OlnrnpU Ham ^rl^nol library Cornell University Library KFN5370.K27 1879 The law and practice of insolvent assign 3 1924 022 805 158 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022805158 LAW AND PRACMCE OF Insolvent Assignments STATE OF NEW TOM, "WITH FOUIi/tS A..NnD XIVX'SJSA BT William S. Keiley, THIRD edition: Prasertim ut nunc sunt mores, odea res reJit, Si quisqui: reddit, magna habenda est gratia. TEBEHOa. NEW YORK : BANKS & BROTHERS, 144 NASSAU STREET 1879. M^^^"^. Entered accoiding to suit ot; CoDgreae, in the year eighteen haiidsdHnd seventy-seven, By BANKS & BKOTHEKS, in the oflfioe of the Librarian of Congress at Washington. I Entered according to act of Congress, in the year eighteen hundred and seventy-eight, By banks & BKOTHEKS, in the office of the Librarian of Congress at Wasliington. TO THB BONOBABLH Charles P. Daly, CHIEF JVSIICIi or THE OOUBT OF COMMON FLEAS. THIS VOLUME IS DEDICATED, AS A TOKES*OF THE author's BBSFBCT >OB HIS KXALTED JUDICIAI, AIIV PEBSOITAI. CHABACIEX. PEEFACE TO THIKD EDITIOl^. The repeal of the Bankrupt Law, which was fore- shadowed in the Preface to the first edition of this work, and the changes made in the Insolvent Acts, as well as the numerous decisions on questions of practice that have been announced in the past year, seem to render it necessary not only to enlarge the present work, but also to add thereto the practice and forms under what is commonly called the Two-third Act. The changes in the Assignment law are simple, and yet entitled to notice. In the first place, the Assignment itself is not rendered void by a failure to file the Schedules ; the commissions of the Assignee are fixed at 5 per ceni ; orders are to be considered as in court, and other changes chiefly in practice. The repeal of the Bankrupt Law also has the efEect of bringing into practice again the making of Assign- ments with preferences. I have therefore collected such decisions on that practice as seem important, and given them a separate heading. W. S. K. AN^ ACT IN RELATION TO ASSIGNMENTS OF THE ESTATES OP DEBTORS FOR THE BENEFIT OF CREDITORS. Sec. 1.— Title of the act. Sec. 2. — Assignment — Acknowledgment — Recording — Assent of a» signee. Sec. 3. — Inventory or schednle Sec. 4. — ^Petition of Assignee for notice to present claims. Sec. 5. — Bond. Sec. 6. — Removal of assignee and amending of schedules. Sec. 7. — Additional security. Sec. 8. — Failure to file bond. Sec. 9 — Who may prosecute the assignee's bond. Sec. 10. — Proceedings on death of assignee. Sec. 11. — Citation for accounting. Secs. 12, 13, 14, 15, 16, 17, 18.— Service of citation on accounting. Sec. 19. — Appearance without service. Sec. 20. — Proceedings on accounting. Sec. 21. — Examination of witnesses and production of books. Sec. 22. — Orders or decrees and clerks fees. Sec. 23. — Authority to apply for leave to compound claims — Liability of assignee. Sec. 24. — Jurisdiction of court of common pleas. Sec. 25. — Jurisdiction of county court. Sec. 26. — Trial of disputed claims commissions of assignee. Sec. 27. — Construction of terms employed in this act. Sec. 28. — Repealing clause. TABLE OF CASES CITED. pAas. Adams v. Houghton 80 Anonymous v. Gelpecke 53 Anderson's Case 251 Ayres v. Scvibner 252, 256, 285 Am. Flask Co. r. Son 256,285,290 Avery's Case 268 Anderson v. Waring 288 Alger V. Raymond 291 Barbour v. Emerson 18, 48, 90, 130 Baldwin v. Tynes SI Bliss ». Cottle 48 Bowman v. Bainstang 48 Bostwick V. Merrick 135 Brewer i'. Tucker 131 Britton v. Lorenz , 63, 80 Browning u. Hart 8* Butt V. Peck 83, 92 (vii) vm TABLE OF CASES CITED. , Brennan i.'. Wilson 140 , Buckner v. Jewell 140 , Bagley v. Freeman 140 . Bank of Silver Ci-eek v. Falcutt 144 . Barnum i'. Hampstead 145 . Boardman o. Halliday 145 . Best V. Strong 247' , Bailey u Breton 277 Barber v. Wiiislow 285 Ballymore «. Cooper 285 - Billings i: Skull 287 ' Baker v. Taylor 287 'Barnes v. Gill 292 J. r Carman «. Kelly 54 ; Casey v. Jones . . . .' 88 .Chance v. Isaacs 50 ; Golburn v. Morton 52 .-Connah u. Sedgwick 84. ; Coope V. Bowles 65, 81, 129 Cook V. Kelly 63 81 Cram D. Mitchell cy Crosley ,-. Hillier 49,75,90 Cunningham v. Freeborn 47 35 Curtis V. Leavitt g^ • Currie v. Hart 07 Cuyler v. McCartney 234 Carman v. Page , .4^ Cunningham I). Freeborn J4g Carpenter ». Underwood J4g Garlysle v. Bussell oyo TABLE OF CASES CITED. ix Clark 11. Binninger 284 Cole V. Stafford 284 Coarsen v. Dearborn 286 Cross V. Hobson 287 Cable V. Cooper 287 County of Albany v. Capron 288 ' Clinton V. Hash , 283 Corne'.l v. Dakin 2191 Darrow t'. Bruff. 65, 60 De CsMTip 0. Marshall 66, 67, 80, 85 ' Denning v. Colt , . 83 Dfnzier v. Muudy 49, 67, 85, 90, 135 Doremus i'. Lewis ,■ 146 Denniston v. Stephens 256 iDeyo V. Valkenberg • • • 289 Dresser v. Shufeldt • 291 Ely V. Cook ." .^,.^ • 56 Evans V. Chapin 64, 130 ' Edwards B. Haucher 139 Edwards v. Cumbri ,. 139 Ellsworth!?. Caldwell 254 Ely r. Cook 261 Elmendorf v. Mayor 294 Fairchild v. Gwynne 63, 80, 130 Fisher v. Murray 82 Fox «. Heath 64,88,130 Ft. Stanwix Bank w. Leggett 132 • ■ Gasherie v. Apple 87, 130 Grant v. Chapman 93, 14C k TABLE OF CASES CITED. Griffin V. Marquand. 48, 145 iGrocers' Nat. Bank v. Clark 256, 267, 289, 290 Gardner u. Lay 273, 288 C Hedges v. Bungay 20, 51 Hardman v. Bowen 89, 92 Harris v. Hart 50 flarris V. Pratt 50 Payer v. Heyer 83 Haas t>. O'Brien 54 ^rrick V. Borst 56 Iloagland v. Trask 53 Jttart V. Cram 141 ^slop V. Clark 144 .g^den V. Palmer 272 Ps^kins V. Banks 277 f^a^ord V. Nichols 277 H^e «. Sweet 286 ©ayes v. Case 29Q Hellman v. Sieber 291 L'jeland t>. Potter 53 InreBaloh 42 Jrt re Bowery Nat. Bank 54 In re Dike 19, 51, 100 Inre Frits 103 In re Kennan Adm. Cox 137 ni re Kinstler 41 In' re Devy's Accounting 51 In re Morgan 131 fere Smith 25 TAjBLE OF CASES CITED. sa In re Shipman -. . , .^. 5$ In re Wilzinsky. 29 In re Weiubolz .: 13^ In re Hills 139 In re Oakley ; ; ; : . 13§ In r? Horsfall , 139 In re Baker 7il! .V?ri39 In re Cumbri .■........: 139 In re Sherman Zi. .140-^142 In re Fellows. 141 In re Fabbri it. . . . ; . . 142 In re Leipziger '.'.'J. .'. :?.^™'S-142 In re Cracken ; i- 143 lii *e Beers ....?....?' 143 In re Yeager ':'.¥.*:}. A .'# 143 In re Leach ....¥!. 14^ In re Hills... .r. 143 In re Hurst ......:*. 259 In re Rosenberg ''•' • • • • 258 In re Roberts • • 258 Japques u. Greenwood ; ; . . . . ' ''-' 52 Jones V. Bach .....'.' '81 journeay v. Brackley ..,.:.'. . . 140 Jackson v. Virgil • 2o4 Jenks V. Stebbins • • ■ • • 285 Kellett V. Rathburn -101 Kelly V. Baker 63, 64, 81, 82 Kellogg V. Slawson 56 Kemp V. Carnley "? xii TABLE OF CASES CITED. Kennedy v. Thorp 133- KeJT p. Blo4gett 52, 136 RAIckerbaoker v. Defreest 103 Kip w. Bank of N. Y 277 Kennedy y. gtrong 289: Lqiipbert v. Converae 131 Leitch I!. HoUister 78 Lpger V. ponafEe 48^ Livermore v. Northrup 65, 89, 91, 136 IjoeSchick V. Baldwin , . . . 133 . Lo* V. Graydon 145, 146^ Liater V. Thompson 284. Lewis V. Page 286 Livingston ?•. Oabsmith ■ • • • 287 Lansing v. Prendergrast 289 Lother v. Deys 289 Ludlow w. Racket. 291 Mass V. Goodman 48, 50 Manning v. Stem 53 IVfatteson V. Demarest 65, 88 IJayer i?. Hellman 137 MeibaU v. Van Brunt 79 Afet^ger v. Metzger 126 Midgely V. Slocomb 132 ifi)ir V. Brown 48, 75, 90 Morton v. Pinckney 140 Murray r. Biggs 144 S$$idtie,V/ Cams 144 Meny V. Street 247,261,, TABLE OF CASES CITED. xiU, Morewood v. HoUister 254, 256, 272, dS^ ,• Maiiuftg. Co. VL Armstrong 254 i Miller v. Brinckerhoffi 261 i Marsh v. Wendover 27T j Marvin v. Freeman 28S ^ Mec. & Farmers' Bank v. Capron , 289 McMeuomy o. Rooseneth '.'^I'i'i . . .-.-^'144 • McNair v. Gilbert '• . . 258 ' McNulty c. Sutherland ri'l-P. .' 2318' :■ i Nat. Bank, Bait. &. Sackett 64, 83, Wi ' Newell V. Van Praagh l^ [ Noble V. Johnson 283! '■ ■i av i. ' Ockerman v. Cross ftSJ , Ogden V. Peters. gg , O'Connell v., SMherland, 888| ^ Place v.. Miller. 91 S^ple V. Stryker 247, 267.,, m, i PljilKps' Case 25.4 Pratt V. Chase 2aa People V. Gray ., 28S Pafener v. Hutchins , . . . 28T. Post (.-. Riley , 287. > fiice «. Peters <>2a7, i, PiBople V. Rossiter 2^ i People V. Herkimer. 28i8, i People,!;. Kelly , , , , , ■''.' 2a» I Ptatt.a..Chase ,....?... 29ft ' Btfce .«. PiicA. Wi' xiv TABLE OF CASES CITED. I'eople V. Mayor 294 People V. Daly 294 Read v. Worthington 19, 66, 90 Head v. Sands 48 Head v. Emery 84 Robert V. Shepard 64, 82 Riggs V. Murray 144 R. Renard c. Maydore 145 R. Renard v. Grayden 146 Rusher v. Shennaa 247, 285, 286 Rockwell !>. Brown 247,277,278 Rosebome v. Mosher 277 Rockwell V. McGovern 278 Russell V. Erwin Mfg. Co 286 Reed v. Gordon 287 Rich 17. Salinger ; . . . 287 Schiefielin v. Hawkins » 48 Schlnssel v. "Willett 86 Scott V. Guthrie 66, 83, 85, 87 Simon r. Kaliske 37, 67,79, 84 Smith V. Felton 50, 51, 134 Smith V. N. Y. Con. Stage Co 66 129 Strong V. Skinner 145 \^q Sheldon v. Dodge ; , I45 Sewall V. Russell I45 Sentilhon v. Moffat I45 Spauldiug V. Strang I45 Soeschigk v. Jacobson 146 Sailers D. Tobias 247 TABLE OF -CASES CITEt). XV Sbule V. Chase 247, 254, 255, 256, 268, 286, '2Sd Small V. Graves 252 256 Slidell J). McCrea „-„ JO^ Stanton «. Ellis 256, 267, 268,' 38S Small V. Wheaton 261 Staples V. Fail-child 9q, Shears v. Salinger 284 ■ , ' ' ' ' i Smith V. Paul 286 Sessions v. Phinney 287 Spencer v. Beebe 28V- Stebbins v. Wilson 288 ". ' , : ,..°., Stewart B. Isidor 291' Stewart u. Solinger 291 Terry v. Butler 66, 90' Thrasher w. Bentley 20, 51, 93, 136 The Produce Bank v. Baldwin 'g'o The People v. Chalmers 20 The Syracuse R. R. Co. v. Collins 75 Treadwell v. Sackett 81 Turner v. Jacox 92, :, ' I'i.ii'-'l Taylor V. Williams 255 Thomas v. Stryker 288 Tooker v. Bennett 289 Van Buskirk v. Warren 131 Van Heusen v Radcliffe 48 ■ Van Vleet v. Slawson 78, 97'^ Von Hein v. Akins 54 ' Van Alystyne v. Irvine 261 ■ Van Hooker v. Witlock 290 ' XVI TABLE OF CASES CITED. Wawen «. Fenn 48t Welles V. March QS, 82 Wetter J). Schliefer 63, 6ft, 81 Wynkoap v. Shardlow 78; Wilson V. Forsyth 14,6 Warren's Case 252 Wellis V. Brown 255 Watrner V. Constant 288 Witt V. Fallett 290 Wilson V. Gunperts 291 I Tates V. Lyon , 93,140 THE GENERAL ASSIGNMENT ACT OF 1877. Laws of 1877. Chapter 466. AN ACT in relation to assignments of the estates of debtors for the benefit of creditors. Passed June 16, 1877 ; three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows : Title of act. — § 1. This act may be cited for all purposes as " The general assignment act of eighteen hundred and seventy-seven." Assignment — Acknowledgment — Recording Assent of assigpaee. — § 2. Every conveyance or assignment made by a debtor of his estate, real or personal, or bath, to an assignee for the creditors of xvu :^viii INSOLVENT ASSIGNMENTS. such debtor, shall be in writing and shall be duly ac- knowledged before an officer authorized to take the adsnowledgment of deeds ; and every such convey- ance or assignment shall be recorded in the county clerk's office of the county where such debtor resided or carried on his business at the date thereof. An assignment by copartners shall be recorded in the county where the principal place of business of such copartners is situated. When real property is a part 9f the property assigned, and is situated in a county, other than the one in which the original assignment is, required to be recorded, a certified copy of such {assignment shall be filed and recorded in the county, where such property is situated. The assent of the assignee, subscribed and acknowledged by him, shall appear in writing, embraced in or at the end of of indorsed upon the assignment, before the same is re- corded, and, if separate from the assignment, shall be duly acknowledged. See Laws of 1860, chap, 348, §§ 1 and 6. - Inventory or schedule. — § 3. A debtor making an assignment shall, at the date thereof or within twenty dq,y3 thereafter, cause to be made, and delivered to the county judge of the county where such assign- INSOLVENT ASSIGNMENTS. xix ment is recorded, an inventory or schedule contain- ^ ing 1. The name, occupation, place of residence, and \ , place of business, of such debtor. 2. The name and place of residence of the as- signee-. 3. A full and true account of all the creditors of such debtor, stating the last known place of residence of each, the sum owing to each, with the true cause ajid consideration therefor, and a full statement of any existing security for the payment of the same. 4. A full and true inventory of all such debtor's estate at the date of such assignment, both real and personal, in law and in equity, with the incum- brances existing thereon, and of all vouchers and se- curities relating thereto, and the nominal as well as actual value of the same according to the best knowl- edge of such debtor. 5. An affidavit made by such debtor, that the same is in all respects [as amended by chap. 318, Laws of 1878,] just and true. But m case such debtor shall omit, neglect, or refuse to make and deliver such inventory or schedule within the twenty days re- quired, the assignee named in such assignment shall, within thirty days after the date thereof, cause to be XX INSOLVENT ASSIGNMENTS. made, and delivered to the county judge of the coun- ty where such assignment is recorded, such inven- tory or schedule as eibove required, in so isit a* he can ; and for such purpose said county judge shaH, at any time, upon th6 application of such assigiiee, compel by order such delinquent debtor, and any other person, to appear before him and disclose. Upon oath, any knowledge or informatioii he may possess, necessary to the proper making of such inventory or schedule. The assignee shall verify the inventory and schedule so made by him, to the effect that the same is in all respects just and true to the best of his knowledge and belief. But in case the said as- signee shall be unable to make aj^d file such inven- tory or schedule, within said thirty days, the counter judge may, upon application upOn oath, showing such inability, allow him such further time as shall be necessary, not exceeding sixty days. If the as- signee fail to make and file such inventory or sched- ule within said thirty days or such further time as may be allowed, the county judge shall require, by order, the assignee forthwith to appear before him; and show cause why he should not be removed. An^ person interested in the trust estate, may apply for such order and demand such removal. Tte hooka INSOLVENT ASSIGNMENTS. xsd and pa|)6rs of such delinquent debtor stall at all times be subject to the inspection and exq,minatian of any creditor. The county judge is authorized by ©rd6r to require such debtor or assignee to allow Such inspection or examination. Disobedience to such order is hereby declared to be a contempt, and obe- dience to «ueh order may be efiforced by attachment. The inventory or schedule shall be filed by said county judge In the office of the clerk of said county in which said assignment is recorded. See Laws of 1860, chap. 348, § 2. Laws of 1874, chap. 600, § 1. See chap. 466, Laws of 1877. Petition of Assignee for Notice to Present Claims. — § 4. The county judge may, upon the petition of the as*gnee, authorize him to advertize * for creditors to present to him their claims, with the vouchers therefor, duly verified, on or before a day to be specified in such advertisement, not less than thirty days from the last publication thereof j which advertisement or notice shall be published in two newspapers, to be designated by the county judge, as most hkely to give notice to the persons to be served, not less than once a week for six successive weeks, and, if it appears that any of such ereditors i • So IB the origmal. X-xii INSOLVENT ASSIGNMENTS. reside out of the State, then in like manner in tlie State paper. See Laws of 1874, chap. 600, § 1. Bond. — § 5. The assignee named in any such as- signment shall, within thirty days after the date thereof, and before he shall have any power or au- thority to sell, dispose of or convert to the purposes of the trust any of the assigned property, enter into a bond to the people of the State of New York, in an amount to be ordered and directed by the county judge of the county where such assignment is re- corded, with sufficient sureties to be approved of by such judge, and conditioned for the faithful dis- charge of the duties of such assignee and for the due accounting for all moneys received by him, which bond shall be filed in the clerk's office of the county where such assignment is recorded, but in case the debtor shall fail to present such inventory within the twenty days required, then the assignee, before the ten days thereafter shall have elapsed, may apply to said county judge by verified petition for leave to file a provisional bond, until such time as he may be able to present the schedule or inventory as herein before provided. See Laws of 1860, chap. 348, § 3 ; Laws of 1875, chap. 56, § 1. INSOLVENT ASSIGNMENTS. xxiii Removal of assignee.— As Amended by chap. 318, Laws of 1878, § 6. The county judge shall, in the case provided in section three, and may also, at any time, on the petition of one or more creditors, showing misconduct or incompetency of the assignee, or on petition of the assignee himself, showing suffi- cient reason therefore, and after due notice of not less than five days to the assignor, assignee, surety and such other person as such judge may prescribe, remove or discharge the assignee, and appoint one or more in his place, and order an accounting of the assignee so removed or discharged, and may enjoin such assignee from interfering with the acsignor's estate, and make provisions by order for the safe custody of the same, and enforce obedience to such injunction and orders by attachment ; and, upon his discharge upon his own application, such assignee's bond shall be cancelled and discharged. The new assignee shall give a bond, to be approved as above required. The county judge shall have power, by order, to require or allow any inventory or schedule filed to be corrected or amended, and also to require and compel, from time to time, supplemental inven- tories or schedules to be made and filed within such xxiv INSOLVENT ASSIONMENTS. time as he sliali prescribe, and to enforce obe<5ience to such orders by attSiChment. See Chap. 496, IuCwb of 1877. Additional security.— § 7. The county judge may, upon his own motion or npoia the application of aifiy party in intferest^ and on such notice as he may direct to be given to the assignors assignee and surety, require further security to be given whenever in his judgment the security afforded by the bond on file is not adequate. Failure to file bond. — § 8. A failure to file any bond required by or under this act or the acts here- by amended, within the specified time, will not deprive the county judge of his power over the assignee or the tfust estate. \ Who may prosecute the assignee's bond. — § 9. Any action brought upon an assignee's bond may be prosecuted by a party in interest by leave of thfe court ; and all moneys realized thereon shall be ap- plied by drreetion of the county judge, in satisfactioJi of the debts of the assignor, in the same manner as the same ought to have been apj)lied by such assignees. See Laws of 1860, chap. 348, § a; Laws of 1873, chap. 363. Proceedings on death of assignee. — ^§ 10. Tfi casQ an assignee shall die during the pendency of any proceeding under this act, or at any time subsequent I!^SOLVfiNT ASSIGNMENTS. xx^ to the filing of any bond required herein, Ms j)efsonal representative or successor in office, or both, may be brought in and substituted in such proceeding on such libtifie (of not less than eight days) as the county judge tttBif direct to be given ; and any decree made thereafter shall bind the parties thus substituted as well as the property of such deceased assignee, pro- vided, however, that if such assignee die subsequent to the filing of his bond and before any proceedings may have been had thereunder, then the surety on i3«ch bond may apply to the county judge for an ac- counting, who ihay, on such terms as to him seem just and propei", appoint another assignee and release such surety. Sefe Laws di l872, cliap. 838. Citation for accburiting. — § 11. A citation Inay be issued to all parties interested in the estate as- Signed, as creditors Of otherwise, requiring them to appear in court on some day therein to be specified, &hd to showfcause why a settlement of the account of proceedings of the assignee should not be had, and if no cause be shown, to attend the settlement of such acoonnt. Thfe county court tnust issue all citations ihentioned in this act, which must be returnable in court. It may issue a citation on the petition of an xxvi INSOLVENT ASSIGNMENTS. assignee, at any time after the assignment or on petition of a creditor, or an assignee's surety, or an assignor, at any time after the lapse of one year from the date of such assignment, or where an as- signee has been removed and ordered to account as hereinbefore provided. See Laws of 1860, chap. 348 ; Laws of 1869, chap. 860 ; Laws of 1870, chap. 92 ; Laws of 1872, chap. 838 ; Laws of 1875, chap. 56. Chap. 466, Laws of 1877. Service of citation on accounting. — | 12. A citation issued on the petition of a creditor may be addressed to and served on the assignee alone, but on or after the return of such citation the assignee may have a general citation issued to all parties interested. § 13. A citation to all persons interested must be served on all parties, other than the petitioner, who are interested in the fund, including assignors, assign- ees and their sureties, except that if the time limited by due advertisement for presentation of claims has expired before the issue of the citation, creditors who have not duly presented their claims need not be served. In case the creditors of such assignor, who have proved their claims, exceed twenty-five in number, then the county judge, upon proof by affi- davit that such creditors exceed such number, may INSOLVENT ASSIGNMENTS. xxvih by order direct snch citation to be served on each creditor who has proved his claini, by depositing a^ copy of the same, at least thirty days prior to the return day thereof, in the post-office at the place where the as^gnee or assignees, or either of thenj,' reside, duly inclosed and directed to each of such- creditors, at his last known post-office address, with the postage prfepaid ; and by pubHshing such citation once a week for at least four weeks prior to such re- turn day in one or more newspapers, to be desig- nated by such cbunty judge as most likely to give notice to such creditors. § 14. A citation personally served within the coun- ty of the judge or an adjoining county must be so served at least eight days before the return thereof ; if in any other county, at least fifteen days before the return thereof. § 15. The county judge may direct service to be made by publication when he is satisfied by affidavit or verified petition either that the person to be so served is unknown, ot that his residence cannot, after' diligent inquiry, be ascertained, or that he cannot, af- ter due diligence, be found within the State. The order fdr such service must direct service of the cita- tion upon such person to be made by publication. xxviii INSOLVENT ASSIGMMENTS. thereof in one newspaper to be designated by the county judge as most likely to give notice to the per- son to be served, and also, if it appear that any such person resides without the State, then in the State paper for such length of time as he may deem rea- sonable, not less than once a week for six "^eeks, and tljat a copy of the citation be forthwith deposited in the post office duly inclosed and directed to each person so served, at his last known place of residence or post, office address, and the postage paid thereon, aA least thirty days before the return day ther-eof . § 16. When publication has been ordered, per- sonal service without the State made if vithm the United States at least thirty days, or without the United States, at least forty days before the return day is equivalent to publication and mailing. § 17. Personal service upon minors and persons in- competent shall be made in the manner prescribed by law for the service of citations issued by a surro- gate, in cases of final accounting. § 18. Personal service upon one or two or more creditors who claim as copartners or otherwise as joint creditors shall be equivalent to personal service on all, and voluntary appearance either in person or by attorney shall be equivalent to personal service. I^rSOLVENT ASSIGNMEJfTS. xxi?£ Af^earance without service. — § 19. On tbe return of a citation to all parties interested, any person claiming an interest, although not served, may appear apd become a party on duly presenting his claim. Proceedings on accounting. — § 20. On a pro- ceeding for an accounting under this act the county court shall have power, as amended by Chap. 318, Laws 1878. 1. To examine the parties and witnesses on oath in relation to the assignment and accounting and all matters connected therewith", and to compel their at- tendance for that purpose and their answers to ques- tions, and the production of books and papers. 2. To require the assignee to render and file an account of his proceedings, and to enforce the same in the manner provided by law for compelling an ex- ecutor or administrator to comply with a surrogate's order for an account. 3. To take and state such account, or to appoint a referee to take and state it ; and such referee shall have the powers enumerated in subdivision one of this section. 4. To settle and adjudicate iipon the account and the claims presented, and to decree payment of any creditor's just proportional part of the fund, or, in XXX INSOLVENT ASSIGNMENTS. case of a partial accounting, so much thereof as the circumstances of the case render just and proper, 5. To discharge the assignee and his surety at any time, upon performance of the decree, from all fur- ther liability upon matters included in the accounting, to creditors appearing and to creditors not having appeared after due citation, or not having presented their claims after due advertisement. 6. On proof of a composition between the assignor and his creditors, to discharge the assignee and hip surety from all further liability to the compounding creditors appearing or duly cited, and to authorize the assignee to release the assets to the assignor ; provided, however, that if there be any creditors not assenting to the composition, the court shall deter- mine what proportion of the fund shall be paid to or reserved for creditors not assenting, which shall not be less than the sum or share to which they would be entitled if no composition had been made, and may decree distribution accordingly as amended by Chap. ' 318, Laws 1878. 7. To adjourn the proceedings from time to time, issue further citations if necessary, and amend the petition and proceedings thereon before decree in furtherance of justice. INSOLVENT ASSIGNMIENTS. xxxi 8. To punish as for a contempt any disobedience or violation of any order made or process issued in pur- suance of this act or the acts hereby amended, and to restrain by arrest and imprisonment any party or vdtness when it shall satisfactorily appear that such party or witness is about to leave the jurisdiction of the court, and to take bail to secure the attendance of such party or witness, to be prosecuted under the order of the court in case of forfeiture by and for the benefit of the party in whose interest such, examina- tion shall be ordered. 9. To exercise such other or further powers m re- spect to the proceedings and the accounting therein as a surrogate may by law exercise in reference to an accounting by an executor or administrator. Examination of witnesses and production of books. — § 21. The county judge may also, at any time, on petition of any party interested, order the examination of witnesses and the production of any books and papers by any party or witness before him or before a referee appointed by him for such pur- pose, and the evidence so taken, together with books and papers, or extracts therefrom, as the case may be, shall be filed in the county clerk's office, and may be used in evidence by any creditor or assignee in any xxxii INSOLVENT AS,SI(JNMENTS. action or proceeding then pending, or which niay hereafter be instituted. No witness or party as al?ove provided shall be excused from answering on the ground that his answer may criminate him, but siich answers shall not be used against him in any criminal actioii or proceeding. : ! Orders or decrees.-^§ 22. AH orders or decrees in proceedings under this act shall have the same force and effect, and may be entered, docketed and enforced and appealed from, the same as if made in an original action brought in the county court. And all proceedings under this act shall be deemed to be had in court. The said court shall always be open for proceedings under this act. The county judge, when named in this act, shall, in such proceed- ings, be deemed to be acting as the court. The clerk of the court shall keep a separate book, in which shall be entered each case, the date and pjace of record of the assignment, and a minute of all pro- ceedings therein, under this act, with such particular- ity as the court shall direct by general order. He shall record therein at length the orders and decrees of the court, settling, rejecting or adjusting clajims, , and directing the payment of money, or releasing INSOLVENT ASSIGNMENTS. xxxiii assets by the assignee, and removing or discharging the assignee and his sureties, and such other orders as the court shall direct by general order. The said clerk shall securely keep the papers in each case in a file by themselves, and shall be entitled to a fee of one dollar for filing all the papers in each case, and entering the proceedings in the minute book, and fifty cents, to be paid by the assignee, unless other- wise directed, for recording each order or decree re- quired by this act or the general order of the court. As amended by Chap. 318, Laws 1878. Authority to apply for leave to compound claims — Liability of assignee. — § 23. The county judge of the county where the assignment is recorded may upon the application of the assignee and for good and sufficient cause shown, and on such terms as he may direct, authorize the assignee to com- promise or compound any claim or debts belonging to the estate of the debtor. But such authority shall not prevent any party interest6d in the trust estate from showing upon the final accounting of such as- signee that such debt or claim was fraudulently or negligently compounded or compromised. And the .\ assignee shall be charged with, and be liable for, as XX5UV INSOLVENT ASSIGNMESl 8, part of the trust fund, any sum which might or ought to have been collected by him. Jurisdiction of court of common pleas — Filing and recording papers in New York city. — § 24, In the city and county of New York all papers, ex- cept assignments, which by this act are required to be hereafter filed or recorded in the county clerk's office, shall be filed or recorded in the office of the clerk of the court of common pleas of said city and county; and any judge of said court may exercise all the powers of a county judge for said county for the purposes of this act, and any act or proceeding commenced or returnable before, or instituted or or- dered by, one of the judges of said court, may be heard, continued or completed, by or before any; other of them. ■■ Jurisdiction of county court. — § 25. Any pro- ceeding under this act shall be deemed for all pur- poses, including review by appeal or otherwise, to be; a proceeding had in the court- as a court of general jurisdiction, and the court shall have full jurisdiction i to do all and every act relating to the assigned es- tate, the assignees, assignors and creditors, and juris- diction shall be presumed in support of the orders and decrees therein unless the contrary be shown, INSOLVEiNT ASSIGNMENTS. XXXv and afteir the filing or recording of an assignment under this act, the court may exercise the powers of a court of equity in reference to the trust and any matters involved therein. Trial of disputed claims, and commissions of assignee. — | 26. The court, in its discretion, may order a trial by jury or before a referee, of any dis- puted claim or matter arising under the provisions of this act, or the acts hereby amended. It may in its discretion award reasonable counsel fees and costS, determine which party shall pay the same, and make all necessary rules to govern the practice under this act. The assignee or assignees named in any assign- ment shall receive for his or their services a commis- sion of five per centum on the whole sum which will have come into his or their hands. Construction of terms. — § 27. Whenever words in this act importing the plural number are used in describing or referring to any matters, parties or per- sons, any single matter, party or person shall be deemed to be included, although distributive words may not be used, and when any singular matter, party or person is described or referred to by words importing the singular number or the masculine gen- xX3Cvi INSOLVENT ASSIGNMENTS. der, several matters and persons, and females as well as males, and bodies corporate as well as individuals shall be deemed to be included, unless otherwise spe- cially provided or imless there be something in the subject or context repugnant to such construction. Repealing clause. — § 28. Chapter three hun- dred and forty-eight of the laws of eighteen hundred and sixty, entitled " An act to secure to creditors a just division of the estates of delators, who convey to assignees for the benefit of creditors," and the sev- eral acts amendatory thereof, are hereby repealed, but this shall not affect any proceedings had ; and any proceedings pending under the acts hereby re- ferred to may be contuiued under this act. § 29. This act shall take effect immediately. INSOLVEJ^T^ ASSIGNMENTS. xxxvii RULES OF THE COURT OP COMMON PLEAS WITH REGARD TO INSOLVENT ASSIGN- ■■■MENTS. DUTIES OF THE CLEKK. 1. The Clekk. — ^la addition to the books now- kept by him the Clerk shall provide a Register and Docket. In the Register shall be entered in full every decree and final order made in these proceedings, accord- ing to date, ajad the Docket shall contain a brief memorandum of each day's proceedings according to the respective titles. The Register and Docket shall be at all times dur- ing Court Hours open for public inspection. 2. Each petition, or order, or decree, filed, shall be endorsed with the day and date of such filing, and the papers in each case shall be kept in a file by themselves. 3. No paper shall be permitted to be taken off of the files of the Court for any purpose, except on an order of the Court. xxxviii INSOLVENT ASSIGNMENTS. 4 . Every paper filed shall have a brief memoran- dum endorsed on the outside cover, showing the nature thereof. 5. Copies of any and all papers in these proceed- ings shall be furnished to any person applying for the same, upon the payment of the legal fees. PROCESS. 6. Process. — All process, citations, summons and subpoenas shall issue out of the Court under the seal thereof, and be tested by the Clerk. APPEARANCES. 7. Appearances. — Any party may appear in these proceedings either in person or by Attorney — ^if by Attorney the name of such attorney, with his place of business and residence shall be endorsed on each and every paper filed by him, and his name shall be entered in the Docket. SCHEDULES. 8. Schedules. — The Schedule of liabilities and assets required to be filed by the assignor or assignee shall fully and fairly state the nominal and actual value of the assets, and the cause for the difference, and a separate affidavit will be required which shall fully explain the cause of such difference. If rgr INSOLVENT ASSIGNMENTS. xxxlx quired, the affidavits of disinterested experts as to sucli valiie^ must be furnished. 9. Signing of.— Where there may he more than one sheet of paper neeess8,ry to contain the Schedules, each page shall be signed by the person, or persons, verifying the same. The sheets of paper on which the Schedules are written shall be securely fastened before the filing thereof, and shall be endorsed with the full name of the assignor and assignee, and when filed by an attorney shall also be endorsed with his name and business address. 30. Filing by Assignee. — Should the Schedules be filed by the Assignee, there must be a full affidavit made by such Assignee and some disinterested ex- pert, showing the nature and value of the property assigned. 11, Name and Kesidenge. — The name, residence, occupation, and place of business of the Assignor, and name and place of residence of the Assignee, may be incorporated in the affidavit, or annexed to the Sched- ules. 12. Kecapitulation- — There shall be a recapitula- tion at the end of the Schedules as follows : — Pebts and Liabilities amount to $ Aissete ixoroJnally lyorth $ xl INSOLVENT ASSIGNMENTS , i Assets actually worth $ 13. CoNTiNGEifT. — Contingent liabilities, shall ap- pear on a separate sheet of paper. 14. Amendments of. — Application to amend the Schedules shall be made by verified petition in which the amendments sought to be made shall appear in full^ and such amendments shall be verified in the same manner as the original schedules, were verified. BOND. 15. Bond. — The Bond shall be joint and several in form, and must comply with the requirements of sec- tion 812 of the Code of Civil Procedure. 16. Justification of Sureties. — The Court may in its discretion require any surety to appear and justify. 17. At least one of such sureties shall be a free- holder. If the penalty of the bond be twenty thou- sand dollars or over it may be executed by two sure- ties justifying each in that sum, or by more than two sureties the amount of whose justification united is double the penalty of the bond. provisional bond. 18. Provisional,— The affidavit on which applica- tion is made for leave to file a provisional bond, must INSOLVENT A'SSIGNMEITS. xli ! show fully and fairly the nature and extent of th6 property assigned, and good and sufficient reason must be shown why the Schedules cannot be filed, and it intist appear satisfactorily to. the Court that a necessity exists for the filing of cncli provisional bond, and for the purposes of this ^ c* c' e affidavit so filed shall be deemed a Schedule of tiie assigned property until such time as the regiilar Scbpdules shall be filed. Upon the filing of the Schedules the amount of the bond will be determined finally, and should the pro- visional bond already filed be deemed sufficient, an order will be granted making such bond as approved the final bond. ASSIGKEE. 19. Every Assignee shall keep full, exact and; regular books of account of all receipts, payments and expenditures of money by him, which said books shall always during business hours be open to the inspection of any person intereisted iiJ the trust estate. 20. In making sales ajt auction of personal prop- erty the Assignee shall give at least ten days' notice of the time and place of the sale and of the articles to be sold by advertisemeht in one or more news- papers, and he shall give notice of the sale at auc- ^1,^ INSOLVENT ASSIGNMENTS. tion of any real estate at least twenty days before such sale. Upon such sales the Assignee shall sell by printed catalogue in parcels, and shall file a copy of such catalogue, with the prices obtained for the goods sold, with his final account. 21. When any notice is" served on the creditors of the insolvent, pursuant to the provisions of the Stat- ute, or these rules by mail, every envelope containing such notice shall have upon it a direction to the post- master at the place to which it is sent to return the same to the sender within ten days unless called . for. Upon every application made to the court upon such service an affidavit shall be presented showing whether any such notices have been returned. 