1

And such appears to be the whole current, both judicial and legislative, on this subject.

We are disposed to apply that doctrine to this case. A considerable number of authorities were read upon the argument as to the sacredness of the claims of creditors, and as to the injustice of depriving them of the benefit of the property of their debtors, and such observations were undoubtedly justified by the cases in which they were pronounced. In fact, we are all very familiar with the general strength of language in which the relation is discussed which exists. between the creditor and the debtor. Many other relations, however, are equally important; the relations which a man bears to his wife and to his family, for instance. We do not, I am very sorry to say, generally find the courts so emphatic in regard to the latter species of relations as to the former. Perhaps that results from the fact that courts are more generally engaged in adjudicating pecuniary rights than those of a social character. But the rights which result from the family relations are certainly quite equal to those which result from debtor and creditor. You might blot out every law and extinguish every right for the collection of debts, and the community would scarcely feel the shock. But if you abrogated the law of marriage and its relations, you would not only rupture the moral, but also the physical organization of society. Where, therefore, the two claims come in conflict, the courts should adjudicate between them with justice and fairness to both.

When a man has made provision for his wife, the law recognizes that he has performed a social and moral duty. The state has a deep interest in having families of healthy children properly educated and settled in life, as well as to have creditors paid what is due, and whatever will promote that object should receive its due share of attention.

These remarks are made more especially because we can distinguish here between the rights of the creditors and the rights of the family, and do justice to both of them. What right have the creditors to what never belonged to the estate?

What right have they to a vested right in a mar

ried woman for her protection and that of her family? What right have they to a species of property that never existed until after the death of the husband? We presume that no creditor of Thomas L. Hume would dare to stand up and make the statement that he had been misled by these policies, or that he had extended credit to him on their strength.

So that it strikes the court very forcibly that where we can protect a settlement on a family, by giving back to the creditors all that has been taken from them, we are doing justice and equity to all, and the creditors have a right to demand no more.

There are some considerations which lead to and justify this conclusion. It appears that Mrs. Hume, at the time she became the wife of Mr. Hume, was the daughter of a man of considerable means, Mr. Pickrell, owning an estate near the city; that she is an only child, and that after the marriage Mr. Hume and his family lived mostly at that estate, scot free, unless he contributed from his grocery establishment something to his support. In fact the whole family lived there as if he had been born into it. Mr. Pickrell, and after his death, Mrs. Pickrell and Mrs. Hume, placed in him the most unreserved confidence. Mr. Pickrell endorsed for him, and, after his death, Mr. Hume became his administrator; whatever he collected out of the estate for the benefit of Mrs. Pickrell, went into his business.

I know it is said that Mr. Hume was guilty of dishonesty, if not crime. But it is to be remembered that he was not a wasteful man, that he did not dissipate his time, that he appears to have been devoted to his business, and that if he took anything, either from the estate of Mr. Pickrell or from anybody else, it was for the benefit of that business, and he did all he could to keep up the sinking ship.

Having these relations with the family, and having encroached somewhat, I will not say how extensively, upon the patrimony of the wife, I think without going very far we can find a proper motive that he had in effecting these insurances for his wife and family, and we do not think it is

the duty of a court of equity to bring a telescope to examine his mind closely for some motive that would render these transactions void or fraudulent, when there is a motive so apparent on the face of it. The law recognizes the natural love and affection of a husband for his wife and family, and any settlements he makes upon them will be upheld, without any other consideration whatever, if they are free from fraud.

It is said that these insurances provided an unreasonable amount and exhibit clearly the recklessness with which the intestate disregarded the claims of his creditors. In this connection, we are also reminded that Mrs. Hume herself is a lady of fortune; that she is the heir of her father and her mother; that her mother has a life estate in the property, and that she will inherit the whole of it upon her death, and inventories have been read to show that this estate is one of very considerable value. Mrs. Hume has not obtained the estate yet, and perhaps that is a sufficient answer. Another is, that its value is prospective, and what will be its value at the termination of the life estate is difficult to determine at present. In addition to all that, there are endorsements of Mr. Pickrell outstanding, and what may be the fate of those endorsements, it is impossible to conjecture. So that the matter is not in any way clear that Mrs. Hume will have a large estate independent of the policies. But suppose she has a moderate fortune of her own, one that would amply support her and her family by economy, is that any business of the creditors? What right have they to any portion of her separate estate to pay her husband's claims? The law says that they have none whatever. Considerations of that character should not weigh in the final adjudication of this case, if we give these creditors all they are entitled to.

It must be admitted that Thomas Hume at the time he effected the last three policies of insurance was hopelessly insolvent. We think that is a very doubtful fact with regard to the first policy which was taken out in 1873, and by looking over the schedules furnished by counsel,

we should say that his insolvency is not established at an earlier date than 1874; and from that time onward to the point of his death, Mr. Hume was undoubtedly unable to meet the claims of his creditors, and that from that time he had no right in law to take from his means any property for the benefit of his family, as a settlement. But we can give the creditors every just right, every dollar they are entitled to, and give the widow and the children the benefit of the contract which was made for them; and we have no more right to transfer the proceeds of these policies to the creditors than we would have to take Mrs. Hume's interest in Tunlaw for the same purpose.

The money has been paid into court. The decree must be entered decreeing the money to Mrs. Hume, and charging her with the amount of all the premiums that were paid upon the three policies from February, 1874, which is the proper time to adopt as the period when Mr. Hume's insolvency clearly appears.

DISTRICT OF COLUMBIA, USE OF FANNIE A. COOPER,

vs.

JOHN T. VAN HORN.

AT LAW. No. 23,577.

Decided January 12, 1885.

1 The CHIEF JUSTICE and Justices MAC ARTHUR and JAMES sitting. The bonds of constables given under and in pursuance of the act of Congress of June 7, 1878, is not affected or controlled by the act of March 3, 1863, requiring the renewal of constables' bonds every two years. The bond given under the act of 1878 runs during the term of the constable, to wit, four years. While under the act of 1863, the bond runs indefi

nitely until renewed or until the officer was removed.

STATEMENT OF THE CASE.

This was an action against the sureties upon the official bond of one James A. Bean, lately one of the constables of this District. Bean was appointed July 3, 1878; his bond was approved July 5, 1878. Section 1037 of the Revised Statutes District of Columbia, act of March 3, 1863, provides "that each constable shall renew his bond on the thirtieth day of June in every alternate year of his continuance in office."

On the 7th day of August, 1880, Bean wrongfully, as it is alleged, levied on certain household goods of the real plaintiff in this action.

At the trial, the original bond was produced and the signatures admitted, but when the plaintiff's counsel offered to read it in evidence it was objected to on the ground that, under the act of Congress of 1863, the sureties were not liable for the acts of Bean after the 30th day of June, 1880. This objection was sustained, and a verdict for defendants. directed by the court. The correctness of this ruling was the only point for review before the General Term.

P. B. STILSON for plaintiff:

The act of 1878 appoints the constables for four years, and this court, in pursuance thereof, July 1, 1878, required them to give a bond, in the penalty of $5,000, for the faith