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or to answer any material question approved by the court." 6 A discharge was denied where there were no dischargeable debts.? It has been held that a bankrupt, who failed to apply for his discharge within the time limited by the present bankruptcy law, cannot thereafter file a second petition and obtain a discharge from the debts which were scheduled and provable in the previous bankruptcy; 8 an order refusing to confirm composition is not a bar to a subsequent discharge.
8 657. Obligations released by discharge. "A discharge in bankruptcy shall release a bankrupt from all of 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; 1 (2) are liabilities for obtaining property by false pre
6 30 St. at L. 544, 550, $ 14, as amended, June 25, 1910, ch. 412, $ 6, 36 St. at L. 839, Comp. St. $ 9598.
7 Re Gullick, 190 Fed. 52.
8 Re Silverman, C. C. A., 157 Fed. 675; Re Elby, 157 Fed. 935; Re Bramlett, 161 Fed. 588; Re Von Borries, 168 Fed. 718; Re Stone, 172 Fed. 947; Re Westbrook, 186 Fed. 414; Re Bacon, C. C. A., 193 Fed. 34; Re Springer, 199 Fed.
Re Loughran, 215 Fed. 271; Siebert v. Dahlberg, C. C. A., 218 Fed. 293; Re Skaats, 233 Fed. 817; Re Schwartz, 248 Fed. 841; Horner v. Hamner, C. C. A., 249 Fed. 134; Re Spangler, 256 Fed. 62. In the latter proceeding the court should limit the discharge so as to exclude claims prior to the former petition. Re Westbrook, 186 Fed. 414; Pollet v. Cosel, C. C. A., 30 L.R.A. (N.S.) 1164, 179 Fed. 488; Re Pul. lian, 171 Fed. 595. The dismissal of a bankrupt 's petition for want of prosecution has the
effect. Rc Kuffler, 144 Fed. 445. The failure of a partnership to apply for a discharge does not affect the rights of an individual partner who has not then been so adjudicated to ob
Fed. Prac. Vol. III-85
tain his discharge in a subsequent proceeding. Horner v. Hamner, C. C. A., 249 Fed. 134.
9 Re McVoy Hardware Co., C. C. A., 200 Fed. 949.
$ 657. 1 A claim that is disallowed is not a non-provable debt, when the disallowance is because it is without foundation, and the discharge in bankruptcy is a bar to a suit thereupon. Lesser V. Gray, 236 U. S. 70. A claim that is capable of liquidation is provable and dischargeable. Williams v. U. S. Fidelity & Gy. Co., 236 U. S. 549. A claim of a surety upon a contract broken prior to the bankruptcy is dischargeable although the damage was not paid until subsequently. Ibid. A claim which arises between the adjudication and the discharge is not dischargeable in the proceeding. Zavelo v. Reeves, 227 U. S. 625, 631. Such are a promise to repay money loaned for use in a composition and a promise to pay a debt in full in case the composition is confirmed, although based upon no consideration provided that it is not obtained by extortion or constitutes a secret and fraudulent agree
tenses or false representations, or for wilful and malicious injuries to the person or property of another,3 or for alimony due ment at the expense of other credi- that, in order to except the debt tors. Ibid. See supra, 8 653, It from the discharge, the false reprehas been held that a claim for per- sentations need not have been made sonal tort, which has not been re- in writing.
Katzenstein v. Reid duced to judgment before the bank- (Texas Ct. App.), 16 Am. B. R. ruptcy, is not dischargeable. Re 740; nor need the bankrupt have N. Y. Tunnel Co., 159 Fed. 688; known their falsity, if he made Pearlman v. Booth, 160 App. Div. them recklessly. Ibid; and that (N. Y.) 219. See supra, 8 619, they may have been made to a mer647.
cantile agency in order to obtain 2 A discharge in bankruptcy does credit, and not to any particular not release a debt caused by fraudu- creditor. Ibid. See supra 8 656. lent and material misrepresenta- See also Bullis v. O'Beirne, 195 U. tions, Forsyth v. Vehmeyer, 177 U. S. 606, 49 L. ed. It has been held S. 177, 44 L. ed. 723; Packer v. that the cause of action for the Whittier, C. C. A., 91 Fed. 511; fraudulent representations is waived Re Wollock, 120 Fed. 516; or con- by an action for conversion. Re Entracted when the debtor knew that nis & Stoppani, 171 Fed. 755; Maxhe was insolvent and intended not well v. Martin, 130 App. Div. (N. to pay it, Ames v. Moir, 138 U. S.