22. Upon an application made for a general cita- tion, the Assignee shall file with his petition his account with the vouchers. 23. The Assignee must file an account in all cases, which shall be referred for examination. Discharge. — No discharge shall be granted an Assignee who has not advertised for claims pursuant to section 4 of the statute and the 30th rule. No discharge can be granted an Assignee and his sureties in any case whether the creditors have been INSOLVENT ASSIGNMENTS. xliii paid or have released or have entered into com- position or not, except in a regular proceeding for an accounting under section 20 of the act commenced by Petition fol" citation and citation thereon to all persons interested in the estate. SUBSTITUTED ASSIGNEE. 24. Whenever an Assignee shall have been re- moved either on his own petition, or on the petition of any person interested in the estate, and another person appointed as assignee in his place and stead, a certified copy of the order made on such petition shall be filed and recorded in the Clerk's office of the county wherein the original assignment was recorded, and the Clerk of the county shall make such suitablie entry on the margin of the record of the original assignment as. wUl show the appointment of such substituted as- signee, and the said certified copy of the order shall be attached to the original assignment. ACCOUNT OF ASSIGNEE. 25. The account of the Assignee shall be in the nature of a debit and credit statement ; he shall debit himself with the assets as shown in the Schedules as filed, and credit himself with any aecrease as well as expenses. xliv INSOLVENT ASSIGNMENTS. 26. The statement of expenditures shall be full and complete, and the vouchers for all payments other than trivial expenses, shall be attached to the account. 27. The affirmative on the accounting shall be with the assignee, and objections to the account may be presented to the referee in writing, or be brought out on a cross-examination. 28. The testimony taken shall be signed by the several witnesses, and attached to and filed with the Report of the Referee. EEPORT OF EEFEKEE. 29. The report of the Referee shall show all the juris- dictional facts necessary to confer power on the Court, such as the prober executing and acknowledging of the assignment, the recording of the same, the filing of the Schedules and Bond, the advertising for credi- tors, the issuing of the citation, the presenting of the account, and where any items may be disallowed in the account of the assignee, the same shall be fully set out in the report. 30. The provisions of Title 2, Chap. ] 0, Article 3, of the Code of Civil Procedure, and Rule 30, S. C. Rules, shall be applicable in these proceedings. INSOLVENT ASSIGNMENTS. . .t.jdv ;g g NOTICE TO PEESENT CLAIMS [ 31. A copy of the notice, or advertisement, requir- ing creditors to present their claims, and of the General Citation to creditors must be mailed to each creditor whose name appears on the books of the Assignor, with the postage thereon prepaid, at least thirty days before the day specified in such advertise- ment or notice or citation, and proof of such mail- ing must be required on the application for a final decree, unless personal service thereof is made upon Bach creditors. THE GENERAL ASSIGNMENT ACT OF 1877. As Amended by Chap. 318 of the Laws of 1878. Although the present act does not make such rad- ical changes in the insolvent assignment laws of 1860 and the amendments thereto as to require much comment, still there have been some made which can be briefly alluded to before treating of them under their appropriate heads. Assignment. — In the first place it is necessary now for the assignee to assent, and this assent must be subscribed and acknowledged by the assignee, embraced in, at the end of, or indorsed upon, the assignment. The usual practice is to have it embraced in the assignment. The assignment can be recorded either in the clerk's office of the county where the debtor resided or carried on his business at the date of the assign- ment ; if it be made by co-partners, then it shall be recorded where the principal place of business of such co-partners is situated ; and if real property be a part of the property assigned, then a certified copy of such assignment shall be filed and recorded in the county where such property is situatad. 2t INSOLVENT ASSIGNMENTS. The other provisions as to its beuig in writing amd properly acknowledged are the same as in the orig- inal act. Schedule. — In addition to the present require- ments the schedule must contain the name, occupa- tion, place of residence and place of business of the debtor ; the name and place of residence of the as- signee, and the last known place of residence of each creditor. Where the assignee files the schedule he must also comply with all of these requirements in addi- tion to the present, as far as possible, and the time within which he can file the same is limited to sixty days after the date of the assignment, instead of six months as at present, and to assist him in preparing them the county judge may compel any person to appear and disclose any knowledge or information he may possess necessary to the proper making of such inventory. Under the previous acts the debtor alone could be compelled to disclose such information. Advertising. — The advertisement for creditors to present their claims must be published not less than once a week for six successive weeks, in two newspapers to be designated by the county judge (and for the same length of time in the State paper, INSOLVENT ASSIGNMENTS. 3 if it appear that anj creditors reside out of the State) ; and it shall require the creditors to present their claims within a time to be specified, not less than thirty days from the date of the last publication. This section (4) is radically different from subdivision 9" of section 2 of the old act, chap. 600, Laws of 1874, which required the time of publication to be once a week for four weeks in the county, and once a week for six weeks in the State paper, and made the time for presentation of claims to be not less than three months from the date of the first publication. Bond. — The time for filing the bond is limited under any and all circumstances to thirty days from the date of the assignment. An action may be brought upon the bond by any party in interest qja leave of the court and not by the district attorney. Assignee.— As we have seen above he must assent to the assignment, and under the present act the assignee may be removed for misconduct or incompetency on petition of one or more creditors, after notice of not less than five days to the assignor, assignee and surety, and snch other persons as the judge may prescribe. There was no provision whatever in the pre- 4 INSOLVENT ASSIGNMEOTS. vious acts under which an assignee could here- moved. In case an assignee may die after the filing of his bond but before any proceedings may have been had thereunder, the surety on his bond may apply to the county jud^e for an accounting, and he may, on such terms as to him seem just and proper, appoint another assignee and release such surety; The assignee has a right to apply at any time after the assignment for his own accounting, and he may apply to the county judge for leave to compound any claim or debt belonging to the estate of the debtor. Citation. — A citation may issue at the instance of an assignor, assignee, creditor, or surety : upon the appli- cation of the assignee at any time after the assign*:' ment J in the other cases at any time after the lapse of one year. A citation at the instance of a creditor need be served on the assignee alone ; but a general citation ■ must be served on all parties interested, including assignor, assignee and surety, except that if the time limited by due advertisement for the presentation of ' claims has expired, then those creditors who have ' not presented their claims need not be served. The INSOLVENT ASSIGNMENTS. 5 County Court must issue all citations which must he returnable in court. The citation may be served either personally or by publication. To obtain an order for publication it must be made to appear to the county judge that the creditors who have proved thpir claims exceed twenty-five in number. If served personally without the United States, it must be done at least forty days before the return day. If within the United States, but without the State, at least thirty days before the return day. If within the State but without the county, or adjoining county, at least fifteen days before the re- turn thereof. If within the county or adjoining county, at least eight days before the return day. To obtain an order for publication as to a non- resident or one who is unknown or whose residence cannot be found within the State, the county judge must be satisfied by affidavit or verified petition that the person to be served is unknown, or that his res- idence cannot, after diligent inquiry, be ascertained,; or that he cannot, after due dUigence, be found within the State, and a copy of the citation must be .6 INSOLVENT ASSIGNMENTS. mailed to his last known place of residence, with the postage paid thereon, at least thirty days before the return day thereof. Personal service on one of two or more co-partners or otherwise as joint creditors shall be equivalent to service on all, and voluntary appearance either in person or by counsel shall be equivalent to personal service. On the return day any person who claims an inter- est in the estate may present his claim, although ndt served with the citation. The manner of serving the citation is specifically mapped out in the present act. Accounting. — The proceedings under the account- ing are very little different from those under the acts amended. The powers of the referee are distinctly defined; he can examine the parties and "witnesses on oath in relation to the assignment and accounting and all matters connected therewith and can compel their attendance for that purpose and their answers to questions and the production of books and papers. Power is also given under this act to the county court, to discharge the assignee and authorize him to release the assets to the assignor, on proof of a com- position between the assignor and his creditors, and INSOLVENT ASSIGNMENTS. 7 in case all the creditors do not join in the composi- tion, to determine what proportionate share of the fund shall be paid to or reserved for such creditors as do not assent, and decree distribution accordingly. New Yoek.— In the city and county of New York all papers other than the assignment which are re- quired to be filed or recorded shall be so filed or re- corded in the clerk's office of the Court of Common Pleas, and any judge of said court may exercise aU the powers of a county judge for said county for the purposes of this act and the acts amended. , The County Judge. The county judge in the first instance fixes the amount of the bond to be given by the assignee when the schedules are filed by the assignor, and in case the assignor fails to present the schedules within the re- quired time, then the county judge may, upon the japplication of the assignee, by verified petition, order a provisional bond upon the filing of which the assignee shall have all the powers which have been conferred upon him by virtue of the assignment. He also has the power to authorize the assignee to advertise for creditors to present their claims wi^ the vouchers therefor duly verified. He can also remove or discharge the assignee fqr incompetency or misconduct, and appoint another in 8 INSOLVENT ASSIGNMENTS. his place, and enforce obedience to his orders in tho premises by attachment, and make provision for tho safe custody of the assigned property pending any such proceeding, and enjoin the assignee from inter- fering with the same. He may also require further security to be given by the assignee either on his own motion or on the application of any party in interest whenever in hijs judgment the security afforded by the bond on file is not adequate. His power over both the assignee and the trust estate commences as soon as the assignment is made, and a failure to file the bond within the specified time wiU not deprive him of this power. He can also authorize any party in interest to prosecute the bond of the assignee, issue citations for an accounting, direct service to be made by publication, take and state the account or order a reference therein, discharge the assignor and his surety, punish as for a contempt any disobedience of his orders, order an examination of witnesses and production of books and papers or extracts therefroni at any time, authorize the assignor to compoimd any claim or debt, and may exercise the powers of a court of equity in reference to the trust and any matters involved therein. THE BOND. Before any positive right is vested in the assignee by virtue of the assignment whereby he may con- vert the property assigned, and execute the terms of his trust, he must file his bond in accordance with the stettute. The time within which this must be done is hmited to thirty days after the date of the assignment. If the assignor take the limit allowed him for filing his schedule or iaventory — twenty days — then the bond must be filed within the ten days thereafter ; but should the assignor faU to file his schedule or in- ventory within the twenty days, then a provisional bond may be filed within ten days thereafter upon application of the assignee by petition ; which will take the place of the schedules until they shall have been filed. The application on the part of the assignee for leave to file a provisional bond under section 5 should be made by a verified petition setting forth the date of 10 INSOLVENT ASSIGNMENTS. the assignment, the failure of the assignor to present the schedules, the nature of the property assigned, aad the estimated value of the same, upon which presen- tation the county judge is authorized to order a provisional bond to be filed. Upon obtaining this order, which should be applied for as soon as possible after the twenty days have elapsed, the assignee is then vested with full powers in the premises, and he should at once prepare the schedules. By application to the court he can ob- tain sixty-days' time in which to file-the same. For the purpose of enabling him to prepare such schedules, the assignee can obtain an order from the county judge to examine the assignor or any person who may possess any information necessary to enable him to prepare the same. The provisional bond is approved and filed as a provisional bond, and the assignee should regard it as a part of his duty to have this provisional bond pre- sented to the judge when his schedule is finally presented. It is better, of course, to present it to the judge who originally ordered it, but this is not absolutely requisite. INSOLVENT ASSIGNMENTS. 11 The amount of the bond required to be furnished by the assignee is ordered by the judge upon thfe presentation to him of the schedule or inventory, ex- cept as above stated, and is usually in a sum somewhat in excess of the actual value of the assets as the same are sworn to. The schedule upon being presented to the clerk is by him examined, to see that the clerical part is correct, and a kind of digest of the same k by him entered in a hook kept for that purpose, which sets forth the date of the assignment and the date of the recording thereof ; then the names of the assignor or assignors, and the names of the assignee or as- signees; the total amount of debts and liabilities — the nominal value of the assets and their actual value ,; and upon the facts and figures thus represented to him, the judge orders the penalty in which the bond must be made. In addition to the usual affidavit which is annexed to the printed set of blanks prepared for such proceedings, the judges of the Court of Common Pleas require a further one, as will be seen by the following. RULE XX. Every bond required to be given by an assignee, under the act of April 13, 1860, respecting voluntary ussignments for the benefit of creditors, must specify 12 INSOLVENT ASSIGNMENTS. the place of residence of each surety named therein at the time of presenting it for approval; it must be accompanied by an afl&davit showing the nominal value, and also the actual value, of the property as- signed ; and no bond will be hereafter approved until these requirements are complied with. No bond will be approved until the schedules of assets and liabili- ties shall have been filed, unless satisfactory proof, by affidavit, be produced, showing the reason of not filing the same. And where the discrepancy between the nominal and actual value of the assets is very large, a very full affidavit is required under this rule, setting forth clearly the reasons for such difference. Should a portion of the assigned property consist of real estate which may be heavily mortgaged, then the dates of the mortgages should be given with each amount. If it consist of debts considered bad or doubtful, the affidavit should show when the same were con- tracted, and if known, the condition or standing of the debtors, also any attempts made on the part of the assignor to collect the same. If it consist of stocks or securities of any kind, then their market value, if they have any, should be stated. With regard to the value of the merchandise INSOLVENT ASSIGNMENTS; 13 assigned, the assignor himself is supposed to be the) best judge when he verifies the schedule, but should the schedule be verified by the assignee, then if he be not familiar with the value of the property as- signed, he should obtain the affidavit of an expert as to its present market value, to attach to his own papers. The form of the bond required will be found in the appendix. The sureties must be residents of this State, and at,, least one of them, where they both justify in double •, the amount of the bond required, should be a free- holder. Where the amount of the bond is large, there may be several sureties on it, who can justify in proportionate parts, so that the sum total of the , several justifications shall amount to double the amount of the required security. Where the amount is small, it is usual to have two sureties, one of whom may be a householder, but one of whom should be a freeholder, who will have to , justify in double the amount of the penalty. Great , 'jare should be taken in preparing these bonds, and where there is more than two sureties, or where it > , may be necessary to interline the printed forms, it , , is much better to pngxoss the bond, for every erasure, 14 INSOLVENT ASSIGNMENTS. interlineation or re-writing is required to be noted, the same as in a deed, and althougli it may give a little more trouble, yet it will present a much clean- er record for the files of the court, and one more in conformity with the following rule : " More honored in the breach than in the observance." EULE XXI. No bond or undertaking will be allowed to be filed by the clerk of this court in his office, unless the same be legibly written, and all interlineations or erasures therein duly noted as having been made before the execution thereof. The judge having satisfied himself that the bond is drawn up in conformity with the statute, and is suffi- cient as to the surety, approves of it as to the form and sufficiency of the sureties, and it is filed with the clerk of the county were the assignment is recorded except that in the county of New York the same practice applies to the filing of the bond as to the fil- ing of the schedule ; it is filed with the clerk of the Court of Common Pleas. The same practice holds when the assignee files the schedule. This affidavit takes for the time being the place of the schedule, in lieu of which it is filed ; and it must contf.in r.s full a statement of all the circumstances INSOLVENT ASSIGNMENTS. 15 connected with both the assignment and the trust, created thereby as it is possible for the assignee to make ; but the schedule should be filed -within the; thirty days after the date of the assignment, except, when filed by the assignee, who has sixty days' time to file it in upon marking proper application to the court. This provision is made to cover cases arising under the amended section which gives to the assig;Hee, under certain circuriistances, the right to file the schedule. The assignee having filed his bond is then vested with full powers under the trust. And the next most important fact to be known, with regard to this bond, is the manner in which the sureties therein can be held liable. By the original section (§ 5, chap. 348, laws of I860'), the county judge or court could order the district attorney of the county to prosecute any such bond upon an omission or refusal of such assignee or assignees " to perform any decree or order made against him, her or them by a judge or court having jurisdiction to compel the payment of any debt out of such trust fund. " It would seem, therefore, that the only misconduct on the part of an assignee, which renders his bonds- men liable, is the disobedience of an order or decree 16 INSOLVENT ASSIGNMENTS. compelling the payment of money, and it requires that the moneys collected by virtue of such action shall be applied towards the payment of the amount originally ordered to be paid. The amendment to this section, passed in 1873, only provides how this bond is to be prosecuted in case an assignee shall have been removed and a trus- tee appointed in his place ; then such trustee or ap- pointee shall have power to prosecute the bond of the previous assignee, in the name of the people, and make the same application of the moneys collected as in the former case, by the district attorney. For any other misconduct on the part of ah assignee which affects prejudicially the rights of a creditor, such as misappropriation of the funds, wilful neglect of his duties, or, in short, any act on his part which may in any way be deleterious to the creditor, he has his right of action for removal, and the bondsmen are liable for any loss which may have arisen thereby ; and although there is no provision in the statute authorizing a suit to be brought by the district attor- ney for such misdeeds, or for the substituted trustee to bring the same himself, yet where an evil exists there must always be some remedy in law as well as in nature ; and the party aggrieved would have the INSOLVENT ASSIGNMENTS. 17 same right to enforce his rights, as against the bond of the assignee, as he would in an action against the bond of a receiver or committee. Any action brought upon an assignee's bond may be prosecuted by any party in interest by leave of this court. The application should be made by the affidavit of the petitioner, which should fully set forth the assign- ment, the qualifying of the assignee, and the disobe- dience of the order complained of, reciting the mandatory portion of the order, and establishing the refusal of compliance therewith ; and upon such petition an order may be entered ex parte directing the party in interest who makes the application to prosecute the same. This seems to be the intent of the statute, taken and construed strictly, although the better practice would be to obtain an order on the assignee to show cause why such an order should not be entered, inasmuch as the cause, shown by the assignee, might be satisfactory to the judge, whilst it was not so to the creditor, who had demanded a compliance with the terms of the order hitherto granted, and for a non-compliance with which the application was made ; as for example, if the assignee bad been served with such order or process issuing 2 18 INSOLVENT ASSIGNMENTS. out of the U. S. Court in bankruptcy proceedings, which compelled him to deliver to an assignee, ap- pointed by virtue of such bankruptcy proceedings against the insolvent, whose assignee he was, all prop- erty in his hands of whatever name or nattu-e the same might be, a compliance with that order would certainly prevent his compliance with the order ob- tained in the county court of the State. The practice under the amendment is the same, except that there the substitiTted trustee makes the application and not a creditor, and his petition, in addition to that made by the creditor, should also show his appointment as trustee, and also his. com- pliance with the requirements of the order appointing him. The county judge may, upon his own motion or on the application of any one interested in the es- tate require farther security to be given at any time when it is made to appear that the security afforded by the bond as filed is not adequate. Such notice as the county judge may direct must be given to the assignor, assignee and surety. The refusal of an assignee to give a bond does not render the assignment void, but it would justify the removal of the assignee. Barbour v. Everson, 16 Abb. Pr. K. 366. INSOLVENT ASSIGNMENTS. 19 A defect in' the bond does not render the assign- ment void. Read v. Worthington, 9 Barb. 617. Only one bond will be accepted, altbougli there may be two or more assignees. In re Oscar J). Dike, Sp. Term, Rockland Co., Nov. 9, 18T5. SUFFEKN, J. The bond must be filed in the office oE the clerk of of the county where the assignment was recorded. Sec. 5, Chap. 466, Laws of 1877. The bond must be made to the people ci the State. Id. In New York county the bond is filed in the clerk's office of the Court of Common Pleas. See 24, Chap. 466, Laws of 1877. The bond will be prosecuted by anjr party in interest by leave of the court. Sec. 9, Chap. 466,. Laws of 1877. The bond must be filed within thirty days after the date of the assignment. Sec. 5, Chap. 466, Laws of 1877. 20 INSOLVENT ASSIGNMENTS. The approval of the bond by a special county judge is sufficient. Thrusher v. Bentley, Abb. N. C. vol. I. 39. A failure to file the bond will not deprive the county judge of his power over the assignee or the trust estate. Sec. 8, Chap. 466, Laws of 1877. Although no bond be filed the fact 6f making an assignment places the property assigned out of the control of the assignor. Syracuse, ^c. R. R. Co. v. Colling, 1 Abb. N. C. p. 60. , The Commission to file a bond does not render an assignment void. TO |i: •■ '.. . ■ J,,; rArMsAer V. jBejif/ey, 59 N. Y. 648, but see ; :; Hedges v. Bungay, 3 Hun, 594. The sureties on the bond of an assignee are not liable for the failure of their principal to account for , the assets in his hands as required by a judgment in favor of creditors declaring the assignment void as t6 them and directing the assignee to pay over the assets and the avails thereof in his hands to be applied in satisfaction of their claims. People V. Chalmers, 60 N. Y. 154. THE ASSIGNEE. The assent of the assignee, subscribed and acknowl- edged by him shall appear in writing embraced in or at the end of or indorsed upon the assignment before the same is recorded, and if separate from the assign- ment shall be duly acknowledged. The same rule apphes to this acknowledgment as to that of the assignor, the person before whom the . same is taken must have some personal knowledge . of the assignee, or in case he has not, then he must take some evidence as to the identity of such assignee. The most important thing for him to do is to pre- sent to the county judge a properly executed bond, before he undertakes to do anything with regard to 22 INSOLVENT" ASSIGNMENTS. converting the property of the insolvent, which bond must be filed within thirty days after the date of the assignment. It has been held that collecting the choses in action is not a conversion (post). But the bond should be filed before anything is done ; except as hereinafter stated. Under the head of " Bond," will be found a statement of all the necessary requirements. Upon the presentation of the schedule to the county judge by the assignor, the amount of the bond required from the assignee is fixed, and tlie preparation and presentation of the bond devolves upon him. In many cases the bond is prepared simultaneously with the schedule — ^both being presented at the same time. This is not a very safe practice, for it very often happens that the judge to whom the schedule is pre- sented has a very different opinion, with regard to the amount of security requisite under the circum- stances, from that held by the assignor or assignee, or their respective counsel, and the result is that a neyjr bond has to be prepared. It is much better to do one thing at a time, and rest satisfied with presenting INSOLVENT ASSIGNMENTS. 23 : a carefully prepared schedule which should contain at the end thereof a recapitulation in this form : Recapitulation. Total debt and liabilities - - - - ^ Total nominal assets | Total actual assets --.---$ It is sufficient, in this'connection, to say, that pre- vious to the filing of his bond the assignee is vested with only an inchoate right, which becomes absolute under the provisions of the assignment, by the fihng of his bond properly approved. His title, neverthe- less, dates from the time of the assignment, the bond being simply in the nature of farther security, which the statute gives to the creditors of the insolvent, and which the judge fixes in such a sum as to insure a faithful performance of the duties devolving upon the -assignee by virtue of the trust estate confided to h|s care. Uader the provisions of section 3, of the a:t, the assignee has, under certain circumstances, the right to file the schedule. When the assignor omits or neglects to file his schedule, the assignee may file tl^e «ame at aajy time within sixty days from the date of 24 INSOLVENT ASSIGNMENTS. the assignment, upon application to the court show- ing sufficient cause therefor. The assignee should, immediately upon entering upon his duties, prepare a full and complete inven- tory of all the property of the insolvent that comes into his possession, irrespective of the schedule or inventory filed in accordance with the requirements o£ the statutes. He should also commence a regular book account with reference to the property, opening the same by a debit of the amount found by his own inven- tory, and crediting each and every expense, no mat- ter how small the same may be ; which book or books, as the case may be, should always be free of access t« any creditor of the insolvent who may desire to investigate the same. The assignee in these proceedings, unlike the as- signee in bankruptcy, being the choice of the assign- or, there is greater reason why all of his proceedings should be at all times open to the inspection of the creditors. The policy of the bankrupt act is to give to the creditors of a bankrupt the free, deliberate, unbiased choice in the first instance of the person who is to take the assets and manage them. INSOLVENT ASSIGNMENTS. 25 In re J. 0. Smith, 1 B. R. 25. But under the insolvent act a different policy holds, for here the creditors have no voice whatever in the choice of the assignee, and as a general rule have no knowledge of the assignment until notified by the assignee that such is the case. It would seem that, as far as it is practicable under this statute, the same rules should govern the assignee of the insolvent as the assignee chosen in bankruptcy proceedings. Indeed, more care should be evinced with regaled to the rights of the creditor. It would therefore seem advisable, when there is a cash balance in any bank to the credit of the insol- vent, that the same should be taken therefrom and deposited in some security bank, whereby the same may be increased for the benefit of the creditors, pending the settlement of the trust fimd. This can be done without any application to the county judge for an order, as, by the terms of the as- signment, the assignee is vested with absolute control ever the trust estate. Having prepared the inventory of assets, and also made a schedule of liabilities, the assignee should -26 INSOLVENT. ASSIGNMENTS. notify all the creditors of the insolvent to attend a meeting on a given day ; at which meeting he should be prepared to show a clear and succinct statement of the financial condition of the insolvent, and express his readiness to adopt any suggestion that the cred- itor may advance with reference to the most feasible plan of satisfying their demands in accordance with the terms of the assignment. This he can do before filing his bond, although it is a much better practice to comply with all the requirements of the statute before entering upon any of the duties of his trugt, save the preparing of his inventory as aforesaid. If the creditors be satisfied with the statement as pre- sented, and accept a suggestion on the part of the assignor for a compromise of their respective claims, then the assignee should see that a proper compo- sition deed is prepared, which should be signed by all of the creditors whose names appear on the books of the insolvent, or on the schedule filed. After which, and upon compliance with the terms of the same, a general release should be drawn up and signed by the same creditors in the presence of a witness, who should acknowledge the same. The assignee is then entitled to make application by petiti( n to be relieved of his trust, and to have his bondsmen also r^lie^'ed. INSOLVENT ASSIGNMENTS. 27 in so far as respects the claims of any of tlie creditors whose names appear on said general re- 'lease and should there be any creditors who do not join in the compromise settlement the county judge can order an accounting, and decree what proportion of the trust fund, shall be paid to those not asseni^ ing, and decree distribution accordingly, provided however, that the share so decreed or awarded to those not joining in the compromise settlement shall not be less than they would have been entitled to, had there been an equal pro rata distribution of the insolvent's estate made without any settlement. The assignee as well as his surety will be entitled to a release upon complying with such decree. Upon presenting his petition he should furnish a certified copy of the assignment. Also a copy of the schedule, properly certified, unless the same be very cumbersome, in which case he may refer to the same in his petition, giving the date and place of its filing and requesting that the same may be considered hy the judge to whom he makes his application — the composition deed — ^the general release acknowledged by subscribing witness — the affidavit of the assignor, as to the fact that the names signed to the general release are the names of all the creditors. And hia 28 INSOLVENT ASSIGNMENTS. own affidavit as far as he can with' rega,rd to the facts upon information and belief. Upon the presentation of his petition so certij&ed the jtidge before whom the application is made wiU enter an order relieving the assignee of his trust, in so far as the same might be affected by the claims of any of the creditors whose names appear on the general re- lease, and also releasing his bondsmen pro tanto. In re WilzinsTcy. Order entered Jan. 31, 1876, by Hon. •Joseph F. Daly, sitting as County Judge in the Court of Common Pleas. But see In re Leach, N. Y. C. Pleas, Spec. T., June 27, 1878. In this case, in addition to the requirements set forth, the attorney for the assignee also obtained a consent of the creditors who had signed the general release to the entry of such an order, although this is a proper precautionary step, yet it does not seem to be absolutely necessary. And in some cases it might entail a needless amount of labor unless the consent were signed simultaneously with the general release. If no compromise settlement be agreed upon, and no composition deed prepared, then it becomes the duty of the assignee to proceed at once upon the INSOLVENT ASSIGNMENTS. 29 fulfilment of his duties, and execute his trusl in compliance with the terms of the assignment. Of course, as said above, the first pre-requisite to vesting any absolute power or control in the assignee, is the fihng of his bond, duly approved. (See Bond.] It is advisable in this case, for the assignee to se- lect from the creditors, two or three whose claims are , the largest, and consult with them as a kind of advis- ory council, as to the best means for carrying out the execution of the trust, so that it may inure to the gi-eater benefit of' all the creditors. The necessity of this. suggestion will be apparent at a moment's glance, for whatever may have been the motives of the assignor in making his selection of an assignee, such a step on the part of the assignee, ' will at once commend itself to the creditors, and they will be more inclined to place confidence in the hon- < esty of purpose of the assignee, than under other ' circumstances they would be justified in doing. Furthermore, this appears in consonance with the spirit and letter of the law in the bankrupt act, and ' since it has been held in numerous cases, that these^ assignments are in contravention of the spirit and policy of the bankruptcy act, even when made in 30 I]?fSOLVEXT ASSIGX.MEXTS. good faitH, there seems to be a stronger reason why such a course should be pursued. Having done this he should then proceed to real- ize on the assets of the insolvent, with all the dis- patch possible, consistent alike with the interests and rights of both assignor and creditors respectively. It must be borne in mind, however, that these are merely suggestions, which are given as such, and to save carping critics asking for the authority for the same it will only be necessary to say that there is no law for anything of the kind, but on the contrary, even though the assignee should be prudent enough to follow out the most careful suggestions that can be made, yet still he must expect to find some one who will not be satisfied, and it will then be necessary for him to prove to the satisfaction of the court that all that he has done has; been for the pecuniary bene- fit of the creditors of the insolvent. Indeed it has been held that it is the duty of the assignee to dispose of the property at once, and not errtail any expense on the estate by^ carrying on the business. Under ordinary circumstances this is undoubtedly true, but that cases may arise when a prudent hus- banding of the resources of the insolvent would be INSOLVENT ASSIGNMENTS. al of pecuniary benefit to the creditors is equally true, and it is under just such a case as this that a prudent assignee will dare to exercise a sound discretion. Of course the assignee is vested with full powers to dis- pose of the assigned property either at public or private sale by the terms of the assignment, and what- ever disposition he sees fit to make is one for which he and his surety are liable. He certainly should not entail any unnecessary expense upon the estate, in- deed the necessary expenses should be. reduced to such as are indispensably needed, and should be of such a nature that when the final accounting of the assignee is presented, their necessity wiU be apparent, as the assignee should always bear in mind that his paramount duty is to those who will in any event realize only a proportion of their just claims, and every expense entailed proportionally decreases such dividend. Legal proceedings should be avoided, as far as possible, and to prevent in a measure such, the assignee is now authorized to apply to the court for leave to compound any claims of the assignees, but such order if obtained will not relieve the assignee from the responsibility incurred by the compounding, for it is still the province of any creditor upon the final accounting to attack any such proceeding audi 32 INSOLVENT ASSIGNMFNTS. if good cause be shown the assignee will be held liable. He can dispose of the property either at public or private sale, as he may be advised, or deem best under the circumstances, keeping a careful account of each sale with its consequent expense. He can and should declare dividends whenever there is a sufficient amount of cash in hands to war- rant such, taking from each creditor to whom he pays such dividend a competent receipt for the same, which receipts should be consecutively labelled and num- bered, and correspondingly numbered on his books of account, so that on his final accounting the regularity and order of the vouchers will aid and assist the referee in taking and stating the account. He should require all claims to be presented to him, and compare the same with the book accounts as presented upon the ledger of the insolvent. The statute authorizes the assignee to advertise for these claims, and it establishes the manner of so doing. Upon a petition setting forth the facts of the as- signment, and the proceedings had therein, and also the residence of the creditors, the judge to whom the same is presented will enter an order directing INSOLVENT ASSIGNMENTS. 