Bennett v. Bartlett

The opinion was delivered at the October term, 1851. Fletcher, J. The plaintiff had no claim, which could have been proved in bankruptcy against the defendant, at any time before the date of his discharge. While the plaintiff was in the actual possession and enjoyment of the money which he received for the wire, he could prove no claim, and had no claim against the defendant. If the plaintiff, before he was deprived of the money, had brought a. suit against the defendant, for a breach of his warranty of title, it must have been a good [228] defence, that the plaintiff had sold the wire, and actually had the money for it, and so far as could then be known might always hold the money. The plaintiff surely could not, at the same time, have the money for which the wire was sold, and the like amount in damages against the defendant. Nor could the plaintiff actually have the money for which he sold the wire, and at the same time have the like amount allowed him in bankruptcy against the defendant. While the plaintiff" actually had the money, it could not be known that he would not always hold it; and he could therefore have' no claim to have a-sum allowed him in any form against the defendant, instead of and in the place of this money. The only claim, which the plaintiff now has or ever had against the defendant, is for a sum of money in the place or stead of the money for which he sold the wire. But while the plaintiff actually held the money for the wire, he could have no claim against the defendant, for another sum in the place or stead of that money. If, while the plaintiff held the money for the wire, he could have had another equal sum allowed him in any form against the defendant, he might have obtained double the sum to which he was entitled. While the plaintiff, therefore, hejd this money, he had no claim contingent or otherwise which he could have proved against the defendant. The most the plaintiff could have Droved would have been, that he might possibly, at some future time, if he was deprived of the money, have a claim against the defendant. It was not the duty of the plaintiff voluntarily to give up the money to Barry, and take upon himself the burden of proof to show, in proof of his claim against the defendant in bankruptcy, that he had no title to the wire. The plaintiff could not know, that the defendant had no such title, and could not be required to assume the burden of proving that fact. The defendant cannot be heard to say, that the plaintiff should have assumed, that he, the defendant, did not own the wire, which he assumed to own and which he sold to the plaintiff. The defendant transferred the wire as his own to the plain(tiff, and authorized the plaintiff to sell it, and to receive the [229] money for it-; and it is not now for the defendant to complain, that the plaintiff reposed confidence in him, and believed that he acted rightfully and lawfully in the matter, and in that belief held the money till it was taken from him by the compulsory process of the law. When the plaintiff was deprived of the money, when it was taken from him by law, then and not till then he had a claim on the defendant, to give him other money in the place and stead of the money received for the wire. The plaintiff was not deprived of the money, it was not taken from him by law, till after the defendant’s discharge. The plaintiff in the suit claims of the defendant other money in the place of that which has thus been taken from him ; and this cause of action having accrued to the plaintiff, since the defendant’s discharge in bankruptcy, is not barred by the dis> charge, and judgment must be entered for the plaintiff. Stinemets v. Ainslie, 4 Denio, 573 ; Woodard v. Herbert, 11 Shepl. 358; Bosler v. Kuhn, 8 W. & S. 183; Savory v. Stockings 4 Cush. 607.