Fraudulent resort by debtor: result of.

§ 2818. Every sale, mortgage, or assignment made by debtors, and every judgment suffered by any defendant, or any act or device done or resorted to by a debtor in contemplation of insolvency and with the design to prefer one or more creditors to the exclusion in whole or in part of others, shall operate as an assignment and transfer of all the property and effects of such debtor and shall inure to the benefit of all his creditors, except as hereinafter provided, in proportion to the amount of their respective demands, including those which are future and contingent, but nothing in this act shall vitiate or affect any mortgage made in good faith to secure any debt or liability created simultaneously with such mortgage, if the same be lodged for record forthwith in the office of the county recorder where the property described Feb. 19. therein shall be situated.

Early Times Distillery Co. vs. Zeiger. 49 Pac., 7:23,

§ 2819. All such transfers as are herein declared to inure to the benefit of creditors generally shall be subject to the control of courts of equity upon the bill of any person interested, filed within six months after the mortgage or transfer.

C. 67. L. 89, § 1:

Courts to contro transfers, when.

C. 67, L. 89, § 2; is legally lodged for record or the delivery of the property or effects trasferred.

Feb. 19.

Bill of complaint; form; procedure.

Id. § 3.

Transferee to surrender to receiver: when.

Id. § 4.

Court to have control of assets.

ld. § 5.

Writ of attachment; when.

Id. § 6

§ 2820. Any number of persons interested may unite as complainants in the bill of complaint: but it shall not be necessary to make any persons defendants, except the debtor and transferee; such bill of complaint shall state the amount of the debts of the defendant debtor, so far as known to the complainant, and in such action the court shall make an order for Such of the creditors of the defendant debtor as are not joined as defendants in the bill of complaint, to appear before a master to be appointed by the court and prove their claims before a certain day to be named in the order, notice of which shall be given by advertisement in a newspaper; or if none be published in the county, then by such other mode as the court may judge best calculated to give such creditors actual notice of the order; and in addition to the advertisement in a newspaper, the court may direct publication in other modes. A creditor appearing before the master and presenting his claim shall thereby become a party to the action and be concluded by the final judgment of the court allowing or rejecting his claim. Any creditor who shall fail to appear and prove his claim agreeable to such order, shall be precluded from participation in the distribution of the assets of the debtor hereinafter provided for.

§ 2821. The court or judge may at any time, pending the action, and upon such terms as it shall be deemed proper, compel the transferee to surrender to a receiver of the court, all property and effects in his possession, or under his control; and it may make such orders respecting the property as courts of law are now allowed to make concerning attached property. And when it is decided that a sale, mortgage or assignment was made in contemplation of insolvency and with the design to prefer one or more creditors to the exclusion in whole or in part, of others, the court shall compel the debtor to surrender to such receiver all property and effects in his possession or under his control, except such property as is exempt from executions, to disclose the amount of his debts, the names and residence of his creditors, all off-sets and defenses to any claims against him, or any other matter which shall be deemed proper; and the court shall also compel every person who shall acquire by purchase, assignment or otherwise, any property or effects from such debtor, after the suit contemplated by this act shall have been instituted, to surrender the same to such receiver.

§ 2822. The court may make distribution of the assets on hand from time to time, and the decision of the court at the time of any distribution, allowing or disallowing any claim, shall be held final judgment, and may be appealed from as other final judgment.

§ 2823. The court or judge may grant against such debtor, a writ of ne exeat or attachment in chancery, as for contempt, when it shall be made to appear, by affidavit, that such writ or attachment is neccessary to secure the surrender or .disclosures provided for herein.

§ 2824. The claims of creditors shall be verified by the oath of the creditor, his agent or attorney, before any portion of the assets shall be received thereon.

C. 67, L. 89. § 7; Feb. 19.

Claims to be verified.

Voluntary assignment to become

§ 2825. In case of any voluntary assignment for the benefit of creditors, such assignment shall not become operative operative: when. and the assignee shall not enter into the possession of the property assigned until he shall have executed a good and sufficient bond to the Territory of New Mexico in a sum to be fixed by the judge of the district court of the county of the assignor's residence, which sum shall not be less than double the value of the property assigned; which value shall be ascertained by proof satisfactory to such district judge before the approval of the bond, conditioned for the faithful performance of all his duties as such assignee, and for the payment to the parties entitled thereto, promptly and without delay, of all sums of money which may come into his hands as such assignee. And any person aggrieved may maintain an action upon the said bond in his own name, or in the name of the territory, on his relation, in any district court of this territory having jurisdiction.

Id. § 8.

Creditor, aggriev ed, may file bill of

Id. $ 9.

§ 2826. In case of any voluntary assignment, referred to in section two thousand eight hundred and twenty-five, if the complaint. assignee shall fail, within twelve months to settle up the estate of his assignor and distribute the proceeds thereof among the creditors entitled thereto, any creditor aggrieved may file a bill of complaint in any district court having jurisdiction of the subject matter and the parties to compel such settlement and distribution and thereupon such suit shall proceed in the manner prescribed by this act for the proving of claims and the distribution of assets in cases of involuntary assignment. § 2827. That hereafter every voluntary assignment of lands, tenements, goods, chattels, effects and credits, made by a debtor to any person in trust for the benefit of his creditors, shall be for the benefit of all the creditors of the assignor in proportion to their respective claims, except as hereinafter provided: and every such assignment shall be proved or acknowledged and certified and recorded in the same manner as is prescribed by law in cases wherein real es- Feb. 20. tate is conveyed.

§ 2828. It shall be the duty of the assignee, within ten days after the execution and delivery of the deed of assignment, to file in the office of the clerk of the district court of the county in which the assignor, or if there be more than one, in which any of them shall reside, unless longer time be allowed by the judge of the court for good cause shown, an inventory of the property, effects and things assigned.

