Hayton v. Wilkinson

11 F. Cas. 917

• Court: U.S. Circuit Court for the District of Maryland
• Decided: June 15, 1808
• Status: Published

Opinion

CHASE, Circuit Justice.

This is a question about which much diversity of opinion prevails, and I understand that different decisions have been made in the different states. It is a point which is of great consequence to foreign creditors particularly, and therefore it ought to receive a more solemn deliberation than can be had in a mere side-bar motion. The party should have every opportunity to put facts in issue, and courts will generally endeavor to have facts submitted to a jury. A discharge may be obtained in an improper manner. The certificate is not conclusive. It may be inquired into. This very case shows the necessity of inquiring into it. The defendant was bound to give a true list of all his creditors, but we do not find the plaintiff’s name among them. Justice requires that the property should be divided among all the creditors; but a foreign creditor is not within the law. He cannot claim a dividend, nor can he even come in to allege fraud in prevention of the discharge. Is it honest, then, that a plaintiff so circumstanced should be precluded from every means of recovering a debt? Let the defendant plead this discharge, if he wish to rely upon it. I certainly cannot consent to enter an exoneretur.

HOUSTON, District Judge,

thought it unnecessary to give any opinion on the effect of the record of the discharge. The proper course would be to bring it before the court-under a plea. Upon this ground alone he agreed with the chief justice, to overrule the motion.