Imágenes de páginas
PDF
EPUB

L. 1909, ch. 17 Exemption from Arrest and Imprisonment

§ 107

The provisions of sections seventy-six, seventy-seven, and seventy-eight of this chapter apply to the order prescribed in this section, and to the assignment made in pursuance thereof, except that the trustee or trustees must be nominated, as well as appointed, by the court.

This was formerly Code Civ. Proc., § 2194, as added by L. 1880, ch. 178, § 1. Similar provision under article III: see supra, § 75.

"Any fraud or concealment.”- The fraud that renders a discharge void is one done in the proceedings under the statute to obtain a discharge, and not a fraud that has gone before, and in which the making of the debt was involved. Develin v. Cooper, (1881) 84 N. Y. 410, affirming 20 Hun 188.

§ 107. When discharge to be granted; effect thereof.— Upon the production by the petitioner, of the certificates of the trustee or trustees, and the county clerk, to the effect prescribed in section seventy-nine of this chapter, the court must grant to the petitioner a discharge, declaring that the petitioner is forever thereafter exempted from arrest or imprisonment, by reason of any debt due at the time of making the assignment, or contracted before that time, though payable afterwards; or by reason of any liability incurred by him, by making or indorsing a promissory note, or by accepting, drawing, or indorsing a bill of exchange, before the execution of the assignment; or in consequence of the payment, by any party to such a note or bill, of the whole or any part of the money secured thereby, whether the payment is made before or after the execution of the assignment, with the exceptions specified in section one hundred and thirty-eight of this chapter. The discharge shall have the effect therein declared, as prescribed in this section.

This was formerly Code Civ. Proc., § 2195, as added by L. 1880, ch. 178, § 1. Nature of debts within scope of statute.-A discharge under the statute extends to debts in judgment, although rendered in actions for torts. Hayden v. Palmer, (1840) 24 Wend. 364; Ex parte Thayer, (1825) 4 Cow. 66.

[ocr errors]

Acts not preventing discharge. The fact that the insolvent, at some previous time, has conveyed all his property, real and personal, to one who assumed the payment of numerous debts, affords ground for resisting the discharge, but cannot be regarded as fraudulent per se, so as to render it void. Hayden v. Palmer, (1840) 24 Wend. 364. The fact that an insolvent debtor has been imprisoned, in a civil action, for converting money and securities to his own use, while acting in a fiduciary capacity, does not deprive him of the right to be discharged from imprisonment, upon his compliance with the requirements of the statute. Matter of Caamano, (1885) 2 How. Pr. (N. S.) 240, 8 Civ. Pro. 29, distinguishing In re Brady, (1877) 69 N. Y. 215; Suydam v. Belknap, (1880) 20 Hun 87.

Burden of proof.— The burden of proof is upon an opposing creditor to show by competent evidence that the proceedings upon the part of the petitioner are not just and fair. Matter of Benson, (1881) 10 Daly 166.

88 108–111

Exemption from Arrest and Imprisonment L. 1909, ch. 17

§ 108. Discharge and other papers to be recorded. The provisions of section eighty-two of this chapter apply to the discharge, and to the petition and other papers upon which it was granted.

This was formerly Code Civ. Proc., § 2196, as added by L. 1880, ch. 178, § 1.

§ 109. Petitioner to be released from imprisonment.— If, at the time the discharge is granted, the petitioner is imprisoned, by virtue of an execution against his person issued, or of an order of arrest made, in an action or special proceeding founded upon a debt, liability, or judgment, as to which he is exempted from arrest or imprisonment, as prescribed in the last section but one, the officer must forthwith release him, on production of the discharge, or a certified copy of the record thereof.

This was formerly Code Civ. Proc., § 2197, as added by L. 1880, ch. 178, § 1.

§ 110. Debts and demands not affected.-A debt, demand, judgment, or decree, against an insolvent, discharged as prescribed in this article, is not affected or impaired by the discharge; but it remains valid and effectual, against all his property, acquired after the execution of the assignment. The lien, acquired by or under a judgment or decree, upon any property of the insolvent, is not affected by the discharge.

