Pennsylvania Act 1836-187 — INSOLVENT DEBTORS

Act text

INSOLVENT DEBTORS
                 Act of Jun. 16, 1836, P.L. 729, No. 187              Cl. 39
                                  AN ACT

     Relating to insolvent Debtors.

        Section 2.  Exercise of jurisdiction
        The jurisdiction of the said courts may be exercised as
     follows, and not otherwise, viz.:
        I.  In the case of a person arrested or detained by virtue of
     any process issued in any civil suit or proceeding, for the
     recovery of money or damages, or for the non-performance of any
     decree or sentence for the payment of money without collusion
     with the plaintiff, the court of common pleas of the county in
     which such debtor shall be arrested or detained shall have power
     to grant relief as aforesaid.
        II.  In the case of a person held on a bail piece issued in
     any such suit or proceeding, the court of common pleas of the
     county in which the suit was instituted, shall have power to
     grant relief as aforesaid.
        III.  In the case of a debtor not arrested, detained or held
     as aforesaid, such power may be exercised by the court of common
     pleas of the county in which such debtor shall reside.  1836,
     June 16, P.L. 7209, Sec. 2.
        Section 3.  Necessary residence, or confinement
        But no debtor shall be entitled to relief under this act
     unless he shall have resided within this Commonwealth for six
     months immediately preceding his application to the court, or
     shall have been confined in jail for three months immediately
     preceding such application.  1836, June 16, P.L. 729, Sec. 3.
        Section 4.  Discharge on bond
        It shall be lawful for any judge of the court of common pleas
     aforesaid, or for the prothonotary of such court, to make an
     order for discharge of any debtor arrested, detained, or held by
     virtue of any process or bail piece, as aforesaid, on his giving
     a bond to the plaintiff in such suit or proceeding, in such
     amount, and with such security, as shall be approved by such
     judge or prothonotary.  1836, June 16, P.L. 729, Sec. 4.
        Section 5.  Contents of order
        The order of the judge or prothonotary, as aforesaid, shall
     direct the officer or other person having such debtor in custody
     or confinement, forthwith to discharge such debtor, on his
     paying the jail fees, if any be due.  1836, June 16, P.L. 729,
     Sec. 5.
        Section 6.  Condition of bond
        The condition of the bond to be given as aforesaid, shall be,
     that the said debtor shall appear at the next term of the court
     of common pleas of the said county, and then and there present
     his petition for the benefit of the insolvent laws of this
     Commonwealth, and comply with all the requisitions of the said
     law, and abide all the orders of the said court in that behalf,
     or in default thereof, and if he fail in obtaining his discharge
     as an insolvent debtor, that he shall surrender himself to the
     jail of the said county.  1836, June 16, P.L. 729, Sec. 6.
        Section 7.  Effect of order or discharge
        The officer or other person having such debtor in confinement
     or custody shall be exonerated, on making a return of the order
     aforesaid, on the process by which such debtor was held, and
     such order being filed with any officer or magistrate, by whom
     any bail piece was issued, shall entitle the bail to be
     exonerated, as effectually as if the debtor had been surrendered
     and confined in prison on such bail piece.  1836, June 16, P.L.
     729, Sec. 7.
        Section 8.  Debtor arrested on bail piece, may give new bail
        Nothing herein contained shall prevent a debtor arrested on a
     bail piece from giving new bail, according to law, and obtaining
     his release thereby.  1836, June 16, P.L. 729, Sec. 8.
        Section 9.  Petition to be accompanied with certain schedules
        Every petition for relief, as aforesaid, shall be accompanied
     with the following schedules:
        I.  A statement of all the estate, effects and property of
     the petitioner, wheresoever situate, and of whatsoever kind.
        II.  A statement of the debts due by him, containing the
     names of his creditors, the amount due to each, and the nature
     or character of the debt, so far as he can ascertain the same.
        III.  A statement of the causes of his insolvency, and of the
     extent of his losses, if any.
        And the facts set forth in such petition and statements shall
     be verified by the oath or affirmation of the petitioner.  1836,
     June 16, P.L. 729, Sec. 9.
        Section 10.  Court to fix time for hearing
        It shall be the duty of the court to which any such petition
     may be presented to fix a time for the hearing of the same,
     either by a general rule, or by an order to be made in the
     particular cause, if the circumstances of the case shall require
     it.  1836, June 16, P.L. 729, Sec. 10.
