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was regularly discharged under the bankrupt act. Since his £, difcharge a fi, fa, had ifued, and Blackford's goods takenonit. *::/ Per curiam. A motion is now made on the part of the * defendant to set afide this execution, and to stay all further Murray proceedings against him. He contends that his act of bank- "... ruptcy was not complete till the expiration of fixty days af- ''', ter his confinement, or until the first of September 1801; £d and, that imafmuch as he was fixed as Murray's bail on the #: #d 31st of July 1801, this debt could have been proved under £ll be

- - exonerated the commisfion, and that, therefore, the present proceedings from his recog------ nizance, and an are irregular. execution tak- - - en out upon it This naturally produces an inquiry, be fet affide. In

- - - > - fuch a cafe the First, As to the time of Blackford's becoming a bank- plaintiff may

rupt, and prove his debt Secondly, Whether this demand could have been proved #: connunder the commiilion against him; for if fo, it is not denied that he is entitled to relief. By the first fection of the act of congress “establishing “an uniform system of bankruptcy,” the remaining in prison two months or more on being arrested for debt, is made an act of bankruptcy. Blackford went to jail on the first of July 1801, and continued there above fixty days; the plaintiff infifts that by relation he became bankrupt on the day he went into confinement, and that not being then fixed for Murray's debt, the present demand was not proveable under the commifion. The commifioners, it is true, have undertaken to fix that, as the day on which he became a bankrupt; but in this, if they have not exceeded their powers, they have at least done a nugatory act which is binding on no one. They are to declare the party a bankrupt, but no authority is given to ascertain the day of his becoming fo. Nor would it have been discreet to have vested fuch power in them, for their proceedings being fomewhat ex parte, and very fummary, fo important a fact in which many, who had no opportunity of being heard might be interested, (hould not, unless absolutely neceffary, have been left to be settled by them. Thus in England, the commisfioners being fatisfied of the debt, the trading, and act of bankruptcy, declare and adjudge, that the party became bankrupt ge

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ALBANY, nerally before the date of the commisfion without a more
Feb. 1804
Le precise specification of time. Fixing the time even thus far,

e is merely discretionary and, for caution, the Englith statutes Murray. having no where directed them to do it, nor is their decla

ration, as to the period, ultimately binding on any one.
Cull. Bank. laws, 77. Without any doubt, therefore, it is
competent to the defendant to controvert this act of the com-
missioners so far as it respects the fixing on the day of his
becoming a bankrupt, and to say that it was not till long
after he became so. It becomes neceffary then to determine
whether the act of bankruptcy shall relate back to the time
of the party's going to jail, or whether it be only inchoate on
the arrest, and not complete till the fixty days expire. Eng.
lish decisions on this point will afford us but little aid, be-
cause it is provided by their law, that if a man « lie in prison
“ two months he shall be accounted a bankrupt from the time
~ of his first arrest,21 Jac. 1 ch. 19. S. 1. This is thought
to be reasonable from a presumption that no man will lie 10
long in prison without paying his debts or procuring bail,
unless he be insolvent at the time of the arresi, 2. Burr. 819.
However strong this presumption, as the legislature of the
United Stats have thought proper not to adopt this provi-
fion of the British statutes, we are at liberty to apply a con-
struction of our own. This relation to the moment of com-
mitting an act of bankruptcy is considered as one of the hard-
est cafes of which the English law admits, but was thought
necessary to secure creditors against fraudulent dispositions
of their property by bankrupts, whether by their own acts
or under colour of legal process 1 Vez. 928. It is certain
that men in tottering circumstances have too much tempta.
tion, as well as opportunity of defeating their creditors of
an equal distribution of their effects. But while interpol-
ing checks against practices of this kind, we should be
careful not unnecessarily to adopt fictions which may ope-
rate with severity on other persons as well as the bankrupt;
and therefore, where it is impossible any fraud can be prac
tised in creating a debt to injure other creditors, and whe
the evidence of it is matter of record, and the transactions
evidently bona fide; I would not exclude it from proof under

