
    PEOPLE, ex rel. LATORRE, against O’BRIEN.
    
      Supreme Court, First District ; General Term,
    
      Nov., 1868.
    Arrest.—Discharge erom Imprisonment.—Stillwell Act.
    The provisions of the revised statutes, allowing voluntary assignments by insolvents for the purpose of exonerating their persons from imprisonment, are not applicable to the case of a debtor imprisoned on proceedings under the act of 1831, known as the “Stillwell act.”
    Appeal from an order.
    The relator was arrested under a warrant issued under the act of 1831, known as the “ Stillwell act,” at the instance of creditors, upon charges of having fraudulently purchased goods on credit, by false representations, and having removed them out of the State. The charges were substantiated in the proceedings against him, and he was committed to jail under the statute.
    An application was subsequently made on behalf of the debtor, for an order discharging his person from imprisonment, under the provisions of the revised statutes (2 Rev. Stat., 25). The order having been granted by the city judge, the relator applied to a judge of the supreme court, for a writ of habeas corpus to discharge him in pursuance thereof; the discharge being denied, the relator appealed to this court at general term.
    
      Joseph J. Marrin, and Messrs. Beebe, Donahue & Cooke, for the relator.
    
      Brown, Hall & Vanderpoel, for sheriff.
    
      G. A. Seixas, for creditor.
   Cardozo, J.

—The apparent (for there is not any real) difficulty in this matter seems to arise from the relator’s counsel having confined his attention to section 9 of the act of April 26, 1831 (4 Edm. Stat., 465), overlooking or ignoring section 11. The ninth section provides that the final commitment of the defendant shall be to the jail of the county in which the hearing is had, to be there detained until he shall be discharged “ according to law.” The 11th section points out the law according to which the defendant may be discharged. That section provides that the defendant so committed shall remain in custody in the same manner as other prisoners on cj iminal process, until a final judgment shall have been rendered in his favor, in the suit prosecuted by the creditors at whose instance such defendant shall have been committed, or until he shall have assigned his property and obtained his discharge, as provided in the subsequent sections of this act.” When the act of 1831 declares that the prisoner shall remain in custody until discharged according to the sections of that statute, it is preposterous to argue that he could be discharged under the provisions of a prior statute. The language of section 11 excludes all other remedies, and restricts the defendant’s applicacation for discharge to a proceeding under and pursuant to the provisions of that act. The statute of 1813, reenacted by the revised statutes (2 Edm. Stat., 49), was therefore inapplicable to the relator’s case, and the decision of the learned justice below was clearly right, and his order should be affirmed with costs.

Ingraham, J.

—If the act to abolish imprisonment, &c. is to be considered operative, I concur in the above opinion, affirming the order appealed from. The reason is apparent—viz: that in the proceedings under the twelfth section, the assignment is for the benefit of the prosecuting creditors (Spear v. Wardell, 1 N. Y. [1 Comst.] 114), while under the act of which the defendant availed himself, the assignment is for the benefit of all the creditors. The order should be affirmed.

Order accordingly.  