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DEBTS BARRED BY DISCHARGE IN BANKRUPTCY,-continued.

has been entered upon it; and such debt in the form of a judgment is not released.

Packer v. Whittier, 1 Am. B. R. 621. (1899).

Where judgment has been rendered in an action for deceit, the original cause of action is not so merged therein as to preclude the examination of the record and proof to show that the action was one founded on fraud. Matter of Whitehouse, 4 N. B. R. 63.

(1868).

All the debts which have been proved, including those created by fraud, are discharged by a composition in bankruptcy.

Matter of Boyd, 16 N. B. R. 204. (1877).

d. Debts created in fiduciary capacity.

Debts of the bankrupt, arising from misappropriation by him in a fiduciary capacity are not released by the discharge in bankruptcy. Claflin Dry Goods Co. v. Eason, 2 Am. B. R. 263. (1899).

A factor or commission merchant stood in a fiduciary relation to his principal within the meaning of the bankruptcy act of 1867.

Matter of Seymour, 1 N. B. R. 29. (1867).

Lenke v. Booth, 5 N. B. R. 351. (1871).

Matter of Kimball, 2 N. B. R. 354. (1868).

Meador & Bro. v. Sharpe, 14 N. B. R. 492. (1875).

Above rule was recognized as prevailing in

Barber v. Sterling, 17 N. B. R. 218. (1877).
Contra.

Keime v. Graff & Co. 17 NR. 319. (1878).

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Owsley & Co. v. Corbin & Co. 15 N. B. R. 489. (1877).

A discharge in bankruptcy releases the liability of a factor for the proceeds of goods consigned to him for sale.

Matter of Smith, 18 N. B. R. 24. (1878).

A discharge in bankruptcy will not affect a debt growing out of the conversion by an attorney of money or property placed in his hands by a client. Flannagan v. Pearson, 14 N. B. R. 37. (1875).

A debt arising from the conversion of property of a conditional vendor by the bankrupt is not barred by a discharge in bankruptcy.

Johnson v. Worden, 13 N. B. R. 335. (1876).

Where an agent agrees to collect money and after deducting his commissions pay over the balance monthly to his principal, money so collected but not turned over to the principal is a debt subject to discharge under the bankruptcy law.

Grover & Baker v. Clinton, 8 N. B. R. 312. (1872).

Fiduciary debts are discharged by a composition in bankruptcy.
Rodger v. Wardrobe, 18 N. B. R. 252. (1878).

DEBTS BARRED BY DISCHARGE IN BANKRUPTCY,--continued.

e. Where the bankrupt is a partner.

Where a part of the debts of the bankrupt are those owed by a firm of which he was once a member, he cannot be discharged from such partnership debts without making his partners parties to the bankruptcy proceeding.

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Matter of Carmichael, 2 Am. B. R. 815. (1899).
Hudgins v. Lane, 11 N. B. R. 462. (1874).
Matter of Little, 1 N. B. R. 341. (1867).
Matter of Hartman, 3 Am. B. R. 65.
Matter of McFaun, 3 Am. B. R. 66. (1899).
Matter of Plumb, 17 N. B. R. 76.
Contra.

(1899).

(1878).

Matter of Abbe, 2 N. B. R. 75. (1868).

Wilkins v. Davis, 15 N. B. R. 60. (1876).

A bankrupt, who is one of the members of a firm, may, however, be dis charged from the firm debts if proper foundation is laid in his bankruptcy proceedings. The necessary steps to be taken are pointed out in

Matter of Laughlin, 3 Am. B. R. 1. (1899).

If at the date of the bankruptcy proceedings by which one member of a partnership was adjudged a bankrupt, no partnership property remained, the bankruptcy proceeding will be a good defense for the bankrupt in a subsequent action brought against the firm for a firm debt. Crompton v. Conkling, 15 N. B. R. 417. (1877).

f. Bankrupt's liability as surety.

A discharge in bankruptcy does not release the bankrupt's liability as a surety for the faithful performance of duty by a public officer. United States v. Herron, 9 N. B. R. 535. (1873.)

Contra.

United States v. Throckmorton, 8 N. B. R. 309. (1872).

A bankrupt is released from his liability as surety on a guardian's bond.

Reitz v. The People, 16 N. B. R. 96. (1874).

Ex parte Taylor, 16 N. B. R. 40. (1877).

A contingent liability of the bankrupt as surety on an injunction bond is not released by his discharge in bankruptcy.

Eastman v. Hibbard, 13 N. B. R. 360. (1876).

Where the liability on a contract, though contingent, is capable of determinution, at the time of the commencement of the proceedings in bankruptcy, the debtor will be released therefrom by his discharge.

Jones & Cullom v. Knox, 8 N. B. R. 559. (1872).

DEBTS BARRED BY DISCHARGE IN BANKRUPTCY,-continued.

g. New promise to pay.

A discharge in bankruptcy, while it operates as a discharge of the legal obligation, does not affect the moral obligation of the debtor to pay his debts.

Mutual Reserve Fund life Assn. v. Beatty, 2 Am. B. R. 244.

(1899).

