Wade v. Judge

COLLIER, C. J. The laws which impose restraint upon personal liberty have never been greatly extended by construction, but it has been considered necessary that whatever they enjoin upon the creditor, in order to warrant the arrest of his debtor, must have been performed, or the latter will be entitled to his discharge. Thus it has been holden that the affidavit must be as positive, as from the nature of the case, it can be, to show the amount and character of the indebtedness. And it has been argued that although the affidavit in the present case may be sufficiently explicit upon that point, yet it is defective in declaring that one of two facts is true, without specifying which. The second section of the act of 1839, “ to abolish imprisonment for debt” after providing that a creditor who wishes to arrest his debtor by legal process, shall make oath of the amount of the indebtedness, requires that he shall state farther, that he “ is about to abscond, or such debtor has fraudulently conveyed, or is about fraudulently conveying his estate or effects, or such person has money liable to satisfy his debts, which he fraudulently withholds.” By the third section, it is enacted, “ that when a plaintiff, or his agent, shall take either of the alternative oaths required in the last section, and the same shall not be controverted by the oath of the debtor, then such debtor may discharge himself from said arrest by rendering a schedule of all the estate, effects, choses in action, and moneys, which he has in possession, or is entitled to, and taking the subjoined oath, &c.” The several grounds upon which the arrest of the debtor is authorised by the second section [132] arc to be regarded as distinct from each otherl and if the creditor were to state them all in Iris affidavit, connected as they are, in the act, with the conjunction “ or,” the affidavit would be defective for uncertainty as to the particular ground embraced, or perhaps for failing to affirm the truth of either. This conclusion is strengthened by the third section, which supposes that the creditor is to swear to the truth of but one of the alternatives. And an affidavit like that recited in the order for bail, which sets out two of the grounds disjunctively, is quite as objectionable as if it contained all. In respect to the order made upon the schedule rendered, it may be remarked that the act of 1839, docs not prescribe the manner in which the debtor’s estate shall be disposed of — in fact it is exceedingly defective in its details, considering the important change it proposed in the legislation of the State. For the purpose of ascertaining what the law is upon this point, we must refer to pre-existing statutes. The act of 1807, “concerning executions and for the relief of insolvent debtors” provides that “ all the estate which shall be contained in such schedule, and any other estate which may be discovered to belong to the prisoner, or such interest therein as such prisoner hath and may lawfully part withal, shall be vested in the sheriff of the county, wherein such lands, tenements, goods or chattels shall lie, or be found, and such sheriff is hereby authorised, empowered and required, within sixty days afterthetakingofthc said oath, ten days previous notice of the time and place of sale being given, to sell and convey the same to any person or persons whatsoever, for the best price that can be got for the same, and the money arising from such sale shall be by such sheriff or officer paid to the creditor or creditors, at whose suit such prisoner or prisoners, shall be imprisoned.” The schedule here referred to, was required to be rendered by one who desired to take the oath of insolvency, upon being taken in execution in a civil case. But the act of 1811, “ regulating judicial proceedings in certain cases, and for other purposes” enacts “where any person may be in custody, upon original or mesne process, such person shall be entitled to the benefit of the provisions of the act entitled “ an act concerning executions, and for the relief of insolvent debtots” in the same manner as is therein provided for persons charged in execution: Provided nevertheless, that no plaintiff in a suit against any person who [133] may have availed himself or herself of the provisions of the aforesaid act, and who shall not have obtained final judgment against such defendant taking the benefit of the aforesaid act, shall receive any part of the proceeds of the estate of such prisoner, in the distribution thereof, to the prejudice of any person who may have chai’ged the same prisoner in custody upon execution.” The statute of 1821 is more general in its provisions than either of the preceding enactments, and points out the manner in which a person arrested under mesne or final process may be discharged, or a debtor may relieve himself from liability to arrest. By this act the debtor is required to “ deliver in a schedule of his whole estate and make oath to the effect of that then required by law in relation to insolvent debtors, &c. and the property therein mentioned shall be disposed of in the manner directed by the existing laws, for the benefit of his or her creditors generally.” And the statute of 1807, as modified by an act passed in January, 1833, provides, that after the debtor shall deliver in his schedule and take the oath in verification, and deliver up all evidences of debt in his possession, and orders for such as are not in his possession, he shall then be discharged. [Aik. Dig. 226,-7-8-9.] These several enactments form parts of a system and are to be construed in pari materia. As the ¿i.ct of 1839, entitles the party taken in custody to a release therefrom upon exhibiting his schedule properly verified, without giving any directions as to the disposition of the debtors estate,- we must refer to the previous statutes for information upon this point. These laws seem to regard the schedule when accepted by a court or judicial officer, as a transfer in law of the effects of the debtor to which it refers. Whether such would be its operation upon the estate real or personal, which may be extra territorium, or who will be regarded the legal assignee where the debtor takes the oath of insolvency without having been previously arrested, we will not determine. But the act of 1807, to which the subsequent statutes refer and thus far adopt, declares that the estate contained in the schedule shall be vested in the sheriff of the county in which it may be found; and this must be held to be the consequence resulting , from the acceptance of a schedule made under the act of 1839. By this construction the statutes effect the purpose proposed by the legislature, the debtor is discharged by divesting himself of his [134] property, and the creditor obtains the benefit of it through the means of an agent in whom the ¡aw has vested it. If the creditor should fail to obtain a judgment, or the debtor otherwise legally discharge himself from custody, the legal assignment would of course, be avoided, and the property re-vest in the debtor. But so long as the property remains in the sheriff or other officer, neither the debtor or any one else could rightfully interfere with it, and an intermeddling might subject him to a criminal prosecution; the terrors of which would perhaps afford an adequate protection to the rights of the assignee. In respect to money, choses in action, or other property which may be in the debtors immediate possession, that is to say, about his person or near at hand, it would be competent for the court to direct that they should be delivered up previous to the discharge from imprisonment becoming operative. And as to the other property, we have seen, the debtor, or any one else would z-etain or use it at their peril. It is needless to make a moi-e particular application of these principles to the case at bar, as the cause must be repudiated for the reasons which we will now state. First, The writ of habeas corpus is a means provided by the law, by which one unlawfully held in custody may be l’eleased; and if the detention is in virtue of, or under the pretence of civil process, the plaintiff in the action is not a party to the proceeding, but as the petitioner affirms that he is wrongfully deprived of his liberty, the State in legal pi’esumption, is concerned in having justice done. The writ of error is then defective in having made the plaintiff in the action a defendant. Second, Even conceding that proper parties have been made, and still the case cannot be entertained. There is no such final judgment as will sustain a writ of eri'or, but it must be regarded as an order made pending the action. If either party is prejudiced by such an ordei-, justice may be obtained by asking this court for a mandamus, or other appi’opriate writ. Let the writ of eri’or be dismissed.