Rose v. Briggs

By the Court. The ground of demurrer is, that the replication tenders an immaterial issue. This might be so, if the provisions of the act to abolish imprisonment for debt in certain cases, Laws of 1819, p. 115, were like those of the act for giving relief in cases of insolvency, 1 R. L. 460, in relation to the debts upon which they operate. A discharge under the latter act reaches only such debts as were in existence at the time of presenting the petition, McNeily v. Richardson, 4 Co wen, 607; but a discharge under the former act exempts from imprisonment for, or by reason of any debt or debts due at the time of making the assignment, or contracted for before that time, though payable afterwards. The discharge pleaded in this case is under the former act, and whether the defendant is entitled to be exempted from imprisonment or not, depends upon the fact whether the debt for which he is sued was due or contracted for before or after the tenth day of January, .1828, the day on which the assignment was made, as appears by the discharge ; and the pleadings have put that fact fully and fairly in issue. But such would not have been the case, it is supposed if the discharge had been under the act for giving relief in cases of insolvency ; for if the issue had been, whether the *72debt was contracted before or after the assignment was execute^ or the discharge granted, and it had been found for the defondant that it was contracted before, the court could not have said that he was entitled to judgment, because the debt might have been contracted before the assignment, and still not be reached by the discharge. Cro. Jac. 434. • 1 Chit. 631. 2 Saund. 319, n. 6. The proper issue to form under that act would be whether the debt was or was not due or contracted before the presentation of the petition; but not so under the act to abolish imprisonment, for the discharge reaches all debts due or contracted for before the assignment. The replication is therefore good.

Judgment for plaintiff, with leave to the defendant to rejoin, on payment of costs.