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The creditor who raises objections to the insolvent's discharge, is entitled to have his allegations heard and determined by a jury. The insolvent is deprived of the benefit of a discharge, if, knowing of his insolvency, or in contemplation of it, he has made any assignment, sale, or transfer, either absolute or conditional, of any part of his estate, or has confessed judgment, or given any security with a view to give a preference for an antecedent debt to any creditor.a The discharge applies to all debts founded upon contracts made within the state, or to be executed within it; and from debts due to persons resident within the state at the time of the publication of notice of the application for a discharge ; or to persons not residing within the state, but who united in the petition for his discharge, or who accept a dividend from his estate. The discharge likewise applies to all liabilities incurred on contracts made after January 1st, 1830, by making or endorsing any promissory note or bill of exchange prior to his assignment, or incurred by reason of payments by any other party *to the paper, *396 made prior or subsequent to the assignment. The discharge likewise exonerates the insolvent from arrest and imprisonment thereafter, upon all debts existing prior to the assignment. Any fraud whatever, in relation
647. It appears notwithstanding that dictum of the revisers, that the gen. eral insolvent act of 1813, and all the acts nending the same are in force only in a very modified, if in any degree; for under the general repealing act, N. Y. R. S., vol. iii. p. 133. sec. 115, and Ibid. p. 154. sec. 549, so much of the insolvent act of 1813, and the acts amending it, as are not, and also that are, consolidated and re-enacted in the Revised Statutes, are repealed! The system has been improved by more effectual provisions against fraud and abuse.
· N. Y. Revised Statutes, vol. ii. p. 20. sec 24. By the laws of Louisiana, an insolvent debtor cannot give preference. Hodge 5. Morgan, 14 Martin's Louis. Rep. 61. By the insolvent act of Pennsylvania, of 16th Juno, 1836, the insolvent debtor is deprived of the benefit of the act, if it appears that the insolvency arose from losses by gambling, or by the purchase of lottery tickets.
to any proceedings under the statute, or its requisitions, renders the discharge null and void.a
· N. Y. Revised Statutes, vol. ii. p. 15—23. The fraud that goes to defeat the relief under the insolvent laws of Pennsylvania, is the fraudulent concealment or conveyance of the estate, and not the fraudulent means by which the insolvent acquired possession of property, nor his unprincipled and extravagant waste of it. Case of Benney, 1 Ashmead's Rep. 261. In England, by the statutes of i Geo. IV., 3 Geo. IV., and 5 Geo. IV., the system of their insolvent laws was new modelled and greatly improved, and placed under the jurisdiction of the insolvent's court. The insolvent acts in England were consolidated by statute 7 Geo. IV. c.57, and greatly amended by statute of 1 and 2 Vict. c. 110. They apply to persons in actual custody sor debt, and the estate is vested in assignees, and the prisoner or his creditors may petition for an order to vest his estate in assign
The main object of the last statute was to abolish imprisonment for deht on mesne process, except where fraud can be shown. It is, in many of its provisions, analogous to their bankrupt system. Voluntary preserences, by the insolvent, before or after imprisonment, are declared fraudulent. For debts fraudulently, improvidently, or maliciously contracted, and for damages arising upon torts, or acts ex delicto, the insolvent is liable to close imprisonment, and to be deprived of his discharge for a period not exceeding two years. The discharge only protects the person from imprisonment, and does not protect the future acquisitions and property of the debtor; and the act enables the creditor to reach such property, whether in the funds, or existing as choses in action, or held in trust. In 1844, by 7 and 8 Vict. ch. 96, the English insolvent law was further meliorated and improved. Imprisonment in execution was by sta. tute abolished as to all debis not exceeding £20, and every debtor may be released from his debts upon surrender of his property, and without any imprisonment, be his debts of whatsoever amount, if he applies for the benefit of the act while at liberty, and before execution. The assignment of the debtor's property includes all his estate real and personal, at home and abroad, which is vested, or which may in future revert, descend, or come to him, by purchase, will, or otherwise, before he shall have obtained the final order of discharge, and also all debts due to him before such order, (wearing apparel, bedding, and implements not exceeding £20, excepied.) It was further declared that after the final order to be given on the fair surrender of his property, the future acquired property of the debtor was not to be taken. But much complaint is made in England by merchants and traders against the operation of their bankrupt and insolvent laws, as being a fruitful source of fraud and abuse; and the true cause of the evil is said to be the abolition of arrest on mesne process. It is proposed to restore arrest on mesne process, guarding it carefully against abuse. A bill for that purpose was introduced into parliament in 1846. It is likewise
*(2.) There are other provisions belonging to the insolvent system, which are exclusively applicable to imprisoned debtors, who may, in all cases free from fraud, be discharged from prison, and exempted from future arrest, without the hazard of any constitutional objection.
