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Harvey M. v. Chase

24 N.Y. Super. Ct. 222 1 Rob. 222 Court N.Y. Super. Ct. Decision date 1863-11-14 English

Contents

Majority

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Harvey M. and George H. Soule, plaintiffs and appellants, vs. Thomas B. Chase, defendant and respondent.

Headnote

1. In proceedings for the discharge of an insolvent from his debts, under 2d Revised Statutes 35, the omission of a petitioning creditor to relinquish a security held by him, does not affect the jurisdiction of the officer, nor avoid the discharge, even though his petition discloses the existence of such security.
2. Nor is proof of publication of notice of the order to creditors to show cause, essential to give jurisdiction. A discharge which recites due publication, and that due proof thereof was presented, is not invalidated by defects in the notice, its publication, or the proof thereof, on file.
3. The statute does not require publication for a certain length of time, but a certain number of consecutive publications (10) within a period of a like number of successive weeks, there being one in each week, the commencement of which period is to be determined by the first publication.
4. Proof that a notice was “published in the New York Day Book,” which was an evening newspaper, is sufficient to show compliance with an order that it be published in “ the newspaper printed in the city of New York, entitled ‘ the Evening Day Book,’ ” in the absence of any evidence of the existence of two papers with the title of Day Book.
5. An affidavit in the commencement of which the deponent is designated by name, is not void for not being subscribed by him.
6. The published notice of an order to. creditors to show causS, stating that the proceeding is for the discharge of an insolvent from his debts, need not specify the particular statute under which it is had. Adding a defective reference to the statute, does not vitiate it.
7. Proof of publication of such notice is not limited by the statute to an affidavit of the printer or the clerk, or foreman of the printer. Such an affidavit merely enables the insolvent to perpetuate the evidence of notice by filing it.
8. The petition and schedules of an insolvent debtor need not state the grounds of the demands of creditors with the same particularity as is required in a statement for a judgment by confession. It seems that want of sufficient particularity does not affect the jurisdiction of the officer.
9. Where a discharge recites all the required jurisdictional facts and proceedings, a county clerk’s certificate, that certain papers which are technically insufficient to show jurisdiction, are all that have been filed with him in the proceeding, is not, by itself, sufficient to disprove such recitals.
10. Whether a name in the list of creditors variant from that of the plaintiff’s was intended to designate them; and whether their names were omitted, and if so, whether such omission was fraudulent; held in this case, properly submitted to ■ the jury.
11. An insolvent’s discharge, granted under the laws of this state, is a good
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defense to an action on a judgment recovered here, in the absence of any evidence as to where the contract was made on which the judgment was recovered. Evidence merely that the creditor was a non-resident, is not material.
(Before Monorief, Robertson and Monekl, JJ.)
Heard October 16,1863;
decided November 14, 1863.
This was an appeal from an order denying a motion for a new trial, and also from a judgment entered on the verdict.
The action was brought on a judgment for $224.19, which the plaintiffs had recovered against the defendant, in May, 1855, in this state.
The defendant in his answer set up an insolvent’s discharge from his debts, granted to him since that date, and alleged that he was, at the time of the recovery of the judgment, a resident of the state of New York.
The cause was tried on the 4th day of June, 1863, before Mr. Justice Monorief and a jury.
The defendant, in support of his answer, gave in evidence his discharge, and the proceedings on which it was granted, by the county judge of Kings county. The discharge was, in the usual form, signed by such judge. It contained the following recitals:
“ Whereas Thomas B. Chase, of the city of Brooklyn, an insolvent debtor, residing within the said city, did, in conjunction with so many of his creditors, residing within the United States, as have debts in good faith owing to them by the said insolvent, amounting to at least two-thirds of all the debts owing by him to creditors residing within the United States, present a petition to me, praying that the estate of the said insolvent might be assigned for the benefit of his creditors, and he be discharged from his debts, pursuant to the provisions of a statute authorizing an insolvent debtor to be discharged from his debts ; whereupon I ordered notice to be given to all the creditors of the said insolvent to show cause, if any they had, before me, at a certain time arid place, why an assignment of the said insolvent’s estate should not be made, and he be discharged from his debts, proof of the publication whereof hath
