construction, ought to be construed so as to permit or allow such a consequence.

Looking at the letter of the act or the nature of the subject, either separately or conjunctively, it appears to me that a judgment for a fine, imposed as a punishment for a crime, is not a debt provable against the estate of the bankrupt. Abstractly considered, it may be proper that such a judgment should be proved as a debt against the estate for the purpose of receiving any dividend as a part payment thereof, without effecting a full discharge of the same. Such a provision is found in section 33, concerning debts created by fraud or embezzlement, or by defalcation, while acting as a public officer, or in fiduciary character. But judgments for fines are not included in this special provision, because not enumerated in it.

In The People v. Spalding, 10 Paige Ch. R. 284, it was decided that a discharge under the Bankrupt Act of 1841 did not discharge a party from a judgment for a fine imposed upon him as a punishment for a contempt, committed by violating an injunction. The contempt was merely constructive, and the fine imposed was directed by statute to be ultimately applied in satisfaction of the civil injury to the party who obtained the injunction. The Court of Errors affirmed the decision: 7 Hill 301. On error to the Supreme Court of the United States, the judgment of the Court of Errors was affirmed: 4 How. 21.

This case seems decisive of the question. Indeed, it goes much further than the court is required to go in this case. The Bankrupt Act of 1841, in the use of the word debt, is much less qualified than the present one, yet the court held that it did not include a judgment for a fine. In the case under consideration, the fine was imposed purely as a punishment for the commission of an actual crime; while in the case cited, the fine was imposed, nominally as a punishment, but in reality as a compensation to the creditor for the civil injury he sustained by reason of the commission of the acts constituting the contempt.

The claim must be expunged from the list of debts proved against the estate of the bankrupt.

United States District Court.-District of North Carolina.

MATTER OF ALVIN G. THORNTON, BANKRUPT.1

Real estate cannot be allotted or set apart by the assignee to a bankrupt under section 14 of the Bankrupt Act, even though the personal property, excluding the articles exempted by the state law, be less than the amount which the assignee thinks should be allowed the defendant.

Money may be so allotted to the bankrupt.

THE following question was certified by the Register :

Should an assignee in bankruptcy, in case there is a deficiency of personal property, allot to the bankrupt an exemption in real estate under section 14 of the Bankrupt Act of 1867—in other words, does the Bankrupt Act give to an assignee the discretionary power of assigning to the bankrupt real estate to make up deficiency when he (the assignee) is of opinion that the bankrupt's exemption under said section 14 ought to amount to $500, and there is not that amount of personal property belonging to the estate over and above the articles specifically exempted under sections 7 and 8, chapter 45, Revised Code of North Carolina?

John W. Hinsdale, for creditor.-I. The term necessaries is used principally in the laws relating to infants and femes covert. It is always defined as personalty, and never including real estate: Smith on Contracts 216 and note reference to Tupper v. Caldwell, 13 Metcalf 563.

An infant can contract for necessaries; but, however necessary land might be to him, its purchase by him would not be binding; so in case of feme covert, who might be in the greatest need of a home-a sale of house and lot to her would not bind her husband: Freeman v. Bridgers, 4 Jones N. C. Law, p. 1; Seaton v. Benedict, 2 Smith's Lead. Cas. p. 431; Tyler on Infancy and Coverture 105, 112, 117, 120, 356, 358.

II. This is the proper time to take exceptions, and solicit the opinion of the court: Bankrupt Act, § 14, Gen. Clause 50 (Rice's Manual); Gen. Orders in Bankruptcy, Rule XIX.

B. & T. C. Fuller, for bankrupt.

BROOKS, J.-I have examined with care the authorities cited

We are indebted for this case to J. W. Hinsdale, Esq., counsel.-EDS. AM. LAW REG.

by the counsel representing the creditors who except to the report of the assignee. And I have also read with interest the argument filed by the attorneys for the bankrupt.

This question has often arisen, and given rise to animated discussion in my presence, but is now for the first time presented under the provisions of the law for my decision. I am well satisfied that a fair and proper construction of the language used in that part of the Bankruptcy Act, which relates to exempting, as well as the true spirit and object of the law, will not justify or authorize the action of the assignee in this case. The terms "other articles and necessaries," as used in the act, cannot be so construed as to embrace land, without doing violence to every meaning heretofore allowed those terms. It is quite clear, I think, that if among the property of the bankrupt none, or not enough, of the articles specifically mentioned in the act to be exempted be found, then the assignee may report as exempted other articles and necessaries" to make up the amount required, or the deficiency (as the case may be) in the opinion of the assignee, the whole not to exceed, under any circumstances, the value of $500.

