May, 1804.

V.

N. Judah.

the bay of Cadiz, she was preparing to go to Algiers. The NEW-YORK, injury she sustained at this time was too trifling to cause any delay, and the repairs of the former injuries being paid, H. Hendricks, I regard as wholly fictitious the difficulty about funds. I neither believe it real, nor that it had any influence in terminating the voyage. My opinion therefore is, that a new trial be granted, not however because the damages are too small, but because the plaintiff is not entitled to recover any thing.

If a house be

taken for a year

before an act of

bankruptcy, & continue in posthe bankrupt

Harman Hendricks against Napthali Judah, ACTION on the case, for the use and occupation of a house. One count was on a parol agreement by the defendant with the plaintiff, to take a house of him, which the defendant afterwards refused to occupy, or pay the rent for The other, money paid, laid out, and expended, to the use session afterwards, he is of the defendant. A verdict having been rendered for the not discharged plaintiff, the question of his right to recover, was reserved from the subsequent rent by for the opinion of the court, on a case which was shortly his certificate.

this.

The defendant applied to a Mrs. Bowne to rent him a house from the first of May 1800, to the first of May 1801. This she refused to do, but said she would let it to the plaintiff, who might underlet it to the defendant. This was accordingly done. In September 1800, the defendant became a bankrupt, and duly obtained his certificate, but the plaintiff never took the house off his hands, though it was for the most part unoccupied, and had, by the courtesy of the defendant, been in some degree occupied by the plaintiff, who paid to Mrs. Bowne the rent for the three quarters due af- • ter the bankruptcy. To recover this, the present suit was instituted, and the sole question was, whether the bankruptcy in September and certificate thereon, was a discharge from the subsequent rent.

Riggs for the plaintiff. Under the circumstances of this case, the plaintiff may perhaps be considered, as a surety for the defendant, paying the debt after the bankruptcy of the principal. In this point of view, the very cause of action would be subsequent. But taking it simply as a matter between landlord and tenant, it is a general proposition, that the latter does not become a debtor to the former, in a sense

D

V.

*Mills v. Aurio'.

lock.

NEW YORK, that would make bankruptcy a discharge, until after the rent May, 1804. falls due. If it be quarterly, then at the expiration of each H. Hendricks, quarter; if annually, then at the end of the year. This N. Judah. principle will be found in Cullen's Bankrupt Law 126. in 1 H. Black. 433,* and 2 H. Black, 319†. The tendency of the cases, is to settle this point, as between landlord and tenant, +Naish v. Tat- because a demand for rent, which was not payable antecedent to a bankruptcy, cannot be proved under the commission. If, therefore, it cannot be proved, it cannot be barred, and the bankrupt continues liable notwithstanding his certificate, which has only a retrospective and not a prospective view. But there is a special count on a parol agreement to use, occupy, and pay, alleging damages by a breach in refusing; surely, a previous bankruptcy, is not a bar to a recovery in an action sounding in damages to be subsequently assessed.

Troup contra. As the defendant rented from the plaintiff, it is a question merely between landlord and tenant. Ant underletting, can never change the mesne tenant into a surety. It is settled, that to an action of debt on a lease, brought after a bankruptcy, for rent subsequently accrued, the certificate is a bar, nay even if it be on the implied cove* That is, be- nant in the reddendum*. A distinction, however, has in cause it is paya- the English books been taken, where the suit is on an express covenant to pay, in which case it is said, the The action is bankruptcy is not a discharge. 1 Saund. 241, 4 D. and E. 94. 1H. Black. 433. The reasoning however, on which the rule is established in the first cases, would equally apply to demise, but on the last, for the bankrupt is as much divested of the posthe enjoyment

ble out of

land, and not

on account of it..

founded not

merely on the terms of the

Co. Litt. 142,a.

field, in Wadham v. Marlow.

Bac. Law

66

of the tenant. session in this, as in the others. The effect of the statute and LordMans- is compulsory upon him, and he is disabled by the act of the law his immediate inability therefore, ought alone to be looked at, and not the remote consequence of an agreement, made concerning land, of which he is divested. "It were infinite," says say's the quaint language of Lord Bacon,† "for the law to judge the causes of causes, and their "impulses one of another, therefore it contenteth itself "with the immediate causes, and judgeth of acts by that, "without looking to any farther degree. If an annuity be "granted, pro concilio impendendo, and the grantee commit "treason, whereby he is imprisoned, so that the grantor

Tracts, 35.

66

H. Hendricks,

V.

N. Judah.

❝ cannot have access to him for his counsel, nevertheless NEW-YORK, May, 1804. "the annuity is not, determined by this non-feasance, yet it was the grantee's own default to omit the treason, 66 whereby the imprisonment grew; but the law looketh not so far, but excuseth him, because the not giving counsel "was compulsory, and not voluntary, in regard to the impri"sonment.' "So here, the law has, against the consent and will of the defendant, deprived him of the means of performing his promise; and shall he be held to it, when the very consideration is taken out of his hands? In Mayor v. Stewart, Yates J. says, "As the act divests him of his "whole estate, and renders him absolutely incapable of per❝forming his covenant, it would be a hardship upon him, "if he should remain still liable to it, when he is disabled. by the act of parliament from performance." By act of law, the very consideration is taken away, and therefore, for want of one, the action is not maintainable. As to its sounding in damages, so does a suit on a promissory note, and yet it is discharged by a certificate: for the debt upon it might be proved, and why not this; as it was a demand growing before the commission, a plain debitum in presenti solvendum in futuro.

