Rogers v. Wentworth

58 N.H. 318

• Court: Supreme Court of New Hampshire
• Decided: June 5, 1878
• Status: Published

Opinion

Foster, J.

When a bankrupt’s discharge has not been refused, and the bankruptcy proceedings have not been determined without a discharge (Act of June 22, 1874), a creditor proving his claim in bankruptcy cannot maintain a suit therefor against the bankrupt, but is deemed to have waived all right of action against him. U. S. Rev. St., s. 5105. His right of action is suspended by the government. The statute providing, not that his suit shall be stayed, but that he shall not be allowed to maintain it, does not distinguish between a suit brought before and a suit brought after his proving the claim in bankruptcy. The running of the statute of limitations is suspended while the right of action is suspended by the government. Hanger v. Abbott, 6 Wall. 532, 542; Braun v. Sauerwein, 10 Wall. 218; Ross v. Tones, 22 Wall. 576. The defendant is entitled to judgment, without prejudice to the plaintiff’s right to bring another action when his right of action is not barred or suspended by the proceedings in bankruptcy.

Case discharged.

Smith, J., did not sit.