Bowie v. Henderson et al.

(Local Law.) Bowie v. Henderson et al. Thfe-third section of the act of Congress, of March 30th, 1803, for the r.elief of -insolvent debtors in the District of Columbia, • does not create any express or implied'exception to the operation of the statute of limitations, by making the insolvent a trustee for his ^creditors, in -respect to his future property,, or by making any demand, included- in the schedule of his debts, a debt of record. The including of a'demand in the schedule, of the insolvent’s debts, is sufficient evidence t,o sustain an issue on a replication óf a new'promise to the plea of the statute of limitations, if the period of limitation has not elapsed after the date of the schedule. Appeal from the Circuit Court of the District of Columbia» This suit was instituted by the appellant against the respondents, on the Chancery side of the Circuit Court of the District of Columbia, for the county of .. . . iiiii ■. . . Alexandria, under the local-law giving a process in Chancery in the nature óf a foreign attachment. The bill charged a debt due On bills of exchange, from the defendant, Henderson, to the complainant; that the debtor was an absentee; that he had funds in the hands of the defendant Auld ; and prayed a condemnation of those funds, to answer the complainant’s demand. The defendant, Henderson, pleaded the statute of limitations, non assumpsit infra quinqué annos. To this, plea the; complainant filed the following replication : And the. said W. Bowie saith, that he ought not to be precluded from having' and maintaining his bill aforesaid, by any thing alleged by the defendant, Hendersmj, in" his plea aforesaid; because he saith, that the said A. Henderson, ori the 8th of May, 1806, in the county of Alexandria, before N. F.,one of the judges of the. District of Columbia, did take the benefit of the act for the relief of insolvent debtors within the" District of Columbia, and did then arid there give a schedule of his estate, and a list 0? his.creditors,; and in the said list of his creditors so given in, he, the said Henderson, did state, that the said complainant was a creditor of his to the .amount of $4,586 39 cents— which said list of creditors so given in, he, the said Henderson, did state, was. entered of record in the clerk’s office of the Court Of the cóurity of Alexandria, as by reference to the records of the said Court will fully arjd at large appear, and which said, debt so given in, is the debt for which the complainant has instituted his suit aforesáid. And the said complainant saith, that the moneys and effects which the said complainant seéks, in his bill aforesaid, to subject to the payment of his debt aforesaid, were obtained and acquired by the said defendant* Henderson, long subsequent to his taking the oath of insolvency aforesaid; And the said complainant saith,- that as soon as he, the said complainant* obtained any knowledge of the said .defendant, Hénderson, having ^obtained the funds aforesaid, and within the period of six months after he obtained a knowledge thereof, he, the said complainant, did institute his aforesaid bill in, Chancery, to subject the funds to the payment of his said debt, all which, &c. The defendant demurred to this replication, and the Court below, o» hearing, adjudged the demurrer good. The question, in this case turned upon the construction of the third section of the act of Congress, for the relief of insolvent debtors within the District of Columbia, passed March 3d, 1803, which is in these words: “ And be it further enacted, That up.on the petitioning debtor’s executing a deed or deeds to the said trustee, conveying all his property, real, personal, and mixed, and all his claims, rights, and credits, agreeably to the oath or affirmation of the said debtor, and on delivering all his said property which he shall have in his possession, together with his books, papers, and evidences of debts of every kind, to the said trustee, and the said trustee’s certifying the shme to the said judge in Writing, it shall be lawful for the said judge to make an order to the marshal, jailor, or keeper of the prison, in which said debtor is then confined, commanding that the said debtor shall be thenceforth discharged fróm his imprisonment ; and he shall be immediately discharged, and the said order shall be a sufficient warrant therefor; Provided, That no person who has been guilty of a breach of the laws, and who has been imprisoned for or on account of the same, shall be discharged from imprisonment: And provided likewise,' That any property which the debtor may afterwards acquire, (except the necessary Wearing apparel and bedding for his family, and. his tools, if a mechanic or manufacturer^) shall be liable to the payment of his debts, any thing herein to the contrary notwithstanding.” March 12th. This cause tyas argued by. Mr. Swann and Mr. . Jones, for the appellant, and by Mr. Taylor, for the respondents. The former insisted, that the above section of the insolvent act created an exception to the general operation of the statute of limitations in fa-vour of those demands on which the insolvent’s person was discharged under that section. They argued that the insolvent, after his discharge, was to be considered, in respect to his future property* -as a trustee for his creditors, and that the statute of limitations does not run against a trust: and,.also* that this debt was to be considered as excepted out of the statute of limitations, because it was made, a debt of record by being included in the list of creditors under the insolvent act. [MAJORITY — Mr. Chief Justice Marshall,] Mr. Chief Justice Marshall, delivered the opinion, of the Court, and after stating the case, proceeded as follows: It is perfectly clear that no such exception is contained in. the statute of limitations, or- in the act of Congress concerning insolvent debtors If it is to be created .at all, it must be by implication, ft is contended in., the first place, that the insolvent debtor, after his discharge, is to be considered in respect to hisfutlííe,'property, as a trustee for his creditors; and-the statute of limitation does not run against a trust. If hé isa trustee, for his creditors, is he a trustee for those creditors only who were such at the - time, he obtained the benefit of the act ? or, is he a trustee for those who afterwards become his creditors ? It will not be pretended that he is exclusively a trustee for the former: and if he bé a trustee for the benefit of all his creditors, then this suit should, have been brought for the benefit of all, and not.for the benefit of a single creditor. The proviso Of the section respecting the liability of the future property of the insolvent, has been supposed to aid the argument that he is a trustee : But we áre all of a different opinion the previous part, of the section having exempted his person from imprisonment, the object 01 the proviso was to make all his future ■ effects liable, aud io retain all the remedies, against it, in the same mannér.as if his person had not been discharged. The.act, therefore, did not intend to create any new liability, or any new trust. It.is farther insisted, that this is to be considered as an exception out of the statute Of limitations, because it is a debt of record. But á debt of record, in the sense of the common law, is a debt or contract created of record ; such as a statute staple, or statute merchant, and not one whose previous existehce is only admitted of record. The effect of recording this debt was merely an admission of its existence, and not a change of its nature, it would have been sufficient evidence, if five years had not elapsed after recording, to have sustained an issue on a replication of a new promise to the plea of the statute of limitations. But more than five years having elapsed, it could have no application in this case. It is the opinion of the Court, that the demurrer to the replication is sustained, and that judgment ought tobe given for the defendant. Decree affirmed.