        Section 11.  Notice to creditors
        Notice of the time and place fixed for the hearing, as
     aforesaid, shall be given by the petitioner to his creditors, at
     least fifteen days before such hearing, either personally, or by
     advertisement published in one or more newspapers, as the court
     may direct.  1836, June 16, P.L. 729, Sec. 11.
        Section 12.  Petitioner to exhibit account, produce books and
     papers, and answer questions
        At the time and place fixed for the hearing the petitioner
     shall exhibit to the court a just and true account of his debts,
     credits and estate, whatsoever and wheresoever situate, and if
     so required, shall produce all books and papers in his
     possession, or under his control, relating to his business and
     estate, and shall answer all questions that may be put to him by
     the court, or (under their control) on the part of his
     creditors, touching the same, and shall satisfy the court that
     he has not concealed or conveyed to any person whomsoever, for
     the use of himself, or any of his family or friends, or whereby
     to expect any future benefit to him or them, any part of his
     estate, effects or credits. 1836, June 16, P.L. 729, Sec. 12.
        Section 13.  Oath to be administered to petitioner
        If, upon examination of the petitioner as aforesaid, there
     shall not arise a strong presumption of fraud, and if the
     petitioner shall in other respects appear to be entitled to
     relief, the court shall direct an oath or affirmation, in the
     following form, to be administered to such petitioner:
        :I, A. B; do (swear or affirm) that I will deliver up and
     transfer to my trustees, for the use of my creditors, all my
     property that I have or claim any title to, or interest in, at
     this time, and all debts, rights and claims which I now have, or
     that I am in any respect entitled to, In possession, reversion,
     or remainder, and that i have not, directly or indirectly, at
     any time, given, sold, conveyed, leased, disposed of or
     entrusted any part of my property, rights or claims to any
     person, whereby to defraud my creditors, or any of them, or to
     secure, receive or expect any profit, benefit, or advantage
     thereby." 1836, june 16, P.L. 729, sec. 13.
        Section 14.  Petitioner to execute assignment
        The petitioner shall thereupon execute an assignment of all
     his estate, property and effects whatsoever, to such trustees as
     may be nominated by two-thirds in number and value of the
     creditors then attending, either in person or by attorney, or in
     default of such nomination, as shall be appointed by the court.
     1836, June 16, P.L. 729, Sec. 14.
        Section 15.  Order exempting petitioner from imprisonment
        When such assignment shall have been executed, the court
     shall make an order that the petitioner shall not at any time
     thereafter be liable to imprisonment, by reason of any judgment
     or decree obtained for the payment of money only, or for any
     debt, damages, costs, or sum of money contracted, accrued, or
     occasioned and due before the time of such order.  1836, June
     16, P.L. 729, Sec. 15.
        Section 16.  Order to warrant discharge
        The order of the court, as aforesaid, shall be a sufficient
     warrant for the discharge of the petitioner from imprisonment,
     if he shall be in confinement at the time of such order, or
     shall be at any time afterwards arrested, by virtue of process
     in any action or proceeding for the recovery of any debt or
     demand, as aforesaid, on his giving a warrant of attorney, if
     arrested on mesne process, to appear to the action and plead
     thereto.  1836, June 16, P.L. 729, Sec. 16.
        Section 17.  Exceptions
        Provided, that if the petitioner shall be in custody or
     confinement at the time of such order, by virtue of process
     issued upon any judgment obtained against him in an action
     founded upon actual force, or upon actual fraud or deceit, or in
     an action for libel or slander, malicious prosecution or
     conspiracy, or in an action for seduction or criminal
     conversation, where the damages found by the jury shall exceed
     the sum of one hundred dollars; or if such petitioner shall be
     afterwards arrested by virtue of process issued upon any such
     judgment obtained against him previously to such order, he shall
     not be entitled to be discharged from such imprisonment or
     arrest until he shall have been in actual confinement during a
     term of at least sixty days.  1836, June 16, P.L. 729, Sec. 17.
        Section 18.  Order for examination of debtor
        It shall also be lawful for the said court, upon the
     application of the said trustees of any insolvent, to make an
     order for the appearance of such insolvent, at such time and
     place as may be fixed by the court, to answer upon any
     interrogatory, or otherwise, to such questions as may be
     propounded on the part of the said trustees, touching the estate
     and property of such insolvent at the time of his assignment to
     the said trustees, and to enforce their orders in the premises
     by attachment. 1836, June 16, P.L. 729, Sec. 18.
        Section 19.  Order for production of books, etc.
