3 Barb. 429 | N.Y. Sup. Ct. | 1848
The first objection taken by the plaintiff to the admission in evidence of the certificate of the discharge of the defendant under the bankrupt act was merely to its form and manner of authentication, and was two-fold. (1.) That the clerk of the court had not certified that he had compared the copy discharge with the original, and that it was a correct transcript therefrom and of the whole of said original; and (2.) That the seal was not impressed upon wax, wafer, or other substance. Upon the argument at bar, the.defendant’s counsel produced to the court a discharge in all respects in hcec verba with the copy produced on the trial, and duly exemplified and authenticated in the precise form required by the plaintiff’s counsel by his objection taken upon the trial. So that the objection, if well taken, was within established principles, obviated. (Williams v. Wood, 14 Wend. 126; Ritchie v. Putnam, 13 Id. 524; Armstrong v. Percy, 5 Id. 535.)
The next objection taken to the discharge and certificate, as evidence, was that the act of congress under which it was granted was unconstitutional, and the discharge therefore void. This objection was not urged upon the argument, and if it had been, this court would have been bound by the decision in Kunzler v. Kohaus, (5 Hill, 317,) to hold it not well taken. ((She also Morse v. Hovey, 1 1 Sandf. Ch. Rep. 187, S. C. 1 Barb. Ch. Rep. 404; Sackett v. Andross, 5 Hill, 327.)
The next objection taken by the plaintiff upon the trial was, that the judgment upon which the action was brought was recovered intermediate the time of presenting the petition of the
In the view I take of the issue in the cause, Icio, not deem it necessary to pass upon this question.. I am. not prepared to decide that the position of the plaintiff is not well taken and may not be sustained when the question shall be properly presented for adjudication.
The discharge operates upon, and bars the. recovery and collection of, all debts owing by the bankrupt at the time of presenting his petition to be declared a bankrupt, and winch are provable under the act, and does not affect any other debts or engagements. (Bankrupt Act, § 4. Crouch v. Gridley, 6 Hill, 250. Thompson v. Hewitt, Id. 254.) The discharge and certificate, when granted, relate to the time of the presentation of the petition, and there, is. no doubt that the original debt for which the judgment upon which this action was recovered was provable under 'the act, but I think it equally clear that the judgment recovered after the presentation of the petition was not provable, and as the debts which were provable are alone discharged, it follows that the judgment as such is not discharged or in any way affected by the certificate. It is true that the original debt being discharged, the costs of the proceedings in an action to recover- the. debt, as an incident of the debt, are discharged ; but the costs are not provable under the act; and the discharge does not operate upon them directly. (Eden’s Bank. Law, 413.) And as the judgment is composed of the original debt and the damages and costs recovered in that action, one part cannot be separated from th.e other and proved as a debt, but the entire judgment must be considered as a debt not provable under the act, nor discharged by the
We are referred to a long list of cases in the English courts, in which the defendant has been relieved in cases like the present. But I find none in which the defendant has availed himself, or sought to avail himself, of the benefit of his certificate by plea to an action upon a judgment. The relief has been granted upon motion, under a provision contained in the English bankrupt act, and which is not incorporated into that of the
These are some of the reasons, briefly stated, which have induced me to believe that the question is not entirely free from doubt in favor of the defendant, and which, as the question, in my view, does not properly arise in the case, have induced me, without dissenting, to withhold my assent to the conclusion to which my brethren have arrived.
A question in advance of this is, whether the question now made properly arises upon the pleadings, under the issues which the parties have joined. If there is an immaterial issue, upon which the defendant is entitled to a verdict, but which nevertheless does not entitle him, by the law of the land, to a judgment, the remedy of the plaintiff is not_ by a motion for a new trial. The plaintiff might have brought the question now made by him before the court very properly by a demurrer. The record shows every fact necessary to present the point fully and fairly. It shows the judgment upon which the action is brought to have been recovered in the term of October, 1842, and that the presentation of the petition of the defendant to be declared a bankrupt, was on the 27th of September of the same year, and before the recovery of the judgment. Perhaps the plaintiff might also have properly replied that the debt sought to be recovered by him was not provable under the act, and thus have presented a mixed question of law and fact for trial by jury. If, however, the plaintiff, by his replication, has admitted the facts stated in the plea of the defendant, necessary to give the district court of the United States jurisdiction in the proceedings in bankruptcy, and the facts alleged in the plea, that the debt sought to be recovered was provable under the act, and that it was not of that class of fiduciary obligations upon which the discharge did not operate, and has simply taken issue upon the granting of the discharge, then the defendant, upon production of his discharge and certificate properly authenticated, was entitled to a verdict, and the plaintiff was not in a situation to ask for the application of the principle
The material facts presented by the plea, which were tra-versable, and upon which issues were tendered, were 1st. The facts giving the district court jurisdiction, including the presentation of the petition. 2d. The granting the discharge and certificate by the court. 3d. That the debt which the plaintiff claimed to recover was provable under the act.; and 4lh. That it was not created while the defendant was acting in a fiduciary character. (Sachett v. Andross, 5 Hill, 330. Maple v. Burnside, 1 Denio, 332.) Upon all or either of these facts the plaintiff was at liberty to take issue. And those facts directly averred in the plea and not denied by the replication, are admitted upon the record. (Raymond v. Wheeler, 9 Cowen, 295.) The plaintiff then has admitted, upon the record, all the juris
The evidence offered by the plaintiff to show the discharge fraudulent and void, was properly .rejected. (1.) For the reason that the replication averring the fraud was entirely too general, as it did not state or specify the particular acts which the plaintiff would give in evidence and claim to be fraudulent, and at the time of the trial no law had been enacted in this state modifying the common law rule of pleading in such cases. (Brereton v. Hill, 1 Denio, 75. Maples v. Burnside, Id. 332. Laws of 1846, p. 305.) (2.) The evidence offered, if given, would have shown no fraud which would have vitiated the discharge. The offered evidence did not go far enough. It was merely that “ he concealed his relation as copartner with one Yan Yoorhis, and did not inventory, nor give up to his creditors whatsoever of interest, balance due, or assets belonging to him or his creditors, on a settlement with said Yan Yoorhis at the time of the decree of bankruptcy.” There was no offer to show that the bankrupt had any interest whatever in any partnership assets, or that there was any thing due him, or that the con
The most important question presented for our consideration in this cause, is, whether the defendant’s discharge under the bankrupt act of 1841, constitutes a good plea in bar to an action upon a judgment founded on a debt existing when the bankrupt filed his petition, but recovered before the discharge was granted ; so as to preclude all opportunity of pleading it in the suit.
