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Acts and resolves passed by the General Court of Massachusetts online

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made and adopted as aforesaid, as soon as conveniently may
be, after making and adopting the same ; and the supreme
judicial court shall have power to alter and amend all such
rules, and to make other and further rules, from time to
time, for regulating the proceedings in all said courts, as
they shall judge necessary, in order to introduce and main-
tain regularity and uniformity in said proceedings.

Sect. 11. Each judge of insolvency shall appoint, tem- Appointment,
porarily, a suitable person to be register of insolvency, in all ten. "^^^
cases arising within the jurisdiction of said judge ; and said
register shall hold his office, until a register is duly chosen
and quahfied ; and at the annual election to be holden in
NoTember next, a register of insolvency shall be elected in
and for each of the several counties in this Commonwealth,
for the same term of years and in the same manner as is
now provided by law for the election of clerks of courts.

Sect. 12. Every register of insolvency shall, ^f^^^e ^^d^im with,
entermg upon his office, make oath that he will faithfully *° ^ ° •
discharge the duties thereof, and that he will not, during his
continuance in office, directly or indirectly, be interested in,
' or benefited by, the fees or emoluments arising from any
suit or matter pending in the court of which he is register,
and such oath being subscribed by such register shall be
filed in said court ; and he shall also give bond to the treas-
urer of the Commonwealth, in a sum not less than five him-
dred dollars, and not exceeding five thousand dollars, as
shall be ordered by the judge, with one or more sureties, to
be approved by said judge, with condition for the faithful
discharge of the duties of his office.

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210



1856.— Chapter 284.



SS*^^Sd?toJ' Sect. 13. Said register shall record, in books to be kept
for that purpose, all the proceedings at the meetings oj cred-
itors, and all decrees and orders of said court, all warrants,
assignments, returns, certificates of discharge, and all such
other acts and proceedings as he shall, by the rules of the
court, or by any special order of the judge, be required to
record. Said register shall also make and keep a docket of
all cases pending in said court, and of the proceedings
therein, with an alphabetical index thereto. He shall al»o
have the care and custody of all the books, documents and
papers appertaining to said court, and filed or deposited
therein, and shall carefully preserve the same to be delivered
to his successor ; and he shall also perform such other duties
appertaining to his office as shall be prescribed by the judge.
All said books, records, documents and papers, and said
docket, shall be at all reasonable times open to the inspec-
tion of the public. Said register shall also make all com-
putations of dividends, and make out all orders of distribu-
tion, and shall furnish to the assignees a certified copy of
such orders, and also of all schedules of creditors, wad of
assets filed in each case. He shall also have power, in case
of the absence of the judge, to adjourn any court or meet-
ing.

^pomy wgii- Sect. 14. In case of the death or absence of the regis-
ter, the judge shall appoint some other suitable person as
register until the standing register shall be able to perform
his duty, or until another standing register shall be ap-
pomted and qualified. Every person so appointed tempo-
rary register shall be sworn before the judge appointing
him, to the faithful performance of the duties of his office,
and so long as he shall perform said duties he shall be enti-
tled to the same compensation therefor as if he had been
the standing register ; and such compensation shall be paid
by the standing register when his absence is the cause of
appointing a temporary register: provided^ such standing
register shall again enter upon the discharge of the duties
of his office.

Sect. 15. The appointment of such temporary register,
and the certificate of the oath of office administered to him,
shall in every case be recorded with the other proceedings
whenever such appointment shall be made.

Sect. 16. No judge of insolvency shall be retained or
employed as counsel or attorney, either in or out of court,
in any suit or matter whatsoever, which may depend upon,
or in any way relate to, any decision, warrant, order or
decree made or passed by him, or to any proceedings in his



Compensation.



Proviso.



Temporary ap«
pointments to



Jadgtt not to be
of coonsel.



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1856.— Chapter 284. 211

oourt, nor shall he be of counsel or attorney for or against
any debtor, creditor or assignee, in any cause or matter
which may come before him, or which may arise or grow
out of, or be in any way connected with any proceedings
before him, or in any appeal in any such cause or matter.
And every judge of insolvency, before entering upon his
office shall, in addition to his oath of office, make oath
that he will not, during his continuance in office, be
directly or indirectly interested in, or benefited by, the
fees or emoluments arising in any matter pending in
the court of which he is judge ; and such oath being sub-
scribed by said judge shall be filed in the court of insolvency.

