« AnteriorContinuar »
or dealing in exchange, or as a banker, broker, factor, underwriter, or marine insurer, shall, with intent unlawfully to delay or defraud his or her creditors, depart from the state in which such person usually resides, or remain absent therefrom, or conceal him or herself therein, or keep his or her house, so that he or she cannot be taken, or served with process, or willingly or fraudulently procure him or herself to be arrested, or his or her lands, goods, money or chattels to be attached, sequestered, or taken in execution, or shall secretly convey his or her goods out of his or her house, or conceal them to prevent their being taken in execution, or make, or cause to be made, any fraudulent converance of his or her lands, or chattels, or make or admit any false or fraudulent security, or evidence of debt, or being arrested for debt, or having surrendered him or herself in discharge of bail, shall remain in prison two months, or more, or escape therefrom, or whose lands or effects being attached by process issuing out of, or returnable to, any court of common law, shall not, within two months after written notice thereof, enter special bail and dissolve the same, or in districts in which attachments are not dissolved by the entry of special bail, being arrested for debt after his or her lands and effects, or any part thereof, have been attached for a debt or debts amounting to one thousand dollars or upwards, shall not, upon notice of such attachment, give sufficient security for the payment of what may be recovered in the suit in which he, or she, shall be arrested, at or before the return day of the same, to be approved by the judge of the district, or some judge of the court out of which the process issued upon which he is arrested, or to which the same shall be returnable, every such person shall be deemed and adjudged a bankrupt : Provided, that no person shall be liable to a commission of bankruptcy, if the petition be not preferred, in manner hereinafter directed, within six months after the act of bankruptcy committed.
2. SECT. II. The judge of the district court of the united states, for the district where the debtor resides, or usually resided at the time of committing the act of bankruptcy, upon petition, in writing, against such person or persons being bankrupt, to him to be exhibited by any one creditor, or by a greater number, being partners, whose single debt shall amount to one thousand dollars, or by two creditors, whose debt shall amount to one thousand five hundred dollars, or by more than two creditors, whose debts shall amount to two thousand dollars, shall have power, by commission under his hand and seal,to appoint such good and substantial persons, being citizens of the united states, and resident in such district, as such judge shall deem proper, not exceeding three, to be commissioners of the said bankrupt, and in case of vacancy or refusal to act, to appoint others from time to time as occasion may require : Provided always, that before any commission shall issue, the creditor or creditors petitioning shall make affidavit or solema affirmation before the said judge, of the truth of his, her, or their debts, and give bond, to be taken by the said judge, in the name, and for the benefit of the said party so charged as a bankrupt, and in such penalty, and with such surety as he shall require, to be conditioned for the proving of his, her or their debts, as well before the commissioners as upon a trial at law, in case the due issuing forth of the said commission shall be contested, and also for proving the party a bankrupt, and to proceed on such commission, in the manner herein prescribed. And if such debt shall not be really due, or after such commission taken out it cannot be proved that the party was a bankrupt, then the said judge shall, upon the petition of the party aggrieved, in case there be occasion, deliver such bond to the said party, who may sue thereon, and recover such damages, under the penalty of the same, as, upon trial at law, he shall make appear he has sustained, by reason of any breach of the condition thereof. (See postea 47, and Judiciary 90.]
3. SECT. III. Before the commissioners shall be capable of acting, they shall respectively take and subscribe the following oath or affirmation, which shall be administered by the judge issuing the commission, or by any of the judges of the supreme court of the united states, or any judge, justice, or chancellor of any state court, and filed in the office of the clerk of the district court : « 1, A. B. do swear, or affirm, that I will faithfully, impartially, and honestly, according to the best of my skill and knowledge, execute the several powers and trusts reposed in me, as a commissioner in a commission of bankruptcy against
and that without favor or affection, prejudice or malice." And the commissioners, who shall be sworn as aforesaid, shall proceed, as soon as may be, to execute the same ; and upon due examination, and sufficient cause appearing against the party charged, shall and may declare him or her to be a bankrupt : Provided, That before such examination be had, reasonable notice thereof, in writing, shall be delivered to the person charged as a bankrupt; or if he, or she be not found at his or her usual place of abode, to some person of the family above the age of twelve years, or if no such person appear, shall be fixed at the front or other public door of the house, in which he or she usually resides, and thereupon it shall be in the power of such person, so charged as aforesaid, to demand before, or at the time appointed for such examination, that a jury be empannelled to inquire into the fact or facts, alleged as the causes for issuing the commission, and on such demand being made, the inquiry shall be had before the judge granting the commission, at such time as he may direct, and in that case, such person shall not be declared bankrupt, unless, by the verdict of the jury, he or she shall be found to be within the description of this act, and shall be convicted of some one of the acts described in the first section of this act : Provided also, that any commission which shall be taken out as aforesaid, and which shall not be proceeded in as aforesaid, within thirty days thereafter, may be superceded by the said judge, who shall have granted the same, upon the application of the party thereby charged as a bankrupt, or of any creditor of such person, unless the delay shall have been unavoidable, or upon a just occasion.