§ 2829. The inventory shall be accompanied with an affidavit by the assignee that the same is a full and complete inventory of all such property, effects and things as far as the same has come to his knowledge.

§ 2830. It shall be the duty of the district court, or the judge thereof in vacation, in whose clerk's office such inventory may be filed, to appoint two or more disinterested and competent persons to appraise the property, effects and things so inventoried.

Voluntary assign

ments.

C. 71. L. 89. § 1;

Duty of assignee.

Id. § 2.

Affidavit in regard to inventory. Id. § 3.

Appraisers ap pointed.

Id. § 4.

§ 2831. The appraisers, having first taken an oath or affirmation before some person having authority to administer oaths, to discharge their duties with fidelity, shall forthwith proceed to make such appraisement.

§ 2832. The appraisers shall file the appraisement and their oath of office in the office of the clerk of the district court, within five days after they shall have completed the

same.

§ 2833. The appraisers shall receive four dollars per day for their necessary attendance and services.

§ 2834. If, after making the first inventory, any other property, effects or things conveyed by the deed of assignment, shall come to the possession or knowledge of the assignee, his duty in relation thereto, and the duty of the court or judge and the appraisers shall be the same as required of them by the preceding section of this act.

§ 2835. The assignee, his agent or attorney, at the time of the execution and delivery of the deed of assignment, shall make a statement in writing, verified by affidavit, setting forth the general nature and full value of the estate and effects assigned, which statement shall be filed with the deed of assignment for record, and the assignee shall, within five days after the filing of such statement, give bond with at least two good and sufficient securities to be approved by the court, or judge or clerk thereof in vacation, in double the amount of the estate and effects assigned, and if the appraised value of such estate and effects, when appraised, shall be greater than the value given in such statement, or if the securities in such should in any way become impaired or insufficient, the assignee shall, at the time of filing the appraisement, give another bond with at least two good and sufficient securities to be ap proved in like manner, in double the value of the estate and effects assigned.

§ 2836. The bond shall be taken in the name of the Territory of New Mexico, and the conditions shall be as follows: The conditions of this obligation are such that if the above bound assignee of shall, in all things, discharge his duty as assignee of aforesaid, and faithfully execute the trust confided to him, then the above obligation to be void, otherwise to remain in full force.

§ 2837. The bond shall be filed in the office of the clerk of the court in which the inventory is filed and shall be by the clerk recorded in a book kept by him for such purpose, and labeled, Assignments, and presented, if taken by him in vacation, to the district court at its next regular term. A certified copy of such bond, deed of assignment, statement and inventory shall also be filed for record in the office of the probate clerk and ex-officio recorder of the same county, as soon as such certified copies can be obtained from the clerk of the district court.

§ 2838. The district court or judge shall approve or reject the bonds taken by the clerk in vacation, and the district clerk shall enter the approval or rejection on the record.

§ 2839. If the bond be rejected the district court or judge thereof shall order the assignee to give another bond, with

Feb. 20.

sufficient security to be approved by the court, and if he fail C. 71. L. 89 § 13; to give such bond within such time as the court or judge thereof shall direct, not exceeding twenty days, his authority further to act as assignee shall be deemed revoked.

§ 2840. Such bond shall be valid until such new bond be given and approved, notwithstanding its rejection by the court, and such new bond, when approved, shall relate back and operate from the date of assignment.

2841. Any person, injured by a breach of the condition of the bond, may sue thereon in the name of the territory for his use, and the damages shall be assessed as on bonds with collateral conditions.

Old bond valid: when.

Id. § 14.

May sue on bond;

who.

Id. § 15.

Statement of assignee: removed,

§ 2842. Every assignee shall exhibit on oath a statement of the accounts of the trust, with proper vouchers, to the dis- when. trict court at the first regular term after the execution of the assignment unless for good cause postponed, and shall file a like statement at least every three months thereafter for the inspection of the judge, and if by the judge found correct and proper, to be by him approved; such statements to be so made until assigned estate is fully settled. And if such assignee shall fail to make such settlement as herein provided for within the time mentioned, then on the application of any person interested, the court or judge thereof shall order a citation to issue to such assignee requiring him to appear before him at his chambers within a time named therein and exhibit on oath a statement of his accounts, and if said assignee shall neglect and fail to exhibit such accounts within the time named in said citation, the judge shall, on motion, unless for good cause shown, dismiss said assignee from his trust, and enter an order that he pay all costs of the proceedings.

§ 2843. The court or judge thereof shall, by such order as the circumstances of the case may require, direct the clerk to give notice of the exhibition and filing of such accounts, for such time and in some newspaper of general circulation within the county wherein such assignment is made and recorded, and that such accounts will be allowed by the court or judge thereof in vacation, at a certain time, to be stated in such notice, unless good cause to the contrary is shown.

§ 2844. The expense of advertising shall be paid by the assignee at the time of exhibiting his account, and shall be passed to his credit in such account.

§ 2845. The assignee shall appoint a day, within three months after the date of the assignment, and a place, which shall be the county seat of the county where the inventory is filed, or such other place in said county most convenient to all the parties in interest where any court of record may be lawfully held, when and where he will proceed publicly to adjust and allow demands against the estate and effects of the assignor.

Id. § 16.

Notice of filing of accounts.

Id. § 17.

Advertising; how

paid.

Id. § 18.

Demands adjusted; when and where.

Id. § 19.

Notice of time

§ 2846. The assignee shall give notice of the time and and place. place of adjusting and allowing demands against the estate of his assignor, by advertisement published in some newspaper printed in the county, or if there be none, in the one nearest