Insolvent Laws.

either of the partners or one of the company. Creditors residing out of the state may present or unite in a petition in the same manner as resident creditors; their affidavits will be received when sworn to before a judge or clerk of a court of record of the state, district, or territory in which they reside, duly authenticated under the seal of such court.

Whenever any petitioning creditor has purchased a debt or demand against the estate of the insolvent, for a less sum than its nominal amount, he shall be deemed a creditor to the amount only of the sum actually paid. No creditor can become a petitioner in respect to a debt secured by mortgage, judgment, or other assurance, unless he relinquishes such security for the common benefit of all his creditors. Every discharge is to be recorded by the clerk of the county in which it was granted, and every assignment by the clerk of the county in which it was executed.

Rights and duties of trustees and assignes. (a)-Assignees appointed under the various provisions which have been enumerated, are declared to be trustees of the estate of the debtor in relation to whose property, they have been appointed, for the benefit of his creditors. They have power to sue for, and recover all the estate or rights in action of the debtor as fully as he could have done himself before their appointment: to sell such estate at public auction, from time on reasonable notice and credit, and execute conveyances therefor, to discharge all incumbrances upon the estate of the debtor, and make any settlement or composition with his creditors. Trustees upon their appointment are to give notice thereof, and to require all the debtors and creditors of the insolvent, at a time and place specified, to be present, and in the one case to discharge their indebtedness, and in the other to deliver their accounts; and shall also require all persons having in their possession any property of the insolvent, to surrender the This notice is to be published for three weeks; in the case of an insolvent or imprisoned debtor, in a newspaper printed in the county where application was made; in the case of a nonresident, concealed, or absconding debtor, in the newspapers in which the notice of attachment was printed. In case of any controversy arising between the trustees, and these parties, the (a) R. S. ii. 95 to 106.

same.

Proceedings in Civil Suits.

same may be referred to the arbitration of three indifferent persons. The trustees are to keep a regular account of the moneys received by them, and are to convert the real and personal estate of the insolvent into money as speedily as possible. Within fifteen months from the time of their appointment, the trustees shall call a general meeting of the creditors by a notice published in the same manner as the notice of their appointment, at a period not more than three nor less than two months distant. At this meeting the accounts and demands for and against the estate are to be fairly adjusted, as far as the same can be ascertained; the amount of money in the hands of trustees declared. After payment of costs and necessary expenses and debts, entitled to priority under the laws of the United States, the trustees are to distribute the residue of the proceeds among the creditors in proportion to the amount of their respective claims. An allowance may be made to the debtor in certain cases, provided it does not exceed five hundred dollars. The trustees are to render an account of their administration to the Court of Common Pleas in which they reside, or to the Supreme Court, under whose supervision their trust is to be executed, and who may remove them and appoint new trustees in their place, and finally discharge them from all responsibility.

11. Proceedings in Civil Suits.

Commencement of actions. (a)-Civil actions are commenced by the service of a summons. When the person on whom the service is to be made, cannot after due diligence be found within the state, and that fact as well as the existence of a cause of action against the defendant is established by affidavit to the satisfaction of the court from which the writ emanates, or a judge thereof, and also that the defendant is a resident of the state, or has property therein, the court or judge may grant an order that the service be made by the publication of the summons in two newspapers, which the judge may designate as most likely to give notice to the person to be served, and for such length of time not less than thirty days, as the judge shall deem reasonable A copy

(a) Code of Procedure 132, Suppl. 8.

Proceedings in Civil Suits.

of the summons is also to be deposited in the post-office, directed to the person to be served, at his place of residence, unless it appear to the judge that such residence is neither known to the party making the application, nor can be ascertained by him in the use of reasonable diligence. Personal service of the summons out of the state, is equivalent to publication and deposit in the post-office. Where the summons has been neither personally served on the defendant, nor received by him through the post-office, he or his representatives may, on application and showing of cause, be allowed to defend the action at any time before judgment; or be allowed to defend after judgment within one year after notice thereof, and within seven years after the rendition of the same, upon such terms as may be just; and if the defence be successful, and the judgment, or any part thereof, have been collected, restitution may be enforced.

