Page:Federal Reporter, 1st Series, Volume 2.djvu/76

IN RE DUBYEB. 69 �and was duly adjudged a bankrupt. It appears, by his amended schedules, that the city of Rahway ia an unsecured crediter of the bankrupt for $250, the amount of personal taxes due from the years 1870 to 1878, inclusive. The city commenced a suit for the recovery of these taxes af ter the petition in bankruptcy was filed, and the bankrupt applied for and ob- tained an order for an injunction restraining the suit pend- ing the bankruptcy proceedings. �This is a motion to vacate the order, on the ground that the claim of the city is not a debt provable in bankruptcy, within the meaning of the act. �I think the objection is well taken, not only for the reasons assigned on the argument by the counsel for the city, but from the proviso of the fifth clause of section 6101 of the act. �The order staying the suit was improvidently made, arising from the fact that the petition presented to the court for obtaining it did not state upon its face or reveal to the court the nature of the action. It simply alleged that the city of Eahway, having a debt provable in bankruptcy against the bankrupt, was endeavoring by legal proceedings to enforce the payment of the claim. Under the provisions of section 5106 of the bankrupt act, it was the duty of the court, upon such a representation, to require the creditor to suspend the further prosecution of the suit untn the question of the debtor's discharge should be determined. �But it appears upon this motion that the proceeding was for the collection of a tax, and it will be perceived, on an examination of the provisions of section 5106, that they do not apply to such a case. The section provides that "no creditor whose debt is provable shall be allowed to prosecute to final judgment any suit," etc. �But ail the authorities agree that a tax is not a debt. The supreme court, in The United States v. The Railroad Co. 17 Wall. 326, defines a tax to be "a charge, a pecuniary burden, for the support of government." Wharton's definition is more comprehensive. He says it is "a portion of the national wealth applied to public use, granted and controUed by the representatives of the people." The supreme court of New ����