Flanagan v. Cary

Citations

• 37 Tex. 67

Syllabus

<p>1. On a replevin bond for certain slaves claimed by heirs adversely to L. and wife, F. became surety for L. and wife, and from them obtained possession of the slaves as an indemnity against his liability on the bond. Pending the litigation between the heirs and L. and wife, F. retained the possession and use of the slaves, and in the meantime purchased from two of the heirs their undivided interests in the slaves. The heirs recovered judgment against L. and wife for the slaves, and demanded them from F., who refused to surrender them except upon terms not conceded by them; and they then (in January, 1865) sued F. for the value and hires of the slaves. This suit was protracted until after the enactment of the United States Bankrupt Law of March 2d, 1867, under which F. obtained a discharge from his debts, and pleaded the same in bar of the suit. Held, that though F. may have been indebted to the plaintiffs for their proportion of the hires of the slaves which accrued prior to emancipation, yet his indebtedness was not tortious or fraudulent within the meaning of the 33d Section of the Bankrupt Act; and therefore his discharge was a bar to the action.</p> <p>2. When a material and traversable allegation of fraud constitutes the sole foundation of an action, the demand may be said to be one founded in fraud, and not affected by the discharge of the defendant as a bankrupt; but when the defendant’s indebtedness resulted, as in this case, from an implied assumpsit, irrespective of fraud, the 33d Section of the Bankrupt Law does not apply, and the discharge is a bar to the action.</p>