New York (State).

The colonial laws of New York from the year 1664 to the Revolution : including the charters to the Duke of York, the commissions and instructions to colonial governors, the Duke's laws, the laws of the Dongan and Leisler Assemblies, the charters of Albany and New York and the acts of the colonial le online

. (page 13 of 92)
Online LibraryNew York (State)The colonial laws of New York from the year 1664 to the Revolution : including the charters to the Duke of York, the commissions and instructions to colonial governors, the Duke's laws, the laws of the Dongan and Leisler Assemblies, the charters of Albany and New York and the acts of the colonial le → online text (page 13 of 92)
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of three shillings and six pence per Week unto the said Prisoner
to be paid the Monday of every Week so long as he or she shall
continue in Prison at his her or their Suits. On Pailure of the
payment of which Weekly sum at any Time, the said Prisoner
shall forthwith upon application to the Court be discharged by
such Order as aforesaid; but in Case the said Prisoner shall
refuse to take the Oath or Affirmation, or having taken the same
shall be detected of Palsity therein^ he or she shall be presently
remanded.

AND BE IT FUETHER ENACTED by the Authority aforesaid
that no Person to be discharged by this Act shall at any Time
hereafter be imprisoned by reason of any Judgment or Decree
obtained for payment of Money, only, or for any Debt Damage
Costs, Sum or Sums of Money contracted, incurred, occasioned,
owing or growing due before the Time of his pr her Discharge,
but that upon every Arrest, every such Judgment or Decree for
such Debts, Damages, Conten^pts, Cost, Sum or Sums of Money,
it shall and may be lawful for any Judge of the Court where the
process issued, upon shewing the Duplicate of such Prisoner's
Discharge or Discharges, to release and Discharge out of Cus-
tody such Prisoner or Prisoners as aforesaid, and the Judge is
hereby impowered so to do, so as every such Prisoner or Prison-
ers arrested or detained upon Execution or other Process as afore-
said do give a Warrant of Attorney to appear to every such
Action and plead thereunto.

AND BE IT FURTHER ENACTED by the Authority aforesaid
that if any Action of Escape, or any Suit or Action be brought
against the Judge of any Court or any Justice of the Peace, or



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1^ LAWS OF THE COLONY OP NEW YORK.

any SherifP, Goaler or Keeper of any Prison for pepfonning their
Gifice in pursuance of this Act they may plead the General Isauei
and give this Act in Evidence, and if the Plaintiff be nonSuited
or discontinue his Action, or Verdict pass against him, or Judg-
ment upon Demurrer, the Defendant shall have treble Costs,
PROVIDED that this Act shall not extend to discharge any
Person out of Prison who shall stand chargeable at the Suit of
the Crown only.

PROVIDED ALWAYS and be it further Enacted by the
Authority aforesaid that notwithstanding the Discharge of the
person of such Prisoner or Prisoners as aforesaid all and every
Debt or Debts due and owing from the said Prisoner or Prison-
ers, and all and every Judgment or Judgments had and taken,
and Decree obtained against him or her shall stand and be good
and effectual in the Law to all Intents and Purposes against the
Lands, Tenements, Hereditaments, Goods and Chattels of the said
Prisoner so discharged as aforesaid which he she or they, or any
Person or Persons in Trust for him her or them at the Time of
such Discharge, hath or have, or at any Time hereafter shall or
may be in any wise seized, or possessed of interested in or intitled
to either in Law or Equity except the necessary wearing apparel
of the said Debtor his Wife and Children and it shall and may be
lawful to and for such Creditor or Creditors of such Prisoner or
Prisoners so discharged as aforesaid his her or their Executors
or Administrators to take out a new Execution against the
Lands, Tenements Hereditaments Goods and Chattels of such
Prisoner or Prisoners (except as before excepted) for the Satisfac-
tion 01* his her or their Debts in such Sort, Manner and fform, as
he she or they might have done if the Person or Persons of such
Prisoner or Prisoners had never been taken in Execution, or other
process as aforesaid, any Law^ Usage or Custom to the contrary
in any wise notwithstanding.

