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the legislature of Massachusetts, and is constitutional, and applies to cases pending when the statute was passed.1 In a few cases it was held that fraud on a particular creditor by omitting his name from the schedule would authorize him to impeach the discharge collaterally, but these rulings assumed unwarrantably that such a fraud could not be set up by other creditors to prevent the discharge, and was therefore a casus omissus.

§ 428. Application for Discharge is heard as soon as possible. It is the intent of the statutes and the practice of the courts to expedite the hearing and decision of this question, as far as is consistent with justice. They will, therefore, refuse to await the result of protracted litigation in other courts, such as suits involving disputed accounts, titles, etc., though they might, if settled, affect the opinion of the court as to the conduct of the bankrupt, or the amount of assets or debts, and thus incidentally the right to a discharge. The proceedings, however, should be postponed to permit proof by creditors who from no fault of their own have been unable to prove, if their action may possibly have an influence upon the decision; as when the discharge depends upon the votes of creditors; 4 otherwise, when it can have no effect.5

§ 429. Provable Debts are Discharged. All debts made provable by the statute are discharged unless expressly excepted by the statute itself, and this whether they could in fact be proved or not, and whether the creditor was notified or not. And, on the other hand, debts not of a kind to be

1 Stat. (Mass.) 1879, c. 245, § 4; Pub. Sts. c. 157, § 81; Kempton v. Saunders, 130 Mass. 236.

2 See Batchelder v. Low, 43 Vt. 662; Poillon r. Lawrence, 77 N. Y. 207.

3 Ex parte Lee, L. R. 3 Ch. 150; Ex parte Rayne, ib. 152; Ex parte Johnson, 1 Atk. 81; Ex parte Blaydes, 1 Gl. & J. 179.

4 Ex parte Smith, 1 Gl. & J. 195; Ex parte Whitchurch, ib. 71; Ex parte Skipp, 1 Dea. & Ch. 497; Ex parte May, 3 Dea. 382; Ex parte Lord, 2 Rose, 421.

5 Ex parte May, Mont. & Ch. 18; Ex parte Whitworth, 2 M. D. & De G.

133.

6 See note 1, page 304, and Small v. Graves, 7 Barb. 576; Hubbell v. Cramp, 11 Paige, 310; Platt v. Parker, 13 N. B. R. 14; Thurmond v. Andrews, ib. 157, 10 Bush, 400; Hoyles v. Blore, 14 M. & W. 387; Heather v. Webb, 2 C. P. D. 1; Burnside v. Brigham, 8 Met. 75; Knabe v. Hayes, 71 N. C. 109; Heard v. Arnold, 56 Ga. 570; Hurd v. Ind. Mut. Ins. Co., 1 Ind. 162;

proved are not discharged.1 Consequently many of the questions arising on a plea of discharge may be answered by reference to the preceding chapter on provable debts. There are, however, some exceptions proper to be considered here.

§ 430. Attachments for Contempt. "Proceedings for contempt may be either for the purpose of inflicting punishment upon one who has wilfully disobeyed a lawful order of the court, or for the purpose of obtaining the result which might have been reached by the enforcement of its decree but for the intervention of the wrongful act of the party violating its order, or in appropriate cases for both purposes." Devens, J., McCann v. Randall, 147 Mass. 81, 90.

Attachments for non-payment of money into court by an attorney or by any party to an action, though nominally for contempt, are really to coerce the payment, and are discharged by the debtor's certificate in bankruptcy or his discharge in insolvency if, considered as debts, they would be discharged, that is, if not fraudulently incurred or coming within some other exception.2 Nor does it make any difference that the form is criminal. Fines and costs under an indictment or information, if for the benefit of the prosecutor, are debts in this connection.2

Thornton v. Hogan, 63 Mo. 143; Stemmons v. Burford, 39 Tex. 352; Thomas v. Jones, 39 Wis. 124; Pattison v. Wilbur, 10 R. I. 448; Black v. Blazo, 117 Mass. 17; Corey v. Ripley, 57 Maine, 69; Milhous v. Aicardi, 51 Ala. 594; Ocean Bank v. Olcott, 46 N. Y. 12; Parker v. Atwood, 52 N. H. 181; Wadsworth v. Pickles, 5 Q. B. D. 470; Hapgood v. Blood, 11 Gray, 400; Bickford v. Barnard, 8 Allen, 314; Whiton v. Nichols, 3 Allen, 583.

