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 82 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 82 of 92)
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of such Forfeiture, and applied as hereinafter directed; which said
Courts are hereby respectively fully impowered to compel to come
before them all such concealors or others concerned, and them to
examine upon Oath, touching the Premises, and to commit them
or either of them if they refuse to be so examined, or being so
examined refusing to Answer fully and satisfactorily to such Court.
And be it further Enacted by the Authority aforesaid. That it
shall and may be lawful for the Trustees of any Debtor or Debtora
Estate, heretofore appointed by Virtue of any of the Laws of this
Colony relating to fraudulent or absconding Debtors, or hereafter
to be appointed by Virtue of this Act, or the Survivors or Sur-
vivor of them, or the Major Part of such Survivors to apply to
any Justice of the Peace in this Colony, who is hereby in such
Case authorized, required and commanded to grant a Warrant
under his Hand and Seal commanding such Debtor or Debtors, the
AVifc or Wives of such Debtor or Debtors respectively, and every
other Person whomsoever, known or suspected to detain any part
of such Debtors Estate or to be indebted to it, or knowing or sus-
pected to know any Thing concerning the Concealment or Em-
bezzlement thereof, by their respective Names, forthwith to be
brought before such Justice or Trustees at such Place as the said
Justice and Trustees or the Major Part of them or Survivors op
Survivor of them, or the Major Part of such Survivors, shall at
the Time of the Application for or issuing of such Warrant ap-
point; where the said Justice of the Peace is also hereby required
and commanded to be present; Or in Case of his Death, absence
or indisposition such other Justice of the Peace as the said Trustees,
or the Major Part of them or the Survivors or Survivor shall request
to be present: At which Meeting as well the said Justice of the
Peace, as the said Trustees or the Survivors or Survivor of them, or
the Major Part of such Survivors, shall and may examine on Oath,
or if a Person privileged by Law to affirm on his or her Affirma-
tion (which Oath or Affirmation the said Justice of the Peace Is



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81« LAWS OP THE COLONY OF NEW YORK.

hereby required to Administer) as well by word of Moutb, as cm
Interrogatories in Writing all and every Person or Persons brought
before the said Justice and Trustees, by Virtue of such Warrant
or Warrants; and any other Person or Persons present at any such
Meeting, touching all Matters relative to the Person, Trade, Deal-
ings, Debts, Credits, Estate or Effects of all and every such Debtor
or Debtors and also to take down and reduce into Writing, the
Answers of every such Person had, given or taken before them as
aforesaid : which Examination so taken down and reduced into Writ-
ing, the Person whose Examination the same is, shall and is hereby
required to sign and subscribe. And in Case any Person so
brought before them the said Justice and Trustees or the Sur-
vivors or Survivor of them, or the Major Part of such Survivors,
shall refuse to be sworn, or if a Person so Privileged by Law to
affirm as aforesidd, or being sworn or affirmed, shall refuse to
answer, or shall not fully answer to the Satisfaction of ihe said
Justice all lawful Questions put to him or them by the said Justice
and Trustees, or the Major Part of them then present, as well by
word of Mouth, as by Interrogatories in Writing; or shall refuse
to sign or subscribe his her or their examination so taken down
in Writing as aforesaid, not having a reasonable Objection either
to the wording thereof or otherwise to be allowed by the said Jus-
tice, it shall and may be lawful to the said Justice of the Peace
and he is hereby required, by Warrant under his Hand and Seal
to commit him or them to Prison, there to remain without Bail
or Mainprize, until such time as such Person or Persons respec-
tively, shall submit to the said Justice to be sworn or affirmed as
aforesaid, and full Answer to make, to the Satisfaction of the said
Justice to all such Questions as shall be put to him her or them
as aforesaid and to sign and subscribe such examination as afore-
said, according to the true Intent and Meaning of this Act.

Provided always. That in Case any Person or Persons shall be
committed as aforesaid for refusing to be sworn or affirmed, or
to Answer, or for not fully Answering any Question or Questions
put to him, her or them by the said Justice and Trustees, or the
Major Part of them then present by word of Mouth, or on Inter-
rogatories, that the said Justice of the Peace shall in his Warrant
of Commitment specify such default respectively; And if the
Commitment be for refusing to Answer any Question or Inter-
rogatory the said Justice shall in his Warrant specify such In-*
terrogatory or Interrogatories Question or Questions.

