The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-01-10

ulent disposition Of his property was entitled to dis
charge under the act perhaps with an understanding
between the parties that the question should be submit
ted to the Supreme Court and that court OF opin
ion that the debtor within the provision of the act
grant the discharge in pursuance Of section IL All that
appears by the report that the matter brought be
the Supreme Court and that the prosecuting creditor
applied for q mandamus to compel the Judge to commit
the defendant and that his application granted Suf
W - IN . ths ashtnr
for assignment and discharge and to have commit
ted him. can regard the case in no other light than
express determination Of the point before me
If the constructions contended for by the petitions were
put upon the act it would be in the form OF fraudulent
debtor to defeat the very purpose the legislature s m
view in enacng it for coercive statute il would al
ford remedy to the creditor where the debtor has as
posed Of his property rauduenty The fraudulent dspc
iton Of property Of the in which debt
may be proceeded against and Is to De tnat
the statute was designed effect in such case
But this construction is to be given to IT. the strange
absurdity would presented OF its being enectye and
Operative in the other cases in this particular case
Of its furnishing remedy Ut all Inc OBJECT OF the
Legislature in passing this act was 10 Abolish nprison
men for debt in all cases founded upon contract put AZ
class of fraudulent debtors II designed RENE
dial humane statne, relieving from Incarceration
prison honest hut unfortunate debtor who had
longer the of satisfying his creditor. By the
law the creditor, after having first stripped the
claim remained nnsatis6ed throw him into prison aud
Keep him there for life unless he foun means to dis
charge the obligation His body held Satisfaction
OF the debt and though by the Lords act in the
thirty second year Of the reign of George H. upon which
our nsolyen laws founded he might lie relieved
from Imprisonment upon surrenderng all his effects TO the
creditor unless the latter consented pay six
pence day for his maintenance, he stil subject
both in this and England TO be taken in execu
ton and 10 remain in prison until he could give notice.
present his petition and obtain his discharge under these
remedial statutes This system, which made no dis
tncon between the honest and fraudulent debtor-tha
subjected TO the rgors of imprisonment any man who
was unable TO pay debt, though that inability may
to control which sagacity could foresee and pru
dence avert reproach TO the Law, being IN VIC
ation of the paines dictates of humanity and justice
1t the fruit of the barbarous policy and spirit
Of which is but expressed by passage that will be found
Mod. 1872, where Justice Hyde says " If person be
taken in execution and lie in prison for debt he is not to
on his own or on the charity OF others and no man
VIII relieve him. let him die in the name Of God says the
law, and say l." While it thus the intention Of
the Legislature to away feature dsagreesbe to
the intelligence OF the age, it equally their intention
subject the fraudulent debtor to the rgor OF mprison
ment and by the passage of the to furnish to the
derauded creditor additional and more summary
to the payment of his claim (Townsendy Morrill,,
1O,Wen. $50 Spear Warde CONS IA The statute
intended to be what its mparts, An act to
punish fraudulent debtors" And in addition to the
remedy given 10 creditor with of preventing
such frauds the fraudulent removal conceauent dis
position of property the receiving of it with intent to
of the debtor is declared to be msdemeanor and pun
ishable criminally as such the People u Wen
S vs. the peo sa Of
with view OF preventing his creditor getting
It, What benefit does the creditor derive by hay w
the debtor avoid commitment or be discharged
from one by making an assignment He has no longer
anything to assign He is required BY the statute to set
forth under oath his estate existed at the time Of his
arrest and it exists at the time he applies for the
assignment This be can readily do having parted with
all his property before he arrested Of what utility
is it that the statute should provide for his being arrest
true gets assignment of all his estate both in law and
equity in possession, reversion remainder G. 20
rs, Ed But Of what benefit is that if there hasbeen
fraudulent disposition of the property II he has
judgment he levy at once upon the property if he
find it in the hands of the fraudulent assignee
vnnee if it consists Of chooses in action subject to
