« PreviousContinue »
his conclusions of law, and direct the judgment or decree to be entered thereupon, including a determination as to costs, and in common-law cases the finding as to the facts shall have the effect of a verdict of a jury.
Sec. 418. SETTING ASIDE.—On motion filed within twenty days after notice of the filing of the award to the parties or their attorneys, the court may set aside his award because of corruption or misconduct of the referee, or because he exceeded his powers or so imperfectly executed them that a final award was not made, or may modify his award in case of an evident miscalculation of figures, or if it relates to matter not submitted, or is imperfect in form.
Sec. 419. JUDGMENT.—Judgment or decree, if no such motion is made, or it is overruled, or the award is only modified as aforesaid, shall thereupon be entered by the clerk as in the award directed, and shall stand as the judgment of the court.
Sec. 420. APPEALS IN EQUITY CAUSES.-An appeal may be taken to the court of appeals from such final decree in equity causes in like manner as from decrees rendered by the court.
Sec. 421. EXCEPTIONS.—Upon the trial of issues of fact in an action at law exceptions may be taken to the rulings of the referee upon the admissibility of evidence or upon questions of law arising during the hearing; and a refusal to make a finding upon a question of fact, upon sufficient evidence in law to sustain it, or making a finding of fact without sufficient evidence in law to sustain it, shall be deemed such a ruling upon a question of law.
Sec. 422. Such exceptions must be taken at the time the rulings excepted to are made, and must be reduced to writing by the exceptant, or they may be noted on the minutes of the referee and afterwards stated in a bill of exceptions, which shall be settled in the same manner as where the trial is by a jury, as directed by the rules of court, the referee exercising the same power therein as the trial justice in case of a jury trial.
Sec. 423. APPEALS IN COMMON-LAW CASES.-An appealmay be taken to the court of appeals from a final judgment in a common-law case, entered upon the award of the referee, in the same manner and with like effect as from a judgment rendered by the court on the verdict of a jury:
Sec. 424. RECORD.—The exceptions taken as aforesaid shall constitute a part of the record upon which an appeal from the judgment shall be heard. It shall not be necessary, however, to take exceptions to the conclusions of law appearing upon the face of the referee's award; but any error therein shall be considered on appeal as if presented in a formal bill of exceptions.
Sec. 425. FAILURE OF REFEREE TO ACT.-In case of the disability of the referee, or his failure or refusal to proceed with the reference, or his misconduct, the court which passed the order of reference may
rescind the same.
Sec. 426. FEES.—The fees of the referee may be fixed by rule of court or agreement of the parties, and taxed as part of the costs of the cause.
Sec. 427. SEVERAL REFEREES.—The reference may be to more persons than one, provided they be an odd number of persons, in which case all must meet together and hear all the allegations and proofs of the parties; but a majority may determine allo questions submitted to or arising before them.
Sec. 428. DEATH OF PARTY.-If the death of either party shall happen pending the trial or hearing of a cause before a referee, the reference shall be at an end. If such death shall occur after the cause is submitted to the referee for final judgment or decree, the referee shall return his award, and thereupon the representative of such decedent may appear, or be required by the adverse party to appear, as provided in chapter two, and the cause thereupon be proceeded with as if such death had not occurred.
Sec. 429. DEATH OF REFEREE.—If any referee shall die before making his award, the court shall, upon the consent of the parties or their counsel, appoint a referee, who shall have the same power to act as if originally appointed by mutual consent of the parties.
Sec. 430. COMMON-LAW REFERENCES.-Nothing herein contained shall prevent the court from referring a cause to an arbitrator, subject to the ratification of his award by the court, according to the course of the common law and the former practice of the court.
ASSIGNMENT OF CHOSES IN ACTION.
; 205 U.
Sec. 1566; Crook
Sec. 431. JUDGMENTS.-A judgment or money decree, Sec. 331. Karmay be assigned in writing, and upon the assignment 22 D: c. App., thereof being filed in the clerk's office the assignee may 124 Hutchinson maintain an action or sue out a scire facias or execution " Brown: 8. C. on said judgment in his own name, as the original plain- s., 141. tiff might have done.
Sec. 432. Bonds.-Any bond or obligation under seal for the payment of money may be assigned under the name and seal of the obligee therein named, and the assignee may maintain an action thereon in his own name. Sec. 433. NONNEGOTIABLE CONTRACTS.—All nonnego
v. Trust Co., 32 tiable written agreements for the payment of money, D.: C. APPA 190 including nonnegotiable bills of exchange and promis- 218
; 32 D.C. App, sory notes, or for the delivery of personal property, all 459. open accounts, debts, and demands of a liquidated character, except claims against the United States or the salaries of public officers, may be assigned in writing, so as to vest in the assignee a right to sue for the same in his own name.
