10 Wend. 577 | N.Y. Sup. Ct. | 1833
By the Court,
The statute professes to have for its object the abolition of imprisonment for debt, and the punishment of fraudulent debtors. The jftrsi section declares the general principle that no person shall be arrested or imprisoned in a suit founded upon contract. The second makes some exceptions. The third and fourth provide for the issuingof a warrant against fraudulent debtors, and prescribe the evidence upon which such warrant shall issue; Such evidence must establish one, at least, of four particulars; 1. That the-defendant is about to remove some part of his property out of the jurisdiction of the court in which a suit is pending against him ; or 2. That he has property, &c. which he fraudulently conceals, or unjustly refuses to apply to the payment of a judgment or decree against him; or 3. That he has disposed, or is about to dispose of his property with intent to defraud his creditors ; or 4. That he fraudulently contracted the debt upon which the suit is brought.
Any of these charges being established against the defendant, he is to be committed- to jail, to be there detained until discharged according to law. But such commitment shall not be granted, if the defendant shall 1. Pay the debt; or 2. Give security to pay it in 60 days; or 3. Commence proceedings for a discharge, and actually obtain such discharge; or 4. Enter into a bond conditioned within 30 days to apply for and obtain a discharge; or 5. Give a bond as therein described, conditioned that he will not remove any of his property out of the jurisdiction of the court in which such suit is brought, with intent to defraud-his creditors; and that he will not assign or dispose of any such property with a view to give a preference to any creditor for any debt antecedent to such assignment or disposition, until the demand of the plaintiff, with costs, shall be satisfied; or until the expiration of three months after final judgment shall be rendered in the suit brought for the recovery of such demand.
Thus we see that the legislature seem to have been extending more and more liberality to the debtor. They first require •payment as the condition of the liberty of the fraudulent •debtor; secondly, security for payment in 60 days; thirdly, an honest surrender of his property, which will obtain for him a discharge, bút the creditor now gets neither payment nor security, but only a dividend with other creditors, if there shall happen to be any thing to divide; fourthly, it shall be sufficient, if the debtor will give security that he will in SO days make a successful application. Thus every succeeding provision of the tenth section removes further and further from the creditor the prospect of payment, until the fifth subdivision loaves him, if he ie a judgment creditor, precisely where he
If this exposition of the statute be correct, it follows, that no fraudulent debtor can be imprisoned as a means of enforcing payment, provided he can give security that he will subject himself and his property to the scrutiny of a bill in equity. Such, I have no doubt, was the intention of the legislature; and this intention is further evinced by the eleventh section, which provides that any defendant who shall have been committed upon a warrant, may be discharged, by paying the debt, or giving security, or executing either of the bonds mentioned in the tenth section. By subsequent sections of the act the fraudulent acts of a debtor are considered a misdemeanor, and are punishable criminally; but with that view of the subject we have now nothing to do. I am therefore of opinion that the relator should have been discharged upon executing the bond, which was tendered to the commissioner.
Whether this is a proper case for a mandamus is not so clear. There can be no doubt, I think, that the proceedings of the commissioner are of a judicial character, of which a record may be made, arid thus be reviewed upon certiorari; and the general rule is that a mandamus does notissue, unless in cases where there is no other appropriate legal remedy. If, however, this be considered an application under the eleventh section by the debtor, after commitment, then a mandamus seems to be proper. It is unnecessary to discuss this point farther, as I understand it is the wish of the commissioner to obtain an expression of the deliberate opinion of this court, without reference to technicality.
Motion granted.