*The assignment of the insolvent passes all his interest, legal and equitable, existing at the time of executing

prisonment for debt; and this provision as to women, was afterwards applied in New-York to all civil actions founded upon contract. (N. Y. Revised Statutes, vol. ii. p. 249. 428.) A provision to that effect had been recommended to the legislature, by the chancellor and judges, in January, 1819. Females were first exempted from imprisonment for debt in Louisiana and Mississippi; and imprisonment for debt in all cases free from fraud is now abolished in each of those states. The commissioners in Pennsylvania, in their Report on the Civil Code, in January, 1835, recommended that there be no arrest of the body of the debtor, on mesne process, without an affidavit of the debt, and that the defendant was a non-resident, or about to depart without leaving sufficient property, except in cases of force, fraud, or deceit, verified by affidavit. This suggestion was carried into effect by the act of the legislature of Pennsylvania of July 12, 1842, entitled "An act to abolish imprisonment for debt and to punish fraudulent debtors." In New-Hampshire, imprisonment on mesne process and execution for debt, existed under certain qualifications until December 23, 1840, when it was abolished by statute in cases of contracts and debts, accruing after the 1st of March, 1841. In Vermont, imprisonment for debt, on contracts made after 1st January, 1839, is abolished, as to resident citizens, unless there be evidence that they are about to abscond with their property; so also the exception in Mississippi applies to cases of torts, frauds, and meditated concealment, or fraudulent disposition of property. Laws of Mississippi, by Alden & Van Hoesen, 1839, p. 511, 512. 915, 916. In Connecticut, imprisonment for debt on contract, is abolished, except in the usually excepted cases of fraud, &c., by statute of June 10, 1842. In Indiana, (R. S. 1838,) prison bounds for debtors are declared to be co-extensive with the county. This is reducing imprisonment to the mere vox et præterea nil. In Alabama, by statute of 1st. Feb. 1839, imprisonment for debt is abolished except in cases of fraud.

In Tennessee, by statute of 1831, ch. 40, and of January, 1840, no ca. sa. can issue to imprison for debt, without an affidavit that the defendant is about to remove, or has removed his property beyond the jurisdiction of the court, or that he has fraudulently conveyed or concealed it. A similar law was passed in Ohio and in Michigan, in 1838 and 1839. The power of imprisonment for debt, in cases free from fraud, seems to be fast going into annihilation in this country, and it is considered as repugnant to humanity, policy and justice. In addition to the states of Massachusetts, New-Hampshire, Vermont, Connecticut, New-York, New-Jersey, Pennsylvania, Michigan, Ohio, Tennessee, Mississippi, Louisiana and Alabama already mentioned, imprisonment for debt is abolished in Delaware, Florida, Wisconsin, and Iowa, with the usual exception of all or most of the cases of contempts, fines and penalties, promises to marry, moneys collected by

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, be 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 execu. tion, 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 pro

three 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. The assignment does not affect property held by the debtor in truste 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.d 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 dis

charge relate to them. 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.

b Carlton v. Leighton, 3 Merivale's Rep. 667. Comegys v. Vasse, 1 Peters' U. S. Rep. 193. 220.

Kip v. Bank of New-York, 10 Johns. Rep. 63. Johns. Ch. Rep. 52. Yates & M'Intyre v. Curtis, 5

Dexter v. Stewart, 7 Mason's Rep. 80.

Wagstaff v. Smith, 9

d Adamson v. Armitage, Cooper's Eq. Rep. 283. Vesey, 520. See 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. Ingraham on Insolvency, 168, 169.

ty assigned rateably among all the creditors, subject, nevertheless, to existing legal liens, and priorities existing before the asssignment ;a 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. 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 departure 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 years past in Maine, New-Hampshire, and Vermont, and that the race of diligence among creditors was kept up.

N. Y. Revised Statutes, vol. ii. p. 36. 46. Ilarth v. Gibbes, 4 M'Cord's Rep. 8.

с N. Y. Revised Statutes, vol. ii. p. 3-14.

The provisions of the

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

same.

creditors in the mode prescribed. From the time of the notice, all sales and assignments by the debtor are declared to be void. 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. 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 unli· quidated demand resting in contract, is a creditor within the absconding debtor act, and competent to apply for the attachment. It was formerly held, that the creditor who instituted proceedings against an absconding debtor,

a 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 V. Boyd, Kerr's N. B. Rep. 264.

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, 465. But 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.