Effect of Death upon the Rights of Creditors, tion of nine calendar months from the time of his taking the office. (a) The only alteration of the English rules for the administration of assets, is in the acts of 1786, which places bills, bonds, notes, whether with or without seal, and all liquidated accounts signed by the debtor, upon the same footing. (b) The real estate of a deceased debtor cannot be sold upon a judgment against his personal representatives. But when on a plea of fully administered, in a suit against an executor or administrator, the issue is found for the defendant, the plaintiff may sue out a scire facias against the heirs and devisees of the debtor, to appear and show cause, if any there be, why execution should not issue against the real estate for the amount of such judgment. Upon the return of such scire facias, the heirs and devisees may contest the finding of fully administered, in a collateral issue with the executor or administrator: and if such issue be found against the defendant, or be not made, judgment may pass against the heirs or devisees, and execution issue thereon against the real estate of the debtor in the hands of the heirs or devisees. Where the executor or administrator fails to plead plene administravit, or it is found against him, and he proves insolvent, the creditor, if he has been guilty of no negligence or collusion, may have the same remedy against the heirs or devisees, who may likewise, in such proceeding, contest the insolvency of the executor, or the want of assets. The creditor may bring a joint or several action against the heirs and devisees. The lands of a deceased debtor remain liable for the payment of his debts for the space of two years from the probate of the will or granting letters of administration upon his estate. (c) When the goods and chattels of any deceased person are insufficient to pay his debts, the executor or administrator may sell the real estate, of whatever kind, under a license which he obtains on petition, from the County Court, or Superior Court of the county in which the letters have been granted. The proceeds of the real estate thus sold shall be deemed assets, in the same (a) Williams v. Maitland, 1 Iredell 92. (c) Ib. 362 to 367. Insolvent Law. manner as if the estate had been personal: bonds and obligations binding the heirs being put on the same equal footing with other specialties, bills, promissory notes and liquidated accounts. (a) 9. Insolvent Law. Any debtor charged on mesne process, or in execution for debt, and having remained in close prison twenty days, or having taken the benefit of the prison bounds, may, on a petition to two justices or to the County Court, or to a judge of the Superior or Supreme Court, in or out of court, notice having been given to the creditors at whose suit he is imprisoned, be forever discharged from execution against his body on such debts, by taking an oath that he is not worth ten dollars over and above certain trifling articles allowed him by the law, and that he has not, directly or indirectly, disposed of any of his property to defraud his creditors. Or such debtor may petition to be discharged from imprisonment on surrender of all his property, and upon filing a full and exact schedule of the same, verified by affidavit, and giving notice of his application to the creditors at whose suit he is imprisoned, the court may direct his discharge, and he shall be exempt from future arrest for any debt existing at the time of such discharge. Any creditor may suggest fraud or concealment on the part of the debtor, and if the same is found in an issue against him, he will not be released. All the property of the debtor contained in the schedule, real and personal, vests in the sheriff of the county where it is filed, whose duty it is to sell and convert the same into money, and pay the proceeds into the Court of Pleas and Quarter Sessions. The court thereupon appoints two commissioners to examine into the claims of all the creditors of the insolvent, and make a pro rata distribution among them of his effects. Any debtor who has been arrested upon a ca. sa., or is in custody by surrender of bail after judgment, may obtain his release from confinement by giving bond with sufficient security for his appearance at the next court, to which the execution was return(a) Acts of 1847, 1. (b) R. S. i. 320 to 329. Attachment. able, to abide such proceedings as the court might take, as to allowing him the benefit of the insolvent act. The debtor having given ten days' previous notice in writing to his creditors of his intention to take the benefit of the act, may, unless some creditor suggests fraud or concealment of his property, and upon an issue made up to try the same, it is found against the debtor, be admitted either to take the oath for the benefit of insolvent debtors, or to swear to a schedule previously filed. And his discharge is to have the effect previously stated. The suggestion of fraud must be made by the creditor in writing, setting forth the particulars of the fraud or concealment, and accompanied by his affidavit that he verily believes the matter therein stated to be true. (a) 10. Attachment. An attachment may issue against the estate of any debtor who absconds, so that the ordinary