27 Me. 138 | Me. | 1847
The opinion of the Court was drawn up by
The plaintiff claims to recover for goods sold to the defendant, the wife, while sole. She intermarried with the defendant, Starrett, after she, by her maiden name, on her petition, had been declared a bankrupt, under the act of Congress of 1841; and after she had presented her petition
The plaintiff insists, that the certificate so granted is null and void, and furthermore, that it was fraudulently obtained by means of a wilful concealment by her of her property or rights of property, and is, therefore, inoperative. The Court, at the trial, ruled that the certificate was not objectionable on account of its being issued to the wife, by her maiden name, and in pursuance of a decree passed after her intermarriage with Starrett; and as to the supposed fraudulent concealment of property, that no such prior reasonable notice had been given as is required by the act to authorize the plaintiff to introduce proof of the existence of it; and thereupon a non-suit was entered which is to be removed, and the action is to stand for trial, if the Court erred in either of those rulings.
The first question is, was the certificate of discharge, as issued, pleadable in bar of the action? Could she, after her intermarriage, as a feme sole, and by her maiden name, prosecute her petition, before presented, for a decree of discharge ? And could a discharge issued to her in her maiden name, after her intermarriage, be available to her and her husband, as a defence against a suit for her debt incurred when sole ? In reference to these inquiries we are without aid from precedents to be found in the books, bearing directly upon them. Generally we are well aware, that the. marriage of a feme sole plaintiff, if regularly pleaded, abates her suit. If not pleaded, the suit may proceed to judgment in her ñame, and execution may issue thereon, as if she were sole. Comyn, Abatement, K. & H. 41. The decree of discharge was a judgment of Court. It was not, so far as appears, opposed by the creditors; yet we must presume it was preceded by regular proceedings for the purpose, and upon due notice given, and so that the creditors must be concluded as being privy to it. If such were not the case, they might, perhaps, avoid it by plea, as it is a general rule, that one not privy to a judgment, and having no
The other question presented, has not occurred in any adjudged case, precisely like the one before us, so far as we are informed. It must depend upon the construction to be put upon a provision to be found in <$> 4, of the statute before referred to, in these words, “ and the same (the certificate of discharge) shall be conclusive evidence of itself in favor of such bankrupt, unless the same shall be impeached for some fraud or wilful concealment by him of his property,” “ on prior reasonable notice, specifying in writing such fraud or concealment.” What is meant by prior reasonable notice, specifying the fraud or concealment ? Doubtless a replication in the case before us, setting forth the fraud or concealment specifically, as if it were a special declaration therefor in an action of the case, if seasonably filed, would be reasonable prior notice ; and a counter brief statement, under our statute, if the certificate were set up in defence in a brief statement, setting forth specifically the fraud and concealment, so that it could distinctly and clearly appear wherein the fraud and concealment consisted, if seasonably filed, would be a compliance with the requirement in the statute; and so, if instead of a counter brief statement, notice in writing were given, being equally specific, long enough before the trial came on, to enable the defendant to know wherein the fraud and concealment were
The plaintiff, in the court below, filed a counter brief statement, and gave notice, besides, in writing, and in this Court has filed an amended notice, and the question is, was either of them sufficiently specific ? The counter brief statement contains some allegations, which have no connection with fraud or concealment. The second specification therein was doubtless supposed to contain the requisite description. It is, that the bankrupt, in her original petition and schedule B. therein, did not give an accurate inventory of her property, rights and credits of every name, kind and description, and of the location of each part and parcel thereof, as required by the act aforesaid. This cannot be regarded as such a specification as was intended by the law. It alleges, that she did not accompany her petition with an accurate inventory. This is done in general terms. No particular article is alleged to have been owned by her, and to have been by her wilfully concealed for the purpose of defrauding her creditors.
The other specifications, having reference to fraud, are to a similar amount. None of them describe the particular act wherein the fraud is supposed to have consisted; but merely make general allegations. One of them contains an averment that she “ transferred certain securities,” &c. without naming or describing, or attempting to describe any one of them. The notice filed in the court below is still more indefinite.
The notice filed in this Court states, that the bankrupt fraudulently and wilfully suppressed and did not inventory, in her schedule B., in her petition to be declared a bankrupt, an interest in a house, or house and land in Clinton ; sundry notes and demands due said Nancy T., beds and bedding, table linen,' knives and forks, spoons, castor, chairs, rugs, candlesticks, lamps, fire set, window curtains, jewelry, spectacles, tables and stands, napkins.” As to rights to land, or land and house in Clinton, it might be very difficult for her to conjecture what was intended. There is nothing in the description to lead her
