1 Johns. 37 | N.Y. Sup. Ct. | 1806
now delivered the opinion of the court. On-the trial óf this cause, I thought the demand barred by the proceedings under the bankrupt act. This opinion was expressed at the time, but the parties chose, without toy intó make a case which presents' for decision, a question of some importance, but 'of no great difficulty. Whether ¿person,who has received money prior to his bankruptcy, under a promise to put it out, on bond and mortgage, and which he failed to do’, be liable, notwithstanding" his certificate, in a special action on the case for such neglect. This is stating the question in' its most favourable aspect for the plaintiff, for ítmáy be doubted, whether being early apprised of her monies not being placed in this way, she did not approve and ratify her agent’s conduct. But "I am willing to meet the question as here put, being satisfied, after considerable reflection, that the‘ defendant is protected from any suit, that can be brought against him, on account of his dealings with the plaintiff.
A bankrupt being compelled to surrender all his property for the benefit of creditors, and having'done so fairly, is entitled, and such is one object of the law, to be protected against the claims of all, who were creditors before i^e act of bankruptcy. He is, in the terms of the act, “ dis- ' “ charged from all debts due by him at the time he became- “ bankrupt, and irom all which were or might have been proved under the commission.” Now, if this demand could have been proved, what right have we to repeal the statute, and hold the party liable ? It was admitted, at least it was not denied, that an fiction for money had and' received^ might have been brought, and that then the” certificate would have been a bar. This involves in it another admission, which is, that the sum in controversy might have been proved under the commission, and thus brings the defendant’s case within the letter of the act. But plain and imperative as its tone is, because the plaintiff has had ingenuity enough to resort to a special action, it is expected that we are to pronounce the discharge a nullity, and to render the bankrupt liable for an old debt. In this
1 Doug. 167, in note.
Doug. 584.
. U. S. vol. 5, p. 69.
6 D. & E. 695.