Delavergue v. Farrand

Circuit Court of the 10th Circuit of Michigan

Delavergue v. Farrand

1 Mich. N.P. 90

CourtCircuit Court of the 10th Circuit of Michigan

DecidedNovember 29, 1869

StatusPublished

This text of 1 Mich. N.P. 90 (Delavergue v. Farrand) is published on Counsel Stack Legal Research, covering Circuit Court of the 10th Circuit of Michigan primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Delavergue v. Farrand, 1 Mich. N.P. 90 (Mich. Super. Ct. 1869).

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Opinion

By the bourt,

Sutherland, J.

Section 21 of the Bankrupt Act provides that “no creditor whose debt is provable under this Act shall be allowed to prosecute to final judgment any suit at iaw or in equity therefor against the bankrupt until the question pf the debtor’s discharge shall have been determined.”

The object of this provision, as expounded by Benedict, J.,in the District Court for the Eastern District of New York, is-to give the bankrupt the “option to endeavor to obtain a discharge in bankruptcy, and, failing in that, to defend all undetermined actions.” It is said the Act declares that no such suit shall be allowed to proceed until he has had a reasonable lime to obtain his discharge, if he can, and requires -the Bankruptcy Court to stay such a proceeding in whatever Court it may be pending. 6 Int. Rev. Rec., 223.

The claim sued for is obviously one provable under the Act,p,nd, therefore, it would be a matter of course for the Federal Court to enjoin the plaintiff, if applied to. Under such circumstances it would seem to be a proper and simple practice to apply for such stay directly to this Court. This is obviously so if, as remarked by Judge Blatchford -in the case of Rosenberg, 2 Bank. Reg., 81, the provisions of section 21 “ are addressed quite as much to the Courts oí the State as to the bankrnjitcy tribunals, and are to be applied and enforced by the former quite as much as by'the latter.” If not legally binding on the State [91]*91Court it is morally so, and to prevent circuity ought lo be fb 1*.. .lowed when a proper application is made.

My attention has been directed to a great number of cases in which injunctions have been granted by Courts in bankruptcy) to stay proceedings in State Courts. The practice would appear' to be general. Only two cases have come under my observation holding that the Federal Courts do not possess that power. In re, Campbell, 16 Am. L. Reg., 100, and in re. Burns Id, 105, In a note to the case of Schnepf, Id., p. 208, these rulings are critipised and doubted.

Whether the Federal Courts have the power to restrain the creditor or not, the right of the bankrupt -is'clear to have suite stayed pending the question of his discharge, if he proceed Vitljt diligence.

Stay granted as to the defendant who has been declared a bankrupt.

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By the bourt,

Sutherland, J.

Section 21 of the Bankrupt Act provides that “no creditor whose debt is provable under this Act shall be allowed to prosecute to final judgment any suit at iaw or in equity therefor against the bankrupt until the question pf the debtor’s discharge shall have been determined.”

The object of this provision, as expounded by Benedict, J.,in the District Court for the Eastern District of New York, is-to give the bankrupt the “option to endeavor to obtain a discharge in bankruptcy, and, failing in that, to defend all undetermined actions.” It is said the Act declares that no such suit shall be allowed to proceed until he has had a reasonable lime to obtain his discharge, if he can, and requires -the Bankruptcy Court to stay such a proceeding in whatever Court it may be pending. 6 Int. Rev. Rec., 223.

The claim sued for is obviously one provable under the Act,p,nd, therefore, it would be a matter of course for the Federal Court to enjoin the plaintiff, if applied to. Under such circumstances it would seem to be a proper and simple practice to apply for such stay directly to this Court. This is obviously so if, as remarked by Judge Blatchford -in the case of Rosenberg, 2 Bank. Reg., 81, the provisions of section 21 “ are addressed quite as much to the Courts oí the State as to the bankrnjitcy tribunals, and are to be applied and enforced by the former quite as much as by'the latter.” If not legally binding on the State [91]*91Court it is morally so, and to prevent circuity ought lo be fb 1*.. .lowed when a proper application is made.

My attention has been directed to a great number of cases in which injunctions have been granted by Courts in bankruptcy) to stay proceedings in State Courts. The practice would appear' to be general. Only two cases have come under my observation holding that the Federal Courts do not possess that power. In re, Campbell, 16 Am. L. Reg., 100, and in re. Burns Id, 105, In a note to the case of Schnepf, Id., p. 208, these rulings are critipised and doubted.

Whether the Federal Courts have the power to restrain the creditor or not, the right of the bankrupt -is'clear to have suite stayed pending the question of his discharge, if he proceed Vitljt diligence.

Stay granted as to the defendant who has been declared a bankrupt.

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Bluebook (online)

1 Mich. N.P. 90, Counsel Stack Legal Research, https://law.counselstack.com/opinion/delavergue-v-farrand-micirct10-1869.