by the county judge of the county wherein such property is situated or wherein such instrument was executed, payable to such county judge and his successors in office, conditioned ties as such mortgagee or trustee, such fact and the proof thereof shall be deemed sufficient grounds for the appointment of a receiver upon the application of any of the creditors of such insolvent debtor. or his affidavit in writing, stating that he has reason to believe and does believe that certain preferred creditor's claims, naming them, are fictitious or fraudulent, the judge to whom such petition or application is presented, for the faithful discharge of his dumay immediately appoint a temporary receiver of such mortgaged property, and at the same time may issue the injunction provided for in section 4, upon the applicants giving bond provided for in secuon 5; provided that such temporary receiver, before he en"Sec. 17. Upon the presentation of ters upon the discharge of his duties, an application for the appointment of shall qualify as such temporary re- a receiver under any of the provisions ceiver as provided for in section 7 of of this act, the applicant or applicants, this act, and thereafter such tempor- either original or ancillary, may exary receiver shall exercise the author-amine, ex parte, the mortgagor, mortity and powers herein conferred, sub-gagee or the preferred creditor ject to the orders of the court making creditors, whose claims are contested. the appointment. or all of them upon interrogatories "Sec. 13. Before any temporary re-filed with the application, or subseceiver shall be appointed as herein provided, the applicant or applicants therefor shall execute a bond with two or more good and sufficient sureties, to be approved by the judge making such appointment, in such an amount as the judge may fix, payable to the defendants named in the application and conditioned that applicant or applicants will pay all such damages and "Sec. 18. In all other respects the costs as may be adjudged against disposition provided for in the precedthem or either of them on final hearing section shall be governed by the ing. "Sec. 14. In all cases when the ap- of articles 2292 to 2298, inclusive, of rules of evidence and the provisions plication for the appointment of a re-chapter 3, title 40, of the Revised Civil ceiver, either permanent or temporary, Statutes of this State. as herein provided for, shall be accompanied by the affidavit of the ap"Sec. 19. In all other respects the plicant, as provided for in section 12 receivership provided for under this of this act, the burden of proving the act shall be governed by the general genuineness and validity of such conlaw of this State providing for the aptested claims shall rest upon the cred-pointment of receivers, and this act itors whose claims are alleged to be is hereby declared to be cumulative of any other remedies given by law to creditors. fraudulent or fictitious. "Sec. 15. At any time within twenty days after the appointment of any temporary receiver, under the provisions of this act, such appointment may be vacated upon motion, in writing, signed and sworn to by the mortgagor and the creditor or creditors whose claims are contested, alleging the validity of such contested claims and accompanied by satisfactory proof of the genuineness thereof. quent thereto, and in such case it shall not be necessary to give notice of the filing of such interrogatories or to serve a copy thereof on the person or persons whose answers are sought before the commission shall issue; nor shall it be any objection to such interrogatories that they are leading in character. "Sec. 20. The fact that there is no law now in force in this State for the appointment of a receiver of the estates of insolvent debtors, and the fact that the system of preferring creditors is frequently abused by dishonest debtors, and the fact that there is no law in force in this State governing such system or under which such abuses can be detected and prevented, create "Sec. 16. Whenever any such mort- an emergency and an imperative pubgage, deed of trust or other instru- lic necessity that the constitutional ment in writing, as is mentioned in rule requiring bills to be read on three section 1 of this act, shall have been several days be suspended, and that executed and the trustee or mortgagee this act take effect and be in force therein named shall fail or neglect from and after its passage, and said within five days thereafter to execute rule is hereby suspended, and it is so a bond in double the value of such enacted." mortgaged property, to be approved Adopted. Mr. Turner offered the following amendment to the bill as amended: Amend by adding thereto, after section 17, two additional sections, to be known as sections 17a and 17b, as follows: more than 22 per cent of the value Pending consideration of House bill The House resumed consideration of House bill No. 