Hendricks v. Judah

Headnote

If a house be taken for a year before an act of bankruptcy, and the bankrupt continue in possession afterwards, he is not discharged from the subsequent rent by his certificate.^[4]

Action on the case, for the use and occupation of a house. One count was on a parol agreement by the defendant with the plaintiff, to take a house of him, which the defendant afterwards refused to occupy^ or pay the rent for. The other, money paid, laid out, and expended, to the.use of the defendant. A verdict having been rendered for the plaintiff, the question of his right to recover was reserved for the opinion of the court, on a case which was shortly this:

The defendant applied to a Mrs. Bowne to rent him a house from the first of May, 1800, to the first of May, 1801. This she refused to do, but said that she would let it to the plaintiff, who might underlet it to the defendant. This was accordingly done. In September, 1800, the defendant became a bankrupt, and duly obtained his certificate, but the plaintiff never took the house off his hands, though it was for the most part unoccupied, and had, by the courtesy of the defendant, been in some degree occupied by the plaintiff, who paid to Mrs. Bowne the rent for the three quarters due after the bankruptcy. To recover this the present suit was instituted, and the sole question was, whether the bankruptcy in September, and certificate thereon, was a discharge from the subsequent rent ?

Under the circumstances of tms case, the plaintiff may perhaps be considered as a surety for-the defendant, paying the debt after the bankruptcy of the principal. In this point of view, the very cause of action would be subsequent. But taking it simply as a matter between landlord and tenant, it is a general proposition, that the latter does not become a debtor to the former, in a sense *that would make bankruptcy a discharge, until after the rent falls due. If it be quarterly, then at the expiration of each quarter ; if annually, then at the end of the year. This principle will be found in Cullen’s Bankrupt Law, 126, in Mills v. Auriol, 1 H. Black. 433, and Naish v. Tatloclc, 2 H. Black. 319. The tendency of the cases is to settle this point, as between landlord and tenant, because a demand for rent, which was not payable antecedent to a bankruptcy, cannot be proved under the commission. If, therefore, it cannot be proved, it cannot be barred,^[4] and the bankrupt con

tinues liable notwithstanding his certificate, which has only a retrospective and not a prospective view. But there is a special count on a parol agreement to use, occupy, and pay, alleging damages by a breach in refusing; surely, a previous bankruptcy is not a bar to a recovery in an action sounding in damages to be subsequently assessed.

As the defendant rented from the plaintiff, it is a question merely between landlord and tenant. An underletting can never change the mesne tenant into a surety. It is settled, that to an action of debt on a lease, brought after a bankruptcy, for rent subsequently accrued, the certificate is a bar, nay, even if it be on the implied covenant in the reddendum.^[4] A distinction, however, has in the English books been taken, where the suit is on an express covenent to pay, in which case it is said the bankruptcy is not a discharge. 1 Saund. 241; 4 D. & EL 94; 1 H. Black. 483. The reasoning,'however, on which the fule is established in the first cases, would equally apply to the last, for the bankrupt is as much devested of the possession in this as in the others. The effect of the statute is compulsory upon him, and he is disabled by the act of the law: his immediate inability, therefore, ought alone to be looked at, and not the remote consequence of an agreement, made concerning land, of which he is devested. “ It were infinite,” says the quaint language of Lord Bacon. (Bac. Law Tracts, 35,) “ for the law to judge the causes of causes, and their impulses one of another, therefore it con-tenteth itself with the immediate causes, and judgeth of acts by that, without looking to any farther degree. If any annuity be granted, pro concilio impendendd, and the grantee commit treason, whereby he is imprisoned, so that the grantor *cannot have access to him for his counsel, nevertheless the annuity is not determined by this nonfeasance, yet it was the grantee’s own default to omit the treason, whereby the imprisonment grew; but the law looketh not so far, but excuseth him, because the not giving counsel was compulsory, and not voluntary, in regard to the imprisonment.” So here, the law has, against the consent and will of the defendant, deprived him of the means of performing his promise; and shall he be held to it, when the very consideration is taken out -of his hands ? In Mayor v. Stewart, Yates, J., says, “ As the act devests him of his whole estate, and renders him absolutely incapable of performing his' covenant, it would be a hardship upon him, if he should remain still liable to it, when he is disabled by the act of parliament from performance.” By act of law, the very consideration is taken away, and, therefore, for want of one, the action is not maintainable. As to its sounding in damages, so does a suit on a promissory note, and yet it is discharged by a certificate: for the debt upon it might be proved, and why not this; as it was a demand growing before the commission, a plain debitum in presentí solvendum in futuro.

The continued use and occupation, after the bankruptcy, creates the consideration for the rent demanded. The cases cited proceed on this ground; if the assignees take possession under a lease, the bankrupt is exonerated, because.they are liable; but if they do not, then he continues responsible; and even if they do, he is not discharged from an express covenant, because bankruptcy

does not dissolve tide contract.^[4] But here the contract exists,^[5] and the defendant has had a full consideration by enjoying under it.