Original note to § 7. "Made con

[S 4, 5, 6, 7. Same as enacted.] formable to the principles of the third Article."

[S 9, 10, 11. Same as enacted.] Original note to § 10. "§ 11, laws of 1819, p. 118, extended for the reasons given in note to § 31 of Article third."

[S 12. Same as finally enacted. In the section, as first enacted, the legislature struck out the words "acquired after the execution of his assignment," but by act of 10th Dec., 1828, those words were restored.] Original note. "S 6 of act of 1819, rendered more explicit as to liens." [S 13. Same as enacted.] Original note. "§ 5 of act of 1819, enlarged."

66

"ARTICLE VI.-Of voluntary assignments by a debtor, imprisoned in execution in civil causes.”

[S 1. Same as enacted, except that the words "and defendants," were inserted by legislature.] Original note. "4th and 5th sections of act for the relief of debtors with respect to the imprisonment of their persons, 1 R. L. 349. Act of 1818, p. 156. The exception is taken from the 49th section of the supply bill of 1813, p. 229."

[$ 3, 4, 5, 6. Same as enacted.] Original note to § 5. "Same section, requiring the oath in all cases.'

[S 13, 14. Same as enacted.] Original note to § 14. "New: intended to abbreviate the existing provisions."

[S 15. Same as enacted.] Original note. "4th section of act of 1813: the provision respecting costs omitted; as the whole proceeds go to the plaintiff, no reason is seen for a discrimination between the debt and the costs."

[S 16, substantially same as enacted.] Original note. "Part of the 13th section of same act, the language varied according to the supposed intent of the law."

[S 17. Same as enacted, except that the words after "diligently proceed," were reported as follows: "thereon and obtain his discharge; he shall be forever barred from obtaining his discharge under the provisions of this Article, or of the said third and fifth Articles."] Original note. "Residue of same section; much amplified, and supposed defects remedied. It would be of little use to debar the prisoner from the benefits of this Article, if he could avail himself of the other."

"ARTICLE VII.-General provisions applicable to proceedings under the several preceding Articles, or some of them."

[S 1. Same as enacted, except that the as reported, ended with the words "mayor thereof."] Original note. "The existing law, compiled from various statutes, but omitting the chancellor and judges of the supreme court."

[S 3. Same as § 4 R. S.] Original note. "§ 1, act of 1818, p. 377, varied only as respects the place of hearing."

[S 4, 5. Same as $ 5, 6 R. S.] Original note to § 5. "Laws of 1827, p. 8, allowed them to be continued by any judge of county courts: that could be done in respect to proceedings under Article fifth, because any judge could originally institute such proceedings. This section extends the principle to cases under the other Articles, with an improvement as to the final disposition of them."

[$ 6, 7. Same as § 7, 8 R. S.] Original note to § 7. "The acts included in this Title allow joint companies to act as creditors: it is presumed that any one of a firm or company has a right to release a debt. 3 Johns. Rep. 68; 14 Johns. Rep. 387."

1

[S 8. Same as § 9 R. S., except that the word "authenticated," in the report was changed by legislature to "sworn."] Original note. Compiled from various statutes: the mode of verifying affidavits new, and conformable to the act of congress, substantially."

66

[S 9. Same as § 10 R. S.] Original note. "2d section of two-thirds act, 1 R. L. 461; 5th section of act of 1817, p. 45, extended to proceedings under attachments, as being equally within the equity of the principle."

[S 10. Same as enacted § 11 R. S., except a verbal transposition.] Original note. "2d section of two-third act, 1 R. L. 461; 5th section of act of 1817, p. 45, extended to proceedings under attachments, as being equally within the equity of the principle."

[S 16. Same as § 17 R. S.] Original note. "New; deemed necessary to enforce attendance of jurors."

[S 19. Same as § 20 R. S., the words "duly recorded" having been added by the legislature.] Original note. "New; inserted for reasons given in note to § 59, Article first."

[S 20, 21. Same as § 21, 22 R. S.] Original note. "§ 3 of act of 1819, p. 116, varied as to the mode of proceeding; giving to the insolvent an opportunity of contradicting the allegations on which he is required to be held to bail."

[S 22, 23, 24, 25. Same as § 23, 24, 25, 26 R. S.] Original note. "The four last sections are new, and are proposed to meet a case that might occur, where the assignee being a creditor, should refuse to certify, and the debtor might be obliged to compound with him, in order to be discharged from jail; or to institute legal proceedings, to compel a certificate."