1 See note 6, page 302.

2 4 Blackst. Com. 285; Baker's Case, 2 Str. 1152; Ex parte Parker, 3 Ves. 554; Rex v. Wakefield, 13 East, 190; Re McWilliams, 1 Sch. & Lef. 169; Ex parte Jeyes, 3 Dea. & Ch. 764; Ex parte Bury, 3 M. D. & De G. 309; Ex parte Hooson, L. R. 8 Ch. 231;

An attachment for con

Hendryx v. Fitzpatrick, 19 Fed. Rep. 810, and cases; Rex v. Stokes, Cowp. 136; Reg. v. Thornton, 4 Ex. 820; Queen v. Hills, 2 E. & B. 176; Ex parte Eicke, 1 Gl. & J. 261; Wall v. Atkinson, 2 Rose, 196; Wyllie v. Green, 1 De G. & J. 410; Anon. 2 P. Wms. 481; Rex v. Pickerill, 4 T. R. 809; Const v. Ebers, 1 Mad. 530; Smith v. Blofield, 2 Ves. & B. 100; Jackson v. Billings, 1 Caines, 252; People v. Craft, 7 Paige, 325; Buffum's Case, 13 N. H. 14; The King v. Myers, 1 T. R. 265; Ex parte Culliford, 8 B. & C. 220; Rex v. Edwards, 9 B. & C. 652; Lees v. Newton, L. R. 1 C. P. 658; Re Rawlins, 12 L. T. N. s. 57; Ex parte Muirhead, 2 Ch. D. 22; Re Manning, 30 Ch. D. 480.

tempt in respect to some act, other than payment of money, such as refusing to sign an answer in Chancery, is not discharged, because the order is intended to enforce a specific performance which has not become impossible by reason of the bankruptcy. So it was held in a case in which the supreme court were so much divided in their reasons that only the result was announced, that a fine imposed for breach of an injunction was not discharged. The fine had not been made payable wholly to the plaintiff, so that the decision is not opposed to those cited in the preceding notes.1

In an early case it was held that a defendant in Chancery, who was held for non-payment of fees after submitting to answer, and was afterwards discharged in insolvency, could not obtain redress at law by habeas corpus, but must apply to the Court of Chancery.2 This was a question of the distribution of powers or of courtesy between different courts, and therefore sound. If the petitioner had applied to the Court of Chancery without effect, an application to the Queen's Bench might have been in order.

Where the fine for contempt is intended as punishment, it is quasi criminal, and can be reached only by a pardon, or under some statutes the prisoner may be discharged as a poor debtor.3 Whether the court would discharge its own officer, such as an attorney, depended sometimes upon whether the debt was fraudulently contracted. But the bankrupt law now provides for that matter by excepting such debts from the operation of the discharge.

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§ 431. Debts Excepted from Discharge. It seems eminently fit to exclude from the operation of a discharge in bankruptcy debts which have been improperly contracted by the bankrupt to innocent persons without their intelligent assent such as

1 Spalding v. The People, 10 Paige, 284; 7 Hill, 301; 4 How. 21 (see the statute under which the fine was imposed explained in People v. Compton, 1 Duer, 512); Macy v. Jordan, 2 Denio,

576.

2 Ex parte Lawrence, 1 B. & P. 477.

8 See Spalding v. People, supra, note 1; Bancroft v. Mitchell, L. R. 2 Q. B. 549; Ex parte Graves, L. R. 3 Ch. 642; The King v. Samson, 11 East, 231.

4 Ex parte Bonner, 4 B. & Ad. 811. 6 Infra, § 433.

defalcations by a public officer, debts by a trustee to his cestuis que trustent, and those incurred by positive fraud on the creditor. Under a statute containing no exceptions all such debts will be discharged.1 Formerly some such debts were saved by being classed as torts; but the modern statutes more wisely have excepted them all by name and description, and have, on the other hand, abolished the technical distinction between contract and tort as a test of the effect of a discharge.

§ 432. Fiduciary Debts. The exception of fiduciary debts by the acts of 1841 and 1867 was so expressed as to apply only to direct trusts by deed or will, or by the appointment of a court, such as executors, receivers, assignees in bankruptcy. Factors, bankers, brokers, agents, pledgees, attorneys, including, perhaps, attorneys-at-law, were by a discharge under these acts released from their debts to their principals. In the English law, "breach of trust" is given a more extended meaning. If there has been positive fraud in the transactions, the debt comes within an express exception which affects all fraudulent debtors.4

Where one is quasi trustee from having, without fraud, dealt with a trustee, his liability, if in the form of a money

1 Walcott v. Hall, 2 Brown C. C. 305; Ex parte Holt, 1 Dea. 248; Very v. McHenry, 29 Maine, 206; Re McWilliams, 1 Sch. & Lef. 169.

