TOT T3 in tj -jr «*n -jrj\ -jr 7 1 A/A jti&i jail A ~ ixIMia ■''iwtgimftm 607/ A3* CJornpU IGatu ^rljnnl Sihrarg Cornell University Library KFN6071.A34M11 The act to abolish imprisonment for debt The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924022787109 ; .-iH ; ;' «*^,f HON. SILAS M. STILWELL. Biographical Sketch, see p. 109. THE ACT TO ' o : JSEP V) ■•3 y 17 i <■- / AND TO PUNISH FRAUDULENT DEBTORS, COMMONLY CALLED "THE STILWELL ACT," WITH FORMS AND REFERENCES TO THE JUDICIAL DECISIONS THEREUNDER. HON. DAVID McADAM, One op the Justices of the New Yoke Marine Court. NEW YORK: EDWARD Gt. WARD, PUBLISHER. 1880. ^rtt^^y COPYRIGHT, BY DAVID MCADA1I. • 1880. PREFACE. This compilation of the statutes, decisions, and forms relating to the " Stilwell Act," is presented as a handy manual of easy reference for those who are required to practice under the act, as well as the officers who are to administer its provisions. The abolition of the National Bankruptcy Act naturally suggests a more frequent return to the remedy against fraudulent debtors, furnished by the Stilwell Act. This circumstance, and the fact that the practice under it is not well known to many of our present practitioners, have led to this publication. DAVID McADAM. TABLE OF CONTENTS. INTRODUCTORY. !TION History of the act PART I. Relating to Cocbts of Recobd. 1. Imprisonment for debt in actions on contract abolished, ex- cept in certain cases 23 2. Money received in a fiduciary capacity; attorneys and others liable to imprisonment 29 3. Provisions concerning costs 30 4. Process to collect costs 32 5. Exceptions 33 6. When plaintiff may apply for warrant 36 7. Application, to whom made 41 8. Evidence to be adduced on application 45 9. When warrant to issue. — What to contain, and by whom executed 60 10. Warrant, how executed by officer , 66 11. What to be done on appearance of person arrested 69 12. Bond to be given to obtain postponement 82 13. Power of officer conducting inquiry 84 14. I» what cases defendant to be committed 87 VI TABLE OP CONTENTS. PASS 15. In what cases commitment shall not be granted 96 16. Application of certain provisions 105 17. Defendants committed to remain in custody as prisoners on criminal process 105 18. Person committed may petition for the assignment of his property 110 19. To deliver an account of his creditors, and an inventory of his estate 113 20. Fourteen days' notice to be given 119 21. Any creditor may oppose application 121 22. Officer may adjourn hearing for thirty days. — "What the op- posing creditor must do at the hearing 125 23. Assignees to be appointed, certificate and discharge 131 24. Provision on putting in and perfecting special bail 134 25. Liability to imprisonment on execution issued 139 26. First section of act of 1845 to apply to certain cases 139 27. Bights, power and duty of assignees 140 28. General provisions 140 29. Proceedings in cases of persons, when the act takes effect. 142 80. Certain imprisoned persons may proceed as in sections 18 and 19 143 31. When complainant liable for costs 144 32. Bond not to apply to exempt property 144 33. Amount of recovery when bond is forfeited 146 34. Not to apply to certain debts 146 35. Effect on justice's judgment 147 86. Evidence of judgment 148 37. Costs, fees, &c, to be particularized 148 38. Provisions to apply to Albany, Troy, and Hudson 149 89. Punishment for removing or secreting property , 149 TABLE OF CONTENTS. Vll SECTION PAGE 40. Proceedings in case of conviction, &c. — Appointment of trustees, &c 151 41. In case of perjury by witnesses 154 42. In case of bill in equity 154 43. May bring a writ of habeas corpus 155 44. Act, when to take effect 155 paet n. Relating to Justices' Cou»ts. Explanatory note 156 215 [30]. Executions, in what form to issue 156 216 [31]. Warrant, in what cases to issue 157 217 [32]. In cases of non-resident plaintiffs 158 218 [33]. In cases of non-resident defendants 158 219 [34]. Attachments against property 159 220 [35]. What cases to be commenced by attachment 159 221 [36]. Attachments, how served 160 222 [37]. Proceedings, when personally served 161 223 [38]. Proceedings when defendant cannot be found 161 224 [39]. Effect of judgment, when defendant personally served 162 225 [40] Condition of bond, when execution cannot issue against the body 163 226 [4.1]. Repeal of three sections of the Revised Statutes 163 227 [42]. Certain provisions of the Revised Statutes to apply to this act 164 228 [43]. Marine court, New York 164 Miscellaneous matters 165 to 167 Biographical sketch of Hon. Silas M, Stilwell , . , 169 LIST OF ILLUSTRATIONS. Hon. Silas M. Stilwell Frrnitiqaiece The Old Bridewell 1 The Old Debtor's Jail 7 The Old Jail in Eldridge Street 23 TABLE OF CASES. Pi Albee v. Ward 8 Mass • I Alkenbrack ®. People 1 Den 1 Angus v, Dunsback 8 How. Pr Ayres v. Scribner . .*. 17 Wend 1 Barber v. People 17 Hun 1 Barrett v. Grade 34 Barb Beatty, Exp 12 Wend Bennett v. Ingersoll 24 Wend Berthelon c. Betts 1 Hill 37, 55, 11 Bigelow v. Stearns 19 Johns Bliss B. Otis 1 Den Boliauan v. Peterson 9 Wend 31, Bowen v. True 53 N. Y Bonafons v. Walker 2 Term R Bowdler, In re 17 L. J. Q. B Bothe's Case Moore Brady, Inre 69 N. Y 88, 1( Brodie v. Stephens 2 Johns 1 Broadhead v. McConnell 3 Barb 49, 56, Bromley v. Town 1 Hill Brown v. HaflE 5 Paige Brown v. Treat 1 Hill 27, Bullymore v. Cooper 46 N. Y 115, 1( Burhans v. Casey 4 Sandf Carpentier v. Willett 1 Keyes ( Clarke v. Wright 10 Wend 88, 101, IS Xii TABLE OP OASES. Clarke v. Pinckney 50 Barb... 30 Cobb v. Harmon 23 N. -Y. . .' 82 Coman v. Storm 26 How. Pr 90 Commissioners of Saratogas. Doherty. 16 How 35 Contant v. Chapman 2 Q. B 67 Corwin ». Freeland 6 N. Y 26 Courter v. McNamara , 9 How 64 Courter v. Reed 5 Den Ill Demarest v. Day 32 N. Y 86 Dwight v. St. John 25 N. Y 86 Dresser v. "Van Pelt 15 How. ; 6 Duer 79 Dubois v. Thompson 1 Daly 30 Dugoid v. Edwards 50 Barb 30 Earl v. Camp 16 Wend 64 EdmoDston v. Thomson 15 Wend 37 Enoch ». Ernst 21 How. Pr 28 Fassett v. Tallmadge 37 Barb 53 Fleming, Exp 4 Hill 37, 68, 89 French's Case, In re Mod. Rep 139 French v. White 5 Duer 27 Gaul v. Clark 1 Weekly Dig 88 German Bank v. Edwards 53 N. Y 29 Giles®. Halbert 12 N. Y 32 Goodrich v. Dunbar 17 Barb 30 Gregory v. Weiner 1 Code Rep. N. S 26 Green v. Lee 8 Weekly Dig 32 Green v. Morse 4 Barb 88 Groenvelt's, Dr. Case 1 Lord Raymond 94 Hagaman, Exp 2 Hill 120 Halls. Kellogg, 13 Barb; 12 N. Y. 40, 57 101, 113 TABLE OF OASES. Xlll PAGE Halls. McMahon 10 Abb. Pr 36 Hammer v. Wilsey 17 Wend 87 Hathaway v. Johnson 55 N. Y 57 Herd *. Lodge.' 20 Pick 143 Hernandez ». Carnobeli 10 How. Pr 28 Hoag v. Hoag 35 N. Y 133 Holbrook i>. Homer 6 How. Pr. ; 1 Code Rep. N. S 30 Holmes v. Lansing 3 Johns. Cas 95 Holstein c. Rice 24How. Pr. ; 15 Abb. Pr. 79 Hoose v. Sherrill 16 Wend 64 Horton v. Hendershott 1 Hill 67 Hurst, In re 7 Wend. . . .65, 66, 127, 167 Jackson v. Bartlett 8 Johns 67 Johnson v. Comstock 6 Hill 37 Johnson v. Moss 20 Wend 45, 55 Johnson v. Whitman 10 Abb. Pr. N. S. . . 30 Karst v. Metzgar , 5 N. Y. Leg. Obs 30 Kearney s. Kelley 22 How. Pr 32, 141 Keef haver v. Commonwealth 2 P. & W 73 Keiley v. Dusenbury 2 Abb. N. C. ; 1 Monthly L. B 123, 166 Kellogg v. Gilbert 10 Johns 67 Kemp v. Neville 10 Com. B. K S 69 Kep v. Bank of N. Y 10 Johns 128 Kerr v. Mount 28 N. Y 37, 58 King v. Kirby 28 Barb 27, 30 Knight v. Beach 7 Abb. Pr. N. S 37 Krauth v. "Vial 10 Abb. Pr 26, 60, 127 Lambert v. Snow 17 How. Pr. ; 9 Abb. Pr. . 29 Latham v. Westervelt 26 Barb ... 26, 42, 49, 67, 83 Latham v. Westervelt 16 Barb 67, 69, 74, 83 La Torre v. O'Brien 6 Abb. Pr. 28, 39, 40, 55, 63 XIV TABLE OF OASES. PASS Livermore «. Northrup 44 N. Y 88 Lock-wood 11. Aiken 4 Hill 86, 102, 111 Lynde t>. Montgomery 15 Wend 37, 41, 68 Lyon v. Yates 52 Barb 58 McNair v. Gilbert 3 "Wend 127 Maas v. La Torre 6 Abb. Pr 109 Many v. Scott 1 Mod 13 Mason ». Lambert 3 Daly 29 Matter of Andriot 2 Daly 12, 26, 38, 76, 101, 112, 115, 127 Matter of Andrews 1 City Ct. R 102 Matter of Behrman Lalor's Supplt 125 Matter of Brady 8 Hun; 69 N. Y 88, 102 Matter of Bradlie 1 Edm 103 Matter of Hurst 7 Wend 65, 66, 127, 167 Matter of Johnson 7 Robt 27, 28 Matter of Lowenstein. . . : 4 N. Y. ; 7 How 60 Matter of Prime 1 Barb 101 Matter of Neberzahl & Marks 57 How 27 Mercein v. People 25 Wend 102 Merrill ». Townsend 5 Paige 31 Merritt v. Read 5 Den 58 Metcalf 1>. Stryker 31 N. Y 67 Miller v. BrinckerhofE 4 Den 58 Miller «. Sherder 2 N. Y 28, 67 Moak «. De Forest 5 Hill 37, 55, 63, 63 Muller v. Behrman Lalor's Supplt 125 Murray v. Judson 9 N. Y 87 National Bank v. Temple .... 2 Sweeny 141 Neberzahl, In re Monthly L. B 167 Nibloo. Post 25 Wend 151 Noble v. Abel 3 Hill Ill Noble v. Halliday 1 N. Y 56 Noble v. Prescott 4 E. D. Smith 30 TABLE OP OASES. XI pag: Ostell v. Brough 24 How Pr 29, 31 Patterson v. Westervelt 17 Wend 6' Patrick ». Warner 4 Paige 3! Peet «. Worth 1 Bosw 144 People v. Aikin 4 Hill If People v. Bancker 5 N. Y. ; 12 N. Y. 26, 76, 109, 111, 115, 12( People v. Behrman Lalor's Supplt 12' Peoples. Blankman 17 Wend 7J People t>. Brennan 61 Barb 10! People ». Brennan Hill & Den. Supplt 11! People *>. Daniel 50 1ST. Y 16! People v. Donahue 56 How. Pr. ; 15 Hun. . . 4« People i). Dusenbury & Spear 57 How. Pr 46, 121 People v. Goodwin 50 Barb 2' People «. Greene 5 Hill 7. People ©. Kelly 7 Robt 9; People v. Locke 3 Sandf 76, 8; People v. Mercein 3 Hill 105 People v. Morrison 13 Wend 6( People v. O'Brien 6 Abb. Pr 26, 98, IIS People ii. Onondaga C. P 9 Wend 31 People v. Pelham 14 Wend lOf People v. Recorder of Albany 6 Hill 51 Peoples. Reed 5 Den Ill People v. Bundle 6 Hill Tc People i>. Speir 12 Hun 122 People v. Underwood 16 Wend 38, 123, 154 People v. White 14 How. Pr 102 People v, Wilgus , 5 Den 84, 126 Peters v. Henry 6 Johns 95 Phelps r. Barton 13 Wend 31, 67 Potter o. Lansing 1 Johns 67 Powers v. People 4 Johns 151 Pratt v. Adams 7 Paige 87 XVI TABLE OF OASES. PAGB Ray v. Hogeboom 11 Johns 67 Renick v. Orser 4 B03W 68 Republic of Mexico v. Arangoiz 5 Duer 35 Rex v. Gourlay 7 Barn. & Cress 95 Rex v. Nash , 2 Bla 95 Ridder v. Whitlock 12 How. Pr 29 Robbins v. Seithel 20 How. Pr 30 Roberts v. Prosser 53 N. Y 29 Roberts, In re 70 N. T 165 Robinson v. Rivers 9 Abb. Pr. N. S 66, 86 Rockwell v. Brown .42 How. Pr 133 Roosevelt v. Kellogg 20 Johns 132 Russell v. Turner 7 Johns 67 Savacool «. Boughton 5 Wend 64 Schudder v. Shiells 17 How. Pr 29 Seaman «. Duryea 10 Barb 30 Shannon v. Comstock 21 Wend 78 Sharkey v. Goodwin 50 Barb 42 Siefke v. Tappey 3 Code R 35 Slidell ». Crea 1 Wend 127 Smith v. Luce 14 Wend 55 Son v. People 12 Wend 14 Spear®. Wardell IN. T 14, 26, 38, 40, 57, 113, 129 Spencer v. Hilton 10 Wend 37, 71, 144 Stages. Stevens 1 Denio 31,34 Stanton v. Schell 3 Sandf 36, 58, 69, 83 Steele*. Williams 18 Ind 58 Steward v. Biddlecum 2 N. T 59, 142 Stoll v. King 8 How. Pr 29, 30 Sturges ®. Spofford 45 N. Y 35 Sutton v. De Camp 4 Abb. Pr. 30 Suydam®. Smith 7 Hill 28 Taylor v, Harker , , .1 E. D. Smith 79 TABLE OF OASES. XV11 FAGE Taylor v. Williams 20 Johns 127 Thomas ©. People 19 Wend 14, 151 Tiffany v. Lord 64 N. Y 58 Townsend v. Morrell 10 Wend 14, 89, 93, 105 Turner v, Thompson 2 Abb. Pr 30 Vanderwerker v. People 5 Wend 150 Van Wezel v. Van Wezel 3 Paige 31 Vredenburgh v. Hendricks IT Barb 56, 58, 79 Voorhies v. McCartney 51 N. Y 32 Vosburgh v. Welch 11 Johns 58 Wehle *. Butler 61 N. Y 58 Wheaton v. Fay 62 N. Y 103 Wheelock v. Stewart 28 How. Pr 30 White v. Coalsworth 6 N. Y 86 White «. Williams 5 Den 30 Whiting v. Cooper 1 Hill 32 Wood v. Boland 8 Paige 65, 127 Wright v, Ritterman 1 Abb. Pr 28 Yonkers & N. Y. Ins. Co. v. Bishop. . 1 Daly 86 B INTRODUCTORY. Priotj to the act of 1831, the body of an ordinary contract debtor could be taken on a ea. sa., and imprisoned until "he agreed with his adversary," or "paid the uttermost farthing" which he owed his creditor. There was a special place of confine- ment set apart in this city and county for such a class, called the "Gaol," or debtors' prison ; and those there incarcerated were called imprisoned debtors. "Bridewell," a building near by, was used for criminals. The "Gaol" was a building situated in the eastern part of the City Hall Park, and afterwards became the Hall of Records, and is so known and called at the present day.* * High Sheriff Parkins, of London, was imprisoned in the Bridewell for refusing to obey an order of the court of chancery, and was one of its inmates for several years. He was either poor or penurious, and was to be seen within the Bridewell fence pick- ing coal cinders from the pile in the yard, for the purpose of making a fire in his room. He was finally discharged through the efforts of William Kent, the son of the chancellor of that name. Parkins afterwards moved to Newark, New Jersey, and died there, 2 INTRODUCTORY. The debtors' prison just referred to was used as such from 1816 (the time when the penitentiary was opened at Bellevue, in Twenty-sixth street, near the First avenue), until 1832, when it was converted into the present Hall of Records. The imprisoned debtors were thereafter confined in "the Bridewell," until the building known by that name was demolished, in 1838. The history of "the Bridewell" forms an important epoch in the prison chronicles of this city. The name is of English origin — the first prison of that kind, which was formerly a palace, being near St. Bridget's (St. Bride's) well. This was given to the city of London by Edward VI., in 1552. The gift was made at the request of Bishop Ridley, who solicited it "as a workhouse for the poor, and a house of correction for the strumpet and idle person, for the rioter that consumeth all, and for the vaga- bond that will abide in no place." It contained a portrait of the king, with these lines : " This Edward, of fair memory, the Sixt, In whom with greatness, goodness was commixt, Gave this Bridewell, a palace in olden times, For a chastening house of vagrant crimes." One of the chief methods of punishment in vogue at the London Bridewell was flagellation, especially of unchaste women. The whipping was done on ap- pointed days, and in the presence of the governor, iNTRoDTJCTOkT. 3 Parties were often made up to witness the operation, as if it were to be a picnic. The stripes were laid on the bare back of the culprit by a beadle, and were not discontinued until the president struck the table with his hammer. A common cry of the women was, "O, good Sir Robert, knock !" which passed among the lower classes as a popular slang phrase. Among the noted characters confined in this prison was Madame Cresswell, a noted procuress of the time of Charles II. She was often whipped, and finally died' in Bridewell. One of the conditions of her will was that a sermon was to be preached over her body, the minister to have £10, provided he said nothing but what was well of her. The sermon was accordingly delivered, the theme being Mortality. At the close the preacher said : ' ' By the will of the deceased it is expected I should mention her, and say nothing but what was well of her. All that I shall say of her, therefore, is this — she was born well, she lived well, and she died well : for she was born to the name of Cresswell, she lived in Clerkenwell, and she died in Bridewell I" The first Bridewell in New York was built as early as 1734, and continued to be occupied for many years as a house of correction. In 1773-5 a new Bridewell was built, which was located west of the present City Hall, and between it and Broadway. 4 itfttRODtfotfdRir. The funds were raised by lottery. The ground on which it was erected was memorable as the site of the famous struggle of the " Sons of Liberty" to maintain a "mast" or liberty-pole. Desperate battles took place between the citizens and the soldiers, the latter being incensed at the character of the banners thrown to the breeze by the "Sons of Liberty." Several poles were cut down or blown up by the soldiers, but eventually the pole was allowed to remain unmo- lested. It then became the rallying-point of the people, in the scenes of popular uprisings against the British misrule which culminated in the Ee volution. On this historic spot the new Bridewell was erected in 1775. The corner-stone, with this date upon it, is in the possession of the New York Historical Society. This stone was laid by the mayor, White- head Hicks. The building was of dark gray stone, two stories high above the basement. It was finished in 1775, just as the Revolutionary struggle began, and almost the first use to which it was put was the imprisonment of the patriots and the captive soldiers of the American army. The same scenes of cruelty were enacted here as in the other British prisons. Oliver "Woodruff, who was taken prisoner at Fort Washington, says : " We were marched to New York, and went into different prisons. Eight hun- dred and sixteen went into the new Bridewell, I iNtttOBTJOtOEY. 6 among the rest ; some into the sugar-house, and some into the Dutch Church. On Thursday morning they brought us a little provision, which was the first morsel we got to eat or drink since breakfast on the previous Saturday. We never drew as much provis- ions for three days' allowance as a man would eat at a common meal. I was there three months during that inclement season, and never saw any fire except what was in the lamps of the city. There was no glass in the windows, and nothing to keep out the cold except the iron grating." Another prisoner says : " All the fuel we had was one cart-load a week for eight hundred men ! At nine o'clock in the even- ing the Hessian guard would come in and put out the fire, and lay on the poor prisoners with clubs for crowding around the warmth. The prisoners died like rotten sheep with cold, hunger and dirt — and those who had good apparel, such as buckskin breeches, or good coats, were necessitated to sell them to purchase bread to keep themselves alive." Like the jail, the Bridewell was again used as a prison, or house of correction, on the close of the war. By an act of the Legislature, passed in 1814, it was provided "that the part of the Bridewell in the city of New York which is now established and used as the jail of the said city, for the confinement and safe keeping of all persons charged with or con- 8 irtfitofcttoToitf. victed of any crime or misdemeanor, except persona sentenced to imprisonment in the State prison, shall, after the above-mentioned building at Bellevue be- comes the penitentiary of the said city, continue to be the jail of the said city." After the removal of the prisoners the "Bridewell" became the debtors' jail. The Bridewell continued until 1838, as before remarked, when the Halls of Justice (Tombs) were erected, the stones of the former building being used in the construction of the latter. The Tombs is, in fact, the legitimate successor of the Bridewell, and a portion of it was, for a time, set apart as a city Bridewell. Imprisonment for debt is an offshoot of English jurisprudence, and was early incorporated into our laws. Debtors were first confined in the attic rooms of the New City Hall, at the head of Broad street. When this building was no longer used as a prison, those prisoners were removed to the new jail, and subsequently to the Bridewell. Persons imprisoned for debt were always regarded by the public most charitably, and were the recipients of many favors. It is stated among the old chronicles that these prison- ers, when confined in the old City Hall, were accus- tomed to suspend old shoes and bags from the dormer windows as a hint to the charitable passer-by. This be- came a fixed custom, and was encouraged by the com- to J=> . Sl! - o o SO "3 4 pl, - a ^2 w ED 5 - 3 a 3 S ? © Ml? H £ t5 . — a 5 8 S is a s a 5 5 o s <; a * o S = _ S INTfcODttCTOBlT. 7 munity, as appears from a notice published in the win- ter of 1751, and dated at the City Hall. In it the pris- oners make an appeal to the public, stating that they are without "firing, not having a stick of wood to burn." They also state that they are "most of them strangers in the country, and are destitute of the necessaries of life." That this appeal was responded to, we learn from a paper dated March 16, in which the prisoners return thanks for the relief. From this petition for alms the prisoners seem to have been re- m p&Etfrmteler$ in the country, and probably came to the city with scant means, which were soon exhausted ; they then contracted debts which they were unable to pay, and, as a punishment, were seized and thrust into prison. If, at the termination of their sentence, they were still unable to satisfy the demands of their creditors, they were sold to pay their jail fees, as appears from notices as late as 1751. The following acknowledgment of alms, from the debtors, as late as 1772, shows that they still suffered great privations, and continued the custom of appeal- ing to the public for assistance : "The debtors con- fined in the Gaol of the City of New York, impressed with a grateful sense of the obligations they are under to the respectable public for the generous contribution that has been made for them, beg leave to return their sincere and hearty thanks for the same, partic- 8 INTE0DUCT0EY. ularly to the worshipful the Corporation of the City of New York ; to the reverend the clergy of the English, Dutch, and Presbyterian Churches, and their respective congregations, by whose generous donations they have been comfortably supported during the last winter, and preserved from perishing in a dreary prison with hunger and cold." In 1821, Mr. Gibbons, a noted butcher, slaughtered twenty premium cattle, and two days after the following card appeared, dated from the debtors' prison : "With gratitude thejris- oners in the Debtors' Jail acknowledge tbe"receipt of a plentiful donation, of 'premium beef from Mr. Gibbons and the 'Joint Society of Butchers of the Fly Market.' " In July, 1824, appeared the follow- ing notice: "The poor debtors render their thanks to the good people of Fulton Market for the abundant "supply, for the 4th of July, of meats, fish, vegetables, lemons, sugar and brandy. Their healths shall be drunk this day at 12 o'clock." The imprisoned debtor who was too poor to afford the luxury of an occasional walk in the City Hall Park, under the surveillance of a sheriff's or ward- en's deputy, was allowed, at certain particular times in the week, to take an airing on the flattened and square-formed roof of the debtor' s prison, and many a bent form, with furrowed brow and silvery crown, INTRODUCTORY. 9 might be seen by the neighboring inhabitants taking a short morning or evening walk. The prisoners that were confined in the Bridewell were so anxious for exercise that when an alarm of fire was given, there was a contest between them as to who should be permitted to ring the fire-bell, and they sometimes continued this exercise longer than occasion required. At this time the police court was held under the City Hall, and the watch-house was also there. In the cupola of the ball was a lookout for fires, and the watchman in charge signaled the alarm. Many of the inmates had committed no crime, and yet, without any wrongful act other than contracting a debt which they, perhaps by force of circumstances, were unable to pay, were placed behind grated win- dows, within prison walls. Some of them were in competent circumstances when they contracted the obligations on which they were imprisoned, but re- verses (the common heritage of humanity) made it impossible for them to fulfill the same. Judgment had been obtained and an execution thereon issued and returned nulla bona, then came the ca. sa., which placed him who was honest (which was often the case) within the debtors' prison. Many died there, friendless strangers in a foreign land, and their bodies passed from thence to the 10 , INTJEtObtTCTOkY. Potter's Field — "God's peace be with him!" (Hen. VIII. act 2, sc. 1.) From the poor debtor the State could derive no profit ; his support and maintenance were a burden upon the county. To remedy the evils growing out of the old system of imprisoning honest but unfortunate debtors, not that they would not but because they could not pay, Silas M. Stilwell, Esq., a prominent lawyer of this city, arose, and had placed on the files of the Assembly (of which he was then a member) the bill known as the Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors, and on April 26, 1831, the same was enacted by the Legislature, and became a law. There was great rejoicing throughout the State on the part of the poor, unfortunate, but honest debtors, and on the part of the humane and chari- table, and the lawyers, as a class, were, may it be said to their honor, almost unanimously in favor of some act to abolish imprisonment for debt.* While public opinion was excited in reference to the matter, in the latter part of the year 1830, the great De Tocqueville, of France, happened to be sojourning in * A story is told of an Indian, who, about 1830, was imprisoned in the Albany jail for breach of a contract to furnish beaver skins. Some philanthropic persons inquired of the Indian the cause of his imprisonment, to which the Indian replied that he did not know; that if he was put there to compel him to , perform his agreement, his prosecutors had selected a poor place for him to catch beavers. INTBODTJOTOEY. 11 fcis country, and was paying a visit to Mr. John C. spencer, one of the lights of the New York Bar, at Canandaigua, in the western part of this State. In the course of conversation, Monsieur De Tocqueville asked what process there was for arrest- ing persons, and how it was done. Mr. Spencer opened a drawer, saying: "I take this sheet of paper (blank form of ca. sa.), fill it out, sign my name to it, then get the clerk to put the seal of the court to it, and I then deliver it to the sheriff, who takes the body of the debtor, and puts him in the common jail." M. De Tocqueville expressed surprise that such a thing could take place in a free country like this. This incident was made use of afterwards, when an effort was made to repeal the act, and was related by the Hon. John McKeon, of the New York Bar. The honest debtor cannot be arrested under this act. " What is my offense ? Where is the evidence that doth accuse me?" (Richard III. act 1, so. 4.) Prior to the act known as the " Stilwell Act" there had been enacted by the Legislature of this State, in 1830, an Act to Exempt certain Officers and Soldiers of the Revolutionary Army from Imprison- ment for Debt (chapter 238) ; it is referred to as a :elic of historic reminiscence, showing the paternal jare and regard which the State hath ever shown to. 12 INTRODUCTORY. those by whose valor and patriotism the American Union was reared and preserved. It has long since lost its vitality, all the re- nowned and glorious heroes of our revolutionary . epoch having passed from earth, beyond the reach of judicial process. In the matter of Paul Andriot, an imprisoned debtor, which came before Chief Justice Daly, of the New York Court of Common Pleas, that careful and erudite jurist gives a review of the history of legislation for the relief of debtors, and of the cases anterior thereto. The case is reported in 2 Daly, at page 35, and the following interesting excerpt is taken from it. The chief justice says : ' ' The object of the Legis- lature in passing this act was to abolish imprisonment for debt in all cases founded upon contract, but at the same time to except from its operation a certain class of fraudulent debtors. It was designed as a remedial and humane statute, relieving from incarceration in / /' prison the honest but unfortunate debtor who had no longer the means of satisfying his creditor. "By the common law, the creditor, after having first stripped the debtor of his property by a fieri facias, might, if the claim remained unsatisfied, throw him into prison, and keep him there for life, unless ^ found means to discharge the obligation. His l l I I INTRODUCTORY. 13 body was held as a satisfaction of the debt, and though, by the Lords' Act, passed in the thirty-second year of the reign of George II., upon which our in- solvent laws were founded, he might be relieved from imprisonment upon surrendering all his effects to the creditor, unless the latter consented to pay two and sixpence a day for his maintenance, he was still sub- ject, both in this State and in England, to be taken in execution and to remain in prison until he could give notice, present his petition, and obtain his discharge under these remedial statutes. This system, which made no distinction between the honest and fraudu- lent debtor ; that subjected to the rigors of imprison- ment any man who was unable to pay a debt, though that inability may have resulted from causes which it was not in his power to control, which no sagacity could foresee, and no prudence avert, was a reproach to the law, and a violation of the plainest dictates of humanity and justice. It was the fruit of an age, the barbarous policy and spirit of which will be under- stood by a passage from an old case (Many v. Scott, 1 ' Mod. 132), where Justice Hyde says : " 'If a person be taken in execution, and lie in prison for debt, he is not to be provided with meat, drink or clothes, but he must live on his own, or on the charity of others; and if no man will relieve 14 INTRODUOTOEY. him, let him die, in the name of God, says the lavi t and so say I.' "While it was thus the intention of the Legisla ture to sweep away a feature so disagreeable to the intelligence of the age, it was equally their intention to subject the fraudulent debtor to the rigor of imprisonment ; and by the passage of the act, to furnish to the defrauded creditor additional and more summary means to coerce the payment of his claim (Townsend v. Morrell, 10 Wend. 582 ; Spear v. Wardell, 1 N. Y. 144). "The statute was intended to be what its name imports, — 'An Act to Punish Fraudulent Debtors.' And in addition to the remedy given to the creditor with the view of preventing such frauds, the fraudu- lent removal, concealment, or disposition of prop- erty, or the receiving of it with intent to prevent its being made liable for the payment of the debts of the debtor, is declared to be a misdemeanor, and punishable criminally as such (Son v. People, 12 Wend. 344 ; Thomas v. People, 19 Id. 480). ' ' Now, if a debtor fraudulently dispose of the whole of his property, with a view of preventing his creditor getting it, what benefit does the creditor derive by having him arrested and procuring his conviction, if the debtor can avoid a commitment, or be discharged from one, by making an assignment \ INTRODUCTORY. 15 He has no longer anything to assign. He is required by the statute to set forth, under oath, his estate, as it existed at the time of his arrest, and as it exists at the time he applies for the assignment. This he can readily do, having parted with all his property before he was arrested. " Of what utility is it that the statute should pro- vide for his being arrested at all in such case ? The prosecuting creditor, it is true, gets an assignment of all his estate, both in law and equity, in posses- sion, reversion, or remainder (2 B. S. 2 ed. 79, § 25). "But of what benefit is that, if there has pre- viously been a fraudulent disposition of all the property ? " If he has a judgment, he can levy at once upon the property, if he can find it in the hands of the fraudulent assignee or vendee ; or, if it consists of choses in action, not subject to levy upon execution, he may invoke at once the equitable aid of the court to set aside the fraudulent sale or assignment ; or if he has merely commenced a suit, there being no defense to the debt in such a case, he may obtain judgment, and put himself in a position to attack the fraudulent transfer about as soon, in the great majority of cases, as he can secure the conviction of the debtor, and compel him to an assignment. His becoming then the assignee of the debtor's estate 16 INTRODUCTORY. to the extent of his claim, places him practically in no better position to reach the property which has been fraudulently disposed of than he had as a judg- ment creditor. At best it could but enable him to proceed somewhat earlier ; but I am unwilling to suppose that the sole object of the statute was to confer upon him this little advantage. "It is also true that the debtor thus guilty of a fraudulent disposition of his effects, may be indicted for a misdemeanor, and punished criminally. But this is a matter with which the creditor has nothing to do. It is not intended for, nor does it afford, him any remedy for the recovery of his debt. It is an offense against the public, the same as any other crime, and is punishable as such. In the case of Kershaw, decided after the passage of the amenda- tory act of 1845 (2 B. S. 3 ed. 114, §§ 36, 37), which allowed the defendant, after conviction, to put in special bail, Judge Ulshoeffer decided that that act removed all doubt as to the construction of the statute, and clearly contemplated that the disposi- tion of property which precluded a discharge was a disposition after conviction, and before the debtor presented his petition. But that act made no change in the statute in this respect, but provided that a debtor adjudged guilty of either of the frauds speci- fied in the fourth section of the original act should INTRODUCTORY. 17 be entitled, in addition ♦. "he case provided for by the seventeenth section, to the discharge under that section, upon his putting in special bail to the action, whether a judgment or decree should have been rendered in the action or not. ' ' The only effect of this provision was to entitle the debtor to be discharged from the proceedings instituted by the creditor upon his putting in special bail, instead of his making an assignment, or giving a bond that he would apply for an assignment within thirty days. But at the same time it provided, by section 2, that though he may have put in and forfeited special bail, he should still be liable to be imprisoned upon any execution to be issued against his body in such suit, in the same manner as though the amendatory act had not been passed. It is difficult to determine what was meant by the latter provision, as the debtor could not have been impris- oned upon an execution, or upon a judgment founded upon a contract, the statute of 1831 declaring that no person should be arrested or imprisoned in such a case, unless he had committed some one of the frauds specified in the fourth section. His putting in special bail in such a case would seem to give the creditor no remedy, if the debtor's body could not be taken in execution. It may have been intended that if he could have put in special bail, his body should 2 18 INTRODUCTORY. not be liable to be charged in execution, though the judgment or decree may have been founded on a con- tract, and that he should be left to obtain his release from imprisonment by petitioning for a diccharge, the same as any other debtor imprisoned in civil cases. "But whatever may have been the meaning or intention of the act, the amendatory act of 1846 (L. of 1846, 255), limited its operation to cases where the debtor was convicted of fraudulently contracting the debt, or incurring the obligation in respect to which the suit had been brought, the amendatory act of 1846 declaring that the act of 1845 should not ap- ply to the case of a person arrested or imprisoned for either of the frauds specified in the first three sub- divisions of the original act. It has, therefore, no application to the case of a conviotion for fraudulent concealment, assignment, or disposition of property, in respect to which the original act remains unaltered. It may be asked, if the debtor cannot obtain a dis- charge, how is he to get out of prison ? The same question was put to the court in the case before referred to, of the People v. Aikin (4 Hill, 606). There the debtor was convicted of having fraudu- lently concealed, removed or disposed of a portion of his property. His discharge was denied for that reason, and the decision was held to estop him INTBODUOTOKY. 