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2. An order appointing a person administrator, executor or collector, guardian of an infant, or a committee of an insane person, or removing him, or refusing to make such appointment or removal:

3. An order directing real property to be sold, mortgaged or leased, or confirming the same:

4. An order or judgment by which a debt, claim, legacy, or distributive share is allowed, or payment thereof directed, or such allowance or direction refused:

5. Judgment upon accounting, by an executor, administrator, guardian or committee, including an intermediate order involving the merits and necessarily affecting such judgment.

§ 1591. The appeal can only be taken by a party aggrieved, who appeared and moved for or opposed the order or judgment appealed from, or who being entitled to be heard thereon, had no notice or opportunity to be heard; the latter fact to be shown by affidavit, and filed and served with the notice.

§ 1592. The appeal may be taken upon questions of fact or of law, and must be heard upon a statement of the case, to be made and settled before the surrogate, in the manner provided in section 807, and in giving judgment thereon, the decision upon the facts when separate from the questions of law, is final.

§ 1593. The appeal must be taken within thirty days after notice of the order or judgment appealed from, but such appeal does not affect the order appealed from, unless, upon motion, the supreme court, on cause shown, direct a suspension of the order, until the appeal is determined.

§ 1594. The appeal is made by the service of a notice on the adverse party, stating the appeal from the order or judgment, or some specified part thereof, and filing a copy of the notice in the office of the surrogate, and of the county clerk, together with an undertaking with sufficient surety, approved by the surrogate or county judge, and filed in the surrogate's office, to the effect that the party will prosecute his appeal with due diligence to a determination, and will pay all costs that may be adjudged against him in the supreme court thereon.

TITLE X.

OF PROCEEDINGS IN CASES OF INSOLVENCY.

CHAPTER I. Proceedings of insolvent to discharge himself from an imprison

ment on execution.

11. Proceedings of insolvent to discharge himself from his debts.
III. Proceedings of creditors to close the affairs of an insolvent.

CHAPTER I.

PROCEEDINGS OF INSOLVENT

TO DISCHARGE HIMSELF FROM AN

IMPRISONMENT ON EXECUTION.

SECTION 1595. An insolvent imprisoned may be discharged. 1596. Manner of application to county court.

1597. Proof of serving copy and notice on creditors.

1598. What facts to be shown on hearing. Receiver to be appointed. 1599. Upon receipt of property by receiver, discharge to be granted. 1600. Duty of the receiver.

§ 1595. An insolvent who has been imprisoned on execution for thirty days, may be discharged from the imprisonment, as provided in this chapter.

This title has been prepared as a substitute for the 3d, 4th 5th, 6th, 7th, and 8th articles of the fifth chapter of the second part of the revised statutes, (2 R. S., 16-51.) By making the proceedings be had in court, and applying to them the machinery of the court, we are enabled to dispense with the great details, made necessary when the proceedings take place before an officer out of court. The provisions explain themselves. The third article provides a means of winding up the affairs of an insolvent, which we think will be found salutary in its effect upon credit.

§ 1596. He must present to the county court of the county where he is imprisoned, an application in writing, verified by his oath, setting forth the fact of his imprisonment, the amount, kind, and particulars of his property, and the amount, nature, and particulars

of his debts, with the names and residence of the creditos, so far as they are known or can be ascertained by him, and asking for his discharge from the imprisonment.

§ 1597. He must at the same time prove by affidavit, or admission in writing, that a copy of the application, with notice of presenting the same at a specified time and place, has been served on the judgment creditor, upon whose execution the insolvent is imprisoned, at least ten days before the application, in the same manner as a notice of motion in an action.

§ 1598. The application is to be heard in the same manner as any other motion, and if it be shown to the satisfaction of the court, that the allegations of t'e application are true, that the applicant is insolvent, that he does not conceal any of his property, and that he has not, after knowing his insolvency, and within six months before his application, given a preference to a creditor for an antecedent debt, by any payment or disposition of his property, the court may make an order, declaring that the applicant is an insolvent debtor, and appointing a receiver of his property.

§ 1599. Upon a certificate of the receiver, upon a copy of the inventory, that the insolvent has transferred and delivered to him all the property specified therein, excepting property exempt from execution, to be therein specified, with all books, instruments and papers re

lating thereto, and after due notice to the judgment creditor, the court may make an order, discharging the insolvent from his imprisonment; but such discharge shall not affect the judgment, nor any other remedy for the collection thereof, other than against the person of the insolvent.

§ 1600. The receiver must proceed in the conversion of the property into money, and the distribution thereof among the creditors existing at the time of the application, whether their demands are due or not, according to their several rights, giving no preference, except where a preference is required by the statutes of this state or of the United States, and must deliver the surplus to the insolvent, under the direction of the court. The receiver is at all times subject to the control of the court, until his final discharge by its order. If other property of the insolvent, not stated in the inventory, be discovered by the receiver, it must be deemed a part of the property assigned, and the receiver must collect the same and account therefor.

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