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3658. Persons privileged.
2660. Discharge - Damages, 2659. Places and times.
2661. Attachment for contempt (1 R. S. 1852, p. 104. In force May 6, 1853.] 2658. Persons privileged. 1. The following persons shall be privi. leged from arrest on civil process, and from obeying any subpæna to testify:
First. All officers of the General Assembly, during their attendance thereon, and during the time they are going to and returning from the place of meeting, not to exceed one day for every twenty-five miles of the usually traveled route.
Second. All voters, during attendance at and going to and returning from elections.
Third. Members of the Board of County Commissioners during the session of their Board, and while going to and returning from the same.
Fourth. Justices, while engaged in hearing or determining any trial.
Fifth. All persons while engaged in necessary attendance upon any Court, and in going to and returning from the same.
Sixth. The Governor, Treasurer of State, Secretary of State, Auditor of State, and Superintendent of Public Instruction.
Seventh. All persons while actually engaged in the discharge of military duty.
1. A person privileged from arrest can not recover from one who issued the writ with general directions to the officer to execute it immediately, not knowing that the person so to be arrested was thus privileged. - Sewall v. Lane, i Ind. 293.
2659. Places and times. 2. No person shall be arrested in any place of worship during service or on Sunday, except in cases specified by law, nor on the fourth of July.
2660. Discharge-Damages. 3. Any person arrested contrary to the provisions of this Act shall be forthwith discharged, on motion before the Court issuing the process, or on habeas corpus; and shall be en, titled to recover from the person arresting, or causing him to be arrested, twenty dollars in damages therefor, or a greater amount in the discretion of the jury.
2661. Attachment for contempt. 4. An attachment for contempt, in not obeying the command of a subpæna to testify, shall be deemed a civil process within the meaning of this Act.
2674. Liens. 2663. How made,
2675. Distribution. 2664. Trustee's duty.
2676. Fraud, how prevented. 2665. Clerk's minute.
2677. Claims verified. 2666. Removal of trustee.
2678. Compounding debts. 2667. Notice of appointment - Inventory, 2679. Final report. 2668. Appraisement.
Renvoval and discharge of trustee. 2669. Valuation by appraisers.
2681. Appeal. 2676. Exemption. 2671. Duties of trustee.
2683. Surviving partners. 2672. Trustee's report.
2683a. Appointment of trustees in certain cases. 2673. Allowance of claims,
2683b. Acts legalized. (1859, p. 239. In force March 5, 1859.) 2662. Failing debtor may make. 1. Any debtor or debtors in em. barrassed or failing circumstances may make a general assignment of all his or their property, in trust for the benefit of all his or their bona fide creditors; and all assignments hereafter made by such person or persons for such purpose, except as provided for in this Act, shall be deemed fraudulent and void. Any debtor or debtors in embarrassed or failing circumstances making a general assignment of all of his or their property as provided herein, may seleci his or their trustee, who shall serve and qualify, unless creditors representing in amount one-half of the liabilities of the embarrassed debtor or debtors petition the court for the removal of the trustee and the appointment of another trustee. If such request be made it shall be the duty of the circuit or superior court, or judge thereof, in which said embarrassed debtor or debtors reside at once to appoint a suitable disinterested party to act as trustee in place of the one removed. [As amended, 1891 S., p. 312. In force June 3, 1891.
1. This statute does not prevent the preference of a bona fide debt.- Wilcoxon V. Annesley, 23 Ind. 286.
2. Corporations, unless restrained by their charters or by general law, may make assignments for the benefit of creditors.---- De Camp v. Alward, 52 Ind. 468.
2663. How made. 2. All assignments under this Act shall be by indenture duly signed and acknowledged before some person duly authorized to take the acknowledgment of deeds, and shall, within ten days after the execution thereof, be filed with the Recorder of the county in which the assignor resides, whose duty it shall be to record the same as deeds are recorded. The indenture of assignment shall contain a full description of all real estate thus assigned, and be accompanied by a schedule containing a particular enumeration and description of all the personal property assigned; and the assignor shall make oath before some person authorized to administer oaths, that said indehture and schedule contain a statement of all the property, rights, and credits belonging to him, or of which he has any knowledge, and that he has not directly or indirectly transferred or reserved any sum of money or article of property for his own use or the benefit of any other person, and has not acknowledged a debt or confessed a judgment to any person or persons for a sum greater than was justly owing to such person or persons, or with the intention of delaying or defrauding his creditors. No assignment under this Act shall convey to the assignee any interest in the property so assigned until such assignment is recorded as provided for in this section.
