Downer v. Dana

22 Vt. 337 | Vt. | 1850

The opinion of the court was delivered by

Redfield, J.

A question is made, in the present case, whether the effect of a discharge in bankruptcy is avoided, by showing, that the matter in suit was not contained in the bankrupt’s schedule. But we think that matter too well settled, to require discussion. If the omission is accidental, or from any other cause, not involving the petitioner in fraudulent concealment, the omission will not in any manner avoid, or hinder, the effect of the discharge. A contrary rule would not only be attended with great hardship, but be liable to great abuse, in numerous ways.

The question as to the sufficiency of the record of the decree in chancery is, in our judgment, free from all difficulty.

Taking it for granted, that the supreme court have final jurisdiction in all matters in equity, not only to hear and determine, but to make and enrol final decrees, it should at least appear, that the matter was properly before the court, so that jurisdiction was fairly and formally obtained. Strong presumptions will usually be made in favor of the decrees and judgments of courts of general jurisdiction. But enough of the previous proceedings should either be recited, or stated, to show, that the parties were properly in court, and that the general nature of the subject matter came within the cognizance of the court. For this purpose it is not necessary, as is sometimes done, to copy the antecedent process; but a mere statement of the defendant being summoned, or attached, with the common form, taliter processum, est, is ordinarily regarded as a sufficient preface to the statement of the judgment. And here, as the supreme court obtains jurisdiction only by means of that of the court of chancery, in the first instance, it is as necessary to state the proceedings before that court, as if the record were of a decree, made final in that court. But in the present record it is only stated, that the party obtained a decree in the .court of chancery, from which an appeal was taken to the supreme court, — whether with, or without antecedent process is not stated, or implied, unless in the negative, from the unusual silence of the record upon this point, when the common form justifies the expectation, that something positive will appear, if the facts will warrant it.

But there is another fatal defect in the transcript of record offered in evidence, it purports to fib the record of the final decree of the court of chancery in the supreme court, which, as our courts are at present arranged, is only a court of Jaw, and has no chancery jurisdiction whatever, strictly speaking. It is true, that this court is made a court of appeal for the final hearing of cases in equity; but whether the decree of the chancellor is affirmed, or reversed, the case is always remanded to the court of chancery, where the final decree is ultimately recorded, or enrolled, which is the only record of the decree of the court of chancery. So that in England, the court of chancery is not strictly denominated a court of record. The decree, or judgment of the court of chancery, can only be shown by the original decree, or a copy of the enrollment; which is always in the court of chancery, and never in the supreme court. Viles et al. v. Moulton, 11 Vt. 470. Morse et al, v. Blason et al., 13 Vt. 296. Austin v. Howe, 17 Vt., 654. The Revised Statutes, chap. 24, § 21, are explicit upon this point, — “When an appeal shall have been so heard and determined, all the proceedings, together with the judgment, decree, or order, of the supreme court therein, and all things concerning the «ame, shall be remitted to the court of chancery, where such proceedings shall be thereupon had, as may be necessary to carry such judgment, .&c,, into effect.” So that whether we regard the statute, i» its terms, or the practical construction, which it has received, the copy given in evidence in this case is nothing more than the docket minutes of the clerk, in the supreme court, and in no sense the copy of the enrollment of the final decree in the court of chancery.

Judgment affirmed.