In the Case of Fortner's

Superior Court of Delaware

In the Case of Fortner's

2 Del. 461

DecidedJuly 5, 1838

StatusPublished

This text of 2 Del. 461 (In the Case of Fortner's) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In the Case of Fortner's, 2 Del. 461 (Del. Ct. App. 1838).

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Opinion

The Court

said that generally, in computing time, the first day should be excluded, and the last included; but this was not a universal rule at common law, much less under statutory provisions, where these questions generally arose, and where the mode of computation was generally to be collected from the terms of the act.

The act of 1832 leaves no room for doubt as to this point, for it requires, in express terms, that the day of commitment shall be included in computing the five days. The time, therefore, expired yesterday.

But it does not follow that this petitioner is therefore deprived of the benefit of the general insolvent law, nor that the jurisdiction of this court over his case is necessarily ousted by this lapse of time. The act of 1832 is a cumulative act; it was designed for the benefit of the insolvent, and also for protection to the county, a benefit which he may waive for the purpose of more effectual relief, and a more general discharge. These acts being in pari materia, must be con *463 strued so as to harmonize with each other; and if this cannot be done the particular law, instead of indirectly repealing the whole system, ought to yield to it. The general law enables the honest debtor, by a full surrender of his property, to be relieved from harrassing imprisonment by any of his creditors; the particular law requires that he shall not be detained in prison even for more than five days, unless at the expense of his imprisoning creditor, or unless fraud be alledged against him. This is for the benefit of the debtor; but if by the construction contended for it should be allowed to deprive him of the more substantial remedy under the general law, it would be a serious injury, instead of a benefit to him. The spirit of both laws may be harmonized and effect given to both by regarding the petition for relief under the general insolvent law, as a waiver on the debtor’s part of the benefit of the act of 1832. This is not only a reasonable but a necessary construction; otherwise, the provisions of the particular act would in effect repeal the general law, defeat the insolvent’s own petition, enable his creditors one after another to throw him into prison, without even alledging any thing fraudulent against him, and take away from this court the cognizance of insolvent cases whilst they were in the very act of exercising the jurisdiction expressly given by law.

We will proceed with the hearing, and allow the petitioner the benefit of the general insolvent law, on his complying with its requisitions.

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The Court

said that generally, in computing time, the first day should be excluded, and the last included; but this was not a universal rule at common law, much less under statutory provisions, where these questions generally arose, and where the mode of computation was generally to be collected from the terms of the act.

The act of 1832 leaves no room for doubt as to this point, for it requires, in express terms, that the day of commitment shall be included in computing the five days. The time, therefore, expired yesterday.

But it does not follow that this petitioner is therefore deprived of the benefit of the general insolvent law, nor that the jurisdiction of this court over his case is necessarily ousted by this lapse of time. The act of 1832 is a cumulative act; it was designed for the benefit of the insolvent, and also for protection to the county, a benefit which he may waive for the purpose of more effectual relief, and a more general discharge. These acts being in pari materia, must be con *463 strued so as to harmonize with each other; and if this cannot be done the particular law, instead of indirectly repealing the whole system, ought to yield to it. The general law enables the honest debtor, by a full surrender of his property, to be relieved from harrassing imprisonment by any of his creditors; the particular law requires that he shall not be detained in prison even for more than five days, unless at the expense of his imprisoning creditor, or unless fraud be alledged against him. This is for the benefit of the debtor; but if by the construction contended for it should be allowed to deprive him of the more substantial remedy under the general law, it would be a serious injury, instead of a benefit to him. The spirit of both laws may be harmonized and effect given to both by regarding the petition for relief under the general insolvent law, as a waiver on the debtor’s part of the benefit of the act of 1832. This is not only a reasonable but a necessary construction; otherwise, the provisions of the particular act would in effect repeal the general law, defeat the insolvent’s own petition, enable his creditors one after another to throw him into prison, without even alledging any thing fraudulent against him, and take away from this court the cognizance of insolvent cases whilst they were in the very act of exercising the jurisdiction expressly given by law.

We will proceed with the hearing, and allow the petitioner the benefit of the general insolvent law, on his complying with its requisitions.

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Bluebook (online)

2 Del. 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-case-of-fortners-delsuperct-1838.