19 from making another application for a discharge. The court was asked how he was to get out of prison, and they said that that was a question they were not to decide. The same answer may be re- turned here, and it was, doubtless, the fact that no authority existed for releasing a fraudulent debtor committed in a case like this, that led the Legisla- ture, in the revision of the Code, in 1851, to enact (§§ 257, 302) that in all cases of commitment under the act to abolish imprisonment for debt, the person committed may, in case of inability to perform the act required, or to endure the imprisonment, be dis- charged from imprisonment by the court or judge committing him, in the court in which the judgment was rendered, upon such terms as may be just. In conclusion, I shall hold that Andriot, having fraudu- lently disposed of his property, within the meaning and intent of the sixteenth section, is precluded from the benefit of the act, and his application will, there- fore, be denied."* The American Law Record, of May, 1879, pub- lished, a very interesting translation from Book 1 of Ihering's Spirit of Roman Rights, from which the following extract is taken: "That which an indi- * Imprisonment was seldom used amongst the Greeks as a legal punishment for offenses; they preferred banishment to the expense of keeping prisoners in confinement. 20 INTRODUCTORY. vidual has acquired at the cost of his body and his life, or by the sweat of his brow, appears to be a part of him ; whoever injures that property must pay, and if he cannot make restitution, his own body is answer- able for that which he has taken away. From this point of view it is no more astonishing to see the sat- isfaction for a pecuniary injury enforced against the body of a person than to see the fortune of the ad- verse party pay the penalty of a personal injury. In place of money, the members of the body (in paries secare), in place of the members of the body, money. "To him who could not himself make amends or furnish a ransom, there still remained the hope that his parents or friends would come to his assistance, and this hope was rarely deceived, at least if he had not rendered himself undeserving of it by his foolish- ness. The law, at least, took account of that fact in the procedure against insolvent debtors ; it was the basis of a peculiar regulation in ancient procedure. The Law of the XII. Tables provided that the debtor imprisoned by his creditors should be publicly ex- posed for sale, during three market-days, in order to see if any one would ransom him, and the history of M. Manlius, in the fourth century, informs us that he - saved in that manner four hundred debtors from the hands of their creditors. If the injured party did not INTRODUOTOBY. 21 claim too much, the father preferred to pay rather than consent to the noxae deditio of his children, and when the wrong-doer himself was wealthy, he chose to sacrifice some of his wealth rather than to sur- render himself to the vengeance of his adversary ; when his means were not sufficient, and he had not rendered himself unworthy of the assistance of his parents, they could advance enough to him. If the injured party died, his parents succeeded to his right to vengeance." This brief history shows the extent to which civ- ilization has advanced, and to which the tone, rigor, and manner of enforcing obligations against delin- quent debtors have been relaxed. An eminent member of the New York Bar, in an argument had a short time ago, truly remarked that "It takes years to build up a system of practice for the pleader' s use. It is impossible for any one to sit- down in his office, and then and there prepare a sys- tem of laws which will at once work harmoniously." The Stilwell Act has been upon the statute book since 1831, and is likely to remain for many years to come. It is not, however, understood by the pro- fession generally, and to present the statute, with the authorities and forms under it, in a form convenient for the practitioner's easy reference, is the object of the present little work. P2 CO GO Co E3 ** CT 3- ° & d e g- . Peterson (9 Wend. 503), where it was held that an attorney is not liable to 32 PROVISIONS RELATING TO COURTS OP RECORD. imprisonment in an action for moneys collected, and if the plaintiff seek to imprison him, he must proceed by attachment, as for contempt; Misconduct in bringing suit. A person who brings and prosecutes a suit in the name of another, under an agreement with the nominal party to carry on the suit at his own expense, and have a portion of the expected recovery, is liable under 2 B. 8. 619, § 44, for the costs recovered against the nominal party, and process in the nature of a, fieri facias may issue to the sheriff against his property (Whiting n. Cooper, 1 Hill, 629 ; Bliss n. Otis, 1 Denio, 656 ; Giles v. Halbert, 12 If. T. 32). The order in last case, made at special term, directed an attach- ment to issue, which was modified by the general term so as to conform to the change made by the act of 1847, c. 390, by which process in nature of stfi. fa. was substituted for an attachment. For further authorities upon the question of liability for costs upon the part of an attorney or other person interested in the result of an action, see Voorhies v. McCartney, 51 Jf. T. 387 ; Green v. Lee, 8 Weekly Dig. 131. Costs of supplementary proceedings. But a judgment debtor may be comlnitted for a general con- tempt in supplementary proceedings, as for the non-payment of a judgment and costs under an order previously granted. The act abolishing imprisonment for non-payment of costs does not apply to such cases (People ex rel. Kearney v. Kelley, 22 How. Pr. 309). Process to collect costs. § 4. Process in the nature of fieri facias against fROVlSlOtfS fcELAttNG *0 COttltTS OF EEOOKD. 33 personal property may be issued for the collection of such costs, founded on such order of court (1847, c. 390, §2). Definition of fieri facias. That you cause to be made, or done, or levied, a writ of execu- tion, so called. For form of this writ, see Graham's Practice, 2 ed. 368. For present forms of execution, see Code of Civil Procedure, %% 1362 to 1388. See sections 31 and 37, post, as to Costs and Fees, and see title Judgment for Costs, ante, p. 31. Exceptions. * § 5. [Sec. 2.] The preceding [1st] section shall not extend to proceedings as for contempts to enforce civil remedies ; nor to actions for fines or penalties, or on promises to marry, or for moneys collected by any public officer, or for any misconduct or neglect in office, or in any professional employment. [As amended 1840, c. 165.] Section 5 corresponds, sub modo, with section 2 of the original act, 1831, which was as follows : § 2. The preceding section (meaning § 1 of the act of 1831) shall not extend to any person who shall not hme "been a resident of this State for at least one month previous to the commencement of a suit against Mm ; nor to proceedings as for contempts to enforce civil remedies ; nor to actions for fines or penalties, or on promises to marry, or for moneys collected by any public officer, or for any misconduct or neg- lect in office, or in any professional employment (1831, c. 300, § 2). The question as to residence need no longer be agitated, since 3 34 PROVISIONS RELATING TO OOtfRTs Of RECORD. that portion was repealed on April 25, 1840 [Law* 1840, c. 165, p. 120). The following is an extract from the act: "An Act to amend the Act Abolishing Imprisonment for Debt." " Passed April 25, 1840. " The People of the State of New York, represented in the Senate and Assembly, do enact as follows: " § 1. So much of the act entitled ' An Act to Abolish Imprison- ment for Debt, and to punish Fraudulent Debtors,' passed April 26, 1831, as declares that the provisions in the first section thereof shall not extend to any person who shall not have been a resident of this State for at least one month previous to a suit commenced against him, is hereby repealed." Decisions under the act. An attorney prosecuted in assumpsit for not paying over money collected for his client, is liable to imprisonment for misconduct in a professional employment (Stage ®. Stevens, 1 Benio, 267, overruling Bohanan ■». Peterson, 9 Wend. 503). In England, and here until the passage of the act of 1831, an action for false imprisonment would not lie for an arrest in a case where the defendant was privileged (Douglass, 671.; 2 Wm. Black, 1190), because, by the general law of the land, a defendant was liable to arrest, and could claim an exemption only by showing to the court his privilege (1 Archb. Pr. 76, and 3 Caines, 267). The writ gave authority to the officer to arrest and hold to bail, until otherwise directed by competent authority, upon facts existing in the particular case (1 Archb. Pr. 76 ; 1 Salk. 1). Now, since the act of 1831, no authority to arrest exists here, except in the cases specified in the fifth section above ; and the plaintiff and his attorney, therefore, must see to it that the defendant is liable PROVISIONS RELATING TO COURTS OF RECORD. 35 to an arrest, or that he be held to bail, before a direction for his arrest be given. Where the defendant was arrested and held to bail in the sum of $2,000, on a capias ad respondendum in which the ac etiam clause was "upon a promise of marriage," but there was no judge's order to hold to bail, the defendant was discharged from custody (Bromley v. Town, 1 Sill, 373). A few citations in reference to the above exceptions may not be out of place. Contempts. — The Code of Civil Procedure defines and regu- lates contempts (§ 8 to § 16, inclusive; Chan. 1834, Patrick v. Warner, 4 Paige, 397 ; compare Id. 283). Fines or penalties. — Section 549, Code of Civil Procedure, must be proportioned to the nature of the offense (1 B. S. 94, § 16). "Penalty" and "forfeit" are used interchangeably (Commis- sioners of Saratoga v. Doherty, 16 How. 46). Penalty implies prohibition. It is not necessary that a penal statute should contain prohibitory words (1 Taunt. 136 ; 10 Bing. 110; ZDenio, 226). Aggregated penalties are not favored (Sturgis v. Spofford, 45 IK T. 446). Promise to marry. — In an action by a male against a female defendant for a breach of promise to marry, the defendant cannot be arrested (Siefke v. Tappey, 3 Code B. 23). Moneys collected by any public officers. — As to who are public officers (1 B. 8. 95 [86]). An attorney is not a public officer. This liability attaches whether the cause of action arose in a foreign country, and by the act of an agent or officer of that country, or by an officer of this State (Republic of Mexico v, Arangoiz, 5 Duer, 643), 86 PROVISIONS RELATING TO COURTS OP RECORD. Misconduct or neglect in office. — To the general liability of public officers to arrest for misconduct or neglect in office, there is one exception. No acting commissioner, superintendent of repairs, collector, or lock-keeper on any canal shall be held to bail, or taken by warrant in any civil suit, for any act done, or omitted to be done, in the exercise of his official duties {Laws of 1820, 190, § 22; IB. 8. 224, § 43). When plaintiff may apply for warrant to arrest defendant. * § 6. [Sec. 3.] In all cases where, by the preced- ing provisions of this act, a defendant cannot be arrested or imprisoned, it shall be lawful for the plaintiff who shall have commenced a suit against such defendant, or shall have obtained a judgment or decree against him, in any court of record, to apply to any judge of the court in which such suit is brought, or to any officer authorized to perform the duties of such judge, for a warrant to arrest the de- fendant in such suit. * Section 6 is the same as section 3 in the original act of 1831. Where affidavits and papers on which a warrant of arrest is ap- plied for under the act abolishing imprisonment for debt, state that a suit has been commenced by the applicant upon a judgment obtained by him against the party for whom the warrant is asked, stating its date and amount, this is a sufficient allegation of a cause of action arising upon contract for which the party cannot be im- prisoned (Stanton v. Scbell, 3, Sand/. 323), PROVISIONS RELATING TO COURTS OF RECORD. 37 When action deemed commenced. It has been held that the issuing of a capias, or the filing of a declaration, is not the commencement of a suit, but that the com- mencement dates from the time of actual service of the process upon the defendant, except for the purpose of saving the claim from the statute of limitations (Johnson v. Comstock, 6 Hill, 11, dis- approving the dictum in Hanmer v. "Wilsey, 17 Wend. 91 ; and see also Edmonstonc ». Thomson, 15 Id. 554; Knights. Beach, "Abb. Pr. .2V. S. 241 ; Kerr v. Mount, 28 2?. T. 659. But see Code of Civil Pro. §§ 398-400). It has been a vexata questio whether the statute of 1831 was in the nature of criminal or civil process, or both. In Moak v. De Forest [1843] (5 Bill, 605), Nelson, Ch. J., held, that though the warrant is in the form of criminal process, and the proceeding assumes in some respects the nature of a criminal prose- cution, yet in its use, form and effect, it is nothing more than a somewhat summary civil proceeding to enforce the collection of a debt due upon contract. Savage, Ch. J. [1834], in Spencer v. Hilton (10 Wend. 610), said, "This is a proceeding sui generis. It is not analogous to the service of a declaration in a civil suit, nor that of a warrant in a criminal proceeding. . . . These proceedings are more analo- gous to those in chancery than in a court of law." See remarks of same judge in Lynde v. Montgomery [1836] (15 Wend. 461), which held the process for certain purposes to be criminal. In Exp. Fleming [1843] (4 Bill, 581), where the opinion of the court was delivered by Mr. Justice Cowen, he held the proceed- ing contemplated by the third section of the non-imprisonment act to be of a civil and not a criminal nature. In People v. Underwood [1837] (16 Wend, 546), Mr. Justice 38 PROVISIONS RELATING TO COURTS OF RECORD. Bronson, in delivering the opinion of the court, stated that the proceedings were not of a criminal character. Later, in Goodwin v. Sharkey [186S] (5 All. Pr. N. ff. 64), Mr. Justice Barrett held that the arrest under the warrant issued by the civil tribunal, is not for the direct purpose of punishing the fraudulent debtor, it is a civil proceeding in aid of the collection of the judgment . . . and such is the purpose of the act, even where the proceedings are based upon a fraudulent disposition of property, which, by the debtor's own wrongful act, has passed beyond his control, and which he has thus become unable to effectually assign. And in Berthelon v. Betts [1843] (4 Hill, 579), it is held that the provisions are no more than a statute execution against choses in action, and other effects not tangible by the ordinary fi. fa. In Spear n. Wardell [1848] (1 N. Y. 160), in court of appeals, Mr. Jus- tice Bronson said, "The proceeding is nothing more than a statute execution, which reaches property not subject to seizure by fieri facias, and such as, through the fraud of the debtor, either has been, or is, in danger of being placed beyond the reach of ordinary process." Daly, Ch. J., in the matter of Paul Andriot, an imprisoned debtor [1867], in an exhaustive opinion in relation to the act under consideration, in reference to the complex character of the said act, stated that the object of the act was humane and remedial ; to relieve from imprisonment the honest but unfortunate debtor, who had no longer the means of satisfying his creditors; and a certain class of fraudulent debtors were excepted from its operation ; and that the provision for a discharge under section 16 of the act, ap- plied only to cases where there had been no fraudulent conceal- ment, removal, or disposition of property by the debtor with intent to defraud creditors (Vide 3 Daly, 38), PROVISIONS RELATING TO COURTS OF RECORD. 39 Concluding remarks. The title of the act is "An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors." That title has never been changed; by this act the honest and just debtor cannot be im- prisoned, but the debtor who has made a fraudulent disposition or concealment of his property may be taken on warrant, and com- mitted and held in custody as other criminals, until he fulfills the other requirements of the act, and that is payment of the debt, for by his own act he has defeated the right of the creditor in collect- ing his debt. The act, therefore, is punitory and remedial. The above view is sustained by a decision of the court of appeals, in People ex rel. Latorre v. O'Brien (6 All. Pr. N. S. 63), in which the late Mr. Justice Woodruff delivered the opinion of the court, which was unanimously sustained by a full bench, and it harmonizes with the view of the act taken by Chief Justice Daly. Inter alia, Woodruff, J. — "When, therefore, the act of 1831 declared that a defendant so committed shall remain in custody until discharged, as provided in its subsequent sections, it qualified the act of 1813 (2 if. 8. 28), by creating an exception to its other- wise general operation. The act of 1813 prescribed a general rule. It was enacted when, as a general rule, all debtors were liable to arrest and imprisonment. The act of 1831 declared a new rule. Under it, the general rule is that no debtor shall be imprisoned, but the exception is affirmatively and explicitly made, that to punish fraud, the fraudulent debtor may be taken on warrant and com- mitted, and he shall be held in custody" as other criminals until he complies with its further requirements." And that very able jurist, then, went on to say : "Nor is the reasonable and humane sentiment, that no man shall be deprived of his liberty because he is unable to pay his debts, 40 PROVISIONS RELATING TO COURTS OF RECORD. violated. The statute does not purport to imprison for debt, but to punish for an offense. In saying this, I do not overlook the fact that the object of the act, in these provisions, is to furnish a strin- gent remedy to enforce the collection of the debt, and that payment of the debt entitles the prisoner to his discharge." The above decision, made by the court of appeals, settled two vexatas questions : first, it re-affirmed the previous decisions in Spear v. Wardell (1 2f. Y. 144), and Hall v. Kellogg (12 Id. 325) ; and secondly, it fixed the nature, character, and scope of the pro- ceedings under the non-imprisonment act; and likewise held that the provisions of the Revised Statutes, allowing voluntary assign- ments by insolvents for the purpose of exonerating their persons from imprisonment, were not applicable to the case of a debtor imprisoned on proceedings under the act of 1831. It may here be stated that the act nowhere makes provision for the discharge of insolvent debtors generally, or, indeed, for any insolvent debtor, eo nomine. It only provides for those persons who either have been, or may be, arrested and imprisoned on the ground that they are fraudulent debtors. The act is of a two-fold character. The court of appeals have settled the question as to whether the process is civil or criminal — it is both; it is remedial in reference to the honest debtor, it is criminal in reference to the dishonest debtor (Latorre v. O'Brien, 6 Abb. Pr. N. 8. 64), but that has only reference to the effect of the act, and not to the form of the writ, and as to the mode of service. Certain criminal warrants may be executed in any part of the State (3 B. 8. 6 ed. 999, §§ 1, 4, 5). The warrant under the Stilwell Act is in the nature of criminal process. It assumes that the people have cause of complaint, and proceeds upon the ground of a fraud either intended or committed. The defendant, when arrested, is to be treated like a person arrested PROVISIONS RELATING TO COURTS OF RECORD. 41 on criminal process (Savage, Ch. J., Lynde *>. Montgomery, 15 Wend. 461). Section 11 of the act declares that when committed he "shall remain in custody in the same manner as other prisoners on criminal process." The corpus of the debtor is to be arrested and kept under sur- veillance until certain things are done. Ab initio ad finem the debtor is under arrest. Application, to whom made. * § 7. Applications for a warrant, under and in pursuance of the provisions of the act entitled "An Act to Abolish Imprisonment for Debt, and to Pun- ish Fraudulent Debtors," passed April 26, 1831, and the several acts amending the same, may be made to any judge of a court of record in any county in which the judgment on which the complaint is grounded, is docketed, and in which the defendant resides (1848, c. 48, § 2). The act of 1848, chapter 48, authorized applications for a war- rant under the non-imprisonment act of 1831, to be "made to any judge of a court of record in any county in which the judgment on which the complaint is grounded, is docketed, and in which the defendant resides." This was an enabling act, and extended the right to issue the warrant to any judge of a court of record in the county in which the judgment was docketed, and the defendant resided, although the judge should not be of the supreme court, or of the court in which the judgment was obtained. The act of 1831 (§ 3) only 42 PROVISIONS BELATING TO COURTS OF EEOOED. allowed the application to be made to a judge of the court in which the suit was brought, or to an officer authorized to perform the duties of such judge. Under it a judge of a county court could not take cognizance of these matters, if the judgment were obtained in any other court than his own, unless he was a commis- sioner appointed to perform the duties of such other court. The act of 1848 repealed no part of the act of 1831, but extended the jurisdiction to another class of judges — to judges not of the court in which the judgment was obtained. This latter class could act only if the judgment were docketed in their county. But the act of 1831, allowing the application to be made to any judge of the court in which the suit was brought, remained in full force and unaltered; so that such judge could, act, whether the judgment was docketed in the county in which he (the judge) was, or not (Latham v. Westervelt, 26 Barb. 259). The marine court of the city of New York. The justices of the marine court have the same jurisdiction under this act that the judges of any other court have (The People u. Donohue, 56 Bow. Pr. 152; S. C, 15 Bun, 418). Recorder and city judge. In the case of the People ex rel. Sharkey v. Goodwin (50 Barb. 562), it was held that the city judge and the recorder of the city of New York have no jurisdiction to entertain proceedings under this act. Justices' judgments. The act of 1838, chapter 138 (p. 97), provides:— § 1. A judg- ment rendered by and before a justice of the peace for any sum exceeding the sum of twenty-five dollars, exclusive of costs, a PROVISIONS RELATING TO COURTS OF RECORD. 43 transcript whereof shall have been filed and docketed in the clerk's office, pursuant to the provisions of article eight, title four, chapter two, part three of the Revised Statutes, shall be deemed and taken to be a judgment in the court of common pleas of the county where such transcript shall have been filed and docketed, for all the purposes contemplated by the act, entitled " An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors;'' and the plaintiff may proceed in like manner as if such judgment had been obtained in a court of common pleas ; and such plaintiff and defendant shall be entitled to the same rights and privileges as are conferred on parties to suits in courts of record, under the last mentioned act, and the acts amending the same. The amount must now be over $50, to justify these proceedings on any judgment (see § 8, post). The court of general sessions of the peace in and for the city and county of New York is now a court of record (§ 2 of Code of Civil Procedure, 1877). As to what other courts are "courts of record" (lb.). Capias ad satisfaciendum (That you take to make satisfaction). Prior to the passage of the act of 1831, where a judgment was obtained in an action of assumpsit, and a fieri facias issued which failed to reach property, a writ of capias ad satisfaciendum could be issued by which the body of the debtor was taken and held in custody until he paid the debt. By the act of 1831, the writ of ca. sa. was taken away, and a proceeding substituted to compel the debtor to apply his rights in action, &c, to the payment of the debt. By subdivision 2 of present section 8, a warrant can issue when- ever a debtor unjustly refuses to apply his choses in action to the payment of any judgment rendered against him, belonging to the complainant. 44 PROVISIONS RELATING TO COURTS OF RECORD. Form of application. To the Honorable Charles Donohue, one of the Justices of the Supreme Court of the State of New York. The application of A. B. respectfully shows to your Honor : That he lias commenced a suit (or obtained a judgment) against C. D., in the court of , &c, being a court of record, for the sum of , justly due and owing from the said to your applicant. And that your applicant believes that the said (state grounds of application). Wherefore your applicant applies for a warrant, to be directed to the Sheriff of the county in which your Honor resides, command- ing him to arrest the said C. D., and bring him before your Honor without delay, then and there to abide such further order as shall be made in the premises. And your applicant will ever pray. Dated this day of , 18 . 1. It would do no harm to insert, on a demand arising on con- tract, for which, according to the act entitled "An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors, passed April 26, 1831," the defendant cannot be arrested or imprisoned. 2. " Believes that the said" — after this is inserted the "grava- men," so to speak, of the charge against the defendant; or, more properly, the grounds upon which the application is founded. It has been supposed that the use of the word "believe" is improper; it may, however, be used, inasmuch as what is stated must neces- sarily be inferential ; a result arrived at from facts thereafter adduced in the affidavits which accompany the application — of the sufficiency of which the officer is to judge ; and the positive asser- PROVISIONS RELATING TO COURTS OF RECOKD. 45 tion of the applicant would not avail him unless accompanied hj facts. In the affidavit, however, the plaintiff's statements must be posi- tive. If the applicant swears only to belief, he must set forth the facts and circumstances on which such belief is founded, so that the magistrate may determine whether it is warranted or not (John- son v. Moss, 20 Wend. 145). Evidence to be adduced to the officer in support of application. § 8. [Sec. 4.] No such warrant shall issue unless satisfactory evidence be adduced to such officer, by the affidavit of the plaintiff, or of some other person or persons, that there is a debt or demand due to the plaintiff, from the defendant, amounting to more than $50, and specifying the nature and amount thereof, as near as may be, for which the defendant, according to the provisions of this act, cannot be arrested or imprisoned ; and establishing one or more of the following particulars : 1. That the defendant is about to remove any of his property out of the jurisdiction of the court in which such such suit is brought, with intent to defraud his creditors : or, 2. That the defendant has property or rights in action, which he fraudulently conceals, or that he has rights in action, or some interest in any public or corporate stock, money or evidences of debt, which he unjustly refuses to apply to the payment of any 46 PROVISIONS RELATING TO COURTS OF RECORD. judgment or decree which shall have been rendered against him, belonging to the complainant : or, 3. That he has assigned, removed, or disposed of, or is about to dispose of, any of his property, with the intent to defraud his creditors : or, 4. That the defendant fraudulently contracted the debt or incurred the obligation respecting which such suit is brought. The demand or judgment must be founded upon contract. The New York Court of Appeals, in The People ex rel. Charles Dusenbury v. Gilbert M. Speir, reported in the Daily Register, May 28, 1879, and 57 How. Pr. 274, declare the law to be as follows: Daotorth, J. — In the course of supplementary proceedings instituted by judgment and execution creditors of Selah Hiler, William S. Keiley was appointed receiver of the property, &c, of the judgment debtor, and as such commenced an action in the superior court of the city of New York against Selah Hiler, Charles Dusenbury, George W. Lane, as chamberlain of the city of New York, and others. It appears from the complaint that, at the time of his appointment, there was an action pending in favor of Hiler against certain parties, in which a considerable sum of money had been obtained, and placed in the hands of Lane, as chamberlain, to the credit of the action, and payment of the same to Hiler was for- bidden by injunction ; that afterwards Hiler, with the fraudulent intent of obtaining possession of the money and preventing it com- ing into the hands of his creditors, and with intent to violate the injunction order, claimed that the money had been previously assigned by him to Dusenbury, in trust for the benefit of certain PROVISIONS RELATING TO COURTS OF RECORD. 47 creditors of Hiler; that Dusenbury, with knowledge of this injunc- tion, induced Lane to pay the money to him as such trustee ; that the assignment under which Dusenbury made the claim was fraud- ulent and void as against creditors and the plaintiff as receiver ; and the prayer was that the assignment be declared fraudulent and void, and the plaintiff have judgment against each defendant, pay- able out of the money received by him. Issue was joined, and the trial court found and declared, among other things, "that the defendants Hiler and Dusenbury, with the fraudulent intent and purpose of obtaining possession of said money, or of transferring and disposing of the same and preventing it from coming to the hands of creditors, and with full knowledge of said injunction order, and with the intent to violate it, procured, by fraud, an order from the court requiring the chamberlain to pay to Dusen- bury, as trustee, the money so deposited with him ; that it was so paid to him as trustee : that no assignment was in fact made to Dusenbury, as trustee or otherwise; that he was not, individually or as trustee, entitled to it; that he wrongfully and fraudulently procured possession of. the same, and judgment was entered as stated in the affidavit hereinafter referred to." After the recovery of this judgment, the plaintiff, upon the affidavit of his attorney, to which was attached a copy of the judg- ment roll in the action above referred to, applied to the respondent for a warrant for the arrest of the relator under the provisions of the act of 1831 (c. 300), " to abolish imprisonment for debt, and to punish fraudulent debtors." Upon the return of the warrant a hearing was had, and the relator discharged. The general term of the supreme court reversed the determination of the magistrate, and upon a rehearing the respondent, following the rulings of Uiat court, convicted the relator, and he removed the proceedings to the supreme court, where they were affirmed, and from the order of 48 PROVISIONS RELATING TO COURTS OF RECORD. that court the relator has appealed. The first question to be exam- ined relates to the jurisdiction of the officer who issued the war- rant. His authority in this case was not absolute. It depended upon the existence of certain facts. He was required, by the statute from which he derived his authority, to have proof of these facts, and the same statute declared that he should not issue a warrant without that proof, which is there prescribed, and thus made indispensable to the exercise of this authority. His jurisdic- tion and its limitation depend upon the provisions of the act above referred to. Under those provisions no person can lawfully be arrested or imprisoned on any civil process issuing out of any court of law, or on any execution issuing out of any court of equity, in any suitor proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract or due upon any contract, express or implied, or for the recovery of any damages for the non-performance of any contract (§ 1), but in such cases it is made "lawful for the plaintiff" who shall have obtained judg- ment against such person to apply to any judge of the court in which such suit is brought, for a warrant to arrest the defendant therein (§ 3). Then follow these words of prohibition: "No such war- rant shall issue unless satisfactory evidence be adduced to him by the affidavit of the plaintiff, or of some other person, that there is a debt or demand due to the plaintiff from the defendant, amount- ing to more than $50, and specifying the nature and amount thereof as near as may be, for which the defendant, according to the pro- visions of this act, cannot be arrested or imprisoned," and establish- ing one or more particulars which are specified, but which do not become at present material in this inquiry. We are thus met at the outset with the question, whether the judgment for the enforcement of which these proceedings were instituted was founded upon con- tract, or resulted from a suit which had for its cause of actiou a. PROVISIONS RELATING TO COURTS OF RECORD. 