Provided also, That in Case any Person or Persons committed



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LAWS OF THE COLONY OF NEW YORK. 817

by such Warrant or Warrants by virtue of this Act, shall bring
any Habeas Corpus in order to be discharged from any such Com-
mitment, and on the return of any such Habeas Corpus there shall
appear any insufficiency whatever in the form of the Warrant
whereby such Person was committed, by reason whereof the Party
might be discharged of such Commitment; That then it shall and
may be lawful for the Court or Judge before whom such Party
shall be brought by Habeas Corpus as aforesaid, and such Court or
Judge shall, and is hereby required by Rule, Order or Warrant,
to commit such Person or Persons to the same Prison to which he
was first committed there to remain as aforesaid, unless it shall be
made appear to such Court or Judge, by the Party committed, that
he, she or they have fully answered all lawful Questions put to
him, her or them by the said Justice and Trustees, that were then
present, or the Major Part of them; Or in Case such Person was
committed for not signing his, her or their examination unless it
shall be made appear to such Court or Judge, that the party so
committed, had a good and sufficient Eeason for refusing to sign
the same And in Case any Goaler or Keeper of any Prison or Goal
to whom any such Person or Persons shall be committed as afore-
said shall willfully, suffer any such Person or Persons to escape
from such Prison until he she or they shall be duly discharged as
aforesaid such Goaler or Keeper shall for every such Offence, being
first duly Convicted thereof by indictment or Information forfeit
to the Trustees appointed to manage and distribute the Estate
and Effects of such absconding or concealed Person or Persons
respectively a Sum equal to all such Sum or Sums of money as shall
be due or owing to the Creditor or Creditors of such absconding
or concealed Person or Persons; provided the same does not exceed
the Sum of One Thousand pounds to be sued for recovered and
levied by the said Trustees or the Survivors or Survivor of them in
any Court of Eecord within this Colony, and distributed as here-
inafter directed.

And be it Enacted by the same Authority, That in Case any
Person so to be examined as aforesaid either in Court or before such
Justice and Trustees as aforesaid shall wilfully and knowingly
swear or affirm falsely the Person so offending, shall be liable to
all the same Pains and Penalties as those who are Convicted of
¥dlfull and corrupt Perjury.

And be it Enacted by the Authority aforesaid, That any Per-
son or Persons (other than those who have the Effects in their
Custody) who shall discover any Effects of any absconding or oon-
Vol. V 103



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818 LAWS OP THE COLONY OF NEW YORK.

cealed Debtor or Debtors secreted contrary to tbe true Intent and
Meaning of this Act, so that they be recovered by the Trustees of
such absconding or concealed Person or Persons Estate; shall be
and hereby is or are entitled to Ten per Cent on the Value of all
Effects so discovered, recovered and received by the said Trustees,
to be paid to the discoverer or discoverers, by the said Trustees out
of the Estate or Effects of such absconding or concealed Debtor or
Debtors.

And be it further Enacted by the Authority aforesaid. That the
Trustees of any absconding or concealed Debtors Estate already
appointed in Pursuance of anj^of the said Laws of this Colony
relating to absconding and fraudulent Debtors, or hereafter to be
appointed in Pursuance of this Act, or any two of them are hereby
fully empowered to settle and adjust all Matters, Contracts and
Accounts that may be subsisting between .such absconding or con-
cealed Person or Persons, and his her or their Debtor or Debtors;
And also between such absconding or concealed Person or Persons,
and his her or their Creditor or Creditors; and to examine any
Person or Persons upon Oath concerning any Matters, Accounts or
Settlements between them or either of them; which Oath the said
Trustees or any one of them, two of them being present, is and are
hereby empowered to Administer.

