*1 1S9 conducting regulate the manner of United Congressional See elections. 476, 477, Gradwell, 482- 243 States 857. 61 L.Ed. 37 S.Ct. .At however, only provisions time, form any relating federal statute voting in ballot the manner of Con- contained gressional elections “All provides: Title 2 U.S.C.A. § Congress Representatives votes ballot, printed must be written or been machine the use of which has voting law; authorized the State duly contrary to recorded votes received There of no effect.” this section be shall manifestly nothing in this which au- up set elec- thorizes the courts either machinery order or to declare ballot blanket form of or Australian SIBLEY, Judge, dissenting. Circuit prac- be or that other election must used must be Not tices true, followed. where, here, provision is printing or furnish- made law public authorities ballots qf appropriation funds been purpose, is difficult to see made for that the use directing how order possibly could blanket or Australian ballot justified or made effective. stated, ap- For the reasons order pealed will be affirmed.
Affirmed. White, ap- Atlanta, Ga., for Houston CALDWELL. DAVISON-PAXON CO. pellant. No. 9645. Pullen, D. Allen and R. B. both John Atlanta, Ga., appellee. Appeals, Fifth Circuit. Court of Circuit FOSTER, Before Oct. 1940. HUTCHESON, Judges. Circuit Rehearing 1941. Jan. Denied
HUTCHESON, Judge. enjоin The suit was enforcement against plaintiff of a garnishment state brought for debt. It was court bankruptcy ground bankrupt debt had been cy, settled but erroneous Georgia,1 ****plaintiff of the decisions state compelled jurisdic invoke court.2 tion of the Mfg. Hunt, Jacobs, Local Loan Atlanta Skirt U. Co. Ga.App. Levy 54 S.Ct. S.E. S. Ga.App. 113, Company, Kiser M. C. A.L.R. 34; Crawford v. Davison-Paxon S.E. Co., Ga.App. 166 S.E. *2 ground setting upon which out therein debt that the fendant contested the suit on predicated dischargeable for decision was (1) one suit was that the matter was 3rd, plea bankruptcy. invoca- in April On and not for state courts (2) jurisdiction overruled, jurisdiction; was as waived the bankruptcy stay was a in filing plea defendant’s her for a judgment that the it had obtained was adjudication judgment the debt there as conclusive that was a and bankruptcy. follows: discharged in on judge jurisdiction maintaining trict “The me within case on before coming determining the Hunt v. Loan and petition for trial amended after the was judgment on effect of the state and support facts introduced to the amend- court, pleadings that that concluded in dischargeable allegations ment with reference there- been dis- and had debt was charged petition, in and the ' prayed. granted relief considered, adjudged “It is ordered and appeal of that correctness tests the pltf. that recover of the defendant which it ruling. This on is the record Twenty the sum of Three Hundred rests. ($320.88) Dollars all costs 88/100 this appellant action.” here February On municipal against appellee in the filed suit Appellee granted her and it on account court Atlanta for $444.58 was ordered dischargеd “be she from purchased it for the from merchandise period all debts and claims September, Decem- from provable by against are made estate excepted said her acts ber, at- per statement as itemized excepting such debts as are law 2, 1939, March petition. tached to On operation from the of a plea of the jurisdiction she filed to the bankruptcy.” In July, 1939, she filed non-resi- alleged based her state court dence, bankruptcy court, application for 6, 1939, her filed and on March she injunction, reciting these facts and that bankruptcy scheduling voluntary petition in notwithstanding discharge, her Davison- her creditors and defendant as one of Paxon, plaintiff suit, in the state court bankrupt. duly adjudged garnishment out a against sued her em- ployer to collect on debt 24th, appellant filed in the March On bankruptcy. had been alleging: state court suit an amendment below, It was not denied it is not denied pur- defendant “1. That at the time the here, that the decisions of are listed on the item- chased the merchandise as, the effect that a debt contracted ac A’ ‘Exhibit and at- ized statement marked cording petition to the amended this debt petition, in- to the defendant was tached is, was, exception within the of Sec. present and had no intention solvent Act,3 Bankruptcy sub. a lia “a insolvency pay concealed her for same and bility obtaining money for property by pay same, for con- and intention to pretenses or false insolvency intentions cealed her question below, What inwas what inis purchases peti- respect your said question whether here is a debt created as tioner. was, according one allegations to the your petitioner “2. That relied on petition, liability. amended is such a promise pay same, defendant’s for judge The district thought damaged in it lost merchandise of agree. We not. But for the Georgia the value