109 Pa. 145 | Pa. | 1885
delivered the opinion of the court,
Our process of attachment execution is necessarily against the defendant in .the judgment as well as the garnishee. If duly served it is the duty of each, respectively, to appear and present his defence, if he has any. Two separate and distinct issues may thus be formed, one as to the defendant in the judgment and the other as to the garnishee. The former may plead payment, or any other matter of defence, to the judgment, that would be available on a scire facias to revive the Same. In this case issue was joined on special plea of defendant below, setting up his discharge in bankruptcy as an
It was virtually conceded in the court below that if it were not for the waiver the discharge in bankruptcy would be a complete defence to the proceeding. The question therefore is, did the waiver above quoted keep alive defendant’s personal obligation to pay the debt, notwithstanding his discharge as a bankrupt? The learned judge, considering the waiver effective for that purpose, substantially instructed the jury that it was in the nature of a covenant, on the part of defendant, not to interpose his discharge as a defence either to the note or the judgment in, which it was merged; and, therefore, directed a verdict in favor of plaintiff for the balance claimed to be due. If this construction is unwarranted, the error was radical and the judgment must be reversed.
The power delegated to the general government to establish “uniform laws on the subject of bankruptcies throughout the United States” is grounded on considerations of public policy, supposed to be promotive of the greatest good of the greatest number rather than the strictly personal benefit of
But, aside from this, the waiver was not interposed in time. When defendant below applied for bis .discharge under the bankrupt law, all his creditors, including the plaintiff, were notified and had an opportunity of objecting to his discharge ; but no objection was interposed, and the court having exclusive jurisdiction of the subject ordered his discharge. That absolved the bankrupt from all debts provable against his estate and claims existing on the day his petition for adjudication was filed. The validity of that decree cannot now be questioned. The matter is res adjudieata and cannot be reviewed in this collateral proceeding.
For the reason that the waiver is contrary to public policy and therefore void, and for the further reason that the order of discharge in bankruptcy is absolutely conclusive of any question that could have arisen on a waiver given in anticipation of bankruptcy, the several assignments of error are sustained.
Judgment reversed.