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![handle is hein.slavery/ssactsengr1009 and id is 1 raw text is: TRINITY TERM, 19 GEO. III. C. P.
motion after imprisonment. In cases of bankruptcy, and of privilege, (which most
resemble this case), the imprisonment being illegal, the party may be discharged upon
motion as well as by plea. It was so done in the famous case of Mr. Pitt, and in
many others. In Sir Daniel O'Carrol's case, before Lord Hardwicke, the Chancellor
governed himself by analogy to the proceedings at law. He was decreed to pay
money, and in default thereof process 'of contempt to issue against his effects, but not
against his person.
The other Judges adhered to their former opinion in Ford and Chilton.
It was referred to the prothonotary to examine whether any and what part of the
sum recovered by the verdict (over and above the 341. 6s. 8d. and 411. 3s. costs), hath
accrued since the 22d of January, 1776. And a trial was directed on a feigned
issue, in the sittings after term, whether the defendant's discharge at the sittings
was fraudulent. If the plaintiff should be nonsuited, or a verdict for the defendant,
or no trial through default of the plaintiff, then the defendant, on payment of the
sums so reported due, and of the said 341. 6s. 8d. and 411. 3s., to be discharged
otherwise to remain in custody.
(m) C. 38. (n) Ante, 798.
MASON V. VERE. The clause in the Insolvent Act for exempting future personal
estate from execution for debts prior to the discharge, extends to all persons, and
not to traders only.
This cause (see fol. 1217, ante), which was against the same defendant, resembled
the preceding one, with this difference, that here an execution had been had by fieri
facias, on the defendant's goods for part of the debt, and a ca. sa. for the residue.
Grose, supported by Kempe and Walker, moved that the money levied by the
fieri facias might be returned to the defendant, or taken in satisfaction of his new
debt (if any such had accrued since the defendant's discharge), on a clause in the
Insolvent Act (o), which recites, that, from their future effects being liable to their
previous debts, persons had found dif-[1310]-ficulty of obtaining new credit to set
themselves up in their usual trades and occupations, and had therefore gone abroad
and carried their arts and manufactures into foreign countries; and therefore, to
prevent such evil, enacts, that only their real estates or money in the funds, acquired
after such discharge, shall be liable to their former debts. But that no discharge
of the insolvent shall be a discharge to any of his partners in trade, or his sureties,
or co-obligors (p). Which clauses they contended to be general, and to extend to
all persons whatsoever, notwithstanding the special preamble.
Davy contra, insisted that the preamble confined the clause to persons in trade,
or exercising arts and manufactures beneficial to this country, under which descrip-
tion the Legislature never intended to include the occupation of a catchpole. And
he cited Deacon and Weston, in the King's Bench, 1750, on the Insolvent Act,
21 Geo. 2, and Sheldon and Foot (q), in the King's Bench, Hil. 1757, on the 28 Gee. 2,
where the recital of the preamble was held to narrow the general words of the
enacting clauses.
Blackstone, J., observed, that in all former Insolvent Acts down to the 12 Geo. 3,
inclusive, a power was given to take in execution for any former debt the future
effects of the insolvent (except his apparel, bedding, tools, &c. not exceeding the
value of 201.), but that this clause was omitted in the Acts of 14, 16, & 18 Geo. 3,
when the present clause was first inserted : and that in the 18 Geo. 3 (though that
cannot govern the interpretation of the Act now before the Court, of 16 Geo. 3),
besides real estates and money in the funds, salaries of offices are made liable to
answer former debts.
De Grey, C.J.-I am not sure that I adopt the true, but certainly the better
construction of this Act, when I say that I am of opinion, that this clause must be
extended generally, and is not confined to persons in trade, &c. as it gives to more
persons an opportunity of gaining a subsistence by raising a new credit, and so
prevents, in the idea of the Legislature, the depopulation of the kingdom. The
reasons are very strong on both sides of the argument. And I at first thought the
fund for the relief of the old creditors should be made as [1311] large as possible, by
narrowing the exemption to persons in trade or arts. But the great difficulties
2 BLACKL W. 1310.](ViewImageLocal?handle=hein.slavery/ssactsengr1009&div=1&collection=&method=preview&ext=.png&size=3)