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afterward arrested by process from a state court in an action to recover the proceeds, Justice Nelson held that the debt was one created by the defalcation of the bankrupt “ while acting in a fiduciary character” under section 33 of the Act of 1867, and that he was, therefore, subject to arrest. In re Kimball, 6 Blatchf. 299; 14 Fed. Cas. 478.

The defendants had received certain United States bonds and had signed an agreement to the following effect: "These bonds were held subject to the order for A. L. P. at ten days' notice, agreeing to collect the coupons for his account free of charge and to allow him two per cent. per annum interest on the par value of said bonds," etc. The defendants sold the bonds and failed to account for the proceeds. The supreme court thought there was no such fraud in the creation of the debt and no such trust in respect to the possession of the bonds as to bar the operation of a discharge in bankruptcy. Palmer v. Hussey, 119 U. S. 96.

A creditor proving a fiduciary debt and receiving a dividend cannot thereafter claim that his debt was not barred by a discharge. Chapman v. Forsyth, 2 How. 202.

A bankrupt owing a fiduciary debt must state its nature in the schedules. If he fails to do so, his discharge will not operate as a bar. Ibid. Judge Choate, of the district court for the southern district of New York, decided that the case of Neal v. Clark, 95 U. S. 704, settled the proposition that a factor's liability is covered by a discharge in bankruptcy. In re Smith et al., 9 Ben. 494; 22 Fed. Cas. 388.

* *

Section 33 of the Act of 1867 provides that "No debt created by the fraud or embezzlement of the bankrupt * or while acting in any fiduciary character shall be discharged by proceedings in bankruptcy." This was held not to cover the case of a commission merchant who received goods on consignment and failed to account for the proceeds to the consignee. Keime v. Graff et al., 17 N. B. R. 319; 14 Fed. Cas. 218. Held, under the Act of 1841, that the debt of an auctioneer for goods sold by him is of a fiduciary character, and is not released by a discharge in bankruptcy. In re Lord, 5 Law Rep. 258; 15 Fed. Cas. $72 (1842).

The relation between a factor and his principal was held not to be fiduciary within the terms of the Act of 1800. Chapman v. Forsyth, 2 How. 202.

A debt against a commission merchant for the proceeds of goods sold on commission is not fiduciary in its character, so as to be excepted from the benefit of a discharge in bankruptcy. Owsley v. Cobin, 15 N. B. R. 489; 18 Fed. Cas. 929.

A commission merchant who fails, on account of insolvency, to pay for the goods consigned to and sold by him was held to be released of his indebtedness by a discharge in bankruptcy. Zeprink v. Card, 11 Fed. Rep. 295.

Effect of Discharge Generally.

Under the Act of 1800 a discharge in bankruptcy was held not to be a bar to an injury to goods shipped, caused by negligence, where the

damages were not liquidated. Duser v. Murgatroyd, 1 Wash. C. C. 13; 8 Fed. Cas. 140 (1803).

A discharge granted abroad does not release the person or property of the debtor from proceedings commenced here for the collection of debts. Zaregas' Case, 4 Law Rep. 480; 30 Fed. Cas. 916 (1842).

Justice Washington decided that a debt contracted in this country could not be discharged by the bankrupt laws of another country. Green v. Sarminto, Pet. C. C. 74; 10 Fed. Cas. 1117.

A shareholder in a national bank is released from his individual liability to the bank's creditors by his discharge, provided such liability was provable in bankruptcy, and not merely contingent. Irons v. Bank, 27 Fed. Rep. 591.

Under the Act of 1800, a discharge of the party, made after the return of a scire facias against his bail, did not operate to discharge the sureties. Bennett et al. v. Alexander, 1 Cranch C. C. 90; 3 Fed. Cas. 203. A discharge in bankruptcy only releases the debtor personally from his debts. A lien is not discharged, and may be enforced by a state court when the property was not assets in bankruptcy, or by the bankrupt court when it was, and subsequently comes into the possession of the bankrupt. Dixon v. Barnum, 3 Hughes, 207; 7 Fed. Cas. 748.

A replication to a plea of discharge in bankruptcy must set forth that the debt sued for was placed on the schedule. Hood v. Spencer et al., 4 McLean, 168; 12 Fed. Cas. 459.

