« AnteriorContinuar »
receipt shall be a full and effectual discharge to such assignee for so much as he shall fairly pay, pursuant to such order as aforesaid.
30. SECT. XXX. Within eighteen months, next after the issuing of the commission, the assignee or assignees shall make a second dividend of the bankrupt's estate and effects, in case the same were not wholly divided upon the first dividend, and shall cause due public notice to be given of the time and place the said commissioners intend to meet, to make a second distribution of the bankrupt's estate and effects, and for the creditors who shall not before have proved their debts, to come in and prove the same; and at such meeting, the said assignees shall produce, on oath or solemn affirmation as aforesaid, their accounts of the bankrupt's estate and effects, and what, upon the balance thereof, shall appear to be in their hands, shall by like order of the coinmissioners, be forthwith divided amongst such of the bankrupt's creditors as shall have made due proof of their debts, in proportion to their several and respective debts ; which second divi. dend shall be final, unless any suit at law, or equity, be depending, or any part of the estate standing out, that could not have been disposed of, or that the major part of the creditors shall not have agreed to be sold or disposed of, or unless some other or future estate or effects of the bankrupt shall afterwards come to, or rest in the said assignees, ia which cases the sairl assignees shall, as soon as may be, convert such future or other estate and effects into money, and shall, within two months after the same be converted into money, by like order of the commissioners, divide the same among suci bankrupt's creditors as shall have made due proof of their debt under such commission.
51. SFCT. XXXI. In the distribution of the bankrupt's effects there shall be paid to every of the creditors a portion-rate, according to the amount of their respective debts, so that every creditor having security for his debt, by judgment, statute, recogoizance, or specialty, or having an attachment under any of the laws of the individual states, or of the united states, on the estate of such bankrupt, (Provided there be no execution executed upon any of the real or personal estate of such bankrupt, before the time he or she became bankrupts) shall not be relieved upon any such judgment, statute, recognizance, specialty, or attachment, for more than a rateable part of his debt, with the other creditors of the bankrupt.
52. Sect. XXXII. The assignces shall keep one or more distinct book, or books of account, wherein he or they shali duly enter all sums of money or effects, which he or they shall have received, or got into bis or their possession, of the said bankrupt's estate, to which books of account, every creditor who shall have proved his or her debt, shall, at all reasonable times, have free resort, and inspect the same as often as he or she shall think fit.
33. SECT. XXXIII. Every bankrupt, not being in prison or custody, skall, at all times after his surrender, be bound to attend the assignees, upon every reasonable notice, in writing, for that purpose, given or left at the usual place of his or her alode, in order to assist in making out the accounts of the said bankrupi's estate and effects, and to attend
any court of record, to be examined touching the same, or such other business, as the said assignees shall judge necessary, for which he shall receive three dollars per day.
34. Sect. XXXIV. All and every person and persons who shall become bankrupt as aforesaid, and who shall, within the time limited by this act, surrender him or herself to the commissioners, and in all things conform as in and by this act is directed, shall be allowed five per cent. upon the nett produce of all the estate that shall be recovered in and received, which shall be paid unto him or her by the assignee or assignees, in case the nett produce of such estate, after such allowance made, shall be sufficient to pay the creditors of said bankrupt who shall have proved their debts under such commission, the amount of fifty per cent. on their said debts, respectively, and so as the said five per cent. shall not exceed in the whole, the sum of five hundred dollars; and in case the nett produce of the said estate shall, over and above the allowance hereafter mentioned, be suficient to pay the said creditors seventy-five per cent. on the amount of their said debts, respectively, that then the said bankrupt shall be allowed ten per cent. on the amount of such nett produce, to be paid as aforesaid, so as such ten per cent. shall not, in the whole, exceed the sum of eight hundred dollars ; and every such bankrupt shall be discharged from all debts by him or her due or owing, at the time he or she became bankrupt, and all which were or might have been proved under the said commission; and in casc any such bankrupt shall afterwards be arrested, prosecuted or impleaded, for or on account of any of the said debts, such bankrupt may appear without bail, and may picad the general issue, and give this act, and the special matter in evidence : And the certificate of such bankrupt's conforming, and the allowance thereof, according to the directions of this act, shall be, and shall be allowed to be sufficient evidence, prima facie, of the the party's being a bankrupt within the meaning of this act, and of the commission and other procecdings precedent to the obtaining such certificati', and a verdict shall thereupon pass for the defendant, unless the plaintiff in such action can prove the said certificate was obtained unfairly, and by fraud, or unless he can make appear any concealment of estate or effects, by such bankrupt to the value of one hundred dollars : Prvoided, That no such discharge ofa bankrupt, shall release or discharge any person who was a partner with such bankrupt, at the time he or she became bankrupt, or who was then jointly held or bound with such bankrupt for the same debt or debts fram which such bankrupt was discharged as aforesaid.