44 claim for damages for the non-performance of a contract. And this inquiry must be answered from the affidavit presented to the judge, and on which he based his warrant. The affidavit states the recovery of a judgment against the relator in favor of the plaintiff, William S. Keiley, as receiver, &c, of Selah Hiler, for $3,627.91, but neither states the cause of action nor the nature of the indebt- edness, nor that it was upon contract, express or implied, nor any fact from which either of these conditions can be inferred. The affidavit, however, contains these words: "Deponent further says and charges that he verily believes that the defendant Dusenbury neither had any title or right to the moneys received by him from tne chamberlain of the city of New York, which is particularly mentioned in the judgment roll in which the judgment in favor of the plaintiff was recovered, and that he well knew that he had none, but that he obtained it in disobedience of the injunction re- straining him from receiving the same, and by fraud and imposition on the court of common pleas, which court made the order on which he obtained the money, and this statement is made upon the judgment roll in this action, and findings of fact contained in said judgment roll, and upon the documentary evidence put in evidence on the trial to obtain said judgment. Deponent further says the said judgment is wholly unpaid, and constitutes the foregoing in- debtedness ; and further says that for the said cause of action the defendant, by the first two sections of the act (above referred to), cannot be arrested or imprisoned, as defendant is advised and be- lieves." The clause last cited states a mere inference of law, and that not the verified inference of the affiant, but his belief, merely, of the truth of advice given him. It is not enough (Latham v. Westervelt, 26 Barb. 260 ; Brodhead v. McConnell, 3 Id. 187). Every fact stated in the affidavit as to the cause of action, meager as it is in facts, 4 50 PBOVI8IONS BELATING TO COURTS OF KEOOED. leads to an inference that there was no contract at the foundation of the action, nor any act or circumstance from which one could be inferred or implied. Indeed, the facts charged indicate directly a cause of action resting in tort: that the defendant obtained the money without right or title, and that he well knew that he had none, excludes the idea that he received it under a contract; and when we are told, furthermore, that he received the money in disobedience of an injunction order restraining him from receiving it, and then that he obtained it by fraud and imposition on the court, we perceive not only that there was no contract, but that there is no fact from which a contract can be implied; and that., if the allegations are true, the cause of action was not one for which the defendant, according to the provisions of the statute, could not be arrested. Nor is there any fact stated in the judgment roll which aids or strengthens the affidavit. There is nothing in the complaint or findings to indicate that the cause of action was a contract, express or implied, and upon the hearing before the respondent after the arrest of the defendant he so held, saying : "In looking at the judgment roll it is plain that the warrant herein should not have been granted, for the defendant could have been arrested in that original action, and, if so, he cannot be prosecuted under ' the act to abolish imprisonment for debt.'" And the learned judge who delivered the opinion of the general term upon the first review (12 Hun, 70), says: "The complaint in the receiver's action neither set forth in terms nor in any manner alluded to any contract existing between himself or the judgment debtor and the defendant Dusenbury, either as a basis of the liability desired to be enforced and maintained, or otherwise," but upholds the jurisdiction of the judge upon the ground that "from the facts imperfectly stated in the complaint, as they were, it could PROVISIONS REtATltfO TO COURTS OF RECORD. Si readily be seen that an implied contract existed in law for thei pay- ment of the moneys received by the defendant Dusenbury to the receiver, in case he had no right to receive and hold them upon the ground claimed by him." We cannot agree with the learned judge in this construction of the statute. On the contrary, we think that the express contract referred to in the statute is one which has been entered into by the parties, and upon which, if broken, an action will lie for damages, or, if implied, when the intention of the parties is not expressed in words, but may be gathered from their acts and from surrounding circumstances, and in either case must be the result of the free and bona fide exercise of the will, producing the " aggregatio memtium,^ the joining together of two minds, essential to a contract at com- mon law. There is a class of cases where the law prescribes the rights and liabilities of persons who have not in reality entered into any contract at all with one another, but between whom circum- stances have arisen which make it just that one should have a right and the other should be subject to a liability, similar to the rights and liabilities in certain cases of express contract. Thus, if one man has obtained money from another through the medium of oppression, imposition, extortion or deceit, or by the commission of trespass, such money may be recovered back, for the law implies a promise from the wrongdoer to restore it to the rightful owner, although it is obvious that this is the very opposite of his inten- tion. Implied or constructive contracts of this nature are similar to the constructive trusts of courts of equity, and, in fact, are not con- tracts at all (Addison on Contracts, 7 ed. [1875] 22). And a some- what similar distinction is recognized in the civil law, where it is said, "In contracts it is the consent of the contracting parties which produces the obligation ; in quasi contracts there is not any consent. The law alone or natural equity produces the obligation by rendering 52 provisions Relating to courts off record. obligatory the fact from which it results. Therefore these facts are called quasi contracts, because, without being contracts, they produce obligations in the same manner as actual contracts" (1 Pothier on Obligations, 113). And again, at common law, says Black- stone (vol. 3, p. 165), If any one cheats me with false cards or dice, or by false weights or measures, or by selling me one commodity for another, an action on the case lies against him for damages upon the contract which the law implies, that every transaction is fair and honest. So, if money is stolen, its owner may sue the thief for conversion ; doubtless he may sue him for money had and received to his use ; but in either of these cases could it be claimed that the wrongdoer was within the protection of the act passed to abolish imprisonment for debt, or that the contract implied by law was the contract specified in the first section of that act ? Surely not. And to that class the present case belongs. The court below expressly puts the obligation upon the mere authority of the law, and makes a contract "by force of natural equity." The learned judge says: " The law implied a promise to pay over as the judg- ment directed that to be done." So, obligations are created in consequence of frauds or negligence, and in either case the law compels reparation and permits the tort to be waived ; but there is no contract that can only come from a convention or agreement of two, not by the option or at the election of one. In the case before us there is not even an election, for the com- plaint states no contract nor charges any assumpsit. It is also claimed by the respondent's counsel that inasmuch as the judgment declares the assignment under which the defendant claimed the money in question to be void, therefore Dusenbury must be deemed to have fraudulently incurred the obligation for which the action was brought ; but that position is subject to the objection before- mentioned, in that the debt or obligation spoken of in the act of Provisions relating to courts of record. 63 1831 means a contract resulting from the voluntary arrangement of the parties, and not one implied by law for the purpose of giving a remedy for a wrong suffered. That the debt or obligation was fraudulently incurred is one of the particulars which, proved to exist, permits the judge to issue the warrant, but it must be remembered that in an action for the recovery of debt no arrest can be had, and it is mere evasion to say the defendant violated the injunction, imposed upon the court, made a claim under a fictitious assignment, and so wrongfully obtained the money ; he refuses to pay it over, but the law says he ought to, therefore he shall be deemed to have promised; hence you may sue on that assumpsit, but you cannot arrest, because the non-imprisonment law says you shall not in an action on contract. Therefore you set out in an affidavit the very frauds in consequence of which the law implied the contract, and demand the arrest of the defendant. It is very clear that an action for wrongs to persons or to their property, actions of trover or trespass or replevin, are not within the section, for they do not arise on contract. The party wronged cannot, by waiving the tort, make a contract, and then resort to the fact which constituted the tort as a ground of arrest. Fassett v. Tallmadge (37 Barh. 436), was an action similar to the one upon which these proceedings are based, to set aside a convey- ance made by a debtor of the plaintiff to the defendant Tallmadge, on the ground that it was fraudulent and void as to creditors; it was so held, and the defendant was ordered to pay to a receiver , appointed by the court a sum of money for the property received by him. In considering whether he was liable to be imprisoned, the court says: " The first section of the Act to Abolish Imprisonment for Debt, and the 179th section of the Code (subd. 4), are ex 64 PROVISIONS DELATING TO OOtfKtS OF RECORD. presjly confined in their operation to cases of contract, or in which the debt is contracted or an obligation is incurred. Neither of them apply to a case like the present, where the action is a proceed- ing in equity to set aside a conveyance or assignment of personal property." As the complaint stated no cause of action upon contract, and as the affidavit presented to the judge contained no statement or asser- tion tending to establish a contract, express or implied, as the basis of the judgment, but, on the contrary, an action to recover the fund on the ground -of its unlawful appropriation or conversion by the defendant, showing misfeasance or malfeasance on his part rather than a contract liability, the case is not within the statute. Many other questions are raised by the appellant's points, but as the conclusion to which we have arrived in regard to the one above mentioned goes to the foundation of the proceedings, it is unneces- sary to discuss them. The order of the general term should be reversed, and the war- rant of Judge Speer for the arrest of the relator, dated November 14, 1876, and all subsequent proceedings thereunder, vacated and set aside. All concur, except Miller, J., absent at argument. Form of affidavit. The following is the formal part of the affidavit required. City and county of New York, sa. A. B., being duly sworn, doth depose and say, that C. D. is justly indebted unto deponent, in the sum of dollars, for and for which said debt, according to the provisions of the act en- titled "An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831, and the acts amend- l>ltOVlSiONS KELAtfrtG TO OOTJRTS OF RECORD. 55 ing the same, the said C. D. cannot be arrested or imprisoned. And this deponent further saith, that (he has commenced a suit or obtained a judgment, as the case may be, giving the particulars thereof), against the said C. D. in the court of , the same being a court of record. And this deponent further saith (Now come the grounds upon which the application is founded). Jurat, &c. Decisions applicable. It was formerly held that a proceeding under the Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors, is not in its nature a criminal proceeding, but a summary method only of enforcing the collection of a civil demand; a statute execution against choses in action, and other effects not tangible by the ordinary,^, fa. The officer need not have before him such strong presumptive proof as, uncontradicted or unexplained, would induce him to convict the defendant of the charges contained in the affi- davits if he were on trial before a petit jury (Moak v. De Forrest, 5 Sill, 605; Berthelon v. Betts, 4 Id. 577, 579); but Latorre v. O'Brien, 6 Abo. Pr. 2f. S. 63, overrules these cases in reference to the act being a summary method of collecting a civil demand, and holds that the proceeding is both civil and criminal in its nature. II. The applicant must make out such a case as will induce the officer to whom application is made to grant the summary remedy, and therefore it must state : 1. Facts. 3. Facts within the applicant's knowledge ; mere suspicion, in- formation, or belief, is insufficient (Smith v. Luce, 14 Wend. 237). After, however, facts and circumstances are stated, the applicant may add his belief as to the intent (Johnson v. Moss, 20 Wend. 56 PROVISIONS RELATING TO COURTS Off RECORD. 146), and the magistrate is to determine whether the belief is war- ranted or not. The affidavit or affidavits must establish one or more of the particulars mentioned in section 8. The party applying for a warrant under that act must give evi- dence establishing one or more of the frauds specified in those sections, and facts must be shown to satisfy the judge that the fraud actually exists ; and not merely to show there is reason to believe that it exists (Noble v. Halliday, 1 2T. T. 337 ; Broadhead v. McConnell, 3 Barb. 175). When a judge, or other officer, issues his warrant in cases pro- vided for by that statute, without any of the preliminary proof required by such statute, his warrant is void, and he acquires no jurisdiction over the matter, or the party. "When a defendant is brought before the officer on such a warrant, and objects to the officer's jurisdiction, and after a decision against him controverts the pretended facts and circumstances on which the warrant was issued, and afterwards, to prevent being imprisoned, gives his bond with sureties, as provided in section 10 of the said act, he is not estopped from denying the officer's jurisdiction, nor from setting up his want of jurisdiction as a defense to an action on the bond (Broadhead v. McConnell, 3 Barb. 175). The charge must be established by satisfactory evidence. Where the affidavit alleged, as reasons for the applicant's belief, that the defendant had assigned, removed or disposed of his property, or was about to do so; that he had recently had a legacy of $600 left him, and that he refused to appropriate any part of it to the payment of the applicant's debt; and that when process was served upon the debtor, at the Buit of the applicant, he declared that because he had been sued he would not pay one cent of the demand: Held, no PROVISIONS RELATING TO COURTS OB 1 REOOKD. 57 legal evidence of the truth of the charge (Vredenburgh v. Hen- dricks, 17 Barb. 179). Under the fourth subdivision of section 8 the fraud must be actual personal fraud on the part of the defendant, and does not include merely legal or constructive fraud, e. g., where the agent obtains goods for his principal on false representations which were not authorized by or known to the principal (Hathaway ». Johnson, 55 N. 7. 93). In all cases under section 8, and all analogous cases, it would be well to bear in mind the following remark of Mr. Justice Bronson, in sucli cases, " where the creditor may be his own witness, for the purpose of procuring the warrant, and may choose his own time for arresting the debtor, it is not to much to require that he should, in the first instance, make out a plain case" (People ■». Recorder of Albany, 6 Sill, 429). With regard to the second particular therein specified, it may be remarked that it cannot apply until after judgment rendered, and then it takes immediate effect, although the thirty days in which execution is stayed may not have expired (People ex rel. Van Valkenburgh v. Recorder of Albany, 6 Sill, 429). The rights in actions, &c, however, which an applicant seeks to reach, must in his affidavit be specifically designated, and must be shown to be tangible, unless it appears that they once did exist in a tangible form, and have been converted into that which cannot be traced; and in the last case the creditor may add his belief that the avails exist in some of the forms specified, without mentioning which (lb.). The decision in Noble v. Abel (3 Hill, 109) that creditors who prosecute are entitled to share pro rata, was overruled in Hall ». Kellogg (12 .V. T. 325), which holds that the creditor who proceeds first is entitled to have his demand first satisfied. Spear v. Wardell 68 PROVISIONS RELATING TO COURTS OF RECORD. (1 2f. T. 144), holds that these proceedings are for the benefit of the creditor who institutes them, and not for the benefit of creditors generally. When a judge, upon a hearing before him, admits evidence which is insufficient or incompetent, it constitutes an error of judg- ment, which is remediable only in a direct proceeding to reverse his commitment. The jurisdiction of the judge does not depend on his deciding correctly in respect of the kind or weight of evi- dence adduced, when the allegations are properly made, and the testimony offered tends to sustain them. "When an inferior tribunal acts without acquiring jurisdiction, its proceedings are void, and all concerned are trespassers. But where it has jurisdiction, and then errs in the exercise of it3 powers, the act is erroneous, and may be avoided on certiorari, but it is not void. "Where, after a judge has acquired jurisdiction of an application for a warrant of commitment under the non-imprisonment act, an injunction staying further proceedings in the matter is served, whereupon the judge suspends the matter, pending the injunction, instead of adjourning it, and after the injunction is dissolved, pro- nounces judgment in the absence of the defendant, these errors, if they be such, are mere errors of judgment, and do not oust the judge of his jurisdiction, nor subject him or the applicant to an action of trespass or false imprisonment (Stanton «. Schell, 3 Sandf. 323). Where a warrant of arrest, under the non imprisonment act, is issued upon an insufficient affidavit, the warrant is void for want of jurisdiction in the officer ; and an action for false imprisonment will lie after the proceedings have been reversed and annulled upon certiorari (Vredenburgh v. Hendricks, 17 Barb. 179). The officer who issues process without jurisdiction, and the PROVISIONS RELATING TO COURTS OF RECORD. 59 party at whose instance such process was issued, are liable as tres- passers for anything done under such process (Merritt v. Bead, 5 Denio, 352; Miller v. Brinckerhoff, 4 Id. 118; Vosburgh v. Welch, 11 Johns. 175; Lyon v. Tates, 52 Barb. 237; Wehle v. Butler, 61 JV. F. 245; Tiffany v. Lord, 05 Id. 310; Steel ». Williams, 18 Ind. 161; Kerr v. Mount, 28 N. 7. 650). The attorney who prosecutes a suit and obtains a judgment, may, without any other authority than his retainer in the suit, de- mand from the debtor an assignment of his choses in action, and on refusal institute proceedings under the non-imprisonment act. To authorize the issuing of a warrant under the non-imprison- ment act against a judgment debtor, for unjustly refusing to apply his choses in action to the payment of the judgment, it is not neces- sary in the demand made upon the debtor to specify particularly what choses in action he is required to appropriate to that purpose. Where a judgment debtor absolutely refused to apply any of hk choses in action to the payment of the judgment, he cannot, after the institution of proceedings against him for unjustly refusing to comply with the demand made upon him, object that no proper person was present at the time of the demand to receive the prop- erty demanded (Steward v. Biddlecum, 2 Comst. 103). If the creditor swear falsely to the amount due him, or thar more is due than the sum really due, knowing the same not to be due, he shall forfeit double the sum so falsely sworn to be due, to be recovered by the assignees of the estate of such debtor. The following is the section referred to. § 12. Every creditor who shall swear in any proceedings under this title, that any sum of money is due to him from any debtor, which is not really due, or that more is due than the sum really due, knowing the same not to be due, shall forfeit double the sum sc falsely sworn to be due, to the assignees or trustees of the estate o 60 PROVISIONS RELATING TO COURTS OF RECORD. such debtor, to be recovered by them (1 B. L. 467, § 15 ; see 3 B. 8. 6 ed. 30). The title referred to is ti le first (Title I.), which includes the non-imprisonment act, whi h embraces article 10, of chapter V. part II., title I., of the Revised Statutes. The carrying a watch about the person of a defendant in an exe- cution, and a refusal by him to deliver it to the officer, is not an offense within the meaning of the statute declaring the secreting of property, so as to prevent its bt'ing made liable for the payment of debts, a misdemeanor (People v. Morrison, 13 Wend. 399). The defendant, a foreigner, against whose property execution was issued, was informed by the officer who levied upon his prop- erty, that certain articles, which, among others, he produced to the officer, were exempt from seizure on execution, and he, thereafter, removed them openly from the State: Held, that these circum- stances did not amount to removing and secreting property with intent to defraud creditors, within the meaning of the non-im- prisonment act (1859, Chamb. N. T. C. P., Krauth v. Vial, 10 Abb. Pr. 139). When judgment is taken against several partners, on service of process upon one only, under the Code, the defendant not served cannot be proceeded against, under the non-imprisonment act, by warrant founded upon such judgment, though he is shown to be in possession of partnership property which he refuses to apply to the payment of the judgment. It is strictly a judgment, not against the party, but against his interest in the joint property (Matter of Lowenstein, 7 Sow. Pr. 100 ; Oakley ». Aspinwall, 4 J¥. T. 513). By analogy, a confession of judgment by one or more joint debtors can only be entered and enforced against those who con- fessed it. And it is not a bar to an action against all the joint debtors upon the same demand (Code of Civil Procedure, § 1278), PROVISIONS RELATING TO COURTS OF RECORD. 61 When warrant may be issued 1 What to contain, and by whom executed. § 9. [Sec. 5.] Upon such proof being made to the satisfaction of the officer to whom the application shall be addressed, he shall issue a warrant, in behalf of the people of this State, either with or without seal, directed to any sheriff, constable, or marshal, within the county where such officer shall reside, therein briefly setting forth the complaint, and com- manding the officer to whom the same shall be directed, to arrest the person named in such warrant, and bring him before the officer without delay ; which warrant shall be accompanied by a copy of all affidavits presented to such officer, upon which the warrant issued ; which shall be certified by such offi- cer, and shall be delivered to the defendant, at the time of serving the warrant, by the officer serving the same. The process first invoked is a warrant, •which is a precept under hand and seal to some officer to arrest an offender, to be dealt with according to due course of law. It is issued in behalf of the people of this State, either with or without seal, directed to some officer : it must briefly set forth the complaint (which must have fraud- incidental to it), and command the officer to arrest the person named in such warrant, and bring him before the judge or officer without delay. Sere is every essential element of a wiminal process. The legis- 62 PROVISIONS RELATING TO COURTS OF RECORD. lature minutely specifies every particular of the writ. Can any one call such a process "civil ?" The intent of the act of the legislature is to reach the fraud of the debtor, find it out, and punish him, by compelling him to act justly to the defrauded creditor, for it is only ' ' the defrauded creditor " that can avail himself of the benefits of the act. Again, the sheriff, or other person authorized, shall execute the writ by arresting the person named therein, and shall keep him in custody until he shall be duly discharged or committed, as therein- after provided. Form of warrant. The following is the usual form of the warrant. The people of the State of New York, to the sheriff of the city and county of New York, greeting: Whereas A. B. did, on the day of , 187 , make application to the officer issuing this warrant, for a warrant to arrest C. D. And whereas satisfactory evidence has been adduced before said officer, that there is a debt or demand due from the said C. D., to the said A. B., amounting to more than fifty dollars, and for which the said C. D. cannot be arrested or imprisoned, according to the provisions of the act entitled " An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831, and that the said ha in the court of , the same being a court of record, for the amount of the said debt; and that the said {Briefly set forth com- plaint). You are therefore commanded, that you arrest the said C. D., and bring him before the officer issuing this warrant, without PROVISIONS RELATING TO COURTS OF RECORD. 63 delay, then and there to abide such further order as may be made in the premises. And hereof fail not at your peril. Given under my hand, at the City Hall, New York, this day of , in the year one thousand eight hundred and , Attorney. , Justice. It was held in Moak v. De Forrest, that the defendant cannot be arrested on such warrant out of the county in which the officer issuing it resides, because there is nothing in the language of any of the sections of the non-imprisonment act which either expressly, or by necessary implication, confers upon the sheriff or other officer to whom the warrant may be directed, the power of executing it beyond the territorial limits of his own county; the contrary, how- ever, is to be inferred from the phraseology of the statute. Had it been intended that it might go into any county, the legislature would not have restricted its execution to an officer of the county in which it was issued, but would have allowed it to be directed to any competent officer in the State (Moak v. De Forrest, 5 Hill, 606 ; 1 B. 8. 2 ed. 808; 3 B. 8. 6 ed. 47, § 9). The above case held that a warrant issued under section 5 (now 9) of the act is not a criminal process, but a summary civil proceed- ing to enforce the collection of a debt due upon contract. This dicta has been overruled by the court of appeals in Latorre v. O'Brien (6 ^456. Pr. N. 8. 63), which decides that the act of 1831 is punitory as well as remedial. The certificate of the judge, which is attached to the copies of the application and affidavit which section 5 (now 9) provides shall be served on the defendant, is in the following form: 64 PROVISIONS RELATING TO COURTS OF RECORD. Certificate and notice. I hereby certify, that the within are copies of the application and affidavits upon which I have this day granted a warrant to arrest the within named C. D., under the provisions of the act in the said affidavits and warrant referred to. Dated the day of , 18 . , Justice. Annexed to said copies is a notice, of which the following is the form: Sir: — You will please to take notice, that the within are copies of an application and affidavits this day made, and upon which the warrant now served upon you was granted. Dated the day of , 18 . Tours, &c, , Attorney. By the Code of Civil Procedure, a writ or other process must be in the name of the people of the State, except where it is otherwise specially prescribed by law ; and where it issues out of a court of record must be tested, except where it is otherwise specially pre- scribed by law, in the name of a judge of the court, on any day, must be returnable within the time prescribed by law, or if no time is prescribed by law, within the time fixed by the court, and therein specified for that purpose; and when returnable must, together with the return thereto, be filed with the clerk, unless otherwise specially prescribed by law, and before its delivery to an officer to be executed, be subscribed or indorsed with the name of the officer by whom, or by whose direction, it was granted, or the attorney for the party, or the person at whose instance it was issued (Vide Oode of Civil Pro. §§ 22, 23, 24). PROVISIONS RELATING TO COURTS OF RECORD. 65 The fraud referred to is that the defendant is about to remove any of his property out of the jurisdiction of the court in which such suit is brought, with intent to defraud his creditors. The judge must have legal evidence tending to convict the de- fendant of such charge (Courter ». McNamara, 9 How. Pr. 255). The ministerial officer will be protected, unless the want of jurisdiction appear on the face of the process (Savacool v. Bough- ton, 5 Wend. 170; Earl v. Camp, 16 Id. 562; Hoose v. Sherrill, Id. 33). The reason why the ministerial officer who executes process valid upon its face is protected, is because he is bound to act, and has no means of knowing what latent defect there may be in the proceedings, and he is punishable as a minister of the court if he do not obey the command or mandate (20 Yin. Abr. 2 ed. Trespass, 479; note to 17). "Where a debtor, who had made an assignment of his property for the purpose of defrauding his creditors, was proceeded against by one of the creditors on account of that fraud, under the act of 1831, and was convicted by such fraud : Held, that a second assign- ment of his property, made by him after he was arrested, but before the decision of the judge upon his case, in which assignment he had given a preference to his other creditors over the one who had commenced such proceedings against him, was in fraud of the prosecution against him under the statute, and was therefore void [1841] (Wood v. Bolard, 8 Paige, 556). After an insolvent debtor has been arrested, under section 4 of the act of 1831, he is not in a situation to make a valid assignment of his property, and to give preferences therein to others of his creditors, to the injury of the prosecuting creditors; nor can he confess a judgment in favor of some of his creditors, for the pur- pose of giving such preferences (II).). 5 66 PROVISIONS RELATING TO COURTS OF RECORD. la the matter of H. Hurst, an insolvent debtor, 7 Wend. 239, where the insolvent, on the same day that he presented his petition to be discharged under the insolvent act, confessed a judgment to his mother, a woman eighty years old, in trust for all his creditors, the court, per Savage, Ch. J., decided that it was a fraud upon the law to attempt to appoint his own trustee in this way, instead of leaving it to the officer granting the discharge to appoint a trustee who should be under his control and direction. It must be borne in mind that the provisions of other acts re- ferred to and made applicable to the act of 1831 are not to be followed literally in ipsiasimis verbis, but are to conform to the text, and the manifest intent of the act under examination, as far as practicable. An arrest under the non-imprisonment act is a proceeding col- lateral to the action, and, on a motion for a discharge, the court may pass upon questions which go to the foundation of the whole proceedings (Robinson v. Rivers, 9 Abb. Pr. N. S. 144). Warrant ; how to be executed by officer. § 10. [Sec. 6. J The officer to whom such warrant shall be delivered, shall execute the same, by arrest- ing the person named therein, and bring him before the officer issuing such warrant ; and shall keep him in custody until he shall be duly discharged, or com- mitted, as hereinafter provided. When a person is arrested upon a warrant issued under the non- imprisonment act, he must be detained in custody, by the olfi.ier, until a final adjudication, unless, in case of an adjournment, he shall give a recognizance ; and if no recognizance is taken, he is bound to PROVISIONS RELATING TO COURTS OF RECORD. 67 keep him in his custody, and will be answerable if he escapes (Lathams. Westervelt [1853], 16 Barb, 421; S. C. [1857], 36 Id. 256). Should he escape, the rule of damages is that the sheriff is prima facie liable for the amount of the judgment. But if it be 6hown that the debtor was unable to pay his debts, the jury should give only such damage as the plaintiff had sustained by the escape. Latham v. Westervelt, 26 Barb. 256; Patterson v. Westervelt, 17 Wend. 543). The fact that defendant was exempt from imprisonment, under the act abolishing imprisonment for debt, is a defense to the sheriff in an action for his escape (Phelps v. Barton, 13 Wend. 68). The principle as above stated in 13 Wend. 68, is correct (Horton v. Hendershot, 1 Sill, 118; Carpentier v. Willett, 1 Keyes, 512; Albee v. "Ward, 8 Mass. 79; Contant v. Chapman, 2 Queen's Bench, 771; Ray v. Hogeboom, 11 Johns. 433); but the case of Phelps v. Barton was overruled in Miller v. Scherder (2 Corns. 264), without affecting the principle above mentioned. The attorney of the plaintiff has no authority, without the consent of the plaintiff, to direct the discharge of the defendant in execution, and if he does so, and the sheriff obeys such directions, he will be liable for an escape (Kellogg*. Gilbert, 10 Johns. 220; Jackson v. Bartlett, 8 Id. 361). Regarding all proceedings under the act of 1831, up to this point, if a party escape from the sheriff, it is presumed that the whole debt is lost. But the sheriff may reduce the debt by proof of in- solvency. Semble, the rule is the same as to negligence or voluntary escape (Patterson v. Westervelt, 17 Wend. 543 ; Potter v. Lansing, 1 Johns. 215; Russell v. Turner, 7 Id. 189; Metcalf v. Stryker, 31 JV. T, 256). 