fraud by that law. All debts thus contracted are exempt.1 Where a solicitor brought an action wilfully, without authority from the plaintiff, and was ordered to pay the defendant's costs, it was held in England that he had incurred this debt fraudulently. A wrong, however great, such as seduction, which is the consideration of a debt, does not affect the question of discharge if there were no fraud.3 The merely conventional fraud of receiving a preference is not within the exception, and a creditor who had been ordered to pay the amount of his preference into court was relieved by his discharge in bankruptcy. A debt which would not be discharged may become so by deliberate condonation, as when the personal note of a trustee is accepted for a balance due in his fiduciary capacity.5

The fraud must have been committed in contracting the debt. It is no answer to the discharge that the defendant by fraud induced the plaintiff to forbear action upon it, or misled a surety by falsely representing that he had paid it, or attempted to support a title to property for which a forthcoming bond was given by fraudulent evidence." In the English statute, obtaining forbearance by fraud is expressly mentioned.7

When a partnership debt was incurred by the fraud of one partner, the discharge was held to be no defence to either partner.8

1 See as to what are or are not such frauds, Stokes v. Mason, 10 R. I. 261; Stewart v. Emerson, 52 N. H. 301; Morse v. Hutchins, 102 Mass. 439; Turner v. Atwood, 124 Mass. 411; Brenner v. Duard, 126 Mass. 400; Wilson v. Hawley, 158 Mass. 250; Classen v. Schoenemann, 80 Ill. 304; Broadnax v. Bradford, 50 Ala. 270; Ex parte Coker, L. R. 10 Ch. 652; Ames v. Moir, 130 Ill. 582, affirmed 138 U. S. 306; Strang v. Bradner, 114 U. S. 555,

2 Jenkins v. Fereday, L. R. 7 C. P. 358.

3 Howland v. Carson, 16 N. B. R. 372; see Flanagan v. Cary, 37 Tex. 67; Cole v. Roach, ib. 413.

4 Ex parte Hooson, L. R. 8 Ch. 231.

5 Amoskeag Company v. Barnes, 49 N. H. 312; Commrs. of Wilkes v. Staley, 82 N. C. 395; Elliott v. Higgins, 83 N. C. 459; a fortiori the note of a third person, Hervey v. Devereux, 72 N. C.

463.

6 U. S. v. Rob Roy, 1 Woods, 42, Fed. Cas. No. 16, 179; Brown v. Broach, 52 Miss. 536; Broadnax v. Bradford, 50 Ala. 270.

7 Bankruptcy Act 1883, § 30, cl. 1.

8 Cooper v. Prichard, 11 Q. B. D. 351; Strang v. Bradner, 114 U. S 555.

§ 434. Defalcation. "Defalcation" of an officer is classed with frauds and breaches of trust, and means a fraudulent defalcation. Damages against an officer for converting the plaintiff's property innocently, on process against a third person, or damages for failure to collect an execution and the like, are not defalcations.1

The burden of proof is on the creditor to prove fraud, and he must plead it regularly.2

§ 435. Judgment in an Action for Fraud. If judgment is obtained upon a declaration setting out fraud and making it an issue, the judgment does not merge the fraud, but conclusively ascertains it, and will not be barred by a subsequent discharge.3

If a creditor whose debt was fraudulently contracted by his debtor sues upon it as a mere debt, and obtains a judgment, so that the record discloses nothing concerning a fraud, there is a conflict of authority upon the question whether the fraud in contracting the original debt is merged and incapable of being used against a discharge afterwards obtained. The weight of opinion is that there is no merger, for the reason that a judgment is, for many purposes, merely a higher security which the creditor has a right to obtain, to save the statute of limitations without waiving the question of fraud which, in many cases, could not be raised or decided in such an action. Some of the New York cases in which the question is discussed turn upon a point of practice, whether a summary arrest shall be granted in an action on such a judgment.5

§ 436. Debts of Bankrupt's Wife. By the common law the wife's debts contracted dum sola are discharged by the husband's

1 Carpenter v. Turrell, 100 Mass. 450; Hayes r. Nash, 129 Mass. 62; Courtney v. Beale, 84 Va. 692.

2 Burnham v. Noyes, 125 Mass. 85; Kellogg . Kimball, 135 Mass. 125.

3 Horner v. Spelman, 78 Ill. 206; Re Patterson, 2 Ben. 155, Fed. Cas. No. 10,817. See Jordan v. Downey, 40 Md. 401; Whittaker v. Chapman, 3 Lans. 155; Warner v. Cronkhite, 6 Biss. 453, Fed. Cas. No. 17,180.

