9. A discharge was refused, though no creditor opposed, the court discovering upon the inspection of the record of the examination of the bankrupt that the bankrupt had lost money by gaming. — In re J. L. Wilkinson (Mo. E. D.), 3 B. R. 74; s. c. 2 West. Jur. 350; 4 Pitts. L. J. (N. s.) 237.

10. Discharge granted, fraud not being proved. — In re R. W Beatty (N. Y. S. D.), 2 B. R. 177.

11. It is no ground for refusing a discharge that the assignee has given notice of his appointment by publication three times in two weeks, instead of once a week for three successive weeks. In re H. Littlefield (Mass. D.), 3 B. R. 13; s. c. 2 Am. L. T. 122.

12. The failure to hold the second and third meetings immediately on the expiration of three and six months respectively after the adjudication is not a ground for refusing the discharge, though such failure has been "not without fault on the part of the assignee."— Ib.

See ARREST; Bankrupt Act, WHEN IT TAKES EFFECT, 1; Books of AcCOUNT; CONCEALMENT OF ASSETS; DISCHARGE, I., III.; EXAMINATION, 10; FRAUDULENT PREFERENCE, 1, 2, 9, 16; SPECIFICATIONS; State InsolvenT LAWS, 3.

V. Effect of Discharge.

1. Under the Bankrupt Act of 1841, a judgment debt was barred by a discharge, though the debt on which the judgment was recovered would not have been. [Citing Sampson v. Clark, 2 Cush. 173; Woodbury v. Perkins, 5 Cush. 86; Rindge v. Breck, 10 Cush. 43; Bangs v. Watson, 9 Gray, 211; Pierce v. Eaton, 11 Gray, 398.]— Wolcott v. Hodge (Mass. State Sup. J. Court), 15 Gray, 547.

2. Under the Bankrupt Act of 1841, a claim against a bankrupt for not paying over to his client money collected by him as attorney, is not a debt "created in consequence of a defalcation as a public officer, or as executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity," and was therefore not affected by a discharge. [Citing Chapman v. Forsyth, 2 How. 202; Hayman v. Pond, 7 Met. 328.] — Ib.

3. A creditor of a discharged bankrupt, who had not been named in the schedule, attached on garnishee process property which had been fraudulently omitted from the inventory. Held, that the discharge was no defence to the action. - Barnes v. Moore (State Sup. Ct. of Cincinnati), 2 B. R. 174. See ARREST, 2; INJUNCTION, 4.

DISMISSAL OF PETITION.

A judgment creditor petitioned that his debtor might be adjudged a bankrupt, alleging as an act of bankruptcy that the debtor had fraudulently transferred land, on which the creditor was entitled to a lien under his judgment. It appeared that the land was in value more than sufficient to satisfy the judgment, and it did not appear that there were any other creditors. Held, that the creditor's remedy was either at law or else in equity, and the petition was dismissed. — Avery v. Johann (Wis. D.), 3 B. R. 36; s. c. 1 Ch. L. N. 261; 2 L. T. B. 92. See CREDITOR'S PETITION, 7, 10; MARRIED WOMAN.

DIVIDEND.

1. Register and assignee restrained from taking any steps towards making or paying a dividend until persons interested should have an opportunity to apply to the court to have the order for the dividend vacated. In re N. Y. Mail Steamship Co. (N. Y. S. D.) 3 B. R. 73.

2. A balance of the bankrupt's estate, remaining in the hands of the assignee, where no debts have been proved, and the assignee states that there is reason to suppose that none will be proved, was ordered to be paid to the bankrupt on his setting forth in a petition under oath his reasons for believing that no creditor desired to prove. [Citing Charman v. Charman, 14 Ves. 580. — In re Haynes, 2 B. R. 78, and In re James, ib., dissented from.] — In re A. W. Hoyt (Mass. D.), 3 B. R. 13.

3. In a suit by the assignee in bankruptcy against the trustees under a voluntary assignment which had been made by the bankrupt, the assignment having been declared valid and a receiver appointed (See 1 B. R. 204 and 3 B. R. 35) ; the receiver was now ordered to distribute the assets to the creditors who had proved their debts in bankruptcy directly, and not to the assignee, the rate of the dividend not to exceed the rate which would be divisible in case all the debts named in the schedule, filed with the assignment, had been proved in bankruptcy, together with all those not in such schedule, which were included in the schedule in bankruptcy. - Sedgwick v. Place, 3 B. R. 78.

See ASSIGNEE, II. 8; PARTNERSHIP, 10; PRIORITY; PROOF, I. 3.

EVIDENCE.-See ASSIGNMENT, 1; BOOKS OF ACCOUNT, 7; BURDEN OF PROOF; DEPOSITION; EXAMINATION; WITNESS.

EXAMINATION.

1. The bankrupt is not bound to notify a creditor when and where his examination is to be had. — In re H. Littlefield (Mass. D.), 3 B. R. 13; s. c. 2 Am. L. T. 122.

2. On the application of an assignee or creditor, the register has authority to fill and issue the order for the bankrupt's examination, Form 45. — In re G. Brandt (N. C. D.), 2 B. R. 109.

