14 F. Cas. 474 | S.D.N.Y. | 1867
This is an application to discharge from imprisonment the bankrupt in this case, who is confined in close custody, in Ludlow-Street jail, by virtue of an arrest made by the sheriff of the city and county of New York. The bankrupt was declared a bankrupt by this court, on the 16th of November, 1867, on the petition of one of his creditors. By the order of adjudication, the case was referred to one of the registers in bankruptcy, Mr. Isaiah T. Williams; and Mr. Williams, in pursuance of the authority granted by the bankruptcy act, issued an order, under the twenty-sixth section of the act, according to form No. 45 of the forms in bankruptcy, requiring the bankrupt to attend before him, to submit to an examination, op the 6th of December, 1867. After the bankrupt had been served with this order, and a few moments before the hour appointed for the examination, and while the bankrupt was on his way to the office of the register, and was in the same building in which the office of the register is situated, with the order for such examination upon his person, he was arrested by the sheriff, upon an order of arrest issued as mesne process in a civil suit in the supreme court of the state of New York; and he applies now to this court to be discharged from his imprisonment, upon the ground that he was arrested while he was on his way, under the process of this court, to be examined thereunder. There is no statute of the United States, as there is of the state of New York, giving protection to a witness from being arrested in a civil suit, while he is in process of obeying a subpoena, issued from a competent court, for his examination as a witness. I have heretofore decided, that a
There is another ground urged in this case for the discharge of the party from imprisonment, but which I do not regard as sufficient ground for his discharge. He claims to be discharged under the last clause of the twenty-sixth section of the bankruptcy act, which provides, that “no bankrupt shall be liable to arrest during the pendency.of the proeeed-ings in bankruptcy, in any civil action, unless the same is founded on some debt or claim from which his discharge in bankruptcy would not release him.” The thirty-third section of the act provides, “that no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be disehaz-ged under this act.” The cause of action set out in the complaint in the suit in the state court, in which the party was arrested, is simply a complaint for the recovery of five hundred and sixty dollars for goods sold and delivered to him, and the summons is a summons for a money demand on contract for five hundred and sixty dollars. There is no allegation in the complaint that the debt was fraudulently eon-tracted. nor any averment, except that so much money is due for goods sold and delivered; but the affidavits upon which the party was arrested set forth facts which show a fraudulent purchase of the goods, and a fraudulent contracting of the debt, and make out a case where the debt is one created by the fraud of the bankrupt in making fz-audulent representations as to his solvency and pecuniary means and ability at the time he purchased the goods. If these averments had been contained in the complaint, there would have been no question in the case, but they are only contained in the affidavits on which the order of arrest was granted; and the ground ui-ged for the discharge of -the party is, that, under this last clause of the twenty-sixth section of the act. it is neees-sary that the action should be founded upon the debt from which the discharge in bank-ruptey would not release the party. It is clear that, upon the face of the papers in this case, this debt was created by the fraud of the bankrupt. Being such a debt, it is one that will not be discharged by his discharge
The bankrupt is, however, entitled to be discharged in this case, because he was unlawfully arrested, in violation of his privilege, and of the authority of this court. The moment that that privilege ceases, he will, of course, be liable to be rearrested, [and if he shall be rearrested, and shall deny that this debt was created by fraud, or that it is a debt for which lie is liable to arrest, this court will, on a proper representation being made to it, order a reference to inquire into the facts, and will decide whether it is or is not such a debt.]
[From 1 N. B. R. 193.]