
    Willis Hawes, Commissioner of Insolvents, v. Malinda Cooksey and George James, Assignee in Bankruptcy.
    An order for the maintenance of an illegitimate child is not subject to tho act of bankruptcy, and the putative father can not he discharged from the order, by taking the benefit of the bankrupt act.
    
      "Where the putative father applies for the benefit of the insolvent act, and is afterward declared a bankrupt under the act of Congress, his effects, in the hands of the commissioner of insolvents, will be applied to the satisfaction of the order of the court in favor of the mother, notwithstanding the bankruptcy.
    She has preference over the assignee in bankruptcy.
    • This is a bill of interpleader from Muskingum county, filed by the commissioner of insolvents, against Malinda *Cooksey, a creditor of Morgan, an insolvent debtor, and James, his assignee in bankruptcy.
    The facts stated in the bill, are these:
    On March 15,1842, Morgan applied for the benefit of the insolvent act, and made an assignment of his effects to the commissioner.
    Malinda Cooksey appeared before the commissioner and proved her claim, consisting of a judgment in her favor at March term, 1842, for $100 to be paid down, $25 half yearly for six years, in all $400, and $42.23 costs. No other claim was proved.
    Morgan afterward applied for the benefit of the bankrupt law, and at June term, 1842, of the district court, was declared bankrupt.
    Morgan’s effects, in the hands of the commissioner of insolvents, are claimed by Malinda Cooksey, the creditor, and also by James, his assignee. To determine the right,' this bill is brought.
    This agreed statement was filed: “ It is agreed by the parties that this case shall be heard and decided by the court, upon the facts stated in the bill, and the further facts agreed upon by the parties, as follows: At the Marcn term, 1842, of the court of common pleas of Muskingum county, in a proceeding under the act of the general assembly, entitled ‘ an act for the maintenance and support of illegitimate children,’ charging Washington Morgan, the insolvent and bankrupt mentioned in the bill, with being the father of the bastard child of the above-named Malinda Cooksey, an order of filiation was duly made by that court, adjudging that Morgan should stand charged with the maintenance of such child, in the sum of $400, payable as stated in the bill, and also with payment of the costs of prosecution, taxed at tho sum mentioned in the bill. Whereupon the common pleas required Morgan to give security to perform such order, which he refused to do; and, thereupon, he was by order of that court, on March 15,1842, committed to the jail of said county, from which ^imprisonment he was discharged by the proceedings had before the complainant,, as set forth in the bill.
    “ Morgan was declared bankrupt in June, 1842, and George James-was duly appointed his assignee in bankruptcy. The notice of the filing of Morgan’s petition in bankruptcy, being a voluntary application, was, on May 7, 1842, for the first time, inserted in tho newspaper designated by tho district court for that purpose, agreeably to the rules in bankruptcy adopted by that court, which rulosare to be considered as in evidence. The petition for bankruptcy was filed before, and with the commissioner, May 3, 1840. The-defendant, Malinda Cooksey, is the only creditor who proved a claim before the complainant. No claims whatever have been proved before the commissioner in bankruptcy, or before any other-officer under the bankrupt act.
    “ Tho schedule in bankruptcy, and the insolvent schedule, are to-be considered as in evidence.”
    The case was argued by Jambs and Beard, for tho assignee in-bankruptcy, and by Goddard and Convers, in behalf of Malinda Cooksey.
   Read, J.

The chief question in this case is, whether the provision of the statute providing for the maintenance of illegitimate-children, comes within the operation of the general bankrupt law of the United States. Although tho point has been made in argument, we have decided this case without intending to express any opinion as to the constitutionality of the bankrupt act.

That law sounds in contract, and discharges only from obligations to pay money arising out of agreements express or implied,, on surrender of the property of the bankrupt.

The voluntary portion of tho act, in terms, extends only to debts-owing.

The payment of money, compelled by the statute, for the support of illegitimate children, is an enforcement of moral duty resulting from a wrongful act of the person charged. Not in *the nature of a debt owing, or due on contract. The putative father, under tho statute, is charged with the maintenance-of his illegitimate child, in such sum or sums, to be paid in such amounts, at such times, in such manner, as the court shall order and direct; and that he give security for performance, and that, on neglect or refusal to give such security, he be committed to the. jail of the county. The money thus to be paid and secured, is not a •debt due to the mother, or other person, but only a mere charge •of maintenance. If the child die, the obligation to pay ceases. It is not within the power of the mother to discharge the obligation. If she fail, even from shrinking delicacy to expose her guilt, to secure the child the maintenance provided by the statute, the overseers of the poor may. The statute has not left the performance ot this duty by the putative father, to depend upon the disposition of the mother to hide herself Irom the cruel scrutiny of a public •examination. It is intended not directly for her benefit, but that of the child, and to cast the duty of its support upon the father, ■and to prevent it from falling upon the public. True, the order ■of the court usually directs the money secured by the statute, to •be paid to the mother, and leaves its application with her. Sho may apply the money to defray her lying-in expenses, and to her ■own support whilst in charge of the child ; this e'omes within the ■meaning and spirit of the law, as the child’s nurture and sustenance depends mainly upon her.