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been duly made. And whereas it satisfactorily appears to me that the doings on the part of the creditors are just and fair, and that the said insolvent has conformed in all things to those matters required of him by the said statute,” &c. &c. followed by subsequent matters not necessary to be referred to.
The affidavits of several of the petitioning creditors upon which the application for the discharge was made, averred, respectively, that the sum claimed was justly due to the defendant “from the said insolvent, for goods, wares, and merchandise sold and delivered, and secured by indorsement of a promissory note of C. W. Smith, now due and payable ; and that neither he, nor any other person to his use, hath received from the said insolvent, or any other person, payment of any demand, or any part thereof, in money, or in any way whatever, or any gift or reward” whatsoever, upon any express or implied trust or confidence, that he should become a petitioner for the said insolvent.”
The affidavit of one of the petitioning creditors (J. Robinson) described his demand as “ for goods, wares, and merchandise, secured by indorsement,” &e. continuing as above ; but without the words “sold and delivered.”
There was no evidence in any of the papers produced, of any relinquishment by these creditors of the security mentioned in their affidavits.
O. W. Smith was not mentioned in the schedules as a debtor or creditor of the insolvent.
The order of the county judge requiring creditors to show cause why an assignment of the insolvent’s estate should not be made, and he be discharged from his debts, pursuant to the statute directed notice of the same to be published for ten weeks in the state paper, and in the newspaper printed in the'city of New York, entitled the Evening Day Booh, and the newspaper printed in the city of Brooklyn, entitled the Brooklyn D'aily Eagle.
The notice, as published in the state paper, was entitled and commenced with a reference to the statute under which the proceedings were taken, as follows : “Notice of application
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for the discharge of an insolvent from, his debts, pursuant to the third article of the'first title of the fifth chapter of the second part of the Revised Statutes.” In the copy published in the Brooklyn Eagle, the words, “of the fifth chapter,” were omitted; and in that published in the Day Booh the words, “ of the second part,” were omitted. The publication was made once in each of ten successive weeks, commencing in the state paper, on the 21st of May, 1859—in the Eagle on the 20th, and in the Day Booh on the 28th of May. The order was returnable on the first of August. The affidavit of publication in the Day Booh was in the following terms :
“ Gr. 0. Stimson of the city of New York, being duly sworn, says : That he is a clerh in the office of the New York Day Booh, a daily paper printed and published in the city of New York, and that the notice, of which the annexed is a printed copy, has been regularly published in the New York Day Booh, once a week for ten weeks successively, commencing on the 28th day of May, 1859.”
Each of" the other affidavits alleged the deponent to be “foreman in the office ” of the paper designated, but did not state that he was foreman of the printer. The affidavit of publication in the state paper contained the deponent’s name in the commencement, as is usual, but was without signature. It was, however, certified by a commissioner of deeds, with the usual jurat.
In the ■ debtor’s schedule or account of his creditors, the nature of the debts, and the cause and consideration of them, were indicated entirely by one of the following different . phrases, set opposite to each of the creditors’s names : “ Promissory notes for merchandise sold and delivered,” or for the same, and “ a book account,” or “ indorsement on promissory note for goods, wares, and merchandise,” or “ on note for goods and merchandise, and various stochs,” or for the same “ on note for goods, wares, and merchandise,” or “ goods sold and delivered,” or “ book account for merchandise sold and delivered.” The list of creditors contained the name of W. Gr. Soule, of
