
    Smith and Brown vs. Bennett.
    In pleading an insolvent discharge from all debts, in bar of an action on a judgment for a tort, the plea must allege that the plaintiff was a resident within this state at the time of the first publication of the notice of the application for the discharge, or that being resident abroad he united in the petition, or accepted a dividend, or judgment non obstante veredicto will be rendered for the plaintiff; and where there is no averment to that effect, the court will not presume that the defect was supplied by proof on the trial.
    It should also be alleged that the petition for the discharge was signed by. the insolvent and the creditors who united with him in presenting it, although, after verdict, the omission can not be taken advantage of.
    Whether an insolvent discharge is a bar to an action on a judgment for a tort, Queke.
    
    Insolvent discharge. The plaintiffs declared on a judgment rendered in this court in favor of Guy Wheeler against the defendant, in July, 1831, for $174’28, in an action of tresspass, assault and battery ; and averred [480] that they were the assignees oi such judgment, that Wheeler was dead, and that no executor or administrator was appointed upon his estate. Sec Session Laws of 1835, p. 229. The defendant pleaded first, nil debet, and second, an insolvent discharge from all his debts, granted 14th February, 1834. The plaintiffs replied that the discharge was obtained per fraudem. The issues thus joined were tried, and the jury found for the plaintiffs on the first issue, and for the defendant on the second issue. The plaintiffs moved for judgment, non obstante veredicto, on the following grounds: 1. That it is not alleged in the plea that the petition presented for a discharge was signed by the defendant and by the petitioning creditors; 2. That it is not alleged that the plaintiffs or their assignor resided within this state at the time of the first publication of the notice of the application for the discharge, or that they resided without the state and united in the petition for the discharge, or accepted a dividend from the estate of the defendant; 3. That the delay of the officer in granting the discharge, from 26th Sep timber, 1833, the day of hearing, until 14th February, 1834, when the discharge was granted, operated as a discontinuance and avoided the discharge; and 4. That an insolvent discharge is no bar to an action on a judgment for an assault and battery.
    
      J. Brown and J. A. Spencer, for the plaintiffs,
    in support of the two first grounds relied on, cited 2 R. S. p. 16, § 1, 2 and p. 22, § 30. In support of the third point, they insisted that the act authorized no adjournment after the hearing is closed; that tlie judge is bound to determine within a reasonable time whether he will grant the discharge, and can not indefinitely delay his decision. As to the fourth point, they insisted that the discharge operates only upon debts arising ex contractu, and does not affect debts arising ex delicto. The 30th § declaring the effect of the discharge, confines its operation to debts contracted or founded upon contracts, and the three follow ing sections clearly show that such was the intention of the legislature. When they mean that a discharge shall apply to all possible cases of. indebtedness, they use the appropriate language as in p. 24, § 1, [481] speaking of debtors imprisoned upon execution many civil action. So also in p. 31. In Strong v. White (9 Johns. R. 161). the court refused to give the defendant the benefit of a discharge when imprisoned on a judgment for a libel, and in Kennedy v. Strong (10 Johns. R. 289), it was held that a discharge under the act of 1811, was no bar to an action of trover. Bankrupt laws are made for the relief of merchants and traders, and are intended to operate only upon contracts. Torts are not within the policy of those laws, nor was it ever in the contemplation of a legislature that a party guilty of a tortious wrong to another could be relieved from making satisfaction, by obtaining the concurrence of two thirds of his creditors in a petition for his discharge. By the existing laws, a defendant in execution on a judgment for a tort may be relieved from imprisonment, but can not be discharged from the judgment. Insolvent laws are construed strictly (3 Paige, 338).
    
      W. C. Noyes, for the defendant.
    If the petition was not signed, it was a mere irregularity which does not affect the jurisdiction of the officer granting the discharge. The second point raised for the plaintiffs is unsupported by a single case; an averment like that contended for was never made in pleading, nor is it necessary. As to the third point the officer necessarily must exercise liis discretion as to when he will grant tlie discharge, and every presumption is in favor of the fairness of his acts. As to the effect of the discharge upon judgments for torts: A discharge under the English bankrupt act, operates as well upon a judgment in tort as upon a judgment on contract. The discharge is a bar to any suit lor any debt or demand contracted, due or demandable before the issuing of the commission (Cooke's Bankrupt Law, 2, 5). A demand in trover, where the damages can .be liquidated, may be proved under a commission, although a demand in trespass, where tlie damages are unliquidated can not be proved (id. 574). There is no distinction in this respect between tort and contract, where a judgment is entered upon a verdict in an action for a tort (1 H. Black. 29, note). In Hatten v. [482] Speyer (1 Johns. R. 37), a discharge under the U. S. bankrupt law was held to be a bar to an action on the case, or any other demand that could be proved under the commission. The terms of the act of 1830 are broader than those of 1811; by the act of 1811, the presenting of a petitition for a discharge is limited to an insolvent debtor who is imprisoned or prosecuted for debt, or on contract, and therefore it was held in Strong v. White, tliatan action for a libel was not within the meaning of the act. The act to abolish imprisonment for debt in certain cases (Session Laws of 1819, p. 115), which authorizes any insolvent debtor to apply for a discharge, was in Ex parte Thayer (4 Cowen, 66), held to extend to a judgment in tort, and in 5 Cowen, 276, to an order of filiation. So the act for the relief of debtors with respect to the imprisonment of their persons (1 R. L. 348), has been held to extend as well to judgments on wrongs as to judgments on contracts (3 Cowen, 366). By the act of 1810 (1 R. S. 22, § 30), the insolvent is discharged from all debts owing to persons resident within this state, &c., and can there be a doubt that a judgment in tort is a debt owing to the plaintiff in such judgment; that such a plaintiff might become a petitioning creditor and would be entitled to a dividend ? and were an insolvent, in his account of creditors, to omit to inventory such a judgment, can there be a question that his discharge would be,void, he being expressly required to make a statement of the sum owing to each creditor, the nature of the debt owing by him, and of all judgments existing against him (2 R. S. 17, § 5).
    
      
       An insolvent discharge operates as well upon judgments previously obtained against the debtor for tort, as upon those in matters arising upon contract. Luther v. Deys 19 Wend. 629 ; Deys v Van Valkenburgh, 5 Hill, 242.
    
   By the Court,

Bronson, J.

The statute requires that the petition shall be signed by the insolvent and the creditors who unite in it (2 R. S. 16, §3). The plea alleges that the insolvent, in conjunction with his creditors, did present a petition, praying, &c. It is necessarily implied in this allegation, that the parties to the petition,assented to the matters contained in it. The plea is in this respect sufficient—especially after verdict.

The second objection to the plea is fatal. The first clause of the 30th section of the statute, which declares the effect of the discharge, only extends to debts founded upon contracts, and if the last clause includes debts growing out of torts, it is restricted to such debts as are owing to persons “ resident within this state at the time of the first publication of the notice of the application for the discharge, or owing to persons not residing within this state, who united in the petition for his discharge, or who shall accept a dividend from his estate.” There is no averment in the plea that the plaintiff in the judgment, or the assignees who bring this action, ever resided within this state, or that they united in the petition, or accepted a dividend. As there was no averment whatever on the subject, we can not presume that any thing was proved on the trial. The defect is not cured by the verdict (Addington v. Allen, 11 Wendell, 374).

It is of course unnecessary to consider the other objection made on the argument. Motion granted.  