AN ACT concerning insolvent debtors. [Approved April 10, 1872. In force July 1, 1872. L. 1871-2, p. 490.]

1. Jurisdiction. SEC. 1. Be it enacted by the People of the State of Illinois, represented in the General Assembly, That the county courts shall have exclusive original jurisdiction in their respective counties in all applications for discharge from arrest or imprisonment under the provisions of this act, and shall be held to be always open and in session for the hearing of such applications. [R. S. 1845, p. 282, § 2; L. 1861, p. 105, § I.

2. When debtor released. § 2. When any person is arrested or imprisoned upon any process issued for the purpose of holding such person to bail upon any indebtedness, or in any civil action when malice is not the gist of the action, or when any debtor is surrendered or committed to custody by his bail in any such action, or is arrested or imprisoned upon execution in any such action, such person may be released from such arrest or imprisonment upon complying with the provisions of this act.

[R. S. 1845, p. 282, § 3; L. 1861, p. 178, §§ 1, 2; People v. Greer, 43 Ill. 213.

3. Notice of application. 3. When any such debtor shall desire to make application to be discharged under the provisions of this act, he shall give reasonable notice of his intended application, to the creditor at whose instance he was arrested or imprisoned, or to his agent or his attorney if in the county, if not, to the officer who made the arrest. Reasonable notice shall be not less than one hour before such applica

tion, and time for travel at the rate of not less than one day for every twenty-four miles' travel.

[People v. Williamson, 13 Ill. 660.

4. Duty of officer. § 4. At the time appointed in such notice, it shall be the duty of the officer in whose custody the debtor shall be, to convey him before the judge of the county court of the county in which the debtor is arrested or imprisoned. [R. S. 1845, p. 282, § 3.

5. Traverse of fraud or refusal-jury. $5. When any debtor is arrested or imprisoned for debt upon charge of fraud, or upon execution on the charge of refusal to surrender his estate for the payment of any judgment, he shall be entitled, upon giving notice as provided in section 3 of this act, to have the question, whether he is guilty of such fraud, or has refused to surrender his estate, tried by a [*585] jury, who may be summoned, tried, and selected for that purpose. If the jury shall find the debtor "not guilty" of such fraud, or refusal, as the case may be, the debtor shall be discharged from the arrest or imprisonment, and the creditor at whose instance he was arrested or imprisoned shall be adjudged to pay the costs of the arrest or imprisonment and of such proceeding. If the debtor shall be found guilty of such fraud or refusal, he shall be remanded to the custody of the proper officer; but such finding shall not prevent his availing himself of the other provisions of this act.

[R. S. 1845, p. 284, §§ 13, 14; p. 285, § 15; Bowden v. Bowden, 75 Ill. 143.

6. Sworn schedule. 6. When a debtor is brought before the judge of the county court, and is not discharged pursuant to the preceding section, the judge shall require of him a full, fair and complete schedule of all his estate, real or personal, including money, notes, bonds, bills, obligations and contracts for money or property of any and every description or kind, name or nature whatsoever, together with a true and perfect account of all the debts which he shall or may be owing at the time; which schedule shall be subscribed by the debtor, who shall also take and subscribe the following oath or affirmation, to wit:

I do solemnly swear (or affirm, as the case may be,) that the schedule now deliv ered, and by me subscribed contains, to the best of my knowledge and belief, a full, true and perfect account and discovery of all the estate, lands, tenements, hereditaments, goods, chattels and effects unto me in any wise belonging, and such debts as are unto me owing, or unto any person or persons for me, or in trust for me, and of all securities and contracts whereby any money may become due or payable, or any advantage or benefit accrue to me or to my use, or to any person or persons for me or in trust for me; that I have not lands, money or any other estate, real or personal, in possession, reversion or remainder, which is not set forth in this schedule; nor have I, at any day or time, directly or indirectly, sold, lessened in value, or otherwise disposed of, all or any part of my lands, money, goods, stock, debts, securities, contracts or estate, whereby to secure the same, or to receive, or expect to receive, any profit, or advantage therefrom, to defraud any creditor or creditors, to whom I am in debted in anywise whatsoever; and also, that this schedule contains a true and perfect account of all the debts that I owe to any and every person whatsoever.