        It shall be lawful for the court either before or after the
     discharge of any petitioner as aforesaid, to make an order upon
     such petitioner to produce and deposit, either with the
     prothonotary of the court, or with the trustees, all books,
     documents, papers and muniments of title, in his possession, or
     under his control, relating to the estate and property of such
     petitioner, and to enforce such order by attachment. 1836, June
     16, P.L. 729, Sec. 19.
        Section 20.  Trustees to give bond
        Every trustee of an insolvent as aforesaid shall, before
     acting as such, give bond to the commonwealth, in such penalty,
     and with such security as shall be satisfactory to the court,
     with condition for the faithful execution of his trust.  1836,
     June 16, P.L. 729, Sec. 20.
        Section 21.  Notice of appointment
        It shall be the duty of the said trustees, immediately after
     giving bond as aforesaid, to give notice of their appointment,
     in at least one newspaper published in the same county, during
     at least four weeks, together with their names and places of
     abode, and they shall in such notice require all persons
     indebted to such insolvent, or holding property belonging to
     him, to pay and deliver all such sums of money and property due
     and belonging to such insolvent, to the said trustees, and they
     shall also therein desire all creditors of the insolvent to
     present their respective accounts or demands.  1836, June 16,
     P.L. 729, Sec. 21.
        Section 22.  Actions by debtor not to abate
        No action or other legal proceedings, instituted by such
     debtor, and pending at the time of the appointment of a trustee
     or trustees, as aforesaid, shall abate thereby, but the same
     shall be continued by, and enure to the benefit of such trustee
     or trustees.  1836, June 16, P.L. 729, Sec. 22.
        Section 23.  Trustees to have power to compound; set-off
        The trustees of such insolvent shall have power to compound
     with his debtors, in case of controversy, and to settle the
     same, by arbitration or otherwise, and the same right to set off
     shall exist, where there shall be mutual debts between the
     insolvent and such debtors, as in other cases.  1836, June 16,
     P.L. 729, Sec. 23.
        Section 24.  Trustees to collect debts and make distribution
        It shall be the duty of such trustees forthwith to proceed to
     collect the debts, and to convert the real and personal estate
     of such insolvent into cash, and, within twelve months from the
     time of their appointment, to make distribution of the net
     proceeds thereof, in the manner hereinafter directed: Provided,
     That it shall be competent for the court, on application by such
     trustees, to enlarge the time for such distribution, or to order
     distribution from time to time, if any legal proceeding shall be
     pending, or any estate or effects of such insolvent should
     remain undisposed of, or be discovered, after the period fixed
     for such distribution.  1836, June 16, P.L. 729, Sec. 24.
        Section 25.  Receiving proof of debts; filing report
        It shall be the duty of the trustees to appoint a certain
     time and place for receiving the proofs of the creditors, in
     support of their respective claims, of which public notice shall
     be given, and on the day so appointed they shall proceed to
     receive the proof of the several creditors, and shall determine
     upon the same, and having stated their accounts, and ascertained
     the proportionate sum payable to each creditor, shall file their
     report of the same in the office of the prothonotary of the
     court in which their appointment took place.  1836, June 16,
     P.L. 729, Sec. 25.
        Section 26.  Notice and confirmation of report
        It shall be the duty of such prothonotary to give public
     notice of the filing of such report, by advertisement, in the
     manner directed by law in the case of the accounts of assignees
     under a voluntary assignment, and at the next stated term of the
     court, after the filing of the report, if exceptions shall not
     be presented at such time as may be directed by the rules of
     such court, the report may be confirmed by the court, and the
     trustees shall thereupon make distribution accordingly.  1836,
     June 16, P.L. 729, Sec. 26.
        Section 27.  Certain costs and debts to be preferred
        Provided, 1.  That the fees and charges of maintenance due to
     the jailer at the time of the discharge of the debtor, being
     approved by the court, shall be first paid out of the debtor's
     property, previous to any distribution: And Provided, 2.  That
     no preference shall be allowed to debts due on specialties, but
     all bona fide mortgages, judgments and executions, binding the
     real or personal estate of such insolvent, shall remain good and
     effectual in law, and shall be first satisfied out of the
     debtor's estate, according to their priority of lien. 1836, June
     16, P.L. 729, Sec. 27.
