peach, by other competent evidence, the testimony of the insolvent or of his wife.

Id., 22.

2173. When insolvent cannot be discharged. - In either of the following cases, the petitioner is not enti tled to a discharge:

1. Where it appears, upon the hearing or trial, that, after making the schedule annexed to his petition, he has collected a debt or demand, or transferred, absolutely, conditionally, or otherwise, any of his property, not exempt by law from levy and sale by virtue of an execution, and he neglects or refuses forthwith to pay over to the clerk, the full amount of all debts and demands so collected, and the full value of all property so transferred, except so much of the money, and of the value of the property, as appears to have been necessarily expended by him for the support of himself or his family.

2. Where it appears, in like manner, that the petitioner, within two years before presenting the petition, has, in contemplation of his becoming insolvent, or of his petitioning for his discharge, or knowing of his insolvency, made an assignment, sale or transfer, either absolute or conditional, of any of his property, or of any interest therein, or confessed a judgment, or given any security, with a view of giving a preference to a creditor for an antecedent debt.

Id., 23 and 24 amended; L. 1854, ch. 147. Suydam r. Belknap, 20 Hun, 87; Matter of Hurst, 7 Wend. 240: see Corning v. White, 2 Paige, 567; Roswog e. Seymour, 7 Robt. 427, 430; Dickerhoff v. Ahlborn, 2 Abb. N. C. 372; Ex parte Brady, 8 Hun, 437; s. c., 69 N. Y. 215; Baily v. Burton, 8 Wend. 339; Neilly . Richardson, 4 Cow, 607: Morewood v. Hollister, 6 N. Y. 309; Hayden v. Palmer, 24 Wend. 364; Hatch v. Brewster, 53 Barb. 276; People v. Stryker, 24 id. 649; Rusher v. Sherman, 28 id. 416; Small v. Wheaton, 4 E. D. Smith, 306: Lewis . Page, 8 Abb. Pr. N. S. 200; Hayden v. Palmer, 24 Wend, 364: Phoenix v. Stagg, 1 Hall, 635; Hall v. Robbins, 4 Lans. 463; 8. c., 61 Barb. 33; People v. White, 14 How. Pr. 498; Browne v. Bradley, 5 Abb. Pr. 141; People v. Sutherland, 16 Hun, 192; Ex parte Fitzgerald, 56 How. Pr. 190; s. c., 5 Abb. N. C. 357.

§ 2174. When assignment to be directed.-An order, directing the execution of an assignment, must be made by the court, where it appears, by the verdict of the jury; or, if a jury has not been demanded, or the jurors have been discharged by reason of their inability to agree, where it satisfactorily appears to the court; as follows:

1. That the petitioner is justly and truly indebted to the consenting creditors, in sums which amount, in the aggregate, to two-thirds of all the debts, which the petitioner owed, at the time of presenting his petition, to creditors residing within the United States.

2. That he has honestly and fairly given a true account of his property.

2. That he has, in all things, conformed to the matters required of him by this article.

Id..

25 and 26, amended. Matter of Bradstreet, 13 Johns. 385: People ex rel. . Sutherland, 16 Hun, 192; Matter of Rosenberg, 10 Abb. N. S. 450; Cohen's Case, 10 Abb. 257.

2175. Assignment contents, and to whom made. -The order must designate one or more trustees, residents of the State; and must direct the petitioner to execute, to him or them, an assignment of all his property, at law or in equity, in possession, reversion, or remainder, excepting only so much thereof, as is exempt by law from levy and sale, by virtue of an execution. The assignment must be acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, and must be recorded in the clerk's office of the county. Where it appears, from the schedule or otherwise, that real property will pass thereby, it must be also recorded as a deed, in the proper office for recording deeds, of each county where the real property is situ ated.

Id., 25, in part; also, 20, art. 7, R. S. Rockwell v. Brown, 33 N. Y. 350; s. c., 11 Abb. N. C. 700; 42 How. 226; 54 N. Y. 210; Rockwell . McGovern, 69 id. 294; 40 N. Y. Super. Ct. 118.

The trustee

§ 2176. Id. trustees, how designated. or trustees may be nominated by a majority in amount of the consenting creditors. If no person is so nominated, one or more persons must be appointed by the court for the purpose. The nomination may be included in the consent, or made in a separate paper, or orally upon the hearing or trial, and entered in the minutes.

Id., ? 27.

