ARTICLE 4 INSOLVENT'S EXEMPTION FROM ARREST AND IMPRISONMENT Section 100. Who may be exempted and by what court. 101. Contents of petition. 102. Petitioner's schedule. 103. Petitioner's affidavit. 104. Order to show cause. 105. Proceedings on return of order. 106. Order directing assignment; assignment pursuant 107. When discharge to be granted; effect thereof. 111. Discharge, when void. § 100. Who may be exempted, and by what court.-An insolvent debtor may be exempted from arrest, or discharged from imprisonment, as prescribed in this article. For that purpose, he must apply, by petition, to the county court of the county in which he resides, or is imprisoned; or, if he resides or is imprisoned in the city of New York, to the supreme court. A person, who has been admitted to the jail liberties, is deemed to be imprisoned, within the meaning of this article. This was formerly Code Civ. Proc., § 2188, as added by L. 1880, ch. 178, § 1, and amended by L. 1895, ch. 946, § 1. To whom application made.- The application for the discharge of an imprisoned debtor must be made to the court. Hayes v. Bowe, (1883) 65 How. Pr. 347; Mather's Case, (1862) 14 Abb. Pr. 45; Matter of Walker, (1853) 2 Duer 655. It cannot be made to a judge at chambers, as a judge out of court has no authority to grant a discharge. Mather's Case, (1862) 14 Abb. Pr. 45; Matter of Walker, (1853) 2 Duer 655. And the order for the discharge of an imprisoned debtor must be made by the court. Hayes v. Bowe, (1883) 65 How. Pr. 347, 12 Daly 193. Officers authorized to act. The former statute was held to be very specific in its designation of the officers who were authorized to act in conducting these proceedings, and an officer was required to be one residing in the same county in which the debtor resided or was imprisoned. In re Roberts, (1877) 70 N. Y. 5, reversing 10 Hun 253. Where the officer by whom the order to show cause was issued, as prescribed by this article, was not in attendance on the return day thereof, the proceedings could not be continued by a justice of the Supreme Court not residing in the county wherein the debtor resided or was imprisoned, and in case they were so continued all subsequent proceedings were void. In re Roberts, (1877) 70 N. Y 5, reversing 10 Hun 253. L. 1909, ch. 17 Exemption from Arrest and Imprisonment § 101 Petition for discharge - how made.- In Develin v. Cooper, (1881) 84 N. Y. 410, affirming 20 Hun 188, it was held that the proof required to be made at the time of presenting the petition and before the granting of the discharge, that the debtor resided or was imprisoned in the county in which the officer to whom application was made resided, might be made by a verified petition alone. Cause of imprisonment. The article includes a debtor who has been arrested on an execution, and also one who has been guilty of fraud in contracting the debt or incurring the obligation. Develin v. Cooper, (1881) 84 N. Y. 410, affirming 20 Hun 188. A discharge from imprisonment extends to judgments against the insolvent in actions for torts, and actions on contracts. Hayden v. Palmer, (1840) 24 Wend. 364. "Admitted to the jail liberties." The fact that a debtor has been admitted to jail liberties is the same, in the judgment of the law, as confinement in prison. Develin v. Cooper, (1881) 84 -N. Y. 410, affirming 20 Hun 188. Effect of order setting aside authority for arrest.-An order of the court setting aside the authority for the arrest does not take away the authority by which the arrest was made, but does take away the authority for further detention, because it takes away the writ which would justify detention. Pinckney v. Hegeman, (1873) 53 N. Y. 31, distinguishing Bullymore v. Cooper, (1871) 46 N. Y. 236. § 101. Contents of petition.—The petition must be in writing; it must be signed by the insolvent, and specify his residence, and also, if he is in prison, the county in which he is imprisoned, and the cause of his imprisonment. It must set forth, in substance, that he is unable to pay all his debts in full; that he is willing to assign his property for the benefit of all his creditors, and in all other respects to comply with the provisions of this article, for the purpose of being exempted from arrest and imprisonment, as prescribed therein; and it must pray, that upon his so doing, he may thereafter be exempted from arrest, by reason of a debt, arising upon a contract previously made; and also, if he is imprisoned, that he may be discharged from his imprisonment. It must be verified by the affidavit of the insolvent, annexed thereto, taken on the day of the presentation thereof, to the effect, that the petition is in all respects true in matter of fact. This was formerly Code Civ. Proc., § 2189, as added by L. 1880, ch. 178, § 1. Similar provisions in article V: see infra, § 123. Construction of statute generally. The statute is imperative that the papers presented to the court shall conform with exactness to its provisions, and it is necessary to the jurisdiction of the court, not only that a petition and account shall be presented, but that they shall be the very petition and account specified. Bullymore v. Cooper, (1871) 46 N. Y. 236, affirming 2 Lans. 71. Requisites of jurisdiction.