        Section 28.  Goods liable to distress not to be removed until
     rent is paid
        When any rent shall be due by such insolvent at the time of
     his discharge, no goods or chattels upon the premises, in
     respect to which such rent shall be due, liable to distress,
     shall be removed or disposed of, without the consent of the
     landlord, or other person to whom such rent shall be due and
     payable, until the same, not exceeding one year's rent, be paid,
     and such landlord, or other person, may proceed by distress, or
     otherwise, as he might have done before such discharge, to
     recover the same, not exceeding one year's rent, as aforesaid.
     1836, June 16, P.L. 729, Sec. 28.
        Section 29.  Further dividends and reports
        If the whole of the estate shall not have been distributed
     upon such report, the trustees shall proceed to make a second
     dividend of all such moneys as shall come into their hands after
     the first dividend, and make report in like manner, and the same
     proceedings shall be had upon such report as are hereinbefore
     provided, and so from time to time, until a distribution shall
     have been made of all the estate of the debtor. 1836, June 16,
     P.L. 729, Sec. 29.
        Section 30.  After distribution, trustees to state and file
     accounts
        When the trustees shall have completed the distribution of
     the debtor's estate among the creditors, as aforesaid, they
     shall cause an account of the same to be stated, and filed in
     the office of the prothonotary aforesaid.  1836, June 16, P.L.
     729, Sec. 30.
        Section 31.  Necessity of personal notice
        Whenever the court shall have directed personal notice to be
     given to creditors, of the time and place fixed for hearing the
     petition of any debtor, as aforesaid, the discharge of such
     debtor shall not affect the rights and proceedings of those to
     whom personal notice shall not have been given, according to the
     order of the court.  1836, June 16, P.L. 729, Sec. 31.
        Section 32.  Effect of discharge of petitioner arrested out
     of his own county
        The discharge of any petitioner, who may have been arrested
     or imprisoned in any other county than that of his residence,
     shall not protect him from arrest or imprisonment for any debt
     except such as may be owing to the party at whose suit such
     debtor was arrested or imprisoned.  1836, June 16, P.L. 729,
     Sec. 32.
        Section 33.  Discharge not to release other persons
        The discharge of a debtor by virtue of this act shall not
     acquit or release any other person from any debt, contract or
     engagement, or other liability, to which he was subject, but all
     other persons shall be answerable for the same in like manner as
     if such discharge had not taken place.  1836, June 16, P.L. 729,
     Sec. 33.
        Section 34.  Trustees to be vested with property and rights
        The trustees appointed as aforesaid shall be deemed to be
     vested with all the estate and property of the insolvent, at the
     time of filing his petition, subject to all liens by mortgage,
     judgment, or otherwise, existing at that date, and it shall be
     their duty to take the same into possession, and all books,
     vouchers, and papers relating to the same, and shall be capable
     of suing for and recovering, in their own names, all such estate
     and property, and all debts and things in action belonging or
     appertaining to such insolvent at the time of his petition, as
     aforesaid.  1836, June 16, P.L. 729, Sec. 34.
        Section 35.  Bona fide purchases or assignments of real
     estate
        Provided, I.  That no purchase for assignment of the real
     estate of such insolvent, situate within the county made bona
     fide, and for a valuable consideration, before the date of the
     assignment to the said trustees, by or to any person not having
     actual notice or knowledge of the petition aforesaid, shall be
     invalidated or impeached thereby.
        II.  That no purchase or assignment of the real estate of
     such insolvent, situate in any other county, made bona fide, and
     for a valuable consideration, before the recording of the
     assignment to such trustees in such other county, by or to any
     person not having actual notice or knowledge of such petition or
     assignment, shall be invalidated or impeached thereby.
        III.  That no purchase or assignment of the personal property
     of such insolvent, made bona fide, and for a valuable
     consideration, by or to any person not having actual notice or
     knowledge of such petition or assignment, shall be invalidated
     or impeached thereby.
        IV.  That if any person indebted to such insolvent, or having
     possession of any of his property, shall bona fide pay the said
     debt, or deliver the said property to the said insolvent, before
     public notice given by the said trustees, as herein provided,
     and without having had actual notice or knowledge of such
     petition or assignment, he shall not be liable to pay or deliver
     the same to such trustees.
        V.  That every insolvent shall be entitled to retain all such
     articles as may by law be exempted from levy and sale upon
     execution.  1836, June 16, P.L. 729, Sec. 35.