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Eew York, as a creditor to the amount of $>206.74, accrued at Eew York, on a promissory note for merchandise sold and delivered. In the affidavit of personal service of the order to show cause, this creditor was designated as W. Q-. Saurl. The plaintiffs were not named unless intended by these names.
The papers produced in evidence, with the discharge, as being a copy of the proceedings on which it was granted, were certified by the county clerk as having been compared by him “ with the original papers” in th& matter of Thomas B. Chase, “an insolvent debtor, on file in my office, and that they are true transcripts thereof and of the whole of said original.”
Various objections to the validity of the discharge, which were taken by the plaintiffs, are stated in the opinion of the court. The plaintiffs also offered to prove by a witness, who was one of them, that the plaintiffs at the tune the debt to them was contracted by the defendant, were both not only nonresidents of the state of Eew York, but were also citizens of another state. This was excluded by the court, to which ruling the plaintiffs excepted.
The same witness, in answer to the following question :
“ Did the plaintiffs receive notice of the defendants’s application to be discharged from his debts offered in evidence ?” testified as follows :
“ They never did ; I and my partner have done business in the firm-name of H. & Q-. Soule for the past sixteen years, and both of us lived in Eew Jersey during that time.”
The court refused the plaintiffs’ request, that the jury be instructed to find in their favor, and charged the jury, that they must determine whether the names of the plaintiffs in this • suit were omitted from the proceedings for the discharge, and if so, whether such omission was with fraudulent intent. To this the plaintiffs excepted.
The jury rendered a verdict for the defendant; and the plaintiffs’ motion for a hew trial having been denied, and judgment having been entered therein, they now appealed from such judgment and order denying a new trial.
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D. M. Porter, for the plaintiffs, appellants.
I. There is a variance in the title of the newspaper printed in New York, in which the judge ordered the notice to be published, and that in which the proof of publication says it was published. The order was for the newspaper entitled “The Evening Day Booh.” The proof is of its publication in “ The New York Day Booh,” was not a compliance with the order. (Brisbane v. Peabody, 3 How. Pr. 109 . Hallett v. Righters, 13 id. 43.)
II. By the affidavit of Gr. C. Stimson, of publication in the New York Day Booh, the first publication was May 28, 1859. The affidavit was made July 30,1859, within the ninth weeh after the first publication, and by no reasoning could it be held to be a publication for ten weehs where the affidavit was made within the ninth weeh, it being made on the sixty-third day of the publication. Such a publication gave the officer no jurisdiction to grant the discharge. ■ It presents an entirely different case from what it would be if the affidavit had been made after the expiration of the ninth weeh, but before the tenth weeh had expired-; but even in that case, the discharge would be void. (People v. Gray, 10 Abb. Pr. 468 . Small v. Wheaton, 2 id. 175, 179. In the matter of Underwood, 3 Cowen, 59. Anon. 1 Wend. 90 . Stanton v. Ellis, 16 Barb. 319 .) Chase’s creditors were in fact required to appear before ten weeks could elapse after the first publication.
III. By the omission in describing the part of the Revised Statutes, the notice does not designate whether the application would be made under “the Two-thirds act,” “the Non-imprisonment act,” “the Stillwell.act,” or “the Fourteen day act,” and is not a notice of the defendant’s application under the first mentioned.
IV. The affidavits do not show that the notices were published ten weeks under and in pursuance of the judge’s order. (Hallett v. Righters, supra.) Nor do they show that the persons making them weré competent, inasmuch as they do not swear they are either principal clerks or foremen of the printers. They might be clerks or foremen in the office,
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and still not be clerks or foremen of the printers. • The person making the affidavit must be the printer or his clerk, or foreman. (3 R. S. p. 688, § 7.)
V. What purports to be the affidavit of publication in the publication in the state paper is not an affidavit, because it is not signed by the deponent. The oath is not binding, as no perjury could he charged upon such a paper. Consequently, there is no proof of publication to give jurisdiction to the judge to entertain the proceedings. By the only definition of an affidavit, it must be signed. “ An affidavit is an oath in writing signed by the party deposing, sworn before and attested by him who had authority to administer the same.” ■ (Laimbeer v. Allen, 2 Sandf. 648 . Graham v. McCoun, 5 How. Pr. 353 . Also, see cases in 1st Code Reporter, 63,114; Stanton v. Ellis, supra; Barker v. Cook, 16 Abb. 83 .)
