Alexander v. Follet

5 N.H. 499 | Superior Court of New Hampshire | 1831

By the court.

It is said that the claim of this plaintiff was rejected by the commissioner, because it was a demand depending upon a contingency, which had not happened. But such a view of the claim is entirely erroneous. This is not a demand depending upon a contingency, but is a present debt, although it is payable at an uncertain future time. This is no more a demand depending upon a contingency, than any other promissory note, payable at a future day. A demand depending upon a contingency, which has not happened, and which cannot be allowed against an insolvent estate, exists where a debt or doty may arise upon the happening of some event, but where there is no debt or duty until the event happens. But this is not a ease of that description. This claim is debitum in presentí, solvendum in futuro — a present debt, to be paid at a future time.

There are many cases in the books, which explain and recognize this distinction. 8 D. & E. 386, Staines v. Planck; 6 Johns. Ch. Rep. 266, Roosevelt v. Mark; 2 Strange, 867, Tully v. Sporkes.

But it is said that the statute of 1822, which provides for the allowance of claims against an insolvent estate, which are not due, is, with, respect to this note, retrospective ; because this claim existed prior to the time when that statute went into operation. The answer to this, however, is, that the statute of 1822, when applied to this claim, is not a retrospective law for the decision of a civil cause within the prohibition in the constitution. Thus applied, the statute amounts simply to a provision that, when a man dies insolvent, his estate shall be divided among Ms creditors, as well those whose debts are not due as those whose debts are due. It makes no new rule to decide, what are the rights of the parties under the contract, but merely provides how the estate shall be divided among the creditors.

Declaration adjudged sufficient*