not answering any question, such question shall also be specified ART. 8. therein. [The same.] ings in case habeas § 15. If any person so committed shall bring a writ of habeas Proceedcorpus, he shall not be discharged by reason of any insufficiency in he brings the form of the warrant of commitment; but the court or officer corpus. before whom such person shall be brought, shall recommit such person, unless it shall be made to appear that he hath answered all lawful questions put to him, or had sufficient reason for refusing to sign the examination, as the case may be; or unless such person shall then answer, on oath, the questions so put to him. [1 R. L., 160, § 12; 467, § 16.] son to es § 16. Any sheriff or jailor wilfully suffering any person so com- Sheriffs suffering mitted or re-committed, pursuant to the foregoing sections, to escape, such pershall be liable to indictment for a misdemeanor; and on conviction cape, how thereof, in addition to any other punishment the court may inflict, punished. shall forfeit to the trustees a sum equal to the whole amount of debts due to the creditors of such debtor, not exceeding two thousand five hundred dollars. [1 R. L., 160, § 12; 467, § 16.] § 17. The person so examined, and answering to the satisfaction Persons an swering of the officer, shall not be liable to any penalty imposed in this not liable to penalty, article for concealing and not delivering any property, or paying any etc. debt; but his answers on such examination, may be given in evidence in the same manner, and with the like effect, as if they had been made in answer to a bill in equity filed by such trustees. discover entitled to premium. § 18. Any person who shall discover to the trustees any secreted Persons effects, property, or things in action, belonging to such debtor, so ing effects that they shall be recovered by them, shall be entitled to ten dollars on the hundred dollars, and at that rate, on the value of the effects so discovered, to be paid by the trustees, out of the estate of such debtor; but this section shall not extend to persons who have such property, effects or things, in their own possession. [1 R. L, 161, § 14.] refe ees. 2 Hill, 221; 148; 44 Barb., 436; 42 N. Y., 158; 81 N Y., 242; 88 N. Y., 626. 27 N. Y., Notice of § 19. If any controversy shall arise between the trustees and any [45] other person in the settlement of any demands against such debtor, Controver or of debts due his estate, the same may be referred to one or more referred to indifferent persons, who may be agreed upon by the trustees and the party with whom such controversy shall exist, by a writing to that effect signed by them. [Thus amended by L. 1862, ch. 373.] (1 R. L., 161, § 16; 469, § 21.] § 20. If such referee or referees be not selected by agreement, then the trustees or the other party to the controversy may serve a notice of their intention to apply to the officer who appointed said trustees, or to any judge of the supreme court at chambers, residing 2 in the same district with said trustees, for the appointment of one or more referees, specifying the time and place when such application will be made, which notice shall be served at least ten days before the time so therein specified. [Thus amended by L. 1862, ch. 373.1 (1 R. L.. 161, § 14.] application for ap pointment of referees. Hill, 220; 436; 81 N. 44 Barb., Y., 242. TITLE 1. § 21. On the day so specified, upon due proof of the service of Referees to such notice, the officer before whom the application is made shall proceed to select one or more referees, the same in all respects as 436; 81 N. they are now selected, according to the rules and practice of the supreme court. [Thus amended by L. 1862, ch. 373.] be nominated. 44 Barb., Y., 242. Referees may issue commission. 44 Barb., 436. Selection to fied, and Powers, etc., of ref erees. [1 R. L., 161, § 16; 469, § 21.] § 22. When any witness to such controversy shall reside out of the county where the said trustees resided at the time of their appointment, the referee or referees appointed to hear said controversy shall have power to issue a commission or commissions in like manner as justices of the peace are now authorized to issue the same, and the testimony so taken shall be returned to said referee or referees in the same manner, and be read before them on a hearing, in like manner as testimony taken on commission before justices of the peace. [Thus amended by L. 1862, ch. 373.] [1 R. L., 161, § 16; 469, § 21.] § 23. The officer before whom they shall be selected, shall certify such selection in writing. Such certificate, or the written agreement of the parties, shall be filed by the trustees in the office of a clerk of the supreme court, when the trustees were appointed under the first article of this title; and in the said office, or in that of the clerk of the court of common pleas of the county, when the trustees were appointed under any other article of this title; and a rule shall thereupon be entered by such clerk in vacation or in term, appointing the persons so selected to determine the controversy. [1 R. L., 161, § 16; 469, § 21.] § 24. Such referees shall have the same powers, and be subject to the like duties and obligations, and shall receive the same compensation, as referees appointed by the supreme court, in personal Abb., N. S., actions pending therein. 