1. The schedule of personal property required by this section is no part of the indent ure of assignment, and need not be recorded.-- Biack v. Weathers, 26 Ind. 242
2. The title to real estate assigned does not pass to the assignee until the deed of assignment has been duly recorded.– New v. Reissner, 56 Ind. 118.
3. The deed of assignment containing descriptions of lands lying in different counties should be recorded in each of the counties. - Switzer v. Miller, 58 Ind. 561.
2664. Trustee's duty. 3. Within fifteen days after the execution of any such assignment, the trustee shall file a copy of the assignment and schedule in the office of the Clerk of the Circuit Court of the county in which the debtor resides; and shall before entering upon the execution of the trust, make oath that he will faithfully execute the same, that the property assigned has been actually delivered into his possession for the uses declared in the assignment, and the probable value of the property, so assigned. And such trustee shall, at the same time, file with the Clerk a written undertaking to the State of Indiana, with at least one sufficient surety, to be approved by the Clerk, in a sum double the amount of the value of the property assigned, conditioned for the faithful discharge of the duties of his trust; which bond shall be for the use of any person or persons injured by the action of such trustee in the premises.
1. Action upon the bond of an assignee can only be prosecuted in the name of the State, on the relation of the party interested.-- Jackson v. Rounds, 59 Ind. 116.
2. A complaint by one alleging himself to be an assignee or trustee for the benefit of creditors, which does not allege that the deed of assignment has been duly recorded, and does not contain a copy thereof, is bad on demurrer,--Foster Brown, 65 Ind. 234. Quære: Is the copy necessary ?
2665. Clerk's minute. 4. The Clerk of the Circuit Court shall minute the filing of said copy of indenture and schedule and the undertaking in the proper book provided therefor,
2666. Removal of trustee. 5. If the trustee fail to comply with the provisions of the foregoing sections, the Circuit Judge, or the Clerk thereof, may, at the instance of the assignor or a creditor, by petition, remove said trustee, and appoint some suitable person in his stead, who shall forthwith comply with the requirements above specified, and who shall immediately take possession and control of the property assigned, and enter upon the execution of the trust, as hereinafter provided.
2667. Notice of appointment – Inventory. 6. Immediately after complying with the requirements beforementioned, the trustee shall give notice of his appointment by publication, three weeks successively, in some newspaper printed and published in the county, if any there be, and if not, by written notices put up in at least five of the most public places in the county, and by publication of the same in some newspaper printed and published nearest thereto, for the time and in the manner mentioned in reference to publication in the county where the assignor resides. And said trustee shall, within thirty days after entering upon the duties of his trust, make and file, under oath, a full and complete inventory of all the property, real and personal, the rights, credits, interests, profits, and collaterals which shall have come to his hands, or of which he may have obtained knowledge as belonging to the assignor. And it shall further be his duty, whenever any property not mentioned in said inventory comes to his hands, or when he obtains satisfactory information of the existence of such property, to file an additional inventory of the same, under like regulations governing the one herein named.
2668. Appraisement. 7. The trustee, after filing the inventory men. tioned in the next preceding section, shall, within twenty days thereafter, cause the property mentioned in said inventory to be appraised by two reputable householders of the neighborhood, who, before proceeding to the discharge of such duty, shall take and subscribe an oath that they will honestly appraise the property mentioned in the inventory, filed by the trustee; which oath shall be filed, together with the appraisement by them made, with the clerk of the circuit court.
2669. Valuation by appraisers. 8. The appraisers shall, in the presence of such trustee, appraise each article mentioned in the inventory at its true value, and set down opposite each article respectively the value fixed by them in dollars and cents in figures.