Held, that a discharge in bankruptcy may be set up in a state court to stay an execution on a judgment recovered against the bankrupt after the commencement of proceedings and before the discharge, notwithstanding the defendant had failed to apply for the stay before judgment. Boynton v. Ball, 121 U. S. 457.

An action was commenced against a special partner on an allegation that he had made himself liable as a general partner. Held, that the action was not barred by the discharge of the general partners in bankruptcy. Abendroth v. Van Dolsen, 131 U. S. 66.

Real estate of the bankrupt set apart as a homestead was held not to be released by a discharge in bankruptcy from the lien of a mortgage executed by him before the commencement of proceedings to secure a debt not proved in bankruptcy. Long v. Bullard, 117 U. S. 617.

A suit had been commenced before the commencement of proceedings in bankruptcy, and was pending when the discharge was granted. Thereafter a judgment was entered. The debt was one provable in bankruptcy. It was held that the discharge was no bar to an action on the judgment. Dimock v. Revere Copper Co., 117 U. S. 559.

A discharge in bankruptcy is personal to the bankrupt, and cannot be pleaded by other persons in bar to an action against them. Moyer v. Dewey, 103 U. S. 301.

A discharge in bankruptcy releases the obligation of the principal on an attachment bond, but not his surety. Wolf v. Stix, 99 U. S. 1.

The Act of 1841 authorized the surety of a promissory note to prove the demand against the maker in bankruptcy. Accordingly the claim of such

a surety against his principal is barred by a discharge. Mace v. Wells, 7 How. 272.

The principal obligor of a delivery bond executed after the commencement of proceedings was not released by a discharge. Wolf v. Stix, 99 U. S. 1.

In Massachusetts the original cause of action is merged in the judgment, and suit on the judgment will be barred by the discharge, although the original cause of action would not have been barred thereby. Packer v. Whittier, 81 Fed. Rep. 335.

An estoppel based on covenants of warranty is not impaired by the discharge of the covenantors in bankruptcy. Bush v. Cooper, 18 How. 82. Held, that a discharge in bankruptcy releases a debt for a fine imposed in proceedings for contempt and exonerates the bankrupt from imprisonment. Spaulding v. New York, 4 How. 21.

A debt which is excepted from the operation of a discharge can be collected notwithstanding the discharge. The question whether the discharge affects such debt can only arise and be determined between the parties in a suit brought to collect the debt, in which the discharge, after it shall have been granted, shall be set up as a bar to a recovery. In re Wright, 2 Ben. 509; 2 N. B. R. 142; 30 Fed. Cas. 656 (1868).

The contingent liability of the bankrupt as a stockholder in a corporation was held not to be discharged by composition proceedings, when the bankrupt had not included it in his schedule of debts. Flower v. Greenbaum, 2 Fed. Rep. 897.

A discharged bankrupt was sued on a note, and set up in answer his discharge in bankruptcy. The replication alleged that the plaintiff's name was not placed on the schedule, and he had received no notice of the proceedings, or the application for a discharge. A demurrer to the replication was sustained. Lamb v. Brown, 12 N. B. R. 552; 14 Fed. Cas. 988. The Act of 1841 released the bankrupt from all debts that might have been proved, whether they were actually proved or not. Case of Johnson, 13 Fed. Cas. 718 (1842).

A discharge in bankruptcy releases the bankrupt from a judgment obtained in an action for a tort. In re Book, 3 McLean, 317; 3 Fed. Cas. 867 (1843).

The court decided that a discharge in bankruptcy does not release the bankrupt from an obligation to pay alimony, and discussed without deciding the question whether installments already due are released. In re Garrett, 2 Hughes, 235; 10 Fed. Cas. 47.

Held, under the Act of 1867, that a judgment obtained in an action for breach of promise to marry may be proved in bankruptcy, and is barred by a discharge. In re Sidle, 2 N. B. R. 220; 22 Fed. Cas. 102.

It was held under the laws of Louisiana that the liability of a husband to his wife for her paraphernal property secured by a mortgage on his estate is extinguished by his discharge in bankruptcy; that the mortgage could not attach to land acquired by him after the discharge, and that a subsequent mortgagee of the husband might set up the discharge in bankruptcy against the wife. Fleitas v. Richardson, 147 U. S. 550.

CHAPTER IV.

COURTS AND PROCEDURE THEREIN.

