The Law of Debtor and Creditor in the United States and Canada

Proceedings in Civil Suits.

appoint such a person. All persons having claims against such insolvent estate, shall file the same in the clerk's office of the said Orphans' Court, within six months from the time that the estate is declared insolvent, verified by their affidavit, and if no opposition is made to such claim within nine months after the estate is declared insolvent, it shall be allowed without further proof. But within this period the administrator, or any creditor proceeding in his name, may file written objections to the allowance of any claim, and the question thus arising may be tried under the form of an issue made up by the court; the party cast to pay the costs. The court may fix a period for the executor or administrator of an insolvent estate to settle his accounts; which shall be not less than nine nor more than twelve months from the time of declaring such estate insolvent: and at such time the court may decree to each creditor whose claim has been allowed, his ratable portion of all moneys then found due from the executor or administrator, reserving nevertheless a ratable portion of such moneys for any claims. which may then be contested and undivided; and a similar settlement is to be made at least every six months thereafter, until the estate shall be finally distributed. (a)

All claims against the estates of deceased persons, which shall not be presented within eighteen months after the same shall have accrued, or within eighteen months after letters testamentary or of administration have been granted, shall be forever barred: except those of infants, feme coverts, persons non compos mentis, and those arising upon debts contracted out of the state. (b)

11. Proceedings in Civil Suits.

Imprisonment for debt.-Imprisonment for debt is not allowed either upon mesne or final process, except in cases of fraud. A party cannot be held to bail to answer for a civil demand, or his body taken in satisfaction of a debt, unless the creditor or his agent establish by affidavit a prima facie case of fraud, or that either the debtor is about to abscond, or has fraudulently conveyed, or is about fraudulently to convey his estate or effects, or has money liable to satisfy his debts, which he fraudulently with(b) Ib. 195.

(a) Clay's Digest 194.

Proceedings in Civil Suits.

holds. The debtor may release his body if arrested, by swearing that the particular ground of the creditor's affidavit is untrue, or by rendering a schedule of his estate, exceeding twenty dollars, and not exempt from execution, unless the truth of such schedule is controverted by the creditor, when an issue shall be made up immediately to try the question.

Judgment and execution.-Lands and tenements, as well as goods and chattels, may be taken in execution and sold on judgments at law or decrees in chancery. (a) The writs of execution in use are the fi. fa., ca. sa., and elegit. The former runs against the real as well as personal estate. Goods and chattels are bound from the time the writ of execution is delivered to the officer. Lands are bound from the time of the rendition of the judgment, and not from the first day of the term. (b) The lien created by a judgment on lands is coextensive with the state; but a bona fide purchaser under a fieri facias issued on a junior judgment, will be protected. (c) An execution loses its priority if not sued out from term to term, and an execution upon a junior judgment delivered to the sheriff at any intermediate term, will acquire a priority. (d) A mere equity of redemption in personal property, unaccompanied by possession on the part of the mortgagor, (e) or any mere equitable title to real estate, cannot be sold upon execution issuing out of a court of common law. Such interest can only be subjected to the payment of debts by a suit in Chancery. (f) Besides various articles of personal property, forty acres of land, where the same is not embraced within the corporate limits of any town or city, and where it does not exceed the value of four hundred dollars, are exempt from execution. It is the duty of the sheriff to expose property taken on execution, for sale, upon the first Monday in each month, ten days' previous notice of the time and place of sale being given. The defendant may retain goods and chattels in his possession on giving a bond with security, conditioned for the forthcoming of the property at the time and place of sale. If this bond is forfeited, it is the duty of the sheriff to

(a) Clay's Digest 199 to 220.

(b) Quinn et als. v. Wiswall, 7 Ala. Rep. 645.

(e) Perkins & Elliot v. Mayfield, 5 S. 182.

(f) Clay's Digest 350.

Proceedings in Civil Suits.

return the same with the execution in ten days, to the clerk of the court from which it issued: and the clerk shall within five days issue a new execution against all the obligors, upon which no indulgence is to be allowed.

Creditor's bill.-Whenever an execution issued on a judgment at law shall have been returned unsatisfied, the plaintiff in the execution may file a bill in Chancery against the defendant, or any other person, to compel the discovery of any property, money or thing in action belonging to the defendant, or held in trust for him, and to prevent the transfer of any such property, money or thing in action, or the payment or delivery thereof to the defendant, except where the trust has been created by some other person than the defendant himself.

