Pesoa v. Passmore

Shippen, C. J.

gave no opinion on the case, not having been present during the argument.

Yeates, J.

The single question is, whether at the time of serving the ca. sa. on the 12th November 1803, the defendant was legally exonerated from the plaintiff’s demand ?

It was admitted by the counsel, that the requisite number of creditors had then signed the certificate, but that it was not allowed by the district judge for near six weeks after, to wit: December 23d.

It appears by the act of congress, the British, statutes, and the resolutions under them, that the act of the judge or chancellor is indispensably necessary to effect the discharge of a bankrupt from the debts due. by him before his bankruptcy. By the law of the United States, a bankrupt is privileged from arrest for forty-two days, and for such further time as the commissioners may allow; and by section 60, the commissioners may discharge the party from a previous execution, under existing circumstances. If it was the national will, that no bankrupt, after he has submitted to be examined, should be arrested thereafter, until a reasonable time had elapsed for the judge’s signature, after the previous ceremonies have been gone through, would not this intention be expressed in the body of the act itself ? Would the minutiae of privilege and discharge be gone into *in so many important particulars, and this point be left r* open for conjecture and implication? In Great Britain, L the protection to the bankrupt does not extend beyond the enlarged time by the commissioners. 1 Atlcy. 148.

We are told by Lord Mansfield, that many years may intervene between the signing by the creditors, and the allowance of the certificate. 2 Burr. 718. Who are impowered by law to fix the reasonable time contended for by the defendant’s counsel, during which the creditors are not permitted to arrest the party who has been examined ? What known settled standard is there for deciding on such reasonable period ? A creditor who has determined not to prove his debt under the commission, is not obliged to wait for the fiat of the judge ; and unless he is restrained by clear words from pursuing his remedy in the ordinary course of law, he may take any legal steps for the recovery of his demand. It is true, upon the allowance of the certificate, the bankrupt will be discharged from custody; but until *141that period, it is uncertain whether such certificate will receive the sanction of the judge or not.

Urged by these considerations, I am obliged to declare my opinion, that at the time of serving the ca. sa. in the present instance, the defendant was not legally exonerated from the plaintiff’s demand, and that judgment be entered for the plaintiff.

Smith, J.

I feel myself bound to accede to the opinion which has been delivered, for the reasons which have been given, though I wished it to be otherwise. The defendant has precluded himself by giving his bond with security, on his discharge from custody. If he had waited for the allowance of his certificate by the judge, he would have been furnished with an adequate remedy. I think the plaintiff has taken an undue advantage of the defendant; but as I cannot say it is illegal, the latter can receive no relief from us.

Brackenridge, J.

I am of opinion, that the bankrupt has his privilege after examination eundo and redeundo. The certificate of discharge takes effect from the time of its being signed by the commissioners ; and the arrest afterwards, was in my idea illegal.

Judgment for the plaintiff.