasers of the person in possession to be fraudulent, unless such loan be declared by will or deed in writing, proved and recorded. (c) 6. Assignments by Insolvent Debtor. A debtor in failing circumstances may make an assignment of his property, preferring creditors, provided he does not reserve any benefit to himself. The instrument of conveyance, if it contains personal property, must be recorded within thirty days, in the office of the county where it lies or if lands, within sixty days. It seems to be essential to the passing of title to a trustee in a deed of trust, that the creditors intended to be secured, should assent to it, unless the deed is absolute, conveying the whole estate of the debtor, and providing for the equal payment of all his creditors. (d) 7. Effect of Marriage upon Rights of Property. The property of a woman at the time of her marriage, or which she subsequently receives by descent, gift, or bequest, is not subject to the debts or liabilities of the husband contracted (a) Clay's Digest 389. (b) Ib. 254. (c) Ib. 255. (d) Article on the Law of Debtor and Creditor in Alabama, in Hunt's Merchants' Magazine, vol. xvi. p. 58, from the pen of the Hon. B. F. Porter. Limitation of Actions. before marriage, nor is the husband liable for the debts of the wife contracted before mariage, beyond the amount of the estate which he receives by her; but such property of the wife remains liable for her debts, notwithstanding the termination of the coverture. (a) 8. Limitation of Actions. All actions of trespass, detinue, trover and replevin for taking away of goods and chattels, all actions of debt founded upon any contract or lending without specialty, or for arrearages of rent due on a parol demise, all actions of account, and upon the case, except such actions as concern the trade of merchandise between merchant and merchant, their factors or agents, must be brought wiihin six years after the cause of action has accrued. There is a saving of the period of limitation in favor of infants, feme coverts, and persons non compos mentis, after the removal of their disability. Actions of debt or covenant upon any lease under seal, or upon any sealed instrument for the payment of money, or upon any award under seal, must be brought within sixteen years after the cause of action has accrued; unless a payment has been made upon such instrument, when the limitation is to commence running from the time of payment. The time during which any person entitled to one of these actions is an infant, feme coverts, or non compos mentis, is not to be taken as a part of the period of limitation. Judgments in any court of record within the state may be revived by action of debt or scire facias within twenty years next after the date of the judgment. There is a similar saving to this limitation, as to that immediately preceding. (b) The period during which a person liable to any of the actions which have been enumerated, may be absent from the state, is not to be accounted as a part of the limitation. All actions brought to recover any money due by open account, must be commenced within three years from the time of their accruing, unless they concern the trade of merchandise between merchant and merchant. (c) An important decision has been made in Alabama, upon the effect of an acknowledgment upon the bar of the statute. It has (b) Clay's Digest 326. (a) Acts of 1845, 25. (c) Ib. 328. Attachment. been held that a verbal acknowledgment by the obligor of a bond will not prevent the operation of the statute, nor revive the remedy upon it, after the bar of the statute has become complete. (a) 9. Attachment. Original attachments, foreign and domestic, may be issued by any judge of the Circuit or County Courts, or any justice of the peace. Before any attachment can issue, the applicant or his agent must make an affidavit in writing, that the person against whom it is prayed absconds, or secretes himself, or resides out of the state, or is about to remove out of the state, so that the ordinary process of law cannot be served upon him, or is about to remove his property out of the state, whereby the plaintiff may lose his debt, or be compelled to sue for it in another state; and also, of the amount due to the plaintiff, and that the attachment is not sued out for the purpose of vexing or harassing the defendant. The plaintiff must also give the usual bond to indemnify the defendant. It is not necessary to the issuing of an attachment, that the debt should be due. Attachments may be granted when both plaintiff and defendant are non-residents, and the defendant has any property in the state. (b) Attachments may be levied on real as well as the personal estate of the defendant; and the levy of the attachment creates a lien upon the property. An attachment may be sued out against one of several partners, without joining the others. (c) The provisions for the replevy of the goods by the defendant, the sale of perishable property, the trial of an adverse claim to the property attached, and for proceedings and judgment against garnishees, are similar to those which have been detailed under this title in the chapters on other states. The attachment law, it is declared, shall not be strictly construed, and defects of form may at any time before or during the trial, be amended, where the judge is satisfied that the defects were not made for the purpose of defrauding the defendant. Judicial attachment.