It is contended that the prosecution under the statute is a civil proceeding, and therefore the money directed to be paid under it ■must be regarded in the light of a debt.

It is sometimes called a quasi criminal proceeding, that is, it'is the enforcement of a moral duty arising from a criminal act, not prosecuted under the forms of a trial for a criminal offense. The act of the putative father is a crime against the peace and good ■order of society, and when accomplished through the medium of seductive arts, involving the highest turpitude. The statute does ■not contemplate the punishment of the criminal act itself, but only the enforcement of the moral duty of maintaining the child, consequent upon the act. From the nature ^of the proceeding, therefore, it can not be argued that the money awarded is a civil ■debt.

It would be just as wise, and just as competent, to extend the ■operation of the bankrupt law to discharge a father from the support of his legitimate child, as to discharge the putative father from the support of his illegitimate child. The duty in each case in-morals, and by the law of nature, is of equal obligation. The only difference is, that the policy of the law for the welfare of society, has adopted a different mode in each case, to enforce the'same duty. In the one case, the law recognizes the relation of' parent and child, and enforces the duties of the parent, by virtue of the marriage contract: in the other, the law can not recognize the relation of parent and child through the marriage contract, but seizes upon the fact of parentage, and enforces the natural duty of maintaining the child, which, otherwise, under the general policy of the law, except for the statute, would be regarded as a duty of imperfect obligation. With equal sense it might be applied to discharge men from the support of their wives, and thus the bankrupt law, which was designed to discharge persons from obligations to pay money arising out of contracts, express or implied, upon the surrender of their whole property, that they might commence life, as it were, anew, having been lifted from beneath a hopeless weight of debt, and apply their future earnings to their own, and the support of their families, would be perverted to the destruction of the whole domestic obligations.

Whatever may have been some of its evil consequences, it was not the design of the bankrupt law to overturn all society by discharging men from the performance of those moral and natural duties which constitute the foundation of the whole social fabric.

The bankrupt law is not omnipotent to discharge all obligations to pay money of whatsoever character, but only such as arise out of contract, express or implied. Congress has no power to pass a bankrupt law for any other purpose, nor has it been attempted. *The punishment of crimes and offenses, the adoption of police regulations, the enforcement of moral and natural duties,, and the preservation of the domestic relations are inherent, sovereign state rights, not delegated to the general government. Within, their several territorial limits the states may adopt their own mode of accomplishing these several ends, violating no constitutional principle. They may declare penalties for offenses, for the' enforcement of moral and natural duties, for the preservation of the domestic relations, and direct1 their collection by action of debt. But because the money directed to be paid as a penalty may be denominated á debt, or be directed to be collected in-an action of debt, it does not come within the operation of the bankrupt power authorizing Congress to discharge the obligation. It is the nature of the obligation to pay the money, not the name of the obligation, nor the form or mode of collection, or enforcement, that determines whether it comes within the opera»* tion of the bankrupt law.

Morgan then not being discharged from the moral and natural duty enforced by the statute, of maintaining his illegitimate child,, the remaining question is, who has acquired a right to the money in the hands of the commissioner of insolvents?

Morgan applied for the benefit of the insolvent law of the state, prior to his application for the benefit of the bankrupt law. No other claim was presented or proven before the commissioner of insolvents, and none whatever before the assignee in bankruptcy;, indeed, the whole design of Morgan appears to have been merely to discharge himself from the charge of supporting his illegitimate child. The statute for the relief of insolvent debtors vested this whole claim, at the time Morgan applied for its benefit, in the commissioner of insolvents as trustee tor the benefit of creditors. Hence, there being no other creditors, the commissioner hold thin: money solely for Malinda-Cooksey, to be applied under the order of filiation. The bankrupt law not discharging this obligation,, and not superseding the state law, will not withdraw this money from the action of the state law, which had first seized upon it and appropriated it to be applied in discharge of an obligation *not within the operation of the bankrupt'law, and not discharged by it. It is true that when the bankrupt law comes legitimately in conflict with a state insolvent law, it supersedes it, and draws all moneys, claims, and rights to itself. But that is not this ease. In this case the bankrupt law has no application whatever, no power, no existence; the state law has full power, full force, and has seized upon the fund and vested it in the hands of the commissioner, to be applied under the order of the court.

It is therefore decreed that the money in the hands of the commissioner of insolvents be paid over to Malinda Cooksey, as ordered by the court of common pleas, for the maintenance of her illegitimate child. Decree accordingly.  