4. Sect. IV. The commissioners so to be appointed, shall have power, forthwith, after they have declared such person a bankrupt, to cause to be apprehended, by warrant under their hands and seals, the body of such bankrupt, wheresoever to be found, within the united states : Provided, they shall think, that there is reason to apprehend that the said bankrupt intends to abscond or conceal him or herselt,
and in case it be necessary, in order to take the body of the said bankrupt, shall have power to cause the doors of the dwelling house of such bankrupt, to be broken, or the doors of any other house in which he or she shall be found.
5. Sect. V. It shall be the duty of the commissioners so to be appointed, forthwith, after they have declared such person a bankrupt, and they shall have power, to take into their possession, all the estate, real and personal, of every nature and description to which the said bankrupt may be entitled, either in law or equity, in any manner whatsoever, and cause the same to be inventoried and appraised to the best value, (his or her necessary wearing apparel, and the necessary wearing apparel of the wife and children, and necessary beds and bedding of such bankrupt only excepted) and also to take into their possession, and secure, all deeds and books of account, papers and writings belonging to such bankrupt ; and shall cause the same to be safely kept, until assignees shall be chosen or appointed, in manner bereafter provided.
6. Sect. VI. The said commissioners shall forth with, after they hare declared such person a bankrupt, cause due and sufficient public notice thereof to be given, an lin such notice shall appoint some convenient time and place for the creditors to meet, in order to choose an assignee or assignees of the said bankrupt's estate and effects ;-at which meeting the said commissioners shall admit the creditors of sech bankrupt, to prove their debts ;---and where any creditor shall reside at a distance from the piace of such meeting, shall allow the debt of such creditor to be proved by oath or affirmation), made before some competent authority, and duly certified, and shall permit any person dely authorized by letter of attorney from such creditor, due proof of the execution of such latter of 'ttorney being first made, to vote in the choice of an assignee or assignees of such bankrupt's estate and effects, in the place and stead of such creditor : And the sail commissioners shall assign, transfer or deliver over, all and singular the said bankrupi's estate and effects, aforesaid, with all muniments and evidences thereof, to such person or persons as the major part, ia value, of such creditors, according to the several debts then proved, shall choose as aforesaid : Provided always, that in such choice, no vote shall be given by, orin behalf of any creditor whose debt shall not amount to two hundre: dollars.
7. SECT. VII. It shall be lawful for the said commissioners, as often as they shall see cause, for the better preserving and securing the bankrupt's estate, before assignees shall be chosen as aforesaid, immediately to appoint one or more assignee or assignees of the estate and effecis aforesaid, or any part thereof; which assignee or assignees aforesaid, or any of them, may be removed at the meeting of the cruditors, so to be appointed as aforesaid, for the choice of assignees, if such creditors, entitled to vote as aforesaid, or the major part, in value, of them, shall think fit ; and such assignee or assignees as shall by so removed, shall deliver up all the estate and effects of such bankrupt, which shall have come to his or their hands or possession, unto such other assignee or assignces as shall be chosen by the creditors as
aforesaid ; and all such estate and effects shall be, to all intents and purposes, as effectually and legally vested in such new assignee or assignees, as if the first assignment had been made to him or them, by the said cominissioners ; and is such first assignee or assignees shall refuse or neglect, for the space of ten days next after notice, in writing, from such new assignee or assignees, of their appointment, as aforesaid, to deliver over as aforesaid, all the estate and effects as aforesaid, every such assignee or assignees, shall, respectively, forfeita sum not exceeding five thousand dollars, for the use of the creditors, and shall moreover be liable for the property so detained.