§ 18. Process, Pleadings, and Adjudications.— (a.) Upon the filing of a petition for involuntary bankruptcy, service thereof, with a writ of subpoena, shall be made upon the person therein named as defendant in the same manner that service of such process is now had upon the commencement of a suit in equity in the courts of the United States, except that it shall be returnable within fifteen days, unless the judge shall for cause fix a longer time; but in case personal service cannot be made, then notice shall be given by publication in the same manner and for the same time as provided by law for notice by publication in suits in equity in courts of the United States.

(b.) The bankrupt, or any creditor, may appear and plead to the petition within ten days after the return day, or within such further time as the court may allow.

(c.) All pleadings setting up matters of fact shall be verified under oath.

(d.) If the bankrupt, or any of his creditors, shall appear, within the time limited, and controvert the facts alleged in the petition, the judge shall determine, as soon as may be, the issues presented by the pleadings, without the intervention of a jury, except in cases where a jury trial is given by this Act, and makes the adjudication or dismiss the petition.

(e.) If on the last day within which pleadings may be filed none are filed by the bankrupt or any of his creditors, the judge shall on the next day, if present, or as soon thereafter as practicable, make the adjudication or dismiss the petition.

(f.) If the judge is absent from the district, or the division of the district in which the petition is pending, on the next day after the last day on which pleadings may be filed, and none have been filed by the bankrupt or any of his creditors, the clerk shall forthwith refer the case to the referee.

(g.) Upon the filing of a voluntary petition the judge shall hear the petition and make the adjudication or dismiss the petition. If the judge is absent from the district, or the division of the district in which the petition is filed at the time of the filing, the clerk shall forthwith refer the case to the referee.

Pleadings and Amendments - Verification.

The rules of the court in which the proceedings are pending will govern the sufficiency of pleadings. In re Sutherland, Deady, 344; 23 Fed. Cas. 454.

A petition in involuntary bankruptcy was held to be insufficient which alleged that the debtor owed a debt, but failed to allege that it was due to the petitioning creditor. In re Western Savings & T. Co., 4 Saw. 190; 29 Fed. Cas. 775.

The proof on an order to show cause why a debtor should not be adjudged a bankrupt will be confined to the alleged acts of bankruptcy set forth in the petition. In re Sykes, 5 Biss. 113; 23 Fed. Cas. 582.

An allegation in a petition to have a debtor adjudged a bankrupt, signed by one of a firm of creditors "this deponent is informed and believes" (then reciting the act of bankruptcy), is an insufficient averment by the petitioning firm and subject to demurrer. In re Orem et al. v. Harley, 3 N. B. R. 263; 18 Fed. Cas. 799 (1869).

The allegation of acts of bankruptcy, or depositions in support thereof, must be such as constitutes legal testimony, or the court cannot assume jurisdiction. In re Rosenfields, 11 N. B. R. 86; 20 Fed. Cas. 1209.

It is not necessary that the petitioner in a bankruptcy proceeding should have personal knowledge of the acts of bankruptcy alleged in his petition; but the grounds of his belief should be stated. In re Muller et al., Deady, 513; 17 Fed. Cas. 971.

Where neither the petition nor the affidavit to the acts of bankruptcy is signed by the petitioner, the case will be dismissed. Hunt et al. v. Pooke et al., 5 N. B. R. 101; 12 Fed. Cas. 930.

A petition was held to be sufficient under the Act of 1867 which set up that the acts of bankruptcy were committed "within six calendar months next preceding the date thereof." In re Muller et al., Deady, 513; 17 Fed. Cas. 971.

A rule of the court requiring the petitioning creditor to state the consideration for his debt need not be complied with when the debt is in judgment. In re Mott, 17 Fed. Cas. 903.

A petitioner in voluntary bankruptcy was a member of several firms, and failed to state that they were insolvent, or that they had been dissolved. It was held that the omissions were not fatal. In re Dodge, 7 Fed. Cas. 785 (1842).

A court of bankruptcy will allow supplemental proofs to be filed to correct omissions in the petition or depositions. In re Hanibel et al., 15 N. B. R. 233; 11 Fed. Cas. 431.

Allegations of acts of bankruptcy must not be in the alternative. Ibid. The petitioning creditor was a bank, and the petition was signed by its cashier. The alleged bankrupt moved to vacate the order to show cause on the ground that the signature was not sufficient, and also denied the act of bankruptcy set up in the petition, and demanded a trial. It was