People ex rel. Lodowick v. Akin — 4 Hill & Den. 606

Majority

p. 606

The People ex rel. Lodowick vs. Akin, judge of Dutchess C. P.

Headnote

An order being made for the commitment of a debtor under the 9th section of the non-imprisonment act, he presented to the officer making it an inventory of his estate &c, pursuant to the third subdivision of the 10th section, for the purpose of obtaining a discharge. The application was opposed by the creditor and denied, on the ground that the debtor’s proceedings were not just and fair and that he was chargeable with actual fraud. The debtor was then committed to jail and afterwards applied for a discharge to another officer under the 12th section of the act. Held, that the debtor w;as estopped from trying the same matter over again so long as the first decision remained unreversed, and that the officer’s order dismissing the second application for that reason, was right.

Mandamus. Dolson & Keyes commenced a suit in this court against Lodowick, the relator, for a demand due upon contract, and afterwards applied to John Brush, a supreme court commissioner, for a warrant to arrest Lodowick pursuant to the non-imprisonment act, (iS'tat. 1831, p. 396,) alleging that he had property or rights in action which he fraudulently concealed; or had assigned, removed or disposed of his property with intent to defraud his creditors ; (§ 4, sub. 2, 3 ;) and they produced affidavits in support of the allegations. A warrant issued, and Lodowick was brought before the commissioner on the 23d of December, 1842. He neglected and refused to controvert the facts and circumstances on which the warrant issued, and the commissioner thereupon decided that he should be committed to prison. To prevent the commitment, Lodowick proposed to make an assignment of his property, and he presented an inventory and account pursuant tó § 10, sub. 3. Dolson and Keyes opposed the application, and after hearing the proofs and allegations of the parties, the commissioner, on the 23d of January, 1843, decided that the proceedings of Lodowick, on his application for a discharge, were not just and fair, and that he had concealed, removed, and disposed of a portion of his property with intent to defraud his creditors. The commissioner therefore refused to order an

p. 607

assignment, and issued a warrant committing Lodowick to the jail of the county until he should be discharged according' to law.

On the 15th of February following^ Lodowick presented to Judge Akin a petition, account of Creditors and inventory^ and applied for a discharge from imprisonment. Dolson and Keyes, having had fourteen days previous notice, appeared and opposed the application ; and on their motion the judge dis missed the application, on the ground that the same matter had been adjudicated by the commissioner, and his decision remained in full force* An alternative mandamus thereupon issued requiring the judge to proceed and adjudicate upon the application, or show cause &c. On a return stating the foregoing facts,

L. Maison, for the relator, nOw moved for a peremptory mandamus.

A. Taber, contra.

By the Courts

After a commitment had beeti ordered in pursuance of the ninth section of the non-imprisonment act, Lodowick applied to the commissioner for a discharge in pursuance of the third subdivision of the tenth section . After a full investigation, the application was denied on the ground that the proceedings on the part of the petitioner were, not just and fair, and that he was chargeable with actual fraud; (§ 12, 16.) I see no reason why this should not have the same effect as it would if the debtor had been first committed to jailj and had then applied for a discharge under the 12th section.

This brings us to the question whether the debtor can repeat his application for a discharge at pleasure, or whether^ when the matter has been once decided against him, it is to be considered as res adjudícala so long as the first determination remains in force* It does not appear that there was any substantial difference between the papers presented to the judge, and those which had previously been before the commissioner; and

p. 608

we think the relator is estopped from trying the same matter a second time, so long as the first decision remains unreversed. (Mercein v. The People, 25 Wend. 64 . Aid see The People v. Mercein, 3 Hill, 399 .) If the decision of the commissioner was erroneous, the remedy Was by certiorari. (Townsend v. Morrell, 10 Wend. 577 .) If the debtor can make a second application after being defeated in the first, there can be no limit to the applications, and the creditor may better abandon his claim at once than think of opposing a discharge.

It is asked, how can the debtor get out of jail 1 That is a question which we are not now called upon to decide.

Motion denied.

Cases cited

Ex parte Townsend v. Morrell 10 Wend. 577 N.Y. Sup. Ct. p. 608