772; s. c. 1 L. T. B. 221; s. c. 2 C. L. N. 279; s. c. 18 Pitts. L. J. 98; Beardsley v. Hall, 36 Conn. 270.

A discharge can not be impeached in a State court on the ground that the name of the creditor was fraudulently omitted from the schedules and he had no notice of the proceedings. Black v. Blazo, 13 B. R. 195; s. c. 117 Mass. 17; Rayl v. Lapham, 15 B. R. 508; s. c. 27 Ohio St. 452; Milhous v. Aicardi, 51 Ala. 594. Contra, Barnes v. Moore, 2 B. R. 573; s. c. 2 L. T. B. 92; Batchelder v. Low, 8 B. R. 571; s. c. 43 Vt. 662.

The circuit court has no jurisdiction to annul a discharge for frauds upon the statute, which would have prevented the bankrupt from receiving it. The district court alone has the power to inquire into such frauds. Commercial Bank v. Buckner, 20 How. 108.

The bankruptcy court has the same inherent power as all other courts to recall its own decrees, or to vary or annul them, as justice may require. All courts claim and exercise this power when it is the only remedy for the party aggrieved. When a sudden and overpowering accident prevents the attendance of the creditor's counsel at the hearing, the court will reopen the decree granting the discharge. The decree, however, will only be opened upon good cause shown, and for a trial upon the merits, and not upon any mere technical matter. In re Dupee, 6 B. R. 89; Thomas v. Hunter, 3 McLean, 297.

A suit to set aside a discharge of a bankrupt must be brought within two years from the time it was granted, although the creditor did not discover the cause therefor until a long time afterward, because the bankrupt had fraudulently concealed it. Pickett v. McGavick, 14 B. R. 236.

The certificate is, prima facie, conclusive as to the validity of the discharge, subject, however, to be impeached for fraud, if any was perpetrated in obtaining it. Gupton v. Connor, 11 Humph. 287.

The specifications must be precise and definite. In re McIntire, 1 B. R. 436; s. c. 2 Ben. 345; in re Rainsford, 5 B. R. 381; Stewart v. Hargrove, 23 Ala. 429; Chadwick v. Starrett, 27 Me. 138; Tompkins v. Bennett, 3 Tex. 36; Lathrop v. Stewart, 6 McLean, 630; Drake v. Jones, 3 Ala. 638; Chambers v. Neal, 13 B. Mon. 256; Rand v. Upham, 22 N. H. 39; Shelton v. Pease, 10 Mo. 473; Hazard v. Boykin, 8 Rob. (La.) 253.

The creditor can not contest the discharge on any ground not stated in the specification. Ashley v. Robinson, 29 Ala. 112.

The creditor may rely upon certain grounds, although other creditors relied on the same acts as a ground of opposition to the granting of the discharge. Beekman v. Wilson, 50 Mass. 434.

The decision on the specifications in opposition to the discharge is conclusive, although the creditor presents a different claim. Wales v. Lyon, 2 Mich. 276.

A creditor who has opposed the granting of the discharge may impeach it for other and further instances of fraud. The estoppel is limited to the specifications that were passed upon. Downer v. Rowell, 25 Vt. 336.

Under a specification of a judgment for $133.81, a judgment for $122.81 can not be given in evidence. Ashley v. Robinson, 29 Ala. 112.

If the bankrupt has willfully made a false oath by omitting the name of a creditor from his schedule, the discharge may be set aside upon the application of a creditor who had no knowledge of the act until after the granting of the discharge. In re Chas. K. Herrick, 7 B. R. 341.

Conveyances made by the bankrupt, and alleged to be fraudulent, can not be shown in evidence unless charged in the specifications, except so far as they may be used to show the intent of certain acts which are specified. Tenney v. Collins, 4 B. R. 477; s. c. 1 Dillon, 66.

The wife of a bankrupt can not be made a witness for or against her husband on a motion to set aside a discharge. Tenney v. Collins, 4 B. R. 477; s. c. 1 Dillon, 66, note; in re Moritz Augenstein, 2 McArthur, 322.

The dying declarations of an alleged fraudulent grantee are not competent evidence against the bankrupt. In re A. P. Marionneaux, 13 B. R. 222; s. c. 1 Woods, 37.

The conspiracy must be established before the declarations of an alleged conspirator are competent evidence against the bankrupt. Ibid.

A decree annulling a discharge can not be set aside without an application therefor and due notice thereof to the parties affected thereby. In re Moritz Augenstein, 2 McArthur, 322.

TITLE XI.

PARTNERSHIPS AND CORPORATIONS.

ACT OF 1898, CH. 3, SEC. 5. Partners.- (a) A partnership, during the continuation of the partnership business, or after its dissolution and before the final settlement thereof, may be adjudged a bankrupt.

(b) The creditors of the partnership shall appoint the trustee; in other respects so far as possible the estate shall be administered as herein provided for other estates.

(c) The court of bankruptcy which has jurisdiction of one of the partners may have jurisdiction of all the partners and of the administration of the partnership and individual property.

(d) The trustee shall keep separate accounts of the partnership property and of the property belonging to the individual partners. (e) The expenses shall be paid from the partnership property and the individual property in such proportions as the court shall determine.