9, the Evans assignment bill, on its engrossment, with amendment by Mr. Rogan pending. Mr. Love offered the following substitute for the amendment: Amend section 18 by adding thereto the following: "This section shall not be construed to prohibit preferences "Section 17a. Hereafter, if any insolvent debtor or debtors, in contemplation of insolvency, shall execute any mortgage or trust deed whereby any of his creditors are preferred above others, and shall include among such preferred claims any debt that is fraudulent or fictitious, either in whole or in part; or if any mortgagee or trustee of such debtor, acting under any such preference mortgage or deed of trust, shall pay any claim of any cred-in favor of landlords for three months itor named therein, knowing same to be fraudulent or fictitious, in whole or in part; or if any creditor named in such preference mortgage or deed of trust shall demand or accept any benefit thereunder, knowing his claim to be fraudulent or fictitious, in whole or On the substitute by Mr. Love, yeas in part, then such mortgagor, mortga-and nays were demanded by Mr. Love, gee or creditor, as the case may be, Mr. Welch and Mr. Wolters. shall be deemed guilty of a felony and upon conviction shall be punished by confinement in the State penitentiary for a term of years not less than two nor more than ten. Sec. 17b. Hereafter it shall be unlawful for any mortgagee or trustee acting under any preference mortgage or trust deed to pay any claim of any preferred creditor, which claim is not verified by the affidavit of such creditor, stating that such claim is just, true and correct, and that all lawful payments and credits have been allowed thereon; and likewise it shall be unlawful for any such preferred creditor of any insolvent debtor to demand, accept or receive payment of his claim, or any part thereof, without having first filed with such mortgagee or trustee his affidavit in writing as above prescribed; and any person violating the provisions of this section shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in a sum equal to the amount of said claim, debt or account." Amend caption by adding thereto after the word "claims," in line 9, the following, "and to regulate the making of preference mortgages or deeds of trust, and to provide penalties for violations thereof." Adopted. Mr. Bumpass offered the following amendment: rent; in favor of employes for three months' wages; in favor of estates, heirs and wards for debts due as executors, administrators and guardians; in favor of the State, county and city or town for taxes." The substitute was lost by the following vote: Barbee. Carpenter. Dickinson. Yeas-46. Jones. Kirk. Logan. Love. Meade. Melton. Morton. Neighbors. Peery. Evans of Hunt. Alexander. Amend by adding at close of section 12, page 5, "Provided that the receiver Callan. shall receive for his compensation not | Crawford. Seabury. Skillern. Williams. Wolters. Nays-52. Curry. Evans of Grayson. Flint. Freeman. Gilbough. Hill of Gonzales. Mr. Harris (present), who would vote "nay," with Mr. Fisher (absent), who would vote "yea." Mr. Sluder (present), who would vote "yea," with Mr. Reiger (absent), who would vote "nay." The amendment by Mr. Rogan was adopted. Mr. Tracy offered the following amendment to House bill No. 9. Strike out all after the words "be it enacted by the Legislature of the State of Texas," and insert in lieu thereof the following: "Section 1. That it shall hereafter be unlawful for any insolvent debtor, when in a failing condition, to execute any chattel mortgage or trust deed on any property for the purpose of fraudulently preferring one creditor above another. "Art. 1. That any debtor hereafter executing any chattel mortgage or trust deed, who shall in said trust deed or chattel mortgage, make or name any preferred creditor, said chattel mortgage or trust deed shall be void, unless said failing debtor or assignor shall attach to said trust deed his affidavit in writing stating the claims and the names of the parties and amounts of said claim and the date of same and the circumstances under which debt or debts were preferred, and the same shall not be admitted to record and shall not be evidence of any indebtedness, which affidavit shall be sworn to by some officer authorized to administer oaths under the laws of the State of Texas. "Art. 2. That no preferred creditor named in any chattel mortgage or trust deed hereafter made in the State of Texas, shall receive from the trustee or other parties executing the terms of said trust deed or chattel mortgage unless said preferred creditor shall file with said trustee his affidavit in writing, stating that the claim is just and bona fide, giving the date of the origin of said claim and the circumstances under which said claim originated. Any preferred creditor failing to file such affidavit, shall forfeit any right he may have to his claim against said estate and