PROX'IDED ALWAYS and be it further Enacted by the
Authority aforesaid that if any such Person who shall take sudi
Oath or Affirmation ns aforesaid shall upon any Indictment for
perjury in any Matter or particular contained in the said Oath or
Affirmation be convicted by his or their own Confession or by Ver-
dict of twelve Men, as he or she may be, by force of this Act, the
Person so convicted shall suffer all the Pains and Forfeitures
which may by Law be inflicted on any Person convicted of Wilful
perjury, and shall likewise be liable to be taken on any Process
de Novo, and charged in Execution for the said Debt in the same



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XiAWS ox: THE COLONY OF NEW. YOKE* 12B

Manner as !f lie or she had neyer been dlscliarKed or taken In
Execution before^ and Bhall never after have tlie Benefit . of
tMa Act.

PBOVIDED ALSO and be It farther Enacted by the AuthoritTi
aforesaid that if the Effects so assigned shall not extend to satisfy
the whole Debts due to the Creditors of the Person or Persona
so discharged, and the Fees due to the Attornies, Sheriffs and
other Officers of the Court with the Goaler, there shall be an
Abatement in proportion, and such Officers shall come in as a
Creditor for what shall be then due to him for his Fees in proper*
tlon with the other Creditors,

AND BE IT FURTHER ENACTED by the Authority aforesaid
that when there are mutual Debts between the Debtor or Debt«
ors, and his, her or their Creditors, or if either Party sue or be
sued as Executor or Administrator, where there are mutual
Debts between the Testator or Intestate and either Party, one
Debt shall be set against the other, and such Matter may be
given in Evidence upon the General Issue or pleaded in Bar, as
the Nature of the Case shall require so as at the Time of the
pleading the Oeneral Issue, where any such Debts of the PlaintifC
bis Testator or Intestate is intended to be insisted on in £vl«
dence Notice shall be given of the Particular sum or Debts so
Intended to be insisted on, and upon what Account it became
due, otherwise such Matter shall not be allowed in Evidence upon
the General Issue. PROVIDED that where any Rent shall be
due from any Prisoner or Prisoners at the Time of his or their
respective Discharges, no Goods or Chattels then lying or being
in or upon their respective Tenements or Lands so in Lease, or
liable to be distrained shall be removed or disposed of without
the Consent of the Landlord or Person to whom the Rent is due
until the same (not exceeding one Years Rent) be paid or satis-
fied, and that the Landlord may use all Lawful Ways for thel
having and recovering his Rent so as that the same exceed not
one years Rent by Distress or otherwise as he might have had,
or could have done before the making of this Act, any Thing
herein contained to the contrary in any wise notwithstanding.

AND BE IT FURTHER ENACTED by the Authority afore-
said that John Cox, Samuel Btitt, Sarah Mc Culluem, John Bel*
field, Thomas Dods, and Hugh Cosgriff now confined in Goal in
the City of New York shall be and hereby are intitled to all the
Belief, Advantage and Benefit that other Insolvent Debtors are
Intitled to by this Act, to all Intents, Constructions and Purposen



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126 LAWS OP THE COLONY OP NEW YORK,

wliatsoevep although their Debts do exceed the Snm of two hun-
dred Founds, any Thing in this Act contained to the contrary in
any wise notwithstanding

AND BE IT PURTHER ENACTED by the Authority afore-
said that this Act shall continue in force from the Publication
thereof uQtil the first Day of May one thousand seven hundred
and seventy one.

(CHAPTER 1464.]

[Chapter 1464 of Van Schaack, where the title only is printed. Repealed
by the klag the 7th of June, 1771.]

