Ex parte G. Smith

Ex parte G. Smith. nde/'tho^t to abolish imprisonment for debt, &c., [sess. 42, ch. 10],) extends to one committed to gaol for not fulfilling an order of filiation and maintenance, within 1 R. L. 306. sect. 1. Smith having been committed to gaol in Columbia, for not performing an order of filiation and maintenance, for a weekly sum of money made pursuant to 1 R. L. 306, sect. 1; and being afterwards discharged under the act to abolish imprisonment for debt, <fcc. (sess. 42, ch. 101;) and the sheriff refusing to set him at liberty, on the production of, the discharge, D. B. Tallmadge, moved for a habeas corpus to bring him up, in order that he might be discharged by this court. He said the question in these cases is, whether the debt be due to the people, or to individuals. In the latter case, the discharge under the insolvent act is operative. (Rex v. Wakefield, 13 East, 190.) Judgment for a tort creates a debt within the meaning of the act. (Ex parte Thayer, 4 Cowen, 66.) An action lies on this order. ( Walworth v. Mead, 9 John. 368.) C. Bushnell, contra, agreed that the court should finally dispose of this question without the formality of a habeas corpus. He said that all the sheriff and overseers wished, was to tie instructed in their duty. This case is sui generis'. Actual payment of any sum in gross would not discharge the prisoner. And if the insolvent discharge operates for the amount due, it cannot reach the arrears which may hereafter accrue. A discharge affects no debt which cannot be proved, and be the subject of a dividend. [MAJORITY — Curia.] Curia. We think this is a case within the meaning of the act. The order imposes a mere civil obligation, for which an action would lie. It is in the nature of a judgment for so much, payable by weekly instalments. (Walworth v. Mead, 9 John. Rep. 368.) Another effect of the order is, to impose on the putative father the obligation of giving surety to perform it, if he has neglected'the actual performance. For default of both, he is imprisoned. He is in execution for not performing one of two things, both of which arc, in their nature, civil obligations ; and both of which were due at the time of the assignment. His imprisonment was for, or by reason of a debt, due at the time of the assignment, in the words of the insolvent act. It is for such a case that the act was intended. The debt it- ’ self is not discharged ; but only one remedy for the debt Whether the putative father may not yet be sued and imprisoned for arrears upon the order accruing after the as^signment, in analogy to the case of rent, and within the reason of Lansing v. Prendergast, (9 John. 127,) it is not necessary now to decide. Motion granted.