Ayres v. Scribner

A replication that an insolvent discharge pleaded in bar to a recovery was obtained per fraudem, admits the jurisdiction of the officer who granted the discharge, and estops the plaintiff from showing that two thirds of the creditors did not unite in the petition for the discharge. Fraud will not be inferred from the simple fact that, from the insolvent papers themselves, it appears that the amount of the debts owing to the petitioning creditors is not equal to two thirds of the whole amount of debts owing by the insolvent; the error will be ascribed to mistake and not to fraud. Where the sum due to a creditor is set down in the account of creditors at an amount less « than the true sum, the discharge will not be avoided unless the jury find it was done willfully and fraudulently, (a)

This was an action of assumpsit, tried at the New York circuit in October, 1835, before the Hon. Ogden Edwards, one of the circuit judges. The plaintiff declared on four notes; one for $94-87, dated 3d September, 1828, payable five months after date; another for $ 156*75, dated 8th September, 1828, payable five months after date; another for $135*12, dated 26th September, 1828, payable four months after date; and another for $145*06, dated 12th June, 1828, payable five months after date; the declaration contained also the common money counts. Suit commenced in December, 1834. The defendant pleaded an insolvent discharge from all his debts, granted by the recorder of New York, 30th June, 1831. The plaintiff replied, that the discharge was obtained by fraud, and accompanied the replication with twenty specifications of fraud. One specification was, that the defendant had fraudulently represented to the recorder that two thirds of his creditors residing within the United States had united with him in the petition for his discharge, whereas the fact was, and that it so appeared from the [408] papers presented to the recorder, that two thirds did not unite. Another specification was, that the defendant had fraudulently concealed the true amount of the debt due to the plaintiff, and had fraudulently represented it to be less in amount than it in fact was. Besides these there were eighteen other specifications. On the trial of the cause, the plaintiff offered in evidence the insolvent papers, as presented to the recorder, to show that two thirds of the creditors of the defendant had not united in the petition, and this offer was made for the purpose of showing want of jurisdiction in the recorder, and that the defendant had been guilty of fraud in representing to the recorder than two thirds had united in the petition. For the purposes offered, the judge refused to receive the papers. In the account of creditors presented to the recorder, the plaintiff was put down as a creditor for the amount of $496'93, which was stated to be due to him on three notes. The plea stated the petition to have been presented 5th March, 1831. The plaintiff proved that the amount due to him on the four notes described in the declaration, on'the day of presenting of the petition, was $611*52. The plaintiff also offered several witnesses to prove various instances of fraud on the part of the defendant, whose testimony was objected to, on the ground that the facts offered to be proved were not set forth with sufficient certainty, in anyone of the specilications attached to the replication, and was rejected by the judge. The cause was submitted to the jury under the charge of the judge, to which no exceptions were taken. The jury found a verdict for the defendant. The plaintiff moves for a new trial. The cause was submitted on written arguments.