8 150 Discharge of Bankrupt from Judgment L. 1909, ch. 17 court in which the application was made; and that no case can be found where the application for a discharge of the judgment was successfully resisted by proof entirely outside of the record of the court in which the judgment was obtained.” Judgment in action based on allegations of fraud, subsequently with1rawn. A discharge in bankruptcy does not operate to affect a judgment recovered in an action to recover the value of goods obtained under false representations as to the financial condition of the purchaser, where on the trial of the action the defendant entered into a stipulation allowing judgment to be taken against him provided the plaintiff withdrew the allegations of fraud. Stevens v. Meyers, (1902) 72 App. Div. 128, 76 N. Y. S. 332. Judgment for conversion. It is now well settled that a judgment in au action for conversion is provable in bankruptcy, and released by the discharge, unless there is evidence of actual fraud in incurring the liability. The merely constructive fraud and malice which is sometimes said to follow upon the fact of conversion is not sufficient to prevent the discharge of the indebtedness, whether it has been reduced to judgment or not. Ulner v. Doran, (1915) 167 App. Div. 259, 152 N. Y. S. 655. Imprisonment of debtor at time of petition in bankruptcy.-The fact that a debtor is imprisoned at the time his petition in bankruptcy was filed, does not render the judgment on which he was imprisoned a debt not provable within the meaning of the Bankruptcy Act. Walker v. Harder, (1903) 39 Misc. 749, 80 N. Y. S. 948. Confession of judgment after discharge.— Where a bankrupt, subsequently to his discharge in bankruptcy, confesses judgment on an old debt, the debt is a good consideration for the judgment, and the latter is not affected by the discharge. Dewey v. Moyer, (1878) 72 N. Y. 70, affirming 9 Hun 473, affirmed 103 U. S. 301, 26 U. S. (L. ed.) 394. New promise to pay debt after discharge in bankruptcy.— Although the legal obligation of the bankrupt is discharged, and while the remedy of the creditor existing at the time the discharge was granted to recover his debt by suit is barred, nevertheless the moral obligation of the bankrupt remains, and this moral obligation, united with a subsequent promise to pay the debt, gives a right of action thereon. Dusenbury v. Hoyt, (1873) 53 N. Y. 521, 13 Am. Rep. 543, reversing 36 Super Ct. 94. Discharge from partnership debts.- Under the Bankruptcy Act of 1867, it was held that in proceedings instituted for his discharge, by one member of a firm, partnership debts were provable and he was entitled to be discharged from them, whether there were assets of the firm or not. West Philadelphia Bank v. Gerry, (1887) 106 N. Y. 467, 13 N. E. 453, distinguishing Medbury v. Swan, (1871) 46 N. Y. 200. But an application for the cancellation of a judgment against partners, upon a firm debt, was denied as to an individual partner, in a proceeding founded on his individual discharge and carried on by him solely. Trimble v. More, (1881) 47 Super. Ct. 340. Judgment in action for criminal conversation.— A judgment recovered in an action for criminal conversation is one arising from a wilful and malicious injury "to the person or property of another," within the meaning of section 17 of the Bankruptcy Act, from which judgment the defendant is not released by his subsequent discharge in bankruptcy, so that an order denying a motion by the defendant to have cancelled of record such judgment is proper and must be affirmed. Colwell v. Tinker, (1902) 169 N. Y. 531, 62 N. E. 668, 98 A. S. R. 587, 58 L. R. A. 765, affirming 65 App. Div. 20, 72 N. Y. S. 505, affirmed by 193 U. S. 473, 24 S. Ct. 505, 48 U. S. (L. ed.) 754. Judgment on forfeited bail bond.- A bankrupt is not entitled, under this section, to have a judgment on a forfeited bail bond cancelled of record. In re Weber, (1914) 212 N. Y. 290, 106 N. E. 58, affirming 159 App. Div. 902, 143 N. Y. S. 1149, approving In re Caponigri, (1912) 193 Fed. 291. L. 1909, ch. 17 Discharge of Bankrupt from Judgment 8 150 Judgment for breach of promise of marriage.—A discharge in bankruptcy operates upon a judgment recovered in an action for breach of promise to marry, even though the plaintiff proved seduction as an aggravation of damages. Disler v. McCauley, (1901) 66 App. Div. 42, 73 N. Y. S. 270. "Prior to the time he was adjudged a bankrupt."