Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1842-06-20

SUCH have always regarded the law az a very
iudcious one, and as not at all oppressive, since
power is vested in the courts, after an Iinprlson-
men suited to the aggravation of the case, on np-
plication made for the purpose to remove 'he dis'
ability and allow the party tie privilege OF the
poor debtors oath. 1t moy be, as has been urged,
that the efficiency of this law will he much inn
paired and lis benefits in measure lost TO the
community, if is held to he in the power Of any
party, after Judgment against him Tor malicious
tort to discharge himself from the judgment Ivy
awaiting himself Of the benefit Of the bankrupt
law. This il true, might be very poper argu
ment to address to the national legislature, who
have full power over the bankrupt law, but can
have no weight with judicial tribunal, whose bu-
siness it is to say, not what the law ought TO be,
but what il is.
Considering, then, judgment recovered in an
action on tort as to the purposes OF the bankrupt
act, us not dstinguishable from judgment recov-
cred IN an action on contract, but both alike prove
able under the act, the main questions are, wheth.
er the petitioner, upon the facts appearing in the
case, is entitled TO be discharged from custody,
and whether ii is competent for this court TO order
his discharge.
Tho right Of the petitioner to be discharged
rests upon general right Of exemption, claimed
ind assumed to accrue Immediately upon the de-
cree olbankruptcy, from arrest and imprisonment
for all debts proyeabe under the bankruptcy. 1t
pressly given by the bankrupt act, and il appears
to me TO he equally plain that none is implicitly
given. The provisions Of the act, instead Of i'm
plying, seem clearly TO negative amy such right,
especially rs against a creditor, like the one in the
present case, who does not choose TO come in and
prove his debt
The act declares that no creditor or other per-
son, coming in and proving his debt other clam,
shall be allowed to maintain any suit at law or in
equity therefor, but shall be deemed thereby to
have waived all right of action and suit against
such bankrupt; and all proceedings arendy COM
menced, and all unsatsfied judgments already OBJ
taned thereon, shall be deemed TO be surrendered
thereby"
This provision evidently implies an option on
the part OF any creditor either 10 come in and
urove his debt under the bankruptcy, or TO pursue
his remedy against the bankrupt at law. II clear
| " supposes right in the creditor to take either
course; Tor instead of taking away the remedy IA
law as to all creditors who hive the right to come
in and prove their debts it takes it away only to
such creditors who actually come in and prove
their debts. BY the terms Of the provision, proof
under the bankruptcy is "a waiver and relinquish-
ment Of nll right of action or execution against
! tie bankrupt, and no suit or proceeding whatever
Gun be had against him either at law or in equity
The proof itself operates as discontinuance o.
any suit pending and is a surrender of any ludg
ment recovered, for the debt proved and If the
~ VI tubtObJ tltiCl va HttoHe p'p'cos "
execution, he will of course be entitled to be i'm
medately discharged from such custody.
The act, like the English bankrupt law, allow
the creditor to elect whether be will come IN ant
prove bis debt, or take bis remedy at INV. Thi
right Of election 10 an established doctrine Of ih
courts ofequity in England, and has been nvaria
bly, recognized aud acted upon by them. The
hold, that where a creditor comes in under TIA
commission of bankruptcy and proves his debt,
is an election to take his remedy for the debi uu
der the commission and they will not allow hlr
10 mprison he bankrupt for not paying The deb
aud il the bankrupt is imprisoned they will dis
charge him out of custody Onthe other han'
where creditor elects 10 proceed nj law, they WI
not allow him to prove his debt under the CON
mission. Thus, # a creditor, after the Issuing c
the commission, takes The bankrupt in execution
appraised of the disposition of the effects, an
knowing that there may he a certificate, he is DEF
med to have made his election, and will not be a
lowed to prove his debt, or if if lie proves ii, III
court will order the debt TO be aside and 1isa
lowed. The principle is, that the creditor ma
elect either to proceed at law, tuking his chanc
of being ultimately defeated lay certificate,
come in and take his remedy under the bankrup
cy
1t has been argued that it would be unreason;
BILE, after tie bankrupt has surrendered all his e
tate and thereby Invested fmself of all his mean
TO pay his creditors, that auy of them should
at liberty to arrest and hold him in prison. But
should be remembered, as has been once befol
observed, that the question is not, what the 10
ought to be, but what the law is. 1t should lie n
menIbered, also, that the bankruptcy in most ca
es, in this, is the voluntary oct of the bankru
himself without the concurrence, and, 3erhap
against the will of his creditors; and that whe,h
he has acted fairly, and surrendered all his PROF
erty, is q question which the creditors, in reasc
and justice, have right to make, and which Il
act allows them 20 make. The decree of bank
rupcy decides nothing in regard to this question
1t diyesls, TO be sure, the bankrupt of his estat
and the creditors who prove their debts, and Their
by waive all other remedy, will have the benef
10 tie exclusion of all others, OF so much at lea
ms lie discl0ses and surrenders hut he may, no
withslanding, never entille himself to a certfica
of discharge, and may never obtain one.
The act provides, that if the bankrupt shall
guilty of any fraud or wful conceament of Il
property or rights OF property, or shall have pr
ferred any of his creditors contrary TO the prOyi
ions OF the act, or shall wiully refuse or omit
comply with any orders or directions OF the cour
or shall admit false or fictitious debt against b
estate or shall, after the passing OF the act, ha
applied trust funds to his own use, or, being
merchant, banker, factor, broker underwater,
marine insurer, shall not have kept proper boo
of account, he shall not be entitled TO any d
charge or certificate. Any one of these thin
will prevent his getting certificate; and who CT
f say, in advance, that certificate will not be ref
sed him? How, then, can any creditors, exec
such as elect 10 come in under The bankruptr
aud threby preclude themselves, under the pos
} tive provision Of the act, from any other remed
be prevented from pursuing, in the mean tin
their ordinary remedy ut law'
But when a certificate is obtained, it is not a
solutely conclusive in favor of the bankrupt. T
act declares that the certificate, when duly graz
ed, shall, in all courts of justice be deemed fl
and complete discharge ofall debts, contracts, a
other engagements OF the bankrupt, which q
prOuedble under the act, aud shall and may heplt
ded as full and complete lar 10 all suits broug
in any court ofjudcaiure whatever; and The saI
, shall be conclusive evidence OF itself in favor
t the bankrupt, unless the same shall be imPedch
: for some fraud or toiifM concealnent by him Of
operty, rights of property, contrary TO the pI
visions OF the act. Tho certificate may be il
= peached, and its effect wholly avoided, by pre-
. of fraud or willu concedment of property by I
bankrupt; and how can any court say, befo
hand, that such proof will not he produced by
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