Arrest. A defendant may be arrested upon the order of a judge of the court in which the action is brought, or from a county judge in the following cases:

1. Where it is made to appear upon the affidavit of the plaintiff or some other person, that a sufficient cause of action exists, and that the defendant is not a resident of the state, or is about to remove therefrom; or

2. Where the suit is for the recovery of damages, on a cause of action not arising out of contract, or for a fine or penalty, or on a promise to marry, or for moneys collected by a public officer or by an attorney in the course of his employment as such, or by any person in a fiduciary capacity, or for any misconduct or neglect in office, or in a professional employment, or where the action is to recover the possession of personal property unjustly detained.

In either of the last mentioned cases, the sufficiency of the cause of action must also be established by affidavit. No female can be arrested in an action arising on contract, or in any other action, except for a willful injury to person, character or property. (a)

The Code of Procedure in which the preceding provisions are contained, expressly declares that they are in no way to affect the (a) Code of Procedure 162. R. S. ii. 106 to 114.

Proceedings in Civil Suits.

act to abolish imprisonment for debt, and to punish fraudulent debtors. Under that act, in all cases where a defendant could not be arrested or imprisoned, the plaintiff who had either commenced a suit or obtained a judgment against him in a court of record, might obtain from the judge of the court, or officer authorized to perform his duties, a warrant to arrest the defendant, on establishing by the affidavit of the plaintiff or some other person, that there is a debt due from the defendant to the plaintiff, amounting to more than fifty dollars, and specifying the nature and amount thereof as near as may be, for which the defendant cannot be arrested or imprisoned, and establishing one or more of the following particulars:

1st. That the defendant is about to remove any of his property out of the jurisdiction of the court in which the suit is brought, with intent to defraud his creditors; or

2d. That the defendant has property or rights in action which he fraudulently conceals, or that he has rights in action or some interest in public or corporate stock, money or evidences of debt, which he unjustly refuses to apply to the payment of any judg ment or decree which shall have been rendered against him, belonging to the complainant; or

3d. That he has assigned, removed or disposed of, or is about to dispose of any of his property, with intent to defraud his creditors; or

4th. That the defendant fraudulently contracted the debt or incurred the obligation respecting which suit is brought.

Upon being arrested by virtue of this warrant, the defendant may appear before the officer by whom it was issued, and controvert by his own affidavit or otherwise any of its allegations; and such officer shall have power to compel the attendance and testimony of witnesses, and to hear and determine upon the evidence submitted to him in the premises. The defendant may have the hearing adjourned or postponed upon sufficient cause shown, and his entering into bond with security in double the amount of the debt, conditioned that until the final decision of the matter pending before the officer he will not remove any property which he then has out of the jurisdiction of the court in which the suit is brought, with intent to defraud his creditors:

Proceedings in Civil Suits.

and that he will not assign or dispose of such property with a view or intent to give a preference to any creditor for any debt antecedent to such assignment. If the allegations of the complainant are substantiated to the satisfaction of the officer, he shall direct the defendant to be committed to the jail of the county in which the hearing is had, until discharged according to law.

This commitment is not to be granted if the defendant shall either pay the demand with costs of suit, or give security therefor within sixty days, or make and deliver an inventory of his estate, and account of his creditors, and execute an assignment of his property as hereinafter provided, or enter into bond with security that he will apply for such an assignment and discharge within thirty days, or in a case where the particular fraudulent intent established against the defendant is a contemplated removal of his property, if the defendant will give bond and security that he will not remove any property which he has out of the jurisdiction of the court with intent to defraud his creditors, nor dispose of any such property with such intent, or with a view to give a preference to any creditor for any debt antecedent to such assignment or disposition, until the demand of the plaintiff has been satisfied, or three months elapsed from the rendition of a final judgment in the suit brought by him. The construction of this act was considered in the matter of Prime, 1 Barb. S. C. R. 296, and it was there held that the proceedings under it were never for the benefit of the creditors at large, except in the case of an assignment after the debtor has been convicted of a misdemeanor; and that previous to the execution of the assignment they were for the benefit of the prosecuting creditor alone.

Judgment and execution.-Execution may be issued upon a judgment as soon as it is rendered. After the lapse of five years from the entry of the judgment an execution can be issued only by leave of the court on motion, with notice to the adverse party. Before such leave will be granted, it must be established by oath of the party or other proof, that the judgment or some part thereof remains unsatisfied and due. There are three kinds of execution, one against the property of the judgment debtor, one against his person, and the third for the delivery of the possession of real or personal property. If the action was one in which the defendant