35.SECT. XXXV. Provided always, That is the nett proceeds ofthe bankrupt's estate, so to be discovered, recovered and received, shall not amount to so much as will pay alland every of the creditors of the said bankrupt, who shall have proved their debts under the said commission, the amount of fiftv per cent. on their debts respectively, after all charges first dedictc. that then, and in such case, the bankrupt shall not be allowed five per centum on such estate as shall be recovered in, lut shall have and be paid by the assignees so much money as the commissioners shall think fit to allow, not more than three hundred dollars, nor exceeding three per centum on the nett proceeds of the said bankrupt's estate.
36. Szct. XXXVI. Provided also, That no person becoming a bankrupt according to the intentand provisions ofthis act, shall be entitled to a certificate of discharge,orto any of the benefits ofthe act, unless the commissioners shall certify under their hands, to the judge of the district within which such commission issues, that such bankrupt hath made a full discovery of his or her estate and effecls, and in all things conformed him or herself to the directions of this aci, and that there doth not appear to them any reason to doubt of the truth of such discovery, or that the same was not a full discovery of the said bankrupt's estate and effects; or unless the said judge should be of opinion that the said certificate was unreasonably denied by the commissioners ; and unless two thirds, in number and in value, of the creditors of the bankrupt, who shall be creditors for not less than fifty dollars respectively, and who shall have duly proved their debts under the said commission, shall sign such certificate to the judge, and testify their consent to the allowance of a certificate of dischargc, in pursuance of this act; which signing and consent shall be also certified by the commissioners ; but the said commissioners shall not certify the same till they have proof by afidavit or affirmation, in writing, of such creditors, or of the persons respectively authorized for that purpose, signing the said certificate ; which affidavit or affirmation, together with the letter or power of attorDey to sign, shall be laid bcfore the judge of the district within which such commission issues, in order for the allowing the certificate of discharge, and the said certificate shall not be allowed unless the banka Tuga make oath or affirmation in writing, that the certificate of the commissioners, and consent of the creditors thereunto, were obtained fairly and without fraud ; and any of the creditors of the said banke rupt are allowed to be heard, if they shall think fit, before the respective persons aforesaid, against the making or allowing of such certificates by the commissioners or judge.
37. SECT. XXXVII. If any creditor, or pretended creditor of any bankrupt, shail exhibit to the commissioners any fictitious or false debt, of demand, with intent to defraud the real creditor's of such bankrupt, and the bankrupt shall refuse to make discovery thereof, and suffer the fair creditors to be imposed upon, he shall lose all title to the allowance upon the amount oflis cflects and to accrtificate of discharge as aforesaid, tor shall he beentitled to the said allowance or certificate, if he has lost, at any one time fifty dollars, or in the whole three hundred dollars, after the passing of this act, and within twelve months before he became a bankrupt, by any manner of gaming or wagering whatever.
38. SECT. XXXVII. If any bankrupt, who shall have oltained his certificate, shall be taken in execution or detained in prison, on account of any debts owing before he became a bunkrupt, by reason that judgment was obtained before such certificate was allowed, it shall be lawful for any of the judges of the court wherein judgment was so obtained, or for any court, judge, or justice, wit in the distriet in which Euch bankrupt shall be cetained, having powers to award or allow the writ of habeas corpus on such bankrupt producing his certificate so as aforesaid allowed, to order any sheriff or gaoler who shall have such bankrupt in custody, lo discharge such bankrupt without see or charge,
first giving reasonable notice to the plaintiff, or his attorney, of the motion for such discharge.
39. Sect. XXXIX. Every person who shall have bona fide given credit to or taken securities, payable at future days, from persons who are or shall become bankrupts, not due at the time of such persons becoming bankrupt, shall be admitted to prove their debts and contracts, as if they were payable presently, and shall have a dividend in proportion to the other creditors, discounting, where no interest is pay. able, at the rate of so much per centum per annum, as is equal to the jawfui interest of the state where the debt was payable; and the obligee of any bottomry or respondentia bond, and the assured in any policy of insurance, shall be adınitted to claim, and after the contingency orloss, to prove the debt thereon, in like manner as if the same had happened before issuing the commission ; and the bankrupt shall be discharged from such securities, as if such money had been due and payable before the time of his or her becoming bankrupt; and such creditor's may petition for a commission, or join in petitioning.
