It is quite apparent that a person discharged from imprisonment (115) for debt, either under the first and third sections of the act of 1773, is only liberated as to those demands for which he was then held in confinement, and from the confinement for which he was discharged. The words of the first section are: "and shall stand forever discharged from all such debts so sued for." The words of discharge under the third section are: "which warrant of discharge shall be an indemnity to the sheriff or jailer for an escape, etc." It was decided in Burton v. Dickens, 7 N.C. 103, that a debtor (116) discharged under the third section of the act was exempt from arrest for any debt (whether held in confinement for it or not), under the 39th article of our Constitution; the words of which are that the person of a debtor, where there is not a strong presumption of fraud, shall not be confined in prison after delivering up bona fide all his estate, real and personal, for the use of his creditors, in such manner as shall hereafter be regulated by law, the court considering the provisions of the act of 1773 as furnishing the regulations spoken of in the article. It, then, only remains to be considered whether there is any essential difference in the effect of a discharge under one or the other section of the act, the principal in the present case being discharged under the first or, as it is called, the forty shilling section. The injunction that the person of a debtor shall not be held in confinement is found where details are not to be expected; fundamental principles only are there embodied, and in this case to be carried into execution (if the words are to be regarded) by some future Legislature. We should, therefore, not construe this article as we would an act of Assembly, and extend it to cases only within its words, but all cases whatever within its spirit within its operation also. By this article a mere insolvent is not entitled to discharge, but an insolvent who has no means of paying. It is the surrender of his property which creates his inability, if he had any property to surrender. The fact to be inquired into is this, his utter inability, and when that fact is ascertained the exemption attaches, no matter whether it arises from a total or partial inability; for if partial inability had made any difference, there must certainly would have been required some proportion between the sum surrendered and the debts from which he was to be discharged. There could not be such difference in the effect of having a few shillings only to surrender and leaving no proportion to the debts to be paid. A person has 41 shillings to surrender, and owes £ 10,000; and another has only 30 shillings to surrender, and owes £ 100 (117) to twenty different men. The person of the first shall be discharged from the payment of the £ 10,000, and the latter shall be liable to nineteen out of twenty creditors, and may be imprisoned for each debt successively if his creditors think proper to sue in successive order. And
thus a person who is entitled to his discharge under the first section may, if he thinks proper, by varying the mode of application, obtain his discharge under the third section by surrendering up some trifle not worth 10 cents; and this is the practice under the act, and cannot be objected to. It is not to be presumed that this great difference in the situation should be entirely dependent on the will of the debtor, without any merit or demerit on his part; and if the law requires that the sum surrendered up should bear any proportion to the debts to be paid, then the greater privilege would be reasonable; nor does imprisonment seem to be inflicted as a punishment, for then the period of imprisonment would bear some proportion to the amount due, having a regard to the means of payment, and whether insolvency was brought on by misfortune or imprudence, and many other considerations increasing the criminality or extenuating the misfortune of being indebted beyond the ability to pay. As was said before, the total want of means is the postulatum of the act. When that is ascertained there is no difference between a person who has nothing to surrender and one who has only five shillings, or some other small sum. Their situation may properly be more than equalized by the different sums due from each; and the law omitting to make that an inquiry and criterion, when it could be so clearly expressed if designed, is an evidence that it formed no consideration with the lawmakers. I am well satisfied that this constitutional provision, if extended to one, should be extended to the other also. The notice to be given to creditors, which at one time was supposed might vary (118) the case, upon an examination will be found to be nothing. The notices spoken of under the third section as necessary to be given to all the creditors are notices to them to come in and prove their debts and receive their dividends. They are to be given by the clerk; they affect not the previous discharge. As to due notice not being given to the confining creditor, the Court cannot examine that question. We can only look into the discharge and the jurisdiction of the court or magistrate which granted it, for it comes before us incidentally or collaterally, and the magistrate or court was as competent to judge and to act as this or any other court, and their proceedings, when within the sphere of their jurisdiction, are as binding and conclusive as those of the highest tribunal of the country, as long as they remain unreversed. The question of notice came before the magistrate; he passed upon it, decreed it was sufficient, and rendered his judgment. If any person felt himself aggrieved, and could show his interest in the question, and make out a probable cause, the Superior Court would have the proceedings brought before it by certiorari or some other writ, and, if contrary to law, would have reversed them, subject to an appeal to this Court. But neither this nor the Superior Court, nor any other court, has the power of
examining into the regularity of the proceedings of any court when brought into question collaterally and incidentally, if the thing done was within the legitimate powers of the court doing it. Only a revising court, when the question comes before it directly, has the power to do it.
Cited: Williams v. Floyd, 27 N.C. 660; Griffin v. Simmons, 50 N.C. 147;Rogers v. Kimsey, 101 N.C. 563.
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