A recovery may be had upon a debt, which there has been a promise to pay, subsequent to the discharge of the debtor in bankruptcy. Classen v. Schoeneman, 16 N. B. R. 98. (1875).

While a promise, made after receiving a discharge in bankruptcy, to pay a debt from which the debtor had been discharged, is valid, such a promise made before the discharge is not enforceable, being without consideration. Ogden & Redd, 18 N. B. R. 317. (1877).

A letter, written by a debtor, some years after he had been declared a bankrupt, to a creditor, stating that “ . at the present time I am in no condition to pay when I am in a position to pay there is no one I would more cheerfully pay. I have a number of interests in real estate and hope to realize on some of them soon and when I do I will not forget the deceased friend's family" does not constitute a promise to pay which will revive the debt.

Kiernan v. Fox, 43 App. Div. 58; 93 St. Rep. 330; 59 Supp. 330. (1899)

WEST v. BACON.

[164 N. Y. 425; 58 N. E. 522.]

(Court of Appeals. Nov. 16, 1900.)

ATTORNEY AND CLIENT-LIEN-WAIVER-TRUST DEED.

A deed of trust in which an attorney declared that he held certain property for purposes expressed in a judgment referred to "and in no other way," and further specified that, on conveyance as the beneficiary should elect, he (the trustee) would pay over the proceeds of the sale of the property to the beneficiary, operates as a waiver of any lien claimed by the attorney on the property for services or disbursements in behalf of the beneficiary.*

Parker, C. J., dissenting.

*For note on "Enforcement of Attorney's Lien, see 8 Ann. Cas. 74-100. For note on "Attorney's Lien on Alimony," see 7 Ann. Cas. 257-258. For note on "Attorney's Lien in Surrogate's Court," see 7 Ann. Cas. 165– 167.

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Appeal from supreme court, appellate division, first depart

ment.

Action by Stephen A. West against Alexander S. Bacon. From an order and judgment of the appellate division (13 App. Div. 271; 77 St. Rep. 206; 43 Supp. 206) modifying and affirming a judgment in favor of defendant, plaintiff appeals. Modified and affirmed.

Argued before PARKER Ch. J., GRAY, O'BRIEN, HAIGHT, LANDON, CULLEN and WERNER, JJ.

This action was brought to compel the defendant, as trustee of the plaintiff, to convey to the latter or his nominee the premises described in the complaint. Prior to November 8, 1889, the plaintiff's wife was the owner of said premises. On that day she transferred the same to one J. Adriance Bush. This conveyance she subsequently sought to annul in an action wherein she claimed that it was made in reliance upon certain false and fraudulent representations and promises made by her husband during a temporary reconciliation between them, and after the discontinuance of a suit for a separation brought by her against him. The plaintiff in this action was allowed to intervene in the action to annul said conveyance, and was given judgment therein, declaring that Bush was a mere naked trustee, holding the premises free and clear of all the "dower rights, liens, or interests whatsoever" of the said wife, and further providing that said defendant "J. Adriance Bush holds said property for the benefit of Stephen A. West, free and clear of any and all dower rights or other liens or interests whatsoever of said Kate B. West," and directing that said trustee should make, execute, and deliver to said Stephen A. West, or to any person whom he might designate, a good and sufficient deed, etc. On the 29th day of December, 1892, said Bush, as such trustee, executed and delivered to the defendant a deed of said premises, which recites the provisions

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of said judgment, and that it is made upon the request of the plaintiff herein. On the 30th day of December, 1892, the defendant executed and delivered to the plaintiff the following declaration of trust: "This declaration of trust made this 30th day of December, 1892, by Alexander S. Bacon, of Brooklyn, N. Y., in favor of Stephen A. West, of New York City, N. Y., witnesseth: Whereas, I, said Alexander S. Bacon, have this day received from J. Adriance Bush, Esq., a deed to premises known as 'No. 61 East One Hundred Twenty-Eighth Street, New York City,' under and pursuant to the terms of a certain judgment of the New York supreme court, a copy of which is hereto annexed and made a part hereof, I do hereby declare that I hold said property for the purposes expressed in said judgment, and in no other way, to wit, to hold the same for the benefit of said Stephen A. West, free and clear of any and all dower rights or other lien or interest whatsoever of Kate B. West, wife of said Stephen A. West, and to convey the same to such person as said Stephen A. West may in writing direct, and to pay over the proceeds of such sale to said Stephen A. West." On the 3d day of May, 1895, plaintiff served upon the defendant a written demand for the transfer of said premises to one Charles D. Ridgway, who is the plaintiff's attorney in the present action. The defendant refused to comply with this demand upon the grounds, as stated in his answer, that he claims a lien upon said lands as the proceeds of the judgment in the action brought by plaintiff's wife against said Bush as trustee, and in which the plaintiff herein was permitted to intervene as a defendant, and also a further lien for his general services as attorney and fees as trustee.

The supreme court, at special term, without deciding whether defendant had a lien upon the lands described in the complaint, held that he was entitled to recover as trustee, for his services, disbursements, and fees, the sum of $294.02, and also "the sum of $500 for his services rendered in other actions and proceed ings for the plaintiff," and directed the defendant to deliver to the plaintiff or to his order a deed of the said premises upor

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