Thompson v. Hewitt — 6 Hill & Den. 254

Majority

p. 254

Thompson vs. Hewitt.

Headnote

The rule of evidence which precludes a party from using the copy of a deed, record or other written instrument, without first accounting for the absence of the original, is not applied on motions in the course of practice.

A bankrupt’s discharge extends only to such debts as the bankrupt owed at the time of presenting his petition. Per Bronson, J.

Whether the bankrupt can be relieved from a judgment recovered against him intermediate the presentation of his petition and the granting of the discharge, upon a promissory note given before his proceedings were commenced, quere.

A promissory note is merged in and extinguished by a judgment recovered thereon, and the judgment becomes a new debt. Per Bronson, J.

Where a defendant, during the pendency of a suit against him on a promissory note, presented a petition to be discharged under the bankrupt law, and then compromised the claim by giving a cognovit for a part of it, agreeing at the same time that any discharge he might obtain should not affect the rights of the plaintiff: Held, on motion by the defendant for a perpetual stay of proceedings, that his discharge obtained after judgment upon the cognovit did not entitle him to relief.

S. H. Hammond, for the defendant,

moved for a perpetual stay of proceedings upon the judgment in this cause, on the ground that the defendant had obtained a discharge as a voluntary bankrupt. The action was commenced in May, 1842, to recover the amount of a promissory note. On the 9th of January, 1843, the defendant presented his petition in bankruptcy. On the 6th of May following, his attorney gave a relicta cognovit in the suit, for $51,41j and judgment was perfected on the 29th of July. On the 7th of August following, the defendant obtained a discharge from all debts owing by him at the time of the presentation of his petition. The counsel cited Palmer v. Hutchings, (1 Cowen, 42;) Baker v. Taylor, (id. 165;) Robertson v. Crowell, (3 id. 13.)

H. Wells, for the defendant,

said the discharge was not sufficiently proved. The defendant swears that he u obtained a discharge, of which a copy is hereto annexed,” and then gives a copy. He should have produced the' original.

That is not necessary on a motion. We receive proof of deeds, judgments and other records in the same way, though on trials at the common law such evidence would not be admissible.

Wells then read affidavits showing that the cognovit was given and received as a compromise, for a less sum than was claimed to be due, and upon the express understanding that any discharge in bankruptcy which the defendant might obtain should not affect the judgment.

Under most of our insolvent laws the debtor is discharged from all debts which he owed at the time of making the assignment of his estate, and the discharge has usually followed very closely upon the assignment. But the defendant has been discharged under the bankrupt law from all debts which he owed at the time he presented his petition. Subsequent to that time, the cognovit was given and the judgment recovered. The original debt has been merged in and extinguished by the judgment. The judgment is a new debt, which is not affected by the discharge.^[1] Under the insolvent laws, a case rarely happened where a judgment was recovered intermediate the assignment and the discharge. But under the bankrupt law, there may have been many cases where a judgment has been recovered between the presentation of the petition and the granting of the discharge. If the defendant can have any relief in such cases, I am not prepared to say in what form or upon what terms it should be granted. The question need not be decided at this time, for the defendant comes to ask a favor in direct violation of his agreement. If there is any way in which he can set up his discharge as a legal answer to the judgment, he does not want our assistance; and clearly we ought not to aid him in doing a wrong.

Motion denied.

(a) (a) See Crouch v. Gridley, (ante, p. 256.)