[R. S. 1845, p. 283, § 4; Bowden v. Bowden, 75 III. 143

7. Contesting schedule. § 7. Any creditor of such debtor shall have the right to appear before the court and contest the truth of such schedule, and may, for that purpose, examine the debtor and call such

witnesses as he shall deem necessary; and the court shall issue subpenas and compel the attendance of witnesses as in other cases. [R. S. 1845. p. 283, $5.

8. Adjournments-bond. § 8. The court may adjourn any hearing from time to time, not exceeding thirty days at any one time, and may remand the debtor into the custody of the officer, or allow the debtor to give bond for his appearance in such sum and upon such security as shall be approved by the court, which bond shall be payable to the people of the State of Illinois, and be conditioned that the debtor will appear at the time to which the hearing is adjourned, and from time to time until the same is concluded, and will make due assignment of all his estate, lands, tenements, hereditaments, goods, chattels and effects, not exempt from execution, and deliver the same to his assignee, if one shall be appointed by the court; or, in case he shall not be allowed to make such assignment, will surrender himself to the officer into whose custody he may be ordered by the court, and abide the order of the court. Upon a breach of such bond, it may be put in suit by any person interested therein, for his use, and at his expense. [R. S. 1845, p. 283, § 6. 9. Assignment-assignee - exemption-bond. § 9. If after full investigation, it shall appear to the court, that the debtor has made a full, fair and complete schedule. of all his estate, and all debts which he may be owing at the time, as required by section five of the act to which this is an amendment, and has not fraudulently conveyed, concealed or otherwise disposed of, some part of his estate, with a design to secure the same to his own use, or defraud his creditors, or has not willfully misused or expended his goods or estate, or some part thereof, for the purpose of defrauding his creditors, it shall be the duty of the court to designate and set out to the debtor such property mentioned in the schedule as is exempt from execution, and to appoint some fit person to act as assignee of the debtor; and such debtor shall immediately by indorsement upon such schedule, and otherwise, as the court may direct, assign to such person all his said estate, except such as shall have been designated as exempt from execution, as aforesaid, or so much of said estate as may be sufficient to pay all the debts, interest, costs and charges in such schedule mentioned. Said assignee shall be required by the court to give a bond for the faithful performance of his trust as such assignee; the conditions of said bond, and the security and the penal sum of the bond to be such as the court shall direct and approve. [As amended by act approved May 18, 1877. In force July 1, 1877. L. 1877, p. 116. R. S. 1845, p. 283, §7; p. 286, § 19.

10. Effect of assignment.

1o. Such assignment shall absolutely vest in such assignee all the interest of such debtor in [*586] and to the estate so assigned, for the use of the creditors of such debtor, and such assignee shall have full right to sue for and recover the same in his own name as such assignee, and redeem all mortgages, conditional contracts, pledges and liens of or upon any goods or estate of the debtor, so assigned, or sell the same subject to such mortgage or other incumbrance. [R. S. 1845, p. 283, 7.

11. Discharge of debtor. II. Whenever the said debtor shall produce to the court the receipt of the assignee of such debtor, certify.

ing that he has received all the estate so assigned to him, together with the evidences of indebtedness to, and the books of account of such debtor, if any, showing the accounts owing to such debtor, the court shall enter an order discharging such debtor from arrest or imprisonment. [R. S. 1845, p. 283, § 8.

12. Liberation by officer. § 12. On the production of a copy of such order, certified under the seal of the court, the officer having the custody of such debtor shall forthwith liberate such debtor from arrest or imprisonment. [R. S. 1845, p. 283, § 8.

13. Recording assignment. 13. The assignee shall forthwith cause the assignment, or such other conveyance as shall be made to him on such assignment, to be recorded in the recorder's office of every county in which there may be real estate of the debtor on which it may operate.

14. Proving demands-notice. 14. If the estate so assigned shall, in the opinion of the court, be of sufficient value to justify further proceedings in regard thereto, an order shall be entered fixing a time when demands may be proved against the estate of such debtor, and requiring the assignee to give notice to the creditors of such debtor of such assignment, and of the time and place when and where they may appear and prove their demands, which notice shall be given by personal service, or by mail or otherwise, as the court shall direct.