2 Chapman v. Forsyth, 2 How. 202; Hennequin v. Clews, 111 U. S. 676, affirming 77 N. Y. 427; Beal v. Clark, 95 U. S. 704; Halpine v. May, 100 Mass. 498; Wolf v. Stix, 99 U. S. 1; Cronan v. Cotting, 104 Mass. 245; Grover v. Clinton, 5 Biss. 324, Fed. Cas. No. 5845; Woolsey v. Cade, 15 N. B. R. 238; Pankey v. Nolan, 6 Humph. 154; Noble v. Hammond, 129 U. S. 65; Upshur v. Briscoe, 138 U. S. 365; Owsley v. Cobin, 15 N. B. R. 489; Fed. Cas. No. 10,636; Re Smith, 9 Ben. 494, Fed. Cas. No. 12,976; Banning v. Bleakley, 27 La. An. 257; Mulock v. Byrnes, 129 N. Y. 23; Palmer v. Hussey, 87 N. Y. 303, affirmed

119 U. S. 96; Treadwell v. Holloway, 46 Cal. 547; Meador v. Sharpe, 14 N. B. R. 492; Pierce v. Shippee, 19 N. B. R. 221; Green v. Chilton, 57 Miss. 598; Hervey v. Devereux, 72 N. C. 463; Phillips v. Russell, 42 Maine, 360; Austill ». Crawford, 7 Ala. 335; Slayton v. Wells, 66 Vt. 62.

8 Hayman v. Pond, 7 Met. 328; Wolcott v. Hodge, 15 Gray, 547, and see supra, "Attachments for Contempt," § 430; Woodward v. Towne, 127 Mass. 41. See Flanagan v. Pearson, 14 N. B. R. 37.

4 See the discussion by Bradley, J., in Hennequin v. Clews, 111 U. S. 676, 682, and cases; Crowther v. Elgood, 34 Ch. D. 691; Upshur v. Briscoe, 138 U. S. 365.

demand, is not fiduciary, and so of all merely quasi trusts.1 So the liability of a surety upon the bond of a fiduciary debtor is not itself fiduciary 2

It will be noticed that if a factor or agent has specific property of his principal, it will not belong to the assignees of the agent, and therefore he will be liable if he wilfully turns it over to his assignees or otherwise wrongfully disposes of it after he becomes bankrupt.3

In Hennequin v. Clews, the supreme court held that a firm who had improperly disposed of securities deposited with them as security for drafts which were never dishonored had not contracted the debt while acting in a fiduciary capacity; and that it was not a debt created by fraud. The latter proposition seems doubtful.5 In Massachusetts a statute has declared such a debt to be without the scope of a discharge under the state law. The decision has been reaffirmed, and its analogy has been followed in later cases.7 The English statutes have used more general and wider expressions, under which any breach of trust is included.8

§ 433. Debts fraudulently incurred or created. The recent statutes except from the operation of the discharge debts which have been fraudulently "created" or "incurred;" the former word was used in our statute of 1867, and the latter in the English laws of 1869, and 1883.9 The law refers to actual fraud, such as obtaining goods by false pretences or false representations of solvency, or with intent not to pay for them, if that is a fraud by the lex loci, or other act which is a

1 Neal v. Clark, 95 U. S. 704.

2 Jones v. Knox, 46 Ala. 53; Ex parte Taylor, 16 N. B. R. 40, Fed. Cas. No. 13,773; U. S. v. Davis, 3 McLean, 483, Fed. Cas. No. 14,929; Fowler v. Kendall, 44 Maine, 448; McMinn v. Allen, 67 N. Car. 131; Miller v. Gillespie, 59 Mo. 220.

3 Bowstead, Agency, 2nd ed. p. 343. 4 111 U. S. 676, affirming 77 N. Y. 427.

5 See Upshur v. Briscoe, 37 La. An.

6 Stats. Mass. 1885, c. 353, § 6.

7 Palmer v. Hussey, 119 U. S. 96, ante, affirming 87 N. Y. 303; Stratford v. Jones, 97 N. Y. 586; see cases cited ante, note 2, page 305.

8 Robson, Bankruptcy, 7th ed. p. 656. Re Greer, 2 Manson, 350.

9 Robson, Bankruptcy, 7th ed. p. 656. See Re McEachran, 82 Cal. 219; Dyer v. Bradley, 89 Cal. 557; Siegel v. Creditors, 95 Cal. 409; Re Koeppler, 75 N. W. Rep. 789 (N. D.).

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