Schedule of debtor's ef oath. before any one judge of the said court, at a certain time and place therein to be appointed, and if an inferior court, before any two justices of said court, at their county court-house, likewise on a certain day to be appointed in such warrant, the body or bodies of such person or persons so in prison as aforesaid, together with a list of the several executions, with which he or she shall stand charged in the said jail, which warrant such jailer is hereby required to obey; and ten days notice1 thereof shall be given to the party or parties, or their executors, administrators, or agents, at whose suits such prisoner or prisoners shall be in execution; and every such prisoner coming before the said court, judge, or justices, as the case shall be, shall subscribe and deliver in a schedule of his whole estate, and make oath and swear to the effect following, that is to say: "I, A. B. do, in the presence of fects to be Almighty God, solemnly swear (or affirm, as the case may be,) that the rendered on schedule now delivered, and by me subscribed, doth contain, to the best of my knowledge and remembrance, a full, just, true, and perfect account and discovery of all the estate, goods, and effects, to me in any ways belonging, and such debts as are to me owing, or to any person in trust for me, and of all securities and contracts whereby any money may hereafter become payable, or any benefit or advantage accrue to me, or to my use, or to any other person or persons in trust for me; and that I, or any other person or persons, in trust for me, have not land, money, stock, or any other estate, real or personal, in possession, reversion, or remainder, of the value of the debt or debts with which I am charged in execution; and that I have not directly or indirectly sold, lessened, or otherwise disposed of, in trust, or concealed all or any part of my lands, money, goods, stock, debts, securities, contracts, or estate, whereby to secure the same, or to receive or expect any profit or advantage therefrom, or to defraud or deceive any creditor or creditors to whom I am indebted, in any wise howsoever: So help me God." Which schedule being so subscribed in open court, if taken in court, and if not, in the presence of one judge or two justices, shall be returned to the clerk of the court, there to remain for the better infor mation of the creditor; and after delivering in such schedule, and taking such oath, and delivering up all evidences of debt in his possession, [a1833-(18) and orders for such as are not in his possession, such prisoner shall Sec. 1.] be discharged by warrant from such court, or from one judge, or two justices, (as the case may be,) which warrant shall be sufficient to indemnify such sheriff or officer, against any escape or escapes, action or actions, whatsoever, which shall or may be brought, or prosecuted against him or them, by reason thereof; and if any action shall be commenced against any sheriff or officer, for performing his duty in pursuance of this act, he may plead the general issue, and give this act Property sub-in evidence: Provided always, That notwithstanding such discharge, sequently ac- it shall be lawful for any creditor or creditors, by judgment, at any to execution. time afterward, to sue out a writ of fieri facias, to have an execution quired, liable against any lands or tenements, goods or chattels, which such insolvent person shall thereafter acquire, or be possessed of; but no per son, delivering in such schedule, and having taken the said oath, shall again be imprisoned on account of any judgment which shall have been obtained against him, previous to the time of taking such oath, unless by virtue of a capias ad satisfaciendum, directed to issue by the court in which the said judgment shall have been rendered: And 1 The prisoner may be discharged without notice, when the plaintiff in execution lives in another county, and has not appointed an agent in the county of the defendant's residence.-See "Executions,"-§ 75. may have provided also, That any person confined within the limits of any pri- Debtors in son bounds, shall be entitled to the benefit of this act, in the same man- the bounds, ner, and under the same regulations, as those confined in jail; and all the benefit of bonds given for the keeping of the said prison bounds, shall be null and this act. void, after such prisoner shall be so discharged.a a See § 12. Sheriff to sell property. 