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debtor ;

bond,

Every person proceeded against, as a non-resident debtor, or absent and any person in his behalf, may, at any time before the appointment of trustees, present a petition, verified by the oath of the person presenting the same, to the officer who issued the warrant against such debtor, stating, that at the time of issuing such warrant, the debtor so proceeded against was a resident of this state: and may pray, that the allegations in such petition, may be determined by the supreme court, or the court of common pleas of the county.62

Such debtor, in either of the cases before mentioned, or his debtor's agent, is required, at the time of presenting the petition, to deliver to the officer who issued the warrant, a bond to the attaching creditors, in the penal sum of one hundred dollars, with such security as shall be approved by such officer, with a condition, (preceded by a recital of the petition,) that such debtor shall prove to the supreme court, or to the court of common pleas of the county, whichever shall be inserted by such officer, at his discretion, at the next term thereof, the facts set forth in such petition.“ The bond cannot be taken by the officer, until reasonable and notice

of taking it. notice of the names and residence of the persons offered as suretics, is given to the attaching creditors. And the attaching creditors may require the persons offered as sureties, to justify in the same manner, and to the like extent as bail.62

to the court,

The officer with whom such petition and bond shall be filed, be reported is required to report his proceedings, with the affidavits presented to him in relation to such proceedings, to the court named in the condition of such bond, on the first day of the next term thereof.65

The proceedings of the court, upon the report, are regu- and the matlated by the following provisions : “ The court to which such cided by the report shall be made, shall proceed to hear the proofs and jury :

court or a

62 Ib. 10. s. 44.
63 Ib. 10. s. 45.

64 2 R. St. 14. s. 71, 72.
65 Ib. 10. s. 46.

of the debtor, attachmənt, &c.

allegations of the parties in a summary way, and shall determine whether the allegations in such petition have been satisfactorily proved ; unless the court shall deem it a proper case to be submitted to a jury, in which case, the court may, in its discretion, award a venire to try the same, in such manner as

the court shall direct."66 if in favour

“ If the court determine, that the allegations in the petition

are proved, it shall grant an order, cancelling the bond given discharged; by or in behalf of the debtor, and discharging the warrant,

or warrants, that may have been issued against him, and thereby releasing all property, which shall have been attached, under such warrants; which order shall terminate all proceedings upon such warrants."'67

“ The court shall tax the costs and expenses of the debtor, incurred in obtaining such order, and shall cause the same to be paid by the attaching creditor, and may enforce the parment thereof, by attachment."68

“If the court determine, that the allegations contained in his bond to the petition are not proved, then the obligee in the bond

.
given by or in behalf of such debtor, may recover the penalty
thereof, with costs; one moiety of the penalty, may be re-
tained by the obligee, or his representatives, and the other
moiety shall be paid to the trustees, to be appointed as herein-
after mentioned, to be disposed of by them, as part of the
property and effects of such debtor; or if no trustees be ap-
pointed, such moiety may be retained by the obligee.'

and costs paid by creditors;

if against the debtor,

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llow and when other

If any person, to whom a debtor shall have assigned, or persons may delivered any property, on a valuable consideration, or to whom trial by jury the debtor may have made payments after the publication of the

notice of attachment, shall desire to contest the fact of such debtor's being non-resident, concealed, or absconding, within the meaning of the statute, he may do so, on executing a bond, similar

bond.

66 Ib. s. 47.

s. 48.

67 lb.

da Ib. 11. 8. 49. 69 lb. s. 50

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to that required of a debtor, (in the previous forty-fifth section,)
and within the time allowed to the debtor for that purpose ; and
on his application to the court, to which such proceedings are,
or shall be reported, the court are required to direct such
allegations to be tried by a jury, and to direct the proper pro-
ceedings for that purpose.70
It is declared that a decision by a jury, in any case, where Effect of a

verdict.
a trial may be had, pursuant to the provisions of the statute,
if not set aside by the court, shall have the same effect in all
cases, as the determination of a court without such trial; and suit on the
that the same proceedings may be had, upon the bond executed
by any other person than the debtor, as are provided in re-
spect to the bond of such debtor, in the like cases, and with
the like effect. 71

bond.

