15 Ala. 549 | Ala. | 1849
Lead Opinion
When this cause was first submitted to the court, I was of opinion that the action could be maintained on the evidence contained in the record. Subsequent reflection however, aided by the argument of counsel, has satisfied me that the law is otherwise.
The language of the act, tobe found in the fourth section, is, “ And such discharge, and certificate, when duly granted, shall in all courts of justice, be deemed a full, and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are provable under this act, and shall be, and may be pleaded, as acomplete bar to all suits brought in any court of judicature whatever; and shall be conclusive evidence of itself, in favor of such bankrupt, unless impeached for fraud, &c.”
That the whole scope of the act, was to furnish the bankrupt with a complete defence to suits brought against him, is still more apparent, from the fact, that the certificate is not a bar, if the debt is of .a fiduciary character, or if the discharge be obtained by fraud.
The act therefore, only intends to arm the bankrupt with
The creditor may however, sue on his demand, otherwise he could not dispute the bona fides óf the certificate, arid the bankrupt must rely on his certificate in bar of the suit.
.This seems to be the natural construction of the act, and accords with decisions made upon this subject.
In the case of Mabry, et al. v. Herndon, 8 Ala. Rep. 848; an execution issued against a bankrupt, who had obtained his certificate; he filed his petition for a supersedeas, and set up his certificate in bar of the execution, and prayed to have it quashed, and the levy made by virtue of the suit, set aside.
The plaintiff impeached the certificate for fraud, and filed specific allegations, of what the fraud consisted. This court held, that the plaintiffs might make up the proper issues, in bar of the motion to quash the writ, and thus try the validity of the certificate; indeed, all the decisions, both English and American, hold that the creditor, who has obtained a judgment before the certificate of discharge is obtained, may sue out execution afterwards, and the remedy the bankrupt has, is to move the court to set it aside.
Whether a purchaser, would obtain, however, a title to property sold under process that is voidable,' after it has been set aside, or under what circumstances, if any, his title would be held defective, it is unnecessary to enquire.
The ruling of the circuit court was in conformity to the view here taken, and the judgment must be affirmed.
Concurrence Opinion
I concur with my brother Dargan, that an action cannot be maintained against a plaintiff in execu