And for the greater ease and relief of such Trustees as afore-
said. Be it Enacted by the same Authority, That in case any Con-
troversy shall arise concerning any Debt, Matter or Thing claimed
by any Creditor or Creditors, of such absconding or concealed
Person or Persons; or concerning any Debt due. Duty Matter or
Thing claimed by the said Trustees from or against any Person
or Persons, as belonging to, or in right of the Effects or Estate of
such absconding or concealed Debtor or Debtors; or concerning
or relating to any Contract or Agreement entered into or made
by such absconding or concealed Debtor or Debtors previous to
such public Notice as aforesaid first given, it shall and may be
lawful for such Trustees already appointed as aforesaid or here-
after to be appointed in Pursuance of this Act or any two of them
or the Survivors or Survivor of them, to have every such Contro-
versy determined in the following manner, that is to say, the said
Trustees or any two of them or the Survivors or Survivor of them
may nominate two Referees not being Creditors of such absconding
or concealed Debtor or Debtors or to them known to be otherwise
interested in such Controversy or related to any Person interested
in such Controversy, and the other Party or Parties in such Con-



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LAWS OP THE COLONY OP NEW YORK. 819

troversy shall also nominate two indifferent Persons to be Referees
and their Names shall be separately written on four pieces of
paper as nearly as may be of the same size and figure, which shall
be rolled up separately in the same manner and put into a Box,
and from thence one of the Trustees 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 Keferees so ap-
pointed shall refuse or be incapable of acting in a reasonable Time,
a new choice shall be made in like manner as before of another
or others in the Koom of him or them so refusing or being in-
capable of acting as aforesaid; And in Case any Person or Persons
who shall have any Controversy with any such Trustees as afore-
said shall refuse to nominate fit Persons to be Referees on his or
their Part, Then such Trustees or any two of them, or the Sur-
vivors or Survivor of them are hereby empowered to nominate
Referees for him or them so refusing and to proceed to the final
Settlement of such Controversy in manner aforesaid.

And be it further Enacted by the Authority aforesaid. That
all Trustees hereafter to be appointed by Virtue of this Act, shall
proceed to convert the Estate or Estates Real and Personal of such
absconding or concealed Debtor or Debtors for the Management
of which Estates respectively they shall be appointed into money,
and collect the Debts due to the same. And that the said Trustees
or any two of them, or the Survivor or Survivors of them, shall
cause public Notice to be given in one or more of the public News
Papers printed in the City of New York requesting a general
Meeting of all such Creditors as shall choose to attend to examine
and see the Debts due to each Person ascertained, at a certain Time
and Place by such Trustees in their said Notice to be appointed,
which shall not be less than two, nor more than three months after
such said Notice given, nor more than one year and an half from
the Time of their first Appointment: At which Meeting or other
Subsequent Meetings necessary for that purpose, to be continued
by Adjournments if necessary, when all Accounts are fairly stated
and adjusted, they shall proceed to make a Distribution or Division
amongst the Creditors in Proportion to their respective just De-
mands, of all monies as shall have come to their Hands as Trustees
of such Estate or Effects (of which all Forfeitures by them re-
covered and received by virtue of this Act shall be considered as a
part) first deducting thereout all legal Charges and Commissions;
in which Payments no preference shall be allowed to Debts due on
Specialties: And if the whole of such absconding or concealed



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820 LAWS OF THE COLONY OP NEW YORK.

Debtor or Debtors Estate, fiball not be tben settled and distributed,
such Trustees or any two of them or the Survivors or Survivor of
them shall within the space of one year thereafter make a second
Dividend of all such Monies as shall have coine to his or their
Hands after the first division, and so from Year to Year until a
final Settlement thereof and a just and equal distribution of such
Estate or Effects shall have been made amongst the Creditor or
Creditors of such absconding or concealed Debtor or Debtors in
Proportion to their respective just Demands. And if any surplus
shall remain after all just Debts and legal Charges and Conmiis-
sions are fully paid and satisfied such Surplus shall be paid or
delivered to the said Absconding or concealed Person or Persons^
his her or their Executors Administrators or Assigns.

And be it further Enacted by the Authority aforesaid. That any^
Person or Persons who may have given Credit to any such abscond-
ing or concealed Debtor or Debtors on a valuable Consideration for
any Sum of money which shall not be due or payable at the Time
of any such division or distribution as aforesaid, but will become
due or payable at some after Time, shall and may nevertheless, be
admitted and considered as a Creditor or Creditors, whose Debts
were then due, and shall receive a Dividend of the Estate of such
absconding or concealed Debtor or Debtors in the same Propor-
tion as other Creditors, deducting thereout only a rebate of legal
interest for what shall be received on such Debt or Debts, to be
computed from the actual Payment thereof, to the Time of such
Debt or Demand respectively would have become due.

