
    Varnum and others vs. Wheeler, impleaded with Swallow.
    A pica of a discharge obtained upon a voluntary application under the lato bankrupt act of the United States must state positively that the defendant at ’ the time of presenting his petition was “ owing debts," &c. It is not enough that such fact is stated to have been contained in the petition presented to the district court.
    Demurrer to plea. Debt oil a judgment rendered in Vermont. Plea, 1. Nil debet. 2. Actio non, because, &c. (averring that the defendant was a resident and inhabitant of the northern district of New-York,) he the said defendant on, &c. at, &c. “presented to the district court of the United States for the northern district of New-York, a petition setting forth” that he was such resident, “and that he owed debts which had not been created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any other fiduciary character; and that he owed debts and was under engagements which he was unable to meet, and that he accordingly applied to the court,” &c. reciting the residue of the petition, and then taliter processum fuit that an order to shew cause was made, and the defendant was declared a bankrupt, and subsequently received his discharge and certificate, which is set forth in hccc verba. An averment is added that the plaintiffs’ cause of action arose prior to the time of the defendant’s presenting his petition, and that it did not accrue in consequence of a defalcation as a public officer, &c. Demurrer with special cause, and joinder.
    
      N. Hill Jr. for the plaintiff.
    
      S. Stevens, for the defendant.
   Per Curiam.

The bankrupt act (§ 1) provides that “ all persons” “ owing debts,” <fcc. “ who shall by petition,” &c. “ apply to the proper court,” &c. “ shall be deemed bankrupts within the purview of this act, and may be so declared accordingly.” It should have been positively averred in the plea that the defendant at the time of presenting his petition owed debts. The averment is that the petition set forth that he owed debts. This is not sufficient. Facts which are necessary to confer jurisdiction must be positively stated. Such has always been the manner of pleading under the insolvent acts of this state, though the discharge is made conclusive evidence of the regularity of the proceedings in the same manner as under the bankrupt act.

Judgment for the plaintiff. 
      
      
        а) Sackett v. Andross, (5 Hill, 327.)
     
      
      
        Service v. Heermance, (1 John. 91;) Frary v. Dakin, (7 id. 75;) Morgan v Dyer, (10 id. 161.)
     