18 Vt. 448 | Vt. | 1846
The opinion of the court was delivered by
This action is brought by the indorsee against the maker of a promissory note. The defendant pleads a certificate of discharge in bankruptcy. The plaintiff has replied a new promise to Wing, the payee, made after the decree in bankruptcy and before the note was indorsed to the plaintiff. To this replication there is a demurrer, and joinder in demurrer. The question is, whether this note is still to be considered as negotiable, and, as such, capable of being transferred to the plaintiff, together with the benefit of the promise made to Wing.
It seems to be settled by authorities, that, when a debt is discharged by a certificate of bankruptcy, if the debtor, on an adequate consideration, promise to pay the same, an action may be brought on the original contract, and the creditor may avail himself of such new promise in answer to a plea of bankruptcy. In this particular it is assimilated to a promise to pay a debt barred by the statute of limitations. The cases, however, are widely different. In bankruptcy a debt is discharged by the operation of the certificate. A recovery can only be had on the new promise, founded on sufficient consideration. A debt, on which the statute of limitations has run, is not discharged ; the remedy, only, is taken away, and the remedy may be restored by a promise, or acknowledgment, made without any consideration therefor. The debt and the remedy remain, in the latter case, as they were originally. In bankruptcy the debt is discharged, and the. new promise alone gives the action. This new promise does not revive the original negotiable character of the instrument; it is a promise to the party alone, to whom it is made, and is not negotiable, or assignable, so as to permit a recovery there
The cases of Baker v. Wheaton, 5 Mass. 509, Depuy v. Smart, 3 Wend. 135, and Moore v. Viele, 4 Wend. 420, are very clear on this point, — that a note, discharged by a certificate of discharge in bankruptcy, or insolvency, is functus officio, ceases to be negotiable, and that no action can be sustained thereon by any other person, than the one to whom the promise was made. The principle of those cases we recognize and are disposed to adopt, in as much as no case is produced, which recognizes a different principle.
The judgment of the county court is therefore affirmed.
