that there is no other officer or person, from whom a sufficient return can be procured by means of a new certiorari; the court may, in its discretion, permit affidavits, or other written proofs, relating to the matters not sufficiently returned, to be produced, and may hear the cause accordingly. The court may also, in its discretion, permit either party to produce affidavits, or other written proofs, relating to any alleged error of fact, or any other question of fact, which is essential to the jurisdiction of the body or officer, to make the determination to be reviewed, where the facts, in relation thereto, are not sufficiently stated in the return, and the court is satisfied that they cannot be made to appear, by means of an order for a further return. § 2140. The questions, involving the merits, to be determined by the court upon the hearing, are the following, only: 1. Whether the body or officer had jurisdiction of the subject-matter of the determination under review. 2. Whether the authority, conferred upon the body or officer, in relation to that subject-matter, has been pursued in the mode required by law, in order to authorize it or him to make the determination. 3. Whether, in making the determination, any rule of law, affecting the rights of the parties thereto, has been violated, to the prejudice of the relator. 4. Whether there was any competent proof of all the facts, necessary to be proved, in order to authorize the making of the determination. 5. If there was such proof, whether there was, upon all the evidence, such a preponderance of proof, against the existence of any of those facts, that the verdict of a jury, affirming the existence thereof, rendered in an action in the supreme court, triable by a jury, would be set aside by the court, as against the weight of evidence. 13 Week. 6 Civ. Pro. 297. 44 Hun, 293. 98 NY 332. 110 N. Y 494. 15 N. Y. State Rep. 108. 119 N.Y.502. § 2141. The court, upon the hearing, may make a final 100 N. Y. 82. order, annulling or confirming, wholly or partly, or modifying, the determination reviewed, as to any or all of the parties. § 2142. Where the determination reviewed is annulled or modified, the court may order and enforce restitution, in like manner, with like effect and subject to the same conditions, as where a judgment is reversed upon appeal. § 2143. Costs, not exceeding fifty dollars and disburse ments, may be awarded by the final order, in favor of or against either party, in the discretion of the court. § 2144. The final order of the court upon the certiorari must be entered in the office of the clerk where the writ was returnable. But before it can be enforced, an enrollment thereof must be filed. For that purpose, the clerk must attach together, and file in his office, the papers upon which the cause was heard; a certified copy of the final order; and a certified copy of each order, which in any 18 Abb. N. C. 246. 132 N.Y. 363. way involves the merits, or necessarily affects the final order. $2145. The filing of the enrollment in the office of the clerk where the final order is entered, as prescribed in the last section, is a sufficient authority for any proceeding, by or before the body which, or the officer who, made the determination reviewed, which 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. $2146. The expression, “body or officer", as used in this 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. § 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. 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. CHAPTER XVII. CERTAIN SPECIAL PROCEEDINGS INSTITUTED TITLE TITLE TITLE TITLE TITLE WITHOUT WRIT. I. PROCEEDINGS RELATING TO INSOLVENT DEBTORS AND TO PRISONERS. II.-SUMMARY PROCEEDINGS TO RECOVER THE III.-PROCEEDINGS TO PUNISH A CONTEMPT OF IV. PROCEEDINGS TO COLLECT A FINE. VI.-PROCEEDINGS FOR THE APPOINTMENT OF A COMMITTEE OF THE PERSON AND A LUNATIC. OF TITLE VII.-PROCEEDINGS FOR THE DISPOSITION OF THE REAL PROPERTY OF AN INFANT, TITLE VIII.—ARBITRATIONS. TITLE IX.-PROCEEDINGS TO FORECLOSE A MORTGAGE TITLE TITLE BY ADVERTISEMENT. X.-PROCEEDINGS TO CHANGE THE NAME OF AN INDIVIDUAL. XI.-PROCEEDINGS FOR THE VOLUNTARY DIS- TITLE XII.-PROCEEDINGS SUPPLEMENTARY ΤΟ AN EXECUTION AGAINST PROPERTY. 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 imprison ment. 4. Care of the property of a person confined for crime. ARTICLE FIRST. DISCHARGE OF AN INSOLVENT FROM HIS DEBTS. § 2149. Who may be discharged. 2150. To what court application to be made. § 2169. Id.; to file proofs, if not named in schedule. 2170. Proceedings if jurors do not agree 2171. When insolvent required to produce his non-resident wife. 2172. Examination of insolvent. 2173. When insolvent cannot be discharged. 2174. When assignment to be directed. 2175. Assignment; contents, 2177. Effect of assignment. 2179, 2180 Proceedings where 2181. Discharge, etc., to be re- 2182. Effect of discharge. to 2185. Insolvent to be released \ from imprisonment. 