VI. There is a want of proper specifications in the affidavits of the petitioning creditors, as to the nature of their debts, how and for what they arose, or when and where, and who were the parties thereto, and the consideration and character of the indebtedness. All and each of thése should appear on the papers, and without a full and proper statement thereof, the intent to defraud must be inferred, and becomes a question of law. (Slidell v. McCrea, 1 Wend. 156 . Small v. Wheaton, 2 Abb. Pr. 175 , 179. McNair v. Gilbert, 3 Wend. 344 . Gillies v. Crawford, 2 Hilt. 338.)
1. Section 7 (4,) of 3 Bevised Statutes, p. 92, (5th ed.) requires the petitioning creditors to state the nature of the demand, with the general ground and consideration of such •indebtedness. Unless the specification stated those matters, ■ subdivisions 3, 4 and 5, of section 7 are nonsense.- The defendant did not comply with either of these subdivisions. There was no specification as required, nor is there any statement whether there was any security for the indebtedness or not; neither is Smith named as a debtor or creditor.
2. By the affidavit of Eobinson, it does not appear that the property was ever sold or delivered, nor is any specification made of any kind. In the statement of the debts it should
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be made to appear how and for what they arose, when and where, who were the parties, the consideration or character of the indebtedness, who delivered the goods or merchandise, and to whom they were delivered.
3. Such a specification as was made would not support a judgment. (Dunham v. Waterman, 6 Abb. Pr. 357 . Chappel v. Chappel, 12 N. Y. Rep. 215 . Freligh v. Brink, 16 How. Pr. 272 . Moody v. Townsend, 3 Abb. Pr. 375 . Stebbins v. The East Society, 12 How. Pr. 410 .) No confession of judgment has ever been upheld where no date or place has been given. None are given in the affidavits.
4. In the case of Gandal v. Finn, ( 13 How. Pr. 418 ,) specifications were much more particular and greater than in these affidavits. How much more full, precise and particular should every such statement be made, in a case where a party’s just claim is to be swept away by a judicial statutory proceeding.
VII. The court erred in refusing to allow the plaintiffs to show that at the time the debt for which the judgment was rendered was contracted, they were neither residents nor citizens of this state. The insolvent laws of one state can not impair debts contracted with those who were citizens of another state at the time of contract. (Donnelly v. Corbett, 7 N. Y. Rep. 500 . Ogden v. Saunders, 12 Wheat. 213 .)
VIII. The discharge was void, inasmuch as the plaintiff’s names were left out of the proceedings. They were residents of New Jersey, and no persons are put in as residing there, nor do their names appear ; this claim was in judgment, and is for a different amount than any claim named—no mention of any judgment is made in the schedule, and the discharge was void. (3 R. S. p. 93, § 8, subd. 5. Stanton v. Ellis, 2 Kern. 575.)
IX. The plaintiffs had no notice of the application which was required by law, which rendered the discharge fraudulent, not as a question of fact, but of law. (See cases before cited.)
X. There was no schedule of the defendant’s creditors sworn
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to, as required "by section 8 of the Bevised Statutes. As the word “sworn” ■ is omitted, there is no jurat, and the .oath could only be administered by the judge granting tjie discharge. (Small v. Wheaton, supra.) The same objection is taken to the oath to the schedule of the nature of the indebtedness, and where the creditors resided, required by section 8.
XI. This application of the defendant was a special statutory proceeding, and if any essential prerequisite was. wanting,' the discharge is a nullity. (Small v. Wheaton, 2 Abb. 175 , 178, and cases there cited.) And the discharge being fraudulent in law, the court ought -to have directed judgment for the plaintiffs on their motion. (In the matter of Underwood, 3 Cowen, 59. 2 Kern. 575.) This court is now asked to correct the error.
XII. If the discharge is held invalid for any jurisdictional defect in the proceedings, no possible state of proof will entitle the defendant to judgment; This case, therefore, comes within the rule laid down in Edmonston v. McLoud and another, ( 16 N. Y. Rep. 543 ;) and final judgment should be given for the plaintiffs.
E. R. Bogardus, for the defendant, respondent.