3. All the estate which shall be contained in such schedule, and Ib. Sec. 24. any other estate which may be discovered to belong to the prisoner, or such interest therein as such prisoner hath and may lawfully depart withal, shall be vested in the sheriff of the county, wherein such lands, tenements, goods, or chattels, shall lie or be found, and such sheriff is hereby authorized, empowered, and required, within sixty days after the taking of the said oath, ten days previous notice of the time and place of sale being given, to sell and convey the same to any person or persons whatsoever, for the best price that can be got for the same; and the money arising from such sale, shall be by such sheriff or officer paid to the creditor or creditors, at whose suit such prisoner or prisoners shall be imprisoned, saving to every such prisoner, his or her necessary apparel, utensils of trade, and arms for the defence of himself and his country; and if any sheriff or other officer, shall fail to pay the money arising from such sale according to law, he shall be liable to the same penalty, to be recovered in the same manner, and by the same persons, as if the said money had been levied by a fieri facias. perty in another, how recoverable. § 4. When any insolvent debtor shall be discharged pursuant to this b. Sec. 25. act, and the schedule subscribed and delivered in by such prisoner, Debts, or proshall contain money due to such prisoner, or of goods, chattels, or possession of estates, belonging to him, and in the possession of another, in that case the clerk of the court, with whom such schedule is directed to remain, shall immediately issue a summons against each of the persons named as debtors in the said schedule, and against such others as are therein said to have possession of any goods, chattels, or estates, of the property of the prisoner, reciting the sum of money he or she is charged with, or the particular goods, chattels, or estates, said to be in his possession, and requiring him or her to appear at the next court, and declare on oath, whether the said money or any part thereof, be really due to such prisoner, and whether such goods, chattels, or estate, be really in his or her possession, and are the property of such prisoner; and if the person so summoned shall fail to attend according to such summons, or to show good cause for his non-attendance, it shall be lawful for the court to enter judgment against every such person for the money, goods, chattels, or estates in such schedule mentioned, together with costs of suit, a lawyer's fee excepted, and if any such person so summoned, shall appear and be sworn, judgment shall be entered for so much of the money, goods, or chattels, or estates, as he or she shall acknowledge to be due, or to be of the property of such prisoner, and in his possession, with costs as aforesaid, which judgment shall be entered in the name of the sheriff, who may thereupon proceed to levy the execution, as in other cases, and to dispose of the money, goods, chattels, or estates, so recovered, in the same manner as the estate contained in the schedule, is hereby directed to be disposed of: Provided always, That where any such Proviso. garnishee shall not acknowledge the whole money to be due, or all the goods, chattels, or estates, mentioned in the schedule, to be the property of the prisoner, and in his possession, the sheriff, or such 1 Garnishee is liable to costs only after summons and default. See "Garnishment,”—§ 6. Ib. Sec. 26. to the sheriff, how paid. Ib. Sec. 27. Fees for keeping in ors, how paid. prisoner, at any time after, unless barred by any of the acts limiting the time for the commencement of actions, shall be at liberty to claim the residue by legal process, and the former judgment as to such gar nishee, shall be no further bar in such process, than for so much money, or such goods, chattels, and estates, as the garnishee is thereby ordered to pay or deliver. § 5. Every sheriff shall be allowed to retain out of the effects of such insolvent debtor, before the distribution thereof, all reasonable expenses in recovering such money, goods, chattels, and estates as aforesaid, including such a fee to a lawyer for the proceeding against the garnishee, as shall be judged reasonable by the court; and if such effects be not sufficient, he shall be reimbursed such expenses by the creditor or creditors, if more than one, in proportion to their demands. § 6. Where such insolvent shall not be able to satisfy or pay his or dinary prison fees, the sheriff or jailer may demand and receive of the solvent debt-party or parties at whose suit such insolvent person shall be imprisoned, all such fees as shall become due, until such creditor shall agree to release such prisoner; and if the creditor, upon notice given to him or her, his or her attorney or agent, shall refuse to give security to the sheriff or jailer, for the payment of such prison fees, or shall fail to pay the same when demanded, such sheriff or jailer shall discharge such debtor out of the prison: Provided, nevertheless, That such insolvent prisoner shall be afterward liable to the action of the creditor to recover such fees; and such creditor may, notwithstanding his consent to the releasing such prisoner, at any time afterward, sue out a scire facias to have a new execution against the lands and tenements, goods and chattels of such prisoner, in case he or she shall afterward become possessed of any. Ib. Sec. 28. allowed only § 7. When any debtor is in custody on several executions, it shall Debtor to be not be lawful for such debtor to demand any more or other diet, than single ration, if he was in custody on one execution only; nor shall any sheriff or single fees. jailer