COURT OF APPEALS.

#### In the Matter of Andrew L. Roberts, an insolvent and imprisoned debtor.

*Application for disaha/rge of insol/oent*— *To whom must he made—Eon-resident judge—Res adjudicata—Appeal.*

The application for the discharge of an imprisoned debtor, under the fifth article of title 1, chapter 6, part 2 of the Revised Statutes, must be made to certain *officers*specified, and cannot be made to any *court;*and an order by such officer is not appealable either to general term or to the court of appeals. The remedy is by *certiorari.*

The petitioner resided in the county of New York. The application was made to judge Donohue, one of the. supreme court judges of this county, who made the order for publication July 20, 1876, and to show cause September 2, 1876. On the return day, September 20, 1876 (Saturday) counsel for parties attended, but neither judge Donohue nor any other justice was present, and no adjournment was had of the proceedings. On Monday, September 4,1876, judge Westbrook, who was duly assigned to duty in this county, on application of counsel for the petitioner, granted an adjournment until September eight, subject to any objections by opposing creditors that could be taken that day. Two other adjournments were had by the same judge.

*Held,*that judge WESTBROOKwas not, in the sense of the statute, successor of judge Donohue, and he lacked the qualification of residence. Under the positive provisions of the statutes, he had no jurisdiction, and the proceedings were out of court.

*It seems,*the doctrine of *res adjudicata*applies to these proceedings.

*May*Term, 1877.

This is an appeal from an order affirming the order denying the application of the petitioner for his discharge from imprisonment.

The application was made under article 5, title 1, chapter *2005 of part 2 of the Ee vised statutes *(See vol.*2, *R. S., p.*29 *of Edmonds’ ed.).*

The order for publication was made July 20, 1876, a.nd to show cause September 2, 1876.

On the return day, September 2, 1876 (Saturday), counsel for the respective parties attended, but neither justice Donohue nor any other justice was present, and no adjournment was had of the proceedings.

Objections were filed by the counsel for opposing creditors, as by law provided.

On Monday, September 4, 1876, justice Westbrook was in attendance at Chambers, and counsel for the petitioner applied for and obtained an adjournment until September eight, *subject to any objections by opposing creditors that could be taken that day.*

A like adjournment was had until the fifteenth of September, and again until the first Monday of October, 1876, by justice Westbrook, and a special objection was taken to his power so to do.

Various adjournments were had, at request of counsel for petitioner, from time to time, upon like conditions as before, until January 27, 1877, when the papers were submitted to justice Donohue, who afterward denied the application, and the order was duly entered, from-which an appeal was taken, and said order was affirmed by the general term, and from the order of affirmance this appeal is taken.

The general term affirmed the order, upon the ground that the doctrine of *res adjudicata*is applicable to these proceedings *(See opinion of general*term, 10 *Hun,*253).

*Vedder Van Dyck,*counsel for petitioner and appellant, argued the following points among others:

I. Petitioner appealed to general term, upon the ground that the officer below, in denying his application, erred, because there was no evidence to support the decision upon which the order was based. 1. The practice upon these *201applications is, that the creditor opposing the discharge must, at or before the first hearing on the petition, file a specification, in writing, of the grounds of his objections *(See sec.*5 *of said article,*3 *R. S.*[6 *Banks’ ed.],*24). The statute does not provide, nor is there any necessity for a traverse, demurrer or reply, on the part of petitioner, to such specifications. For the opposing creditor then, at said hearing, becomes entitled upon demand, to a trial of the merits of the application, and may require an examination of petitioner, his wife and others. In this instance the creditors neglected to demand such trial and examination, but rested upon the proofs and allegations submitted. 2. All the substantive facts required by the statute to make out a *prima facie*case for discharge appear in petitioner’s petition, and accompanying schedules and affidavits. The specifications put all those facts in issue. But the proofs offered by creditors do not controvert any of petitioner’s allegations, nor do they sustain any of the objections going to the merits of the application, but relate merely to the publication of the notices and to certain proceedings at a special term of the. court of common pleas, neither of which touch or sustain the point upon which said officer denied the application. Therefore all substantive facts entitling petitioner to his discharge upon the merits, under section 8 of said article, being admitted by creditors on the hearing, the assignment provided by said section ought to have been directed. 3. The denial of petitioner’s application, by the officer below, in view of the proof, seems to have been solely upon the' ground of a supposed want of power to grant the relief sought, because of a decision of general term *(in Matter of Brady, reported in*8 *Hun,*431), which he considered himself constrained to follow. Petitioner submits that no comparison between this and *Brady’s Case*is warranted in fact or in reason, and that the officer below must have denied this application only upon a misconstruction of the opinion in said case. It there appeared that Brady had been guilty of one of the acts which he was required by the *202statute to negative in his oath. For this act he had been . arrested ; and the general term held, upon his application for discharge, under article 6, that such act, although consummated before the action, if it were so connected with the action as to be the ground of arrest therein, made his proceedings not “just and fair ” under said article, and prevented his discharge. This decision of general term has since been affirmed, of course, by this court of appeals *(See ante,*p. 128). Bow, on this application, the allegations in the petition, schedules and affidavits, conforming in every respect to the requirements of article 5, stand unimpeached and uncontradicted by any proof. And there is no suggestion in the decision in said *Brady’s Case*which could restrain the officer from directing the assignment to be made under section 8. There was thus an utter failure of proof as to objections ( 1, 2, 3, 5, 6, Y, 8, 9, 10, 13 and 14.