33 the advertisement, and naming the newspapers in which the same shall be published, and the leng*^li of tiine therefor. The necessity for stating the residence of the credito'r, is made apparent by Section 4, for it is there provided, that if the assignee have reason to believe that any creditors entitled to share in this distribution, reside out of the State, then this advertisement must be published once in each week for six successive weeks in the official newspaper of the State. The advertisement must require the creditors to present their claims with the vouchers, duly verified on or before a day to be specified in such notice, not less than thirty days from the date of the last publi- cation ; and the assignee will be protected against any claim or demand not presented in compliance with such demand before the accounting is had by the order entered therein. The assignee may, if he deem it proper, require patisfactory vouchers for any claim presented to him against the estate of the insolvent, and has the same rights in the premises with regard to disputing the validity of any such as would the assignor had he not made an assignment. The assignee has also a right to demand and receive 3 34 INSOLVENT ASSIGNMENTS. from any and all persons holding the same, any property included in the list of assets intended to be assigned under this act. Where any creditor holds in his possession naore than a sufficient amount of collateral to satisfy his claim, and for which the collateral was given, the rest and residue thereof belongs to the assignee, although the same creditor may have other and further claims. The act limits the time after which any person in- terested in the trust estate can call the assignee to account to twelve months, which, under ordinary circumstances, would be deemed to be a sufficient length of time within which to have settled the estate. But should such application be made and an order served on the assignee to render his account or show cause why, and should the assignee not be pre- pared to render his final account, he should produce to the county judge a statement of what has been done in the premises, and at the same time also state what reasons, if any, he has why he is not prepared to make the same, and it is then in the discretion of the judge as to what order he shall enter in the premises. Usually an adjournment is had, and if necessary, sub- sequent adjournments thereto, until the assignee may be prepared to make his final account. When he is ready to account, in pursuance of the INSOLVENT ASSIGNMENTS. 35 order as entered upon the application of only one, or a portion of the creditors, the assignee has the right to, and should present his own petition, setting forth the assignment and all the subsequent acts thereto down to and including the order to account served upon him, and also stating his readiness and desire tv render his final account, and praying for a citation to issue to all persons interested in the estate, requir- ing them to personally be and appear before the judge upon a day named in the said citation, to attend the final settlement of his said accounts. This is a very proper and necessary step on the part of the assignee, for, as under the act, any person interested in the estate may make this application to the county judge and obtain the order for final accounting, and is likewise entitled to obtain from the judge an order decreeing a payment of his just pro- portional share out of the estate in question, it will be readily seen that should each individual creditor see fit to make these applications separately, and not at the same time, the expense consequent upon tak- ing and stating the accounts in this manner would interfere greatly with the rights of the creditors in getting a fair proportion of their respective claims. The assignee should, therefore, regard it as his. 36 INSOLVENT ASSIGNMENTS. duty, in furtherance of the provisions of the trust created by the assignment, whereby he is required to administer the same in the interests of the creditors, always, when he is required by an individual creditor to account, to present his own petition, and thereby have one accounting, one reference and one expense. The assignee, may upon his own application, have an accounting at any time after the date of the as- signment. The citation issued at his instance must be served on all persons interested in the estate, ex- cept that if the time for the presentation of claims has expired then notice need not be served on those to whom a copy of such notice has been mailed with the postage prepaid or personally served, who have not presented their claims. The final order entered upon the accounting is binding upon all creditors, upon due proof of a ser- vice of a citation on them, whether they have appear- ed or not. The order should also provide for a re- lease of the sureties on the bond given by the assignee, in so far as they might otherwise have been held re- sponsible by any of the creditors or parties interested, who have appeared upon this final accounting, or upon whom the citation has been served, whereof there may be due proof. INSOLVENT ASSIGNMENTS. 37 As we have seen above that such acts as these have been declared to be in contravention of the spirit and policy of the bankrupt act, it must, therefore, be evident that much depends upon the conduct of the assignee in these proceedings. He should, then, be very careful in all his acts, possess himself of the in- solvent's property at once. Where a portion of such property consists of real estate in the city and county of New York, it has been held Simon V. Kalislce, 6 Abb. Pr. N. S. 225, that it is necessary to have a regular record, convey- ing the property, filed in the office of the register of the city and county of New York. Should it consist of real estate, situated elsewhere, then he should cause to be filed in such places a cer- tified copy of the assignment. This should be filed, not for the purpose of vesting any title in the assignee, for his title is absolute for the purposes of the trust by virtue of the assignment ; but the object is that any purchaser at an assignee's sale might have recourse to this certified document as a necessary link in his claim to the title thereof, in any action which he or others claiming under him may see fit to bring. This would seem to be a necessary act on S8 INSOLVENT ASSIGNMENTS. the part of the assignee for the safety of the purchaser. The final accoimting is perhaps the most impor- tant part of his trust, as far as the assignee is con- cerned. Should a reference be ordered to take and state bis account, the assignee should be prepared with a clear and succinct account of every transaction in con- nection with his trust, having proper vouchers for all his expenditures, if possible ; and . as to those under twenty dollars, for which he may not have a voucher, he should be prepared to make such a statement as would ordinarily satisfy the most captious person interested in the estate ; for he mu.st expect to meet such. Should he have advertised for creditors — a very precautionary step — he should see that the proofs of the same as well as the maihng or personal service thereof are produced before the referee, and by him submitted to the judge with his report. The assignee, or his coimsel, should also see that a suitable provision is made in the order, finally en- tered on the report of the referee, reheving the bond of the assignee. The bond cannot be taken off the files of the court, but the order should provide that INSOLVENT ASSIGNMENTS. 39 the bondsmen be relieved from any farther liabilitj whatever, on account of the faithful performance ai his duties by the assignee. (See forms.) As to the requisites for an assignee. Any one can be chosen as an assignee, whether he be a creditor or not, unless he may be legally or physically incapa- citated. The creditors need not be consulted about his selection, indeed they seldom ever know anything of the fact until the assignment is recorded in the county clerk's office, thereby becoming the informa- tion of the public. There may be two or more assignees, in which case they wiU all be responsible, equally for the proper execution of the trust, even though one neglects t& attend to the duties and ceases to act, provided he ac- cepted the trust originally. In case where there are several assignees, the ques»- tion has arisen whether the judge should accept and approve one bond which has been jointly signed with two sureties, or take several bonds from each as- signee. Judge Stiffem, of EocMand, refused to accept ime- bonds (Nov. 9, 1875), holding that the language ol 40 insolve:nt assignments. the statute only anticipated one bond, the words being " which bond shall be filed." Should this become the settled practice, it may be productive of considerable annoyance. Suppose that two parties should each select his own assignee, and that the assignment should be made to them jointly, and that these two assignees were perfect strangers to each other, and that the sureties for one would not, under the circumstances, be willing to make themselves responsible for the acts of the other, how would this decision affect them ? As we have seen above, both of the assignees are equally liable after the acceptance of the trust, whether they act or not. The assignee accepts the property subject to all liens upon the same, having no farther rights than the assignor had at the time the assignment was made, and having no better right of action than did his assignor ; nor is the assignee such a bona fide holder as to cut off an equitable set-off. Although it has been said above that it would seem necessary to file a bill in order to remove an assignee, still the practice has been established, where there has been no opposition offered on the part of the assignee, to grant an order for his removal, upon a INSOLVENT ASSIGNMENTS. 41 petition filed by one of the creditors at the instance of a majority. In the matter of the application of S. Kinstler, a creditor, for an order removing S. C. Snebly, etc. Court of Common Pleas, Feb. 11, 1876. Under the following provisions of the Kevised Stat- utes, it would seem that this practice could be pursued at any time before a judge of the Supreme Court : Sec. 88. Upon the petition of any trustee, the Supreme Court may accept his resignation, and dis- charge him from the trust under such regulations as shall be established by the court for that purpose, and upon such terms as the rights and interests of the persons interested in the execution of the trust may require. ; > Sec. 89. Upon the petition or bill of any person interested in the execution of a trust, and under such regulations as for that purpose shall be established, the Supreme Court may remove any trustee who shall have violated, or threatened to violate, his trust, or who shall be insolvent, or whose insolvency shall be apprehended, or who for any other cause shall be deemed an unsuitable person to execute the trusti ■, Sec. 90. The Supreme Court shall have full povy;ei' 42 INSOLVENT ASSIGNMENTS. to appoint a new trustee in place of a trustee re- signed or removed, and when, in consequence of such resignation or removal, there shall be no acting trus- tee, the court, in its discretion, may appoint new trustees, or cause the trust to be executed by one of its officers under its direction. 3d vol. Rev. Stat. 5tli ed. p. 22. In the matter of the application of Ebenezer S. Balch, et al., Sup. Ct. 1st dist. Feb. 21, 1876. In this case Judge Lawrence granted the order upon the application of a creditor consented to by the assignee Balch. By Section 6, it is provided that an assignee may be removed upon the petition of one or more of the creditors, showing misconduct or incompetency on the part of the assignee. A notice of not less than five days must be given to the assignor, assignee, surety and such other person as the judge may prescribe, returnable five days thereafter, which order may contain a temporary injunction restraining the assig- nee from in any manner interfering with the assigned estate until the hearing and determination of the order to show cause, and obedience to such order may be enforced by attachment. INSOLVENT ASSIGNMENTS. 43 The assignee may himself apply to be relieved, in whieh case he must notify the assignor, surety and such other person as the judge may prescrihe,. of such application, and upon showing sufficient reason therefor the county judge may appoint another in his place as assignee, and cancel and discharge the bond of such removed assignee. If the assignee be re- moved upon the application of one or more of the cre- ditors, his bond may be prosecuted in the name of such creditor or creditors after having obtained leave of the court. The application should be made by petition verified,, setting forth all the primary facts in the proceeding, and there clearly and succinctly alleging the miscon- duct or incompetency complained of or charged. The substituted assignee shall give such bond as the judge may require. The petition to be filed upon such an application other than by the assignee should clearly set forth : First — The facts of the assignment having been made, with the date of its recording. Second — The name of the assignee. Third— Th& interest the petitioner has in the assigned estate, and if he represents others in the application, either give their names, with his author- 44 INSOLVENT ASSIGNMENTS. ity to so make such application, or have a written consent signed by them attached thereto. Fourth — The grounds on which he bases his peti- tion. These should be stated very fully. Non-compli- ance with the requirements of this statute in respect of the filing of the bond by the assignee would be sufficient, as we have seen before. Insolvency on the part of the assignee would furnish a proper cause, as this statute implies. Willful neglect of his duties, a disregard of any order properly granted and served on him, or any act or omission on his part which would tend to injure the trust estate, if clearly set forth, would, it would seem, be a proper ground for such an application on the part of any creditor to have the assignee removed. Upon the presentation of such a petition, an order to show cause will be granted, requiring the assignee to appear on a certain day and show cause why he should not be removed. A copy of the petition and all the papers upon which the order is granted must be served on the assignee whose removal is sought. Upon the return day, if no cause be shown, then an order wiU be entered referring it to some referee to take and state the account of the assignee up to INSOLVENT ASSIGNMENTS. 45 date, and a provision should also be inserted in this order continuing the temporary injunction granted in the order to show cause restraining the assignee, his agents or attorneys, from in any manner interfering •with the trust estate until the further order of the court. Upon the coming in of the report of the referee, the usual order for a confirmation of the same will be entered, and a further order appointing a substituted trustee, to whom the assignee will be required to trans- fer all the property in his possession, upon such sub- stituted trustee complying with such provisions of the said order as requires the filing of a bond on his part. The assignee removed should see to it that a suit- able provision is made for the relieving of his bonds- men, provided he may have filed a bond. Should the referee report such conduct on the part of the assignee as would make his bondsmen liable, then the substituted trustee or the petitioner has a right under the statute to apply for leave to sue such assignee's bondsmen. ;■ The sureties upon an assignee's bond probably never fully appreciate to the full extent the liabihty they incur when they affix their signatures thereto and acknowledge the same. 46 INSOLVENT ASSIGNMENTS. The liability attaches as soon as the same is ap- proved of by the judge, and it never ceases, except in so far as the same might have been effected by any person interested in the said estate who has been properly and legally notified of the proceeding on the part of the assignee. From this then, it will be apparent that the sure- ties on a bond of an assignee have possibly a greater interest in the carrying out of the trust than any of the creditors of the same, and although technically speaking they cannot be said to have any interest in the estate, yet theirs is an interest exceeding in amount, in most cases, the actual value of the prop- erty thus assigned. Allusion is thus pointedly made to this fact by rea- son of the many cases which have come under th« author's supervision, on account of his official posi- tion, wherein too little attention has been paid by the sureties on the bond with regard to the liabilities which they have thereby incurred. A business man who, in the course of his business, finds it necessary to endorse certain notes, will un- doubtly deem it his duty to look after his own inter- ests to such an extent as to see that the maker of the said notes will be prepared to meet the same INSOLVENT ASSIGNMENTS. 47 when they become due. Why then should not the surety on an assignee's bond, whose liabihty is some- what similar, exercise some little discretion in looking after the acts of the assignee for whose faults his suretyship makes him liable ? The assignee must execute and file a bond before he shall have power to realize upon the trust estate. Sec. 5, Chap. 466, Laws of 1877. The assignee shall file this bond within thirty daya after the date of the assignment. Sec. 5, Chap. 466, Laws of 1877. The assignee must unite in the execution of the assignment. Sec 2, Chap. 466, Laws of 1877. By accepting the trust and taking possession of the property, he becomes bound to perform the trusts, as though he had entered into an express cov- enant. Cunningham v. Freeborn^ 11 Wend. 241. 48 INSOLVENT ASSIGNMENTS. Where two assignees were named, both of whcin accepted the trust, but one of whom subsequently ceased to act, and left the matter solely with his co-a,ssignee, held, that he was nevertheless liable to account as trustee. Bowman v. Rainstang, HofFin. 150. Moir V. Brown, 14 Barb. 39. An assignee has no higher rights in respect to enforcing choses in action transferred by the assign- ment than the assignor originally had. He is not a purchaser for a valuable consideration, but holds the same subject to the equities which existed against it at the time of the assignment. Curtiss V. Leatiit, 15 N. Y. 195. Van Heusen v. RadcUff, 17 id. 580. Griffin v. Marquardt, id. 28. Leger v. Bonaffe, 2 Barb. 475. Warren v. F&nn, 28 id. 333. Blisf V. Cottle, 32 id. 322. Reed v. Sands, 37 id. 185. Maas V. Goodman, 2 Hilt. 275. Schieffelin v. Hawkins, 1 Daly, 289. The refusal of an assignee to give a bond does not render the assignment void, but it would justify the .removal of the assignee. Barbour v. Emerson, 16 Abb. Pr. 366. 7 INSOLVENT ASSIGNMENTS. 49 Where the assignee received the deed but delayed^ accepting the trust, and while he still held the sub-' ject under consideration, the sheriff levied on the> property by virtue of executions placed in his hands,^ held, that the assignee's subsequent acceptance oP the trust could not deprive the executions of their' priority. Cnsley v. Hillier, 24 "Wend. 280. An attachment can not be sustained against the property of a judgment debtor upon an allegation of the removal of such property from his store by a third person claiming to be his assignee, merely because there is no assignment filed in the clerk's office, although a general charge of a fraudulent assignment by the debtor to cheat and defraud his creditors is sworn to. Dmzer v. Mundy, 6 Eobt. 636. This appears to be a special term decision, made by Robertson, Ch. J., in August, 1866, and there is no statement of the case, whatever, presented with this head note. Where a suit was brought by an assignee against a debtor for goods sold on time, and the defendants held a note of the assignor's, maturing before the 4 50 INSOLVENT ASSIGNMENTS. time of credit expired, held, that the assignee suc- ceeded only to the rights of the insolvent assignor, and that the note was a valid set-off against the demand in suit. .Maas V. Goodman, supra. A promissory note taken as a part of the assigned estate is subject to any equitable right of set-off existing at the time in favor of the party indebted upon the same and against the assignor. Chance v. Isaacs, 5 Paige, 592. The assignee of an insolvent vendor of goods takes such goods subject to an}^ right of stoppage in transit which may exist against his assignor. Harris v. Hart, 6 Duer, 606. Harris v. Pratt, 17 N. Y. 249. The amount of a partnership deposit with an insol- vent banker is a proper subject of a set-off in an action brought by the assignee on a note held by the banker, made by one of the partners and endorsed by the other for partnership purposes, although such note was not due at the time of the assignment. £!mith v. Feltim., 43 N. Y. 419. INSOLVENT ASSIGNMENTS. r^ An assignee is not a bona fide holder so as to cut off equitable set off. ^7nUh V. Felton, 43 N. Y. 419. Property in the hands af an assignee may be attached by creditors, if the assignor has not made the statutory acknowledgment to the assignment. Hardman v. JBowen, 39 N. Y. 196. . ; Until the assignee file his bond, he has no author- ity to sell, dispose of or convert to the purposes of the trust any of the assigned property. Collecting the choses in action is not a conversion. Thrasher v. Bentley, 2 Sup. Ct, (T. & C.) 309. Where there may be more than one assignee, only one bond will be approved, which must be executed jointly. In re Oscar D. Dike. Decision by Supfern, J., Rockland county, Nov. 9, 1875. A general assignee under an assignment which has been declared fraudulent and void, cannot retain the assigned property for the benefit of partnership creditors against an individual creditor of one of the partners. The rule that partnership property should be applied to the payment of partnership debts, in 62 INSOLVENT ASSIGNMENTS. preference to the individual debts of the partner, ia founded on the rights of the other partners, and not those of creditors; and if this were not so. Such assignee does not represent the creditors. Jaques v. Greenwood, 12 Abb. 232. Assignees are entitled to full indemnity against their expenditures. Even though the assignment is set aside as void, and their claim to have purchased the property for their own benefit is also declared void, they should be protected on their accounting, in so far as they acted intentionally for the benefit of the trust, in good faith and without negligence. Cottorn V. Morton, 5 Abb. N. 8. 308. It is not the duty of an assignee upon a final accounting of his trust, having knowledge of the claims of a creditor who does not appear, to produce and prove such claim before the referee appointed to take and state such account. Kerr v. Blodgett, 48 N. Y. 62. An assignee for the benefit of creditors can main- tain an action in his individual character to recover INSOLVENT ASSIGNMENTS. 53 a claim due the assignor ; he is not required to sue as trustee. Hoagland v. Tmsk, 48 N. Y. 686. An assignee who compromises debts for less than the whole sum due is entitled as against other cred- itors to be allowed only the amount actually paid. Ireland v. Potter, lb Abb. 218. The court has no power to direct an assignee, in the administration of the estate upon his petition. An authority to perform acts not authorized by the terms of the assignment must be obtained from a court of equity upon suit brought for that purpose. SMpmarCs Petition, 1, Abb. N. C. 406. See Anonymous v. G-elpeehe, 5 Hun, 245. An assignee should allow the creditors of an in- solvent reasonable opportunity to examine his books. Manning v. Stem, 1 Abb. N. C. 409. The assignee being undor injunction pending an application for his removal, it is propeir to appoint a receiver. Id. An assignee cannot be alloived for counsel fees and 54 INSOLVENT ASSIGNMENTS. disbursements in defending actions against the assign- or or in any litigation not involved in the perform- ance of duties required by the trust. Lerys Accounting^ 1 Abb. N. C. 177. See also as to the duty of an assignee to dispose of the property with due diligence. An assignee in bankruptcy does not acquire the right to possess the property of the bankrupt in the hands of a general assignee for the benefit of credit- ors, the general assignment containing no preferences and being made by the debtor in good faith prior to the filings of the petition in bankruptcy. Von Hein v. Elkins, 3 N. Y. W. Dig. 429. See also Haas V. aBrien, 1 Abb. N. C. 173, 9 N. Y. p. An assignee has no right to employ clerks to sell a stock of goods at retail in the usual course of business. Carman v. Kelly, 5, Hun, 283. See also Levy's Accounting, supra. It is in the discretion of the judge to refuse an ap- phcation by a single creditor to compel an assignee to account, and he will do so if adverse proceedings are pending in bankruptcy. Matter of Bowery Nat. Bank. 1 Abb. N. C. 404. rr THE ASSIGNOR, By the terms of section 2 of the Act of 1877, being chapter 466 of the Laws of that year, it i^ provided that any debtor may make an assignment. There is no limitation whatever to the term, and hence any person, whether engaged in commercial pursuits or practising a profession, may make an assignment. Partners are, of course, included under the term. There is no provision whatever in the statute which requires that the debtor shall be insolvent at the time of making this assignment, the supposition undoubtedly being that no sane man would place all of his property in the hands of a trustee, to be man- aged in the interests of his creditors, unless his con- dition was such that he deemed it impossible tp meet his liabilities as the same became due. For this reason, there is no necessity to go into Ou INSOLVENT ASSIGXM:SNTS. any inquiiy as to what constitutes insolvency. The subject is treated of in the following cases in this State with regard to assignments in general. H&rrick v. Borst, 4 Hill, 650. Ogden v. Peters, 15 Barb. 563. Ely V. Cook, 18 id. 612. Kellogg v. Slawson, 15 id. 56. The debtor, when he finds that the unsettled state of his business is such as to warrant him in believ- ing that his actual assets are not sufficient to meet his liabilities as they become due, is justified in immediately making an assignment whereby all of his creditors may be treated alike. In selecting an assignee, as this is a privilege which, under the State law, the debtor has, the assignor should have in mind, the interests of the creditors as well as his own, and name such a person as assignee in his assignment, as he is confident will perform the duties of the trust in such a mariner as to meet with the approbation of the creditors. The assignor should see that the assignment is properly acknowledged, as that is a necessary pre- requisite to vesting any title in the assignee by virtue of the assignment. (See Assignment.) Having signed and acknowledged the assignment, I JN SOLVENT ASSIGNMENTS. 57 he should next see that the assignee does the same, and then prepare his schedules or inventories. Under . this act the preparation of these schedules devolves no technical labor on the part of the assignor. Unlike the schedule of assets under the bankrupt act, which consists of six separate divisions, the schedule herein is a single one, but still it should be carefully drawn up. If the assignor be alone in business, he need file but the one schedule of assets and liabilities, but if there be partners, in addition to the partnership' schedule which should be verified by all the part- ners, there should also be individual schedules veri- fied by the partners separately, where they have other than partnership assets or liabilities The schedule of assets should contain a complete statement of all property both real and personal,' owned by the assignor, or in which he has any^ interest, all goods, chattels, merchandise, bills, bonds, notes, book accounts, claims, demands, choses in action, judgments, evidence of debt, in short, prop- erty of every name and nature whatsoever, where- ever the same may be situated. It should also con- tain a full and correct statement of all incumbrances or liens on the same. 58 INSOLVENT ASSIGNMENTS. If there be real estate which is mortgaged, then it is proper to give the date of the mortgage or mortgages, as the same may be, and also a statement as to whether the same are purchase-money mort- gages or not. The necessity of this will be evident when we remember that the amount of the bond to be given by the assignee is fixed by the judge to whom the application is made, upon the basis of the actual value of the assets, and if it were to appear that the real estate mentioned in the schedule as being mort- gaged, had been thijs mortgaged but a short time prior to the execution of the assignment, the judge, in fixing the amount of the bond, might not exer- cise that same discretion in taking into considera- tion the discrepancy existing between the nominal and actual assets as he would had the mortgage been a purchase-money one. All liens of any kind whatsoever upon any of the property should also be fully set forth. Should any bonds or stocks be held as collateral security by any creditor, then the amount of such bonds or stocks should be given, with the amount of claim for which they are pledged. All the debts due him should be stated. All his rights of action for property, real or personal, and INSOLVENT ASSIGNMENTS. 59 for any cause arising on contract or otherwise. All his rights of redeeming any property in which he has a vested right, but he should not include any property held in trust by him. The same care and accuracy should be observed in making this schedule of assets under the State law as is required in preparing the schedules under the bankrupt a»t ; for a short, concise and compre- hensive description of which the reader is referred to Bump's Law and Practice of Bankruptcy, 3d ed., pp. 8 to 14, inclusive, and p. 272. In stating the book accounts, where there are accounts outstanding deemed doubtful, or bad, or worthless, it is well and proper to give the reasons for such. Should they be debts of long standing, then give their dates. Should any of the debtors have become insolvent, then set forth that fact. In short, make every statement as full and complete as it is possible to do. The schedule of liabilities should be made with the same care. It should contain the name and residence of each creditor of the insolvent; also the amount of his claim, with the date at which it was contracted; the nature of the claim and any security held as collateral therefor. 60 INSOLVENT ASSIGNMENTS. It is not necessary that the assignor should compute the amount of interest due on any such claim, for with such a description as the one suggested above, this can be easily calculated at any stage of the pro- ceedings when the same may be deemed necessary. It is very important to give the residence of each creditor, if known ; and if not known, the assignor should show what means he has taken to discover the same, either on the schedule or by a separate affida- vit to be annexed thereto, and give his last known place of residence. This is necessary, because each creditor is en- titled to notice of every step taken by the assignee subsequent to the acceptance of the trusts by him wherein he is interested ; such as a meeting of the creditors, sale of property, declaration of a divi- dend, petition for accounting. And notice must be given to him either personally or by publication. As far as practicable, all notices should be served personallj'-, and hence the necessity for residences being given. The cause of the indebtedness should also be fully stated, whether founded on written security, obligation, contract or otherwise, as well as any existing lien for the payment of the same, in whatever shape the security may be, whether by mortgage, judgment, collateral or otherwise. INSOLVENT ASSIGNMENTS. 61 ■ The consideration of such indebtedness, in each case, should be also given, and the place where such indebtedness arose. Should the indebtedness be to a firm, then the firm name should be given, and not the individual members thereof. The schedules must then be verified by the assign- or or assignors, and, as in the case of the assignment, the same rule will hold, it must be made by all who join in the assignment. The af&davit should state that the schedules are in all respects just and true according to the best of such debtor or debtors' knowledge. The act of 1877 requires that the residence, occupation and place of business of the assignor and residence of the assignee should appear in the schedules. They may be incorporated in this affidavit by stat- ing the same immediately after the respective name& Having prepared this affidavit and attached it tj the schedule or inventory, the same must be filed in the same office where the assignment is recorded. As we have seen before, in the county of New York, this schedule is to be filed with the clerk of the Court of Common Pleas. The time within which this has to be done by the assignor, is twenty days after the date of the assign^ ment. 62 INSOLVENT ASSIGNMENTS. By Sec. 3, Sub. div. 5, Chap. 466, Laws of 1877, as amended by Chap. 318, Laws of 1878, the assignee is allowed, under certain circumstances, to file thia schedule, and the time is therein extended to sixty days from the date of the assignment. The affidavit attached to this schedule or inven- tory should be more complete than the printed blank in common use. Where the .schedules are large, it is not to be ex- pected that the judge to whom the same are present- ed will examine carefully the various items to dis- cover wherein the discrepancy exists between the sums placed as representing respectively the nominal value of the assets and their value. For this reason, it is requested that this affidavit required by the statute should, in cases where there is a considerable difference between these two state- ments, give a clear, short and concise account of the causes therefor. This affidavit must be verified by all the assignors, except under certain cases, as when one partner has power, by the surrender of his associate's interest, to dispose of the partnership property, in which case this one can execute and acknowledge an assignment and verify the schedule alone, or where there are certain provisions in the partnership agreement which INSOLVENT ASSIGNMENTS. 63 authorizes one partner so to do, or where one of the partners absconds, or if one has authority to execute in the firm name. (See Assignment.) This schedule should be prepared by the assignor, and not left to the assignee, as the debtor more than any one else, is the most competent person to prepare a full and true inventory. The assignor must sign and acknowledge the as- signment. Sec. 2, Chap. 466 Laws of 1877. Britton v. Lorenz, 3 Daly, 23. Fairchild v. Givynne, 16 Abb. 23. Cooh V. Kelly, 12 id. 36. Sec. 1, Chap. 348, Laws of 1860. If there be more than one assignor, all must join in this. Wetter v. ScUeifer, 4 E. D. Smith, 707. Kelly V. Baker, 2 Hilt. 531 Welles V. March, 30 N. Y. 344. But, when one partner is invested with power, by the surrender of his associate, to dispose of that as- 64 INSOLVENT ASSIGNMENTS. sociate's interest, he can make and acknowledge the assignment solely. Kemp V. Carnley, 3 Duer, 1. Kelly V. Baker, supra. Nat. Bank of Baltimore v. Sackett, 2 Daly, 395. Also, where there is a provision in the partnership agreement that either may dissolve and close the partnership upon the failure of the other to pay his proportion of the capital, the first partner may ex- ecute an assignment. Eohert v. Shepard, 2 Daly, 110. Should the assignor be an infant, or should one of the members of a partnership who have made an assignment be an infant, the assignment is void as against creditors. Fez V. Keath, 16 Abb. 163. An omission of the assignor to make an inventory does not avoid the assignment. Kvans v. Chapin, 12 Abb. 161. Where one of the partners absconds, the remaining partner can execute an assignment. INSOLVENT ASSIGNMENTS. 