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empted under these laws to an amount not exceeding $300 in each

case.

CADWALADER, D. J.—The opinion of the learned assessors appears from proceedings of the registers, and of assignees who were lawyers, to coincide with prevalent views of members of the legal profession in the state. I fully concur.

In these cases, therefore, the respective exemptions are sustained.

In Erben's Case several questions pre tent: Chambers v. Spencer, 5 Watts 404, sent themselves for consideration, one 409. only of which, by the suggestion of And this was probably one of the reaCADW ALADER, J., was argued before sons why the court refused to hear arguand decided by the judges. These ques ment upon the point until the second tions are as follows:

question had been disposed of. If the 1st. Was the policy in question the policy, however, once became vested in property of Mr. or Mrs. Erben ? Mrs. Erben it could hardly be contended

2d. Supposing it to have been Mr. that the payment of some of the premiums Erben’s, was it not exempt under the by Mr. Erben, after his insolvency, diBankrupt Act by virtue of the Acts of rested her interest and rested it in him. Assembly of Pennsylvania of 9th April There may have been a right of action 1849 or of 8th April 1859 ?

by Mr. Erben's assignee against Mrs. 3d. If not exempt by virtue of either Erben for money paid to her use; and of these acts was it not exempt by the in a judgment obtained against her, perAct of April 15th 1868 ?

haps, her interest in the policy could be 1st. It is conceded that at the time the attached : Girard Fire Ins. Co. v. Fields, policy was taken out Mr. Erben was sol- 9 Wright 129 ; Mills v. Auriol, i vent and so continued for about nine Smith's Lead. Cases 910; Godsall v. years, during which time he paid all the Boldero, 2 Id. 292; Dalby v. Ins. Co., premiums falling due. (After that time Id. 297. he paid part of them only; the remain 2d. Was the policy excepted from the der being paid by Mrs. Erben out of operation of the 14th section of the money given to her by friends.) That a Bankrupt Act, which gives to the asman may convey property to his wife signee the property and rights of the whilst he is solvent, provided there is no bankrupt, but excepts from the operation intention on his part to defraud his cre of this section the " household and ditors, may be considered as settled in kitchen furniture

* and such many of the states ; and by the decisiong other property as is exempt from of the Supreme Court of the United levy and sale upon execution or other States it is valid, at least, as to subse- process, or order of any court, by the quent creditors. See Story's Eq. Jur. laws of the state in which the bankrupt ?? 359 (n.), 428 ; Posten v. Posten, has his domicil at the time of the com4 Whart. 27; Sarten v. Wheaton, 8 mencement of the proceedings in bankWheaton 247.

ruptcy to an amount not exceeding that But this being admitted it is not the allowed by such state exemption laws in province of the court, but of the jury, force in the year 1864.” The Act of to say whether there is a fraudulent in- Assembly of Pennsylvania of April 9th

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of any

1849 provides that * property his claim. On April 14th 1851, the to the value of $300

“Widows' Act” was approved, whose debtor shall be exempt from levy and language and general purpose was the sale on execution or by distress for rent. same as that of the Act of 1849; and The act then goes on to provide a man in 1860 the Supreme Court held that ner of appraising the property which the under that act “the widow of a decedent ** debtor may elect to retain.” The may elect to take $300 as against the early decisions of the Supreme Court creditors of her husband, out of any upon the construction of the term “pro- money or evidence of debt belonging to perty" in this act were very strict, and the estate ; and in such case there is no declared “ money,” among other things, necessity for an appraisement:" Larrinot to be included within it: Hammer v. son's Appeal, 12 Casey 130. Frees, 7 Harris 255 (1852); Knabb v. It may be noticed, however, that the Drake, 11 Id. 489 (1854).

cutors.

widow in this case chose promissory notes, It was also said that nothing would and after selecting them the money for come within the terms of the law that which they called was paid to the exedid not require or was not susceptible of

