that some debts are not provable, hence they would not be dischargeable. As a general rule the provable debts, if proved, are discharged, and debts not provable are not discharged. But this does not dispose entirely of the matter, as shown by the following sections:) § 888. (Bankruptcy, Sec. 98.) Debts not affected by a discharge. (1) Debts Not Provable. (Note: A claim for a tort, not reduced to judgment prior to petition filed, is not dischargeable. If reduced to judgment, it is dischargeable, unless a wilful or malicious injury. There are torts of such a nature that the injured person may waive the tort and sue in contract. Such, chiefly, are injuries to property by a bailee, in which the bailor can sue for injury to his property or waiving the tort, may sue on the contract of bailment. So, he may waive the tort and claim in bankruptcy. If he does so, the debt is discharged.) (2) Taxes. (The trustee is ordered to pay taxes. But taxes not paid are still owing. The discharge in bankruptcy does not wipe them out.) (3) Debts Consisting in "Liabilities for Obtaining Property by False Pretenses or False Representations.” (Note: These are not dischargeable. This phrase refers to actual fraud, not fraud imputed by a general rule of law. The reduction of the claim to judgment does not change its status as a liability for fraud. (In re Haskel, 228 Fed. 819).) (4) "Liabilities for Wilful and Malicious Injuries to Person or Property of Another." (Note: If the injury is so caused it is not dischargeable. To be "wilful and malicious" there must be more than mere negligence. Hence, judgments recovered for acts of negligence if recovered prior to bankruptcy are dischargeable, as damage by negligently driving an automobile. Ex parte Harrison, 272 1 Federal Reports, 543. See also McClellan v. Schmidt, 253 Federal Reports, 986. In McIntyre v. Kavanaugh, 242 U. S. 138, the bankrupts had been stockbrokers. They received certain stock certificates from Kavanaugh, to hold as security. Without authority they sold the stock and appropriated the proceeds. The proceeds were in excess of the amount of the debt for which the stocks were held as security. The court held that the liability for the tort of converting the stock was one arising out of wilful and malicious injury to property of another and not dischargeable in bankruptcy.) (5) Liabilities for Alimony Due or to Become Due, or for Maintenance or Support of Wife or Child, or for Seduction or Criminal Conversation. (Note: Such liabilities are not dischargeable in bankruptcy.) (6) Debts Not Duly Scheduled. (Note: The law provides that debts are not dischargeable which "have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy.") (7) Debts Not Dischargeable if "They Were Created by His Fraud, Embezzlement, Misappropriation or Defalcation While Acting as an Officer or in Any Fiduciary Capacity." (Note: It was held in Crawford v. Burke, 195 U. S. 176, decided under the act of 1867, construing similar language, that this referred to those who were acting as technical trustees, and not to cases of implied trusts. In that case a broker who had sold stock and had not paid over the proceeds was held discharged in bankruptcy from such liability. But in McIntyre v. Kavanaugh, 242 U. S. 138, decided under the present law, the court held that a broker who without authority sold stock and appropriated the proceeds was not discharged by reason of the provision as to wilful and malicious injury to property and suggested that the latter provision was put in to overcome Crawford v. Burke.) § 889. (Bankruptcy, Sec. 99.) New promise to pay. (Note: It is the general law, independent of the bankruptcy act, that a new promise to pay a debt discharged in bankruptcy revives the debt. The promise to so operate, must be a definite promise, showing an intent to waive the privilege of the discharge, and under the statutes of some states must be in writing.) |