(f) The net proceeds of the partnership property shall be appropriated to the payment of the partnership debts, and the net proceeds of the individual estate of each partner to the payment of his individual debts. Should any surplus remain of the property of any partner after paying his individual debts, such surplus shall be added to the partnership assets and be applied to the payment of the partnership debts. Should any surplus of the partnership property remain after paying the partnership debts, such surplus shall be added to the assets of the individual partners in the proportion of their respective interests in the partnership.

(g) The court may permit the proof of the claim of the partnership estate against the individual estates, and vice versa, and may marshal the assets of the partnership estate and individual estates so as to prevent preferences and secure the equitable distribution of the property of the several estates.

(h) In the event of one or more but not all of the members of a partnership being adjudged bankrupt, the partnership property

shall not be administered in bankruptcy, unless by consent of the partner or partners not adjudged bankrupt; but such partner or partners not adjudged bankrupt shall settle the partnership business as expeditiously as its nature will permit, and account for the interest of the partner or partners adjudged bankrupt.

ACT OF 1867, § 5121. Where two or more persons who are partners in trade are adjudged bankrupt, either on the petition of such partners, or of any one of them, or on the petition of any creditor of the partners, a warrant shall issue, in the manner provided by this Title, upon which all the joint stock and property of the copartnership, and also all the separate estate of each of the partners, shall be taken, excepting such parts thereof as are hereinbefore excepted. All the creditors of the company, and the separate creditors of each partner, may prove their respective debts. The assignee shall be chosen by the creditors of the company. He shall keep separate accounts of the joint stock or property of the copartnership, and of the separate estate of each member thereof, and after deducting out of the whole amount received by the assignee, the whole of the expenses and disbursements, the net proceeds of the joint stock shall be appropriated to pay the creditors of the copartnership, and the net proceeds of the separate estate of each partner shall be appropriated to pay his separate creditors. If there is any balance of the separate estate of any partner, after the payment of his separate debts, such balance shall be added to the joint stock for the payment of the joint creditors; and if there is any balance of the joint stock after payment of the joint debts, such balance shall be appropriated to and divided among the separate estates of the several partners according to their respective right and interest therein, and as it would have been if the partnership had been dissolved without any bankruptcy; and the sum so appropriated to the separate estate of each partner shall be applied to the payment of his separate debts. The certificate of discharge shall be granted or refused to each partner as the same would or ought to be if the proceedings had been against him alone. In all other respects the proceedings against partners shall be conducted in the like manner as if they had been commenced and prosecuted against one person alone. If such copartners reside in different districts, that court in which the petition is first filed shall retain exclusive jurisdiction over the case.

Statute revised March 2, 1867, ch. 176, § 36, 14 Stat. 534. Prior Statute Aug. 19, 1841, ch. 9, § 14, 5 Stat. 448.

Paying individual debt with partnership property, although both partners liable for such debt, is an act of bankruptcy by a partnership. In re E. L. Matot & Co., 16 B. R. 485.

If on dissolution of a copartnership, the retiring partner takes out a portion of the assets of the firm for his individual use, he must do so without impairing the fund to which the creditors have the right in equity to look for payment, and it must be made clearly to appear that such remaining fund is ample. In re Sauthoff & Olson, 16 B. R. 181. Agreement by member of a firm to consent and procure the consent of the partners to an adjudication against the firm, is valid, and the consideration therefor may be recovered. Sanford v. Huxford, 17 B. R. 385. A partner will not be allowed to put his firm, whose affairs were settled years ago, into bankruptcy, on the allegation that it is insolvent by reason of petitioner's own fraud in effecting a composition with its creditors. In re Hamlin, Hale & Co., 16 B. R. 522.

Where the petitioning partner has obtained, without consideration, assignments to his father of a large number of the pretended claims against his firm: Held, that this conduct, under circumstances of the case, is a fraud on the bankruptcy law. Ibid.

An adjudication against a firm obtained by one member, in voluntary petition, without giving notice, as required by Rule XVIII (Law of 1867), was void. In re Temple, 17 B. R. 345.

A partnership dissolved by death of one member not to be treated as still subsisting subject to bankruptcy law, but the survivor being adjudged bankrupt individually and as such surviving partner, his assignee was entitled to possession of firm assets. Ibid.

Court has jurisdiction, on voluntary petition for adjudication of a firm, to entertain and determine the question what persons in fact constitute firm, and same is valid until set aside or reversed. In re Griffith & Wundrum, 18 B. R. 510.

After a delay of six years before making application to set aside such an adjudication because there was another partner than alleged in petition, such application should be denied on ground that rights and interests of others had grown up under it and been adapted to it. Ibid.

Adjudication of a copartnership must be made in one proceeding, under one petition; and adjudication of one member in one proceeding and of the other members, as members of another firm, in another, is not an adJudication of the copartnership, and the bankruptcy court will not thereby acquire jurisdiction over estate of the copartnership. In re Plumb, 17 B. R. 76.

Where requisite number of creditors join in petition against a firm, it is not necessary that they should all be creditors of the firm. In re E. L. Matot & Co., 16 B. R. 485.

From the schedules annexed to a petition filed by one partner of a dissolved firm against his copartners for an adjudication of the firm it appeared that the firm had been dissolved by judicial decree, and all its assets transferred to a receiver, and that there were firm debts. Held,