This was formerly Code Civ. Proc., § 2198, as added by L. 1880, ch. 178, § 1.

§ III. Discharge, when void.-A discharge, granted to an insolvent as prescribed in this article, is void, in the same cases, so far as they are applicable, in which a discharge, granted as prescribed in article third of this chapter, is therein. declared to be void; and the validity of such a discharge may be tested in the

same manner.

This was formerly Code Civ. Proc., § 2199, as added by L. 1880, ch. 178, § 1.

ARTICLE 5

JUDGMENT DEBTOR'S DISCHARGE FROM IMPRISONMENT

Section 120. Who may be discharged.

121. To what court application to be made.

122. When petition may be presented.

123. Contents of petition; schedule.

124. Affidavit of petitioner.

125. Notice to creditors.

126. Notice to creditors; when service cannot be made.

127. Notice to creditors; when state a creditor.

128. Proceedings on presentation of petition.

129. Adjournment.

130. Proceedings on adjourned day.

131. Assignment; effect thereof.

132. Discharge; when to be granted.

133. Petitioner's property still liable.

134. When creditor may issue new execution against

person.

135. Powers and duties of trustee.

136. Creditor may notify debtor to apply for discharge.

137. Effect of failure so to apply.

138. Debtors to state or United States not to be dis

charged.

139. Discharge on application of taxpayer.

§ 120. Who may be discharged. A person, imprisoned by virtue of an execution to collect a sum of money, issued in a civil action or special proceeding, may be discharged from the imprisonment, as prescribed in this article. A person who has been admitted to the jail liberties, is deemed to be imprisoned, within the meaning of this article.

This was formerly Code Civ. Proc., § 2200. as added by L. 1880, ch. 178, § 1.

Historical note on legislation for relief of debtors. The statute abolishing imprisonment for debt adopted in 1831, known as the "Stillwell Act," forbids arrest and imprisonment upon civil process in all suits and proceedings founded upon contract, except where the action is brought to recover for a debt fraudulently contracted and like cases, and provides for the application f the debtor's property, if he have any, toward the payment of the frauduently contracted debt, and, if he have no property, for his discharge under hat is known as the "Fourteen Day Act."

§ 120

Debtor's Discharge from Imprisonment

L. 1909, ch. 17

"Prior to the passage of the Stillwell Act there was no distinction, in the law, between one debtor and another, the fraudulent, and the honest but unfortunate debtor were each equally liable to arrest and imprisonment for the failure to pay judgments recovered in civil actions against them. The English process, which we call an execution against the person, or body execution, is intended to confine the debtor until he satisfies the debt. It is not a satisfaction, strictly speaking, but the means of procuring, or rather coercing, satisfaction. Imprisonment is no part of the contract, and a release from imprisonment does not satisfy the debt nor impair the obligation, but leaves it a charge against property. Prior to the adoption, in 1789, of the Fourteen Day Act, re-enacted with modifications in 1801, imprisonment for debt meant perpetual imprisonment, no matter how the debt was contracted, whether honestly or fraudulently, until the debt was paid. As said Lord Hyde (Manby v. Scott, 1 Mod. (Eng.) 132): 'If a man be taken in execution and he lie in prison for debt, neither the plaintiff, at whose suit he was arrested, nor the sheriff who took him, is bound to find him meat, drink, or clothes; but he must live on his own, or on the charity of others, and if no man will relieve him, let him die in the name of God, says the law, and so say I'

"There being no relief for the judgment debtor once imprisoned nor any provision for his maintenance while in prison, the abuse of his power by the over-severe creditor, and the poverty of the people in that early day, induced the adoption of the Fourteen Day Act, which, as modified in 1831, provides for the absolute discharge of the imprisoned debtor, upon petition, after certain specified terms of imprisonment regulated according to the amount of the debt, if he 'be minded to deliver up to the creditor or creditors who shall so charge him in execution all his estate and effects towards satisfaction of the debt or debts with which he stood charged.' The petition, it was provided, should be accompanied by a true account of the debtor's estate, and, if the court so required, as it always did, he must take an oath that the account was, in all respects, just and true, and that he had not at any time or in any manner or way whatsoever disposed of or made over any part of his estate, real or personal, in law or in equity, with the view to the future benefit of himself or family, or with the view or intent to injure or defraud any of his creditors. The Act then provided that if the court should be satisfied that the proceedings on the part of the prisoner were just and fair, it should order an assignment and discharge. This Act made no distinction between classes of debtors, but all were equally entitled to a discharge if their proceedings were just and fair.

