Shepherd

(concur-

ring).

Both sides concur in the view that this is a case of first impression. The Referee is of the same opinion as is the author of a note regarding the instant case published in the Virginia Law Review of April, 1946. 1 My own independent research has likewise failed to bring to light any case directly in point.

There are four fundamental questions in this case — those relating to waiver, res ju-dicata, moral consideration, and the basis of the creditor’s suit in the state court. If that suit had been bottomed on the old debt the doctrine of waiver would have prevented the debt from being discharged in the present bankruptcy proceeding. If, on the other hand, the state action was based on the new promise, the judgment rendered therein correspondingly would partake of the nature of a new debt and would be dischargeable in the second bankruptcy. This being a case of first impression, it may well be that occasion in the future might arise for-.an extended consideration of the following authorities that have a bearing on the issue.

See 1 Williston on Contracts Revised Edition, § 203, pages 629-630; 6 Am.Jur. § 535, page 834; Needham v. Matthewson 81 Kan. 340 , 105 P.…

This is an appeal from an order of the district court affirming a referee’s order discharging the appellant bankrupt from all his debts except a judgment of the Oregon circuit court in appellee creditor’s favor for the amount of certain promissory notes. In a prior bankruptcy proceeding appellant had scheduled as an indebtedness these promissory notes, which debt there had been discharged more than six years before the instant proceeding. Bankruptcy Act, Sec. 14, sub. c(5), 11 U.S.C.A. § 32 , sub. c(5).

*468 The referee found that in appellee’s reply in the state court, in which court the judgment was secured, she had alleged that a new promise by appellant to pay the notes was made before the discharge in the first bankruptcy, and that a part payment on them had been made after the discharge. The referee made no finding as to whether a new promise, made after the discharge, was proved at the state court trial. However, appellee in her specification seeking the denial of the discharge in the second bankruptcy alleged a promise after the discharge in the first bankruptcy, as follows: “Subsequent to his adjudication in bankruptcy in said proceeding No. B-16240 and subsequent to his…