65 Nat. Bank of Baltimore v. Sachett, 2 Abb. N. S. 286. The mere omission by an assignor, of a debt from the schedule of his liabilities, will not vitiate the as- signment per se, especially where the debt is in- cluded in a general description. Matteson v. Bemarest, 4 Rob. 161. All of the assignors must unite in the verifi- cation. Wetter v. Schleifer, 4 E. D. Smith, TOT. Coope V. Bowles, 18 Abb. 442. As to non-resident partners, see Barrow v. Bruff, 36 How. Pr. 4T9. The fact that the nominal value of the assets stat- ed in the schedule by the assignor, exceed the debts — that a debt which the assignor might have evaded by pleading the statute of frauds, is provided for, and that the debtor had, previous to the assignment, made fraudulent transfers of property, do not neces- sarily render the assignment void and fraudulent as a matter of law. lAvermore v. Northrup, 44 N. Y. lOT. The schedule should contain a full and true state- 5 66 INSOLVENT ASSIGNMENTS. meiit by the assignor of all the assets ; for an omis- sion to mention a part of the property, even if it were done for the purpose of diminishing the amount of security to be required from the assignee, would be sufficient grounds on which to set aside the assign- ment. Be Camp v. Marshall, 2 Abb. N. S. 393. If it directs a larger payment to a creditor than is actually due him, it would be the same. Id. A defect made in the inventory or schedule by the assignor, does not render the assignment void. Ready. Worthington, 9 Bosw. 617. The assignor need not specify debts in the assign- ment, as the schedule is to be considered as referred to in the assignment. Terry v. Butler, 43 Barb. 395. An assignor who is a non-resident, may make his assignment and record the same in the clerk's office of the coimty where he transacts his business. Laws of 1877, chap. 466, § 2. If a portion of the property assigned consists of real estate situated in the city and county of New INSOLVENT ASSIGNMENTS. G7 York, the assignor should have a record of the same made as of an ordinary conveyance. Simon v. Kalisie, 6 Abb. N. S. 225. A neglect on the part of the assignor to record the assignment does not make it fraudulent. Denzer v. Mwtidy, 5 Robt. 636. The assignor must comply with the terms of the sta,tute in making his assignment, otherwise the same is fraudulent. Be. Camp v. Marshall, 2 Abb. N. S. 373. Every schedule or inventory of property provided for by this act shall be filed in the same office where such assignment is recorded except that in the county of New York they are filed in the clerk's office of the Court of Common Pleas. Sees. 3 and 24, Chap. 466, Laws of 1877 THE ASSIGNMENT. It is not the purpose of the author, in this little work, to treat at all of assignments with reference to their validity or invalidity, not deeming such questions within the scope of his intent in under- taking to gather from the reported decisions such information as will enable the practitioner to under- stand what construction may have been put upon the various sections of this statute ; and, where he can find no decision touching upon such questions as present themselves as likely to arise, then to suggest what has been the practice as far as he has been able to discover from several years' experience as an assistant to the judges in this county who have control over such practice. The Act of 1860 was passed for the purpose of abolishing the invidious distinctions made by assignors previous thereto in giving to certain of 70 INSOLVENT ASSIGNMENTS. their creditors preferences -when making these insolvent assignments. Since the repeal of the Bankrupt Law, assignments are now made with preferences ; but by the provision of Sec. 21 of the Law of 1877 any person interested in the estate may obtain an order compelling the assignor to produce any books or papers connected with his business transactions, and submit to an ex- amination therein, and such assignor will not be excused from answering any questions on the ground that his answer may criminate him. This examin- ation can be used in any proceeding pending, or which may be afterwards instituted. The form given in the appendix is taken from one now on file, and which has stood the test of a final accounting. It is very simple in its form, and can be adapted easily to any case. The simpler the form the better. Here again we see a radical difference between the insolvent act and the bankrupt law. In the former the assignor makes his own assignment, whilst in the latter the judge or register does it for him. Section 14, Bankrupt Law. INSOLVENT ASSIGNMENTS. >ji The common form in use by registers for making such assignments is of the simplest character — con- veying and assigning to the assignee all the estate, real and personal, of the bankrupt, including prop- erty of every kind of which he was possessed, inter- ested in or entitled to have, with all his deeds, books and papers relating thereto, excepting the property exempted by the 14th section of the act, to hold in trust for the uses and purposes, with the powers and subject to the conditions and limita- tions set forth in the act. Where there is no opposing interest, the register executes such assignment. Under the State law this assignment must be exe- cuted and acknowledged by the assignor or assignors. Under certain circumstances, it has been held that all the assignors need not unite in such execu- tion and acknowledgment, but the reason therefor must appear by the affidavit of the one executing and acknowledging the same. As, for instance, where one partner absconds, giving notice of such fact to the remaining partner, then such remaining one can make an assignment and acknowledge the same in the firm name ; or where, by virtue of their partnership agreements, one partner is vested with such power ; or where 72 INSOLVENT ASSIGNMENTS. one -of the partners is a non-resident; but in any such case it must appear satisfactorily that a good and sufficient reason exists for this non-compliance, as an assignment which does not comply with such provisions is fraudulent. The acknowledgment must be personal, and the officer taking the same must have personal knowl- edge of the persons acknowledging such assignment. In case he is not personally acquainted with such persons, then he must take sworn evidence as to the identity of those not known to him. The execution, acknowledgment and recording of the assignment vests a title in the assignee but the schedules must be filed within the twenty days by the assignor, or sixty days by the assignee. Having executed and acknowledged the assign- ment, it should be recorded at once in the county clerk's office of the county where the debtor resides, or carries on his business unless he be a non-resident. in which case it is sufficient to record the assignment in the clerk's office of the county where he carries on his business or where the assigned property is situated. Should there be assignors who executed this as- signment residing in different counties in this State, then the assignment should be recorded in the county in which the principal place of business is. INSOLVENT ASSIGNMENTS. 73 This seems imperative under the statute, the only possible exception being, as said above, where the assignor is a non-resident. The recording of this instrument should be done as soon after its execution as possible. This is ne- cessary to prevent numerous questions which might arise as to the rights of attaching creditors. It is not required, under this act, to deliver the assi- gnment to the assignee, and hence there is no diflEiculty in the way of a speedy recording of the same. Inas- much as the assignment has to be recorded in the clerk's office of the county in which such debtor or debtors resided or carried on their business at the date thereof, the words being, " shall be recorded," it would seem that the title passes to the assignee, and he is vested with proper powers from the date of the re- cording, and not from the date of the acknowledgment. The converse of this proposition would be to per- mit an assignor to execute and acknowledge an as- signment which he might retain in his possession whilst some of his creditors might obtain attachments, there being no record of such assignment on file — only to have them declared void upon a replevin suit brought by the assignee. Had the word " must " been used instead of " shall " before the words " be recorded " it is hardly possible 74 INSOLVENT ASSIGNMENTS. itive, direct and necessary compliance with some pre-- requisite is demanded. " The enacting clause of bills shall be," etc. " No bill shall be passed," etc. " No law shall embrace," etc. Examples could be multiplied, but it appears frora this, not only that it was the intention of the legislature that the assignment must be recorded before the assignee is placed in a position to contest the validity of any title claimed adversely to his, but it seems to be the only legal reasoning deducible from the text of this section. The assignee's duty, as we have seen, is to guard the trust estate in the interest of the creditors, re- membering at the same time that the assignor's rights INSOLVENT ASSIGNMENTS. 75 must be protected, for he never loses, his interest in the estate, and his rights can be as seriously jeopar- dized as those of the creditors, for which he can\ci41 the assignee to account. The practice undoubtedly is to record the assign- ment as soon as the same is executed and acknowl- edged, and the recording must be deemed under the statute a necessity. Although we can find no decision bearing directly upon this question since the passage of the act of 1860, yet there are reported decisions previous to that time holding that when an assignee accepted the deed of trust and held the same in his possession whilst having the matter under consideration as to whether he would accept the same or not, and pend- ing such consideration the sheriff levied on the property by virtue of an execution, the assignee's subsequent acceptance of the trust could not deprive the executions of their priority, Crosby v. Hillier, 24 Wend. 280. See also Moir v. Brown, 14 Barb. 39. 123. But it has been held in The Syracuse, ^c, E. R. Co. v. Collins, 1 Abbots N.C. p. 50. in the N. Y. Commission of Appeals that " although the assignment was never recorded or filed nnd al- though the assignee gave no bond and did not take 76 INSOLVENT ASSIGNMENTS. possession of the property, yet so far as appears the aasignment was valid to place the property of the as- signor out of his control and out of the reach of his creditors, except as they might assail the same in bankruptcy." " An assignment properly executed is valid and operative from the time it is made." ''■ Usually one assignee is named in the assignment, but there may be two or more. It would be better to name only one, as troubles may arise, as they have arisen, with regard to the bond required. (See Bond.) With regard to the assignment then, it has been seen as above, 1. That it must be in writing. 2. That it must be signed by all the assignors, save under certain circumstances, as given above. 3. That it must be acknowledged by all who exe- cute it. 4. That it must be recorded in the clerk's ofRce of the county where the debtor or debtors resided or carried on business at the date thereof. 5. That the assignee must join in its execution. 6. That an assignment by co-partners must be re- corded in the office of the clerk of the county where the principal place of business of such co-partners is situated. INSOLVENT ASSIGNMENTS. 71 An assignment is defined as an allotting or an ap-, poiatment to a particular person or use, or for a parr ticular time, as of a cause or causes in a court. A transfer of title or interest by writing, as of a lease, bond, note or bUl of exchange ; a transfer of the whole of some particular estate or interest in lands. The writing by which an interest is transferred. The transfer of the property of a bankrupt to certain persons called assignees, in whom it is vested for the benefit of creditors. Webster. The proper technical words of an assignment are " assign," " transfer " and " set over," but the words "grant," "bargain" and "sell," or any other words which will show the intent of the parties to make a complete transfer, will amount to an assignment. Bouvier's Law Diet. An assignment is distinguished from a sale in this, that a sale is a transfer for a valuable consideration, in the ordinary course of business transactions, whereas an assignment is a transfer made by a debtor, on account, as a general rule, of some emba - rassment in his business, or a necessary total sw - pension of the same, which comprises the character of a trust. 78 INSOLVENT ASSIGNMENTS. A sale is completed on the transfer of the prop- erty and the receipt of the consideration, but an assignment vests in the assignee a certain trust, which carries with it duties to be performed, and the interest of the assignor ih never lost, for, in case of there being a surplus after the final accounting of the assignee, this reverts to the assignor. Leitch v. Hollister, 4 Comst. 211. A plaintiff's deed conveying real estate, a bill of sale of personal property and an agreement between the parties, all bearing same date and referring to same matter, read and construed together as though the whole was contained in one instrument, was held to constitute an assignment for benefit of cred- itors. Van Vlect v. Slawson, 45 Barb. 317. But, when assignments of property and accounts were executed at different dates by a debtor to a creditor, to secure the payment of separate debts, incurred at different times, Judge Ingraham held, in Wynkoop V. /Shardlow, 44 Barb. 84. Id. 29 How. Pr. 368, that they could not be construed as one transaction amounting to a general assignment for the benefit INSOLVENT ASSIGNMENTS. 79 of creditors, and as such void, because they did not provide for the payment of all debts due by the assignor. After the execution and acceptance of an assignment for the benefit of creditors, such as is void as against creditors, but valid as against the assignor, the assignor can not make a new assign- ment so as to confer additional title or authority over the assigned property upon the assignee, or to render his title valid as against the creditors. Metealfv. Van Brunt, 37 Barb. 621. The usual consideration mentioned in an assign- ment is " One dollar and the premises," etc, as given in the form. (See Appendix.) An assignment for the benefit of creditors, em- bracing real estate in the city of New York, filed in the office of the county clerk, according to the act of 1860, is not constructive notice of the convey- ance of such real estate. The record of such an instrument should be made as of ah ordinary conveyance, in the register's office, to have such effect. Svmm V. Kalialie, 6 Abb. Pr. R. N. S. 225 ; 37 How. Pr. 249. gQ INSOLVENT ASSIGNMENTS. The assignment must be in writing and duly acknowledged. The statute is imperative. Britton v. Lorenz, 3 Daly 23, and cases there cited ; afid. in 45 N. T. 51. An assignment not duly proved or acknowledged is void. FaircMld v. Gwynne, 16 Abb. Pr. 23. An assignment which does not comply with the provisions of the statute of 1860 is fraudulent. De Camp v. Marshall, 2 Abb. N. S. 373. The acknowledgment on the assignment must be personal. It cannot be acknowledged by the assignor's attor- ney or proved through the medium of a witness. Adams v. Houghton, 3 Abb. N. S. 46. As to non-residents the statute does not, and should not, apply with the same strictness as to residents. Adams v. Houghton, supra, Darrmo v. Bruff, 36 How. Pr. 179. An assignment which is iiot acknowledged by the assignor, but is proved by the testimony of a INSOLVENT ASSIGNMENTS. gl subscribing witness, is insufficient to vest any title in the assignee. Cook V. Kelly, 14 Abb. Pr. 466. The assignment must be made by all the parties. Wetter v. SchUefei; 4 E. D. Smith, 707. Ee ly V. Baker, 2 Hilt. 531. Coope V. Bowles, 18 Abb. 442. Each must join in the acknowledgment and in verifying the inventory. Cook V. KeUy, supri. Jones et al. v. Bach et al., 48 Barb. 568. And the officer taking the acknowledgment must have some distinct personal knowledge of them all, or must take sworn evidence as to the identity of those not known to him. Treadwell v. Sackett, 50 Barb. 440. An assignment executed and acknowledged by one of the partners in the firm name held sufficient. BaUmin v. Tynes, 19 Abb. Pr. 32. Where one partner is invested with power by the surrender of his associate, to dispose of that associate's interest, an assignment executed and 6 ^ INSOLVENT ASSIGNMENTS. acknowledged by such partner should not be di« turbed. Nat. Bank of BaltiTnore v. Sackett, 2 Daly, 395. Kelly V. Baker, 2 Hilt. 531. Welles et al. v. March et al., 30 N. Y. 344. Where, in the partnership agreement, it is pro- vided that either may dissolve and close the part- nership, upon the failure of the other to pay his pro- •portion of the capital, held, that in such an event, the first partner has the authority to execute and acknowledge an assignment. Roberts v. Shepard, 2 Daly, 110. An assignment in trust for the benefit of cred- itors cannot be made by two out of three members of an insolvent firm without consultation with the other partner, where circumstances do not render such consultation impracticable. Fisher et al. v. Murray, 1 E. D. Smith, 341. Although the decision was rendered some ten years previous to the act of 1860, yet it is alluded to here on account of the exhaustive opinion by Judge Daly (C. P.) on the matter of assignments, reviewing as he does not only the elementary prin- INSOLVENT ASSIGNMENTS. 83 ciples of assignments, but also nearly, if not all^ tlie reported cases on the subject. See also Darning v. Colt, 3 Sandf. 284. Hayes v. Heyor, id. These decisions were also rendered long before the passage of this act, in 1860, having been de- cided in October, 1849, but, as in the case reported above, they are worthy of attention on account of the amount of information contained therein. A direction in an assignment to the assignee to pay first all just and reasonable expenses, costs, charges and commissions of executing and carrying into effect the assignment, " and all reasonable and proper charges for attorney and counsel fees respect- ing the same," does not render the assignment void. Btat V. Peck, 1 Daly, 83. See also this case with reference to the use of the words " debts to grow due." An assignment filed in the county clerk's office of the county where a non-resident debtor is doing business, held to be a good assignment under the act. Scott V. Guthrie, 10 Bosw. 408; 25 How. 512. But in case the debtor resides in one county in the State and does business in another county, the 84 INSOLVENT ASSIGNMENTS. assignment may be recorded in either countj, chap. 466, Laws 1877, § 2. Should there be one or more debtors who reside in different counties, the assignment should be re- corded in each county where one of the debtors resides. It would also seem that, under some circum- stances, the assignment would have to be recorded in the office of the clerk of the county where the debtor has property, as, for example, when a portion of the assigned property consists of real estate situ- ated in this county, for, in such a case, a regular record must be entered in the office of the register of the county to have any effect. 8imon v. KaUske,.6 Abb. Pr. N. S. 225. It would seem advisable, under all circumstances, when the debtors reside in different counties of this State, and carry on their business in still another, to file the assignment or copies thereof in each of the counties where the debtors reside, as well as the one in which the business is carried on. An assignment to an insolvent, known to be such, has been declared void. Reed v. Emery, 8 Paige, 417. Connah v. Sedgwick, 1 Barb. S. C. 210. Brtyming v. Hart, 6 id. 91. INSOLVENT ASSIGNMENTS. 85 An assignment may be set aside if the scliedule omit a part of the property, though only for the purpose of diminishing the amount of security to be required from the assignee, or if it directs a larg»^r payment to a creditor than is actually due him. De Camp v. Marshall, 2 Abb. N. S. 373. The assignment must be recorded in the office of the clerk of the county in which such debtor or debt- ors resided or carried on business at the dute thereof, Sec. 2, Laws of 1877, chap. 466, except that, where the debtor is a non- resident, he may file his assignment in the county where the property is situated or the business carried on. Scott V. Guthrie, 10 Bosw. 408. A neglect to record an assignment does not make it fraudulent. Denzer v. Mundy, 5 Robt. 636. The assignee must unite in the execution of the assignment and acknowledge the same either em- braced in or endorsed on the instrument. Laws 1877, chap. 466, § 2. 86 INSOLVENT ASSIGNMENTS. An aasignment which authorizes the assignee to manage and improve the assigned estate renders the assignment on its face fraudulent and void. Schlussel V. WiUet, 12 Abb. 897. Althoiigh the assignment cannot be executed oy an attorney in fact, yet, when one partner has absconded, the remaining one can execute an assign- ment of the assets of the firm. Nat. Bank of Baltimore v. SacMt, 2 Abb. N. 8. 286. A general assignment by the directors of a cor- poration of all its property is fraudulent and void as against the stockholders not consenting thereto, whether the company be solvent or not. Smith V. The New York Consolidated Stage Company, 18 Abb. 419. The provisions of section 2 of the act of 1860 respecting assignments for the benefit of creditors, which reqnire an assignor, within twenty days after the date of an assignment, to make and deliver to the county judge an inventory of his debts and assets, and of section 3, which require the assignee, within thirty days after the date of the assignment, to give a bond, are directory merely, and an assign- ment in other respects good is valid, and vests a INSOLVENT ASSIGNMENTS. 87 perfect title in the assignee, although not followed by the bond or schedule provided by the statute. Van Vleit v. Siawson, 45 Barb. 317 ; 39 id. 97 ; 20 How. Pr. 289. Laws 1878, chap. 318, Sec. 3, Subdiv. 5. It does not follow that because the omission to do any or all of the acts required by the law of 1860 relative to assignments for the benefit of cred- itors may render an assignment inoperative and void, that it is thereby rendered fraudulent also. Scott V. Guthrie, 25 How. Pr. 481. Whatever purpose, which if declared in writing and inserted^ in a general assignment of a debtor's property, renders it void, as legally fraudulent, ought, when declared by the debtor, verbally, to be the object of an intended assignment, while holding, possession of the property, to be considered as of an equally fraudulent character. Gasherie v. Apple, 14 Abb. 65 An assignment made to an assignee who is physic- . ally incapacitated from acting as such, is void. Cram v. Mitchell, 1 Sandf. Ch. 254. Currie v. Hart, 2 id. 353. A general assignment for the benefit of creditors 88 INSOLVENT ASSIGNMENTS. by an infant, or by a partnership one of whose members is an infant, is void as against creditors. Fox V. Heath, 16 Abb. 163. A provision in an assignment exonerating the assignee from liability to account for debts which he is unable to collect, does not vitiate the assign- ment. Nor does a provision authorizing the assignee to appoint an attorney for matters connected with the trust which he could not attend to personally. Casey v. Jones, 21 N. Y. 608. The mere omission of a debt from a schedule of creditors annexed to an assignment for the benefit of creditors, will not vitiate the assignment per se, especially where the debt is included in a general description. Mattison v. Demarest, 4 Rob. 161. The statute which provides that the assignment shall be in writing and duly acknowledged is not merely an affirmative, declarative statute. It intro- duces a new law in regard to assignments, and is peremptory, requiring every such assignment to be duly acknowledged and endorsed before delivery. The very language of the statute implies the INSOLVENT ASSIGNMENTS. gg negative of tlie right to make an assignment in any other way, asserting by implication that no assign- ments shall be delivered without acknowledging, etc. Hardman v. Bowen, 5 Abb. N. S. 332. An assignment is not rendered fraudulent in law by the mere fact that the nominal value of the asse.tg appears by the schedules to be somewhat in excess of the indebtedness. Livermore v. Northrup, 44 N. Y. 107. ^ i A voluntary assignment by a debtor residing in another State or country, valid by the laws of his domicil, and not invalidated by any laws of this State, operates as an assignment of the debtor's property situated in this State, and the assignee, after taking possession, can hold the same against attaching creditors of the debtor. Ockerman v. Cross, 54 N. Y. 29. The provisions of the act to secure to creditors a just division of the estate of debtors who convey to assignees for the benefit of creditors are only appli- cable to assignments by debtors residing in this Staite. Id. , The refusal of an assignee to give a bond, aa 90 INSOLVENT ASSIGNMENTS. required by the statute, does not render the assign- ment void. Barbour v. Everson, 16 Abb. Pr. 366. Defects in the inventory or bond do not render the assignment void. Read v. Worthington, 9 Bosw. 617. It is not necessary to specify the debts in the as- signment, as the schedule is to be considered as re- ferred to in the assignment. Terry v. Butler, 43 Barb. 395. A neglect to record an assignment does not make it fraudulent. Denzer v. Munday, 5 Robt. 636. But where an assignee received the deed, but de- layed accepting the trust, and while he still held the subject under consideration, the sheriff levied on the property by virtue of executions placed in his hands, held, that the assignee's subsequent acceptance of the trust could not deprive the exe- cutions of the priority. Crosby v. HUlier, 24 "Wend. 280. See, also, Moir V. Brown, 14 Barb. 39. INSOLVENT ASSIGNMENTS. 91 An assignment is not to be deemed void as a con- clusion of law, merely from the fact that the assign- ors did not disclose their intent to make it when called upon by the creditors for payment. Place V. Miller, 6 Abb. N. S. 178. The omission to do any of the acts required by the statute, to render valid an assignment, or the omission of a partner to join in making such an as- signment, is not available upon motion to sustain an attachment as against the assignment, except so far as such circumstances bear upon the question of fraudulent intent. Id. The facts that the nominal value of the assets in the schedule exceeds the debts — that a debt which the debtor might evade by pleading the statute of frauds is provided for — and that the debtor had, previous to the assignment, made fraudulent trans- fers of property, do not necessarily render the as- signment void and fraudulent as matter of law. Livermore v, Northrup, 44 N. Y. 107. A direction in an assignment, to the assignee to pay first all just and reasonable expenses, costs, 92 INSOLVENT ASSIGNMENTS. charges and commissions of executing and cai-rying into eflfect the assignment, and all reasonable and proper charges for attorney and counsel fees respect- ing the same, does not render the assignment void. Butt V. Peck 1 Daly, 83. See, also, with reference to the use of the words, " debts to grow due," in the assignment. A general assignment, assigning " all goods, chat- tels, merchandise, bills, bonds, notes, book accounts, claims, demands, choses in action, judgments, evi- dences of debt, and property of every name and nature whatsoever (of the assignor), more particu- larly enumerated and described in the schedule hereto annexed," covers all personal property of the assignor, though none was enumerated or described in the specified schedule. Turner v. Jaycox, 40 N. Y. 470. Even though the assignment be in writing, and be delivered, together with the possession of the property, creditors of the assignor may attach the property in the hands of the assignee prior to the making of the statutory acknowledgment. Hardman v. Bowen, 39 N. Y. 196. An assignment is not void by reason of withhold INSOLVENT ASSIGNMENTS. 93 ing from the assignee any discretion to sell the trust property upon credit. Ch-ant V. Chapman, 38 N. Y. 293. Where one of the assignors was an infant at the time of making the assignment, such assignment is void, as it does not, when executed and delivered, operate to devote the property unqualifiedly. . The general principle that an assignment by an infant is voidable only does not apply to this branch of the law, which allows property to be withdrawn from ordinary legal process in a certain way and upon certain terms only. It is of no consequence that the infant assignor did not revoke the assignment. The vice lies in the power he had by law to .disaffirm and avoid. Tates V. Lyon, 61 Barb. 205. The law of 1860, regulating the manner of making assignments, is not an insolvent law, and is not interfered with by the bankrupt law. Thrasher v. BmOey, 2 Sup. Ct. (T. & C.) 309. The assignnaent is not rendered void by failure of the assignee to file a bond in exact conformity with the statute. Id. 94 IJS'SOLVENT ASSIGNMENTS. A general assignment for the benefit of credi- tors without preferences is not void. Mayor et al v. Hellman, 2 N.Y. W. Dig. 101. Haas V. O'Brien, 3 N. Y. W. Dig. 226. An assignment made by co-partners is not fraud- ulent and void in law because one of the assignors is an infant. Tales V. Lyons 61 N. Y. 344. If voidable it can only be avoided at the election of the infant and when he has ratified it after his coming of age. No fraud in fact can be claimed because of the infancy. Id. THE ACCOUNTING. By the provisions of section 11, the county court may issue a citation requiring the parties to show cause why an accounting and settlement should not be had on the petition of either the assignor or assig- nee, a creditor or the assignee's surety. The assignee is entitled to present his petition at any time after the assignment, but in the other cases one year from the date of the assignment must have elapsed before such a petition can be presented. The person applying must have some interest in the estate, and the county court to whom the peti- tion is presented should require that such interest be made to appear clearly in the petition before granting the order to show cause, but the order is usually issued without any particular inquiry as to the nature of the claim of the petitioner. As the estate in question is a trust estate, created by virtue of a certain statute, and as the rights of the persons interested are usually matters of docu- mentary evidence, it is needless to make that same 96 INSOLVENT ASSIGNMENTS. careful inquiry into the rights of petitioners as is exercised by surrogates under certain circumstances, the parties interested herein being the assignor, the assignee, the creditors and the sureties on the bond. That there may be others is true, but these are usually the only ones interested. As said above, the order is issued on a petition. The petition should clearly set forth all the facts connected with the assignment in so far as the same have come to the knowledge of the petitioner, giv- ing the date of the assignment, its recording, the qualifying of the assignee, the interest of the peti- tioner in the trust estate, and any information con- nected therewith within the knowledge of the peti- tioner. The petition should be verified. The petition should also state that one year has elapsed since the date of this assignment, if made by any one other than the assignee. It is true that this will be evident in his petition from hib giving the date of the assignment, but it nevertheless seems required by the section (§ 11, ch. 466, Laws of 1877) to state the fact that one year has elapsed since the date of the assignment. If a demand had been made on the assignee for a pay- ment, this should also be made to appear in the petition. INSOLVENT ASSIGNMENTS. 97 The prayer of the petitioner should be for a de- cree for payment of the claim, or his just propor- tional share thereof, as well as for an accounting on the part of the assignee. Upon the presentation of such a petition, duly verified by any person interested in the estate ex- cept the assignee, the County Court to whom the same is presented (the Court of Common Pleas in the city and county of JSew York being the proper court to present the same 'to in that county) is au- thorized to issue a citation or summons requiring the assignee or assignees named therein to appear in court on a certain day to be named in such citation or summons, and show cause, if any he or they may have, why the claim demanded in the petition should not be paid, and why a final accounting of his trust estate should not be had. And if no proper or rea- sonable cause be shown, then the court is authorized to appoint a referee to whom it shall be referred to take and state the said account, and such referee is vested with the power to examine the parties and witnesses on oath in relation to the assignment and accounting and all matters connected therewith, and to compel their attendance for that purpose and their answers to questions and the production of books and papers. 7 98 INSOLVEA^T ASSIGNMENTS. A copy of the petition should be served on the assignee when the citation or summons is served, so that the assignee may be apprised of what claim or charge he is expected to meet. If the citation be issued on the petition of a cred- itor it may be addressed to and served on the assignee alone, and if served within the county of the judge granting the same or an adjoining county it may be made returnable eight days after such service. A general citation must be served on all parties in- terested including assignor, assignee and surety. If served personally within the county of the judge Or adjoining county, eight days' notice is sufficient. If personally served in any other county in the State, at least fifteen days' notice must be given. I I If personally served in any other State than the one in which the judge resides, then thij ty days* notice must be given, and if served outside of tha United States, then forty days notice must be given. This service may be made by publication when- ever it shall be made to appear to the count}' judge that the person to be so served is unknown, or that his residence cannot after diligent inquiry be ascer- tained, or that he cannot after due diligence be found within the State. Upon due proof of such facts, INSOLVENT ASSIGNMENTS- 99 or either of them, the county judge will order that such citation be served by publishing the same in such newspaper as he may select (except that if the per- son to be so served resides without the State, then he must select the State paper,) not less than once a week for six weeks, and a copy of such citation must be mailed to each person to be so served with the postage thereon prepaid at least thirty days before the return day thereof. The citation may also be served by publication when it shall be made to ap- pear that more than twenty-five creditors have proved their claims. Should the assignee fail to appear upon the day mentioned in the said summons or citation, then upon due proof of the personal service of the same upon the assignee, an order will be made reciting the proceedings theretofore had, and requiring the •assignee to show cause at an early day, why an at- tachment should not issue against him for his diso- bedience of the summons or citation, to account, if there be a farther default on the return day, of this order, then the county judge will issue an order commanding the sheriff to commit the delinquent to the common jail of the county. It is seldom, if ever, that such an application is requisite. If the claimant fail to appear upon the return day of the summons or citation, the assignee may i 100 INSOLVENT ASSIGNMENTS. have the application dismissed if he so desires ; but , should both parties appear, the hearing of the order is proceeded with. The assignee has a right to question the claim of the petitioning creditor, and make him prove the same to the satisfaction of the judge ; and the peti- , tioning creditor has a right to question the accounts of the assignee as presented, and these are the only questions which can arise upon the retxuTi day of such summons, provided the assignee furnish an account. 1 If the assignee be prepared to render his accouilt ;finally, then he should come to court on the return day of the citation, with a petition setting forth the facts as fully as they wereg^t^orth in the petition of the creditor, upon wh^rfLe citation was issued, and in addition thereto^mf^^^ld state his readi- ness and desire to have a final accounting, and ask that he have leave to apply for a citation to all per-, sons interested in the estate, to attdnd on a given day to be named therein, upon his filial accounting. Upon such a petition, the judge will adjoui-n the proceedings under the petitioning creditor's cita- tion, and enter an order directing a citation to be issued to all persons interested in the said trust estate, requiring them to appear before the county judge (except in the county of New York, where 10 INSOLVENT A^SSIGNMENTS. IQl ,the wording of the citation will be "before me 6r one of the judges of the Court of Common Pleas in and for the city and county of New York"), on a day certain, to be therein named, and attend the settlement of the final account of the said assignee Should any of the parties interested in such as- signed estates be minors, upon whom such citation or summons must be served, the same rule applies as in the surrogate's court. Minors are not esteemed in law as capable of con- ducting or defending any suit or proceeding in behalf of themselves, and therefore they cannot be deprived of any of their rights by a mere npglect to appear. Kelhtt V. Rathhun, 4 Paige, 102. The chancellor further says, in regard to the man ' ner in which a minor should be served, that it " should be served in the presence of his lega;l guardian, or in the presence of some person upon whom the actual care and custody of the minor for the time being has properly devolved, and evidence of the service of the citation on the minor merely is not sufficient, especially if the minor is so young as to be incapable of understanding the object or intent of such service. " The citation in such case should direct the minoi 102 INSOLVENT ASSIGNMENTS to appear, according to law, that is, by his guardian lawfully instituted. And if a minor who is cited before the surrogate has- no general guardian, or if the general guardian has an interest adverse to the rights of the minor, so that he cannot act as guard* ian in relation to that matter, a guardian ad litem may be appointed by the surrogate to protect the rights ■ ©f the minor." If above the age of fourteen, the infant can make the application to have a guardian appointed, if he have no general guardian, or if his general guardian have interests adverse to the rights of the minor. Upon a petition setting forth such facts, with the written consent of the proposed guardian duly proved thereto annexed, the court will make such appointment. If the infant be under fourteen years of age, the application should be made by some one on his or her behalf, always taking care to have the consent of the proposed guardian in writing before the ap- pointment is made. No further notice need be given to the minor of the intention to appoint a guardian than is contained in the citation. In the surrogate's court the appointment is usually made under the seal of the court, though some sur- rogates issue only a copy of the order. INSOLVENT ASSIGNMENTS. 103 One, person may be appointed a,s guardian ad litem for many infants. In the matter of Frits, 2 Paige, 374. The guardian should not be selected at the nomi- nation of the adverse party, as their interests may be Sfich that the guardian will have to seriously contest the proceedings, and for any neglect on his part the guardian will be liable to the minor. Knickerbaek&r v. Defreest, 2 Paige, 304. This citation or summons must be served eithqr personally or by publication upon every person in- tQreste.d in the trust estate, except that i£ the time limited by due advertisement for the presentation of claims has expired before the issue of the citation, creditors who have not duly presented their claimsi need not be served. This citation must be served personally on all, liv^ ing in the county or the adjoining county whe;-e the citation is issued, at least eight days before the return day therepf, except that if the number exceedp^ twenty-five an order may be obtained for service b^ mail and also by publication once a week for f our weeks in such newspaper ox newspapers.as the county judge shall name, and on all, living outside of the 104 INSOLVENT ASSIGNMENTS. county and within the State, either personally, fif- teen days before such return day or by publication once a week for six weeks before such return day in a paper published in the county, as the judge may direct. If any such persons reside in another State, then the publication must be once a week for six weeks in the State paper, unless served personally thirty days before the return day thereof, and if they reside out- side of the United States, then such citation must be published once in each week for six successive weeks in the State paper, or served personally at least forty days before the return day thereof. The right of any party interested in the estate to demand such an accounting, being provided for by the statute, the assignee must, upon such order, un- less as above set forth, file his account with the proper vouchers thereof. This is an account of all his proceedings as such assignee. It should consist of a debit and credit account of all his receipts as well as disbursements by reason of his duties as such assignee, with a kind of summary statement of all his transactions in the administration of his trust as such assignor ; it should comprise a INSOLVENT ASSIGNMENTS. 