Elias Alexander versus L. Follet, administrator

Elias Alexander versus L. Follet, administrator.

A note, payable at an uncertain future day, was laid before a commissioner upon an insolvent estate, and rejected, because it was not yet due and payable. An appeal was claimed, and the declaration filed under the statute, stated the making of the note, that it was laid before the commissioner, and ought to have been allowed, according to its just value, yet the commissioner rejected the same, by reason of which an action had accrued, &c.

It was held that the declaration was sufficient.

The estate of John Follet was administered in the insolvent course, and this was art appeal from a decision of the commissioner, rejecting the plaintiff’s claim against the estate.

The declaration filed by the plaintiff, according to the direction of the statute, was as follows:

For that the said John Follet, at said Keene, on the 13th April, 1798, by his note of that date, by him subscribed, for value received, promised the plaintiff, to pay him or his order, the sum of $122,11, at the decease of of the wife of the said John Follet. And the plaintiff avers that the said wife of the said John Foliet is still in full life, and that during the pendency of the commission of insolvency upon the estate of the said Follet, he presented the said note to the commissioner, duly appointed to receive, examine and allow the claims against said estate; and that it was the duty of the said commissioner to have allowed the said note, according to its just value, yet the said commissioner refused to allow the same, by reason of which an action has accrued to the plaintiff, to have and recover the same.

To this declaration there was a demurrer, and joinder in demurrer.

Wilson, for the plaintiff,

relied upon Eaton v. Whitaker, 6 Pick. 465.

Joel Parker, for the defendant.

The demand, in this case, is not yet due. When the parties have made their contract, they are bound, and must abide by it, and the legislature have no more power to authorize commissioners to allow a demand not due, than they have to authorize a suit and judgment on a demand not due, in the life time of the promissor.

This would alter the contract on a certain contingency, to wit, the death of the promissor; and the legislature might as well extend the credit a year, as to make a demand payable a year, or any other time, previous to the period on which the parties have agreed-

If the legislature possessed such power, the statute of 1791, which was in force when this contract was made, gives no such authority, and the statute of 1822 cannot be applied to this case, for that would be to give it a retrospective operation. It would create a new obligation, and impose a new duty. On this point, we refer generally to 3 N. H. Rep. 473, Woart v. Winnick; 2 Gallison, 105; 7 Johns. 502; 6 ditto, 101; 3 Dallas, 391.

The commissioner further considered, that this was a demand payable on a contingency, and therefore not within the last statute, even if it had been made since that statute was passed.