Stewart v. Hargrove , 23 Ala. 429 ( 1853 )

GOLDTHWAITE, J

The motion made by the defendant in error, Hargrove, is not to be found in the record, except as it appears in the judgment entry. It is there referred to as a motion, on the part of Hargrove, to enter of record his discharge from a judgment rendered at the Spring term, 1839, of the Circuit Court of Russell County, upon the ground, so far as we can learn from the entry and the other portions of the record, that he had been discharged in bankruptcy under the act of Congress of 19th of August, 1841. As the record does not purport to set out all of the evidence, and the motion itself is wanting, we cannot say that there wTas not proof before the court that an execution on the judgment referred to had issued before the motion was made, nor can we say that the motion did not allege that such was the case; and we cannot, for these reasons, apply thelrule laid down [by this court in the case of Brown v. The Branch Bank, 20 Ala. 420, holding that a bankrupt could not move to have his discharge entered of record for the purpose of preventing the issue of an execution. We must, therefore, examine the rulings of the court below upon some of the other points embraced by the assignments of error,

The fourth section of the bankrupt act provides, that the discharge and certificate of the bankrupt shall be conclusive evidence in his favor, unless “impeached for some fraud or wilful concealment by him of his property or rights of property, contrary to the provisions of the act, on prior reasonable notice specifying in writing such fraud or concealment.” The motion of the plaintiff below being predicated upon his discharge in bankruptcy, it might properly have been resisted upon the grounds and in the mode specified by the act, either by plea, replication or notice in writing, according to the character of the proceedings against the bankrupt; but whatever mode is adopted, the fraud or concealment must be sot forth in writing, and with that degree of certainty and precision which will enable the court to determine whether the facts alleged are sufficient in law to impeach the decree, and the party to meet the charge; or, in other words, tho facts which are relied on to impeach the certificate, must be stated with certainty to a common intent.

Applying this rule to the case under consideration, wo have no difficulty in arriving at the conclusion that the court did not err in sustaining the demurrer to tho second and fourth specifications. The mere allegation, in general terms, that the bankrupt failed to file a full schedule of the notes and accounts held by him, without specifying which were omitted, and generally that he had made a fraudulent conveyance of his property, without stating the person to whom the conveyance ivas made, or the property conveyed, are legal conclusions, and are also wanting in that degree of precision and certainty which the rules of pleading require. The last objection also applies to the fourth specification, which sets out neither the amount of the decree nor the time of its rendition.

But the court erred in sustaining the demurrer to the first specification, which, in substance, alleged that Hargrove fraudulently omitted from his schedule a franchise consisting of a toll bridge over Uchee creek, in the county of Russell, on the road leading from Crawford to Columbus, Georgia. That a franchise of this description is property, was decided in the case of Lewis v. The Intendant of Gainsville, 7 Ala. 35; and we can perceive no valid reason why, as such, it should not pass to the assignee of the bankrupt.

There was no error in sustaining the demurrer to the plea, which we regard as defective in substance. It alleges that, before the application of Hargrove for the benefit of the act, the judgment, in relation to which the motion was made, had been rendered, and an execution issued thereon, which had been delivered to the proper officer of Russell County tobe executed, and that there were slaves, the property of Hargrove, in said county, liable to the levy of the execution, which had not been sold under the same. There is no doubt that, under the decisions of this court, any lien which was in force during the proceedings in bankruptcy would be preserved, (Doremus v. Walker, 8 Ala. 194; Freeny v. Ware, 9 Ala. 370;) but the lien acquired by the plaintiff in the judgment, by the delivery of the execution to the sheriff, is lost, unless continued by the renewal of the execution from term to term. The plea shows merely that a lien liad been created, prior to the application in bankruptcy, but is defective in not showing that it continued up to the rendition of the decree.

We think, however, that the court erred in the rejection of the pleas which were tendered after the demurrer was sustained, at least as to such of them as might properly be regarded as amendments to the former specifications, which had been adjudged defective. The statute, (Clay’s Dig. 334 § 19,) in direct words, allows amendments on terms after a demurrer is sustained, and we arc unable to perceive any reason why its provisions should not extend to specifications contesting a decree in bankruptcy on the ground of fraud. Indeed, we are of the opinion that it falls directly within the terms of the act.— It would, of course, be the duty of the court to see that the other party was not prejudiced, by being forced into trial without reasonable notice of the facts set up by the pleas, which could be accomplished by the postponement or continuance of the trial, and such other terms might also be imposed as would meet the justice of the case; but to refuse under such circumstances a specification or plea, contesting the discharge on grounds allowed by the act, might operate to sustain fraud, and is certainly in opposition to the spirit of the statute before referred to. It will be observed, that we do not intend to decide whether the matters embraced in the pleas were well pleaded : our decision goes only to the extent, that a franchise in the bankrupt consisting of the right to take tolls for crossing at a bridge or causeway, is a species of property which will pass to the assignee in bankruptcy; that the interest which he has in any decree or judgment also passes, and that the court is not authorized to reject a plea which eontaius matter which may be good in defence, even if it were improperly pleaded—Carpenter v. Jeter, 4 S. & P. 326.

The judgment is reversed, and the cause remanded.