any sum due upon his judgment, which he had before the execution was issued; but the petitioner shall not, except as is otherwise specially prescribed in the next section, be again imprisoned by virtue of an execution upon the same judgment, or arrested in an action thereupon. From Id., § 12. § 2214. When creditor may issue new execution against person. If the petitioner is convicted of perjury, committed in any of the proceedings upon his petition, any judgment creditor, by virtue of whose execution he was imprisoned, may issue a new execution against his person. From Id., § 13. § 2215. Powers and duties of trustee. The trustee must collect the demands, and sell the other property assigned to him. He must apply the proceeds thereof, after deducting his commissions and expenses allowed by law, as follows: 1. To the payment of the jail fees, upon the imprisonment and discharge of the petitioner. 2. If any surplus remains, to the payment of the creditors, by virtue of whose executions the petitioner was imprisoned, when he presented his petition; or, if there is not enough to pay them in full, to the payment, to each, of a proportionate part of the sum due upon his execution. 3. If any surplus remains, he must pay it over to the petitioner, or his executor or administrator. Personal service, upon a creditor, or his attorney, of written notice of the time and place of making a distribution, as prescribed in subdivision second of this section, has the same effect as publishing a notice thereof, in a case prescribed by law. From Id., § 15. § 2216. Creditor may notify debtor to apply for discharge. Where a person has been imprisoned, by virtue of an execution, for the space of three months after he was entitled, by the provisions of this article, to apply for a discharge; and has neither made such an application, nor applied for his discharge under the provisions of article first of this title; the judgment creditor, by virtue of whose execution he is imprisoned, may serve upon the prisoner a written notice, requiring him to apply for his discharge, according to the provisions of this article. From Id., § 16. § 2217. Effect of failure so to apply. If the prisoner does not, within thirty days after personal service of such a notice, either present a petition to the proper court, as prescribed in article first of this title, or serve, upon the creditor giving the notice, a copy of a petition and schedule, with a notice of his intention to apply for his discharge, as prescribed in this article; or if, after such a presentation or service, he does not diligently proceed thereupon to a decision. he shall be forever barred from obtaining his discharge under the provisions of this article, or of article first of this title. From Id., § 17. See § 1494. § 2218. Debtor to United States, etc., not to be discharged. Neither of the following named persons shall be discharged from imprisonment, under the provisions of this article: 1. A person owing a debt or duty to the United States. 2. A person owing a debt or duty to the State, for taxes or for money received or collected by any person, as a public officer or in a fiduciary capacity, or a cause of action specified in section 1969 of this act or a judgment recovered upon such a cause of action. From parts of §§ 29 and 30 of art. 7 of same title, as amended by ch. 2 of 1859. See § 2184. ARTICLE FOURTH. Care of the Property of a Person Confined for Crime. SEC. 2219. When and to what court àpplication to be made. 2220. Who may apply. 2221. Creditor must relinquish security. 2222. Contents of petition. 2223. Copy of sentence and affidavit to be presented. 2224. Proceedings upon presentation of the papers. 2225. Id.; on return of order to show cause. 2226. Effect of order appointing trustee. 2227. Removal of trustee; appointment of new trustee. 2228. Prisoner's property; how applied. 2229. Id.; to be delivered to him on his discharge. 2230. Application of this article to persons heretofore sentenced. § 2219. When and to what court application to be made. Where a person is imprisoned in a State prison, for a term less than for life; or in a penitentiary or county jail, for a criminal offence, for a longer term than one year; one or more trustees, to take charge of his property, may be appointed, as prescribed in this article, by the county court of the county, or the supreme court in the judicial district. where he resided at the time of his imprisonment, or if he was not then a resident of the state, where he is imprisoned. From 2 R. S. Part 2, ch. 5, tit. 1, art. 2, part of § 1 (2 Edm. 15). § 2220. Who may apply. A petition for such an appointment may be presented by either of the following persons: I. A creditor of the prisoner. 2. The prisoner's husband, wife, or child. 3. One or more of his next of kin, or, where he owns real property, of his heirs presumptive. 4. A relative whom he is bound to support. 