ceedings on

And it is provided, that the proceedings upon any warrant, Effect of pe that may be issued, pursuant to the provisions of the statute, main proshall not be in any manner, stayed or affected by such peti- the warians. tion or bond, given as the statute provides, until an order, discharging such warrant, shall be granted; except that no sale of any property, other than such as may be perishable, shall be had, and no payment of any debts, shall be made, by any trustees appointed under such attachment, until a determination be made by the court, to which such petition shall be referred.72

Security given to pay the attaching creditors.] It is pro- dupplication vided that every debtor, against whom any warrant of attach- a discharge ment shall be issued, may, at any time before the appointment rant, of trustees, apply in person, or by attorney, to the officer who issued the warrant, for an order to discharge the same.73

Upon such application, the debtor, or his agent, must exe-on giving cute and deliver to the officer, to whoin the application is suretics, made, a bond to the creditors, prosecuting the attachment, in

70 lb. s. 51. 71 Ib. s. 52. Vol. II.

72 Ib. s. 53. 73 lb. f. 31.

tion if re

a penal sum, double the amount of the debts sworn to by the creditors, with such sureties as shall be approved by the officer, conditioned, that they will pay to each attaching creditor, the amount justly due, and owing by such debtor, to him, at the time when he became an attaching creditor, on account of any

debt so claimed, and sworn to by him, with interesi thert on." on notice, The bond cannot be taken by the officer, until reasonable and justifica

notice of the names and residence of the persons offered as quired, sureties, is given to the attaching creditors.

And it is provided, that the attacbing creditors may require the persons offered as sureties, to establish their sufficiency in the same manner, and to the like extent, as bail are required to justify

in civil actions.75 discharge Upon such bond being executed and delivered, the officer thereupon.

is required thereupon to grant his order, discharging all warrants that may have been issued by him, or of which notice shall have been given to him, against such debtor; and it is provided, that no further, or other proceedings shall be bad under the provisions of the statute, founded upon any demands

included in such bond.76 Suit on bond. It is declared, that every such bond shall be held for the cominon benefit of all the attaching creditors, and may

be prosecuted at any time within six months after its date, and not afterwards, by them jointly, or by any one of the separately, in respect to his separate demand; and that, in every such action, the prosecuting creditor shall establish his demand, in the same manner as in an action against the debtor.77

Discharge if Discharge by non-appointment of trustees.] The statutes trustees not appointed. provide, that, if the appointment of trustees be not made

within three months after the expiration of the time limited for the debtor to appear, &c., in the notice of the attachment, the warrant of attachment shall be deemed to be discharged and annuiled.18

74 2 R. St. 12, s. 55.
75 2 R. St. 14. s. 71, 72.
*6 Ib. s. 56.

77 Ib. s. 57.
78 2 R. St. 12. s. 59. 58.

SECTION III.

OP THE APPOINTMENT OF TRUSTEES, WITH THEIR POWERS AND

DUTIES, AND OF THE SUBSEQUENT PROCEEDINGS.

&.

Appointment, qualification, and number of trustees.] The Trustecs statutes provide, that, if the debtor against whom the warrant pointed: of attachment was issued shall not appear and satisfy his creditors, within the time for that purpose limited in the notice before mentioned; and if the warrant shall not have been discharged, the officer who issued it shall, within three months after the expiration of the time so limited, upon due proof of the publication of such notice, nominate and appoint three or more fit persons to be trustees for all the creditors of such debtor.79

The officer making such appointment is required to endorse Appointthereon an order allowing it to be recorded; which entitles it where reto be recorded by the clerk of any county, to whom it may

be presented for that purpose. And the trustees are directed to cause their appointment to be recorded in the office of the clerk of every county in which any property shall have been seized, under the warrant of attachment, within one month after their appointment.81 And it is declared, that such appointment of trustees, the Evidence of

the record. record thereof, and the transcript of such record, duly certified, shall, in all cases, except on bearing of a petition referred to any court, as before mentioned, be conclusive evidence that the debtor, therein named, was a concealed, absconding, or non-resident debtor, within the meaning of the statute; and

corded,

81 Ib. s. 61.

79 2 R. St. 12. s. 58.

60.

go Ib. s.

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