« ForrigeFortsett »
the "assignment, in any estate, real or personal; but no contingent interest passes, unless it shall become vested within
public officers, misconduct in office and frauds. By the new constitution of New-Jersey in 1844, imprisonment is abolished in actions for debt, or on any judgment upon contracts, unless in cases of fraud. But imprisonment for debt is still retained under mitigated modifications in Maine, RhodeIsland, Maryland, Virginia, N. and S. Carolina, Georgia, Arkansas, Kentucky, Missouri, Illinois, Indiana, and the District of Columbia. See Kinne on Imprisonments for Debt, New-York, 1842. Act of Congress, March 3d, 1843, ch. 98. The constitution of Rhode Island of 1842, and which went into operation in May, 1843, declares that the person of a debtor, where there is not strong presumption of fraud, ought not to be continued in prison, after he has delivered up his property for the benefit of his creditors. An act of congress of 14th January, 1841, abolished imprisonment for debt under process in the federal courts, in all cases in which, by the laws of the state in which the court is held, such imprisonment has been abolished. In 1838, an act was passed by the British parliament, 1 and 2 Vic. c. 110, abolishing imprisonment for debt on mesne process, except under special order, when the debtor is about to abscond, and requiring the remedies against property to be exhausted before it can be permitted on final process. The execution against the debtor's property, reaches the whole profits of the real estate, instead of a moiety as before, and money or bank notes, checks, bills of exchange, promissory notes, specialties, and other securities for money, may be taken on fieri facias. So stocks, funds, or annuities, or any stock or shares in any public company, may be attached for the payment of the judgment creditor. The creditor has full power over all the debtor's property, and the latter is also liable, as before, to eventual imprisonment on execution.
But it is understood that the English commissioners, appointed to inquire into the laws affecting bankrupts and insolvents, have recently (1840) made an interesting report on the subject, in which they condemn as unjust and impolitic the existing laws, holding the future acquired property of insolvent debtors who are discharged, liable for their pre-existing debts; and they recommend that this distinction between the operation of bankrupt and insolvent laws be abolished; and also, that imprisonment for debt, on final process by ca. sa., except in special cases, h". also abolished. In 1842 the cessio bonorum act was introduced into the British parliament by Lord Brougham, abolishing virtually the practice of imprisonment for debt. In April, 1844, Lord Cottenham introduced a bill into the House of Lords, for abolishing entirely imprisonment for debt on mesne process and on execution, in cases free from fraud or violence, and that the discharge of insolvents as well as bankrupts should protect all after acquired property. It was during the Samnite war that the Roman law was passed prohibiting personal slavery for debt, and confining the creditor's remedy to the prothree years after making the assignment and then it passes.* This I apprehend to be the general effect of the assignment, in every state, and under the English law. Possibilities, coupled with an interest, are assignable, but not bare possibilities, such as the expectancy of an heir.b The assignment does not affect property held by the debtor in trust" nor does the assignment by the insolvent husband affect the property settled to the separate use of the wife, free and clear of her husband.4 It has been repeatedly held, that the insolvent's discharge applied only to debts existing when the petition, inventory, and schedule of debts were presented, and not so as to cover debts contracted between that time, and the time of the discharge. The distinction is founded on obvious principles of justice; for the computation of the amount of the debts and creditors, is founded upon the inventory and schedule accompanying the petition, and the assignment and discharge relate to them.e It is likewise the general po*401 licy of all insolvent *laws, to distribute the proper
perty of the debtor, but the insolvent debtor nevertheless forfeited all his political rights. Dr. Arnold's Hist. of Rome, vol. 2, 277.
>N.Y. Revised Statutes, vol ii. p. 21. The English bankrupt laws have a more extensive and strict operation upon the bankrupt's property; for the assignment, whenever made by the commissioners, operates by relation, so as to carry to the assignees all the property which the bankrupt had at the time of the commission of an act of bankruptcy. Vide supra, p. 390, n. The bankrupt is incapable of affecting his estate by any act of his, after an act of bankruptcy, though before the issuing of the commission. Combe v. Bruges, 13 Price's Exch. Rep. 137.
» Carlton v. Loighton, 3 Mericale's Rep. 667. Comegys v. Vasse, I Peters' V. S. Rep. 193. 220.
< Kip v. Bank of New-York, 10 Johns. Rep. 63. Dexter v. Stewart, 7 Johns. Ch. Rep. 52. Yates &, M'Intyre v. Curtis, 5 Mason's Rep. 80.
d Adamson v. Armitage, Cooper's Eq. Rep. 283. Wagstaffv. Smith, 9 Vesey, 520. Sco Mr. Ingraham's View of the Insolvent Laws of Pennsylvania, 2d edit. 223—227.
