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A. D. 1759.

Such further time allowed

to absent mortgagees, as

debts, as the court shall think needful.

a fair accompt or accompts of all the monies that are really and bona fide due and owing unto them, in manner aforesaid, as the said court shall, upon application for that purpose, under the circumstances of the case, think needful or expedient; and that such absent trustee or mortgagee, their attornies, factors, managers or agents, who cannot be summoned signees, &c. to within the time aforesaid, shall transmit to the clerk of the said court, at prove their or before the time to be appointed by the court for that purpose, a fair and attested accompt or accompts of the monies due upon such conveyance or conveyances, as is hereinbefore directed; and that such affidavit and return shall be, and is hereby declared to be, as sufficient and effectual, to all intents and purposes whatsoever, as if they, or any of them, had appeared with such accompt or accompts before the said court, in his, her or their proper persons. Provided also, that such affidavit, so to be transmitted as aforesaid, shall be taken in manner and form as is required by an Act of Parliament passed the fifth year of his present Majesty, entitled * An Act for the more easy recovery of debts in his Majesty's Plantations and Colonies in America."

where persons are unable to appear.

VI. And if any person or persons to whom such conveyances is or Affidavits ad- shall be made, his, her or their attorney, agent, executors or administramitted as proof, tors, or any of them, shall by sickness or other lawful impediment be unable to appear, at the time and place hereinbefore appointed; and if affidavit shall be made and taken upon such his, her or their inabily to appear and attend as aforesaid; and if with such affidavit he, she or they shall transmit to the clerk of the said court, at or before the said appointed time, such fair and attested accompt or accompts of the money due upon such conveyance or conveyances, as is hereinbefore directed, such affidavit and return shall be, and is hereby declared to be, as sufficient and effectual, to all intents and purposes whatsoever, as if they, or any of them, had appeared with such accompt or accompts before the said court in his, her or their proper person or persons. Provided, that such affidavit shall be taken before, and certified by, two justices appointed to keep the peace within this State.

Mortgages,

conveyances, &c. not proven, to be deemed fraudulent, &c.

VII. In case any debtor, at any time before his or her being taken into custody, shall have made any conveyance, bill of sale, or assignment, of any lands, tenements, goods or chattels whatsoever, to any person or persons whosoever, all and every such person and persons to such mortgage, bill of sale, assignment or other conveyance, that is or shall be made as aforesaid; or if his or their attorney, agent, executors or administrators, shall not appear before the said court, at the time hereinbefore appointed for the appearance of the creditors of such insolvent debtor; nor in case of their or either of their sickness or other lawful impediment, shall transmit such affidavit and attested accompt as is hereby directed; and then and there make oath, that such mortgage, bill of sale, assignment or other conveyance, was made, to the best of their knowledge and belief, for a valuable consideration actually paid; or that such judgment was for a debt bona fide due; then every such person or persons, his, her or their attornies, agents, executors or administrators, shall be deemed to have taken and accepted from the said petitioner a false and feigned trust, with intention to defraud the creditors of the said petitioner, and to conceal his estate and effects from them; and every such mortgage, bill of sale, judgment, assignment or other conveyance, shall be, and is hereby declared to be, null and void to all intents and purposes: And the lands, tenements, goods and chattels thereby conveyed, and

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money paid upon such judgment, shall be vested in the said trustees, in A.D. 1759. like manner and for the like purposes as all the other estate and effects of the said petitioner are hereby directed to be vested.

persons shall

this Act.

