TITLE 2. Body or officer"; "deter what they include. the final order of the court directs or permits. But where the execution of the final order is stayed by an appeal to the court of appeals, the proceedings below are stayed in like manner. [New; corresponding with the like provision, relating to appeals to the supreme court from inferior courts, contained in § 1345.] § 2146. The expression, "body or officer", as used in this ination"; article, includes every court, tribunal, board, corporation, or other person, or aggregation of persons, whose determination may be reviewed by a writ of certiorari; and the word, "determination", as used in this article, includes every judgment, order, decision, adjudication, or other act of such a body or officer, which is subject to be so reviewed. Applica tion of this article to certain special cases, id.; to civil cases only. [New.] § 2147. Where the right to a writ of certiorari is expressly conferred, or the issuing thereof is expressly authorized, by a statute, passed before, and remaining in force after, this article takes effect, this article does not vary, or affect in any manner, any provision of the former statute, which expressly prescribes a different regulation, with respect to any of the proceedings upon the certiorari to be issued thereunder. [New; designed, as explained in the preliminary note, to limit the application of this article, in the various special cases, where a statutory certiorari is granted, to matters for which the special statute does not make provision.] § 2148. This article is not applicable to a writ of certiorari, brought to review a determination made in any criminal matter, except a criminal contempt of court. [New. When the statutes relating to crimes and punishments are revised, those sections of this article, which it is desirable to include herein, can be taken in by express reference.] 312 TITLE 1. CHAPTER XVII. CERTAIN SPECIAL PROCEEDINGS INSTITUTED TITLE I.-PROCEEDINGS RELATING TO INSOLVENT DEBTORS AND TITLE II.- SUMMARY PROCEEDINGS TO RECOVER THE POSSESSION TITLE III. PROCEEDINGS TO PUNISHI A CONTEMPT OF COURT OTHER THAN A CRIMINAL CONTEMPT. TITLE V.- PROCEEDINGS TO DISCOVER THE DEATH OF A TENANT TITLE VI. PROCEEDINGS FOR THE APPOINTMENT OF A COMMITTEE -- TITLE VII. -PROCEEDINGS FOR THE DISPOSITION OF THE REAL PROPERTY OF AN INFANT, LUNATIC, IDIOT, OR TITLE VIII. ARBITRATIONS. TITLE IX. -PROCEEDINGS TO FORECLOSE A MORTGAGE BY ADVER TITLE X.-PROCEEDINGS TO CHANGE THE NAME OF AN INDI VIDUAL. TITLE XI.-PROCEEDINGS FOR THE VOLUNTARY DISSOLUTION OF A CORPORATION. TITLE XII.-PROCEEDINGS SUPPLEMENTARY TO AN EXECUTION AGAINST PROPERTY. 1 TITLE 1. TITLE I. Proceedings relating to insolvent debtors and to prisoners. ARTICLE 1. Discharge of an insolvent from his debts. 2. Exemption from arrest, or discharge from imprisonment, of an insolvent debtor. 3. Discharge of an imprisoned judgment debtor from imprisonment. 4. Care of the property of a person confined for crime. PRELIMINARY NOTE. This title will take the place of Part 2, chapter 5, title 1, articles 2 to 7 of the R. S. (3 R. S., 5th ed., 77-113; 2 Edm., 1-40), being the whole of that title, except article 8, relating to the pow ers and duties of trustees. Many of the provisions of the R. S. have been wholly omitted, and those which have been retained have been greatly condensed, in substance as well as in phraseology. For the reasons stated in the preliminary note to title 3 of chapter 7, ante, article 1 of this title of the R. S. entitled, "Of attachments against absconding, concealed and non-resident debtors", was repealed by the general repealing act of 1877; and all the proceedings therein provided for, were abrogated by the repeal, no substitute for them having been provided in this Code. Article 2 of the R. S. has been retained in a modified form, in article 4 of this title. Article 3 of the R. S., commonly known as "the two-thirds act", and so much of the general provisions relating to proceedings in insolvency, contained in article 7, as it was deemed useful to retain, have been consolidated and revised in article 1 of this title, and taken into the subsequent articles by reference, as far as necessary. Article 4 of the R. S., entitled, "Of proceedings by creditors to compel assignments by debtors imprisoned on execution in civil causes", has been omitted, because it is rendered unnecessary, by § 1494, ante. Article 5 of the R. S., entitled, "Of voluntary assignments by an insolvent, for the purpose of exonerating his person from imprisonment", was omitted by the commissioners in preparing their draft of this division, upon the supposition that the cases in which the proceedings therein provided for can be taken, had been of comparatively rare occurrence, since the abolition of imprisonment for debt, and that those which might occur could be sufficiently provided for, by waiting till an actual arrest, and then applying for a discharge under article 3 of this title. But the publication of the commissioners' draft called forth several letters to them, remonstrating against the proposed omission, and stating that cases arising under the article in question occur, from time to time, in the city of New-York, in which the proceedings therein provided for are very beneficial. For those reasons, art. 5 of the R. S. has been revised in art. 2 of this title. Article 6 of