HOWARD P. ORRILL vs. DISTRICT COURT OF NEWTON.

HOWARD P. ORRILL vs. DISTRICT COURT OF NEWTON.

324 Mass. 8

November 4, 1948 - March 3, 1949

Middlesex County

Present: QUA, C.J., RONAN, WILKINS, SPALDING, & WILLIAMS, JJ.

The defendant in a judgment based on a declaration alleging merely "wrongful conversion" by him of "funds belonging to his employer" was released from the debt of the judgment by a discharge in bankruptcy under Section 17a (2) of the national bankruptcy act.

PETITION, filed in the Superior Court on March 15, 1948, for a writ of certiorari.

The case was heard on the petition and return by Dowd, J.

L. E. Conn, for the petitioner.

A. E. LoPresti, Assistant Attorney General, for the respondent.

WILKINS, J. The petitioner appeals from a judgment of the Superior Court dismissing his petition for a writ of certiorari against the District Court of Newton. It appears from the District Court judge's return that the Globe Indemnity Company, a judgment creditor, commenced supplementary process proceedings against the petitioner, a judgment debtor, upon an execution issued by the District Court in an action of tort "for the wrongful conversion by the petitioner of funds belonging to his employer, the Somerville National Bank"; and that the claim had been assigned by the bank to the indemnity company, which obtained the judgment. The return contains no copy of the declaration nor further description of the cause of action.

The petitioner moved to dismiss the supplementary process proceedings on the ground that he had been released from the debt of the judgment by his discharge in bankruptcy upon a voluntary petition listing this debt. The District Court judge denied the motion, ruling (1) that the

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discharge did not release the petitioner from the debt, and (2) that the act of conversion set out in the declaration was a wilful and malicious injury to the property of another within Section 17a (2) of the bankruptcy act. [Note 1] The first ruling was not expressly based on the declaration, but was obviously the legal consequence of the second ruling, which was based entirely on the declaration.

There was error in the second ruling. It could not be inferred from a mere allegation that the conversion was wrongful that it was also wilful and malicious. This question has been recently considered by us with full citation of authorities in Massachusetts Bonding & Ins. Co. v. Lineberry, 320 Mass. 510 .

Judgment reversed.

FOOTNOTES

[Note 1] "A discharge in bankruptcy shall release a bankrupt from all of his provable debts . . . except such as . . . (2) are liabilities . . . for willful and malicious injuries to the . . . property of another." U. S. C. (1940 ed.) Title 11, Section 35.