8 Ala. 173 | Ala. | 1845
A discharge and certificate duly granted to a bankrupt, under the act of Congress of 1841, for the establishment of a uniform system of bankruptcy, shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts and other engagements of such bankrupt, which are proveable under the act, and shall be and may be pleaded as a full and complete bar to all suits brought in any court ol judicature whatever, and the same 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, or rights of property, contrary to the provisions of this act, on reasonable notice specifying in writing such fraud or concealment.” (See § 4.) The fraud and concealment of property by a bankrupt, it is held, must be deliberate and intentional to affect him; but it is said, where property is discovered belonging to the bankrupt’s estate, subsequent to the issuing of the decree, which had not been accounted for; the intention of the bankrupt being apparent, his discharge and certificate will be disallowed. [Owen on Bank. 222-3.] What facts will establish fraud or wilful concealment, so as to annul a certificate already allowed must depend more or less upon the circumstances of every particular case. The possession of property by a bankrupt at the time of his discharge, or immediately after, which by industry he might reasonably have aequired, would not warrant the presumption that he did not make a full surrender of his estate. But where the value of it is so great as to make it improbable that it was earned by him since the filing of his petition, it devolves upon him to show how he became the proprietor of such property: whether by inheritance, bequest or purchase. This much the bankrupt owes to his creditors as well as himself; and the onus of relieving himself from the imputation of fraud, is, in such case,
In the present Gase, the property in the possession of the bankrupt, was slaves. These, we know, are of too great value to be acquired in a very short time as the earnings of industry, and if they were purchased on credit, obtained by gift, &c., the fact should be proved. It is not shown by the bill of exceptions how long the case of the bankrupt was pending; if for a long time, the presumption of fraud would be weakened. But as all intend-ments are favorable to the decision of a primary Court, it would be presumed, if necessary, that the suit progressed regularly to a hearing, without a continuance; especially as the party excepting has not shown by the record, that the reverse is true.
Without stopping to inquire whether the act, in requiring a notice in writing, to the bankrupt, specifying the fraud or concealment, has any influence upon the form of the pleadings, we are satisfied that the replication in this case is good. It is explicitly staled in the record, that both the defendant and plaintiff pleaded and replied “ in short by consent.” This being the case, we have repeatedly held, that it must be intended that the plea and replication contain every material allegation which the law requires, to make them complete; and that an objection which supposes the reverse, cannot be entertained. If the pleadings could, under no circumstances, be supported, of course a demurrer would be sustained, if so interposed as to reach the defect. But the objection which is made to the replication, applies with all force to the plea, and that being prior in order, would be adjudged bad, if the demurrer could be entertained.
This view disposes of the case; the judgment is affirmed.