a commifion by fictitious relations, provided it fell due, or A: - - - eb. 1804. the contingency on which it was payable happened at any time previous to the expiration of the fixty days. It is hard that the future industry of a bankrupt, after a fair furrender . Murray. of his property, should be taxed or burthened with claims - which were in a state of maturity at the time of if uing the commisfion; and it is equally fo on a creditor of this defeription to be denied any part of his estate, and to be com- pelled to trust for payment to the precarious profits of his # subsequent exertions. Without, therefore, prescribing a ge|2: neral rule, which is not neceffary, I shall only say that in , this case, the act of bankruptcy should not be regarded as consummated until the lapse of fixty days. We are now to fee, Whether the plaintiff's demand, on this principle, could have been proved against the estate of Blackford. The 34th fečtion of the bankrupt law provides, “that “the bankrupt shall be discharged from all debts by him “ due or owing at the time he became bankrupt, and all “which were or might have been proved under the com“misfion.” But for this provision, the certificate would operate unequally, for if creditiors whose debts arose fubsequent to the bankruptcy, were permitted to share with thofe whose demands accrued before, the latter would be exposed to the hardship of having only a dividend under the commifion, while the former, befide an equal dividend, would retain a * remedy for the refidue against the brankrupt himself and % his future property. The privilege, therefore, of creditors to prove, and of the bankrupts to be discharged from debts, is wifely made co-extenfive and commenfurate, 1. Atk. 119. Still difficulties must occur in the application of this rule as to the time when a debt shall be faid to accrue. To aid in folving these difficulties, debts have been claffed into fuch as are alfalute or certain, that is, payable certainly and at all events, and contingent or payable only on the happening of fome uncertain event or contingency. d The demand against Blackford is of the latter kind. t Murray did not pay the condemnation money, or render 2. himself to the sheriff for the fame: Blackford contracted to * pay it for him. If the ": of Murray's not paying

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*:::: the money, or not £endering himself, had happened it '-- ~ the time of the bankruptcy, the debt as against Blackford *:* could certainly be proved. Without examining how long after the return of ach. [.. and of a writ on the recognizance, the ball may surrender, it is sufficient as it respects the Present enquin, to say, that after the return of non eit inventus, on a a's ad fatisiciendum, the condition of the recognizance is broken, and the bail are regarded as fixed in law. If the Principal dies after that day, and before a furrender, he is fixed beyondrid, and were the plaintiff to apply to prove his debt while the bail were in that fituation, the affignees would havenoright to fay, that the bankrupt ex gratia might yet mender his principal, and thus defeat his claim. He might with propriety answer that what the bankrupt would do, he tould not tell, but that until a furrender was made, which he would not compel the bail or his Principal to make, the polibility of fuch an event ought not to be alleged against proving an existing demand, which accrued the moment the recognizance was forfeited. * In my judgment, therefore, Blackford was fulfident, i. ed as the bail of Murray at the time of his bankrupt to confer on the plaintiff a right to prove his debt under the commifion against him, and that the fieri facias ified inte his discharge must accordingly be set afide with coffs.

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Samuel Governeur and Peter Kemble against tie
United Insurance Company. The same against
the same. 5

. If a cem- THESE were two causes, the one a policy on the cargo

der of a - - * - - : make a of the ship #: the other on a fimilar policy on that of #:... the ba' Bekkefkow; verdicts having been rendered for tu - - - r £ the plaintiffs. Two questions were fubmitted withouti. ill not CX # the under- gument 5

iter, being a - : Kn. . . : £ J ft. whether the verdicts for the plaintiffs were agrees. £ for ble to evidence. . to Gls. * 2d. Whether they were agreeable to law. The material facts in both cafes were the fame. There.

fels and cargoes were Danish, insured as such at warplem.

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mark and Great-Britain.

Mr. Murphy, a merchant of the island of St. Thomas, on voyages from thence to the United States. That Capt. Barry, commander of the American flip of war United States, being on the West-India station, for the protection of the American commerce, was requested by Mr. Murphy, on whose account the infurances were made, to take both vesfels under his care, and protect them all in his power. That for this purpose captain Barry, when at fea, took from the masters of both veffels their papers, against their opinion and confent, and put on board of them prize masters, ordering them for the United States as prizes to his ship. That after parting from the flip United States, they were feverally captured, the one carried into Halifax and there acquitted on payment of cofts; the other into Bermuda and there condemned as good and lawful prize. Per curiam, delivered by Lewis, C. J. The conduct of captain Barry was certainly not authorized by the request of Mr. Murphy. He acted, however, with the beft intentions; and his measures, appear to me, rather to have leffened than to have increased the riflues. The acquittal of the one veffel was probably owing to them; for, their pa| pers, shewing the property to be Danish, must have infured . the condemnation of both. I can fee no reason, therefore, - s why the underwriters fbould not be held to their responfibility, and am of opinion the verdicts are neither against

ums, at a time of actual hostility subfifting between Den- #. !cD. 1504.

The circumstances on which the question fubmitted a- Delamater - - - - W. rofe were, that these policies were effected for account of a Borland.

law nor evidence. -
In a fuit tow

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- | - recover a take Peter Delamater against James Borland. deposited on a

- wager,evidence IN error on a certiorari from a justice's court. The de-' mon' du: - on a note of

claration was for ten dollars deposited in the hands of the hand, cannot p - If

defendant below as a take on a wager. The demand at the the £atio: be for ten dol

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paid, and the judgment was for fifteen dollars. fifteen, it is

trial was for 25 dollars due on a note, on which five had been £

for

Per curiam. It appears that the plaintiff below declared fatal on error * from a justices”

for one thing, and gave evidence of another totally variant, court.

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