In re Tinker
| Decision Date | 27 January 1900 |
| Parties | In re TINKER. |
| Court | U.S. District Court — Southern District of New York |
Nelson Smith, for bankrupt.
Thomas McAdam, opposed.
An adjudication of the above bankrupt was made on September 13 1899, the only debt scheduled being a judgment against him for $50,653.98 damages and costs, recovered in the supreme court of this state in an action of crim. con.
On the return day of the application for a discharge, the judgement creditor has objected (1) that the judgment is for a 'willful and malicious injury to the person or property of another,' and therefore will not be released by a discharge; (2) that this being the only debt scheduled, there are no debts to be discharged, and that the court therefore has no jurisdiction to grant any discharge.
The gist of the action in which this judgement was recovered is the loss of the comfort, society and assistance of the wife. 2 Greenl.Ev. § 51, and cases there cited; 5 Enc.Pl.& Prac 616; Barnes v. Allen, 1 Abb.Dec. 117. The violation of these rights springing from the marital relation, though a heinous personal wrong to the husband, can only with difficulty be said to be an 'injury to his person' (Ryall v. Kennedy, 52 How. Prac. 517), and though the husband has a legal right to the aid, service and assistance of the wife, the deprivation of this right can hardly be said to be an 'injury to his property.' See In re Haensell (D.C.) 91 F. 355, and cases there cited. Under the common-law system of pleading, indeed, the plaintiff in actions of crim. con. might maintain trespass vi et armis; but the assault pleaded in such cases was an assault upon the wife, not upon the plaintiff; and the loss alleged was 'the loss of comfort, fellowship, aid and assistance of the wife. ' The action, however, might equally be brought in trespass on the case, in which, after alleging the wicked and unjust acts, the same loss and damage were pleaded as in trespass vi et armis. See 2 Chit.Pl. *642 856.
Another requisite element to prevent the operation of the discharge is, that the injury shall be 'malicious,' which seems to require a malevolent intent towards the plaintiff. In actions of a similar nature it has been held that 'malice' cannot be predicated, and discharges were therefore granted. Livergood v. Greer, 43 Ill. 213; Howland v. Carson, 28 Ohio St. 625, 16 N.B.R. 372; In re Sullivan, 1 Nat.Bankr.N. 380; Anderson v How, 116 N.Y. 342, 22...
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Heinrich v. Bagg (In re Bagg)
...754 (1904), the Supreme Court interpreted the "willful and malicious" injury exception to discharge as enacted in the 1898 Bankruptcy Act. Tinker is somewhat anachronistic: it involves a superseded statute, is written in the legalistic style of the early 20th century, and arises from a near......
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In re Phillips
...we cannot accede to the position taken by the objector. This exact point was decided in favor of the granting of a discharge in In re Tinker, 99 F. 79 (D.C.N.Y.), and in In re Carmichael, 96 F. 594 (D.C. Iowa), In re McCarty, 111 F. 151 (D.C. Ill.), and In re Gara, 190 F. 112 (D.C. pa.). In......
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Teubert v. Kessler
... ... discharge cannot properly arise or be considered in ... determining the right to a discharge. The right to a ... discharge does not at all depend upon whether or not the ... judgment is released by the discharge. In re Carmichael ... (D.C.) 96 F. 594, 596; In re Tinker (D.C.) 99 ... F. 79, 80; In re Marshal Paper Company, 102 F. 872, ... 874, 43 C.C.A. 38; In re McCarty (D.C.) 111 F. 151 ... The decree should have left the petitioner free to determine ... the effect of his discharge in the proper tribunal ... That ... part of the decree, ... ...
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...does not at all depend upon whether or not the judgment is released by the discharge. In re Carmichael (D.C.) 96 F. 594, 596; In re Tinker (D.C.) 99 F. 79, 80; In re Marshall Paper Company, 102 F. 872, 874, 43 C.C.A. 38; In re McCarty (D.C.) 111 F. 151. The decree should have left the petit......