Sect. 17. No register shall be of counsel or attorney, H«gi«t«rnot to be
either in or out of court, in any suit or matter whatsoever, ^ *^"'"* *
pending in the court of which he is register, or in any appeal
therefrom, nor shall he be assignee in any case pending in
said court, nor in any manner interested in the fees or emol-
uments arising from said office of assignee, or from any
matter or proceeding in said court.

Sect. 18. The several judges of insolvency shall receive salaries of judgv.
for their services an annual sidary as specified in the follow-
ing table, to wit : —

The judge of insolvency for tlie county of SuffiDlk, the
sum of three thousand dollars.

The judge of insolvency for the county of Middlesex, the
sum of two thousand dollars.

The judge of insolvency for the county of Worcester, the
sum of eighteen hundred dollars.

The judge of insolvency for the county of Essex, the sum
of seventeen hundred dollars.

The judge of insolvency for the county of Norfolk, the
sum of fifteen hundred dollars.

The judges of insolvency for the counties of Berkshire,
Bristol and Plymouth, the sum of one thousand dollars each.

The judges of insolvency for the counties of Hampshire
and Hampden, the sum of eight hundred dollars each.

The judge of insolvency for the county of Franklin, the
sum of five hundred dollars.

The judge of insolvency for the coimty of Barnstable, the
sum of four hundred dollars.

The judge of insolvency for the county of Dukes County,
tlie sum of one hundred and fifty dollars.

The judge of insolvency for the county of Nantucket, the
sum of one hundred and fifty dollars.

Sect. 19. The several registers of the insolvency courts salaries of wgia.
' shall receive for their services an annual salary as specified ^^'
in the following table, to wit : —



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212



1856.— Chapter 284.



Paid quarterly.



No additional
few.



I for oopia



Commonwealth
to pay «



Feet for wamnt,
9C9



The register of the insolvency court for the county of
Suffolk, the sum of three thousand dollars.

The register of the insolvency court for the county of
Middlesex, the sum of fourteen hundred dollars.

The register of the insolvency court for the county of
Worcester, the sum of twelve hxindred dollars.

The register of the insolvency court for the county of
Essex, the sum of eleven hundred dollars.

The register of the insolvency court for the county of
Norfolk, the sum of one thousand dollars.

The registers of the insolvency courts for the counties of
Berkshire, Bristol and Plymouth, the sum of eiglit hundred
dollars each.

The registers of the insolvency courts for the counties of
Hampshire and Hampden, the sum of five himdred dollars
each.

The register of the insolvency court for the county of
Franklin, the sum four hundred dollars.

The register of the insolvency court for the county of
Barnstable, the sum of three himdred and fifty dollars.

The register of the insolvency court for the county of
Dukes Coimty, the sum of seventy-five dollars.

The register of the insolvency court for the county of
Nantucket, the sum of seventy-five dollars.

Sect. 20. The said salaries shall be paid in quarterly
payments out of the treasury of the Commonwealth, on the
first days of January, April, July and October in every year,
and in the same proportion for any part of a year.

Sect. 21. No judge of insolvency or register of insol-
vency shall receive any fee or compensation in addition to
the salaries above provided, for any thing done by them
respectively, in their oflBcial capacities, except as hereinafter
provided.

Sect. 22. The register of insolvency shall, for all copies
which he shall make of any orders for distribution and sched-
ules, in addition to those required by law, and for all copies
of any other papers, be paid by the person demanding the
same, at the rate of fourteen cents per page, and no more.

Sect. 23. All expenses attending the sessions of said
courts, and the transaction of business therein, and all
expenses for blank books for said records, and for blank forms
and stationery necessary for the transaction of the business
of said courts, shall be paid out of the treasury of the
Commonwealth.

