Ex parte Clarke v. Wright

10 Wend. 584

Opinion

The relator obtained á warrant against one John Kibling, against whom he held a judgment in the Jefierson common pleas, under the act to abolish imprisonment and to punish fraudulent debtors, on the allegations that the debtor had property or rights in action which he fraudulently concealed, and that he had assigned and disposed of his property with intent to defraud his creditors. The debtor was arrested and brought before the judge, and after hearing the proofs offered, the judge was satisfied that the allegations of the complainant were substantiated. To prevent a commitment, the debtor thereupon made and delivered to the officer an inventory of his estate and an account of his creditors, and the judge (not being entirely satisfied as to the proper course to be pursued by him under these circumstances) made a. provisional order for an assignment, which was accordingly executed. After these proceedings were bad, the complainant applied to the judge for a committitur, which he declined granting, although satisfied that the proceedings on the part of the debtor to avoid the commitment were not just and fair. See 16th § of act, Laws of 1831, p, 400. The complainant now asks for a mandamus directing rile judge to issue a committitur, which was granted,