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. The People of the State of New York, represented in Senate and Assembly, do enact as follows:
$ 1. No person shall be arrested or imprisoned on any civil Imprison process issuing out of any court of law, or on any execution debt abolissuing out of any court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree, founded upon contract, or due upon any contract, express or implied, or for the recovery of any damages for the non-performance of any contract.
1 N. Y., 147; 28 B., 49; 10 B., 533 ; 3 B., 29; 1 D., 175; 7 H., 578; 11
Pai., 605 ; 5 Pai., 80; 4 Pai., 397; S. S.C., 281; 19 W., 11; 18 W.,
See Laws of 1840, ch. 165; 1846, ch. 209. $ 2. The preceding section shall not extend to any person Exceptions. who shall not have been a resident of this state, for at least one month previous to the commencement of a suit against him; nor to proceedings as for contempts to enforce civil remedies; nor to actions for fines or penalties, or on promises to marry, or for moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment.
1 D., 175; 19 W., 11; 18 W., 512; 10 W., 602; 9 W., 503. S 3. In all cases where, by the preceding provisions of this Warrant to act, a defendant cannot be arrested and imprisoned, it shall be applied be lawful for the plaintiff who shall have commenced a suit against such defendant, or shall have obtained a judgment or decree against him, in any court of record, to apply to any judge of the court in which such suit is brought, or to any officer authorized to perform the duties of such judge, for a warrant to arrest the defendant in such suit.
1 N. Y., 337; 26 B., 257; 4 H., 577; 16 W., 546; 10 W., 607. See Laws
of 1848, ch. 48. $ 4. No such warrant shall issue, unless satisfactory evi- Evidence to dence be adduced to such officer, by the affidavit of the plication. plaintiff, or of some other person or persons, that there is a debt or demand due to the plaintiff, from the defendant, amounting to more than fifty dollars, and specifying the nature and amount thereof, as near as may be, for which the defendant, according to the provisions of this act, cannot be arrested or imprisoned; and establishing one or more of the following particulars:
1. That the defendant is about to remove any of his property out of the jurisdiction of the court in which such suit is brought, with intent to defraud his creditors: or,
support apPART II.
may be is. sued.
2. That the defendant has property or rights in action, which he fraudulently conceals, or that he has rights in action, or some interest in any public or corporate stock, money or evidences of debt, which he unjustly refuses to apply to the payment of any judgment or decree which shall have been rendered against him belonging to the complain
3. That he has assigned, removed or disposed of, or is about to dispose of, any of his property, with the intent to defraud his creditors: or,
4. That the defendant fraudulently contracted the debt or incurred the obligation, respecting which such suit is brought.
12 N. Y., 326; 1 N. Y., 337; 6 H., 429; 16 W., 546; 15 W., 462; 10 W.,
607. See Laws of 1840, ch. 377. Warrant
$ 5. Upon such proof being made to the satisfaction of the officer to whom the application shall be addressed, he shall issue a warrant, in behalf of the people of this state, either with or without seal, directed to any sheriff, constable or marshal, within the county where such officer shall reside, therein briefly setting forth the complaint, and commanding the officer to whom the same shall be directed, to arrest the person named in such warrant, and bring him before such officer without delay; which warrant shall be accompanied by a copy of all affidavits presented to such officer, upon which the warrant issued; which shall be certified by such officer, and shall be delivered to the defendant, at the time of serving the warrant, by the officer serving the same.
16 B., 426; 5 H., 605; 10 W., 578, 607. $ 6. The officer to whom such warrant shall be delivered, shall execute the same, by arresting the person named therein, and bringing him before the officer issuing such warrant; and shall keep him in custody until he shall be duly discharged,
or committed as hereinafter provided. Charge may
$ 7. On the appearance of the person so arrested, before verted. the officer issuing such warrant, he may controvert any of the
facts and circumstances on which such warrant issued, and may, at his option, verify his allegations by his own affidavit; and in case of his so verifying the same, the complainant may examine such defendant on oath, touching any fact or circumstance material to the inquiry, and the answers of the defendant on such examination, shall be reduced to writing and subscribed by him; and the officer conducting such inquiry, shall also receive such other proof as the parties may offer, either at the time of such first appearance, or at such other time as such hearing shall be adjourned to; and in case of an adjournment, such officer may take a recognizance, with or without surety, at his discretion, from the defendant, for his appearance at the adjourned hearing.
6 H., 429; 16 W., 546; 10 W., 609. See Laws of 1840, ch. 377. Power of S 8. The officer conducting such inquiry, shall have the ing warraui same authority to issue subpænas for witnesses, which is now
llow to be executed.
mitment may be
conferred by law on any officer empowered to hear applications of insolvents, for the purpose of exonerating their persons from imprisonment, and shall have the same power to enforce obedience to such subpænas, and to punish witnesses refusing to testify; and witnesses wilfully disobeying any such subpænas, shall be liable to the penalties prescribed in the seventh article of title first and chapter fifth of the second part of the Revised Statutes.