Sect. 24. In each case in insolvency there shall be
allowed and paid the fees in the following tOrUe set forth,
and none other, to wit : —



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1856.— Chapter 284. 213

For issuing the warrant on the original petition, five dol-
lars:

For each day on which any meeting in said case shall be
held, seven dollars:

For each order for dividend, five dollars :
Which fees shall have priority of payment over all other
claims out of the estate and effects of the debtor ; and if
there shall not be suflBcient assets in the case for the pay-
ment thereof, the person upon whose petition the warrant is
issued shall pay the same, and the court shall have the
power to issue an execution against such petitioner to com-
pel the payment thereof to the standing register ; and before
the issuing of any warrant such petitioner shall deposit with
such register, or with the judge, to be delivered to such
register, forty dollars, as security for the payment of said
fees. Said standing register shall receive all said fees, and
shall account for and pay over the same to the treasurer of
the Commonwealth quarter yearly, on the first Monday of
January, April, July and October, in each year.

Sect. 25. If any debtor hereafter being insolvent, or in certain pajrmentg
contemplation of insolvency, shall, within six months before ^^
the filing of the petition by or against him, make any pay-
ment with a view, directly or indirectly, to give a preference
to any preexisting creditor, or to any person having any
preexisting claim or demand against such debtor, or to any
person who is or may be liable as endorser, guarantor or
surety for such debtor, such payment shall, as to the other
creditors, be void, and the assignees may recover from the
person so preferred, the money so paid, with interest : pro- ProTii..
videdy such person, when accepting such preference, had
reasonable cause to believe such debtor insolvent. And any
such pajrment shall be sufiicient cause for proceeding against
the debtor in the manner, and for the purposes mentioned
in the act of one thousand eight hundred and forty-four,
chapter one himdred and seventy-eight, section nine : pro-
videdj that such debtor had, at the time of giving such
preference, reasonable cause to believe himself insolvent.
The provisions of this section shall not apply to any payment
not exceeding twenty-five dollars in amount, upon any debt
contracted for necessaries furnished to the debtor or his
family.

Sect. 26. If any debtor, hereafter being insolvent, or in certain mort-
contemplation of insolvency, shall, within six months before *^'*"' **^'' ^^^'
the filing of the petition by or against him, make or give
any mortgage, pledge, assignment, transfer or conveyance of
any money or other property belonging to him, to secure



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214



1856.— Chaptek 284.



ProTiao.



Certain •atign-
mtnta of prop-
erty, 4c., Told.



Certain drafts,
fro., aoigned,
not to be ofliBet,



any person who is or may be liable as endorser, guarantor,
surety, or otherwise liable for such debtor, with a view to give
a preference, directly or indirectly, to any other endorser,
guarantor or surety, or any preexisting creditor, whether by
passing, assigning, transferring or delivering to or for him,
the note, bill of exchange, obligation or contract upon which
such person shall be so liable for such debtor, or by enabling
him to avail himself in any other manner, directly or indi-
rectly, of the benefit of such liability, such mortgage, pledge,
assignment, transfer or conveyance, shall be void as to the
other creditors of such debtor, and the assignees may recover
the full value of the property so mortgaged, pledged, trans-
ferred, assigned or conveyed, or the property itself, from the
person to whom such mortgage, pledge, assignment, transfer
or conveyance shall be made: provided^ he shall, when
receiving such mortgage, pledge, assignment, transfer or
conveyance, have reasonable cause to believe such debtor
was then insolvent, and intended to prefer ; or the value of
such property from the person so preferred : provided^ that
when accepting such preference he had reasonable cause to
believe such debtor insolvent.

Sect. 27. If any person hereafter being insolvent, or in
contemplation of insolvency, shall, within six months before
the filing of the petition by or against him, make any sale,
assignment, transfer or conveyance, either absolute or con-
ditional, of any of his property, to any person who then has
reasonable cause to believe such debtor insolvent, or in con-
templation of insolvency, and that such sale, assignment,
transfer or conveyance is made with a view to prevent the
property so sold, assigned, transferred or conveyed, from
coming to the assignees, or to prevent the same being dis-
tributed according to the insolvent laws, or to defeat the
object of, or in any way impair, hinder, impede or delay the
operation or efifect of, or to evade any of said laws, such sale,
assignment, transfer or conveyance, shall be void, and the
assignees may recover the property so sold, assigned, trans-
ferred or conveyed, or the value thereof, as assets of said
insolvency. And the fact of such sale, assignment, transfer
or conveyance not being made in the usual or ordinary
course of business of the debtor, shall be prima facie evi-
dence of such cause of belief.