- The commencement of an action by a judgment creditor to set aside alleged fraudulent conveyances made by a judgment debtor gives him a specific lien, provided an execution has been issued upon the judgment and returned unsatisfied, and such a lien is within the purview of the saving clause provided by the section, and such judgment should be allowed to stand for the purpose of enforcing any lien created by it upon any real estate owned by the bankrupt. Arnold v. Treviranns, (1903) 78 App. Div. 589, 79 N. Y. S. 732; Popham v. Barretto, (1880) 20 Hun 299. But where it appeared that a judgment was docketed on March 17, 1902, that in the previous January the petitioner executed and acknowledged certain deeds, alleged by the judgment creditor to have been executed in fraud of creditors, that in July, 1902, the deeds were recorded, that on March 20, 1903, the petitioner was adjudged a bankrupt, and on June 19, 1903, received her discharge, and that no action attacking the conveyances was commenced until June 13, 1904, it was held that the interest of the judgment creditor in the real estate was not, either at the time of the adjudication in bankruptcy or at the time of the discharge, of such a character that it could be regarded as a lien and consequently embraced within the saving clause of the section, and that the fact that the conveyances sought to be assailed were not recorded until after the docketing of the judgment did not exempt the creditor from the obligation of beginning an action to set them aside in order to give his interest the character of a lien. Matter of David, (1904) 44 Misc. 516, 90 N. Y. S. 85. The lien of a judgment recovered within four months before the adjudication of a debtor in bankruptcy survives his subsequent discharge, although the debt on which it was recovered is proven in the bankruptcy proceedings, where the trustee elects not to take the property on which the judgment was a lien, and the interest of the bankrupt therein is not sold. McCarthy v. Light, (1913) 155 App. Div. 36, 139 N. Y. S. 853. Where, more than four months prior to the institution of the bankruptcy proceedings, a receiver for the debtor's property is appointed in proceedings supplementary to a judgment against the debtor, the receiver's title to a real estate mortgage owned by the debtor becomes fixed and will not be impaired by the debtor's subsequent discharge in bankruptcy, nor, it seems, by an unqualified discharge of the judgment lien under this section, although foreclosure is not decreed until after the discharge. Hence the court may qualify the discharge of the judgment by express provision in its order that the cancellation of record is not to impair any rights or lien which the receiver may have acquired in the property of the judgment debtor. Pickert v. Eaton, (1903) 81 App. Div. 423, 81 N. Y. S. 50. Debt due the government.— Under the Bankruptcy Act of 1867, it was held that a discharge in bankruptcy was not a bar to a debt due the United States, on the principle of the common law that when a statute is general and any right would be divested or taken from the sovereign power, it is not bound, unless the statute is made, by express words, to extend to it. United States v. Herron, (1873) 20 Wall. 251, 22 U. S. (L. ed.) 275; In re Brandreth, (1878) 14 Hun 585. But in the case last cited this principle was repudiated so far as concerns the applicability of statutes like the Bankruptcy Art to the state of New York, and it was held that a judgment in favor of the state was subject to cancellation under Code Civ. Pro., § 1268, from which the present section was taken. Judgment for wilful and malicious injury.- On the defendant's motion to cancel a judgment under this section, the burden is on the plaintiff to show § 150 Discharge of Bankrupt from Judgment L. 1909, ch. 17 that the judgment comes within the exception of section 17 of the Bankruptcy Act, relating to judgments for malicious and wilful injuries. The administration of drugs with good intention, though negligently done, does not bring the case within the exception. Tompkins v. Williams, (1910) 137 App. Div. 521, 122 N. Y. S. 152, affirmed 206 N. Y. 744 mem. But the term "willful and malicious injuries" as used in section 17 of the Bankruptcy Act, which excepts liabilities therefor from a discharge in bank. ruptcy, does not necessarily involve hatred or ill will as a state of mind. It imports a wrongful act done intentionally without just cause or excuse; and judgment recovered in an action for personal injuries to one who, upon asking for a solution of carbolic acid diluted two per cent., for use in washing hands, was given pure carbolic acid by the defendant's agent, was held not a dischargeable debt in bankruptcy, and a motion to cancel the same of record was denied, although the defendant listed the judgment in his schedules. Matter of Halper, (1913) 82 Misc. 205, 143 N. Y. S. 1005. Equitable lien.