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to the officer or clerk of the court before whom the hearing is had, the amount so received by him, and the full value of the property transferred by him, except so much of such debts and property as shall appear satisfactorily to have been necessarily expended by the insolvent for the support of himself and his family. And the insolvent cannot obtain his discharge, without making this payment, or giving satisfactory security for it, within thirty days, to his assignees.
24. If it appear on the hearing, that, ' at any time after this article shall take effect as a law, in contemplation of his becoming insolvent, or of his petitioning for a discharge under the provisions of this article, or knowing of his insolvency, such insolvent has made any assignment, sale, or transfer, either absolute or conditional, of any part of his estate real or personal, or of any interest therein, or has confessed any judgment, or given any security, with a view to give any preference for an antecedent debt to any creditor, he shall not be entitled to a discharge.'
25. If it is satisfactorily proved at the hearing that the insolvent is justly indebted to the petitioning creditors in the sums mentioned in their affidavits ; that such sums amount to two thirds of all the debts that were owing by such insolvent at the time of presenting his petition, to creditors in the United States ; that he has given a true account of his estate, and conformed to the provisions of the law; an assignment is to be directed of all his estate both in law or equity, possession, reversion, or remainder, excepting necessary wearing apparel and bedding for himself and family, and the arms and accoutrements required to be provided by any citizen enrolled in the militia.
27. The assignment is to be made to such person or persons as shall have been nominated assignee or assignees by the petitioning creditors, or by such a number of the said
petitioners, as shall have owing to them a major part of the debts, constituting the two thirds as herein required.'
28. The assignment vests all the insolvent's property in the assignees, but no contingent interest passes to them, unless it becomes vested within three years after making the assignment.
29. Upon the insolvent's producing a certificate under the hands and seals of the assignees, stating that he has assigned and delivered for the use of all his creditors, all his estate
directed to be assigned, and all the books, vouchers, and securities relating to the same, and upon his also producing a certificate of the county clerk, that such assignment has been duly recorded in his office, the officer or court who directed the assignment, shall grant the insolvent a discharge from his debts and from imprisonment.
30. This article being a revisal and continuation of the insolvent law passed April 12, 1813, a discharge granted pursuant to its provisions, shall discharge the insolvent from all debts contracted before the time of the assignment, founded upon contracts made since April 12, 1813, within New York, or to be executed within New York; and from all debts owing to persons resident within that state, at the time of the first publication of the notice, or owing to persons not residing in that state, who unite in the petition for his discharge, or who accept a dividend from his estate.
31. With respect to contracts made after this act goes into operation, the discharge exonerates the insolvent from all liabilities incurred by him by making or endorsing any promissory note or bill of exchange, previous to the execution of bis assignment; or incurred by him in consequence of the payment, by any party to such note or bill, of the whole or any part of the money secured thereby, whether such payment be made prior or subsequent to the execution of the assignment.
32. The discharge may be specially pleaded in bar, or given in evidence under the general issue, with notice thereof, in any action upon any contract which is discharged by it.
33. The discharge exonerates the insolvent from or imprisonment, in any suit upon any debt contracted by him previous to the execution of the assignment; or in any suit or upon any proceeding founded upon any liabilities incurred by him by making or endorsing any note or bill, previous to the execution of his assignment; or incurred by him in consequence of the payment, by any party to the note or bill of the whole or any part of the money secured by it, whether such payment be made prior or subsequent to the execution of the assigoment.
34. The insolvent is to be discharged from prison in any suit in which he is exempted from imprisonment by the last section, on producing his discharge, and endorsing his appearance on any mesne process on which he may be imprisoned.
35. The discharge is void in the following cases :
1. If the insolvent have wilfully sworn falsely in the affidavit annexed to his petition, or on his examination in relation to any material fact :
2. If, after the presentation of his petition, he shall sell or transfer any of his property, or collect any debts, and not give a true account of the same on the hearing; and shall not also pay, or secure the payment of the money so collected, or the value of the property so assigned:
3. If he secrete any part of his estate, or any books or writings relative thereto, with intent to defraud his creditors:
4. If he fraudulently conceal the names of any of his creditors or the amount due to
of them : 5. If he procures any person to become a petitioning creditor for any sum not due to him in good faith:
6. If he pay or consent to the payment of, any portion of the debt or demand of any of his creditors, or shall grant, or consent to the granting of, any gift or reward to any creditor, upon a contract or trust, that such creditor should become a petitioner in behalf of the insolvent, or that he should abstain or desist from opposing the discharge of the insolvent:
7. If he be guilty of any fraud, contrary to the true intent of the law.
The seventh article of the same title contains some provisions which are worth noticing.