The suggestion of the counsel for the bankrupt would have much weight if it was a matter of discretion. But the court can no sooner award an article or kind of property, not properly embraced within the terms used, according to a fair construction, than it could exceed the sum prescribed. The exemptions provided for by the Bankruptcy Act originated from the same spirit that prompted the enactment of our legislative provisions in favor of widows of intestates, awarding these provisions for their temporary support. And as that law restricts the commissioners in the kind or species of property they shall award, so does the Bankruptcy Act restrict the assignee as to the kind of property he shall exempt. Now it often occurs that this all-important purpose of the law would be defeated, if under no circumstances money could be exempted to a bankrupt. Yet, from the language of the law, if money could not be construed to be an article or a necessary, it would be quite clear, I think, that money could not be allowed. But it is as clear that money may be allowed, for it not unfrequently occurs that money is quite as necessary to the temporary subsistence of a bankrupt and his family as any article that can be mentioned.

As the widow of an intestate, upon the granting of administration, is presumed to be entirely destitute of such articles and provisions as are necessary for her support, so the Bankruptcy Act presumes that every man who has been adjudged a bankrupt has sworn truly, and has surrendered all his property and estate. Then, if this be correct, he is alike destitute. Now, suppose the bankrupt has been a merchant, a banker, and has surrendered a large estate in "choses in action" and money, but not having been a housekeeper, but from choice, from motives of economy, or otherwise, he and his family, consisting of a wife and children, have been inmates of a boarding-house-he does not own a bed or a chair, or any article of provisions, consequently there is nothing of the kind in his schedule; surely it could not be successfully contended that some money would not be necessary for the temporary subsistence of such a family. Under such circumstances money may be exempted.

The assignee must advertise the real estate mentioned in his report as exempted, and sell the same to the highest bidder, and apply the proceeds as the law directs.

Let this be certified.

United States District Court-District of New Jersey.

RE ISAAC ROSENFELD, JR.

A., before insolvency and not in contemplation of bankruptcy, indebted to B. in the sum of $2411, sold to B. an estate to the value of $10,000, and credited him on his books for the said sum of $2411 at the time of sale. Afterwards A., when insolvent and in contemplation of bankruptcy, had a settlement with agent of B., when the sum of $2411 was deducted from the amount of purchase-money. Held, that the payment was really made at the time of sale, that it was not an appropriation of payments and that it was a legitimate transaction and not a fraudulent preference within the meaning of the Bankrupt Act. Where specification charges that a particular debt was paid after passage of Bankrupt Act, and the proof shows that it was paid before, and proof is offered that there were other debts not mentioned in specifications that were paid after passage of said act: Held, that the creditors are bound by the specification, and such proof is inadmissible.

Servants' wages paid after the passage of Bankrupt Act, as necessary family expenses, cannot be allowed as objection to discharge. Payment made to counsel for services rendered and to be rendered," by bankrupt without fraud is not a ground for refusal of discharge. Where a bankrupt, insolvent and in contemplation of bankruptcy, insured his life, it is an improper transaction. Insurance

made upon house and furniture in pursuance of covenants in lease is not a fraudulent preference. Expenditures incurred by bankrupt while insolvent in support of family, and the evidence is silent as to their character, the court cannot admit such expenditures as a ground for refusal of discharge.

THIS case came before the court upon specifications filed by Marx & Co., creditors of the bankrupt, in opposition to his discharge.

Mr. Rosenfeld was a broker, residing in New Jersey, but doing business in New York; and in May 1866, deemed himself to be worth nearly a quarter of a million of dollars; but in one day, owing to a sudden and expected fluctuation in the price of gold, he became bankrupt. He at once made an assignment of all his property for the benefit of his creditors, except his homestead and furniture in Orange. In the schedule, however, annexed to the assignment, the validity of the claims against his estate, growing out of gold contracts, was denied, and has ever since been disputed by him. Negotiations for an amicable settlement with his creditors were for a long time pending, and were in progress up to within a week of the filing of his petition in bankruptcy.

His counsel, Mr. Maclay, testified that so late as May 28th 1867, he had every reason to believe that such a settlement would be effected. Most of the specifications originally filed related to transactions which took place prior to the passage of the Bankrupt Act. Exceptions were taken to these specifications upon the ground that acts done before the passage of the Bankrupt Law were not a good cause for refusing a discharge. These exceptions were sustained, and new specifications were filed in accordance with the opinion of the court. It is these specifications which are now to be considered.

Abbett & Fuller, for petitioner.

T. N. McCarter and Goepp & Stern, for opposing creditors.

FIELD, J.-1. The first specification relied upon is, That on the 28th of May 1867, being then insolvent and in contemplation of bankruptcy, the bankrupt paid to his uncle, Isaac Rosenfeld, in full, a debt of $2411.01.

That the bankrupt was insolvent and in contemplation of bankruptcy on the 28th of May 1867, has been clearly shown. If he did, therefore, on that day pay to his uncle this debt of $2411.01,