*248 By the Court,
Sutherland, J.The demurrer is well taken. In order to give the officer jurisdiction, to whom application is made for a discharge, under the ninth section of the act for giving relief in cases of insolvency, and the acts amending the same, (1 R. L. 464 ; Statutes, vol. 4, p. 41, b. and p. 23, c.) it is necessary not only that the debtor should have been actually imprisoned for sixty days or upwards, upon execution in a civil action, but it must also appear that he is indebted to the creditor who makes the application, in a sum not less ‘than $25. The proceedings under the ninth section are to be instituted by a creditor or creditors of the insolvent, and it is a particular description of creditors only who are authorized to make the application; those whose respective debts are not less than $25. It is upon the application of such a creditor only that the officer acquires jurisdiction of the subject ; the fact therefore should have been expressly averred in the plea. (1 Johns. R. 91. 7 id. 75. 11 id. 175. 19 id. 39. 20 id. 208. 3 Cowen, 206. 1 id. 316.) The case of Wyman v. Mitchell, (1 Cowen, 316,) shews that the want of .this averment cannot be supplied by the discharge itself. Jurisdiction must first be given to the officer, before any presumption in favor of his acts can arise, and a recital in the discharge itself cannot confer or afford any evidence of jurisdiction.
Judgment for plaintiff on demurrer, with leave to defendant to amend, on payment of costs.