The fourth section of the bankrupt act provides that the “ 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 and may be pleaded as a full and complete bar to all suits brought in any court of judicature whatever.” It is not denied that the debt on which the judgment was founded, was of such a character as to be provable under the act; but it is contended that the judgment is not. And the ground on which this proposition is attempted to be maintained is, that the original debt no longer exists, having been merged in, and extinguished by the judgment, which has become a new debt, not existing when the petition was filed, and that it therefore is not discharged. This principle is supposed by the counsel to have been established in several cases that have been decided in our own courts. It cannot be denied that language favoring such a doctrine has been held by Justice Bronson, on several occasions. But it is believed that this question was not necessarily involved in any of the cases referred to, and that the remarks of the judge were merely the expression of his individual opinion, entitled to respect, indeed, but creating no binding authority upon us.
The first case to which we are referred is that of Crouch v. Gridley, (6 Hill, 250.) This was a motion for a perpetual stay of proceedings upon a report of referees, in an action of
I have said that these strongly expressed opinions, being obiter dicta merely, are not to be regarded as authority upon the point in question; but as the opinions of a very learned judge, they are entitled to great respect, and should not be disregarded but for reasons of great weight. We have, therefore, felt ourselves bound to give to this question all the examination which the other demands upon our time would permit. But after the most attentive consideration of the subject, we have been compelled to come to a different conclusion from that expressed in the opinions we have cited.
I. In the first place we do not think that where the judgment
(1.) The only cases cited in support of this principle of merger and extinguishment, are that of Buss v. Gilbert, (2 Maule & Selw. 70,) and that of John Charles, which arose in equity before the lord chancellor, in 16 Ves. 256, and was referred by him to the common law judges for their opinion, which is found in 4 East, 197. In England, such debts only are discharged as were due and owing when the debtor became bankrupt. And in the case in question, the precise point presented for decision was, whether a verdict in an action for the breach of a promise of marriage, rendered before the act of bankruptcy, upon which judgment was perfected afterwards, constituted a debt at the time of the bankruptcy, so that the plaintiff could become a petitioning creditor; and it was held that it did not, not because it had been merged in and extinguished by the subsequent judgment, but because it never was a debt at all until the judgment. The judges gave a certificate without assigning any reasons for their opinion; but the argument of Mr. Abbott, on behalf of the plaintiff, which was adopted by the court, was as follows: “ There must have been a sufficient legal debt due from the bankrupt, at the time of the act of bankruptcy, although it may have been afterwards, (as in the case of bills of exchange and promissory notes,) assigned to the petitioning creditor. Here it cannot be said that there was any debt due from the bankrupt to any person, at the time of the act of bankruptcy; for nothing was due on the verdict before judgment, but it is the judgment alone which creates the debt; no action could be maintained upon the mere verdict.” The counsel afterwards takes a distinction, which shows that, in his opinion, the petitioning creditor should have prevailed, if the judgment had been founded on a note or bill showing a debt
(2.) But we are not left to mere negative authority upon this point. There is a large class of cases, which have arisen upon motions to discharge, or to stay executions, upon judgments recovered too early to admit of the discharge being pleaded in the suits in which the judgments were obtained. And in every such case, when it appeared that the judgment was founded on a debt, provable and dischargeable under the act, and there had been no opportunity to plead the discharge, relief has been granted by discharging the execution, or directing it to be perpetually stayed. I will cite but a few of this long list of authorities. In Bouteflour v. Coats, (Cowp. 25,) a bail bond had been forfeited before the commission; then followed a judgment
In Scott v. Ambrose, (3 Maule & Selw. 326,) it was held not only that a judgment for costs, as well as the debt on which the judgment was founded, was discharged by a certificate obtained before the judgment, but the costs of a writ of error on such judgment, also bore relation to the original debt, and were discharged with it. So, too, in Willett v. Pringle, (5 Bos. & Pul. 193,) it was held that the costs followed the debt, which was discharged, if it existed at the time when the act of bankruptcy was committed. (See also, to the same effect, 1 H. Bl. 29; 2 Strange, 949; 2 Bos. & Pul. 7; 5 Id. 190; 5 T. R. 365; 6 Id. 282.) And to show that our own courts have followed the same course of reasoning, and adopted the same principle as to granting relief, in cases arising under our insolvent acts, as prevails in England, see 2 John. Rep. 294; 18 Id. 54; 15 Id. 152; 1 John. Cas. 133; 2 Caines, 102, 380; 4 John. Rep. 191; 9 Id. 259; 1 Cowen, 42. See also 6 Hill, 246, 247.
