The opinion of the Court was delivered by
Gibson, C. J.— In M’Clure v. Foreman, (ante 280), the insolvent debtor was bound by the condition of a previous bond, to file a petition at a court preceding the term to which the process on which he had last been arrested was returnable, and he therefore had no choice but to begin his proceeding to obtain a discharge before the day prescribed by the condition of the bond in suit; but as a second discharge from the same debt would have been nugatory, it was held that the condition was substantially performed by what was already done. In the case before us, the time of the application was not a matter of compulsion but of choice; yet the difference is an unsubstantial one. In the case referred to, it was held that the condition, being prescribed by a remedial statute, was to be as liberally construed in advancement of the intention as the statute itself, of which it is a part, and not with the strictness of construction which is properly applicable to a-condition at the common law, but which would make the proceeding not a remedy for the debtor’s relief, but a snare. What matters it then that the defendant was not compelled to apply at as early a day as he did, seeing that the plaintiff had all the security from his bond, as well as all the notice and opportunity to oppose the discharge which he could have had if the petition had been filed at the day. No clause of the insolvent law forbade the debtor to . apply before it; and it was not the design of the statute to secure him further by compelling the debtor to procure another discharge for the empty purpose of complying literally with the condition. The case, therefore, is within the principle of the case quoted, in which it was said that a discharge at an adjourned court between the arrest and the time of appearance, would be held to be an equivalent to performance. That is exactly our case, and the record consequently exhibits no error.
Judgment affirmed.