And be it further Enacted by the same Authority, That if any
Creditor or Creditors shall neglect or refuse to give Notice of, or
deliver in to the said Trustees an Account of his, her or their Debt
or Demand, or having any Controversy relating to or concerning
the Estate of such absconding or concealed Debtor or Debtors, shall
refuse to adjust or settle the same with the said Trustees in the
manner in and by this Act directed until after a Division shall
have been made of the !Monies and Effects in the Hands of the
said Trustees any such Creditor or Creditors shall not be entitled
to any Dividend, and the whole monies then in Hand to be divided
shall be divided by the said Trustees among the other Creditors:
But in Case the whole of such Debtor or Debtors Estate shall not
be divided and settled at the first Division, then if such Creditor or
Creditors respectively shall prove and deliver in to such Trustees,
his her or their Debt or Demand, before the Time appointed for the
second Division; or shall have settled such Controversy as aforo*



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(LAWS OF THE COLONY OP NEW. YORK. 821

Bald TVitli the said Trustees, then such Creditor or Creditors shall
have his, her or their first Dividend, or so much money as he would
otherwise have been entitled to on the first Division before any
second Dividend shall be made.

And be it further Enacted by the Authority aforesaid, That any
Creditor or Creditors residing out of this Colony shall be entitled
to all the Privileges and Benefits of this Act; And that the Attor-
ney or Attomies of every such Creditor or Creditors residing out of
this Colony on producing a Letter of Attorney from such Creditor
or Creditors duly Authenticated and legal Proof of the Debt due
shall and may in all Eespects act do and proceed, for and in behalf
of such Creditor or Creditors, in the same manner as such Creditor
or Creditors might or could do, for securing or recovering their
respective Debts from such absconding or concealed Debtor or
Debtors, if such Creditor or Creditors was or were personally
present

And Whereas Persons who dwelt out of this Colony may be
indebted within the saine and have Estates or Effects sufficient
within the same to pay and satisfy such Debts or Parts thereof,
Be it also Enacted by the same Autiiority, That the Estates, Goods,
Chattels and Effects real and personal of all and every such Person
and Persons (so indebted) as do or may dwell or reside out of this
Colony, shall also be Subject and liable to be taken, seized, pro-
ceeded against sold, conveyed and disposed of, for the Payment
and satisfaction of such of the said Debts as aforesaid, as near as
may be in like manner as the Estates and Effects of other Debtors
in and by this Act are made subject and liable to.

Provided always, That instead of the Proof of Absconding
or Concealment of such Debtor or Debtors the Creditor or Credit-
ors applying for any Attachment, against the Estate or Effects of
any Person or Persons residing out of this Colony, shall make
Proof by two Witnesses to the satisfaction of the Judge or Judges
to whom Application for such Attachment shall be made, that such
Debtor or Debtors reside out of this Colony. And also Provided,
That in any such Case no Trustees shall be appointed until the
Expiration of one Year after such public Notice as aforesaid given.

And be it further Enacted by the Authority aforesaid, That
the Judges of the Inferior Court of Common Picas in each County
within this Colony, and the Mayor and Recorder of the City of
New York and each and every of them is hereby authorized and
impowered to put this Act in Execution in their respective Coun-
ties, where the Debt or Sum due to any one Creditor or joint Com-
pany applying for relief does not exceed one Hundred Pounds.



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822 LAWS OE THE COLONY OE NEW YORK.

Provided always, That where Warrants shall be issued by any
Judge or Judges of the Supreme Court and also by any Judge
or Judges of any of the said Inferior Courts against the Estate or
Effects of the same Person or Persons, in snch Case, the Judges
of the Supreme Court or any one of thc?n shall award a Writ or
Writs of Certiorari to the Judge or Judges of such Inferior Court,
as the Case may require, to remove the Proceedings there, before
the Judge or Judges of the Supreme Court, that he or they may
proceed upon both Warrants or either of them.

And be it further Enacted by the Authority aforesaid, That the
Judge or Judges who shall issue any Warrant or Warrants of
Attachment in Pursuance of this Act, shall make Report to the
Court whereof he or they is or are Judge or Judges, of the Court
whereof he or they is or are Judge or Judges, of the Proof of the
Debt or Demand made by the Creditor or Creditors, on whose
Application such Warrant or Warrants issued, of the issuing cf
such Warrant or Warrants, of the Notice thereon ordered, of the
Publication of such Notice, of the Appointment of Trustees, and
of all other Matters required of him or them by this Act, to be
done out of Court; and cause that Report to be entered in the
Minutes of the said Court, to be Evidence of the Facts so reportei.
And such Report or the Record or Entry thereof in the Minutes
of the said Court, shall be full and conclusive Evidence of the
Facts so reported in all Courts of Record within this Colony.

