(§ 17, 1 R. L., 162,) it is deemed better to transfer to executors, &c., the whole property; thus the rights acquired by attaching creditors to distribution, under that section, without regard to specialities, will be preserved, and uniformity in the law produced."

[S 62. Same as § 65 R. S.] Original note. "It is implied in the 25th section of the same act, that the sheriff is to return the warrant, but no time is specified. It would seem proper that he should retain the evidence of his authority so long as he is obliged to retain the property, which is until the appointment of trustees."

[S 63, 64. Same as § 66, 67 R. S. § 63 reported as "new."]

[S 65. Same as § 68 R. S.] Original note. "25th section of same act, p. 163, varied by substituting the supreme court in all cases, and removing a doubt that might arise as to the effect of the report as evidence of debts."

[$ 66, 67. Same as § 69, 70 R. S.] Original note. "In 3 Johns. Cas., 141, the supreme court decided that a certiorari was the proper course to bring the proceedings before it. That principle is adopted in this and the last sections, the proceeding regulated, its effect declared, and the powers of the court enlarged to meet all exigencies."

[S 68, 69. Same as § 71, 72 R. S.]

Original note. "The two last sections new. In the case of a bond to discharge the warrant, it is an entire substitute for bail; and the creditors should have the same means of compelling sufficient security, as if process had been personally served. In other cases, the property attached is discharged by giving the bond, which is a substitute for it, and of which it would seem the creditor ought to have some means of ascertaining the responsibility."

[$ 70. Same as § 73 R. S.] Original note. "New; inserted to remove a doubt that might exist as to the priority of the liens of these different attachments."

Original note to Article. "A part of the first section of the absconding debtor act declaring that persons subject to be proceeded against under the bankrupt laws of the United States, should be exempted from the provisions of the act, is omitted. Such a law existed when the act was first revised in 1801, but was soon after repealed. If retained at all, it should be extended to other cases of proceedings against debtors. But there does not appear any necessity for declaring the effect of laws of congress. If a bankrupt law should be passed, its consequences upon state laws may more safely be left to future determination, than it can be declared by a gratuitous and premature act of the state legislature.

"Several other provisions are omitted, particularly those relating to pleadings, as falling more appropriately in other divisions."

"ARTICLE IL-Of attachments against debtors confined for crimes." [S 1. Same as enacted.]

Original note. "Part of 29th section of same act, enlarged to embrace the case of persons in county jails or penitentiaries, who seem to be within its reason, and also allowing application by relatives. The present law considers indebtedness as an unimportant circumstance, for it specifies no sum; its policy undoubtedly is, to have

such estates taken care of under legal authority. It would seem that his relatives were as much entitled to the trust, at least as a nominal creditor."

[§ 2, 3, 4, 5.] Original note to § 3. "Part of same 29th section, and the implied effects fully expressed."

"ARTICLE III. Of voluntary assignments, made pursuant to the application of an insolvent and his creditors."

[S1. Same as enacted. § 2. Same as enacted; the following words at the end of the reported in italics: " To creditors residing within the United States."]

Original note. "1st section of act for giving relief in cases of insolvency, 1 R. L. 460. The words in italic new in form, but supposed to conform to the intent of the act, as evinced by the 8th section, p. 464, which excepts debts due to creditors without the United States, unless two-thirds of foreign and domestic debts are signed off; in which case the discharge is to operate on foreign debts. The whole current of authorities on these laws, settles beyond dispute, that foreign creditors cannot be affected by a discharge, without their consent. It is therefore proposed to omit the provisions respecting them; and as their debts cannot be taken into the account, in respect to the effect of the discharge, they ought not to be regarded in determining the number of petitioning creditors."

[S 5. Same as enacted, except the words "and the place where such indebtedness accrued," added to the 4th subdivision by the legislature. The whole of the 5th subdivision, and the words "of the incumbrances existing thereon," in the 6th subdivision, were reported in italics.] Original note. "§ 5 and § 6 of the same act; laws of 1817, p. 46, 11. The parts in italic new; inserted to carry into effect other provisions."

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[S 6. Same as enacted. § 7. Same as enacted, except that in the oath, the word "settled" was reported instead of "paid, secured to be paid," and except also that the word "fraudulently" was inserted by the legislature.] Original note. "Part of 5th section of act for relief in cases of insolvency, 1 R. L. p. 462; with the addition of the last clause of the oath, which is taken from § 2 of the act of 1819, p. 116. The word compounded,' new."