§ 2177. Effect of assignment.—The assignment vests in the trustee or trustees all the petitioner's interest, legal or equitable, at the time of its execution, in any real or personal property, not exempt by law from levy and sale by virtue of an execution; and any contingent

interest which may vest within three years thereafter. When a contingent interest so vests, it passes to the trustees, in the same manner as it would have vested in the petitioner, if he had not made an assignment.

Id., 28. Rockwell v. McGovern, 69 N. Y. 294; Rockwell v. Brown, 11 Abb. Pr. N. S. 400; s. c., 31 N. Y. Super. Ct. (J. & S.) 380; 42 How. Pr. 226; 54 N. Y. 210; 40 N. Y. Super. Ct. (J. & S.) 418; Roseboom . Mosher, 2 Denio, 61; Ward e. Bokkelen, 2 Paige, 289; Kipp r. Bank of N. Y., 10 Johns. 63; Kennedy v. Strong, id. 289; Baily v. Burton, 8 Wend. 339: Waddington v. Vreedenburgh, 2 Johns. Cas. 227; Rockwell v. Ginnelly, 69 N. Y. 614; Marsh v. Wendover, 3 Cow. 69; Hopkins . Banks, 7 id. 650; Hosford v. Nichols, 1 Paige, 220; Rankine e. Elliott, 16 N. Y. 377: Moran v. Hays, 1 Johns. Ch. 339; Van Valkenburg v. Elmendorf, 13 Johns. 314.

§ 2178. When discharge to be granted. Upon the production by the petitioner of a certificate of the trustee or trustees, duly acknowledged or proved, and certified, in like manner as a deed to be recorded in the county, to the effect, that the insolvent has assigned, for the benefit of all his creditors, all his property so directed to be assigned, and all the books, vouchers, and papers relating thereto, and that he has delivered so much thereof as is capable of delivery; and also of a certificate of the county clerk, that the assignment has been duly recorded in his office; the court must grant to the insolvent a discharge from his debts, which has the effect declared in the following sections of this article.

Id., 29. See People ex rel. v. Sutherland, 16 Hun, 192; Rusher v. Sherman, 28 Barb. 416.

2179. Proceedings where trustee refuses to give certificate, etc.-If a trustee refuses or neglects, upon payment or tender by the petitioner of the expense of so doing, to execute or acknowledge a certificate, as prescribed in the last section, or to cause the assignment to be recorded, as therein prescribed, the court, upon proof by affidavit of the facts, must make an order, requiring the trustee to show cause, at a time and place therein specified, why the petitioner should not be discharged, notwithstanding his neglect or refusal; and why the trustee's appointment should not be revoked.

Section 23, art. 7, R. S.

2180. The same. If, upon the return of the order, it appears that the assignment has been duly executed, and that the petitioner has duly delivered all his prop

erty directed to be assigned, and all the books, vouchers, and papers relating thereto, which are capable of delivery, the court may, either

1. Grant a discharge of the petitioner, notwithstanding the neglect or refusal of the trustee; or

2. Make an order, revoking the appointment of the trustee. Upon the entry of such an order, the powers of the trustee, and his interest in the assigned property cease. If there is no other trustee, the court must, by the same or another order, appoint one or more new trustees. Such an appointment has the same effect, as if the person or persons so appointed were named as trustees in the original assignment.

Id., 24, 25, and 26, amended and consolidated.

2181. Discharge, etc., to be recorded. The dis charge, and the petition, affidavits, orders, schedule, and other papers upon which the discharge is granted, exclusive of the minutes of testimony, must be recorded in the clerk's office of the county, within three months after the discharge is granted. In default thereof, the discharge becomes inoperative, from and after that time. The original discharge, the record thereof, or a transcript of the record duly authenticated, is conclusive evidence of the proceedings and facts therein contained. The other papers specified in this section, the record thereof, or a transcript of the record duly authenticated, are presumptive evidence of the proceedings and facts therein contained.

Id., 19, amended; L. 1866, ch. 116 (6 Edm. 701).

2182. Effect of discharge.- Except as prescribed in the next two sections, a discharge, granted as prescribed in this article, exonerates and discharges the petitioner from every debt, due at the time when he executed his assignment, including a debt contracted before that time, though payable afterwards; and from every liability incurred by him, by making or indorsing a promissory note, or by accepting, drawing, or indorsing a bill of exchange, before the execution of his assignment; or incurred by him, in consequence of the payment, by any party to such a note or bill, of the whole or any part of the money secured thereby, whether the payment is made before or after the execution of the assignment.

