Delavan v. Stanton — 2 N.Y. Super. Ct. 190

Majority

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Henry W. Delavan and Edward C. Delavan versus Daniel Stanton and John B. Wilbur.

Headnote

A plea of an insolvent’s discharge, cannot be joined with a plea of nnltiel record : but the misjoinder can only be taken advantage of by special demurrer, or by motion.

If a party plead a judgment, he must shew the Certainty of it, setting forth the parties, and the court in which it was obtained. And the plea of an insolvent’s discharge ought to set forth the action, in which the debtor was imprisoned, the court out of which the execution was issued, and the name of the creditor upon whose application the proceeding was instituted.

A defect in the averments of a plea, as to these particulars, is matter of substance, and may be taken advantage of by a general demurrer.

This was an action of debt upon a judgment obtained by the plaintiffs and one Thomas Gould, (since deceased,) against the defendant, in the Supreme Court of this State, at the August Term of that Court, in the year 1817. The defendant Stanton appeared, and pleaded, 1. Jful tiel record. 2. “ That after the said supposed recoveiy, in the said plaintiffs’ declaration mentioned, and before the commencement of this suit, the said defendant, then being an inhabitant of the said City and County of New-York, was a prisoner in the jail of the City and County of New-York, upon execution issued against him in a civil action, and actually imprisoned in the said gaol, on the said execution, for sixty days, then last past and upwards; and being so imprisoned, as aforesaid, application was made to Richard Riker, Esq.,. then being recorder of the City of New-York, at the said City of New-York, by one of the creditors of the said defendant, Daniel Stanton, then an insolvent debtor, praying for the relief afforded in and by the act of the Legislature of the State of New-York, entitled “ an act for giving relief in cases of insolvency, passed the 12th day of April, 1817,” under an apprehension that the estate or effects of the said Daniel Stanton would be wasted and

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embezzled; and that upon such application, the said creditor did make affidavit according to law, that the said insolvent was justly indebted to him, in a certain sum of money, then due and specified in said affidavit, and not less than $25; and that the said insolvent was then in prison on execution issued against him in some civil action, and that he had been so imprisoned for sixty days and upwards. And such proceedings were thereupon had before the said Richard Riker, being such Recorder as aforesaid, that the said Richard Riker, being such Recorder as aforesaid, afterwards, to wit, at the said City of New-York, on the 27th day of April, A. D. 1818, and in pursuance of the aforesaid act, by virtue of the power and authority in him vested, in and by the said act, did make and execute a certain discharge in writing, under his hand and seal, in the words following, to wit.” [Here followed the discharge, which was in the common form, and was set out verbatim.]

Upon the first plea, the plaintiffs joined issue : to the second, they demurred generally, and the defendants joined in the demurrer.

Mr. Daniel B. Tallmadge for the plaintiffs, in support of the demurrer, contended,

I. That the plea of an insolvent’s discharge could not be joined with a plea of nul tiel record. [Lecompte v. Pendleton, J. Cas. 104.] They require different trials, and of course cannot be joined. It may, however, be, that this defect should be taken advantage of by motion, instead of a general demurrer.

II. The plea does not set forth the facts, which give the Recorder jurisdiction, with sufficient certainty to enable the plaintiffs to form an issue upon them. The plea should set forth the particular execution on which the defendant was imprisoned, and the court out of which it was issued should be described. The creditor, also, who made application, should be specified, for the Recorder has no jurisdiction unless a creditor applies. The plaintiffs then would have the opportunity of showing, that the person

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applying was not a creditor. [4 Vol. L. N. Y. 43 b. 1 J. R. 91. Ib. 75. 1 Cowen’s R. 316. 3 Ib. 206. 6 Ib. 224. 10 J. R. 161. 11 Ib.224. 2 Salk. 517. Com. Dig. Pleader, 2 W. 12 . Lawes on Ass. 669-70. 11 East. 516. 1 Wend. R. 209.]

Mr. R. Sedgwick, contra,

contended that these objections, if correct in any point of view, could only be taken on special demurrer. [7 Cow. R. 442.] The misjoinder of the pleas is clearly the subject of special demurrer only, or of motion, and cannot be objected to now.

