Lansing v. Prendergast — 9 Johns. 127

Majority

p. 127

Lansing against Prendergast.

NEW YORK

May, 1812.

Headnote

A discharge under the insolvent act is no bar to an express coverent, brought to recover rent accruing subsequent to the insolvent’s discharge.

THIS was an action of covenant, for the recovery of seven years’ rent, brought upon a durable lease, executed by the plaintiff to the defendant, on the first day of March, 1793, for a f land in Lansingburgh, in which lease the yearly rent of four pounds was reserved to be paid yearly and every year, tor ever thereafter ; and which rent the defendant, his executors, administrators and assigns, expressly covenanted by the lease, to pay to the plaintiff, his heirs and assigns, for ever. The plaintiff in Ms declaration averred, that there was due from the defendant the sum of 28Z. for seven years’ rent due and in arrear, on the first day of March, 1810,

The defendant pleaded non est factum, and gave in evidence, at the trial, (according to a notice given for that purpose,) a dis

p. 128

charge obtained under the act entitled “ An act for giving relief im cases 0f insolvency,” dated the 17th day of October, 1801, by which the defendant was discharged from all debts up to the date th® discharge; and that the said lease was duly assigned among, other property of the said defendant, to his assignees, appointed by the authority of the act. It was admitted, on the trial, that the plaintiff, on the 10th day of September, 1810, recovered a judgment against the defendant, before a justice of the peace, for the sum of 20 dollars, for two years’ rent, due on the lease, the 1st „day of March, 1803.

The cause was tried at the Albany circuit, in October, 1811,. and a verdict taken for the plaintiff, subject to the opinion of the court on the above case, which was submitted to the court without argument»

There is no distinguishing this case, in principle, from that of Frost v. Carter. ( 1 Johns. Cas. 73 .) The rent now sued for had not accrued at the time of the discharge. Rent afterwards to accrue and grow due, could not, in any sense, be considered as a present debt, at the time of the insolvent’s assignment, and for which the plaintiff might have become a petitioning creditor. It must be debitum in presentí, though it be solvendum in futuro. A discharge under the English acts of bankruptcy, or of insolvency, has never been considered as a bar to an action of covenant on an express covenant to pay rent. (1 H. Bl. 433. 4 Term Rep. 94. Auriol v. Mills, 8 East, 318. S. P. Cotterel v. Hooke, Doug. 97. Marks v. Upton, 7 Term Rep. 305.) The words of the bankrupt act of 7 Geo. I. c. 31. are nearly the same as those in our insolvent law. The recovery before the justice was no bar to rent not included in that suit. Each sum of annual rent was a distinct debt.

Judgment for the plaintiff.

Cases cited

Frost v. Carter 1 Johns. Cas. 73 N.Y. Sup. Ct. p. 128