VIII. Provided, That no person or persons shall be entitled to the benefit of this Act, who shall be sued, impleaded or arrested for In what cases damages recovered in any action for wilful maihem, or wilful and malic- not be admitted ious trespass, or for damages recovered in any action for voluntary and to the benefit of permissive waste, or for damages done to the freehold. Provided also, that nothing in this Act shall be construed to extend or give or grant any privilege, benefit or advantage to any person whatsoever who hath or shall for or upon marriage of any of his or her children, hath given, advanced or paid above the value of £100 proclamation money, unless he or she shall prove by his or her books fairly kept, or otherwise upon his or her oath or solemn affirmation, if a Quaker, before the court, that he or she had at the time thereof, over and above the value so given, advanced or paid, remaining in goods, wares, debts, ready money, or other estate, real or personal, sufficient to pay and satisfy unto each and every person to whom he or she was indebted, their full and entire debts; or who hath or shall have lost in any one day the sum or value of £5 proclamation money, or in the whole the sum or value of £20 proclamation money, within the space of twelve months next preceding his or her petition to the court, in playing at or with cards, dice, tables, tennis, bowls, billiards, shuffle-board, or in or by cock-fighting, horse races, dog matches, or foot races, or other pastimes, game or games whatsoever, or in or by bearing a share or part in the stakes, wagers or adventures, or in or by betting on the sides or hands of such as do or shall play, act, ride or run, as afore

said.

tice and assist

IX. The chief justice and assistant judges of the courts, shall and may The chief jusproceed, in all cases directed by this Act, at the several courts of common ant judges to pleas, and the adjournments and return days of the said courts, or any of proceed accorthem, or at the courts of general sessions of the peace, oyer and terminer, ding to the diassize and general goal delivery, or at the adjournments of the said last Act, at any mentioned court, and at no other time or times whatsoever.

rections of this

court, adjourn. ment, or return day.

benefit of this

for debts due

X. And whereas, many creditors of the person so sued and petitioning for his or her discharge, may not be inclined to accept a dividend of such petitioner's estate, but will rather wait, in hopes of receiving some fuller Persons who expectation from the said petitioner's future better fortune: but inasmuch petition for the as the said creditors by note, book accompt or contract, who through in- Act incapacitadulgence or better expectation may delay their suits against such petition- ted to plead the ers, may become barred by the Act of limitations of this Province: Be it Act of limitations, in bar to therefore enacted, That any person or persons whatsoever, who shall here- actions thereafter be in the custody of the provost marshal of this Province, or of his after brought gaol-keeper or deputy, and who shall once petition the justices of this previous to Province for his or her discharge, every such person or persons, his or their exhibiting such petition. their executors or administrators, shall be incapacitated ever afterwards to plead the Act of limitations of this Province, in bar to any action that may afterwards be brought against him or them, by any person or persons that were his or their creditors, for any demand or cause of action that existed at the time of exhibiting the petition for the discharge of the said person when in custody. And in case the Act of limitations of this Province shall afterwards be pleaded by any such person or persons, the said plea shall be set aside by the court where such action shall be brought, upon motion made by the plaintiff or his attorney in such action, upon producing the petition before exhibited by the defendant for his having the benefit of this Act.

A. D. 1759.

dividends may

at the courts

XI. And whenever any person hereafter in custody, shall once petition for his or her discharge, the creditor or creditors of such persons by note, Persons unwil-book accompt or contract, not willing to accept a dividend of such peling to accept titioner's estate, in order to perpetuate the testimony of his, her or their perpetuate de demand, may be at liberty to prove the quantum of the said demand or mands, by pro- balance due from or against such petitioner at the court when such petiving the same tioner shall apply for his or her discharge: And a minute or certificate when insolvent thereof shall be entered with the clerk of the said court, of the sum or debtors apply balance due to such creditor or creditors; which minute or certificate shall to be discharged. thenceforth be good evidence of the sum so certified to be due from the said petitioner, and shall thenceforth be deemed as an accompt liquidated and stated, and recoverable as such against the said petitioner, his executors or administrators, without further evidence than the said certificate of the said clerk of the court; and against which debt or demand, or any action for the same, the said Act of limitations of this Province shall not be a bar, nor pleadable; any law, usage or custom to the contrary notwithstanding.

