Frary v. Dakin , 7 Johns. 75 ( 1810 )

Spencer, J.

delivered the opinion of the court. There are several exceptions to the plea, relating to omissions in stating the proceedings according to the act; but a decision as to the first and second objections, will dispose of the rest.

The defendant below had his choice of three modes of availing himself of his discharge.

1. The act authorizes the pleading of the general issue, and giving his discharge in evidence.

2. He could have pleaded, that being an insolvent debtor, within the true intent and meaning of the act, he, in conjunction with three fourths of his creditors in value, See. did present his petition, stating it, and that such proceedings were thereupon had, agreeably to the act^ t^at the chief justice discharged him by a writing under his hand and seal, setting it forth, and concluding with a verification. Or,

3. He might plead the whole proceedings which took place, in relation to his discharge.

The decision of this court in the case of Service v. Heermance, (1 Johns. Rep. 91.) sanctioned the second method of pleading, which has been mentioned. It was held in that case, that a discharge under the insolvent act, might be pleaded, in the same manner as the proceedings of an inferior court were allowed to be pleaded; that it was sufficient to state enough to give the magistrate jurisdiction, and then, taliter processum fuit, that he was discharged by the magistrate. In the present case, the defendant below has not adopted that method; but has preferred to set out all the proceedings, or, in other words, has professed to state the particular occurrences which led to the discharge, &c. Having done so, he was bound to state a conformity, in every respect, to the directions of the act. The plea omits to state, that three fourths in value of the insolvent’s creditors united in the petition, or that the accounts and inventory required by the act, werfe delivered to the judge. If, however, the same principle adopted in Service v. Heermance was extended to this plea, there is still a fatal omission; there is not enough stated to give the judge jurisdiction, for it is not alleged that three fourths of the insolvent’s creditors in value, had, in conjunction with him, signed the petition.

It is an elementary principle in pleading, that every plea must be so pleaded as to be capable of trial; and, therefore, must consist of matter of fact, the existence of which may be tried by a jury, as an issue; or its sufficiency, as a matter of defence, determined by the court, on demurrer. (1 Chitty's Plead. 519.) There are but two instances that are recollected, in which the party is allowed a general pleading; the one is in a case like the ° J; . . present, where, after stating the facts which give the judge jurisdiction, his discharge may be pleaded, without stating all the facts which took place; and the other is, where the stating of all the facts would lead to great prolixity and tediousness. In the first case, after enough is alleged to give jurisdiction, the law presumes that the judge did his duty, and required those things to be done which were necessary. In the other case, dispensing with the pleading all the facts is for the purpose of saving expense and unnecessary prolixity, in stating multifarious facts. 2 Johns. Rep. 413. and 5 Johns. Rep. 175.

The opinion of the court in Service v. Heermance, was principally founded on the case of Ladbroke and Gyles v. James. (Willes, 199.) The defendant, to prevent execution against his body, under the act of 10 Geo. II. after stating the time when the cause of action arose, so as to bring his case within the act, pleaded, that at a quarter sessions of the peace, held, &c. before, &c. “ he was duly discharged from his imprisonment aforesaid.” On a demurrer to the replication, the validity of the plea came under consideration; and the court unanimously held it to be bad; Willes, Ch. J. said, “ that if it had appeared that the sessions had a jurisdiction, it would have been sufficient to have said generally, that the sessions had discharged him; but where an imprisonment is necessary, it must always be set forth, that the party was in prison, in Order to give the justices jurisdiction ; and (he observes) it is not set forth in the present plea, that the party surrendered himself, or was ever in prison.” And in Sollers v. Lawrence, (Willes, 416.) Ch. J. Willes again states the rule, that it must appear by what is set forth in the record, that they had a jurisdiction. This observation was made when considering the acts of persons having a limited jurisdiction. It cannot be pretended, that the power given by the legislature to the judges of the supreme court, under the insolvent act, constitutes each of them a court, in vacation, of general jurisdiction over insolvents. Though they act as a court in each case, their jurisdiction is limited by the act; and unless the insolvent presents a petition in conjunction with .creditors, to whom he was indebted, at least, to three fourths of all the money owing by him, they have no jurisdiction of the case. This being then a necessary fact to give jurisdiction, it should have been explicitly stated ; upon the same principle that the fact of'- imprisonment was held necessary to be stated in the case before cited. In that case, it was stated in the plea that the defendant was duly, discharged from his imprisonment; and here, that the defendant appeared before the chief justice, and delivered to him according to the act, &c. the petition, &c. In both cases, it may, with some propriety, be said, that the pleas give jurisdiction. In the one case, if the defendant was duly discharged from imprisonment, it was to be intended he must have been in gaol; and in the other, if the petition was presented according to the act, that creditors to whom three fourths were due, must have united in it. But the law is not satisfied with inferences, when the fact itself is material, and may be traversed. *

To uphold this plea, would be against ah my ideas of good pleading, and I am sure it is without precedent. What fell from the court in Cruger v. Cropsey, (3 Johns. Rep. 242.) does not affect the question. There the plea was objected to on various grounds, and we only say it was bad; it was a correct opinion, delivered instante?-, and without particular investigation. The j udgment ought to be affirmed.

Van Ness, J. having formerly been concerned as counsel in the cause, gave no opinion.

Judgment affirmed.