Sylvester v. Danziger

The question submitted is whether, upon the facts stated in the plea, the plaintiffs have participated in the insolvency proceedings of the defendant, so as to conclude them by his discharge.

The defendant had made a cessio bonorum in the insolvent court of the state, and has since been discharged. What the plaintiffs are alleged to have done is — First, to bring a suit against the syndic of the estate to enforce a vendor’s lien upon some goods sold by them to him; and, secondly, to go into the insolvency court, and lake a rule to have certain goods delivered to them, which they alleged were their property, and not included in the cession.

In the case of Hyde v. Stone, 20 How. 170, it was held that bringing in the state court a suit which was under the laws of Louisiana trans*2ferred to the insolvency court, in which defendant’s insolvency proceedings were then pending, and cumulating that suit with those proceedings, was not a participation in the insolvency proceedings in such a manner as constituted an assent. Prof. Parsons (2 Pars. Cont. 536) states the test to be “whether the creditor has assented to the relief or discharge of the debtor expressly, or by some equivalent act, as becoming a party to the process against him under the law, taking a dividend and the like.”

In this ease the question is, “Did the creditor do anything, or derive any advantage, under or by virtue of the insolvent proceeding?” I think he did not. He followed up his rights precisely as he could have done without any insolvent law. lie proved no claim. He received no dividend. His condition was in no respect changed from what it would have been if there had been no insolvent proceedings. He cannot be held to have impliedly assented to defendant’s discharge.

Let the exception be overruled.