Brown v. Branch Bank at Montgomery , 20 Ala. 420 ( 1852 )

DARGfAN, C. J.

All the authorities, both English and American, agree, that if an execution is issued after the defendant has obtained his certificate of discharge,' he may set it aside by motion. 1 Bosanquet & Puller 426; Tarleton v. Fisher, Douglas’ Rep. 646; 2 W. Blackstone 1190; 7 Metc. 247; 9 John. 259; 9 Wendell 431; 6 Hill 247; McDougald v. Reid et al., 5 Ala. 810; Mabry, Giller & Walker v. Herndon, 8 Ala., 849; Cogburn & Powell v. Spence & Elliott, 15 Ala. 549. But I can find no case, except, one hereafter referred to, in which the Bankrupt has moved to have his discharge entered of record, for the purpose of preventing the issuing of an execution, before one had been sued out; and to allow him to do it, before execution is issued, and whilst the creditor is passive, would enable him to become the actor, and compel the creditor to join in a contest respecting the validity of bis discharge, or to abandon his right to sue out his execution. The Bankrupt Act intended to clothe the bankrupt with a complete defence against all his debts, discharged by the act; and we shall give full effect to the act, by confining his certificate to a defence only, denying him the right to become the actor whilst the creditor is passive.

In the case of Kemp & Buckey v. Herndon, this court did sanction the practice of allowing the bankrupt to enrol his discharge upon the record, for the purpose of preventing the issuing of an execution. But on reflection we are satisfied, that the practice thus sanctioned by that case is not sanctioned by any other decisions, and will probably lead to inore injury than benefit. At all events, it enables the bankrupt to become the actor, and to compel the creditor to make up an issue with him, at such time as the bankrupt may select, to test the validity of his discharge, or submit to the loss of his right to sue out execution. This, we think, ought not to be done. The creditor has the right, at any time before his demand is barred by the statute of limitations, to impeach the certificate for fraud, and he may select his own time to begin. The bankrupt has his discharge, which he may rely upon as a defence, but he should not be allowed to become the actor, whilst the creditor is taking no steps to coerce the payment of his debt. If the creditor moves, he may arrest his action by interposing his certificate, but he should not be allowed to do more .The case of Kemp & Buckey v. Herndon, which has never been reported, must be overruled; it sanctioned a novel practice, not justified by the rules of law.

Let the judgment be affirmed.