Opinion
(October Term, 1796.)
A discharge under the insolvent debtor's act, ordered by the proper officers, will be presumed to have been regularly done until the contrary be shown. Under the first insolvent act the defendant was discharged only as to those who had commenced suits against him, and had notice given them of the debtor's petition.
COVENANT, for certificates which defendant borrowed and agreed to return or pay for in money at the rate of 4 shillings in the £. (414) Amongst other pleas, the defendant pleaded that he had been discharged of the action under the insolvent debtor's act. He produced a petition setting forth his imprisonment at the suit of another creditor, and praying the benefit of that act, 1773, ch. 4. He also produced the return of the gaoler, by which it appears he was in also at the suit of the present plaintiff. He also produced the subsequent proceedings, showing his having taken the oath prescribed in that act, and his having been discharged.
It was argued on the other side that he ought also to produce the notice served on the present plaintiff, of his being about to take the benefit of the act. The evidence offered did not amount to a proof of notice.
It was answered that the giving of notice is a circumstance incident to the business of his discharge, and must have been proved to the justices of the peace before they proceeded. Since they have discharged him, the Court here will presume that all things preparatory to his discharge were rightly and legally transacted; and they cited Bull. Nisi. Pri., 173.
Since there is a discharge ordered by the proper officers of justice, we will presume all circumstances required by law to precede the discharge to have been regularly observed; otherwise, we must presume that the justices have acted illegally, which is a presumption never entertained against the proceedings of officers of justice. If in fact they have proceeded to discharge without notice, and the creditor will show that, it will vitiate the proceedings. The presumption of omnia recte acta lasts only until proof of the contrary appear; but we will not require the defendant to prove notice to have been given, the plaintiff not being able to show any irregularity in the proceedings.
There was a verdict for the defendant.
One other point was moved in this cause, namely, whether the defendant by a discharge under the first branch of the act was discharged as to all creditors, or as to such only who had instituted suits against him at the time of his imprisonment.
Clearly, before the late act which has made some alteration, he was discharged only as to such creditors who had commenced their suits and had notice given them of the debtor's petition.
See Burton v. Dickens, 7 N.C. 103; Howard v. Pasteur, ibid., 270; Jordan v. James, 10 N.C. 110.