And be it further Enacted by the Authority aforesaid, That the
Judge or Judges who shall make any such Appointment of Trus-
tees, shall and is and are hereby required at the request of the
Trustees thereby appointed or any one of them, to endorse on
such Appointment an allowantse that the same may be recorded;
which allowance signed by the said judges or any one of them, if a
Judge of the Supreme Court shall be a sufficient Warrant and
Authority to the Secretary of this Colony, and all or any of the
Clerks of the respective Cities or Counties within this Colony to
record the same. And if such Judge be a Judge of an Inferior
Court of Common Pleas, shall be a sufficient Warrant and
Authority to the Clerk of the Court or County whereof he is a
Judge to record the same. And any Appointment of Trustees
under the Hand and Seal, or Hands and Seals of any Judge or
Judges authorized to put this Act in Execution or the Record
thereof duly made in the said Secretary's Office, or in the Office of
the Clerk of any City or County of this Colony, shall be full and
conclusive Proof in all Courts and Places within this Colonjr^ That



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LAWS OF THE COLONY OF NEW YORK, 825

tlie Person or Persons against whose Estate or Effects sucli War-
rant or Warrants issued was or were at the Time of issuing thereof,
either absent, absconding or concealed Debtor or Debtors, within
the meaning of this Act; And that the said Appointment and the
Proceedings previous thereto were regular and according to the
directions of this Act.

And Whereas the Affidavits or Affirmations of the Creditors,
whereon Warrants of Attachment have issued against secreted or
absconding Debtors by virtue of sundry Laws of this Colony re-
lating to fraudulent and absconding Debtors, and the Warrants of
Attachment issued as aforesaid, and the Sheriffs returns thereof
and Inventories therewith returned, have usually remained with
the Judge or Judges who issued the same, or one of them; And the
Appointment of Trustees made in Pursuance thereof remained in
the Hands of the Trustees appointed or one of them; And by
reason of the decease of such Judges, and death or removal of such
Trustees, are many Times lost or mislaid; By means whereof such
Persons as have or may Purchase any Messuages, Lands, Tene-
ments or Hereditaments which were of such absconding concealed
or secreted Debtors from or under any Trustees for all the Credit-
ors of any secreted concealed or absconding Person or Persons
appointed as aforesaid may be disabled to make out their Rights
and Titles to the same; And such Affidavits or Affirmations, War-
rants of Attachment or Appointments of Trustees, in Case they can
be found are not at present of record, or filed in any public Office
of Records; which may be of evil Consequence to such Purchasers
as aforesaid, or Persons claiming under them; for remedy whereof.

Be it Enacted by the Authority aforesaid, That any Judge or
Judges who shall issue such Warrant or Warrants of Attachment
as aforesaid pursuant to this Act, shall, and he or they is and ate
hereby required and directed, to cause the Affidavits or Affirma-
tions, of the Creditor or Creditors made before him or them
previous to the issuing of such Warrant or Warrants respectively,
within Thirty Days after the taking of such Affidavit or Affirma-
tion; And such Warrant or Warrants of Attachment as aforesaid,
within Thirty Days after the return thereof by such Sheriff as
shall return the same, together with the Sheriffs return thereof to
be delivered into the Office of the Clerk of that Court, whereof he
or they is or are Judge or Judges, which Clerk is hereby required
and commanded to mark or cause them to be marked respectively,
with the Day and Year on which each of them respectively shall
be filed in his office, and to preserve the same amongst the Papen



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82i H^WB OR THE OOLOGY OF MEW. YOBK;

filed in such Office. And all Trustees hereafter to be appointed
bj Virtue of this Act, or the Survivors or Survivor of them who
by virtue of such Appointment, shall sell and convey any Mes-
suages, Lands, Tenements or Hereditaments shall cause "-.uch Ap-
pointment of Trustees to be duly proved or acknowledged and
allowed so that the same may be recorded, and shall cause the
same to be entered of Eecord either in the Secretary's Office of
this Colony or in the Office of the Clerk of the City or County



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 82 of 92)