
    * Marshall Jenkins versus Caleb Stanley and George Stanley.
    Of pleading a discharge under a commission of bankruptcy.
    [Defendant pleaded a discharge under a commission of bankruptcy, which plea was defective, but contained allegations from which a good discharge might, be implied.
    Plaintiff replied that defendant, at the time, &c., was not using the trade, &c., and that the petitioning creditor was not a bond fide creditor, but was admitted to be a creditor by fraud or collusion with defendant, and that the certificate of discharge was obtained by fraud and collusion with others.
    Defendant rejoined that he was at the time, &c., using the trade of a grocer; that the petitioning creditor was a bona, fide creditor; and that the discharge was fairly obtained, and not of his own fraud and by collusion with others, and tendered an is me, which was joined; and a verdict was returned that the discharge was obtained fairly, and not by collusmn.
    On motion for judgment, notwithstanding the verdict, or for a repleader, held, that the defects in the plea were cured by pleading over, and that the, rejoinder traversed the only material fact, viz., the fraud in obtaining the certificate, and that the verdict had decided it, and eveiy thing material in the issued
    
      Debt upon a judgment recovered in this Court in May, 1803, by the plaintiff and one William Jenkins, whom the plaintiff hath survived, against the defendants.
    The defendant, Caleb Stanley,
    
    pleads in bar, that, on the 13th day of April, 1803, he became a bankrupt within the intent and meaning of a certain statute of the United States, entitled “ An Act to establish a uniform system of bankruptcy throughout the United States; ” that such proceedings were had before the commissioners named and authorized in and by a commission of bankruptcy awarded and issued against him; that the said commissioners, on the 30th day of May, 1803, gave him a certificate of discharge from all debts then existing against him, according to the provisions of the said statute; that a majority of his creditors, in number and value, consented that the said commissioners should sign and seal the said certificate; and that the judge of the district, on the 6 th day of June, 1803, allowed and confirmed the same; of which he makes a proferí. He then avers that the cause of action accrued before he became bankrupt.
    The plaintiff replies, that, at the time when the said Caleb is supposed to have become a bankrupt, he was not actually using the trade of merchandise, by buying and selling in gross or by retail, or dealing in exchange, or as a banker, factor, underwriter, or marine insurer; and that John Eggleston, the petitioning creditor, on whose sole petition the said proceedings were had, was not a bond fide creditor of the said Caleb, to the amount of one thousand dollars, but his pretended debt was without consideration, and made by fraud and collusion between him and the said Caleb, for the purpose of enabling him to obtain a certificate of discharge in pursuance of said statute. And so the plaintiff says that the said certificate of discharge was obtained by him, the said Caleb, unfairly, and by his own fraud and by collusion with others.
    *The said Caleb rejoins, that he was at the time when, &c., actually using the trade of merchandise as a grocer; that the said John Eggleston was a bond fide creditor, for a good and valuable consideration ; and that the said discharge of the said Caleb, under the process of bankruptcy aforesaid, was obtained fairly, and not of his own fraud and by collusion with others, as by the said replication is supposed. And he tenders an issue, which is joined.
    A trial of this issue was had before the late Justice Sedgwick, and a verdict returned, “ that the certificate of discharge by the said Caleb, in his plea aforesaid mentioned, was obtained fairly, and not of his own fraud, and by collusion with others, as by the plaintiff’s replication is alleged.”
    
      After the verdict, the plaintiff moved that judgment be entered for him against the defendants, for the debt and damages demanded, or that a repleader be awarded; because the said Caleb had not pleaded the general issue, nor set forth in his plea all the material facts necessary to discharge him by the statute of the United States therein mentioned; and whether the certificate of discharge so obtained was procured by fraud or not, is altogether immaterial.
    
      Dewey, for the plaintiff.
    The statute of bankruptcy authorizes the bankrupt to plead the general issue, and give the special matter in evidence. But as the defendant in this case could not avail himself of that provision, and the English statute of 4 Geo. 2, c. 30, which provides for the bankrupt’s pleading generally, not being in force here, the plea of the defendant mu«t be taken as at common law, and then it is very defective,  and would have been bad on general demurrer. The defendant cannot have judgment; and if the plaintiff may not have judgment, there should be a repleader.
    
