This petition raises a single question on the construction of the insolvent laws.
The original insolvent law, St. 1838, c. 163, § 19, made provision for cases, in which the creditors might commence insolvent proceedings, аgainst the will of the debtor, in certain cases, indicative of insolvency. Some of these are, being arrested for debt and not giving bail; being imprisoned for debt more than thirty days; or “ if any person whose goods, or estate are attached on mesne process,” &e., “ shall not, on or before the last day of the term of the court to which suсh process is returnable, dissolve the attachment.” The statute goes on to provide, that in either of these cases a creditor may, within ninety days, and not after, aрply, &c.
By St. 1844, c. 178, § 9, in addition to these several causes for proceeding adversely agаinst an insolvent, some others are stated, in which any of the creditors described may аpply, &c., but no time is limited; and by § 12 the liability is extended to a debtor, whose goods are attached, and who shall not dissolve the attachment in fourteen days from the return day, оr on or before the last day of the term, if the court shall rise sooner.
We have no doubt that the ninety days’ limitation, within which the petitioning creditor shall apply, as stated in the first act, extends to the cases enumerated in the second, though
But the main argument of the petitioner is, that although the former statute says, the return term, and the latter statute fixes very definitely fourteen days from the return day of the process, yet when, as in the prеsent case, the debtor was out of the state, and for that cause the actiоn was continued one term, as required by law, the second term, or term when the defend аnt is bound to appear and plead, ought to be regarded as the return term, in anаlogy to the cases of pleas in abatement. Rathbone v. Rathbone,
If the property of a debtor is attached, it goes to satisfy an individual debt, if not intercepted, to the exclusion of the оther creditors. But the policy of the insolvent laws is, that if a debtor’s property is to be appropriated by legal process, all the creditors shall share in it. The proceedings in insolvency, as provided for in these statutes, operate to dеfeat the particular attachment, and bring the attached property into equal distribution. They must therefore take place promptly, to accomplish this рurpose. Now, although a debtor is out of the state, he may have left an attornеy, he may appear by attorney, a valid judgment may be rendered against him, and the аttached property seized and sold, as soon as an execution can issue, after twenty-four hours from the rising of the court. Perhaps it may not be tqo much to say, that it is thе duty of a debtor leaving the state, and leaving debts due or becoming due, and property liable to attachment, to make provision for its being rightly administered. We think therefore it was not the intention of the statute to restrain a petitioning creditor, until the term, to which the action is continued, because the defendant is out of the state. Such construction would be repugnant to the plain provisions of the last act cited. Thе
The court are of oрinion therefore, that the right of the petitioning creditor, to proceed against the debtor in insolvency, accrued at the rising of the court of common pleаs in June, that the term of ninety days commenced at that time, and the petition not having been filed within that term, was rightly disallowed by the commissioner.
Petition dismissed