Peebles v. Kittle — 2 Johns. 363

Majority

p. 363

Peebles against Kittle.

Headnote

In selling; forth ina plea, the proceed. fefior court?" after giving-itis sufficient to say, that such proceed • ings were . thaif such ^an act was done üiauhe defendantwas discharged from hisdebts ^ vent, with-fbiV^ilhfhe proceedings aPprlsoner in execution, on ajudgment'in a court of. Common Fleas, be duly discharged by such court, under the actforrelief of debtors, as to the imprisonment of their persons, and he afterwards remove into another county, no action can be brought against him for-the same debt, or on the judgment, unless he be convicted ofwilful purjnry in obtaining his discharge, though he has no property in the county in which the judgment was rendered, but has-sufficient in the county into which he has removed.

THIS was an action of 'debt. The plaintiff declared 011 two judgments, one rendered in this court,- and the other in the court of Common Pleas of Washington comi ty. The defendant -pleaded nul tiel record to the first C0lint, on the judgment in this court, and to the second . ■ count, that he was in prison on an execution against hia body,.sued out of the court ,of Common Pleas in Washington county; and thal on the 3d day of September, 1814, at a court of common pleas held at Salem, in and for the COünfy of Washington he was, in due manner, and by J ° ' .• force of, and according to the form of the act, entitled “An act for the relief of debtors,with respect to the imprisonment of their persons, passed the 24th March, 1801, discharged and released from his imprisonment for the said debt, and concluded with a verification. To this P^ca the plaintiff replied, that after the discharge of the

p. 364

defendant, and before the exhibition of the bill of the' plaintiffj the defendant removed with his family from the Oouuty of Washington to the county of Saratoga, and has Continued there to reside, and that the defendant has not . possessed, or been seized of personal or real estate in the county of Washington, whereof the plaintiff might have been satisfied his debt, &c. To this replication the defendant demurred, and the plaintiff joined in detnúirerí

Foot, in support of the demurrer, contended,

1. That a person onCe discharged by the act for the relief of debtors in prison, (Laws of N. Y. vol. l¡p. 294. 7th section of the act,) could never afterwards be arrested for the debts due prior to the discharge, nor could any action ever be1 brought upon any judgment obtained against the- insolvent, unless he had been convicted of perjury; but tliat his property only remained liable to be taken in execution.’ 2. That according to the decision in Service v< Heermance,^[1] the discharge was well pleaded.

Weston, contra,

insisted, that the plea was bad,- and that the defendant ought to have set forth particularly the' proceedings, to show that he was entitled to his discharge, and that the same was duly obtained. He observed, that the defendant lived out of the county, ánd had property in another county ; that if no action could be brought oh the judgment, the plaintiff could never touch the property,- and that he would be defeated of the remedy that was given him by the statute, which never could have' been the intention of the framers of the act, as the property of the insolvent was made liable, notwithstanding his discharge.

delivered the opinion of the court.-

The only questions presented for consideration áre'.; Whether the discharge from imprisonment is well pleaded,- and whether it forms a bar to the plaintiff’s recovery.As to the form of pleading, the decision in Service vv

p. 365

Ueermance^[1] establishes the point, that it is sufficient, in setting forth the proceedings of an inferior court, after giving to it jurisdiction, to say taliter procession fuit, such an act was done by the court. The authorities cited in case, and particularly the case of Landbroke v. James,^[2] fully show that the point is considered at rest in the British courts. It appears by this plea, tha.t the court had jurisdiction, as the defendant was in gaol on a ca. sa. issuing out of that court.

As to the remaining point, the 7th section of the act relied on, (1 ml. Rev.'Laws, 294.) declares, “that no prisoner who shall bo so discharged, by virtue of this act, on such petition, shall ever after be arrested for the same debt or debts, nor shall any action of debt be brought against him on any such judgment, unless he shall, under this act, be convicted of wilful perjury.” Against the positive and plain declarations of the statute, it is impossible for the court to enter into any such considerations-as aré set up in the replication. This may be a casus omissus, but it is not for us to supply the omission. The plaintiff, except there has been perjury, which he alone could have replied, can have no ot her remedy than by suing out his new execution. The defendant must have judgment,^[3]

Judgment for the defendant.

* 1 Johnson, 92.

† † Willes,201.

(a.) (a.) In a plea of discharge under the insolvent act, it is sufficient, after stating enough to give jurisdiction to the judge granting the discharge to say, “that such proceedings were thereupon bad/' &c. that the judge granted the discharge, setting forth the same verbatim Roosevelt v. Kellogg, 20 John. 208 .