Feb. 1804. Rathbone V. Murray. a commission by fictitious relations, provided it fell due, or ALBANY, the contingency on which it was payable happened at any time previous to the expiration of the fixty days. It is hard that the future industry of a bankrupt, after a fair surrender of his property, fhould be taxed or burthened with claims which were in a state of maturity at the time of iffuing the commiffion; and it is equaily fo on a creditor of this description to be denied any part of his estate, and to be compelled to trust for payment to the precarious profits of his fubfequent exertions. Without, therefore, prescribing a general rule, which is not neceffary, I fhall only say that in this cafe, the act of bankruptcy should not be regarded as confummated until the lapse of fixty days. We are now to fee, Whether the plaintiff's demand, on this principle, could have been proved against the estate of Blackford. The 34th section of the bankrupt law provides, "that "the bankrupt fhall be difcharged from all debts by him "due or owing at the time he became bankrupt, and all "which were or might have been proved under the com "miffion." But for this provifion, the certificate would operate unequally, for if creditiors whose debts arose subsequent to the bankruptcy, were permitted to share with those whose demands accrued before, the latter would be exposed to the hardship of having only a dividend under the commission, while the former, befide an equal dividend, would retain a remedy for the residue against the brankrupt himself and his future property. The privilege, therefore, of creditors to prove, and of the bankrupts to be discharged from debts, is wifely made co-extensive and commensurate, 1. Atk. 119. Still difficulties muft occur in the application of this rule as to the time when a debt shall be said to accrue. To aid in folving these difficulties, debts have been claffed into fuch as are abfolute or certain, that is, payable certainly and at all events, and contingent or payable only on the happening of fome uncertain event or contingency. The demand against Blackford is of the latter kind. Murray did not pay the condemnation money, or render himself to the fheriff for the fame: Blackford contracted to pay it for him. If the contingency of Murray's not paying Feb. 1804. ALBANY, the money, or not furrendering himself, had happened at the time of the bankruptcy, the debt as against Blackford Governeur and could certainly be proved. Kemble V. United Inf. Co. If a com mander of a convoy make a friendly cap tare of one of his convoy it will not exone Without examining how long after the return of a ca. fa. and of a writ on the recognizance, the bail may furrender, it is fufficient as it refpects the prefent enquiry, to fay, that after the return of non eft inventus, on a capias ad satisfaciendum, the condition of the recognizance is broken, and the bail are regarded as fixed in law. If the principal dies after that day, and before a furrender, he is fixed beyond relief; and were the plaintiff to apply to prove his debt while the bail were in that fituation, the affignees would have no right to fay, that the bankrupt ex gratia might yet furrender his principal, and thus defeat his claim. He might with propriety answer that what the bankrupt would do, he could not tell, but that until a furrender was made, which he would not compel the bail or his principal to make, the poffibility of fuch an event ought not to be alleged againft proving an existing demand, which accrued the moment the recognizance was forfeited. In my judgment, therefore, Blackford was fufficiently fixed as the bail of Murray at the time of his bankruptcy to confer on the plaintiff a right to prove his debt under the commiffion against him, and that the fieri facias iffued fince his discharge muft accordingly be fet afide with costs. Samuel Governeur and Peter Kemble against the the same. THESE were two caufes, the one a policy on the cargo of the fhip Indiana, the other on a fimilar policy on that of the barque Bekkefkow; verdicts having been rendered for the plaintiffs. Two queftions were fubmitted without ar rate the under- gument; writer, being a 1ft. Whether the verdicts for the plaintiffs were agreea cafe of aban donment as for ble to evidence. a total lofs. 2d. Whether they were agreeable to law. The vef The material facts in both cafes were the fame. fels and cargoes were Danish, infured as fuch at war premi ams, at a time of actual hoftility fubfifting between Den- ALBANY, mark and Great-Britain. The circumftances on which the question fubmitted arose were, that these policies were effected for account of a Mr. Murphy, a merchant of the island of St. Thomas, on voyages from thence to the United States. That Capt. Barry, commander of the American fhip of war United States, being on the Weft-India station, for the protection of the American commerce, was requested by Mr. Murphy, on whofe account the infurances were made, to take both veffels under