Coman v. Merrill & Anderson

19 Johns. 277

• Court: New York Supreme Court
• Decided: January 15, 1822
• Status: Published

Opinion

Spencer. Ch. J.

delivered, the opinion of the Court. The 1 Ith section of the act extending the jurisdiction of justices of the peace, adopts all the provisions of the act, for the recovery of debts to the value of twenty-five dollars, “ except as is therein otherwise directed.” There is no provision as to such a case as the present; consequently, all the enactments, in relation to the discharge of the person, of the debtor, are adopted by the latter act. The act for the recovery of debts to the value of twenty-five dollars, (1 N. R. L. 394. s. 12.) enacts, that in case any such person having a family in the state, and not being a freeholder at the time of judgment rendered against him, or at any time thereafter, may he discharged, on making an affidavit, in the manner therein directed, that he comes within the pro*. visions of the act.

The objection to the affidavit is, that it does not state that Merrill had a family, when judgment was rendered against him, but merely, that he had a family when he made the affidavit. We are of opinion, that the affidavit is conformable as well to the letter as the spirit and intention of the act. The legislature never meant to throw impediments in the way of marriage, or to consider a man who had a family when imprisoned, as less entitled to enlargement, than one who had a family when judgment was. rendered against him. They, undoubtedly, meant that no man who had a family when the affidavit was made, should be separated from his family for more than thirty days; and that his family should not be exposed to suffering and want, by being deprived of the benefit of his labour, for a longer space than thirty days.

Judgment for the defendants.