-On a return of non est inventus to a (a) Crawford v. Childress' Ex'rs. 1 Ala. 483. (b) A. D. 37 to 43. (c) Green v. Pyme, 1 Al. Rep. 235. Effect of Death upon the Rights of Creditors. writ of capias ad respondendum, the plaintiff at his option may sue out a new process, or an attachment against the personal estate of the defendant; and if he fails to appear upon the return of this process, the plaintiff may have a judgment or his debt, upon which the property attached will be sold, and if it is not sufficient to satisfy the debt, execution may issue for the balance. Judicial attachments do not issue as a matter of right, when the sheriff returns upon an execution that his defendant is not to be found in the county: but the plaintiff or his agent must first make an affidavit before the clerk of the court to which the writ is returnable, that he has reason to believe the defendant avoided the execution of such writ. (a) 10. Effect of Death upon the Rights of Creditors. The personal estate constitutes the primary fund for the payment of debts: but if it is not sufficient, the real estate, saving to the widow her right of dower, is chargeable with the deficiency. (b) The real estate may be sold, either under the order of the Orphans' Court of the county in which letters of administration or testamentary were granted, upon the petition of the executor or administrator setting forth the insufficiency of the real estate; (c) or upon a scire facias sued out by any judgment creditor, suggesting that real estate has descended to the heirs, and that a sale of the same or a part thereof is necessary for the satisfaction of said judgment, and that the executor or administrator has failed or re fused to make application for a sale thereof, and requiring the heirs and personal representatives of the deceased to show cause, if they can, why said plaintiff should not have execution against such real estate. (d) That an executor or administrator may have an opportunity of ascertaining the situation of the estate of his testator or intestate, no suit shall be commenced against him in his representative capacity until the expiration of six months from the time of proving the will of the testator, or taking out letters of administration on the estate of the deceased. (e) Where the estate is insolvent, the debts due for the last sick (a) Acts of 1845, 137. (b) Clay's Digest 191. (e) Ib. 192. (c) Ib. 224. Effect of Death upon the Rights of Creditors. ness and necessary funeral expenses are to be first paid, and then the balance of the assets accruing from the sale of the real as well as personal estate is to be distributed among all the creditors in proportion to the sums respectively owing to them. The executor or administrator of such estate is required to file in the office of the Orphans' Court by which he was appointed, a written allegation, setting forth that the estate is insolvent, and praying that it may be declared such, and accompanying such allegation by three several schedules, all to be verified by affidavit; one schedule containing a full statement of the personal estate and its estimated value; a second, a similar account of the real estate; and the third, an inventory of all claims against the estate, the amount and nature of each, and the names and residences of the several creditors. (a) To obtain this information, the executor or administrator, within two months after his qualification, is required to give notice by a weekly publication in some newspaper of the state for the space of six weeks, to all creditors to exhibit their claims within the period allowed by law or be forever barred. (b) Upon the filing of such allegation, the judge, or in his absence the clerk of the court, shall appoint some day not less than thirty nor more than sixty days distant, for hearing and determining the same; and the clerk, by advertisement in a newspaper and otherwise, and by notice personally served, or sent by mail to creditors out of the county, shall inform them of the time designated for this purpose. If no opposition is made by any creditor, the estate may be declared insolvent. "If the allegations of the executor are contested by any creditor, an issue will be made up to try the same under the direction of the court, and if it is decided against the executor, the allegation shall be dismissed with costs. If the estate is declared insolvent, the court shall order the executor or administrator to appoint a day for the settlement of his accounts, not less than thirty nor more than sixty days off, and direct the clerk to give notice to the creditors to attend at such time. On this day, the creditors, voting in person or by attorney, in proportion somewhat to the amount of their respective claims, may elect any resident citizen as an administrator de bonis non upon such estate or in the event of their making no election, the judge may (a) Clay's Digest 192. (b) Ib. 223. |