levy upon execution he invoke at the equitable
aid Of the court to set aside the fraudulent sale
sgnment if he has merely commenced q suit, there
being defence TO the debt in such he may Oh
tain judgment, and put himself in position to attack
the fraudulent transfer about soon, in the great
jority Of cases he the conviction Of the
debtor and compel him to an assignment His becoming
his claim places him practically in no better position
reach the property which has been frauduent disposed
Of than his simple condition a. Judgment creditor AT
best could but enable him to proceed somewhat earlier
but unwilling 10 suppose that the sole object Of the
statute TO confer upon him this little advantage
Is also true that the debtor thus guilty OF fraudulent
disposition of his effects, may be indicted for INSIDE
meanor and punished crimnaly. But this is matter
with which the creditor has nothing to do 1t is not in
tended for does il afford him, remedy for the re-
covery of his debt 1t is offence against the public the
any other crime and Is punished as such. In
the case of Kerhaw decided after the passage of the
anendatory act of 1915 q S ia I'd section 80 80
which allowed the defendant after conviction 20 put in
special bail Judge ulshoeer decided that thar act re-
moved all doubt TO the construction OF the statute
and clearly contemplated that the disposition OF
perry which precluded discharge vas n disposition
after conviction and before the debtor presented his
petition. But that act made no change III the statute
in this respect provided that debtor adjudged guilty
of either of the frauds specified in the fourth section of
the original act shah be entitled in addition to the
provided for by the seventeenth section, 70
the discharge provided for in that section, upon
his putting in special bail to the action whether uig
decree should have been rendered in the action
The only offset of ths srs~-"" ~ entitie
the debtor TO be discharged from the proceedings nstn
ted by the creditor his putting in special bail in
he would apply for assignment within thirty day This
privilege given him in addition TO the the
prefer assignment by the seventeenth
section 1t allowed him to do in all cases of convc
ton Of anv Of the frauds specified the fourth section
among them the fraudulent concealment assignment
disposition Of his property But at the same time II pro
vided by section . that though he may have put in and
forfeited special bail he should still be liable TO be impri
soned upon execution to be issued against his body in
such suit in the manner though the arnendao-
had not been passed II is difficult 10 determine
what meant by the latter provision the debtor
could not have been imprisoned upon execution or
upon judgment founded upon contract the statute OF
1881 declaring that person should be arrested inn
prsoned in such case unless he had committed some
Of the frauds specified in the fourth section His
putting in special bail in such case would seem to give
the creditor remedy if the debtors body could not he
put in special hail his body should not be liable TO be
charged in execution though the Judgment decree
have been founded q contract and that he should he
left obtain his release from imprisonment by petition
ing for discharge the any other debtor mpris
oned in civil cases. But whatever may have been the
meaning or intention of the act the anendaory act Of
1916 law 1916 255 limited its operation where
the debtor was convicted OF raudulently contracting the
debt or mourning the obligation in respect to which the
suit had been brought the amendatory act Of 1916 de
csrng that the act Of 1s5 should not apply to the
Of person arrested imprisoned for either of the frauds
specified in the three subdivisions Of tho original act
II has therefore, application to tho Of conyic
ton for fraudulent conceament assignment disposition
Of property respect 10 which the original remains
unaered II may be asked II the debtor cannot obtain
discharge how he get out If PRISON. The ques
tion put the court in the before referred to
of the People vs. Akin That the debtor convicted
Of having fraudueny concealed removed and disposed
of a portion Of his property. His charge denied for
that and the decision neId to esop him from
making anothng application for discharge. The Court
was asked how he get out % prison and they said
that that question they not to decide The
may be returned here and il doubtless
the that thory existed for releasing faudu
lent debtor committed in 8 ike this that led the Le
islature IN the revision Of the code in 1851 10 ensct
(302 257) that in al Of commitment under the act