105 statement of whatever disposition he may have made of any of the property. The vouchers must be carefully arranged, and are left with the county judge or referee to whom the taking and stating of the account are referred, and they become a part of the record in such proceeding. The assignee may be examined under oath by the referee as to any of his transactions in connection with his said trust. He may be allowed any item of expenditure not exceeding |20, for which he is unable to produce a voucher, provided that such payment is supported by. his own afl&davit, specifying the time when the per- son to whom^ — and the purpose for which the said payment was made ; he must further add a positive allegation that the said sums were actually paid or disbursed by him as charged in the account, and that they were necessary, provided, however, that the sum. total of such items of expenditures do not, in the ag- gregate, exceed the amount of |500. The oath of the assignee in this respect evidence in his own favor as to the certain items of disburse- raents thus mentioned. (For form of this oath see appendix.) , Having proceeded regularly thus far, the account-, Lng may be had. 106 INSOLVEXT ASSIGMMRNTS. It is to be presumed that the assignee has taken advantage of the provisions of the statute allowing him to advertise for claimants. (See Laws of 1877, chap. 466.) And that he will be prepared to profit by the privi- leges therein granted him on his final accounting, and, therefore, any application for an adjournment based upon such neglect on his part, should be looked on with disfavor, as it may necessitate a delay in the proceedings for probably six months. This publication being entirely optional with the assignee, it is to be presumed, if he has neglected to take advantage of such permission, that he has suffi- cient information with regard to the claimants against the estate, which will warrant him in proceeding without further delay. There may be a sufficient reason shown why such an adjournment should be had for this omission to advertise, but in such case the judge to whom the application is made should require the assignee to present an account of his assigneeship up to the date of such order of adjournment. It should clearly appear that the application is made in good faith ; that such omission has not been intentional or for the purpose of delay, and that there mSO-LVENT ASSIGNMENTS. 101 is reason to belteve that there are claims outstanding for which the assignee is liable, which claims have not been brought in. As the same rules and practice govern in these pro- ceedings as in the Surrogate's Court, the assignee is chargeable personally with all the acts, and expenses occasioned by the adjournment, as a penalty for the non-performance of his proper duty in the premises: As it has been made to appear heretofore that it is the duty of an assignee, when called upon by an order granted at the request of an individual creditor, to make an account so as to pay his proportional part of the amount due, to ask for a final accounting on no- tice to all persons interested in the trust estate, it is needless here to take into consideration the rights of the assignee to question the claim' of the individual creditor who is the petitioner. The final accounting is for the benefit of the as- signee, and the order entered therein protects him, and releases him from all further or subsequent Ua- bility by reason of the administration on his part of the trust estate confided to his care by virtue of the assignment. The proceedings, therefore, for this purpose should be conducted with that strict regard to statutory re- 108 INSOLVENT ASSIGNMENTS. quirements and the practice as established, so as to effectually bar all future claims which might arise in consequence of the trust estate. These requirements have been alluded to above, the most important of which, as regards the protec- tion of the assignee, is the advertising for claimants tg present their claims, with the vouchers therefor, inly verified, *o such assignee at his place of business. The forms connected therewith will be found in the appendix. This, as we have seen, is not compulsory, but it is very precautionary. There is no provision requiring that the citation shall he personally directed to the claimant ; a general citation is the one in common use. The assignee must, of course, remember that the extent and efficiency of the protection which is afforded him by virtue of the order, finally entered upon his accounting,, will depend entirely upon his accuracy in obtaining the names and residences of the persons interested in said estate ; and his diligence and care in having each and all of them properly served with the citation to attend upon his final settlement. The petition presented by the assignee when one creditor calls him to account, should contain a state- INSOLVENT ASSIGNMENTS. 109 ment of the asgignment, with its date and the date of recording the same — the acceptance of the trust by the assignee, and the subsequent fihng of the schedule or inventory and bond giving the date of the fiUng of each, also a statement that one year has elaipsed since! the recording of the assignment, and that an ordei has been entered requiring him to account, setting forth the rights claimed by the petitioner, at whose instance he has been required to account ; it should also contain a summary of the proceedings as taken by the assignee, in so far as the same may bd neces- sary, to furnish information with regard Vj the assets in the hands of the assignee. Upon the presentation of such a petiLon^ the judge to whom the same may be presented, will issue an order recounting the reading and filing of the petition, alluding to the order previous^ granted, requiring him to account, and directing a citation or summons to issue to all persons interested in such trust estpJ,e, requiring them to appear and attend the final se',de- ment of the accounts of the assignee on a give\/ day. This date will depend in a great measure, upon the residences of those interested in the estate. : If it appears that the assignee has taken f.dvantage of the section allowing him to advertise for creditors, 110 INSOLVENT ASSIGNMENTS. and that he has fully complied with all the require- ments thereof, then it would seem that he could easily tell from the claims presented to him, the latest date at which he would be justified in making the citation returnable, or to be more accurate, the earli- est date at which the accounting could be had. If the creditors all reside in the county, then twelve days after the date of the order for the citation, Would seem to furnish an ample limit wherein he could serve them all, " eight days previously to the return day thereof." If any of the creditors reside in the State but not in the county where the, accounting is to be had, it is much the safer practice to have the order so framed, that the assignee may either advertise or make per- sonsil service ; if the latter can be done it is the pre- ferable practice, still to prevent any trouble that might arise, it is better to commence the advertise- ment, and also endeavor to make personal service, and if the latter is done, the advertisement can be withdrawn if deemed necessary. Upon presenting such petition and order, the judge to whom the same is presented will require that the assignee will file with the clerk his account, in con- INSOLVENT ASSIGNMENTS. HI formity with the Order previously grafted requiring the same to be done. This enables persons interested to examine the ac- counts and vouchers so filed before the return day of the citation, so that they may be prepared with their objections, if they have any, upon such return day. Of course, if, upon the return day of the original order granted upon the application of a petitioning creditor, requiring the assignee to produce and file his account, or show cause why the same should not be done, the assignee shows sufficient cause why the account can not be produced and filed, the proceed- ings under the order will be adjourned to such a date as, to the judge, may seem sufficient in order that the account may then be filed, unless it should appear, on the return day, that the petitioning cred- itor has no status whatever in the premises, in which case the proceeding will be dismissed with costs as against such petitioner. Upon the final return day of the summons or cita- tion issued at the request of the assignee, it is his duty to be prepared with proofs that the said cita- tion or summons has been personally served on all persons interested in the estate in the county where- in the assignment was made, and legally served on 112 INSOLVENT ASSIGNMENTS. all residing out of the county, as has been above specified. This is necessary, for the jurisdiction of the judge , in the premises can only extend to and bind such as are thus brought in. As said above, the account rendered by the assignee should consist of a debit and credit account of all re- ceipts and disbursements, and a summary statement of the same. It should also contain a full history of his transactions respecting any disposition which , he may have made of the funds that have come into his hands, such as the amount of dividend declared, for it is the moral, if not legal, duty of the assignee to declare such dividend as he may be advised it is pru- dent to do, as soon as he possibly can, and not wait to be called to an account of his whole trusteeship. The account presented must be verified by the assignee, which verification should be to the effect that such account contains to the best of his knowl- ; edge and belief, a free and true statement of all his receipts and disbursements on account of his trust — of all property belonging to the insolvent which has come into his hands, and the disposition of the same ; and that he does not know of any error or omission therein, whereby the interests of any person in or to the said trust estate may be prejudiced. INSOLVENT ASSIGNMENTS. ll3 ' If there should be any disbursements less than $20, ' for which he has no voucher, and which he desires to be allowed, the assignee should specify the amount — the person to whom — the time when, and the pur- poses for which the same was paid as well as the ' necessity for so doing. As to such accounts, provided they do not exceed 1 500 in the aggregate, the oath of the assignee is evidence in his own favor, but beyond this, such oath is not evidence. The proofs of the advertising for creditors, and of the service of the citation to attend on the final set- tlement are of the first importance to the assignee. This will be evident from the fact that any person interested in the estate, who has not been properly ' served with such notice, may bring an action at law to compel the assignee to account after such pro- ceedings have been had. The rights only of those who have been served will be settled by the order entered upon the final settlement. If the notice to claimants to present their claims has been published in accordance with the statute, then the drder finally entered is a bar to all future claimants, and the assignee is relieved, j)rovided, of course, that the citation has been regularly served, 8 114 ir SOLVENT ASSIGNMENTS. and no appeal will have been taken from the order so entered. Any person who claims to have an interest in the trust estate may appear upon the return day of the citation and present his claim although he may not have been served with the citation or notified of the proceedings and he is entitled to be made a party on the presentation of his claim. Should it appear upon the return day that a party interested, who has been served, is, a minor, fcr whom no guardian has been appointed, then the assignee should see to it that a special guardian is at once appointed before any further steps are taken in the proceeding, for notwithstanding the fact that they have been regularly cited, the rights and in- terests of minors can in no way be affected by any proceeding unless they appear before the court in such proceeding legally represented. In serving such citation upon a minor, it should be accompanied by a notice to his parent, or guar- dian, or some competent person, who may be a member of his family, of the nature of the cita- tion served, and of the necessity that exists for the appearance of the minor or his guardian to protect any interests he may have in the trust estate, and the affidavit of service of the cita- ijTsolvent assignments. 1I5- tion npon such should also recite the service of a notice of this import. If the citations have not all been properly servfed in time for the return day, upon proof of such, and it being made to appear to the judge before whom the application comes, that such omission has not been willfully made for the purposes of delay, an adjournment will be had, as a matter of course, if no claimant who appears, objects thereto, and should there be objection mMe, it then becomes a matter of discretion, which, upon good cause shown, is in* variably exercised in favor of the assignee. It might, under such circumstandes, be proper for the judge on granting such adjournment, to require the assignee to file his account at once, if it has not been filed previously. The appearance of all persofls interested who answer on the returii day should be noted, and a proper entry of the same made upon the minutes of the judge, and the proper steps with regard to minors who may appear as above set forth be imme- diately taken. The nature of the account to be presented on the return day, or the adjourned day thereafter, having been noted as well as the form of the oath to be 116 IXSOL'>'EiST ASSIGNMENTS. annexed thereto, it. is needless to refer to them- a,gain. I All of tixe parties interested having been cited tp appear, it is the duty of the assignee or his attor- ney, on the return day, to have them called, noting the names of those who may appear and defaulting those who do not, producing at the same time to the judge the proofs of the proper service on such as make default. The judge is then authorized by the statute to appoint a referee to whom' all ques- tipns connected with the accounting are referred, and as this is a kind of summary proceeding an early day should be fixed for the hearing. Upon the hearing before the referee the neces- sity will appear, as before stated, of having all the vouchers properly numbered and the payments which they represent correspondingly noted. .The hearing of the proofs and allegations may, ot course, be adjourned from time to time, as in the^ discretion of the referee may seem necessary for' the interest of all parties interested. The assignee should first present his account and go through the same, item by itein, referring to aod producing the vouchers when he has them, and wjien he has not, he should be prepared to show an affidavit as to the same, as before stated. INSOLVENT ASSIGNMENTS. 117 Inasmuieh as this proceeding entails a further expense upon the estate, and by so much reduces the pro rata payments which the persons interested therein are entitled to, it should be as expeditious as is possible, consonant alike with the requirements of the statute and the interests of the claimants. And for this reason, all objections that are to be made to the account should be prepared and filed be forehand, so that the same can be readily and easily submitted. The objections to the account should be stated in the form of distinct and specific allegations, sur- charging for omissions for which credit ought to have been given, and falsifying for wrong debts. , The assignee can be examined under oath as to any and every statement in his account, at the op- tion of each claimant, if deemed necessary. His examination, if one is needed, should be con- cluded before the objections to the account are presented, as such examination may, under certain circumstances, do away with the necessity of pre- ' senting such allegations. The claimants presenting objections should pre- sent the same, not for the purpose of hindering and delaying the proceeding, but in the furtherance of 118 INSOLVENT ASSIGNMENTS. simple justice, as otherwise they «iay be charged , personally with the costs occurring bj rea^Qii pf ^ugh needless and unfounded objections. 7 Pftige, 115. 1 Barb. Cfa. Rep. 469. A claimant has the right to impeach the genuine- ness of any voucher presented by the assignee, and the assignee has the right to dispute any claim pre- sented, using the same means to defend the same as would the assignor have done had he been sued upon the claim originally. The assignee must be prepared to establish the propriety of any payment made by him, although the burden of proof, when any such payment is im- peached, is upon the claimant objecting. It is permissible for the referee to allow certain claims for which the assignee can produce no vouch- ers, as, for example, where a receipt was refused, or where such may have been lost or destroyed and it has been impossible to get a duplicate. An aflSdavit of this should be made by the assignee. 26 Barb. S. C. Rep. 316, 342. A voucher may be received when the specifia objection has been the inability to prove the hand- writing of the person who signed the receipt. INSOLVENT ASSIGNMENTS. 119 , 1 , 2 Fon. Eq. Pr. 239. .It is a wise precaution on the part of the assignee to have verifications of all the claims presented to him, hut the want of such verification will not war- rant a referee in refusing to allow such a claim when the voucher for the same is presented and it appears that the same is just. The statute in this .respect is not mandatory; it simply provides an extra safeguard for the assignee in any payment he .may make. 1 Barb. 301, The affirmative of establishing the validity of any dejection rests with the party making the same, and it must be made to appear beyond peradventure, the ' assignee having a right to demand that his accounts be declared correct until the contrary is fully arid clearly established. ' The same rules as to evidence are applicable aa are in force in the Supreme Court, and, if necessary, the testimony of a foreign witness may be taken by commission. The proceedings before the referee being com- pleted, he should, with all reasonable haste, ma^ke his report, to which he should annex the testimony taken before him. 120 INSOLVENT ASSIGN31KNTS. Notice of the filing of this report should be given to all parties that have appeared in the proceeding, and the same practice holds in regard to the same as in ordinary references to hear and determine. Exceptions to the same can be filed by any per- son interested who appeared, and a hearing will be had upon these exceptions. These exceptions should be in writing, and clearly point out the portions excepted to, and they should be filed in the same . office wherein the report hais been filed. The notice of filing of the report given by thie assignee should also contain a notice of a given day when a confirmation of the same would be asked for ; or, should the assignee feel himself aggrieved by the report as rendered, and prepare exceptions to the same himself, then he can notice a day for the hearing of the exceptions to the said report. Upon the return day of this notice, unless an adjournment may be had, the exceptions are heard by the judge, and the same either allowed or disal- lowed, and the report of the referee modified or con- firmed accordingly, and a final decree ordered or settled. THE FINAL DECREE. The statute provides that the final decree entered by the judge on the report of the referee, provided^ of course, all the requirements have been fully com- plied with, shall be binding upon all parties in- terested, whether they have appeared or not ; and ^uch final decree or the ultimate decision of the appellate tribunal in case an appeal is taken, will have the same efiect as the decree or judgment of any other court of competent jurisdiction. i The efficacy of this decree depends in a great measure upon the assignee solely, as we have seen before, for if he has neglected or ommitted to cite any person interested in the estate, or properly advertised for claimants to present their claims to him, such neglect or omission on his part will render nugatory the provisions of this decree in so far as 123 INSOLVENT ASSIGNMENTS. \ i the same might affect the interests of such person so interested who had received no notice of these proceedings — ^hence the necessity for accuracy and diligence in obtaining the names and residences of all persons interested in the said estate. The only remedy given to claimants who have appeared and who feel aggrieved by such final decree, is by an appeal — a right which is common to. any one interested in the estate. The form of the decree should be^ somewhat similar to a final decree in the late Court of Chan- cery in similar cases. ' It should recite enough of the proceedings and in a sufficiently clear manner so as to give a full under- standing of all matters connected therewith ; and it should be so framed as to determine beyond a doubt, any and every claim found due ; the person to whom the same is to be paid and the amount of the same; it should have annexed to it a summary statement of the account as finally settled and allowed, which statement should be referred to and considered as a part thereof. Provision can be made in this decree for a given date on or before which the assignee shall distribute the assets found to be in his hands ; and upon due proof of service ctf a copy of this decree upon the INSOLVENT ASSIGNMENTS. 123 assignee and of his non-compliance with the terma thereof, an attachment will issue against his person. This attachment is required to be in form, similar to that used by the late Court of Chancery in analagous cases. An Order to show cause will be granted upon the proper affida.vit» which must show that a certified copy of the decree has been served on the assignee, and that he was requested to comply with the same,, but .neglected or refused so to do It. is permissible, in the first instance, to grant an attachment and have the accused brought $tt once before the, court to answer for his misconduct, .but. the course is almost universally pursued of giv- ing the party accused an opportunity of being heard before he is attached. Jf he sees fit to make no appearance upon the res- turn d^y of the order to show cause, theq an attach- ment will issue as matter of course. THE REFEREE. The duties of a referee in such a case are of serious importance. His powers hv the premises are similar to those possessed by the judge who appointed him, and he is appointed for the purpose of guarding the inter- ests of creditors who are to get less than the face of their just claims, and at the same time see that the fund which has come into the hands of the assignee has not been squandered. The assignee is the selection of the assignor and not of the creditors, or any of them, and although he gives a bond for the faithful performance of his duties, yet it is not at all disparaging to him to have to say that under ordinary circumstances he would have the interests of the assignor more at heart than that of the creditors, and hence it is that the duties of a INSOLVENT ASSIGNMENTS. 125 referee upon such an accounting are peculiarly im- " portant. Upon the hearing before the referee, the assignee first produces his accounts, which should be clearly stated in the form of debtor and creditor, and should be sufficiently in detail so as to enable those inter- ested in the settlement thereof to make their objec- tions thereto. The schedule or inventory as sworn to by the assignor or assignors, should be produced before the referee so as to enable him, by comparison, to' see if there exists any such discrepancy as would warrant 1 the beHef that the statements were not made in good faith. Each credit that appears on the assignor's account should be consecutively numbered, and the! voucher for the same bear the same number so as to > expedite the examination of the same. ' These vouchers must be attached to thes accdunt ' and along with it be filed in the court. i Great care should be taken by the assignee in drawing up this account, so that it shall fully set : forth all the assets that have come into his hands, .i whether by virtue of the original assignment or of .; subsequent proceedings on his part, whether the same have increased or diminished whilst in his hands, and the reasons therefor — ia short, it should' 126 INSOLVETiinP ASSiaNMENTS. be mch a statement as » careful ftierctant wotild haA^e his bookkeeper present to him at the end of a fiscal year. The items in this account should be ca/refully gone over seriatim^ and the objections to the account as pre- sented should be stated in the form of distinct and specific allegations, surcharging for omissions when the estate ought to have been credited, and falsifying for imprbpftT debits agaifist the estate. Metzger v. Metsger, 1 Bradf. 265. 'W'illard's Eq. Juris. 142. The referee has the authority and power to compel the attendance of any witnesses whom it may be necessary to examine with reference to any ques- tions raised by these objections, to pass upon the admissibility of evidence, and to exercise the same dis- cretion and power as the judge who appointed him. On this accounting he has to examine the debits and credits of the vouchers, to see that the same are correctly stated, and, if it appear necessary, he must restate them himself; he. rawsi settle ques- tions with regard to the computation of interest, averaging of accounts, values of exchange, appor- tionment of payments, as well as other matters INSOLVENT ASSIGNMENTS. 127 whicli properly arise on the stating of accounts in courts of equity. i His report on this accounting should be a clear, succinct statement of what transpired before him, set- ting forth the objections presented as against the ac- count, and his own restatement where he deemed the same necessary, giving careful details of the same, for, upon the distinctness and regularity of his report will depend much of the after-labor of the judge. Questions as to the responsibility of the assignee regarding the estate, his liability on account of neg- lect, his allowances on account of losses, etc., will arise before the referee, but it is needless to enter into an examination of such questions here, inasmuch as the practice in the Surrogate's Com-t is made applicable herein and such matters are fully treated of in Dayton on Surrogates. Redfield on Surrogates. Willard or Surrogates. The form of the referee's report is of some im- portance. It should partake of the form of an auditor's report i to a surrogate, and the report of a master in chancery. The form given in the Appendix will be found applicable to ordinary cases. GENERAL PRACTICE. Any stockholder of a corporation which has made an assignment, who has not consented thereto, may- bring an action in his own name to set the same aside as fraudulent. Smith V. The New York Consolidated Stage Comf pany, 18 Abb. 419. Where an assignment is set aside as fraudulent as against the creditors, whatever moneys of the estate were paid for expenses or to creditors under the assignment in good faith before the commence- ment of the action, should be allowed to the assignee, but not payments to himself or to his own firm. Coope V. B(yu)les, 18 Abb. 442. In an action by a creditor to set aside an assign- ment of a partnership as fraudulent, the defendants 9 129 130 INSOLVENT ASSIGNMENTS. are not estopped from proving that a party to tin assignment, and declared therein to be a member of the firm, was not so in fact. Fox V. Heath, 16 Abb. 163. A creditor cannot avoid an assignment made bji his debtor merely on the grounds that it contains a provision Avhich is illegal, if such provision tends to his benefit and not to his injury. A party, to have any standing in court, must .show himself to be injured by the acts of those of ■whom he complains. Fox V. Heath, 16 Abb. 163. The defendant may move to vacate an attach- ment issued as a provisional remedy under the Code, as well after as before the assignment of his inter- est in the property'- attached. Gashm-ie v. Apple, 14 Abb. 64. The provisions of the act of 1860, which require general assignments for the benefit of creditors to be acknowledged by the assignor before delivery, and the schedule to be made within twenty days thereafter, are directory merely. See Laws of 1877, chap. 466, § 2. Fairchild v. Gwynne, 14 Al)l). 121. Evans V. CJiapin, 12 Abb. 1B1. INSOLVENT ASSIGNMENTS. 131 The fact that by reason of the assigned property being situated in another State, the assignee did not gain immediate possession, does not render the assignment void even as against attaching creditors who seize it meanwhile. Van BusMrk v. Warren, 13 Abb. 145. The fact that a defendant against whom an attach- ment has been issued, has made an assignment of all his property in trust for creditors, either before or after the issuing of the attachtnent, does not pre- clude him from moving to set aside the attachment. Brewer v. Tucker, 13 Abb. 76. Nor does it deprive him of the right to move to vacate a judgment and execution obtained without having acquired jurisdiction over his person. Lambert v. Converse, 22 How. Pr. 265. It is doubtful, says Judge Ingraham, in Barbour v. Everson, 16 Abb. 368, " whether the provisions of this statute can be en- forced in this county without further legislation, inasmuch as " there can be no county judge in this county." But see In re Morgan, 56 N. Y. 629. 132 INSOLVENT ASSIGNMENTS. Although a creditor holding collateral security is entitled, after the debtor makes a general assign- ment for the benefit of creditors, to enforce the col- laterals, and also claim a dividend under the assign- ment until his debt be fully paid, yet in computing the amount of the dividend the claim of such creditoi must be taken as reduced by the amount which he has received under the collaterals. Midgely v. Slocomb, 2 Abb. N. S. 275. In such cases the court cannot order a sale of the collaterals which are uncollected, but only the interest of the debtor in them. Id. In an action brought by a judgment creditor to reach property fraudulently transferred by the debtor to his wife, the fact that the debtor has made a general assignment for the benefit ol creditors is npt a defense. , It is not for the fraudulent debtor or his wife tr. ^ard any interest required by the assignee . He alone must assert them. They can only object that the assignee is not • made a party, and if such objection is not presented by demurrer or answer it is waived. Fort Stmwix Bank v. Leggett, 51 N. Y. 552. INSOLVENT ASSIGNMENTS. 13B Where a vendor from whom goods havp been ob- tained by fraud, instead of disaffirming the contract of sale affirms it by bringing suit thereon and proses cuting it to judgment, neither he nor a receiveiS appointed in supplementary proceedings can set up the fraud in the sale for the purpose of defeating an assignment of the property made by the vendee foB the benefit of creditors, although the assignment! was made in furtherance of the fraud, with full notice thereof upon the part of the assignee. Kennedy v. Thorp, 51 N. Y. 174. A receiver appointed in such case simply standi in the place of the judgment creditor at whose instance he was appointed, and cannot interfere with the assignment on account of frauds perpe-r, trated by the judgment debtor upon others. Id. Where an assignment is found to have been made without reference to a previous transaction with which it is sought to show a fraudulent connection, and there is evidence to support such finding, it will not be disturbed on appeal. Loeschici v. Baldwin, 38 N. Y. 326. The amount of a partnership deposit with an 134 INSOLVENT ASSIGNMENTS. insolvent banker, is a proper subject of set-off in an action brought by the assignee in trust for creditors of such banker on a note held by the banker, made by one of the partners and endorsed by the other for partnership purposes, although such note was not due at the time of the assignment. Smith V. Felton, 43 N. Y. 419. After the execution and delivery of an assign- ment in trust for the benefit of creditors, and the ■entry of the trustee upon its performance by taking possession of the property, the assignor cannot, by his declarations or admissions made out of court, invalidate the assignment or furnish evidence of his own or the trustee's fraudulent intent in making or receiving it, to defeat the title of the latter. Cuyler v. McCartney, 40 N. Y. 231. A receiver appointed in supplementary proceed- ings under the Code is not thereby vested with title to the property previously transferred or assigned by the debtor in fraud of his creditors. Such assignment is good as against the receiver as merely representative and successor of the judg- ment debtor, and as representative of the creditor, he has no greater right than the creditcr himself INSOLVENT ASSIGNMENTS. 135 with reference to the property fraudulently assigned, which right is to set aside such assignment "o far only as it shall be necessary to satisfy Ms debts and costs. Bostwick V. Merrick, 40 N. Y. 383. An attachment cannot be sustained against the property of a judgment debtor upon an allegation of the removal of such property from his store by a third person claiming to be his assignee, merely bcr ca,use there is no assignment filed in the clerk's offce, although a general charge of a fraudulent assignment by the debtor to cheat and defraud his creditors is sworn to. Denzer v. Mundy, 6 Robt. 636. Upon a final accounting after the decree is entered all the creditors' of the assignor are bound by the decree, whether they came in and proved their claim or not^ and a creditor who fails to prove his claim after the proper legal notice, is barred. Where one creditor commences an action to com- pel the accounting by the assignee in his own be- half, and that of others who may come in, and the Court orders a reference to take and state the ac- count, directing the publication of notice to a,ll the 136 INSOLVENT ASSIGNMENTS. creditors; a creditor who fails to come in and prove his claim is barred, although he had no notice of the action, and knew nothing of it until after the distri- bution of the fund. It is not the duty of the assignee having knowl- edge of the claim of a creditor who does not appear to produce and prove such claim before the referee. Kerr v. Blodgett, 48 N. Y. 62. An assignment is not rendered fraudulent in law by the mere fact that the nominal value of the assets appears, by the schedules, to somewhat exceed the indebtedness. Liveiinore v. Northrup, 4A N. Y. 107. Under this insolvent law a man need not be insolv- ent to make an assignment, and it not unfrequently occurs that the actual value of the assets as presented and sworn to in the schedule exceeds the liabilities. Id. The law of 1860, chap. 348, is not an insolvent law, and is not interfered with by the bankrupt law. Thrasher v. Bently, 2 Sup. Ct. (T. & C.) 309. The assignment is not rendered void by failure of the assignee to file a bond in exact conformity with INSOLVENT ASSIGNMENTS. 137 the statute ; until the bond is filed the assignee has no authority to sell, dispose of or convert to the pur- poses of the trust, any of the assigned property. Collecting the choses in action is not a conversion. ■ Id. A general assignment for the benefit of creditors^; without preferences, is not fraudulent or void, and where executed six months prior to the filing of a petition in bankruptcy against the assignor, is not assailable by the assignee in bankruptcy, nor can he recover possession of the trust property. Mayer v. Hellman, 2 Vol. N. Y. Weekly Digefe% p. 101, U. S. Supreme Court. An assignee is not entitled to greater compensation than that allowed to Executors and Administrators. 1 ; ' The Kef eree is to take and state the account and;; not make suggestions as to allowances. In re Kenyon v. Cox. Spe. T. Com, Pleas. August 1877. Robinson, J. 138 INSOLVENT ASSIGNMENTS. There are three classes of persons barred by the discharge of an Assignee : First, creditors who have appeared; secondly, creditors who have been duly cited, but have failed to appear ; and thirdly, those who, after due advertisement, have not presented their claims. (Sub. 5, sec. 20, Assignment act of 1877.) It must appear on the accounting before the Referee that the Assignee duly advertised for claims. (Sec. 4.) It was not the intention of the Legislature that the Assignee should administer the estate with- out notice to the creditors. It must also appear that citations have been issued to creditors and parties in- terested in the fund. (Sees. 11, 12, and 13.) There must be proof that the citation has been duly served, and it is, of course, essential that the Referee should know who the creditors are, for without such knowl- edge he cannot tell whether they have all been cited. The original schedule is not satisfactory evidence of this. The books of the assignor, the assignor him- self, and the witnesses, may be examined to ascertain the names and the addresses of the creditors. The Referee should have taken testimony to ascertain whether there are any creditors who have not signed the composition. In re WeinJwlz, K Y. Com. PL, Sp. T., 1878. INSOLVENT ASSIGNMENTS. I39 There must in every case be a reference to ex- amine and pass upon the assignee's account. The court will not, under any circumstances, undertake the duty of auditor. In re Hills, N. Y. Com. PL, Sp. T., 1878. Scheduled creditors should not be deprived of their dividend if they have not presented their claims after due advertisement, or do not appear on the account- ing after due citation, unless proof is offered disput- ing such claims. In re Oakley, Com. PI., Sp. T., Oct. 12, 1878. It is the duty of an assignee to render his account as soon as possible, and not to wait for a year need- lessly. In re Sorsfall, NT. T. Com. PL, Sp. T., July 8, 1878. The making of a composition agreement merely suspends action on the original claim, and upon a failure of compliance with the terms thereof on the part of the debtor, the creditor is remitted to his right of action on the original debt. In re Sorsfall, Super. In re JSacher, 2 Abb. K C. 379. Edwards v. Saucher, S. R. C. P. Div., VoL I.— III. Edwards v. Oumbri, S. R. 7 C. P. 519. JVewell V. Van Praaffh, S. R. 9 C. P. 96. 140 INSOLVENT ASSIGNMENTS. As to the right of an assignor to apply for the re- moval of the assignee, see In re Horsfall; Super. , An assignee who has accepted the trust cannot by renunciation or disclaimer throw off the responssibili- ties of the position. He cannot act until his bond is filed. The failure to file the bond does not affect the assignment. JBremioM v. Wilson, 5 N. Y., W. Dig. 676. By the making of an assignment all of the creditors of the assignor become secured creditors to the extent of the assets that come into the possession of the assignor, and are entitled, even after an order has been entered confirming a composition and recording a resolution in bankruptcy, to have an accounting by the assignee in the State Court, and to receive a dividend therein. In re iSherinan, K Y. Com. PI., Sp. T., July 8, 1878. Van Hoesen, J. An assignee is liable for rent of premises occupied by him and accruing after assignment. Buckner v. Jewell, 3 N. Y., W. Dig. 12. Morton v. Pinckney, 8 Bosw. 135. Journeay v. Brachley, 1 Hilton, 447. Bagley v. Freeman, 1 Hilton, 196. An assignee has no right to employ clerks to carry on the business. INSOLVENT ASSIGNMENTS. 