5. Any relative or other person, in behalf of his infant child or children. From Id., remainder of § 1 and part of § 4. § 2221. Creditor must relinquish security. A creditor of the prisoner, who has a judgment, mortgage, or other security, specified in section 2158 of this act, cannot apply for such an appointment. with respect to the debt so secured, unless he appends to or includes in his petition, the declaration, required by hat section from a consenting creditor; which declaration has the same effect as the declaration of a consenting creditor, as therein specified. From § 11 of art. 7, of this title of the R. S. See § 2158. § 2222. Contents of petition. The petition must be in writing, and verified by the affidavit of the petitioner, to the effect that the matters of fact therein stated are true, to the best of the petitioner's knowledge and belief. It must set forth the facts, showing that the applicant is entitled to make the applica tion, and that the application is made to the proper court; the name and. residence of each person, who is entitled to make such an application, as prescribed in the last section but one, except the fifth subdivision thereof; and a brief description of the property, real and personal of the prisoner, and the value thereof. If the applicant is a creditor, and not a resident of the State, he must annex to his petition, the papers specified in section 2161 of this act. If any of the facts, herein required to be set forth, cannot be ascertained by the petitioner, after the exereise of due diligence, that fact must be stated; and the court may, in its discretion, issue a subpoena, requiring any person to attend and testify, respecting any matter, which, in its opinion, ought to be more fully and certainly set forth. See § 2161. § 2223. Copy of sentence and affidavit to be presented. The petition must be accompanied with a copy of the sentence of conviction of the prisoner, duly certified by the clerk of the court by which he was sentenced, under the seal thereof; together with an affidavit of the applicant, stating that the person so convicted is actually imprisoned thereunder. From part of § 2 of art. 2 of the R. S. § 2224. Proceedings upon presentation of the papers. Upon the presentation of the papers, the court may, in its discretion, make an order, either appointing one or more fit persons trustees of the property of the prisoner; or requiring all creditors of the prisoner, and all persons interested in his estate, to show cause, at a time and place specified therein, why such an appointment should not be made. In the latter case, the order must direct the manner of service thereof, by publication, or otherwise. From Id. § 2225. Id.; on return of order to show cause. Upon the return of an order to show cause, made as prescribed in the last section, proof of the service thereof, as required thereby, must first be made; whereupon the court must hear the allegations and proofs of the creditors, and other persons interested in the estate, who appear. Where the prisoner is indebted to any person, the court must appoint one or more trustees, unless the persons interested in the prisoner's property, pay the debt. or give such security, as the court prescribes, for the payment thereof, either absolutely or contingently upon a recovery in an action; in which case, or where the prisoner is not indebted, the court may grant or deny the prayer of the petition, as justice requires. § 2226. Effect of order appointing trustee. The entry of the order, appointing one or more trustees, and the filing of the papers upon which it was granted. vest in the trustee or trustees all the right, title and interest of the prisoner, in and to any property, real or personal. Where the prisoner owns real property, an exemplified copy of the order must be recorded, in the proper office for recording deeds, in each county where the real property is situated. From 3 of art. 2 of the R. S. See § 2177. § 2227. Removal of trustee; appointment of new trustee. Upon the application of any person, entitled to apply for an order, appointing trustees of the prisoner's property, and upon such a notice as the court prescribes, to the petitioner, and to such other persons interested, as the court thinks proper to designate, the court, by which the order was granted, may, in its discretion, remove any trustee and appoint another in his place; or may appoint one or more additional trustees. The new trustee or trustees, so appointed, have the same power and authority, are vested with the same right, title, and interest and are subject to the same duties and liabilities, as if he or they had been appointed by the original order. § 2228. Prisoner's property; how applied. After deducting their commissions and expenses, allowed by law, and paying the prisoner's debts, the trustees may, from time to time, under the direction of the court by which they were appointed, apply the surplus of any money in their hands, to the support of the prisoner's wife and children, and of such other relatives as he is bound to support, and to the education of his children. From 4 of art. 2 of the R. S. § 2229. Id.; to be delivered to him on his discharge. When the prisoner dies, or is lawfully discharged from imprisonment, the trustee or trustees must deliver over to him, or to his legal representatives, all his property, remaining in their hands, after deducting therefrom their lawful expenses and commissions. From Id., 5. § 2230. Application of this article to persons heretofore sentenced. This article applies to a prisoner who has been sentenced before this chapter takes effect, and to his property; except where one or more trustees of his property have been theretofore appointed, by proceedings taken in pursuance of a statute then in force. |