But the evident liberal tendency appraisement; it being required that the of the Supreme Court in construing the whole law should be construed together. law of 1849 seemed insufficient to satisfy In 1857, however, the court held that, the legislature, the early decisions not "Where the real estate of a debtor is being yet overruled, and they therefore seized and sold under a judgment ob- passed the Act of 8th April 1859, which tained on a mortgage given for the extended to the class of persons named balance of the purchase-money of such in the Acts of 1849 and 1851, the right real estate, and before the sale the debtor to exempt“ bank notes, money, stocks, notifies the sheriff that he claims the judgments, or other indebtedness to such benefit of the Exemption Law of 1849, person.” The question then was, in and desires to have an appraisement this case, whether the term “property," made, such debtor is entitled to the in the Act of 1849, or the term “ inbalance of the proceeds after the pay- debtedness," in the Act of 1859, inment of the mortgage-debt and costs, it cluded a policy of life insurance. not exceeding $300, in preference to The court have not given the reasons judgments obtained for debts contracted upon which they decided it to be “ prosince July 4th 1849 (the law having perty," but it can hardly be doubted that provided that no debts contracted prior the liberal tendency of the Supreme to that date should be affected by the Court in its late decisions in construing act). Armstrong, J., remarked, in those acts and the evident liberal intent the opinion of the court delivered by of the legislature, as showed in the Act him, that the law " should receive a con of 1859, induced them to so extend the struction farorable to the benevolent object term. It has been said that “property'' of its enactment,” that being “not only in a will includes every species of profor the benefit of the debtor but for his perty, is a nomen generalissimum, ' and family:" Hill v. Johnson f. Park, 5 comprehends all earthly possessions :" Casey 362.

Rosetter v. Simmons, 6 S. & R. 455. BLACK, C. J. (in 1852) had said it Although this would be a very comshould be strictly construed because, prehensive definition to give the term in among other reasons, it was in deroga- the statute in question, it yet shows how tion of the common-law rights of the comprehensive a term it may be held to creditor to take his debtor's property for be where the intent is manifested by

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concurrent circumstances. It was con- policies of life insurance or annuities tended upon argument, also, that the upon the life of any person which may policy was an “indebtedness" within hereafter mature and which have been the meaning of the Act of 1859-a de- or shall be taken out for the benefit of, bitum in presenti solvendum in futuro. It or bonâ fide assigned to the wife of such has been held in England that a life person

shall be rested in policy will pass under a will by the term such wife

full and clear from " debentures and debts;" Lloyd 8: all claims of the creditors of such perGould, Cases temp. Sugden 289–294 ; son.” If, therefore, the value of the Reynolds on Life Insurance 173.

And policy taken out by a husband for the although the Chancellor said he did not benefit of his wife does not exceed the wish to be considered as deciding the 66 amount” which was exempted by the "abstract point” that a life policy is a state laws in force in “1864," it would

debt,” the reasoning is very strong in seem that it might be exempted under support of this view.

this later act ; even if the title to the Muny detinitions of “debts,” too, policy were vested in the husband at the may be found in the books sufficiently time he was declared bankrupt.

In comprehensive to cover a life policy. other words, the state laws exempting See Bouvier's Dictionary, Debt; Gray property from levy and sale, may be v. Bennett, 3 Met. 522, 526 ; 1 Bell changed with reference to the articles Appeal Cases 295.

exempted if no change is made with reAnd the text-books on insurance and ference to the money value of the exempon bankrupt law speak of policies of life tion. The difficulty in Mr. Erben's insurance continually as “ debts” and case with reference to this point was,

contingent debts :” Shaw's Ellis on that the Act of 15th April 1868, had Insurance 299 ; Cooke's Bankrupt Laws been passed after he had been declared 190.

bankrupt and the title to the policy, if As was suggested above, it is believed, in him at that time, might be considered too, that it would be the subject of an as at once vested in his assignee so that attachment execution : Lancaster Bank no subscquent act of the legislature could v. Stouffer, 10 Barr 398; Girard Fire take it out of him ; for the Bankrupt Ins. Co. v. Fields, 9 Wright 129 ; Ja Act provides “ That the foregoing exhon v. Kunkle, 14 Id. 216; Wills v. ceptions shall operate as a limitation duriol, i Smith's Lead. Cases 910.

upon the conveyance of the property of If this be true, it is a strong circum- the bankrupt to the assignee; and in no stance in favor of its exemption as it case shall the property hereby excepted would seem to be brought within the

pass to the assignce, or the title of the clause 56 exempt from levy and sale on

bankrupt thereto be impaired or affected execution,” which was at first said to by any of the provisions of this act.” be necessary, though the late decisions If the title had vested in the assignee, are less strict. But a very important therefore, it would require a very liberal point upon the general subject is whether construction to hold that it might be it is not exempted by the Act of 15th taken out of him by a subsequent act of April 1868, which provides that " all the legislature.