[S 10. Same as enacted, except that the words " and in such other papers as he shall prescribe," after the words "nearest to such county,” were stricken by the legislature from the § as reported. Original note. "Part of 5th and 6th sections of same act, and § 6 of an act concerning the inspection of sole leather; laws of 1815, p. 279, chap. 263. The notice on the court-house door, omitted as unnecessary."

[§ 11, 12, 13. Same as enacted.] Original note to 13. "Act of 1819, p. 118, extended to proceedings under this Article, as being far more necessary, as they are so much more important."

[S 21. Same as enacted.] Original note. “12th § of act of 1817, p. 46, slightly varied."

[S 22. Same as enacted, except the last clause after "estate,” was added by the legislature.] Original note. "7th section, 1 R. L. 463, extended so as to discover whether the insolvent has made any assignments or sale of his property."

[S 23. Same as enacted.] Original note. Original note. "New. It is supposed that the assignment passes only the property which the insolvent had at the time of its execution and delivery; as no retro-active effect seems to be given by the act. The consequence would appear to be, that he would not be required to account for property sold or debts collected since the presentation of his petition. The above section has been drawn to prevent such conduct, and to remove any doubt that might exist, whilst a suitable provision has been made for the support of the debtor and his family."

[S 24 substantially same as enacted, except that the words "at any time after this Article shall take effect as a law," were inserted by the legislature.] Original note. "New. With a strong solicitude to avoid submitting any new provisions which did not appear essential, the Revisers can not conceive that they should discharge their duty, if they omitted a proposition to remedy one of the greatest 'imperfections' in the existing insolvent law. The preferences given to some creditors, are always unjust towards the others, and are frequently used as mere artifices to secure a provision for the insolvent after his discharge. The universal complaints of the mercantile part of the community, have long pointed out this great evil. There seems no other effectual means of checking it. Perhaps under the present law, some preferences would be deemed fraudulent; but there is obvious utility in prohibiting them in the cases specified in this section, so far as to say, that if the insolvent will make them, he must not expect the aid of the laws of his country to exonerate him from his debts to those creditors whom he has already done all in his power to injure. Thus preferences may continue to be made either with the assent of creditors, or at the hazard of losing the benefits of the insolvent laws."

$25. Same as enacted, except that the words "which shall be mentioned in the inventory of such insolvent," at the end of reported section, were omitted by the legislature; and that the words "from the articles mentioned in his inventory," were inserted by them between the words were added by the legislature.] Original note. "Inserted to carry out excepting" and "such," in the body of the section.] Original note. "Part of 5th section of same act, 1 R. L., 463; Laws of 1817, § 2, p. 42. The supposed intent of the act is preserved as to fixing the time, in reference to which, the proportion of two-thirds is to be calculated; an omission which it is deemed important to supply."

[S 26. Same as enacted, except that the words after "pending,” the provisions in former sections."

[S 28. Same as enacted.]

Original note. "Declaratory of the effect of the assignment. Under the existing law, it is a question how far and to what extent contingent interests are transferred, and which is now in litigation in the court of chancery. Without intending to intimate any opinion whatever on that subject, the Revisers have thought it their duty to propose this section, in order to prevent doubts as to future assignments. Some limitation seems necessary, as otherwise the assignees would not know when they had closed the management of the estate, or they must sacrifice the interests of the debtor unnecessarily, by selling a remote expectancy which at the time can have little value."

[S 29. Same as enacted, except that the legislature inserted the words "such officer, or of," after the words "in the presence of." Origi nal note. "8th section of same act; varied to require the recording of the assignment, for the reasons stated in $ 59 of the first Article of this Title."

[S 30. Same as enacted.]

Original note. "S8, 1 R. L. 464. In drawing this section, an effort has been made to conform it to the decisions of the supreme court of the United States in the cases of Sturges vs. Crowninshield, 4th Wheaton 122, M'Milan vs. M'Niele, ib. 209, and Ogden vs. Sanders, 12th Wheaton 213, and to the decision in Baker vs. Wheaton, 5th Mass. Rep. 509. It would be difficult to abstract those cases, further than is done by the section itself.

"It has been thought advisable to declare expressly that this Article is a re-enactment of the act of 1813, so as to include contracts made after the passage of that act, according to the decision of the supreme court in 19 Johns. 153. The principle in that case, was, that no act by which greater facilities are given to obtain a discharge, can affect a contract made previous to its passage. This principle has been scrupulously observed in the revision of this Article, while greater facilities have been given to creditors to detect frauds."