-There are three things needed to give the court jurisdiction to discharge an insolvent debtor from liability to arrest upon prior debts, and from actual imprisonment upon any of them: First, power by law to act upon the general subject matter. Second, jurisdiction of the § 102 Exemption from Arrest and Imprisonment L. 1909, ch. 17 person of the particular insolvent. Third, jurisdiction of the particular case. Develin v. Cooper, (1881) 84 N. Y. 410, affirming 20 Hun 188. The averment of facts on which jurisdiction depends must be positive, and it is not sufficient that jurisdiction may be inferred argumentatively from what appears in the application or petition. Payne v. Young, (1853) 8 N. Y. 158; Staples v. Fairchild, (1849) 3 N. Y. 41. The presentation of the petition and schedule, duly verified, confers jurisdiction. Matter of Jacobs, (1871) 12 Abb. Pr. N. S. 273. "And specify his residence."—A petition beginning, "The petition of Frederick Maxwell, of Southold, in the county of Suffolk and State of New York, respectfully showeth," and accompanied by the petitioner's affidavit that the petition “is true in all respects," was held not sufficient of itself to make proof of the fact of residence in the county, but the defect was cured by an allegation in the petition that the debtor was in the custody of the sheriff of Suffolk county, on execution, and had given bail for the jail liberties, as a statement of a jurisdictional fact in a verified petition is preliminary proof of the fact. Develin v. Cooper (1881) 84 N. Y. 410, affirming 20 Hun 188. To entitle the court to jurisdiction of the person of the insolvent, he must have resided, at the time of presenting his petition, in the same county with the judge to whom it was presented, or have been imprisoned in that county. Proof of such residence or imprisonment must be made at the time of presenting the petition, and before any order shall be made thereon. Develin v. Cooper, (1881) 84 N. Y. 410, affirming 20 Hun 188. Proof of residence or imprisonment may be sufficiently made by the affidavit of a person other than the petitioner. Develin v. Cooper, (1881) 84 N. Y. 410, affirming 20 Hun 188. Cause of imprisonment.-As to the statement of the cause of imprisonment the court, in Goodwin v. Griffis, (1882) 88 N. Y. 629, reversing 25 Hun 61, said: "A different rule applies to a mere statutory notice intended to notify a creditor of the debtor's application for a discharge from imprisonment by virtue of an execution in a civil case. The statute under which the application for a discharge was instituted contains no reference to the judgment and does not prescribe any particular form in which the application should be presented. It was enough that the petition set forth that the cause of imprisonment was by virtue of an execution to confer jurisdiction. The action is against the sheriff as an official, and no intendment is to be indulged not sanctioned by law." § 102. Petitioner's schedule. The petitioner must annex to his petition, a schedule, in all respects similar to that required of an insolvent, as prescribed in section sixty-three of this chapter. This was formerly Code Civ. Proc., § 2190, as added by L. 1880, ch. 178, § 1. Similar provision in article V: see infra, § 123. Requisites of schedule. An inventory which sufficiently set forth and described all the debts except two was held to be sufficient to give the court jurisdiction, as the recitals of the discharge were prima facie evidence of jurisdictional facts. Develin v. Cooper, (1881) 84 N. Y. 410, affirming 20 Hun 188. The statute requires an account of the real and personal estate of the debtor, as it existed at the time of the arrest, as well as at the time of preparing the petition. Bullymore v. Cooper, (1871) 46 N. Y. 236, affirming 2 Lans. 71. Lack of an account of real and personal estate, as it existed at the time of the debtor's arrest, is not remedied by allegations in the petition that prior to the rendition of the judgment in execution upon which he was arrested, he had filed a petition in bankruptcy, had been L. 1909, ch. 17 Exemption from Arrest and Imprisonment § 103 adjudged a bankrupt, and an assignee of all his property had been duly appointed. Bullymore v. Cooper, (1871) 46 N. Y. 236, affirming 2 Lans. 71. Claims barred by statute of limitations. The insertion in the schedule of the name of a creditor, followed by the statement, "this claim is barred by the statute of limitations," is not a recognition that he is a creditor, and does not entitle him to appear and oppose the discharge. Avery's Case, (1858) 6 Abb. Pr. 144. § 103. Petitioner's affidavit.