4 In favor of the merger, Palmer v. Preston, 45 Vt. 154; Bangs v. Watson,

9 Gray, 211. Contra, Re Pitts, 19 N. B. R. 63, Fed. Cas. No. 11,190, explaining Re Robinson, 2 N. B. R. 341, Fed. Cas. No. 11,939; Betts v. Bagley, 12 Pick. 572; Smith v. Randall, 1 Allen, 456, judgment for necessaries, debt for which was not proved; Packer v. Whittier, 91 Fed. Rep. 511. See Boynton v. Ball, 121 U. S. 457; Huntington r. Saunders, 166 Mass. 92; Bennett v. Justices of Municipal Court, 166 Mass. 126.

5 Shuman v. Strauss, 52 N. Y. 404.

certificate, because by the marriage he assumed them and she could not be sued.1 In one case it was intimated that the remedy was only suspended by the husband's discharge, and would revive if the wife should outlive the husband.2

Where the wife is by statute, or by customary law, responsible for her own debts, either absolutely or in some contingencies, she is, of course, equally responsible after her husband's discharge. Where the law permits the husband to contract directly with his wife, the discharge of either will release a debt due from that one to the other. In equity, if the separate property of a wife is chargeable with certain debts, the discharge of the husband will not affect this liability.5 Even at law the court will not release a wife charged in execution, on the ground of her husband's discharge, if she has separate property.6

§ 437. Collateral Undertakings; Covenants. - Under the earlier statutes, a collateral obligation, remedy or covenant might be enforced notwithstanding the debt to which it was collateral had been discharged, likening covenants to actual charges upon property. Thus judgment might be entered upon a cognovit ;7 or a distress might be enforced by a landlord; 8 or a covenant to convey after-acquired property might be enforced in equity;9 or a covenant to insure, at law.10 It was intimated by some judges that if the debt were proved, the collateral undertaking might perhaps be discharged." All liabilities connected with a provable unsecured debt, are, by the latest English statute and decisions, discharged with the

8 Dickson v. Miller, 11 Sm. & M. 594; Mobley . Cureton, 6 So. Car. 49.

4 Alling v. Egan, 11 Rob. (La.) 244. 5 Hamlin v. Bridge, 24 Maine, 145; Chubb v. Stretch, L. R. 9 Eq. 555.

6 Sparkes v. Bell, 8 B. & C. 1. See Biscoe v. Kennedy, 1 Bro. C. C. 17 n. ; Bonner v. Bonner, 17 Beav. 86; Ex parte Deacon, 5 B. & A. 759, changed by 7 Geo. IV. c. 57, § 72.

7 Wyborne v. Ross, 2 Taunt. 68.

8 Newton v. Scott, 9 M. & W. 434, 10 id. 471; Phillips v. Shervill, 6 Q. B.

944.

9 Lyde v. Mynn, 4 Sim. 505, 1 M. & K. 683; Smith v. Baker, 1 Y. & C. (Ch.) 223; Re Inkson's Trusts, 21 Beav. 310; Re Duggan's Trusts, L. R. 8 Eq. 697.

19 Warburg v. Tucker, E. B. & E. 914; Mitcalfe v. Hanson, L. R. 1 H. L. 242.

11 See Warburg v. Tucker, E. B. & E. 914, 926, per Bramwell, B.; Deering v. Bank of Ireland, 12 App. Cas. 20, 24, per Lord Watson.

debt itself, as they should be.1 Our late statute seems to be equally broad.

Whether, when a state insolvent law subjects after-acquired property of the insolvent to the payment of his old debts, this right or title once duly acquired can be enforced when a bankrupt law has afterwards been passed by congress, or after a discharge of the debtor under such a law is an open question.2 In England, when there was an insolvent law, the statute preserved this right, but at that time collateral liabilities were not provable. By the present law, the rule will probably be different.4

§ 438. Covenants of Title; Estoppel. One who has conveyed with covenants of title, and afterwards is discharged in bankruptcy, and who has bought up a title from his assignees, or from a third person, does not acquire the right to enforce such a title against his covenantee or lien creditor or fraudulent grantee, though the person from whom he purchased might have done so. He remains, notwithstanding his discharge, bound by his own acts, deeds and covenants, by way of estoppel. This rule, of course, does not apply when he buys as trustee for another, though the trust is only a resulting one." $439. Debts due the State. A discharge in bankruptcy does not release a debt due the Crown, unless expressly mentioned in the statute. This perogative right has been retained, by decision, in this country in the courts of the United States and of several of the States, though not in all. The United