II. General term, disregarding the opinion of the officer below, affirmed his order upon objection 13 in the specifications, that this application is *res adjudicata.*Petitioner submits that this was error, for the following reasons : 1. There was no evidence to sustain this objection. It is elementary law that to establish said objection it must appear that the former decision was in a matter between the same parties, that it was upon the same state of facts and upon the merits. And such decision being before an officer of special jurisdiction under the statute, the creditors were also bound to establish, on the hearing, the facts conferring jurisdiction. The burden of proof as to these matters was upon the creditors *(Kerr*agt. *Hays,*35 *N. Y.,*331; *Lawrence*agt. *Hunt,*10 *Wend.,*80; *Code, sec.*161). *(a)*The order was not proof. It does not recite jurisdictional facts; on the contrary, it purports to be an order of a special term of a court of common pleas, incompetent to entertain an application under article 5, and not an order of an officer under the statute, as reqxiired. (6) It does not show that said application was , between the same parties as this, *(c)*It does not recite or *203show the grounds or facts upon which the former application was denied, whether upon the merits or not. *(d)*The records of the former proceeding, upon which creditors rely, ought to have been produced (1 *Gr. Ev., sec.*511). And their omission to produce it, without proof of inability, creates an unfavorable presumption against them, *(e)*When the record, having been produced, does not show upon its face'that the point was decided, but was a proper issue, and might have been decided, then only is evidence *aliunde*competent (K*err*agt. Hayes, 35 *N. Y,*331). The record not having been produced, the affidavit is incompetent. (./) The affidavit is also insufficient. It fails to allege that this application is upon the same state of facts as the former one, or between the same parties. The statement contained in said affidavit, that said petition was “ like the petition now presented,” that said decision was *“*upon the merits,” and that the schedule *“*is substantially the same as in said prior application,” are merely matters of opinion, not facts upon which said objection could be sustained. *2.*Even if the proofs were sufficient *prima facie*evidence to support said objection, petitioner submits that he has had no opportunity to controvert them. It was not raised upon a motion to dismiss the petition, so that petitioner could come in with counter-affidavits. Having been, raised upon the hearing, petitioner has no right or opportunity, under the statute, to offer affidavits in opposition to said objection or in support of his petition. Said objection being so raised at the hearing becomes one of the issues to be determined only by the examination, wherein petitioner would have an opportunity to rebut it. Since petitioner cannot insist that he be examined, creditors, by not demanding such examination, have virtually closed the door to his proofs, however conclusive, that his present application is upon a different state of facts. 3. The doctrine of *res adyudicala*is not applicable to a proceeding under article 5. The maxim, *“nemo débil bis vexojriypro eadem causa”*upon which the doctrine is founded, suggests its limitations. The *204respective rights of the same parties having been duly and finally determined upon the merits, the successful party has a right to rest upon such determination, without further vexation from the unsuccessful party. So the doctrine is applicable to all determinations as to rights of the same parties to property, whether in actions or summary or special proceedings (D*emarest*agt. *Day,*32 *N. Y.,*281, *and other cases cited in the opinion of general term).*So in *habeas corpus*cases, where the right to Custody of a child as between contending parents is determined *(Mercein*agt. *People,*25 *Wend.,*64). So the doctrine clearly applies in a case like that of *People ex rel. Lockwood*agt. *Aiken*(4 *Hill,*606). The relator was arrested on warrant under the non-imprisonment act, upon the ground 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. Belator neglected or refused to controvert said charges. To prevent a commitment he proposed to make an assignment of his property under act. Upon this application the commissioner decided, after. a hearing, that his proceedings were not just and fair and that he had concealed his property, &c. The commitment was thereupon issued. Then, in the same matter, he applied to judge Akin, under the same act, for his discharge, and the judge, on motion, dismissed the application, upon the ground of the former adjudication. The decision was properly affirmed by the court of errors. The plaintiff’s right to the arrest of the defendant had been determined in the very matter between the same parties, and under the very statute by whose provisions relator sought again to be released. So, too, the doctrine has been applied at special term at common pleas, upon a second application under the fourteen-day act *(article*6), for there the application is made in the suit in which the petitioner is arrested and the opposing creditor is the plaintiff in such suit. The determination is necessarily between the same parties *(Matter of Rosenberg,*10 *Abb.*[N. S.], 450; *205*Matter of Thomas, id.,*114). But an application under article 5, such as the present one, is altogether different from the foregoing instances where the doctrine has been applied. The article was enacted for the relief of debtors imprisoned, or liable to imprisonment, exempting them, in certain cases, from such liability, or, if imprisoned, discharging them as to all creditors. Proceedings under the article, therefore, being intended to secure or procure a debt- or’s liberty, are, in all respects, except in form, analogous to proceedings under the *habeas corpus*act; and the law applicable to such proceedings should be applied to these under article 5. It is now well settled in this state that previous adjudications are no answer'to a new writ where the relator is restrained of his liberty. The decision under one writ refusing to discharge him does not bar the issuing of a second writ by another court or officer *(People ex rel. Lawrence*agt. *Brady,*56 *N. Y.,*182; *Ex parte Kaine,*3 *Blatch. C. C.,*1; *Ex parte Partington,*13 *M. & W.,*679 ; *The King*agt. *Saddis,*1 *East,*306 ; *In re Reynolds,*6 *Park. Cr.,*276). In such cases the argument of inconvenience or vexation must yield to the right of a person to his liberty. “Any system of law which would keep a prisoner in custody when the facts show him to be entitled to his discharge, would be a perversion of justice” *(People ex rel. Eldridge*agt. *Fancher,*3 *S. C. Rep.,*189).

