Trafton v. Hill

15 A. 64, 80 Me. 503, 1888 Me. LEXIS 105

• Court: Supreme Judicial Court of Maine
• Decided: August 7, 1888
• Status: Published

Opinion

Libbey, J

On the second day of April, 1880, the defendant was duly declared an insolvent debtor, and his estate wTas settled in insolvency; but no di vidend was made, and no discharge granted to him.

All the notes and the check in suit had been overdue nearly three months at the date of the defendant’s insolvency, and the period of limitation had commenced to run. By the facts agreed it appears that the plaintiffs proved the claims in suit in insolvency, but it does not appear when they were proved. The action was commenced May 12, 1886. The defendant relies on the statute of limitation, and the only question is whether the action is barred. We think it is.

Nearly six years and four months had elapsed between the maturity of the last note and the commencement of the action ; but it is claimed by the plaintiffs, that there must be deducted from that period a reasonable time for the defendant, in the exercise of due diligence, to procure a decree of the court of insolvency on the question of his right to a discharge; and that would reduce the time to less than six years.

The statute relied on by the plaintiffs to support their contention is as follows : "No creditor shall commence or maintain any suit against the insolvent debtor upon a claim or demand which he has proved against such debtor in insolvency until after a discharge has been refused such debtor; provided, that such debtor proceeds with reasonable diligence to obtain such discharge,” R. S., c. 70, § 51. Prior to the act of 1887, c. 118, there was no statute which, in terms, suspended the running of the limitation by reason of insolvency.

It is a general rule that, when the statute of limitation has commenced to run no subsequent disability will interrupt it, unless within some exception created by the statute. Eager & ux. v. Comm. 4 Mass. 182; Mercer’s Lesser v. Selden, 1 How. 37 ; 2 Green, on Ev. § 439.

It may well be doubted if, in an action at law, the court has the power to suspend the running of the limitation, after it has commenced, on account of a disability not within an exception named in the statute. Eager & ux. v. Comm. and Mercer’s Lesser v. Selden, supra ; Phillips v. Sinclair, 20 Maine, 269 ; Baker v. Bean, 74 Maine, 17 ; Rowell v. Patterson, 76 Maine, 196. But we do not deem it necessary to so decide in this case. If it has such power it must be for some disability created by law which interrupts and suspends the right of the plaintiff to commence his action. Swan v. Littlefield, 6 Cush. 417; Collester v. Hailey, 6 Gray, 517; Stoddard v. Doane, 7 Gray, 387 ; Richardson v. Thomas, 13 Gray, 381.

No such disability is created by the statute. The creditor is disabled from commencing or maintaining an action "upon a claim or demand which he has proved against such debtor in insolvency.” He is not required to prove his claim. If he does not he may commence or maintain his action subject to the power of the court, in its discretion, to continue it pending proceedings in insolvency. Schwartz v. Drinkwater, 70 Maine, 409. He has a right to prove it, and if in exercising that right he deprives himself of his other right to commence an action against his debtor, it is the result of his own act. A contract made before the insolvency statute was enacted is not subject to its provisions. Still if a creditor, holding such a contract, proves it against his debtor in "insolvency and takes a dividend, he subjects his contract to all the provisions of the act. Foyler v. Clark, 80 Maine, 237. The same principle applies to the point under consideration.

But the case is here on an agreement of facts by the parties. This court cannot assume nor infer a fact not agreed upon by the parties. By the facts agreed, it does not appear when the plaintiffs proved their claims. Under the statute they had a right to prove them any time before final dividend. No dividend was made. They may not have proved them till long after the lapse of a reasonable time in which the debtor should have proceeded to obtain his discharge, so that there may not have been any time when the plaintiffs could not have commenced their action.

Judgment for defendant.

.Peters, C. J. Walton, Virgin, Foster and Haskell, JJ., concurred.