--An affidavit, in the following form, subscribed and taken by the petitioner, before the county judge, or, in the city of New York, before a justice of the supreme court, must be annexed to the schedule: “ I, do swear" (or "affirm," as the case may be,) "that the matters of fact, stated in the schedule hereto annexed are, in all respects, just and true; that I have not, at any time, or in any manner whatsoever, disposed of or made over any part of my property, not exempt by express provision of law from levy and sale by virtue of an execution, for the future benefit of myself or my family, or disposed of or made over any part of my property, in order to defraud any of my creditors; and that I have not paid, secured to be paid, or in any way compounded with, any of my creditors, with a view that they or any of them should abstain from opposing my discharge." This was formerly Code Civ. Proc., § 2191, as added by L. 1880, ch. 178, § 1, and amended by L. 1895, ch. 946, § 1. Similar provisions in articles III and V: see supra, § 64; infra, § 124. Time of presentation of affidavit.—“An object of the statute is, to search the conscience of the petitioner at the outset of the proceedings. And hence it has with minuteness specified the statement he shall make in his account, and has prescribed not only the substance of the matter to which he shall make affidavit, but the very form of words in which it shall be framed. This cannot be dispensed with or postponed, and the court have power to proceed. At no time after the presentation of the petition can the affidavit be indorsed and sworn to, and the demand of the statute be answered. Unless then it is admitted that the court can acquire the power of proceeding upon an unverified petition and account, it fails to acquire jurisdiction, without the affidavit accompanies the petition at the time of presentation." Bullymore v. Cooper, (1871) 46 N. Y. 236, affirming 2 Lans. 71. "For the future benefit of myself or my family."- The court must be satisfied that no such disposition of property has at any time been made by the debtor, which is then in force or subsisting, and that no provision for the future use of the debtor or his family has been made of any propert" owned by the debtor, at the time when the debt which formed the basis of the imprisonment was contracted. People v. White, (1857) 14 How. Pr. 498. The "future benefit" is one to be received and enjoyed after the date of the petition, and an imprisoned debtor cannot be discharged who has thus secured for himself the benefit of property which ought to have been and to be appropriated to the payment of his debts. In re Brady, (1877) 69 N. Y. 215, affirming 8 Hun 437. See supra, § 64. §§ 104-106 Exemption from Arrest and Imprisonment L. 1909, ch. 17 § 104. Order to show cause. The petition, and the papers annexed thereto, must be presented to the court, and filed with the clerk. The court must thereupon make an order, requiring all the creditors of the petitioner to show cause before it, at a time and place therein specified, why the prayer of the petitioner should not be granted; and directing that the order be published and served, in the manner prescribed in section sixty-six of this chapter for the publication and service of an order, made as therein prescribed. This was formerly Code Civ. Proc., § 2192, as added by L. 1880, ch. 178, § 1. The order to show cause is an incident of but not essential to jurisdiction. Matter of Jacobs, (1871) 12 Abb. Pr. N. S. 273. Publication of notice as requisite to jurisdiction.- Until the publication of the notice is made as directed, and proof of such publication is before the court, it is without jurisdiction. People v. Daly, (1875) 65 Barb. 325, 4 Hun 641; Stanton v. Ellis, (1853) 16 Barb. 319, affirmed by (1855) 12 N. Y. 575, 64 Am. Dec. 512. Upon an application for discharge from imprisonment, the notice was ordered to be published in two newspapers, and was directed to be given for June 6, 1874, at 11 A. M. It appeared that the publication of the notice in one of the papers was of an application to be made on June 3, 1874, at 11 A. M., and it was held that, upon such notice, the court was without jurisdiction to grant the discharge. People v. Daly, (1875) 67 Barb. 325, 4 Hun 641. § 105. Proceedings on return of order. The provisions of sections sixty-seven, sixty-eight, sixty-nine, seventy, seventy-one, seventy-three, and seventy-four of this chapter apply to a special proceeding, taken as prescribed in this article. This was formerly Code Civ. Proc., § 2193, as added by L. 1880, ch. 178, § 1. § 106. Order directing assignment; assignment pursuant thereto. 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 unable to pay his debts. 2. That the schedule annexed to his petition is true. 3. That he has not been guilty of any fraud or concealment, in violation of the provisions of this article. 4. That he has, in all things, conformed to the matters required of him by this article. |