III. Objection 15 refers to the adjournment had upon order of Mr. justice Westbrook. It seems to be intended by the statute merely to restrict the insolvent to proceeding within the county in which he resides or is imprisoned. The proof of residence or imprisonment referred to applies to the insolvent, not the officer. Hence the application must be made primarily to an officer residing within the same county *(See sec.*2, *art.*7, 3 *R. S.*[6 *Banks' ed.]).*Therefore, section 3 provides that a collusive imprisonment in a county different from that of his residence will avoid a discharge, or defeat the application ; and section 4 provides that if there *206be no such officer residing in any such county, the application may be made to any such officer residing in any other county. “ But no place shall be appointed for the hearing on any application out of the county in which the insolvent resides or is imprisoned.” And section 5 goes, farther, providing that in certain cases the proceedings may be continued by the successor in office of the officer before whom the proceeding began, or by any other officer residing in the same county who might have originally instituted such proceedings, in the same manner and with the like effect as if originally commenced before him.” There seems to be thus no limitation as to the competency of the “ successor in office,” wherever his residence, provided he proceeds with the hearing in the county wherein the insolvent resides or is imprisoned. Judicial cognizance must be taken of the fact that j udge Westbbook was duly assigned to duty in this county at said time, and was, therefore, the successor in office of any resident justice in this proceeding. Eo proof was offered that any other justice of this court or other officer was present in this county. The competency of said-justice as an officer depends upon existing laws (3 *R. S.*[6 *Banks’ ed.],*221, *sec.*92; *id.,*223, *sec.*98; *id.,*446. *sec.*40; *Code, sec.*27; *id., sec.*404). The provision is remedial in its nature and should be liberally construed to effectuate the object intended. Tjreobject was to provide for the continuance of the proceedings (H*olstein*agt. *Rice,*24 *How.,*140). As to objection 16, petitioner submits that his proceeding on the next court day is according to the practice in the first department *(Mathis*agt. *Vail,*10 *How.,*458). There is no proof that creditor^ oían y one interested were misled or injured. The only creditors who appeared on the return day appeared on the next court day, and thereafter at the hearing herein *(Matter of Jacobs,*12 *Abb. [N.*S.], 273). As said creditors so appeared, it was not necessary that further notice be given them under section 42, 3 Revised Statutes *(Banks’ 6th ed.),*447. If such proceedings were irregular, it was waived by creditor’s *207subsequent appearance and action *(Mahany*agt. Penman, 4 *Duer, 603; Sullivan*agt. *Frazee,*4 *Robt.,*516).

IV. The order appealed from should be reversed with costs, and the officer below required to direct an assignment of petitioner’s property under section 8 of the act.

*Arnold, Elliott & White,*attorneys. *R. C. Elliott,*of counsel for opposing creditors, argued the following, among other points:

I. The proceedings were out of court. They were returnable September 2, 1876. Neither the justice granting the order was present nor was any other justice present, and no adjournment was had. These proceedings being statutory, the provision of the statute must be strictly complied with *(People ex rel. Galston*agt. *Brooks,*40 *How.,*165; *People ex rel. Lewis*agt. *Daly,*4 *Hun,*641).

II. If the provision of the Code could assist the petitioner, which we hold they cannot, then we say they do not provide for this case. They are as follows: Code, § 26. 11 In ease of the inability for any cause of a judge assigned for that purpose to hold a special term or circuit court, or sit at a general term, or preside at a court of oyer and terminer, any other judge may do so.” If this section did apply, our answer would be that any other judge did not do so, and if he had, it must be a judge competent to institute it *(See Dresser*agt. *Van Pelt, hereafter cited).*Code, § 27, subdivision 1: “ Every proceeding commenced before one of the judges in the first judicial district may be continued before another with .the same effect as if commenced before him.” Again we say, but it wasonot so continued. A true interpretation of this section is a proceeding commenced in the first judicial district by any judge competent to institute it therein may be continued in such district before any judge competent to have commenced it *(Dresser*agt. *Van Pelt,*15 *How. Pr.,*19). Code, § 404, provides: *“*When notice of a motion is given, or an order to show cause is returnable before a judge out of *208court, and at the time fixed *for*the motion he is absent, *or*unable to Bear it, the same may be transferred, by his order, to some other judge before whom the motion might originally have been made.” The remarks made to the section before stated apply with equal force to this section.