44 Barb., 436; 14 292; 102 N. Y., 600. Report of referees. Trustees to Convert estate into money. [1 R. L., 161, § 16; 469, § 21.] § 25. The report of the referees shall be filed in the same office where the rule for their appointment was entered, and shall be conclusive on the rights of the parties, if not set aside by the court. [1 R. L., 161, § 16; 469, § 21.] § 26. The trustees shall, as speedily as possible, convert the estate, real and personal, of such debtor, into money. They shall keep a regular account of all monies received by them as trustees; to which, Accounts, every creditor, or other person interested therein, shall be at liberty, at all reasonable times, to have recourse. etc. [46] When and how, to call general meeting. 3 Abb. Ct. App. Dec., § 27. The trustees, within fifteen months from the time of their appointment, shall call a general meeting of the creditors of such debtor, by a notice to be published in the same manner, as herein before directed respecting the publication of the notice of their appointment; in which notice, they shall specify the place and time of such meeting, which time shall not be more than three months, nor less than two months after the first publication of such notice. Every such notice shall be published at least once in each week, until the time of such meeting. [1 R. L., 161, § 17; 469, § 21.] ART. 8. § 28. At such meeting, or other adjourned meeting thereafter, all accounts and demands, for and against the estate of such debtor, Proceedshall be fairly adjusted, as far as the same can be ascertained, meeting. and the amount of monies in the hands of the trustees declared. ings at such 3 Abb. Ct. App. Dec., § 29. Out of the monies in their hands, the trustees may first de- 33 Disburseduct all the necessary disbursements made by them in the discharge ments and of their duty, and a commission at the rate of five per cent. on the sions. whole sum which shall have come into their hands. [1 R. L., 164, § 27; 469, § 22.] the on commis. 31 Barb., Abb., 451. trustees under article 1. § 30. If they shall have been appointed trustees under the first article of this title, they shall pay to every attaching creditor amount of any recovery which may have been had against him, any bond he may have executed for the purpose of retaining any N. Y., property or any vessel, for the benefit of all the creditors, and his costs for defending any such suit. 173. trustees § 31. Whenever any bond shall have been executed by an attach- Duty of ing creditor for the purpose in the last section specified, the trustees under arti shall retain a sufficient sum from the monies in their hands to in- cle 1. demnify such creditor, until a final determination be had, respecting his liability. to be first § 32. They shall pay all debts due by such debtor to the United U. S., &c., States, and all debts due by him to persons who, by the laws of the paid. United States, have a preference in consequence of having paid money as sureties of such debtor. der how buted. § 33. They shall distribute the residue of the monies in their Remainhands, among all those who shall have exhibited their claims as distri creditors, and whose debts shall have been ascertained, in proportion to their respective demands, and without giving any preference to debts due on specialties, as follows: 1. In the case of proceedings under the first article of this among those who were creditors at the time of issuing the warrant of attachment: title, 3 Abb. Ct. 235; 1 first 499; 12 2. In proceedings under the third and fifth articles of this title, among those who were creditors at the time of the execution of the assignment by the insolvent: 3. In proceedings under the fourth article, when an assignment was executed by any officer as therein directed among those who were creditors at the time of the first publication of notice to creditors to appear and determine whether they will unite in a petition; and when the assignment was voluntary, among those who were creditors at the time of the execution thereof: 4. In proceedings under the sixth article, among those creditors, at whose suit the debtor was imprisoned on execution at the time of his discharge. (1 R. L., 161, § 16; 468, § 19.] Johns. R., 342. Debts due as guardian, &c. 6 Hill, 357; § 34. In making such distribution, the trustees shall first pay all from debtdebts that may be owing by the debtor as guardian, executor, administrator or trustee; and if there be not sufficient to pay all debts 7 Hill, 181; of the character above specified, then a distribution shall be made among them, in proportion to their amounts respectively. § 35. Every person to whom a debtor (except one proceeding Creditors 3 Abb. Ct. App. Dec., 235. TITLE 1. under the sixth article,) shall be indebted on a valuable consideration, for any sum of money not due at the time of such distribution, but payable afterwards, shall receive his proportion with other 6 Hill, 357; creditors, after deducting a rebate of legal interest upon the sum distributed, for the time unexpired of such credit. whose debts are not due. 5 Abb. Pr., 468. Mutual credits, etc., when set off. 5 Robt.,362; 1 Edm. Se lect Cases, 485; 26 Barb., 311; 6 Paige, 230; 3 Edw, demands [1 R. L., 162, § 18; 468, § 18.] § 36. Where mutual credit has been given by any debtor (except a debtor proceeding under the sixth article of this title,) and any other person, or mutual debts have subsisted between such debtor and any other person, the trustees may set off such credits or debts, and pay the proportion or receive the balance due. But no set-off shall be allowed of any claim or debt, which would not have been entitled to a dividend, as herein before directed. [1 R. L., 469, § 20.] § 37. No set-off shall be allowed by such trustees, of any claim or Set-offs of debt, which shall have been purchased by, or transferred to, the