Sec. 10. Whenever a petitioning creditor procures an assignment of any demand against the insolvent, for less than the nominal amount of such demand, he shall be deemed a creditor to the amount only of the sum actually paid.
12. A creditor having a mortgage or other security for a demand, cannot become a petitioner in respect to such debt, without assigning his mortgage or other security to the assignees.
13. A creditor wilfully swearing that any sum is due to him from the insolvent, which is not really due, or that more is due, than the sum really due, forfeits to the assignees double the sum falsely sworn to be due.
19. The discharge is to be recorded by the clerk of the county in which it was granted, and a transcript of the record duly authenticated is conclusive evidence of the proceedings and facts therein stated.
20. The assignment is also to be recorded by the clerk of the county in which it was executed, upon being acknowledged and proved like a deed of real estate ; and the transcript of the record is also evidence.
21. If a discharged insolvent is arrested on mesne process, on any debt which is discharged, and applies to any officer to discharge him from such arrest, such officer shall cause reasonable notice to be given to the plaintiff,' to show cause why the insolvent should not be discharged from the arrest.
22. The plaintiff may show as cause, any fraud committed by the insolvent in obtaining his discharge, or any cause declared in the law; and the officer may require the insolvent to be held to bail as if no discharge had been granted.
30. Debts to the state, except taxes, are affected by proceedings under the law, in the same manner as debts to individuals.
The 8th article of the same title contains further provisions on the same subject. The numbers refer to the sections.
1. The assignees are declared to be trustees for the benefit of the insolvent's creditors.
3. Where there are several trustees, any one of them may collect and receive debts and property; if there are more than two, any two of them may exercise any power conferred on the trustees by the statute.
4. In case of the death of a trustee the survivor or survivors have all the powers of the trustees.
5. Trustees are to take an oath that they will well and truly execute their trust.
6. The trustees taking the oath shall be deemed vested with the estate of the insolvent from the execution of the assignment.
7. The trustees are empowered, 1. To sue in their own names; and no set-off is allowed for any debt unless it is owing before the insolvent presents his petition : 2. To receive the estate of the insolvent: 3. To dispose of the property.at public auction : 4. To allow a credit on the sale of real property, not exceeding eighteen months, for not more than three fourths of the purchase money, to be secured by bond and mortgage on the estate sold : 5. To execute the necessary conveyances : 6. To settle all matters and accounts between the insolvent and his debtors or creditors : 7. To compound with any debtor of the insolvent under the authority of the officer appointing them, and thereupon to discharge the debtor.
8. The trustees, immediately on their appointment, shall give notice thereof, and therein shall require, all the insolvent's debtors, by a day and at a place specified, to render an account of what they oive, and to pay the same to the trustees: all persons having in their possession any of the insolvent's property, to deliver it to the trustees by the day so appointed; and all the creditors of the insolvent, to deliver their accounts to the trustees by a day specified, not less than forty days from the first publication of the notice.
10. The notice is not to deprive the trustees of the right of suing before the appointed day.
11. Persons indebted to the insolvent or having possession of his property, who conceal the same, and do not give a true account of the indebtedness, or do not deliver the property by the day appointed, forfeit to the trustees double the amount of the debt or double the value of the
property concealed. 12. The insolvent or any other
be examined on oath, by the proper officer, where there is reason to suspect that his property has been concealed or embezzled.
14. Any person refusing to be sworn, or to answer satisfactorily,' may be committed by the officer, the warrant specifying the particular cause of commitment.
16. Any sheriff or jailor, wilfully suffering a person committed to escape, is liable to be indicted for a misdemeanor, and in addition to any other punishment, inflicted by the court, forfeits to the trustees a sum equal to the whole amount of debts due from the insolvent, not exceeding $2500.
17. A person answering satisfactorily is not liable to the penalty for concealing and not delivering property.
18. Any person discovering to the trustees secreted property of the insolvent, except it is in the possession of the person making the discovery, is entitled to a premium of ten per cent. on the value of the property discovered.
19. The trustees may refer any controversy arising in the settlement of the estate, to referees.
26. The trustees are to convert the insolvent's estate into money as speedily as possible; and they are to keep account of all moneys received by them, to which every creditor or other person interested is at liberty at all reasonable times to have
27. The trustees, within fisteen months from the time of their appointment, are to call a general meeting of the creditors, publishing the notice of the time and place of meeting as