Hayden v. Palmer

New York Supreme Court

Hayden v. Palmer

24 Wend. 363

DecidedOctober 15, 1840

StatusPublished

This text of 24 Wend. 363 (Hayden v. Palmer) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hayden v. Palmer, 24 Wend. 363 (N.Y. Super. Ct. 1840).

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Opinion

By the Court,

Nelson, Ch. J.

It is objected that the sixth plea is defective in not setting forth the substance of the petition and inventory; that the averment of conformity with the act presents a mixed question of law and fact, and is therefore bad. The case of Service v. Heermance, 1 Johns. R. 91, and several others that might be referred to, shew that it is not necessary, or even proper, to state the facts giving jurisdiction to the officer with any greater particularity. It would lead to useless and tedious prolixity, and the particular facfe are therefore dispensed with.

Although the 11th section of the act, 2 R. S. 788, directs, that if the insolvent be in prison, he shall be discharged therefrom on producing his discharge, it obviously was intended to apply to the case of close custody, and not where the prisoner is at large upon the limits ; and besides, it is simply directory. The exemption is complete on the execution of the discharge, except that when in prison on mesne process the prisoner must endorse his appearance, § 10, 11. [ *367 ] This court has repeatedly held, that a discharge under *this act extends to debts in judgment, though rendered in actions for torts. 4 Cowen, 66. 19 Wendell, 629, 630. and note.

The eighth plea, which sets out the proceedings before the commissioner in hcec verba, contains the inventory of debts, &c. and states that the insolvent, at some time previous, had conveyed all his estate, real and personal, to a person who had assumed the payment of numerous debts, which are specified. The value of the security is stated to be nominal, compared to the debts assumed. This doubtless, afforded ground for resisting the discharge before the officer ; but cannot be regarded as fraudulent per se, so as to render it void.

None of the several grounds taken to invalidate the pleas can be maintained, and the defendants are therefore entitled to judgment.

Judgment for the defendants.

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By the Court,

Nelson, Ch. J.

It is objected that the sixth plea is defective in not setting forth the substance of the petition and inventory; that the averment of conformity with the act presents a mixed question of law and fact, and is therefore bad. The case of Service v. Heermance, 1 Johns. R. 91, and several others that might be referred to, shew that it is not necessary, or even proper, to state the facts giving jurisdiction to the officer with any greater particularity. It would lead to useless and tedious prolixity, and the particular facfe are therefore dispensed with.

Although the 11th section of the act, 2 R. S. 788, directs, that if the insolvent be in prison, he shall be discharged therefrom on producing his discharge, it obviously was intended to apply to the case of close custody, and not where the prisoner is at large upon the limits ; and besides, it is simply directory. The exemption is complete on the execution of the discharge, except that when in prison on mesne process the prisoner must endorse his appearance, § 10, 11. [ *367 ] This court has repeatedly held, that a discharge under *this act extends to debts in judgment, though rendered in actions for torts. 4 Cowen, 66. 19 Wendell, 629, 630. and note.

The eighth plea, which sets out the proceedings before the commissioner in hcec verba, contains the inventory of debts, &c. and states that the insolvent, at some time previous, had conveyed all his estate, real and personal, to a person who had assumed the payment of numerous debts, which are specified. The value of the security is stated to be nominal, compared to the debts assumed. This doubtless, afforded ground for resisting the discharge before the officer ; but cannot be regarded as fraudulent per se, so as to render it void.

None of the several grounds taken to invalidate the pleas can be maintained, and the defendants are therefore entitled to judgment.

Judgment for the defendants.

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24 Wend. 363, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hayden-v-palmer-nysupct-1840.

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