M'Neilly v. Richardson

4 Cow. 607 | N.Y. Sup. Ct. | 1825

Curia, per

Woodworth, J.

The money was advanced by the plaintiff to be applied in a particular adventure. He never consented to a different appropriation. The defendant has, on his own risk, and on his own responsibility, undertaken a different voyage, and chosen a different cargo. With the profit or loss in this concern, the plaintiff had no connection. This is a sufficient reason for excluding evidence to prove the defendant’s loss. The money not being applied according to the contract, the plaintiff was entitled to a return of it, as money had and received to his use. The defendant must be considered as holding the bill in trust for the plaintiff, to the day of payment, ' Until that time, he was not the plaintiff’s debtor in any amount. A bill was resorted to by the plaintiff as the medium by which to make the remittance. The defendant, it seems, was to receive the money for a particular object, and would not be chargeable till. the day of payment, unless he had made himself liable on the ground of negligence.

The question, then, is, whether the discharge was a bar. The petition was presented on the 22d of June, 1818. The plaintiff was not named as a creditor, nor the bill of exchange inserted in the inventory.

I think it very clear that the discharge is no bar to the plaintiff’s action. The whole scope of the act,.(1 R. L, 460,) has reference to creditors and debts due, or to become due, when the petition is presented. The first section of the act gives the right of petitioning for a discharge, to the insolvent and his creditors who shall have debts owing to them. All subsequent proceedings are predicated on this fact. The existing state of things at the time of presenting the petition is the criterion. Persons who subsequently become creditors, are necessarily excluded from a participation of the insolvent’s property, and are not affected by the discharge. It' seems to me that a different construction would defeat the plain intent of the act. Suppose an insolvent, at the time of presenting his petition, was indebted 1000 dollars, for two-thirds of which sum the creditors become petitioners : subsequently to this, and before the assignment, the insolvent contracts debts to the amount of 1000 dollars more ; the doctrine contended for would, in that case, discharge the insolvent,.when, in fact, less than one-third of the creditors, in amount, petitioned for the discharge. The intention of the act is to exonerate the debtor from debts then due; and, consequently, subsequent creditors are not affected. Again : me insolvent is required to deliver an account of his creditors, and the moneys owing to them. This necessarily excludes subsequent creditors.

The 6th section declares that upon producing a certificate from the assignees, the officer shall discharge the insolvent from all such debts due at the time of the assign-merit, or contracted for before that time, though payable afterwards. The words “ such debts,” refer to those upon which the proceedings under the act are had. They alone are discharged. ’

The 19th section provides for a distribution of the insolvent’s estate; and directs that a just and equal distribution be made to creditors, whose debts are discharged by the act; which seems to imply that there may be others who cannot participate in the distribution.

■ In the present case, the plaintiff did not reside in the United States. By the 8th section, it is expressly enacted, that debts due to creditors residing without the United States are not to be discharged, unless the foreign creditor petition, or receive a dividend, or two-thirds of all :he insolvent’s debts, including foreign debts, shall have been signed off, There has not been a compliance with these requisitions I am of opinion that the plaintiff is entitled to judgment.

Judgment for the plaintiff.