An Act for the relief of James DePeyster
of the City of New York Merchant and
insolvent Debtor and others therein named.
[Passed, January 27, 1770.]
WHEREAS James DePeyster of the City of New York Merw
chant among other Debts is considerably indebted to the Estate
of Abraham DePeyster Esquire deceased late Treasurer of this
Colony, as well on Account of private Dealings between them
as for Public Duties, and by an Act of the LfCgislature of this
Colony intitled " An Act for the^ more effectual vesting the real
^ and Personal Estate whereof Abraham De Peyster Esquire late
** Treasurer of this Colony died seized and possessed in Trustees
'* for the payment of his Debts." made and passed in the eighth
year of his Majesty's Reign, the Estate of the said Abraham
De Peyster is vested in John Cruger, Philip Livingston, Leonard
Lispenard, Henry Holland and William Bayard Esquires in
Trust for the Purposes there in mentioned, and the said James
De Peyster by his humble Petition to the General Assembly
having represented that Becoming Insolvent by a Series of Losses
and Misfortunes he with the concurrence of many of his Creditors
hath endeavoured to take the Benefit of the Acts of the Legisla-
ture heretofore provided for the relief of Insolvent Debtors; but
that on application to the Trustees of the Estate of the said late
Treasurer they declined subscribing his Petition for that Purpose,
conceiving they were unauthorized without a further act of the
Legislature, and that while his former Petition praying that the
said Trustees might be enabled to compound with him, was under
consideration in General Assembly the Acts for the relief ol
Insolvent Debtors, expired whereby he must be reduced to the
necessity of continuing in his present unhappy situation unless
relieved by the Interposition of the Legislature, the General
Assembly therefore pray that it may be enacted.



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LAWS OP THE COLONY OF NEW YOEK. 12T

AND BE IT ENAC3TED by his Honor the Lieutenant Governor
the Council and the Qeneral Assembly, and it is hereby enacted
by the Authority of the same, that it shall and may be lawful to
and for the said Trustees of the Estate of the said Abraham
De Peyster, or the Major part of them, or the Major Part of the
Survivors of them, and they are hereby authorized and directed
to compound with the said James De Peyster, in the Manner by
this Act prescribed, for and concerning all Monies which were
due and owing from him to the said late Treasurer at his
decease, as well on Account of the Private Dealings and Transac-
tions which subsisted between them, as for Duties due and owing
from the said James De Peyster to this Colony.

AND BE IT FURTHER ENACTED by the Authority afore-
said that it shall and may be lawful to and for the said James
De Peyster in conjunction with the said Trustees of the Estate
of the said late Treasurer or the Major Part of them, and such
other of the Creditors of the said James De Peyster as shall be
desirous to have the Benefit of this Act to present a Petition to
the Supreme Court or in the Vacation to two or more of the
Judges thereof; praying that the Estate of the said James
De Peyster may be assigned and delivered to such Person or Per-
sons as the said Petitioners or the Majority of them in resi>ect to
their Demands shall nominate to receive and dispose of the same
for the use of all the Creditors of the said James De Peyster.

AND BE IT FURTHER ENACTED by the Authority afore-
said that the said James De Peyster within two Days after the
presenting such Petition, shall deliver in writing to the said
Court or Judges a full and true Account of all his Creditors, and
the Monies owing to them by him, and also a full and true Inven*
tory and Account of all his Estate, both real and personal in
Law and Equity, and all Books Vouchers and Securities relating
to the same, except the necessary Apparel and Bedding of him-
self his Wife and Children, on which the said Court or Judges are
hereby required to administer and tender to him an Oath to the
following Effect. " I. James De Peyster do Solemnly Swear that
" the Account by me delivered is a just and true Account of all
" My Creditors, and the Monies owing to the best of my knowl-
" edge and remembrance by me, and that the Inventory and
" Account delivered by me is a just and true Inventory and
^ Account of all my Estate real and personal both in Law and
" Equity either in poesession. Reversion, or Remainer, the Wear-
^ ing Apparel and Bedding of myself my Wife and Children



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128 LAWS OP THE COLONY OP NEW YORK.

