Lansing v. Prendergast

9 Johns. 127

Opinion

Per Curiam.

There is no distinguishing this case, in principle, from that of Frost v. Carter. (1 Johns. Cas. 73.) The rent now sued for had not accrued at the time of the discharge. Rent afterwards to accrue and grow due, could not, in any sense, be considered as a present debt, at the time of the insolvent’s assignment, and for which the plaintiff might have become a petitioning creditor. It must be debitum in presentí, though it be solvendum in futuro. A discharge under the English acts of bankruptcy, or of insolvency, has never been considered as a bar to an action of covenant on an express covenant to pay rent. (1 H. Bl. 433. 4 Term Rep. 94. Auriol v. Mills, 8 East, 318. S. P. Cotterel v. Hooke, Doug. 97. Marks v. Upton, 7 Term Rep. 305.) The words of the bankrupt act of 7 Geo. I. c. 31. are nearly the same as those in our insolvent law. The recovery before the justice was no bar to rent not included in that suit. Each sum of annual rent was a distinct debt.

Judgment for the plaintiff.