This is the rule in New York.

(Du

out in the answer or plea. senbury v. Hoyt, 10 N. B. R. 313; s. c. 53 N. Y. 521; s. c. 14 Abb. Pr. [N. S.] 132. To same effect, Maxim v. Morse, 8 Mass. 127; Riggs v. Roberts, 85 N. C. 151; Graham v. O'Hern, 24 Hun, 221; Marshall v. Tray, 74 Ill. 379; Hopkins v. Ward, 67 Barb. 452; Badger v. Gilmore, 33 N. H. 361; Otis v. Glazen, 31 Me. 567; Apperson v. Stewart, 27 Ark. 619.) Considering the new promise merely as a waiver of the defense of a release by the discharge, the rule as laid down by the New York courts is that a subsequent promise to pay, made any time before the rendering of a verdict, even after the commencement of an action on the old debt, and even though the discharge may have been previously pleaded, is good as a waiver. (Decker v. Kitchen, 33 Hun, 268; S. c. 19 Weekly Dig. 379, citing Rucker v. Hanna, 4 East, 604; Yea v. Fouraker, 2 Burrows, 1099; Wright v. Steele, 2 N. H. 53. See also Clark v. Atkinson, 2 E. D. Smith, 112; Shipping v. Henderson, 14 J. R. 178; McNair v. Gilbert, 3 Wend. 344; Wait 7. Morris, 6 Wend. 394; Fitzgerald v. Alexander, 19 Wend. 402.) But in many States the original debt is considered as wholly extinguished; an action, if brought, must be on the subsequent promise. (Eckler v. Galbraith, 12 Bush. 71; Carson v. Osborn, 10 B. Mon. 155; Murphy v. Crawford, 114 Pa. St. 496; Egbert v. McMichael, 9 B. Mon. 44; Fleming v. Lullman, II Mo. App. 104; Ross v. Jordan, 62 Ga. 298.) In Horner v. Speed (2 Pat. & H. 616), it was held that the creditor might elect to sue on the new promise or on the original debt.

Parol Promise. Unless required by the statute of the State where the action is brought on the new promise, there is no law requiring that such promise shall be in writing in order to be valid. It may be by parol and be binding. (Henly v. Lanier, 10 N. B. R. 280; s. c. 75 N. C. 172; Apperson v. Stewart, 27 Ark. 619; Mut. Reserve Assn. v. Beatty, 2 Am. B. R. 244; 35 C. C. A. 513; 93 Fed. 747.) But if a State law does require such promise to be in writing in order that the promise may be proved, the law is governing even though the promise was in fact made before the pas

Date of Promise - New Promise to Pay a Discharged Judgment. [Ch. III.

sage of the law requiring a written promise, as the law prescribes merely the kind of evidence necessary to establish a fact and regulates only the remedy. (Kingsley v. Cousins, 47 Me. 91.)

In New York the promise must be in writing (N. Y. Pers. Prop. L.).

Date of the Promise.-It is immaterial whether the promise be made between the filing of the petition and the granting of the discharge, or after the discharge. A promissory note, given in payment of an old debt, after the petition is filed, and before the discharge, is not affected by the discharge. The discharge relates back to the filing of the petition, but the moral obligation to pay exists at all times, and before the discharge as well as after it forms a sufficient consideration for the new promise. It is not necessary that the bankrupt receive his discharge before his new promise, in order that it be based on a good consideration. (Jersey City Ins. Co v. Archer, 122 N. Y. 376 [citing Fraley v. Kelly, 67 N. C. 78; Hornthal v. McRae, 67 N. C. 21; Kirkpatrick v. Tattersall, 13 M. & W. 766; Brix v. Braham, 1 Bing. 281; Knapp v. Hoyt, 57 Iowa, 591; Lerow v. Wilmarth, 7 Allen, 463; Stillwell v. Coope, 4 Den. 225; Geery v. Bucknor, 4 N. Y. Leg. Obs. 344; Allen v. Ferguson, 9 N. B. R. 481; s. c. 18 Wall. 1]. See also Otis v. Gazlin, 31 Me. 567; Griel v. Solomon, 82 Ala. 85; Corliss v. Shepherd, 38 Miss. 550; Roberts v. Morgan, 2 Esp. 736; Tooker v. Doane, 2 Hall, 538; Donnell v. Swaim, 3 Penn. L. J. 393: Wheeler v. Wheeler, 28 Ill. App. 385.)