- Action and lis pendens are necessary to preserve an equitable lien against a discharge in bankruptcy. Ocean Nat. Bank v. Olcott, (1871) 46 N. Y. 12; American Exch. Bank v. Brandreth, (1877) 12 Hun 384; Matter of David, (1904) 44 Misc. 516, 90 N. Y. S. 85. See also Arnold v. Trevirannus, (1903) 78 App. Div. 589, 79 N. Y. S. 732; Popham v. Barretto, (1880) 20 Hun 299. Execution as lien on salary.- Salary earned after the discharge in bankruptcy stands in a position analogous to that of other property acquired after a discharge, as to which a judgment included in the discharge is specifically declared not to become a lien, notwithstanding Code Civ. Pro., § 1391, providing that an "execution shall become a lien and a continuing levy upon the wages, earnings, debts, salary, income from trust funds or profits, due or to become due to said judgment debtor to the amount specified therein which shall not exceed ten per centum thereof, and said levy shall be a continuing levy until said execution and the expenses thereof are fully satisfied and paid or until modified as hereinafter provided." Ulner v. Doran, (1915) 167 App. Div. 259, 152 N. Y. S. 655. ARTICLE 7* TRUSTEES FOR INSOLVENT AND IMPRISONED DEBTORS Section 160. Trustees for creditors. 161. Sole trustee. 162. Two or more trustees. 163. Death of trustee; survivor or successor. 164. Trustees' oath. 165. Vesting of property in trustees. 166. Powers of trustees. 167. Notice to debtors, bailees and creditors. 168. Power to sue notwithstanding notice. 169. Forfeiture for failure to comply with notice. 172. Imprisonment for contumacy. 174. Penalties for connivance at escape. 176. Reward to informers. 177. Reference of disputed claims. 178. Application for appointment of referee. 180. Entry of order of reference. 181. Powers, duties and compensation of referees. 183. Commission to take testimony out of county. * In the report of the Board of Statutory Consolidation (1907) at p. 730 et seq., there is a note on this article as follows: "This article consists of the provisions of R. S. pt. 2, ch. 5, tit. 1, art. 8, unaltered except in such slight degree as existing practice may require. The numerous references relating to assignees, trustees of the estates of non-resident, absconding and absent debtors and officers before whom a proceeding might be taken, have been omitted as unnecessary and obsolete, as explained hereafter. References in this article to articles of the Revised Statutes have been changed to agree with the distribution of these articles subsequent to their enactment. Part 2, ch. 5, tit. 1, of the Revised Statutes originally contained eight articles. "Article 1. Related to attachments against absconding, concealed and nonresident debtors.' This article was repealed by L. 1877, ch. 417. 2. Related to attachments against debtors confined for crimes.' This article was also repealed by L. 1877, ch. 417. L. 1909, ch. 17 Trustees for Insolvents, etc. Section 184. Sale of property and accounts of trustees. 185. Meeting of creditors and notice thereof. 186. Proceedings of creditors' meetings. 187. Payment of disbursements and commissions of trustees. 188. Preferred debts. 189. Distribution of moneys. 190. Preference of debts owing by debtor as trustee. 191. Payment of debts before maturity. 192. Set-off of mutual debts or credits. 193. No set-off in certain cases. 194. Provisions for pending actions. 196. Subsequent dividends. 197. Provision for neglectful creditors. 199. Disposition of surplus. 200. Allowance to debtor. 201. Accounting by trustees. 202. Trustees subject to order of court. 203. Appointment of substitute trustee. 204. Application by trustees for leave to renounce. 205. Account upon application. 206. Verification of account. 207. Order to show cause. 208. Publication of notice. 209. Hearing. 210. Order permitting renunciation. 211. Assignment by renouncing trustee. 212. Effect of assignment. "Article 3. Related to insolvents discharge from debts inserted in Code Civil Procedure, ch. 17, tit. 1, art. 1, by L. 1880, ch. 178. This article becomes article 3 of the Debtor and Creditor Law. 4. Related to proceedings by creditors to compel assignments by debtors imprisoned on execution in civil causes. Repealed by L. 1880, ch. 245. 5. Related to insolvent's exemption from arrest and imprisonment. 6. Related to judgment debtor's discharge from imprisonment, in- |