68 PROVISIONS RELATING TO COURTS OF RECORD. Again, insolvency may be set up as to mesne process, but the rule as to final process is different (see Renick v. Orser, 4 Bosw. 384 ; and see 23 Sow. Pr. 129; 11 Abb. Pr. 225). By the Code of Civil Procedure, a sheriff or other officer, to whom a mandate is directed and delivered, must execute the same according to the command thereof, and make return thereon of his proceedings, under his hand. For a violation of this provision, he is liable, to the party aggrieved, for the damages sustained by him ; in addition to any fine or other punishment or proceeding author- ized by law (Code Civil Pro. § 102). A sheriff or other officer, to whom is delivered, for service or execution, a mandate authorized by law to be issued by a judge or other officer in a special proceeding, who willfully neglects to exe- cute the same, may be fined by the judge in a sum not exceeding $25, and is liable to the party aggrieved, for his damages sustained thereby {Code of Civil Pro. § 103; 3 S. S. 6 ed. 725). Returns may be amended (Code of Civil Pro. §§ 721, 725). By sections 113, 114, 115, Code of Civil Procedure, certain charges are prohibited. A sheriff or other officer who has lawfully arrested a prisoner, may convey his prisoner through one or more other counties, in the ordinary route of travel, from the place where the prisoner was arrested, to the place where he is to be delivered or confined (Code of Civ. Pro. § 118), but a warrant under the act of 1831 cannot be executed out of the county (Moak v. De Forrest, 5 Hitt, 605; see also Exp. Fleming, 4 Id. 581; but compare Lynde v. Montgomery, 15 Wend. 561). A prisoner so conveyed, or the officer having him in custody, is not liable to arrest in any civil action or special proceeding, while passing through another county (Code of Civ. Pro. § 119). By stat. 55 Geo. 3, c. 50, § 13, it is a misdemeanor punishable PROVISIONS RELATING TO COURTS OF RECORD. 69 by fine and imprisonment for the jailer to refuse to receive a pris- oner, or shall take anything for receiving him. The power of making commitments in execution is derived, for the most part, from statutory provisions : in many cases, however, it exists at common law as an incidental means of enforcing the law ; and all judges of record, that is to say, persons having the power to fine or imprison, have power to commit to the custody of their offi- cer, sedente curia, by oral command, without any warrant made at the time, in the absence of statute to the contrary (Kemp v. Neville, 10 Com. B. N. S. 523). The above case is a leading one in England, in reference to the principle that a judicial officer is not liable to be sued for an adju- dication, according to the best of his judgment, upon a matter within his jurisdiction; and a matter of fact so adjudicated by him cannot be put in issue in an action against him. When a warrant, under the non-imprisonment act, is issued out of the supreme court, in the first district, the direction to bring the party before the particular justice issuing the same is merely a matter of form, and not of substance ; and if the warrant be made returnable generally before one of the justices of the court, the error, if it be one, does not render the warrant void ; nor can the defect be taken notice of collaterally (Latham v. Westervelt, 16 Barb. 421). Objections to the reception of certain evidence, by the judge, cannot effect the warrant in a collateral suit (Stanton v. Schell, 3 Sand/. 323). What to be done on the appearance of the person arrested. § 11. [Sec. 7.] On the appearance of the person so arrested, before the officer issuing such warrant, he 70 PROVISIONS RELATING TO COURTS OF RECORD. may controvert any of the facts and circumstances on which such warrant issued, and may, at his option, verify his allegations by his own affidavit ; and in case of his so verifying the same, the complain- ant may examine such defendant on oath, touching any fact or circumstance material to the inquiry, aud the answers of the defendant on such examination shall be reduced to writing and subscribed by him ; and the officer conducting such inquiry shall also receive such other proof as the parties may offer, either at the time of such first appearance, or at such other time as such hearing shall be adjourned to ; and in case of an adjournment, such officer may take a recognizance, with or without surety, at his discre- tion, from the defendant, for his appearance at the adjourned hearing. Upon appearance, the party arrested must do one of the two things above mentioned. 1. Controvert the facts and circumstances on which warrant issued, by the testimony of witnesses. And in this case the follow- ing indorsement may be made on the back of the warrant : "I controvert the facts and circumstances on which the warrant issued." Dated Signed, When this course is pursued, the burden of disproving the facta, presented by the complainant's application and affidavits, rests with PROVISIONS RELATING TO COURTS OF RECORD. 71 the defendant. He cannot, by merely saying that he controverts, as in the above indorsement, and, technically speaking, interposing the plea of the general issue, compel the complainant to substantiate his charges, since his case is made out by his original application, and is therefore, prima facie, good. Such a substantiation can only be necessary after the complainant's case has been controverted by the defendant's affidavit, or by proof (Jfixp. Spencer v. Hilton, 10 Wend. 608). 2. Deny the plaintiff's allegations, and verify the denial by his own affidavit. In this case the defendant can be examined under oath, as pro- vided for in section 11. And if, in the course of such examination, any or all of the plaintiff's facts be denied or explained, the plaintiff is bound to substantiate them. If, however, the defendant pursue neither course, he must be committed, unless the requisites of section 15 be complied with (Spencer v. Hilton, 10 Wend. 608). "When the defendant is discharged improperly, the remedy is by certiorari and not by mandamus (Spencer v. Hilton, 10 Wend. 609). The recognizance on adjournment (see § 11, p. 69, ante). The following is the usual form of the recognizance taken by the officer on an adjournment. Know all men by these presents. That we, , acknowledge ourselves, jointly and severally, to owe, to the people of the State of New York, the sum of , to be levied of our and each of our goods and chattels, lands, and tenements, if default be made in the underwritten condition, or in any part thereof. 72 PROVISIONS RELATING TO COURTS OF RECORD. Whereas, on the application of A. B., and on satisfactory evi- dence adduced to the officer hereinafter named, required by the provisions of the act entitled "An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831, the Honorable , one of the justices of the court, has duly issued his warrant under and by virtue of the provisions of the said act, to arrest said C. D. And whereas said C. D. has been arrested, under and by virtue of said warrant, and has been brought before the said justice, and has controverted the facts and circumstances under which said warrant issued, and has prayed an adjournment of the hearing of the said matter. Now, the condition of this recognizance is such, that if the said C. D. shall or do well and truly appear before the said justice, on the day of , 188 , at o'clock, in the noon of that day, at his chambers, in the City Hall of the City of New York, then the above recognizance to be void, otherwise to be in full force. Dated, New York, 188 . [l. s.] Justification of surety if required, and usual acknowledgment by the parties. The bond must be to appear on the adjourned day ; the addition of the words "such other times and places as the hearing of the said matter may from time to time be adjourned, until the final decision of the said matter," do not seem to be warranted by the act, which says, "that such officer may take recognizance with or without surety, at his discretion, from the defendant, for his appear- ance at the adjourned hearing.^ See 3 Bandf. 443; S. C, 8 JV. T, Legal Observer, 164, PROVISIONS RELATING TO COURTS OF RECORD. 73 And it would seem to be doubtful whether, if the defendant should fail to appear on some adjourned day, other than the one specified in the recognizance, the surety would be liable, unless a new recognizance were taken each time the matter was adjourned. And it has been held, in the case of a recognizance conditioned for the appearance of a criminal at a particular time, e. g., at the next ses- sions, and not to depart the court without leave, that appearing at the particular time specified, and answering, satisfied the condition ; and that a default, in not appearing on a call at the term next following, was no ground of action (Vide Keefhaver v. Commonwealth, 2 P. & W. [Perm.'] 240; 2 Brightly Big. 2112). To save the drawing of a new bond, the sureties may continue the old one by subscrib- ing, at the bottom thereof, these words: " We hereby consent and agree that if the within mentioned proceedings are adjourned until the day of , 188 , that the within bond, and all the conditions thereof, shall continue in full force and effect until that time." To be subscribed by the sureties. As to the requisites of a recognizance generally, vide People v. Greene, 5 Sill, 647; Peo- ple v. Rundle, 6 Id. 506 ; People v. Blankman, 17 Wend. 255. Bond required by section 12. Where, however, the application is founded on section 3 or 4 (now sections 6 and 8), the defendant shall not be entitled to the adjournment or postponement mentioned in section 11, unless such defendant, in addition to the requirements of section 11, enter into a bond to the plaintiff, in a penalty of not less than twice the amount of the debt or demand claimed, with such sureties as shall be approved by the officer issuing the warrant, conditioned that, until the final decision of the matter pending before such officer, such defendant will not remote any property which he then has, out of the juris- diction of the court in which the suit in which such warrant is 74 PROVISIONS RELATING TO COURTS OF RECORD. issued is brought, with intent to defraud any of his creditors ; and that he will not assign or dispose of any such property, with intent or with a view to give a preference to any creditor for any debt antecedent to such assignment or disposition {Laws of 1840, p. 320). The following is the form of the bond (see § 12, post). Know all men by these presents. That we, , are held and firmly bound unto A. B., in the sum of , lawful money of the United States of America, to be paid to the said A. B., or to his assigns. For which payment, well and truly to be made, we bind ourselves, our heirs, executors, and adminis- trators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , in the year one thousand eight hundred and Whereas, on the application of the said A. B., and on satis- factory evidence adduced to the officer hereinafter named, required by the provisions of the act entitled "An Act to Abolish Im- prisonment for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831, the Honorable , one of the justices of the court, has duly issued his warrant, under and by virtue of the provisions of the said act, to arrest the said C. D. And whereas, said C. D. has been by virtue thereof arrested, and has been brought before the said justice, and has controverted the facts and circumstances under which said warrant issued, and has prayed an adjournment of the hearing of the said matter. Now, therefore, the condition of the above obligation is such, that if, until the final decision of the said matter, the said 0. D. do not remove any property which he now has, out of the jurisdic- tion of the said court, with intent to defraud any of his creditors, and if the said C. D. do not assign or dispose of any such prop- erty, with intent or with a view to give a preference to any PKoViSlOtfS ttE^ATltfa TO COtJfiTS Off RECORD. 75 creditor, for any debt antecedent to such assignment or disposition, then the above obligation to be void, otherwise to remain in full force and effect. [l. s.] Sealed and delivered in the presence of . 88. Usual justification of sureties and acknowledgment. Difference in the bonds. In order to entitle the defendant to an adjournment, he must give the proper bond mentioned in this section. The recognizance mentioned in section 11 is in the name of the people, and is to insure his appearance in court, but the instrument to be given according to section 12 is a bond which the debtor enters into to the plaintiff, with sureties, and conditioned as in said section expressed. Bond, when sufficient. A bond or undertaking, required by statute to be given by a person to entitle him to a right or privilege, or to take a proceeding, is sufficient, if it conforms substantially to the form therefor pre- scribed by the statute, and does not vary therefrom to the prejudice of the rights of the party to whom, or for whose benefit, it is given (Code Civ. Pro. § 729; amending 2 B. 8. 556, § 33; 3 R. 8. 6 ed. 863). Special bail after conviction. The act of 1845, c. 214, allowing special bail to be given in cer- tain cases, after conviction, will be found under sections 15, 24, post. Amending defects in bonds. Where such a bond or undertaking is defective, the court offi- cer, or body, that would be authorized to receive it, or to entertain 76 PROVISIONS RELATING TO COURTS Off RECORD. a proceeding in consequence thereof, if it was perfect, may, on the application of the persons who executed it, amend it accordingly ; and it shall thereupon be valid, from the time of its execution {Code Civ. Pro. § 730, amending 2 B. 8. 556, § 34; 3 B. 8. 6 ed. 863). See the following sections of the New Code as to bonds. § 810. Bonds, &c, must be acknowledged; and section 811 as to number of sureties. §812. Form of bond or undertaking; affidavit of sureties; ap- proval by court or judge. § 813 When several sureties may justify, each in a smaller sum. § 814 Bonds to the people or a public officer, for the benefit of a suitor. / §815. Bonds not affected by death of parties. / ^ § 816. To be filed, must be filed with the clerk of the court; ex- cept where, in a special case, a different disposition thereof is directed by the court, or prescribed in the Code of Civil Procedure. The bond mentioned in section 12 must be executed before au adjournment can be had by the debtor; and a declaration in an action against a surety upon a recognizance for the debtor's personal appearance, given on such adjournment, which contains no aver- ment that such a bond was executed, is bad on demurrer (People v. Locke, 3 Sandf. 443). Appearing and objecting merely to proof of service, is waiver of defects in time and manner of service (People v. Bancker, 1 Seld, 106). While jurisdictional defects cannot be amended (lb.), it is the practice to allow the amendment of the schedules or inventory (In, re Andriot, 2 Daly, 28). Recognizance. Prom re, again, and cognoscere, to know, to acknowledge, and Provisions belaying to courts of record. Tt then, to call to mind; having reference to something which one already has knowledge of. An obligation of record^ which a man enters into before some court of record or magistrate duly authorized, with a condition to be void in the performance of a thing stipulated. It differs from a bond, in that the bond is the creation of a fresh debt or obligation de novo, while a recognizance is an acknowledg- ment of a former debt upon record. At common law, the form was " that A. B. doth acknowledge to owe, to our lord the king, or to our sovereign lady the queen, the sum of £ (with condition)." The king is called the cognizee, is cui cognoscitur (he to whom one is bound in a recognizance), and he that enters into the recognizance is called the cognizor, is qui cognoscit (he who enters into the recognizance). This is cer- tified to or taken by some officer of the court, and is witnessed only by the record of that court, and not by the party's seal, so that it is not strictly a deed, though the effects of it are greater than a com- mon obligation, being allowed a priority in point of payment, and binding the lands of the cognizor from the- time of enrollment in record (29 Gar. 2, c. 3). Under the statutes of New York. All recognizances required or authorized to be taken in any criminal proceeding, in open court, by any court of record, shall be entered in the minutes of such court, and the substance thereof shall be read to the person recognized ; all other recognizances, in any criminal matter or proceeding, &c., shall be in writing, and shall be subscribed by the partie's to be bound thereby (2 M. L. 149, § 18; 2 S. 8. 746, § 24; 3 Id. 6 ed. p. 1045, § 45). As the act of 1831 is, in its process, criminal, the recognizance 78 PROVISIONS BEfcATltfG TO COtJETS OP RECORD. must be in writing, and subscribed by the defendant and surety (if one be required). The recognizance need not be under seal. Minutes of testimony to be kept. Whenever any hearing shall be had before any officer, singly, or before him and a jury, or before a court, under any of the provisions of this title, it shall be the duty of such officer, or of the presiding judge of the court, to keep minutes of the material parts of the testimony delivered before him, and of the examinations of any debtor (B. 8. 6 ed. tit. 1, part 2, c. 5, § 16, p. 30). The act of 1831 is embraced in article 10 of title 1, above. The recognizances are in the name of the people, and not for the benefit of the complainant ; and when any recognizance to the people of this State shall have become forfeited, the district attor- ney shall prosecute the same. It is not necessary to prove any damages; the judgment shall be absolute for the penalty (2 S. 8. § 29, p. 485). Contesting the facts before the officer, or giving bond under the statutes under compulsion of the proceedings, is not a waiver of the jurisdictional objection, founded on the insufficiency of the affidavit (Vide Shannon v. Comstock, 21 Wend. 457). Where a court of common pleas refused to hear and decide upon a question of the insufficiency of an affidavit, presented upon the application for an attachment in the court below, and such affidavit was in fact insufficient, the judgment of the common pleas was reversed (Bennett v. Ingersoll, 24 Wend. 113). Waiver. Contesting the facts before the officer, or giving bond under the statute, under compulsion of the proceedings, is not a waiver of the PROVISIONS RELATING TO COURTS OF RECORD, ffi jurisdictional objection founded on the insufficiency of the affidavit (Broadhead v. McConnell, 3 Barb. 175), and a warrant issued with- out an affidavit, containing evidence amounting to proof, is void, and affords no protection to the parties issuing it (Vrcdenburgh i>. Hendricks, 17 Barb. 179; Taylor s. Harker, 1 E. D. Smith, 391). Want of jurisdiction, arising out of the insufficiency of the affidavit, is a defense to the action on the bond (Broadhead v. McConnell, supra). Continuing proceeding commenced on warrant of one justice before another. I. In the City and County of New York. Section 26 of the Code of Civil Procedure provides that "In the city and county of New York, a special proceeding, instituted before a judge of a court of record, or a proceeding commenced before a judge of a court of record, out of court, in an action or special proceeding pending in a court of record, may be continued from time to time, before one or more other judges of the same court, with like effect as if it had been instituted or commenced before the judge who last hears the same." This section is similar to section 27 of the former Code. Meaning of the provision. The meaning is that a proceeding, begun by a judge competent to institute it, may be continued therein before any other judge competent to have begun it (Dresser v. Van Pelt, 15 How. Pr. 19 ; S. C, 6 Buer, 687). The provisions of section 27, supra, apply to Stilwell Act as well as other special proceedings (Latham v. Westervelt, 16 Barb. 427, and see Holstein v. Rice, 24 Sow. Pr. 135, 139; S. C, 15 Abb. 80 PROVISIONS RELATING TO COURTS OS" RECORD. Pr. 307, holding that proceedings under the Stilwell Act are "special proceedings "). See also 12 Jf. Y. 593; 16 Id. 80; 18 Id. 57; 6 Id. 176. II. Continuing Proceedings in Other Counties. Section 52 of the Code of Civil Procedure provides, "In case of the death, sickness, resignation, removal from office, absence from the county, or other disability of an officer, before whom a special proceeding has been instituted, where no express provision is made by law for the continuance thereof, it may be continued before the officer's successor, or any other officer residing in the same county, before whom it might have been originally instituted ; or if there be no such officer in the same county, before an officer in an adjoining county, who would originally have had jurisdiction of the subject matter, if.it had occurred or existed in the lat- ter county" (see also 2 B. S. 284, § 51; 3 Id. 5 ed. 475; 2 Edm. 295). Proceedings before substituted officer. Section 53 of the Code of Civil Procedure provides as follows : "At the time and place specified in a notice or order for a party to appear, or for any other proceeding to be taken, or at the time and place specified in the notice to be given, as prescribed in this section, the officer substituted, as prescribed in the last section, or in any other provision of law, to continue a special provision in- stituted before another, may act, with regard to the special pro- ceeding, as if it had been originally instituted before him. But a proceeding shall not be taken before a substituted officer at a time or place other than that specified in the original notice or order, until notice of the substitution, and of the time and place appointed for the proceeding to be taken, has been given, either by personal PROVISIONS RELATING- TO COURTS OF RECORD. 81 sendee or by publication, in such manner and for such time as the substituted officer directs, to each party who may be affected there- by, and who has not appeared before either officer. Where, after a hearing has been commenced, it is adjourned to the next judicial day, each day to which it is so adjourned is regarded, for the pur- poses of this section, as the day specified in the original notice or order, or in the notice to appear before the substituted officer, as the case requires (Id. §§ 52, 53, and see 3 R. 8. 6 ed. § 40, p. 446, entitled " General provisions concerning certain judicial officers"). Where proceedings are instituted before a county judge, against a judgment debtor, under the "Act to Abolish Imprisonment for Debt " and, to avoid a commitment for fraud, the debtor executes a bond with two sureties, conditioned that he will, within thirty days, " apply for an assignment of all his property, and for a discharge, as provided in the 12th section of the said act," and, "diligently prosecute the same until he shall obtain his discharge ;" and the judgment debtor accordingly makes an application to the county judge of the county in which he resides, and on the day fixed for the hearing, the county judge is absent from the' county, and dis- abled by sickness from hearing it, the obligors in the bond are not thereby excused from performing their obligations, and discharged from liability thereon. If, after an application has been made to the county judge of a particular county, it is found that such judge cannot entertain it within the thirty days, and grant the discharge, the judgment debtor is bound to continue the proceedings before some other offi- cer, if one can be substituted in time. ■> Under such circumstances, the county judge of an adjoining county can be procured to attend at the time and place specified in the notice, and continue the proceedings, in the same manner and to the same effect as if they had been commenced before him. And 82 PROVISIONS inStATiNG TO OOtJRTS OP KEOOBD. it ia tlie duty of the judgment debtor to procure such attendance, and to prosecute the proceedings before the substituted judge (Cobb «. Harmon, 29 Barb. 472; Vide 2 R. 8. 3 ed. 284; BanM Ed. vol. 8, p. 446, and see ante, pp. 79, 80). The case of Cobb v. Harmon was affirmed on appeal in the court of appeals (23 N. Y. 148). Bond to be given to obtain postponement. * § 12. "Whenever any defendant shall be arrested by virtue of a warrant issued in pursuance of the third and fourth [now sixth and eighth] sections of the said act, such defendant shall not be entitled to have the hearing adjourned or postponed, as men- tioned in the seventh [now eleventh] section of the said act, unless such defendant, in addition to the requirements of the said seventh [now eleventh] sec- tion, enter into a bond to the plaintiff, in a penalty of not less than twice the amount of the debt or demand claimed, with such sureties as shall be approved by the officer issuing the warrant, con- ditioned that, until the final decision of the matter pending before such officer, such defendant will not remove any property which he then has out of the jurisdiction of the court in which the suit in which such warrant is issued is brought, with intent to defraud any of his creditors ; and that he will not assign or dispose of any such property, with intent or with a view to give a preference to any creditor PROVISIONS RELATING TO COURTS OF RECORD. 83 for any debt antecedent to such assignment or dis- position. [L. 1840, c. 377.] This bond must not be confounded with the recognizance required by section 11, ante, p. 69, the form of which is given at p. 71, ante, but is to be given only in the cases specially referred to in section 12, supra. See explanation and form of bond, at p. 73, ante. In cases where a bond is required by the above section, no adjournment can be had without one (People v. Locke, 3 Band/. 443; S. C, 8 N. T. Leg. Obs. 164). Adjournment notwithstanding injunction. Where the judge has acquired jnrisdiction, his error, in suspend- ing, instead of adjourning the matter pending an injunction, and in pronouncing his judgment in the absence of the accused, does not oust his jurisdiction, nor subject him, or the party prosecuting, to an action of trespass or false imprisonment (Stanton e. Schell, 3 Sand/. 323). Remanding' prisoner. The court need not remand the prisoner. If no recognizance be given on an adjournment, the officer is bound to hold him (Latham «. Westervelt, 16 Barb. 421; S. C, 26 Id. 256). The appearance contemplated by the recognizance. On the adjourned day, the debtor who had given a bond to appear then was present before the officer, but by an arrangement with the creditor, in the absence of his sureties, did not answer, and his default was then entered. Held, that the bond was for- feited. Appearance does not mean mere bodily presence. The 84 PBOVISIONS BELATING TO OOTJETS OF EECOED. debtor must render himself before the officer to answer the pro- ceedings (People v. Wilgus, 5 Den. 58). Powers of officer conducting inquiry. § 13. [Sec. 8.] The officer conducting such, in- quiry shall have the same authority to issue sub- poenas for witnesses, which is now conferred by law on any officer empowered to hear applications of insolvents, for the purpose of exonerating their per- sons from imprisonment, and shall have the same power to enforce obedience to such subpoenas, and to punish witnesses refusing to testify ; and witnesses willfully disobeying any such subpoena, shall be liable to the penalties prescribed in the seventh article of title first and chapter fifth of the second part of the Revised Statutes. Form of subpoena. The People of the State of New York, to , Greeting : You are hereby summoned to be and appear before Hon. , Justice of court, at the City Hall, in the city of New York, on the day of , 188 , at o'clock in the noon, to testify and give evidence of all which you, or either of you, may know, concerning the estate, debts, credits, acts and doings of C. D., against whom a warrant has been issued, under and by the Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors; and this you, or either of you, are not to omit, under the penalty upon you, and each of you, of one hundred and twenty-five dollars, PROVISIONS RELATING TO COURTS OF RECORD. 85 Witness my hand and seal, the day of , one thou- sand eight hundred and eighty. , Attorney. , Justice. Penalties for. non-appearance. 1. The appearance of every person duly subpoenaed, and neglect- ing or refusing to appear, may be enforced by attachment to be issued by such officer, or court : and if, after appearance, any such person shall refuse to testify, he shall be committed to prison till he submit. 2. Every person disobeying such subpoena 'willfully, shall forfeit $125, to be recovered by and in the name of the party at whose instance he was subpoenaed (3 B. 8. 6 ed. p. 30, §§ 14, 15). Death of plaintiff. The death of the prosecuting creditor does not abate the pro- ceeding (23 iV. F. 148), arid see section 20 (formerly 14), as to ser- vice of notice on legal representatives. Coverture as a defense. The right of a married woman to take advantage of her covert- ure as a ground of discharge from a warrant of arrest issued against her under the non-imprisonment act, is not waived by her contro- verting generally the facts, on the return of the warrant, and giving the recognizance and bond. Such objection does not go to the jurisdiction, nor to the form or sufficiency of the moving papers, but may be raised at any time during the pendency of the proceed- ings. When the objection is raised, if the fact of coverture did not appear in the application for the warrant, and is contested, the court may, in its discretion, allow the examination of the woman to proceed, leaving her to her plea in the course of the proceedings. 86 . PROVISIONS BELATING TO COUKTS OF RECORD. Notwithstanding the married woman's acts of 1848, 1849, 1860, and 1862, a married woman, except in the cases provided for by these statutes, remains, as at common law, under disability to make contracts ; and a debt for wearing apparel, purchased by one who had no separate property or occupation within the statute, is not one for which she can be held responsible. Her coverture may be inquired into, and, if established, may be made the ground of a motion to discharge from arrest, under the non-imprisonment act. She is not restricted to setting it up by answer, and awaiting the trial of the issue. An arrest, under the non-imprisonment act, is a proceeding collateral to the action, and, on a motion for a discharge, the court may pass on questions which go to the foundation of the whole proceeding (Robinson v. Rivers, 9 Abb. J/". 8. 144). No married female could be arrested in a civil proceeding at common law (1 Duer, 613 ; 8 How. Pr. 134 ; 16 Abb. Pr. 353 ; 4 Bom. 684; 2 B. 8. 428 [446], § 9). Res judicata. If the same proceeding be renewed, whether it be in the form of an action, or summary or special proceeding, which has been once adjudicated upon the merits, such result is a bar to any further pro- ceeding of a similar character (Demarest ». Day, 32 N. T. 281; Dwight®. St. John, 25 Id. 203; White*. Coalsworth, 6 Id. 137; Yonkers & N. T. F. I. Co. v. Bishop, 1 Daly, 449; Bowers v. Wetty, 42 flow. Pr. 352 ; People ex rel. Lockwood (now 14), but, being afterwards served with an injunction from tha district court of the United States, restraining further proceedings in the matter, refused to deliver the warrant to be executed; held, that the court would not compel the delivery by mandamus, no want of jurisdiction in respect to the injunction appearing. Nor will the court, in such case, inquire whether the injunction was issued improvidently (Exp. Fleming, 4 Rill, 581). Mode of review. These proceedings must be reviewed by certiorari, and not man- damus (Townsend •». Morrell, 10 Wend. 578), but, if the debtoi complies with all the requirements of the act, and the officer refuses to discharge him, mandamus, to compel such discharge, will lie (II).). The general mode under the new Code is by appeal (Code of Civ. Pro. §§ 1356, 1357; 13 Hun, 418; S. C, 56 How. Pr. 152). Form of the commitment. [To be varied to suit the particular case. ] The People of the State of New York, to the sheriff of the city and county of New York, Greeting : Whereas A. B. did, under and by virtue of the act entitled "An Act to Abolish Imprisonment for Debt, and to Punish Fraud- ulent Debtors," passed April 26, 1831, obtain a warrant to arrest C. D., which warrant was issued upon satisfactory evidence, adduced to his Hon. , one of the judges of the marine court of the city of New York (the same being a court of record), who did then, and still does, reside in the city of New York, by the affida- 90 PROVISIONS RELATING TO COURTS OF RECORD. vits of and , that there was a debt or demand due from the said 0. D. to the said A. B., amounting to more than fifty dollars, and for which the said C. D. cannot be arrested or imprisoned, according to the provisions of the act entitled, "An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831, and that the said A. B. had recov- ered a judgment in the said marine court of the city of New York (the same being a court of record), for the amount of said debt, and that the said C. D. (briefly set forth the particulars of the complaint). And whereas said warrant, when issued, was directed and de- livered to , who then was, and ever since has oeen, and still is, sheriff of the city and county of New York, and that the said sheriff did, by virtue of said warrant, arrest the said C. D., at the city, and in the county of New York, and did bring him before said officer, who issued the said warrant, to abide such further order as might be made in the premises. And whereas, on his appearance before the said officer, the said C. D. (here state the proceedings before the officer, for example, whether the defendant controverted the facts, whether he verified his allegations by his own affidavit or not, whether the proceedings were adjourned, and if so, when and where; the appearance and proceedings of the parties at each adjourned hearing, and conclude as follows): And whereas, on this day of , in the year , the parties aforesaid being present before me, to wit : the said A. B. and the said C. D., I, being fully satisfied that the allegations of the said A. B. have been substantiated, to wit; that (recite the facts) did then and there so decide and declare my decision to the said C. D., and whereas the said C. D. did not pay the said debt or judgment aforesaid, with the costs of the suit, and of the proceedings against him, nor furnish the security, nor in any manner comply with any PROVISIONS RELATING TO COURTS OP RECORD. 