Y.) 80; contra, Kavanaugh v. Mc306, 34 L. ed. 951. The fraud must Intyre, 128 App. Div. (N. Y.) 722; be actual, not constructive. Re S. C., 74 Misc. (N. Y.) 222; or by Nuttall, 201 Fed. 557, 56; Re Shep- filing a claim for the goods sold, ardson, 220 Fed. 186. It has been Standard Sewing Mach. Co. v. Katheld that the word “property" does tell, 132 App. Div. (N. Y.) 539; not include the services of an at
Standard Varnish Works torney. Re Thaw, 180 Fed. 419, Haydock, C. C. A., 143 Fed. 318; aff'd Gleason v. Thaw, C. C. A., 185 Harv. Law Rev., Dec. 1909; and in Fed. 361; Gleason v. Thaw, 236 U. such cases it is barred,
But see S. 558 affirming C. C. A., 196 Fed. Friend v. Talcott, 228 U. S. 27, 359; see Gleason v. O'Mara, C. C. cited infra. A., 180 Fed. 417; but that a judg- 3 It has been said: that the words ment for false representation in ob- "wilful and malicious injuries'' do taining a bond is not dischargeable, not imply express malice; but that Re Dunfee, 219 N. Y. 188. The the word “malicious' is used in its word "false" means fraudulent. ordinary legal sense. McChristal v. Gilpin v. Merchants' Nat. Bank, C. Clisbee, 190 Mass. 120; Re Halper, C. A., 20 L.R.A. (N.S.) 1023, 165 82 Misc. (N. Y.) 205. Liabilities Fed. 607. But an indebtedness thus for assault and battery, Re Colaincurred through the false repre- luca, 133 Fed. 255; Re Conroy, C. sentation of one partner will not be C. A., 237 Fed. 817; McChristal v. barred by the discharge of the Clisbee, 190 Mass. 120; false imother. Frank v. Michigan Paper prisonment, McChristal v. Clisbee, Co., C. C. A., 30 L.R.A.(N.S) 623, 190 Mass. 120, 3 L.R.A.(N.S) 702; 179 Fed. 776. It has been said: malicious prosecution, McChristal v.
or to become due,4 or for maintenance or support of wife or child," or for seduction of an unmarried female, or for breach of promise of marriage accompanied by seduction, or for criminal conversation; 8 (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupto unless such creditor had notice or actual knowledge of the proceedings in bankruptcy; 10 or (4) were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer 11 or in any fiduciary capacity.” 12
Clisbee, 190 Mass. 120, 3 L.R.A. (N.S.) 702; libel, McDonald Brown, 23 R. I. 546, 58 L.R.A. 768, 91 Am. St. Rep. 659; intentional, and wilful conversion, McIntyre v. Kavanaugh, 242 U. S. 138; Re Arnao, 210 Fed. 395; Re Keeler, 243 Fed. 770; are not released by a discharge. Nor it has been held are claims for forcible dispossession although unaccompanied by expressed malice, Re Munro, 197 Fed. 450; and alienation of affection not accompanied by seduction; Leicester v. Hoadley, 66 sas, 172, 65 L.R. A. 523. The discharge bars claims for conversion, which is not wilful. Re Ennis & Stoppani, 171 Fed. 755; Re Toklas Bros., 201 Fed. 377; Wild v. Schelhorn, N. Y. City Court per Allen, J., N.Y.L.J. April 25, 1916. See Kreitlein v Ferger, 238 U. S. 21. Contra, Kavanaugh v. McIntyre, 128 App. Div. (N. Y.) 722; s. C., 74 Misc. (N. Y.) 222; Maxwell v. Martin, 130 App. Div. (N. Y.) 80.
4 Re Pyatt, 257 Fed. 362; Re Vadner, .259 Fed. 614. This includes a judgment for alimony entered in one State upon a decree of divorce entered in another. Matter of Williams, 152 App. Div. (N. Y.) 385. A debt for medical attendance furnished to the wife or child of the bankrupt at his request, while they were living together, is discharged. Re Ostrander, 139 Fed. 592.
