
    THE PEOPLE ex rel. THOMAS P. ELDRIDGE and others v. ENOCH L. FANCHER, Justice.
    
      Habeas corpus—res adjudícala—debts fraudulently contracted—discharge from.
    
    One Friedlander, who was in the custody of the sheriff, under an execution issued against his person in favor of Eldridge and others, applied to Mr. Justice Fancher, on habeas corpus, to obtain his discharge. The sheriff, in his return, alleged that a writ of habeas corpus had previously been granted by Mr. Justice Robinson, on the application of the said Friedlander, and that the judge had then decided that he was not entitled to his discharge, and that the adjudication was made on the same facts, on which he now asks his discharge in this proceeding. To this return, the prisoner put in a traverse, denying, as a matter of fact, that the case, as then presented, had been presented to, and passed on by Judge Robinson. To this the sheriff demurred. Held, on the demurrer, that the case was not res adjudícala.
    
    Article 5, of chapter 5, title 1, part 2, of the Revised Statutes, entitled, “Of voluntary assignments,” was not abolished by the passage of the non-imprisonment act of 1831 (the Stillwell act).
    Certiorari to review the decision of Mr. Justice Fancher, discharging, on habeas corpus, one Max Friedlander from the custody of the sheriff, under an execution against the person of Friedlander in favor of Eldridge and others.
    The relators obtained judgment against Friedlander on the 29th of August, 1871, for $2,572.89, and, on the 24th of September, 1872, after an execution upon the said judgment against the property of the said Friedlander, had been duly issued to the sheriff, and returned by him unsatisfied, an execution against his person was issued to the sheriff, upon which he held Friedlander at the time of the issuing the writ of habeas corpus by Mr. Justice Fancher.
    On the 5th of August, 1872, Friedlander applied, by-petition, to one of the judges of the Court of Common Pleas, that his estate might be assigned for the benefit of all his creditors, and that his person might thereafter be exempted from arrest or imprisonment, by reason of debts arising upon contracts, pursuant to article 5, chapter 5, title 1, part 2, of the Revised Statutes, entitled, “ Of voluntary assignments,” and, on the 18th of October, 1872, the said petition and relief were granted.
    An application was afterward made by Friedlander, upon a habeas corpus, to obtain his discharge from imprisonment upon the execution against his person in favor of the relators. The judge refused to release him. The relators claimed that the former application was founded upon the same facts as the present one. This was denied by Friedlander.
    
      G. A. Seixas, for the relators.
    
      Thomas Allison da Horatio F. Averill, for Friedlander.
   Donohue, J.:

In this case, the relator asks a review of the proceedings of Judge Fanoher, discharging one Friedlander from custody on habeas corpus.

The facts are, that Friedlander, owing debts on contracts fraudulently made, applied, under article 5, chapter 5, part 2, of the Revised Statutes of this State, to procure the exemption of his person from imprisonment under that act. He duly made the assignment and obtained his discharge under that act, and, being imprisoned in actions on some of the contracts made prior to his application, applied to Judge Robinson, on habeas corpus, to obtain his discharge, which was denied. He then, on a new writ, applied to Judge Fanoher, who, after hearing, granted the discharge sought now to be reviewed.

The first point raised by the relator’s counsel, is that the question was res adjudicata. Any system of law which would keep a prisoner in custody, when the facts show him entitled to his discharge, would be a perversion of justice, and, unless there is some reason to believe that the case and questions, as presented to Jndge Fanoher, had already been passed on by Judge Robinson, the point taken must fail. In looking at the record, we find that the proceedings before Judge Robinson were set up as a bar here, and that to such return the prisoner put in a traverse, denying, as a matter of fact, that the case, as then presented, had been presented to, and passed on by Judge Robinson. To this the sheriff demurred, and, on that demurrer, Judge Fanoher gave judgment. The case hardly presents such a state of facts as brings the relator within the rule laid down in the Barry v. Mercein case. The rule is there stated as broadly as courts could well go where liberty was concerned, and any extension of the rule would work injustice. As J udge Robinson did not pass on the case as presented to Judge Rancher, this point must fail.

The next ground taken by the relator, is that the non-imprisonment act, in fact, abolished the article under which the original discharge was sought, because it made provision in respect to debts fraudulently contracted, and the mode of discharging them. In this the relator is mistaken. After the non-imprisonment act was passed, no discharge under any other provision as to simple contract debts, without fraud, was needed, and the article thus on the statute book, and continued in law for forty years, has only debts, fraudulently contracted, and on which persons can be arrested, to act on.

Again, that the act of 1831, non-imprisonment act, provides a mode, after arrest, of obtaining a discharge, gives no evidence that the legislature did not intend to give the debtor a mode at any time before arrest or final judgment, in which he could, on his own motion, and on a surrender of all he possessed, obtain such discharge. Article 6 provides for an entirely different proceeding, and has no application to the rights claimed by Rriedlander.

Where, as in this case, in order to obtain his original discharge, the defendant had to assign all he possessed, and where it must be taken he did, there does not seem to be any good reason to strain the law to hold him.

Daniels, J., concurred.

Proceedings affirmed. 
      
       25 Wend., 64.
     