Ayres v. Scribner — 17 Wend. 407

Majority

p. 230

Ayres vs. Scribner.

Headnote

A replication that an insolvent discharge pleaded in bar to a recovery was obtained per fraudem, admits the jurisdiction of the officer who granted the discharge, and estops the plaintiff from showing that two thirds of the creditors did not unite in the petition for the discharge.

Fraud will not be inferred from the simple fact that, from the insolvent papers themselves, it appears that the amount of the debts owing to the petitioning creditors is not equal to two thirds of the whole amount of debts owing by the insolvent; the error will be ascribed to mistake and not to fraud.

Where the sum due to a creditor is set down in the account of creditors at an amount less « than the true sum, the discharge will not be avoided unless the jury find it was done willfully and fraudulently,^[1]

This was an action of assumpsit, tried at the New York circuit in October, 1835, before the Hon. Ogden Edwards, one of the circuit judges.

The plaintiff declared on four notes; one for $94-87, dated 3d September, 1828, payable five months after date; another for $ 156*75, dated 8th September, 1828, payable five months after date; another for $135*12, dated 26th September, 1828, payable four months after date; and another for $145*06, dated 12th June, 1828, payable five months after date; the declaration contained also the common money counts. Suit commenced in December, 1834. The defendant pleaded an insolvent discharge from all his debts, granted by the recorder of New York, 30th June, 1831. The plaintiff replied, that the discharge was obtained by fraud, and accompanied the replication with twenty specifications of fraud. One specification was, that the defendant had fraudulently represented to the recorder that two thirds of his creditors residing within the United States had united with him in the petition for his discharge, whereas the fact was, and that it so appeared from the [408] papers presented to the recorder, that two thirds did not unite. Another specification was, that the defendant had fraudulently concealed the true amount of the debt due to the plaintiff, and had fraudulently re

p. 231

presented it to be less in amount than it in fact was. Besides these there were eighteen other specifications. On the trial of the cause, the plaintiff offered in evidence the insolvent papers, as presented to the recorder, to show that two thirds of the creditors of the defendant had not united in the petition, and this offer was made for the purpose of showing want of jurisdiction in the recorder, and that the defendant had been guilty of fraud in representing to the recorder than two thirds had united in the petition. For the purposes offered, the judge refused to receive the papers. In the account of creditors presented to the recorder, the plaintiff was put down as a creditor for the amount of $496'93, which was stated to be due to him on three notes. The plea stated the petition to have been presented 5th March, 1831. The plaintiff proved that the amount due to him on the four notes described in the declaration, on'the day of presenting of the petition, was $611*52. The plaintiff also offered several witnesses to prove various instances of fraud on the part of the defendant, whose testimony was objected to, on the ground that the facts offered to be proved were not set forth with sufficient certainty, in anyone of the specilications attached to the replication, and was rejected by the judge. The cause was submitted to the jury under the charge of the judge, to which no exceptions were taken. The jury found a verdict for the defendant. The plaintiff moves for a new trial. The cause was submitted on written arguments.

W. Silliman, for the plaintiff.

S. B. Helbert Judah, for the defendant.

The opinion of the court was delivered by Mr. Justice Cowen. who, after approving the decisions of the judge at the circuit, in rejecting the testimony offered on the ground of its generality and not coming within any of the specifications set forth in the notice, proceeded as follows: “ The [409 offer to prove that the debts of the petitioning creditors did not amount to two thirds of the whole amount of debts owing by the defendant, was with a view, 1. To question the recorder’s jurisdiction; and, 2. To establish a fraudulent representation of the amount. The first object was precluded by the replication, which, in legal effect, admitted the jurisdiction and estopped the plaintiff (Andrews v. Pledger, 4 Carr. & Payne, 381; 1 Mood. & Malk. 508, S. C.) The statute does not authorize a notice to be given of any facts other than with a view to avoid the discharge by showing fraud.

Nor was fraud inferrible from the simple fact that the computation founded on the opén face of the papers furnished to the recorder, came short of tv>o thirds. No other facts being proposed in connection with that, the mind is at once led to negative all fraud, and ascribe the discharge to mere mistake. Clearly something more than a naked error in calculation should have been proposed to render such proof competent. The papers were open at the proper time, to the inspection of all concerned, and the recorder adjudged that two thirds in amount of the creditors had united in the petition.

The question whether the defendant willfully misrepresented the amount due to the plaintiff, was a proper one for the jury, under the circumstances given in evidence. We are to presume that it was correctly put to them, as nothing appears in the bill of exceptions to the contrary.

New trial denied.