McDonald v. Brown

• Decision Date: 03 February 1902
• Citation: 23 R.I. 546,51 A. 213
• Parties: McDONALD v. BROWN.
• Court: Rhode Island Supreme Court

51 A. 213

23 R.I. 546

McDONALD

v. BROWN.

Supreme Court of Rhode Island.

Feb. 3, 1902.

Action by John H. McDonald against d. Russell Brown. Demurrer to defendant's special plea sustained, and case remanded for further proceedings.

J. J. Dockery, for petitioner.

Dexter B. Potter, for defendant.

TILLINGHAST, J. This is scire facias against bail. The writ sets out that by the consideration of the common pleas division of this court on the 25th day of December, 1900, the plaintiff recovered judgment against Torrey E. Wardner for the sum of $250 and costs, and that, although execution has been issued on said judgment, it still remains unsatisfied, and the officer to whom the execution was directed has returned thereon that he could not find either the body or the estate of the said Torrey E. Wardner, whereon to levy the same. Wherefore he brings this action against the defendant, who became bail for the said Torrey E. Wardner on the original writ in the action aforesaid. To this action the defendant files a plea in which he sets out that the plaintiff ought not to have his execution against him, because he says that the said Torrey E. Wardner, after the recovery of the judgment aforesaid, and before the issuing of the writ in this case, to wit, on the 19th day of January, being bankrupt and insolvent, did file his petition for relief as a bankrupt in the district court of the United States for the district of Massachusetts, and was on said 19th day of January adjudged to be bankrupt and insolvent, and that be afterwards entered into a composition with his creditors, which was duly accepted by a majority of those whose claims have been allowed, which composition on the 11th day of June, 1901, was duly confirmed by said United States district court. The plea also sets out that on said 11th day of June said Torrey E. Wardner filed his petition for discharge from all provable debts existing at the time when his petition for relief was filed, of which said provable debts the judgment mentioned in said writ was one, and that a decree was thereupon duly entered in said United States district court, discharging the said Torrey E. Wardner from all of his debts outstanding at the time of the filing of his petition for relief. Wherefore the defendant in this case prays judgment if the plaintiff ought to have his execution against him, etc. To this plea the plaintiff demurs on the grounds (1) that the discharge in bankruptcy of the said Torrey E. Wardner does not release the defendant; and (2) that the debt upon which the present action is based is not one dischargeable in bankruptcy, because said debt is founded upon a judgment obtained in an action of trespass on the case for libel, and was obtained before the said Wardner filed his petition in bankruptcy.

Section 17 of chapter 3 of the United States bankruptcy law of 1898 provides that: "A discharge in bankruptcy shall release a bankrupt from all of his provable debts except such as (1) are due as a tax levied by the United States, the state, county, district, or municipality in which he resides; (2) are judgments for frauds, or obtaining property by false pretenses or false representations, or for wilful and malicious injuries to the person or property of another; (3) have not been duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy; or (4) were created by his fraud, embezzlement, misappropriation or defalcation while acting as an officer, or in any fiduciary capacity." The only question raised by the pleadings is whether the discharge in bankruptcy of said Torrey E. Wardner released him from the judgment debt above mentioned. The answer to this question, of course, depends entirely upon the construction which shall be put upon the language used in clause 2 of said section 17, viz., "or for wilful and malicious injuries to the person or property of another." If a judgment in an action for libel is a judgment based on willful and malicious injury to the person of another, then it is within the exception, and is not released by the discharge of the bankrupt. A libel is both a public wrong and a private wrong. The remedy for the public wrong is by indictment or other criminal proceeding, while the remedy for the private wrong is by a civil action at common law, which is classed and known as a "tort action." One of the essential elements of every libel is malice. And no declaration which should fail to charge that the publication complained of was malicious would state a cause of action. Whether there was actual malice (that is, an evil intent or motive, arising from spite or ill will) in connection with the publication, or only the malice which exists by implication of law from the publication of the libelous matter, is immaterial, in so for as the right of action is concerned. In short, if the act was done without legal excuse, it was, in law, a malicious act. That the act of publishing a libel is a willful act, in the sense, at least, that it is an act of volition on the part of the publisher, needs no argument. Every act is prima facie an act of volition, and must be regarded as such until the contrary is shown. And such an act is more than a mere voluntary one; for it is coupled with a means of knowledge of the character of the act about to be performed, and an intention to do it. Moreover, as said by the court in Anderson v. How, 116 N. Y. 342, 22 N. E. 697, "Wilfulness is implied in maliciousness."

A libel, then, being a willful and malicious act, the only remaining question is whether it; can be properly said to be an injury against the person of another, so as to come within the meaning of the language in said section 17 of the bankrupt act. If the language, "wilful and malicious injuries to the person of another," means only physical injuries to the body, the case before us does not fall within...