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Douald v. Kell.

promissory note, it is not necessary that there should be an additional averment that the debt was not incurred in a fiduciary capacity, as the note on its face implies a contract between the parties as individuals. Decedents' Estates.Administrator.Acceptance of Individual Note of Predecessor.—Judgment.—Where an administrator accepts from bis predecessor (a former administrator) a promissory note, executed by the latter, payable to himself for money due from such predecessor to the estate of the decedent, and obtains judgment on such note in his own right, he can not, as against a third party, who purchases the real estate of the debtor, acquired by him after his discharge in bankruptcy, successfully assert that such cause of action was one not barred by the bankrupt's discharge.

From the Gibson Circuit Court.

W. M. Land and J. B. Gamble, for appellant.

J. E. McCullough and /. H. Miller, for appellee.

Elliott, C. J.—The appellant seeks to revive a judgment and enforce it against real estate owned by the appellee. The judgment upon which the complaint is based was rendered against the grantor of the appellee, and was rendered prior to his acquisition of title. The answer of the appellee alleges that the judgment was rendered on a promissory note executed by his grantor, Robert Duncan, and one Andrew J. Lewis; that Duncan was adjudged a bankrupt, and a full discharge awarded him under the bankrupt act. The appellant replied that Duncan was the administrator of the estate of Alexander C. Donald, deceased, and, as such administrator, wrongfully converted to his own use one thousand dollars of the money of Donald's estate; that Duncan resigned his trust; that the appellant succeeded him, and that the promissory note on which the judgment was founded was executed to secure the payment of the money wrongfully converted by him.

The answer shows that the judgment is founded on a promissory note, and thus shows, prima facie, at least, that the debt was not created by the appellee's grantor while acting in a fiduciary capacity. Hays v. Ford, 55 Ind. 52. Where the pleading shows on its face that the foundation of the Donald v. Kell.

judgment is a promissory note, it is not necessary to aver that the debt was not incurred in a fiduciary capacity, for the note on its face implies a contract between the parties, and constitutes a debt not of a fiduciary character.

The doctrine of Sorden v. Gatewood, 1 Ind. 107, can not be extended to such a case as this, where the judgment is shown to have been founded on a contract. The answer need not go beyond the instrument on which the judgment is founded, for an answer which pleads a prima facie defence is good. Where, as here, the instrument which constitutes the foundation of the judgment is shown to be a promissory note, the presumption is that it evidenced a debt provable under the bankrupt law, and this presumption must prevail until overthrown.

Where the enforcement of a judgment is sought to be defeated by a discharge in bankruptcy, it is proper to look behiud it to the character of the debt upon which it is founded, and if it is ascertained that it belongs to a class upon which the discharge does not operate, the judgment will be enforced. In re Patterson, 1 Nat'l Bk. Reg. 307; In re Whitehouse, 4 Nat'l Bk. Reg. 63; Flanagan v. Pearson, 14 Nat'l Bk. Reg. 37; Howland v. Carson, 28 Ohio St. 625; In re Seymour, 1 Ben. 348; In re Robinson, 6 Blatchf. 253; Horner v. Spelman, 78 111. 206; Reid v. Martin, 4 Hun, 590; Simmon v. Simpson, 80 N. C. 332; Wade v. Clark, 52 Iowa, 158 (35 Am. R. 262). .

These cases do not create a new principle; they merely apply an old one, for it lias long been the law that, wherever justice requires it, a judgment will be adjudged to be an old debt in a new form, and will not be regarded as creating a new debt. Evans v. Sprigg, 2 Md. 457; Wyman v. Mitchell, 1 Cowen, 316; Clark v. Routing, 3 N. Y. 216. If, therefore, the judgment on which the appellant rests her action had been directly for the money wrongfully converted by Duncan, his discharge in bankruptcy could not prevail against it.

Donald r. Kell.

The search for the cause of action on which the judgment rests does not disclose a cause of action for the money converted by Duncan, but the cause of action revealed is upon a promissory note executed by him and another person. On the face of the record, the cause of action is upon the promissory note, and to ascertain the consideration for the note a second step back of the judgment must be taken.

