and the value of such property according to the best knowledge of the assignor.

'This section is substantially taken from Laws of 1860,
ch. 348, 2. Much discussion has arisen, under
that statute, in determining whether a failure to
comply with its various provisions rendered an
assignment void, or whether those provisions, or
some of them, were not to be considered as merely
directory. In Evans v. Chapin (12 Abb. Pr., 61; 20
How. Pr., 289), the question arose upon the failure
of the assignor to make and deliver the required
inventory of his debts and assets. It was held that
the provision of the statute requiring that inventory
was merely directory; and the assignment was not
made invalid by the omission. In Barbour v. Ever-
son (16 Abb. Pr., 366), the question arose upon the
omission to furnish the required inventory, and the
further omission of the assignee to give the bond
prescribed by the act. It was held that neither of
these departures from the statute affected the assign-
ment. To the same effect is Juliand v. Rathbone, 39
Barb., 97. In Fairchild v. Gwynne (16 Abb. Pr.,
23), the question arose upon the omission of the
assignor to acknowledge and record the assignment
as required by the act. It was held that in this re-
spect a compliance with the act was essential to the
validity of the instrument. To the same effect is
Cook v. Kelly, 14 Abb. Pr., 466. By the decisions
prior to the act of 1860, the omission to annex
schedules was held only a badge of fraud, and not
conclusive evidence of an intent to defraud the
creditors of the assignor (Cunningham v. Freeborn, 3
Paige, 557; aff'd, 11 Wend., 241; Delaware & Hud-
son Canal Co. v. Elting, 3 Ch. Sent., 29; Van Nest v.
Yoe, 1 Sandf. Ch., 4; S. C., 2 N. Y. Leg. Obs., 70;
Kellogg v. Slauson, 15 Barb., 56; aff'd, 11 N. Y.,
302. See also the later case of Hotop v. Neidig, 17
Abb. Pr., 332). By a subsequent section it is pro-
posed to make both the record of the assignment,
and the filing of the inventory, essential. The in-
ventory is therefore required to be filed with the
clerk, instead of being delivered to the county judge;
as it would be unjust to avoid the assignment on
account of the judge's omission to file it.
This provision is new. It is proper that the property

which the debtor seeks to exempt should be specified
in the inventory, though it need not pass by the as-

signment.

of inven

S 1937. An affidavit must be made by every per- Verification son executing an assignment for the benefit of tory. creditors, to be annexed to and filed with the inventory mentioned in the last section, to the effect that the same is in all respects just and true, according to the best of such assignor's knowledge and belief. Laws of 1860, ch. 348, § 2.

Recording

assignment

inventory.

1938. An assignment for the benefit of creditors must be recorded, and the inventory required by and filing section 1936 filed, with the register, or if there is none, with the clerk, of the county in which the assignor resided at the date of the assignment; or, if he did not then reside in this state, with the like officer of the county in which his principal place of business was then situated; or, if he had not then a residence or place of business in this state, with the like officer of the county in which the principal part of the assigned property was then situated.

Modified from Laws of 1860, ch. 348, § 6. See Scott v.
Guthrie, 25 How. Pr., 481.

$1939. If an assignment for the benefit of creditors I.
is executed by more than one assignor, it must be
recorded, and a copy of the inventory required by
section 1936 must be filed, with the register, or if
there is none, with the clerk, of every county in
which any of the assignors resided at its date, or
in which any of them, not then residing in this
state, had then a place of business.

This provision is new.

omitting to

S 1940. An assignment for the benefit of creditors Effect of is void against creditors of the assignor, and against record. purchasers from him, if the assignment is not recorded, and the inventory required by section 1936 filed, pursuant to section 1938, within twenty days after the date of the assignment.

This section is new.

S1941. Where an assignment for the benefit of creditors embraces real property, it is subject to the

Assignment perty.

of real pro

Bond of assignees.

Conditions of disposal

and conversion.

Accountings.

Property exempt.

provisions of article IV of the chapter on Recording Transfers, as well as to those of this Title.

S 1942. Within thirty days after the date of an assignment for the benefit of creditors, the assignee must enter into a bond to the people of this state, in such amount as may be fixed by the county judge of the county in which the original inventory is filed, with sufficient sureties, to be approved by such judge, and conditioned for the faithful discharge of the trust, and the due accounting for all moneys received by the assignee, which bond must be filed in the same office with the original inventory.

Laws of 1860, 595, ch. 348, § 3.

S1943. Until the inventory and affidavit required by sections 1936 and 1937 have been made, and the assignment has been duly recorded, and the inventory filed, and the assignee has given a bond as required by the last section, an assignee for the benefit of creditors has no authority to dispose of the estate or convert it to the purposes of the trust.

Laws of 1860, ch. 348, § 3.