No insolvent

debtor to be en

efit of this Act

* XII. That no person or persons, who after the passing of this Act shall be arrested for any debt, duty, cause or matter whatsoever, shall be discharged for the same, unless such person or persons shall actually have titled to the ben- remained confined in the common gaol from the time of the arrest, or shall before he shall surrender himself on or before the day on which such writ or process, have been actu- whereupon the said petitioner is arrested, is made returnable, and shall ally confined in gaol the time actually remain confined as aforesaid, from the day of such arrest, or within required. ten days after, until the time wherein the court shall determine whether such person or persons is or are entitled to the benefit of this Act.

has not render

XIII. Provided, That the justices of the court from whence the process issued against any person or persons who shall petition for the benefit of this Act, shall have power, and they are hereby fully authorized and The judges may recommit impowered, at the request of the said creditors, to recommit such person a petitioner to or persons to the common goal, there to remain confined for the term of gaol for 12 months, if he 12 months, in case the said justices shall have any reason to suspect that such person or persons have not rendered a just and true account of his or their real or personal estates, according to the true intent and meaning of this Act: Provided, that the creditors requesting such recommitment, shall, during the said term, pay 6s. 3d. per diem to the provost marshal or gaoler, for the subsistence of such person or persons; and in case such creditors shall neglect to pay the same by the space of one week, then the provost marshal or gaoler shall immediately discharge such person or persons from his custody.

ed a true account of his estate, &c.

XIV. All and every merchant, factor, shopkeeper, and other persons concerned in trade, who shall abscond or conceal him, her or themselves, Merchants, facin such manner that mesne process or execution cannot personally be tors, &c. con- served upon him or her, by the space of 3 months, shall be deemed and cealing themadjudged to have departed this Province; and all and every his, her and selves or absconding,deem- their monies, goods, chattels, debts and books of accompt, in the hands of ed absent debt- any other person or persons whosoever, shall be subject and liable to be ors, and may be proceeded attached, in the same manner as is directed and appointed with respect to against upon debtors who shall withdraw themselves out of the limits of this Province, the attachment in and by an Act passed in the 17th year of his present Majesty's reign, entitled "An Act for the better securing the payment, and more easy recovery of debts due from any person or persons residing beyond the

Act.

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seas, or elsewhere without the limits of this Province, by attaching the A.D. 1759. monies, goods, chattels, debts and books of accompts of such person or persons, if any he, she or they shall have within this Province; and to impower and enable a feme covert that is a sole trader to sue for and recover such debts as shall be contracted with her as a sole trader; and to subject such feme covert to be arrested and sued for any debt contracted by her as a sole trader."

any part of his

XV. And in case it shall, at any time after the discharge of such peti- Insolvent debt. or concealing tioner, appear that any such debtor did conceal any part of his estate, and not make a full surrender and delivery thereof, such debtor shall not be estate, not entitled to the benefit of this Act; and every such debtor shall be deemed entitled to the and adjudged guilty of perjury, and be punished as the law in that case Act, and dedirects. clared guilty of perjury.

benefit of this

to their credi

tors, &c.

XVI. In case any debtor or debtors shall abscond, or conceal him, or her, or themselves, in such manner that mesne process or execution cannot be served upon him, her or them as aforesaid, notice thereof shall, by order Absconding of court, be published in one or other of the Gazettes, or by writing fixed debtors shall up in the most conspicuous place in the parish where such insolvent debtor not have power to sue for any last resided, at the expence of the plaintiff in the action; after which it monies due shall not be lawful for any debtor or debtors to sue for, collect or receive to them; but the same shall, any debts whatsoever which may be due to him, her or them, from any by order of person or persons whosoever. And if any action shall be commenced by court, be paid any such debtor or debtors, or judgment obtained, at his, her or their suit, and not satisfied before he, she or they absconded or concealed him, her or themselves, the same shall and may be continued and carried on, in his, her or their name or names; but shall, by order of court, be paid and applied to the use of his, her or their creditors. And in case any person or persons indebted to any debtor or debtors so absconding as aforesaid, shall, at any time after public notice having been given as aforesaid, pay any sum or sums of monies due to any such debtor or debtors, to any other than his, her or their creditors, such person and persons shall be obliged, and he, she or they is and are hereby made liable, to pay the same over again, to the creditors of such debtor or debtors so absconding; which may be attached as monies of such debtor in his, her or their hands; any law, usage or custom to the contrary thereof in any wise notwithstanding.