        Section 36.  Trustees may recover property fraudulently
     conveyed
        If any insolvent, as aforesaid, shall, prior to such
     assignment, have conveyed or transferred any part of his real or
     personal estate to his wife and children, or either of them, or
     to any person in trust for them, or either of them, or shall
     have conveyed or transferred the same to any other person, with
     intent to defraud his creditors, the trustees aforesaid shall
     have power to recover and dispose of the same, as fully and
     effectually, as if the said insolvent had been actually seized
     or possessed thereof at the time of such assignment.  1836, June
     16, P.L. 729, Sec. 36.
        Section 37.  Choses in action of wife of insolvent
        Personal property of the wife of any such insolvent, which
     shall not have been reduced by him into possession, previously
     to his assignment as aforesaid, shall not be deemed to vest in
     the said trustees, but the beneficial interest in the same shall
     remain to such wife, and it shall be lawful for the court, at
     the time of such assignment, or at any subsequent time, to
     appoint a suitable person to act in her behalf, as trustee, in
     whom such property shall vest, for her use.  1836, June 16, P.L.
     729, Sec. 37.
        Section 38.  Debtors may retain exempt articles
        Every such debtor shall be entitled, notwithstanding his
     assignment, in conformity to this act, to retain for the use of
     himself and his family all such articles as are or may be by law
     exempted from levy or sale on any execution, or from distress
     for rent, and the property in such articles shall not pass to
     his trustees.  1836, June 16, P.L. 729, Sec. 38.
        Section 39.  Restoration of property or surplus
        If any such debtor shall satisfy the claims of his creditors,
     the court shall order his estate and effects, not sold, to be
     restored to him, or his legal representatives, and he shall, by
     virtue of such order, be seized or possessed thereof as of his
     former estate and title thereto, and if, upon the final
     settlement of accounts by the trustees, there shall be a
     surplus, after payment of all the claims presented and allowed,
     the same shall be paid to such debtor, or his legal
     representatives.  1836, June 16, P.L. 729, Sec. 39.
        Section 40.  After-acquired property to be subject to debts
        The real and personal estate acquired by any debtor, after
     his discharge as aforesaid, or in which he shall thereafter
     become entitled to any interest, legal or equitable (except such
     as may by law be exempted from execution), shall be subject to
     his debts, engagements, and other liabilities, in like manner,
     in all respects, as if such discharge had not taken place, and
     it shall be lawful for any of his creditors to issue and execute
     any new or other process against such real or personal estate,
     for the satisfaction of their respective claims, in the same
     manner as they might have done if such debtor had never been
     taken in execution.  1836, June 16, P.L. 729, Sec. 40.
        Section 41.  Exemption of after-acquired property by consent
        Whenever a majority in number and value of the creditors of
     any insolvent, as aforesaid, residing within the United States,
     or having a known attorney therein, shall consent in writing
     thereto, it shall be lawful for the court by whom such insolvent
     shall have been discharged, upon the application of such debtor,
     and notice given thereof, in the manner hereinbefore provided
     for giving notice of his original petition, to make an order
     that the estate and effects which such insolvent may afterwards
     acquire shall be exempted, for the term of seven years
     thereafter, from execution, for any debt contracted, or cause of
     action existing, previously to such discharge, and if, after
     such order and consent, any execution shall be issued for such
     debt, or cause of action it shall be the duty of any judge of
     the court from which such execution issued to set aside the
     same, with costs.  1836, June 16, P.L. 729, Sec. 41.
        Section 46.  Punishment of perjury by insolvent debtor
        If any such debtor shall be convicted of perjury, in respect
     to any oath or affirmation taken by virtue of this act, he shall
     be liable to arrest and committal, on mesne process, and to be
     charged in execution, in the same manner as if he had not before
     been arrested or taken in execution, or as if he had not made
     application for the benefit of this act, and, moreover, such
     person shall never afterwards be entitled to his discharge as an
     insolvent debtor, by virtue of this act.  1836, June 16, P.L.
     729, Sec. 46.
        Section 48.  Discharge of persons confined for small debts
        Every person who shall be confined in any jail of this
     Commonwealth, in execution or otherwise, for any debt, sum of
     money, fine or forfeiture, not exceeding in amount the sum of
     fifteen dollars, exclusive of costs, and who shall have remained
     so confined for the space of thirty days, shall be discharged
     from such confinement, if there be no other cause of
     confinement, and shall not be liable to imprisonment again for
     the same cause: Provided, that the estate and effects of such
     person shall, notwithstanding such discharge, be liable for such
     debt, or other cause of imprisonment, in like manner as before.
     1836, June 16, P.L. 729, Sec. 48.