Now we are unable to perceive why the cases which we have cited are not entirely conclusive of two propositions: 1. That there is no merger and extinguishment of the original
But I repeat, that if the doctrine which we are opposing be sound, then no relief should be granted, either on motion or plea. For by that doctrine the original debt is extinguished, and is to be regarded as though it never had existed ; while the judgment is a debt newly created, and is therefore no more affected by the discharge I han if it were itself an original debt, contracted and created at the time when it was recovered. True, we are not aware of any reported case, in which this principle has been tested by a plea of the certificate to an action on the judgment. For no one has a motive to bring an action upon a judgment, which, if valid, may be enforced by execu
(3.) Notwithstanding no case has been found in the English reports, where this precise question has been presented by a plea to the judgment, we are not without authority in the courts of this state, and Massachusetts, in cases arising on the pleadings, where this doctrine of merger and extinguishment of the old debt, in the judgment, has been repudiated. ■ These cases have arisen under our insolvent laws, and the courts have uniformly held that in an action upon a judgment to which a discharge under the insolvent law was pleaded, they would look behind the judgment to the debt on which it was founded, in order to determine whether that was of such a character, had its origin at such a time, and place, and between such parties, as to be within the provisions of the act, and therefore liable to be discharged by it.
In Wyman v. Mitchell, (1 Cowen, 316,) the plaintiff declared on a judgment recovered upon promises, in August term, 1816; plea of a discharge granted in December, 1817, under the act of April 12th, 1813; replication, that the judgment declared on was rendered on a judgment obtained in a court of common pleas, in Maine, in the year 1814; which last judgment was founded on two notes, executed and payable in Maine, both dated prior to the 12th of April, 1813. To this replication the defendant demurred generally, and the court rendered judgment for the plaintiff, upon the ground that the original debt on which the judgment was founded, arose before tbe passage of the insolvent act, which was void as to all such debts, for the reason that it impaired the obligation of contracts, upon the
In Raymond v. Merchant, (3 Cowen, 147,) the declaration was on a note, dated November 3,1844, The defendant pleaded a discharge granted February 28, 1817, under the act of 1813. The plaintiff replied that the note was made in Yer-mont, and that the plaintiff was then, and still was, a resident of that state. The defendant rejoined that the debt to secure which the note was given, arose in New-York, to which there was a general demurrer; and the court held that the note was not an absolute extinguishment of the original debt, and that, therefore, (the original debt arising in this state,) the discharge was a bar to the suit.
In the case of Betts v. Bagly, (12 Pick. 572,) this question came under the consideration of the supreme judicial court of Massachusetts, upon a case subject to the opinion of the court. The action was on a judgment rendered in the Berkshire court of common pleas, in 1823. The defendant pleaded his discharge granted in New-York, in 1828, and that the original cause of action on which the judgment was founded, arose in New-York, and that both parties were citizens of that state. In this cause the discharge was held by the court to bar the action, and Chief Justice Shaw, at page 580, expressly declares
II. In the second place, we are of the opinion, independently of the authorities to which we have adverted, that a sound construction of the provision in the bankrupt act declaring the effect of a discharge when duly granted, requires us to hold the certificate to be a bar to a debt existing when the petition was filed, notwithstanding such debt has passed into a judgment. It was provable under the act, and the plaintiff was entitled to receive upon it his dividend of the bankrupt’s estate. It was, therefore, precisely such a debt as the policy and spirit of the act intended should be discharged, The act was remedial, and should receive a liberal interpretation — one that will advance and carry out, instead of defeating, the object of its framers. That object was two-fold ; first, to devote the whole estate of the bankrupt to the payment of his debts upon the equitable principle of a pro rata distribution; and, secondly, to discharge the bankrupt from all such debts as were provable under the act,» and entitled the holders to a dividend of his effects. The consequence of adopting the strict and narrow construction of holding a judgment exempt from the operation of a discharge, because the debt exists in judgment, in a different form, and under a different name, would, in the case of a bankrupt whose debts were numerous, utterly defeat the benign object of the
We are, therefore, of the opinion, both upon the true construction of the act, as well as upon authority, that the judgment in this cause is barred by the discharge.
New trial denied.