12 Wend. 102 | N.Y. Sup. Ct. | 1834
By the Court,
1 am wholly unable, after a critical examination of this case and of the elaborate arguments accompanying it, to distinguish it from that of Jenks v. Stebbins, 11 Johns. R. 224. Mr. Justice Spencer there referred to the cases of Morgan v. Dyer, 10 Johns. R. 161, Frary v. Dakin, 7 id. 75, and Service v. Hermance, 1 id. 91, in which the rule is distinctly recognized (and he forfeited it by citing other cases) that in pleading a discharge under our insolvent laws, as in pleading the judgment of a court of special and limited jurisdiction, it is indispensible to set forth facts sufficient to give to the officer jurisdiction of the particular case. The learned judge also admitted that where notice of the discharge was given under the general issue, it was incum-bent upon the defendant affirmatively to prove that the officer had jurisdiction to entertain the proceedings and grant the discharge ; and yet, the very point and the only one in the case was decided, which is raised here, that the production of the discharge was per se evidence sufficient of the facts thus indispensable to give jurisdiction to the officer. That the officer has jurisdiction (he says) may be proved by parol, or by relying on the facts set forth in the discharge; for those facts are proof by virtue of the act. The subsequent cases in
No doubt, it is competent to a party to defeat the effect of a discharge, by showing that the officer had not jurisdiction, notwithstanding the facts recited in the discharge, as it is always admissible thus to attack the judgment of a court of limited jurisdiction. 19 Johns. R. 345. 5 id. 41. 15 id. 141, 9 Cowen, 229.
Judgment reversed..