Sect. 28. No draft, bill of exchange, promissory note,
claim, demand, or cause of action, which shall hereafter,
within six months before the filing of the petition by or
against any insolvent debtor, be assigned, transferred, con-
veyed or delivered to any person who is or may b^ ind^bt^,



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1856.— Chapter 284. 215

or in any way liable to such insolvent debtor, shall be
ofiset, or pleadable in defence, or in bar to any suit by the
assignees to recover such debt or liability, but such assignees
may recover the same, notwithstanding such draft, bill of
exchange, promissory note, claim, demand or cause of
action : provided^ the person to whom the same shall be ProYiao.
assigned, transferred, conveyed or delivered, as aforesaid,
shall, at the time of such assignment, transfer, conveyance
or delivery, have reasonable cause to believe such debtor
insolvent.

Sect. 29. In order to maintain proceedings against any ^^^j^^iT^
debtor in manner and for tlie purposes set forth in the stat- ceediogs, hS^
ute of one thousand eight hundred and forty-four, chapter
one hundred and seventy-eight, section nine, for making any
fraudulent payment, conveyance or transfer of his property,
or any part thereof, it shall not be necessary to prove fraud
on the part of the person receiving such payment, transfer or
conveyance, or that he had reasonable cause to believe the
debtor insolvent.

Sect. 80. If hereafter any insolvent debtor, after notice Debtor to be
of the filing of the petition by or against him, shall secrete oflSJdeSesS^
or conceal any property belonging to his estate, or any^*^ *'*'***°
books, deeds, docimients or writings relating thereto, or
shall remove, or cause to be removed, the same, or any part
thereof, out of the Commonwealth, or otherwise dispose of
the same, or any part thereof, with a view to prevent the
same, or any part thereof, from coming to the hands or pos-
session of the messenger or assignees, or to hinder, impede
or delay the messenger or assignees in the recovering or
receiving the same ; or shall make any payment, gift, sale,
assignment or conveyance of any property belonging to his
estate ; or shall spend the same, or any part thereof, in gam-
ing, or otherwise spend the same, except such parts thereof
as may reasonably be expended for the support of himself
and his family, not exceeding the amoimt allowable by law,
he shall be deemed guilty of a misdemeanor, and being con-
victed thereof, shall be punished by imprisonment in the
state prison for a term not exceeding five years, or in the
county jail for a term not exceeding two years.

Sect. 31. No discharge of any debtor imder the insolvent Diachwgo forfeit-
laws, shall be granted or valid, if such debtor hereafter shall ^^n^'I^Sd
have destroyed, altered, mutilated or falsified any of Ms ®^ <''^*<*"*
books, documents, papers, writings or securities, or made,
or been privy to the making, of any false or fraudulent entry
in any book of accoimt, or other document, with intent to
defraud his creditors, or shall have removed himself, or



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216



1856.— Chaptee 284.



cAiwi, not to
allowed.



remored, or caused to be removed, his property, or anjpart
thereof, from the Commonwealth, with intent to defraud his
creditor, or shall make any fraudulent payment, gift, trans-
fer, conveyance or assignment of his property, or any part
thereof, or shall spend the same, or any part thereof, in
gaming ; or, being a merchant or tradesman, shall not, after
the passage of this act, have kept proper books of account ;
or if any person having proved a false debt against the debt-
or's estate, said debtor being privy thereto, or afterwards
knowing the same, shall not have disclosed the same to his
assignees within one month after such knowledge ; or unless
the debtor shall satisfy the court that he had reasonable
cause to believe himself solvent within six montlis next pre-
ceding the filing the petition by or against him.
ci«imi,incertMn Sect. 82. No pcrsou who shall have hereafter accepted
any preference, having reasonable cause to believe that tlie
same was made or given by the debtor contrary to any of
the provisions of the insolvent laws, shall be allowed to prove
the debt or claim on account of which such preference was
made or given, nor to receive any dividend therefor out of
the debtor's estate.