I. S. S.

United States District Court.District of Oregon.

Matter of ROBERT SUTHERLAND, A BANKRUPT.

A judgment for a fine imposed as a penalty for crime is not a debt within the meaning of the Bankrupt Act, and not being included in the special provisions allowing certain claims to be proved as debts, it cannot be proved against the estate of a bankrupt.

The state of Oregon proved a debt against the estate of the bankrupt, amounting to $1394.46. Upon the motion of the assignee, the claim was set down for examination before the court.

From the evidence and admissions of the counsel for the state and assignee, it appeared that on December 3d and 4th 1861, two several judgments were given in the Circuit Court of the state for the county of Multnomah, sentencing the bankrupt to pay two certain fines, and that he be committed until the same be paid. The debt proved before the register is a part of the sum for which these judgments were given, the remainder having been paid.

Opinion by

DEADY, J.-It is understood from the admission of the counsel that these fines were imposed upon the bankrupt as a punishment prescribed by law for the commission of a crime, of which he had been duly convicted. Indeed, a judgment that a party pay a fine, in the absence of anything to the contrary, must be presumed to have been given as a punishment for the commission of a crime.

The State Act of January 25th 1854, in force when these judgments were given, provides that “any convict” confined in jail " for the non-payment of a fine," may be discharged from such imprisonment by the commissioners of the county, if he is unable to pay the fine; “but such convict shall not thereby be released from the payment of such fine, but the same may be collected by execution at any future time.” Under this act the bankrupt was discharged from imprisonment soon after the judgments were given.

Section 19 of the act declares that all debts due and payable from the bankrupt at the time of the adjudication of bankruptcy

may be proved against the estate of the bankrupt. Does the term debt include a judgment for a fine? Blackstone (vol. 3,

! We are indebted for this case to the courtesy of Hon. M. P. DEADY.-Eds. Ax. LAW REG.

154) says, “ the legal acceptation of debt is, a sum of money due by certain and express agreement.” This, however, is not the popular acceptation of the word. Says the Supreme Court of Massachusetts (3 Met. 526): “The word debt is of large import, including not only debts of record, or judgments, and debts of specialty, but also obligations under simple contracts to a very wide extent; and in its popular sense inclules all that is due to a man under any form of obligation or promise.” This view of the subject was approved by Justice Story (2 Story's R. 432).

To ascertain, then, whether the word debt is here used in the legal or popular sense, recourse must be had to the subject matter and the context. Immediately following the general clause of section 19, concerning debts, as above quoted, it is provided that, " All demands against the bankrupt for or account of any goods or chattels wrongfully taken, converted, or withheld by him may be proved or allowed as debts, to the amount of the value of the property so taken or withheld, with interest." The section then proceeds to provide for the case of contingent debts and liabilities, as well as unliquidated damages upon a contract or promise, and then concludes: “No debts other than those above specified shall be proved or allowed against the estate."

From all the provisions of the section, it is apparent that the word debt is used in the legal or limited sense. If it were used in the popular sense, it would not have been necessary to have specially provided that “demands for goods wrongfully taken, &c., may be proved or allowed as debts.” In the popular sense, such demands are debts, and would have been included in the

preceding clause providing for the proving “all debts.”

A discharge in bankruptcy releases the bankrupt from all debts which were or might have been proved against his estate: Sect. 34 Bankrupt Act. These fines were imposed upon the bankrupt as a punishment for crimes of which he was convicted. If provable against his estate, he may be discharged from the payment of them and from arrest made to enforce such payment.

In effect, this would be allowing the National Government, through its courts, to grant pardons for crimes committed against the state. A person convicted of manslaughter and sentenced to pay a fine of a thousand dollars, would be relieved, by a discharge in bankruptcy, from the punishment affixed by law to his crime. I do not think that the act, while it reasonably admits of any other

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