demand or receive more than the rate fixed by law, in case of a debtor confined on one execution only, which shall be paid by the creditor at whose suit such debtor was first taken. and sheriff 1811-(11) Sec. 27. original or mesne pro discharged in § 8. Where any person may be in custody, upon original or mesne Debtors in process, such person shall be entitled to the benefit of the provisions custody upon of the act entitled "An Act concerning executions, and for the relief of insolvent debtors," in the same manner as is therein provided for cess may be persons charged in execution: Provided nevertheless, That no plainlike manner. tiff, in any suit against any person, who may have availed himself or a See the pre- herself of the provisions of the aforesaid act, and who shall not have obtained final judgment against such defendant, taking the benefit of the aforesaid act, shall receive any part of the proceeds of the estate of such prisoner, in the distribution thereof, to the prejudice of any per son who may have charged the same prisoner in custody upon execu tion. ceding act. 1821-(7) Sec. 1. Debtor wish ing to surgive bond. § 9. When any person may be taken on mesne process, or be taken in actual custody, or be charged in execution, and be desirous to deliver up his or her property for the benefit of his or her creditors, in render, shall order to be discharged from arrest or imprisonment, he or she shall enter into bond with sufficient security, for the amount for which he or she shall be taken into custody, or be charged in execution, to the sheriff or other officer arresting such person, or charging him or her in execu tion, conditioned that he or she will personally appear and make surrender, in such manner as is now required by law, of his or her property or effects, for the benefit of his or her creditors, at such time arrest, may nefit of this and place as may be designated by the judge, or two justices of the county, where such person may make his or her application ;(1) or when any person may conceive him or herself unable to pay, satisfy, How persons or discharge, his or her debts, and may be desirous to exonerate him not under or herself from arrest, confinement, or the operation of legal process, have the be and shall make known to any judge of the circuit courts of this state, law. or to any judge of the county court, or to the justices of the peace of the county where the application may be made, the names and residence of his or her creditors, or where they resided when the debts were contracted, and of his or her wish and intention, to exonerate him or herself from imprisonment, arrest, or legal process, it shall be the duty of the judge or justices to whom the application may be made, to appoint a time and place, and to cause at least ten days' notice to Creditors to be given to the creditors, their agents, or attorneys, if within this be notified. state, and if without the state, twenty days' notice by advertisement in some public paper or papers, near where the creditors resided when the debts were contracted, or by causing notice to be served on them, of the application of the debtor, and of the time and place appointed by him or her to make his or her surrender, and to obtain for his or her person, a discharge from arrest or confinement. for surrender schedule with oath. 10. The applicant coming before the judge or justices, (as the case Ib. Sec. 2. may be,) at the time and place appointed, shall subscribe and deliver Applicants in a schedule of his whole estate, and make oath to the effect of that to deliver now required by law, in relation to insolvent debtors, with the exception of such articles as are, or hereafter by law may be reserved to every family, or be exempted by law from seizure or execution, which schedule, and the property therein mentioned, shall be disposed of in the manner directed by the existing laws, for the benefit of his or her creditors generally. Whereupon such debtor shall be dis- Debtors to be charged by warrant from the judge or justices, to whom the applica- discharged. tion may be made: Provided, nevertheless, That it shall be lawful for any creditor or creditors, to prosecute his or their claim or claims to Property ac judgment, or by judgment at any time afterward obtained, to sue out a quired after surrender, writ of scire facias, and to have execution against any lands or tene- subject, ments, goods or chattels, which such insolvent person may thereafter acquire, or be possessed of; but no person delivering in such sche- but no impridule, and having taken the oath prescribed by this section, shall after-sonment for ward be subject to imprisonment, arrest, or confinement, on account debts. of any debts contracted, due, or owing, previous to the surrender of his or her property. previous Penalty for false return. § 11. Any insolvent debtor who may wish to avail himself of the Ib. Sec. 3. benefit of this act, and who shall wilfully and knowingly make a false return and surrender of his or her property or estate, or any part thereof, under the provisions of this act, and be