141 Carman v. Page, 5 Hun, 283. Hart V. Cram, 7 Paige, 37. Allegations of misconduct must be positive and direct, and the proofs should be so overwhelming as not to admit of a doubt, as it may subject the estate to a reference to determine the facts. An allegation charging the payment of improper claims or disbursements are more properly charges to be brought out on the accounting. In re Fellows, Com. PL, Sp. T., January 3, 1878. The assignee must exercise such discretion as is vested in him by the deed of assignment, and cannot expect to have the court assume the responsibility he has undertaken. This was an application on behalf of an assignee for the court to direct him to pay a dividend of 25 per cent, to certain creditors whose claims were not disputed, pending a reference, it having been ascer- tained that this payment could be easily and safely made to all creditors. The judge, in denying the ap- plication, says : " In fine I must deny this application, not because I deem the payments of dividends, etc., which the assignee wishes to make, buf is scrupulous about unwarranted, but because they do not call for the judgment of the court at this time, and the order, 142 INSOLVENT ASSIGNMENTS. if made, would serve as a precedent for applications by assignees for special authorizations in every step in the execution of their trusts, and would lead to a species of piecemeal accounting not contemplated by the statute." In re FaVbri, Com. PL, Sp. T., Jan. 19, 1878. Composition proceedings being had, although re- ceipts for the pro rata dividends are given in which the creditors consent to the assignee imder the State Law, reassigning the property to the assignor, does not in any way affect the assignment, and the county court will not grant a discharge to the assignee with- out a compliance with the provisions of the act as to an accounting. In re Seipzigor, Sp. T., Com. PL, May 1, 1878. Authority for compounding claims is given only as to claims belonging to the estate, and not against it. The reason is very apparent, for if the claimant is a general creditor it will be impossible to ascertain what his claims will be entitled to as a dividend until the accounting of the assignee. In re Sherman, Sp. T., Com. PL, May 15, 1878. An assignee must be charged with all the proceeds of the assigned estate, except which was necessarily liSrSOLVENT ASSIGNME^'TS. 143 incurred in gathering the assets and selHng them to advantage, as speedily as possible. A showing of |350 rent of a store and |401.90 as the proceeds of retail sales is such a remarkable state- ment of account as calls for careful examination. In re Cracken, Com. PI., Sp. T., May 31, 1878. Counsel fees and charges must be regulated with reference to the services rendered in these cases. In re Beers, Sp. T., Com. PI., May 31, 1878. Before the sureties on a bond given by an assignee can be discharged from their liability, there must be an accounting had. In re Teager, N. Y. Com. PL, Sp. T., June 25, 1878. In re Zeach, N. Y. Com. PL, Sp. T., June 27, 1878. In re Hills, N. Y. Com. PL, Sp. T., June 27, 1878. ASSIGNMENTS WITH PREFERENCES. An insolvent debtor may lawfully by an assign- ment prefer one set of creditors to another. Murray v. Riggs, 15 Johns. 571. MacJcie v. Cams, 5 Cow. 547. Wintringham v. Lafoy, 7 Cow. 735. McMenomy v. Roosevelt, 3 Johns. Ch. 446. As to fraudulent assignments with restrictions, see Hyslop V. Clarke, 14 Johns. 458. Riggs v. Murray, 2 Johns. Ch. 565. An assignment bad in part is void m toto. Mackie v. Cams, 5 Cow. 547. A preference for laborers not named will not avoid the assignment. Bank of Silver Greek v. Fahutt, 22 Barb. 550. INSOLVENT ASSIGNMENT. 145 R-otection for an accommodation endorser is valid. , Cutmingham v. Freeborn, 1 Edw. Ch. 256. Griffin v. Marquarat, 21 N. Y. 121. A provision for changing the order of preference by the assignee renders the assignment void. Strong v. Skinner, 4 Barb. 546. A provision as to future preferences also makes the assignment void. Barnum v. Hampstead, 7 Paige, 568. JBoardman v. JSalliday, 10 Paige, 223. Sheldon v. Dodge, 4 Den. 217. Sevoall V. MusseU, 2 Paige, 175. SentiUion v. Moffat, 1 Edw. Ch. 451. A provision especially excepting a particular claim does not render the assignment invalid. Carpenter v. Underwood, 19 N. Y. 520. An assignment with a preference in favor of such as would execute a conditional release agreeing to receive fifty per cent, in full discharge of their claims is valid as against non-releasing creditors. Spaulding v. Strang, 37 N. Y. 135. JLow V. Graydon, 50 Barb. 414. ' lienard v. Maydore, 25 How. Pr. 178. Debtors making an assignment may give a pref- 10 146 INSOLVENT ASSIGNMENTS. erence fot the payment in full of theii- jiist debts, though owned by one who has piirchased the sum at a large discount., A prefei*feAtee as to debts otherwise securied dbiSS' not avoid an assignment. Strong v. Skinner, 4 Barb. 546. A preference to the assignee for a liability arisi'ni^ out of a security which was guaranteed by the as- signees for accruing rent is "valid. Soeschigk v. Jacohson, 2 Rob. 645. An assignment giving preferences to certain cred- itors who had signed a composition deed previously thereto is not fraudulent — the transactions being separate and distinct. Menard v. Graydon, 39 Barb. 548. A partial assignment with preferences is not void. Wilson V. Forsyth, 24 Barb. 105. A partial assignment for the benefit of certain creditors is not void if it appears that no surplus was contemplated. Doretmca v. Letbis, 8 Barb. 124. INSOLVENT ASSIGNMENTS. ^ 147 The Forms follpwing have been prepared more par- ticularly for the city and county of New York, but they may be made applicable to any other county in the State. The only difference being that in this county the judges of the Court of Common Pleas are the county judges. ; ^ Laws of 1854, chap. 198, p. 464. In re Mofg&h, §6 N. t. (839. Chap. 466, Laws of 1877. The only change necessary then will be where the title of the proper officer occurs. The amendments of 18*r8 are explicit on this strbject. THE ASSIGNMENT. No. 1. This Indenture, made the day of , one thousand eight hundred and , between , of the city, county and State of New York, doing business in said county of New Yorky ffeirty of the first part, and , of the said city and county of New York, party of the second part, WITNESSETH: ■ Whereas, The said party of the first part is in- debted to divers and various persbns in certain con- siderable sums of money, which he is unable to pay in full; INSOLVENT ASSIGNMENTS. l49 And, whekeas, The said party of the first part is desirous of appropriating all his estate and effects, both real and personal, to and for the payment of the same, without any preference or priority; Now THIS Indentuee WITNESSETH: That the said party of the first part, for and in consideration of the premises and of one dollar paid by the said party of the secon4 part to him, the receipt whereof is hereby acknowledged, Hath assigned, transferred and set over, and by these presents doth assign, transfer and set over unto the said party of the second part all and singular the lands, hereditaments and appurtenances, goods, chat- tels, promissory notes, bills of exchange, choses in action, debts, demands, claims, property and effects of every description, of whatsoever name or nature, except such property as is exempt by law from exe- cution, belonging to the said party of the first part, or in which he has any right, title or interest what- soever. To HAVE and to hold the same, and every part and parcel thereof, with the appurtenances thereto belong- ing, unto the said party of the second part, In trust, nevertheless, and to and for the uses, intents and pm-poses following — ^that is to say, ■■. First — To TAKE possession of the said property and 150 INSOLVENT ASSI6NMENTS. ; eflects hereby assigned, and to sell and dds^JOsy of the «ame with all eonvenieoit dilige;ao.e> either ai public 01" priyat© sale, and for the feeat prices thvtt can he obtained theyefor, aaad to OQayeri the sume inifo .TOoneyx ^T^^ to cplleot all such debts and demands «Ls may be collectible, and with and out ©f the prooeedis of guch Siales and coUeotiona. Seconii — To pat and discharge all the just md reas- onable expenses, costs and chaiXgea of executing this a#signm&|it, and of carrying into effect the trust hereby created, including the lawful comi iissiona of the party of the second part for his serv ces in exe cuting the said trust. , 'J%ird— To PAY and discharge in full, if the resid^ue pf said proceeds is sufl&cient fgar that purj aiBe, ^ the ^ehts and liabilities now due or to become due fvom the said payty of the first part, together with all inter* est moneys due and to grow due thereon And if the residue of the Sjaid proeeie-is shall not be sufficient to pay the said debts, and liabilities, audi interest moneys in full, theja to apply the same so far as, they will e?;tend to the payment of the said debts, and liabilities, and interest moneys proportiooaaj^ tq their respective amounts. And if, after payment of all the, eoista> charge* ^d ^ypenses attending the exee^itiqn ©f the said INSOLVENT ASSI&NJVEENTS. ISJ Iragt, ;^(i the, pjaymeijt and ^Jscliarge in, full of all ■t^e l,aTKful. debts owing by t^e sa,i,d party of the first part, of any and every description, tbeye sh.aU be any , surplus of the said proceeds remaining in the hands .,pf th,e party pf th,e second part, then, ,; Lastly — To. REPAY swh surplus to the party of i)^ first part, his executors, a^naini^trators or assigns. ^ 4-9-A fo^ the j^ettex and more efiectual execution of these presents, aftd of the trusts hereby created aijd deposed, the party of the first part doth hereby mak^, ijonstitlite an,d appoint the party of the second pa^Bt his true and latYrful attorney, irrevocable, with fujl powers and authority to do, transact and perfoi^m ^li acts, deeds, ]pa9,tters and things which may be neces- sary in the premises, and to the full execution of the said trustj ^nd fpx th^ purposes of said trust to ask, demand, recover and receive of, and from all and every person all the property, debts and demands bo- longing and owing to the party of the first part, and to give afcquittances and discharges for the same, and to sue, prosecute, defend and implead for the same, and to execute, acknowledge and deliver all deed^ a^4 io^truments , of conveyance necessary or proper for ^he better execution of the Ijrast hereby created^ m^ %lso for the purposes aforesaid or for any of them to make, constitu,te, and appoint qne qv more attorn^j||i 152 INSOLVENT ASSIGNMENTS. undei' him, and at his pleasure to revoke the same, hereby ratifying and confirming whatever the said party of the second part, or his substitute, shall law- fully do in the premises. And the said party of the second part doth hereby accept the trust created and in him reposed by these presents, and doth for himself, his heirs, executors and administrators, hereby covenant and agree to and with the said party of the first part, his executors, administrators and assigns, that he, the said party of the second part, will honestly and faithfully, and without delay, execute the same according to the best of his skill, knowledge and ability. In witness whereof, we, the said parties to these presents, have hereunto set our hands and seals the day and year first above written. Sealed and delivered > in the presence of ) [Signature.] [Seal.] i State of New York, ) City and County of New York, ) ' On this day of , one thousand eiglit hundred and , before me personally appeared and , to me known, and also known to me to be the individuals described in INSOLVENT ASSIGNMENTO. 153 and who executed the within ihstrument, and they acknowledged to me that they executed the same for the purposes therein mentioned. Notary Public, N. Y. Co. 154 INSOLVENT ASSIGNMENTSL No. 2. In the matter of the assign- ment of to for the benefit of creditors. Jffidcmt^-ofSebtor,- Couvty of , ss. 1^ being sworn, says that the assign^l named in the above assignment, which bears date the I day of ^ ' , 18 , recorded in the ofiice of the clerk of the county of the day of 18 : Also that the inventory and schedules hereto annexed contain a fuU and true account of all the creditors of said dfe^^bfit ', the place of residence of each creditor, where the same is known to deponent and where the same is not known, the fact is so stated therein-: Also the sum owing to each creditor and the nature of each debt or demand, whether arising on written —-^-'-^- ----".A INSaL:PEKT ASSIGNMEEfm 155 security, account or otherwise : Also, the true cause and consideration of such indebtedness, in each case, and the place where such indebtedness arose : Also a statement of any existing judgment, mortgage, col- lateral or other security for the payment of any such debts: Also a full ai}.d true inventory of all the esta,te, both re^ aijid personal;^ in law and equity of at the dftte of s^d assignment, and the ©ncumbraiices existing thereon,^ and of all vouch- ers and Securities .y^lating thereto, and the value of such estate according to the beat knowledge of depo- neat '• And 4ep.Qilient further saiys, that the £in- nexed inventory and schedules are in all respects just and true. -■■.■.- ^^,fl•-t^ >v: ' Sworn to before me this ? ,. d^ay of , 18 . ) , Annexed to this affidavit or incorporated in it should be the name, residence, business, and place of business of the Assignor and the najme and resi^ dence of the Assignee. 156 INSOLVENT ASSIGNMENTS. No. 3. A FULL AND TRUE INVENTORY of all the estate of on the day of the date of the assignment of said both real and j)ersonal, in law and in equity, and the inciimbrances existing thereon, and of all vouchers and securities relating thereto, and the value of such estate, accord- ing to the best knowledge of said Assets. NouiNAi, Value. ACTUAI. VaLue. Cause of Diitxh- ENCE. ' INSOLVENT ASSIGNMENTS. 157 S o ;2i s s s * 1 ^ I' i I I" 8, t 4> ^ i JtlDQMBNT, MORTGAGE, COJ,LATKRAL, OB OTHER SBCDRITY FOR PAYMKHT OF DEBT. g P H S „ 1 ■ g 1 1 i ; 158 iirsoLVEisrT assignments. Na. 5. In the Matter of the Assignment, (dated 187 and acknowledged, B,eCbrded 187 OF TO (Date.) Received schedule of debts and inventory of assets. Debts ajid Liabilities amount to $ Assets nominally amount to $ Assets actually amount to $ (Date.) Bond ordered in the penalty of. $ Names of sureties residing at and 3'esiding at Sureties justified in $ (Date.) Bond approved by judge and filed the day of 187 msoLVENT JiSsr&iOjiEiras. i s 9 h-ifib],i BOND. . ■■! jmf^l Know all Men by these Presents, That we," '' i residing at No. in the and residing at No. in the and residing at No. in the are held and firmly bound jointly and severally nnto the people ;•-•' ' I certify that on this day of ,18 , before me personally appeared the within named '■'i . known to me to be the individuals described in, and who executed the within bond, and they sever- ally acknowledged to me that they executed the same. Appeoval of Bond. I hereby approve of the within bond and of the sufficiency of the sureties therein. Juige. 11 162 INSOLVENT ASSIGNMENTS. No. 7. AFFIDAVIT OF ASSIGNEE ON WHICH TO OBTAIN ORDER TO FILE PROVISIONAL BOND. City and County of New York, ss. being duly sworn, says : That by virtue of an instrument, in writing, duly acknowledged, and filed in the. office of the clerk of the city and county of New York, on the day of ,187 , he was appointed as the assignee of , an insolvent debtor. That more than twenty days have elapsed since the recording of said assignment in the said county clerk's office, Notary Public, Nev: York Co. There is no necessity for giving a form for an affi- davit of an expert. The usual affidavit of an expert in any ordinary case is sufficient. INSOLVENT ASSIGNMENTS. 165 No. 8. ORDEE, ON SAME. In the matter of the assign- ment of as assignee of an insolvent debtor. Present, Hon. At a Special Term of the, etc. On reading and filing the affidavits of , the assignee above named, and of , and , as experts, by which it appears that the actual value of the assets that will come into the hands of the said assignee, by virtue of the assign- ment therein referred, is the sum of dol- lars, it is ordered, that the said assignee do file a bond to the people of the State of New York in the penalty of dollars, with 166 INSOLVENT ASSIGNMENTS. good and sufficient sureties, upon the approval and filing of which bond, the said assignee wUl be vested with full powers in the premises by virtue of the said assignment in accordance with the stat- ute in such case made and provided, y^ It is further ordered, that upon the filing of the schedule hereafter, the said bond, which is hereby ordered provisionally, may be increased or diminished as the judge before whom the same is brought may deem just and proper. ^ INSOLVENT ASSIGNMENTS. 167 No. 9. PETITION FOR LEAVE TO ADVERTISE FOR CREDITORS. To the Hon. the Court of 'Common Pleas: The petition of ''^^*^^^ , 18 ff"^, the said insolvent duly filed his schedule or inventory of assets as well as debts and liabilities, in pursuance of the statute in such case made and provided. That in pursuance of the If, 8 INSOLVENT ASSIGNMENTS order entered thereupon, your petitioner did, on the day of ^V-xvtA. , ISW, present to the Hon. 'V'^ 2 c^ei^ , one bf the judges of the above mentioned court, his boi^d with. good and sufficient sureties, which said bond was thereupon approved and duly filed as pro- vided for by statute> r Thipt your petitioner thereupon eiitered upon the duties | of his trust as cre|ated by such assignment, and is now in possession of the said tiMist estate. That your petitioner, from information gained from the\books of said msolvent, believes that many of the credj^tors whose names appear upon said bo6ks, are HWM'PMdents, and that some of them reside {it is proper to stateHf any reside outside the United States and the Do- minion of Canada), and cannot be personally served with notice to present their claims to\your petitioner. Wherefore, your petitioner prays that an order may be entered, authorizing and directing your petioner to advertise for all persons interested in the said estate, to present to him their claims with the vouchers thercr for duly verified, on or before a day certain to be named therein. And thus ever will your petitioner pray. INSOLVENT ASSIGNMENTS. 169 City and County of New York, ss. ^ -^ — , tlie above named petitioner, being duly sworn, says that he has read the foregoing peti- tion and knows the contents thereof, and that the, same is true of his own knowledge, except as to the matters therein stated, on information and belief, and as to these matters he believes it to be true. Sworn to before me this ) day of 18^ i . \ Notary Public, N. Y. Co. 170 INSOLVENT ASSIGNMENTS No. 10. ORDER TO ADVERTISE. At a 'Special\Term oftlie, etc. In the matter of the assign- ment of ^/. /^ to Present, Ho7i. On reading and filing the petition of , assignee of ' , which petition is duly veri- fied, praying that an order may be entered authoriz- ing the said assignee to advertise for the creditors of the said '^'~ I i :'.■ to present to him their claims, with the vouchers therefor duly verified ; ejid, on motion of , attorney for said assignee, it is ordered, That the said fo - ^^ assignee be, and ho hereby is, authorized and empowered to advertise, by publication, once in each week for six successive weeks, in the Daily Register and the newspapers printed and published in the city and INSOLVENT ASSIGNMENTS. 171 county of New York, which is the ooTinty wherein said assignment was recorded, rattd — ©ace- in each wB ek for - fl-L s : succesbiv e-weeks— in-the-^^^aray Argus, t^ft .t'??tfftift pappjc^k notice requiring all persons having claims against the said ''y ^"5 to present the same, with the vouchers therefor duly verified, to the said ^ 'H- assignee, at his place of transacting busi- ness, No. - ^ ' '^ ^oaM . « street, in New York city, on or before a day to be specified in said notice, which day shall be at least thirty days from the date of the last publication of said notice. yC DatedrN^w^York, " ,187 . J. C. P. The. addiUmal puhlication for six weeks in the State paper when the assignee has reason to believe that some of the creditors reside out of the State. ^^.^^^ / ^^^^^^^^ pv-t^^/^. 172 INSOLVENT ASSIGNMENTS. No. 11. FORM OF ADVERTISEMENT. In pursuance of an order made by the Hon. , one of the judges of the Court of Common Pleas in and for the city and county of New York, sitting as county judge on the day of , 18 , notice is hereby given to all the creditors and persons having claims against , lately doing business in the city and county of New York under the firm name of , that they are required to present their said claims, with the vouchers therefor duly verified, to the subscriber, the duly appointed assignee of the said , for the benefit of their creditors, at his place of transacting business, No. street, in the city of New York, on or before the day of , 187 . Dated New York, , 187 . Attorney for Assignee. lawfiw INSOLVENT ASSIGNMENTS. 173 No. 12. COMPOSITION DEED. For and in consideration of the premises and the fuUfiUment of this memorandum of agreement, and its conditions hereinafter more fully explained, we, the undersigned, do agree to accept the amount of per cent, of our respective claims against , of the city and county of New York, an insolvent debtor, to be paid to us in the manner fol- lowing, to wit: [State the manner of the payments.] And when the above conditions shall have been com- plied with, we do respectively, each for himself, agree to and with the said , the insolvent debtor, that he shall thereupon be released and dis- charged from all liability to us, or either of us, of whatsoever name or nature the same may be. In witness whereof, we have hereunto set ^ur hands and seals the day of , one thousand eight hundred and Signed and sealed in ? presence of ) 174 INSOLVENT ASSIGNMENTS. No. 13. GENERAL RELEASE. To all to whom these presents shall come or may concern, greeting : Know ye, That we the undersigned creditors of , of the city of New York, an insolvent debtor, for and in consideration of the sum of , lawful money of the United States, to us and each of us in hand paid by , have remised, released and forever discharged, and by these presents do, for ourselves and each of our heirs, executors and administrators, remise, release and forever discharge the said heirs, executors and adminis- trators of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agree- ments, premises, variances, trespasses, damages, judg- ments, extents, executions, claims and demands what- INSOLVENT ASSIGNMENTS. 175 soever, in law or in equity, which against we ever had, now have, or which we or either of our heirs, executors or administrators hereafter can, shall or may have, for, upon, or by reason of any matter, cause or thing whatsoever, from the beginning of the world to the day of the date of these presents. In witness wheeeof, we have hereunto set our hands and seals the day of , one thousand eight hundred and Sealed and delivered in ) the presence of \ 176 INSOLVENT ASSIGNMENTS. No. 14. ACKNOWLEDGMENT. State of , City > and County of , ) ' On the day of , one thousand eight hun- dred and , before me, personally came , the person above named as the subscribing witness to the above instrument, to me known, and known to me to be the individual who subscribed said instrument as witness, and who, being by me duly sworn, did depose and say that he was present and saw the respective parties thereto sign the same, and who acknowledged to me that they acknowledged to him that they executed the same for the purposes therein contained, and he further ac- knowledged that he personally knew. [Insert the name of- each person who has signed the Deed. Where it is a firm name, let the acknowledgment show the authority for the signing by the person who signed it. Where a Corporation, let the au- thority for using the Corporate name appear. The acknowledgment should be peculiarly full.] INSOLVENT ASSIGNMENTS. 177 No. 15. PETITION OP ASSIGNEE TO BE RELIEVED ON ACCOUNT OF GENERAL RELEASE. To the Hon. the Court of Com. Pleas, in and for the City and County of JVew York. The petition of , respectfully •shows : That by an instrument in writing, duly executed and acknowledged, , an insolvent debtor, did, on the day of 18 , duly assign to your petitioner all his property in trust for the bene- fit of his creditors, in pursuance of the statute in such case made and provided. That, said assignment was duly recorded in the of&ce of the clerk of the city and county of New York, on the day of 18 . That the schedule or inventory, as required by such statute, was duly filed on the day of 18 . That in pursuance of the order made thereon, your petitioner duly qualified as such assignee by filing his bond in the penalty of dollars, with 12 1Y8 INSOLVENT ASSIGNMENTS. good and sufficient sureties, which said bond was duly approved by the Hon. , one of the judges of this court. That he immediately thereupon entered upon the duties of his trust by taking possession of the said insolvent's property. That subsequent thereto, he called a meeting of the creditors of the said insolvent, at which said meeting it was agreed by and between the said creditors and the said insolvent, that the said creditors would ac- cept a sum equal to per cent, of their claims in full satisfaction of the same. That in pursuance of said agreement a written in- strument was thereupon prepared and signed by each of said fcreditors, in the presence of a subscribing witness, which said agreement is hereunto annexed, marked Ex. A. That the said , the insolvent debtor, having complied with the terms of the said agree- ment, as provided for on his part, the said creditors have also signed and sealed a general release in the presence of a subscribing witness, who has duly ac- knowledged the same, which said general release is hereunto annexed, marked Ex. B. That the said names as so subscribed to the said agreement and general release are all the names of INSOLVENT ASSIGNMENTS. 179 creditors, and the names of all of the creditors ap- pearing upon the books of the said insolvent, and mentioned in his schedule filed as aforesaid, to which your petitioner begs leave to refer as an exhibit in this his said petition. That as appears from said schedule, agreement and general release as aforesaid, all of the creditors of the said insolvent have been fully paid and their claims satisfied. Wherefore your petitioner prays that an order may be enteredJfreferring it to some suitable Person as referee, to take and state the account of your peti- tioner and to take testimony, and report as to the matter alleged in the petition of your petitioner And thus will your petitioners ever pray, etc. [Jurat.'] 180 INSOLVENT ASSIGNMENTS. No. 16. AFFIDAVIT OF ASSIGNOR. City and County of New York, ss. being duly sworn, deposes and says . I am the assignor above named — I duly executed, acknowledged and recorded the assignment mentioned in the petition of , assignee. I caused to be filed the schedule or inventory therein mentioned, and the same is true and correct of my own knowl- edge — containing the names of each and every creditor who has a claim against me or to whom I am in any way indebted, and the names of all such appear upon the general release hereto annexed. There are no other creditors whose claims are due or unpaid. Subscribed and sworn before' me ) this day of , 18 . ) Notary Public, City and County of New York. INSOLVENT AS8IGNMENTS. 181 No. 17. ORDER THEREON In the matter of the applica- tion of assignee of an insolvent to be relieved of his trust At a Special Term, etc. Present, Hon. On reading and filing the petition of , assignee of the above named , an insolvent, duly verified; and on reading the assign- ment heretofore recorded in the office of the cleric of the city and county of New York, made by the above named assignor ; and on reading the schedule or in- ventory, filed on the day of , 187 ; and on reading and filing the affidavit of the said 182 INSOLVENT ASSIGNMENTS. assignor, made on the day of , 18 ; and the agreement entered into on the day of ,18 , the general release executed and acknowledged on the day of ,18 (and the consent to the entry of this order on the part of the creditors whose names appear on such general release, provided the same may have been obtained). Now, on motion of , attorney for said assignee, it is ordered, That it be referred to to take and state the account of the said assignee, and to take proof of all the material facts alleged in the said petition, and report to the Court with all convenient speed. IJN SOLVENT ASSIGNMENTS. 183 No. 18. PETITION OF ASSIGNEE TO OBTAIN AN OR- DER REQUIRING A DELINQUENT AS- SIGNOR TO FURNISH INFORMATION NECESSARY TO PREPARE A SCHEDULE. To the Hon. , one of the judges of the Court of Common Pleas in and for the city and county of New York : The petition of your petitioner respectfully shows, That, on the day of , 187 , your peti- ■^tioner was, by an instrument in writing, duly executed and acknowledged, appointed assignee of all the property of , an insolvent debtor, in pursuance of the statute in such case made and pro- vided for the benefit of creditors. That said assignment was duly recorded on the day of , 18 . That more than twenty days have elapsed since the said recording of the said assignment, and that the said insolvent has neglected and omitted to file his 184 INSOLVENT ASSIGNMENTS. schedule or inventory, as required by section 2 of said act, being chapter 348 of the laws of 1860. That your petitioner is willing and ready to com- ply Avith the requirements of said statute by filing hia bond, so that he may administer the said trust estate so assigned, but that, in consequence of the neglect and omission of the said assignor as aforesaid, he ia unable to file the same. Wherefore, your petitioner prays that an order may be entered directing and requiring the said assignor to be and appear before one of the judges of this court, and give such information under oath as will enable your petitioner to prepare such schedule or inventory as so required, it order that he may prepare and present his bond, and thereby be able to carry but the performance of the duties devolving upon him by virtue of the said assignment as aforesaid, for the benefit of the creditors therein referred to. And thus ever will your petitioner pray, etc. [Jurat.'] As in No. 9. INSOLVENT ASSIGNMENTS. 185 No. 19. ORDER THEREIN. Upon the petition of , assignee of an insolvent debtor, duly verified, it is ordered thai the said , the insolvent debtor, personally be and appear before me or one of the judges of the Court of Common Pleas, at the Chambers of the said Court of Common Pleas, on the day of , 18 , at 10 o'clock a.m. of that day, then and there to answer each and every question under oath which may be put to him touching his property and the charge affecting the same, his assets as well as debts and liabilities, and to give such information as may be deemed necessary to enable the said assignee as aforesaid, to prepare and file a full and true schedule or inventory of the said assignor's assets as well as debts and liabilities as required by the statute in such case made and provided. (186 INSOLVENT ASSIGNMENTS. No. 20. PETITION OF A CREDITOR FOR AN AC- COUNTING BY THE ASSIGNEE. The petition of , one of the creditors of the above named assignor, respectfully shows ; That the above named assignor, hy an instrument ' in writing duly acknowledged and filed in the office of the clerk of this county, did, on the day of , 187 , assign, set over and transfer to the •above named assignee all his property, both real and (personal, in conformity with chapter 348 of the Laws of 1860, and the amendments thereto. That the said assignee did subsequently thereto, and on the day of , 187 , in conformity with section of said statute, file his bond, with good and sufficient sureties, which said bond was duly and lawfully approved in accordance with said sec- tion, as aforesaid. That the said assignor has, in compliance with sec- tion 3 of said statute, as aforesaid, duly caused to be filed ra the office of the clerk of this county a INSOLVENT ASSIGNMENTS, igt verified schedule or inventory of his debts or liabili- ties, as well as his assets. That the nominal value of such assets, as , thus .sworn to by him, is the sum of dollars, md ■their actual value the sum of dollars. That the debts an.d liabilities in such schedule or. inventory amount to the sum of dollars. That the said assignee, as your petitioner is in- iformed and believes, immediately entered upon tlie duties of his trust as such, and has been in the pos- tsession of the property of said assignor, as set. forth in said schedule or inventory, since the filing of. the same, and is in possession of the same at the presqiit time. That upon the said schedule or inventory the uame of your petitioner appears as one of the creditors of ' said assignor, and that there is due and owing to him the sum of dollars, or his proportional share thereof. That more than one year has elapsed since the crea- tion of said trust, and the acceptance thereof by the said assignee. That, as appears by the said schedule or inventory, there are sufiicient assets of the said insolvent assignor, to pay a proportional sum equal, at least, to one part of his said indebtedness. 188 INSOLVENT ASSIGNMENTS. That your petitioner has, since the expiration of said twelve months, applied to said assignee for an account of his said assigneeship, and for payment of his proportional share of his claim against the said estate ; but that the said assignee has hitherto neg- lected and refused to render such account or to pay such proportional share as your petitioner is entitled to. Your petitioner therefore prays that the aforesaid assignee may be required to pa}'' your petitioner his just proportional part of his said claim ; and that an order may be granted requiring the said assignee, at a certain day therein to be appointed, personally to appear in this court and render an account of his pro- ceedings as such assignee, or show cause why; and that such other and further proceedings may be had therein, as may be requisite to enforce the payment of your petitioner's claim, or the just proportional part thereof, and as shall be just and equitable. And your petitioner will ever pray. Dated, New York. [Signed.] State op New Yoek, ) City and County of New York, ) **' On this day of , 187, before the under- signed, a county judge for the county of New York, INSOLVENT ASSIGNMENTS. 189 personally appeared the above named peti^.ti-'ei, who, being by me duly sworn, did say that he had read (or heard read) the foregoing petition by him subscribed, and knew the contents thereof, and that the same was true of his own knowledge, except as to the matters therein stated to be on his information and belief, and as to those matters he believes it to be true. Judge. This petition, under the amendment to the statute, can be made by any person interested in tb*? estate ; and as it will be easy to adapt the foregoing to any petition, it is useless to repeat the forms. It need not be made before a Judge, but before a Notary Public wiU be sufficient. 190 INSOLVENT ASSIGNMENTS. No. 21. ORDER TO ACCOUNT. In the matter of the assign- ment of to (Date.)' On reading and filing the petition of , one of the creditors named and mentioned in the sched- ule filed by the above named , assignor, as set forth in said petition, it is ordered that the above named , assignee, will personally be and ap- pear before me or one of the judges of the Court of Common Pleas at the chambers thereof, held in the new county court house, on the day of , 187 , and render an account of his proceedings aa such assignee, or show cause why. INSOLVENT ASSIGNMENTS, I9j^ No. 22. ASSIGNEE'S APPLICATION FOR FINAL SET- MENT OF HIS ACCOUNT. To the Hon. , the Court of Commoni Pleas: The petition of , assignee of , assignor, respectfully showeth, that an assignment in writing, duly executed and acknowltedged by the said assignor, whereby the said assignor did assignj se that a citation issue, requiring all of the creditors of the aforesaid assignor (or-£bssignor»)-to appear before me or one of the judges of the Court of Common -Pleas, at the chambers thereof, on the day ! 198 INSOLVENT ASSIGNMP:NTS. of next, at ten o'clock, a. m., then and there to attend the final settlement of the account as aforesaid. INSOLVENT ASSIGNMENTS. 1B9 No. 26. CITATION THEREON. The people, etc., to all persons interested in the estate of , insolvent debtors {or an insolvent debtor), send greeting : You and each of you are hereby cited and required personally to be, and appear before me, or one of the judges of the Court of Common Pleas, at the cham- bers thereof, in the city and county of New York, on the day of next, at ten o'clock, a.m., then and there to attend the final settlement of the account of , assignee (or assignees) of the above named , insolvent debtor (or insolvent debtors). In testimony wheeeof, I have caused the seal of the said Court of Common Pleas to be hereto affixed. Witness, , judge of the said Court of [sEAi.] Common Pleas, the day of , in the year of our Lord. 200 INSOLVENT ASSIGNMENTS. No. 27. ACCOUNT OP ASSIGNEE. In the matter of the ac- counting of assignee of an insolvent debtor. To the Hon. , the Court of Common Pleas : I, , of the city and county of New York, do respectfully render the following account of my proceedings as assignee of the above named , an insolvent debtor : The assignment of the above named insolvent, duly acknowledged, was filed in the office of the clerk of the county of New York on the day of , 18 , wherein I was named as the assignee, as aforesaid. The schedule or inventory required by statute has INSOLVENT ASSIGNMENTS. 201 also been duly filed, by which it appears that the debts or liabilities of the above named insolvent debtor amount to the sum of dollars, and his nominal assets to the sum of dollars, but that the actual value of the same was only the sum of dollars. I do further report that, in accordance with the requirements of the statute in such case made and provided, I did, on the day of 18 , and within the time prescribed, produce to one of the judges of this court my bond in the penalty of dollars, that being the amount required, with two good and sufficient sureties, which said bond was duly approved and filed in accordance with the re- quirements of the statute. I entered upon the duties of my trust immediately thereafter, and [*] Schedule A, hereto annexed, contains a statement of all the property contained in said schedule or inventory, as aforesaid, sold by me, with the prices and manner of sale, which sales were fairly made b)' me at the best prices that then could be had with due diligence. It also contains a statement of all the debts due the said estate, and mentioned in said inventory or schedule, which have been collected, and also of all 202 INSOLVENT ASSIGNMENTS. iaterest for money received by me for wMch. I am legally accountable. Schedule B, hereto annexed, contains a statement of all debts in said inventory mentioned not collected or collectible by me, together with the reasons why the same have not been collected and are not collect- ible,; and also a statement of the articles of personal property mentioned in said inventory unsold, and the reason of the same being unsold ; and also a statement of all property mentioned therein lost by accident without any willful default or negligence, the cause of its loss and appraised value. No other assets than those mentioned in said sched- ule or inventory, as herein set . forth, have come to my possession or knowledge, and all increase or decrease in the value of any assets of the said , insolvent debtor, has been allowed or charged in said Schedules A and B. Schedule C, hereto annexed, contains a statement of all moneys paid by me for the necessary expenses of the said estate, together with the reasons and the object of said expenditure. s On or about the day o " , ISf?, I caused a notice for creditors to present their claims against the said insolvent to me within the period fixed by law, and at a place therein appointed, to be >< INSOLVENT ASSIGNMENTS. 