Jenks v. Stebbins

11 Johns. 224 | N.Y. Sup. Ct. | 1814

Spencer, J.

delivered the opinion of the court. The case of Morgan v. Dyer, (10 Johns. Rep. 161.) and several antecedent cases, decide, that in pleading a discharge under the insolvent act, it is requisite to set forth facts giving the judge or officer jurisdiction in the case. To give that jurisdiction under the act. of the 3d of April, 1811, it is necessary that the insolvent should have been an inhabitant, for three months next preceding the presenting his petition, of the city or county in which'it is presented, and that he be prosecuted in some court Avithin and under the jurisdiction of this state, on civil process for debt, or on contract express or implied; or that the insolvent is, or actually has been imprisoned, in the county wherein he applies, on ciVil process, out of a court of this state, for debt, or on contract express or implied. .

The fourth section of this act enacts that the discharge shall be conclusive evidence, in all courts of this state, of the facts therein contained. The same section authorizes the. pleading the general issue, and giving the special matter in evidence, under a notice to accompany the plea.

The case.of Frary v. Dakin, (7 Johns. Rep. 75.) is the leading ease in.this court on the subject. The court held that there were three modes in which the insolvent could avail himself of his discharge 1, Under the general issue; 2. By setting forth so much of the proceedings as Avould give the officer jurisdiction, Avith a taliter processum fuit; and, third, by setting forth the Avholc proceedings. The rules of pleading laid dqAvn in that case were in reference to a special plea in bar, and are inapplicable to the present case, except so far as regards the essential requisites to authorize a discharge of the insolvent. It has been justly observed by the counsel for the defendant, that the fallacy pf the argument on the other side consists in bicycling the rules of evidence with the rules of pleading. When the plea is special, and the matter of it referred to the decision of the court, the facts themselves must be pleaded, and not the evidence of the facts. This rule, however, must be understood ‘with the qualification laid down in Frary v. Dakin, and in Service v. Hermance, (1 Johns. Rep. 91. 2 Johns. Rep. 96.) The defendant has here pleaded the general issue, with notice, and It was incumbent on him to prove that the commissioner had jurisdiction of his case under the act of the 3d of April, 1811. This he might have done by parol, or by relying on the facts set forth in his discharge, for those facts were proof by virtue of the act. The discharge sets forth two facts disjunctively, that the defendant was an inhabitant of the county of Jefferson for the space of three months, at least, next immediately preceding the presenting his petition, or in which said county he was then imprisoned. We must consider one of these facts as true; if the latter, the commissioner had jurisdiction without regard to the period of residence; and if the former, it would still be necessary to show that the defendant had been prosecuted on some civil process. The discharge states, additionally, that the defendant, at the time of presenting his petition, caused to be delivered to the commissioner a true account of the suits in which he then was imprisoned or impleaded, the names of the several plaintiffs in such suits, and their places of residence respectively, &c. The discharge also states that the commissioner was satisfied that there was no collusion between the defendant and his prosecuting creditors, &e.

These facts, thus recited, would, undoubtedly, be sufficient evidence to the jury that the defendant was an inhabitant of Jefferson county for three months next immediately preceding the presenting his petition, and that he had been prosecuted on civil process, agreeably to the act, or that he was actually imprisoned in the county of Jefferson; and in either case the commissioner had jurisdiction. It was, therefore, correctly ruled at the circuit, that the discharge was sufficient evidence in itself, and that it was not necessary to prove, aliunde, the defendant’s imprisonment or residence. The motion for a new trial must be denied.

Hew trial refused.