" excepted and that I hare not directly or indirectly sold, leased
" assi^ed or otherwise disposed of , or made over either in Trust
*' for myself or otherwise, except as set forth in the same Account
^' any Part of my Estate real and personal, for my future Benefit,
" or in order to defraud my Creditors, So help me God." which
Oath being taken by the said James DePeyster, notice shall be
given by the Petitioners to all the Creditors of the said James
DePir^yster, by advertising the same in one or more of the Public
News Papers to shew Cause if any they have, by such a Day
as shall be appointed by the Court, or two or more of the Judges,
why an Assignment of the Estate of tlie said James DePeyster
should not be made, and he thereupon discharged from his Debts,
at which Day it shall and may be lawful to and for one fourth
Part of the Creditors of the said James DePeyster in respect to
the amount or value of all the Debts due and owing by him to
signify in Writing under their Hands their dissent to his being so
discharged and in that Case the said Court or Judges are hereby
^prohibited and disabled from giving the said James DePeyster
or his Petitioning Creditors any Benefit or Relief by this Act:
but if at the Day so to be appointed such dissent shall not be
shewn by one fourth Part of the Creditors of the said James
DePeyster as aforesaid: and no other sufficient Cause to the con-
trary appear, the said Court or any two of the Judges shall direct
a legal Grant or Assignment of all the Estate of the said James
DePeyster both in Law and Equity to be made by him to the
Persons nominated for that purpose by the Petitioners or a
Majority of them, in respect to the Amount of their just Demands.
AND BE IT FURTHER ENACTED by the Authority afore-
said that iBUch Assignees shall have full power and Authority
in their own Names to sue for and recover all and every Part of
the real and Personal Estate, Rights and Outstanding Debts, so
to them to be assigned by the said James DePeyster, and to
grant sell and dispose of such real Estate, and to make and exe-
cute good and Sufficient Deeds and Conveyances for the same,
and to refer to Arbitration, settle Compound or agree with any
Person indebted to the said James DePeyster or claiming or
possessed of any part of his real Estate in such Manner, and on
such Terms and Conditions as they shall conceive to be just and
reasonable; and shall proceed to convert the Estate of the said
James DePeyster into Money, as soon as conveniently may be,
and shall within the Space of one Year and an half proceed to
make a Dividend of all the Monies which shall arise or come to



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LAWS OP. lES COLONY OF. NEW, YOKE. 129

tiieir Hands out of the said Estate so to be assigned first giving
three Months notice of the Time and Place of making such Divi*
dend by advertising the same in one or more of the Public News-
papers, and if the whole be not then collected and settled shall
within the Space of one Year thereafter make a Second Dividend
of what Monies may come to their Hands after the first, and so
from Year to Year until a final Settlement and a just and equal
Dividend of the whole Estate be made.

AND BE IT FURTHER ENACTED that if any Controverisy
shall arise between the said Assignees, and any Creditor of the
said James De Peyster concerning any Debt due from him; for
the more easy and speedy determination thereof the Assignees
shall nominate two referrees not being Creditors, and the Creditor
whose Debt is in controversy shall nominate two others, and
their Names separately written on four pieces of paper as nearly
of the same size as possible shall be rolled up in the same man-
ner, and put into a Covered Box and from thence one of the
Assignees shall draw out three of the said Pieces of paper, and
the Persons whose Names are so drawn shall finally settle such
controversy, and if any Referree so appointed shall refuse or be
incapable of acting in a reasonable Time, a new choice shall be
made in the same manner, and in Case any Creditor shall refuse
to nominate Referrees on his part, the Assignees are hereby
impowered to nominate them for him.