purchased. person claiming its allowance, which could not have been set off by him, according to the provisions of this article, in a suit brought by such trustees. Suits pend. ing. § 38. If, at the time any dividend is made, any prosecution be pending against the trustees, in which a demand against such debtor may be established, the trustees may retain in their hands, the proProportion portion which would belong to such demand if established, and the necessary costs and expenses of such suit or proceeding, to be applied according to the event of such proceeding or suit, or to be distributed in a second or other dividend. to be retained. [48] Penalties recovered § 39. All penalties which shall be recovered by any trustees, purby trustees. suant to the provisions of this title, shall be deemed a part of the estate of the debtor, and shall be distributed as such among his creditors. tate not on first diy to If whole cs- § 40. If the whole of such debtor's estate be not distributed on distributed the first dividend, the trustees shall, within one year thereafter, make idend, a second dividend of all the monies belonging to the estate of the yearly div. debtor, then in their hands, among the creditors entitled thereto as herein before specified; and in the same manner from year to year, so long as any monies belonging to the estate of such debtor shall remain in the hands of the trustees, they shall make a dividend thereof among the creditors entitled thereto. be made. Creditors omitting to counts on first divi [1 R. L., 161, §§ 17 and 19; 470, § 23.] § 41. Any creditor who shall have neglected to deliver to the deliver ac- trustees an account of his demand, before the first, second, third, or other dividend, and who shall deliver his account to them before the second, or other subsequent dividend, shall receive the sum he would have been entitled to, on any former dividend, before any distribution be made to other creditors. dend, &c. 6 Bosw., 638. Unclaimed dividends. [The same.] § 42. If any dividend that shall have been declared, shall remain unclaimed by the person entitled thereto for one year after the same was declared, the trustees shall consider it as relinquished, and shall distribute it, on any subsequent dividend, among the other creditors. ART. 8. Surplus to § 43. If after settling the estate of any debtor, and after discharging his debts, entitled to a dividend, any surplus shall remain in the hands of his trustees, the same shall be paid to such debtor or his debtor. legal representatives. [1 R. L., 162, § 17; 468, § 19.] be paid to to certain § 44. Every debtor who shall be discharged under the third, fourth Allowance or fifth articles of this title, shall be allowed the sum of five per debtors. cent. on the nett produce of all his estate, that shall be received by the assignees, to be paid to him by them, in case such nett produce, after such allowance made, shall be sufficient to pay the creditors of such debtor, entitled to a dividend, the sum of seventy cents on the dollar, on the amount of their debts respectively, as the same shall have been ascertained; but the said allowance shall not exceed in the whole, the sum of five hundred dollars. [1 R. L., 470, § 24; L. 1819, 117, § 4.1 45. Within ten days after any dividend made by any trustees' they shall render on oath, and file with the clerk of the court of common pleas of the county in which they reside, or with a clerk of the supreme court, an account in writing of all their proceedings in the premises; stating, 1. Their disbursements, commissions, and the dividends made by them: 2. The names and residences of the creditors to whom dividends were made, and the names of those actually receiving them: 3. The property, monies and effects of the debtor remaining in their hands, and the value and situation of such property: And such trustees may at any time be compelled by a rule of the supreme court, or of the court of common pleas of the county in which they reside, to render such account on oath, on the application of the debtor, or of any creditor. [1 R. L., 471, § 27; L. 1823, 138, § 5.] subject to § 46. Such trustees shall be subject to the order of the supreme Trustees court, and of the court of common pleas of the county in which they order of were appointed, upon the application of any creditor, or of any debtor courts. in respect to whom they were appointed, in relation to the execution of any of the powers and duties confided to them; and they may May be rebe removed by the supreme court, for cause shown. moved. ings in re § 47. Whenever any authority shall be exercised by a court of Proceed common pleas, or any officer, pursuant to any provisions of this title, common the proceedings may be removed into the supreme court by certiorari, please and there examined and corrected. But no such certiorari shall issue, into suunless allowed by a justice of the supreme court, or a circuit judge; nor shall it operate as a stay of proceedings, unless it shall be so directed in the order of allowance. preme court. 40 How. 6 N. Y., 309; Pr. R., 167; 4 Hun, 309, If trustee moved,&c., new trustee § 48. Whenever any trustee shall be removed, or shall die, or become incapacitated to perform his duties, the officer who originally be reappointed such trustee, or in case of his absence, death, or removal, any other officer residing in the county where such trustee was resi- may be apdent, who by law would have been empowered to make such appointment, after giving notice, and an opportunity to the creditors. to propose proper persons, may appoint another in the place of such 143 pointed. |