convicted thereof, shall be subject to all the pains and penalties prescribed by law against perjury, and shall never thereafter be entitled to the privileges or benefits extended by this act. 12. No person in custody shall have the liberty of the prison b. Sec. 4. bounds, who shall neglect or refuse for sixty days, to take the benefit Time limit. of this act. (1) A security in a bond for the appearance of an insolvent debtor, to render his schedule, &c. under the act of 1821, is not liable, if the debtor does appear and obtain his discharge, although it be obtained fraudulently, provided the security be not a party to the fraud;--and such defence may be pleaded to an action on the bond. Davis' Executors v. Cathey, 1 Stewt. Rep. 402. ed. Ib. Sec. 5. fined, may § 13. All persons ordered to be imprisoned for failing to pay any fine imposed by law, who shall be unable to pay the same, shall have take the be the benefit of this act, subject to the same rules and restrictions ap plicable to other debtors. nefit of this act. 1824-(30) Sec. 1. Debtor's bond to be the plain tiff. dorsement. § 14. The bond directed to be taken by the first section of an act entitled "An Act amendatory to the laws now in force for the relief of insolvent debtors," passed June fifteenth, one thousand eight hunassigned to dred and twenty-one,a from any person taken on mesne process, or in actual custody, or charged in execution, and who may be desirous of delivering up his or her property for the benefit of his or her creditors, in order to be discharged from arrest or imprisonment, shall, by the sheriff or other officer to whom such bond is, by said act, direct ed to be given, be assigned to the plaintiff or plaintiffs at whose suit such person shall be arrested, charged in execution, or taken into cusForm of en- tody, by endorsement thereon, in the following form, to wit: “I, A. B., sheriff (or coroner, or constable as the case may be) of the county of do hereby assign the within obligation and condition to C. D., his executors and administrators, to be sued for according to the statute in such cases made and provided. In witness whereof, I have hereunto set my hand and affixed my seal, this day of :" which assignment shall be made before the time mentioned in the condition annexed to such bond, for the personal appearance of the principal obligor Bond forfeit thereof, and the surrender of his or her effects; and should such bond turned to the be forfeited, the sheriff or other officer taking the same shall, within clerk's office, ten days after the time of such forfeiture, return the bond to the clerk's or to the jus office of the court from which the mesne process or execution issued, and by virtue of which the principal obligor on such bond was arrested or taken in execution, or to the justice of the peace who issued such process or execution, (as the case may be,) with an endorsement on such bond, that the same is forfeited. ed, to be re tice issuing process. Ib. Sec. 2. court forfeit in the year of our Lord, § 15. When any bond shall be returned forfeited to the clerk's office bond is re- of any county or circuit court of this state, pursuant to the provisions turned to of the first section of this act, it shall be the duty of the clerk to ed, a scire fa- whose office the same may be so returned, on application of the person cias shall is- or persons to whom such bond may be assigned, his or their agent of the obligors. attorney, to issue a scire facias returnable to the next county or cir sue against cuit court, as the case may be, against all the obligors in such bond, or any or either of them, or all or either of their executors or adminis trators, requiring them, or any or either of them, to appear at such court and show cause why the plaintiff or plaintiffs should not have execution against them, for the full amount claimed by the plaintiff or plaintiffs to the mesne process or execution, by reason of which the principal obligor to such bond was arrested or charged in execution; and upon such scire facias returned "made known," the defendant or defendants shall appear and plead, and trial be had at the first term, unDefendants less sufficient cause be shown for a continuance: Provided,That if such failing to ap defendant or defendants do not appear and plead, within the first three ment by de- days of the court to which such scire facias shall be returned "execut fault. ed," the plaintiff or plaintiffs may take judgment by default: And provided also, that the return of two nihils shall be considered a service. Ib. Scc. 3. § 16. Where any bond shall be returned "forfeited," before any jus bond is re- tice of the peace of any county in this state, pursuant to the provi turned for sions of the first section of this act, it shall be the duty of such tice of the justice, upon the application of the person or persons to whom such peace, a sum- bond may be assigned, his, her, or their agent or attorney, to issue ture of a sci. a summons in the nature of a scire facias, against all, any, or either pear, judg When the feited, to jus mons in na fa. shall is sue. |