the R. S., commonly called "the fourteen days act", has been revised in art. 3 of this title. Article 7 of the R. S., as already stated, is included, so far as its provisions are retained, in art. 1 of this title. Article 8, relating to the powers, duties, etc., of trustees, has been excluded from the repealing act of 1880, and will remain in force, until the iegislation on that subject is revised. See the note to § 2177. In following the references to the R. S., in the notes to this title, it must be remembered, that the revisers numbered the sections of their corresponding title, in the order in which they stand in the different articles; contrary to their practice in the other portions of their work, which was to number the sections continuously from the beginning to the end of each title. ART. 1. ARTICLE FIRST. DISCHARGE OF AN INSOLVENT FROM HIS DEBTS. PRELIMINARY NOTE. This article, as prepared by the commissioners, was contained in the bill which passed both houses in 1877 and 1878, but failed to receive the approval of the governor. During all that time the United States bankrupt law was in operation and, consequently, the article in question was regarded as mainly provisional in its character; that is to say, if the bill had been signed by the governor, the operation of this article would have been practically suspended by the United States bankrupt law, which supersedes the laws of the State upon the subject; but in the contingency of the repeal of the bankrupt law, it would become operative. Sturges v. Crowninshield, 4 Wheat., 122; Ogden v. Saunders, 12 id., 213; In re Bininger, Blatch., 262. This proposition is, it is believed, substantially correct, although, in some cases, the State law governs, even when a bankrupt law of the U. S. is in operation. Bostwick v. Burnett, 74 N. Y., 317. See, also, Maas v. O'Brien, 14 Iun, 95; Matter of Fitzgerald, 5 Abb. N. C., 357. It is not necessary to consider what those cases are, because the United States law has been repealed and consequently this article goes into operation without qualification. But it will be useful to consider briefly the general rules governing the operation of State laws of this character. The constitutionality of a State insolvent law, and the effect of a discharge thereunder, upon debts contracted without the State, or to foreign creditors, or owing to creditors who are non-residents of the State at the time of the discharge, have been fruitful and interesting subjects of controversy for more than half a century; involving, as they do, questions both of constitutional interpretation and of international and inter-state comity. The R. S. prescribed that a discharge under the laws of this State should extinguish all debts which were, either TITLE 1. 1. Founded upon contracts made or to be executed within the State; or 2. Owing to persons resident within the State, at the time of the first publication of notice of application for the discharge; or, 3. Owing to persons not residing within the State, who united in the petition, or accepted a dividend from the estate. 2 R. S., 22, Part 2, ch. 5, tit. 1, art. 3, § 30 (3 R. S., 5th ed.,.97; 2 Edm., 22). The revisers, in their note to this section, say: "In drawing this section, an effort has been made to conform it to the decisions of the supreme court of the United States, in the cases of Sturges v. Crowninshield, 4 Wheat., 122; M'Millan v. M'Neill, id., 209; and Ogden v. Saunders, 12 id., 213; and to the decision in Baker v. Wheaton, 5 Mass. R., 509. It would be difficult to abstract those cases, further than is done by the section itself." Since the enactment of the R. S., most of the questions, that can arise upon the subject, have been authoritatively settled by the decisions of the supreme court of the United States, or by the court of appeals of this State; under which, it is certain, that the effect of the discharge under the laws of a State was too broadly stated in the R. S. It seems to be settled: 1. That, unless the creditor has united in the application for the discharge, or has appeared in the proceedings in insolvency, or has received a dividend from the insolvent's estate (Clay v. Smith, 3 Peters, 411), a discharge under a State insolvent law does not extinguish a debt, which was either (a) Contracted before the passage of such law; Farmers and Mechanics' Bank v. Smith, 6 Wheat., 131; Ogden v. Saunders, 12 id., 213; or (b) Contracted with a citizen of another State or country; Ogden v. Saunders, 12 Wheat., 213; Cook v. Moffat, 5 How. (U. S.), 295; Soule v. Chase, 39 N. Y., 342; Hicks v. Hotchkiss, Johns. Ch., 297; Van Hook v. Whitlock, 26 Wend., 43; Donnelly v. Corbett, 7 N. Y. (3 Seld.), 500; or (c) Founded upon a contract made and to be performed without the State; Suydam v. Broadnax, 14 Peters, 67; Clark's Ex'rs v. Van Riemsdyk, 9 Cranch, 153; Towne v. Smith, 1 Woodb. & M., 115; Byrd v. Badger, 1 McAll., 263; or (d) Due to a creditor who, at the time of the discharge, is a citizen of another State or country; Sturges v. Crowninshield, 4 Wheat.. 122; Baldwin v. Hale, 1 Wallace, 223; Baldwin v. Bank of Newbury, id., 234; Gilman v. Lockwood, 4 id., 409. 2. That it makes no difference, in the application of the foregoing principles, that the creditor resorts to the courts of the state in which the discharge was granted, for the collection of his debt. Donnelly |