New Promise to Pay a Discharged Judgment.-It may well be doubted if a new promise would give a right to a judgment creditor to issue execution on a judgment released by a discharge. It would seem that the plaintiff should sue on the judgment. The court cannot, however, on a motion for leave to issue execution, hear and determine whether or not there has been a new promise, the evidence being conflicting. (Shuman v. Strauss, 10 N. B. R. 300; s. c. 52 N. Y. 404.)

CHAPTER IV.

COURTS AND PROCEDURE THEREIN.

SEC. 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 make 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

Process, Pleadings, and Adjudications — Equity Rules as to Process. [Ch IV.

in which the petition is filed at the time of the filing, the clerk shall forthwith refer the case to the referee.

Analogous Provisions of Former Acts.

As to service of process: R. S., section 5024; act of 1867. section 40; also R. S., section 5025; act of 1867. section 40; act of 1841 section 1; act of 1800, section 3. As to appearances, pleadings, trial, and adjudication; R. S., section 5026; act of 1867, sections 41 and 42; act of 1841, section 1; act of 1800, section 3; also R. S., section 5028; act of 1867 section 42.

Equity Rules as to Process.-Rule 7. The process of subpoena shall constitute the proper mesne process in all suits in equity, in the first instance, to require the defendant to appear and answer the exigency of the bill; and, unless otherwise provided in these rules, or specially ordered by the Circuit Court, a writ of attachment, and, if the defendant cannot be found, a writ of sequestration, or a writ of assistance to enforce a delivery of possession, as the case may require, shall be the proper process to issue for the purpose of compelling obedience to any interlocutory or final order or decree of the court.

Rule 11. No process of subpoena shall issue from the clerk's office in any suit in equity until the bill is filed in the office.

Rule 12. Whenever a bill is filed, the clerk shall issue the process of subpœna thereon, as of course, upon the application of the plaintiff, which shall be returnable into the clerk's office the next rule-day, or the next rule-day but one, at the election of the plaintiff, occurring after twenty days from the time of the issuing thereof. At the bottom of the subpoena shall be placed a memorandum, that the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable; otherwise, the bill may be taken pro confesso. Where there are more than one defendant, a writ of subpoena may, at the election of the plaintiff, be sued out separately, for each defendant, except in the case of husband and wife defendants, or a joint subpoena against all the defendants.

Rule 13. The service of all subpoenas shall be by a delivery of a copy thereof by the officer serving the same to the defendant personally, or by leaving a copy thereof at the dwelling house or usual place of abode of each defendant, with some adult person who is a member or resident in the family.

Rule 14. Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another subpoena, totics quoties, against such defendant, if he shall require it, until due service is made.

Rule 15. The service of all process mesne and final shall be by the marshal of the district or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case the person serving the process shall make affidavit thereof.

Rule 16. Upon the return of the subpoena as served and executed upon any

18.]

Procedure in Involuntary Cases.

defendant, the clerk shall enter the suit upon his docket as pending in the court, and shall state the time of the entry.

Procedure in Involuntary Cases.-It will be noticed that the above section with the exception of subdivision "g" applies exclusively to involuntary proceedings and treats of the provisions peculiar to such proceedings. After adjudication the procedure is substantially the same in both classes of petitions. The petition is filed by a creditor which (Section 1 [9]) may include any one who has a claim provable in bankruptcy, and also includes his duly authorized agent, attorney or proxy. As to the creditors, in number and amount, who may file an involuntary petition see section 59b. Petitions shall be filed in duplicate, one copy for the clerk and one for service on the bankrupt. (Section 59c.) As to the method of computing the number of creditors see section 59d and e. The word "creditors," it must be remembered, does not apply to secured creditors except so far as they own debts in excess of their security, or voluntarily waive their security. (See section 57g.) As to what are provable debts see section 63. The petition (Form No. 3) must be printed or written out plainly without abbreviation or interlineation. (G. O. 5.) It must show the jurisdictional facts, viz.: that the debtor is one who may be declared an involuntary bankrupt under section 4, and that he has committed an act of bankruptcy under the provisions of section 3. It must also show the jurisdictional facts with reference to venue. The form of the verification will be found attached to the form of the petition. (Form No. 3.) It must be verified by three of the petitioners named if there is more than one, under the provisions of section 59. Under the act of 1867 it seems that the verification of the petition might have been made by an agent or an attorney in fact, but it has been declared in a case under the present statute and rules that section 1 (9) does not authorize the verification of a petition by the attorney of the petitioning creditors, although such defect in verification may be waived by the defendant by a failure to make an objection within the time allowed for pleading. Lack of verification is not a jurisdictional defect. (See in re Simonson et al. 1 Am. B. R. 197;