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


IN the Matter Of the Application Of Paw Andr,of
for Discharge under the Act to Abolish I'M
wisow~neSt for Dsbt.
prisoner, confined in tks city prison this city
oommhent granted BY me in certain proceedings had
Before me on behalf Of Wilson Hunt and Others under
Che provisions Of the abolish imprisonment for
debt and TO punish fraudulent debtors and having given
The bond specified the fourth sub diysion of the 4th
SECTION Of that act Ks for such relief he believes
hse entitled to- pursuant to the provisions OF the said
etstute having with provisions the same
adding the usual prayer for Of his estate
and discharge pursuant to the act; and his petition is
accompanied with account of his creditors and an
venory Of his estate the existed at the time OF
hs imprisonment This petition il defective IN not set
ting forth sufficient TO give officer jurisdiction 10 near
the application and grant discharge unless II may DC
supposed that can judicial notice OF the proceed
ings formerly bad before IL was held oy the court
that whether the application i made after suit has
been commenced against the debtor, in which, by the
provisions of the act he cannot be arrested or pr
eoned made in OF the bond given to avoid
commitment is made after the debtor has been com
ted that in either and all Of these II must
that the debtor has been proceeded against for the
collection of debt demand, arising upon contract,
for which he could not be arrested imprisoned accord
ing 10 the provisions the act and that the petition
must show afrmatiyely the nature Of the suit udg
ment In effect that II must appear that the SUIT or
been arrested imprisoned under the act All that ap
pears in the petition here s that Andrio committed
BY TO the city prison in certain proceedings had he
fore behalf OF Wilson g. Hunt and others, under
the act to abolish Imprisonment for debt and that after
nc committed he gave the bond under the fourth
would apply for an assignment and discharge within
thirty dsys Whether suit commenced or Judg-
fnent was obtained by Hunt and others without which
could not have acquired jurisdiction to commit him to
prison A. fraudulent debtor is not stated In the Peo
pie Bancker the fact that suit had been commenced
against the debtor by the prosecuting creditor set
forth BY the petition but it held to be insufficient
because did not disclose the nature Of the suit Here
there mention Of the commencement Of suit,
or the obtaining of Judgment to authorize the arrest
and commitment; nothing but the general statement
that certain proceedings had under the act to bo
ish imprisonment for debt. Clearly, if this petition
before another officer than myself he would be bound
under the authority cited to dismiss it and do not
deem It necessary inquire how far have the power
take notice Of matters that have officially taken place be-
Tore me inamuch as shall be compelled to dismiss this
application upon other grounds II further held in
1he cited that the inventory TO be annexed to the
petition must contain account OF the petition with
both such estate existed at the time of his arrest and
a they exist at the time Of preparing the petition The
forth his the charges existing upon the
time OF his Imprisonment The imprisonment referred to
der the commitment granted This arrest was anterior
10 that period and the inventory is therefore defective
IN not setting forth his estate and the charges upon as
II existed at the time Of his arrest and it existed when
he prepared his petition The former is not stated At
ALL and the latter is left to be Inferred. 1t
has been the practice of the Judges of this court when
proceedings OF this kind have been instituted before
them individually, and of other Judges in this city
TO allow the schedules to be amended unless they
satisfied that the omission unintentional
from misconcepon of the requirements of the statute
amendment of the schedules here would not avail
1he petitioner there being other objections 10 his right to
be discharged 1t is objected that he did not make the
present application within thirty days. Within that
Time, to wit the 9th of July, 1852 he made his ap
piication for discharge to Judge lnSraham which was
denied. When the present application was made the
thirty days had expired. In the people VS. Akin, q
Hill COO the debtor to avoid commitment offered to
make assignment of his property and delivered to the
officer inventory and account. pursuant to 10,
Sub. 3 His application was opposed BY the creditor,
and after hearing the proofs and allegations of the par
ties the officer decided that the debtors proceedings had
NOT been just and fair inasmuch as he had concealed re-
1ent to deraud his creditors and he refused to grant
discharge He then made another application to diff
ferent officer who dismissed it upon the ground that
the matter had been heard and adudicated upon and
Abe debtor applied TO the supreme Court for manda
mas, which was denied, that court holding that the
matter having once been decided against him, it
ddjsniscatd. That he estopped from trying
IL second time long the first decision remained
nnreversed his remedy being review that decision, if
Judge ingraham dismissed the application before him
does not appear The objections that are now made by
fhe creditors made then, and it he dis
missed it, generally, without specifying any particular
ground If he denied the petitioners application upon
in point and he denied it merely from defect Of form
not prepared TO that the petitioner had right
30 make another application after the thirty days had
pired. II has been CUSTOMARY have stated. where
abe prosecuting creditor creditors appear in
OF the notice 10 permit amendment for defect Of form
bDt i the application is dismissed very much doubt if
the debtor il after the thirty days II is not
necessary however that should put my decision upon
ths ground, the creditors having taken another obiec
fon 70 the discharge, which ! regard conclusive.
