9 Wend. 312 | N.Y. Sup. Ct. | 1832
By the Court,
The only question is whether this plea is a bar to the plaintiff’s action against Ira Andrews ? This very question was decided in Frost v. Carter, 1 Johns. C. 73. 2 Caines’ Cas. in Er. 310, S. C. The plaintiff there had endorsed a note for the defendant: it was not paid, and the plaintiff was charged as endorser. The defendant was discharged under the insolvent act, and afterwards the plaintiff paid $3000, took up the note, and brought his suit to recover the money so paid. The insolvent act then in force. was the act of 21st March, 1788, by which the discharge operated upon all debts due at the time of the assignment of the insolvent’s estate, and such as were contracted before that time, though payable afterwards. It was held that until the endorser had paid the money and taken up the note, he could not be said to have a certain and ascertained debt due to him from the defendant; of course could not receive from the assignees any dividend of the insolvent’s estate; that the plaintiff’s debt accrued subsequently to the discharge, and in consequence of the payment of the money, and therefore the discharge was no bar to a recovery. The facts in this case are similar, and the insolvent act of 1813, which was in force when the note was executed, is similar in its provisions, so far as regards the operation of the discharge to the act of 1788. The same rule is therefore applicable.
The defendant’s counsel has been induced to present this question in consequence of the provisions on this subject in the revised statutes. The article concerning voluntary assignments, 2 R. S. 15, is declared to be a revisal and continuation of the act of 1813, and the 30th paragraph, 2 R. S. 22, § 30, declares that a discharge obtained according to the provisions thereof shall discharge the insolvent from all debts due at the time of the assignment, or contracted for before that time,
The principal object of the 32d section seems to be to declare how a discharge may be made evidence ; and if in again declaring the effect of the discharge there is an apparent discrepancy between this section and the preceding section, it is the duty of the court so to construe the different sections as to give effect to them all, if that be possible. There is no difficulty in this case. If the legislature had intended that a discharge under this article should discharge the maker of a note executed since the 12th April, 1813, and before this article took effect, then the 31st section was entirely useless ; but by
Judgment for plaintiff on the demurrer.