In this case, no new principle is involved which is not fully covered by the decision of this Court, in the case of Kohlman v. Wright, decided at the July Term, 1856.
In that case, the indentical discharge of the insolvent, now in controversy, was under review, and it was objected that the discharge was void, because the petition was sworn to before the clerk, instead of the Judge.
The Court, however, overruled the objection, and held the discharge good, on the ground that the error of making the oath before the clerk, instead of the Judge, was only an irregularity, to be corrected on appeal, and does not affect the question of jurisdiction.
The Court had jurisdiction over the cause; but a failure of the petitioner to comply with the merely directory parts of the act, cannot affect the question of jurisdiction, though it might furnish grounds of reversal on appeal.
If the Court hadjurisdiction of the subject-matter, the person, and the relief sought, any mere irregularity in the proceedings will not invalidate the discharge.
On this point, the following authorities are deemed conclusive:
Betts v. Bagley, 12 Pick. 572; Taylor v. Williams, 20 Johns. 21; Stanton v. Ellis, 16 Barb. 321; Cole v. Stafford, 1 Caines, 249; Service v. Hermance, 1 Johns. 91, 300; Cunningham v. Bucklin, 8 Cow. 178; In re Hurst, 7 Wend. 239; Jenks v. Stebbins, 11 Johns. 224, 441.
It is eminently proper that the application of the members of an insolvent firm should be joint, and not several.
The assets of the firm are to be applied to the payment of firm debts, and the individual assets to the individual debts.
If the applications were several, and not joint, each petitioner might have a separate assignee; and of these several assignees, which of them is to administer the assets of the firm.
It is evident, endless disputes and confusion would arise, and, as there is nothing in the statute in conflict with this view of the case, and as it is obviously most convenient in practice, a joint application is not only allowable, butit is, in fact, the only proper mode of proceeding.
JUDGES: Terry, J., delivered the opinion of the Court. Burnett, J., concurring.
OPINION
TERRY, Judge
This is an action upon a promissory note. The defendants pleaded in bar to the action a discharge from their debts by the judgment of the District Court of Nevada County, under the insolvent laws of the State, and the question involved in the record is as to the validity of this discharge.
It appears from the record of the proceedings in insolvency, that the defendants, who were partners, made a joint application for the benefit of the act; that the schedule, affidavits, and other papers, were filed as the joint act of the partners. In the case of Cohen v. Barrett (5 Cal. 195,) it was held that an application under the Insolvent Law was not stricti juris, a proceeding either at law or equity, but a special remedy, created by statute, and that, as to such proceedings, the District Courts are inferior Courts, and must pursue the statute strictly; that, in such cases, the District Court must first ascertain that the person, the subject-matter, and the relief sought, are within the statute, before its jurisdiction will attach; in other words, in order to vest the Court with jurisdiction, the petitioner must show, on the face of his application, such a state of facts as will entitle him to a discharge.
In the case under consideration, the application was wholly insufficient.
1. Because it was made in the joint name of the partners, for which there is no authority in the act.
2. Because it does not show a surrender on the part of the defendants, of all the property owned by them, or either of them. The petition, schedule, and affidavit, show a surrender of joint property only, and, for aught that appeared, each may have been in possession of individual property, more than sufficient to satisfy the demands against them.
It follows that the proceedings in bankruptcy, being without jurisdiction, and void, constitute no bar to the action.
Judgment reversed, and cause remanded.