Cutter v. Folsom

Gilchrist, J. The act of Congress passed on the 19th ,day of August, 1841, entitled, “ An act to establish a uniform -system of bankruptcy throughout the United States,” provides that all persons residing in any state, district, or territory of the United States, owing debts other than those of the fiduciary character pointed out, who shall, by petition, setting forth a list and description of his creditors and of his property, apply to the proper court, shall be admitted to the benefits for which it provides. A question raised by the pleadings is, whether the defendant by his plea sufficiently averred that he was residing within the State or district of New-Hampshire, to be entitled to the benefit of the act. The plea states that the defendant, before, and on the fifth day of August, 1834, and until the 29th day of October, 1842, was a merchant, and until he returned to the district of New-Hampshire, on the twentieth day of October, 1842, and during all the time, did exercise the trade of a merchant with William S. MeCullock, at Jeremie, in St. Domingo, until he, Folsom, left that place on the first of October, 1842, for the purpose of resuming his citizenship at Portsmouth, in the district of New-Hampshire, where the said Folsom ever resided as an inhabitant, except during his absence at said Jeremie, for the purpose of exercising his trade as a merchant. [147] In other words, the defendant, from 1834, resided at Jeremie, in St. Domingo, for the purpose of using the trade of a merchant, until, on the first day of October, 1842, he left that place, and arrived on the twentieth of that month in Portsmouth, in New-Hampshire, where he ever resided as an inhabitant except during his absence at Jeremie, as before described. This is a less direct averment of a residence in Portsmouth, or in New-IIampshire, than might have been, and often is, made in pleading, but is, we think, sufficient. In saying that he returned to Portsmouth, where he ever resided except during the périod from 1834 to October, 1842, he in effect says that he ever resided in Portsmouth as an inhabitant, except during that period. He therefore shows himself entitled, so far as residence is concerned, to prefer his petition for the benefit of the act; for it is wholly immaterial whether or not he was an inhabitant when the act was passed, or when it took effect; its object being to embrace ■within its benefits not only such as at either of those points of time might have been, but such as at any subsequent period become, inhabitants of the United States. The act requires the party who applies for its benefit to make a complete and effectual surrender of all his property, wherever situated and of whatever nature, and to place the same at the disposal of the district court, to be appropriated under its orders to the payment of the debts of the bankrupt. It is hardly necessary to remark that this reasonable requirement embraces property without, as well as within the borders of the United States, to the extent at least that is admitted by the just claims of alien creditors upon such parts of it as lie within the foreign jurisdiction, and within the grasp of the process of the foreign court. It is therefore obvious that the interest of the bankrupt, as a partner in a foreign house, must fall ■within the operation of the assignment, whether he petition for his discharge from his private debts alone, or [148] include also those for which he is liable as a partner. In the latter' case the property of the firm is, with the exceptions referred to, specifically assigned for the use of the creditors of the firm, and all the partners who belong to the class of persons entitled to the benefits of the act, may, upon being thus brought in, apply for its benefits. Act of Cong., sec. 14. In this manner and to this extent may the district court, under the statute, acquire jurisdiction over a firm trading in a foreign country. Another cause of demurrer to the plea is, that the debt which was the foundation of the judgment declared on, and of the present suit, is not alleged in the plea to have been other than of ‘ the fiduciary class excepted by the terms of the act from its operation, or that the debt was provable under the act. But we are of the opinion that this is matter of avoidance, to be set up by the other side, and which does not require to be negatived by the defendant in his plea. As, if one pleads that such an one, being seized, made his will, he need not say that he was of full age, &c.; for if that or any other incapacity existed, the opposite party should, if advised, take advantage of it in his replication. Com. Dig., Pleader, C, 81. So if the defendant in trespass justifies entry by process on a homine replegiando, he needs not to say that the man to be replevied was not taken by the command of the chief justice, &c. Ib. In an action for words for saying a man is a thief, the plaintiff has no occasion to aver that he is not a thief. Chapman v. Pichersgill, 2 Wils. 145; 1 Chit. Pl. 228 ; where it is said that “ matter in defeasance of the action need not be stated; for wherever there is a circumstance the omission of which is to defeat the plaintiff’s right of action, primd facie well founded, it must in its nature be matter of defence, and ought to be shown in pleading by the opposite party.” Hotham v. Bast India Co., 1 T. R. 638. It has accordingly been held in this State that in plead [149] ing a discharge in bankruptcy, it is only necessary to set forth so much of the proceedings in the district court as will show that the court had jurisdiction of the petition, and granted the discharge. If there is any matter which renders the discharge invalid, or takes the case out of its operation, the plaintiff may set it forth in his replication. Johnson v. Ball, 15 N. H. Rep. 407. There is nothing in the act to prevent the proving of a fiduciary debt under the bankruptcy, and, if proved, such a debt would probably be barred like any other; Fisher v. Currier, 7 Met. Rep. 424; so that if the presumption were allowed to prevail that the debt which the plea seeks to avoid was actually of that character, it would be wholly inconclusive. The same rule applies as to the defendant’s omission to show that the debt was provable under the act, since the plea showTs that it was a debt founded upon the causes alleged in the declaration, and due before the filing of the petition. It is therefore prima facie a debt provable under the act, and within its meaning. If there be any peculiarity exempting it from the operation of the act, it is a latent one, and must be pointed out by the party who seeks to avail himself of it. To the same point is the case of Johnson v. Ball, 15 N. H. Rep. 407, before cited. It is to be borne in mind that the objection raised by the demurrer is not that the defendant has failed to bring himself within the general purview of the act, by omitting to show that he owed debts other than of the fiduciary character adverted to. Such cause of demurrer, specially assigned, would have raised a different question from the one which we have had to consider. Gill v. Scrivens, 7 T. R. 27. As to the seventh cause of demurrer assigned, it appears that both the pleas were entered at the term at which the defendant, upon whom no personal service of the writ had been made, first appeared and answered to the action. [150] The plea is therefore well enough. It falls within the rule laid down by the court in Kimball v. Wilson, 3 N. H. Rep. 101. When the matter of the plea in bar of the further maintenance is in the first instance, and before any other plea filed, pleaded in bar, it need not be alleged to be puis darrein continuance. The ninth- cause of demurrer assigned has not been insisted upon in argument, and may perhaps with propriety be dismissed, by briefly refenúng to the fact that the constitutional soundness of the act has been generally admitted in the various courts of the Union; although the question has not, in many cases, been directly raised and settled. Nelson v. Carland, 1 How. 265, 277, in which' it is vindicated by Mr. Justice Catron. Its constitutionality has been postulated in several cases that have arisen in this court. Johnson v. Ball, 15 N. H. Rep. 407; Kittredge v. Emerson, 15 do; 227. Another objection to the plea variously assigned by the ' causes of the demurrer, is, that it does not allege that application was made by petition to the district court, by the defendant, whether as a partner, or in his own personal behalf, setting forth the list of his creditors and inventory of his assets, as required by law. This objection is sustained; there appearing to be no such allegation in the plea, and is fatal unless cured by an amendment. If such amendment is made upon application to the court below, it will be unnecessary to consider the effect of the cause of demurrer last assigned.