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issuing the warrant, a resident of the state; or, if proceeded against as an absent or absconding debtor, that he was not, at any time within thirty days before the issuing of such warrant, or at any time thereafter, an absconding or concealed debtor, within the intent of the statute; or the debtor may have his property discharged, and the proceedings discontinued, by giving a bond, conditioned to pay each of the attaching creditors the amount due bim at the time he became an attaching creditor. The bond, thus taken, may afterwards, within six months from its date, be put in suit by all or either of the creditors, who must establish their demands in the same manner as in an action against the debtor.
These proceedings appear to resolve themselves into the following divisions, and will be treated of accordingly: 1. The proceedings, until the appointment of trustees, or the application of the debtor, or others, for a discharge of his property from the attachment: 2. The different modes of obtaining a discharge of the property: 3. The appointment of trustees, with their powers, duties, and responsibilities, and the subsequent proceedings: 4. The proceedings on certiorari and in error.
Arrangement of the fubject.
OF THE PROCEEDINGS UNTIL THE APPOINTMENT OF TRUSTEES, OR
AN APPLICATION FOR A DISCHARGE OF THE PROPERTY.
Oficers who have jurisdiction.
Application for, and issuing of, the warrant.] The application for the warrant of attachment may be made to any of the following officers: circuit judges, supreme court commissioners, first judges of county courts, and any other judges of such courts, of the degree of counsellor at law in the supreme court, recorders of cities; and, if made in the city of Sche
nectady, the mayor thereof: but no such application can be made to any alderman of the city of New York.?
It is provided, that, in case of the death, sickness, resigna- Provision in tion, removal from office, absence from the county of his resi- death, &c. of dence, or other disability, of any officer before whom any proceedings may have been commenced under the statute, such proceedings may be continued by his successor in office, or by any other officer residing in the same county, who might have originally instituted such proceedings, in the same manner, and with the like effect, as if originally commenced before him. And that, if there be no officer in the same county, thus competent to continue such proceedings, then any judge of the county court may attend at the time and place appointed for the hearing of any matter, and may adjourn the same to the next court of common pleas, to be held in and for the county in which such hearing was appointed ; and that the said court shall proceed therein, in the same manner, and with the like authority, as the officer who commenced such proceedings.* The application may be made by any creditor resident who may
apply for within this state, or out of it, or by his personal representa- warrant. tives, having a demand against the debtor personally, whether liquidated or not, arising upon contract, or upon a judgment, or decree, rendered within this state, amounting to one hundred dollars or upwards; or by any two such creditors having such demands, to the amount of one hundred and fifty dollars or upwards: or, by any three or more creditors, having such demands, to the amount of two hundred dollars or upwards.5
The application must be in writing, verified by the affidavit Application, of the creditor, or of the person making the same in his be- specify; half, in which must be specified the sum in which the debtor is indebted, over and above all discounts, to the person in whose behalf the application is made, and the grounds upon which
? 2 R. St. 3. s. 2. 2 R. St. 34.
4 Ib. s. 6.
3 2 R. St. 35. s. 5. VOL. II.
Order for notice, and
must be veri- the application is founded. The facts and circumstances to
establish the grounds on which the application is made, must also be verified by the affidavits of two disinterested witnesses."
Upon such proof being made to the satisfaction of the officer to whom the application is addressed, he is required to
order a notice to be published, which will be presently deissuing war. scribed, and to issue one or more warrants, as may be neces
sary to the sheriff of every county, in which any property of the debtor may be, commanding him to attach and safely keep all the estate, real and personal, of the debtor within his county, (except such articles as are by law exempt from execution,) with all books of account, vouchers, and papers relating thereto.8
Where a A corporation is a creditor within the meaning of the statute, corporation, and may present or unite in the petition as other creditors;
and the petition may be signed by a director or other officer of the corporation, thereto duly authorised under its common seal; and the affidavit required of attaching creditors may be
made and signed by such director or officer.9 or partners, Whenever partners or joint companies are attaching cre
ditors, the petition and affidavit required may be made and signed by either of the partners, or any one of the company."
Creditors residing out of this state, and within the United dents,
States, may petition and unite in a petition in the same manare creditors. ner as resident creditors; but they are required to annex to
the petition the original accounts, or sworn copies, and the original specialties, or written securities, if any, on which their demands arise or depend. Affidavits sworn to by them, 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, are required to be received by every officer or court, in proceedings under the statute, in the same
82 R. St. 36. 6. 7.
6 Ib. s. 4. 7 Ib. 8. 5. 3 lb. s. 6.
10 Ib. s. 8.
manner as if such affidavits were made before a proper officer
It is declared, that whenever a petitioning creditor shall benefit the have purchased, or procured to be assigned to him, any debt le conside or demand against the debtor, for less than the nominal for it amount of such debt or demand ; and whenever any executor or administrator shall petition in respect to any such debt or demand, the person petitioning shall be deemed a creditor to the amount only of the sum or value actually and in good faith paid by him, or by his testator or intestate, for such debt or demand. 12
And it is provided, that whenever a petitioning creditor When credishall have, in his own name, or in trust for him, any mortgage, quis haec un judgment, or other security, or assignment by way of security, for securing the payment of any sum of money, upon any real or personal estate of the debtor, he shall not become a petitioner, in respect to the debt so secured, unless he shall add to his signature to the petition, a declaration in writing, th at he relinquishes to the assignees, or trustees, who shall be appointed pursuant to such petition, every such mortgage, judgment, or other security, for the benefit of all the creditors of such debtor ; which declaration shall operate as an assignment of such mortgage, judgment, or security, to the assignees, or trustees, who shall be subsequently appointed, and vest in them all the rights, and interests, of such petitioning creditor therein. 13
And if the creditor shall swear, that a sum of money is due Perjury. to him from the debtor, which is not really due, or that more is due than the sum really due, knowing the same not to be due, it is declared that he shall forfeit double the sum so falsely
13 Ib. s. 11.
11 Ib. s. 9. 12 Ib. s. 10.
sworn to be due, to the assignees, or trustees, of the estate of such debtor, to be recovered by them.14
Affidavits to be filed.
The officer is required to cause the affidavits of the creditors presented to him, to be filed in the office of a clerk of the supreme court, within thirty days after receiving the same.15
papers of debtor;
Sheriff to at- Service of the warrant.] The sheriff to whom any such tach all property, and warrant is directed and delivered, is required immediately to
attach all the real estate of the debtor, and all his personal
estate, including money, and bank notes, except articles exworks and empt from execution ; and to take into his custody, all books
of account, vouchers, and papers, relating to the property, debts, credits, and effects of the debtor, together with all evidences of his title to real estate ; and to keep the same safely, to be disposed of as the statute directs. 16
The sheriff is also required, immediately on making such inventory.
seizure, with the assistance of two disinterested freeholders, to make a just and true inventory of all the property so seized, and of the books, vouchers, and papers taken into his custody, stating therein, the estimated value of the several articles of personal property, and enumerating such of them as are perishable ; which inventory, after being signed by the sheriff and the appraisers, must, within ten days after such seizure, be returned to the officer who issued the warrant."
and to make
It is provided, that a seizure made by virtue of any attachment, under the provisions of the statute, shall be deemed to
supersede any such seizure that may have been previously warrants in made, under any warrant which shall bave been issued, at the pers and bas instance of any overseers, or superintendents of the poor,
against any person, pursuant to the provisions of law, respecting the relief and support of indigent persons, or respecting the support of bastards; but that the surplus of any property
14 2 R. St. 37. s. 12. 15 2 R. St. 13. s. 67.
16 2 R. St. 4. s. 7. 17 Ib. s. 8.