Treadwell v. Marden , 123 Mass. 390 ( 1877 )

Morton, J.

The bankrupt law provides that a discharge duly granted shall! with certain exceptions which do not apply in this case, “ release the bankrupt from all debts, claims, liabilities and demands which were or might have been proved against his estate in bankruptcy.” U. S. Rev. Sts. § 5119. It also provides that “ where the bankrupt is liable to pay rent or other debt falling due at fixed and stated periods, the creditor may prove for a proportionate part thereof up to the time of the bankruptcy, as if the same grew due from day to day, and not at such fixed and stated periods.” § 5071.

This action is brought to recover a month’s rent under a lease, a part of which, if the rent is to be regarded as growing due from day to day, accrued before the bankruptcy of the defendants, and a part afterward. For the proportionate part up to the time of the bankruptcy, the plaintiffs are entitled to prove against the estate in bankruptcy, and the discharge is a release of that part. For the part growing due after the time of the bankruptcy the plaintiffs are entitled to recover, as the discharge does not release it. Ex parte Houghton, 1 Lowell, 554.

It follows that the ruling of the Superior Court was erroneous. But as the plaintiffs, upon the admitted facts, are entitled to judgment for an ascertained part of their claim, there is no occasion for a new trial. If the plaintiffs will remit the proportionate part of their claim which grew due before the bankruptcy of the defendants, the exceptions will be overruled, otherwise the exceptions must be sustained. Order accordingly.