Conroe v. Bull, 7 Wis. 408

Conroe v. Bull

7 Wis. 408 | Wis. | 1859

By the Court,

Cole J.

Although the argument of the counsel for the appellant was quite plausible and ingenious, *411by which he attempted to show that a county judge or court commissioner has authority under Chapter 128, R. S., to entertain proceedings and grant discharges in cases of insolvency, we yet think that this position cannot be sustained. The first section of the act declares that every insolvent debtor may be discharged from his debts, as thereinafter provided, upon executing an assignment of all his property, real and personal for the benefit of his creditors, and upon compliance with the several provisions of the chapter; and it is provided by the second section that such insolvent debtor shall petition a judge of the supreme or circuit court, praying to be discharged in pursuance of the provisions of the act, and shall annex, &c. It will be seen that the statute in express terms confers upon judges of the supreme and circuit courts the power to grant discharges in cases of insolvency without naming county judges or court commissioners, and it appears to us that it would be an unauthorized construction of the statute to say that these latter officers took the power by implication. The rule laid down by the authorities is, that where a new power is given by an affirmative statute, to a certain person, or class of persons, by the designation of those persons, all other persons are in general excluded from the exercise of the power. Foster’s Case, 11 Coke, 56; Dwaris on Statutes, 641, (mar. p;) Smith on Constr. of Statutes, § 580. It was insisted by the counsel for the appellant that by the laws of this state a county judge or court commissioner was clothed with all the powers, and could exercise all the duties of a judge of the circuit court at chambers, and hence it was inferred a county judge or court commissioner could grant discharges in cases of insolvency. It is quite true that the statute provides that the hearing of the matter for discharging insolvents may be had before a judge of the circuit or supreme court, in vacation or out of term, but this is not what is understood to be the ordinary chamber business of a judge in vacation. *412What the ordinary business of a judge at chambers is, can be ascertained by consulting works upon practice. (See 3, Chitty’s Gend Prac., p. 19, et seq.', Graham’s P. 26.) By long established usage a judge of courts of general jurisdiction at common law, performed certain acts at chambers generally relating to the minor practical proceedings which arise in conducting an action or defence. But the power of granting discharges in cases of insolvency is a special power, and derived from the statute. A judge of the supreme or circuit court could not transact this business unless expressly authorized so to do by law. The power to grant discharges in cases of insolvency is conferred upon them alone by the act, and we consider that it would be a very unreasonable and extravagant construction of the act to say that a county judge or court commissioner took the same power by implication.

It follows from what we have said, that the order of the circuit court sustaining the demurrer to the second plea of the appellant, must be affirmed.