17 Vt. 503 | Vt. | 1845
The opinion of the court was delivered by
The plaintiff, as surety, on the 14th of August, 1840, signed a note with the defendant for $157.48, payable to Hutchins & Buchanan in one year, with interest. The defendant obtained his discharge and certificate in bankruptcy on the 22d day of March, 1843; and this note was paid by the plaintiff on the 6th day of March, 1844. The question is, whether the defendant is liable to the plaintiff for the money thus paid out after the discharge in bankruptcy.
The general rule and principle of law, in relation to this matter, is, that all debts, proveable under the commission, are barred by the discharge. The words of the statute are, that “ Such discharge and certificate, when duly granted, shall, in all courts of justice, be deemed a full and complete discharge of all debts, contracts, and other engagements, of such bankrupt, which are proveable under this Act.” The plaintiff in this suit had no right of action, and nothing proveable under that provision of the statute. The plaintiff was but a surety for the defendant; at the time of obtaining the cer-
But the fifth section of the Act is relied upon by the defendant. This section provides for the proving of several classes of contingent claims and annuities, and among the rest is that of surety, — which is this case. The expression is, that such claimants “ shall be permitted to come in and prove such debts, or claims, under this Act.” This section of the statute, as distinguished from the rest, has been subjected to some severity of remark, — but I think undeservedly. By examining this section in all its parts and provisions, I think it is obvious that the 'intention was to enlarge the remedy of a surety, or bail, and not to restrain it. It provides, that the bail, or surety, shall be permitted to prove his claim, — not that he shall be compelled to do it; leaving it optional with him to .prove his claim and take his share of the bankrupt’s effects with the other creditors, or to postpone his claim, until it becomes absolute by his being compelled to pay, and then taking his chance of collecting it of the bankrupt, after he has parted with all his property.
And this view is the more obvious, from the farther provision of that section, — which is this ; “And no creditor, or other, person, coming in and proving his debt, or other claim, shall be allowed to maintain any suit at law, or in equity, therefor, but shall be deemed thereby to have waived all right of action and sdit against such bankrupt.” The correlative of this would be, that, if he did not come in and prove his claim, he would be entitled to his suit against the bankrupt, when his cause of action has become mature. The expression is, that “ he shall be deemed to have waived all right of action.” If no right of action remained to him, he had none to waive. Therefore, as the plaintiff did not prove his contingent claim under the provisions of that section, he has not waived his right of action, and, having paid the note, he may now have his action against the bankrupt, for the money thus paid for him.
The moral obligation to pay the debt still rests upon the bankrupt, and he is under an honorary as well as moral obligation to save his bail; and this we think sufficient to meet the objection, that there is no request to pay proved. The plaintiff is legally bound to pay that which the defendant is morally bound to pay; and we think under this state of the case the law will imply the request. The judgment against the principal debtor is affirmed.
The judgment is affirmed.