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in court, and gives the day of appearance as the 2d, and not the 27th, of December, and is postmarked on the 20th. — In re W. E. Townsend (N.Y. S. D), 1 B. R. 1; 1 L. T. B. 2.
6. The order, in Form 51, to show cause why the bankrupt should not be discharged, may be made returnable, before the court, at the office of the register. In re J. Bellamy (N.Y. S. D.), 6 I. R. R. 127 ; s.c. 3 Pitts. L. J. (N.s.) 1.
7. If there are no assets, and no creditors who have proved their debts, yet notice to show cause must be published. Anon. (D.C.) 6 I. R. R. 149.
8. In a case where there are no assets, but the bankrupt does not apply for his discharge till after three months from the date of the adjudication have expired, the notice to show cause against the discharge need say nothing of the second and third meetings. - Anon. (N. Y. S. D.) 1 B. R. 1; 2 B. R. 21.
9. If no debts have been proved against the bankrupt, or no assets have come to the hands of the assignee, and if the second and third meetings of creditors have not been held, the order to show cause in Form 51 should contain the direction as to those meetings given by G. 0. 25, and the notice in Form 52 should have added to it the clause provided by G. O. 25. — In re J. Bellamy (N.Y. S. D.), 6 I. R. R. 127 ; s.c. 3 Pitts. L. J. (N.s.) 1.
10. If, on the return day of an order to show cause against a discharge, the proceedings are adjourned sine die, without the bankrupt's doing on that day what is then required for his discharge, a new order to show cause must be issued. - In re I. Seckendorf (N.Y. S. D.), 1 B. R. 185; s.c. 1 Pitts. L. J. (N.S.) 450.
11. The pendency of the examination of the bankrupt is good cause for adjourning the proceedings to show cause against the discharge, and the adjournment may be made without requiring a creditor who proposes to oppose the discharge to file his appearance under G. O. 24. — In re J. Thompson (N.Y. S. D.), 1 B. R. 65.
12. The examination of the bankrupt can be adjourned beyond the return day of the order to show cause why the discharge should not be granted, and the proceedings under the said order can be on said day adjourned by reason of the adjournment of the examination. — In re G. S. Mawson (N.Y.S. D.), 1 B. R. 41; s.c. 1 L. T. B. 46.
13. If no creditor appears to oppose the discharge by the day when the creditors are required to show cause, the register may administer to the bankrupt the oath provided by $ 29. In re J. Bellamy (N.Y. S. D.), 6 I. R. R. 127 ; s.c. 3 Pitts. L. J. (N.s.) 1.
See AssiGNEE, II. 5, 6; EXAMINATION, 11, 14; FEES, I. 10, 15; SPECIFICATIONS, 2.
III. Opposition to Discharge. 1. A creditor who has not proved his debt may yet appear
the bankrupt's discharge. [The Mary, 9 Cranch, 126; Bradstreet v. Neptune Ins. Co. 3 Sumn. 600, 607; Hollingsworth v. Barbour, 4 Pet. 466; In re Brown King, 1 N.Y. Leg. Obs. 22 ; s.c. 5 Law Rep. 320; In re Tebbetts, 5 Law Rep.
Book's Case, 3 McLean, 317; Haxtun v. Corse, 2 Barb. Ch. 506, 529.] In re L. Sheppard (N.Y. N. D.), 1 B. R. 115; s.c. 7 Am. Law Reg. (N.s.) 484; 1 L. T. B. 49.
2. A creditor who has not proved his debt, cannot appear to oppose the discharge of the bankrupt. — In re S. N. Levy (N.Y. S. D.), 1 B. R. 66.
3. A sufficiently secured creditor cannot appear to oppose the bankrupt's discharge.
Semble, that a creditor, not sufficiently secured, can so appear, though he has not proved his debt. [Citing Morse v. Presby, 5 Fost. 299.] – In re T. E. Boutelle (N.H. D.), 2 B. R. 51; s.c. 3 Pitts. L. J. (N.s.) 616.
4. Semble, that a motion in opposition to a bankrupt’s application for discharge should be made before the court, and not before the register. — In re B. W. Woolums (Ky. D.), 1 B. R. 131.
