MARCH. 1813.

#### Exparte Perkins.

CiSE lxt-

A on im_ prisoned by the Court of Equity for decree for.the Pa¿TM®‘rt m°y he d^c,la^ court of e. debtors’ a«%

gFried before Chancellor Desaussure, Charleston,

March, 1813.]

Captain Perkins was in custody under the process of .this Court, for not complying with a decree of the Court , , , and paying over a sum of money due to the complainants in a suit therein depending. He applies to the Court be discharged under the insolvent debtors’ law. No opposition was made by any creditors. They merely submitted the question whether he could take the benefit of that act in this Court. The attorney-general, Mr. Nichardson, argued the question very fully on the of Mr. Perkins. He contended that no decision has been actually made, that the Court of Equity has not the jurisdiction to give the benefit of the insolvent debt- or’s law. The title and the preamble are entirely gone-, ral, and áre not confined to any Court. The enacting clause indeed directs the application of the petition to á court of law, from whence such process issued $ but all the other clauses say, courts generally^ The spirit of the law is to give relief to the unfortunate debtors^ not regarding by what court the commitment is made. That - the Court of Equity is a court of law *\*it has a law side *;*a common law jurisdiction: Co. Litt. 58. “ Court,’* is where justice is judicially administered. Commissions of idiocy, lunacy, &c. are issued out of the Court of Chancery, on the common law side. Then the Court of Chancery being a court of law, the difficulty is at an end *;*but there is no real difficulty on principle : Est honi judiéis ampliare jurisdictionem, is the advice of jLord Coke. And surely it is proper to interfere when an imprisonment for life would he the effect of not interfering. The act of insolvency must mean and did mean that all Courts having the right to attach the person, should have the right to give benefit of the acts. It would be monstrous that the Cpurt should imprison the debtor without the power of releasing under the insol*550vent law. The City Court recently instituted, having^ *eSa* an^ crLllity jurisdiction, mayand does exercise their of giving benefit of insolvent debtors’law. The. prison bound’s law, 6th section, expressly says, «the justices of the court from which the process issues."

The Chancellor delivered the following decree :

Upon the whole of this argument I have doubts ro. maining whether this Court has a right to grant the benefit of the insolvent debtor’s law in any case. But as the. weight of the argument appears to be in favor of the exercise of this *authority;*and as by the decision in Lowe’s case, it appears that the party confined under the process of this Court, cannot be absolutely released *by*a discharge made by any other court under the insolvent debtor’s law, it would follow that Mr. Perkins would be imprisoned for life, unless this Court should interfere and give relief under the insolvent law, I will venture to exercise the authority in favorem libertatis of the citizen. Should this opinion not be satisfactory to the parties interested, I should be glad that the question, which is novel, should be carried up to the Court of Appeals.

Hekry ¥m. Desaussure.

There was no appeal from this decree.