2186. Discharge, when void. 2187. Invalidity may be proved on motion to vacate order of arrest, etc. $1164, Con- § 1164, Consol. Act. § 2149. An insolvent debtor, who is a resident of the State at the time of presenting his petition, may be discharged from his debts, as prescribed in this article. § 2150, Application for such a discharge must be made, by the petition of the insolvent, addressed to the county court of the county in which he resides; or, if he resides in the city of New York, to the court of common pleas for that city and county. § 2151. The petition must be in writing; it must be signed by the insolvent, and specify his residence; 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 discharged from his debts; and it must pray that, upon his so doing, he may be discharged accordingly. 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. 2152. The petitioner must annex to his petition one or more written instruments, executed by one or more of his creditors, residing in the United States, having debts owing to him or them in good faith, then due or thereafter to become due, which amount to not less than two thirds of all the debts, owing by the petitioner to creditors residing within the United States. Each instrument must be to the effect, that the person or corporation, executing it, consents to the discharge of the petitioner from his debts, upon his complying with the provisions of this article. § 2153. An executor or administrator may become a consenting creditor, under the order of the surrogate's court from which his letters issued. A trustee, official, assignee, or receiver of the property of a creditor of the petitioner, whether created by operation of law or by the act of parties, may become a consenting creditor, under the order of a justice of the supreme court. A person who becomes a consenting creditor, as prescribed in this section, is chargeable only for the sum which he actually receives, as a dividend of the insolvent's property. 2154. Where a corporation or joint-stock association becomes a consenting creditor, its consent must be executed under its common seal, and may be attested by any director or other officer thereof, duly authorized for that purpose; who may make any affidavit, required of a creditor in the proceedings. 2155. Where a partnership becomes a consenting creditor, the consent may be executed in its behalf, and any affidavit, required of a creditor in the proceedings, may be made, by either of the partners. § 2156. A creditor's consent does not affect his remedy against any person or persons indebted jointly with the petitioner; and the petitioner's discharge has the effect, as between the creditor and the other joint debtors, of a composition between the petitioner and the creditor, made as prescribed in article third of title fifth of chapter fifteenth of this act. § 2157. Where a consenting creditor is the purchaser or assignee of a debt against a petitioner, or the executor, administrator, trustee, or receiver of such a purchaser or assignee, he is deemed, for all the purposes of this article, except as to the declaration and receipt of dividends, a creditor only to the amount, actually and in good faith paid for the debt, by him, or by the decedent or other person, from whom he derives title, and remaining uncollected. This section is not affected by the recovery of a judgment for the debt, after the purchase or assignment; but in that case the consenting creditor may include the uncollected costs, as if they were part of the sum paid for the debt. § 2158. A creditor who has, in his own name, or in trust for him, a mortgage, judgment, or other security, for the payment of a sum of money, which is a lien upon, or otherwise affects, real or personal property belonging to the petitioner, or transferred by him since the lien was created, cannot become a consenting creditor, with respect to the debt so secured, unless he adds to or includes in his consent, a written declaration, under his hand, to the effect, that he relinquishes the mortgage, judgment, or other security, so far as it affects that property, to the trustee to be appointed pursuant to the petition, for the benefit of all the creditors. Such a declaration operates, to that extent, as an assignment to the trustee, of the mortgage, judgment, or other security; and vests in him accordingly all the right and interest of the consenting creditor therein. § 2159. If a creditor knowingly swears, in any proceedings authorized by this article, that the petitioner is, or will become, indebted to him, in a sum of money, which is not really due, or thereafter to become due; or in more than the true amount; or that more was paid for a debt, which was purchased or assigned, than the sum, actually and in good faith paid therefor; he forfeits to the trustee, to be recovered in an action, twice the sum, so falsely sworn to. 2160. The consent of a creditor must be accompanied with his affidavit, stating as follows: 1. That the petitioner is justly indebted to him, or will become indebted to him, at a future day specified therein, in a sum therein specified; and, if he, or the person from whom he derives title, is or was the purchaser or assignee of the debt, he must also specify the sum, actually and in good faith paid for the debt, as prescribed in section two thousand one hundred and fifty-seven of this act, |