Mather's Case

14 Abb. Pr. 45

Opinion

Ingraham, P. J.

There is a fatal objection to these proceedings which cannot be obviated, and, although not made by the creditor’s counsel, cannot be overlooked as going directly to the jurisdiction.

The notice of application for a discharge is, that it will he made to a justice of this court at chambers. A justice out of court has no authority to grant, in such a proceeding, a discharge.

The statute (3 Rev. Stat., 5 ed., 105) says, that the debtor may petition the court from which the process issued, &c.

The application must he to the court, and not to a judge out of court: he has no authority, and no jurisdiction in the matter.

Independent of this objection, I see nothing in the evidence to prevent the discharge. The sale of stock is, perhaps, not altogether free from suspicion; hut as the purchaser thinks himself able to pay the notes, and as the debtor’s interest in them would pass to his assignee, I do not think the facts proven sufficient to prevent the discharge; but as the proceeding is void for want of jurisdiction, I must deny the application, without prejudice to renewing it in a proper manner.

Application denied.