Opinion
June Term, 1859.
Where one was in close custody for costs, and gave notice to the clerk, of his intention to take the oath of insolvency, and the clerk appeared and tendered an issue of fraud, whereupon the proceedings were sent to the Superior Court, in which the costs had accrued, it was Held, that under the 59th chapter of the Revised Code, such issue was properly triable in that Court.
THIS was a proceeding, under the insolvent law, sent to the Superior Court, CALDWELL, J., presiding, from two justices of peace of Davidson county.
Attorney General, for the State.
McLean, for the defendant.
The defendant was convicted of trading with a slave, and sentenced by the Superior Court of Davidson county, to "one month's imprisonment, and then be discharged according to law." On petition to two justices, the defendant was brought before them to be discharged under the insolvent law. He showed that he had remained one month in close custody according to the sentence of the said Superior Court, and after the expiration of that time, he had given to the clerk of the said Court twenty days notice of his intention to take the benefit of the act. He proposed to swear that he had no visible property, c. The clerk of the Superior Court, in behalf of the State, objected, suggesting fraud and tendered an issue. The defendant joined in the issue, and gave bond for his appearance at the next Superior Court of Davidson, to which Court the proceedings before the justices were returned.
His Honor was of opinion that the act made no provision for trying the issue in the Superior Court, and ordered the proceedings to be dismissed, from which Mr. Solicitor Ruffin, in behalf of the State, appealed.
By the Revised Statutes, ch. 58, and the Revised Code, ch. 59, the several statutes relating to insolvent debtors are embodied into one statute, so as to form a system, and it is proper that its several sections should be so construed as to produce uniformity in the mode of proceeding in respect to the whole. This result, which would seem to be a necessary consequence of the consolidation, is manifestly contemplated in the 18th and 19th sections of the 59th chapter of the Revised Code, by which it is provided that no issue of fraud shall be made up and tried under the provisions of this chapter, unless the creditor shall suggest fraud in writing, on oath, specifying the particulars, c.; and no ca. sa. shall issue unless the plaintiff shall make affidavit in writing, c. Accordingly, in Whitley v. Gaylord, 3 Jones' Rep. 286, it is decided that on motion for judgment, on a bond to keep the prison bounds, if the defendant pleads matter of fact in pais, he is entitled to have the issue tried by a jury; and in Purvis v. Robinson, 4 Jones' Rep. 96, it is decided that upon the petition of a debtor, who is in close custody, for his discharge under the insolvent act, the creditor must suggest fraud in writing, on oath, and the issue must be tried by a jury. In that case, the petition was made to the County Court, but it might have been made, according to the provisions of the statute, to a Judge of the Superior or Supreme Court, or to any two justices of the peace of the county in which he was confined, and of course, the same proceedings been had. Consequently, that case is directly in point, and must govern this, although here, the petition happened to be made to two of the justices of the peace.
The judgment of the Court, below, dismissing the proceeding, must be reversed, and this petition will be certified, and a writ of procedendo issue.
PER CURIAM. Judgment reversed.