listed in itemized statement decisions goods marked ‘Exhibit A.’ present with no intention to “3. That action of the defendant in in a which is results debt for ob purchasing said merchandise without a taining by false pay same, intention present for representations, and false we should tenses promise pay knowing her same was regard admitting false, was deceitful and fraudulent. petition one answer. The amended care your petitioner damaged That “4. in fully charging refrains the de $444.58,plus interest per sum 7% represented anything made fendant August 1937 to date.” annum charges pretenses. that she was in 29th, present Whereupon, appellee solvent, on March had no that she intention plea purchased stay, suit in that filed a for the fendant and that a(2). 3 11 U.S.C.A. sub. Blount, Cir., insolvency Zimmern and intention she concealed com- plaintiff and we “A fraud have said so: the same from the ways making of mer- mitted in purchasing conduct representations, and be аctionable. intention chandise without count, orig- *3 considering In an was third as knowing that she the for same and action, independent the inal solvent, false, fraudulent. cause of was deceitful plea bankruptcy, discharge it would that in hardly be doubted think can We it alleged unimportant in the be fraud whether the doing was deceitful conduct in so rep- straight- by making was the of false a committed not act in that shе did sense However, making full way or not resentations otherwise. honest forward and condition, replication to the considering the second of her financial disclosure exception. plea bankruptcy, suffi- discharge as the a not within such conduct is discharge, it, debts important cient is to deter- except from answer It does not it through only replication con- suffi- mine whether the by obtaining crеdit created inability ciently fraud, 'by obtain- insolvency charges but fraud cealment pretenses rep- “Lia- excepts discharge from false or It false property resentations,’ only or fraud obtaining which is the kind of bilities for bankrupt prevents pretenses that the release of or then, provable Bank- meaning of that statute his 17a Within debts. Section pretenses, no ruptcy no false there were Act 1898 as amended.” merely There representations here. D.C., Nuttall, In to the re is dis- full credit without obtaining of following same effect as state are also the dis- knowledge if that full with closure Sutliff, cases: Miller 241 Ill. 89 N. well required, might credit closure had been 735; L.R.A.,N.S., E. Radford M. J. A was all. given, that have Grocery Company Halper, Tex.Civ.App., bankrutpcy statute, like that remedial us, S.W. No cases -are cited must, debtors, the relief intended for none, except Georgia we found have there- discharges and insofar as denial of debts, these holding cases that incurred as strictly relief, so be construed fore of were-, excepted discharge. from the are with- coming exactly except all debts those Appellant and de does indeed cite texts discharged. exception will stand buyer at the cisions that wherе the Thaw, 35 S.Ct. 236 U.S. Gleason purchase insolvent and in time of the is 287, 59 L.Ed. goods, it not to for the is a fraud tends Appellant, conceding of course which will his title It render voidable. not res court suit is judgment the state 96-206, too, Section, Georgia cites a Code question debt judicata whether the providing: “Where one is insolvent who dischargeable because and, purchases goods, intending to before the judgment was rendered therefor, insolvency inten conceals con- charge, is judgment insists that may disaffirm tion not to the vendor pleaded in the clusive, are as that the facts goods, if and recover the no the contract no that, though there was amendment, person acquired in innocent third an made, representation statement or overt But terest in them.” it cites no cases rep- purchase on сredit construing either federal or state courts appellee intended resentation excluding statute as purchased goods. could kind, where, discharge though of this cases appellant may support 'this view in addi- be conceded that the debts were In by fraud, cases reliance there no false to its created were tion representations. Indeed, generally settled puts reliance on tenses or it could its any, kind it is settled law that debts of law cite rule bankrupt of that pleaded deceitful created the fraud are is operation is excepted deceit, sale be rescinded. the dis certainly question charge, not the unless created while he was true is so is, capac acting That does the stat- officer or in a fiduciary us. as an before except obliga- ity. Burke, from the Crawford ute 147; O’Beirne, Bullis v. deceit fraud in their with or S.Ct. affected tions is incurring the deceit or fraud 25 S.Ct. S.Ct. whether 195 U.S. Blount; only Nuttall, supra. implied, except or does it Zimmern re actual prevent is overt fraud which will where there actual false The kind of those
pretense
representation?