91 of the terms and provisions stated in the tenth (now fifteenth) sec- tion of the act entitled "An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831. Now, therefore, I hereby command you, by virtue of said act, that you take the said C. D. and commit him to the jail of the city and county of New YorTc, that being the county in which the hearing of this matter was had, and him there closely and safely keep until he shall be discharged according to law. Given under my hand at the court-house, in the city of New York, this day of , 188 . , Justice. Particularity required. The following is an extract from the opinion of Recorder Tall- madge, delivered by him in the matter of Day v. Franklin, where a party has been committed under this act, and was brought before him by habeas corpus. " The. sheriff's return to the habeas corpus in this matter shows that the defendant is held by him under a commitment granted by Judge Inglis, pursuant to the Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors, &c, a copy of which commitment is annexed to the petition. The petition alleges that this commitment is illegal and void on its face, because it does not appear that the petitioner had ever been arrested under the warrant, or was ever brought before the officer issuing it, or was present at the alleged inquiry before said officer, or had any opportunity to controvert the facts and circumstances on which such warrant was issued, and also that said process does not specify of what particular offense the petitioner was convicted, so as to enable him to comply with the requirements of said act, or that the officer had any right to commit. It is a well settled rule of law, as laid down by Chief Justice Spencer, in Bigelow v. Stearns (19 Johns. 40), that to 92 PROVISIONS RELATING TO COURTS OP RECORD. justify an inferior magistrate in committing a person, he must have jurisdiction not only of the subject matter of the complaint, but also of the process, and the person of the defendant. "Now it cannot be denied that this is a summary conviction, unknown to the common law, but a creature of the statute; in such cases, Chief Justice Savage says, in Dakin v. Hudson, Sheriff of Columbia County (6 Cow. 221), the process much show affirmatively that the officer had power to grant it, and that the facts on which he acted gave him jurisdiction of the subject matter and of the person of the party. The act under which the commitment pur- ports to have been made, requires, before it can be granted, that not only a proper complaint be made, and a warrant obtained, but that the party shall be arrested and brought before the officer granting the warrant, and have an opportunity to controvert the facts on which the warrant was issued, and then the officer has jurisdiction of the person. These preliminaries to the commitment are indispensable ; it necessarily follows, under the cases cited and the act, that the commitment is bad on its face because it does not show that the defendant was ever arrested, brought before Judge Inglis, or had an opportunity to defend himself. All that appears is, that the complaint was made, a warrant issued, and the defend- ant forthwith convicted and ordered to be committed. This is clearly illegal, for want of jurisdiction of the person. I am there- fore compelled to hold the commitment void, and to discharge the defendant. " If the cause of commitment is not set forthwith convenient certainty in the process, the officer to whom it is directed is not punishable for suffering the party to escape, and the court before whom he is removed by habeas corpus ought to discharge or bail him. And this doth not only hold where no cause at all is expressed in the commitment, but also where it is so loosely set forth that the PROVISIONS RELATING TO COURTS OF RECORD. 93 court cannot judge whether it were a reasonable ground of im- prisonment (2 Bacon's Abridgement, p. 254, ed. of 1843). Kemedy of debtor. " When an officer under this act erroneously commits a debtor to jail, the remedy of the party is by certiorari, and not by mandamus (Spencer v. Hilton, 10 Wend. 608), because the officer has finally acted in the matter. After commitment, if the debtor complies with the requirements of the succeeding sections, and the officer refuses to discharge him, a mandamus will lie (Exp. Townsend v. Morrell, 10 Wend. 577)." Commitment. The mandate, warrant or order by which a court or magistrate directs a ministerial officer to take a person to prison. By the temporary act of 1876, the word mandate has an enlarged signification, and includes a writ, process or other written direction issued pursuant to law out of a court, or made pursuant to law, by a court or a judge thereof, or by a person acting as a judicial offi- cer, and commanding a eourt, board, or other body, or an officer or other person named or otherwise designated therein, to do, or to refrain from doing, an act therein specified (L. 1876, c. 449, § 2, subd. 2). It should be in writing under the hand of the magistrate (and in some cases under seal), and should show his authority and the time and place of making it. It must be made in the name of the United States, or of the commonwealth or people, as required by the constitution of the United States, or of the several States ; in this State in the name of the people. It should be directed to the officer who made the arrest under section 9 (§ 5) of the act of 1831, and should describe the "pris- 94 PROVISIONS RELATING TO COURTS OF RECORD. oner " or defendant by his name and surname, or the name he gives as his. It should also state the particular circumstances of the convic- tion — in other words, the certainty of the cause; and must point out the place of imprisonment, which is the jail of the county where the hearing was had, and that he be there detained until he shall be discharged according to law. If the words of a statute are not pursued in a commitment, the party will be released by habeas corpus. English and other decisions in point. Anciently more prisoners were committed to "gaol" without a mittimus in writing, than were with it ; such were commitments by watchmen and constables. But since the habeas corpus act a com- mitment in writing is more necessary than formerly ; otherwise a prisoner may be admitted to bail under that act, whatever his offense may have been. The court of Queen's Bench may commit defendants to any prison in England they think fit (Bothe's case, Moore, 666). It ought to contain concisely the cause for the commitment, and with sufficient certainty to distinguish the nature of the offense ; otherwise, if it contain no cause at all, and the prisoner escapes, it is no offense. In Dr. Groenvelt's case it was ruled, " that the cause of commit- ment ought to be certain, to the end that the party may know for what he suffers, and how he might regain his liberty " (1 Lord Bay- mond, 213; 2 Hale Pleas of the Grown, 122; 2 CoWs Institutes, 592). The commitment mentioned in section 14 is in the nature of a commitment in execution, after conviction, and should be framed with care and precision. It need not specify, however, what property, money or Tights in PROVISIONS RELATING TO COURTS OF RECORD. 95 action the debtor is adjudged to have fraudulently concealed or assigned (People v. Kelly, 7 Bolt. 592), while a commitment for safe custody before conviction need not be so peculiarly certain (Rex v. Gourlay, 7 Barn. & Cress. 669). It must have an apt conclusion, ' ' till he be thence delivered by law,'' or "by order of law," or "by due course of law," or words to that effect (Rex v. Nash, 2 Bla. 806, consult 11 & 12 Vict. c. 42, sched. T. 1). Where the statute requires, it must be under seal, for independ- ently of the requirements of a statute, there does not appear to be any general principle requiring a seal (Per Eblb, J., Be Bowdler, 17 L. J. Q. B. 243, etiam 467). By Code of Civil Procedure, a sheriff, to whom a mandate of any description is delivered to be executed, must, without compen- sation, give to the person delivering the same, if required, a minute in writing, signed by the sheriff, specifying the names of the par- ties, the general nature of the mandate, and the day and hour of receiving the same (§ 101, amending § 75, 3 B. 8. 6 ed. 724, 725). Formerly a fee was paid. " Mandate " defined by section 2 of temporary act (L. 1876, c. 449). Sembk, — a constable or marshal would be entitled to a fee. Jail limits. The supreme court of this State, in 1802, per Mr. Justice Kent, in Holmes v. Lansing (3 Johns. Cas. 73), held that the jails were to be considered as enlarged from the four walls of the ancient law, to the assigned limits; and so long as the prisoner was within those limits, so long was he considered, in judgment of law, as in prison. To the same effect (1810) Peters and another v. Henry (6 Johns, 121). 96 PROVISIONS RELATING TO COURTS OP RECORD. No different rule has prevailed since, for, in the eye of the law, a party is imprisoned whether he is on the limits, or in close custody (Coman v. Storm, 26 How. Pr. 84; Allen on Sheriffs, 214). The same rule prevails in England (Bonafons v. Walker, 2 Term B. 26). In what cases commitment shall not be granted. § 15. [Sec. 10.J Such, commitment shall not be granted if the defendant shall either, 1. Pay the debt or demand claimed, with the costs of the suit, and of the proceedings against him : or, 2. Give security to the satisfaction of the officer before whom the hearing shall be had, that the debt or demand of the plaintiff, with the costs of the suit and proceedings aforesaid, shall be paid within sixty days, with interest : or, 3. Make and deliver to such officer an inventory of his estate and an account of his creditors, and execute an assignment of his property as hereinafter provided, on which the same proceedings shall be had as upon a petition of such defendant in the manner hereinafter directed, except that no notice to the plaintiff shall be requisite ; and no adjournment shall be granted for more than three days, except at the instance of the defendant ; and a discharge shall be granted in the like case and with the same effect : or, 4. Enter into a bond to the complainant, in a I PROVISIONS RELATING TO COURTS OF RECOKD. 97 penalty not less than twice the amount of the debt or demand claimed, with such sureties as shall be approved by such officer, conditioned that such de- fendant will, within thirty days, apply for an assign- ment of all his property, and for a discharge, as pro- vided in the subsequent sections of this act, and diligently prosecute the same until he obtains such discharge : or, 5. If such defendant shall give a bond to such plaintiff, in the penalty and with the sureties above prescribed, conditioned that he will not remove any property which he then has, out of the jurisdiction of the court in which such suit is brought, with the intent to defraud any of his creditors ; and that he will not assign or dispose of any such property, with such intent, or with a view to give a preference to any creditor for any debt, antecedent to such assign- ment or disposition, until the demand of the plaintiff, with the costs, shall be satisfied, or until the expira- tion of three months after a final judgment shall be rendered in the suit brought for the recovery of such demand. Notes to first subdivision. Pay the debt or demand claimed, with costs (see § 37 post, as to amount of costs). The act of 1838 (c. 138, § 3), provides that, "The costs, fees, and expenses of the proceedings under this act shall, in all cases, be made out by stating the particular charges, 7 98 PROVISIONS RELATING TO COURTS OF RECORD. and be taxed by the officer before whom the proceedings shall be liad; no counsel, retaining, or trial fee shall be allowed either party, nor shall the costs in any case be taxed against the opposite party to exceed the sum of $10, where the demand claimed by the plaintiff shall exceed $50, nor more than $5, where the demand claimed by the plaintiff shall be $50 or less." As to what fees are recoverable, see the above and 4 Hill, 591 ; 6 Id. 178; 5 How. Pr. 21. Costs of review upon certiorari or appeal. See Code of Civ. Pro. § 318, and People v. O'Brien, 6 All. Pr. J?. S. 63. The statute considered. The reasonable and humane sentiment that no man shall be deprived of his liberty because he unable to pay his debt, is not violated by this act. The statute does not purport to imprison for debt, but to punish for an offense (People v. O'Brien, 6 All. Pr. N. S. 63). Judge Woodruff, in delivering the opinion of the court of appeals in the above case, added, "In saying this, I do not overlook the fact that the object of the act in these provisions is to furnish a stringent remedy to enforce the collection of the debt, and that payment of the debt entitles the prisoner to his discharge." Notes to second subdivision. The statute is silent as to the kind or form of security which the second subdivision contemplates, except that the defendant must "give security to the satisfaction of the officer." A bond, with sufficient sureties, reciting the proceedings, and conditioned in the language of the statute, is supposed to be all PROVISIONS RELATING TO COURTS OF RECORD 99 that is required, and with this idea in view, the following form is suggested. Form of security. Know all men by these presents. That we, , are held and firmly bound unto A. B., in the sum of , lawful money of the United States of America, to be paid to the said A. B., or to his assigns. For which payment, well and truly to be made, we bind ourselves, our heirs, executors, and adminis- trators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , in the year one thousand eight hundred and Whereas, on the application of the said A. B., and on satis- factory evidence adduced to the officer hereinafter named, required by the provisions of the act entitled "An Act to Abolish Im- prisonment for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831, the Honorable , one of the justices of the court, has duly issued his warrant, under and by virtue of the provisions of the said act, to arrest the said C. D. And whereas, said C. D. having been by virtue thereof arrested, and brought before the said justice, and the said justice being satis- fied that the allegations of the complainant have been substantiated, and having so adjudicated according to the provisions of said act. Now, therefore, to prevent the commitment to jail of the said C. D. under the said act, by giving the security required thereby, and in consideration of one dollar, to us in hand paid, the receipt whereof is hereby acknowledged, we do hereby promise and agree that the debt or demand of the said A. B., amounting to the sum of , with the costs of the suit brought to recover the same, as well as of the proceedings aforesaid, shall be paid to the said A. B., within sixty days from the date hereof, with interest, 100 PROVISIONS RELATING TO COTJETS OF RECORD. upon paying which, this obligation shall be void, otherwise to remain in full force and virtue. [l. s.] [L. B.] In presence of Usual justification and acknowledgment and approval by the justice. " This security is satisfactory to me as to form, sufficiency and manner of execution, and I hereby approve of the same." Priority of payment. —Different proceedings under the act. A judgment creditor who makes a demand of the debtor that he apply his property and choses in action to the payment of the judgment, and who, on his refusal, procures a warrant to be issued for his arrest, pursuant to the Act to Abolish Imprisonment for Debt and to Punish Fraudulent Debtors, thereby acquires a right to have the equitable assets of the debtor appropriated to the pay- ment of his judgment, to the exclusion of other judgment creditors. The debtor cannot defeat this right by subsequent acts in favor of other judgment creditors. Nor are other judgment creditors, who, before the arrest of the debtor on the first warrant, make similar demands of and procure similar warrants to be issued against him, which are executed at the same time with that first issued, entitled to a pro rata share of the assets. Accordingly, where the plaintiffs applied to the debtor to appro- priate his choses in action to the payment of their judgment, which he declined to do, and they procured a warrant to be issued and delivered to the sheriff for his arrest; and the debtor, to prevent the plaintiffs from acquiring a preference, and to insure a ratable distribution of his property between them and other creditors, con- cealed himself, and the latter, with his connivance, made similar demands, and procured similar warrants to be issued to the sheriff, 4P% PROVISIONS RELATING TO COURTS OP RECOR who arrested and brought him before the officer by virtue of warrants, and he was convicted, and a precept for his commitment made out, when he elected to and did make an assignment of his property under section 11 (now 17) of the act, — Held, that the plaintiffs were entitled to have their judgment first satisfied out of the proceeds of the assigned estate, and that the residue should be distributed to the others in the order in which they made their several demands (Hall v. Kellogg, 11 JV. T. 325). The proceedings under this act are never for the benefit of the creditors at large ; ex- cept in the single instance of an assignment, after the debtor has been convicted of a misdemeanor. Previous to the execution of the as- signment, the proceedings are for the benefit of the prosecuting cred- itor alone (Matter of Prime, 1 Barb. 296; see notes to § 22, post). Notes to third subdivision. A. The assignment, when made, is for the benefit of the creditor or creditors, on whose application the warrant was issued (Berthe- lon ». Betts, 4 Hill, 577; 1 B. S. 789, 791, 2 ed. § 15; and see notes to § 22, post). B. If the proceedings of the debtor, however, in delivering the inventory, &c, are not just and fair, and if the officer be satisfied of their unfairness, the commitment shall not be prevented; and in case of refusal by the officer to commit under such circumstances, a mandamus will lie (Exp. Clark v. Wright, 10 Wend. 585). Just and fair. A debtor, committed under the act for a fraudulent disposal of his property, cannot be allowed a discharge on making the assign- ment provided for by law (Matter of Andriot, 2 Daly, 28). To be discharged, the proceedings of the debtor must be "just 102 PROViSlOtfS RELATING TO COTJETS OF BEOOEfc. and fair" (4 Hill, 567; 69 N. 7. 215; 2 E. D. Smith, 429; Bishop on Insolvent Debtors, § 121; 1 City Ot. Bep. 76; 14 How. Pr. 498 and see ante, pp. 87, 88). In People v. "White (14 How. Pr. 498), the defendant was a public defaulter for a large amount, professed to be" unable to give any account of the money, and failed to explain, in a satisfactory manner, certain transfers of property in which he appeared to have a large equitable interest, and the inventory contained but a trifling amount; the court held that his proceedings were obviously not "just and fair" (See similar case in 53 How. Pr. 35). It is not necessary, to prevent such discharge, to show that the fraudulent disposition was made by the debtor with a view to the proceedings for his discharge ; it is sufficient, although made before the commencement of the action, where the order for his imprison- ment was based upon the ground of such fraudulent disposition {In re Brady, 69 N. T. 215). For further notes see section 18, post. And when the officer is satisfied that the above proceedings, on the debtor's part, are not just and fair, but. chargeable with actual fraud, and therefore grants a commitment, the debtor is stopped from trying the same matter over again before another officer, and a second application would be dismissed, for, when once decided against him, it is "res ad judicata " so long as the first decision remains unreversed (People ex rel. Lodowick v. Akin, 4 Hill, 606 ; Mercein ». People, 25 Wend. 64 ; People v. Mercein, 3 Hill, 399). His only remedy, as before remarked, is certiorari, or by appeal (see ante, p. 89). Notes to fourth subdivision. One who has given the bond required by subdivision 4, that he shall apply, within thirty days, for a discharge, may apply after the PEOVTSIONS RELATING TO COttETS OF EEOOED. 103 lapse of thirty days. The jurisdiction of the officer to entertain the proceeding is not limited by the condition of the bond (Matter of Bradlie, 1 Mm. 262). Compare, however, 5 N. Y. Leg. Obs. 227, holding that the petition must be presented to the judge within thirty days. A bond given as prescribed by subdivision 4 is valid. The obligors, in effect, assert, by giving it, that is possible for the debtor to show that his proceedings were just and fair, and without intent to defraud, and for the doing of this they become bound (Wheaton v. Fay, 62 JV. T. 275). In an action upon such bond, it was held that in the absence of proof of fraudulent intent, the sureties could not avoid the bond on the ground that they were induced to sign it by a mistake as to its contents, produced by incorrect statements of the judge as to its effect, i. e., that it was simply a bond for the appearance of the debtor (II.)- For form of such bond, see same printed in the report of said case, as follows : Form of bond under subdivision 4. Know all men by these presents. That we, C. D., E. F. and G. H., are held and firmly bound unto A. B. in the sum of (twice the amount of the debt) lawful money of the United States, to be paid to the said A. B. or to his assigns. For which payment, well and truly to be made, we bind ourselves, our executors and adminis- trators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the day of , in the year one thousand eight hundred and Whereas, on the application of the said A. B., and on satis- factory evidence adduced to the officer hereinafter named, required by the provisions of the act entitled "An Act to Abolish Imprison- 104 PROVISIONS RELATING TO COURTS OF RECORD. merit for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831, the Hon. , one of the justices of the court, duly issued his warrant under and by virtue of the provisions of the said act, to arrest the said C. D. ; and whereas, the said C. D. has been by virtue thereof arrested, and has been brought before the said justice, and has controverted the facts on which the said warrant issued. Now, therefore, the condition of the said obligation is such, that if the said C. D. shall, within thirty days, apply for an assignment of all his property, and for a discharge, as provided by the act, entitled as aforesaid, and if the said C. D. shall diligently prosecute the same until he shall obtain his discharge, then the above obligation to be void, otherwise to remain in full force and effect. [l. b.] [I,. S.] [L. S.] In presence of Usual justification and acknowledgment. Notes to fifth subdivision. All of the above provisions would apparently imply that there is no dispute as to the indebtedness; the object of the fifth is to enable the defendant to contest the plaintiff's demand, which he may do upon the condition of keeping his property in the situation in which it was at the time of the proceedings against him {Spencer's Practical Directions, 23; Graham's Practice, 470). Thus every succeeding provision of section 15 removes further and further from the creditor the prospect of payment, until sub- division 5 leaves him, if he is a judgment creditor, precisely where he was before he made his application for a warrant, and if he is only a creditor at large, it guarantees to him that the debtor shall be in no worse condition until three months after he shall obtain PROVISIONS RELATING TO COURTS 0$ RECORD. 105 judgment. The object can be no other than to afford the creditor an opportunity to issue execution, and if that proves insufficient, that he may file a bill in equity (Townsend v. Morrell, 10 Wend. 581, 583). For form of bond see ante, pp. 73, 74; and see section 12, ante, p. 82. Application of certain provisions. § 16. The fifth subdivision of section ten [now 15], of the act entitled " An Act to Abolish Imprison- ment for Debt arid to Punish Fraudulent Debtors," passed April 26, 1831, shall apply only in cases where the particular fraudulent design established against. the defendant is only that specified in the first subdivision in the fourth [now eighth] section of the act hereby amended. [L. 1837, c. 418, p. 466.] Subdivision 5 of section 15 provides for a bond conditioned that the debtor's property shall not be removed, assigned, or disposed of until the expiration of three months after final judgment (see § 15, at p. 96, ante), and subdivision 1 of section 8 is directed to the same purpose (see § 8, at p. 45, ante). Defendants committed to remain in custody as prisoners on criminal process until discharged. § 17. [Sec. 11.] Any defendant committed as^ above provided shall remain in custody in the same manner as other prisoners on criminal process, until a final judgment shall have been rendered in his favor, in the suit prosecuted by the creditor at 106 PROVISIONS RELATING TO COURTS OF RECORD. whose instance such defendant shall have been com- mitted, or until he shall have assigned his property and obtained his discharge, as provided in the subse- quent sections of this act ; bat such defendant may- be discharged by the officer committing him, or any other person authorized to discharge the duties of such officer, on such defendant paying the debt or demand claimed, or giving security for the payment thereof, as provided in the tenth [now fifteenth] sec- tion of this act, or on his executing either of the bonds mentioned in the said section. See sections 9 and 10, ante, and notes thereto; and see §§ 23, 24, post. I. Under the last clause of the above section it appears that the defendant is entitled to a discharge, upon his paying the debt or demand claimed (see § 15, at p. 96, ante, and see notes thereto), or upon his executing a bond not to remove, assign, or dispose of his property. Such bond, however, must refer to the property which was by him possessed when the warrant was granted, and not that which he may have when the bond is executed {Graham's Pr. 473; Spencer's Pr. Direc. 24. For form of bond, see notes to § 15, ante). II. As to the mode of obtaining a discharge. — If the debtor complies with all the requirements of the act, and the officer refuses to discharge him, mandamus to compel such discharge will lie (Townsend v. Morrell, 10 Wend. 578). The writ of habeas corpus will always be safe and effectual (see § 43, post), and may be adopted also when any defects are supposed to exist in the process of commitment. Application for such writ must be made by petition, Bigned PROVISIONS RELATING TO COURTS OF RECORD. 107 either by the party for whose relief it is intended, or by some person in his behalf (3 R. 8. 6 ed. § 37, p. 875). To whom application is to be made for the writ (Vide 2 R. 8. 2 ed. p. 446 ; 3 Id. 6 ed. p. 875). The petition therefore must state, in substance : 1. That tbe person in whose behalf the writ is applied for is imprisoned or restrained in his liberty; the officer or person by whom he is so confined or restrained (and the place where), naming both parties, if their names are known, or describing them if they are not. 2. That such person is not committed or detained by virtue of any process, judgment, decree or execution specified in section 24 of art. 2 of tit. 1, and c. 9 of part 3 of the Revised Statutes (2 R. 8. 2 ed. p. 466, § 24; 3 Id. 6 ed. § 36, p. 875). 3. The cause or pretense of such confinement or restraint, according to the best knowledge and belief of the party. 4. If the confinement or restraint is by virtue of any warrant, order or process, a copy thereof must be annexed, unless a good excuse is shown for its absence. 5. If the imprisonment be alleged to be illegal, the petition must also state in what the alleged illegality consists. 6. It must be verified by oath of the applicant (2 R. 8. 2 ed, 467; 3 Id. 6 ed. § 39, p. 876). The following is the usual form of the writ. The People of the State of New York, to , Greeting : We hereby command you, that you have the body of A. B., by you imprisoned and detained, as it is said, together with the time and cause of such imprisonment and detention, by whatsoover name the said A. B. shall be called or charged, before our justices of our supreme court (or before C, D., justice, &c, as the case may 108 PROVISIONS RELATING TO COURTS OF RECORD. be), at , on (or immediately after the receipt of this writ), to do and receive what shall then and there be con- sidered concerning the said A. B. And have you then there this writ. Witness Hon. , on the day of , one thousand eight hundred and eighty , Attorney. , Clerk. Indorsed, Allowed, N. Y., 188 . John Jones, Justice. Our statutes direct (2 B. S. 1 ed. 469 ; 3 Id. 6 ed. 878), that th.; court or officer authorized to allow the habeas corpus, shall, upon the return thereof, proceed to examine into the facts contained in the return; if no legal cause be shown for the imprisonment, the party shall be discharged, but if he is legally detained, he shall be remanded. Although the decision of the officer committing the applicant cannot be reviewed on habeas corpus, yet if it appear on the return, 1. That the jurisdiction of the court or officer has been ex- ceeded, either as to matter, place, sum or person. 2. That though the original imprisonment was lawful, yet, by some act, omission or event, which has taken place afterwards, the party has become entitled to be discharged. 3. That the process is defective in some matter of substance required by law, rendering such process void. 4. That the process, though in proper form, has been issued in a case not allowed by law. 5. That the person having the custody of the prisoner is not the person authorized to detain him ; or, 6. That the process is not authorized by any judgment, order, or decree of any court, nor by any provision of law (2 B. 8. 2 ed. 470; 3 Id. 6 ed. 879), the applicant is entitled to his discharge. Notice of the suing out of habeas corpus, to relieve a party PROVISIONS RELATING TO COURTS OF RECORD. 109 from imprisonment, must be given to the party interested in con- tinuing the same, although the latter does not reside in the county where the former is imprisoned, or where the proceeding is had for habeas corpus; it must be given without reference to residence (People v. Pelham, 14 Wend. 48; 2 S. S. 569, § 46). If application for discharge is made to the same officer who com- mitted the defendant, no objection is perceived to his discharging him by supersedeas (Graham's Prac. 473, ed. of 1836). In People v. Brennan (61 Barb. 540), the general term of the supreme court held that the party was entitled to eight days' notice of the time and place at which the writ was made returnable. Discharge for inability to endure imprisonment. The Code of Procedure (§ 302, subd. 2), provides that " in all cases of commitment under this chapter, or the act to abolish imprisonment for debt, the person committed may, in case of ina- bility to perform the act required, or to endure the imprisonment, be discharged from imprisonment by the court or judge committing him, or the court in which the judgment was rendered, on such terms as may be just." This provision is to be exercised in the discretion of the court, but in such cases the prisoner should not be discharged, where his proceedings have not been fair, and his inability to pay is not clearly established (Maass v. La Torre, 6 Abb. Pr. ST. 8. 219). Amendments. Amendments supplying jurisdictional defects against the objec- tion of the adverse party, do not cure them (People v. Bancker, 5 iV. Y. 106). 110 PROVISIONS RELATING TO COURTS OF RECORD. Person committed may petition for the assignment of his property. § 18. [Sec. 12.] Any person committed as above provided, or who shall have given the bond specified in the fourth subdivision of the tenth [now fifteenth] section of this act, or against whom any suit shall have been commenced in a court of record, in which such person, by the provisions of this act, cannot be arrested or imprisoned, may present a petition to a justice of the supreme court, or any judge of a county court, in the county in which such defendant resides or is imprisoned, praying that his property may be assigned, and that he may have the benefit of the provisions of this act. Sufficiency of the petition. When a debtor makes application for a discharge under this sec- tion, he must set forth the facts necessary to confer jurisdiction upon the officer. In order to confer jurisdiction, it must appear that the debtor has either been committed to jail under section 9 [now 14], or has given the bond specified in subdivision 4 of section 10 [now 15], or that a suit has been commenced against him in a court of record, in which, by the provisions of the act, he cannot be arrested or imprisoned. Accordingly, where the debtor's petition omitted to state either of these particulars, but set forth that he was an insolv- ent debtor, within the meaning of the Act to Abolish Imprisonment for Pebt, and to Punish Fraudulent Debtors, passed April 26, 1831. PROVISIONS RELATING TO COURTS OP RECORD 111 " and prayed that Ms estate might be assigned for the benefit of all his creditors, and his person exempted from arrest or imprisonment by reason of any debts arising upon contracts previously made." Held, not sufficient to confer jurisdiction, and a discharge having been granted by the, officer, his proceedings were reversed on cer- tiorari (People ex rel. Noble ». Abel, 3 Hill, 109). If the debtor's discharge be denied, he is stopped from trying the same matter over again before another officer, so long as the first decision remains unreversed (People ex rel. Lodorwick v. Akin, Judge of Duchess Co. C. P., 4 Hill, 606). A petition setting forth the giving of the bond specified in sec- tion 10 [now 15] of the act, does not confer jurisdiction. It should state the particular subdivision of said section (People ex rel. Courier v. Reed, 5 Denio, 554). Section 10 [now 15] mentioned two bonds, only one of which confers jurisdiction (lb.). To the same effect (People v. Bancker, 5 iV. Y. 106), supplying jurisdictional defects against objection of adverse party does not cure them (lb.). Tbe petition stated, in substance, that a suit had been com- menced against the petitioner in a court of record, in which, by the Act to Abolish Imprisonment for Debt, &c, he could not be arrested or imprisoned ; stating where and by whom the suit was brought, but not stating its nature ; and further, merely stating that he had been arrested on a warrant obtained by the person who was plaintiff in the suit, and had given bond under subdivision 4 of section 10 [now 15]. Held, insufficient to confer jurisdiction ; he should have alleged facts showing the nature of the suit, and showing that he could not be arrested, &c., under section 1 of the act (People v. Bancker, 5 W. T. 106). An application for a discharge, under the Act to Abolish Impris- onment for Debt, must show either that an action had been com- 112 PROVISIONS RELATING TO COURTS OF RECORD. menced or judgment recovered against the petitioner by the prose- cuting creditor, and the petition must show, affirmatively, the nature of the suit or judgment (Matter of Andriot, 2 Daly, 28). A debtor, committed under the act, for a fraudulent disposal of his property, cannot be allowed his discharge on making the assign- ment provided for by section 16 [now 22] of the act (lb.). Voluntary assignments. The provisions of the Revised Statutes, allowing voluntary assignments by insolvents, for the purpose of exonerating their persons from imprisonment, are not applicable to the case of a debtor imprisoned on proceedings under the act of 1831, known as the Stilwell Act (People v. O'Brien, 5 Abb. Pr. JSf. S. 223). Section 11 [now 17] of the Stilwell Act, points out the only mode by which a debtor imprisoned under it .may be discharged (lb.). Effect of bankruptcy under the act of congress. Property which had been conveyed by a bankrupt, in fraud of creditors, prior to the passage of the bankrupt law, is to be regarded as vested in the assignee in bankruptcy by force of that act, and by virtue of the proceedings thereunder. The bankrupt, therefore, cannot be arrested in proceedings under the act of 1831, of this State, known as the " Stilwell Act," by a creditor seeking to reach the property of the bankrupt. The primary object of civil proceed- ings under the Stilwell Act is not the punishment of the debtor, but the collection of the creditor's judgment; and therefore such pro- ceedings are in direct conflict with the bankrupt law, as respects all property which passed to the assignee in bankruptcy (Goodwin v. Sharkey, 5 Abb. Pr. 2T. 3. 