1 Johns. Cas. 73 | N.Y. Sup. Ct. | 1799
delivered the opinion of the court. The . insolvent act of the 21st of March, 1788, in pursuance of which the defendant obtained the discharge which he now sets up imbar of the plaintiff’s right of action, extends the dischargejp such debts,,and' to such debts only; as are due at the time of the assignment of the insolvent’s estate, and to.debts contracted before that time, though payable afterwards. Such debts must be specific and certain sums of money, to which the creditor can make oath as being justly due, or to become due at some specified time; and unless the creditor at the time of the assignment, be able to produce and verify such a
* This construction of the operation of our insolvent [*75] act, is the same with that of the English bankrupt laws, in like cases. The statute of 4 and 5 Anne, c. 17, which was continued by the statute 5 Geo. II. c. 30, s. 7, ex
It has been objected, .and with some plausibility, to this doctrine,-that if a debt be due at the time of the assignment to any one who might have proved it, it must be done away by the discharge, for .that the insolvent is discharged from ' all his then debts to whomsoever they may belong, and that if when discharged from the action of one creditor, .he were to remain liable at the suit of another for the same debt, 'it would be no discharge at all. These objections were raised. -and overruled in the cases of Taylor v. Mills & Magnell, (Cowp. 525,) and of Brooks v. Rogers; (1. H. Black. 640; see also 1 Saund. 241, note 5;) and this answer appears to me to be plain and sufficient, that where a plaintiff, cannot ■ prove a debt until he has actually paid the monéy, "and the - payment he of the proper debt of the insolvent, and" .after the assignment of his estate, the cause of action in such case . . arises after the insolvency, although' upon a prg-ex[76*].. istent. ground;' *and as he cannot' exhibit his -debt to the assignees, because "there was lio sum due, and •to which he could attest when the assignment was made, it
The court are, therefore of opinion, that judgment must be rendered for the plaintiff.
Judgment for the plaintiff.
The same question was raised and decided upon the authority of the principal case in Ford v. Andrews, 9 Wend. 312. By the Revised Statutes of New York, vol. 2, p. 22, § 31, the discharge is to exonerate the insolvent from all liabilities incurred by drawing or endorsing a promissory note or bill of exchange, or in consequence of the payment of the money by any party to such instrument, whether the payment be prior or subsequent to the assignment of the insolvent’s estate-. But this section of the statute applies only to contracts, made subsequently to its going into operation. Ford v. Andrews, ut supra. The act of 1819, (p. 118, § 11,) however had gone so far in changing the law as pronounced according to the construction of the previous statutes as to exonerate by the discharge the endorser of a promissory note, though the note had not become due at the time of the discharge, and permitted the holder to come in for a dividend in the same manner as if the bill was due.
See 4 Term, 714. Howis v. Wiggins. Cullen’s B. L. 93, note (36) Co. B. L. 164. Ex. parte Brymer. Cowley v. Dunlap, 7 Term, 865, and the opinion of Lord Kenyon in that case.