Union Cotton Manufactory v. Curtis — 7 Cow. 105

Majority

p. 105

The Union Cotton Manufactory against Curtis.

NEW YORK,

May, 1827.

Headnote

An insolvent discharge, under the act to abolish imprisonment for debt in certain cases, (sess. 42, ch. 101,) may be granted by a judge of the 0. P. though not of the degree of counsel in the supreme court.

The defendant had been surrendered in discharge of his special bail, and on the 15th of August, 1826, the plaintiffs obtained judgment. On the 21st of the same month, the defendant was discharged under the act to abolish imprisonment for debt in certain cases, (sess. 42, ch. 101.) The discharge was granted by Daniel Dennett, one of the puisne judges of the court of common pleas of the county of Broome, who was not at the time of the discharge, or any of the proceedings to obtain it, of the degree of counsel in this court. And now,

On a written statement of the above facts, by the parties and sheriff,

J. A. Collier,

submitted whether the defendant should be discharged from imprisonment. He referred the court to the 1st section of the above statute, in connexion with the 1st section of the act for giving relief in cases of insolvency, (1 R. L. 460.)

We remember the provisions of these statutes. The first is, that the insolvent may present a petition for his discharge (among other officers) to any one of the *judges of the court of common pleas, &c., who is to receive it, and make an order of publication. But the common pleas are

p. 106

to grant the discharge. By the last act, the insolvent may petition the chancellor, judge, or other officer authorized, to receive petitions under the former act; and. the officer to whom the petition is presented, may grant the discharge.

The question now presented, has been considered by us on some motion heretofore ; and we agreed that a judge of the common pleas, though not of the degree of counsel, might grant the discharge. The last statute is very plain. It gives the power of discharge to the judge or officer who might receive the petition under the former act. The defendant must be discharged from his imprisonment.

Rule accordingly.