64). PROVISIONS RELATING TO OOtTBTS OF EECOBD. 113 For whose benefit. Previous to the execution of the assignment, the proceedings are for the benefit of the prosecuting creditor alone (Matter of Prime, 1 Barb. 296). It was formerly held that the proceedings of the debtor to obtain his discharge, were not against the prosecuting creditor alone, but also against all who, from their conditions, are entitled to proceed against him (lb. ; Hall i>. Kellogg, 13 Barb. 603 ; and see notes to § 22, post), but. the court of appeals, in Spear v. Wardell (1 N. T. 114), have decided that these proceedings, from beginning to end, are for the benefit of the prosecuting creditor. A. sort of statutory execution. The proceedings under the Stilwell Act have been sometimes regarded as in the nature of a statute execution, that is, as a statu- tory means of enforcing the payment of debts. In some respects this may be a just view. Thus, if the defendant, before arrest, and in answer to a demand made under section 4 [now 8], applies his evidence of debt to the payment of a judgment against him, it is, pro tanto, a means of enforcing payment of a debt. So if, after his arrest, and before his commitment, he does, under section 10 [now 15J, pay the debt, or give security for its payment in sixty days, it becomes a means of coercing satisfaction (Matter of Prime, 13 Barb. 300). To deliver an account of bis creditors, and an inventory of his estate. § 19. [Sec. 13.] On presenting such petition, such defendant shall deliver an account of his creditors, 8 114 PROVISIONS RELATING TO OOtTRTS OF RECORD. and an inventory of his estate, similar in all respects to the account and inventory required of a debtor, by the sixth article of title first and chapter five of the second part of the Revised Statutes ; and shall annex to the said petition, account, and inventory, an affidavit, which shall be taken and subscribed by him, before the officer to whom such petition is pre- sented, similar in all respects to the oath required by the fifth section of the sixth article of the aforesaid title and chapter. For what the petition must contain, see notes to section 18, ante. The portion of article 6 of title 1 and chapter 5 of part 2 of the Revised Statutes (3 B. S. 6 ed. p. 25), requiring the account and inventory of a debtor, is found in the following sections: Contents of petition and account. "§4. Such petition shall set forth the cause of the imprison- ment of the applicant, and shall have annexed to it a just ami true account of all his estate, real and personal, in law and equity, and of all charges affecting the same, both as such estate and charges existed at the time of his imprisonment, and as they exist at the time of preparing such petition; together with a just and true account of all deeds, securities, books, and writings whatsoever, relating to the said estate and the charges thereon, with the names and places of abode of the witnesses, to such deeds, securities, and writings." Affidavit to be indorsed thereon. "§5. At the time of presenting such petition, the following PROVISIONS RELATING TO COURTS OF RECORD. 115 affidavit shall be indorsed thereon, and shall be sworn to by the applicant : "I, the within named petitioner, do swear (or affirm, as the case may be), that the within petition and account of my estate, and of the charges thereon, are in all respects just and true; and that I have not, at any time or in any manner, disposed of, or made over any part of my property, with a view to the future benefit of myself or my family, or with an intent to injure or de- fraud any of my creditors." To be taken and subscribed before the officer to whom the peti- tion is presented (§ 19, supra). The account and inventory are merely preliminary, and as the opposing creditor has his day to investigate and oppose, they can be amended at the hearing before the judge. Article 6, referred to, requires the account of real and personal estate, as it existed at the time of the arrest, as well as at the time of preparing the petition. The presentation of such an account is a jurisdictional necessity (People exrel. v. Bancker, 5 iV. T. 106; see to same effect Matter of Andriot, 2 Daly, 28; Bullymore v. Cooper, 46 JK 7. 246). Section 13 [now 19] requires the defendant, on presenting a petition for discharge under that act, to deliver an account of his creditors, but no particular form is prescribed, and none need be observed. It is sufficient if there be a full and intelligent account of creditors (People v. Brennan, Sill & Den. Supplt. 81). Errors merely clerical, and such as do not mislead or prejudice the cred- itor, in the notice and papers served on him, do not affect the jurisdiction of the judge to whom they are presented (/J.). It is the practice to allow the amendment of the schedules or inventory (Matter of Andriot, 2 Daly, 28). 116 PROVISIONS RELATING TO COURTS OF RECORD. Proceedings to be just and fair. A debtor cannot have the benefit of the provisions of this act in reference to a discharge, unless his proceedings have been just and fair (see ante, pp. 87, 88). Form of petition. [To be varied to suit the particular case.] To the Honorable , one of the justices of court. The petition of respectfully showeth, that he is a prisoner confined in the jail of the county of , on . (Here recite the facts required by sections 18 and 19, and the notes thereto.) Tour petitioner, therefore, prays for such relief as he believes himself entitled to, pursuant to the provisions of the statute entitled " An Act to Abolish Imprisonment for Debt, and to Punish Fraud- ulent Debtors," passed April 26, 1831, and alleges that he is willing to comply with the provisions of the said statute, and for that pur- pose prays the order of this honorable court, directing the sheriff of the said county to bring him into this court, on a day and time to be assigned for such purpose, that the plaintiff in the said action and proceedings show cause, if any he may have, why an assign- ment of your petitioner's estate, as hereinafter mentioned, should not be made, and he be discharged from his imprisonment in the said action and proceedings. And your petitioner, in compliance with the provisions of the said statute, prays for leave to do such acts, and he sets forth and states to this honorable court, that the following is A just and true account of all his estate, real and personal, in law and equity, and of all charges affecting the same, as the same PROVISIONS RELATING TO COURTS OE RECORD. 117 existed at the time of his 'imprisonment in the said action, accord- ing to the best of his knowledge and belief, to wit: Real estate, none. Personal estate (describe same). Charges affecting the same, as follows, to wit: (state same). And there is no other account of any real or personal estate, in law or equity, belonging to him, or of any other charges affecting the same, as the same existed at the time of his said imprisonment in the said cause; and that the following is A just and true account of all his estate, real and personal, in law or equity, and of all charges affecting the same, as the same exists at the time of preparing this petition, according to the best of his knowledge and belief, to wit : Real estate, none. Personal estate (describe same). Charges affecting the same, as follows, to wit: (state same). And that his arms and accoutrements are as follows, to wit: (state same). And that his necessary wearing apparel, and bedding of himself and family, are as follows, to wit: (enumerate same). And that his tools, or instruments of his trade, are as follows, to wit : (enumerate same) And that the following is a just and true account of all deeds, securities, books and writings whatsoever, relating to the same estate; and the charges thereon, and the names and places of abode of the witnesses to such deeds, securities, and writings, according to the best of his knowledge and belief, to wit: (describe same). And that there is no other account of any real or personal estate, in law or equity, or any other charges affecting the same, as the same exists at the time of preparing this petition ; nor any other deeds, securities, books pr writings whatever, relating to the same ; 118 PROVISIONS RELATING TO COURTS OF RECORD. nor any other names or places of abode of any witnesses to such deeds, securities, or writings, so far set forth as his knowledge extends concerning the same. Dated the day of , 188 . , Prisoner. Form of oath. See pages 114, 115, ante. Certificate of Imprisonment. COUET. A. B. against C. D. H &c. City and County of New York, ss. : I do hereby certify that , the defendant in the above action, is a prisoner, confined within the jail of the city and county of New York, by virtue of (describe the process). Dated the day of , 188 . Notice under section 20, post. [Title of court and of action.] Please to take notice, that I intend to present the within petition to the Honorable , one of the justices of the court, at the City Hall, in the city of New York, on the day of , 188 , at ten o'clock in the forenoon, or as soon there- after as counsel can be heard, praying for relief pursuant to the provisions of the statute entitled "An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors," to be discharged from imprisonment upon making the assignment required by said PROVISIONS RELATING TO COURTS OF RECORD. 119 act ; and that the within is a true copy of my petition and account of my estate intended to be presented as aforesaid. Tours, &c, CD., Prisoner. John Jones, Attorney for Prisoner, No. 1 Wall St., N. Y. To , Esq., Plaintiff, Or to his personal representatives or attorney (see § 20, post). Application, to whom made. The application must be made to an officer residing in the county in which the debtor resides, and must be continued before such officer (70 JV. T. 5). To serve notice on plaintiff. § 20. [Sec. 14.] Fourteen days previous notice of the time and place at which, and of the officer to whom such petition will be presented, together with a copy of such petition, and the account and inven- tory thereto annexed, shall be served personally on the plaintiffs by whom such defendant shall be pros- ecuted, their personal representatives or their attor- ney ; and proof of such service shall be made at the time of presenting such petition. For form of notice, see p. 118, ante. Form of affidavit of service. City and County of New York, ss. : E. P., being duly sworn, says: that he is years of age (or over 21 years of age) ; that on the day of , 188 , at 120 PROVISIONS RELATING TO COURTS OF RECORD. No. street, in the city of New York, this deponent served (the plaintiff, or his legal representative or his attorney, as the case may be), in this cause, with a notice of the above defendant's intention of presenting the within petition to the of this honorable court, on the day of , 188 , at ten o'clock in the forenoon; and also with the said notice was served a true copy of the petition and account and inventory of the said defendant's estate, as within set forth, by delivering the said notice, and a copy of the said petition and account and inven- tory to, and leaving the same with the said , personally, and that the notice so delivered was signed by the defendant above named. E. F. Sworn to before me, this day of , 188 . John Doe, Notary Public, N. T. Co. Objection to proof of service. An objection, that the proof of service is insufficient, will not be available to the party appealing, if he fails to allege that service was not, in fact, made (People v. Bancker, 5 N. T. 106). The parties to attend at the time fixed. Parties must be careful to attend at the precise time ; for the judge or officer is not, in strictness, bound to wait beyond the arrival of the precise time appointed, though, in the exercise of his discretion, he may wait longer (Exp. Hagaman, 2 HiU, 415). In the last case, the relator intended to oppose the discharge, but did not arrive at the commissioner's office till from five to fif- teen minutes after the hour of ten. In the meantime, the commis- sioner had verbally ordered an assignment, and began to sign his name to 'the written order. He had signed the initial of his first PROVISIONS RELATING; TO COURTS OF RECORD. 121 name. At this stage, the relator applied for leave to oppose the discharge; the commissioner refused to hear him, on the ground that it was too late ; held, not an error which could be reviewed on certiorari. What is an appearance by the prisoner. See ante, page 83. Any creditor may oppose such application. § 21. [Sec. 15.] Any creditor of such 'petitioner may oppose such application, and may examine the petitioner, his wife, or any other witness, in the manner prescribed in the third article of the afore- said first title and fifth chapter, and shall be entitled to the like process to compel their attendance and testimony ; and such witnesses shall, in all respects, be subject to the provisions of the seventh article of the said title, for their neglect to obey subpoenas, or to testify. 1. The examination of the applicant, however, shall not prevent the creditor from impeaching, by any other testimony, the fairness of the proceedings. 2. The officer hearing the petition may issue a subpoena for the wife of the petitioner, or any other witness, which may be enforced by an attachment, and if the wife be absent from the State, an order to produce her may be obtained (Vide 3 JR. 8. 6 ed. pp. 16, 17, §§ 25, 26). 3. If the non-resident wife do not appear at the time and place specified in the order, the applicant shall not be entitled to his dis- charge, unless he shall prove, to the satisfaction of the officer, thu 122 PROVISIONS RELATING TO COURTS OF RECORD. he was unable to procure the attendance of hia wife for the purpose of being examined (Jh.). The following are the statutory provisions above referred to (art. 3, tit. 1, c. 5). § 25. [Sec. 20.] Upon the application of any creditor of such insolvent, the officer who made the order for publication of notice, may at any time, not less than three weeks previous to the day or term fixed for the hearing of such petition, by written order, require the insolvent to bring before such officer or before the court, at the time appointed for the hearing, the wife of such insolvent, if she do not reside within this State, to the end that she may be exam- ined as a witness. § 26. [Sec. 21.] If such nonresident wife do not attend at the time and place specified in such order, the insolvent shall not be entitled to his discharge, unless he shall prove, to the satisfaction of such court or officer, that he was unable to procure the attend- ance of his wife, for the purpose of being examined. § 27. [Sec. 22.] At the hearing of any such petition before a jury or otherwise, the insolvent may be examined on oath, at the instance of any creditor, touching his estate or debts, or any matter stated in his schedule ; and may be required to state any changes that have occurred in the situation of his property, since the mak- ing of such schedule, and particularly whether he has collected any debts or demands, or made any transfers of any part of his real or personal estate. But this section shall not be construed to prevent any such creditor from contradicting or impeaching, by other competent testimony, any evidence given by such insolvent. Extent of examination allowed. Section 42 of the Stilwell Act (formerly 29), see post, provides PROVISIONS RELATING TO OOtTRTS Off RECORD. 123 that " No person shall be excused from answering any bill in equity seeking a discovery in relation to any fraud prohibited by this act, or from answering as a witness in relation to any such fraud ; but no such answer shall be used in evidence, in any other suit or' pros- ecution." Section 292 of the Code of Procedure, still in force, provides that " No person shall, on examination, pursuant to this chapter, be excused from answering any question on the ground that his exam- ination will tend to convict him of the commission of a fraud; but his answer shall not be used as evidence against him in any crim- inal proceeding or prosecution. Nor shall he be excused from answering any question on the ground that he has, before the examination, executed any conveyance, assignment, or transfer of his property for any purpose, but his answer shall not be used as evidence against him in any criminal proceeding or prosecution." In People v. Speir (12 Sun, 70), it was held that the testimony of a debtor, taken upon his examination in supplementary proceed- ings, may be used as evidence of his fraud, to obtain a warrant of arrest under the non-imprisonment act, and it was also held that the proceedings under the non-imprisonment act are not criminal proceedings within the rule as to the privilege of a witness (People v. Speir, supra; reversing Keily v. Dusenbury, 2 Abb. New Oas. 360). The above decision in 12 Hun, 70, has lately been reversed in court of appeals, but upon other grounds (see ante, p. 46). But such testimony cannot be used against a party on an indict- ment against him for false pretenses (Barber «. People, 17 Hun, 366), nor in a prosecution for a misdemeanor in disposing of his property, with intent to defraud his creditors (People v. Under- wood, 16 Wend. 546). 124 PROVISIONS RELATING TO COURTS Of RECORD. Witnesses. The folio-wing provisions of the Revised Statutes (article 7 of title 1 of chap. 5, 3 R. 8. 6 ed. p. 30, §§ 13, 14, 15, 16), are, by preceding section 21 (formerly § 15) of the Stilwell Act, made applicable to such proceedings, and are therefore inserted (see also ante, p. 84). § 13. On the hearing of any petition under the third, fourth, fifth, or sixth articles of this title, the officer or court before whom the same may be pending may adjourn the same from time to time, and may issue a subpoena, requiring the wife of the debtor, or any other person, whether an opposing creditor or not, to appear and testify concerning the subject matter; and the debtor, and any creditor, may in all cases be examined at the instance of any cred- itor in any proceedings under those articles. § 14. The appearance of every person duly subpoenaed and neglecting or refusing to appear, may be enforced by attachments to be issued by such officer or court ; and if, after appearance, any such person shall refuse to testify, he shall be committed to prison, until he submit. § 15. Every person disobeying such subpoena willfully, shall for- feit one hundred and twenty-five dollars, to be recovered by, and in the name of, the party at whose instance he was subpoenaed. § 16. Whenever any hearing shall be had before any officer, singly, or before him and a jury, or before a court, under any of the provisions of this title, it shall be the duty of such officer, or of the presiding judge of the court, to keep minutes of the material parts of the testimony delivered before him, and of the examinations of any debtor. provisions Relating to courts oj? record. 125 Officer may adjourn hearing for thirty days.— What the oppos- ing creditor must do at the hearing. § 22. [Sec. 16. J Upon sufficient cause shown by the petitioner, or by any creditor, the officer to whom such petition is addressed may adjourn the hearing thereof, not exceeding thirty days ; and if, at any hearing of such petition, the opposing creditor shall fail to satisfy such officer that the proceedings on the part of the petitioner are not just and fair, or that he has concealed, removed, or disposed of any of his property, with intent to defraud his creditors ; such officer shall order an assignment of all the property of such petitioner, in the same manner as provided in the fifth article of the first title of the fifth chapter of the second part of the Eevised Statutes, except such as is therein exempt ; which assignment shall be executed with the like effect as declared in the said article, and shall be recorded in the same man- ner. Adjournments. The judge does not lose his jurisdiction by adjourning more than thirty days, upon the consent of both parties (Mnller a. Behr- man, Lalor's Sup. H. & D. 81). One who has given the bond required by subd. 4 of section 10 [now 15], conditioned that he shall apply, within thirty days, for a discharge, may apply after the lapse of thirty days. The jurisdic- tion of the officer to entertain the application, is not limited by the 126 PROVISIONS RELATING To OOtTRTS OF RECORD. condition of the bond (Matter of Bradlie, 1 Edm. 262). In such a case the bond, however, may, perhaps, be forfeited (see 5 N. T. Leg. Obs. 227; 62 K Y. 275). On the adjourned day, the debtor, who had given bond to appear then, was present before the officer, but by an arrangement with the creditor, in the absence of his sureties, did not answer, and his default was then entered. Seld, that the bond was for- feited. Appearance does not mean mere bodily appearance. The debtor must render himself before the officer to answer the proceed- ings (People ». Wilgus, 5 Den. 58). The opposing creditor must satisfy the officer that the peti- tioner's proceedings are not " just and fair." I. At the hearing, the burden is thrown on the opposing cred- itor, of establishing, by proof, satisfactory reasons why the dis- charge should not be granted ; in this respect this act is different from the construction usually given to the insolvent laws. They seem to require that it should appear affirmatively on the part of the petitioner, that his proceedings have been fair, and his conduct honest. The act under consideration, however, presumes, in the absence of proof to the contrary, that the petitioner's proceedings have been honest, and provides that '■ if the opposing creditor shall fail to satisfy the officer that they are not just aDd fair, &c," he shall order an assignment. As to what proceedings are "just and fair," see ante, pp. 87, 88. As no jury is mentioned in the act, nor any allusion made to their verdict, and as it is provided that "the officer " to whom the application is to be made, shall be satisfied of the reasons against a discharge, it is presumed that no jury can be summoned (Spencer's Pr. Direc. 11, 12; QrahartCs Pr. 475, ed. of 1836; Clarke®. Wright, 10 Wend. 595). PROVISIONS RELATING- TO COTTRTS OF RECORD. 127 II. The opposing creditor must establish either of two points. 1. That the proceedings are not just and fair. Accidental omissions, and imperfections which do not appear to have arisen with a fraudulent intent, will not prevent the discharge of the petitioner, but the defects will be supplied by the officer at the hearing (Brodie & Denniston v. Stephens, 2 Johns. 289 ; Matter of Andriot, 2 Daly, 28 ; People v. Behrman, Sill & Den. Supplt. 81). If the specification of the cause and the consideration of the debts due and owing the insolvent, set forth in his inventory, according to the statute, fairly apprise the creditors of the general ground of indebtedness, so as to give them a clue to inquiry, it is sufficient (Taylor v. Williams, 20 Johns. 21 ; Ayres v. Scribner, 17 Wend. 407; McNair v. Gilbert, 3 Id. 344; Slidell «. Crea, 1 Id. 156). 2. Or that he has concealed, removed, or disposed of his prop- erty, with intent to defraud his creditors. Under this head, the inquiry is very simple. If the property has been concealed, removed, or disposed of, the intent to defraud creditors will generally be inferred from the fact of such concealment, &c, unless the circumstances are such as to repel any inference of that nature (see Krauth v. Vial, 10 Abb. Pr. 139), while the preference of a creditor, by the payment of his debt, in money or property, or the securing it by judgment, mortgage, or otherwise, is not necessarily a disposition of property, "with intent to defraud" a creditor (6 Cow. 284; 5 Id. 547); still, the debtor cannot defeat the right of the pursuing creditor under this act by fraudulent acts in favor of creditors (see Wood v. Boland, 8 Paige, 556 ; In re Hurst, 7 Wend. 239). The fact of removal is, to an extent, the criterion of fraud, be- cause, if the property remains under the control of the debtor, noth- 128 PROVISIONS RELATING TO COURTS OF RECORD. ing prevents a levy under an execution, or a seizure under the assignment referred to in the subsequent section, whereby the creditor may obtain satisfaction of his claim, since any prior transfer which might exist would be avoided, by the want of change of possession. The assignment. 1. Shall embrace all the defendant's estate, both in law and equity, in possession, reversion, and remainder, excepting from the articles mentioned in his inventory, such articles of wearing apparel and bedding as, in the opinion of such officer, shall be reasonable and necessary for such defendant and his family to retain, and also the arms and accoutrements required by law to be provided by any citizen enrolled in the militia (3 R. 8. 6 ed. p. 24, §§ 8, 9, 10; Id. p. 17, §30; p. 18, §§32, 33, 34). Such assignment shall vest, in the assignees, all the interest of such insolvent at the time of executing the same, in any estate or property, real or personal, whether such interest be legal or equita- ble ; but no contingent interest shall pass to the assignees by virtue of such assignment, unless the same shall become vested within three years after the making of the assignment ; and in case of its becoming so vested, it shall pass to the assignees in the same man- ner as it would have vested in such insolvent had no assignment been made by him (3 R. 8. 6 ed. p. 18, § 33). Property held in trust, however, does not pass (2 Ves. 286; 5 Term R. 215; 6 Id. 695; Kep v. Bank of New York, 10 Johns. 64, and see Id. 294). The assignment is for the benefit of the creditor who institutes the proceeding, and not for the creditors generally. The provisions of the act show that the proceeding is in behalf and for the benefit of the original prosecuting creditor. If his debt is paid or secured, the proceedings are at an end; the security is to him alone (§ 10, PROVISIONS RELATING TO COURTS OF RECORD. 129 now 15); he alone is to have notice of the proceeding for discharg- ing (§ 14, now 20) ; he alone can prosecute the bond (§ 24, now 33) ; and the debtor may be discharged on special bail in the creditor's suit (Spear v. "Wardell, 1 If. T. 144, and see ante, p. 100). Reservation of certain articles. The court or officer before whom the application is pending, may except from the articles mentioned in the inventory, such articles of wearing apparel and bedding as, in the opinion of such court or officer, shall be reasonable and necessary for such insolvent and his family to retain, and also the arms and accouterments required by law to be provided by any citizen enrolled in the militia (3 M. S. 6 ed. p. 17, § 30). When to commit. Though the defendant delivered an inventory, and actually assigned under a provisional order, — Held, that the officer, if satis- fied that his proceedings were not just and fair, must commit him (Clarke v. Wright, 10 Wend. 584). Effect of voluntary assignment pending proceedings under this act. A voluntary assignment, executed by the debtor while the pro- ceeding is pending against him, of all his property, for the benefit of all his creditors, without preference, is a fraud upon the act, and the rights of the prosecuting creditor (Spear v. Wardell, 1 Corns. 144). In above case, held, upon a bill filed by the prosecuting creditor against the debtor and the voluntary assignee, that the voluntary assignment should be allowed to stand, but the assignee should be 9 130 PROVISIONS RELATING TO COURTS OE RECORD. decreed to hold the property assigned, as a trustee for, such creditor to the extent of his demand. Justice Bronson, in the case just cited, said that, "Although the complainants acquired no lien upon the property by commencing proceedings under the act, they acquired the right to a preference over the other creditors, which could not be defeated by a voluntary assignment." Form of order for assignment. Title of court and of action. . Order, &c. The above named defendant, having appeared in court on the prayer of his position, addressed to said court, agreeably to a rule for such purpose made, pursuant to the provisions of the stat- ute entitled "An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors," and the court having heard and ex- amined the allegations and proofs of the said parties, and being satisfied that the petition and account of the prisoner are correct, and that the proceedings on the part of the said defendant are just and fair, on motion of Mr. , of counsel for the said prisoner, ordered, that all the estate of the said defendant, both in law and in equity, in possession, reversion, or remainder, except the articles which are by law exempt from execution, be assigned to , for the benefit of the plain tiff above named. Dated the day of , 188 . Form of assignment. [Title of court and of action.] Know all men by these presents, that I, f the PROVISIONS RELATING TO COURTS OF RECORD. 131 defendant above named, for and in consideration of the premises, and in pursuance of the statute entitled "An Act to Abolish Impris- onment for Debt, and to Punish Fraudulent Debtors," and pursuant to the order made herein, directing this assignment, have assigned, transferred, and set over, and by these presents do assign, transfer, and set over, unto , all my estate, both in law and in equity, in possession, reversion, and remainder (except the articles exempted by said order) : to have and to hold the same unto the said , his successors or assigns, for the benefit of the plaintiff above named, according to the provisions of said act. In witness whereof, I have hereunto set my hand and seal, the day of , one thousand eight hundred and eighty [L. S.] Sealed and delivered in the presence of Usual acknowledgment. Assignment to be recorded. The assignment must be recorded with the county clerk (3 S. 8. 6 ed. p. 18, § 34). Assignees may be appointed. — Certificate and discharge. § 23. [Sec. 17.] Such, officer shall appoint one or more assignees, to whom such petitioner shall assign all his estate; and upon producing to such officer evidence that sach assignment has been re- corded, and a certificate of the assignees, that all the property of such petitioner specified in his inventory has been delivered to them, or that he has given sat- isfactory security for the future delivery of the same, 132 PROVISIONS RELATING TO COURTS OF RECORD. such officer shall grant to the petitioner a discharge, which shall exonerate him from being proceeded against by any creditor entitled to a dividend of the estate of such petitioner, as hereinafter provided, under the third, fourth, fifth, sixth, seventh, eighth, and ninth sections of this act, for any fraud com- mitted or intended before such discharge. Oath of assignee. [Title of court and of action.] I, , having been appointed assignee of , the defendant above named, do swear that I will well and truly execute the trust by that appointment reposed in me, according to the best- of my skill and understanding. Sworn before me, this day of , 188 . To be filed with the court or officer who made the appointment (3 B. 8. p. 36, § 7). Certificate of assignees. If the certificate of assignment states that "all his estate, both in law and equity, in possession, remainder, and reversion, has been assigned," it is sufficient (Roosevelt ». Kellogg, 20 Johns. 208). Effect of oath of office. In all proceedings and suits in relation to the debtor's estate, proof of all the facts requisite to show that the estate became vested in the trustees, even to the taking of the required oath, must be distinctly alleged and proven ; presumption will not be indulged in; for, until they take the oath, they do not become vested with the estate (Hoagfl. Hoag, 35 N. T. 469, 474; Rockwell v. Brown, 43 Mow. Pr. 227). PROVISIONS RELATING TO COURTS OF RECORD. 