III. Under the statute, application must be made to an officer residing in the county in which the debtor resides, and proof of such residence must be made at the time of presenting the petition and before any order will be granted *(Art.*7, *title*1, *part*2, *chap.*5 *of the R. S.;*2 *R. S.,*35, § 2 *[Banks’ 5th ed.], vol.*3, *p.*109). And sections 4, 5 and 6 provide for the inability to proceed before the officer mentioned in section 2; those sections are, in substance, as follows: Section 4. “ If no officer residing within the county, &c., then the application can be made to any such officer residing in any other county,” &c. Section 5. “ In case of death, sickness, resignation removal from office, absence from the county of his residence, or other disability of any officer before whom proceedings under the^statute may have been commenced, the proceedings may be continued by his successor in office, or by any other officer residing in the same county *who might home originally instituted such pro*ceedings, in the same manner, and with like effect as if originally commenced before him.” Section 6.. *“*If there be no officer in the same county competent to continue such proceedings, then any judge of the county court may attend at the time and place appointed for the hearing of any matter, and may adjourn the same to the next county court *or*court of common pleas, to be held in the county, &e., and said court shall proceed therein in the same manner and with like authority as the officer who commenced such proceedings.” The statute provides (2 *R. S.,*277 *[Bank's 5th ed.], vol. 3,p.*469) as follows: Section 2. Bo process, civil or criminal, before any of the said courts, shall be discontinued by the occurrence-of any vacancy in the office of any judge, or of all the judges,” &c. Section 3. “ Bo process issued or proceed*209ings pending shall be discontinued by reason of such court not having been held at any stated term thereof, but such process shall be deemed to be returnable at the term which shall he held next after such failure, and shall be continued at such term in the same manner as might have been at the term which failed, upon the like notice as would have been required for such term.”

IV. If it should be held that the proceedings stood over from September second to September fourth, we then say the justice in attendance on that day had not the power to hear or to adjourn. He was not a resident of the county, and not an officer to whom the petition could have been presented, and who could have granted the order, and he does not come within the provision of the sections before stated.

V. Questions of jurisdiction in these proceedings can be raised at any time *(Matter of*Wigby, 8 *Wend.,*134; *People ex rel. Galston*agt. Brooks, 40 *How. Pr. R.,*165; *People ex rel. Lewis*agt. *Daly,*4 *Hun,*641).

VI. The application was properly denied; the petitioner had before applied, under the same statute, to a judge of the court of common pleas for the city and county of Hew York, for their discharge, issue was duly joined under such application, a trial was had, and, after a full hearing, the application was denied upon the merits, an order was duly entered, no appeal was taken from said order, no application has been m^de to open those proceedings, or for leave to amend. The doctrine of *res adjudieata*applies. The petitioner should have either moved to open those proceedings and for leave to amend the same, or .have appealed from the order as entered, or by writ of *certiorari,*have removed those proceedings to the supreme court for examination and review. Act of 1854 *(Laws of*1854, 592, *chap.*270) provides for appeal to the general term from any judgment or order in any special proceedings *(Matter of Livingston,*34 *N. Y.,*557.) *Certiorari*will issue to remove to the supreme court for examination and review (2 *R. S.,*49, 50, § 47; *Laws of*1874, *210*chap.*280, § 17; *Gardner*agt. Commissioners, 10 *How. Pr. R.,*181; *People ex rel. Lewis*agt *J. F.*Daly, 4 Hun, 641; *Morewood*agt. Hollister, 6 N. Y., 309). Tliak the principle of *res adjudieata*applies in these' cases, see *Demarest*agt. *Day*(32 *N. Y.,*281); *White*agt. *Coatsworth*(6 *id.,*137); *Yonkers and N. Y. F. I Co.*agt. *Bishop*(1 *Daly,*449); *Powers*agt. *Witty*(42 *How. Pr. R.,*352); *People ex rel. Lockwood*agt. *Akin*(4 *Hill,*606). The same principle applies in cases of *habeas corpus (Mercein*agt. *People,*25 *Wend.,*64; *People*agt. *Burtnett,*13 *Abb. Pr. R., 8; People*agt. *Kelly,*1 *Abb. Pr.*[N. S.], 432). In case of *Brown*agt. *Mayor of New York,*in the court of appeals, June 13, 1876 *Reported in Weekly Digest of September*11, 1876, *volume*3, *number*5, *page*119), held the rule of *res adjudieata*applies not only to judgments, but to all judicial proceedings, whether made in actions, or summary or special proceedings, or by a judicial officer, in matters properly submitted to their determination. The cases of *Matter of Rosenberg*(10 *Abb. Pr. [N.*S.]) and of *Matter of Thomas*(10 *Abb. Pr. R. [N.*S.], 114), are directly in point. If the debtor can make a second application, after being defeated in the first, there can be no limit to the application, and the creditor may better abandon his claim at once than think of opposing a discharge *(Per*Bronson, *J., in People*agt *Allen,*4 *Hill,*608). And if the counsel ask, how can the debtor get out of jail ? we would reply in the, language of the same justice in the same case: *“*That is a question we are not now called upon to decide,” and, in this particular case, would add that the community at large are safer with the petitioner where he is, than were he successful in his application.

