Courts.-Judgment and Execution. discharged from imprisonment, and no execution can subsequently issue at any stage of such suit against the body of the debtor. (a) See title Judgment and Execution. 12. Courts. Besides various municipal and police courts, the judicial power of the state is distributed between the Supreme Judicial Court and various District Courts. The former is held once a year in most of the counties of the state, in some of them twice. The latter are held three times a year in most of the counties, twice a year in the rest. The former consists of a chief justice and two associate justices, and has a general civil jurisdiction at law and in equity, original and concurrent with the District Courts, where the debt or damage exceeds the sum of two hundred dollars. The District Courts, besides their concurrent jurisdiction with the Supreme Court, have exclusive jurisdiction where the debt or damage demanded does not exceed two hundred dollars. (b) Remedy against Sheriffs.—Any sheriff or his deputy unreasonably refusing to pay over to the person entitled, money received by him upon execution, shall forfeit to such person five times the lawful interest of the money, so long as he shall unreasonably detain it. (c) 13. Judgment and Execution. The judgment creates no lien of itself upon the lands of the debtor. They are not bound until execution has been issued; but may be attached in the first instance on mesne process. All the real estate of a debtor, whether in possession or reversion, or whether fraudulently conveyed, all rights of entry into land, all statutory rights to land derived from possession or improvement, and all equities of redemption, may be taken in execution for his debts. (d) Mere rights of action may be sold by the officer under the execution. Where possession may be taken and delivered of the estate, the officer after having it appraised and set forth by metes and bounds, may deliver possession to the creditor (a) R. S. 624. (b) Ib. 394 and sub. (c) Ib. 765. (d) Ib. 382 to 391. Judgment and Execution. or his attorney, and upon a return of the execution to the office whence it was issued, setting forth his proceedings, and a recordation of the same in the registry of deeds for the county, the creditor will be invested with the title of the debtor: saving to the wife her right of dower. The debtor may redeem the land within one year after the levy, by paying or tendering to the creditor the sum at which they were appraised and interest from the time of the levy, and all reasonable expenses and repairs, after deducting the rents and profits received by the creditor, or which he might have received. (a) If the debtor does not redeem, and the judgment is reversed on writ of error, the title to the land taken in satisfaction is lost; but if reversed on review or new trial, it is not affected. (b) The real estate of a decedent may be taken in execution, and appraised and set off, or sold, and redeemed upon any judgment against the executor or administrator for the proper debt of the deceased. (c) All the chattels real and personal of a debtor, except such as are specially exempted, current gold and silver coin, bank notes, and other evidences of debt issued by any moneyed corporation, and circulated as money; any share of the stock of an incorporated company, and the equity of a mortgagor of personal property to redeem, may be sold on execution. (d) Where the debt remaining due amounts to ten dollars or upwards, exclusive of costs, and no express provision has been made to the contrary, execution may run against the body of the judgment debtor; and he may be arrested and imprisoned for the purpose of obtaining a discovery of his property wherewith to satisfy the same. The debtor may be released upon taking an insolvent oath, if two justices, before whom he may be examined, after notice to his creditor, and an opportunity allowed to him of interrogating the debtor, and offering any pertinent evidence, shall be satisfied that he has made a true disclosure of his condition. Any property disclosed, notes, accounts, bonds, or other contracts, may be appraised and set off to the creditor. The effect of the discharge will be to relieve the body of the debtor (b) Griffith's Law Register 990, vol. 4. (d) R. S. 515. (a) R. S. 382 to 391. Attachments, Foreign and Judicial. from any execution on the judgment, but in no other way to impair the creditor's rights. (a) 14. Attachments, Foreign and Judicial. Where the goods of a non-resident, having no agent within the state, have been attached before a justice of the peace, judgment may be rendered against the debtor, as in ordinary cases, upon compliance with such order respecting notice, as the justice may make. (b) On all writs returnable before a justice of peace, or municipal court, and on executions issued by such justices or courts, personal property may be attached in any county of the state. (c) All civil actions may be commenced by attaching the goods and estate of the defendant. Every species of property liable to be taken in execution for debt, may be attached, and will be affected by a lien in favor of the attaching creditor, for a period of thirty days after final judgment in the case. (d) Any action founded in contract, may be commenced by a trustee process or foreign attachment, which, from the time of serving the writ on the trustee, shall bind all the goods, effects, or credits of the principal defendant under his control, to answer the final judgment in the action. As many persons may be summoned as trustees, including corporations, as the plaintiff may think necessary, at any time before process has been served on the principal. A non-resident, the defendant in any suit, may be charged as trustee, to an executor or administrator in reference to a debtor legacy. Judgment may be rendered against the trustee, his own rights and those of third persons being protected, for any goods, effects, and credits of the principal in his hands, which judgment shall discharge him from all demands of the principal defendant. Where the principal defendant is a non-resident, the court may make such order as to notice, as the justice of the case may require. Creditors who have taken the body of their debtor in execution, and afterwards discover goods or credits of the defendant, (a) R. S. 623. (b) Act of 1844, 81. (c) Act of 1842, 7. (d) R. S. 484. Effect of Death upon the Rights of Creditors. not attachable by ordinary process of law, may have the benefit of the trustee process. (a) Attachment of Boats.-Boats and vessels employed in transporting goods upon any river, bay, or stream in the state, are rendered liable for any loss or damage to such goods, wares, or merchandise, whether in the employment of the owner or not. The attachment against the boats, however, must be issued within sixty days after the injury occurred, and not afterwards; and it will overreach any transfer, sale, mortgage, or other lien upon the property executed after the loss occurred, and be prior to the attachment. (b) 15. Effect of Death upon the Rights of Creditors. When an estate appears, from the representation of the administrator, to be insolvent, it is the duty of the judge of probate to appoint two or more persons as commissioners to receive and examine all claims of creditors against the estate, who shall appoint convenient times and places for that purpose, and give notice of the same by advertisement. The period of six months is allowed for the presentation and proof of such claims, to be extended at the discretion of the judge for an additional term, not to exceed eighteen months from the date of the commission. Any creditor whose claim is disallowed in whole or part by the commissioners, may, by appeal from their decision, have the same determined at common law, or submit the matter to referees, to be agreed upon between them, and appointed by a rule of the probate court, whose award shall be final. Thirty days after the return of the commissioners, the judge shall make a decree for the distribution of the effects among the creditors according to the. rules of law. Every creditor of an insolvent estate who has failed to present his claim for allowance, is forever barred from recovering the same, unless further assets come to the hands of the administrator after a decree of distribution. Debts are to be paid in the following order :-1. Expenses of (a) R. S. 528 to 538. (b) Acts of 1846, 178. Effect of Death upon the Rights of Creditors. funeral and administration. 2. Allowance from the personal estate for benefit of widow and children, made by probate judge and proportioned to the condition of the deceased and the state of his family. 3. Expenses of last sickness. 4. Debts entitled to preference under the laws of the United States. 5. Public taxes and moneys due the state. 6. All other debts. Both real and personal property constitute assets. |