133 Modes of discharge. The act of 1831 (section 9, now 14) declares that the defendant shall remain in custody until discharged according to its provisions. He cannot, therefore, be discharged under the provisions of the statute relating to voluntary assignments (People v. O'Brien, 5 Abb. 2V. S. 223). Form of discharge under section 23 [17]. [To be varied to suit the particular case]. To all to whom these presents shall come, send greeting. Whereas (here are to be inserted the recitals which give the officer jurisdiction) , did present a petition to me, praying that Ms property might be assigned, and that he might have the benefit of the provisions of an act entitled, "An Act to Abolish Imprison- ment for Debt," &c, which petition contained an account of his creditors, and an inventory of his estate, verified by an affidavit thereto annexed, subscribed by him, and duly verified ; and whereas he also produced satisfactory proof that a copy of the said petition, account and inventory had been served on the creditor in the said petition named, with notice of the time and place of presenting the same to me, as required by law ; and I, being satisfied that the pro- ceedings on the part of the petitioner were just and fair, and that he had not concealed, removed, or disposed of any of his property, with intent to defraud his creditors, and that he had, in all other respects, conformed to the provisions of the said act, and of the acts amendatory thereof; ordered, that the said petitioner make an assignment of all his property, except such articles as are by law exempt from execution, to assignee appointed by me ; and the said petitioner having made such assignment, and produced evidence that the assignment so made was recorded in the office of the clerk of this county, and also produced a certificate of the assignee, that 134 PROVISIONS RELATING TO OOUKTS OF RECORD. the property of the petitioner, specified in his inventory, had been delivered to the said assignee (or that satisfactory security had been given for the future delivery of the same) ; Now, therefore, know ye, that by virtue of the power and authority in me vested, and in pursuance of the provisions of the said act, I do grant this discharge, to exonerate the said petitioner from being proceeded against by any creditor entitled to a divi- dend of his estate. Given under my hand the day of , one thousand eight hundred and eighty Suggestion. The jurisdictional facts must be recited (Bullymore v. Cooper, 46 N. T. 236). In order to show jurisdiction on the face of the discharge, it must therein appear that the debtor has either been committed to jail, under section 9 (now 14) of the act, or has given the bond specified in subdivision 4 of section 10 (now 15), or that a suit has been commenced against him in a court of record, in which, by the provisions of the said act, he cannot be arrested or imprisoned ; and any other necessary fact required by the provision of the act under which the defendant was arrested. Discharge on special bail. See section 24, post. Provision on putting in and perfecting special bail. § 24. [Sec. 21. J Any person who may have been arrested or imprisoned as a fraudulent debtor, by the order of any judge or other officer, under and by PROVISIONS RELATING TO COURTS OF RECORD. 135 virtue of the "Aet to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831, and who shall have been adjudged guilty of either of the frauds specified in the fourth [now 8th] section of the said act, in addition to the case provided for by the seventeenth [now 23d] section of the said act, shall also be entitled to the discharge provided for by the said section, upon his putting in and perfecting special bail in any suit which shall have been commenced against him by the creditor upon whose complaint he may have been arrested, whether a judgment or decree shall have been ob- tained therein or not. \L. 1845, c. 214, p. 238, § 19.] Special bail limited to certain cases. By section 26, post, the right of giving special bail is limited to the fourth subdivision of section 4 (now 8, ante, p. 46), where the gravamen of the action is ' ' that the defendant fraudulently con- tracted the debt or incurred the obligation, respecting which such suit is brought." Liability to imprisonment on execution issued. Section 25, post, provides that "any person who may have put in and perfected special bail in any suit, pursuant to the provisions of section 24, supra, shall be liable to be imprisoned upon any execution to be issued against his body in such suit, in the same manner as though the act hereby amended had not been passed." 136 PROVISIONS RELATING TO COURTS OF RECORD. The act not repealed. The Stilwell Act is a special proceeding prescribed by statute, and has not been superseded by the Code (see ante, p. 26, and 6 Alb. N. 8. 63), and all its provisions are in force, and must be fol- lowed. Meaning of "special bail." At the time section 24, supra, was passed [1845] the term, " special bail," had a well-known signification. Graham's Practice, ed. of 1836, at p. 176, treats of it. Dunlap, in his Practice (ed. of 1821, vol. 1, p. 169), speaks of it. (See also 1 BurrilVs Pr. 107.) TillinghasVs Forms (ed. of 1830, p. 132), gives the following form of a special bail-piece. General form of special bail-piece. [Title of court.] Of the term of May, in the year one thousand eight hundred and City and County of New York, ss. : C. D. is delivered to bail, to J. K. of , and L. M. of , at the suit of A. B., in a plea of trespass on the case [or as the action is]. J. K. L. M. E. F., Attorney for defendant. Taken and acknowledged, this day of , 188 , before me. Form as applied to the Stilwell Act. The above form should be followed, as near as may be, because the act [§ 21, now 24] has reference to that form of obligation and no other. PROVISIONS RELATING TO COURTS OF RECORD. 137 If the undertaking exacted from the prisoner be that prescribed by section 575 of the Code of Civil Procedure, and lie is made subject to the various provisions of the Code respecting bail, the obligation so exacted may be open to objection under the following statute : "No sheriff or other officer shall take any bond, obligation or security, by color of his office, in any other case or manner than such as are provided by law; and any such bond, obligation or security, taken otherwise than as herein directed, shall be void " (2 R. 8. 286, § 59; 3 Id. 448, § 49, 6 ed.) The court in one case (2 Abb. New Oases, 201) thought it better to have the old bail-piece, as well as an undertaking under the Code. But this is not deciding the question. One of the two is proper, and the other unnecessary, and the unnecessary one should not be exacted. The following form of bail-piece is therefore recommended. [Title of court.] A. B. against CD. Of the term of , in the year A. D. 188 . City and County of New York, ss. : The said C. D. is delivered to bail, to J. K., of No. street, in the city of New York, and L. M., of No. street, in said city, at the suit of A. B., in an action wherein the debt or demand claimed amounts to $ , with interest, and in which the defendant has been adjudged guilty of a violation of subdivision 4 of section four [now eight] of an act entitled "An Act to Abolish Imprisonment for Debt and to Punish Fraudulent 138 PROVISIONS RELATING TO COURTS OF RECORD Debtors," passed April 26, 1831, and the acts amendatory thereof, and is given to put in and perfect special bail, under section 21 (now 24) of the said act, and the said J. K. and L. M., to secure to the said C. D. the benefit of the provisions of the said section, hereby bind themselves, jointly and severally, in the manner and to the extent contemplated by the provisions of the said act, and the amendments thereto. Dated; New York, , 188 . J. K. L. M. Suggestions as to bond. The usual affidavit of justification and form of acknowledg- ment had better be attached. The general qualification of bail is, that they should be residents of, and housekeepers or freeholders, within the State, and respectively worth double the amount for which the defendant is held to bail, after payment of all their debts (1 Eunlap's Pr. 170 ; Code of Civil Pro. § 579). The bail- piece should be filed with the clerk of the court (Dunlap, supra, p. 174). Notice of the filing should be given (Id. 175), for the bail may be excepted to (Id. 176), and be required to justify (lb.). The practice in regard to the filing and justification of such bail will be found fully stated in the work just cited, and in Graham's Pr., 2 ed. pp. 176 to 187. The liability of such bail, and the mode of enforcing it, is there considered. Who to take the acknowledgment. The bail-piece may be taken before a justice of the court, circuit judge, judge of a county court, commissioner of deeds, notary public or other person authorized to take acknowledgments (Gra- ham's Pr. 2 ed. p. 177). PRO VISIONS RELATING TO COURTS OF RECORD. 139 Moaning' of the term bail. Bail, to set at liberty a person arrested or imprisoned, on security being taken for his appearance on a day and at a place certain, which security is called bail ; because the party arrested or imprisoned is delivered into the hands of those who bind them- selves for his forthcoming, in order that he may be safely protected from prison. The bail refer to the sureties, and they become, in law, the jailors of the debtor. His custody is committed to them, and they may take him on a Sunday and confine him until the next day, and then render him into the custody of the sheriff. The word "bail " is never used with a plural termination. The bail have their principal always upon a string, and may pull the string whenever they please (Anonymous, 6 Modern JR. 231 ; French's Case, Id. 247). Liability to imprisonment on execution issued. § 25. Any person who may have put in and. per- fected special bail in any suit, pursuant to the pro- visions of the foregoing section, shall be liable to be imprisoned upon any execution to be issued against his body in such suit, in the same manner as though the act hereby amended had not been passed. [L. 1845, p. 239.] First section of act of 1845 not to apply to certain cases. § 26. The first section of the act passed May 13, 1845, entitled " An Act further to amend the Act to 140 PKOVISIONB RELATING TO COUBTS OF EECOED. Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831, shall not apply to the case of a person arrested or impris- oned for either of the frauds specified in either of the first three subdivisions of the fourth [now eighth] section of the "Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors," passed April 26, 1831. \L. 1846, c. 209, p. 255.] The first section of the act of 1845, above referred to, is section 24 of the present act, ante, pp. 134, 135, and the exceptional cases above referred to (subd. 1, 2, and 3 of section 8, as explained in a note to section 24, supra). Eights, power, and duty of assignees. § 27. [Sec. 18.] The assignees to whom such assignment shall be made, shall be vested with all the rights and powers over the property so assigned, which are specified in the eighth article of the first title of chapter five of the second part of the Revised Statutes, and shall be subject to the same duties, obligations, and control, in all respects, and shall make dividends ; and vacancies in their number shall be supplied as therein directed. Article 8 of title 1 of chapter 5 above referred to will be found in 3 B. 8. 6 ed. p. 35. General Provisions. § 28. [Sec. 19.] The general provisions applicable PROVISIONS RELATING TO COURTS OF RECORD. 141 to proceedings under the several articles of the said first title, and which are contained in the seventh article of the said title, shall be deemed to apply to the proceedings herein directed, so far as the same are not inconsistent with the provisions of this act ; and the officers and assignees performing any duties under this act, shall be entitled, for their services, to the same fees and compensation as are provided by law for similar services under the fifth article of the aforesaid title of chapter five, and as are provided by law for services in criminal cases. Find article 7, above referred to, in 3 S. S. 6 ed. p. 28. Find article 5, above referred to, in 3 S. 8. 6 ed. p. 23. Applicable to debt alone. The act abolishing imprisonment for debt was intended to pre- vent arrests for debt alone, but continuing the power to arrest for wrongs affecting contracts (Nat. Bk. of Commonwealth «. Temple, 2 Sweeny, 344; and see ante, p. 46). Imprisonment for costs. The non-imprisonment act, abolishing imprisonment for failure to pay costs, has no application to the case of a judgment debtor in supplementary proceedings, in contempt for not paying a judgment and costs under an order previously granted (People ex rel. Kearney v. Kelly, 22 How. Pr. 309; 13 Abb. Pr. 459). Attorneys in these proceedings. An attorney who is retained to collect a demand, after prose- 142 PROVISIONS RELATING TO COURTS OF RECORD. cuting it to judgment, has, by such general retainer, authority to take any and every necessary step to subject the party against whom the demand is, to the provisions of the act of 1831, and to force the payment of the demand. The client is, in such a case, bound by the acts of his attorney (Stewart v. Biddlecum, 2 Corns. 103). In above case the attorney, after judgment, made a demand upon the judgment debtor to apply certain choses in action to the payment of the judgment. Held, sufficient {lb-). It is within the scope of the powers of the attorney to institute all such further proceedings as are necessary to render the judgment effectual to the creditor in the recovery of his debt (See Herd v. Lodge, 20 Pick. 53). Proceedings in cases of persons when the act takes effect. § 29. [Sec. 20. J Every person imprisoned on civil process, at the time of this act taking effect as a law, in any case where, by the preceding provisions of this act, such person could not be arrested or impris- oned, shall be entitled to be discharged at the expira- tion of three months after this act»shall take effect as a law, unless the creditor at whose suit such person shall be imprisoned, shall, within the time aforesaid, make application and complaint to some judge of the court in which such suit was brought, or to some officer authorized to perform the duties of such judge, as specified in the third [now 6th] and fourth [now 8th] sections of this act ; and upon such application being made, if a warrant is not issued as herein pro- PROVISIONS RELATING TO COURTS OF RECORD. 143 vided, such imprisoned person shall be entitled to be discharged from imprisonment ; and if such warrant be granted, the same proceedings shall be had there- on, as hereinbefore provided ; and the removal of the defendant from any jail in which he may be impris- oned by any warrant in such proceedings, shall not be deemed an escape. Time the act took effect. The Stilwell Act, when first introduced, had its opponents as well as its supporters, and in order to induce its passage, section 48 of the original act provided that it should not take effect until March 1, 1832. The opponents of the bill evidently hoped, by thi3 delay, to secure the repeal of the bill the following session, and before it went into effect. Mr. Stilwell was re-elected to the session of 1832, and all efforts to repeal the bill proved futile. Certain imprisoned persons may proceed as in sections 18 and 19. § 30. [Sec. 21. J Every person imprisoned, as in the last preceding section specified, may give a notice to the creditors at whose suit he is imprisoned, and present a petition and inventory, as specified in the twelfth [now 18th] and thirteenth [now 19th] sections of this act ; and the same proceedings shall be had thereon as hereinbefore provided, and a discharge granted on such petition as therein directed, shall en- title such petitioner to be discharged from his im- prisonment. 144 PROVISIONS RELATING TO COUBTS OF KECORD. When complainant liable for costs. § 31. [Sec. 22.] Whenever any complaint shall be made under the third [now sixth], fourth [now eighth], and fifth [now ninth] sections of this act, and the same shall be dismissed, the party making the same shall be liable for all fees to officers, and for all costs and expenses which the defendant shall have incurred. As to amount of costs, see section 37, post, and the following note. Spencer, Ch. J., in Spencer v. Hilton (10 Wend. 609), held " that besides fees to officers, the statute allows costs and expenses incurred by the defendant; these terms do not mean all expenses which may be incurred; they mean only taxable costs." Under the recent decisions, a party entitled to costs is also entitled to his necessary disbursements (Peet ». Worth, 1 Bosw. 653), which, under the above section, would be the fees to officers. Costs under the Code. Whichever party succeeds in the action, when tried, becomes entitled to the taxable costs under the Code, which are supposed to be applicable only to the result of the action itself, and not to the mode of termination of this side proceeding in it, i Bond not to apply to property exempted by statute. § 32. [Sec. 23.] Whenever, in this act, the re- moval, concealment, or disposal of any property is PROVISIONS RELATING TO COURTS OF RECORD. 145 declared to be the ground of any complaint or pro- ceeding, and where any bond is required in reference to such, concealment, removal, or disposal, the same shall not be deemed to apply to any property which shall be expressly exempted by statute from levy and sale under execution. Exempt property. The Code of Civil Procedure has modified and altered the law in reference to property exempt from levy and sale under execution (see §§ 1389 to 1404, both inclusive, and the notes thereto). Peculiarities of the law. The New York Times of May 13, 1879, copied the following from the Baltimore American. It is inserted here because it furnishes food for reflection upon some of the peculiarities of the exemption law. The article states that: "On Monday a singular legal seizure was made at Bonnie Brae Cemetery, on the old Frederick Road, which gives a good exhibit of the careful distinction the law sometimes makes in personal rights. The seizure was made by Deputy Sheriff Risteau, of Balti- more county, to satisfy a judgment in the Baltimore city court. " A lot-holder in the cemetery had recently removed thither" the bodies of his relatives from the old Cathedral Cemetery. Around the new graves he had placed new curbing, and upon them new tombstones and marble vases. Payment to the marble-cutter being delayed, suit was entered for the debt, and judgment obtained. The law, however, does not allow ground for appurtenances in a ceme- tery to be seized for debt, and thus the curbing and vases were 10 146 PROVISIONS RELATING TO COURTS OF RECORD. secure from seizure as long as they remained in their positions on the graves. A few days ago, as it happened, the superintendent of the cemetery had some grading done in the vicinity of this lot, and obtained permission from the lot-holder to temporarily remove the curbings, tombstones, and vases. As soon as these were removed from their positions on the graves, they became seizable property, and the marble-cutter, discovering this, had them levied upon by due process of law on Monday. The marble-cutter explains his summary action by the statement that the failure to receive payment for the articles had left him indebted to the firm from which he had purchased the marble. Unless the judgment is settled the articles will be sold at sheriff's sale.'' Amount of recovery when bond is forfeited. § 33. [Sec. 24.] Whenever a bond, given under the tenth [now 15th] section of this act, shall become forfeited by the- non-performance of the condition thereof, the plaintiff shall be entitled to recover thereon the amount due to him, on the judgment obtained in the original suit instituted against the defendant giving such bond. See ante, pp. 83, 120. Not to apply to debts of $50 or under. § 34. [Sec. 25.] The foregoing provisions of this act shall not extend to suits or proceedings before justices' or other courts, for the recovery of any debt or demand of fifty dollars or less. PROVISIONS RELATING TO COURTS Otf RECORD. 147 The above was section 25 of the original act, as passed in 1831. In 1838 (c. 138, § 1), the act was amended. The amendment being the present section 35 of the Stilwell Act, and the above section must be considered as modified by it. Effect of judgment rendered before justice for any sum above $25. § 35. A judgment rendered by and before a justice of the peace for any sum exceeding the sum of twenty -five dollars, exclusive of the costs, a transcript whereof shall have been filed and docketed in the clerk's office pursuant to the provisions of article eight, title four, chapter two, part three of the Ee- vised Statutes, shall be deemed and taken to be a judgment in the county court of the county where such transcript shall have been filed and docketed for all the purposes contemplated by the act entitled "An Act to Abolish Imprisonment for Debt, and to Punish Fraudulent Debtors ;" and the plaintiff may proceed in like manner as if such judgment had been obtained in a county court ; and such plaintiff and defendant shall be entitled to the same rights and privileges as are conferred on parties to suits in courts of record under the last mentioned act and the acts amending the same. [L. 1838, c. 138, § l.J County courts and common pleas. The title of the courts of common pleas throughout the State 148 PROVISIONS RELATING TO COURTS OB 1 RECORD. (except in the county of New York), was, after the constitution of 1846, changed to the county courts (see Judiciary Act of 1847, vol. 1, p. 319, c. 280, §§ 26, 35). So that the terms " court of common pleas" or "county court," wherever they occur in the statutes, are to be read in the light of this circumstance. . (See 56 iV. T. 629.) In the city and county of New York, a judgment for $25 or over, exclusive of costs, the transcript whereof is docketed in the office of the clerk of that county, shall have the same effect as a lien, and be enforced in the same manner as and be deemed a judg- ment of the court of common pleas for the city and county of New York {Code of Procedure, % 68, which has not been repealed by new Code). Evidence of judgment. § 36. Instead of the evidence that the plaintiff has a debt or demand over fifty dollars, as required by the fourth [now eighth] section of the last mentioned act, it shall be sufficient for the plaintiff to adduce such evidence that he has a judgment against the defendant of over twenty-five dollars, exclusive of costs, a transcript whereof has been filed in the clerk's office as aforesaid. [L. 1838, p. 97, c. 138, §2.] Costs, fees, and expenses to be particularized. § 37. The costs, fees, and expenses of the proceed- ings under this act, and under the act last aforesaid, for the arrest and trial of a defendant, shall in all cases be made out by stating the particular charges, and be taxed by the officer before whom such pro- PROVISIONS RELATING TO COURTS OF RECORD. 149 ceedings shall be had : but no counsel, retaining, or trial fee shall be allowed either party ; nor shall the costs in any case be taxed against the opposite party exceed the sum of ten dollars, where the demand claimed by the plaintiff shall exceed fifty dollars, nor more than five dollars where the demand claimed by the plaintiff shall be fifty dollars or less. \L. 1838, c. 138, § 3. J See section 31, ante, p. 144. Provisions extended to Albany, Troy, and Hudson. § 38. All the provisions of the act entitled "An Act in relation to Fraudulent Debtors," passed March 30, 1838, shall extend to judgments rendered before the justices' courts of the cities of Albany, Troy, and Hudson. [L. 1848, c. 48. p. 66.] By the Code of Civil Procedure, the justices' court of the city of Albany is made a court of record (Code of Civ. Pro. § 2). Punishment for removing or secreting property. § 39. [Sec. 26.] Any person who shall remove any of his property out of any county, with intent to prevent the same from being levied upon by any exe- cution, or who shall secrete, assign, or convey, or otherwise dispose of any of his property, with intent to defraud any creditor, or to prevent such property being made liable for the payment of his debts, and 150 PROVISIONS REtATJNG TO COURTS 0$ REOORt). any person who shall receive such property with such intent shall, on conviction, be deemed guilty of a misdemeanor ; and where the property so removed, secreted, concealed, assigned, conveyed, received, or otherwise disposed of, shall be worth fifty dollars or less, such offense may be tried by a court of special sessions of the peace in the manner directed in the third title of chapter second of the fourth part of the Revised Statutes, and in such case, the punishment for such offense shall be limited as prescribed in the said title. See 3 B. 8. 6 ed. p. 100 to 105, §§ 2 to 18, inclusive. I. As to the mode of trial, vide 2 B. 8. 2 ed. 595, 596, 597; 3 Id. 6 ed. pp. 1005, 1006, 1007. II. When convicted, such judgment shall be rendered, and punishment inflicted, by fine or imprisonment, as the nature of the case may admit, but the fine shall in no case exceed $50, nor the imprisonment six months (Ih.). III. The proceedings may be removed into the supreme court by certiorari, to be allowed by one of the justices of the supreme court, of by any officer authorized to perform the duties of such justice in vacation, on the application of the party convicted, or of some one on his behalf, if the same be made within ten days after conviction, and bo accompanied by an affidavit, specifying the supposed errors in the proceedings (2 B. 8. 2 ed. 600; 3 Id. G ed. 1013). Where the defendant shall have been tried by a jury, no cer- tiorari shall be allowed, upon the ground that the verdict of the jury was against evidence (Vanderwerker v. People, 5 Wend. 530; PROVISIONS RELATING TO OOtJETS OP RECORD. 1S1 Ton *. People, 12 Id. 546; 3 J?. 8. 6 ed. § 58, p. 1013; Powers v. People, 4 Johns. 292). But where the trial, in the special sessions, is before the magis- trate, without a jury, the certiorari to the supreme court may re- quire the return of the evidence for the consideration of the superior tribunal (Alkenbrack v. People, 1 Den. 80; Niblo v. Post's Admin- istrators, 25 Wend. 280). IV. In a proceeding under this section, the value of the property removed or secreted, must be stated in the complaint, so that it may affirmatively appear that it does not exceed $50. A complaint that a debtor has removed his property to places unknown, is not equivalent to a charge that he has removed his property out of the county, or secreted the same with intent to defraud, &c. A debtor proceeded against on the ground of having removed his property, is entitled to show that the removal consisted in taking it with him on a change of residence of himself and family, and that his intended removal was communicated to several persons in the place of his former residence. It is not necessary to show that such intended removal came to the knowledge of the complainant (Thomas v. People, 19 Wend. 480). Proceedings in case of conviction for misdemeanor, appoint- ment of trnstees, &c. § 40. [Sec. 27.] Whenever any person shall have been convicted of a misdemeanor under the last pre- ceding section of this act, the same proceedings may be had for the appointment of trustees to take charge of the estate of such person, as are authorized by the second article of the first title of chapter five of the 162 PROVISIONS RELATING TO COURTS OE RECORD. second part of the Revised Statutes ; and the trustees so appointed shall possess all the powers, rights, and authority, be entitled to the same compensation and be subject to the same duties, obligations, and con- trol, in all respects, as trustees appointed under the said second article ; and in addition thereto, if such trustee suspect that the person so convicted has con- cealed about his person or otherwise, money or evi- dences of debt, upon making oath of the same before any judge of a county court, and on such judge being satisfied that such suspicions are well founded, he may issue a warrant authorizing and commanding any sheriff or constable to search the person of such defendant, and any place occupied by him, or any trunk or other article owned or possessed by him, for such money or evidences, and to deliver what shall be so discovered to such trustees. Article 2 of title 1 of chapter 5, above referred to, will be found in 3 R S. 6 ed. p. 23. Misdemeanor defined. A species of crime or offense comprehending all breaches of public law less than felony, as perjury, battery, libels, conspiracies, at- tempts and solicitations to commit felonies, et omne hoc genus, and may be punished by fine or imprisonment, or both {Barb. Cr. Law, 2 ed. 219). The word is generally used in contradistinction to felony. According to Blackstone, crime and misdemeanor, properly speak- ^EOVlStOltS REtAtitfG T?0 OOttRtfS OE* RUOORD. 153 ing, are mere synonymous terms (Bl. Com. lib. 4, c. 1, p. 5; 3 Burns Justice of the Peace, 1008). Misdemeanors have been sometimes termed misprisions (1 Sale, 371, 375). Kinds. Misdemeanors are divided into such as are (1) mala in se, or penal at common law, and such as are (2) mala prohibita, or penal by statute. 1. Whatever mischievously affects the person or property of another, or openly outrages decency, or disturbs public order, or is injurious to public morals, or is a breach of official duty when done corruptly, is the subject of indictment (1 Hawkins'' Pleas of the Crown, c. 5; 1 Russell on Crimes, 46). 2. Misdemeanors which become penal by statute, are of two kinds: first, those which consist in the commission or omission of an act enjoined or forbidden by statute, and which are not made the subject of indictment by statute; and, secondly, those which consist of omission or commission of any act which, by itself, is made specially indictable (1 Archbold Cr. Pr. 7 Am. ed. Water- man's notes, pp. 2, 3, 4). In England, every person convicted of a misdemeanor for which no special punishment is prescribed by law, is liable to fine and punishment, without hard labor (both or either), and to be put under recognizances to keep the peace, and be of good behavior, at the discretion of the court (Stephen's Dig. Cr. L. 14 ; 1 Russell Cr. 92 ; Dunn v. Queen, 12 Q. B. 1041). In this State, when the performance of any act is prohibited by any statute, and no penalty for the violation of such statute is imposed, either in the same section containing the prohibition, or .154 PBOVlStOffS KELATItfG TO COtfltTS OF RECORD. in any other section or statute, the doing such act shall be deemed a misdemeanor (3 B. S. 6 ed. p. 983, § 102). In case of perjury by witnesses. § 41. [Sec. 28.] When it shall appear, to any officer authorized to entertain any proceedings under this act, that any misdemeanor or perjury has been committed by any party or witness, it shall be his duty to take the measures prescribed by law to cause the offender to appear at the proper court having jurisdiction of the offense, to answer for the same. The examination of a debtor proceeded against by warrant under this act, cannot be used in evidence against the debtor, in a prosecution against him for a misdemeanor in disposing of his property, with the intent to defraud his creditors (People v. Under- wood, 16 Wend. 546, and see ante, pp. 122, 123). In case of a bill in equity. § 42. [Sec. 29. J No person shall be excused from answering any bill in equity, seeking a discovery in relation to any fraud prohibited by this act, or from answering as a witness in relation to any such fraud ; but no such answer shall be used in evidence in any other suit or prosecution. This is in accordance with the constitution and the bill of rights, which provide that "no person shall be compelled, in any criminal case, to be a witness against himself" {Constitution of the State of New York, art. 1, § 6; 3 R 8. 6 ed. p. 82). PROVISIONS RELATING TO COCJETS OF RECORD. 155 May bring a writ of habeas corpus or certiorari. § 43. [Sec. 46.] Any person imprisoned on any- process issued out of any court, who shall be entitled to be discharged from such imprisonment under the provisions of this act, may bring a writ of habeas corpus or certiorari for that purpose, in the manner provided in the ninth chapter of the third part of the Revised Statutes. See ante, pp. 106, 107. Act, when to take effect. § 44. [Sec. 48.J This act shall take effect as a law on the first day of March, one thousand eight hun- dred and thirty-two. See note to section 29, ante, p. 143. part n. PROVISIONS RELATING TO JUSTICES' COURTS. Explanatory note. The amendments added to those portions of the non-imprison- ment act applicable to courts of record, have increased the number of sections from 29, contained in the original act, to 44, to be found in Part I. hereof. The sections applicable to justices' courts have been inserted, as they appear in the Revised Statutes (3 H. 8. 6 ed. pp. 433 to 435), with the sections of the original act in brackets. The paucity of notes to the sections relating to justices' courts is accounted for by the fact that the chief object of the present publi- cation is to present the portion of the act applicable to "courts of record," which has not received that frequent interpretation which renders the provisions applicable to justices' courts so per- spicuous. Besides, the sections, decisions, and forms relating to justices' courts, are fully given in Oowen's Treatise [Kingsley's ed. §§ 714, 815, et seq.], and in Benedict's Justice [5 ed. 193-210, et seq.]. Executions, in what form to be issued. § 215. [Sec. 30.] No execution issued on any judgment rendered by any justice of the peace upon any demand arising upon contract, express or ira- [156J PROVISIONS RELATING TO JUSTICES' COURTS. 157 plied, or upon any other judgment founded upon contract, whether issued by such justice or by the clerk of the county, shall contain a clause authoriz- ing an arrest or imprisonment of the person against whom the same shall issue, unless it shall be proved by the affidavit of the person in whose favor such execution shall issue, or that of some other person, to the satisfaction of such clerk or justice, either : 1. That such judgment was for the recovery of money collected by any public officer ; or, 2. For official misconduct or neglect of duty ; or, 3. For damages for misconduct or neglect in any professional employment. \L. 1831, c. 300, § 30 ; as amended by L. 1840, c. 377, § 2 ; 3 2}. 8. 6 ed. p. 433.] 32 Barb. 593; 15 Wend. 479; 15 Barb. 652; 63 Id. 44; 19 Alb. Pr. 73. Warrant, in what cases to issue. § 216. [Sec. 31.] No warrant shall issue against a defendant in any case in which, by the provisions of the last preceding section, an execution on the judg- ment recovered could not be issued against his body ; and whenever a warrant in such case shall issue, the like affidavit shall be required as for the issuing of an execution by the provisions of said section. [3 H. S. 6 ed. p. 433.] 2 Sill, 398; 33 Barb. 593; 15 Werrf. 