such clear and direct terms in his pleading, that the defendant may meet and rebut it if he can at his trial. If the defendant has been guilty of false-swearing his discharge is not only void, but he may be liable to the laws in another manner.

Will not the court then, say, that every intendment of mere technical pleading is against fraud, and will they not rather compel the plaintiffs to aver with strictness all the facts upon which they rely to establish the fraud? The general conclusion that "so the discharge was frudulently obtained and is void," will avail nothing, unless the plaintiffs point out how it was fraudulent and void. This they have not done, and they are confined to their specific allegations. These, upon examination, turn out to be entirely inoffensive, if true, for there is no moral turpitude in paying or satisfying a debt which is justly due. The discharge, then, cannot be considered as void unless the defendant has done something which the act has forbidden him to do, and to ascertain that fact we must examine the act itself.

All the cases cited by the plaintiffs, are such as have arisen under the "two-third act," where the proceedings differ materially from those which merely exempt the person from arrest. In the one case all remedy for the debt is taken away; in the other the person only is exempted from execution. Under the act relating to non-imprisonment, it is no injury to one creditor that another has been bought off, unless it can be shown that his dividends have been thereby diminished. In this case, there is no averment that any part of the defendant's property was taken to satisfy the opposing creditor, and the court will not infer it, because such might possibly, or even probably, have been the case. If the plaintiffs rely upon the fact, let them state it, that the defendant may have an opportunity of denying it.

II. But has there been a concealment here in any shape, either within the meaning of the act, or in fact? Before Judd appeared to oppose, the defendant had made out a complete inventory of his property, which was surrendered to the assignee according to the inventory. How then could any part of this specified property be substracted, for the purpose of satisfying Judd's debt ?

1

April Term, The whole case is narrowed down to the single enquiry, whether

1829.

the defendant has violated the statute. Upon this point the discharge speaks for itself, and is conclusive. It states, that the defendant had "conformed in all respects to the matters and "things required of him, according to the true intent and meaning "of the act." How can this be gainsayed? The jury have found nothing more than this, that one Judd was paid or secured the one half of his debt ? Does that deprive the defendant of the protection afforded by his discharge ? If the oath was false the assignment was void, but the oath, the plaintiffs admit, was true when it was administered. If so, how can the statute operate retrospectively, even if the defendant did satisfy Judd after the oath was taken? The fifth section is an entire new enactment; it is not to be found in the two-third act, and the legislature intended to point out every thing which could avoid the discharge. This they have done, and the replication has set forth none of them. The issue joined is, therefore, immaterial, and the judgment may be arrested.

There is a distinction between an informal and an immaterial issue. [2 Saund. 319 a. 1. Ib. 227. 2 Arch. Prac. 239.] For the former defect, a motion in arrest cannot be sustained, but for the latter, it may.

The CHIEF JUSTICE, in delivering his opinion, remarked, that the question in this case was, whether the facts stated in the replication were sufficient to avoid the defendant's discharge; for the court would infer, that all the facts upon which issue was taken, had been found by the jury.

The replication alleges, that in consequence of a compromise made by the defendant with one of his creditors, that creditor was induced to withdraw the opposition to the defendant's discharge, which he otherwise would have made. Suppose the fact to be so: does it follow as a necessary or inevitable consequence, that the compromise was fraudulent? Suppose the defendant was attended to the Recorder's office by some friend, and that friend being informed of the creditor's intended opposition, had himself advanced: the money to effect the compromise: would the other creditors of the defendant have been prejudiced, by such a course

1829.

Phoenix and
Whitney

v.

Stagg.

of proceeding? The entire fund, assigned by the debtor, would April Term, still have gone to his assignee, and it would, in that case, have been divided among a smaller number of creditors. By this means, the creditors would have been benefitted, and could not, with any reason, complain of the defendant's acts in this particular. The court will not infer, that the acts done were fraudulent, because the replication, in its conclusion, asserts, that the discharge was fraudulent; but they will look at the facts stated, and ascertain from them whether the law has been violated.

In order to impeach the discharge, the court must infer, that the defendant subtracted a part of the funds, which would otherwise have gone to the creditors in general, and gave it to a particular creditor, for the purpose of inducing him to withdraw his contemplated opposition. This is not averred in the pleadings, and will not be intended, where such intendment must cast upon the defendant the perpetration of a fraud, and break up so solemn an instrument as a discharge, under the seal of a competent officer.

