
    Benjamin W. Bettis, et al., v. Hugh A. Nixon.
    On application for the benefit of the “insolvent debtor’s act,” the Clerk of the Court may, without the signature of the Judge, issue the rule or order for calling in the creditors of the applicant. Though not strictly in accordance with the act of 1759, this practice is too old to be disturbed.
    Service upon creditors, not appearing, should be verified by affidavit.
    The creditors should be notified to appear on a day certain.
    Tried before Mr. Justice Butlejj, at Edgefield, Fall Term, 1846.
    The defendant, Hugh A. Nixon, having been arrested under writs of ca. sa. at the suits of the plaintiffs, severally, and having given bond for the prison bounds, applied for his discharge under the Insolvent Debtors’ Acts. The application was first mentioned to the Court, Thursday of the first week of the term, being the 8th of October, but objection bning suggested to the consideration of it, the matter was then waived, and notice in writing was given, by the counsel of the applicant to the counsel of the opposing creditors, that the application would be made Thursday, 15th inst. On this latter day the matter was mentioned again, and postponed until Saturday, the last day of the term, when it was heard, just before the adjournment of Court.
    
      The applicant, on his examination by the creditors, stated that he was managing this year a plantation belonging to his mother, but that there was no contract between them for compensation to him for his services, and that he expected none except board for himself and family. He further stated, that he had lately paid his mother and another creditor their demands in full, when he knew that his effects were insufficient for the payment of all his creditors.
    The following is a copy of the summons, or order to the creditors:
    Hugh A. Nixon, who has been arrested and is now confined within the bounds of the Jail of Edgefield District, by virtue of several writs of capias ad satisfaciendum, at the suits of Benjamin W. Bettis, Bland and Butler, and John Bauskett, severally,’ having filed his petition, with a schedule upon oath, of his whole estate and effects, with the purpose of obtaining the benefit of the Acts of the General Assembly, commonly called the Insolvent Debtor’s Acts. Public notice is hereby given, that the petition of the said Hugh A. Nixon will be heard and considered in the Court of Common Pleas, for Edgefield District, at Edge-field Court House, on the day of October next, or on such other day as the Court may order during the term, commencing on the first Monday in October next, at said place, and all the creditors of the said Hugh A. Nixon, are hereby summoned, personally, or by attorney, then and there in said Court, to show cause, if any they can, why the benefit of the Acts aforesaid, should not be granted to the said Hugh A. Nixon, upon his executing the assignment required by the Acts aforesaid.
    Tnos. G. Bacon, Clerk.
    
    Clerk’s Office, June 22d, 1846.
    I hereby certify that the above notice has been published, for three consecutive months, in the Edgefield Advertiser.
    James Cochean.
    Edgefield C. H., Oct. 6, 1846.
    From the language of the order, it is obvious that a day in term is meant, although no particular day is mentioned. The motion was made for the discharge of the prisoner, and a day was assigned,—three days beyond that when the motion was made. On the day assigned, an objection was made, by some of the creditors, to the consideration of the motion, on two grounds. 1st. That the order was not made by a Judge, but was signed by the Clerk; and 2d. On the ground that no day was named. The presiding Judge overruled these grounds, with a good deal of hesitation as to the last—but in favor of liberty, he regarded the blank of October to mean, according to ordinary understanding, the first day, and therefore he entertained the motion. The prisoner was then brought up, and examined by the creditors on oath. From his answers, his Honor came to the conclusion that he was entitled to a discharge. A motion was then made for further time, and was refused.
    The oath was administered, and the applicant discharged, on making his assignment.
    The plaintiffs, the judgment creditors of Hugh A. Nixon, moved the Court of Appeals to set aside the order of Judge Butler, discharging the defendant under the Insolvent Debtors’ Acts, on the grounds:
    1. That there was no rule or order of the Court summoning the creditors to show cause against the application of defendant for the benefit of the Insolvent Debtors’ Acts.
    2. That the advertisement to creditors did not mention a day certain for the consideration of the application.
    3. That there was no proof of the publication of the notice to creditors.
    4. That as the examination of the applicant furnished reasonable evidence of his undue preference of certain creditors, and of his omission from his schedule of his wages as overseer this year, and as the time at which the application was made was unsuitable, the motion of the creditors for further time to consider this application should have been granted.
    Wardlaw, for the motion.
    Cited, 4 Stat. at Large, 87; 1 Rich., 192; 15th rule of Court; 1 Tidd’s Prac., 378; 1 Tidd’s Prac., 497; 2 Spear., 501.
    Griffin, contra.
    