479; 19 Abb. iV. 73, 158 PROVISIONS RELATING TO JUSTICES' COURTS. In cases of non-resident plaintiffs. § 217. [Sec. 32. J Whenever, by the provisions of the last preceding section, no warrant can issue, and the plaintiff shall be a non-resident of the county, and shall give the like proof of the fact, and tender to the justice the security now required by law to entitle him to a warrant, the justice shall issue a summons, which may be made returnable not less than two nor more than four days from the date thereof, and shall be served at least two days before the time of appearance mentioned therein ; and if the same shall be returned personally served, the same proceedings Shall be had, and no longer ad- journment granted, than in case of a warrant at the instance of a non-resident plaintiff. S3 Barl. 593; 16 Wend. 479, 652; 63 Barb. 44; 19 AW. Pr. 73. Of non-resident defendants. § 218. [Sec. 33.] Whenever, by the provisions of the 30th section of this act, no warrant can issue, [By said section a warrant could issue only where the action was (1) for money collected by a public officer ; (2) for official misconduct or neglect of duty ; (3) for damages for misconduct or neglect in any pro- fessional employment.] and the defendant shall reside out of the county, he shall be proceeded against by summons or attach- PROVISIONS RELATING- TO JUSTICES' COURTS. 159 ment, returnable not less than two, nor more than four days from the date thereof, which shall be served at least two days before the time of appear- ance mentioned therein ; and if such defendant be proeeeded against otherwise, the justice shall have no jurisdiction of the cause. \L. 1831, c. 300, § 33 ; 3 R. S. 6 ed. p. 434, § 218.J Attachments. § 219. [Sec. 34.J In addition to the cases in which suits may now be commenced before justices of the peace by attachment, any suit for the recovery of any debt or damages arising upon any contract, ex- press or implied, or upon any judgment for $100* or less, may be so commenced, whenever it shall satis- factorily appear to said justice that the defendant is about to remove from the county any of his property, with intent to defraud his creditor, or has assigned, disposed of, secreted, or is about to assign, dispose of, or secret any of his property with the like intent, whether such defendant be a resident of this State or not. \L. 1831, c. 300, § 34 ; as amended by L. 1842, c. 107, p. 74. J What cases to be commenced by attachment. § 220. [Sec. 35.] Before any attachment shall issue in such case, or in the cases provided for in article * Increased to $200 ; see Code of Procedure, § 53. 160 PROVISIONS RELATING TO JUSTICES' COURTS. second, title fourth, Chapter second, part third of the Revised Statutes, the plaintiff shall, by his own affi- davit, or that of some other person or persons, prove, to the satisfaction of the justice, the facts and cir- cumstances to entitle him to the same, and that he has such a claim as is specified in the last preceding section, against the defendant, over and above all dis- counts which the defendant may have against him, specifying, as near as may be, the amount of such claim, or the balance thereof ; and such plaintiff, or some one on his behalf, shall also execute, in the cases provided for by this act, a bond, in the penalty of at least one hundred dollars, with such sureties and upon such condition as is required in section twenty-nine of said article ; and so much of said article as requires any other or different proof for the issuing of an attachment than that required by this section, is hereby repealed. [L. 1831, c. 300 ; 3 H. S. 6 ed. p. 434, § 220. J For art. 2, tit. 4, c. 2, pt. 3 of the R. S., see 3 B. 8. 6 ed. 401. Attachments, how served. § 221. [Sec. 36.] Every attachment issued by vir- tue of this act, or of the provisions contained in article second, title fourth, chapter second, part third of the Revised Statutes, shall be served in the manner now provided in said article ; except that if the defendant PROVISIONS RELATING TO JUSTICES' COURTS. 161 can be found in the county, the copy of such attach- ment and inventory shall be served upon him person- ally instead of leaving the same at the place now pre- scribed in said article ; and the return of said officer, in addition to what is now required, shall state specifically whether such copy wasor was not person- ally served upon the defendant. 3 Denio, 317; 15 Barb. 546; 14 Abb. Pr. 238; 19 Id. 73; 2 Hill, 216; 8 Abb. Pr. N. 8. 295; 3 Daly, 211, and see note to the preced- ing section. Proceedings when personally served. § 222. [Sec. 37.] If such attachment was issued in one of the cases provided for by this act, and shall be returned personally served upon the defendant, the justice shall, on the return day, proceed to hear and determine the cause in the same manner as upon a summons returned personally served. Proceedings when defendant cannot be found. § 223. [Sec. 38.] If such attachment was issued in one of the cases provided for by this act, and at the return day it shall appear, by the return, that property was attached, and that a copy of such inventory and attachment was not personally served, and the defendant shall not appear, the plaintiff may take out a summons against the defendant ; and if such summons shall be returned that the defendant ll 162 PROVISIONS RELATING TO JUSTICES' COURTS. cannot be founl after diligent inquiry, or that the same has been personally served upon the defendant, then, in either case, the justice shall proceed to hear and determine the cause in the same manner as upon a summons returned personally served. [L. 1831, c. 300, § 38.] If the attachment proceeding is regular, and is returned person- ally served, the justice cannot supersede the attachment, but must proceed to hear the cause, as on the return of a summons (9 Johns. 130; and see 15 Barb. 546 ; 9 Id. 378; 62 Id. 442; 19 Abb. Pr. 75). Effect of judgment, when defendant not personally served. § 224. [Sec. 39.] A judgment obtained before any justice, in any suit commenced by attachment, when the defendant shall not be personally served with the attachment or summons, and shall not ap- pear, shall be only presumptive evidence of indebted- ness in any suit that may be brought thereon, and may be repelled by the defendant ; and no execution issued upon such judgment shall be levied upon any other property than such as was seized under the attachment issued thereon ; nor shall any defendant, in such case, be barred of any set-off which he may have against the plaintiff. [L. 1831, c. 300, § 39. J Attachments returnable. Against non-residents in not less than two, nor more than four days {Ii. 1831, c. 300, § 33), and against residents under the Revised PROVISIONS RELATING TO JUSTICES' COURTS. 163 Statutes, riot less than six nor more than twelve days (1 Barb. Gh. 571). Condition of bond, when execution cannot be issued against the body. § 225. [Sec. 40.] A defendant, against whose body by the provisions of this act an execution can- not be issued from a justice's court, shall not be required, in order to obtain an adjournment of a cause, to give a bond with the condition now required by law, but, instead thereof, the condition of such bond shall be, that no part of his property liable to be taken on execution shall be removed, secreted, assigned, or in any way disposed of, except the nec- essary support of himself and family, until the plaintiff's demand shall be satisfied, or until the expiration of ten days after such plaintiff shall be entitled to have an execution issued on the judgment obtained iii such cause, if he shall obtain such judg- ment ; and if the condition of such bond be broken, and an execution on such judgment be returned un- satisfied in whole or in part, the plaintiff, in an action on such bond, shall be entitled to recover the amount due on such judgment. 4 Denio, 116. Repeal of three sections of the Revised Statutes. § 226. [Sec. 41. J Sections one hundred and thirty- 164 PROVISIONS RELATING TO JUSTICES' COURTS. seven, one hundred and thirty-eight, and one hun- dred and thirty-nine, of title fourth, chapter second, and part third of the Revised Statutes, are hereby repealed. 13 Barb. 634. Certain provisions of Revised Statutes to apply to this act. § 227. [Sec. 42.] All the provisions of said title fourth, not hereby expressly repealed, and not incon - sistent with the provisions of this act, are hereby declared to be in full force, and to apply to the pro- visions of this act, so far as the same relate to pro- ceedings in courts before justices of the peace. The unrepealed provisions of title fourth are sections 29 to 38, and will be found in 3 B. 8. 6 ed. pp. 404, 405. Marine court, New York. § 228. [Sec. 43.] The provisions of this act, from the twenty-ninth section inclusive, shall apply to executions, warrants, and other process, issued by the marine court in the city of New York, by the assistant justices for wards in the said city, and by the justices of the justices-courts of the city of Albany and of the city of Hudson, and to all pro- ceedings in the said courts, and by the said justices, in the like cases and in the same manner as herein provided in respect to justices of the peace. 11 Barb. 309; see ante, p. 42. MISCELLANEOUS MATTERS. Power of Legislature. The legislature has the power to direct the enforcement of valid judgments by imprisonment, in case property cannot be found (Peo- ple 8. Daniel, 50 If. T. 275). The officer entertaining the proceeding must reside in the county. The application must be made to the officers specified in the act, who are required to reside in the county. Where the proceed- ings are commenced by a justice of the supreme court, another justice holding court in the county is not a " successor in office," of the one before whom the proceedings were commenced, within the meaning of the statute, and unless he possesses the qualification of residence, cannot continue the proceedings {In re Roberts, 70 If. Y. 5). , This decision has reference to proceedings for exoneration and discharge under art. 5, tit. 1, c. 5, 2 R. 8. (3 R. 8. 6 ed. p. 23), and not under the Stilwell Act, and is here inserted because it may be applicable, by analogy, to the petition for discharge under sec- tion 18 of the latter act. Remedy for false arrest. The parties prosecuting proceedings under the Stilwell Act are not required to give an undertaking against damages, as in the case [165] 166 MISCELLANEOUS MATTERS. of areests tinder the Code, and the defendant, if unlawfully impris- oned, must have recourse to an action against the persons causing the imprisonment. If a receiver is the ostensible party liable, the court should, in ordinary cases, provide for the satisfaction of the injured party out of the fund. Leave to sue receiver granted (Keiley v. Dusenbury, 1 Monthly Law Bulletin, 63). Insane debtors to be released. A lunatic, an idiot, or an infant, under the age of fourteen years, if arrested, may be discharged from arrest as a privileged person, in the discretion of the court. The application for his discharge may be made, in his behalf, by a relative, or by any other person whom the court or judge permits to represent him for the purpose {Code of Civ. Pro. § 554). Discharge to recite jurisdictional facts. — Particularity required in proceedings. An order of discharge, issued under the act providing for the discharge of a debtor imprisoned on execution (art. 6, tit. 1, c. 5, part 2, B. 8.), will not per se protect a sheriff acting under it, unless it contain recitals of all the facts necessary to give jurisdiction to the court granting it. It is not sufficient that it shows general jurisdiction of the subject-matter ; but that jurisdiction of the per- son, and of the especial case, was acquired by the taking of the necessary steps presented by the statute to that end. If the order fails in any of these particulars, the facts needful to give jurisdic- tion must be established by proof aliunde. The court does not acquire jurisdiction to issue the order, unless, at the time of the presentation of the petition, there is indorsed thereon an affidavit in the prescribed form, duly sworn to. The omission of an account MISCELLANEOUS MATTEKS. 167 of real and personal estate, as it existed at the time of the debtor's arrest, as required by statute, is not supplied by allegations in the petition, that, prior to the rendition of the judgment, in execution of which the debtor was arrested, he filed his petition in bank- ruptcy, was adjudged a bankrupt, and an assignee of all his prop- erty was appointed (Bullymore v. Cooper, 46 AT. T. 236). Discharge, when it may be set aside. An insolvent discharge will be set aside as fraudulent in law, where the insolvent, in contemplation of obtaining a discharge, confesses a judgment, on which his property is sold, although it be confessed to a trustee for the benefit of all his creditors, without preference; the judgment and sale under it being considered an assignment in fraud of the statute (In re Hurst, 7 Wend. 239). Costs in these proceeding's Must be taxed under the special statute regarding them (see ante, pp. 144, 148, and Matter of Neberzahl, 1 Monthly Law Bulletin, 91). SILAS M. STILWELL. The author of the statute, commonly called the "Stilwell Act," was born in the city of New York, June 6, 1800, was educated at the Kingston Academy, in Ulster County, and subsequently admitted to the bar. He was elected to the State Assembly at the fall election of 1830, and in the session of 1831 he succeeded in securing the passage, by the Assembly, of his favorite measure. The bill was sent to the Senate, and was passed on the last day of the session — and awaited the signature of Governor Throop until the hour for adjournment had arrived. The speaker of the house — General Davis — was persuaded to hold an adjournment after his valedictory had been pronounced, and until the bill was brought in with the governor's signature, when the fact was announced, and the legislature adjourned sine die. The bill became a law April 26, 1831, but by its terms did not take effect until March 1, 1832, a day ever to be remembered by every lover of human rights. Perhaps no law or ordinance has been enacted since the Runnymede magna charta, that has produced such an ameliorating and humanizing effect upon the character and liberties of a people. It was the beginning of a change that is still progressing in favor of the down-trodden unfortunate portion of humanity. It distinguished between misfortune and fraud, and enabled the honest unfortunate to enjoy the same sunshine and liberty that is possessed by the rich and fortunate. At the time the act went into effect there were three thou- sand and sixty-two persons in prison, or on the limits of the prison. More than one thousand were confined for sums less than $100, and [169] 170 SILAS M. 8TILWELL. six hundred and twenty-five for sums less than $50. March 1, 1832, was therefore an occasion for rejoicing among the poor. The author of the law is still living, and has had the satisfaction of knowing that, directly and indirectly, the law for imprisonment for debt has been abolished, or greatly ameliorated, in every State and Territory of the Union. INDEX TO FORMS. [See General Index on Page 173.] PAGE 1. Application for warrant 44 2. Affidavit to accompany application 54 3. Warrant 62 4. Certificate of judge to copy application and affidavits 63 5. Notice to accompany application 64 6. Controverting the creditor's affidavit 70 7. Recognizance on adjournment 71 8. Sureties' consent to adjournment 73 9. Bond under section 12 73, 74 10. Form of subpoena 84 11. Form of commitment 89 12. Security to pay debt 99 13. Bond under subdivision 4 of section 15 103 14. Writ of habeas corpus 107 15. Form of petition under sections 18 and 19 116 16. Form of oath 115 17. Certificate of imprisonment 118 18. Notice of presentation of petition 118 19. Affidavit of service 119 20. Order for assignment 130 21. Assignment 130 22. Oath of assignees 132 23. Certificate of assignees 132 24. Discharge under section 23 133 25. Discharge upon special bail 136, 137 [171] GENERAL INDEX. [See Index of Forms on page 171. — See Index to Sections of the Act in Table of Contents, page v.] PASS Abatement, effect of plaintiff's death 85 Account of debtor's creditors 96, 113 contents of 114 affidavit thereon 115 Act, Stilwell, object of 12, 14, 26, 37, 38, 39, 40, 98 directed against fraudulent debtors 12 not repealed 26 applicable to certain cases 26 applicable to contracts only 46, 141 took effect when 143, 155 both civil and criminal 37, 98 history of 1 to 22 biographical sketch of author of 169 humane as to the honest, and severe on the fraudulent 37, 38, 39, 98 remedial as to the honest debtor 40 an assignee may avail himself of 27 effect of bankruptcy 112 Act, applicable to debts of $50 or over 146 justice's judgment of $25 or over 147 Act of 1813, all debtors were liable to arrest 39 operation on those in jail at time of passage. ; . . . 142 Acknowledged, bonds to be 76 Action, when deemed commenced 37 [173] 174 GENERAL INDEX. PAOfi Action and proceeding may go on together 66, 85, 86 Adjournment, recognizance on 71 consent of sureties to 72, 73 bond to obtain 82 of hearing for thirty days 125 notwithstanding injunction 58, 83 Affidavit, what to state 45, 88 to make out a plain case 88 form of, on application 54 what to contain 54 to 59 controverting facts 70 to accompany warrant 60 sufficiency of. 64 when to be indorsed on petition 114, US of service of notice 119 Agents, when fiduciaries 29 Albany, justices' court of 149 Amending defects 75, 109, 127 Amount of debt must be $50 or over 146 justices' judgment must be $25 or over 147 Appearance of person arrested, what to be done 69 what is contemplated by 83 punctuality required 120 Appeal, review to be by, or by certiorari 89 costs of 98 Application for warrant, to whom made 41 form of 44 must be founded on contract 46 what evidence must accompany 45, 59 of certain sections 105, 109 act to certain cases 26 creditor may oppose 121 Arrest. See Imprisonment. not allowed for costs only 30 under Code, bars remedy 27 provision of Code as to 24 privilege from must be shown 34 GEttEflAL INDEX. 175 PASS Arrest. All debtors liable to arrest under act of 1813 39 remedy for false 165 Arrestable causes not to be united with other causes 28 Arrested. See Impbisonment. person, what to be done with 69 Assignees to be appointed 131 conducting actions liable for costs 132 oath of. 132 certificate of 132 effect of oath of office 132 rights, power and duties 140 may avail themselves of the act 27 Assignment, contemplated by the act, fraudulent debtor can- not make 14, 19 effect of fraudulent transfers . . 15 effect of making before proceedings. 65 with preferences, effect of 87 of debtor's property 96 bond to apply for 96 is for the benefit of the prosecuting creditor. . . . 101 of property, defendant may petition for 110 voluntary under the statute not applicable to this act 40, 112 what to embrace 128 reservation from 129 pending proceedings, effect of 129 order for 129 form of 130 to be recorded 131 Assigned claim may be prosecuted under the act 27 Assumpsit, for not paying over money collected 31 Attachments in justices' court, when to issue '. . 159 how served 160 proceeding on, in suits commenced by. . . . 160 to 164 Attendance, parties to be in at time fixed 120 Attorneys liable to imprisonment 29, 34 so liable for non-payment of certain costs 30 176 GENERAL INDEX. PASS Attorneys when fiduciaries 29 when liable for costs of action 32 misconduct of 31, 32, 34 not public officers 35 cannot discharge defendant 67 power to demand property 59 authority of 142 Auctioneers, when fiduciaries 29 Authority of attorneys. See Attorneys. Bail. See Special Bail; Bonds; Recognizance. meaning of 139 the jailers of the debtor, and have him on a string 139 Bankers, when fiduciaries 30 Bankruptcy, effect of, on act 112 Benefit, for whose benefit proceedings conducted 113 Bill in equity for discovery 154 Bond, want of jurisdiction a defense to 56 under section 12 73, 74 improper, must not be executed 139 See Special Bail. Bonds, difference in 75 when sufficient 75 amending defects in 75 to obtain adjournment 82 apply for assignment 96 not to remove property 96 when obtained by fraud 103 under subd. 4 of section 15, form of 103 to be acknowledged and sureties to justify 76 not to apply to exempt property 144 suggestion as to 138 amount of recovery on, forfeited 146 See Special Bail and Recognizance. Bridewell, history of. See Introduction. Brokers, when fiduciaries ... 30 GENERAL INDEX W PAGE Capias ad satisfaciendum 43 Ca. sa., form of, under the old law 11 Certificate to go on copy affidavits 60 of judge, form of 63 of imprisonment 118 of assignees 131, 133 Certiorari or appeal, review by 89 City Judge has no jurisdiction 42 Civil process defined 24 or criminal, which, under this act 37 et seq. Code, arrest under, bars remedy 27 provision of, as to arrest 24, 25 Commencement of action, what deemed 37 Commission merchants, when fiduciaries 30 Commitment, power to, make 69 of defendant, when to be made 87, 129 fraudulent debtor cannot prevent by making assignment 14, 15 form of 89 particularity required in 91 what is 93 to 95 not to be granted in certain cases 96 Common law, debtors, how treated at 12, 13, 14 Common pleas and county courts 147 Complainant, when liable for costs 144 amount of costs 144, 148, 167 Confessing judgment, effect of 65 Constable may execute warrant 60 how to execute same 68, 69 not to exact improper bond 137 procedure of. See Officer's Procedure. defenses of. See Sheriff. Contempts, arrest for 33, 35 Continuing proceedings before another judge 79 to 82 Constitutionality of act 39, 40, 98, 165 Contract, the demand must be founded on 46 Controverting the facts, defendant may file affidavit 70 12 178 GEtfERAt INDEX. MM Conviction of misdemeanor, provisions concerning 151 Copies of affidavits to be certified 63 Costs, persons not be arrested for 30 when attorneys may be arrested for , 30 judgment for effect of 31 of action, party interested liable for 32 of supplementary proceedings 32, 141 process to collect 32 how taxed 97, 98 of review and appeal 98 when complainant liable for 144 amount of 144, 148 under the Code 144 to be particularized 148 Counselors. See Attohheys. County Courts 147 Courts of record, provisions relating to 23 justices', provisions relating to 156 of record, all have jurisdiction 41 Coverture as a defense 85 Creditors who proceed first entitled to priority 57, 60, 113 swearing falsely, consequences of... 59 account of, by debtor 96 not to be prejudiced by other proceedings 100, 113 may oppose application 121 opposing, what they may do at hearing. 125, 126 Criminal process, prisoners to be detained as on 40, 41, 105 or civil, which under this act 37, et seq. as to the dishonest debtor 40, 41 Custody, criminal 40, 41 See Aeeest. defendant to remain in 105 Duly, Chief Justice, opinion of the act 12 Damages recoverable for escape 67 Ditntorlh, Judge, opinion of the act 46 DeutU of plaintiff, effect of, on proceedings 85 GENERAL INDEX. 179 PA8B Debt, act applicable only to 46, 141 a stringent remedy for the collection of 40 act applies to debts of $50 or over 146 on justices' judgment, $25 or over 1 147 Debtors. See Fraudulent ; Just and Fair. fraudulent act directed against 12 how treated at common law 12 how imprisoned under the old law 11, 13 how sold and ransomed under the old law 20 proceedings must be just and fair 87, 101, 102 honest not to be arrested 39 refusing to apply property 59, 60 insane to be released 166 Defects. See Amendments. Defense, controverting facts 70 coverture as a 85 See Sheriff. Defendants committed to remain as on criminal process 105 procedure, controverting facts 70 giving recognizance for appearance. ... 70 giving bond required by section 12. . 73, 82 paying the debt and costs 96 giving security to pay the debt 96, 99 bond to apply for assignment 96, 97 bond not to remove property, 96, 97, 74 special bail 134 to 136 habeas corpus 106 if unable to endure imprisonment 109 Definition of fieri facias 33 Demand for property, sufficiency of 59 De Toeqneville, opinion of the old law 10 Disbursements. See Costs. Discharge, attorney cannot grant 67 on executing assignment 97, 131 when to apply for 102 on habeas, and grounds of 106, 108 180 GENERAL INDEX. PAGE Discharge, for inability to endure imprisonment 109 modes of 133 no discharge in certain fraudulent cases 18 under section 23, form of 133 suggestion as to 134 defendant entitled to, on complying with the act. . 106 must show jurisdiction 134 to recite jurisdictional facts 166 on special bail 134 modes of 133 of lunatics, idiots, and infants 166 when protection to sheriff 67, 166 may be set aside 167 See Defendant's Procedure. Discovery, bill for 154 Dishonest debtors. See Debtors ; Fraudulent Debtors, &c. act criminal as to 40, 41 Dividends by assignees 140 Dnty, rights, and powers of assignees 140 Election of remedy under this act or the Code 28 Escape, liability for 66, 67 Estate, debtor's, inventory of 96, 113 Evidence to be adduced to officer in support of application, 45, 55 to 59 what to be received 70 minutes to be kept 78 of fraud 87 of judgment 148 when defendant excused from giving 154, 122, 123 See Affidavits. Examination of applicant and of his wife, rules concerning. . . 121 extent of, allowed 122, 123, 154 Exceptions, certain in the act 33 Execution, these proceedings a sort of statutory 113 liability to imprisonment on 135, 139 on justices' judgment 156 GENERAL INDEX 181 PAGE Exempt property, refusal to give up 59, 60 bonds not to apply to 144 what is 145 Expenses. See Costs. Explanatory note 156 Factors, when fiduciaries 30 Fair and just, proceedings of debtor must be. 87, 101, 102, 126, 127 False arrest, remedy for 165 Fiduciary capacity, money received in 29 what constitutes 29 Fieri facias, definition of 33 Fines and penalties, arrest for 33, 35 Forfeited bonds, recovery on 146 Former adjudication 80 Forms. See Index to, on page 171. Fraud, bill in equity to discover 154 how established 87 Frauds 64, 65 Fraudulent disposal of property a misdemeanor 14, 16,151, 152 transfers 15 debtors cannot make the assignment contemplated by the act 14, 19 debtors not entitled to the benefits of the act 101, 102 Fraudulently removing or secreting property, provisions against 149 Gaol, reference to , 1 See Jail. General Provisions 140 Greeks banished their prisoners 19 Guardians, when fiduciaries 30 Habeas corpus, discharge on 106, 155 Hearing, what to be done at 84, 121 to 125 may be adjourned 30 days ,..,...,.,,.. 135 182 GENERAL INDEX. PAGE Hearing:, attendance of parties on 120 History of the law of imprisonment 1 et seq. Honest debtors not to be arrested 39 Hudson, justices' court of 149 Hyde's, Judge, view of the law and of debtors 13 Idiot defendants to be discharged 166 Imprisoned, no one to be, except as provided by law 23, 24 debtors, certain may proceed as provided by sec- tions 18, 19 143, 148 debtors, the general statutes as to do not affect this act 40 Imprisonment for debt an offshoot of English jurisprudence. 6 early history of the law 1 et seq. attorneys and others liable to 29 not allowed for costs. . . , 30, 31 except against attorneys 30 or in supplementary proceedings 141 inability to endure 109 certificate of 118 privilege from, to be shown 34 to be as on criminal process 41 a stringent remedy to collect a debt 40 on execution issued 135, 139 on execution issued, liability to 35 Inability to endure imprisonment ground of discharge 109 Index to sections. See Table of Contents. to forms „ . . 171 Indian's, an opinion of the old law 10 Indictment of fraudulent debtor 16 See Misdemeanor. Infant defendants to be discharged 166 Injunction, effect of, on proceedings 58, 89 Insane defendants to be discharged 166 Inventory of debtor's estate 96, 113 Items of costs to be given , X48 GENERAL INDEX. 183 FAGE Jail limits, what are 95 See Commitment. Joint debtors, proceedings against 60 Judge, prisoner to be brought before 66 power to commit 69, 87 what to do on appearance of defendant 69 what evidence to be received 70 continuing proceedings before another 79 to 82 conducting inquiry, power of 84 to commit defendant to jail 87 when not to commit defendant 96 to reside in the district 165 to keep minutes of the testimony 78 procedure of. See Under the Different Titles. may adjourn hearing 125 Judgment must be founded on contract 46 confessing effect of, on act 65 justices' proceedings on 147, 148 evidence of 148 Jurisdiction, what courts have 41, 42 all courts of record have 41, 42 may be questioned even after bond given 56 effect of want of 57, 58, 64 Just and fair, proceedings of debtor must be 87, 101, 102, 126, 127 Justices' courts, provisions relating to 156 to 164 attachments in 156 to 164 warrants in 156 to 164 judgments, proceedings on 147 Justification of sureties , 76, 138 Law, as to imprisonment. See the Different Titles. Legislature power of, as to imprisonment acts 165 Liberty, the humane sentiment not violated 39, 40 Limits of jail. See Jail Limits. Lunatic defendants to be discharged 166 Mandamus, when it will lie .....89, 106 184 GENERAL INDEX. PASS Marine court has jurisdiction 42, 169 Marry, promise to, arrest for 33 Marshals may execute warrant 60 how to execute same 68, 69 not to exact improper bond 137 procedure. See Opficeb's Procedure. defenses of. See Sheriff. Minutes of testimony to be kept 78 Misconduct of attorney 31, 32, 34, 36 Misdemeanor, what disposition of property amounts to, 14, 16, 151, 152 proceedings on conviction for 151 defined 152 Modes of discharge 133 See Discharge. Moneys collected, arrest for 33 See Fiduciary Capacity; Attorneys; Agents; Brokers, &c. Ne exeat, writ of, abolished 24 Neglect in office, arrest for 33 Non-appearance. See Appearance ; Witnesses. Non-imprisonment act. See Act. Notary, when a fiduciary 30 Note, explanatory 156 Notice of presenting petition 118 of same 119 form of 119 affidavit of service, form of 119 Oath, form of, to petition 115 of assignee, form and effect 132 Object of the act 12, 14, 26, 37, 38, 39, 40, 98 Objections to proof of service 120 See Amendments. Office, neglect in arrest for ,,..,., 33 GENERAL INDEX. 185 rAQB Officer, when liable for want of jurisdiction 58, 64 who to execute warrant 60 how to execute warrant 66 when liable for escape 66, 67 when liable to arrest for money collected 33 See Judge. conducting inquiry, power of 84 not to exact improper bond 137 procedure of, see the various sections, with the notes thereto indexed under the appropriate titles. Omissions, accidental 127 Opposing application, creditor may insist on 121 rights of creditor on hearing 125, 126 Opposition. See Opposing Application. Order for assignment 129 form of 129 Parkins, High Sheriff in Bridewell 1 Part I. of this work 23 II. of this work 156 Particularizing costs 148 Parties to attend at time fixed 120 Partners, proceedings against 60 Pay the debt, the defendant may pay or secure 96 Payment, priority of 100 Penalties for non-attendance of witnesses 85 arrest for 33, 35 aggregated not favored 35 to be proportioned to the offense 35 Penalty and forfeit used interchangeably 35 implies prohibition 35 Perfecting special bail. See Special Bail. Perjury by creditor 59 witnesses 154 Petition for assignment of property 110 contents of 15, 110, 114 sufficiency of 110 186 GENERAL INDEX. FAGB Petition, form of H6 Petitioner's affidavit 115 Plaintiff's procedure. See the Various Titles. death, effect of on proceedings 85 Power of assignees 140 Practice, difficulty in settling 21 Priority of payment, right of diligent creditor 57, 100, 113 Prison. See Jail. Privileged, persons to show how 34 Proceedings in cases of persons in jail when act passed 142 Process, civil, defined 24 to collect costs 32 to be deemed criminal 40, 41, 105 See "Warrant. Professional employment, neglect in arrest for 33 Promise to marry, arrest for 33 Proof of service, objection to 120 See Affidavits ; Evidence. burden on creditor 126 Provisions, general 140 Public officer liable for arrest for moneys collected 33 Punishment for removing or secreting property 149 Ransom of prisoners 20 Recognizance on adjournment 71 what is 76 to.78 to be acknowledged, and sureties to justify by affidavit 76 appearance contemplated by 83 See Special Bail; Bonds. Record, courts of, provisions relating to 73 Recorded; assignment to be 131 Recorder has no jurisdiction 43 Relation, fiduciary, what constitutes 29 Release of certain debtors. See Discharge. Remanding defendant 83 Remedy, arrest under Code bars 27 GENERAL INDEX. 187 FAOH Remedy, remedial as to the honest debtor 40 criminal as to dishonest debtor 40 civil and criminal 37 objects of 14, 26, 37 to 40, 98 stringent to enforce collection of debt 40 Remedial act, as to the honest debtor 40 Removing or secreting property an offense 149 Repealed, the act not 24, 26 Reservation from assignment 129 Residence of parties immaterial 33, 34 Res-judicata 80 ReTiew of the act by Daly, Chief Justice 12 Daotorth, J 46 mode of 89 costs of 98 Revolutionary patriots, act to relieve 11 Roman law against debtors 19 Sale of debtors in olden times 20 Satisfaction out of dishonest debtors in olden times 20 Sections, application of certain ' 105, 139 Index to. See Table of Contents, v. Securing the debt 96 form of 99 Security. See Bonds; Recognizance. Secreting property an offense 149 Service, proof of 119, 120 See Notice. Setting aside discharge 167 Sheriff may execute warrant 60 how to execute warrant 66, 68, 69 defenses of 67 not to exact improper bond 137 Sec Officer. Solicitors. See Attorneys. Special Bail, discharge on 17, 18, 134 limited to certain cases 135 188 GENERAL INDEX. Special Bail, meaning of 136 piece, form of 136, 137 to be acknowledged, and sureties to justify. . 76, 138 suggestions as to 138 See Bonds ; Recognizance. Spencer, John C. and De Tocqueville 11 Statutory execution, a sort of 113 Stilwell, Silas St., sketch of life .... 169 act. See Act. Subpoena, form of 84 effect of 84, 85 Suggestions, effect of 134, 138 Suit. See Action. Supplementary proceedings, costs of 32, 141 Sureties to consent to adjournments 72, 73 to acknowledge bonds and to justify 76, 138 See Bail ; Bonds ; Recognizance ; Security. Talmadge on commitments 91 Tested, writs how 64 Testimony, minutes of to be kept 78 Transfers. See Assignment. Troy, justices' court of 149 Trustees, appointment of 151 Uniting non-arrestable causes of action 28 Vacancy in office of assignee 140 Toluntary assignments 112, 129 statute as to does not affect this act. 40, 112 Waiver of right to object 78 Warrant, when plaintiff may apply for 36 application for, to whom made 41 when to be issued, what to contain, and by whom executed 60 form of 63 GENERAL INDEX. 189 PAGE Warrant, how to be executed by officer 66, 68, 69 affidavits to go with warrant, and certificate to go on copies with notice 60 to 62 in justices' court to issue in certain cases 157, 158 Watch, refusal to give up 59 Wife may be examined 121 Witnesses, subprenas for 84, 124 penalties for non-attendance 85 provisions concerning 84, 85, 124 may be examined 121 extent of examination allowed 122 what to answer 123, 124 perjury by 154 when excused from answering 154 warn •