[S 27. Same as § 28 R. S., except the words after "real estate," were reported as follows; "from which property shall have been removed."] Original note. "$ 25, 1 R. L. 470; varied so as to limit the claim for rent in the same manner as when property is levied on by execution. 1 R. L. 437, § 12.”

[$ 28. Same as § 29 R. S., except that the section as reported included debts due to this state.] Original note. "New, and supposed to be declaratory of the existing law. 8 Wheaton, 252; 2 Mason, 311, as to the United States; 4 Cowen, 143; ib. 345, as to the state. Quere, as to the debts due to the state?"

"ARTICLE VIII.—Of the powers, duties and obligations of trustees and assignees under this Title."

[$ 3. Same as enacted.] Original note. "New in form, but contained in various sections of the absconding debtor act."

[$ 7. Same as enacted.] Original note to 1st sub. "§ 23, 1 R. L. 470, varied and extended. Original note to 5th sub. "The principle of allowing sales of real property by trustees on credit, is adopted in various other cases, from its manifest tendency to enhance the price." Original note to 8th sub. "§ 15, 1 R. L. 160; § 8, ib. 352; § 19, ib. 468." Original note to 9th sub. "Authority to compound absolutely, is

given in some of the sections above referred to, but it is here qualified."

[$ 8. Same as enacted.] Original note. "§ 9, 1 R. L. 159. As penalties are imposed by the act for not rendering an account of debts owing, it would seem that the notice should require such account; and the section has been varied accordingly."

[S 12. Same as enacted, except that the words "knows any thing," were changed by the legislature to "can testify."] Original note. "§ 12, 1 R. L. 160; § 16, ib. 467; varied so as to require proof before issuing warrant."

46

[S 13, 14, 15, 16. Same as enacted.] Original note to § 15. "Part of the same 12 § made more explicit, and partly new."

[S 17. Same as enacted, except that the words "and answering to the satisfaction of the officer," were inserted by the legislature after the word "examined." Original note. "New, and to obviate the objection which exists to § 11, 1 R. L. 160, by which a person is made to subject himself to penalties by his own testimony."

[S 18 to 25. Same as enacted.] Original note. "The last 8 sections founded upon 16th section, 1 R. L. p. 161; § 21 ib. p. 469; varied in the details, so as to secure more regularity in the proceeding, and to protect the rights of the claimant. In 7 Johns. Rep. 298, the supreme court held that it had the power of revising the decision of the referees. That principle is accordingly introduced here, and as incident to it, the filing the report, &c."

[S 30. Same as enacted.] Original note. "New. As the attaching creditor is compelled to execute a bond, and as the property goes to the common benefit of all the creditors, he ought to be indemnified."

[S 31. Same as enacted, except that the words "his liability," were reported by the Revisers, "liability of such creditor."] Original note. "Pursuant to the same principle."

[S 32. Same as enacted.] Original note. "New; conformable to laws of congress."

[S 33. Same as enacted.] Original note to 1st sub. "§ 16, 1 R. L. 161; as expounded by the supreme court, in 5 Cowen, 266."

to 2d sub. "§ 19, 1 R. L. 468. Original note to 3d sub. “Varied to correspond with the effect of the assignment."

[S 37. Same as § 38 R. S.] indemnity of the trustees." [S 38. Same as § 39 R. S.] visions made general."

Original note. "New; necessary for the

Original note. "Various special pro

[S 39, 40. Same as § 40, 41, R. S.] Original note. "Part of § 17 and § 19, 1 R. L. 161; varied, so as to allow creditors who may have omitted to present their demands, to receive their proportion on a subsequent dividend; to provide for a case noticed by the court in 5th Cowen, 266."

[S 41. Same as § 42 R. S.] Original note. "New; intended to prevent money remaining in the hands of trustees."

[S 46. Same as § 47 R. S. except that the last clause was added by the legislature.] Original note. "Conformable to practice."

[$ 48. Same as § 49 R. S. Original note. "This and the succeeding sections are founded on the act of 1823, p. 137."

[S 55. Same as § 56 R. S.] Original note. "§ 4 of act of 1823, varied in requiring particulars of the conduct of the trustee." "TITLE II.-Of the custody and disposition of the estates of idiots, lunatics, persons of unsound mind, and drunkards."

[S 1. Same as enacted, except that the phrase, "and the circuit judges of the several equity courts having jurisdiction," was stricken out by the legislature, by act of Dec. 10, 1828, which also directed such words, and words of similar import, wherever they occurred in the Revised Statutes, to be stricken out; that change having been rendered necessary by the new organization of the court of chancery, adopted in the enactment of Chap. I. of Part III.]