5. Where, on the return of an order to show cause against the discharge of a bankrupt, a creditor opposes the discharge, the register must make a certificate of the proceeding, stating the opposition, and return the papers into court as if there had been no opposition. — In re W. H. Hughes (N.Y. S. D.), 1 B. R. 9; 1 L. T. B. 45.
6. The burden of proof is on the creditor opposing the discharge of the bankrupt. — In re W. Okell, 2 B. R. 35.
7. Semble, that on the trial of an issue raised by a creditor opposing a discharge, if the bankrupt has taken the oath required by $ 29, the burden of proof that the bankrupt has forfeited his title to a discharge is on the creditor. — In re W. D. Hill (N.Y. S. D.), 1 B. R. 42.
8. If the bankrupt objects to the admission of specifications filed in opposition to the discharge, the creditor must show that the opposition was entered and the specifications filed within the proper time, and if he fails to show this the specifications will not be admitted. - In re W. C. McVey (Miss. D.), 2 B. R. 85.
9. A specification in opposition to the bankrupt's discharge, alleged, that before the passage of the Bankrupt Act, the bankrupt had paid a certain debt to T. It appeared that this debt was paid before the passage of the Bankrupt Act. Held, that evidence, that since the passage of the Bankrupt Act the bankrupt had paid to T. other debts, together exceeding in amount the specified debt, was inadmissible. — In re I. Rosenfeld (N.J. D.), 2 B. R. 49.
10. A creditor cannot take the opinion of the judge, whether the bankrupt is entitled to his discharge till he has filed a specification of the ground of his opposition. In re G. S. Mawson (N.Y. S. D.), 1 B. R. 33.
11. At the first meeting of the creditors, one of them filed objections to the bankrupt's discharge. Held, that the register had no authority to pass upon these objections, and that the proceedings should continue in spite of them. — In re J. Puffer (N.Y. N. D.), 2 B. R. 17.
12. Questions concerning the bankrupt's right to a discharge should be postponed till the discharge is applied for. – In re H. L. Brisco (D.C.) 2 B. R. 78.
13. An objection to proceedings in bankruptcy on the ground that the bankrupt has omitted from the inventory property held by him, if made before the bankrupt has applied for discharge, and by a creditor who has not proved his debt, is not such an "opposition to the discharge of the bankrupt,” that the register cannot hear it, and would not, in any event, be of avail unless made definite by specifying the particular omissions relied on. - In re W. D. Hill (N.Y. S. D.), 6 I. R. R. 51.
See DISCHARGE, II. IV.; EXAMINATION, 13; PROOF, III. ; SPECIFICATIONS.
IV. Grant and Refusal of Discharge. 1. That the bankrupt, while in contemplation of insolvency, incurred expenses for the support of his family, is not, in the absence of evidence that such expenses were improperly excessive, ground for refusing him a discharge. — In re I. Rosenfeld (N.J. D.), 2 B. R. 49.
2. If a debtor's property has been attached without his knowledge or consent, the omission to have the attachment dissolved by filing a petition in bankruptcy within four months, is not such a procuring the property to be attached as to be a ground for refusing a discharge. In re F. C. Belden (Cal. D.), 2. B. R. 14; s.c. 3 Pitts. L. J. (N.s.) 547 ; 2 Am. Law Rev. 771.
3. The creation of a debt by fraud is no ground for refusing a discharge. In re I. Rosenfeld (N.J. D.), 1 B. R. 161; s.c. 7 Am. Law Reg. (N.s.) 618; 1 L. T. B. 81; In re C. R. Wright (Mich. W. D.), 2 B. R. 14; In re H. W. Bashford (N.Y. S. D.), 2 B. R. 26; In re 8. C. Clarke (N.Y. S.D.), 2 B. R. 44; In re W. Doody (N.Y. S. D.), 2 B. R. 74.
4. The fact that a debt is a fiduciary debt is no ground for refusing a discharge. — In re B. R. Elliott (N.Y. S. D.), 2 B. R. 44.
