I cannot concur in the result reached by my learned colleagues. *Page 230
I do not think that such matters as the comforts or discomforts or particular physical reactions of creditors and court alike have any place in or application to the instant case.
The specific question presented on this writ is whether the plea of res adjudicata is available under our Insolvent Debtors' act. The answer depends entirely upon the construction and application of this act.
Section 2 of our act concerning insolvent debtors (2 Comp.Stat., p. 2824) provides, inter alia:
"* * * and that the said defendant will in all things complywith the requirements of the said insolvent laws, and will appearin person at every subsequent court, until he or they shall be duly discharged as an insolvent debtor; * * *."
Section 17 (b) of the same act also provides, that, if "* * * the said court shall fail or refuse, for any reason, to discharge such person as an insolvent debtor, as provided in said laws, and such person, upon such refusal, shall surrender himself immediately to the sheriff or keeper of the jail of said county, it shall be lawful for such person thereupon to make out and deliver to such sheriff or keeper a new inventory and a new bondas and in the manner, and of the tenor and effect mentioned inthe second section of the said act to which this is a supplement; whereupon such person shall be discharged from the custody of such sheriff or keeper; and he shall be entitled tomake a new application to said court for his discharge under thesaid act, and the same proceedings shall be had for that purpose,as fully and effectually as if no previous application has beenmade. Rev. 1877, p. 505."
It seems quite obvious that the debtor may be refused a discharge "for any reason" and such reason, of course, need not necessarily be one relating to the inventory. For instance, he may not personally appear, or his bond may not be proper, or he may have committed perjury in answering interrogatories, c. Supposing the debtor's holdings remained unchanged at each subsequent application is he to be deprived of the benefits of the act merely because the last inventory, the accuracy of which is not questioned, chances to be identical with the inventory accompanying the first or any subsequent application? *Page 231 Let us further suppose a case in which the debtor had no assets of any kind to inventory other than the apparel covering his body. He so inventories it — he continues to remain in that impecunious position — is he to be deprived of the benefits of the act? I do not think so. Such a construction would mean life imprisonment for a civil debt. I think that the statute was enacted to safeguard a debtor from such a situation.
It is fundamental that a statute should be construed as to suppress the mischief and advance the remedy. Randolph v.Larned, 27 N.J. Eq. 557. It is urged that section 33 of the Insolvent Debtors' act and chapter 124 of Pamph. L. 1925, p. 347, safeguard the debtor. I do not think that this is so. The aforesaid legislation merely enlarges the debtor's space of imprisonment. It is imprisonment none the less. It seems to me that it utterly fails to cure the inherent evil in the result reached by the majority, namely, that of sanctioning the imprisonment of an insolvent debtor for life.
In the case of Koch v. Burpo, 91 N.J.L. 116, Mr. Justice Kalisch for the Supreme Court held (at p. 122):
"The term `new application,' being contained in a remedial statute, must be liberally and beneficially construed."
"As the remedy provided by the statute makes against hardshipand oppression and for humanity and liberty, the widest scopewill be given to the language used, in order to carry out what appears to be the legislative intent." (Italics mine.)
"Therefore, to give proper effect to the act and to carry out the legislative intent, we think that an insolvent debtor, who has been refused his discharge for any cause, may make any number of new applications."
"And it is obvious that if we hold otherwise, it would be, in effect, sanctioning the imprisonment of an insolvent debtor for life, if he failed upon his second application to obtain his discharge."
As already indicated the statute entitles the insolvent debtor to make a new application and the same proceedings are to be held for that purpose as fully and effectually as if no previousapplication has been made. What is a "new" *Page 232 application? Bouvier's Law Dictionary (Rawle's Third Edition, page 2337) defines the word "new" as follows: "This term in its ordinary acceptation, when applied to the same subject or object, is opposite of old." The instant application of the insolvent debtor, his last application, surely was a new application within the aforesaid definition. Conversely all applications prior to the last one were old applications.
For the foregoing reasons I am of the opinion that the court below was in error and that its order of July 28th, 1933, should be set aside. *Page 233