Bailie v. Wallace

The opinion of the court was delivered by Rogers, J. The condition of the bond prescribed by the act of the 16th June 1836, for the relief of insolvent debtors is, that the debtor shall appear at the next term, &c., and then and there present his petition, &c., and comply with the requisitions of the law, and abide all the orders of the court. Although it is not pretended that the debtor filed a petition, yet it is contended that the defendant is discharged because he was prevented from complying with the condition of his bond by the act of God, having died before the end of the next term. The counsel for the creditor insists, he was bound to file his petition at least fifteen days before the December term, so as to enable him and his creditors to have a hearing before the court on the first day of the term. The court of common pleas overruled this construction of the act, and decided (and we do not see how they could have come to any other conclusion) that the party had the whole of the next term to file his petition, viz. until the 26th October, when the court rose,, and that as the insolvent died on the 20th October, the bond was discharged. 6 Watts 503. [230] It seems no general rule has been made, as is contemplated by the .tenth section of the act, and the court may make an order in each case, appointing the time of hearing, taking care, as a matter of course, to have the requisite notice given to creditors. If the court should make a general rule on this subject, as perhaps it is their duty to do, it would be well for' insolvents to consider whether it would hot in most cases be advisable to file their petitions in time, to enable the party to have a hearing at the time fixed by the rule. This, in practice, would obviate all the inconveniences which are suffered to arise from allowing the insolvent to withhold his petition until the last day the court is in session. It must be observed that this applies only in those counties where there are no limits by law to the term, as in this county and in the county of Philadelphia. Where a period is fixed by law for the session of the court, it is not intended to say that the petition may be presented after that time, although the court may have b.een adjourned for a special purpose. The case of Henderson v. Allen, 1 Dall. 160, was a regulation of the practice for the convenience of the court, and does not apply to this case. It would seem from the testimony, that there has been no regular nor settled practice in the courts of Allegheny which can affect this question. Judgment affirmed.