5. In a case where the specifications of grounds of opposition to the bankrupt's discharge were held insufficient on account of vagueness, the court disregarded them, and granted the discharge. [It does not appear whether any application was made for leave to amend.] – In re N. A. Son (N.Y. S. D.), 1 B. R. 58; s.c. 3 Pitts. L. J. (N.s.) 242; See In re R. C. Rathbone (N.Y. S. D.), 1 B. R. 50; s.c. 3 Pitts. L.J. (N.s.) 233; 25 Leg. Int. 60; In re D. Tyrrel (N.Y. S. D.), 2 B. R. 73; In re H. J. Hansen (N.Y. S. D.), 2 B. R. 75; In re F. A. Dreyer (N.Y. S. D.), 2 B. R. 76.
6. Where the notice of the first meeting had not been published in one of the newspapers in which publication had been ordered, and where the names, &c., of the creditors had not been inserted in the warrant, the proceedings were set aside, and a discharge refused. — In re E. L. Hall (N.Y. N. D.), 2 B. R. 68; S.C. 4 Pitts. L. J. (N.s.) 52.
7. The court says that it will not grant a discharge until the register certifies that he has carefully examined the proceedings and that they are correct, nor until all the papers are filed by the register under G. 0. 7, in the clerk's office; that the clerk will make a special order in each case, referring the petition for discharge to the register, and that the register, while acting under this special order, will have the fee of $5 for each day's service. — In re J. Bellamy (N.Y. S. D.), 6 I. R. R. 127, 141; s.c. 3 Pitts, L. J. (N.s.) 1.
See Books OF ACCOUNT; CONCEALMENT OF Assets; CONTEMPLATION OF BANKRUPTCY AND INSOLVENCY; DISCHARGE, I. 4; FEES, II. 4, 5; FRAUDULENT PREFERENCE, 4-8; FRAUDULENT TRANSFER, 1; SPECIFICATIONS, 6.
V. Effect of Discharge. 1. A discharge does not bind a creditor, who has not had notice addressed to him in his true name in the manner directed by the act, unless he voluntarily appears. — Anon. (D.C.) 6 I. R. R. 149.
2. A claim against a bankrupt for not accounting for the proceeds of goods sent to him as agent for sale, is a debt created by his defalcation while acting in a fiduciary capacity, and is not affected by his discharge in bankruptcy. [Citing Duguid v. Edwards, 50. Barb. 288.] — In re J. H. Kimball (N.Y. S. D.), 2 B. R. 74.
3. If judgment has bee recovered on a debt created by fraud, such judgment is not affected by a discharge in bankruptcy. [Citing Bangs v. Watson, 9 Gray, 211.] - In re C. G. Patterson (N.Y. S. D.), 1 B. R. 58; s.c. 3 Pitts. L. J. (N.s.) 241.
4. A. seduced B. under promise of marriage. B. brought an action for breach of promise against A., and recovered judgment; A., having become bankrupt, B. proved the judgment against his estate in bankruptcy. Held, that B.'s debt was not created by fraud, and that it would therefore be discharged by the discharge in bankruptcy. [Citing Crouch v. Gridley, 6 Hill (N.Y.), 250; Thompson v. Hewitt, ib. 254; Graham v. Pierson, ib. 247; Luther v. Deyo, 19 Wend. 629; Hayden v. Palmer, 24 Wend. 364; Stone v. B. & M. R.R. Co., 7 Gray, 539.] — In re J. W. Sidle (Ohio S. D.), 2 B. R. 77.
See ARREST, 2-9; EXAMINATION, 23, 24; LIEN, 1; PARTNERSHIP, 8, 9.
VI. Setting aside Discharge. An application by a creditor to have a discharge annulled must set forth specific reasons. — In re C. H. McIntire (N.Y. S. D.), 1 B. R. 115.
See CIRCUIT COURT, 3.
DISMISSAL OF PETITION. 1. A bankrupt having filed a petition alleging that all the creditors named in his schedule had released their debts, and praying that the adjudication might be annulled, it was ordered that the said creditors, and all other creditors of the bankrupt and the assignee, should show cause, on a certain day, why the petition should not be granted, and that notice of the order should be served on all the creditors named in the schedule and on the assignee, and should be published In the newspapers.
In re J. Stern (N.Y. S. D.), 6 I. R. R. 87. 2. If the bankrupt and all the creditors who have proved their debts desire it, proceedings in involuntary bankruptcy may be discontinued, and the petition dismissed. — In re W. D. Miller (Pa. W. D.), 1 B. R. 105.
