17 F. Cas. 455 | D. Mass. | 1870
I have already more than once decided that a debtor who is under arrest at the time his petition in bankruptcy is filed, cannot be relieved on habeas corpus. I came to this conclusion with reluctance; but it seemed to be the necessary construction of section 26, and the rule 27 of the supreme court, founded upon it, that the benefit of the writ was only for bankrupts arrested after they became such, —and I have not changed that opinion.' [It may be that congress hesitated to interfere with a consummated arrest under the apprehension that the debt might thereby be discharged and not be revived if the bankrupt should fail to obtain his discharge in bankruptcy, or it may be that the case was overlooked.]
I do not mean to be understood as throwing any doubt on the propriety of the decision which upholds the constitutionality of the law. The only question for me is whether the filing of such charges by a judgment creditor is a new suit which ought to be stayed under section 21 of the bankrupt act [of 1867 (14 Stat 526)], which prohibits a creditor whose debt is provable under the act from prosecuting to final judgment any suit at law or in equity therefor, against the bankrupt, and requires ‘‘any such suit or proceeding” to be stayed to await the determination of the court in bankruptcy on the question of the discharge. It is argued with much force that “any such suit or proceeding” includes something more than any suit at law or in equity, and will cover any legal mode of enforcing payment of a provable debt. And I am very much inclined to think that this is so, and that a creditor who should undertake to prosecute a proceeding in admiralty or to seize on execution after-acquired property of the bankrupt, would be within the scope, as he clearly would be within the mischief of this section. If this be so, no creditor holding a provable debt can prosecute any proceeding for its recovery pending the bankruptcy. But the difficulty here is that all the original action is on the part of the debtor. He was under arrest before the proceedings, and the law has seen fit to provide that he shall not be released from such an arrest by habeas corpus. It seems to me to follow that equity cannot relieve him, because equity, in such a case, follows the law, and never undertakes to relieve against lawful arrests. Then the debtor applies for the benefit of the state law, and that unfortunately gives relief only in certain cases. If the debtor can show a compliance with that law he is discharged, otherwise not. And the charges of fraud, though declared to be a sort of suit at law and ordered to be conducted accordingly, are incidental, not to the recovery of the debt, but to the attempt of the debtor to take the benefit of the statute. They are, say the supreme, court of Massachusetts, “intended to be used as an answer or plea in bar to the debtor’s application for the benefit of the act ... No such charges can be made as an independent distinct substantive process against the debt- or. They are only incidental to the previous proceedings commenced by him to obtain his release from confinement.” Parker v. Page, 4 Gray, 533. If this be the true nature of these charges, it is not a suit or proceeding to recover a debt, but a counter plea to prevent the release of the person of the debtor lawfully in arrest, and I cannot hold, that it ought to be stayed, because I should thereby give the debtor the benefits of the Massachusetts act, without its disadvantages, and be in effect saying that the creditor might oppose his taking the oath, if he would do it in a way which should be entirely agreeable to the debtor. The bankrupt having before his bankruptcy given a recognizance to take the poor debtor’s oath, or surrender; and the arrest not being avoided by the bankruptcy, I have no right to avoid it indirectly by requiring the proceedings under it, and which are instituted at the debtor’s instance, to be conducted in any particular manner, or to be stayed in part, for his further advantage. The filing of the charges does not appear to be a suit or proceeding for the recovery of the debt, more than would be the renewal of the execution, or the char
I do not say that the magistrate ought not to admit him to take the oath notwithstanding the charges. I have no right to meddle with this. There appears to be some reason to suppose that the justices of the circuit ■court may entertain a different opinion upon this question, and I need not say that I shall ■cheerfully acquiesce in any rule they may lay down. Until they have decided the point I must act upon my own carefully considered opinion. The answer of the defendants brings up the whole merits of the case, and my decision is intended to be final in this ■court, so as to allow of an appeal. Bill dismissed.
[The decree in this ease was affirmed by the ■circuit court upon appeal. Case No. 9,641.]