Original note. "1st section of act concerning idiots, &c. 1st vol. p. 147; laws of 1821, p. 99, respecting drunkards: extended also to persons of unsound mind, according to the construction of Ch. Kent in 2 Johns. Ch. Rep. 232."

[S 2. Same as enacted, except that the words "or to the equity court of the circuit," after "chancery," were stricken out by the legislature as above stated.] Original note. "Part of 2d section of act of 1821, p. 99: which seems to require that the drunkard should be possessed of some property. As the law is peremptory on the overseers, it would appear to be essential that the cases in which they are to act, should be specifically defined. This has induced the insertion of the amount of property."

[S 4. Substantially same as § 8 R. S.] Original note. "Part of second section of same act, extended so as to require new inventory when new property discovered."

[S6. Same as § 10 R. S.] Original note. "New in form; declaratory of power supposed to be possessed, but which it is deemed useful to confirm explicitly."

[$ 7. Same as 11 R. S.] Original note. "Part of 3d section of same act, p. 147: varied so as to allow a mortgage or lease, which may in many cases prevent the necessity of a sale."

[12. Same as § 16 R. S., except that the words "any judge of the equity court," were altered to "to the court," &c.] Original note. "Part of 3d section of same act, p. 147: "varied so as to require that the personal property should have been exhibited."

[S 14. Same as § 18 R. S.] Original note. "Part of same 3d section: the latter provision of confirming, in conformity to the practice of the court, and to all other laws in similar cases."

"CHAPTER VI."

"OF WILLS AND TESTAMENTS; OF THE DISTRIBUTION OF THE ESTATES OF INTESTATES; AND OF THE RIGHTS, POWERS AND DUTIES OF EXECUTORS AND ADMINISTRATORS."

Original preliminary note to Chapter.

"The following chapter will be found to contain new provisions of a greater number, extent and importance, than any that has been presented to the legislature. From all quarters of the state, the Revisers have heard complaints of the defects of the existing law, upon the subject of wills and executors and administrators, and numerous

amendments have been suggested to them. They have bestowed their utmost attention, and have exerted all the faculties they possess, in an effort to reduce this branch of law into some order, to condense the floating practice and decisions, to settle the most vexed and perplexing questions, and to present to every man who is called upon to act as an executor or administrator, a plain and practical guide for his conduct. The labor it has cost will have been well bestowed, if so much only is accomplished, as to inform the officer intrusted with the delicate and responsible powers of a surrogate, of the extent of his authority, and the means of enforcing it.

"It is a singular circumstance, that while on every other subject of legislation this state has kept pace with the other states of the Union, and on most subjects have surpassed them in improvements on the English law, yet upon this topic we are behind almost every other state. So early as 1798, an excellent system was adopted in the state of Maryland, altogether superior to any then in existence. Massachusetts, the New England states generally, and Virginia, have at different times revised their statutes on the subject of wills and the administration of estates, and have inserted provisions adapted to the wants and situation of our country.

“In this state we have contented ourselves with re-enacting the British statutes, with few and slight alterations; and we have piled up the various and discordant acts of the English parliament, without any attempt to reconcile them, to remove their ambiguities, or to remedy their defects. The law and practice of the ecclesiastical courts in England, before which the statutes on this subject come under consideration, have, until a very recent period, been hidden mysteries; and our own courts have been called upon to expound the statutes borrowed from England, with but little aid from the decisions in that country.

"We have felt that a more useful and acceptable service could not be performed, than to adapt the written law to the actual existing law; where that was settled, to express it in intelligible language; and to incorporate provisions which should terminate the uncertainty that now prevails over a large part of the subject. The prominent objects of the chapter are these:

"1. To prescribe distinctly the mode of executing wills of personal as well as real estate, to declare their construction and effect, and to define the cases in which implied revocations take place. A reference to the notes to Title I., will fully explain the views of the Revisers on these points.

"2. To secure responsibility in executors and administrators, and vigilance in the discharge of their duties. For this purpose means are provided to ascertain their qualifications; and in the event of their being or becoming incompetent, to have others appointed in their places.

"3. To afford creditors full information of all the proceedings of executors, &c., and an opportunity of investigating them.

"4. To protect administrators, &c., in the honest discharge of their duties, to point out those duties explicitly, and to enable them to have a settlement of their accounts without resort to a court of chancery.