Price v. Bray

Carpenter, J. delivered the opinion of the Court. We think the replication filed in the first case to the plea of bankruptcy is undoubtedly ill. The fourth section of the bankrupt act of 1841 enacts that a discharge and certificate when duly granted, shall be deemed a full and complete discharge of all debts &c. provable under the act, and may be pleaded as a full bar to all suits, unless impeached for some fraud or wilful concealment by the debtor, of his property. The thirteenth section enacts that the proceedings in cases of bankruptcy shall be deemed matters of record. The decree of bankruptcy therefore is a matter of record, and conclusive, unless in case of fraud or concealment. It cannot be .averred against. It is therefore not competent for the plaintiff to aver that the defendant did not become a bankrupt; that he did not comply with all the requisites of the statute ; and that he did not obtain a discharge. The plaintiff may reply nul tiel record,; or if he cannot safely deny the record, he may plead that the cause of action has accrued since the filing of the petition; or fraud or concealment; or lastly a new promise. But he cannot admit the discharge, and then set up that it was not properly obtained, except in the instance provided for by the statute. The plaintiff, however, alleges that the plea is insufficient. In the one case the plaintiff has specially demurred, but in the other having pleaded over, the plea in that case will be sufficient, if good on general demurrer; or possibly, even if bad, on general demurrer, the defect may have been waived by the defendant’s pleading over. In England a general plea is given by statute. This plea is in the nature of a new general issue, and concludes to the country. But independent of the statute, the proceedings not being of record were necessarily pleaded specially, the defendant be - [17] ing obliged to set forth every point. Miles v. Williams, 1 P. Wms. 258; Donelly v. Dunn, 1 B. & P. 448; Tulley v. Sparks, 2 Ld. Raym. 1546; Jenkins v. Stanley, 10 Mass. 226. This mode of pleading was sometimes resorted to, even in eases within the statute, for the advantage it was supposed to give against the plaintiff, who could reply one particular only, and on which issue must then be taken. But in this country the .late bankrupt law placed the effect of a discharge, and the mode of pleading it, on an entirely different footing. The proceedings take place, not before commissioners acting under special powers, but in a court of record. The statute declares them to be matters of record. The decree of discharge is a judicial decree. It is not therefore necessary, as in the case of a mere special authority, to set forth all the proceedings at length. It is sufficient, if the jurisdiction be shown, and if it be averred that a petition was filed, merely to slate, that thereupon such proceedings were had, that subsequently the proper decree was made. Even in pleading the judgments of inferior courts it is sufficient to say that a plaint was filed, and thereupon taliter processum, &c. such an act was done by the court. 1 Saund. 92 note; Ladbroke v. James, Willes 199. The plea of bankruptcy in regard to the mode of pleading, seems to stand on the same footing as the plea of insolvency, in which case it has been frequently held, that it is sufficient to set forth the fact which gave jurisdiction, and then to state the proceedings simply with a taliter processum est. Service v. Hermance, 1 John. R. 91; Peebles v. Kittle, 2 Ib, 363; Frary v. Dakin, 7 Ib. 75. In Stephens v. Fly, 6 Hill 609, the Chief Justice who delivered the opinion of the court said, that the rules of pleading as heretofore applied in cases of pleading discharges under our insolvent laws, afford a very good guide to the pleader mutatis mutandis/ setting forth enough of the proceedings to give the Circuit Court jurisdiction, and then pleading the discharge in the mode above stated. See Acc. Sackett v. Andross, 5 Hill 328. But it is held in the cases cited, that as a question of pleading, the facts which give the jurisdiction must be averred. In the case of plea of bankruptcy it is the filing of a petition by a bankrupt, a resident of the district, to be declared a bankrupt. The [18] rule stands upon sound reason. It is not every bankrupt that the District Court is authorized to discharge from his debts, but such debtor as has first applied to be declared a bankrupt. The plea should therefore aver that such petition to be declared a bankrupt was filed, that thereupon such proceedings were had that the debtor was declared a bankrupt, &c., and that by the decree of the court he had been discharged, &c.; and the jurisdiction thus appearing, all such facts will be presumed as were necessary to authorize the decree. Such discharge thus pleaded will be a complete bar to all debts proveable under the act, unless impeached for fraud. We think therefore the plea specially demurred to, as it does not aver the filing of any petition to be declared a bankrupt, must be overruled for defective form. But it is a defect that has been waived in the first action by the plaintiff’s pleading over. ■ The plea, as it sets up new matter, must undoubtedly conclude with a verification. It should so conclude, or the plaintiff could have no opportunity to reply fraud. It seems that when, the plea consists of matter of fact as well as matter of record, it may conclude with the ordinary verification, so' that the trial may be by the jury. 1 Chit. P. 476; 5 John. 112; 6 Ib. 26; Hob. 244. In the first case (Price v. Bray), the defect in the plea has been obviated by the plaintiff’s pleading over, and the replication must be overruled. In the other (Wyher v. Bray), the plea is insufficient on special demurrer aud must be overruled. Judgment accordingly. Cited in Kirby v. Garrison, 1 Zab. 183; Carron v. Martin, 2 Dutch. 597.