Imprisonment is no part of the contract, and simply to release the prisoner does not impair its obligation, but leaves it in full force against his pro
proposed in the English discussions, and with much plausibility, if not reason, to abolish all process against goods and chattels, except in bankruptcy, and as a substitute, to extend the bankrupt laws to all classes of debtors. See the London Law Review for Nov. 1846, p. 87—99, where the subject is considered at large. See vol. i. p. 422, as to the effect of the cessio bonorum in the civil law, and to which our insolvent laws are analogous. The learned commentator on the Partidas, (Greg. Lop. Gl. 3,) as cited in a note to the Institutes of the Civil Law of Spain, by Aso & Manuel, (b. 2. tit. 11. ch. 3. sec. 2. n. 49,) says that the future acquirements of the debtor would not be liable under the cessio bonorum, in the case of a compulsory cession, and in any case sufficient must be left for the debtor to live upon, ne egeat.
The laws of the individual states, on the subject of bankrupt and insol. vent debtors, have hitherto been unstable and Auctuating ; but they will probably be redigested, and become more stable, since the decisions of the supreme court of the United States have at last defined and fixed the line around the narrow enclosure of state jurisdiction. The commissioners appointed to revise the civil code of Pennsylrania, in their Report, in Janu. ary, 1835, p. 52, 53, complain, in strong terms, of the existing state of things. Congress will not exert their constitutional power, and pass a bankrupt law, and no state can pass a bankrupt or insolvent law, except so far as regards their own citizens; and even then, only in relation to contracts made after the passage of the law. Foreign creditors, and creditors in other states, cannot be barred, while state creditors may be. The former preserve a perpetual lien on aster-acquired property except so far as the statutes of limitations interpose. State bankrupt and insolvent laws cannot be cherished under such inequalities. A difficulty exists in Massachusetts in respect to their attachment and insolvent laws. The process of attachment of the goods of the debtor on mesne process in that state, has existed since 1789, but their insolvent law dissolves the attachment on the debtor being placed under the operation of that system, either by his voluntary act or by the act of his creditors, and which system aims at equal distribution among the creditors. Creditors suing in the federal courts are said to hold their attachments without having them dissolved, as they are in the state courts by the force of the provision in their insolvent system. The Law Reporter for March, 1846, p. 524.
perty. "The English process of execution against the body, (and which we have generally followed in this country,) is intended to confine the debtor until he satisfies the debt. It is not a satisfaction strictly, but a means to procure it; though the language of the writ directs the defendant to be imprisoned to satisfy the plaintiff for his debt.b in Scotland, the imprisonment on execution is avowedly to enforce payment, and the discovery of funds; and it does not, like the English imprisonment, preclude an execution concurrently against the property. The Scottish law of imprisonment for debt is slow, cautious and tolerant in its operation.c In this country, the progress of public opinion is rapidly tending to enlarge the remedies against property, and to abolish imprisonment for debt,
· Mason v. Haile, 12 Wheaton, 370. Marshall, Ch. J., 4 Wheaton, 201. Beers v. Houghton, 9 Peters' U. S. Rep. 329. The insolvent law of New. York, in its application to imprisoned debtors, and as it existed prior to April, 1831, and April, 1840, may be seen in the N. Y. Revised Statutes, vol. ii. p. 24. 39. But since imprisonment for debt in New York is now essentially abolished, a detail of the provisions of that system is no longer requisite.