his care, and protect them all in his power. That for this purpofe captain Barry, when at fea, took from the masters of both vessels their papers, against their opinion and confent, and put on board of them prize mafters, ordering them for the United States as prizes to his fhip. That after parting from the fhip United States, they were feverally captured, the one carried into Halifax and there acquitted on payment of cofts; the other into Bermuda and there condemned as good and lawful prize. Per curiam, delivered by Lewis, C. J. The conduct of captain Barry was certainly not authorized by the request of Mr. Murphy. He acted, however, with the best intentions; and his measures, appear to me, rather to have leffened than to have increased the rifques. The acquittal of the one veffel was probably owing to them; for, their papers, fhewing the property to be Danish, must have infured the condemnation of both. I can fee no reason, therefore, why the underwriters fhould not be held to their refponfi bility, and am of opinion the verdicts are neither against law nor evidence. Feb. 1804. Delamater V. Borland. In a fuit to recover a ftake depofited on a wager,evidence de- of money due on a note of Peter Delamater against James Borland. IN error on a certiorari from a juftice's court. The claration was for ten dollars depofited in the hands of the hand, cannot defendant below as a stake on a wager. The demand at the the declaration trial was for 25 dollars due on a note, on which five had been lars and the paid, and the judgment was for fifteen dollars. be given. If be for ten dol judgment for fifteen, it is Per curiam. It appears that the plaintiff below declared fatal on error from a juftices' for one thing, and gave evidence of another totally variant, court. Feb. 1804. ALBANY, To this the defendant made an objection, which was overruled. In the next place, the declaration is for ten dollars, and the judgment for fifteen. Both errors are fatal, and there must be a reverfal with cofts.* Delamater V. Borland. The multiplicity of cafes from the Juftices' Courts will excufe the infertion of the following determination, by which it was decided, that they have no jurisdiction under the joint debtor act. Jofiah Jones and Jofiah Crawford v. David Reid. JANUARY TERM, 1799. Per curiam. It is a clear and falutary principle that inferior jurisdictions, not proceeding according to the courfe of the common law, are confined ftrictly to the authority given them. They can take nothing by implication, but muft fhew their power exprefsly given them in every inftance. The found rule of conftruction, in refpect to Juftices' Courts, is accordingly this to be liberal in reviewing their proceedings as far as refpects regu larity and form, and strict in holding them to the exact limits of jurisdic tion prefcribed to them by the ftatute. To apply thefe principles to the prefent cafe: The act making joint debtors answerable to their creditors feparately and giving a new mode of proceeding, is pofterior to the act granting civil jurisdiction to juftices of the peace, and makes no mention of them. It directs that procef's fhall ifuc againft the joint debtors in the manner then in use, and if either be taken and brought into court, he fhall anfwer. This act contemplates, in every instance, a compulsory process on which the defend. ant is taken and brought into court and until that be done the court cannot proceed in the caufe; whereas the ten pound act, giving civil authority to juftices, intends only a fummons in the first inftance against freeholders and inhabitants, having families, and if the fummons was perfonally served and the defendant does not appear, the juftice cannot compel him, but is to proceed and try the caufe without his either being taken or bro't into court. The joint debtor act accordingly gives a power and jurisdiction different from and unknown to the ten pound act. So in refpect to executions the joint debtor act directs,that the execution shall be against all the debtors; but hall not, however, iffue against the body or fole property of the one not taken and brought into court. Whereas, by the ten found act, execution is di rected to go against the entire goods and chattels of the perfon against whom it is granted, and for want of fufficient goods of fuch perfon, to take his bo dy. Here are new powers and new modes of proceedings, applicable to the courts of common law, and contrary to the exprefs forms and directions given to the Juftices' courts and in which no mention is made of them. We are, therefore, of opinion, that, according to the fettled rules of inter pretation, juftices of the peace have no jurisdiction in the case of joint debtors, unless both are duly ferved with procefs, and, therefore, that the judgment in this case must be reversed. PROMOTIONS IN THIS TERM. Ambrofe Spencer, Efq. as Judge, vice Radcliff Judge, refigned. John Woodworth, Efq. Attorney General, vice Ambrofe Spencer, promoted. END OF THE FIRST VOLUME. |