We
think it
that committed
fraudulent
is
excepted.
misrepresentations
latter
of fact or
such con-
arе
clear
-
pretended
pur-
purchaser
having
duct
fraudulent
to be a
but was in
or artifice
guard and truth a
pose
throw
deadbeat and
It
as will
one off his
is not
a.cheat.
will,cause
case of
inquiry or examina-
mere failure to
to omit
mention
fact
him
where
relationship
It is
there is
make.
he
confidential
which would otherwise
require
misrepre-
By
not claimed that there was such
it.
the act of offering to
merely in
sentation,
place
It
presents
or trick.
artifice
of trade he
himself as
purchaser
application
credit
good
claimed that
least of
intentions.
Many
occur,
plaintiff’s
coupled
instances
even in criminal
with
silence
law,
solvency
“present
conduct,
constitut-
where such
coupled
intention”
morally
purpose,
misrepresentation
pretense.
ed
fraudulеnt
esteemed
representation
punished,
though
do. The
think
will
We do not
that this
If
pur-
falsehood
told.
right.
affirmed.
*4
chaser without
supposed
knows
means
he is
by
storekeeper
the
person
to be
.some
Judge (dissenting).
wealth,
by
and
point
silence on
ob-
the
amending
account in
The
of the suit on
credit,
tains
no one would doubt there was
damages for
the
court into one for
State
pretence.
a fаlse
He
be
pretending to
regular.
obtaining
goods was
deceitful
person.
another
presents
So one who
an
1913, p. 164,
Though
37(c).
Ga.Laws of
money
order for
payable
which is
to another
upheld
done
a
to meet
it
impliedly represents himself
to
be
Co.,
113,
Ga.App.
120 S.E.
Levy v.
31
Kiser
Story,
other. Rex v.
R. R. 60. One who
entirely
resulting judgment
34. The
is
sells property knowing
his,
the
is not
to
valid,
ought
accepted
as establish-
and
be
buyer,
by offering
has
to sell
lose
impliedly represented
was ob-
goods
value of
a
$320.00
Reg.
that it was his.
alleged.
District Court
tained
In the
Samson,
L.T.Rep.,N.S.,
52
v.
772. One who
sought
neither
show what
evi-
side
gives a
check which he knows
bad
is
was, or the
dence before the State court
says
goods, though
obtain
he
not a word
case,
permis-
real
if that were
truth of
it,
goods
about
has
obtained
a
ought
Judge
sible. The District
prеtence,
practice
by
a
universal
speculated
majority
have
about
it. The
only against
is drawn
check
a bank which
opinion concedes this.
gets
is bound to
If he in like manner
liability adjudged
The
not one for
a one
endorse
check to the
such
indorser’s
damages
implied
goods purchased,
damage,
pretence.
debt for
there is an
Guernsey-Newton
obtaining goods that
Napier,
dеceit in
would
v.
151
a
Co.
Wash.
have been delivered.
It 318,
girl bought
otherwise not
a little
FIRST GA., CON, STATES. UNITED SIBLEY, Before HOLMES, and Mc- CORD, Judges. Circuit No. 9566. Appeals, Circuit. Court Fifth Circuit Judge. 30, 1940. Oct. George S. in his 1936 income tax Jones return took deductions in full of a loss sustained his stock in Realty Standard Company having become its valueless and having him; and the surrendered further loss of a $1,000 debt of about against Realty Standard Company having been ascertained to be worthless charged off during year. The deduc- denied, tions were additional taxes were paid, assessed and and a suit in the district to recover them did not succeed.' appeal followed. owned capital one-fourth Jones stock Realty Company of Standard year had cost him $12,588. city owned a block of stores, originally $80,000, worth and its renting business them. mortgaged, The stores were the balance December, being $21,- due in about mortgage and the note was indorsed and two other stockholders and Jones Dunwoody W. E. and S. T. Coleman. Company also owed bank notes for indorsed, $3,550 similarly owed its propor-
stockholders advances made