ing in the city of New-York, in a newspaper published in that city, designated in the order. The publication must be made at least once in each of ten weeks, immediately preceding the day in which cause is to be shown, unless all the creditors reside within one hundred miles of the place where cause is to be shown, in which case the publication must be made at least once in each of the six weeks, immediately preceding that day.*

See Billings v. Pickert, 1 N. Y. State Rep'r, 70.

2. The petitioner must also serve upon each creditor, residing within the United States, whose place of residence is known to him, a copy of the order to show cause, either personally, at least twenty days before the day when cause is to be shown, or by depositing it, at least forty days before that day, in the post-office, inclosed in a post-paid wrapper, addressed to the creditor at his usual place of residence.

Where the State is a creditor of the petitioner, a copy of the order must be served upon the attorneygeneral, who must represent the State in the subsequent proceedings.

Id.. 10 and 11, and L. 1847, ch. 366, 81 (4 Edm. 481), amended. O' Connell e. Sutherland, 16 Abb. Pr. 460; People ex rel. Demarest v. Gray, 10 Abb. Pr. 468; s. c., 19 How, 238; Anon., 1 Wend. 90; Soule v. Chase, 1 Robt. 222; s. c., 1 Abb. Pr. N. S. 48; see Dickerhoff . Ahlborn, 2 Abb. N. C. 372, 377; Olcott v. Robinson, 21 N. Y. 150; Wood v. Morehouse, 45 id. 368; Brod v. Heyman, 3 Abb. Pr. N. S. 396; Steinle v. Bell, 12 id. 171; Bunce Read, 16 Barb. 347; Matter of Underwood, 3 Cow, 59; Lewis . Paige, 8 Abb. Pr. N. S. 200; Small e. Wheaton, 4 E. D. Smith, 427 Stanton v. Ellis, 16 Barb. 319; Van Slyker. Sheldon. 9 Barb. 278; People ex rel. Lewis v. Daly, 4 Hun, 641; Am. Flask Co. v. Son, 7 Robt. 233, 238; s. c., 3 Abb. Pr. N. S. 333; Westgate v. Handlin, 7 How. 372: Dayton v. McIntyre, 5 id. 117; s. c., 3 Code R. 164: Hornby v. Cramer, 12 How. 490; People v. Gray, 19 How. 238; 8. C., 10 Abb. 468; Clcott v. Robinson, 21 N. Y. 150; Wood v. Morehouse, 45 id. 368; Wood v. Terry, 4 Lans. 80.

2166. Hearing.-On the day specified in the order, and before any other proceedings are taken in the matter, the petitioner must present to the court, and file with the clerk, proof, to the satisfaction of the court, that the order has been published and served, as preribed in the last section; and thereupon, on the same v, or upon the day to which the hearing is adjourned, court must hear the allegations and proofs of the

s appearing. Proof of personal service of a copy e order upon any person, must be made, in like

*In effect September 1. 1890.

manner as proof of personal service of a summons, in an action brought in the supreme court.

Id., 12, and L. 1847, ch. 366, 22 (4 Edm. 481), amended; see? 434, ante. Ex parte Hagaman, 2 Hill, 415; Matter of Pulver, 6 Wend. 632; Matter of Bradstreet, 13 Johns. 385; Lewis v. Paige, 8 Abb. N. S. 200; Stanton v Ellis, 16 Barb. 319; Soule v. Chase, 1 Abb. N. S. 48; Rusher v. Sherman, 28 Barb. 416; Hall v. Robbins, 61 id. 33.

2167. Putting cause on calendar. - Where the insolvent's discharge is opposed, the court may direct the special proceeding to be placed upon the calendar for trial. In that case, the parties must appear, and the proceedings are the same, as in an action, except as otherwise prescribed in this article; and costs, as in an action, except for proceedings before notice of trial, may be awarded to either party, in the discretion of the

court.

New.