See 30 and 31, art. 3, R. S. Anonymous, 1 Edm. 188; Ford . Andrews, 9 Wend. 312; Donnelley v. Corbett, 7 N. Y. 500; Hayden v. Palmer, 2 Hill, 205; 8. C., 7 id. 385; Soule v. Chase, 39 N. Y. 342; Pratt v. Chase, 44 id. 597; Lester v. Christalar, 1 Daly, 29; Van Hook r. Whitlock, 7 Paige, 373; 8. c., 26 Wend. 43; Witt v. Follett, 2 id. 457: Depuy v. Swart, 3 id. 135; Moore v. Viele, 4 id. 420; Ocean Nat. Bank . Olcott, 46 N. Y. 12; Elsworth v. Caldwell, 18 Abb. 20; s. c., 27 How. 188; 48 N. Y. 680; Alger v. Raymond, 7 Bosw. 418: s. c., 25 How. 593, note; Stanton v. Ellis, 12 N. Y. 575; Hale v. Sweet, 40 id. 97; Barber v. Winslow, 12 Wend. 102; Rusher v. Sherman, 28 Barb. 416; People v. Stryker, 24 id. 649; Salters v. Tobias, 3 Paige, 338; Rockwell e. Brown, 42 How. 226; 8. c., 11 Abb. N. S. 400; County of Albany v. Capron, 17 Johns. 44; People v. Rossiter, 4 Cow. 143; Clinton v. Hart, 1 Johns. 375; Warne v. Constant, 5 Johns. 135; McNeilly v. Richardson, 4 Cow. 407; Rosevelt v. Kellogg, 20 Johns. 208; Mechanics and Farmers' Bank e. Capron, 15 id. 467; Lansing v. Pendergast, 9 id, 127; Luther e. Deyo, 19 Wend. 629; Grocers' Bank v. Clark, 31 How. Pr. 115; Peebles v. Kittle, 2 Johns. 363; Workman v. Leak, Cowp. 22; Zinn v. Ritterman, 2 Abb. Pr. N. S. 261; Crouch v. Gridley, 6 Hill, 250; Strong v. White, 9 Johns. 161; Campbell v. Perkins, 8 N. Y. 430; Deyo v. Van Valkenburgh, 5 Hill, 242; Kennedy v. Strong, 10 Johns. 289; Harrison v. Lourie, 49 How. Pr. 124; Steinmetz v. Ainslie, 4 Dento, 473; Robinson v. Peasant, 53 N. Y. 419.

§ 2183. Id.; exception as to foreign contracts or creditors.- In either of the following cases, such a dis. charge does not affect a debt or liability, founded upon a contract, unless it was owing, when the petition was presented, to a resident of the State; or the creditor has executed a consent to the discharge; or has appeared in the proceedings; or has received a dividend from the trustee :

1. Where the contract was made with a person not a resident of the State.

2. Where it was made and to be performed without the State.

3. Where the creditor was not, at the time of the discharge, a resident of the State.

See 30 and 31, art. 3. Soule v. Chase, 39 N. Y. 342; Ford v. Andrews, 9 Wend. 312; Wyman e. Mitchell, 1 Cow. 316, 321; Mather e. Bush, 16 Johns. 233; Rosevelt v. Cebra, 17 id. 108; Jaques v. Marquand, 6 Cow. 497 Donelly . Corbett, 7 N. Y. 500; Parkinson v. Scoville, 19 Wend. 150; Pratt v. Chase, 44 N. Y. 597; Penniman v. Meigs, 9 Johns. 328; Hicks v. Hotchkiss, 7 id. 409; Lester v. Christelar, 1 Daly, 29, 30 Smith v. Gardner, 4 Bosw. 54; Ballard v. Webster, 9 Abb. Pr. 404; Van Hook. Whitlock, 7 Paige, 373: s. c., 26 Wend. 43; In re Jacobs, 12 Abb. Pr. N. S. 273; Shears v. Sohlinger, 10 Abb. Pr. N. S. 287; Wright e. Patton, 10 Johns. 300; Smith v. Spinola, 2 id. 198: White v. Canfield, 7 id. 117; Secord v. Whale, 11 id. 194; Peck v. Hozier, 14 id. 346.

2184. Id.; as to debts, etc., to the United States and the State.- Such a discharge does not affect:

1. A debt or duty to the United States; or

2. A debt or duty to the State, for taxes or for money received or collected by any person as a public officer, or in a fiduciary capacity, or a cause of action specified in