Wills v. Prichard
76 Mass. 327
Mass.
1858
Check Treatment
Thomas, J.

The point raised by the bill of exceptions is the validity of the defendant’s discharge in insolvency. The defendant was insolvent for a second time and his estate failed to pay fifty per cent, of the debts and claims proved. He could not therefore obtain his discharge, or if obtained it would not be valid, unless three fourths in value of the creditors whose claims were proved should assent thereto in writing. St. 1844, c. 178, § 5. The question in issue* between the parties is when such assent may be filed; whether it must be filed within six months after the date of the assignment.

Though the fifth section of the St. of 1844, c. 178, does not, *329considered separately, in terms impose this limitation, yet from the provisions of the fourth and fifth sections taken together, as in pari materia, we think such limitation is the fair conclusion. Upon any other construction, there would be no limit to the time of filing such assent. This we understand to have been the construction heretofore given to the statute, though the precise point involved in the case at bar was not raised. In Gates v. Campbell, 8 Cush. 104, it was held, that the creditors whose assent would authorize the discharge must be creditors whose claims were proved within six months after the date of the assignment. The reason given for the restriction is that the statutes set six months as the time within which the assent is to be given and the discharge acted upon. 8 Cush. 108.

A new trial must be had, but the parties will observe that the conclusion which the court has reached seems to dispose of the cause.

Exceptions sustained.