McChristal v. Clisbee
76 N.E. 511
Mass.
1906
Check Treatment
Knowlton, O. J.

This is an action against a surety upon a recognizance given by a debtor arrested on execution. The condition of the recognizance is to deliver himself up for examination before a magistrate, within thirty days of the arrest. There was a breach of the recognizance, and the only defence relied upon is, that the judgment upon which the execution was issued was rendered unenforceable by a discharge in bankruptcy granted to the debtor before the arrest.

The declaration in the action in which the judgment was rendered contained three counts, in the common form, one for an assault and battery, one for false imprisonment, and one for a malicious prosecution. There was a general verdict for the plaintiff and judgment was entered on the verdict.

The judgment is conclusive upon the debtor as to the facts necessarily involved in the verdict. Under our practice, where a general verdict for a plaintiff is returned upon a declaration containing several counts, instead of a separate verdict on each count, it is impossible to tell from the record upon which of the counts the finding is made, or whether it is made upon all of them. If one of the counts is for a cause of action that would be released by a discharge in bankruptcy, it may be that evidence might be received of the proceedings at the trial, in order to determine, if possible, on which count the verdict was rendered. But if all of the counts are for liabilities which are not affected by a discharge in bankruptcy, there is no occasion for such an ■ inquiry.

The offer of the defendant in this case to show that, in all the matters referred to in the declaration in the original action, the debtor acted in good faith and without express malice, was rightly refused. It was not open to him to contradict the record, and it is immaterial on which count the verdict was found, or whether it was found on all the counts; for each of them alleges a wilful and malicious injury to the person of the plaintiff. Judgments in actions for wilful and malicious injuries to the person or property of another are excepted from the provable debts from which a bankrupt is released by a discharge. U. S. St. 1898, c. 541, § 17. There cannot be an assault and battery, or a false imprisonment, or a malicious prosecution, without a wilful injury of the person upon whom the wrong is *122inflicted. The word “ wilful ” in the statute means nothing more than intentional.

The defendant contends that the word “ malicious” is not used here in its ordinary legal sense, and that it means a wicked, malevolent desire to do another an injury for the sake of the suffering that it will cause him. Such a feeling is commonly called express malice, while the malice here intended is nothing more than that disregard of duty which is involved in the intentional doing of a wilful act to the injury of another. Each of the wrongs charged in the different counts of the declaration is malicious in law.

The meaning of the statute in question has been considered by different courts, and interpreted in accordance with the views above stated. In Leicester v. Hoadley, 66 Kans. 172, (9 Am. Bankr. Rep. 318,) a judgment for damages for alienating the affections of the plaintiff’s husband was held to be unaffected by a discharge in bankruptcy. In In re Maples, 105 Fed. Rep. 919, the judgment under a local statute was for damages for the seduction of the female plaintiff, and it remained in force notwithstanding the discharge of the defendant in bankruptcy. The judgment in In re Freche, 109 Fed. Rep. 620, was in favor of a father for the seduction of his daughter. Distler v. McCauley, 6 Am. Bankr. Rep. 491, was an action upon a judgment for damages for a breach of promise of marriage, accompanied by seduction and the birth of a child. In all of these cases it was held that the judgment was for a wilful and malicious injury to the person of another, and was within the exception in the statute. In McDonald v. Brown, 23 R. I. 546, it was held that a bankrupt was not released by his discharge in bankruptcy from a judgment giving damages for a libel, and in In re Colaluca, 133 Fed. Rep. 255, a judgment for an assault and battery was decided to be within the exception. The case of Colwell v. Tinker was decided first by the Supreme Court and afterward by the Court of Appeals in New York, and then by the Supreme Court of the United .States. Colwell v. Tinker, 6 Am. Bankr. Rep. 434; 169 N. Y. 531; 193 U. S. 473. The judgment was for damages to a husband for criminal conversation with his wife. It was decided by all the courts that such a judgment was not affected by a discharge of the defendant in bankruptcy, and the statute *123was carefully considered by the Supreme Court of tbe United States, and given a construction adverse to the positions taken by the defendant in the present case.

Giving the language of the statute its natural meaning, and applying the rules stated in the cases referred to, it seems plain that, whether the judgment in the present case was founded upon an assault and battery,, a false imprisonment or a malicious prosecution, it remains in full force, notwithstanding the debtor’s discharge in bankruptcy.

Exceptions overruled.