
    George Bampfield vs. Michael Ellard.
    A person in gaol under a ca. sa. for assault and battery, is entitled to tlie benefit of the insolvent debtor’s act.
    It seems that “ wilful and malicious trespass” >yithin tlie 8th clause of ¿he insolvent debtor’s act, means “ wilful lnaihem,” or injuries to real property, or to trespasses of an extremely heinous nature; as malicious prosecutions or conspiracies, by which life and limb may be endangered.
    IN the City Court, April Term, 1822. — Motion to discharge an insolvent debtor.
    Report of the Recorder.
    
      “ The defendant applied for the benefit of the insolvent debtor’s act. He was opposed by the plaintiff’s counsel upon the ground, that being imprisoned under a ca, sa. in ■an action of trespass for an assault and battery, which was a case of “ wilful and malicious trespass,” he came within the exceptions of the act. The question to be determined by the court is, whether an assault and battery is a wilful and malicious trespass,” within the meaning of the 8th clause of the insolvent debtor’s act ?
    By the 1st clause, all persons may avail themselves of the act, who are “ sued, impleaded, or arrested for any debt, duty, demand, cause or thing whatsoever.” These words are so comprehensive, that they would embrace every species of civil action, and must be considered as having that scope, unless their meaning be restricted by the exceptions contained in the clause referred to. I regard it to be an established rule in the construction of statutes, that general enactments shall prevail unless they be directly or necessarily impugned by particular exceptions. And this rule would be peculiarly relied upon in a law, the object of which, was the extension of the liberty of the citizen, by abridging the number of the cases in which his person could be immured in a gaol. If therefore, either a technical meaning, or a meaning consistent with common sense, can be given to the \vords relied upon in the 8th clause, so as not to deprive the petitioner of what he seeks for, it appears to me to be the duty of the court to grant his application. The suit against the petitioner is an action of trespass, vi et armis, for an assault and battery. The defendant has been guilty of a trespass, hut, is it that, “ wilful and malicious trespass” which the law contemplates ? The generic term trespass, includes both trespass on the case, and trespass vi el- armis-~ Standing alone it would have a most extensive application, butthe important expressions are, “ wilful and malicious.” Such a meaning then must be given to them as will distinguish cases of trespass, in which a debtor shall, and in which he shall not be entitled to the benefits of the act. — • The’meaning cannot be governed by the form of the action, but by the nature of the act, for which redress is sought. This is certainly rather a dubious criterion, but I see none other to resort to. Now, although an assault and battery is frequently attended with very aggravating circumstances, yet such is not always the case ; for courts, where indictments are prefered for assaults, frequently feel themselves authorized to inflict merely a nominal fine, and juries in civil actions to assess trifling damages, tho’ the offence be legally established. But in strict legal intendment*,' even these mitigated instances would be “ wilful and malicious” trespasses, if any assault and batteries arc to be so considered. Some other meaning must therefore be annexed to these ’ words, and I am unable to give this meaning, otherwise than by concluding either that the words “ wilful and malicious” trespass were intended as another definition or description of an action for “ wilful maihem,” or that they are applicable to injuries to real property, or to trespasses of an exceedingly heinous nature, such as malicious prosecutions or conspiracies, by whifch life or liberty may be endangered. Cases of these and-of similar kinds, coming within the meanibg of the law, may very well be conceived. It has been stated by the petitioner’s counsel, though I have not seen the case, that the Constitutional Court has determined, that a party imprisoned under a ca. sa. in an action for defamation, may have”the'benefit of the act. (Walling vs. Jennings, 1 McCordp. 10. J If so, from analogy he would be entitled to it in the case before us; for to slander the reputation is, at least, “ as wilful and malicious,” as to commit an assault upon the person. And there is this technical distinction between the two actions, that in a case of defamation, the words are alleged to be maliciously spoken, and in that of an assault and battery, malice is not averred. Besides, under the act of 1787, a defendant imprisoned for the payment of a fine which may have been imposed in consequence of his having been found guilty under an indictment for an assault and battery, may be released under the insolvent debtor’s act. Now the Legislature could never have intended th.-t this right should exist in a criminal prosecution, and not in a civil suit. 1 am therefore of opinion that the petitioner is entitled to the benefit of the act upon his complying with its requisites. The petitioner was accordingly discharged. A notice was served upon me, that a motion would be made before the Constitutional Court to reverse my decision.”
    
      White, for the motion.
    
      Re Saussure, contra.
   Mr. Justice Colcock

delivered the opinion of the court.

The court unanimously concur in the above opinion for the reasons given, as well as on the authority of the case of Walling 8? Jennings. Motion discharged.

Justices Richardson, Johnson, Nott and Gantt, concurred.  