TIE 18th of the act provides that the discharge shall
Ds De- granted if the opposing creditors shall satisfy the
cfscer that the debtor has assigned, removed dis
posed Of his property with intent to defraud his creditors
and the opposing creditors put evidence here the
proceedings in which convicted the defendant Of having
fsudulenty disposed Of his property It Is insisted how
ey that the fraudulent disposition contemplated bv
tie statute is disposition Of property by the debtor
during the time that elapses between his conviction and
his application for discharge That though convicted OF
having made fraudulent disposition of hi, property he
l. s entitled TO the benefit of the act unless Is shown
that he has assigned removed DISPOSED Of property
with intent 70 defaud after his conviction Such con
Erncton put upon the act of Judge Ushoeer in the
case Of Bragg Underh but with respect for the
opinion my late associate, cannot agree With him
90 not 40 read the statute 1t declares explicitly that the
officer shall not make the order for the assignment unless
the opposing creditors shall fail to satisfy him that the
proceedings the part of the petitioner are not u ana
fair that he has concealed removed disposed OF any
OF his property with defaud his creditors and in
the affidavit which the debtor is bound to annex to ms
petition he il required to swear that he has not at any
time any disposed q or made over any part
of his property with view TO the future benefit of him
SELF or his family with intent to njure defraud
any of bis creditors The part Of the statute relied upon
b, the petitioner warranng the construction he put
pl10 it. is the general provision in section 10 declaring
that commitment shall not be granted the debtor shall
DO any a the things prescribed Among them deliver to
The ocer inventory Of his estate, and account of
his creditors and execute assignment give bond
with sureties conditional that he viii apply in thirty
DAYS for an assignment of his property and discharge
and the provision in section IL, authorizing him. after
his commitment TO present petition praying for an
assignment Of hi property. and that he may have the
benefit OF the act But these provisions must be taken in
connection with the subsequent in section 10 which
already stated declares that the discharge not to be-
granted If the debtor has concealed removed. disposed
u his property, with intent to defraud and such
srctiop is to be given viii make them harmonious
With each other When the fraud Imputed to the debtor
has been substantated, he may avoid commitment by
aging the debt by giving security that it viii be paid
Thin sixty days, if unable unwilling to do either,
assigning his property for the benefit Of the prose
citing creditor creditors (Bulhelm Bets lin a. 81
scar Wardell Comst. 144 or by giving bond that
win apply for such assignment within thirty days
r. after commitment, fe may petition that his property
ray be assigned &c But this provision must be under
only 70 phD Du bepuu nj
s.udulent conceament removal disposition Of pro-
perty BY the debtor. where he hoe been adudged
gully, has been committed for frauiulently con
fracting debt Of uniusty refusing 30 apply pro
perty TO the payment If judgment or decree or Of
being about 20 his property beyond the ursdc
6icon Of the court TO dispose Of IL with intent 10
dersud his creditors Where however he has been adj
j.dged guilty Of coDceaing it, or Of Eemoyng or dposing
d IL with such intent he directly within the
20 I'D