Per Curiam.
The bankrupt act (§ 1) provides that “ all persons” “ owing debts,” <fcc. “ who shall by petition,” &c. “ apply to the proper court,” &c. “ shall be deemed bankrupts with
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in the purview of this act, and may be so declared accordingly.” It should have been positively averred in the plea that the defendant at the time of presenting his petition owed debts. The averment is that the petition set forth that he owed debts. This is not sufficient. Facts which are necessary to confer jurisdiction must be positively stated.(a) Such has always been the manner of pleading under the insolvent acts of this state, though the discharge is made conclusive evidence of the regularity of the proceedings in the same manner as under the bankrupt act.(b)
Judgment for the plaintiff.
(a).
а) Sackett v. Andross, (5 Hill, 327.)
(b).
Service v. Heermance, (1 John. 91;) Frary v. Dakin, (7 id. 75;) Morgan v Dyer, (10 id. 161.)