66

Riggs in reply-The continued use and occupation after the bankruptcy, creates the consideration for the rent demanded. The cases cited proceed on this ground; if the assignees take possession under a lease, the bankrupt is exonerated, because they are liable; but if they do not, then he continues responsible; and even if they do, he is not discharged from an express covenant, because bankruptcy does not dissolve the contract. But here the contract exists, and the defendant has had a full consideration by enjoying under it.

+Therefore if an annuity be granted by

deed in which there is a cove

nant to pay as it becomes due,

and the annui

Per curiam delivered by Livingston, J. The only ground on which a certificated bankrupt can expect to be exonerated from a demand of this kind, is the hardship of continuing liable af- ty be also secured by a bond, ter a surrender of all his estate, and among the rest, this very an action may property to assignees for the benefit of all his creditors; but be maintained is this the fact? It does not appear by the case. We well nant, for arknow, that a house of this kind, on so short a lease, is not subsequent to worth more than the rent reserved, and (nothwithstanding the the bankruptcy generality of the assignment) is not taken possession of by the was forfeited

on the cove

rears accrued

tho' the bond

thers,

V.

NEW-YORK, assignees. It continues in the bankrupt's occupation, and May, 1804. if so, as we must presume was the case here, such being S. Strong & o- the usual course of things, and the contrary not being found, upon what pretence can he ask an exemption from Z. Smith. this suit? He and not his creditors have derived a benefit before. Cotter. from this property since his bankruptcy. Therefore, he, ell v. Hooke, and not the cstate assigned, should be burthened with the Doug. 97. For a statute which rent, Qui sentit commodum, sentire debet et onus.

vests the estates of debtors in

the debtor from

venant, which

is collateral to the land. Horn by v. Houlditch,

It may be subjoined that the debt being contingent, for in assignees, does case of eviction nothing would have been due, proof of not discharge it would not have been admitted under the commission, an express co- and therefore, unless there remain a liability in the defendant, the plaintiff will be without remedy. Cullen's Bank, Law. 84-126. 3 D. & E. 544, I mean, however, to be understood as determining this cause more particularly on the ground of the defendant's occupying the premises after his discharge, than on any other, and of the total want of proof that the assignees ever took possession of them.→→→ Judgment must be entered on the verdict as found by the jury.

And. 40.

A struck jury will not be granted without affidavit,

tho' the oppo

John R. Livingston against the Columbian Insurance Company.

Bogert, in behalf of the defendants, moved for a struck

site side make jury in this cause, on an acknowledgment from the attorney no objection & of the plaintiff of service of notice of the motion, but this acknowledge

service of no

tice of the motion.

* Vide Ante 1

was not accompanied with any affidavit of the importance or intricacy of the cause.

Per curiam. The court ought to be satisfied that the Vel. 498. Spen- cause is either intricate or important,* and that by affidavit,

cer v. Sampson,

Foot v. Cross- N. B. The court seemed inclined against the granting of

well.

If a defend- struck juries, as a matter of course, on a mere formal affiant before a jus- davit.

tice, rely, in an action of trespass, on his title, he confesses the trespass, &

cannot on mov

ing the cause into this court, plead the gene. ral issue.

Selah Strong and others against Zebulon Smith.

THIS was an action of trespass commenced before a justice of the peace in the county of Suffolk, under the "Act for the more speedy recovery of debts to the valuę "of twenty-five dollars." The defendant justified under a 1 Rev. Law, plea of title. Upon this, proceedings were stayed before the justice pursuant to the tenth section of the act, and

491.

#Ibid 494.

thers,

V.

Z. Smith.

the action prosecuted before the Court of Common Pleas ; NEW-YORK, May, 1804. from thence the defendant removed it by habeas corpus into this court, where he pleaded, 1st. The general issue. 2d. S. Strong & That the closes mentioned in the declaration, were the freehold of the trustees of the freeholders and commonalty of the town of Huntington, and that by their command and direction, he entered. 3d. That the trustees of the freehold. ers of the town of Huntington were seised of the premises, and granted him a lease for a year, by virtue of which he entered and was possessed until the plaintiffs by colour of title turned him out, on whom he again entered, and committed the trespasses complained of. A suggestion of these circumstances, according to an intimation on a former day given by the court, having been entered on the record, an application was now made to compell the defendant to strike out his plea of the general issue, and rely on his title only,

Riggs for the plaintiff. The justification by way of title, is an admission of the trespass. It is only on the strength of this admission that the defendant has been able to take the cause from the jurisdiction before which it was originally brought. He can never therefore be now permitted to contradict what he has thus conceded.

Sandford, contra. The tenth section confines the reli ance on title alone, to the common pleas. There is not a word of this court; when therefore the suit is removed here, it is to be prosecuted according to the rules and prac tice of the tribunal before which it is brought, in the same manner as any other action originating here.

Riggs in reply. The intent of the statute was to confine actions for trifling damages to the inferior court: In the common pleas, the production of the defendant's plea coun tersigned by the justice, would have been conclusive against the general issue. The same reason applies now. Under the statute the defendant has a right to elect, to rest on his innocence, or insist on his title. Having made his election, he cannot vary the right given by this election to the plaintiff of considering the trespass admitted. The delay alone is against it. A witness may die. But we ground ourselves on the spirit and object of the act.

Per curiam. The construction of the act no doubt is, that when a defendant, sued for a trespass before a justice, relies