Coates v. Simmons

By the Court, Parker, J. I am not prepared to say that the replications in this case are bad, though it would have been better not to allege both fraud and wilful concealment. Either would have made a good replication, under the fourth section of the bankrupt act, which provides that the discharge maybe impeached for fraud or wilful concealment of property. The replication, however, charges but a single act. Both words are used as applicable to the transaction specially set forth ; and a wilful concealment of property, under the circumstances slated, is certainly a fraud also. The replication, therefore, must be considered as resting upon the allegation of a wilful concealment, described also by the pleader as fraudulent. The concealment of the several articles of property enumerated is set forth in the replication as one transaction. It is not necessary, in such case, that there should be a separate replication for each article concealed. The same rule applies to the conveyance of several different articles of property, where it is described as [406] constituting a single transaction. (Brereton v. Hull, 1 Denio, 75.) But it is unnecessary to express an opinion upon these, or the other objections made to the replications, because the plea is fatally defective. It is not averred, in the plea, that the defendant “ was owing debts which had not been created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity.” Such an allegation is matter of substance, and is necessary to show that the district court had jurisdiction. (Varnum v. Wheeler, 1 Denio, 331. Bankrupt Act of 1841, § 1.) But the defendant has averred in his plea that he was 11 a bankrupt and entitled to the benefit of the act of congress entitled an act to establish a uniform system of bankruptcy,” &c. And it is urged that the word bankrupt implies that he owed debts. If the word bankrupt is to be understood as synonymous with insolvent, it would not be a sufficient allegation; for it is necessary not only to aver that the defendant owed debts, but that they were of the kind specified in the act. If the definition of “ bankrupt” is to be taken from the first section of the act, it will not avail the defendant; for to entitle a person to be deemed a “ bankrupt,” under the first clause of that section, he must not only owe debts of the description required, but must have presented his petition duly verified, and setting forth the facts therein prescribed ; and by the second clause of that section all persons being merchants, <fcc. owing debts to the amount of not less than two thousand dollars, may become bankrupts when duly proceeded against in certain cases. The mere allegation that the defendant was bankrupt would not show to which class he belonged. Nor is the allegation that the defendant was “ bankrupt within the meaning of the act of congress,” &c. any more definite; for all that may be true, without the defendant owing debts of the description required to give the court jurisdiction of his voluntary application. There is not, therefore, any allegation equivalent in terms, to the language used in the act; and the omission being a mat [407] ter of substance, there must be judgment for the plaintiff. (Maples v. Burnside, 1 Denio, 332. Stephens v. Ely, 6 Hill, 607.) The defendant must have leave to amend on payment of costs.