1 Thompson v. Cohen, L. R. 7 Q. B. 527; Cole v. Kernot, ib. 534 n.; Collyer v. Isaacs, 19 Ch. D. 342.

2 See Beach v. Miller, 15 La. An. 601, and Lavender v. Gosnell, 43 Md. 153; Oliphint v. Eckerly, 36 Ark. 69; Ex parte Pain, L. R. 3 Ch. 639; Collyer v. Isaacs, 19 Ch. D. 342.

Chamberlain v. Meeder, 16 N. H. 381;
Kezer v. Clifford, 59 N. H. 208.

Gregory v. Peoples, 80 Va. 355.
7 Anon. 1 Atk. 262; Rex v. Pixley,
Bunb. 202; Awdley v. Halsey, W. Jones,
202.

8 United States v. Herron, 20 Wall. 251. See United States v. Tetlow, 2

31 & 2 Vict. c. 110, § 40; Ex parte Lowell, 159, Fed. Cas. No. 16,456; PeoPain, L. R. 3 Ch. 639.

4 Collyer v. Isaacs, 19 Ch. D. 342. 5 Gibbs v. Thayer, 6 Cush. 30; Dorsey v. Gassaway, 2 Har. & J. 402; Stewart v. Anderson, 10 Ala. 504; Bush v. Cooper, 26 Miss. 599, affirmed 18 How. 82; Re Burton, 29 Fed. Rep. 637;

ple v. Rossiter, 4 Cow. 143; People v. Herkimer, ib. 345; Commonwealth e. Hutchinson, 10 Penn. St. 466; Saunders v. Commonwealth, 10 Gratt. 494; Clements v. Camden, 51 N. J. Law, 424.

9 State v. Walsh, 2 Gill & J. 406.

States will not be barred by a certificate granted under a law of a State for a stronger reason, lack of power in the State to impair the right of the United States. There is a dictum by Marshall C. J. that if the United States were not mentioned in the statute and elected to prove a debt, it would be discharged. The decision in that case was against the discharge because the statute expressly exempted the United States and the States from its operation. There is little doubt, however, that there may be a waiver of this prerogative right.2 Laws discharging the person of poor debtors to the United States were passed very early by Congress, and are applied now even to fines. This policy has been adopted in the several States.

A surety for a debt due the Crown paying the debt is subrogated to all the securities and to the priority of payment; but must avail himself of this right if he would receive full payment, for he will be barred by the discharge. By the latest bankrupt law of England the Treasury may certify in writing their consent to the discharge, which will then bind the Crown.4

§ 440. Costs and Expenses Connected with Provable Debts. — Formerly the law made no provision for proving costs which had accrued to the plaintiff in an action upon a debt, unless a verdict had been obtained before the defendant was adjudicated bankrupt. So of damages and expenses connected with the protest of bills of exchange. Most of these anomalies are redressed by later statutes, but whether they are or not, such costs, expenses and damages cannot be recovered after the debtor has obtained his discharge because they are merely

1 United States r. Wilson, 8 Wheat. 253; Glenn r. Humphreys, 4 Wash. C. C. 424, Fed. Cas. No. 5480.

2 Harrison v. Sterry, 5 Cranch, 289. See United States v. Tetlow, 2 Lowell, 159, Fed. Cas. No. 16,456.

3 Westcott v. Hodges, 5 B. & A. 12; Rex v. Bingham, 2 Cr. & J. 130, and 1 C. & M. 862; Reed v. Emory, 1 S. & R. 339; Aikin v. Dunlap, 16 Johns. 77;

Manisty v. Churchill, 39 Ch. D. 174;
Rex v. Bennett, 1 Wight. 1.

Bankruptcy Act, 1883, § 30, cl. 1.
Supra, §§ 187, 189.

6 Van Sandau v. Corsbie, 8 Tannt. 550; 3 B. & A. 13; Phillips v. Brown, 6 T. R. 282; Scott v. Ambrose, 3 M. & S. 326; Lewis v. Piercy, H. Bl. 29; Southgate v. Saunders, 5 Ex. 565; Simpson v. Mirabita, L. R. 4 Q. B. 257