      Hulbert and Whiting, for the defendants,
    conceded that the plea was not very skilfully drawn, but contended that there being nothing in issue but the fraud, and that being found for them, they were entitled to judgment.
    *The action was continued nisi for advisement, and [ * 228 J the next week, in Hampshire, the opinion of the Court was delivered to the following effect by
    
      
      J) 2 Lord Raym. 1546
    
   Jackson, J.

The plea in bar in this case seems to have been drawn from some English precedent, founded on the statute of 5 Geo. 2, mentioned in the argument, which allows the bankrupt to plead, in general, that the cause of action accrued before he became bankrupt, and to give that act and the special matter in evidence, although this plea contains some averments which are not considered necessary in the English courts.

The provisions of the thirty-fourth section of the statute of the United States are obviously borrowed from this English statute. But instead of giving a general, flea, like that before mentioned, it provides that the bankrupt may plead the general issue, and give the act and the special matter in evidence.

In the present action, the only plea which would be considered as the general issue is that of nul tiel record, which is not triable by jury ; and, of consequence, the defendant could not avail himself of the privilege granted him by the statute of the United States. He must, of course, plead specially the matter relied on for his discharge ; and the sufficiency of his plea must be determined by the rules of the common law. In this view it is clearly defective, and must have been adjudged bad on demurrer. The only question is, whether it is cured by the subsequent pleadings and the verdict.

The replication seems calculated to impeach the certificate on the ground of fraud. Several facts are suggested, tending to show it fraudulently obtained, and then the conclusion is drawn that it was so obtained. If this is the legal import of the replication, it is confessing and avoiding the bar, and every fact substantially set forth in the bar is admitted.

Now, it is averred by the defendant, that he became a bankrupt within the true intent of the statute of the United States [ * 229 ] before mentioned ; and it also appears, though *not so distinctly averred, that a commission was issued against him under the statute. He further avers that he obtained a certificate of discharge from the commissioners, with the consent of the creditors, and the allowance of the judge, “ according to the provisions of the said act.”

All this could not be true, unless certain other facts also existed. He must have been within the description of persons liable to a commission under the statute ; he must have committed an act of bankruptcy; there must have been a petition by a creditor of a certain description, and a declaration of his bankruptcy by the commissioners. These facts appear to be necessarily involved and implied in those which are set forth in the bar. z

The thirty-fourth section of the statute before mentioned makes the certificate prima facie evidence of all the proceedings precedent to obtaining it; and then provides that a verdict shall thereupon pass for the defendant, unless the plaintiff in such action can prove that the certificate was obtained unfairly, and by fraud, or unless he can show a concealment of effects by the bankrupt, to the value of one hundred dollars.

The replication in the case at bar seems to have been framed with reference to this provision. It cannot be supposed that the plaintiff intended to traverse several distinct and independent facts, which would have made his replication double; and which, if regularly traversed, would have been immediately proved by the certificate, of which a proferí had been made.

Considering the replication in this view, the rejoinder directly traverses the only material averment, viz., the fraud in obtaining the certificate. On this traverse an issue is joined, and the jury have found it for the defendant.

We are all of opinion that this verdict decides the only material fact in the cause; and, of course, we cannot award a repleader The jury may even be considered as having found that the debt of the petitioning creditor was bond fide; because, if it had appeared to them that it was a pretended debt, made by collusion with the defendant, in order to procure *a commission [ * 230 J of bankruptcy and a discharge, they could not have found that the certificate was fairly obtained. So any other fact, tending to prove that it was fraudulently obtained, might have been proved by the plaintiff under this issue. We are now bound to say that no such fact was proved. Neither party could have been surprised by going to trial upon these principles. They could not have supposed that on one issue two or more distinct material points were to be tried.

Upon the whole, here is a discharge substantially pleaded; and the jury have pronounced it sufficient, on the only point on which it was, or perhaps could have been, impeached. We are therefore satisfied that judgment must be entered for the defendants on the verdict, 
      
      
         [Spear vs. Bicknell, 5 Mass. Rep. 125. — Ingersol vs. Jackson, 9 Mass. Rep. 495. — Ward vs. Johnson & Al., 13 Mass. Rep. 148. —Dunning vs. Owen & Trustee, 14 Mass. Rep. 157. — Hutchinson vs. Brock, 11 Mass. Rep. 119.—-Ed.]
     