Insolvent Laws. but not if the levy is commenced before the first publication. (a) And whenever such attachment is dissolved by proceedings under this act, the legal costs in the suit are a privileged debt, provided the debt on which the suit is founded is proved. (b) Proof of debts, what debts may be proved, when they may be proved, oath before proving debts.—All debts due and payable from the debtor at the time of the first publication of the notice of issuing the warrant, may be proved and allowed against the estate at any regular meeting of the creditors; and all debts then absolutely due, though not payable till afterwards, may be proved as if payable presently, with a discount of interest, where no interest is payable by the contract till the time when the debt would become payable and all moneys due from the debtor on any bottomry or respondentia bond, or on any policy of insurance, may be proved, in case the contingency or loss happen before making the first dividend, as if it had happened before the said first publication: and in case the debtor shall be liable for any debt in consequence of having made or indorsed any bill of exchange or promissory note before the said first publication, or in consequence of the payment by a party to any bill or note of the whole or any part thereof, or of a payment by any surety of the debtor in any contract, although such payments be made after the said first publication, provided they be made before the making of the first dividend, such debt may be proved as if it had been due and payable by the said debtor before said first publication: and all demands against the debtor on account of goods or chattels wrongfully obtained, taken, or withheld by him, may be proved to the amount of the worth of the property thus taken and no other debt than those above mentioned may be proved. (c) In cases of mutual credit or debt between the insolvent and any other person, the balance only of account will be allowed or paid on either side. A creditor holding property of the debtor by mortgage, pledge, or lien, to secure the payment of a debt, must sell such property under the order of the commissioner, apply the proceeds to the payment of his debt, and come in as a creditor for the balance, or give up to the assignee the property so held as security, and (a) 9 Met. R. 23. (b) Laws of 1841, c. 124, § 6. (c) Laws of 1838, c. 163, §3. Insolvent Laws. come in as a creditor for his whole debt, or not prove any part of said debt. No debt can be proved against an insolvent estate, unless the creditor make oath in substance as follows:-“ I, swear that , , , do of , by (or against) whom proceedings in insolvency have been instituted, at and before the date of such proceedings, was, and still is, justly and truly indebted to me in the sum of for which sum, or any part thereof, I have not, nor has any other person to my use, to my knowledge or belief, received any security or satisfaction whatever, beyond what has been disposed of agreeably to law. And I do further swear that the said claim was not procured by me for the purpose of influencing the proceedings in this case." Said oath may be administered by any justice of the peace, where the creditor resides more than five miles from the place of meeting of the creditors. Examination of debtor, and of any person suspected of concealing, &c., debtors' effects.-The debtor must, at any time before the granting of his certificate of discharge, on due notice, attend and submit to an examination on oath, before the commissioner and the assignees, on all matters relating to his estate and the due settlement thereof according to law; said examination to be in writing, when so required by the commissioner, and to be signed by the debtor and filed with the other proceedings. (a) The commissioner before whom any matter is pending in insolvency, may, on complaint, under oath, of any person interested in the estate, cite before him any person suspected of having fraudulently received, concealed, embezzled, or conveyed away any of the estate of the insolvent, to be examined on oath, and if the person so cited refuse to appear and answer all lawfully propounded interrogatories, he may be committed to the common jail until he submit to the order of the commissioner. (b) Causes of proceeding against an insolvent on petition of creditors. If any person arrested on mesne process in any civil action for one hundred dollars or upward, founded on a demand in its nature provable against the estate of an insolvent debtor, do not give bail thereon on or before the return day of such process: or if any person be actually imprisoned more than thirty days on (b) Laws of 1846, c. 168, § 1. (a) Laws of 1838, c. 163, § 6. Insolvent Laws. mesne process or execution, in any civil action founded on such contract, for one hundred dollars or upwards or if any person whose goods or estate are attached on mesne process in any civil action founded on such contract, for one hundred dollars or upwards, do not within fourteen days from the return day of the writ, if the term of the court to which the process is returnable shall so long continue, or on or before the last day of said term, if said court shall sooner rise, dissolve the attachment, any creditor having a demand against such person to the amount of one hundred dollars (although the debt may not have become payable), in its nature provable against his estate, may within ninety days, and not after, petition the commissioner for the county where the debtor resides, that a warrant may issue against the estate of said debtor, and the usual proceedings in insolvency be had. And if the facts set forth in such petition appear to be true, the commissioner will issue a warrant, and the usual proceedings in insolvency will be had, as if on a voluntary petition of said debtor. (a) And if any person remove himself, or his property, or