Majority
p. 250Crouch vs. Gridley.
Headnote
The defendant’s liability for a tort is not affected by his discharge under the bankrupt law, unless, before the petition in bankruptcy was presented, the demand had become a debt, by being converted into judgment.A verdict or report of referees obtained by a plaintiff in an action for a tort, merely liquidates the damages, but the nature of the demand remains unchanged until judgment is perfected.
Case for seducing the plaintiff’s daughter and getting her with child. The action was commenced in March, 1842, and was subsequently referred by stipulation to three referees, with an agreement that judgment might be entered on their report in
p. 251moved that all proceedings on the part of the plaintiff be perpetually stayed, and read a stipulation that the motion might be made now with the like effect as if judgment had already been perfected. He said the case was one where the defendant could not have pleaded his discharge, and relief should therefore be granted on motion. (Baker v. Taylor, 1 Cowen, 165; Palmer v. Hutchins, id. 42; Field v. Howland, 17 Johns. Rep. 85 .) Matter arising after verdict or a report of referees, and before judgment, cannot be pleaded. (Alexander v. Fink, 12 Johns. Rep. 218 .) Judgments for torts may be discharged under the bankrupt law. (Ex parte Thayer, 4 Cowen, 66; Ex parte Smith, id. 276 ; Luther v. Deyo, 19 Wend. 629 ; Hayden v. Palmer, 24 id. 364.) It is no objection that a part of the plaintiff’s demand is for untaxed costs. (Thomas v. Striker, 3 Johns. Cas. 90 .) The demand was sufficiently certain, when the defendant’s petition was presented, to be reached by the discharge. (See matter of Denny & Manhattan Company, 2 Hill, 220 ; Waugh v. Austen, 3 T. R. 437; Utterson v. Vernon, 4. id. 570.) This tort is not reached by th.e defendant’s discharge; and there was no report by the ref
the same manner as though it was a referable action There was a hearing in September, 1842, and the referees soon after-wards agreed to make a report for $150, in favor of the plaintiff. In October following, Ludlow, one of the referees, drew up the report, and transmitted it by mail to the other two to'be signed. They signed and returned the report to Ludlow, who kept it until the 22d of November last, when he signed and delivered it to the plaintiff. Ludlow would have signed and delivered the report at an earlier day if it had been called for by the plaintiff.
On the 11th of February, 1843, the defendant presented his petition for a discharge as a voluntary bankrupt, and on the 10th of July last he obtained a certificate discharging him from all debts owing by him at the time of presenting the petition.
S. J. Cowen, for the defendant,
H. H. Martin, for the plaintiff.
p. 252erees until after the proceedings in bankruptcy had been commenced and were ended. But had the discharge been obtained intermediate the report and judgment, it would not have affected the plaintiff’s claim. (Charles, Ex parte, 16 Ves. 256,14 East, 197, S. C.; Buss v. Gilbert, 2 Maule & Selw. 70.) When judgment is obtained after bankruptcy, in an action on the case, the costs are not provable under the commission. (Goddard v. Vanderheyden, 3 Wils. 262, 270; Cone v. Whitaker, 2 Johns. Cas. 280 ; Anonymous, 1 Atk. 140; Ex parte Hill, 11 Ves. 646, 652, 5 Bos. & Pull. 191, note, S. C.; Charles, Ex parte, 14 East, 197, 210; Lewis v. Piercy, 1 H. Black. 29.) So where the plaintiff becomes bankrupt after verdict against him, his discharge will not affect a judgment subsequently entered for the costs. (Walker v. Barnes, 5 Taunt. 778.) See also, Chilton v. Whiffin, (3 Wils. 13;) Ex parte Groome, (1 Atk. 119;) Bamford v. Burrell, (2 Bos. & Pull. 1;) Parker v. Norton, (6 T. R. 695;) Strong v. White, ( 9 Johns. Rep. 161 ;) Johnson v. Spiller, (Dougl. 167;) Gulliver v. Drinkwater, (2 T. R. 261.)
The defendant has been discharged from all the debts which he owed at the time of presenting his petition in bankruptcy. There is no ground for saying that the discharge reaches his liability for this tort, unless the plaintiff’s demand had become a debt before the petition was presented,[1] This action had been brought and referred, and the referees had agreed among themselves to report one hundred and fifty dollars in favor of the plaintiff; but no report had in fact been made. There was no change in the nature of the demand. True, the third referee was ready before that time to sign and deliver the report; but so long as the report remained incomplete, there was nothing but the original wrong, which was not cured by the discharge.
But let it be granted that the report was complete in October,
(a) (a) See Graham v. Pierson, (ante, p. 247 ;) Thompson v. Hewitt, (post, p. 254.)
p. 253
1842, before the proceedings in bankruptcy were commenced. The report of referees is equivalent to the verdict of a jury. (Alexander v. Fink, 12 Johns. 218 .) Although a report liquidates the damages, it does not change the nature of the demand. That remains the same until it is extinguished by the judgment. In Charles, Ex parte, (16 Ves. 256, 14 East, 197,) there was first a verdict for the plaintiff in an action for the breach of a promise of marriage; then an act of bankruptcy by the defendant; and then judgment for the plaintiff on the verdict. She then instituted proceedings against the defendant as a bankrupt, and it was held that her judgment did not constitute a good petitioning creditor’s debt whereon to found a commission. Although the damages had been liquidated by the verdict before the act of bankruptcy, yet as there was then no judgment, there was no debt. The question was very fully considered by Lord Eldon, and afterwards by the K. B. on a case out of chancery. The case of Buss. v. Gilbert, (2 Maule & Selw. 70,) is in point. It was an action for seducing the plaintiff’s daughter, and after verdict for the plaintiff, the defendant committed an act of bankruptcy, and obtained his discharge. The plaintiff then signed final judgment and arrested the defendant on a ca. sa. The court held that the judgment was not affected by the defendant’s certificate, and. refused to discharge him out of custody.
I see no ground on which the defendant can be relieved short of an application to congress.
■Motion denied.
Cases cited
- Luther v. Deyo 19 Wend. 629 p. 251
- Alexander v. Fink 12 Johns. 218 p. 253