2 Denio 570 | N.Y. Sup. Ct. | 1845
The respondent by his judgment acquired a lien upon the appellant’s real estate, and by the bill filed upon the return of an execution unsatisfied he obtained a lien upon his personal property and things in action. This was in 1838, and long before the discharge in bankruptcy, and the lien is protected by the express provisions of the bankrupt act. (§ 2, second proviso.)
The cause for which the fine was imposed, was the criminal contempt which the appellant was adjudged to have committed in disobeying the injunction. (2 R. S. 278, § 10.) The punishment for such an offence, is by fine or imprisonment or both, according to the aggravation of the case; and where a party has suffered by the misconduct which constitutes the offence, the fine is to be paid to such party. (2 R. S. 538, § 20 to 22.) It may be true that if the debt had been paid subsequently to the violation of the injunction, no punishment, or only a nominal fine could have been imposed. But there has been no actual payment of the debt. A bankrupt discharge, though it may deprive the creditor of all remedy for his debt, where it is not protected by a lien or collateral security, is not payment or evidence of payment; and it does not lighten the injury which the respondent has sustained by the defendant’s contemning the remedial process which had been issued for the purpose of recovering the original demand. The proceeding after the attachment issued was for a criminal offence, and although the respondent
Lott, Senator. Although the bankrupt discharge may enure to the satisfaction of the debt, yet that is not material, inasmuch as the remedy sought by the attachment was for a wrong done and not to recover the original debt. The violation of the injunction created new rights arising out of that act, of such a character as not to admit of their being proved under the bankruptcy, and which cannot therefore be effected by the discharge. In The People v. Spalding, (10 Paige, 284,) it was held that a fine imposed for similar misconduct was not extinguished by a bankrupt discharge; and that decision has been affirmed in this court. The principle involved in that case is the same as in the one now before the court. If a fine which to some extent partakes of the nature of a debt is unaffected by a subsequent discharge, I do not see how such discharge can be held to operate as a dispensation of the offence itself. I am for affirming the order appealed from.
Barlow Senator. The order imposing the fine assumes that-there was an existing debt due the respondent, amounting with interest and costs to $706, and that this debt was lost by the act of the defendant in assigning his property in disregard of the injunction, and it attempts to reinstate this debt as a fine by way of substitution for the original indebtedness. If the debt had oeen paid in money after the commission of the alleged contempt, instead of being extinguished by the operation of the bankrupt law, no one would think of enforcing the attachment to an extent which would make it a means of again collecting the debt so paid; and I can see no sound distinction as respects this case Detween actual payment and a discharge which exonerates the debtor from the obligation to pay.
The debt cannot be considered as kept on foot to preserve the
On the question being put “Shall this order he reversed?” the members of the court voted as follows:
For reversal: Senators Barlow and Hard.
For affirmance-: The President, Mr. Justice Jewett, and Senators Backus, Beekman, Beers, Bocicee, Burnham, Corning, Denniston, Emmons, Folsom, Hand, Johnson, Jones, Lott, Mitchell, Porter, Scovil, Sedgwick, Smith Talcott and Wright—22.
Order affirmed.
