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SETTING UP New CAUSE OF ACTION BY SUPPLEMENTAL PLEADING,-continued.

prisoner and his sureties to enable them to defend the same, the court must order a summary judgment for the plaintiff,” does not set up a new cause of action which had no existence when the action was commenced, as the cause of action averred in the original complaint was based upon the bond executed by the defendants to secure to the judgment debtor the liberties of the jail, which bond, when the debtor escaped, became forfeited, and the sureties thereon became liable to pay all damages sustained by the plaintiff to the amount of the bond, and such right of action could be enforced against the defendants; the only effect of the supplemental complaint being to allow the sheriff to take advantage of the summary remedy given by section 162 of the Code.

Buttling v. Hatton, 33 App. Div. 551; 87 St. Rep. 1009; 53 Supp. 1009.

In an action brought by a railroad company against municipal authori. ties to restrain the filing of maps showing streets across its station grounds, and to prevent such indicated streets being opened, a supplemental complaint setting up proceedings for the opening of the streets, which are alleged in the original complaint as intended or threatened, as in fact taken by the municipality after the filing of the maps, does not introduce a new and independent cause of action.

N. Y. C. & H. R. R. Co. v. Haffen, 23 App. Div. 377 ; 82 St. Rep. 316 ; 48 Supp. 316.

A defendant may, in an action of divorce for adultery, plead as a counterclaim by supplemental answer acts of adultery committed by the plaintiff since the action was begun entitling her to affirmative relief.

Blanc v. Blanc, 67 Hun, 384.

McAdam, J., in a memorandum of decision in the case of Day v. Day, reported in the N. Y. Law Jour. of Sept. 7, 1893, said, "As there can be but one divorce and the new matter is consistent with and in aid of that relief, the English practice of allowing adulteries committed subsequent to suit brought to be alleged in a supplemental bill with the like force as if alleged in the original would be followed but for the decisions establishing a different rule of practice in this state," and he distinguished the case of Blanc v. Blanc on the ground that a plaintiff may discontinue and sue over again, while a defendant cannot.

In an action for a separation from bed and board acts of cruel and inhuman treatment committted by defendant since the time of the commencement of the action may be set up by a supplemental complaint, as they do not introduce a new substantive cause of action, but explain the other matters put in issue by the pleadings.

Cornwall v. Cornwall, 30 Hun, 573.

Where a bill is filed by legatees for the purpose of collecting legacies charged upon real estate in the bands of devisees, under which bill the plaintiff's would be entitled to a decree for the sale of the real estate for the payment of their legacies, and an agreement is subsequently made

SETTING UP New CAUSE OF ACTION BY SUPPLEMENTAL PLEADINO,-continued.

between the legatees and devisees which would, in addition to that relief, warrant a decree against the defendants personally, such subsequent facts do not constitute a new cause of action so as to make it improper to set them up by supplemental complaint.

Hasbrouck v. Shuster, 4 Barb. 285.

SMITH v. WHEELER.'

[55 App. Div. 170; 100 St. Rep. 780; 66 Supp. 780.]

(Supreme Court, Appellate Division, Third Department. November 14,

1909.)

BANKRUPTCY-EFFECT OF DISCHARGE-PROVABLE CLAIM.
The claim of the payee of a pote against the maker by reason of his

having paid the judgment obtained against him and the maker by
the indorsee, the payment being after the maker had filed his petition
in bankruptcy, is within Bankr. Act 1893, § 17, making a discharge in
bankruptcy a release of the bankrupt from all his “provable debts;"

NOTE.—DEBTS BARRED BY DISCHARGE IN BANKRUPTCY.

a. Statutes.
b. In general.
c. Debts created by fraud.
à. Debts created in a fiduciary capacity
e. Where the bankrupt is a partner.
f. Bankrupt's liability as a surety.
g. New promise to pay.

a. Statutes.

U. 8. Act of 1898. Sec. 17. Debts not Affected by a Discharge.

(a.) A discharge in bankruptcy shall release a bankrupt from all his provable debts except such as

(1.) Are due as a tax levied by the United States, the state, county, district, or municipality in which he resides;

(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 ;

(3.) Have not been duly scheduled in time for proof and allowance,

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section 67, subd. i, providing that when a creditor whose claim against the bankrupt is secured by the individual undertaking of any person fails to prove such claim, such person may do so in the creditor's name, and, if he discharge such undertaking, he shall be subrogated to the rights of the creditor.

Appeal from special term, Delaware county.

Action by Orrin W. Smith against Marvin D. Wheeler. From a judgment on a decision dismissing the complaint, plaintiff appeals. Affirmed.

On the 19th of November, 1896, the defendant executed and delivered to the plaintiff his promissory note dated that day for $550.19, payable to the order of plaintiff four months from the date thereof at the Delaware National Bank. The note was given for a debt on contract then due from de fendant to the plaintiff. It was duly endorsed and transferred by the

Debts BARRED BY DISCHARGE IN BANKRUPTCY,-continued.

with the name of the creditor if known to the bankrupt, unless such cred. itor had notice or actual knowledge of the proceedings in bankruptcy; or

(4.) Were created by fraud, embezzlement, misappropriation or defal. cation while acting as an officer or in any fiduciary capacity.

