Majority
p. 109The People, ex rel. Noble, vs. Abel.
Headnote
Where a debtor makes application for a discharge under the act to abolish imprisonment for debt and to punish fraudulent debtors, he must set forth the facts necessary to confer jurisdiction upon the officer.In order to confer jurisdiction, it must appear that the debtor has either been committed to jail under § 9 of the act, or has given the bond specified in the 4th sub, of § 10, or that a suit has been commenced against him in a court of record, in which, by the provisions of the act, he cannot be arrested or imprisoned.
Accordingly, where the debtor’s petition omitted to state either of these particu. lars, but set forth that he was “ an insolvent debtor within the meaning of the act to abolish imprisonment for debt and to punish fraudulent debtors, passed May 26th, 1831,” and prayed that his estate-might “ be assigned for the bene, fit of all his creditors and his person exempted from, arrest or imprisonment by reason of any debts arising upon contracts previously made.-” Held, not sufficient to confer jurisdiction, and a discharge having been granted by the officer, his proceedings were reversed on certiorari.
Semble, that a discharge pursuant to the above act affects no creditors save such as either have applied, or are entitled to apply for a warrant for the arrest .of the debtor under § 3; and that these are the only creditors who are entitled to a dividend under the debtor’s assignment. Per Bronson, J.
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Certiorari to John S. Chipman, a supreme court commissioner, residing in the county of Essex, to bring up the proceedings before him by which the defendant Abel was discharged from imprisonment. In February, 1838, Charles Noble recovered a judgment in this court against the defendant on a note which belonged to the relator, and on the application of the relator the defendant was, on the 2d of July following, committed to the Essex county jail - pursuant to the provisions of the non-imprisonment act. {Statutes of 1831, p. 396, § 3—11.) On the 8th of August, 1838, the defendant presented a petition to the commissioner, as follows : “ State of New-York, county of Essex, ss. To John S. Chipman, Esquire, Sup. Court Commissioner for said county. The petition of the undersigned James Abel, who resides in said county of Essex, respectfully represents, that he is an insolvent debtor within the intent of the 1 act to abolish imprisonment for debt and to punish fraud ulent debtors,’ passed April 26, 1831, wherefore he prays that his estate may be assigned for the benefit of all his creditors, and that his person may be exempted from arrest or imprisonment by reason of any debts arising upon contracts previously made.” Dated and signed. An account of creditors and an inventory of the debtor’s estate accompanied the petition. The commissioner proceeded, and after a hearing, ordered an assignment and granted a discharge to the debtor. The discharge could not be found, and was not returned.
A. C. Hand, for the relator, insisted that the petition was not sufficient to give the commissioner jurisdiction.
S. Stevens, for the debtor.
By the twelfth section of the non-imprisonment act, {Statutes of 1831, p. 396,) it will be seen, that the persons who are entitled to apply for a discharge under that statute, are, 1. Any person who has been committed to jail in pursuance of the preceding sections, (viz: §§ 3 to
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9 inclusive;) 2. Any one who has given the hond specified in the fourth subdivision of the tenth section of the act, which is a bond to the complaining creditor with a condition that the defendant will apply for an assignment and discharge; and 3. Any one against whom a suit has been commenced in a court of record, in which suit the defendant cannot, by the provisions of that act, be arrested or imprisoned without resorting to the special proceedings authorized by sections 3 to 9 inclusive. The act makes no provision for the discharge of insolvent debtors generally, or, indeed, for any insolvent debtor eo nomine. It only provides for those persons who either have been, or may be arrested and imprisoned on the ground that they are fraudulent debtors. The defendant did not state any fact in his petition to bring the case within the statute under which he asked to be discharged, nor is it possible to infer from the petition any fact which would give the officer jurisdiction. The defendant says he is “ an insolvent debtor within the intent” of the statute ; but the statute does not provide for any such class of persons. It is not stated that the defendant had been committed to jail; that he had given a bond to apply for a discharge •, or that any suit had been commenced against him. The only things which could give the officer jurisdiction are wholly omitted.
The nature of the proceeding seems to have been totally misapprehended. The defendant applied for a discharge under the “ act to abolish imprisonment for debt, and to punish fraudulent debtors,” passed in 1831; but his petition was framed under the statute providing for “ voluntary assignments by an insolvent, for the purpose of exonerating his person from imprisonment.” (2 R. S. 28, Art. 5.) The prayer of the petition was, that the debtor’s estate might bé assigned u for the benefit of all his creditors, and that his person may be exempted from arrest or imprisonment by reason of any debts arising upon contracts previously made.” Under the act of 1831, as I read it, the assignment is not made for the benefit of all, but only for the benefit of a particular class of credi
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tors 5 and the discharge does not exempt the debtor from arrest or imprisonment generally, but only exonerates him from being proceeded against for fraud by those creditors who have commenced suits. (§ 17, and 3—9.) I think the discharge only affects those creditors who either have applied, or are entitled to apply for a warrant for the arrest of the debtor under the third section of the act, and that those are the only creditors who are entitled to a dividend. But that question need not be settled on the present occasion. It is enough that the debtor applied for a discharge under the act "of 1831, without stating any fact which could give the commissioner jurisdiction to proceed under that statute.
Proceedings reversed.