Davis v. Hendrickson , 15 N.J.L. 481 ( 1836 )

The opinion of the court, was delivered %

Ryerson, J.

The return of this writ brings up the proceedings of the court below, in a plea of insolvency.

It i? manifest from the return, that the court had no jurisdiction. The debtor had been arrested by a constable, and discharged out of custody on giving bond merely, pursuant to the statute of 1880, Harr. Comp. 299. He had not made, or sworn to. any inventory of his estate and effects, as further directed by the statute. The officer therefore was guilty of an escape. The debtor was not in a condition to make application for his discharge as an insolvent, and had not complied with the first preliminary step to warrant the court to grant him a hearing on the subject matter of his petition. The petition ought to show this, on its face, and whatever else is requisite to give the court jurisdiction. It does not. The whole proceeding therefore is coram nonjudice, and must be set aside.

This is not all. The proceedings are not only erroneous on their face, but the plaintiff in certiorari, offered on the trial of the issue, to show by the Constable who made the arrest, that the inventory had not been given. This the court refused to permit, and therein erred; and it is no answer to say that the bill of exception by which this fact was disclosed, was not properly allowed. If not strictly good as a bill of exceptions, it may be received as an authentic state of the facts, which this court may lawfully require and act upon. Let the discharge be set aside.

Hobnbloweb, C. J. and Fobd, J. concurred.

Discharge set aside.

Cited in Stagg v. Austin, 3 Harr, 85 ; Van Waggoner v. Coe, 1 Dutch. 199 ; Bond v. Cox, 1 Vr. 385.