Hawes v. Fette , 42 Ark. 374 ( 1883 )

Smith, J.

The plaintiff was the holder of sundry promissory notes and bills of exchange made and accepted by the defendant, which matured, respectively, on the sixteenth of October, the ninth of November, the sixteenth of November, and the seventh of December, 1875. The action was begun August 19,1882, and the defense was the statute of limitations of five years. The cause was tried before the Circuit Court, a jury being waived, upon an agreed statement of facts.

It appears that the defendant was adjudged a bankrupt, upon his own petition, on the nineteenth of October, 1875, anda certificate of protection issued to him; that these debts were duly proved against his estate, and were pending in the bankruptcy court until the twelfth of May, 1882, when the application of the bankrupt for his discharge was refused, and the certificate of protection was revoked.

The Circuit Court declared these instruments to be barred, and gave judgment for the defendant.

It seems to be well settled that the pendency of the proceedings under State insolvent laws, does not suspend the operation of the statute of limitations upon debts; and the reason is, such proceedings do not prevent the creditor from suing. The same principle applies to the ease where the creditor does not prove his debt against the bankrupt estate. The law does not prohibit him from bringing his action against the bankrupt. (Doe v. Irwin, 134 Mass., 90.) But “no creditor proving his debt or claim, shall be allowed to maintain any suit, at law or in equity, therefor against the bankrupt; but shall be deemed to have waived all right of action against him.” “ But a creditor shall not be held to have waived his right of action or suit against the bankrupt, when a discharge has been refused, or the proceedings have been determined without a discharge.” Rev. Stat., U. S., 5105, amendatory act of June 22, 1874, sec. 7.

Statute of Limitations. Suspention by bankruptcy.

This is a suspension of the right of action, and consequently of the running of the statute, by the Government.

The creditor has been disabled to sue, by a superior power, without any default of his own ; and unless the statute ceases to run during the continuance of the supervening disability, he is deprived of a portion of the time within which the law contemplated he might sue. (Braun v. Sauerwein, 11 Wall., 218; Bayers v. Wentworth, 58 N. H., 318.

The interval between the proof of the debts and the • • .. ternnnation ot the bankruptcy proceedings, is to be ex-eluded from the computation of the time limited for bringing suit. The inactivity of the creditor during that period was an enforced one.

Reversed for a new trial.