3. After an adjudication in involuntary bankruptcy, the petition will not be dismissed. [It would seem, though not clearly stated, that the motion to dismiss was made by some only of the creditors.] – In re Sherburne (Mo. E. D.), 1 B. R. 154.
DISTRIBUTION. See DIVIDEND; REGISTER, 5.
1. Any balance of the bankrupt's estate remaining, after payment in full of the debts due to all creditors who have proved their debts, and of all costs and charges, is to be divided pro rata among the creditors who have not proved their debts, but whose names are set forth in the schedule to the bankrupt's petition. – In re B. F. James (D.C.), 2 B. R. 78; In re D. Haynes (D.C.), ib. 78.
2. A dividend due a creditor cannot be attached in the hands of the assignee on process of garnishment in a suit in a State court against such creditor.
[Citing Colby v. Coates, 6 Cush. 558; Coppell v. Smith, 4 T. R. 312; Caila v. Elgood, 2 Dowl. & R. 193.] — In re S. D. Bridgman (Ga. D.), 2 B. R. 84. See PROOF, II. 9.
ERROR. — See CIRCUIT COURT, 3.
ESTOPPEL. - See ACT OF BANKRUPTCY, 3. EVIDENCE. - See CREDITOR'S PETITION, 4–7; DEPOSITION; DISCHARGE, II.
5; III. 9; EXAMINATION ; FRAUDULENT PREFERENCE, 3; FRAUDULENT TRANSFER, 2; MARSHAL; TRIAL BY JURY, 2;
EXAMINATION. 1. The bankrupt and his wife may be examined as well before as after he has applied for his discharge. — In re I. Seckendorf (N.Y. S. D.), 1 B. R. 185; s.c. 3 Pitts. L. J. (N.s.) 450.
2. A witness cannot refuse to be examined on the ground that the bankrupt has not been examined, and that no issue has been made up, and that there is no fact in dispute. — In re A. Blake (Mich. W. D.), 2 B. R. 2.
3. The examination of the bankrupt can be ordered by the register on the application of the assignee, and such application need not be verified by affidavit, or show the cause or purposes of the examination. The examination can be had before the register. — In re Lanier (Ala. D.), 2 B. R. 59.
4. An application by the assignee to examine the bankrupt need not be supported by affidavit. In re C. McBrien (N.Y. S. D.), 2 B. R. 73.
5. An application by the assignee for an order to examine the bankrupts wife, made after the granting of a certificate by the register that the bankrupt was entitled to his discharge, was refused on the ground, that it was not made bona fide, but for delay.— In re M. Selig (N.Y. E. D.), 6 I. R. R. 206.
6. A bankrupt cannot refuse to submit to examination by the assignee, because at a previous time which had been appointed for his examination the assignee failed to attend. — In re A. P. Van Tuyl (N.Y. S. D.), 2 B. R. 25.
7. An assignee may examine a witness for the purpose of discovering property, without notice to the bankrupt of the time of examination; and this even though the creditors have commenced an examination of the bankrupt and witnesses, which further examination is standing adjourned to a future day: the examination by the assignee and that by the creditors being independent proceedings. In re S. W. Levy (N.Y. S. D.), 6 I. R. R. 134.
8. Each creditor has a right to examine the bankrupt; the register must regulate in his discretion the time, manner, and course of the examinations. J. L. Adams (N.Y. S. D.), 92.
9. A creditor may prove his debt, and having proved his debt is entitled to an order for the examination of the bankrupt, before the first meeting. — In re C. G. Patterson (N.Y. S. D.), 6 I. R. R. 127; s.c. 7 Am. Law Reg. (n.s.) 26.
10. A creditor who has proved his debt has a right to examine the bankrupt, though the debt be barred by the Statute of Limitations, under $ 26. Semble, that under $ 26 only a creditor who has proved his debt can examine the bankrupt; but under $ 22, any one who claims to be a creditor, whether he has proved his debt or not, can apply for the bankrupt's examination. — In re J. T. Ray (N.Y. S. D.), 6 I. R. R. 223 ; s.c. 7 Am. Law Reg. (N.s.) 283; 1 L. T. B. 46.
- In re