40. Sect. XL. In case any person, committed by the commissioner's warrant, shall obtain a habeas corpus, in order to be discharged, and there shall appear any insufficiency in the form ofthe warrant, it shall be lawful for the court or judge before whom such party shall be brought by habeas corpus, by rule or warrant, to commit suich persons to the same prison, there to remain until he shall conform as aforesaid, unless it shall be made to appear that he had fully answered all law ful questions put to him by the commissioners; or in case such person was committed for not signing his examination, unless it shall appear that the party had good reason for refusing to sign the same, or that the commissioners had exceeded their authority in making such commitment; and in case the guoler to whom suci person shall be committed, shall wilfully or negligently suffer such person to escape, or to go without the doors or walls of the prison), such gaoler shall, for such offence, being convicted thereof, forfeit a sum not exceeding three thousand dollars for the use of the creditors.
41. SECT. XLI. The gaoler shall, upon the request of any creditor, having proved his debt, and shewing a certiicate thereof, under the hands of the commissioners, which the commissioners shall give without fee or reward, produce the person so committed ; and in case such gaoler shall refuse to shew such person to such creditor, requesting the same, such person shall be considered as having escaped, and the gaoler or sheriff so refusing, shall be liable as for a wilful escape.
42. SECT. XLII. Where it shall appear to the said commissioners that there hath been muiual credit given by the bankrupt, and any other person, or muual debts between them at any time before such person became bankrupt, the assignee or assignees of the estate shall state the account ben een them, and one debt may be set off against the other, and wliat shall appear to be due on either side on the balance of such account after suci) set oil, and no more, shall be claimed or paid on elther side respectively.
43. Szcr. XLIII. It shall and may be lawful to and for the assignee or assigunes of any bankrupt's cstate ad effects, under the direction ol
the commissioners, and by and with the consent of the major part in value of such of the said bankrupt's creditors, as shall have duly proved their debts under the commission, and shall be present at any meeting of the said creditors, to be held in pursuance of due and public notice for that purpose given, to submit any difference or dispute for, on account of, or by reason or means of, any matter, cause or thing whatsoever, relating to such bankrupt, or to his or her estate or effects, to the final end and determination of arbitrators to be chosen by the said commiscioners, and the major part in value of such creditors as shall be present at such meeting as aforesaid, and the party or parties with whom they shall have such difference or clispute, and to perform the award of such arbitrators, or otherwise to compound and agree the matter in difference and dispute as aforesaid, in such manner as the said assignee or assignees under the direction and with the consent aforesaid, shall think fit and can agree ; and the same shall be binding on the several creditors of the said bankrupt, and the said assignee or assignees are hereby indemnified for what they shall fairly do according to the direca ticas aforesaid.
44. SECT. XLIV. The assignees shall be, and hereby are vested with full power to dispose of all the bankrupt's estate, real and personal, at public auction or vendue, without being subject to any tax, duty, imposition, or restriction, any law to the contrary notwithstanding.
45. SECT. XLV. If after any commission of bankruptcy, sued forth, the bankrupt happen to die before the commissioners shall have distributed the effects, or any part thereof, the commissioners shall, nevertheless, proceed to execute the commission, as fully as they might have done if the party were living.
46. Sect. XLVI. Where any commission of bankruptcy shall be delivered to the commissioners, therein named, to be executed, it shall and may be lawful for them before they take the oath or affirmation of qualification, to demand and take from the creditor or creditors prosecuting such commission, a bond with one good security, if required, in the penalty of one thousand dollars, conditioned for the payment of the costs, charges, and expenses, which shall arise and accrue upon the prosecution of the said commission : Provided always, that the expenses, so as aforesaid to be secured and paid by the petitioning creditor or creditors, shall be repaid to him or them by the commissioners or assignees, out of the first monies arising from the bankrupt's estate or effects, if so much be received therefrom.
47. Sect. XLVII. The district judges, in each district respectively, shall fix a rate of allowance to be made to the commissioners of bankruptcy, as compensation of services to be rendered under the commission, and it shall be lawful for any creditor, by petition to the district judge, to except to any charge contained in ihe account of the commissioners : And the said judge, afier hearing the commissioners, may in a summary way decide upon the validity of such exception. (See antea 2, and Judiciary 90.]