Smith v. Bennett

1833, the day of hearing, until 14th February, 1834, when the discharge was granted, operated as a discontinuance and avoided the discharge; and 4. That an insolvent discharge is no bar to an action on a judgment for an assault and battery.

in support of the two first grounds relied on, cited 2 R. S. p. 16, § 1, 2 and p. 22, § 30. In support of the third point, they insisted that the act authorized no adjournment after the hearing is closed; that tlie judge is bound to determine within a reasonable time whether he will grant the discharge, and can not indefinitely delay his decision. As to the fourth point, they insisted that the discharge operates only upon debts arising ex contractu, and does not affect debts arising ex delicto. The 30th § declaring the effect of the discharge, confines its operation to debts contracted or founded upon contracts, and the three follow ing sections clearly show that such was the intention of the legislature. When they mean that a discharge shall apply to all possible cases of. indebtedness, they use the appropriate language as in p. 24, § 1, [481] speaking of debtors imprisoned upon execution many civil action. So also in p. 31. In Strong v. White (9 Johns. R. 161). the court refused to give the defendant the benefit of a discharge when imprisoned on a judgment for a libel, and in Kennedy v. Strong (10 Johns. R. 289), it was held that a discharge under the act of 1811, was no bar to an action of trover. Bankrupt laws are made for the relief of merchants and traders, and are intended to operate only upon contracts. Torts are not within the policy of those laws, nor was it ever in the contemplation of a legislature that a party guilty of a tortious wrong to another could be relieved from making satisfaction, by obtaining the concurrence of two thirds of his creditors in a petition for his discharge. By the existing laws, a defendant in execution on a judgment for a tort may be relieved from imprisonment, but can not be discharged from the judgment. Insolvent laws are construed strictly (3 Paige, 338).

If the petition was not signed, it was a mere irregularity which does not affect the jurisdiction of the officer granting the discharge. The second point raised for the plaintiffs is unsupported by a single case; an averment like that contended for was never made in pleading, nor is it necessary. As to the third point the officer necessarily must exercise liis discretion as to when he will grant tlie discharge, and every presumption is in favor of the fairness of his acts. As to the effect of the discharge upon judgments for torts: A discharge under the English bankrupt act, operates as well upon a judgment in tort as upon a judgment on contract. The discharge is a bar to any suit lor any debt or demand contracted, due or demandable before the issuing of the commission (Cooke's Bankrupt Law, 2, 5). A demand in trover, where the damages can .be liquidated, may be proved under a commission, although a demand in trespass, where tlie damages are unliquidated can not be proved (id. 574). There is no distinction in this respect between tort and contract, where a judgment is entered upon a verdict in an action for a tort (1 H. Black. 29, note). In Hatten v. [482] Speyer (1 Johns. R. 37), a discharge under the U. S. bankrupt law was held to be a bar to an action on the case, or any other demand that could be proved under the commission. The terms of the act of 1830 are broader than those of 1811; by the act of 1811, the presenting of a petitition for a discharge is limited to an insolvent debtor who is imprisoned or prosecuted for debt, or on contract, and therefore it was held in Strong v. White, tliatan action for a libel was not within the meaning of the act. The act to abolish imprisonment for debt in certain cases (Session Laws of 1819, p. 115), which authorizes any insolvent debtor to apply for a discharge, was in Ex parte Thayer (4 Cowen, 66), held to extend to a judgment in tort, and in 5 Cowen, 276, to an order of filiation. So the act for the relief of debtors with respect

to the imprisonment of their persons (1 R. L. 348), has been held to extend as well to judgments on wrongs as to judgments on contracts (3 Cowen, 366). By the act of 1810 (1 R. S. 22, § 30), the insolvent is discharged from all debts owing to persons resident within this state, &c., and can there be a doubt that a judgment in tort is a debt owing to the plaintiff in such judgment; that such a plaintiff might become a petitioning creditor and would be entitled to a dividend ? and were an insolvent, in his account of creditors, to omit to inventory such a judgment, can there be a question that his discharge would be,void, he being expressly required to make a statement of the sum owing to each creditor, the nature of the debt owing by him, and of all judgments existing against him (2 R. S. 17, § 5).