them, it shall

XVII. In case any insolvent debtor or debtors, at the time when he, she or they rendered, or shall render, an account of his, her or their estate, If insolvent pursuant to the directions of this Act, hath or shall conceal any debts that debtors conceal were or shall be owing to them or any of them, it shall not be lawful for debts due to the person or persons owing such debts to pay the same, or any part there- not be lawful of, to or for the use of such insolvent debtor or debtors; but such person for persons owing the same to or persons shall be, and are hereby, made diable to pay such debts, and pay but to the every part thereof, to the assignee or assignees of such debtor or debtors, assignees. for the use of his, her or their creditors: And such assignee or assignees may sue for the same in his or their own name or names, in like manner as assignees in commissions of bankrupts can or lawfully may do by the laws or statutes of Great Britain; in which suit no release of such insolvent debtor, his or her executors or administrators, or any trustee for him or her, subsequent to the rendering such accompt, shall be any bar.

XVIII. And all and every person who shall, within 12 months after the discharge of any such prisoner, voluntarily come in and make a discovery Fifty per cent. allowed to of any part of such debtor's real or personal estate, subsisting at the time persons discov.. of his swearing off, as shall not be comprised in such schedule as afore-ering concealed said, before the chief justice or justices of the court, shall be allowed after estates. the rate of 50 per cent. out of the neat produce of such estate so discov.

A. D. 1759. ered by him, her or them, as aforesaid, and which shall be recovered on such discovery, to be paid by the trustee or assignee of such debtor's estate and effects.

to assist the

trustees to

in the recovery of any part thereof.

XIX. Every insolvent debtor, who shall make an assignment of his or Every insolvent her estate, in trust for the use of his or her creditors, pursuant to the debtor obliged laws for those purposes, shall be obliged, and he or she is hereby required and enjoined, to assist the trustee or trustees at all times when thereunto whom his es- required, in the recovery of the debts assigned, and in every other mattate is assigned, ter which shall be thought necessary for the benefit and advantage of the creditors; and in consideration thereof, such trustees shall have power, and they are hereby fully impowered and authorized, in all cases where they shall be of opinion such insolvent debtor hath acted justly and honestly, to make him or her such allowance for the subsistence of such insolvent debtor and his or her family (if any they have) as the said trustee or trustees shall think meet: Provided, that such allowance do not exceed 5 per cent. of the whole money received upon such insolvent debtor's accompt.

an insolvent

XX. And the creditor or creditors at whose suit any person shall be The creditors arrested and imprisoned, who shall be admitted to the benefit of the said at whose arrest Act, shall be, and they are hereby, made liable for and chargeable with debtor is im- the fees due to the provost marshal on account of the arrest and imprisonprisoned, made ment of such person; and that it shall and may be lawful to and for the liable to pay the costs of trustees or assignees of such insolvent debtor, and they are hereby directed and required, out of the monies they shall receive on account of such imprisonment. assignment, to reimburse and repay such creditor or creditors such sum or sums of money which he or they shall so advance, agreeable to the directions of this Act.

arrest and

All former acts

XXI. All and every Act and Acts heretofore passed in this Province, and all and every clause or clauses of the same, in relation to insolvent or clauses, re- debtors, is and are hereby declared repealed, revoked, discontinued, and lative to insol- made void forever; any limitation in the said Act or Acts for relief of insolvent debtors, and the several additional Acts contained, to the contrary notwithstanding.

vent debtors, repealed.

BENJAMIN SMITH, Speaker.

Assented to:

WM. HENRY LYTTELTON.

In the Council Chamber, the 7th day of April, 1759.

(This Act was perpetuated by A. A. 1783. It is copied from Grimke.)

No. 883. AN ACT FOR IMPOWERING THE CHURCH-WARDENS AND VESTRY OF THE PARISH OF ST. BARTHOLOMEW, TO DISPOSE OF THE PEWS IN THE CHAPEL LATELY ERECTED AT EDMUNDBURY, IN THE SAID Parish.

Preamble.

WHEREAS, a chapel of ease hath been lately erected at Edmundbury, in the parish of St. Bartholomew; and whereas, there are several pews set up and erected in the same that cannot be disposed of unless a law is passed by the Legislature of this Province for that purpose; therefore, in order to authorize and impower the church-wardens and vestry of the said parish to sell, convey and dispose of the said pews to any person or persons that may be desirous of purchasing the same, we humbly pray his most sacred Majesty that it may be enacted,

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