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Sec. 14. Failure to appear after service, etc.-. If the debtor has failed to appear after service, personally or by publication, or is absent, or can not be found, the schedule and inventory may prepared by the Sheriff, or by the assignee, from the best information he can obtain.
be sued upon
Sec. 15. Election of-Bond. - At a meeting of the creditors, in open Court, those having proven their claims, by filing a verified statement showing the amount, nature and security, if any, shall proceed to the election of one assignee. The assignee shall be a resident of the county where the insolvent resides, or where he has carried on his business. In electing an assignee, the opinion of the majority in amount of claims shall prevail. The Clerk of the Court shall keep a minute of the deliberations of said creditors, and of the election and appointment of an assignee, and enter the same upon the records of the Court. The assignee shall file, within five days, unless the time be extended by the Court, with the Clerk, a bond, in an amount to be fixed by the Court, to the State of California, with two or more sufficient sureties, approved by the Court, and conditioned for the faithful performance of the duties devolving upon him. The bond shall not be void upon the first recovery,
may from time to time by any creditor aggrieved, in his own name, until the whole penalty is exhausted. The sureties on such bond may be required to justify, upon the application of any party interested, in the same manner as bail upon arrest in civil cases.
Sec. 16. Assignee, when appointed.--If, on the day appointed for the meeting, the creditors do not attend, or refuse to elect an assignee; or if, after election, the assignee shall fail to qualify within the proper time, it shall be lawful for the Court before which the said meeting may take place, to appoint an assignee and fix the amount of his bond.
SEC. 17. Assignment.-As soon as an assignee is appointed and qualified, the Clerk of the Court shall, by an instrument under his hand, and seal of the Court, assign and convey to the assignee all the estate, real and personal, of the debtor, with all his deeds, books and papers relating thereto, and such assignment shall relate back to the commencement of the proceedings in insolvency, and by operation of law shall vest the title to all such property and estate, both real and personal, in the assignee, although the same is then attached on mesne process, as the property of the debtor, and shall dissolve any attachment made within one month next preceding the commencement of the insolvency proceedings. Such assignment shall operate to vest in the assignee all the estate of the insolvent debtor not exempt by law from execution.
SEC. 18. Authority of assignee.—The assignee shall have the right to recover all the estate, debts and effects of said insolvent. If, at the time of the commencement of proceedings in insolvency, an action is pending in the name of the debtor, for the recovery of a debt or other thing which might or ought to pass to the assignee by the assignment, the assignee shall be allowed and admitted to prose. cute the action, in like manner and with like effect as if it had been originally commenced by him. In suits prosecuted by the assignee, a certified copy of the assignment made to him shall be conclusive evidence of his authority to sue.
SEC. 19. Recording assignment. The assignee shall, within one month after the making of the assignment to him, cause the same to be recorded in every county, or city and county, within this State, where any lands owned by the debtor are situated, and the record of such assignment, or a duly certified copy thereof, shall be conclusive evidence thereof in all Courts.
SEC. 20. Resignation of Assignee.—Any assignee may at any time, by writing filed in Court, resign his appointment, having first settled his accounts, and delivered up all the estate to such successor as the Court shall appoint; provided, that if, in the discretion of the Court, the circumstances of the case require it, upon good cause being shown, the Court may, at any time before such settlement of account and delivery of the estate shall have been completed, revoke the appointment of such assignee and appoint another in his stead. The liability of the outgoing assignee, or of the sureties on his bond, shall not be in any manner discharged, released, or affected by such appointment of another in his stead.
SEC. 21. Powers of assignee.---The said assignee shall have power
1. To sue in his own name and recover all the estate, debts and things in action, belonging or due to such debtor, and no set-off or counter-claim shall be allowed in any such suit, for any debt, unless it was owing to such creditor by such debtor at the time of the adjudication of insolvency ;
2. To take into his possession all the estate of such debtor except property exempt by law from execution, whether attached or delivered to him or afterwards discovered, and all books, vouchers, evidence of indebtedness, and securities belonging to the same;
3. In case of a non-resident, absconding, or concealed debtor, to demand and receive of every Sheriff who shall have attached any of the property of such debtor, or who shall have in his possession any moneys arising from the sale of such property, all such property and moneys, on paying him his lawful costs and charges for attaching and keeping the same; 4. From time to time to sell at public auction all the estate,
real and personal, vested in him as such assignee, which shall come to his possession and as ordered by the Court;
5. On such sales to execute the necessary conveyances and bills of sale;
6. To redeem all valid mortgages and conditional contracts, and all valid pledges of personal property, and to satisfy any judgments which may be an incumbrance on any property sold by him, or to sell such property subject to such mortgage, contracts, pledges, or judgments;
7. To settle all matters and accounts between such debtor and his debtors subject to the approval of the Court;
8. Under the order of the Court appointing him, to compound with any person indebted to such debtor, and thereupon to discharge all demands against such person ;
9. To have and recover from any person receiving a conveyance, gift, transfer, payment, or assignment, made contrary to any provision of this Act, the property thereby transferred or assigned, or in case a redelivery of the property can not be had, to recover the value thereof, with damages for the detention.
