In re Glaser

BLATCHFORD, District Judge.

The first clause of the first section of the bankruptcy act gives to the district court original jurisdiction in this district in all matters and proceedings in bankruptcy, and authorizes i.t to hear and adjudicate upon the same according to the provisions of the act; and that general grant of jurisdiction is followed by a special grant, extending such jurisdiction “to all acts, matters, and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt, and the close of the proceedings in bankruptcy.” Registers are, by section 3, to be appointed, “to assist the judge of the district court in the performance of his duties” under the act. By section 4, power is given to every register, and it is made his duty, “to grant protection.” This undoubtedly means protection to the bankrupt from being arrested in cases where he is not.liable to arrest — protection from arrests, to which, by the twenty-sixth section, he is not liable. The justices of the supreme court have so construed it, fop not only have they, by general order No. 5, defined one of the powers of a register to be to grant protection on the surrender of a bankrupt, but they have, by general order No. 4, provided that a bankrupt “may receive from the register a protection against arrest, to continue until the final adjudication on his application for a discharge, unless suspended or vacated by order of the court.” So also they have, by general order No. 27, provided that, if a bankrupt is “committed after the filing of his petition, upon process in any civil action founded upon a claim provable in bankruptcy, the court” (meaning the court in which his petition is filed) may, upon his application, “discharge him from such imprisonment”; and that, “if the petitioner, during the pendency of the proceedings in bankruptcy, be arrested or imprisoned upon process in any civil action, the district court, upon his application, may issue a writ of habeas corpus to bring him before the court, to ascertain whether such process has been issued for the collection of any claim provable in bankruptcy, and, if so provable, he shall be discharged, if not, he shall be reminded to the custody in which he may lawfully be.” These provisions of general order No. 27, so far as they authorize the discharge from arrest or imprisonment of a bankrupt arrested on process founded on a claim provable in bankruptcy, where the claim is one from which his discharge in bankruptcy will not release him, are not warranted by the twenty-sixth section of the act. By the tenth section of the act, the justices of the supreme court are ■required, subject to the provisions of the act, to frame general orders for carrying the provisions of the act into effect, but they are not authorized to extend the exemption of a bankrupt from arrest beyond’ the limits prescribed by the twenty sixth section of the act. By the thirty-third section of the act, a debt which cannot be discharged is yet made provable. By the' twenty-sixth section, though a debt is provable, it may, if not dischargeable, be the-foundation of an arrest. The twenty-seventh general order goes beyond the act, by making exemption from arrest coextensive ’ with the provability of a debt. But the.twenty-seventh general order, In so far as it is consistent with the act and in so far as it applies to debts or claims which will be • released by a discharge in bankruptcy, is a clear indication that the justices of the supreme court understand the act as giving to the district court power to enforce the exemption from arrest to which a bankrupt is entitled under the act. The twenty-sixth .section confers such exemption. One of the means prescz-ibed by the act for securing it, is a protection against arrest, as a muniment or safeguard. The giving of this protection by the court or a register is an act done “under and in virtue of the bankruptcy.” The enforcing such exemption from arrest, when a bankrupt is. entitled to it by .section 26, whether a protection has been granted or not,, and whether a protection ■granted has been violated or. not, is an act done “under and in virtue of the bankruptcy.” The exemption from arrest is conferred by section 26, because the party is adjudged a bankrupt by the district court; and the enforcing of such exemption by affirmative action is clearly an act “to be done under and in virtue of the bankruptcy.” Being such, the jurisdiction of the district ■ court in which the bankruptcy proceedings are pending, clearly extends, under the first section of the act, to the doing of this act. by any appropriate method. Where the bankrupt is not in close custody, a habeas corpus may not be necessary. A simple order may suffice to give the requisite relief. The order will be an order in bankruptcy, and, by the first section of the act, full authority is given to the court to compel obedience to all orders and decrees passed by it in bankruptcy, “by process of contempt and other remedial process.” In some cases, a habeas corpus may be necessary, and such a remedy is contemplated by one provision In general order No. 27. Irrespective of that provision, if a bankrupt is arrested in violation of the twenty-sixth section of the act, and is thus restrained of his liberty in violation of a law of the United States, this court, or the judge thereof, has power, under the act of February 5, 1867, entitled “An act to amend ‘An act to establish the judicial courts of the United States,’ approved September twenty-fourth, seventeen hundred and eighty-nine” (14 Stat. 335), to issue a writ of habeas corpus and release him from his imprisonment. It follows, therefore, that this court is competent to grant to the bankrupt in this case the relief sought by him, provided his arrest was founded on a debt from which his discharge In bankruptcy would release him. This court must necessarily inquire into that question, and decide it for itself on this application. It is a disputed question of fact, which cannot be decided on ex parte affidavits, whether the debt in this case was contracted by the fraud of the bankrupt., and is, therefore, one, from which his discharge in bankruptcy would not'release him. If the bankrupt desires it, a reference will be ordered, under section 38 of the act, to take testimony on the question, and the application will be heard and decided on the testimony so taken.

[See Case No. 5,475.]