o Imprisonment on ca. sa. is no extinguishment of a lien by mortgage for the same debt. Davis v. Battine, 2 Russ f- Mylne, 76. It was said by the court, in Sir William Herbert's case, (3 Co. 11,) that at common law, and prior to the statutes of Hen. III., Ed. I. and III., the body of the debtor was not liable to execution for debt, except in cases of injuries accompanied with force, and for the king's debts. Sir William Blackstone, vol. iii. p. 281, has followed that opinion, and Sir Francis Palgrave, who has examined with great research the Anglo-Saxon institutions, says that no arrest of the person was allowed at common law, except when justified by a breach of the peace, or a contempt of the king's authority. The Anglo-Saxon or Teutonic law gave a distringas on neglect to obey a summons, by which the defendant's goods and chattels were seized as pledges to compel his submission to the judgment of the court. Rise and Progress of the English Commonwealth, vol. i. 181. But this position appears from Bracton, and from the history of legal process, as detailed by Mr. Reeves, to be unfounded, if we consider the common law as it existed as early as the reign of Henry III. Sir F. Palgrave refers to the Anglo-Saxon common law. Bracton, 440, 441. 2 Reeve's Hist. Eng. Law, 439, 440.
< 1 Bell's Com. 7. 2 Ibid. 537.
except where the judgment is founded upon tort, misfea. sance or fraud.a
• In New York, by the act of April 26, 1831, ch. 300, and which went into operation on March 1st, 1832, arrest and imprisonment on civil process at law, and on execution in equity founded upon contract, were abol. ished. The provision under that act was not to apply to any person who should have been a non-resident of the state for a month preceding ; (and even this exception was abolished hy the act of April 25th, 1840,) nor to proceedings as for a contempt to enforce civil remedies ; nor to actions for fines and penalties, nor to suits founded in torts, 7 Hill's Rep. 578; or on promises to marry ; or for moneys collected by any public officer; or for misconduct or neglect in office, or in any professional employment. The plaintiff, however, in any suit or upon any judgment or decree, may apply to a judge for a warrant to arrest the defendant, upon affidavit stating a debt or demand due to more than $50; and that the defendant is about to remove property out of the jurisdiction of the court, with intent to defraud his creditors ; or that he has property or rights in action which he fraudulently conceals; or public or corporate stock, money or evidences of debt, which he unjustly refuses to apply to the payment of the judgment or decree in favour of the plaintiff; or that he has assigned, or is about to assign or dispose of his property, with intent to defraud his creditors ; or has fraudulently contracted the debt, or incurred the obligation respecting which the suit is brought. If the judge shall be satisfied, on due exami. nation of the truth of the charge, he is to commit the debtor to jail, unless he complies with certain prescribed conditions, or some one of them, and which are calculated for the security of the plaintiff's claim. Nor is any execution against the body to be issued ou justice's judgments, except in cases essentially the same with those above stated. To be a resident of the state within the meaning of the act of 1831, it was held that the person must have a fixed abode, and an intention to remain and settle, and not be a transient visitor. Frost v. Brisbin, 19 Wendell, 11. But this decision ceases now to be of any application, inasmuch as the exception itself is repealed. By the N. Y. act of 1846, ch. 150, the defendant is liable for imprisonment as in actions for wrong, if he be sued and judgment pass against him in actions on contracts for monies received by him, (and it applies to all male persons) in a fiduciary character.
The legislature of Massachusetts, in 1834 and 1842, essentially abolished arrest and imprisonment for debt, unless on proof that the debtor was about to abscond. As early as 1790, the constitution of Pennsylvania established, as a fundamental principle, that debtors should not be continued in prison after surrender of their estates, in the mode to be prescribed by law, unless in cases of a strong presumption of fraud. In February, 1819, the legislature of that state exempted women from arrest and im