Luther v. Deyo — 19 Wend. 629

Majority

p. 629

Luther vs. Deyo, impleaded with others.

Albany,

Feb, 1839.

Headnote

An insolvent discharge, whether obtained upon the joint application of the insolvent and his creditors, or upon his sole application to exonerate his person from imprisonment, operates as well upon debts arising ex delicto as upon those arising ex contractu.

Motion to be discharged from custody. The defendant Deyo was arrested on a capias ad satisfaciendum issued on a judgment obtained in 1836, in an action of trover. Previous to his arrest, to wit, on the 26th August, 1837, he had obtained an insolvent's discharge upon the application of himself and his creditors in conformity to the provisions of the statute relative to insolvent debtors, and now upon the production of the discharge moved that he be released from custody.

H. H. Martin, for the motion.

J. Edwards,

for the plaintiff, opposed the motion, insisting that the discharge did not affect debts arising ex delicto, and

p. 630

that it operated only upon debts arising ex contractu. He contended that it was manifest from the several provisions of the statute on this subject that the legislature onlyscontemplated discharges in matters of contract; and urged that torts are not within the policy of insolvent or bankrupt laws. In support of his views upon this question, be referred to the argument of the counsel for the plaintiff in the case of Smith and Brown v. Bennet, 17 Wendell, 480, which although not passed upon by the court, inasmuch as the case was decided upon a minor point, he deemed unanswerable.

The Chief Justice took the papers for consideration, and at a subsequent day, directed a rule to be entered that the defendant be discharged from custody. No formal opinion was delivered.

Motion granted.^[1]

* During this term, the same question arose upon a similar application to be discharged from custody on a ca. sa„ issued in the cause of Stewart v. Kilt-mar, which was an action of replevin, on the ground of an insolven^discharge, granted under the article of the statute regulating voluntary assignments by an insolvent for the purpose of exonerating his person from imprisonment, and the same disposition made of it; the Chief Justice ordering the defendant to be released from custody. A similar order was made by Mr. Justice Bronson, upon a like discharge exonerating the person of the insolvent from imprison, ment, in December 1836, in the case of Clapper v. Betts, which was an action of trespass,