Stephens v. Ely — 6 Hill & Den. 607

Majority

p. 607

Stephens vs. Ely.

Headnote

In pleading a discharge granted under the compulsory provision of the bankrupt act, it is not sufficient to aver that the defendant was declared a bankrupt by the court which granted the discharge ; but the averment should be 'that he was a bankrupt, setting forth enough of the proceedings to show jurisdiction.

The particular acts of bankruptcy, however, on which the creditors proceeded, need not be set forth. Per Nelson, Ch. J.

Declaration on a bond dated in May, 1841, conditioned to pay $7144, with interest, in two years. Plea, that heretofore, to wit, on the 26th of July, 1842, at a district court of the United States, &c., it was ordered and decreed by the said court that the said Smith Ely [the defendant] be, and he was thereby declared a bankrupt, pursuant to the act of congress passed August 19th, 1841; and that afterwards, to wit, on the 6th of February, 1843, it was ordered, decreed and allowed by the said district court, in pursuance of the said act of congress, that the said Smith Ely be, and he accordingly thereby was declared fully discharged of and from all his debts provable under said act, which discharge has been duly certified in pursuance of said act, and still remains in full force and effect. The plea then averred that, at the time of the commencement of the proceedings against the defendant as a bankrupt, and at the time he was declared a bankrupt, to wit, on &c., he was a merchant residing in the

p. 608

city of New-York, and owed debts to an amount not less than $2000 ; and that, on the petition of one or more of his creditors, to whom he owed debts amounting to not less than $500, he was. declared a bankrupt &c.—averring further that the said debts were not contracted in consequence of defalcations as a public officer &c., and that the debt in question was provable under the said act. The plaintiff demurred, assigning for cause, among other things, that the plea did not set forth any specific act of bankruptcy committed by the defendant, nor aver enough to give jurisdiction to the court which granted the alleged discharge. The defendant joined in demurrer.

W. H. Taggard, for the plaintiff.

W. Skidmore, for the defendant.

The discharge in this case was grante'd under the compulsory provision of the bankrupt act, and it is supposed by the counsel for the plaintiff that it was necessary to aver in the plea the existence of the facts upon which the creditors were authorized to proceed and have their debtor declared a bankrupt; or in other words, that the particular act or acts of bankruptcy upon which they proceeded against him should be specified. I think not. As1 the proceeding is one taken at the instance of the creditors, and in which the debtor is to be regarded as an adversary party, it appears to me sufficient for him, in pleading the discharge, to aver in general terms that he had become a bankrupt, within the true meaning and intent of the act of congress. To hold that an averment of the particular act or acts of bankruptcy is essential to the validity of the plea, would be equivalent to holding that the debtor must assume upon himself the proof of the averment on the trial, if put in issue by the pleadings; a burthen which I apprehend it would be extremely unjust to impose upon him. (Frary v. Dakin, 7 Johns. Rep. 75 .) He can hardly be held . responsible for the truth and existence of matters which have been determined against him by a competent tribunal in an ad

p. 609

versary proceeding on behalf of the creditors, and of which, they have had the benefit. The question under this clause stands upon a very different footing, as it respects jurisdictional facts, from the one arising under the voluntary branch of the law, where the bankrupt is the moving party, and must see that the court has jurisdiction.

The pleadings under the English bankrupt law afford no light upon the question, as that act prescribes a short form of pleading the certificate. (Eden On Bankr. 425; 3 Chit. Pl. 911, ed. of 1840.)

The pleader in this case, however, instead of beginning by setting out that the defendant had been declared a bankrupt, should have begun with the general averment that the defendant was a bankrupt, within the true intent and meaning of the act of congress, setting forth enough of the proceedings to give the district court jurisdiction: and then taliter processum fuit that he was discharged by the court.

The rules of pleading as heretofore applied in cases of pleading discharges under our insolvent laws, will afford a very good guide to the pleade.r under the law in question, mutatis mutandis. If the pleader in the instance before us had consulted those cases, he would have been more successful in presenting the defence in a skilful and lawyer-like manner.

I think the plea defective, and the demurrer well taken.

Judgment for the plaintiff.