DISCHARGE-Continued.

f. Effect of discharge.

1. In general.

§ 1090. Conclusiveness and effect in general.

(Ga. Ct. of App.)

While it is true that the confirmation of a composition, proposed by a bankrupt to his creditors, followed by a dismissal of the case, has the effect of discharging the bankrupt from all ordinary claims provable in bankruptcy (Glover Grocery Co. v. Dorne, 116 Ga. 216, 8 Am. B. R. 702, 42 S. E. 347), neither such a proceeding by composition nor an actual discharge in bankruptcy has the effect of divesting a creditor's title to property owned by it in the hands of the bankrupt. Smith v. Turner, 141 Ga. 313, 32 Am. B. R. 864, 80 S. E. 993; Long v. McIntosh, 129 Ga. 660, 662, 59 S. E. 779, 16 L. R. A. (N. S.) 1043, 12 Ann. Cas. 263; Moon v. Wright, 12 Ga. App. 659, 78 S. E. 141; Birmingham Fertilizer Co. v. Cox, 10 Ga. App. 699, 28 Am. B. R. 934, 73 S. E. 1090. Accordingly the special plea referred to in the statement of facts, did not set up a valid ground of defense. Levy v. American Wholesale Corp.... 297

(Ga. Ct. of App.)

In an action of trover the issue is one of title, and not of debt. Consequently the defendant in such an action cannot set up as a defense his discharge in bankruptcy. This is true although the plaintiff elects to take a money verdict for the damages alleged to have been sustained. Birmingham Fertilizer Co. v. Cox, 28 Am. B. R. 934, 10 Ga. App. 699 (2), 73 S. E. 1090; Berry v. Jackson, 8 Am. B. R. 485, 115 Ga. 196, 41 S. E. 698, 90 Am. St. Rep. 102; Smith v. Turner, 32 Am. B. R. 864, 141 Ga. 313 (1), 80 S. E. 993; Moon v. Wright, 12 Ga. App. 659 (3), 78 S. E. 141; Watts v. Wight Investment Co., 25 Ga. App. 291, (1, 2), 103 S. E. 184. v. Penn...

2. Effect on debts and liabilities of bankrupt.

Worsham 301

§ 1098. Liability for obtaining property by false pretenses or false representations.

There is no evidence whatsoever that the property was obtained by the agent by virtue of any false pretense or false representation, and therefore the liability is not exempt from discharge in bankruptcy on account of fraud under exception 2 of section 17a of the Bankruptcy Act. (U. S. Comp. St. § 9601.) White v. Morris Fertilizer Co... 787

DISCHARGE-Continued.

§ 1102. Liability for wilful or malicious injury.

§ 1103.

(Ala. Sup. Ct.)

In general.

Where a fertilizer company consigned fertilizers to an agent under an agreement that the company was to retain title until the fertilizers were sold, and that, after sale, the cash, notes, accounts, or other proceeds of sale were the property of the company, to be accounted for by the agent, a conversion of the proceeds of the consigned property is a misappropriation while acting in a fiduciary capacity under section 17, subd. 4 of the Bankruptcy Act, and, if willful, is within the exception of subd. 2 as a liability for willful and malicious injury to person or property. So. Atlantic Guano Co. v. Childs...

(Ga. Ct. of App.)

1170

The suit being upon promissory notes, and therefore an action ex contractu, and not a tort action for a willful and malicious injury to property, is it such a claim as is exempt from discharge in bankruptcy under exception 2 of section 17a of the Bankruptcy Act of 1898, as amended (U. S. Comp. St. § 9601)? White v. Morris Fertilizer Co.. 787

§ 1118. Liability for fraud, embezzlement, misappropriation, or defalcation.

Where a fertilizer company consigned fertilizers to an agent under an agreement that the company was to retain title until the fertilizers were sold, and that, after sale, the cash, notes, accounts, or other proceeds of sale were the property of the company, to be accounted for by the agent, a conversion of the proceeds of the consigned property is a misappropriation while acting in a fiduciary capacity under section 17, subd. 4 of the Bankruptcy Act, and, if willful, is within the exception of subd. 2, as a liability for willful and malicious injury to person or property. So. Atlantic Guano Co. v. Childs.. 1170

(Ga. Ct. of App.)

Also, did not acceptance by the creditor of a note in payment of the goods change the nature of any fiduciary relationship, if any existed, prior to the acceptance of the note, and create the relationship of ordinary debtor and creditor, which is not dischargeable in bankruptcy? See Coleman v. Davies, 45 Ga. 490; Lawton v. Fish, 51 Ga. 647 (1); 42 L. R. A. (N. S.) 1093, note. White v. Morris Fertilizer Co..... 787

DISCHARGE-Continued.

(Ga. Ct. of App.)

The agent's relationship to the principal, not being that of a trustee arising out of an express trust, but being that of a fiduciary relationship implied from a contract, which was one of bailment, the agent is not aeting in such a fiduciary capacity as would exempt his liability from discharge in bankruptcy under exception 4 of section 17a of the Bankruptey Act (U. S. Comp. St. § 9601.) White v. Morris Fertilizer Co... . . . . 787

(So. Car. Sup. Ct.)