66

This Act was again modified in 1833 (1 R. L. 348), and afterwards, with further modifications, became a part of the Revised Statutes (2 R. S. 32-39), but none of these modifications affect in anywise the general scope and theory of the Act. The proceedings upon the part of the debtor have always been required to have been just and fair, and it has always been required that he swear, in substance, that he has not disposed of any part of his property with intent to injure or defraud any creditor." In re Haight, (1886) 11 Civ. Pro. 227.

For a review of the history of legislation for the relief of debtors and of early cases pertaining thereto, see Matter of Andriot, (1867) 2 Daly 28.

Object and spirit of statute." The object of the legislature 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 he found means to discharge the obligation. His

L. 1909, ch. 17 Debtor's Discharge from Imprisonment

§ 120

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 insolvent 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 subject, 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 fraudulent debtor; that subjected to the rigors of imprisonment 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." Matter of Androit, (1867) 2 Daly 28.

The leading object of the statute is to abolish imprisonment for debt, which is thought to be inconsistent with the humane spirit of the present age. Such an act seemed to be called for in this state, when previously to its passage all debtors who had been held to bail must, by the theory of our laws, have been stripped of their property by a writ of fieri facias, before they could be imprisoned; they were then to be imprisoned, not because they would not pay, but because they could not. This state of things exhibited in the most glaring point of view the inhumanity as well as the impolicy of imprisoning an honest debtor; and this is proper to be considered in giving a construction to the statute. The liberation of the person of the debtor is the principal object; the punishment of the fraudulent debtor is only secondary, and as a means of compelling payment, or an honest effort to make satisfaction. Townsend v. Morrell, (1833) 10 Wend. 577.

"The sole object of this statute was the discharge of honest debtors, who made an honest and full surrender of all their property for their creditors. It was not intended to benefit debtors who had disposed of their property for the purpose of defrauding the very creditors at whose suit they were imprisoned." In re Brady, (1877) 69 N. Y. 215, affirming 8 Hun 437.

"The policy and spirit of the insolvent law is, to discharge debtors from imprisonment on their giving up honestly all their property to their creditors." People v. White, (1857) 14 How. Pr. 498.

A debtor who has removed and disposed of his property with the intent to defraud his creditors, and who has been imprisoned therefor, is not entitled to a discharge. In re Brady, (1877) 69 N. Y. 215, affirming 8 Hun 437; Coffin v. Gourlay, (1880) 20 Hun 308.

What creditors may take part in the proceeding. Up to the time when the defendant is convicted before the officer issuing the warrant, no person but the prosecuting creditor has a right to take any part in the proceedings, to exercise any control over them, or to receive any benefit from them; but after such conviction, other creditors may take part, and become interested to this extent: They may oppose the debtor's application for a discharge, and his discharge, when granted, may exonerate him from imprisonment in respect to their claims. From this it would seem that up to the period of the conviction, the proceeding is for the benefit of the prosecuting creditor alone; after an assignment, other creditors may come in and be benefited by it, and if the proceeding goes to the extremity of an indictment for a misdemeanor, all the creditors are benefited and affected by it. In re Prime, (1847) 1 Barb. 296.

Effect of adjudication in bankruptcy.- Where an actual adjudication in bankruptcy has taken place, the provisions relating to the making of assignments for the discharge of the debtor from imprisonment are superseded, and the adjudication discharges him from confinement. Maas v. O'Brien, (1878) 14 Hun 95, wherein the court said: "Under the provisions of section 86, where an imprisoned debtor is discharged under the state

« AnteriorContinuar »