$ 9. If such officer is satisfied that the allegations of the casehat complainant are substantiated, and that the defendant has daut may done, or is about to do, any one of the acts specified in the ted to jail fourth section of this act, he shall by a commitment under his hand, direct that such defendant be committed to the jail of the county in which such hearing shall be had, to be there detained until he shall be discharged according to law; and such defendant shall be committed and detained accordingly
6 H., 429; 4 H., 606; 10 W., 584, 609. S 10. Such commitment shall not be granted, if the defen- When comdant shall either,
1. Pay the debt or demand claimed, with the costs of the avoided. suit and of the proceedings against him: or,
2. Give security to the satisfaction of the officer before whom the hearing shall be had, that the debt or demand of the plaintiff, with the costs of the suit and proceedings aforesaid, shall be paid within sixty days, with interest: or,
3. Make and deliver to such officer an inventory of his estate and an account of his creditors, and execute an assignment of his property as hereinafter provided, on which the same proceedings shall be had as upon a petition of such defendant in the manner herein after directed, except that no notice to the plaintiff shall be requisite; and no adjournment shall be granted for more than three days, except at the instance of the defendant; and a discharge shall be granted in the like case, and with the same effect: or,
4. Enter into a bond to the complainant, in a penalty not less than twice the amount of the debt or demand claimed, with such sureties as shall be approved by such officer, conditioned that such defendant, will, within thirty days, apply for an assignment of all his property, and for a discharge, as provided in the subsequent sections of this act, and diligently prosecute the same until he obtains such discharge: or,
5. If such defendant shall give a bond to such plaintiff, in the penalty and with the sureties above prescribed, conditioned that he will not remove any property which he then has, out of the jurisdiction of the court in which such suit is brought, with the intent to defraud any of his creditors; and that he will not assign or dispose of any such property, with such intent, or with a view to give a preference to any creditor for any debt, antecedent to such assignment or disposition, until the demand of the plaintiff, with the costs, shall be satisfied, or until the expiration of three months after a final
on criminal process.
judgment shall be rendered in the suit brought for the recovery of such demand.
17 B., 538; H. & D., 81; 5 D., 554; 3 D., 607; 4 H., 577, 606; 15 W.,
462; 10 W., 578. See Laws of 1837, ch. 418. Custody as $ 11. Any defendant committed as above provided, shall
remain in custody in the same manner as other prisoners on criminal process, until a final judgment shall have been rendered in his favor, in the suit prosecuted by the creditor, at whose instance such defendant shall have been committed, or until he shall have assigned his property and obtained his discharge, as provided in the subsequent sections of this act: but such defendant may be discharged by the officer committing him; or any other person authorized to discharge the duties of such officer, on such defendant paying the debt or demand claimed, or giving security for the payment thereof, as provided in the tenth section of this act, or on his executing either of the bonds mentioned in the said section.
15 W., 462. Petition for $ 12. Any person committed as above provided, or who a discharge. shall have given the bond specified in the fourth subdivision
of the tenth section of this act, or against whom any suit shall have been commenced in a court of record, in which such person by the provisions of this act, cannot be arrested or imprisoned, may present a petition to a justice of the supreme court, a circuit judge, any judge of a county court, or any supreme court commissioner in the county in which such defendant resides or is imprisoned, praying that his property may be assigned, and that he may have the benefit of the provisions of this act.
29 B., 472; H. and D., 81; 5 D., 554; 4 H., 606; 3 H., 110.
S 13. On presenting such petition, such defendant shall account and deliver an account of his creditors, and an inventory of his
estate, similar in all respects to the account and inventory required of a debtor, by the sixth article of title first and chapter five of the second part of the Revised Statutes; and shall annex to the said petition, account, and inventory, an affidavit, which shall be taken and subscribed by him, before the officer to whom such petition is presented, similar in all respects to the oath required by the fifth section of the sixth article of the aforesaid title and chapter.
H. and D., 81. S 14. Fourteen days' previous notice of the time and place at which, and of the officer to whom such petition will be presented, together with a copy of such petition, and the account and inventory thereto annexed, shall be served personally on the plaintiffs by whom such defendant shall be prosecuted, their personal representatives or their attorney; and proof of such service shall be made at the time of presenting such petition.
Notice of same.
$ 15. Any creditor of such petitioner may oppose such who may application, and may examine the petitioner, his wife or any petition. other witness, in the manner prescribed in the third article of the aforesaid first title and fifth chapter, and shall be entitled to the like process to compel their attendance and testimony; and such witnesses shall, in all respects, be subject to the provisions of the seventh article of the said title, for their neglect to obey subpænas, or to testify.
13 B., 617. S 16. Upon sufficient cause shown by the petitioner, or by Adjournany creditor, the officer to whom such petition is addressed, may adjourn the hearing thereof, not exceeding thirty days; and if, at any hearing of such petition, the opposing creditor shall fail to satisfy such officer that the proceedings on the part of the petitioner are not just and fair, or that he has concealed, removed or disposed of, any of his property, with intent to defraud his creditors; such officer shall order an assignment of all the property of such petitioner, in the same manner as provided in the fifth article of the first title of the fifth chapter of the second part of the Revised Statutes, except such as is therein exempt; which assignment shall be executed with the like effect as declared in the said article, and shall be recorded in the same manner.
2 B. Ch., 291 ; 10 W., 585. $ 17. Such officer shall appoint one or more assignees, to Assignee to
be appointwhom such petitioner shall assign all his estate; and upon ed. producing to such officer, evidence that such assignment has been recorded, and a certificate of the assignees, that all the property of such petitioner, specified in his inventory, has been delivered to them, or that he has given satisfactory security for the future delivery of the same, such officer shall grant to the petitioner a discharge, which shall exonerate him from being proceeded against by any creditor entitled to a dividend of the estate of such petitioner, as hereinafter provided, under the third, fourth, fifth, sixth, seventh, eighth and ninth sections of this act, for any fraud committed or intended before such discharge.
2 B. Ch., 291; see Laws of 1845, ch. 214. S 18. The assignees to whom such assignment shall be Rights and made, shall be vested with all the rights and powers over the Poignee. property so assigned, which are specified in the eighth article of the first title of chapter five of the second part of Revised Statutes, and shall be subject to the same duties, obligations and control, in all respects, and shall make dividends; and vacancies in their number, shall be supplied as therein directed.
2 B. Ch., 291. $ 19. The general provisions applicable to proceedings under General the several articles of the said first title, and which are con- provisions.