AND BE IT FURTHER ENACTED that in Case any Part of
the Real Estate of the said James DePeyster to be so assigned,
shan be held by him in Fee Tail, in possession. Reversion oP
Remainder (except the said Estate be so entailed by his Majesty
or his Royal Predecessors, and the Reversion remaining in his
(Majesty his Heirs or Successors) that the Assignees shall have
power in Order to save the Trouble and Expence of a common
recovery, to grant, sell, and dispose of all such Estate and make
a good Title for the same to any purchaser thereof in fee Simple,
and all Persons who do or shall claim any Rig Jt Title or Interest
In and to such Estate, by virtue of such Entail, shall be and are
hereby effectually barred from claiming or recovering the same.

AND BE IT FURTHER ENACTED that the Assignees to be
so appointed by virtue of this Act shall have full power and
authority by and with the free and voluntary consent of the said
VoL V. 17



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920 LAWS OF THE COLONY OF NEW YORK.

InsoIyenVs Wife, to dispose of the Seal Estate so to be assigned
by him, discharged and free of any Claipi of Dower by her.

AND BE IT FURTHER ENACTED that the Assignees shall
immediately after the Assignment to them made, take an Oath
to be administered by the Court, or any one of the Judges, well
and faithfully to manage the said Insolvents Estate, and keep
and render a true Account of all that shall come to their Hands
of the same; and for that purpose shall keep regular Books of
Accounts to which every Creditor may at all Times have recourse,
and for their Care and trouble shall be allowed out of the said
Insolvent's Estate, such a Consideration as the Petitioners, or the
Major Part of them shall agree and fix upon.

AND BE IT FURTHER ENACTED that for the more full dls-
covery of the said Insolvent's Estate, the Court or cny one of
the Judges, at the request of the Assignees shall have full power
and are hereby required to summons and examine on Oath any
Person whomsoever known or suspected to detain any Part of the
said Insolvent's Estate, or to be indebted thereto; and in Case
any person on such Summons, shall refuse to attend, having no
reasonable excuse, or shall refuse to be Sworn, or if a Quaker to
affirm; then it shall be lawful for the said Court, or any one of
the Judgeif, to commit the Person in contempt to Goal, till he
shall submit to be examined concerning what he may know of
the said Insolvent's Estate or Effects; and if any such Person
shall Wilfully and knowingly swear or Affirm falsely, the Per-
son so offending shall incur the same Pains and Penalties as
those who are convicted of wilful and corrupt Perjury.

AND BE IT FURTHER ENACTED that the said Insolvent
having given up his Estate and conformed in all Things to the
Directions of this Act shall be discharged and acquitted from
all Debts due from him at the Time of the Assignment or con-
tracted for before that Time, though Payable afterwards and if
sued or prosecuted for any such Debt or Contract, it shall and
may be lawful for him to plead the General Issue^ and give the
special Matter in Evidence.

PROVIDED ALWAYS and be it further Enacted that before
such Release and acquittal shall be good and available in the
Law, every Petitioning Creditor of the said Insolvent shall be
obliged to swear that the sum annexed to his Name in the
{A^ccount so to be exhibited of all the Creditors is justly due to
him or will become due to him at some future Time ascertaining



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LAWS OP THE COLONY OF NEW YOEK. ISl

wlien; but if the Creditor be out of this Colony, and Petitions by
his Attorney, instead of the Afii davit of the Principal, it shall suf-
fice If the Attorney swears, that he verily believes that the Sum
claimed by him is justly due to his principal. PROVIDED ALSO
that the- Trustees of the Estate of the said late Treasurer, shall
not be held to swear or attest to the Debt due from ihe said
Insolvent to them as Trustees; but having ascertained the same
In the best manner they are able, their Subscription of the Bald
Petition shall be effectual, without any further attestation.

AND BE IT FURTHER ENACTED that if the said Insolvent
shall be Guilty of Perjury, by concealing any Part of his Estate
or Effects; or shall after the Assignment of his Estate by Virtue
of this Act receive any Debt or Debts due to him, before such
Assignment or shall secrete any Books, Vouchers, Writings or
other Things appertaining to his Estate with an Intent to defraud
Ws Creditors; he shall in any such Case be deemed and adjudged
Guilty of Felony, without Benefit of Clergy; but his Estate shall
nevertheless be distributed among his Creditors.