   Evans J.

delivered the opinion of the Court.

By the first clause of the Act of 1749, usually called the Insolvent Debtors’ Act, it is provided, that if any person sued, impleaded, or arrested for any debt, duty, &c., shall be minded to make surrender of all his, her or their effects, towards the satisfaction of the debts, &c., “it shall and may be lawful for such person or persons to exhibit a petition to any of the Courts of Law from whence such process issued, certifying the causes of his, her or their imprisonment, together with an account of his, her or their estate,” <fcc., “and upon such petitition the Court may, and is hereby required, by order or rule, to cause the petitioner to be brought before them, and as well the creditors, at whose suit such person or persons shall stand charged, as all other creditors to whom he or she shall be indebted, be summoned by public notice to be given in one or other of the gazettes, or for want of a gazette, then in such manner as the said Court, or the Justices thereof shall direct, personally, or by their attorney, to be and appear at the said Court, or before the Justices of the said Court, respectively, on a day certain, by them for that purpose to be appointed at or after the expiration of the said three months; and upon the day of such appearance, if any of the creditors shall neglect or refuse to appear, upon affidavit made of the service of such rule or order in manner aforesaid, the Court shall in a summary way examine into the matter of the said petition,” &c.

Upon the construction of this clause, as applicable to this case, three questions are made:—■

1. That there was no order or rule summoning the creditors to appear, except one, by the Clerk, which is not a compliance with the Act. In the year 1759, when this Act was passed, there was no Court in the State out of the city of Charleston, where I presume all the Judges resided. So long as this state of things continued, it was at all times practicable to obtain an order of the Court for notice to creditors to appear. But at a subsequent period, when the population in the interior required the establishment of Nisi Courts, and subsequently of circuit Courts with original jurisdiction, it would have been extremely incon-veniant to require that a Judge’s order should be obtained before the debtor could progress with his application for the benefit of the Act, and hence I presume originated the practice of the Clerk’s granting the order or rule. This practice, although not in strict conformity with the Act, has prevailed as far back as any member of this Court has any recollection of legal proceedings. It has existed so long without question, and is so convenient in practice, that this Court is not now disposed to disturb it. It no doubt had its origin in some rule of Court, or some judicial decision which has not come down to us.

2. That in this case there was no affidavit of the publication of the notice. There can be no doubt that the words of the Act should be pursued, and that the fact of publication should be verified by affidavit whenever the creditors neglect or refuse to appeal-. When the creditors do appear it may not be necessary. In this case certain of the creditors did appear; and as to them no affidavit of service may have been necessary: but as the Court cannot know but that there are other creditors, whose rights may be affected, there should always be satisfactory evidence by affidavit of the publication of the notice. The Act does not say by whom the affidavit should be made, but I presume the Clerk or any otheip person knowing the fact would be competent.

3. That the notice in this case does not require the creditors to appear on a day certain. This is certainly necessary, and the notice to appear on day of October, or such other day as the Court may order during the term, is certainly not a compliance with the law. If the three months should expire before the first day of the term, then the notice may be to appear at that time, but if the three months will not expire until after the commencement of the term, then the appearance day must be on some day during the term. To avoid difficulties, it will be proper that the prisoner should make his application on the day specified in his notice, and in that event his application for discharge may be then heard or continued to some other time during the term.

The motion to reverse the decision of the circuit Court is granted.  