VII. It appears, upon the face of the papers presented by the petitioner, that he is not entitled to his discharge; the test is, are the statements *just and true, and is the ajfida/oit presented true t*It appears, from the schedule, that there are claims against the petitioner amounting to over $200,000 for money had and received by him, with others, from various *211parties, and that two of said claims have passed to judgments, one for $36,064.09, May 4, 1875,' and one for $91,015.35, January 8, 1876, these two claims alone amounting to over $127,000, the petitioner, with others, has had and received, yet he does not account for a single dollar of it.

VIII. The petitioner was not entitled to his discharge upon the papers, as they were submitted to the justice below within the spirit of the decision. The act was created for the benefit of poor but unfortunate debtors, not for the relief of the fraudulent "debtor, and the application at that stage of the proceeding was properly denied *(Matter of*Watson, 2 *E. D. S.,*429; *Gaul*agt. *Clark, N. Y. W. D., vol. 1, p.*209; *In re Walter*Brady, 8 *Hun,*437; *Matter of Pie,*10 *Abb. Pr.,*409 ; *People*agt. *White,*14 *How. P. R.,*499).

The order should be affirmed.

Pee Curiam.

This was an application under the fifth article of title 1, chapter. 5, part 2 of the Revised Statutes for the purpose of exonerating the person of the petitioner from imprisonment. There are two objections not involving the merits, which we do not see any way to overcome:

*First.*The application must be made to certain *officers*specified, and cannot be made to any court, and an order by such a person is not appealable either to general term or to this court. In the *Brady Case (ante,*p. 128) the application was under the sixth article, which authorizes it to be made to a court, and we held that it was appealable as an order in a special proceeding under the act of 1854, chapter 270. The remedy in this case was by *certiorari.*

*Second.*The cáse was out of court by the failure of the presence of a judge competent to act. Section 2, article 7, provides that applications under the fifth article must be made to an officer *residing*in the county in which the insolvent or imprisoned debtor reside or is imprisoned; and section 5 provides that in case of disability, resignation, removal from office, or absence from the county, of the officer before whom the proceedings were commenced, the same may be continued *212by his successor in office, or by another officer who might have originally instituted such proceedings; and the sixth section provides that if there is no such officer competent to act, then any judge of the county court may attend and adjourn the hearing to the next court of common pleas of the county.

The original order was made on the 20th day of July, 1876, by justice Donohue, returnable on the 2d day of September, 1876. On the return day the parties appeared, but there was no justice in attendance. On the fourth day of September, which was Monday, the next court day, justice Westbrook adjourned the proceedings until the eighth day of September, and on that day he adjourned them until the first Monday of October. Justice Westbrook neither resided in the county or the district.

The statute is very specific in designating the officers who are authorized to act in conducting these proceedings.'

It must be an officer residing in the same county in which the debtor resides or is imprisoned, and this qualification every justice must have or the proceedings go to the common pleas, except that the successor of the officer who made the original order may act.

Judge .Westbrook was not, in the sense of the statute, successor of judge Donohue, and he lacked the qualification, of residence. Objection was duly taken throughout the proceedings, and we feel constrained to hold under the positive ■provisions of the statutes that justice Westbrook had no jurisdiction, and that the proceedings were out of court. There was no judge present on the return day, and- no one competent to act until the second day of October.

The proceedings could not be reviewed at that time, and the subsequent proceedings were.

The question of *res adjudieata*is a more serious one, but it is not necessary to consider it.

The order of general term reversed and appeal to that court dismissed.

All concur. • °