Mansfield v. Andrews , 41 Me. 591 ( 1856 )

Rice, J.

Assumpsit on two promissory notes for §200 each, dated St. John, N. B., Nov. 20, 1848, and payable, one in three months and one in sis months. The defence is a discharge in bankruptcy, under the laws of New Brunswick. The contract having been made in New Brunswick, and that being the place for its performance, the case will be governed by the laws of that province. A discharge of the defendant in bankruptcy, which would be held valid under the laws of New Brunswick, will, therefore, be held valid here. May & als v. Breed & al., 7 Cush. 15.

The defendant put into the case a certificate of discharge in bankruptcy, and also the several Acts of the province of New Brunswick, now in force, in relation to bankruptcy.

By Act of 6th Victoria, c. 4, passed April 11, 1843, § 24, it is provided, “ that any bankrupt who shall have duly surrendered, and in all things conformed himself to the laws in force, at the time of issuing the fiat in bankruptcy against him, shall be discharged from all debts due by him when he became bankrupt, and from all claims and demands made provable under such fiat, in case he shall obtain a certificate of such conformity, so signed and allowed, and subject to such provisions as hereinafter mentioned.”

By § 5, c. 31, of Act of 7th Viet., passed April 13, 1844, it is provided, “ that any bankrupt who shall, after such certificate shall have been confirmed, be arrested, or have any action brought against him for any debt, claim or demand, provable under the fiat against such bankrupt, shall be discharged upon entering an appearance, and may plead in general that the cause of action accrued before he became bankrupt, and may give this Act and this special matter in evidence.”

The certificate of conformity and discharge were properly admitted in evidence, and they are to be received as evidence, prima facie, of the facts stated therein; and that the proceedings in bankruptcy were regular. But this certificate does not show when the defendant became a bankrupt, nor when the fiat issued; nor is there any evidence that the notes in suit were provable under such fiat. These facts should be made to appear to constitute a defence. The burden was on the defendant to show, in the first instance, that he was within the provisions of the bankrupt laws, whose protection he invokes. This he has failed to do, and therefore, according to the agreement of the parties, a default must be entered.

Tenney, C. J., and Appleton, J., concurred.