193 U.S. 473 (1904), 160, Tinker v. Colwell

Docket Nº:No. 160
Citation:193 U.S. 473, 24 S.Ct. 505, 48 L.Ed. 754
Party Name:Tinker v. Colwell
Case Date:March 21, 1904
Court:United States Supreme Court
 
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Page 473

193 U.S. 473 (1904)

24 S.Ct. 505, 48 L.Ed. 754

Tinker

v.

Colwell

No. 160

United States Supreme Court

March 21, 1904

Argued February 28, 1904

ERROR TO THE SUPREME COURT

OF THE STATE OF NEW YORK

Syllabus

The personal and exclusive rights of a husband with regard to the person of his wife are interfered with and invaded by criminal conversation with her, and such an act constitutes an assault even when the wife consents to the act, as such consent cannot affect the rights of the husband against the wrongdoer, and the assault constitutes an injury to the husband's rights and property which is both malicious and willful within the meaning of subdivision 2 of section 17 of the Bankruptcy Act of 1898, and a judgment obtained by the husband on such a cause of action is not released by the judgment debtor's discharge in bankruptcy.

The plaintiff in error applied to the Supreme Court of the State of New York for an order discharging of record a certain judgment of that court obtained against him by the defendant in error. The application was denied, 6 Am.Bankruptcy Rep. 434, and the order denying it was affirmed by the appellate division of the supreme court, 65 A.D. 20, and subsequently by the Court of Appeals, 169 N.Y. 531, and the latter court thereupon remitted the record to the supreme court, where it remained at the time plaintiff in error sued out this writ to review the order of the Court of Appeals.

[24 S.Ct. 506] The application was made under section 1268 of the New York Code, which provides that any time after one year has

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elapsed since a bankrupt was discharged from his debts, pursuant to the act of Congress relating to bankruptcy, he may apply, after notice to the plaintiff in the judgment, and upon proof of his discharge, to the court in which the judgment was rendered against him for an order directing the judgment to be cancelled and discharged of record. The section further provides that, if it appear on hearing that he has been discharged from the payment of that judgment or the debt upon which such judgment was recovered, an order must be made directing the judgment to be cancelled and discharged of record.

The application in this proceeding was made upon a petition by plaintiff in error, which showed that Frederick L. Colwell, the plaintiff in the action, had, on February 9, 1897, recovered a judgment for $50,000 and costs against the petitioner for damages for his criminal conversation with the plaintiff's wife; that the judgment was duly docketed in the County of New York on that day; that, on September 13, 1899, petitioner filed his petition in the District Court of the United States for the Southern District of New York, praying that he might be adjudged a bankrupt, and on that day he was adjudged a bankrupt by the district court, pursuant to the act of Congress relating to bankruptcy; on February 2, 1900, the petitioner was discharged by the district court of the United States from all debts and claims which were made provable by the act of Congress against his estate, and which existed on September 13, 1899; that the judgment above mentioned was not recovered against him for a willful and malicious injury to the person or property of the plaintiff, within the meaning of the act of Congress, and that, by virtue of the discharge in bankruptcy, the petitioner had been duly released from that judgment.

In granting the discharge under the Bankrupt Act (which was opposed by the plaintiff in the judgment), the district judge refused to pass upon the question whether the judgment was thereby released, although it appears that he thought it was. 99 F. 79.

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PECKHAM, J., lead opinion

MR. JUSTICE PECKHAM, after making the above statement of facts, delivered the opinion of the Court.

The question herein arising is whether the judgment obtained against the defendant, petitioner, for damages arising from the criminal conversation of the defendant with the plaintiff's wife is released by the defendant's discharge in bankruptcy, or whether it is excepted from such release by reason of subdivision 2, section 17, of the Bankruptcy Act of July 1, 1898, which provides that

a discharge in bankruptcy shall release a bankrupt from all his provable debts, except such as . . . (2) are judgments in actions for frauds, or obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another. . . .

The averment in the petition that the judgment was not recovered for a willful and malicious injury to the person or

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property of the plaintiff in the action, is a mere conclusion of law, and not an averment of fact.

If the judgment in question in this proceeding be one which was recovered in an action for willful and malicious injuries to the person or property of another, it was not released by the bankrupt's discharge; otherwise it was.

We are of opinion that it was not released. We think the authorities show the husband had certain personal and exclusive rights with regard to the person of his wife which are interfered with and invaded by criminal conversation with her; that such an act on the part of another man constitutes an assault even when, as is almost universally the case as proved, the wife in fact consents to the act, because the wife is in law incapable of giving any consent to affect the husband's rights as against the wrongdoer, and that an assault of this nature may properly be described as an injury to the personal rights and property of the husband which is both malicious and willful. A judgment upon such a cause of action is not released by the defendant's discharge in bankruptcy.

The assault vi et armis is a fiction of the law, assumed at first...

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