If this plea be bad, then all others of the kind are bad also, for they are all alike, and are taken from one common form, which all pleaders in this city use. Bút there is enough shown to give the Recorder jurisdiction, and the name of the creditor cannot be necessary for any such purpose. The statute is general in its expressions, and the plea conforms to the words of the act. This is all that can be required, and these objections would not avail, even on special demurrer.

This is an action of debt on a judgment, obtained in the Supreme Court of August Term, 1817. The defendant, Stanton, pleads, 1st. Nul tiel record; 2d. A discharge under the insolvent act, dated the 27th of April, 1818. On the last plea there is a general demurrer.

It is clear that these pleas are improperly joined ; but that objection cannot be taken on this demurrer. The plaintiffs should have demurred to both pleas for that cause, or they might havé called upon the defendants to strike one of them from the record. The only inquiry here is, as to the sufficiency of the second plea.

The discharge in question is alleged to be by virtue of the act, entitled “ an act to amend an act, entitled an act, for giving relief in cases of insolvency,” passed February 28, 1817, (p. 40, ch. 55,) and the objection to the plea is, that it does not set forth the facts necessary to give the officer, granting the discharge, jurisdiction.

The rule of law, on this subject, is that the plea must show affirmatively, that the officer granting a discharge under the insol

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vent act, had jurisdiction in the case. Every fact necessary to give such jurisdiction must be averred, and the want of any necessary averment, cannot be supplied by the recitals in the discharge itself. [Wyman v. Mitchell, 1 Cowen’s R. 318. Morgan v. Dyer, 10 J. R. 161.]

The act in question provides, that when any person has been actually imprisoned for sixty days, upon execution in any civil “ suit,” any creditor of such person may apply for relief, &c.; and “ upon such application, and an affidavit being made by such creditor, that such person is justly indebted to such creditor in a sum of money then due, to be specified in such affidavit, and not less than twenty-five dollars, and that such person has been imprisoned, &c., the officer to whom such application is made, shall order,” &c.

The plea in question avers, 1st. That the defendant was an inhabitant of the City of New-York, and had been actually imprisoned in said city, “ upon execution issued against him in a civil “ action.” 2d. That application was made to the Recorder in said city, “ by one of the creditors of the said Daniel Stanton,” praying relief, &c. 3d. That upon such application, said creditor made affidavit, that said insolvent was indebted to him, “ in a “ certain sum of money, then due and specified in said affidavit, “ and not less than twenty-five dollars, and that he was then in “ prison, &c., and had been so for sixty days and upwards. The plea then avers, that such proceedings were had m the case, that the said Recorder afterwards granted the discharge, which is set forth in hcec verba.

It is objected, that the plea does not set forth, the name of the creditor applying for relief, &c., nor the particular execution, on which the debtor was imprisoned, nor yet the court out of which it issued. If these averments are necessary, they are, of course, traversable, and should be pleaded with such particularity as to enable the plaintiffs to take issue on them. If a party plead a judgment, he must show the certainty of it, and set forth the parties, and the court in which it was obtained. (Com. Dig. Pleader, 2 W. 12 .) And the same rule applies to the case of pleading a writ. (Gray v. Hart, 2 Salk. 517. Patton v. Foote, 1

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Wend. R. 209.) The plea in the present case, ought to set forth the action, in which the debtor was imprisoned, and the court out of which the execution issued, and also the name of the creditor, upon whose application the proceeding was instituted. The plea is clearly bad, but the doubt has been, whether the defect could be taken advantage of on a general demurrer. Upon considering the cases, and particularly that of Gray v. Hart, (as reported in 2 Lut. 1458,) I am of opinion, that the defect in the averments in the plea, is matter of substance. In the case of Gray v. Hart, the action was for an assault. The defendant justified on the ground that he had arrested the plaintiff by virtue of a certain writ, without setting forth the court out of which it issued. The plaintiff replied, and there was a special demurrer to the replication. The court, in giving judgment, considered the plea as bad, because it did not show out of what court the writ issued ; and it is well settled, that no defect in any plea, preceding that to which the demurrer is taken, can be noticed, except it be such as would be bad on general demurrer. The averment, therefore, in that case, must have been considered substantially defective, and the principle of it, is certainly applicable to the case now before us.

Judgment for the plaintiffs.

[E. Curtis, Atty. for the plffs. D.