20'3 published in tlie newspapers according to la,w for , pursuant to an order of the Hon. , one of the judges of the Courl3 of Common Pleas, of the city and county of New York, to which order, notice, and due proof of publication herewith filed, I refer as part of this account. ' Schedule D, hereto annexed, contains a statement I of all the claims of creditors presented to me in puri- ' euance of said notice, together with the names of th6 claimants, the general nature of the claim, with the amount and the date thereof, and also a statement of all moneys paid by me on account of said claims Ttriih the names and the. time of such payments. ' Schedule E, hereto annexed, contains a statement of ail other facts affecting my administration of said insolvent's estate, my rights and those of others inter- ested therein. ^ I charge myself, Amount as per inventory $ Increase as shown by Schedule A_ $ I credit mysfelf. Amount of losses as -per~Seh«dulie B % Amount of debts not collectec^Schedule B % Amount of Schedule C- — $ Amount of Schedule D . _ __ $ Leaving a balance of $ 2i04 INSOLVENT ASSiaNMENTS. ■^o lie distributed prorata, subject to the deductions "Of the amount of my commissions and the expenses 'Of'this accounting. The said several schedules which are signed by me ate part of this account. ,j [Signed.] Dated, New York, , 18 . Assignee. INSOLVENT ASSIGNMENTS, 205 No. 28. OATH OF ASSIGNEE. aty and Comity of New York, ss. . ^ 'l,C-;: day of , 18 . ) Judge N. Y. Common Pleas. [The practice has been and is to have these sworn tio before a notary public, and there seems to be no reason to doubt the regularity of it ; but inasmuch as in the Surrogate's court, they are sworn to before the Surrogate, I have adopted the form, not at all claim- ing that it is necessarily requisite. As nothing is said in the statute about these forms, they are undoubtedly within the discretion of the court to regulate ; and the practice, as it now stands, has received judicial sanction by acquiescence. This same remark applies to previous forms.]- INSOLVENT ASSIGNMENTS. 207 No. 29. ACCOUNT OF ASSIGNEE WHERE A SETTI.E7, MENT HAS BEEN EFFECTED WITH T^^ , CREDITORS. The same heading and form as in iVb.'2.7 doum to the. \^},, after which as follows : I do further state that subsequent to the filing of my bond as aforesaid, and on or about the day of ,18 , all of the creditors of the above named insolvent debtor, whose names appear upon the said inventory or schedule, filed on the day of J 18 , did, by an instrumeni) in "writ;- ing, in the jiature of a composition deed, agree to acr, cept a sum equal to cents upon each and eyery dollar of the indebtedness of the said insolvent to th^in, which said instrument so signed in the presence of a, witness is hereto annexed and marked as Schedule A> That thereafter, and on or about the *^^7..9^' , 18 , the said creditors as aforesid, 1)y a further instrument in writing, did release the said in- solvent debtor of each and every claim that they and 208 INSOLVENT ASSIGNMENTS. each of them had against him by reason of any demand whatever, which said instrument so signed and duly acknowledged by the subscribing witness thereto, is hereto annexed and marked as Schedule B. Schedule C hereto annexed, coiilains a statement of all moneys paid by me for necessary expenses, to- gether with the reasons therefor. I'here remains in my hands the sum of dollars, to be returned to the above named , assignor, in accordance with the terms of the assign- ment heretofore mentioned, subject to the deduction of the amount of my commissions and the expenses of this accounting. The said several schedules which are signed by me, are part of this account, and I beg leave to refer to the schedule filed by the assignor herein, on the day of , 18 , as a part of this account, in so far as the same may verify the names of the creditors herein, and the respective amounts due each, as set forth in Schedule A, hereto annexed. Dated New York, , 18 . [Signed.] Assignee. Oath of Assignee. Same as previous one, altered to suit the averments contained in his petition. INSOLVENT ASSIGNMENTS. 20^ No. 30. ORDER OF REFERENCE. In the matter of the account- ing of as assignee of an insolvent At a Special Term, etc. Present, Mon. , the assignee of the above named insolvent, of tne city and county of New York, having rendered his account of his proceedings as such assignee, it is ordered that the said account and the vouchers thereof be referred to , Esq., of the city and county of New York, a counsellor-at-law, as sole referee to t?ike and state the said account, and to take proof of all the matters therein, and that he report thereon with all con- venient speed. 14 '210 INSOLVENT ASSIGNMENTS. No. 31. REPORT OF REFEREE. In the matter of the account- ing of assignee of To the Hon. , the Court of Common Pleas : In pursuance of an order made and entered in th? above entitled proceeding by the Hon. , one of the judges of the above named court, in his capacity as a county judge, on the day of , 187 , whereby it was referred to me, the undersigned, as sole referee, to take and state the account of the above named , assignee of , an insolvent debtor, ajid to hear and determine the issues therein[*] I do respectfully report That I have been attended by INSOLVENT ASSIGNMENTS. 211 [Here name all who have appeared in the order in whi 187 , ujjon the order referring the said account to as referee, which order was entered upon the day of , 187 , and upon the report of th^ said referee with the testimony, exhibits and Toubhef § thereto annexed, which said report was filed on the day at , 187 , aind upon the exception^ to the said report filed by' 220 INSOLVENT ASSIGNMENTS. [Here state the names of the attorneys filing the said ex- ceptions, the names of the parties in whose behalf the same were filed, and also what interest such parties have in the trust estate, as well as the date of the filing of the respec- tive exceptions. If any of those excepting may be infants by their guard- ians ad litem, all the facts necessary to show the authority of the guardian to appear, should be fully stated.] And upon due proof being shown of a service of the notice of the filing of said report, and of this ap- plication, upon all persons interested in the said estate, who have been heretofore legally notified of the proceedings herein, and who have appeared upon the said accounting, which said proofs are annexed to and form a part of the report of the referee above mentioned and now on file in this court, and after hearing , of counsel for the assignee in favor of the confirmation, and [Here give the names of all the attorneys who appear, with the names of the interested parties whom they represent, and the amount of their interest.] opposed thereto (or consenting thereto), and after reading the said reports and the exceptions thereto, INSOLVENT ASSIGNMENTS. 221 and after full hearing of the said parties interested therein, and upon due consideration thereof, it is ordered, adjudged and decreed as follows : First. — That the report of the said referee in the above entitled proceeding, filed on the day of 187 , be and the same is hereby in all things confirmed. Second. — * That out of the rest and the residue of tiie estate of the said insolvent remaining in the hands of the said assignee, after deducting his ex- penses and commissions as allowed by the said referee, and after paying the expenses of the said accounting, the said assignee do make payments pro rata amongst those who have appeared on these proceedings and demanded the same, as follows : [Here give the name of those who have appeared, the amounts found due to them and the amount of their pro rata dividends-^ Third. — That the said assignee do take good and sufficient vouchers for each, and every payment so made, and, if after reasonable diligence, any of the persons so entitled to a share in the said distribution cannot be found, then the share so belonging to such person shall be deposited in the Trust Company, to the credit of such entitled claimants. 222 INSOLVENT ASSIGNMENT. It is further ordered, adjudged and decreed, that upon a compliance with the foregoing terms, the as- signee may, upon due proof of the same being pre- sented to the judge, to whom the application may be made, be entitled to an order relieving him of his liability as such assignee, and releasing the sureties upon his said bond of all liability that they might otherwise be under, in so far as the same may be effected by, or relate to the interest of, any of the persons interested in the said estate who, have been properly and legally notified of these proceedings, and that the said application may be made without any further notice. INSOLVENT ASSIGNMENia. 223 No. 34. ANOTHER FORM, In the matter of the final accounting of assignee of an insolvent At a Special etc., Ttrm, etc. Present, Hon. f/c, , the abbve named assignee of said insolvent, having heretofore presented an applica- tion to one of the judges of this court for the final settlement of his account as said assignee, and a citation having been thereupon issued to all persons interested in the said estate, requiring them to be and appear before one of the judges of this court, in the chambers thereof, on the day of , 18 , and then and there to attend such final settle- ment ; and the said citation having been returned with due proof of the service of the same on all par- 224 n^SOLVENT ASSIGNMENTS. ties interested therein, and the said assignee having appeared in person and by , his attorney, and the following persons interested having appeared in person or by attorney, [Here make the statement as full as in the previous form,] and , Esq., a counsellor-at-law, having been appointed as referee, to take and state the account of the said assignee, and to take proof of all the matters therein, and the said referee having made his report thereon, It is hereby ordered, adjudged and decreed that the accounts of the said assignee be and the same are hereby finally settled and allowed as filed and adjusted. [Then should follow a statement of the account as settled, and continue after the (*) tn the previous form.] INSOLVENT ASSIGNMENTS. 223 No. 35. PETITION OF A CREDITOR FOR THE REMOVAL OP AN ASSIGNEE. To the Son. , the Court of Comm&n Pleas : The petition of , of the city of , county of and State of , respectfully showat: That he is one of the creditors of an insolvent debtor, who has heretofore and on the day of , 187 , by an instru-- ment in writing, duly acknowledged and recorded according to law in the office of the register of the county of , on the same day assigned and set over to one as his assignee, all of his property in trust for the benefit of his creditors. That the amount of the indebtedness of said inr eolvent to your petitioner is the sum of dollars. .g 226 INSOLVENT ASSIGNMENTS. That the ground of the said indebtedness is as follows : [Here state — what ; whether for goods sold and de- livered ; work, labor and services; money loaned, or ■ whatever the same may be.} And that the same accrued between the years 18 and 18 , and the whole of the said sum is now due and unpaid. That said assignee joined in the said assignment, and entered upon the performance of the duties of his said trust on the said day of , 18 ; but that, although more than thirty days have elapsed since the recording of the said assignment as aforesaid, still there has been no schedule of the assets and liabilities of -the said assignee filed ; nor has there been a bond either ordered to be filed or filed as provided for in the statute, in such case made and provided; nor have any steps been taken to require a filing of the same. That said assignee has done nothing towards notifying the creditors of the said assignor of his said assignment. That your petitioner has requested and demanded of said assignee that he file or cause to be filed the INSOLVENT ASSIGNMENTS. .Q^'j schedules of said, insolvent's assets; ^.nd liabilities, in order that the interests of said creditors may -be protected, but that the said assignee has neglected and refused : to comply with such request and' de- mand. '- That your petitioner is informed and believes that a portion of the assets of the said assignor consists of real estate, the rents and profits of whi(3h are collected by said assignee, and have been so col- lected since the date of said assignment. Your petitioner is further informed and believes that said assignee has collected certain sums of money from various of the debtors of said assignor, which said sums, as your petitioner is informed and believes, amounts to more than dollars ; and that your petitioner has requested the said assignee to give him information as to these collec- tions, but that the same has been refused to him. Wherefore, and by reason of the said premises, your petitioner prays that an order may be granted, requiring the said , assignee, to show cause before you, or one of the judges of the Court of Common Pleas, why he should not be removed from acting as such assignee, and why , or some other suitable person, should not be substituted as such assignee in his 228 INSOI-VENT ASSIGNMEN11S. place and stead;, and also why the said assignee should not make and rendejr an account of his pro- eeedings as such assignee ; and for such other and further relief akS in. the premises may seem just and proper. And thus ever will your petitioner pray, etc. i, [Jutat as iU N,o. 9] [As kaa hem said {ante, p. ), a petition of this nature has been received, where there has been no opposition on thfi part of the assignee by the Court of Common Pleas, and an order finally madt, removing the assignee arid appointing a substituted trustee. There can be no dipuki hut that this court has the right to entertain suck a petit- Uon ; but whether it could grant such an order, if opposi- Um W.ere made by the as^gnee, is another question. ^'" Of course, other and different reasons might be givm m the petition for the removaJ, — insolvency on the part of theussighee, physical incompetency., or various other rda^ ^ipns ; all of which should be fully and clearly sid forth in krder thai the jMge, to wham, the petition is presented, 'ma^ see ^ the application is made in good faith. Y INSOLVENT ASSIGNMENTS 22t ^0. 36. ORDER TO SHOW CAUSE THEREIN, !\ } 'M In the matter of the appli- ca?tion of a creditor, for an order re- moving a*s general assignee uf an insolvent debtor. ,. On the petition of , a "creditor of the above named ,,insolvei^ debtor, duly verified, and bearing date the day af , 18 , and the papers thereto annexed*. Let the said show cause before me or one of the judges of the Court of GomMoii Pleas at a special term thereof, to be held in the chambers of said court on the day of , 2-30 INSOLVENT ASSIGNMENTS. 18 , at ten o'clock in the forenoon of that day or as soon thereafter as counsel can be heard, why an order should not be granted removing him from his trust as assignee of the said , on account of his misconduct therein, and why he should not account for his administration of said trust, and why some suitable person should not be substituted as trustee in his stead and place, and' why he should not deliver any property and assets in his hands belonging to said insolvent, to said sub- stituted trustee. And until the hearing and determination of such application, let all proceedings on the part of the skid , assignee in the administra- tion of the said estate of any nature or kind whatso- ever, be stayed. ' Dated, [If any other creditors desire to join in such applica- tion, they may either select one of their number to act in "their behalf or sign a consent or request of the same tenor, and attach tt to the petition of the petitioning creditor. The following will answer for such request:^ INSOLVENT ASSIGNMENTH. 231. No. 37. REQUEST OF CREDITORS. In the matter of, etc. We, the undersigned, creditors of . , the above named insolvent debtor, desire and request the honorable the court to remove^ , the above named assignee, i; for the reasons set forth in the petition of • , and appoint some suitable per- son of sufficient character and responsibility as sub- stituted trustee in the place and stead of said : ; and we would respect-« fully recommend that be"; appointed as such substituted trustee. \ Dated, [Signed,] [The amounts of their respective claims should be set opposite each name.'] 232 INSOLVENT ASSIGNMENTS* No. 38. CONSENT OF ASSIGNEE. In the matter of, etc. I, as assignee of the aboTe named insolvent, by virtue of a certain in- siarument in writing, made on the day of , 18 , and acknowledged and recorded Qik the same day, do hereby consent, that an order mfey be entered relieving me of m^ said trust, and substituting some other and suitable person in my place and stead, provided, however, that such order sh4ll contain such suitable provision as to the court may seem just and proper, in order that an account- ing may be had of my assigneeship to the present INSOLVENT ASSIGNMENTS, 23:3 date, and that the sureties on my bond may be re- lieved of any liability whatsoever by virtue of their suretyship. Dated, [Signed.] 234 INSOLVENT AiSSIGNMENTS. No. 39. FINAL ORDER REMOVING ASSIGNEE. Title. At a Special Term, etc. Present, Hon. , one of the judges of the Court of Common Pleas : On reading and filing the petition of , made on the day of ,18 , and the order to show cause granted thereon, and the con- sent of , the said assignee thereto, ; It is ordered and adjudged that the said be and he hereby is removed as assignee of the said , under and by virtue of the said assignment mentioned in said petition. It is further ordered, that be and he hereby is,a,pp6inted as substituted trustee in the 18 ' INSOLVENT ASSIGNMENTS. 235 place and stead of the said • , ;ipon his executing a bond to the people of the State, with good and sufficient sureties, to be approved of by me or one of the judges of the Court of Common Pleas, in the penal sum of dollars. Upon the approval and filing of which bond, he shall be deemed fully appointed as such substituted trustee. It is further ordered that, upon proof of such approval and filing of such bond, that the said , assignee, pay over and surrender to the said ! , as substituted trustee, all the property, real ; and personal, papers and accounts, belonging to the said estate which may be in his possession or under his control; and until such time, the temporary injunction heretofore granted is continued against said assignee. It is further ordered, that it be referred to , Esq., counsellor-at-law, to take and state the account of the said , assignee, and to hear and determine all matters i-e- lating thereto, and upon the coming in of the said referee's report, the said assignee may make such application as he deems best in the premises for the protection of himself and the sureties on his bond. : It isifurther ordered, that for a failure on the part of I the said assignee tb domply with any of the pro- 236 INSOLVENT ASSIGNMENTS. visions of the foregoing order, then the said substi- tuted trustee shall be at liberty to move for an at- tachment against the said assignee as and far a con tempt of court. INSOLVENT ASSIGNMENTS. 237 ORDER GRANTING LEAVE TO SUE. N. Y. Com. Pleas. In the matter of natter of ^ lication of ) the application On reading and filing the affidavit, of and a certified copy of the bond of assignee of , ordered that the said have leave to prosecute, the official bond of the said in his own name. And it is further ordered that all moneys realized thereon shall be applied by direction of this court (or county judge) in satisfaction of the debts of the said assignee in the same manner as the same ought to have been applied by such assignee. 238 INSOLVENT ASSIGNMENTS. DISCHARGE FROM DEBT. Inasmuch as the repeal of the Bankrupt Law relegates debtors who seek a discharge from their debts to the proceedings under the Revised Statutes for that purpose, it seems very appropriate in this little work to incorporate the section of the Revised Statute applicable thereto, with such decisions as may have been made thereunder, as well as the Forms necessary thereto. This proceeding having been suspended by the operation of the Bankrupt Law, there have been few decisions of late years, those given having been ren- dered previous to the operation of the late law. The first general Act for the relief of insolvent debtors in this State was passed July 5, 1755, and amended May 19, 1761, which required three-fourths of the creditors to petition. This Act continued in force by different subse- INSOLVENT ASSIGNAIEISfTS. 239 qiient acts until January 1, 1770, when it expired by its OAvn limitation. Subsequent to this time there were various private acts passed for the relief of certain individuals, but no general system was adopted until the 17th of April, 1784, when the Legislature passed a general law for the relief of insolvent debtors, being Chap. XXXiy. of the Laws of that year, passed April 17th, which law having been amended at several times, the Legislature on the 21st day of March, 1788 (Chap. XCII.), passed what is commonly called the three- fourths act, which was revised and amended by Chap. XXXI. of the laws of 1801, passed April 3. From March, 1788, to April 3, 1801, insolvents were re- lieved on the petition of three-fourths of their cred- itors, but in that year, by Chap. CXXIII., passed April 3, and Chap. CCXLVIII., passed April 9th, a similar relief was granted to debtors upon their own petition without requiring the assent or concur- rence of any of the creditors, and all former acts were repealed. This Act of 1811 was repealed, and the Act of 1801, providing for three-fourths of the cred- itors to join in, was revived by the Act of 1812, being Chaps. VIIL, passed July 14, and XLI, passed May 26. 240 INSOLVENT ASSIGNMENTS. Section 13 of Ciap. CCXXXIX. of that year, passed June 19, had only reference to certain fees. These Acts, of 1812. continued in force until the 12th of April, 1813, when the Legislature enacted what has since been called the two-third act, being Chap. XCVni. of the laws of that year, which is the present system as set forth in the Revised Statutes. Article 3, title 1, Chap. 5, part 2-3, Rev. Stats. Banks' 6th Ed., p. 13. The subsequent Acts with regard to Insolvent as- signments are : Chap. CCLXni. Laws of 1815, passed April 18 ; LV. " " 1817, Feb. 28 ; XXVI " " 1818, March 6 ; CCXXXIX " " 1818, April 21; CCLVIII « « 1818, " 21; LXXI " " 1820, March 7 ; this amendment provides as to the officers before whom the debtor can make his oath. Chap. XLII Laws of 1823, passed Peb. 2, which provides that any judge of the Court of Common Pleas may act. Chap. LXVI. Laws of 1823, passed March 14, local as to Duchess Co. Chap. CXVn. Laws of 1823., passed April 9, as to the duties of the assignee. INSOLVENT ASSIGNMENTS. 241 Chap. CCXIX. Laws of 1823, passed April 23, l^cal as to Chatauque and (Genesee counties. Chap. 238 Laws of 1830, passed April 17, exenlpor ing certain debtors. Chap. 258 Laws of 1830, passed April 19, pfovidv ing for relief in case of the death of the Assignee. Chap- 52 Laws of 1833, passed March 8. Costs as to attaching creditors. Chap. 158 Laws of 1846, passed May 9. Appoint^ ment of substituted Assignees iii certain cases and their powers. Chap. 366, Laws of 1847, passed November 16, as to service of notices. Lfiws of 1849, Chap. 176, p. 238, provides as fol- lows : § I. Any creditor or creditors of any co-partner- ship firm or of any joint debtors may unite with one or more of the members of any such co-partnership firm or with any one or more of any such joint debtors in a petition for the discharge of such partner or partners, joint debtor or debtors, from his or their debts under and in accordance with the provisions of Article three, of title one, of chapter four, of part ten of the Re- vised Statutes, and the discharge of any partner or partners, joint debtor or debtors in consequence of any 242 INSOLVENT ASSIGNMENTS. such petition shall have the same force and effect as the note or memorandum in writing, mentioned in the Act hereby amended, and shall not discharge any co-partner or joint debtor except such co-partnors and joint debtors as may be designated by the peti- tioning creditor. ■ Chap. 210, Laws of 1850, p. 392, gives permission to Trustees, Receivers, and Assignees of the estates of insolvent to become petitionary creditors. Chap. 147, Laws of 1854, p. 336, prevents dis- charge if insolvent has transferred property, when he knew he was insolvent. By Chap. 21, Laws of 1828, passed December 10, it was enacted as follows : § I. From and after the thirty-first day of Decem- ber in the year one thousand eight hundred and twenty-nine, the following acts and parts of acts heretofore passed by the legislature of this State shall be repealed, viz. : (115) So much of the Act for giving rehef incases of insolvency passed April 12, 1813, and of all acts and parts of acts amending the same as are not consolidated and re-enacted in the Revised Statutes, so that the proceedings are now as fol lows: IISrSOLVEIx^T ASSIGNMENTS. -243 AETICLE THIRD. Of Voluntary Assignments, made pursuant to tlie Application of an Insolvent and his creditors. Section. 1. Insolvent debtor may be discharged from his debts under this article. 2. Petition to be signed by debtor, and by credi- tors to two-thirds of his debts. 3. When executors and administrators may be- come petitioning creditors. 4. Creditors of partnership may, with one or more members of the firm, petition. 5. Tru.'if.ees, Receivers, etc., may by order of a justice of the Supreme Court. 6. Affidavit to be made by trustees, receivers, &c. 7. Each petitioner to make affidavit ; its form. 8. Insolvent to deliver, with his petition, a sched- ule; its contents. 9. To what officer petition is to be presented. 10. Affidavit to be made by insolvent ; its form. 11. Officer to make order requiring creditors to show cause. 12. Order to direct when and where, cause to be shown. 244 INSOLVENT ASSIGNMENTS. 13. Officer to direct notice of order to be pub- lished in certain newspapers. 14. Time for which notice is to be published. 15. Notices of order to be served on creditors in United States. 16. The hearing shall not take place without proof of notice 17. Hearing of the parties ; proof of publication of notice to be required. 18. When opposing creditor may demand that case be heard by a jury. 19. If demand be to a court, jury to be drawn from jurors attending, etc. 20. If made to a single officer, eighteen free- holders to be summoned. 21. Twelve of the persons so summoned to be drawn and sworn. 22. Proceedings before jury ; their verdict con- clusive. 23. Verdict to be recorded in minutes of the pro- ceedings-. 24. But one hearing before a jury ; proceedings m case they cannot agree. 25. Insolvent may be ordered to produce his wife, if a non-resident. INSOLVEN^T ASSIGNMENTS. 243 ' 26. If she do not attend as ordered, debtor not to be discharged, unless, etc. 27. Insolvent may be examined on oath ; his evi- dence may be impeached. r 28. When insolvent to make certain payments or give security^ before his discharge. 29. Insolvent who has given preference to a cred- itor, debarred from being discharged. 30. When assignment to debtor's property to be directed ; articles to be excepted. 31. Finding of a jury as to any pre-requisite to assignment, conclusive. 32. Assignment, to whom to be made, creditors to nominate. 33. Effect of the assignment ; what property to vest in assignees. 34. Upon insolvent producing certam certificates discharge to be granted to him. 35. Effect of discharge as to contracts made sincd 12th April, 1813, etc. 36. Effect of discharge as to certain contracts made after this article takes effect. 37. Discharge may be pleaded or given in evi- dence in bar of certain actions. > 38. Discharge, how far to exonerate insolvent from arrest or imprisonment. 39. When insolvent, if in prison at time of dis^ ohargey to be discharged therefrom, 40. In what cases such discharge to be void. 246 INSOLVENT ASSIGNMENTS. PRACTICE. Petitioner. •Section 1. — ^Every insolvent debtor maybe dis- charged from his debts as hereinafter provided upon executing an assignment of all his estate for the benefit of his creditors, and upon the provisions of this article being complied with. This discharge is to a certain extent based upon the conduct of the in- solvent, covering a period of two years previous to the apphcation, as will be seen by the 29th section. Sec. 29. — If it shall appear on such hearing, by the examination of the insolvent or otherwise, that said insolvent has any time within two years before presenting his petition for his discharge under the provisions of this article, in contemplation of his be- coming insolvent or of his petitioning for such dis- charge, or knowing of his insolvency, made any as- signment, sale or transfer, either absolute or condi- tional, of any part of his estate, real or personal, or of any interest therein, or has confessed any judg- INSOLVENT ASSIGNMENTS. 247 ment or given any security with a view to give a preference for an antecedent debt to any creditor, he shall not be entitled to a discharge under this article. Every requirement of the statute must be strictly complied with. Best V. Strong, 2 Wend. 319. Sailers v. Tobias, 3 Paige, 388. As to matters not stated in the act which might vitiate the discharge, the decision of the judge is con- clusive. The People v. Stryher, 24 Barb. 650. The cause and co,nsideration of debt should be stated and the nature of the demands by creditors. Merry v. Sweet, 43 Barb. 475. See Soule V. Chase, 1 Abb. N. S. 48, for a very full opinion of this by Judge Robektso3!T, . of the • Superior Court. Rusher v. Sherman, 28 Barb. 416. BockweU V. Brown, 11 Abb. N. S. 400. Petition. Sec. 2. — The petition for that purpose shall, be signed by him, and by so many of his creditors residing within the United States as have debts in good faith owing to them by such debtor, then due or thereafter 248 INSOLVENT ASSIGNMENTS. to become due, and amounting to at least two-thirds of all the debts owing by him to creditors residing \\'ithin the United States. - Sec. 3. — Executors and Administrators may be- come petitioning creditors for the discharge of an in- solvent, under the order of a Surrogate to whom they may be liable to account, or of a justice of the Supreme Court having jurisdiction ; and shall be chargeable only for such sum as they shall actually receive on the dividend of the insolvent's estate. Sec. 4. — Any creditor or creditors of any co-part- nership firm, or of an^^ joint debtors, may unite with one or more of the members of any such co-partnership firm, or with any one or more of any such joint debtors, in a petition for the discharge of such partner or partners, joint (^ebtor or debtors, from his or their debts, under and in accordance with the provisions of article third, of title one, of chapter five, of part two of the Eevised Statutes, and the discharge of any partner or partners, joint debtor or debtors, in consequence of any such petition, shall have the same force and effect as the note or memorandum in writing mentioned in the act hereby amended, and shall not discharge any co- partner or joint debtor, except such co-partner or INSOLVENT ASSIGNMENTS. 249 joint debtor as may 'be designated by the petitioning creditors. Sec. 5. — ■Trustees, receivers and assignees of the estate of any creditor of any insolvent, whether created by operation of law or by the act of parties, may become petitioning creditors for the dischat'ge of an insolvent under the third article, title one, chap- ter five and part second of the Revised Statiitfes, under the order of a justice of the Supreme Court; ' and shall be chargeable only for such sum as they shall actually receive on the dividend of the insolvent estate. Sec. 6. — Such trustees, receivers or assignees shall make and annex to their petition the affidavits which is required to be made by other petitioning creditors by the fourth section of the said third article, except that they may state in such affidavit the nature of the demand in respect to which they become petitioning creditors, and whether arising on any written seciir- i y or otherwise, with the general ground and con- sideration of such indebtedness or information or be- lief, setting forth the grounds of their belief, and their affidavit shall be accompanied by the affidavit of the insolvent as to all matters which are so stated on information and belief. 250 INSOLVENT ASSIGNMENTS A corporation shall be deemed to be creditor for such purpose. And the petition may be signed by any director or other officer duly authorized under its common seal. Art. 7, Sec. 7. A petition by partners may be signed by either. Art. 7, Sec. 8. A petition by joint companies may be signed by any one of such company. Art. 7, Sec. 8. Affidavit. Sec. 7. — Every such petition shall be accompanied by the affidavit of each petitioning creditor, to be taken before any officer authorized to take affidavits to be read in courts of record ; which affidavit shall state, that the sum specified therein and annexed to the name of the petitioner subscribed to such petition, is justly due to him, or will become due to him at some future time to be specified therein ; and shall state the nature of the demand, and whether arising on any written security or otherwise, with the gen- eral ground and consideration of such indebtedness ; and that neither he, nor any person to his use, hath received from such insolvent, or any other person, payment of any demand or any part thereof in money INSOLVENT ASSIGNMENTS. 251 or in any other way whatever, or any gift or reward whatsoever, upon any express or implied trust or con- fidence, that he should become a petitioner for such insolvent. Forms for such affidavits are given. It would seem from Art. 7, Sec. 10, that when such petitioning creditor shall have purchased or procured to be as- signed to him any debts or dues against the debtor for less than the nominal amount, such fact should appear in his affidavit, for it is provided by that sec- tion that such a person shall be deemed a creditor to the amount only of the sum or value actually and in good faith paid by him. Such a creditor can only be a petitioning creditor to the amount he has paid for the claim, even though he has a judgment for the full amount. Anderson case, 11 Abb. 457. And if the sum total of creditors on such a basis will not comprise the requisite two-thirds, it will pre- vent a discharge, but not avoid it after granted. Id. Non-resident creditors must annex to petition origi- nal accounts or sworn copies, and original securities, if any. 252 EN'SOLTENT" iJSSlGNMEl^TS. WarrWs case, 11 Abb. 467. JFoot note. Art. 7, Sec, 9. The mere fact that a claim has been purchased will not vitiate a discharge. It must be shown that the insolvent procured it to be done. Small V. Graves, 7 Bare. 576. Slidell V. McCrea, 1 W.end. 156. McNair v. Gilbert, 3 Wend. 344. The question of interest must be left to the jury. Ayres v. Scribner, 17 Wend. 407. Art. 7, Sec. 12. — Every creditor who shall swear, in any proceeding under this title, that any sum of money is due to him from any debtor, which is not really due, knowing the same not to be due, shall for- feit double the sum so falsely sworn to be due, to the assignees or trustees of the estate of such debtor, to be recovered by them. Their aflfidavit made before a Judge or a Clerk of a Court of Record of the State, district or territory where they reside, duly authenticated under the seal of such Court, shall be received by every officer or court in proceedings under this title in the same manner as if such affidavits were made before a proper office in this State. Art. 7, Sec. 9. INSOLVENT ASSIGNMENTS. 253 Akt. 7, Sec. 11. — Whenever a petitioning cred- itor, under the first, second, third or fourth articles of this title, shall have in his own name, or in trust for him, any mortgage, judgmsnt, or other security, or assignment, by way of security, for securing the payment of any sum of money, upon any real or personal estate of the debtor, in respect to whom or whose estate he is a petitioner, he shall not become a petitioner in respect to the debt to be secured, unless he shall add to his signature to the petition a declara- tion in writing, that he relinquishes to the assignees or trustees, who shall be appointed pursuant to such petition, every such mortgage, judgment, or other se- curity, for the benefit of all the creditors of such debtor ; which declaration shall operate as an assign- ment of such mortgage, judgment or security, to the assignees or trustees, who shall be subsequently ap- pointed under the proceedings upon such petition, and vest in them all the rights and interests of such petitioning creditors therein. Creditors holding such security will not be consid- ered as petitioning creditors if they do not release the same, and if a rejection of such claims leaves less than the requisite two-thirds, no jurisdiction is obtained. 254 INSOLVENT ASSIGNMENTS. Morewood v. Sollister, 6 N. T. 309. Petitions may be amended in this respect. Phillip's Case, 19 Abb. 281. Manufacturing Co. v. Armstrong, 12 Abb. 472. A creditor holding a joint obligation as such secu- rity does not release his claim as against the co-obli- gor by joining in such petition and complying with Art. 7, Sec. 11. Jillsworth V. Caldwell, 48 N. Y. 680. The want of a signature to an affidavit, where the affiant's name is at the head thereof, is not a material defect. Jackson v. Virgil, 3 Johns. 539. Soule V. Chase, 1 Abb. N. S. 59. SCHEDULE. Section 8. — Every such insolvent shall annex to and deliver with his petition, to the officer to whom it shall be presented, a schedule containing — . 1. A full and true account of all his creditors ; 2. The place of residence of each creditor, if known to such insolvent ; and if not known the fact to be so stated ; 3. The sum owing to each creditor, and the no/- ture of each debt or demand, whether aris- ing on written security, on account or other- wise. INSOLVENT ASSIGNMENTS. 255 4. The true cause and consideration of such in- debtedness in each case, and the place where such indebtedness accrued ; 5. A statement of any existing judgment mort- gage, collateral or other security for the pay- ment of any such debt ; 6. A full and true inventory of all the estate, both real and personal, in law and equity, of such insolvent, of the incumbrances existing thereon, and of all the books, vouchers and securities relating thereto. Property exempted by law should be mentioned in the schedule. The schedule need not state the grounds of the de- mands of creditors with such particularity as is re- quired in a statement for judgment by confession. SouU V. Chase, 1 Abb. N. S. 49 . Some statement should be made which shall be sufficient to apprise disputing or opposing creditors of the general grounds of indebtedness. Soule V. CJiase, Supra. The language, money lent, money paid or services at the debtor's request, held to be sufficient. Taylor v. Williams, 20 Johns. 21. Want of particularity differs from an entire omis- sion of consideration. 256 INSOLVENT ASSIGNMENTS. McNair v. Gilbert, 3 Wend. 344. Defects arising from want of particularity can be cured on the hearing^ In re Burst, 1 Wend. 239. Morewood v. Sollister, 6 N. Y. 389. In re Rosenberg, 10 Abb. N. S. 450. Unliquidated claims- for torts need not be stated. Grocers'' Nat. Bank v. Clark, 31 How. 115. The entire omission of a creditor's name, or the insertion of an incorrect amount will not make the proceedings defective, but it is necessary after insert- ing the name to name the amount so that the two- thirds can be ascertained. Stanton v. Ellis, 12 N. Y. 579. It must be made to appear that it was fraudulently done, and is a question for the jury. Soule V. Chase. 1 Abb. N. S. 62. The mere omission will not invalidate a discharge, and the petitioner need not admit a disputed claim by putting it in his schedules. Am. Flask Co. v. Son, 3 Abb. 333. As to correcting omissions and amending sched- ules, see Small Y. Graves, 7 Barb. 576. Denniston v. Stephens, 2 Johns. 289. Ayres v. Scribner, 17 Wend. 407. ' INSOLVENT ASSIGNMENTS. 