8. Sect. VIII. At any time, previous to the closing of the accounts of the said assignee or assignees, so chosen as aforesaid, it shall be lawful for such creditors of the bankrupt, as are hereby authorized to vote in the choice of assignees, or the major part of them, in value, at a regular meeting of the said creditors, to be called for that purpose, by the said commissioners, or by one fourth, in value, of such creditors, to remove all or any of the assignees chosen as aforesaid, and to choose one or more in his or their place and stead : And such assignee or assignees as shall be so removed, shall deliver up all the estate and effects of such bankrupt, which shall have come into his or their hands or possession, unto such new 'assignee or assignees as shall be chosen by the creditors, at such meeting ; and all such estate and effects shall be, to all intents and purposes, as effectually and legally vested in such new assignee or assignees, as if the first assignment had been made to him or them, by the said commissioners : And if such former assignee or assignees shall refuse or neglect, for the space of ten days next after notice, in writing, from such new assignee or assignees, of their appointment, as aforesaid, to deliver over, as aforesaid, all the estate and effects aforesaid, every such former assignee or assignees, shall, respectively, forfeit a sum not exceeding five thousand dollars, for the use of the creditors, and shall moreover be liable for the property so detained.
9. Słct. IX. Whenever a new assignee or assignees shall be chosen as aloresaid, no suit at law orin equity shall be thereby abated ; but it shall and may be lawful for the court in which any suit may depend, upon the suggestion of a removal of a former assignee or assignees, and of the appointment of a new assignee or assignees, to allow the name ofsuch new assignee or assignees, to be substituted in place of the name or names of the former assignee or assignees, and thereupon the suit shall be prosecuted in the name or names of the new assignee or assignees, in the same manner as if he or they had originally commenced the suit in his or their own names.
10. Sect. X. The assignment or assignments of the commissioners of the bankrupt's estate and effects as aforesaid, made as aforesaid, shall be good at law or in equity, against the bankrupt ; and all persons claiming by, from, or under such bankrupt, by any act done at the time, or after he shall have committed the act of bankruptcy, upon which the commission issued : Provided always, that in case of a bona fide purchase made before the issuing of the commission from or under such bankrupt, for a valuable consideration, by any person having 20 knowledge, information or notice of any act of bankruptcy committed, such purchase shall not be invalidated or impeached.
11. Sect. XI. The said commissioners shall have power, by deed or deeds, under their hands and seals, to assign and convey to the assignee or assignees to be appointed or chosen as aforesaid, any lands, tenements, or hereditaments, which such bankrupt shall be seised os, or entitled to, in fee tail, at law, or in equity, in possession, remainder or reversion, for the benefit of the creditors ; and all such deeds, being duly executed and recorded according to the laws of the state within which such lands, tenements or hereditaments may be situate, shall be good and effeclual against all persons whom tie said bankrupt, by common recovery, or other means, might or could bar of any estate, right, title or possibility of or in the said lands, tenements, or hereditaments.
12. SECT XII. If any bankrupt shall have conveyed or assured any lands, goods or estate, unto any person, upon condition or power of redemption, by payment of money or otherwise, it shall be lawful for the commissioners, or for any person by them duly authorized for that purpose, by writing, under their hands and seals, to make tender of money or other performance according to the nature of such condition, as fully as the bankrupt might have done ; and the cominissioners, after such performance or tender, shall have power to assign such lands, goods and estate, for the benefit of the creditors, as fully and effectually as any other part of the estate of such bankrupt.
13. SECT. XIII. The commissioners aforesaid shall have power to assign, for the use aforesaid, all the debts due to such bankrupt, or to any other person for his or her use or benefit ; which assignment shall rest the property and right thereof in the assignee or assignees of such bankrupt, as fully as if the bond, judgment, contract or claim, had originally belonged or been made to the said assignees ; and after the said assignment, neither the said bankrupt, nor any person acting as trustee for him or her, shall have power to recover or discharge the same, nor shall the same be attached as the debt of the said bankrupt ; but the assignee or assignees aforesaid shall have such remedy to recover the same, in his or their own name or names, as such bankrupt might or could have had, if no commission of bankruptcy had issued: And when any action in the name of such bankrupt shall have been commenced, and shall be pending for the recovery of any debt or effects of such tankrupt, which shall be assigned, or shall, or might become vested in the assignee or assignees of such bankrupt as aforesaid, then such assignee or assignces may claim to be, and shall be thereupon admitted to prosecute such action in his or their name, for the use aud benefit of the creditors of such bankrupt ; and the same judgment shall be rendered in such action, and all attachments or other security taken therein, shall be in like manner holden and lia. ble, as if the said action had been originally commenced in the name of such assignee or assignees after the original plaintiff therein had become a bankrupt as aforesaid : Provided, that where a debior shail have, bona fide, paid his debt to any bankrupt, without notice that such person was bankrupt, he or she shall not be liable to pay the same to ihe assignee or assignees.