B Including a judgment in a bastardy proceeding. Re Baker, 96 Fed. 954.
6 Re Maples, 105 F¢d. 919.
7 See Re Warth, C. C. A., 200 Fed. 408, reversing 196 Fed. 571; Re Komar, 234 Fed. 378; In re Grounds, 215 Fed. 280.
8 The enumeration of debts in the exceptions does not enlarge the class of debts which are prov. able under the subsequent section of the statute. Brown & Adams v. United Button Co., C. C.' A., 8 L.R. A. (N.S.) 961, 149 Fed. 48; Re N. Y. Tunnel Co., C. C. A., 159 Fed. 688; supra, $ 647; nor authorize the proof of liabilities for tort disconnected with any contract. Ibid. Debts, which are not provable, are not released by a discharge.
Dunbar v. Dunbar, 190 U. S. 340, 350, 47 L. ed.
Re Moore, 111 Fed. 145. Such are: a fine imposed by a State court for a criminal contempt, Re Hall, 170 Fed. 721; a suit to compel a corporation to issue a certificate of stock, Re Clipper Mfg. Co., C. C. A., 179 Fed. 843. So it has been held are a “put” or agreement to take a certain number of shares of stock at a specified price, at the option of the plaintiff, at any time prior to a specified date, Phænix Nat. Bank v. Waterbury, 197 N. Y. 161; and a judgment in favor of the People of the State upon an appeal bond. People of the State of New York v. Smith, N. Y. Sup. Ct., Sp. Tm., Erlanger, J., N. Y. L. J. April 25, 1912, and cases cited. It has been held that an unliquidated debt may be discharged, Re Hilton, 104 Fed. 981. Since judgments are provable, a judgment for a tort not of the class specified in this section of the bankruptcy law is released by the discharge in bankruptcy, Re Conroy, C. C. A., 237 Fed. 817; Burnham v. Pidcock, 58 App. Div. (N. Y.) 273, 5 Am. B. R. 590, affirming 5 Am. B. R. 42; even if the claim before judgment was not provable. Such is a judgment for personal injuries by negligence, Re Wakefield, 207 Fed. 180; McClellan v. Schmidt, 235 Fed. 986; Re Madigan, 254 Fed. 221; but see article by Frank O. Loveland, Esq., 20 Case & Comment 591; or for injury to property by negligence, Re Cunningham, 253 Fed. 663. A judgment for a debt belonging to one of the classes described in the statute is not. Audubon v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009. It has been held that the burden of proof is on the judgment creditor to show that it is not dischargeable. Re Levitan, 224 Fed. 241. The recital, in a judgment, of the nature of the cause of action does not control the Court of Bankruptcy. But see Re Shepardson, 220 Fed. 186.
9 Miller v. Guasti, 226 U. S. 170, 57 L. ed. —; Bergmann v. Manes, 141 App. Div. (N. Y.) 102; Horbach v. Arkell, 172 App. Div. (N. Y.) 566; The Merchants Bank of Brooklyn v. Miller, 176 App. Div. (N. Y.) 413. The use in the schedule of an initial instead of the cred. itor's full given name did not prevent the discharge from releasing the judgment, Kreitlein v. Ferger, 238 U, S. 21. Where it is known that the debt has been assigned, its description in the schedule simply by the name of the assignor is insufficient. Columbia Bank v. Birkett, 174 N. Y. 112, 102 Am. St. Rep.
