2 Cai. Cas. 25 | N.Y. Sup. Ct. | 1804
delivered the opinion of the court. The only ground on which a certificated bankrupt can expect to be exonerated from a demand of this kind, is the hardship of continuing liable after a surrender of all his estate, and among the rest, this very property, to assignees for the benefit of all lfis creditors ; but is this the fact ? It: does not appear by the case. We well know that a house of this kind, on so short a lease, is not worth more than the rent reserved, and (notwithstanding the generality of the assignment) is not taken possession of by the *assignees.
It may be subjoined that the debt being contingent, for n case of eviction nothing would have been due, proof of it would not have been admitted under the commission, and, therefore, unless there remain a liability in the defendant, the plaintiff will be without remedy. Culllen’s Bank. Law, 84—126, 3 D. & E. 544.
Postea to the plaintiff.
In which case they are not liable for the rent accruing subsequently to the bankruptcy. Bourdillon v. Dalton and others, 1 Esp. Rep. 233.
A discharge under the insolvent act is no bar to an action on an express covenant to pay rent, brought to recover rent accruing subsequent to the insolvent’s discharge. 9 J. R. 121. And, generally, if the creditor, at the time of the assignment by the insolvent debtor, has not a certain debt due or owing, (although it may not be then payable,) so as to entitle him to a dividend of the insolvent's effects, he will not be barred by the discharge. Mechanics' and Farmers' Bank v. Capron, 15 J. R. 461; Frost v. Carter, 1 Johns. Cas. 13; Buel v. Gordon, 6 J. R. 126; Andrews v. Waring, 20 id. 153. But now the discharge exonerates from liability- incurred by making or endorsing any promissory note or bill of exchange, or in consequence oi the payment, by any party thereto, of the money secured thereby. Seo 2 Rev. P«at. p. 22, § 31.