2670. Exemption. 9. If the assignor is a resident householder of this State, said appraisers shall set off to said assignor such articles of property or so much of the real estate mentioned in the inventory as he may select, so that the same shall not exceed three hundred dollars; and the appraisers shall in their appraisement specify what articles of property and the value thereof, or what part of the real estate and its value, they have so set apart to the assignor.
1. Enlarged, by implication, to six hundred dollars.--O'Neil v. Beck, 69 Ind. 239.
(1881 S., p. 74. In force September 19, 1881.] 2671. Duties of trustee.
10. The trustee, as soon as possible after said appraisement is filed, shall proceed to collect the rights and credits of the assignor, and shall, after giving thirty days' notice of the time and place of sale by publication in some newspaper printed and published in the county, if any there be, if not, by posting written or printed notices [in] at least five of the most public places in the county, proceed to sell at public auction the property appraised, except as such as has been set off to the assignor as exempt, to the highest bidder for cash, or upon credit, the trustee taking notes with security to be approved by him, waiving relief from valuation or appraisement laws, payable not more than twelve months from date, with interest. A full return, under oath, shall be made of the sale by the trustee to the clerk of the circuit court, who shall file the same with the other papers in the case: Provided, That said court or the judge thereof in vacation may upon the sworn petition of the trustee or the like petition of a creditor or creditors of the assignor for good causes shown, extend the time for selling said property or any portion thereof to such time or times as the court or judge may determine will subserve the best interest of the creditors and may also in like manner extend the credit on sales not exceeding two years: And provided, also, That said court or the judge thereof in vacation, may, upon the sworn petition of the trustee or of a majority in amount of the creditors showing that said property is liable to deteriorate in value by delay, or that, for any reason it would be beneficial to the creditors to have an early sale order said property sold upon such notice of the time, place and terms of sale, and in such manner, as may to said court or judge seem best. The court or the judge in vacation may authorize said property sold at private sale at not less than its appraised value, when it is shown that such sale would be beneficial to the creditors of the assignor. The court shall exercise a supervising power over the estate of the assignor and may make all necessary order in the interest of the creditors for its control and management by the trustee, before sale; and may upon petition of the assignee, the wife of the assignor being made a party to such petition, if to the interests of all parties concerned, order partition of the land of the assignor, before sale, between the assignee and wife of said assignor, setting off to such wife her inchoate one-third in such land before sale; and should the court find that such lands can not be partitioned, without detriment to the interest of the creditors of said assignor, then the court may make an order directing the sale of all the land conveyed to such assignee by the assignor, including the 'wife ['s] one-third inchoate interest therein, and the one-third of the money for which the land is sold shall be paid to the wife of the assignor when collected, and shall after sale, have the power to compel the trustee to report the money in his hands for distribution, and shall compel the same to be paid into court, for distribution whenever the assets are shown to be sufficient to pay ten per cent dividend upon the indebtedness; and such distribution may be ordered from time to time when on application of any one interested it is shown to the court or judge thereof that there is sufficient funds in the hands of the trustee to pay said dividend of ten per cent. [As amended, 1897 S., p. 245. In force March 8, 1897.
(1897 S., p. 171. In force March 6, 1897.) 2671a. Real estate - Resale by assignee - Bond.
1. That hereafter, in all sales of real estate, by any receiver, or by any assignee or trustee, under the act governing voluntary assignments, whenever any person prior to the confirmation of such sale by the proper court, shall file with the clerk of said court or in open court, a bond in a sum sufficient to secure the same with surety to the approval of the clerk or court, that on a resale of the said real estate, or any part thereof, such real estate will sell for an amount over and above the amount bid for the same at the previous sale, equaling ten per cent, thereof and the costs of such resale, said court shall not confirm such sale but order such real estate resold, and on failure to realize said additional sum, said person shall be liable on said bond for such difference, and it shall be the duty of said receiver, assignee or trustee to institute and prosecute such suit, which shall be for the use and benefit of such trust.
(1859 S., p. 239. In force March 5, 1859.) 2672. Trustee's report. 11. The trustee shall, within six months