• Ernest v. Sciaccaluga, Cowp. Rep. 527. Pease v. Folger, 14 Mass. Rep. 264. M'Neilly v. Richardson, 4 Cowen's Rep. 607. lngraham on Insolvency, 168, 169.
ty assigned rateably among all the creditors, subject, nevertheless, to existing legal liens, and priorities existing before the asssignment and under the NewYork insolvent laws, a creditor cannot become a petitioning creditor in respect to any debt secured by a legal lien, unless he previously relinquishes that lien for the general benefit of the creditors.b
(3.) The case of absconding and absent debtors may be referred to this head of insolvency. The attachment law of New-York, (like insolvent acts, and the acts for the relief of debtors from imprisonment,) is a legal mode by which a title to property may be acquired by operation of law."5 When the debtor, who is an inhabitant of New-York, absconds, or is concealed, a creditor resident within or out of the state, to whom he owes one hundred dollars, or any two, to whom he owes one hundred and fifty dollars, or any three, to whom he owes two hundred dollars, may, on application to a judge or commissioner, and on due proof of the debt, and of the deparlure or concealment, procure his real and personal estate to be attached; and, on due public notice of the proceeding, if the debtor does not, within three months, return, and satisfy the creditor, or appear and offer to contest the fact of having absconded, or offer to appear and contest the validity of the demand, and give the requisite security, then trustees are to be appointed, who become vested with the debtor's estate; and they are to collect and sell it, and settle controversies, and make dividends among all his
• This is the case in most, and perhaps now in all the states, though equality of distribution was understood not to exist some few yean past in Maine, New-Hampshire, and Vermont, and that the race of diligence among creditors was kept up.
» N. Y. Reeised Statutes, vol. ii. p. 36. 46. Harth v. Uibbes, 4 M'Cord's Rep. 8.
• N. Y. Reeised Statutes, vol. ii. p. 3—14. The provisions of ths statute are minute and full of details, and a general outline only is given in the text. See also N. Y. Statute of May 8th, 1845, ch. 153 amending the creditors in the mode prescribed. From the time of the notice, all sales and assignments by the debtor are declared to be void.1 1 If the debtor resides out the state, and is indebted on a contract made within the state, or to a creditor residing within the state, although upon
a contract made elsewhere, his property is lia*402 ble to be attached and *sold in like manner;
but the trustees are not to be appointed until nine months after public notice of the proceeding.1" Perishable goods, other than vessels, when attached under the absconding debtor act, may be immediately sold and converted into money; and if the sheriff, under the attachment, seizes property claimed by third persons, he is to summon a jury, and to take their inquisition as to the title to the property claimed. If any American vessel belonging to the debtor be attached under these proceed ings, it may be released on the claimant of the vessel giving security to pay the amount of the valuation of the vessel to the trustees or to the debtor, as the case may be; and if it be a foreign vessel, claimed by a third person, the attaching creditor must give security to prosecute the attachment, and pay the damages, if it should appear that the vessel belonged to the claimant.
It has been decided, that a creditor, having an unliquidated demand resting in contract, is a creditor within the absconding debtor act, and competent to apply for the attachment.0 It was formerly held, that the creditor who instituted proceedings against an absconding debtor,
* The colony act of New-Brunswick transfers to the trustees all rights to action of the debtor existing at the time of their apppointment. Ritchie T. Boyd, Kcrr's N. B. Rep. 264.
b The personal representatives of a deceased debtor are not liable to be proceeded against. under the attachment laws, in New-York. Jackson v. Walworth, 1 Johns. Cas. 372. In the matter of Hurd, 9 Wendell, 465But the proceedings by attachment may be instituted by assign ees of the debt in their own names. Beasley v. Palmer, 1 Hill's Rep. 482.
• Lenox v. Howland, 3 Caines' Rep. 323. This was under the act of 1801, and the N. Y. Revised Act of 1830, covers the very case.
must be a resident within the state;a but the statute declares, that any creditor residing in or out of the state, shall be deemed a creditor within the act, and he may proceed by attorney. Under the former statute laws of New-York, the process by attachment did not^apply in the case of a foreign creditor against a debtor residing abroad, and whose debt was not contracted within the state.b The same provision still exists under the new revised statutes. Any creditor may proceed against an absconding, or concealed debtor, being an inhabitant of the state, or against any non-resident debtor, if the contract was made in New-York; but if *the con- *403 tract was made elsewhere, then the creditor must be a resident of the state.0
• Case of Fritzgerald, 2 Caines' Rep. 318. K Ex parte Schroeder, G Coteen's Rep. 603.
• JV. Y. Reeised Statutes, vol. ii. p. 3. see. 1, 2. 6. 7. Laws of N. Y. May 8th, 1845, ch. 153. Fitch's case, 2 Wendell, 219. In the matter of Brown, 21 lb. 316. The attachment process for reaching the property of absconding and absent and non-resident debtors, was a favourite measure of justice with the colonial legislatures; but in respect to non-resident debtors, it was strongly opposed by the governor and council in some of the states, as being different from the mode of recovery allowed in like coses in England. Royal instructions were communicated to the colonial governors, to refuse assent to such attachment laws, and the subject was for some time a matter of discussion and warmth between the governor and house of assembly of North Carolina. The great objection, on the part of the executive power, was, that the attachment laws, as contended for by the colony, did not place the English and American creditors on an «qual footing, but allowed the American creditor the preference, in like manner as if he had obtained for his own benefit a judgment and execution. 2 Martin's Hist. N. C. 302. Attachment laws ogainst the property real and personal, of absconding and non-resident debtors, prevail throughout the several United States; but these statute laws are not uniform on this point.
In England, the proceeding by foreign attachment is used in London, Bristol, Liverpool and Chester, but it has fallen into disuse in Oxford, Exeter and other places.
In the New-England States the trustee process has in many respects the operation of the domestic as well as foreign attachment, and it operates in a greater or less degree upon persons as well as property. The strict