#### James M. Burton *v*. Jesse Dickens.

From Person.

A debtor imprisoned upon a *ca. sa.*surrenders Ins estate for the benefit of his creditors, and takes the oath of insolvency, agreeably to the provisions of the act of 1773, ch. 4, whereupon he is discharged: This discharge protects him from arrest at the suit of any other creditor, to whom he was indebted at the time.

He is thus protected, not by any provision of the act of *1773,*but by the 39th section of the Constitution of tins State, winch declares that the *“*person of a debtor, where there is not a strong presumption of fraud, K shall not be confined in prison after delivering up, *bona fide,*all his “ estate real and personal, for the use of his creditors, in such manner “ as shall hereafter be regulated by law.”

The act of 1778, ch. 5, enforced all such acts of the General Assembly as were in use and in force before the adoption of the Constitution, which were not inconsistent with that instrument. That act enforced the act of 1773, ch. 4, so far as the same provides for the discharge of insolvent' debtors; and so much of the act of 1773, ch. 4, as left the debtor subject to the airest of a creditor at whose suit he was not confined previous to his discharge, is annulled by the 39th section of the Constitution. To entitle the debtor to this protection, he must deliver up, *bona fide,*all his estate real and personal for the use of his creditors — And it would seem not to be material whether he took the oath of insolvency in the Court in which he filed his petition, or in some other Court, it he give-notice to the creditor at whose instance he is imprisoned. Notice to other creditors is not necessary, although the *effect*of his discharge as to them, will be a protection from arrest at their suit.

When the debtor delivers up his estate for the use of his creditors, and Commissioners are appointed, who give notice to the creditors to come in and receive their dividends, each creditor has an election to come in or not. If he come in and receive his dividend, his debt is satisfied: If he do not, he may sue out execution against such property as the debtor may thereafter acquire.

This was an application for a writ of supersedeas; and was founded upon an affidavit made by James M. Burton, .setting forth that in the year one thousand eight hundred and six, Philips Moore, executor of the last will of Stephen. Moore, deceased, sued out against him a writ of *capias ad satisfaciendum*upon a judgment recovered in Person Courts upon which writ he was arrested by the Sheriff of *104Granville county, and confined in the common jail of that county. That, wishing to avail himself of the benefit of the act of the General Assembly passed for the relief of jnsojven|; debtors, he filed Ms petition in the Court for Person county, and annexed thereto a schedule of his estate, agreeably to the provisions of the act of 1773, ch. 4. That a copy of this petition and schedule were issued and delivered to the Plaintiff in execution, at whose instance he was confined. That Jesse Dickens, previous to the said arrest and imprisonment, had recovered a judgment against him in Person County Court, and that he gave notice to Dickens of his imprisonment, and of his intention to take the benefit of the act passed for the relief of insolvent debtors,- that in the year 1806, in Granville Court, he, agreeably to the notices which had been served upon his creditors, took the oath of insolvency, and was *discharged;*that he was advised his person was thereby protected from arrest at the suit of any creditor to whom he was at that time indebted | and that Jesse Dickens, having revived his judgment aforesaid, had sued out-against him a writ of *capias ad satisfaciendum,*and delivered it to the Sheriff of Orange county, in which county he then resided. He prayed for a writ of supersedeas, which was granted by his honor the *Chief-Justice;*which writ was made returnable to the Superior Court of Law for Person county,- and the question arising in this case being one of great consequence to the personal liberty of the citizen, it was sent to this Court for the opinion of the Judges.

Taylor, Chief-Justice.

The *supersedeas*was granted by me in this case, from doubts which I entertained respecting the true construction of the act of 1773 for the relief of insolvent debtors thinking it better that a question concerning the liberty of a citizen *should be*deliberately settled, though at the expense of delay to a creditor, than that an unfortunate debtor, who had surrendered *105all Ms substance, should, by a life of imprisonment, be prevented from acquiring more, under the force of expressions not in themselves clear and satisfactory. I cannot, however, discover in the act, considered alone, any sufficient ground upon which he is entitled to a discharge: and were there no other source of relief, 1 fear the *super-sedeas*would be discharged.

It is evident from every part of thefirst branch of the act, that notice need only be given to the creditors at whose instance the party is imprisoned, and that the discharge only operates against their claims ; the words being “ and shall stand forever discharged of all such debts so sued for,” that is, in reference to the preceding expressions *“*taken or charged on mesne process or execution for any debtso that although a suit be instituted, yet unless the debtor be charged in execution on such suit, the discharge as to that creditor operates nothing. The words of the second branch are also *“*taken or charged on *“*mesne process ore xccution,” and the notice is to be given *(e*to the creditor or creditors at whose suit the prisoner is *“*confined.” The seventh section directs that the person of the debtor so discharged shall never be arrested for the same debt. The eighth section, in providing for giving-notice where the creditor lives out of the state, employs the same limited expression “ of creditors at whose suit the debtor is charged :” — But the doubt arose from the sixth clause, which dix-ects the commissioners to examine into the claims of all the creditors, as well those at whose suit the commitment has taken place, as of all others *;*and provides for a distribution amongst all the creditors appearing, in proportion to their demands.

