« PreviousContinue »
case all must meet together and hear all the allegations and proofs of the parties; but a majority may determine all questions submitted to or arising before them.
Sec. 428. DEATH OF PARTY.—If the death of either party shall happen pending the trial or hearing of a cause before a referee, the reference shall be at an end. If such death shall occur after the cause is submitted to the referee for final judgment or decree, the referee shall return his award, and thereupon the representative of such decedent may appear, or be required by the adverse party to appear, as provided in chapter two, and the cause thereupon be proceeded with as if such death had not occurred.
Sec. 429. DEATH OF REFEREE.—If any referee shall die before making his award, the court shall, upon the consent of the parties or their counsel, appoint a referee, who shall have the same power to act as if originally appointed by mutual consent of the parties.
Sec. 430. COMMON-LAW REFERENCES.-Nothing herein contained shall prevent the court from referring a cause to an arbitrator, subject to the ratification of his award by the court, according to the course of the common law and the former practice of the court.
Sec. 431. JUDGMENTS.-A judgment or money decree may be assigned in writing, and upon the assignment thereof being filed in the clerk's office the assignee may maintain an action or sue out a scire facias or execution on said judgment in his own name, as the original plaintiff might have done.
Sec. 432. Bonds.--Any bond or obligation under seal for the payment of money may be assigned under the name and seal of the obligee therein named, and the assignee may maintain an action thereon in his own name.
Sec. 433. NONNEGOTIABLE CONTRACTS.-All nonnegotiable written agreements for the payment of money, including nonnegotiable bills of exchange and promissory notes, or for the delivery of personal property, all open accounts, debts, and demands of a liquidated character, except claims against the United States or the salaries of public officers, may be assigned in writing, so as to vest in the assignee a right to sue for the same in his own name.
Sec. 434. GENERAL ASSIGNMENTS.-In case of a general assignment which shall include choses in action, it shall not be necessary to execute a separate assignment of each chose in action, but the assignee shall be entitled, by virtue of the general assignment, to sue in his own name on the several choses in action included therein.
Sec. 435. INVENTORY.-In all cases of voluntary assignments hereafter made in the District of Columbia for the benefit of creditors, the debtor shall annex to such assignment an inventory, under oath or affirmation, of his estate, real and personal, according to the best of his knowledge, and also a list of his creditors, their respective residences and places of business, if known, and the amounts of their respective demands; but such inventory shall not be conclusive as to the amount of the debtor's estate, and such assignment shall vest in the assignee the title to any other property, except what is legally exempt, belonging to the debtor at the time of making the assignment and comprehended within the general terms of the same.
Sec. 436. The assignee in every such assignment shall be a resident of the District of Columbia, his assent shall appear in writing in, or at the end of, or indorsed on, the assignment, and the assignment shall be invalid unless duly acknowledged and recorded within five days after its execution in the land records of the said District. The trust created by such assignment shall be executed under the supervision and control of the supreme court of the District of Columbia.
Sec. 437. BOND OF ASSIGNEE.-Immediately upon the filing of such assignment for record it shall be the duty of the assignee to execute and file in the clerk's office of the supreme court of the District his bond to the United States, in an amount and with security to be approved by the justice holding the equity court, conditioned for the faithful performance of his duties according to law, and said court may from time to time require said assignee, or any trustee appointed in his place, to give additional security whenever the interests of the creditors demand the same.
Sec. 438. APPOINTMENT BY COURT.-If the assignee named in any such assignment shall fail or refuse to comply with any of the requirements aforesaid, the justice holding the equity court may, on the application of the assignor or any creditor interested in such assignment, remove said assignee and appoint a trustee in his place to execute the trusts created by said assignment, who shall give bond as the court may require. And said court shall have power to accept the resignation of any assignee or trustee, and in case of his resignation, death, or removal from the District to appoint a trustee in his place. The court shall also have power, for cause shown, on the application of any surety, creditor, or other person interested, to remove any assignee or trustee and appoint a trustee in his place, and to make and enforce all orders necessary to put the newly appointed trustee in pos
session of all property, moneys, books, papers, and other effects covered by the assignment. And in case of the death of any assignee or trustee the court may require his executor or administrator to settle the account of said assignee or trustee and to deliver over to his successor all property and other effects belonging to the trust, in default of which said successor may bring suit upon the bond of said deceased assignee or trustee or upon the bond of such executor or administrator, accordingly as such assignee or trustee, executor or administrator is the party in default.
Sec. 439. DUTIES OF ASSIGNEE.-It shall be the duty of the assignee or trustee, after giving bond as aforesaid, to collect and take into his possession all the property and effects covered by the assignment, and to that end he may bring suit in his own name to recover debts due or property belonging to the assignor and embraced in the assignment. And the court may require the assignor to be examined under oath touching his said property, and may pass all orders necessary to prevent any fraudulent transfer of or change in the property of the assignor. The said assignee or trustee shall return inventories of the assets coming to his hands and, under the direction of the court, sell and dispose of the same, and his conveyance of any property of the assignor, real or personal, shall transfer the entire title of the assignor therein to any purchaser. When the assets have been converted into money the said assignee or trustee shall settle his accounts and make distribution among the creditors, under the direction of the court, according to the usual course of proceeding in equity in creditor's suits.
Sec. 440. PREFERENCES TO BE VOID.—Every provision in any voluntary assignment hereafter made for the payment of one debt or liability in preference to another shall be void, and all debts and liabilities within the provisions of the assignment shall be paid pro Tata from the assets; Provided, That nothing herein contained shall be held to affect the priority of liens and incumbrances created bona fide and existing before the execution of such assignment.
Sec. 441. CREDITORS TO BE EQUAL.-Any proceeding instituted under this law by one or more creditors shall be deemed to be for the equal benefit of all creditors, but the court may make such allowance to the creditor or creditors instituting the same, out of the fund to be distributed, for expenses, including counsel fees, as may be just and equitable.
Sec. 442. FRAUDULENT 'ASSIGNMENTS.-Nothing herein contained shall prevent any creditor otherwise entitled from attacking any assignment as made to hinder, delay, or defraud the creditors of the assignor, and whenever any such assignment shall appear to the court to have been made with such intent, the court may enjoin any proceeding thereunder, and upon finally decreeing the same to be void may appoint a trustee with power to take possession of all the effects of the debtor and may pass and enforce all orders necessary to put him in possession of the same, and said trustee shall qualify in the same manner and perform the same duties as the trustee provided for in the aforegoing sections.
Sec. 443. NOTICES TO CREDITORS.----In all cases of assignment the court shall require the trustee or trustees, whether named in the assign
ment or appointed by the court, in pursuance of the sections aforesaid to give notice as the court may think proper to all the creditors of thi assignorto produceand prove their respective claims against the assigno before the auditor of the court, to the end that they may be fairly adju dicated and the said creditors may share equally the assets of the insol vent assignor, subject, however, to any legal priorities created by valic incumbrances antedating the assignment.
Sec. 444. EXEMPT PROPERTY NOT TO BE INCLUDED.—No assignment for the benefit of creditors shall be construed to include or cover any property exempt from levy or sale on execution unless the exemption is expressly waived; and the court may direct the manner in which exempt property may be ascertained and set aside before any sale by the trustee or trustees.