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3. A creditor having opposed a discharge, the 26th and 27th of February were appointed for the examination of the bankrupt. On the 26th the creditor did not appear, and on the 27th the bankrupt did not appear, and the hearing was postponed till March 2, when they both appeared. Held, that there was no reason why the bankrupt should not then submit to examination. In re E. Robinson (N. Y. S. D.), 2 B. R. 162.

4. The register has no power to decide on the relevancy of any question put to the bankrupt during his examination. [Citing In re Levy, 6 I. R. R. 163; In re Rosenfield, 1 B. R. 60; In re Koch, 1 B. R. 153.] — In re A. F. Bond (N. Y. S. D.), 3 B. R. 2.

5. When a bankrupt under examination shall be allowed to consult with his counsel, is a matter within the discretion of the register. - - In re Lord (Me. D.),

3 B. R. 58.

6. Shares in a company had been transferred to the bankrupt's wife, and he had thereupon begun to devote himself to the interests of the company. Held, that he might be examined as to those shares. - In re J. N. Bonesteel (N. Y. S. D.), 2 B. R. 106.

7. The bankrupt may be examined on matters occurring before the creation of the examining creditor's debt, for the purpose of showing that he has transferred property to his wife without consideration. — In re D. H. Craig (N. Y. S. D.), 3 B. R. 26.

8. A bankrupt may be questioned as to property in his possession and business carried on after filing his petition, if the questions are for the purpose of showing that he concealed his assets at the time of filing his petition. — In re C. McBrien (N. Y. S. D.), 3 B. R. 90.

9. Bankrupt compelled to answer a proper question. — In re A. Holt (N. Y. S. D.), 3 B. R. 58.

10. An order issued by a register to the wife of the bankrupt, requiring her to attend and be examined, was served on the bankrupt; she did not attend. Held, that the bankrupt was not entitled to his discharge until he showed that he could not procure the attendance of his wife. — In re A. P. Van Tuyl (N. Y. S. D.), 2 B. R. 177.

11. An examination of the bankrupt's wife ordered only when a prima facie case for doing so is made out by affidavit. That she professes to be a creditor is such a case; she may be examined about the debt alleged to be due to her like any other creditor. Semble, it is not such a case that the husband has committed frauds of which she is probably cognizant, if she has not participated therein.— In re J. F. Gilbert (Mass. D.), 3 B. R. 37.

12. An attorney of the bankrupt is not privileged from answering questions as to the consideration of the conveyances of land by the bankrupt to him, and by him to the bankrupt's wife. In re G. S. Bellis (N. Y. S. D.), 3 B. R. 49.

13. An attorney of a mortgagee of the bankrupt is not privileged from answering whether he conducted a sale of the mortgaged goods, how much the sale brought, or what he did with the proceeds. [Citing Spenceley v. Schulenburgh, 7 East, 357; Coveney v. Tannahill, 1 Hill (N. Y.), 33; Whiting v. Barney, 30 N. Y. 330; Shaughnessy v. Fogg, 15 La. Ann. 331.]—In re J. O'Donohoe (Me. D.), 3 B. R. 59.

14. A witness must answer all proper questions relating to his trade with the bankrupt prior to the bankruptcy; and, if necessary to answer such questions that he produce a copy from his books, he must do so. — In re M. L. Earle (N. Y. S. D.), 3 B. R. 81.

15. The bankrupt cannot object to the examination of a witness on the ground that the witness has been enjoined from dealing with property in his possession, alleged to be the property of the bankrupt. — In re R. Feinberg (N. Y. S. D.), 2 B. R. 137.

See DEPOSITION; FEES, V. 6, 8, 9; WITNESS.

EXECUTION.

1. A judgment creditor may levy execution and thus obtain a lien, which will be valid against a subsequent adjudication of bankruptcy, though at the time of

taking out execution he has reason to believe the debtor insolvent. — In re W. W. Kerr (Mo. W. D.), 2 B. R. 124; s. c. 2 L. T. B. 39.

2. A judgment and execution against an insolvent debtor by a creditor, who had no reason to believe him insolvent, create a valid lien which will be protected in bankruptcy. — Haughey v. Albin (Ohio S. D.), 2 B. R. 129; s. c. 2 L. T. B. 47.

3. The levy of an execution on land is not, in New York, a lien on the equitable interest of the debtor in the land. [Citing Garfield v. Hatmaker, 15 N. Y. 475; Brewster v. Power, 10 Paige, 562; Lynch v. Utica Ins. Co., 18 Wend. 236; Hendricks v. Robinson, 2 Johns. Ch. 283, 312; Jackson v. Chapin, 5 Cow. 485; Purdy v. Doyle, 1 Paige, 558; Oakley v. Aspinwall, 4 Comst. 514; D'Arcy v. Ketchum, 11 How. 174; Edmeston v. Lyde, 1 Paige, 637; Corning v. White, 2 Paige, 567.]— In re J. N. Hinds (N. Y. N. D.), 3 B. R. 91.