The Chancery Court shall have power to compel such discovery, to prevent such transfer, and decree satisfaction of the sum due on the judgment, out of the money, property or thing in action belonging to or held in trust for the defendant (with the above exception), which shall be discovered by the proceedings in Chancery, whether the same were originally liable on execution at law or not.

A bill of discovery may likewise be filed when defendant has fraudulently confessed judgment. (a)

The following points were decided in reference to this act in the case of Brown, Dimmock et. als., vs. Bates, 10 Alab. 432:

1. The act extends the remedy in favor of judgment creditors, and it is permissible to allege in the bill the supposed interests of the defendant in property, &c., in the general terms of the statute, either positively or in the alternative.

2. A creditor's bill need not allege a fraud on the part of the defendant, or the concealment by him of property or effects, with the intention to delay or hinder the complainant or other creditors in the collection of their debts.

3. Several plaintiffs having distinct judgments may join in filing a creditor's bill, or one creditor may file a bill in behalf of himself and all other judgment creditors (whose executions have been returned unsatisfied) who may choose to come in and contribute to the expense of the suit. So, one creditor by judgment

Proceedings in Civil Suits.

and another by decree, who may have acquired liens upon their debtor's property, may join in such a bill.

4. It is no objection to a bill filed in a Chancery Court of this state, that the judgments the complainants are seeking to enforce, were rendered in the District or other Court of the United States.

Attachments in chancery.-The real or personal property of either a legal or equitable nature, or choses in action within this state, or debts (whether due or not due) of a non-resident or absconding debtor, or of a debtor who is disposing of his property with a fraudulent intent, may be attached, and applied to the satisfaction of the complainant's claim, through the medium of a bill in chancery verified by affidavit, and to which the person who owes the non-resident, or absconding, or fraudulent debtor, or the person in whose possession the choses in action proceeded against may be, must be made defendants. Accommodation indorsers, and other securities, may in the same way attach the property, choses in action, or debts of their principal, who is about to remove, or is removing, or absconding or disposing of his property fraudulently, whether the debt for which he is security is due or not, affidavit to be made as in the case of non-resident debtors. All transfers, sales, &c., of property, effects, &c., thus attached, are inoperative and void, as against the complainant, in the attachment bill. (a)

Remedy against sheriffs and attorneys.-Whenever any clerk, sheriff or coroner fails or refuses to pay over money collected or received upon any execution, on the application of the plaintiff or his agent, the court to which the execution is returnable may, upon one day's notice, render judgment against such officer and his securities, for the amount of the money thus received, and five per cent. damages on the same for every month in which it has been detained after demand made, and costs of suit. (b) The same remedy is given against attorneys. (c)

Courts. The judicial system of Alabama is very similar to that of Virginia. The Circuit Courts, which are held in the spring and fall in each county of the state, have general civil jurisdiction both at law and in equity.

(a) Acts of 1845-6, 17.

(b) Clay's Digest 218.

4. EFFECT OF MARRIAGE UPON RIGHTS OF PROPERTY.

5. LIMITED PARTNERSHIPS.

6. LIMITATION OF ACTIONS.

7. EFFECT OF DEATH UPON THE RIGHTS OF CREDITORS.

Bonds, bills, and promissory notes. All bonds, bills, and notes for the payment of money may be assigned by indorsement, so as to vest the assignee with a right of action thereon in his own name, against the maker or indorser, whether the same be payable to order or assigns or not: but the defendant is allowed the benefit of all set-offs, or defences, which he may have possessed before notice of the assignment. (a)

All joint bonds, covenants, &c., are to be construed as joint and several, so also all contracts, promises and liabilities of copartners. Suits may be brought against any one or more of such promissors or obligors, either severally or jointly. (b)

Damages upon bills of exchange.-By an act passed in 1837, no damages are allowed for default made on any bill of exchange drawn by any person within the state on any other person within another state of the United States. Damages at the rate of five per cent. are chargeable on all domestic or inland bills of exchange which may be protested for non-payment, and are chargeable as well against the acceptor as other parties to the bill. Upon all (b) Ib. 595.

(a) Howard & Hutchinson's Statute Law, 373, 374.

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