any part thereof, from the commonwealth, with intent to defraud his creditors, or conceal himself to avoid arrest, or his property or any part thereof to prevent its being attached or taken on any legal process, or procure himself or his property to be arrested, attached, or taken on any legal process, or make any fraudulent conveyance or transfer of his property, or any part thereof, then any of his creditors whose claims provable against his estate amount to one hundred dollars, may apply by petition, stating the facts and the nature of said claim or claims, verified by oath, to the commissioner of the county where the debtor resides or last resided, praying that his estate may be seized and distributed according to law; and after due notice to the debtor, and a hearing of the petitioners and debtor, or his default to appear, if the facts stated in said petition appear to be true, the master will issue his warrant to take possession of the estate of said debtor, and the usual proceedings in insolvency will be had. (b) Insolvency of Copartners.—A warrant may be issued against partners on their petition, or that of one of them, or on the petition (a) Laws of 1838, c. 163, § 19. Laws of 1844, c. 178, § 12. Insolvent Laws. of a creditor, in the manner herein provided for. On such warrant the joint stock and property of the company and the separate estate of each of the partners will be taken, excepting the parts exempted from attachment, and the joint and separate creditors may prove their respective debts. The assignees will be chosen by the company creditors, and they will keep separate accounts of the joint property of the company and the separate estate of each member, and after deducting from the whole amount received by the assignees all their expenses and disbursements, the net proceeds of the joint stock will go to pay the company creditors, and the net proceeds of the separate estate of each partner will be appropri ated to pay his separate creditors. If any balance remain from the separate estate of any partner, after paying his separate debts, it will be added to the joint stock; and any balance of the joint stock, after payment of the joint debts, will be appropriated among the several estates of the separate partners. When the general partners in any limited partnership formed according to the thirtyfourth chapter of the Revised Statutes, become insolvent, the same proceedings may be had, except that the separate estates and separate debts of the special partner in such limited partnerships will not be subject to any of the proceedings against such partnerships. (a) Discharge, when granted-what prevents it from being granted, or makes it void after it is granted, &c.—No insolvent whose assets do not pay fifty per cent. of the claims proved against his estate can receive a discharge under this act (act went into effect June 9th, 1848), or the acts to which it is in addition, unless a majority in number and value of his creditors who have proved their claims assent thereto, in writing, within six months after the date of the assignment; and in no case will a certificate of discharge be granted till the third meeting of creditors; and such discharge will be null and void, if the debtor, or any person in his behalf shall have procured the assent of any creditor thereto by any pecuniary consideration. (b) No claim for necessaries furnished the debtor or his family will be barred by the discharge, unless such claim be proved against the estate. (a) Laws of 1838, c. 163, § 21. (b) Laws of 1848, c. 304, § 10. Insolvent Laws. No discharge of a debtor will be granted or valid, if said debtor be a second time insolvent under these acts, and the assets of his estate fail to pay fifty per cent. of the claims proved against him, unless three-fourths in value of the creditors whose claims are proved shall assent thereto in writing. No discharge will be granted or valid if said debtor shall be a third time insolvent under these acts. (a) A certificate of discharge granted to a debtor will be void if he have willfully sworn falsely as to any material fact in the course of the proceedings, or have fraudulently concealed any of his estate or effects, or books or writings relating thereto, or if in contemplation of becoming insolvent, or obtaining a discharge under this act, he make any payment, assignment, sale, or transfer, either absolute or conditional, of any part of his estate, with a view to give a preference to any creditor or any person who is or may be liable as an indorser or surety for such debtor, or to any other person who may have claim or demand against him: provided that this clause shall not apply to security given for the performance of any contract, when the agreement for such security is part of the original contract, and the security is given at the time of making the contract. (b) No discharge will be granted or valid, if a debtor within six months before the filing the petition by or against him, procure his estate, real or personal, to be attached, sequestered, or seized on execution, or being insolvent or in contemplation of insolvency, directly or indirectly make any assignment, sale, transfer, or conveyance, absolute or conditional, of any part of his estate, real or personal, intending to give a preference to a pre-existing creditor, or any person who is or may be liable as indorser or surety for such debtor, unless such debtor make it appear that, at the time of making such preference, he had reasonable cause to believe himself solvent. (c) No discharge will be granted or valid if the debtor, when insolvent, within one year next before the filing of the petition by or against him, pay or secure, in whole or in part, any borrowed money or pre-existing debt, or any liability of his or for him, if the (a) Laws of 1844, c. 178, §§ 5, 6. (b) Laws of 1838, c. 163, § 10. (c) Laws of 1841, c. 124, §3. |