A discharge in bankruptcy does not release an agent from liabilities for moneys collected on notes of customers taken in payment for merchandise sold. Wilcox, Ives and Co. v. Leverett...

3. Effect as to third persons.

§ 1141. Sureties and guarantors.

§ 1144.

Sureties on attachment or garnishment bonds.

(Conn. Sup. Ct. Err.)

443

In Connecticut a limited judgment will not be given against a bankrupt after composition with creditors in order to allow a creditor to proceed , against a surety on common law bond given to avert an attachment in an action begun within four months preceeding bankruptcy, where the bond provides that the surety "shall pay any judgment that may be recovered" against the debtor. Pullman Metal Specialty Co., Inc. v. Lang...... 414

(Me. Sup. Jud. Ct.)

The sureties on a bond given to take the place of an attachment, which attachment was later vacated and made null and void by reason that the defendant was adjudged a bankrupt in the interim, are liable for the amount of a judgment recovered by plaintiff. Marks v. Outlet Clothing Co.....

(Pa. Sup. Ct.)

270

A discharge in bankruptcy of the party principally liable does not preclude a creditor whose judgment has been levied more than four months before bankruptcy proceedings, from entering a judgment against the bankrupt with perpetual stay of execution in order to charge the surety on the bond. Clauss v. Aincy.....

(R. I. Sup. Ct.)

539

An adjudication of bankruptcy within four months of an attachment of the bankrupt's personal property does not operate to discharge a surety on a bond given to pay any judgment obtained in the action commenced by the writ of attachment. Andrews v. Jones.. 1177

DISCHARGE-Continued.

(R. I. Sup. Ct.)

An adjudication of bankruptcy within four months of an attachment of
the bankrupt's personal property does not operate to discharge a surety on
a bond given to pay any judgment obtained in the action commenced by
the writ of attachment. Andrews v. Fain....
1181

(Tex. Ct. of Civ. App.)

The discharge in bankruptcy of a defendant in a suit upon an open
account in which defendant's account at a bank was garnisheed, does not
extinguish the lien of the garnishment, and therefore does not operate to
relieve the sureties on a replevy bond given by the defendant, notwith-
standing that no personal judgment can be rendered against the defendant;
in such a case, judgment should be rendered against the defendant with
perpetual stay of execution. Leon v. Radford Grocery Co.... ... 1129

§ 1145.

(Ark. Sup. Ct.)

Sureties on appeal or replevin bonds.

A discharge in bankruptcy relieves the bankrupt and his sureties from
liability on a replevin retention bond given for goods alleged to have been
purchased with intent to defraud where the jury, by its verdict, nega-
tives such intent. Moore Dry Goods Co. v. Mullinix...

(Col. Sup. Ct.)

277

A discharge in bankruptcy of a defendant against whom judgment had
been taken, does not release one who had become surety on the defendant's
bond on appeal. Stone v. Hale.....

(Ga. Ct. of App.)

35

Where a landlord files an affidavit to foreclose his lien for supplies
furnished to his tenant to make a crop for a certain year, and the defend-
ant files a counter affidavit and replevies the property levied upon, by
giving a replevy bond, and where it appears affirmatively that before the
foreclosure proceeding the defendant was adjudged a bankrupt, the lien is
void, and the principal debtor and the surety on the replevy bond are both
discharged. Rountree v. Rutherford, 65 Ga. 444.

(a) The decision in the Rountree Case, supra, was not overruled by the
recent case of Alvaton Mercantile Co. v. Caldwell, (Ga. Sup. Ct.), 3 Am.
B. R. (N. S.) 335, 156 Ga. 317, 119 S. E. 25.

(b) Had the foreclosure proceedings been instituted more than four
months before the debtor was adjudged a bankrupt, the surety on the
replevy bond would not, under the decision in the Caldwell Case, supra,
have been discharged as a matter of law by the discharge of his principal.
Under the foregoing ruling, and the agreed statement of facts in the
instant case, which show affirmatively that the defendant had been adjudi-

DISCHARGE-Continued.

cated a bankrupt at the time the foreclosure proceedings were instituted, the trial judge erred in adjudging that the surety on the replevy bond was not discharged. Sitton v. Turner..

g. Revival of discharged debt.

§ 1153. Consideration.

(Kan. Sup. Ct.)

1174

The extinguishment of a debt by an order of discharge made in bankruptcy proceeding does not extinguish the moral obligation of the debtor to pay it, and such moral obligation constitutes a sufficient consideration for a new promise by the debtor to pay the debt. Robinson v. Jacobia. 757

§ 1155. Form and sufficiency of promise.

(Kan. Sup. Ct.)

Where there is only a single debt due from the bankrupt to the promisee, it is not necessary that the debt should be definitely described in the new promise. Robinson v. Jacobia..

(Kan. Sup. Ct.)

757

The evidence examined, and it is held to warrant a finding that the new promise was sufficient to revive the debt and make it an enforceable obligation of the promisor. Robinson v. Jacobia....

(Kan. Sup. Ct.)

757

To revive a debt so extinguished, there must be an express new promise to pay it, not one raised merely by an implication of law, and it must refer to a specific debt. 757

Robinson v. Jacobia...