Sect. 33. Whenever any claim shall be presented for
proof, before the election of the assignees, and the judge or
commissioner shall entertain doubts of. the validity of sucli
claim, or of the right of the creditor to prove the same, and
shall be of opinion that the validity thereof, or right of tlie
creditor, ought to be investigated by the assignees, he shall
have power to postpone the proof of such claim till after the
election of the assignees.
Certain creditors Sect. 34. No pcrsou who shoJl havc had or received any
rign^«!c""" preference, contrary to the provisions of the insolvent laws,
shall be eligible as assignee, or shall be allowed to vote upon
the choice of assignees of the estate of any insolvent debtor :
provided^ however ^ that no title to any property, real or per-
sonal, which shall have been sold, transferred or conveyed by
any assignee, shall be affected or impaired by reason of the
ineligibility of such assignee.

Sect. 35. There shall be added to the creditor's oath,
now required to bo taken in proof of his claim against the
estate of the insolvent debtor, in substance, the following, to
wit : — " And I do further swear that I have not, directly or
indirectly, made or entered into any bargain, arrangement
or agreement, express or implied, to sell, transfer or dispose
of my claim, or any part of my claim, against said debtor,
nor have, directly or indirectly, received or taken, or made
or entered into any bargain, arrangement or agreement,



Certain claims
maj be poet-
poMd.



PtotIm.



Additional oatli
of creditor.



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1856.— Chapter 284. 217

express or implied, to take or receive, directly or indirectly,
any money, property, or consideration whatsoever, to myself,
or to any person or persons to my use or benefit, under or
with any understanding or agreement, express or implied,
whereby my vote for assignees, or my assent to the debtor's
discharge is, or shall be, in any way affected, influenced or
controlled, or whereby the proceedings in this case are, or
shall be affected, influenced or controlled." No debt shall
be proved or allowed against any insolvent estate, unless all
the facts set forth in the creditor's oath shall be true.

Sect. 36. Whenever complaint shall be made on oatli, JJ^^JJJigJf*
by the messenger or assignees, to any judge of insolvency, &c.
statmg that there is reason to suspect and believe, and that
the complainant does suspect and believe, that any personal
property, or any books, deeds, documents, securities, papers
or writings, belonging to the estate of any insolvent debtor,
are secreted or concealed in any particular house, premises
or other place, such judge is hereby authorized and directed,
if he shall be satisfied that there is reasonable cause for such
belief, to grant a warrant to the messenger or assignees to
search for such property, books, deeds, docimients, securi-
ties, papers or writings, and it shall be lawful for such mes-
senger or assignees to execute said warrant in like manner ;
and such messenger or assignees shall be entitled to the
same protection, as is allowed by law in the execution of a
search warrant for property reputed to be stolen and con-
cealed.

Sect. 37. No warrant against any copartnership shall be wammt agaiMt
issued upon the petition of less than all the copartners, *^p^°^» ^^
unless reasonable notice shall first be given by the court, to
the other partner or partners, if witliin the Conunon wealth,
of the pendency of such petition, so that he or they may
show cause, if any, why the prayer of the petition should
not be granted.

Sect. 38. In all matters in insolvency that are contested, Awwd of corts.
either before a court of insolvency or in the supreme judicial
court, said respective courts may, in their discretion, award
costs to either party, to be paid by the other, or to either or
both parties, to be paid out of the estate which is the sub-
ject in controversy, as justice and equity may require.

Sect. 39. When c6sts are awarded to one party, to be Execution ibr
paid by the ojther, the said courts respectively, may issue ^^'
execution therefor, in like manner as practised in courts of
common law.

Sect. 40. This act shall not affect any case in insolvency Not to toect
now conmienced, or that shall hereafter be conunenced '*°^°*^**'**''™'

28



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218 1856.— Chaptee 285.

before this act shall take effect ; and the jndge of probate,
master in chancery, or commissioner before whom any such
cases may be pending at the time this act shall take effect,
shall have the same jurisdiction, power and authority in
respect to them, as they now have.
M>«j{^oj^wuiii Sect. 41. So much of the several acts to which this is
**** "'" in addition, as gives jurisdiction to judges of probate, mas-
ters in chancery, and commissioners of insolvency, and all
other provisions in said several acts inconsistent with the
provisions of this act, are hereby repealed.
^vh«i»touk« Sect. 42. This act shall take effect thirty days from the
* *^* time of its passage, except as to that part providing for the

appointing, commissioning and qualifjring the judges of said
courts, which part shall take effect on the passage hereof.



Online LibraryMassachusetts. General Court MassachusettsActs and resolves passed by the General Court of Massachusetts → online text (page 22 of 41)