There is another reason why the allegations in the replication are not entitled to the particular favour of the court. When the defendant presented his petition to the Recorder, notice was directed to be given to all the creditors, to appear and show cause, if any they had, why the prayer of the petition should not be granted. That notice must have been given to the plaintiffs, among others, because the discharge itself avers, that satisfactory evidence was furnished to the Recorder, that all the requirements of the act had been complied with. If the plaintiffs intended to oppose the defendant's discharge, why did they not appear at the proper time and place, and show cause? By not appearing, they acquiesced in the discharge, and are concluded by it. The discharge is by the act itself, made conclusive evidence as to the facts which are asserted in it, and from that, nothing appears to shew the compromise, or impeach the discharge. It is, then, sufficient to afford the defendant all the protection which is sought in his plea, and must be made available for that object.

The next question is, can the judgment be arrested? According to strict technical principles, I think it cannot; but it may be

April Term, modified in such way as to meet the exigency of the case.

1829.

Phenix and
Whitney

V.

Stagg.

Where the law affords to an insolvent debtor a privilege, which is to protect his person, the court may always point out the means by which it may be made available. The only part of the judgment complained of, is that which relates to imprisonment, and that must be modified by a special entry, which shall protect the debtor's body. The plaintiffs will thus have their judgment, and the defendant, the protection asked for in his plea.

OAKLEY, J. This is an action of debt on judgment. The defendant, to protect his person against execution, interposes a plea of a discharge, obtained under the act entitled, "An act to abolish imprisonment for debt in certain cases." The plaintiffs reply in substance, that on the day appointed for the appearance of the creditors to shew cause, against the discharge, one Judd, a creditor of the defendant, appeared to oppose, and commenced his opposition to the said discharge, and that the defendant, " in order "to induce the said Judd to withdraw his opposition, offered to, " and did secure to be paid to him, the one half of his debt;" and he thereupon withdrew his opposition, and the defendant obtained his discharge. Issue was taken on this replication, and a verdict was found for the plaintiffs. The defendant now moves in arrest of judgment, or for some order of the court, directing an entry on the record, qualifying the judgment to be entered for the plaintiffs, so that no execution shall issue thereon against his person.

By the act, under which this discharge was obtained, [sess. 42. ch. 101, s. 2.] it is enacted, that the insolvent, on presenting his petition, shall make oath, among other things, that he has not settled with any of his creditors with a view to obtain the benefit of the act. Public notice is then directed to be given to the creditors of the insolvent, to show cause against his discharge, on a day to be appointed, and if no cause be shown, and the officer to whom the petition is presented, "shall be satisfied that the insol"vent hath in all things conformed to the provisions of the act," he shall direct an assignment to be made of the insolvent's estate. The 3d section directs the discharge to be granted, upon proof of such assignment; and declares, that the discharge so granted, "shall be conclusive evidence in all courts within this state, of

1829.

Phœnix and

"the facts therein contained." By the 5th section, it is enacted, April Term, that the discharge shall be void, for several causes particularly specified therein, among which, are the commission of any perjury Whitney. by the insolvent, and the concealment of any of his estate or effects.

It is contended, on the part of the defendant, that the discharge cannot be impeached or avoided for any cause, other than those particularly enumerated in the 5th section of the act. This position appears to be fully supported by the case of Lester v. Thompson, [1 J. R. 300.] In that case, the discharge relied on, was obtained under the general insolvent act, which requires the assent of a portion of the creditors of the insolvent to the granting of his discharge. The 13th section of that act [1 R. L. 466.] enumerates the causes which shall render a discharge void, and its provisions are similar to those of the 5th section of the act now under consideration, as far as the nature of the proceedings under the respective acts will admit. In Lester v. Thompson, the fraud alleged against the discharge, was one not enumerated in the act, as it then stood. The plaintiff there contended, that any fraud on the part of the insolvent, in obtaining the discharge, would vitiate it. But the court said, that its validity could not be contested on any ground, other than those expressly reserved in the act itself. This seems to be fully in point in the present

case.

It has frequently been decided, as suggested by the plaintiffs' counsel, that notes or securities given to a creditor by the insolvent or others, as a consideration for withdrawing his opposition to the discharge, are void, as being against the policy of the law. That principle cannot, however, be applied to the present case. The validity of the discharge itself, rests upon the express provision of the statute. A note, made under the circumstances above mentioned, is held to be void by the principles of the commón law.

The plaintiffs further contend, that the facts set forth in the replication, show, that the insolvent was guilty of false-swearing, within the spirit and meaning of the 5th section of the act. The oath taken by the insolvent, at the time of presenting his peti

V.

Stagg.