The following objections were made, on the trial, to the validity of the defendant’s insolvent discharge, founded solely upon what was produced in evidence as the proceedings by which it was obtained.

1. Too short a publication in the New York Day Book, of the notice to show cause against such discharge.

2. Non-publication of such notice in any paper entitled the Kvening Day Book, as required by the order.

3. Want of proper specification in the affidavits of petitioning creditors of “ the nature of their debts and claims, how ■ and for what they arose, when and where; who were the parties, the consideration and character of the indebtedness ; who delivered the goods, wares and merchandize, or to whom they were delivered.”

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4. The omission of the names of the plaintiffs in the pror ceedings.

5. The omission, from thé defendant’s list of creditors, of the name of O. W. Smith, whose indorsements are alleged in the affidavits of petitioning creditors as securing their debts.

6. Like want of specification of the nature of the creditors’ demands, in the defendant’s statements of them, as in their affidavits of indebtedness.

7. The absence of any signature subscribed to the proof of publication in the state paper.

To these objections, the plaintiffs’ counsel now adds another, of the failure of the petitioning creditors to relinquish to the assignee, by a statement at the foot of their affidavit, the security, which by such affidavit they appear to have.

Such of these objections as do not relate to jurisdictional facts, are cured by the provisions of law, which make the discharge conclusive evidence of the fact recited in it, (2 R. S. 38, § 19,) and enumerate for what causes the discharge may be set aside. (2 R. S. 23, § 34, 5th ed. 40.) Formerly, they excluded all contest, or even jurisdictional facts ; (Lester v. Thompson, 1 John. 300 ; Jenks v. Stebbins, 11 id. 224; People v. Stryker, 24 Barb. 649 ;) but the more recent case of Stanton v. Ellis, ( 12 N. Y. Rep. 575 , S. C. 16 Barb. 319 ,) reduces the effect of the recitals as to jurisdictional facts to mere prima facie evidence.

What are necessary jurisdictional facts are clearly and succinctly enumerated in the case of Rusher v. Sherman, ( 28 Barb. 416 ,) in which they are stated by the learned judge who decided that case to be,

1. A proper petition by proper parties.

2. Proper affidavits, by the petitioning creditors, of the nature, amount, and consideration of their debts, and their freedom from any bribe.

3. A proper account of creditors, and the amounts due them ; the consideration of their debts, and any security held by them therefor.

4. A proper inventory.

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5. The oath of the insolvent, before the officer, as to the accuracy of his petition and schedule, and other matters required by the statute.

6. Proof of residence. •

I can not regard the relinquishment by the petitioning creditor of any security .held by him, before he can become a petitioning creditor, as a jurisdictional fact. (2 R. S. 36, § 11.) The statute provides no mode of informing the officer of their existence, except by the statement in the petition or schedule annexed. In this case the statement of it in the creditors’ affidavit was superfluous, because not required by the statute. The statute' did not intend that the whole proceeding should be held for naught, if it should afterwards be accidentally discovered that a petitioning creditor held a security which he had' omitted to relinquish. It might form a good objection to granting .the discharge, on the hearing, and possibly might be cured by relinquishment even at that time.'

The provision in regard to such relinquishment forms, no part of the article prescribing the proceedings to be had before procuring the order for publication of the notice to show cause, and is 'only directory in' form. Moreover, in" this case, no mention" is made of any securities held by the petitioning creditors in the insolvent’s schedule of debts, and although proof may be now offered aliunde of the existence of such securities, such omission will not affect the validity of the discharge. (Stanton v. Ellis, 12 N. Y. Rep. 589 , per Denio. J.) The accidental' statement in the affidavits of petitioning creditors in' this case,' that their "claim'is secured by some indorsement, did not make it incumbent on the officer to see that it was given up. The statute' only requires that the documents mentioned": in the case: of Rusher v. Sherman, (ubi supra,) as jurisdictional, shall be presented "to the officer to procure the order for publication, and upon such presentation and order he acquires'jurisdiction. ■

The' • proof of publication, required by the statute is not á jurisdictional fact; the decision of the Supreme Court in Stanton v. Ellis, (ubi supra,) to that effect is doubted by

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the judge, who gave the only opinion in the same case on appeal. ( 12 N. Y. Rep. 580 , Denio, J.) He says he “suspects it is not;” thus giving as strong an impression as possible, considering that the point was not necessary to the case. He intimates very strongly, in that case, that jurisdiction begins on granting the order before the publication is made. The statute merely directs proof to be made before inquiring into the merits ; while the amendment in 1847, as to one mode of service which prescribes that the proof shall be satisfactory to the officer, (Sess. Laws of 1847, ch. 366, § 2,) neither states whether it shall be made by affidavit or orally. There was no evidence in this case that the affidavits offered were the only proofs of publication received by the officer; and the recitals in the discharge are at least prima facie evidence of due proof, even if it were a jurisdictional fact; and the same principles will apply to all the other objections, except the contents of the papers presented to the officer. But even if they were the only evidence, they are sufficient.