15. What proof required. § 15. If any creditor shall, at or before the time appointed, file with the clerk of the court his demand, verified by the affidavit of some person knowing the facts, stating the nature and amount of the demand, and that the amount claimed is justly owing to him by the debtor, after allowing all payments and offsets, the same shall be allowed, unless it shall be contested by some person interested in such estate, when further evidence may be required.

16. Further assignment. § 16. Any creditor who shall not have been notified of the intended application of his debtor to take the benefit of this act, may, at any time within one year after the discharge of the debtor under the provisions of the foregoing sections, petition the court, under oath, for permission to re-examine the debtor touching the fairness of his schedule; and if the court shall be satisfied, from such petition, that there is good reason to believe that the debtor had other estate which he ought to have assigned, it shall cause the debtor to be cited to appear before the court at a time to be fixed in the citation, to show cause why he should not make a further assignment of his estate. Upon the hearing, like proceedings may be had as in the case of the original assignment. In case the court shall find that the debtor has other property which he ought to have assigned, it shall enter an order requiring the debtor to make an assignment thereof; and if the debtor shall fail to obey such citation or to make such assignment, and deliver such property to the assignee, he may be proceeded against as for a contempt, and shall be liable to arrest at the suit of any creditor, notwithstanding the original discharge.

17. Collection – disposition of estate. §17. The assignee shall forthwith proceed to collect such demands as may have been assigned to him, and as soon as may be, consistently with the interest of

the creditors, sell all the estate so assigned, both real and per- [*587]

sonal, including such claims as are not collectible by reasonable diligence. He may make such sale in the manner and upon such terms as he shall deem most for the interest of the creditors; but the court may make such order concerning the time, place and manner of sale of the whole or any part of such estate, as will, in its opinion, promote the interests of the creditors. [R. S. 1845, p. 285, § 16.

18. Conveyances. 18. It shall be the duty of every assignee who shall sell any lands or tenements under authority of this act, upon payment of the purchase money being made by the purchaser, to make and execute to such purchaser, his heirs, executors, administrators or assigns, a deed of conveyance for the same, which shall be acknowledged in the same manner as deeds are acknowledged by sheriffs, and such deed shall vest in the purchaser all the rights of the assignor in such lands and tenements. [R. S. 1845, p. 285, § 17.

19. Keeping account. 19. The assignee shall keep a regular account of all money received by him as assignee, to which all persons interested therein shall, at all reasonable times, have access, and the court may call upon him to account to it as often as it shall think for the interest of the estate.

20. Removal new assignee. § 20. The court, after due notice and hearing, may remove an assignee if it is made to appear, upon the complaint of any person interested in the estate, that the assignee has fraudulently received, concealed, embezzled or conveyed away any of the money, goods, effects or other estate assigned to him, or in any manner misbehaved in regard thereto, and may appoint another in his stead, or in the place of any deceased assignee, and may, at any time, when it shall think best for the interests of the estate, require the assignee to give bond with sufficient security, and remove the assignee for a failure to comply with such requirement. In all cases of the appointment of a new assignee the court may compel all necessary conveyances and transfers to be made to him.

21. Settlements — dividends. § 21. It shall be the duty of every assignee of any insolvent debtor, within eighteen months after such assignment, to make a settlement of the estate of such insolvent debtor before the court, giving thirty days' public notice of the time of making such settlement and the court shall make such order concerning the distribution thereof as is made in cases of insolvency of deceased persons; and such assignees shall pay the creditors of such insolvent debtor the amount of their several dividends, within thirty days after such settlement. And if the whole amount of debts shall not have been collected at the time of making such settlement, then such assignee shall continue to collect such outstanding debts, and from time to time make dividends of such sums as shall come to his possession, until the whole is collected and paid, first deducting such charges and fees as are by law allowed; and if any thing shall remain in the hands of any such assignee, after pay. ing all such debts as shall have been proved, as hereinbefore provided, together with the cost thereon, then such assignee shall pay over the same to the said debtor, his heirs, executors, administrators or assigns. [R. S. 1845, p. 285, § 18.