Bryar v. Willcocks

3 Cow. 159 | N.Y. Sup. Ct. | 1824

Curia,

per Savage, Ch. J.

(after stating the case.) The first question is, whether the inventory and affidavit of the defendant is a sufficient acknowledgment to take the debt out of the statute of limitations. It is certainly an admission that the note was due and unpaid, and that will authorize us to presume á promise, unless the acknowledgment is accompanied with expressions which negative that idea. (Sands v. Gelston, 15 John. 511.)

2. Was the defendant’s discharge a bar ? The note was given before the repeal of the act of 1811.; and,.according to the decision of this Court, in Mather v. Bush, (16 John. 246, 251,) the contract between the parties was, that the nóte should be paid, unless the defendant became án insolvent debtor within the meaning of the act of 1811, and was duly discharged from his debts according to its provisions. By that act, he was entitled to his discharge on his own petition, and on surrendering his property for the benefit of his creditors. By the repeal of the law of 1811, which' took place a few days after the date of the note, the law of 1801 was revived, w'hich requires the assent of § of the creditors of the insolvent, before he can be discharged. The repeal of the law, therefore, was favourable to the plaintiff. The act of 1813, materially varied the principle of the law of 1801, in as much as it rerhoved some of the difficulties in the way of obtaining a discharge by substituting the assent of § instead of l of the creditors.

It cannot be denied, that according to the decisions of this Court, a discharge under the act of 1811, which did not require the assent of any one creditor of the defendant, would, had that act continued in force, have discharged the defendant from the payment of the note in question. Had the law of 1811 been immediately followed by that of 1813-, the provisions of which are so much more unfavourable for the defendant, the validity of the discharge would not be disputed; for it is distinctly admitted by the reasoning of the Court, in the matter of Wendell, (19 John. 153,) that had theprovisions of 1801 been continued in force, the law of 1813 would have been valid as to contracts entered into under the law of 1801, notwithstanding any revision or re-enactment of those provisions. Does, then, the fact that the law of 1801 was in force for about one year after the date of the note, alter the rights of the parties ? The act of 1801 was not in the contemplation of the parties when they entered into this contract. It is true, that while that act was in force, the defendant could not have obtained his discharge without the assent of f of his creditor®. But had the legislature, on the 12th April, 1813, re-enacted the act of 1811, instead of the §■ act, would not a discharge under the former be valid, as being the precise terms on which it was originally agreed, that the defendant should be absolved from his contract ? Most certainly. If, then, the defendant has done all which his contract required, to absolve him from it, and something more, shall the additional difficulties, the assent of | of his crediors, imposed on him by the act of 1813, operate to his prejudice, and invalidate a discharge which, without such assent, would have been valid between these parties ? I think not; and am, accordingly, of opinion, that the defendant is entitled to judgment.

Judgment for the defendant.