[S 31. Same as enacted.]

Original note. "Laws of 1819, p. 118, § 11, extended to the case of makers of notes, &c., and to liabilities arising from a payment by an endorser after the discharge. The creditor holding the instrument is entitled to a dividend upon it; and there seems no greater reason for making the debtor liable for such a debt becoming due after his discharge, than for any other debt. Indeed, it is clearly within the equity of the act; and a technical rule, only, has exempted it from its operation. See the cases 1 J. C. 73; 2 Caines' Cas. in Error, 310." [S 32. Same as enacted.]

Original note. "In the cases which have been decided in the supreme court of the United States, a distinction has been taken between a law discharging debts, and a law denying a remedy for their collection. The Revisers propose this section, in order to enable our citizens to avail themselves of this distinction; so that in the fluctuating state of the law on this subject, if it should be held that a discharge does not operate as such, it shall yet protect the person receiving it, from suits in our own courts."

[S 33. Same as enacted.]

Original note. "New in form, but implied from § 8, 1 R. L. 464; and extended so as to give the same effect to a discharge under this Article, as under the fifth Article of this Title. The authority of the legislature to exempt debtors from imprisonment, upon any contract, is recognized in Mason vs. Haile, 12th Wheaton 370. The latter part of the section is new, but supposed to be within the same principle, and inserted for the reasons given in the note to § 31 of this Article." [S 34. Same as enacted.] Original note. "Section 8, 1 R. L. 464, varied to provide for the case of mesne process."

LS 35 substantially same as enacted, except that sub. 1 was reported as follows: "1. If such insolvent shall have been guilty of perjury, in

swearing to any matter concerning his estate or his debts, or to any material fact upon his examination." In sub. 6 the following words reported in italics: "or that he should abstain or desist from opposing the discharge of such insolvent."] Original note. "13th section, 1 Ř. L. R. p. 466, the 2d subdivision new; inserted to give effect to previous sections; the part of the 6th in italic, also new in form, but conformable to the spirit of the decisions."

"ARTICLE IV. Of proceedings by creditors to compel assignments by debtors imprisoned on execution in civil cases.'

[S 1. Same as enacted.] Original note. "Part of 1st section of act of 1817, chap. 55, p. 41: the words in italic, 'more than' and 'for which a suit might then be brought,' new, declaratory of the supposed meaning of the act."

[S 2, 3. Same as enacted.] Original note to § 3. "1st section of same act; the language of the order varied so as to express its object more definitely."

[S 4, 5, 6. Same as enacted.] Original note to § 6. "New in form; implied in the act of 1817."

[S 7, 8, 9, 10. Same as enacted.]

Original note. "The four last sections are new, and are intended to give effect to the act. It is made an indispensable requisite, that twothirds of the creditors should unite in a petition; and yet there are no means pointed out, by which the fact of there being two-thirds, may be ascertained. The whole proceeding may be rendered futile, by the debtor's refusing to disclose his creditors; for no one else can, in ordinary cases, tell who they are. Some means of coercing him, seem therefore indispensable, to render the act of any avail."

[S 11. Same as enacted.] Original note. "2d section of act of 1817, p. 42: there is an ambiguity in it, which is attempted to be removed by this section providing for a previous order to show cause, and by the subsequent sections. The two-thirds of creditors, proposed to be the same as in proceedings under Article third, as the effect is the same."

[S 12. Same as enacted.] implied in the act."

Original note. "Declaratory of what is

[S 13, 14. Same as enacted.] Original note to § 14. "New; inserted to conform the proceedings in all respects to those under the last Article; otherwise a debtor will resort to this mode of obtaining a discharge."

[S 15. Same as enacted.] Original note. "New; inserted for the purpose stated in the preceding note."

[S 21. Same as enacted.] Original note. "The latter part of this section is new, and is proposed so as to unite the property of the debtor in the same assignees, instead of having different sets of trustees acting on the same estate."

IS 22. Same as enacted.] Original note. "New; intended to reach property coming to the debtor after the execution of the assignment." "ARTICLE V. Of voluntary assignments by insolvent, for the purpose of exonerating his person from imprisonment."

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[S 3. Same as enacted.] Original note. "§ 2, act of 1819, p. 116; conformable to the decision of the supreme court in 7 Cowen, 105."