The objection of too short a publication of the notice to show cause, was properly overruled, because the statute only requires ten publications, each one of which is to be successively within one of ten successive weeks, (2 R. S. 18, § 11,14,) the commencement whereof is determined by the first publication. (Sheldon v. Wright, 5 N. Y. Rep. 499 . S. C. 7 Barb. 39 . 1 Mass. Rep. 252 .) A contrary doctrine upheld in The People v. Yates, C. P. ( 1 Wend. 90 ,) followed in Bunce v. Reed, at special term, ( 16 Barb. 347 ,) is overruled by the cases last cited. The difference, where a definite period -of publication such as ten weeks, and not the number of publications, is fixed, was overlooked in those cases. In the statute no length of time is prescribed during which the notice to show cause must be given, except by such order of publication.

The question of the name of the newspaper, The Day Book, is entirely one of identity. The affidavit of publication, complained of, does not aver the title of the paper to be the Hew York Day Book, but designates it by that name as. a Hew York newspaper. In the order of publication the term “ Even

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ing” may have been used merely to specify it as an afternoon issue. There was no evidence of the existence of two papers published in the city of Hew York with the title of Day Book, to create a patent ambiguity. Similar variances have been held, immaterial, even in actions for torts. (Southwick v. Stevens, 10 John. 443 .) Extrinsic circumstances are admissible to show who is intended by a certain name. (People v. Ferguson, 8 Cowen, 102.) Even the entire omission of the Christian name of a person has been held to be immaterial.

The want of a signature subscribed to another affidavit of publication is also immaterial. In this case the affiant’s name was at thejhead of the affidavit, and that in the case of wills and agreements under the former statute of frauds was held held to be a sufficient signature.

The same view was taken in Jackson v. Virgil, ( 3 John. 539 ,) where a signature was omitted. The only object of a signature or mark (signum) is to identify the deposition sworn to. Persons incapable of making either a signature or mark, by disease or natural infirmities or defects, are not debarred from making an affidavit, which is but written testimony. The description in Bacon’s Abridgment (tit. Affidavits,) of an affidavit will hardly stand any critical examination as a definition. It is there called an oath in writing administered; how that can be when the form is presented orally is not very clear. The case of Laimbeer v. Allen, (2 Sandf. S. C. 648,) decided at special term, where the question arose on a pleading, not an affidavit, and was hastily considered without any notice of the case of Jackson v. Virgil, (ubi supra,) can hardly be considered as overruling it.

There is no statutory provision requiring the particular act of the legislature, under which the applicant seeks relief, to be designated in the published notice to show cause. The Revised Statutes require him to state therein merely, whether he seeks a discharge from his debts, or only from imprisonment. (2 R. S. 648, § 43.) The proof of publication is not limited by statute to any particular person; although it enables an insolvent to perpetuate such evidence when made by specified

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persons. The objections made on the score of an omission in the notice of the subdivisions of the Revised Statutes, in which the two-third act is to be found, as well as .of the person making the affidavit, therefore, fall to the ground.

The statutory requisites that the nature of the demands of the petitioning creditors, as well as whether they arise on a written security or otherwise, and their general grounds and consideration, shall be stated in their affidavits, and that their true cause and consideration, shall be stated in the debtor’s schedule annexed to his petition, seem to have been sufficiently complied with. If enough is stated to apprise disputing or opposing creditors of the general grounds of indebtedness, such as money lent, money paid or services at the debtor’s request, it has been held to be sufficient because it gives them a clue to inquiry. (Taylor v. Williams, 20 John. 21 .) Defects in such statements, arising from want of particularity, have been held to be cured by the discharge, and even to0 be curable at the hearing. (In the matter of Hurst, 7 Wend. 239 ) Want of particularity differs from an entire omission of the consideration. (M cNair v. Gilbert, 3 Wend. 344 .) It was not necessary to specify to whom'the goods were sold and delivered, or when, with the particularity required in a complaint or even in the specifications required by the Code of Procedure to be annexed to a confession of judgment. (§ 383.) That exacts a concise statement of “the facts out of which the liability” arises, which is far more extensive than “the nature of the demand and ground and consideration of the indebtedness.” None of the conflicting decisions in regard to that .section of the Code would therefore be applicable. The subsequent provision in the statute authorizing the officer to whom the application is made to commence his proceedings for granting the discharge, by directing an assignment, upon being satisfied of the appearance of certain matters, (2 R. S. 21, § 25,) would alone throw great doubt on the question,' whether the proper description of the indebtedness of the insolvent to'petitioning creditors, which is not one of those matters, was a jurisdictional fact. That provision only requires the officer to be

