Cohen v. Patton

2 Miles 437

• Court: Pennsylvania Court of Common Pleas, Philadelphia County
• Decided: December 19, 1840
• Status: Published

Opinion

Pee Curiam.—

Did the discharge of the defendant, at the September term of the Common Pleas, operate as an exoneration of defendant’s liability on the bond, conditioned that Hopewell should appear and apply at the December term—this discharge occurring after the date of the bond? It must be borne in mind that the defendant is a surety. This question may be tested by propounding another, viz.: Could the defendant have performed one of the alternative conditions of the bond by surrendering the principal to prison at December term? (Act of 16th June, 1836, Stroud’s Purd. tit. Insolvents.) The law provides that the surety shall have that privilege in discharge of his liability. Now, the bond was dated September 23, 1839; Hopewell was discharged on October 17,1839, and his discharge operated on every subject matter prior to that date: for, by the 15th section of the act, the principal from thenceforth became free from any liability “ to imprisonment by reason of any judgment or decree obtained for the payment of money only, or for any debt, damages, costs, or sum of money contracted, accrued, or occasioned or due before the time of such order,” that is, the order for the discharge. Here, then, by operation of the positive provisions of the statute, the performance of the condition of the bond by the surety is rendered impossible. The principal is discharged, and the surety is also. The doctrine of the cases cited at bar are consistent with this view, although it is supposed Kelly v. Shepney, 4 Watts 69, is not so. Yet that case simply decides that a surrender before the day of hearing will not relieve the surety. Here the principal is discharged, and no surrender can take place at the day of hearing.

We do not lay much stress on the fact that plaintiff opposed the debtor’s discharge at the September term. But he had that advantage; and it is well to remark, that this decision works no hardship on the plaintiff. If the petitioner gives public notice, the law presumes that all have notice, and the plaintiff has the same right as the rest "of the creditors to oppose: if he gives private notice, which is not served on the plaintiff, neither his debt nor his bond are affected by the discharge. (Sect. 31.) And the record of the insolvent’s discharge is conclusive as to the fact of his having complied with all things required by law to entitle him to his discharge. Sheets v. Hawks, 14 S. & R. 173.

Judgment for defendant.

a

The same point has been recently ruled in the Common Pleas of the City and County of Philadelphia.