Our opinion is, that where, as here, the rights of a purchaser are involved, the second step can not be taken. A purchaser is bound only by what the record discloses, and in this instance that disclosed a judgment on a debt which the discharge in bankruptcy extinguished. It would make titles insecure to permit a creditor in such a ease to go back of the cause of action on which the judgment was founded, and defeat the purchaser by proof that it was not such a cause of action as it purported to be. But there is another consideration of great weight here, and that is this, the appellant accepted a promissory note, payable to herself, executed by Duncan and another person, for the money due from him to the estate of the decedent, and after having done this she obtained judgment in her own right, and, having elected to do this, she can not, at all events as against a purchaser, successfully assert that the cause of action was one not barred by the discharge in bankruptcy. In such a case as this, the creditor can not be permitted to travel back of the contract which appears on the face of the record as the foundation of the judgment, and prove another debt, for the purpose of defeating a purchaser who has purchased land to which the bankrupt acquired title after his discharge.

Judgment affirmed.

Filed May 10, 1887.

The Merchants Despatch and Transportation Company v. Merriam et at

No. 12,668.

The Merchants Despatch And Transportation ComPany v. Merriam Et Al.

Common Carbieb.ContractCare Required Concerning Goods.—A stipulation in a bill of lading issued by a transportation company, that goods received for shipment at Boston are "to be forwarded to Louisville depot only," does not relieve the carrier from its duty to properly care for them after their arrival at the latter place.

Same.Duty to Provide Place of Storage.—Although the bill of lading is silent on the subject, it is the duty of a common carrier, which becomes a part of its contract, to provide a place where goods may be safely kept after they have been unloaded from the cars in which shipment is made.

Same.Warehouseman.Negligence.Delivery to Wrong Person.Conversion. —After goods are unloaded and stored, the liability of the carrier becomes that of a warehouseman, whether the depot or place of storage belongs to it or to another; and if, through its negligence, the goods are delivered to a wrong person, it is liable to the owner upon its contract for damages as for a conversion.

From the Marion Superior Court.

A. C. Harris and W. H. Calkins, for appellant.

R. Hill and J. W. Nichol, for appellees.

Zollars, J.—On the 23d day of March, 1880, appellant received from G. & C. Merriam, a firm doing business in Massachusetts, a case of books to be carried from Boston to Louisville, Ky.

The case was safely transported, and arrived at Louisville on the 29th day of that month.

In the bill of lading, executed by appellant, are these provisions: "Received of * * * the following package, * * * to be forwarded * * * to Louisville depot only." "All articles of freight on arrival at place of destination are at the risk and expense of the owner." Also the following: "In no case will damages be allowed for wrong delivery or loss caused by defective marking with initials, or where.the marks or directions are made on paper or cards."

The consignees are given in the bill as G. & C. Merriam, Louisville, Ky.

The Merchants Despatch and Transportation Company v. Merriam d aL

It is alleged in the complaint, that by the terms of the agreement, of which the bill of lading filed with and a part of the complaint is the written evidence, appellant undertook and agreed to carry the books from Boston to Louisville, and there deliver them to appellees or their duly authorized agent, upon a surrender of the bill of lading; that appellant did not so deliver the books, but, in violation of the contract and the bill of lading, wrongfully converted them to its own use.

Upon some points in the case, there is a conflict in the evidence, but there is evidence tending to establish the following as the facts in the case:

After the arrival of the books at Louisville, they were placed in the freight depot of the Louisville, Cincinnati and Lexington Railroad Company, and remained there until the <5th day of the following April.

The bill of lading, with a draft on one Judson W. Turner for the value of the books attached, was forwarded by appellees to a bank in Indianapolis, where Turner lived. By paying the draft, Turner would have been entitled to the bill of lading and the books. Without payment of the draft, he was not entitled to either the bill of lading or the books. He never paid the draft, nor did he in any other way pay to appellees the amount of the draft or the value of the books.

Subsequent to the arrival of the books at Louisville, he sent his brother to that city with a letter in the shape of an order for the books, signed by himself as " agent," on the Louisville, Cincinnati and Lexington Railroad Company. Upon that letter the railroad company delivered the books to the brother, and he disposed of them as directed by Turner.

Somewhat, perhaps, of the nature of an express company, appellant is clearly a common carrier, and, as such, subject to the rules of law applicable to such carriers.

Whether or not, in the absence of a stipulation in the bill

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