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drawee upon a bill of exchange accepted and dishonored by him to an indorser who then pays it is barred by a discharge of the drawee in bankruptcy proceedings begun after his dishonor of the bill, though before the payment by the indorser. The action in that case was for money paid to the defendant's use. In Mace v. Wells, 7 How. 272; 12 L. ed. 698, a similar provision in the bankrupt act of 1841 was under consideration, and it was held that the bankrupt was discharged by his certificate from all liability to the surety for money subsequently paid on account of the debt. These authorities are quite persuasive, if not controlling, on the question before us. No different rule was, I think, intended to be adopted by the act of 1898, although the wording of the provision differs in some respects from the prior acts. See Lowell, Bankr. 132, 316, 465. It must be held, I think, that the claim of the plaintiff was provable under the bankrupt act, and that, therefore, the discharge is a bar. Judgment affirmed, with costs. All concur.


An unliquidated claim that might have been liquidated and proved against the bankrupt, but which was voluntarily withheld for more than fifteen months after adjudication should be treated as a provable debt and so barred by the discharge.

Matter of Hilton, 4 Am. B. R. 774.


A judgment obtained against the bankrupt by a father for damages for the loss of services of his daughter by reason of her seduction by the defendant is not a judgment in an action "for willful and malicious injuries to the person or property of another" as prescribed by section 17 of the Bankruptcy Act of 1898.

Matter of Sullivan, 2 Am. B. R. 30. (1899).

Where a judgment is entered in an action for a personal tort, after the commencement of the bankruptcy proceedings, upon a verdict rendered theretofore, it is not a provable debt.

Black v. McClelland, 12 N. B. R. 481. (1875).

The discharge of a corporation does not affect the secondary liability of its directors.

Matter of Marshall Paper Co. 2 Am. B. R. 653. (1899).


A discharge of a principal, which terminates a case pending in a state court against him, also releases a surety on the appeal in the case. Odell v. Wootten, 4 N. B. R. 183. (1868).

A discharge does not affect the liability of a guardian to his ward.
Matter of Maybin, 15 N. B. R. 468. (1876).

A claim arising from a wrongful conversion of personal property is released by the discharge of the debtor in bankruptcy.

Cole v. Roach, 10 N. B. R. 288. (1874).

c. Debts created by fraud.

Section 17 of the bankruptcy act embraces only judgments for frauds etc., and cannot be extended to include claims not in judgment or judg ments based on contract, express or implied.

Matter of Rhutassel, 2 Am. B. R. 697. (1899).

The word "fraud" means moral turpitude or intentional wrong.
Matter of Blumberg, 1 Am. B. R. 633. (1899).

Neal v. Clark, 95 U. S. 704. (1877).

A debt must be actually founded upon fraud in order not

by a discharge in bankruptcy.

Matter of Blumberg, 1 Am. B. R. 633. (1899).

Brown, Randall & Co. v. Broach, 16 N. B. R. 296. (1876).
Conversion is not a fraud.

Matter of Basch, 3 Am. B. R. 235. (1899).
Hennequin v. Clews, 111 U. S. 676. (1884).

be released

Where the bankrupt obtained a loan of money from a bank, by false representations as to the amount of property owned by him, and gave his promissory note, a judgment obtained upon the note does not fall within the section 17 of the bankruptcy act which declares that a "judgment in an action for fraud or obtaining property by false pretenses or false representations" is not released by a discharge in bankruptcy.

Matter of Rhutassel, 96 Fed. 597.




Where one of the debts of the bankrupt was created by fraud, such fraud is not sufficient for refusing a general discharge, where such debt would not be released thereby.

Matter of Thomas, 1 Am. B. R. 515. (1899).

Matter of Clarke, 2 N. B. R. 110.


Matter of Rathbone, 1 N. B. R. 324.
Matter of Rosenfield, 1 N. B. R. 575.
Matter of Stokes, 2 N. B. R. 212.
Matter of Lieber, 3 Am. B. R. 217.



That the debt was created by fraud may be shown although judgment


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.


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.


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).


Keime v. Graff & Co. 17 NR. 319.
Woolsey v. Cad
K. 238. (1876).
Owsley & Co. v. Corbin & Co. 15 N. B. R. 489.

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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).


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.

Matter of Freund, 1 Am. B. R. 25.


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.
Matter of Plumb, 17 N. B. R. 76.


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.


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.)


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 determination, 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).


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.


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)


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

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


A deed of trust in which an attorney declared that he held certain prop. erty 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

N. Y. A. C.


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