Holbrook v. Foss

27 Me. 441 | Me. | 1847

The opinion of the Court was delivered on a subsequent •day in the same Term by

Shepley J.

This is an action of debt upon a judgment, recovered by the plaintiff against the defendant in the district •court holden in this county in the month of May, 1843. The •suit, in which that judgment was recovered, was commenced upon a promissory note made by the defendant on November ■30, 1841, and payable to the plaintiff or order in six months.

The defendant presented his petition to be declared a bankrupt to the District Court of the United States on Dec. 9, 1842. On Feb. 21, 1843, he was declared to be a bankrupt; •and he obtained his certificate of discharge from that Court on Dec. 1, 1846.

By the fourth section of the act of Congress to establish an •uniform system of bankruptcy, the certificate is made to operate as a full and complete discharge of all debts, contracts ;and other engagements of such bankrupt, which were provea-ble against him.

The question presented for decision is, whether the judgment, thus recovered in May, 1843, can be considered to be a debt, contract, or other engagement of the defendant existing on Dec. 9, 1842, and proveable against him in bankruptcy.

The rule of law is, that the contract, upon which a judgment at law has been recovered, is merged in and extinguished • by the judgment, which constitutes a new debt, having its first ‘existence at the time of its recovery. The promissory note, by virtue of which it had been recovered, no longer continued to be a debt due from the defendant to the plaintiff. The judgment not being a debt due from the defendant at the time, when his petition was filed, could not have been proved in bankruptcy against him. It was not therefore discharged by the certificate, which he obtained in the year 1846. Todd v. Maxfield, 6 B. & C. 105; Thompson v. Hewett, 6 Hill, 250. The act of Congress does not appear to have made any provision for the relief of the defendant under such circumstances, and he can only be discharged from the payment of his debt by bringing himself within its provisions. The attachment made upon the estate of the defendant on the writ upon the note cannot vary the result. If the plaintiff might have obtained payment from that property, he was under no legal obligation to do so. Defendant defaulted.