SEC. 22. Insolvent to deliver books, etc., to the Court.—The insolvent shall, either before or on the day appointed for the meeting of creditors, deliver to the Court all the commercial or account books he may have kept, which books shall be deposited in the Clerk's office of said Court. Said insolvent shall also deliver to the
Court, at the same time, all vouchers, notes, bonds, bills, securities, or other evidences of debt, in any manner relating to or having any bearing upon or connection with the property surrendered by said debtor, and all such papers or securities shall be deposited in the Clerk's office of said Court, and the Clerk shall hand them over, together with the books of the insolvent, to the assignee who may
SEC. 23. Embezzlement.-If any person, before the assignment is made, having notice of the commencement of proceedings in insolvency, embezzles or disposes of any of the moneys, goods, chattels, or effects of the insolvent, he is chargeable therewith, and liable to an action by the assignee for double the value of the property so embezzled or disposed of, to be recovered for the benefit of the estate.
Sec. 24. Penalties. The same penalties, forfeitures, and proceedings by citation, examination, and commitment, shall apply on behalf of an assignee against persons suspected of having concealed, embezzled, conveyed away, or disposed of any property of the debtor, or of having possession or knowledge of any deeds, conveyances, bonds, contracts, or other writings which relate to any interest of the debtor in any real or personal estate, as provided in the case of the estates of deceased persons in sections, one thousand four hundred and fifty-nine, one thousand four hundred and sixty, and one thousand four hundred and sixty-one of the Code of Civil Procedure.
SEC. 25. Estate to be converted into money.-The assignee shall as speedily as possible convert the estate, real and personal, into money. He shall keep a regular account of all moneys received by him as assignee, to which every creditor or other person interested therein may, at all reasonable times, have access. No private sale of any property of the estate of an insolvent debtor shall be valid, unless made under the order of the Court upon a petition in writing, which shall set forth the facts showing the sale to be necessary. Upon filing the petition, notice of at least ten days shall be given by publication and mailing, in the same manner as is provided in section seven of this Act.
If it appears that a private sale is for the best interests of the estate, the Court shall order it to be made.
Sec. 26. When Court may order.— When it appears to the satis
faction of the Court that the estate of the debtor, or any part thereof, is of a perishable nature, or is liable to deteriorate in value, or is disproportionately expensive to keep, the Court may order the same to be sold in such manner as may be deemed most expedient, under the direction of the Sheriff or assignee, as the case may be, who shall hold the funds received in place of the property sold until the further order of the Court.
Sec. 27. Outstanding debts.--Outstanding debts, or other property due or belonging to the estate, which cannot be collected and received by the assignee without unreasonable or inconvenient delay or expense, may be sold and assigned in like manner as the remainder of the estate.
Sec. 28. Expenses of assignees.-Assignees shall be allowed all necessary expenses in the care, management, and settlement of the estate, and shall collectively be entitled to charge and receive for their services commissions upon all sums of money coming to their hands and accounted for by them, as follows: For the first thousand dollars, at the rate of seven per cent.; for all above that sum and not exceeding ten thousand dollars, at the rate of five per cent.; and for all above that sum, at the rate of four per
cent. SEC. 29. Assignee to make e.chibit to the Court.—At the expiration of three months from the appointment of the assignee in any case, or as much earlier as the Court may direct, the assignee shall exhibit to the Court and to the creditors, and file just and true accounts of all his receipts and payments verified by his oath, and a statement of the property outstanding, specifying the cause of its outstanding, also what debts or claims are yet undetermined, and stating what sum remains in his possession ; and thereupon a dividend shall be made, unless for cause the Court shall otherwise order. Thereafter further accounts, statements, and dividends shall be made in like manner as often as occasion requires.
Sec. 30. Court may order assignee to file account.—The Court shall at any time, upon the motion of any two or more creditors, require the assignee to file his account, and if he has funds subject to distribution he shall be required to distribute them without delay
SEC. 31. Creditors to share pro rata.—All creditors whose debts are duly proved and allowed shall be entitled to share in the property and estate pro rata without priority or preference whatever, other