Lessee of Joy v. Cossart , 1 Yeates 50 ( 1791 )

The chief justice this term delivered the unanimous opinion of the court. He stated the case fully as it appeared on the trial. The two points have been very fully and ably argued, and many cases have been read out of the books much to the purpose.

*We think the debt of the petitioning creditors did not warrant the commission of- bankruptcy taken out *- on the nth October 1788. The words of the first proviso in the 3d section of the act ‘ ‘ for regulation of bankruptcy ’ ’ are, “that the debt or debts, demand or demands, of such creditor “or creditors, so as aforesaid, entitled to apply for and pro“cure a commission to be issued against any such bankrupt, “shall have arisen subsequent to the passing of this act.” Now this act passed on 16th September 1785.

It appears that the legislature were scrupulously cautious to do nothing which might in any wise affect contracts or dealings, previous to that time. To come under this law, there must be a trading-, a debt contracted, and an act of bankruptcy, all posterior to its date.

Now it is confessed, that the whole of the account of Messrs. Joy and Hopkins against Christian Wirtz, was prior to the date of the act, and the sole question is, whether the memorandum indorsed on the account and signed by Wirtz on 3d June 1786, will create a debt of that date.

No action of debt could be maintained on this writing; of itself merely, it cannot raise a duty. No action will lie on it as a promissory note, because it is not negotiable. Indeed an insimul computasset would lie, but that is on the old duty, and derivative. Besides, the memorandum operates no ex-tinguishment of the debt, for the merchandise sold before. It does not alter the old duty, nor does it in any degree dignify it, or give a better remedy to the parties. It therefore still remains a debt, arising on a contract prior to the passing of the law. This seems to be too plain to require being enlarged upon. See 3 Black. Com. 465. Dali. 389, 433.

The second point is, that this exception could be taken by the bankrupt, but by no other person. If any person is injured by a transaction between others, reason points out that he should be permitted to shew that the act was unlawful. Though the proceedings of commissioners of bankrupt in • England, are almost in every stage, examinable by the Lord Chancellor, yet the trading, act of bankruptcy, commission and certificate, have been severally subjects of litigation in their courts of law, for which see numerous cases cited by the counsel, in Dali. Rep. 381, and 3 Burr. 933 and 934, which very much resemble the present case. We do not think it should be in the power of any two persons by any contrivance between them, to defeat a third person of his estate, without his concurrence or default. This would be giving an unjust operation to the act of assembly, by an ex post facto proceed-*661 How far the creditors who have ^received a dis- -* tribution under this commission, may be estopped from taking advantage of this exception, we need not say; but we are clear that Dr. Charles Moore is not thus precluded.

Upon the whole, the court are unanimously of opinion, that the rule to shew cause why a new trial should not be granted, be discharged.

Judgment pro def.