PROVIDED ALWAYS and be it further Enacted that after
deducting all such Costs Charges and Expences as shall be
necessarily laid out and expended by the said Assignees together
with their Commissions for their Care and Trouble therein, the*
residue of the Estate of the said Insolvent shall be equally
divided among the Creditors in proportion to their respective
Debts, in which Dividend no preference shall be given to Debts
due by Specialty or on Judgment, or otherwise howsoever, but if
there should be an Overplus after all the Creditors are fully
satisfied their just Demands, it shall be paid by the Assignees to
the said Insolvent his Executors or Administrators.

AND BE IT FURTHER ENACTED by the Authority afore-
said, that if any Person shall be sued for any Matter or Thing to
be done in pursuance of this Act, it shall be lawful for him to
plead the General Issue, and give the Special Matter in evidence.

AND BE IT FURTHER ENACTED by the same Authority
that it shall and may be lawful to and for Daniel Hauxhurst and
Jacob Kemper Insolvent Debtors of the City of New York to
take the Benefit of the several Acts continued by an Act intitled.
^ An Act to continue the several Acts therein mentioned respect-
•'Ing the Relief of Insolvent Debtors," passed the Nineteenth
Day of December one thousand seven hundred and sixty six, and



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132 LAWS OP THE COLONY OP NJEW YORK.

ulilcli are expired by their own Limitation as f ally and effectually
as if the said Acts respecting the relief of Insolyent Debtors were
now in actual and fnll force

AND BE IT ALSO ENACTED by the same Authority tliat
Whereas it appears by the Oath of William Hanxhurst
an Insolvent Debtor, that there was due to him at the
Time of his becoming Insolvent the Sum of eight hun-
dred and forty two Pounds, eighteen Shillings, and ten
Pence half penny from the said Daniel Hawxhurst; that
It shall and may be lawful to and for the Assignees of the
said William or the Major Part of them to join in a Petition with
the said Daniel, and with the Creditors of said Daniel in order to
his obtaining the Benefit of said Acts, provided that it appears
to them or the major Part of them by the Books of said William
or otherwise that the said sum of eight Hundred and forty two
Pounds eighteen Shillings and ten penqe half penny, was actually
due from the said Daniel to the said William, at the Time that
the said William became Insolvent, or for so much thereof as to
the said Assignees shall appear to be actually due from the said
Daniel to the said William; and that the Assignees of the said
William Hauxhurst shall certify under their Hands to the Judge
or Judges to whom such Petition shall be preferred the Sum that
to them appears due from the said Daniel to the said Assignees,
which certificate shall be as full and effectual as if the said
Assignees had taken the Oath prescribed by the said Acts or one
of them for Petitioning Creditors to take, any Thing in the said
SActs to the contrary hereof notwithstanding.

AND BE IT FURTHER ENACTED by the Authority afore-
said that this Act shall continue and be in full force until the
first Day of January one thousand seven hundred and seventy one
as to the Liberties of the Creditors Petitioning, and no longer;
but shall continue, and be in full force as to the Power of every
Court, Person, assignee or Assignees appointed by this Act until
a full and final settlement and Division shall be by them mjode
according to the true Intent and meaning of this Act



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(LAWS OP THE COLONY OP NEW. TOBK.^ iUHj

THIETY-PIBST ASSEMBLY.
Third Session.

fBegun Dec. U, 1770^ 11 Qeorge III^ John Earl of Dunmorab

Governor.^



Online LibraryNew York (State)The colonial laws of New York from the year 1664 to the Revolution : including the charters to the Duke of York, the commissions and instructions to colonial governors, the Duke's laws, the laws of the Dongan and Leisler Assemblies, the charters of Albany and New York and the acts of the colonial le → online text (page 13 of 92)