Wiggins v. Shapleigh

20 N.H. 444 | Superior Court of New Hampshire | 1846

Gilchrist, J.

It was held, in Johnson v. Ball, 15 N. H. 407, that in pleading a discharge under the bankrupt law it was only necessary to set forth enough to show that the court had jurisdiction of the case and granted the discharge. Any mere error in the course of the proceedings of the District Court would not avoid the discharge; and, therefore, if the proceedings are set forth in detail in the plea, it would seem that most of its averments could not be traversed, as it would lead only to an immaterial issue to do so. That decision has since been acted upon in practice, and eases have been decided in conformity with its doctrine. Cutter v. Folsom, Rockingham, December term, 1844.

The plea should state the facts necessary to give the court jurisdiction; th^t is, it should state the conditions required by the act for that purpose. The party must have resided, at the time of his application, within the jurisdiction of the court to which he applies. He must be owing debts which shall not have been created in consequence of a defalcation as a public officer, or as executor, or while acting in any other fiduciary capacity. But it has been decided that it is not necessary to allege in his plea that the debts which he owed were other than such kinds of debts, and it is sufficient to state merely that he was owing debts. If the debt sought to be avoided or barred by the discharge is of the fiduciary or other excepted class, it may be so stated in the replication, and the plea will thereby be answered and avoided. If the debt is not of any of the excepted classes, it would answer no reasonable purpose for the defendant to aver in his plea that he owed debts not created in a manner to prevent the application of the bar.

The bankrupt law does not require the petitioning party to allege that his debts are other than of the excepted classes; and it has been held, that if a fiduciary creditor proves his debt he shall be estopped to deny that it was a debt provable under the statute. Fisher v. Currier, 7 Met. 424.

It must appear, also, that he actually filed his petition, as required by the statute; but he need not state that schedules were annexed to or accompanied it; nor need he set forth other contents of the petition, in order that the court may judge whether it contained all that it ought to have contained. Those things pertain to the jurisdiction of the District Court, who will examine into the sufficiency of the petition, and grant leave to amend in cases requiring it.

The authority to grant leave to amend the proceedings is incident to all courts, in cases rightfully before them; that is to say, in cases which are within their jurisdiction, and which have been brought before them by the appropriate formal process. They will grant amendments also of the process itself, where the error or omission is of a formal nature.

It would, therefore, seem to be trenching upon the limits of another tribunal for us to inquire whether there was in the process, or in the subsequent proceedings, an error or omission requiring amendment, or whether, in cases of actual amendment by an order of that tribunal, leave was properly granted.

"We certainly should not require a plea to set forth all the proceedings, and show their conformity to the statute, whatever might be held with respect to an irregularity distinctly pointed out by a replication.

This rule of practice would apply to the objection, raised by the demurrer, to the time intervening between the decree of bankruptcy and the discharge, which appears by the dates to have been sufficient.

The proceedings before the District Court are not strictly analogous to the proceedings before the commissioners of bankruptcy in England, where the forms of pleading adopted set out all the particulars. 2 Chit. PI. 424.

Judgment for the defendant on demurrer.