such forfeiture shall inure to the benefit of all the creditors of said estate. "Art. 3. Any creditor of said assignor who desires shall have the right, at any time within thirty days from the date of the execution of said trust deed or mortgage, to file his application with any court within the State of Texas having competent jurisdiction of the amount in controversy, in which he shall state that he verily believes that some of the preferred creditors named in said trust deed or mortgage, giving the names and amounts, are fraudulent; and upon the filing of such complaint, it shall be the duty of the court, either in term time or vacation, to at once issue citation to the assignor, the trustee or other party in charge of said estate, and to the preferred creditor, commanding them at once to come before the court and bring all the notes, accounts, books and other papers, which notes, accounts, books and other papers may be examined in open court; and upon the failure of the assignor, trustee or other officer in charge of said estate or preferred creditor to appear before the court and make an exhibit of their notes, accounts, books or other papers, it shall be prima facie evidence fraud on their part; either party may have processes for witnesses returnable to the court at the day fixed by the court for the hearing of the case; and the court will proceed to try sa'd cause as other cases. of "Art. 4. That the trustee or other person taking charge of the estate shall, within five days from the date of the execution of said trust deed or chattel mortgage, have taken a com plete inventory of all the property con- Mr. Humphrey offered the following amendment to the amendment: Add to article 3 after the word "cases" the following: “Provided, that in all such preferences the burden of proof shall be upon such preferred creditor to show the justness of his claim." And add another article as follows: "Article 5. If any person shall make any false affidavit to any chattel mortgage or deed of trust, or to any claim preferred therein, he shall be deemed guilty of a felony and upon conviction thereof shall be confined in the State penitentiary at hard labor for a term of not less than two nor more than five years." (Mr. Seabury in the chair.) The amendment by Mr. Humphrey was adopted. Mr. Bumpass offered the following amendment to the amendment: Amend by adding at close of section 4 the following: "The trustee shall receive in full for his services the amount fixed by the court, not to exceed 21⁄2 per cent of the estate so assigned, and the attorney may receive the amount fixed by the court not to exceed 21⁄2 per cent of the value of the estate so assigned." Adopted. Mr. Rogan offered the following amendment to the amendment: Amend section 3, line 4, by striking out after the word "days" the words "from the date" and insert in lieu thereof the following words, "after he has received either actual or constructive notice." Accepted by Mr. Tracy. Pending consideration of House bill No. 9, with amendment (as amended) by Mr. Tracy pending, Mr. Blair moved to adjourn until 9.30 o'clock a. m. next Thursday; and Mr. Evans of Grayson moved to adjourn until 3 o'clock p. m. to-day. Question recurring on the longest time first, yeas and nays were demanded by Mr. Carpenter, Mr. Boyd and Mr. Evans of Grayson. Dennis. Yeas-24. Evans of Hunt. Harris. Holland of Harris. Neighbors. O'Connor. Robbins. Seabury. Staples. Thaxton. Vaughan of Collin. Welch. Wood. Nays-76. Ayers. Lillard. Logan. Lotto. Benson. Blackburn. Bounds. Brewster. Conoly. Cureton. Curry. Love. Maxwell. McKellar. Meade. Melton. Moore of Lamar. Mundine. Oliver. Peery. Pfeuffer. Porter. Rhea. Rogan. Shelburne. Shropshire. Sirother. Thaxton. Thomas. Wood. Absent. Good. Robbins. Henderson. Rogers. Meade. Excused. Bean. McFarl nd. Burney. Childs. Crowley. Dorroh. Moore, Fort Bend. Patterson. Reiger. Vaughan, Guad'lup A quorum was announced présent. Prayer by Dr. J. A. Jackson, chaplain. Pending reading of the Journal of yesterday, On motion of Mr. Kirk, further reading was dispensed with. GRANTED LEAVE OF ABSENCE. On account of important business: Mr. Meade for to-day, on motion of Mr. Moore of Lamar. Mr. Burney for to-day, on motion of Mr. Stokes. Mr. Robbins for to-day, on motion of Mr. Evans of Hunt. Mr. Good and Mr. Brigance for today, on motion of Mr. Bird. On motion of Mr. Bailey, Mr. Boggs, Sergeant-at-Arms, was excused for today, on account of important business. On account of sickness: Mr. Martin for last Monday and Tuesday, on motion of Mr. Ayers. Mr. Dorroh for to-day, on motion of Mr. Beaird. Mr. Patterson indefinitely, on motion of Mr. Benson. Mr. Freeman moved to reconsider the vote by which Mr. Patterson was excused indefinitely. On motion of Mr. Wolters, the motion was tabled. PETITIONS AND MEMORIALS. A petition of C. Gurnsey, asking for certain amendments to the hog law. Referred to the Committee on Agricutural Affairs. |