257 PETITION PRESENTED TO WHOM. Sec. 9. — Every such petition may be presented to any officer specified in the first section of the seventh article of this title, or to any judge of any County Court. Article 7, section 1, provides that applications for attachments under the first article of this title, for the appointment of trustees under the second article, for the discharge of an insolvent from his debts under the third article, to compel an assignment under the fourth article, and for the exemption of a debtor's person from imprisonment and arrest under the fifth article, may be made to either of the following of- ficers : Circuit Judges, Supreme Court Commission- ers, First Judges of County Courts, and any other judge of such courts, of the degree of counsellor-at- law in the Supreme Court, Eecorders' of Cities, and if made in the city of Schenectady the Mayor there- of ; and applications under the third and fifth articles to any County Judge, as in the said articles specified ; but no application under any article of this title shall be made to any alderman of the city of New York. It is further provided in Section 2 of Article 7> that applications under the third, fourth and fifth. 17 258 INSOLVENT ASSIGNMENTS. articles of this title shall be made to an officer resid- ing in the county in which the insolvent or imprisoned debtor resides or is imprisoned ; and proof of such residence or imprisonment shall be made at the time of presenting the petition, and before any order shall be granted thereon. The further provisions with reference to the prop- er officer are as follows : Aet. 7, Sec. 4. — If there be no circuit Judge, Supreme Court Commissioner, Eecorder, First Judge of a Countj Court, or any judge of such courtof degree of counsellor-at-law, residing within any county, disin- terested as creditor or otherwise, to whom application can be made under the third, fourth and fifth articles of this title, then application under the said articles may be made to any such officer residing in any other county; but no place shall be appointed for the hear- ing on any application out of the county in which the insolvent resides, or is imprisoned. Art. 7, Sec. 5. — In case of the death, sickness, resignation, removal from office, absence from the county of his residence, or other disability, of any officer, before whom any proceedings may have been commenced under the first, second, third, fourth or fifth articles of this title, the said proceedings may INSOLVENT ASSIGNMENTS. 259 be continued by his successor in office, or by any other officer residing in the same county, who might have originally instituted such proceedings, in the same manner and with the like effect, as if originally commenced before him. Aet. 7, Sec. 6. — ^If there be no officer in the same county competent, under the last section, to continue such proceedings, then any Judge of the County Courts may attend at the time and place appointed for the hearing of any matter, and may adjourn the same to the next County Court to be held in and for the county in which such hearing was appointed ; and the said Court shall proceed therein, in the sam'e manner, and with the like authority, as the officer who commenced such proceedings. These proceedings, if instituted before one of the judges in the city of New York, may be continued before another. Code of Civil Procedure, Sec. 26. Laws of New York, L840, chap. 276, p. 222. In re Roberts, Com. PI., Sp. Term, Sept. 16, 1878. This is a manuscript opinion by Judge I. F. Daly, wherein hs elaborates at length on this subject, as well as the form of the order, to show cause. Ob- jection was made to the regularity of the proceedings 260 INSOLVENT ASSIGNMENTS. on the ground that the order was returnable " before me or one of the judges." Judge Daly sustained the order. AFFIDAVIT. Sec. 10. — An affidavit in the following form shall be annexed, to the said petition, account and inven- tory, and shall be sworn to and subscribed by such insolvent, in the presence of such officer who shall certify the same : " I, , do swear (or affirm, as the case may be) that the account of my creditors and inventory of my estate, which are annexed to my petition and herewith delivered, are in all respects just and true ; and that I have not, at any time or in any manner whatsoever, disposed of or made over any part of ray estate, for the future benefit of myself or my family, or in order to defraud any of my creditors ; and that I have in no instance created or acknowledged a debt for a greater sum than I honestly and truly owed ; iand that I have not paid, secured to be paid, or in any way compounded with any of my creditors with a view fraudulently to obtain the prayer of my peti- tion." . The affidavit must strictly comply with the statute. An averment that the petitioner had not disposed r?' ^r^ Q •S'Ss"' 3 s S* a d (ft 3" a. 3»(a. 3 as-. o. g-a s-^s °"^a is N-a- ^s- -*a s s c V. • '■ i a Ci §■ s. 'S' ^ S. §• ^ € «^ » t i 293 ixsolvp:a'T assignments. Section 9. — ^Every suck petition may be present- ed to any officer specified kt tke first section of the seventh article of this title, or to any judge of any, county court. . , liNSOLVENT ASSKSN^MENTS, 297 No. 2. AFFIDAVIT OF CREDITOR. > SS'. one ot the petitioning creditors of an insolvent debtor, being duly sworn, doth depose and say, that the sum of lawful money of the United States', being the sum an- nexed to the name o£ this' deponent, subseribed to the petition, is JTastly due to hiiaa f!i?offi the said iBsal- ventfop and that neither he, nor any person to his use, hath received fpom &© said insolvenrt!, or any other person, payment of any demand, or any part thereof, iar money or in any way whatever, or any gift or reward whatsoever, upon any express or implied trust or confidence, that he should become a petitioner for the said insolvent.^ MiBorn t& before mej this ^f\ of 18. 298 INSOLVENT ASSIGNMENTS. No. 3. SAME AS FOR PARTNEES. } ss. partner of the firm or co-partnership of and who, as one of the co-partners, and in their behalf, hath subscribed to the petition the name or firm of their said co-partnership, as petitioning creditors of an insol- vent debtor, being duly sworn, doth depose and say, that the sum of lawful money of the United States, being the sum an- nexed to the name of the said co-partnership sub- scribed to the petition, is justly due to them from the said insolvent, for and that neither he, nor any member of said firm, nor any person to his or their use, hath received from the said insolvent, or any other person, payment of any INSOLVENT ASSIGNMENTS. 299 demand, or any part thereof, in money, or in any other way whatever, or any gift or reward whatso- ever, upon any expressed or implied trust or confi- dence, that he or they should become a petitioner or petitioners for the said insolvent. Sworn to he/ore me, this day \ of , 18 ] 300 MSOtFEXJD ittSSlG-NMENTS. No. 4. SAME AS FOR TRUSTEE, ETC. V ss. Trustee. one of the petitioning creditors of an insolvent debtor, being duly sworn, doth depose and say, that the sum of lawful money of the United States, being the sum an- nexed to the name of this deponent, subscribed to the petition, is justly due to him from the said insol- vent as such Trustee, and that the same arises on a written contract, and your petitioner further says, on information and belief, that the ground of such in- debtedness is as follows : and that neither he, nor any person to his use, hath received from the said insolvent, or any other person, payment of any demand, or any part thereof, in INSOLVENT^ASSIGNMENOPS. 301 money or any way whatever, or any gift or reward whatsoever, upon any express or implied trust or confidence, that he should become a petitioner for the said'insdlveift. Sworn to before me, this day \ oj '■ 18 t Annexed to this must.be the ^affidavit of the insol- vent as to matters alleged on information and belief. Executors and administratotsaaa^be'come petition- ing creditors. Sec. 3. Trustees, receivers, and assignees may also become such. Sec. 5. This form of afiidavit can be changed so as to suit either of the ofiicers mentioned as well as trustees. 305 INSOLVENT ASSIGNMENTS. No. 5. AFFIDAVIT OF PETITIONER AS TO RESI- DENCE OF CREDITORS. BEFORE THE HON. In the matter of the application of an insolvent debtor, together with his cred- itors, (fee, pursuant to Art. 3, Chap. 5, Title 1, Part 2, of the Revised Statutes. County SS. the above-named insolvent being duly says, that the places of residence of the creditors of this deponent residing in the United States, where such place is known to deponent, and the amount due to each, are as follows, that is to say : And further he says not. to before me this day \ of 18 ; INSOLVENT ASSIGNMENTS. 303 No. 6. INVENTOEY. A full and true inventory of all the estate, both real and personal, in law and equity of of the incumbrances existing thereon, and of all vouchers, and securities, rela- ting thereto, and the value of such estate. .304 INSOLVEXT ASSIGXMENTS. No. 7. SCHEDULE OF CREDITORS, ETC. , s^ « . e'« a, • Si'is ■ i, an insolvent debtor, do that I will well and truly execute the trust by that appointment reposed in me, according to the best of my skill and understanding. Sworn to before me, this day\ of 18 r INSOLVENT ASSIGNMENTS. 321 No. 18. NOTICE BY ASSIGNEE. [^JVbtice to be inserted three weeks.] Pursuant to the provisions of the first title of the fifth chapter of the second part of the Revised Statutes, notice is hereby given that the undersigned ha been appointed assignee of an insolvent debtor. All persons indebted to the said debtor are required to render an account of all the debts and sums of money owing by them respectively to the said assignee by the day of next, at and to pay the same ; and all persons having in their possession any property and effects of the said debtor, are required to deliver the same to by the day above specified. All the creditors of the said debtor, are also required to deliver their respec- tive accounts and demands to by the day of next. ' Dated the day of 18 21 322 INSOLVENT ASSIGNMENTS. No. 19. DISCHARGE. To all to whom these presents shall come or may concern: I, Send Greeting : Whereas an insolvent debtor, residing within the said did, in con- junction with so many of his creditors, residing with- in the United States, as have debts in good faith owing to them by the said insolvent, amounting to at least two-thirds of all the debts owing by him to creditors residing within the United States, present a petition to praying that the estate of the said insolvent might be assigned for the benefit of his creditors, and he be discharged from his debts, pursuant to the provisions of the statute authorizing an insolvent debtor to be discharged from his debts : whereupon I, ordered notice to be given as required by law, to all INSOLVENT ASSIGNMENTS. 323 the creditors of the said insolvent to show cause, if any they had, before at a certain time and place, why an assignment of the said insolvent's estate should not be made, and he be discharged from his debts, proof of the service where- of on such of the creditors of said insolvent, whose places of residence are known to the insolvent, as re- quired by law and of the publication, whereof hath been duly made. And whereas it satisfactorily appears to me, that the doings on the part of the creditors are just and fair, and that the said insolvent has conformed in all things to those matters required of him by the said statute, I directed an assignment to be made by the said insolvent, of all his estate real and personal, both in law and equity, in possession, reversion, or remainder, to assignee nominated by the creditors to receive the same ; and the said insolvent having, on the day of made such assignment, and produced to me a certificate thereof, executed by the said assignee and duly proved, and also a certificate of the Clerk of this County, that such assignment is duly recorded in his office : Now, therefore, know ye, that by virtue of the power and authority in me vested, I do hereby discharge the said insolvent from 324 INSOLVENT ASSIGNMENTS. all his debts, and from imprisonment, pursuant to the provisions of the said statute. In witness whereof, I have hereunto set my hand and seal the day of in the year of our Lord, one thousand eight hundred and INDEX TO ACT. A ACCEPTANCE, by assignee, xviii. must appear in assignmient,. xviii. ACCOUNTING, citation for, xxiv. assignee may apply for, xxiv. when creditor can apply for, zzir. assignor may apply for, xxiv. , surety may apply for, xxiv. proceedings on, xxvii. citation for, how served, xxv. ACKNOWLEDGMENT, of assignment, xviii. of acceptance, xviii. ADVERTISEMENT, for claims to be preseatpdj xx. what to contain, xx. where and how long to, xxi. be published, xxi. 326 INDEX TO ACT. APPEALS, how made, xxx. APPEARANCE, without service, xxvii. ASSIGNEE, fees of, XXXV. must assent to the assignment, xyiii. may fill the schedule, xix. may advertise for claims, xx. must give bond, xxi. may be removed for cause, xxil. may be required to^ive further security, zxiii. may apply to be discharged, xxii. bond of, how prosecuted, xxiii. proceeding on death of, xxiii. may apply for citation, xxiv. may apply for leave to compound claims, xxx. liability of, when claims are compounded, xxxi. ASSIGNMENT, ' how made, xviii. where recorded, xviii. before whom acknowledged, xviii. assent of assignee must appear in or be indorsed on, xviii. ASSIGNOR, to prepare schedules, xviii. must acknowledge assignment, xviii. may be compelled to give information and produce his books, XX. must be served with the general citation, xxv. INDEX TO ACT. 327 B BOND, of assignee, zxi. a failure to file, xxili. how prosecuted, xziii. proTisional, zxii.' «* • ■ may be increased, xziii. where filed, xxi.-xxzi. BOOKS, i-at of assignor, how inspected, xx.-xxix. CITATION, * (k for accounting, xxir. who may apply for, xxiv. when may be applied for, xxIt. how served, xxv. what to contain, xxiv. •'.t CLAIMS OF CREDITORS, .'* notice to present, XX. ' a failure to present, xxx. •'»■ assignee can apply for leave to componnd, xxx. disputed, how tried, xxxL CLERK OF COURT, duties of, xxxii. COMPOSITION, discharge of assignee on proof of, xxviii. 328 INDEX TO ACT. COMPOUNDING CLAIMS, assignee can apply for, xxx. COSTS, award of, xxxii. COURT OF COM. PLEAS, papers to be filed in clerk's oflSce of,ixzzi. jurisdiction of, xxxi. COUNTY COURT, jurisdiction of, xxxi. COUNTY JUDGE, power of, xxvii. D DEATH OF ASSIGNEE, proceedings on, xxiii. DISCHARGE, of assignee, xxviii. of surety, xxviii. DISPUTED CLAIMS, trial of, xxxii. 1 EXAMINATION, of witnesses, xxix. mOEX TO ACT. 32D P FILING, of schedules, time of, xviii. of bond, time of, xxi; of papers in New York County, xxxL I INVENTORY, what to contain, xix. assignor to malse, xviii. to whom delivered, xviiL when assignee can make, xix. when to be delivered, xviii.-xix. .J' JURISDICTION, of Court of Com. Pleas, xxxi. County Court, xxxi. N NOTICE, to creditors to present claims, xx. when published, and how long, xxi. what to contain, xx. ORDERS, how entered and enforced, xxx. 330 INDEX TO ACT. POWERS, of connty judge, xxtu. judge of Court of Com. Pleas, xxn. PROCEEDINGS, on death of assignee, xxiii PRODUCTION, of books and papers, xxir, R REFEREE, powers of, xxvii. REMOVAL OF ASSIGNEE, misconduct or incompetency cause for, xxii. on his own application, xxii. s SCHEDULES, what to contain, xix. by whom verified, xix. when to be filed, xviii. where to be filed, xviii.-xxxi. when assignee can file, xix. how assignee must verify, xx. may be amended, xxiii. SECURITY, additional may be required, xxiii. INDEX TO ACT. 331 SERVICE OF CITATION, by publication, xx7. personally, xxv. SURETY, ' .-ty-i discharge of, xxviii. must be served with generail citation, xxv* TITLE OF ACT, as cited for all purposes, xxii. w WITNESS, examination of, xxix. INDEX TO EULES. ACCOUNT OF ASSIGNEE, how made, 25, 26, 27, xlii., xliii. niust always be referred, 23, xli. APPEARANCES, how noted, 7, xxxvii. ASSIGNEE, must keep books, 19, xl. must give notice of sales, 20, xl. service of notice by mail by, 21, xli. must file vouchers with petition for general citation, i:i, xli. must file an account in all cases, 23, xli. appointment of, substituted, 24, xlii. B BOND, form of, 15. justification of sureties on, 16, 17, xxxix. provisional afiidavit for, 18, xxxix. INDEX TO RULES. 333 G CLERK, duties of, 1, x^'xvi. books to be kept by, 1, xxxvi. shall keep papers iu separate file, 2, xxxvL shall not permit any paper to be taken from his files without an order, 3, xxxvi. shall furnish copies of all papers, 5, xxxvii. D DISCHARGE, not granted unless creditors have been advertised for, xlL nor without an accounting, xli. N NOTICE, to present claims, how served, 31, xliv. proof of service of, required, 31, xliv. P PROCESS, must issue out of the court and be tested by the clerk, 6, xxxvii. PROVISIONAL BOND, what necessary to obtain, 18, xxxix. R REFEREE, report of, 29, xliii. 334 INDEX TO RULES. s SCHEDULES, what to contain, 8, xxxvii. signing of, 9, xxxviii. filing of, by assignee, 10, xxxviii. name, residence, etc., how stated, 11, xxxviii. recapitulation in, 12, xxxviii. contingent liabilities, how stated, 13, xxxix. amendments of, 14, xxxix. affidavit for provisional bond deemed as, 18, xxxix. SUBSTITUTED ASSIGNEE, appointment of, how recorded, 24, xlii. w WITNESS, testimony of, must be signed, 28, xliii. INDEX TO FORMS. Di'Mii;)'- il'i! Assignment, No. 1 148 Affidavit of debtor, No. 2 ,_ . , .'. ; lg4- Assets, schedule of. No. 3 ;g20.,is. . 15G Affidavit of assignee on which to file provisional bond, No. 7. 162 Advertisement, No. 11 172 Acknowledgment, No. 14 ^ .1; 'ITS Assignee's petition to be relieved. No. 15 ■.. 177 Affidavit of Assignee, No. 16..... 180 Assignee's application for final accounting. No. S2 191 Account of Assignee, No. 27 200 Account when settlement has been effected. No. 29 207 Assignee's consent to removal. No. 38 232 Bond, No. 6 159 Clerk's form, No. 5 158 Composition deed. No. 12 173 Creditor's petition for account, No. 20 186 Citation, No. 24 196 CiUtion, No. 26 199 336 INDEX TO FORMS. Creditors' p'etition for removal of assignee, No. 35 225 Creditors' request for such removal, No. 37 231 Consent of assignee. No. 98 232 Debtor's affidavit. No. 2 154 Debts, schedule of, No. 4 157 Deed, composition, No. 12 173 Decree, final, No. 33 219 Decree, final. No. 34 223 Form, clerk's. No. 5 158 Form of advertisement. No. 11 172 Final decree, assignee's application for, No. 33 219 Final decree. No. 33 219 Final decree. No. 34 223 General release. No. 13 174 General release, petition of assignee to be relieved thereon, No. 15 177 Inventory of schedule, Nos. 3 and 4 156, 157 Notice to creditors to present their claims. No. 11 172 Order to file provisional bond. No. 8 165 Order to advertise for creditors. No. 10 170 Order relieving assignee on account of general release, No. 17 181 Order for assignor's statement. No. 19 , 185 Order on petition of creditor for assignee's account, No. 21 . . 190 Order on application of assignee. No. 23 194 Order for citation, No. 25 197 JJSIDEX TO FORMS. 337 Oath of assignee to account, No. 28 2(;5 Order of reference ou accounting, No. 30 209 Order to show cause on petition of creditor for removal of assignee, No. 36 _ 229 Order of removal thereon. No. 39 234 Order granting leave to sue. No. 40 23'7 Provisional bond, affidavit of assignee on which to file the j same, No. 7 2g2 Provisional bond, order for same. No. 8 165 Petition of assignee for order to advertise. No. 9 167 Petition of assignee to be relieved on account of general re- lease. No. 15 177 Petition of assignee to obtain assignor's statement, No. 18 . . . 183 Petition of creditor for accounting, No. 20 186 Petition of creditor for removal of assignee. No. 35 i'lb Release, general. No. 13 [ 174 Release, general, petition of assignee to be relieved on account of. No. 15 177 Beference, order of, on accounting, No. 30 209 Report of referee, No. 31 210 Report of referee. No. 32 217 Bemoral of assignee, petition of creditor for. No. 35 225 Request of creditors. No. 37 231 Removal, order of, No. 39 234 Schedule of assets, No. 3 156 Schedule of debts, No. 4 157 Statement of assignor, petition for, No. 18 183 INDEX TO FORMS TWO-THIED ACT. PAOK. Affidavit of creditor, No. 2 297 Affidavit of creditor, partners, No. 3 298 Affidavit of creditor, trustees, No. 4 300 Affidavit of petitioner as to creditors. No. 5 - 302 Assignment, No. 15 , 316 Assignment, certificate of. No. 16 318 Demand for jury. No. 12 312 Discharge, No. 19 322 Inventory, No. 6 303 Notice to creditors,' No. 9 308 Notice to creditors, with proof of service. No. 10 309 Notice to creditors, to be published. No. 11 311 Notice by assignee. No. 18 321 Order to show cause. No. 8 306 Order for jury, No. 13 313 Order for assignment. No. 14 314 Oath of assignee. No. 17 320 Petition, No. 1 ..'. 295 Schedule of creditors. No. 7 304 INDEX A ACCOUNTING THE, 38 by assignee, 95 , , citation on, 4, 98 final decree on, 121 i hearing before referee, 116 may be had on petition of, any one interested, 34, 95 petition for, 96 practice on, 97 powers of county judge, 6, 95 proceeding on application for, 34 referee's duties on, 6, 124 referee to take and state, 6, 124 reference on, 6 to whom petition presented, 9 where there has been a partial compromise, 27 when asked by one creditor may be refused, 54 must be had before sureties on bond can be released, 143 340 INDEX. ACKNOWLEDGMENT, must be endorsed, 1 must be personal, 21, 81 must be by all, 2, 65, 81 officer taking, 72, 81 ACTION OF ASSIGNEE, when compromise is effected, 26, ^7 ADVERTISING, petition of assignee for, 32 ADVERTISEMENT, how long published, 3, 3i> what to contain, 3, 33 AFFIDAVIT, assignees to schedule, 61 assignees to file bond, 62 by whom made, 61, 62 required for bond, 11 verifying schedule, 61 AMOUNT OF BOND, when determined, 11 APPEAL, from final decree, 122 APPLICATION, for citation, 4, 36, 95 for leave to advertise, 32 of assignee to obtain information on which to file a schedule, 9, 10 of petitioner to prosecute bond of assignee, 17 INDEX. 341 APPROVAL, of bond, 14 ASSIGNEE THE, accounting, 38, 95 allegations of misconduct of must be positive, 141 application for information in which to file a schedule, 9, 10 application for leave to advertise, 32 action of, when compromise is effected, 26, 27 account must be verified, 112 bond, approval of, 14 bond, filing of, 22, 47 bond, how prosecuted, 3, 17 bond, refusal of assignee to give, 18 bond, must be executed and filed before any authority in, 21,51 bond by the terms of the assignment, 47 cannot petition the court for instructions, 53 act until bond is filed, 140 renounce the trust, 140 death of, 4 entitled only to amount actually paid on compromise, 53 entitled to indemnity against all expenses, 52 fees of, 137 liability of, 48 liable for rent, 140 may a,pply |o be removed, 3, 43 may apply for accounting, 4, 36 may apply for leave to compromise claims, 31 3i2 INDEX, ASSIGNEE TRE,— Continued. may file schedules, 2, 23, 62 may by one or more, 39 must acknowledge assignment, 3, 21, 47 must exercise his own discretion, and not apply to the Court, 141 must be charged with all the proceeds of the estate, 142 must execute and file bond before exercising any authority, 21,47 no right to employ clerks, 54 140 not a bona fide holder, 40, 51 not required to prove claims, 52 not compelled to sue as trustee, 52 named in assignment, 21 order protects, 121 of vendor of goods, 50 petition of, for citation, 108 petition by, on accounting, 27 petition for removal of, 3, 4 protected by order, 121 right of, to advertise, 3, 33 removal of, 3, 4, 42 refusal of, to file bond, 18, 48 right in property assigned, 40, 48, 50, 51 right of judgment creditor as against, 49 refusal of, to give bond does not render assignment void, 03 right of an order for accounting, 95 should declare dividends, 32 INDEX. 343 ASSIGNEE THE,— Continued. render his account as soon as possible, 139 sale by public or private, 32 the, 21 should allow inspection of books, 53 time to file inventory by, 2 time to be called to account, 34 when not allowed counsel for, 54 when removed, how to prosecute bond of, 3, 17 when property in the hands of, may be attached, 57 where title dates from, 23 ASSIGNOR, all join in acknowledgment, 81 duties of, 55 must sign and acknowledge assignment, 56, 63 must comply with statute, 67 need not disclose the intent to make assignment, 91 non resident, 66 note of, when valid set-ofE, 49 residing in different counties, 72 right to apply for removal of assignor, 140 to file the schedules, 57, 61 to verify schedules, 61 ASSIGNMENTS, acknowledgments of, must be personal, 72 attorney in fact cannot execute, 86 assignor and assignee must execute, 1, 81 assignor must sign and acknowledge, 63, 71 3^ INDEX. ASSIGNMENTS,— Continued. by assignors -residing in different counties, 83 by infant is void, 64, 87 by non residents, 66, 89, 85 by directors of a corporation, 86 by partners, 2 can be verified by one partner, 63, 81 conveying real estate in New York county, 66, 79 cannot be proven by subscribing witness, 80 debts need not be specified in, 66 defect in inventory does not render void, 66 "directions as to, 76 distinguished from sale, 78 directions as to counsel fee in, 92 effect of on bankruptcy proceedings, 140 if real property how recorded, 2 must be in writing. 2, 80 must be acknowledged, 2, 71 must be executed by all, 2, 71 must be signed and acknowledged by assignor and assignee, 2, 71 neglect to file bond does not render void, 90 not void for withholding discretion to sell on credit, 92 not proved or acknowledged is void, 80 not complying with statute is fraudulent, 80 not fraudulent on account of certain provisions, 87, 89 neglect to record does not render fraudulent, 67, 85, 90 setting aside of, 66, 85 INDEX 345 ASSIGNMENTS— Cowiiwwet?. time from which it takes effect, 75 to an insolvent is void, 84 void, not necessarily fraudulent, 87 what constitutes. 87 where one partner can make, 71, 81, 82 where recorded, 1, 72, So ASSIGNMENT WITH PREP^EIIENCES, an insolvent may prefer, 144 a preference for laborers not named will not avoid, 144 a protection for accommodation endorser is valid, 145 a provision for changing order of preference by assignor binds, 145 also a provision for future preferences, 145 a provision excepting a particular claim does not render void, 145 as to conditional release for, 145 as to debts otherwise secured, 146 as to guarantee by assignee, 146 as to creditors who have signed a composition deed previously, 146 bad in part void in toto, 1 44 debtor may give preference for payment in fine, though debts owned by one person who has purchased at discount, 146 partial is not void, 146 ATTACHMENTS, against assignee, 123 346 . INDEX. ATTACHMENTS,— CbnftwMerf, may be levied prior to making the statutory acknowledg- ment, 92 valid as against claims of assignee, 49 AUTHORITY OF ASSIGNEE, to advertise for creditors, 32 to apply for accounting, 36 to apply for removal, 3, 43 to apply for leave to compound claims, 31 B • BOND, affidavit with, 11 amount of, how determined, 11 assignee's petition to file, 9 by whom prosecuted, 3, 17 defect in, 19 failure to file does not effect assignment, 141 how prosecuted, 17, 19 liability of sureties on, 20, 45 only one, 19 power of county judge although not filed, 20 property out of the hands of assignor although not filed, 20 provisional, 9 refusal of assignee to give, 18 requisites of, 13 rule of common pleas as to, 11 security may be increased, 18 time for filing, 7, 19, 47 INDEX. 347 BOND, — Continued. ' ' " ' to whom made, Id where filed, 14, 19 who to fix amount of, 11 who to approve, 14 BOOKS, assignee should allow inspection of, S ( assignor's accounts, 59 c CERTIFICATE, of acknowledgment of the assignment, 1 CITATION, assignee to account, 95 at whose instance, 4, 95 final order on, 36 general, who served on, 5 on assignee's petition, 36, 95 proceedings on, 99 requirements of, 95 service of, 6, 95 CLERK OF COURT OF COMMON PLEAS, papers to be filed with, 7 COURT OF COMMON PLEAS, powers of judges of, 7 rule as to bond, 11 COUNTY COURT, power of judge of, 7, 8, 95 COUNSEL FEES, how regulated, 143 348 INDEX. COUNTY CLERK'S OFFICE, bond filed in, 14, 19 schedule filed in, 61, 67 COMPOSITIOISr AGREEMENT, merely suspends action on claim, 139 COMPOUNDING CLAIMS, assignee may apply for, 31 only as to claims belonging to the estate, 142 COMPROMISE, action of assignee on, 26 settlement, what assignee entitled to on, 53 CONTENTS OF SCHEDULE, 57 66 CREDITORS, bound by final order, 36, 121 claim of, assignee not required to prove, 52 notification to, 3, 32 residence of, to be stated in schedule, 60 should not be deprived of rights unless claims are disputed, 139 secured by making of assignment, 140 D DEATH OF ASSIGNEE, 4 DEBTOR, to file schedule, 57, 61 to make acknowledgment, 56, 63 residing in different counties, 72 non resident, 66 DEBTS, need not be specified in the assignment, 66 INDEX. DECREE FINAL, appeal from, 122 attachment against assignee for non-compliance with, 123 DECREE FINAL,— Continued. efEects of, 36, 121 ' form of, 122 how appealed from, 122 DIRECTIONS IN ASSIGNMENT, 87, 89 DISBURSEMENTS OF ASSIGNEE, 52, 54 DISCHARGE OF ASSIGNEE, proof required for, 138 who barred by, 138 not granted without an accounting even on compofflr tion, 142 DUTIES OF ASSIGNOR, 55 of referee, 124 E EFFECT OF LONG PENDING ACCEPTANCE, by assignee, 90 EXECUTION OF ASSIGNMENT, by assignor, 56, 63 by assignee, 3, 21, 47 EXCEPTIONS, how lieard, 120 to report of referee, 119 EXPENSES, direction in assignment, 83, 91 350' INDEX. EXPENSES,— Continued. of assignee should be allowed, 52 when not allowed, 54 F FILING PAPERS IN NEW YORK, 7 FINAL ACCOUNTING, 38, 95 duties of referee on, 124 jurisdiction of judge on, 6, 95 order on binds creditors, 36 FINAL DECREE, 121 appeal from, 122 attachment against assignor for non,-compliance with, 123 form of, 123 FRAUDULENT ASSIGNMENT, when not, 89, 91 GENERAL ASSIGNMENT, language of, 92 GENERAL PRACTICE, 129 GUARDIAN FOR MINORS, 102 GROUNDS FOR SETTING ASSIGNMENT ASIDE, 66, 85 H HEARING, before referee, 116 exceptions to report, 119 INDEX. 351 INSOLVENT, assignment to, is void, 84 INVENTORY, contents of, 57, 66 defect in, 65 must be verified, 61, 62 should state all assets, 57, 65 time for debtor to file, 61 .time for assignee, 63 what to contain, 62 where filed, 61, 67 JUDGMENT, creditor's right as against the assignee, 49 JURISDICTION, of judge on final accounting, 6, 95 L LIABILITY, of sureties on bond, 20, 45 M MINORS, guardian of, 102 how served, 102 rights of, 101 332 IJS^DEX. N NEGLECT, to file bond, 90 to record assignment, 67, 65, 90 NEWSPAPERS, which to advertise in, 3, 33 NON RESIDENT ASSIGNOR, 66 assignment of, 8d NOTE OF ASSIGNOR, when valid set-o£E, 50 NOTICE, of filing report of referee, 120 OFFICER, taking acknowledgment, <2, 81 OMISSION OF ASSIGNOR, to make the inventory, 64 of a debt in inventory, 65, 88 ONE PARTNER, can make assignment, 64, 81, 82, 86 ORDER, FINAL, effect of, on creditors, 121 how appealed from, 122 provision of, 123 relieving assignee on compromise, 27 who affected by, 121 INDEX. ^53 OliUiLK TO ADVERTISE, 3, 33 to show cause on petition for removal, 43 P PARTNERS, where one can make assignment, 64, 81, 82, 86 PARTNERSHIP, deposits with insolvent banker, 50 PETITION FOR ACCOUNTING, 96 for accounting by assignee, 36 for accounting to whom presented, 97 for removal of assignee, 42' of assignee on compromise, 26 of assignee for order to advertise, 32 POWERS OF REFEREES, on accounting, 124 PRACTICE, on accounting, 38, 95 upon application to account, 95 PROMISSORY NOTE, subject to set-o£E, 50 PROPER OFFICER, in New York county, 7 PROPERTY IN HANDS OF ASSIGNEE, when it may be attached, 51 PROVISIONAL BOND OF ASSIGNEE, affidavit for, 9 23 354 INDEX. PUBLICATION FOR CREDITORS, time of, and place where, 3, 33 service of citation by, 95 R REAL ESTATE, conveyance of, in New York coontj, 37 RECORDING ASSIGNMENTS, 1, 2, 72 REFEREE, appointment and powers of, 124 on final accounting, 6, 116 powers of, on accounting, 6, 121 powers and duty of, 126 report of, 126 of exception to, 119 of notice of filing, 120 REFERENCE, must always be, 139 on accounting, 6 on accounting, 6 on petition for removal of assignee, 42, 45 REFUSAL OF ASSIGNEE, to file bond, 18 to furnish bond, ground for removal, 48 to give bond, does not render assignment void, 93 INDEX. EEMOVAL OF ASSIGNEE, 50, 90, 91 grounds for, 44 petition iait, 42 order to show cause on, 42 reference on, 45 REQUISITES, of assignment, 1, 76 of an assignee, 39 of an assignor, 55 of sureties on bond, 13 REQUIREMENTS, of petition on compromise, 28 RESIDENCE, of creditors to be stated in schedulcj 57 RETURN DAY OF CITATION, on accounting, 98, 116 RIGHTS, of assignee in assigned property, 48 of assignee in order for accouhtin^, 100 RULES OF COMMON PLEAS, as to bond, 11 s SCHEDULE, Affidavit with, 12 Contents of, 2, 57, 66 defect in does not make assignment void, 66 355 -356 INDEX. 8CSEDJJLE,—ContintiedL individaal aiid partner, 62 omission of debt from, does not vitiate, 64 ghould state all assets, 65 time for assignee to file, 62 for debtor to file, 61 verification of, bj partners, 62 vrhat to contain, 57 where filed, 61, 67 SERVICE OF CITATION, to account, 98 STOCKHOLDERS, not consenting to an assignment, may bring an action to set it aside, 129 SUBSTITUTED TRUSTEE, 45 SUMMONS, service on assignee, 97 return day of, 98 SURETIES ON BOND, 13 liaKlity of, 20, 45 THE ASSIGNOR, 55 assignee, 21 assignment, 69 accounting, 95 bond, 9 INDEX 357 THE ASSIGNOR— CoM^wwec?. final decree, 121 . law of 1860 not an insolvent law, 93 referee, 124 TIME, after which accounting can be had, 95 TRUSTEE, substituted, 45 VALID SET-OFF, when assignor's note constitute, 49 VALIDITY OF ATTACHMENT, as against assignee's daim, 49 VENDOR, of goods, rights of assignee of, 50' VERIFIED, account of assignee must be, 112 schedule must be, 61, 62 VOID ASSIGNMENT, 87 not necessarily fraudulent, 87 w WRITING, assignment must bo in, 2, 80. INDEX TO TWO-THIRD ACT. ADMINISTRATOR, may be petitioning creditor, 248 AFFIDAVIT, of creditor, what to oontaio, 25.0 of creditor, before whom taken, 250 defect in, when not material, 254 of debtor, what to contain, 260 of debtor, to whom presented, 260 of debtor, must be annexed to petition, 260 of debtor, before whom made, 261 APPEARANCE, how enforced, 269 ASSIGNEES, may be petitioning creditors, 249 petition of, what to contain, 249 what is Tested in by assignment, 275, 278 refusal of to certify, 275 INDEX. 359 ASSIGNMENT, when and how made, and where irecorded, 273; 274 what must appear before, 273 to whom made, 274 what vests in assignee by, 275, 278 with preferences bai-s dischar 'e, 272 C. CAUSE, of debts should be stated, 247 CERTIFICATE, necessary for discharge, 278 CERTIORARI, time for granting writ of, 294 CLERK, fees of, 279 CONTENTS, of schedule of, 254 of affidavit of debtor, 260 of notice, 262 .... , of affidavit of creditor, 250 CO-OBLIGOR, on security not released, 254 CO-PARTNERS, may sign petitioa, 248 CORPORATION, deemed a creditor, 250 petition of, by whom signed, 250 360 INDEX. CREDITOR, adminstrator may he, 248 assignee may be, 249 co-partners may be, 248 affidavit of, what to contain, 250 affidavit of, before whom taken, 250 petition of non-resident, 251 false swearing of, penalty for, 252 must relinquish security, 253 may be examined, 2G9 omission of name of, 256 D. DEBT, cause of, should be stated, 247 what is discharged, 280 DEBTOR, how discharged, 246 when discharge of, not granted, 247 affidavit of, what to contain, 260 wife of, may be examined, 269, 270 may be examined on hearing, 270 discharge of, when granted, 278 DEFECT, in affidavit, when not material, 254 in schedules can be cured on hearing, 256 DEATH, of officer, 258 INDEX. Ml DEMAND, ID for jury, 265 DISCHARGE, of debtor, 246 when not granted, 247, 271, 272 not invalidated by defects in schedule, 256 barred by reason of assignment with preferences, 272 when granted, 278 certificates necessary for, 278 where recorded, 278 effect of, 279 may be pleaded, 281 what actions barred by, 281, 282 effect of, on imprisoned debtor, 282 effect of, on landlord's right to distrain, 282 effect of, on debts due IT. S., 283 effect of, on debts due the State, 283 ' is conclusive except in case of fraud, 284 is prima facie evidence of jurisdiction, 285 is no protection to sheriff unless jurisdictional facts are shown, 285 if granted by mistake, 285 cannot be impeached in collateral action, 286 cannot be attached in proceedings supplementary, 2^6 ' due notice to creditors is essential for, 286 validity of, will not to determined on a motion to dis- charge from arrest, 287 must be attached by action, 287 362 INDEX. must be pleaded, 287 does not extend to debts due the people, 288 if reciting jurisdictional facts the record need, not be produced, 288 bars a debt payable on a day which elapsed before the application, 288 bars an action on bond for title forfeited b^fpre ,the insolvency, 288 does not bar an aetion on bond as surety for deputy- sheriff, 288 bars costs of non-suit not taxed, 288 does not bar subsequent judgment for costs, 288 does not affect debts contracted after petition, 289 is not a bar to an action for subsequently accruing rent reserved by deed, 289 nor to an action fqr goods delivered to factor to be sold on account of consignor, 289 does not affect the contingent liability of an iudorser of a note not then due, 289 does not release the co-m»ker of promissory note, 289 does not prevent arrest in subsequent action sounding in tort, 289 operates in actions in tort, 290 does not affect a non-resident's debt if jurisdiction is not waived, 290 does not bar a debt fraudulently contracted, 290 embraces joint as woU as several debts, 291 must be pleaded if before judgment, 291 INDEX. 863 may be pleaded by supplemental aittswer, 291 if pleaded, plaintiff may discontinue without costs, 291 validity o% cannot be tried on ajf&davits, 291 when void, 292, 293 K EXECUTORS, may sign petition, 248 FEES, of clerk, 279 of jurors, 269 of sherifE, 268 FILING, of papers in three months, 279 I. IRREGULARITIES, written objections to, 267 J. JURY, may be demanded, 265 objections in writing must oe filed for, 265 how drawn, 265, 266 JURORS, how sworn, 266 28 364 INDEX. kept together, 266 verdict of, how recorded, 266 if cannot agree judge shall decide, 267 penalty for not attending a, 268 fees of, 269 JURISDICTION, can be questioned, 267 defect in, cannot be amended, 268 M. MINITTES, must be kept by officer, 267 i N. NON-RESIDENT, creditor, petition of, 251 NOTICE, what to contain, 262 publication of, 263 service of, how made, 264 service of, proof of, required, 264 proceedings on return day of, 265 O, OFFICER, death of, 258 resignation of, 258 to whom petition can be presented, 260 must file proceedings, 279 INDEX. 365 ORDER, to show cause for assignment, 261 for publication of notice of, 262 P. PAPERS, must be filed within three months, 279 PETITION, by whom signed, 247, 248 executor may sign, 248 adminstrator may sign, 248 co-partners may sign, 248 assignees may sign, 249 trustees may sign, 249 receivers may sign, 249 what to contain, 249 of corporation, by whom signed, 250 of non-resident creditors, 251 may be amended, 254 to whom presented, 257, 259 any person may be examined on hearing of, 269 affidavit must be annexed to, 260 PROCEEDINGS, on return day, 265 how reviewed, 294 R. RECEIVERS, may sign petition, 249 366 INDEX. RESIGNATION, or death of officer, 258 REFUSAL, of assignee to certify, 275 S. SECURITY, must be relinquished by creditor, 253 SERVICE, of notice, how made, 264 of notice, proof of, required, 264 of notice, proceedings on return day of, 265 SCHEDULE, what to contain, 254 when delivered, 254 to whom delivered, 254 what statement deemed sufBcient, 255 defects in, can be cured, 256 omission of creditor's name in, must be shown to be fraudulent or will not invalidate discharge, 256 SPECIFICATIONS, of objections must be in writing if jury demanded, 1265 SRERIFF, fees of, 268 SUBPCENA, disobedience of, how punished, 269 INDEX. 367 T. TRUSTEE, may be petitioner, 249 TWO-THIRDS, how estimated, 251 V. VERDICT, of jury, how recorded, 266 W. WRITTEN, objections as to irregularities, 267 WIFE, of debtor may be examined, 269 of debtor if not appearing, penalty, 270.