Sec. 434. GENERAL ASSIGNMENTS.—In case of a general Ibid. assignment which shall include choses in action, it shall not be necessary to execute a separate assignment of each chose in action, but the assignee shall be entitled, by virtue of the general assignment, to sue in his own name on the several choses in action included therein. 81254°-11
ASSIGNMENT OF INSOLVENT DEBTORS.
Cissel 0. Johnston, 4 D. C.
Smith 0. Herrell, 11 D. App., 425;
Sec. 435. INVENTORY.-In all cases of voluntary asApp, 336; 11. Di signments hereafter made in the District of Columbia for S. APPA 125224: the benefit of creditors, the debtor shall annex to such 12 D. C. App., 3 assignment an inventory, under oath or affirmation, of his
; 27 Stat., 474. estate, real and personal, according to the best of his
knowledge, and also a list of his creditors, their respective residences and places of business, if known, and the amounts of their respective demands; but such inventory shall not be conclusive as to the amount of the debtor's estate, and such assignment shall vest in the assignee the title to any other property, except what is legally exempt, belonging to the debtor at the time of making the assignment and comprehended within the general terms of the same.
Sec. 436. The assignee in every such assignment shall
27 be a resident of the District of Columbia, his assent shall Stat., 474.
appear in writing in, or at the end of, or indorsed on, the assignment, and the assignment shall be invalid unless duly acknowledged and recorded within five days after its execution in the land records of the said District. The trust created by such assignment shall be executed under the supervision and control of the supreme court of the District of Columbia.
Sec. 437. BOND OF ASSIGNEE.-Immediately upon the berlain, 14 D. C. App., 84. filing of such assignment for record it shall be the duty of
the assignee to execute and file in the clerk's office of the supreme court of the District his bond to the United States, in an amount and with security to be approved by the justice holding the equity court, conditioned for the faithful performance of his duties according to law, and said court may from time to time require said assignee, or any trustee appointed in his place, to give additional security whenever the interests of the creditors demand the same.
Sec. 438. APPOINTMENT BY COURT.-If the assignee named in any such assignment shall fail or refuse to comply with any of the requirements aforesaid, the justice holding the equity court may, on the application of the assignor or any creditor interested in such assignment, remove said assignee and appoint a trustee in his place to execute the trusts created by said assignment, who shall give bond as the court may require. And said court shall have power to accept the resignation of any assignee or trustee, and in case of his resignation, death, or removal from the
Keane o. Cham
District to appoint a trustee in his place. The court shall also have power, for cause shown, on the application of any surety, creditor, or other person interested, to remove any assignee or trustee and appoint a trustee in his place, and to make and enforce all orders necessary to put the newly appointed trustee in possession of all property, moneys, books, papers, and other effects covered by the assignment. And in case of the death of any assignee or trustee the court may require his executor or administrator to settle the account of said assignee or trustee and to deliver over to his successor all property and other effects belonging to the trust, in default of which said successor may bring suit upon the bond of said deceased assignee or trustee or upon the bond of such executor or administrator, accordingly as such assignee or trustee, executor or administrator is the party in default. (32 Stat., Part 1, p. 530.)
Sec. 439. DUTIES OF ASSIGNEE.—It shall be the duty of the assignee or trustee, after giving bond as aforesaid, to collect and take into his possession all the property and effects covered by the assignment, and to that end he may bring suit in his own name to recover debts due or property belonging to the assignor and embraced in the assignment. And the court may require the assignor to be examined under oath touching his said property, and may pass all orders necessary to prevent any fraudulent transfer of or change in the property of the assignor. The said assignee or trustee shall return inventories of the assets coming to his hands and, under the direction of the court, sell and dispose of the same, and his conveyance of any property of the assignor, real or personal, shall transfer the entire title of the assignor therein to any purchaser. When the assets have been converted into money the said assignee or trustee shall settle his accounts and make distribution among the creditors, under the direction of the court, according to the usual course of proceeding in equity in creditor's suits.
Sec. 440. PREFERENCES TO BE VOID.—Every provision Dodge in or. : in any voluntary assignment hereafter made for the pay- App., 37; 27 stat, ment of one debt or liability in preference to another shall be void, and all debts and liabilities within the provisions of the assignment shall be paid pro rata from the assets: Provided, That nothing herein contained shall be held to affect the priority of liens and incumbrances created bona fide and existing before the execution of such assignment.
Sec. 441. CREDITORS TO BE EQUAL.–Any proceeding instituted under this law by one or more creditors shall be deemed to be for the equal benefit of all creditors, but the court may make such allowance to the creditor or creditors instituting the same, out of the fund to be distributed, for expenses, including counsel fees, as may be just and equitable.