478; S. C., Birkett v. Columbia Bank, 195 U. S. 345, 49 L. ed. 231. The rule is otherwise when the bankrupt had no notice of the assignment. Lent v. Farnsworth, 180 N. Y. 503. It is sufficient to procure the discharge of a stockholder 's liability, when the schedules name the receiver appointed in the suit to enforce the same. Birkett v. Columbia Bank, 195 U. S. 345, 49 L. ed. 231. In such a
case it was held that the debt was not discharged when notice of the assignment was obtained by the bankrupt in ample time to amend his schedules before the first meeting of the creditors. Pendleton, J., N. Y. L. J. Nov. 25, 1914. It is insufficient to describe the creditor's residence as unknown when it might have been ascertained by the exercise of due diligence. Hyde Park Flint Bottle Co. Miller, 179 App. Div. (N. Y.) 73. It is insufficient to give the office or business address instead of the residence. McKee v. Preble, 138 N. Y. Supp. 9150., Where a debt was scheduled in the name of a creditor who is dead, but of whose death the bankrupt was not aware, this was held to be sufficient. Wheeler v. Emmeluth, 58 Hun 369, aff'd 125 N. Y. 750; Lent v. Farnsworth, 94 App. Div. 99, aff 'd 180 N. Y. 503. Where partnership debts of a firm, to which the bankrupt belonged, were not properly described in the schedules attached to a petition for individual bankruptcy; it was held that they were not discharged. Re Monroe, 114 Fed. 398; Re Faun, 96 Fed. 592. But Kreitlein Ferger, 238 U. S. 21.
10“ Actual knowledge of the proceedings contemplated by the section is a knowledge in time to avail a creditor of the benefits of the law in time to give him an equal opportunity with other creditors—not a knowledge that may come so late as to deprive him of participation in the administration of the affairs of the estate or to deprive him of dividends." Birkett v. Columbia Bank, 195 U. S. 345, 350, 49 L. ed. 231, per McKenna, J. Information from a person not therewith connected that bankruptcy proceedings were pending is insufficient. Wheeler v. Newton, 168 App. Div. (N. Y.) 783.
It has been held that the burden of proof is the bankrupt to prove that a creditor whose debt was not scheduled had notice of the proceeding. Grabe v. Gault, 103 App. Div. (N. Y) 511.
But see Kreitlein v. Ferger, 238 U. S. 21.
11 The word "officer') in the phrase "while acting as an officer") has been held to include officer of a private corporation, such as a national bank. Re Harper, 133 Fed. 970, affirmed as Harper v. Rankin, C. C. A., 141 Fed. 626; Re Gulick, 186 Fed. 350, a private corporation. But see Re Floyd, Crawford & Co., 15 Am. B. R. 277.
12 30 St. at L. 544, 550, $ 17, amended Feb. 5, 1903, ch. 487, 55, 32, St. at L. 798, amended March 2, 1917, ch. 153, 39 St. at L. 999, Comp. St. $ 9601. It has been said that the words "fiduciary capacity'' imply one that exists independently of the particular transaction, out of which the debt arises. Up
shur v. Briscoe, 138 U. S. 365, 34 L. ed. 931; Re Harper, 133 Fed. 970, affirmed as Harper v. Rankin, C. C. A., 141 Fed. 626. "The words, in the fourth division of section 17, 'while acting as
an of ficer, or in any fiduciary capacity,' extended to 'fraud, embezzlement, misappropriation, as well as 'defalcation.'11
Tindle v. Birkett, 205 U. S. 183, 186, 51 L. ed. 762, 764, per Fuller, C. J.
"The word ‘fraud' means moral turpitude or intentional wrong.” Re Blumberg, 94 Fed. 476, 479. It has been held: that the fraud itself must be “the foundation of the right and of the recovery." Re Blumberg, 94 Fed. 476, 479, and that, within the meaning of this section of this statute, it does not consist simply in fraudulent conveyances to defeat the collection of the debt. Re Blumberg, 94 Fed. 476. The discharge releases a debt due by a stock broker, Hennequin v. Clews, 111 U. S. 676, 28 L. ed. 565; Palmier v. Hussey, 119 U. S. 96, 30 L. ed. 362; Crawford v. Burke, 195 U. S. 176, 49 L. ed. 147; Barrett v. Prince, C. C. A., 143 Fed. 302; Wood v. Fisk, 215 N. Y. 233; Knott v. Putnam, 107 Fed. 907; Chapman v. Forsyth, 2 Howard, 202, 11 L. ed. 236; Bills v. Schliep, C. C. A., 127 Fed. 103; Re Adler, C. C. A., 152 Fed. 422; Mathieu v. Goldberg, 156 Fed. 541; Re Gulick, 186 Fed. 350; Re Toklas Bros., 201 Fed. 377, or attorney, Upshur v. Briscoe, 138 U. S. 34 L. ed. 931; for the conversion of money or other property of his principal, and the obligation of