S 1944. After one year from the date of an assignment for the benefit of creditors, the assignee may be required, on the petition of any creditor, to account before the county judge of the county where the accompanying inventory was filed, in the manner prescribed by the CODE OF CIVIL PROCEDURE.

Laws of 1860, ch. 348, § 4. The mode of proceeaing is left to be regulated by the CODE OF CIVIL PROCEDURE.

S1945. Property exempt from execution, and insurances upon the life of the assignor, do not pass to the assignee by a general assignment for the benefit of creditors, unless the instrument specially mentions them, and declares an intention that they should pass thereby.

This provision is new.

tion.

S1946. In the absence of any provision in the Compensa assignment to the contrary, an assignee for the benefit of creditors is entitled to the same commissions as are allowed by law to executors and guardians,1 but the assignment cannot grant more, and may restrict the commissions to a less amount, or deny them altogether."

'Meacham v. Sternes, 9 Paige, 398.

2 Keteltas v. Wilson, 36 Barb., 298; 23 How. Pr., 69;
Campbell v. Woodworth, 24 N. Y., 304. Greater
compensation than executors' commissions is not
intended to be allowed (see Nichols v. McEwen, 17
N. Y., 22; Halsted v. Gordon, 34 Barb., 422). A
creditor who receives an assignment of property
to pay his own debt, and apply the balance to the
other debts of the assignor, is not (at least in
the absence of a provision in the assignment), en-
titled to any commissions (see Ireland v. Potter, 25
How. Pr., 175).

protected

for acts

done in

S1947. An assignee for the benefit of creditors Assignees is not to be held liable for his acts done in good faith in the execution of the trust, merely for the reason that the assignment is afterward adjudged void.

Wakeman v. Grover, 4 Paige, 23; Ames v. Blunt, 5 id.,
13; Barney v. Griffin, 4 Sandf. Ch., 552; Averill v.
Loucks, 6 Barb., 470; Butler v. Stoddard, 7 Paige, 163;
Bostwick v. Beizer, 10 Abb. Pr., 197; Collumb v. Read,
24 N. Y., 505.

good faith.

creditors

tion of as

S1948. An assignment for the benefit of creditors, Assent of which has been executed and recorded so as to trans- necessary to modificafer the property to the assignee, cannot afterwards be canceled or modified by the parties thereto, without the consent of every creditor affected thereby.

Messonier v. Kauman, 3 Johns. Ch., 3; Mills v. Argall, 6
Paige, 577; Porter v. Williams, 9 N. Y., 142; Bell v.
Holford, 1 Duer, 58; Sheldon v. Smith, 28 Barb., 593.
It seems advisable to insert here the text of the Statute
of 1860, from which the foregoing Title is in good part
taken; so that the modifications proposed may be more
clearly understood.

1. Every conveyance or assignment made by a
debtor or debtors, of his, her or their estates, real or
personal, or both, in trust, to an assignee or assignees,
for the creditors of such debtor or debtors, shall be in

signment.

Conveyances to be in writing duly acledged.

know

Inventory to be delivered to county judge.

What to contain.

Assignees to give bond.

writing, and shall be duly acknowledged before an officer authorized to take the acknowledgment of deeds, and the certificate of such acknowledgment shall be duly indorsed upon such conveyance or assignment before the delivery thereof to the assignee or assignees therein named.

§ 2. Every debtor or debtors so making an assignment shall at the date thereof, or within twenty days thereafter, make and deliver to the county judge of the county in which such debtor or debtors resided at the date of such assignment, an inventory or schedule containing:

1. A full and true account of all the creditors of such debtor or debtors;

2. The place of residence of each creditor, if known to such debtor or debtors, and if not known, the fact to be so stated;

3. The sum owing to each creditor, and the nature of each debt or demand, whether arising on written security, account or otherwise;

4. The true cause and consideration of such indebtedness in each case, and the place where such indebtedness arose;

5. A statement of any existing judgment, mortgage, collateral or other security for the payment of any such debt;

6. A full and true inventory of all such debtor's estate at the date of such assignment, both real and personal, in law and in equity, and the incumbrances existing thereon, and of all vouchers and securities relating thereto, and the value of such estate according to the best knowledge of such debtor or debtors.

7. An affidavit shall be made by such debtor or debtors, and annexed to, and delivered with such inventory or schedule, that the same is in all respects just and true, according to the best of such debtor or debtors' knowledge and belief.

§3. The assignee or assignees named in any such assignment shall, within thirty days after the date thereof (and before he shall have power or authority to sell, dispose of, or convert to the purposes of the trust, any of the assigned property), enter into a bond to the people of the State of New York, in an amount to be ordered and directed by the county judge of the county where such debtor or debtors resided at the date of such assignment, with sufficient sureties to be approved of by such judge, and conditioned for the faithful discharge of the duties of such assignee or assignees, and for the due accounting for all moneys received by such assignee or assignees, which bond