Beardsley v. Hall

36 Conn. 270 | Conn. | 1869

Park, J.

The question whether the admission by one partner of a partnership debt, after the dissolution of the partnership, but before the statute of limitations has run against the claim, may be sufficient to remove the bar of the statute of limitations as to all of the partners, has been so recently before this court and decided in the affirmative, that it is unnecessary to consider the question in this case, for it must be regarded as settled. Bissell v. Adams, 35 Conn., 299.

It is further claimed by the defendants that the court erred in charging the jury that the admission of the defendant Beardsley, made on the Sabbath day, between the rising and the setting of the sun, that the sum of fifty dollars that he had previously let the plaintiff have, was paid in part satisfaction of the note, was proper evidence to prove the fact of partial payment. If the payment had been made on the Sabbath day, perhaps the transaction would not have been sufficient to remove the bar of the statute, according to the authority of the late case of Finn v. Donahue, 35 Conn., 216; and perhaps it may he questionable whether an acknowledgment or new promise made on the Lord’s day would be sufficient for the purpose; although the Supreme Court of the state of Maryland, in the recent case of Thomas v. Hunter, in the 29th of Maryland Reports, held “ that the code of public acts of that state did not prevent an acknowledgment or new promise made on Sunday from being used in evidence for the purpose of removing the bar of the statute of limitations.” But however this may be, we are clearly of the opinion that the mere acknowledgement on the Lord’s day that a sum of money that had been previously paid to the plaintiff was paid in part satisfaction of the note, was proper evidence to be received as tending to show that it was so paid. If the money had been so paid it was a transaction of past occurrence. The acknowledgment did not apply the money to the note; it merely furnished evidence that it had been applied. Neither did the admission itself tend to remove the bar of the statute. The bar had, in fact, been removed by the partial payment of the note, and the effort of the plaintiff was simply to prove it by the acknowledgment. We think the mere telling the truth upon the Sabbath day in relation to a matter like this, is not transacting secular business within the meaning of the statute.

The defendants further claim that the court erred in charging the jury, that if the defendant Beardsley obtained his certificate of discharge in bankruptcy by fraud, his discharge could have no effect in the case. The 29th section of the bankrupt act of the United States declares that no discharge shall be granted, or if granted shall be valid, if the bankrupt, among other things, has made any transfer of his property in contemplation of becoming a bankrupt, for the purpose of preventing the property from going into the hands of the assignee, or of being distributed under the act in satisfaction of his debts.

The question made in this part of the case Is, whether the plaintiff, in a case like this, can show that the defendant made a conveyance of his property which the bankrupt act denominates a fraud, in order to invalidate the discharge offered in evidence by the defendants. The claim on the part of the defendants is, that the discharge can be rendered invalid only by a direct proceeding brought for the purpose, and cannot bo attacked collaterally. But it should be remembered that the parties interested in the discharge ■were before the court, and the question was, not whether it was defective in some particular, but whether it was not wholly void, whether it ever had any validity whatever. The act declares such discharge void if the bankrupt had made a conveyance of his property with a view to bankruptcy. If he did, he never had a discharge in contemplation of the law.

Surely if a party attempts to interpose a void proceeding as a good and valid one, he must expect it to be called in question and the proceeding made to'appear in its true character. If this discharge was void the defendant knew it. Ho was guilty of a fraud on the United States court in obtaining it, and committed another on the court below in offering it in evidence.

It does not follow because the act provides a mode whereby the discharge may be set aside, that its invalidity eannot be shown in any other way. The mode prescribed annuls the discharge, so that it cannot be pleaded afterwards, and that perhaps is the only mode by which it can be dono ; but in the case at bar the discharge is not affected beyond the present suit.

A new trial is not advised.

In this opinion the other judges concurred.