96 F. 86 | D.N.J. | 1899
On the'26th day of June, 1899,. John M. Van Orden was adjudged a bankrupt by this court upon his own petition, and on that day an order was entered restraining Margaret J. Van Orden, his wife, from prosecuting a suit brought by her agáinst the said bankrupt, and then pending in the court of' chancery of New Jersey. The claim which Mrs. Van Orden seeks to enforce in said suit arises under the following circumstances: Prior to the year 1897, Mr. and Mrs. Van Orden were residents of.
“(a) Debts oí the bankrupt may be proved and allowed against his estate which are (1) a fixed liability, as evidenced by a judgment or an instrument in writing absolutely owing at the lime of the filing of the petition against him,*88 whether then payable or not, with any interest thereon which would have been recoverable at the date, or with a rebate of interest upon such as were not then payable and did not bear interest.”
As used in this act, the word “debt” differs from the same word as used in the bankruptcy acts which have preceded it, in that it has not the limited or restricted meaning which has been given to it in text-books. The act itself defines the word, and carries it beyond “a sum of money due by certain and express agreement,” and declares that for the purposes of the act it shall include any “fixed liability evidenced by judgment.” In 8 Am. & Eng. Enc. Law (2d Ed.) p. 986, it is stated that “the words ‘debt’ and liability’ are not synonymous * * * as applied to the pecuniary relations of the parties. Liability is a term of broader significance than debt. * * * . Liability is responsibility.” In Joslin v. Spring Co., 36 1ST. J. Law, Í45, liability is defined to be “a state of being bound or obliged in law. or justice.” “It signifies that condition of affairs which gives rise to an obligation to do a particular thing to be enforced by action.” Haywood v. Shreve, 44 N. J. Law, 94. The support and maintenance-of a wife by the husband is an ever-recurring liability from which he cannot, by any act of his, be freed. It is an obligation founded in law and justice, which may be enforced by action. Until the necessity for its enforcement arises, the extent of this liability is vague and uncertain; but when the aid of the court has been invoked, and it awards alimony, it thereby determines the amount of the husband’s liability, and by its judgment or decree requires the-amount so fixed to be paid the wife for her maintenance and support. “Erom that time the husband is, in effect, a debtor, owing his wife the amount adjudged and determined in the decr'ee.” Wetmore v. Wetmore, 149 N. Y. 521, 44 N. E. 170. That which before was a mere liability now becomes a debt. The judgment establishes the indebtedness, and makes fixed and certain that which was before uncertain, and becomes the evidence of the debt which it creates. Black v. McClelland, 12 N. B. R. 431, Fed. Cas. No. 1,462; Zimmer v. Schleehauf, 115 Mass. 52; Crouch v. Gridley, 6 Hill, 250; Nichols v. Dissler, 31 N. J. Law, 473. It follows from what has been said that the debt which Mrs. Yan Orden seeks to recover from the bankrupt in her chancery suit is a liability of the bankrupt, the amount of which is fixed and determined and evidenced by the judgment of a court. As such it is a provable debt in bankruptcy, and she should be enjoined from its further prosecution. The rule to show cause will be discharged.