This subdivision has been changed by the act of February 5, 1903, to read as follows: "are liabilities for obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another, or for alimony due or to become due, or for maintenance or support of wife or child, or for seduction of an unmarried female, or for criminal conversation." This amendment was evidently intended to meet the course of decisions on the original act. It seemed to contemplate that the only other liabilities which were unaffected by the discharge were those which had been reduced to judgment. Under its original form, the courts held that, if it did not cover debts not reduced to judgment, they would give the creditor time to reduce his claim to judgment, so that the discharge could not affect them.36 There had been some conflict of decisions on the question what constitutes a willful and malicious injury to the person. In Re Tinker, it had been questioned whether this phrase would cover damages in an action of crim. con. as that would hardly be said to be a willful or malicious injury to the person of the husband. On the other hand, in Re Freche,88 it had been held that damages recovered for the seduction of a daughter did come within this language, and in Re Maples" it was held that a judgment by an unmarried woman for her own seduction, un 37 36 In re Cole (D. C.) 106 Fed. 837; In re Wollock (D. C.) 120 Fed. 516. As to false representations, see FORSYTH v. VEHMEYER, 177 U. S. 177, 20 Sup. Ct. 623, 44 L. Ed. 723. See "Bankruptcy," Dec. Dig. (Key-No.) §§ 423, 424. 37 (D. C.) 99 Fed. 79. But the question of the effect of this same discharge was decided in Tinker v. Colwell, 193 U. S. 473, 24 Sup. Ct. 505, 48 L. Ed. 754, to the effect that such cause of action was not barred by a discharge. See “Bankruptcy,” Dec. Dig. (Key-No.) § 424. 38 (D. C.) 109 Fed. 620. See “Bankruptcy,” Dec. Dig. (Key-No.) § 424. 39 (D. C.) 105 Fed. 919. See "Bankruptcy," Dec. Dig. (Key-No.) § 424. der a Montana statute giving such a right of action, was a willful and malicious injury to her person or property. These questions are set at rest by the amendment. However, if there is a liability for an alleged fraudulent transaction, and the creditor, waiving the fraud, closes it by taking promissory notes of the debtor, and then gets judgment on the notes, that is not a judgment in an action. for fraud, in the sense of the original act.40 Another class of debts not affected by a discharge is the unscheduled debts, unless the creditor had notice or actual knowledge of the bankruptcy proceedings.*1 The last class mentioned is debts created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity. The fraud contemplated in this subdivision and the previous one means actual, positive fraud, involving moral turpitude, not mere constructive fraud or fraud in law.*2 The debts contemplated by this subdivision are those arising on actual, technical trusts, and were not intended to cover trusts arising from mere relations of confidence, though that may be the colloquial sense of the term. For this reason, debts due by a commission merchant or broker to customers for property of theirs which he has 40 Hargadine-McKittrick Dry Goods Co. v. Hudson, 122 Fed. 232, 58 C. C. A. 596. See "Bankruptcy," Dec. Dig. (Key-No.) § 423. 41 Such knowledge, to affect the creditor, must be acquired before the discharge. Knowledge later, though in time to prove his debt and move to revoke the discharge, is not enough. Birkett v. Bank, 195 U. S. 345, 25 Sup. Ct. 38, 49 L. Ed. 231. The omission from the schedule of the creditor's residence when known and the creditor's ignorance of the proceedings prevent his claim from being affected by the discharge. Miller v. Guasti, 226 U. S. 170, 33 Sup. Ct. 49, 57 L. Ed. See "Bankruptcy," Dec. Dig. (Key-No.) § 425. 42 Ames v. Moir, 138 U. S. 306, 11 Sup. Ct. 311, 34 L. Ed. 951; Bullis v. O'Beirne, 195 U. S. 606, 25 Sup. Ct. 118, 49 L. Ed. 340. See "Bankruptcy," Dec. Dig. (Key-No.) § 426. 43 Bracken v. Milner (C. C.) 104 Fed. 522; In re Butts (D. C.) 120 Fed. 966. See "Bankruptcy," Dec. Dig. (Key-No.) § 426; Cent. Dig. §§ 791-807. sold are not debts contracted in a fiduciary capacity, in the sense of the statute.** 44 REVOCATION OF A DISCHARGE 72. Under section 15 of the act, the judge may, upon the application of parties in interest who have not been guilty of undue laches, filed at any time within one year after a discharge shall have been granted, revoke it upon a trial, if it shall be made to appear that it was obtained through the fraud of the bankrupt, and that the knowledge of the fraud has come to the petitioners since the granting of the discharge, and that the actual facts did not warrant the discharge. This evidently contemplates a showing on the proceeding for a revocation nearly as strong as that necessary to secure a new trial at common law on the ground of afterdiscovered evidence. The ignorance of creditors alone is not enough, if the facts on which they base their motion to revoke were known to the trustee, as he represents them to this extent.* 45 A fraud long prior to the adjudication in bankruptcy is not such a one as is contemplated by this section.46 A creditor who has not proved his claim is sufficiently a party in interest to move for a revocation, and the court itself, if it thinks that there are sufficient reasons for it, may revoke the discharge within the year.47 44 In re Basch (D. C.) 97 Fed. 761; Knott v. Putnam (D. C.) 107 Fed. 907; Crawford v. Burke, 195 U. S. 176, 25 Sup. Ct. 9, 49 L. Ed. 147. See "Bankruptcy," Dec. Dig. (Key-No.) § 426. 45 In re Hansen (D. C.) 107 Fed. 252. As to the effect of laches on the part of creditors, see In re Mauzy (D. C.) 163 Fed. 900. See "Bankruptcy," Dec. Dig. (Key-No.) § 417; Cent. Dig. §§ 867-871. 46 In re Hoover (D. C.) 105 Fed. 354. See "Bankruptcy," Dec. Dig. (Key-No.) $ 417. 47 In re Bimberg (D. C.) 121 Fed. 942. See "Bankruptcy," Dec. Dig. (Key-No.) § 417. But if the bankrupt has fraudulently concealed or failed to list his property, and this fact is found out by the creditors after the granting of the discharge, and could not have been found out before, then the discharge may be revoked.48 48 In re Meyers (D. C.) 100 Fed. 775. The fraud must be actual, such as would defeat the grant of a discharge. In re Wright (D. C.) 177 Fed. 578. See "Bankruptcy," Dec. Dig. (Key-No.) § 417. CHAPTER IX THE DISTRICT COURT (Continued)-PARTICULAR CLASSES OF JURISDICTION 73. Claims against the United States-Proper Forum. 77. Same The Proper Appellate Court. 78. Suits to Abate Unlawful Inclosures of Public Lands. 79. Suits under Immigration Laws. 80. 81. Suits against Restraints and Monopolies. Claims of Indians for Lands under Treaties. 84. Unclassified Cases. CLAIMS AGAINST THE UNITED STATES- 73. All suable claims against the United States may be prosecuted in the court of claims, which is located in Washington. The district court has concurrent jurisdiction with this court over such claims in certain classes of cases fixed by law; the jurisdiction of the district court being limited to cases involving not over ten thousand dollars. Until the act of March 3, 1887, known as the "Tucker Act," the only court which had jurisdiction of claims against the United States was the court of claims. This act, however, gave to the district and circuit courts concurrent jurisdiction with the court of claims, the jurisdiction of the district court being limited to cases involving 124 Stat. 505, c. 359 (U. S. Comp. St. 1901, p. 752). |