See ASSIGNEE, III. 3; CONFESSION OF JUDGMENT, 1, 3; FRAUDULENT PREFERENCE, 10; JUDGMENT, 3; STAY OF PROCEEDINGS, 2; SUFFERING PROP

ERTY TO BE TAKEN.

EXEMPTED PROPERTY.

1. If the assignee sets off to the bankrupt real estate, to which he is not entitled under the State exemption laws, a creditor may except thereto, though more than twenty days have elapsed since the assignee has filed the report required by G. O. 19; and semble, it would be sufficient to except to the failure of the assignee to charge himself with the value of the land in his account. [Citing In re Farish, 2 B. R. 62.]— In re Jackson (N. C. D.), 2 B. R. 158; In re E. Gainey (N. C. D.), 2 B. R. 163.

2. It is said that real estate may be included in the exempted property, but only when it will not injure the sale of other real estate, or work adversely to the creditors. In re L. T. Edwards (Va. D.), 2 B. R. 109.

3. Where, by a State law, certain real estate of a debtor is exempt from execution, if certain requirements have been complied with, such real estate is not exempt under the Bankrupt Act, if said requirements have not been complied with. [Citing In re Farish, 2 B. R. 62.]—In re Jackson (N. C. D.), 2 B. R. 158.

4. The provision of a State statute, which exempts on behalf of a debtor's wife, during his lifetime, one-third of his lands from being taken on execution for a debt contracted before the passage of the act, is unconstitutional. - Kelly v. Strange (N. C. D.), 3 B. R. 2.

5. The approval of the Constitution of North Carolina by Congress did not operate as an amendment of the Bankrupt Act, so as to increase the amount of property which could be exempted. In re A. McLean (N. C. D.), 2 B. R. 173.

6. In Georgia, a man may be entitled to a homestead, though without wife or children; but he is allowed no additional exemption on account of children whom he is not legally bound to support. [Citing In re Cobb, 1 B. R. 106.]— In re W. Taylor (Ga. S. D.), 2 B. R. 38.

7. In Georgia, there is no homestead right in land which is subject to a mortgage made at the time of the purchase to secure the purchase-money. [Citing Scott v. Warren, 21 Ga. 408.]—In re J. B. Whitehead (Ga. S. D.), 2 B. R. 180.

8. By the law in force in Georgia, in 1864, a party was entitled to a homestead

out of land which had been mortgaged by him before making claim of homestead. [Citing In re Whitehead, 2 B. R. 180; In re Perdue, ib. 67; Wellborn v. Williams, 9 Ga. 86; Webb v. Robinson, 14 Ga. 216; Fisher v. Jɔhnson, 5 Ind. 492 ] — In re J. B. Brown (Ga. S. D.), 3 B. R. 60; s. c. 1 Ch. L. N. 409; 2 Am. L. T. 122.

9. The homestead laws of Ohio do not give a fee but only a right of occupancy. In re J. Watson (Ohio N. D.), 2 B. R. 174; s. c. 2 L. T. B. 93.

10. An unmarried man in Texas is allowed fifty acres homestead. [Citing Cobbs v. Coleman, 14 Tex. 594.]— In re C. M. Summers (Tex. W. D.), 3 B. R. 21. See FRAUDULENT PREFERENCE, 15; PRIORITY,

FEES.
I. Register.

5;

SPECIFICATIONS, 2.

1. A register was appointed by a special order custodian of the bankrupt's property, a stock of goods, and continued so for twenty-five days, till the appointment of an assignee; in accordance with the order, he sold $15,000 worth of the goods at retail, and accounted for the proceeds. Held, that he should be allowed $5 for each day's service under the special order, besides $250 allowance on the $15,000 received by him. — In re Loder Brothers (N. Y. S. D.), 2 B. R. 162; s. c. 2 Am. L. T. 106.

2. The following decisions were made as to the register's fees:

(1.) A charge of twenty-five cents was allowed for noting on the petition, schedule, and inventory the time when they were received.

(2.) A charge of fifty-five cents for certifying the correctness of the petition is not too large.

(3.) Only one dollar allowed, under G. O. 30, for both making an order and certifying it.

(4.) No fee allowed for entering proceedings in the register's docket, but twenty-five cents allowed for the memorandum of the same forwarded to the clerk, under G. O. 11.

(5.) The certified copy of the schedule and inventory to be furnished to the assignee is a copy of 66 a paper," within the meaning of G. O. 30.

(6.) A charge of forty cents for one hour's employment in calculating interest was allowed as not too large. (The court holding that the service had been performed under a special order.)

(7.) The fee for attending a meeting, allowed by § 47, cannot be changed by a special order.

(8.) Affidavits to the order calling a general meeting and to the assignee's report, and also the marshal's return, are depositions, and the register is entitled to his fees for taking the same.

(9.) If the schedule sets forth assets, and a meeting of the creditors is called before the assignee has reported, the register is entitled to his fee for calling and attending the same, though, in fact, there were no assets, and the meeting was therefore unnecessary.

(10.) No charge allowed for filing an order calling a general meeting. — In re A. Alexander (Tex. W. D.), 3 B. R. 20; s. c. 2 Am. L. T. 137.