Slidell v. McCrea

By the Court, Savage, Ch. J. The question in this case is, whether the defendant’s discharge is valid or not. By the first section of the act of 1813, (1 R. L. 460,) no person shall become a petitioning creditor, who may have purchased or procured to be assigned to him, any debt due or to become, due by such insolvent, except for so much only as was actually and bona fide given for the, debt so purchased or procured. By the 13th section of the same act, if the insolvent “shall procure any person to become a petitioning credit- or for any sum not bona fide due from him to such creditor, [163] or for any larger sum than is really or bona fide due from such insolvent to such creditor, to make such sum in value as is required by this act as aforesaid,” the discharge is declared void. The defendant procured David H. Robertson to purchase a judgment from Kennedy & Maitland for $7,169 99, for the nominal sum of one dollar, which he never in fact paid. This sum was necessary to make the two thirds. Robertson swore this sum was due to him. This was an entire mistake; not a dollar was due under this act. He could be a creditor at most for one dollar, provided he had paid it; but not having paid any thing, he was not a creditor even for this sum, within the meaning of the act. On this ground, therefore, the discharge was void by the 13th section of the act. The judge charged the jury, that this fact was not sufficient to avoid the discharge, without proof of actual fraud. What further proof of actual fraud could be desired Í A clerk of the insolvent, without paying one cent, becomes a creditor of his master for more than $7000, with intent to obtain a discharge from his bona fide debts. The statute makes the act, per se, avoid the discharge without requiring proof of the intent. Such proof is necessary as to certain other acts, to wit, receiving debts due before the assignment, secreting his estate or books, or concealing his creditors. But the succeeding portion of the sentence relating to procuring a false creditor, requires no extraneous proof of fraud to avoid the discharge. Again ; by the 11th section of the act of 1817, (Statutes, 4th vol. 46 b.,) the debtor is required to specify and set forth clearly the true cause and consideration upon which the debts were contracted; and a failure in this respect, renders the discharge fraudulent and void. In Taylor v. Williams, (20 Johns. R. 22,) this statute received a construction. The court said it was sufficient if the specification fairly apprized the creditors of the general ground of indebtedness, so as to give them a clue to inquiry. The consideration in that case was money lent, money paid, and work and labor done at special instance and request. In this case, several of the debts are said to be due on promissory notes. By the third section of the act of ISIS, the creditor must specify the na~ [164] ture of his demand, whether on obligation, note, account or otherwise, with the general ground of such indebtedness. The two provisions seem-to require a similar specification. Something move then should be stated, than that .the debt was due on note. The consideration for the note should be set forth so as to- give the creditor a clue to inquiry.- Here, also, the judge decided that an intent to deceive should be proved.. My understanding of the act is, that from the want of a proper specification, the intent to defraud is inferrible, and conclusively so; for the discharge is declared fraudulent and void. New trial granted; costs to abide the event.