It seemed at first view entirely unjust that where the property was surrendered for the benefit of all the creditors, any of them should bo allowed aftex-wards to charge the debtor in execution, supposing every thing to have been fairly transacted on his part *\*and it was supposed the act intended to operate like a bankrupt law, where, *106’after a fair surrender, the debtor is discharged as to all creditors. A closer examination of the law shews that it designed only to discharge the debtor in those cases where the creditor appeared and availed himself of the notice to receive a dividend of the property ; for the seventh clause provides *“*that the person of such debtor so discharged “ shall never be arrested for the same debt,” that is, the debt described in the sixth clause, where the creditor appears and receives a part of the distribution. A creditor who has sued, but has not charged the debtor in execution, is not entitled to any notice previously to the oath being administered to the insolvent ; and if neglecting the notice given by the commissioners to exhibit his claim, he does not come in and accept a dividend, there seems to be nothing in the act to restrain him from suing out a *Ca. 8a.*thereafter.

Upon examining the insolvent law of 1749, I perceive that the assignment of the property was made only for the benefit of the creditors at whose suit the debtor was imprisoned, and none other creditors were' required to be summoned, nor was the person of the debtor discharged as to any others,* which act pursued in that respect the terms of an insolvent law passed in England a few years before. The act under consideration proceeds a step further, and allows all the creditors to take benefit from the surrender *;*but if they elect to renounce this benefit and proceed with their suits, they are at liberty to do so.

Thus the case would stand under the act of 1773, and the effect might fee, that all the creditors in succession, who did not choose to come in upon the dividend, might seize the person of the debtor, even after the fairest surrender of his property. But in 1776, the constitution provided† “ that the person of a debtor, where there is not a *es*strong presumtion of fraud, shall not be confined in pri-*Ci*son after delivering up, *bonajide,*all his estate, real and " personal, for the use of his creditors, in such manner as *107shall hereafter be regulated by law.” To give efficacy to this provision, it was necessary that a future legislature should regulate the manner in which a debtor should surrender his property *;*but this might be done either by enacting a new law, or reinforcing an old one ; and the latter method has been pursued, in 1778, all acts of assembly are put in force, which are not inconsistent with the freedom and independence of the state, and with the new form of *government;*and I take it to be a necessary implication, such as are not likewise incompatible with the constitution then recently established. The consequence of this is, that the act of 1773, is in force so far as it regulates the surrender of the property and the discharge of the person $ but is annulled so far as its construction tends to an unjust, unnecessary and cruel imprisonment of an honest but unfortunate debtor. This outrage on the rights of humanity, falls before the benign influence of a free constitution, and with other remnants of our colonial condition, is consigned to the oblivion it merits — The applicant is entitled to his discharge and to the Writ of Supersedeas which ho prays for.

Hall, Judge.

The applicant in this case was imprisoned at the suit of Moore’s executor : Dickens had obtained a judgment against him, but had not charged him in execution, before he surrendered his estate and took the oath of insolvency. Dickens, therefore, stood in the same situation witli creditors who had not recovered judgments. In both clauses of the act of 1773, cli. 4, where the debtor is wholly insolvent, or intends to deliver up his effects to his creditors under a petition to Court, notice is directed to be given to the creditor at whose suit he is imprisoned ; and this for the double purpose of enabling the creditor to appear and contest the fact of the debtor’s insolvency, and shewing the amount of property he is entitled to, in case the debtor shall surrender his estate. No notice is directed to be given to creditors *generally;*they cannot be bound by a pro-*108cceding’ to which they are not parties. It might be their object to wait with the debtor until his circumstances would grow better; and they ought not to be injured by others who might think proper to proceed against him. Dickens not having charged the debtor in execution, it was not necessary to give him notice $ it was only necessary to give notice to the creditor at whose suit the debtor was confined. Where the oath of insolvency is taken, the insolvent is discharged from the debts sued for, and for which he was imprisoned. The act does not declare that he shall be discharged from any more $ and where he surrenders his property, the act declares, “ that the person of such debtor so discharged, “ shall never be arrested for the same *debt;*but thejudg- “ ment shall be held to be fully satisfied51' — This clearly means the debt for which he was imprisoned. It is true, after the debtor is discharged and Commissioners are appointed, the creditors generally are to be notified to come in : but nothing is said about their debts being discharged, after receiving their proportion of the money for which the debtor’s property was sold : and if the case of the applicant depended altogether upon this act of the General Assembly, I should feel myself bound to give judgment against him. But the S9th section of the Constitution of this State declares, “ that the person of a debtor, where there is not a *es*strong presumption of fraud, shall not be confined in *f<*prison after delivering up, *bona fide,*all his estate real and *“*personal, for the use of his creditors in such manner as *“*shall hereafter be regulated by law.” It is .true, that since the adoption of the Constitution, no law has been passed by the Legislature on the subject ; but by an act passed in the year 1778, ch. 5, the Legislature have enforced ail the acts of Assembly in force before the adoption of the Constitution, provided they were not inconsistent with that instrument: and it is believed that the act of 1773, ch. 4, amongst others, was thereby enforced. It has certainly been in use : for debtors have not been released from imprisonment, otherwise than as pointed out in that act. The *109applicant, baring delivered up his property for the use of his creditors and taken the oath of insolvency, ought not to he confined under Dickens’ execution. Let the *Super-sedeas*which has been granted in this case, be continued.

*

 Swans, Coll. Sect, 4, *5,*7.

†

 Sect. 39,