process of law cannot be served upon him, on an affidavit being made to that fact, before any judge of the Supreme or Superior Courts, or any justice of the County Court, by the creditor, his agent or factor, and a similar affidavit as to the amount of the debt or demand. (b) An attachment may also issue in favor of a citizen of the state against any non-resident debtor, but not in favor of a non-resident. creditor against a non-resident debtor. (c) Before the writ of attachment can issue, the plaintiff is required to give bond with security, to be returned with the affidavit into court, conditioned to satisfy all costs and damages which the defendant may sustain by reason of the wrongful issuing of the attachment. The real and personal estate of the defendant are both subject to the attachment. A surplus of money raised by execution, remaining in the hands of the sheriff, may be attached by the creditors of the original defendant. (d) Any persons having in possession effects of an absconding or (a) Acts of 1845, 45. (b) R. S. i. 70. (c) Broghill v. Wellburn, 4 Dev. 511; Taylor v. Buckley, 5 Iredell 383. (d) Orr v. McBride, 2 Car. L. R. 257. Attachment. absent debtor, or indebted to the same, may be summoned as garnishees, to appear and state under oath the amount of such effects or indebtedness. Where a garnishee appears and confesses, a judgment may be entered and execution awarded for the use of the plaintiff, against such garnishee, for all sums of money due to the defendant, or effects of the defendant in the hands of such garnishee. If any garnishee fails to appear and discover upon oath, as required, the court may enter up against him a conditional judgment, upon which a scire facias may issue, returnable to the next term, to show cause why a final judgment should not be rendered against him, and upon the continued default of such garnishee, the court may confirm the judgment, and award execution for the whole debt of the plaintiff. When the garnishee denies that he owes to, or has in his hands any estate of the defendant, and the party plaintiff shall suggest an opposite statement on oath, the question may be tried by a jury, on an issue made up under the direction of the court, and upon the verdict of the jury the court may give judgment as in other cases. Where an attachment has been levied upon the goods or estate of a non-resident of the county from which the writ has emanated, the pendency of the same must be made known by the clerk by public advertisement for the space of six weeks, and until the expiration of this period final judgment cannot be rendered upon the attachment. (a) Similar provisions are made for the issuing of writs of attachment, in cases cognizable by a justice of the peace. When real estate is attached, in such case, and condemned by the justice, it is his duty to return the proceeds to the next County Court, who may affirm the same, and issue a venditioni exponas. The provisions of the attachment law are to be strictly construed, and very trivial objections to the process and to the jurisdiction will be entertained, if brought forward at the proper time. (b) (a) R. S. i. 75. (b) Skinner v. Moore, 2 Dev. & Batt. 138; State Bank v. Hinton, et als, 1 Dev. 397. Proceedings in Civil Suits. . 9. Proceedings in Civil Suits. Bail; judicial attachment.-No clerk or his deputy may grant any writ or leading process, returnable to any court of record, until he has taken sufficient security from the persons applying for the same, conditioned for the prosecution of the suit. and in case of failure of such prosecution, for the payment of such costs and damages as may be awarded by the court to the defendant; and for a violation of this provision the clerk is liable to a penalty of two hundred dollars, to be recovered from him by the defendant in an action of debt, in the court where the offence has been committed. (a) Where the sheriff returns that the defendant is not to be found in his county, the plaintiff may at his election sue out an alias and other process, to compel an appearance, or an attachment against his estate; and if the sheriff returns any goods attached by him, the plaintiff may file his declaration, and proceed as in other cases to judgment; and if the goods attached are not replevied, they may be sold as on an execution of fi. fa., and if the judgment remains unsatisfied, the plaintiff may have execution for the residue. (b) Judicial attachments may issue against the estate of persons who have left the state, after leading process has been executed on them. (c) No female can be taken or imprisoned for debt, upon either mesne or final process. (d) A writ of capias ad respondendum may issue with the ordinary subpœna from courts of equity, where the plaintiff shall specially state upon oath his debt or damages, before one of the judges of the Superior Court of law and equity, or one of the judges of the Supreme Court, or the clerk and master in equity. (e) Upon this writ when thus emanating from a court of equity, or from a court of law, except where executors or administrators are defendants, it is the duty of the sheriff to require sufficient bail, and in case of his failure to take any bail, or that which (a) R. S. i. 152. (b) Ib. 155. (c) Ib. 75. (d) Ib. 155. (e) Ib. 177. |