U. S. Act of 1867. Sec. 33. That no debt created by the fraud or embezzle ment of the bankrupt or by his defalcation as a public officer, or while act: ing in a fiduciary character, shall be discharged under this act.

b. In general.

The question how a discharge affects particular debts is not to be de termined at the time the discharge is asked for but subsequently when tho bankrupt is sued on that debt and sets up the discharge as a defense.

Matter of Thomas, 1 Am. B. R. 515. (1899.)
Matter of Rhutassel, 2 Am. B. R. 697. (1899.)
Matter of Carmichael, 2 Am. B. R. 815. (1899.)

Unless a debt of the bankrupt falls clearly within one of the exceptions included in section 17 of the bankruptcy act, he will be discharged from it.

Where the debt was not proven in bankruptcy proceedings and upon a prior proceeding under a state insolveney law it was proven and discharge of debtor refused, the court held that the debt was discharged by the federal proceeding

Jean v. justices of the Municipal Court, 2 Am. B. R. 163. (1899.)

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plaintiff to the bank above named, was not paid at maturity, and was duly protested. The bank afterwards brought an action in the supremo court on the note against both parties, and on the 16th day of August, 1897, duly recovered a judgment against them for the sum of $586 damages and costs. An execution was issued thereon, and on the 31st day of October, 1898, the plaintiff paid the amount thereof, being the sum of $650.39. That amount the plaintiff in thi saction seeks to recover of the defendant. On the 18th day of August, 1898, the defendant filed in the proper court his petition in bankruptcy, and was on that day adjudicated a bankrupt. In the schedule of liabilities attached to the petition there was a statement of the judgment recovered bythe bank. On the 7th day of February, 1899, a discharge was duly granted the defendant, pursuant to the act of Congress on that subject then in force. The defendant set up the discharge as a defense to this action. Th court held the defense a good one, and dismissed the complaint.

Argued before PARKER, P. J., and KELLOGG, EDWARDS, MERWIN, and SMITH, JJ.

C. L. Andrus, for appellant.
Arthur More, for respondent.

DEBTS BARRED BY DISCHARGE IN BANKRUPTCY,-continued.

A judgment obtained, against the bankrupt in an action for criminal conversation is not affected by his discharge in bankruptcy.

Matter of Tinker, 3 Am. B. R. 580. (1900.)
Liability to pay alimony is not released by a discharge in bankruptcy.
Matter of Smith, 3 Am. B. R. 67. (1899).
People v. Grell, 99 St. Rep. 522; 65 Supp. 522. (1900).
Matter of Houston, 2 Am. B. R. 107. (1899).
Matter of VanOrden, 2 Am. B. R. 801. (1899).

The bankrupt may waive the discharge and allow judgment to be recovered against him for the original debt.

Dewey v. Moyer, 16 N. B. R. 1. (1877).

Where a judgment has been obtained against a bankrupt in an action, brought subsequent to his adjudication, in which action he failed to plead his discharge, the court has no right to grant relief.

Matter of Ferguson, 16 N. B. R. 530. (1875).

A judgment recovered pending the bankruptcy proceedings, in an action begun before, and based upon a provable debt, is released by a discharge of the judgment debtor in bankruptcy.

Matter of Stansfield, 16 N. B. R. 268. (1877).

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MERWIN, J. The question here is whether the discharge is a bar to the claim of the plaintiff. A discharge in bankruptcy releases a bankrupt from all of his provable debts, with certain exceptions, not important here. Section 17, Bankr. Act 1898. If the claim of the plaintiff was a provable debt within the meaning of the bankrupt act, then the discharge is a bar. By subdivision “i” of section 57 of the act it is provided as follows:

"Whenever a creditor, whose claim against a bankrupt is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor's name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor.”

In the bankrupt act of 1867 (chapter 176, § 19 [Rev. St. $ 5070]) there was a similar provision, and under it it was held in Hunt v. Taylor, 108 Mass. 508, that the liability of the

DERTS BARRED BY DISCHARGE IN BANKRUPTCY,-continued.

A debt for the purchase money of land is barred by the discharge.
Hoskins v. Wall, 17 N. B. R. 314. (1877).

A discharge in bankruptcy may be set up, in an action to set aside a conveyance in fraud of creditors, in bar of a personal judgment against the bankrupt other than a subjection of the property, but it is not good as a general defense to such an action.

Phelps v. Curts, 16 N. B. R. 85. (1875).

Where the bankrupt, by the terms of a lease, has agreed to pay rent at stated periods, the discharge in bankruptcy releases him from the liabil. ity for the proportionate part of the rent up to the time of the bankruptcy proceedings but not as to the part growing due thereafter.

Treadwell v. Marden, 18 N. B. R. 353. (1877).
Robinson v. Pesant, 8 N. B. R. 426. (1873).

If a discharge may be a bar to a debt, a suit at law to collect the same must be stayed until the bankruptcy proceedings are determined, providing such application for discharge has been prosecuted with reasonable dil. igence.

Matter of Archenbrown, 11 N. B. R. 149. (1875).

A discharge in bankruptcy will release a judgment for breach of promise to marry obtained against the bankrupt.

Matter of McCauky, 4 Am. B. R. 122. (1900).

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