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satisfied of the insolvent’s indebtedness to the creditors .for the amount claimed, without reference to its origin or nature. A mistake in any thing but the amount would seem to be capable of being overlooked. On the fact of the indebtedness and its being two thirds, the discharge seems to be conclusive. (Betts v. Bagley, 12 Pick. 572 .) The language of Judge Denio, in Van Alstyne v. Erwine, ( 11 N. Y. Rep. 341 ,) in reference to another kind of special proceedings, quoted with approbation by the learned judge who delivered the opinion in Busher v. Sherman, (ubi sup.) is still more apt in regard to insolvent discharges, for without “ the liberal indulgence” challenged by him “even on questions of jurisdiction,” proceedings to obtain them would be “ a snare instead of a beneficial remedy.”

But most if not all of these objections -are technical, and founded on the supposition that the recitals in the discharge are contradicted by the sole want, of conformity of certain documents procured from the county clerk’s office to the provisions of the statute. There was no evidence offered to show that the officer granting the discharge had not other evidence before him of the facts recited in the discharge than appeared in the papers so produced.' The county clerk certified that he had compared the latter with “ the original papers in the matter of Thomas B. Chase on file in his office, and that they were true transcripts of the whole of them. ” He probably knew nothing of such original papers except that they were on file in his office, by. whom filed or when did not appear. The case states that they were a copy of the proceedings and discharge. ' They consisted of what purported to be copies of a discharge, assignment; some affidavits of publication and personal service of notice on creditors ; an order for an assignment ; a certificate of its execution by the assignee, and of -its record, by a county clerk; an order of publication of notice; a petition by the defendant and some creditors, and an affidavit of his good faith ; some affidavits of such creditors, a list of them and their residences, a schedule of the nature of their debts, and an inventory of the insolvent’s estate. These un-doubtedly were a compliance with some of the provisions of

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the statue, but are not proved to include every thing that took place before the officer. He is required to file “all proceedings ” to obtain a discharge within a certain time after the same shall have been consummated, with the clerk of his county. (2 R. S. 39, § 27.) What is meant by “proceedings ” does not clearly appear from such provision. Whether they include those required to be reported by such an officer to another court, (2 R. S. 10, § 46 ; Id. 13, § 68 ;) those for obtaining a jury, (2 R. S. 26, § 14 ; Id. 29, § 6;) or the minutes required to be kept by such officer of the testimony of witnesses examined before him, ( 2 R. S. 37, § 16,) which might include proof of due publication of the notice to sho# cause, does not appear. In some parts of the title of the Revised Statutes, containing the statute in question, the term “proceedings” is evidently used to signify all the steps taken to procure a discharge, according to its proper meaning. Under such circumstances the prima facie evidence that all the jurisdictional proceedings and facts recited in the discharge took place created by law from such recital, is hardly repelled by a county clerk’s certificate, that certain documents are copies of, all the original papers filed in the matter of such insolvency in his office, without some evidence, however slight, to show that the proper proceedings did not take place before the officer, who has certified in the discharge granted by him .that they did.

The question of fraud growing out of a supposed omission of the plaintiffs’ names from the documents presented by the defendant to obtain the order to show cause against his discharge, was submitted to the jury. That is entirely different from inserting a creditor’s name and omitting the amount due him, which is held to be essential in Stanton v. Ellis, (ubi sup.) because the necessary two thirds can not be ascertained. In that very case, however, it was held that the entire omission of a creditor’s name, or insertion of an incorrect amount, would not have made the proceedings defective, (p.579, per Denio J.; 2 R. S. 81, § 3, subd. 4.)

There was no evidence in the case where the contract, on

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which the judgment of the plaintiffs sued on was obtained, was made. Prima facie therefore the discharge' was good against it. Proof of a party’s mere residence in another state, without proof of where the contract were made, was immaterial and properly excluded.

There being no error in the rulings of the court on the trial, the judgment should he affirmed, with costs.

Judgment affirmed.

Cases cited