§ 2168. Opposing creditor to file specifications, and may demand jury trial. In order to entitle a creditor to oppose the discharge of the insolvent, he must, on the day fixed to show cause, or at such other time as the court directs, file with the clerk a specification of his objections; and he may then, but not afterwards, demand a trial, by a jury, of the questions of fact arising thereupon. If a trial by a jury is not then demanded, the questions of fact must be tried by the court, with out a jury. Where one or two or more opposing creditors demands a trial by a jury, all the material questions of fact, arising upon the objections of all the creditors, must be tried in like manner, and at the same time. The court may, in its discretion, direct the questions to be settled, and plainly stated, in an order, as where an order is made by the supreme court, in an action pending therein, for the trial of questions of fact by a jury.

Section 13, R. S., amended; see ?? 1163 and 1190. Matter of Bradstreet, 13 Johns. 385; People v. Stryker, 24 Barb. 649; Avery's Case, 6 Abb. 144; Grocers' Nat. Bank v. Clark, 31 How. Pr. 115; Garcie v. Sheldon, 3 Barb. 232; Lee v. Curtis, 17 Johns. 85; Cohen's Case, 10 Abb. Pr. 257.

§ 2169. Id.; to file proofs, if not named in schedule. -Where the name of an opposing creditor does not appear in the schedule, he must file, with the specification of his objections, proof, by affidavit, that he is a creditor; and if his debt is not set forth in the schedule, he must also file his affidavit, to the effect specified in

subdivisions first and second of section 2160 of this

act.

New. See Avery's Case, 6 Abb. Pr. 144.

§ 2170. Proceedings if jurors do not agree. -There shall be but one trial by jury. If the jurors cannot agree, after being kept together for such a time as the court deems reasonable, the court must discharge them, and determine the questions of fact, or those questions as to which the jurors have not agreed, upon the evidence taken before the jury, as if a jury had not been demanded.

Id., 19.

2171. When insolvent required to produce his non-resident wife.-Where the petitioner's wife resides without the State, the court, or a judge thereof out of court, may, upon the application of any creditor, make an order, requiring the petitioner to bring his wife before the court, at the hearing or trial, to the end that she may be examined as a witness. A copy of the order must be personally served upon the petitioner, at least three weeks before the hearing. If it appears, upon the hearing, that service could not, with due diligence, be so made, in consequence of the petitioner's sickness or absence, the court may, in its discretion, adjourn the hearing or trial, and prescribe the time and manner of service of the order for the adjourned day. If, after due service, the petitioner's wife does not attend at the time and place appointed, the petitioner is not entitled to his discharge, unless he proves, to the satisfaction of the court, by his affidavit, or upon his oral examination, or otherwise, that he was unable to procure her attend

ance.

Id., 22 20 and 21, amended and consolidated.

2172. Examination of insolvent. At the hearing or trial, the petitioner must be examined under oath, at the instance of any creditor, touching his property or debts, or any other matter stated in his schedule, or any changes that have occurred in the situation of his property, since the making of the schedule; and particu Jarly whether he has collected any debts or demands, or made any transfers of, or otherwise affected, his real or personal property. Any creditor may contradict or im

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 entitled 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 v. Belknap, 20 Hun, 87; Matter of Hurst, 7 Wend. 240; see Corning v. White, 2 Paige, 567; Roswog v. 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 v. 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 v. 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; s. 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 orde directing the execution of an assignment, must b by the court, where it appears, by the v

jury; or, if a jury has not been demandurn of the order, have been discharged by reason of en duly executed, agree, where it satisfactorily appea vered all his prop 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 peti tioner 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., 225 and 26, amended. Matter of Bradstreet, 13 Johns. 385; People ex rel. v. 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 prop erty, 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. 380; 8. C., 11 Abb. N. C. 700; 42 How. 226; 54 N. Y. 210; Rockwell v. McGovern, 69 id. 294; 40 N. Y. Super. Ct. 118.

§ 2176. Id. trustees, how designated. —The trustee 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. tld., 827.

debts, 77. Effect of assignment. The assignment vests changes thate or trustees all the petitioner's interest, erty, since the 1, at the time of its execution, in any larly whether he 'operty, not exempt by law from levy made any transferof an execution; and any contingent personal property.