bankrupt and are discharged. (Owsley et al. v. Cowbin et al., 15 N. B. R. 489; 2 Hughes, 433; 4 N. Y. Weekly Dig. 431; 9 Chi. Leg. News, 323; 4 Law & Eq. Rep. 49; 23 Int. Rev. Rec. 210; Fed. Cas. 10636.) A judg ment on a promissory note is not, prima facie, a fiduciary debt (Hayes v. Ford, 15 N. B. R. 569); and a surety on a guardian's bond is released by a discharge in bankruptcy. (Ex parte Taylor, 16 N. B. R. 40; 24 Pittsb. Leg. J. 205; 1 Hughes, 617; Fed. Cas. 13773; Reitz v. People, 16 N. B. R. 96.) Where a bankrupt factor is arrested under an order of a state court on a cause of action based on a debt owing by him for the proceeds of goods consigned to and sold by him, he will be discharged from such arrest, as the debt is released by a discharge in bankruptcy. (In re Smith et al., 18 N. B. R. 24; Fed. Cas. 12976.)

Fiduciary or fraudulent debts barred by composition.- Fiduciary debts are discharged by a composition (In re Rodger et al., 18 N. B. R. 252; Fed. Cas. 1199), and a debt created by fraud is discharged by a composition in which the creditor participates. (Wells v. Lamprey, 16 N. B. R. 205.)

The revival of a debt.- If there be no express promise, but a promise is to be raised by implication of law from the acknowledgment of the party, such acknowledgment ought to contain an unqualified and direct admission of a previous subsisting debt which the party is liable and willing to pay. (In re Harden, 1 N. B. R. 97; 1 Hask. 163; 1 Amer. Law T. Rep. Bankr. 49, 119; 15 Pittsb. Leg. J. 343; Fed. Cas. 6048.) The promise must be clear, distinct and unequivocal. (Allen & Co. v. Ferguson, 9 N. B. R. 481; 18 Wall. 1.) A new promise to pay a debt, after a discharge in bankruptcy, revives the debt (Classin v. Schoeneman, 16 N. B. R. 98; Dusenbury v. Hoyet, 10 N. B. R. 313); or is a sufficient consideration to create a new one. (Dewey v. Moyer, 18 N. B. R. 114.) A new promise to pay a debt in consideration that the payee will withdraw objections to the discharge is illegal and void, and no action can be sustained thereon. (Austin v. Markham, 10 N. B. R. 548.) A promise of a bankrupt after bankruptcy, but before his discharge, to pay a note made before bankruptcy, cannot be enforced in a suit upon the note. (Ogden et al. v. Redd, 18 N. B. R. 317.)

Debts, in general, not barred by discharge.- Where a bankrupt is surety on a bond, on which no cause of action arose until after he was discharged in bankruptcy, the discharge does not release him from liability. (Eastman v. Hibbard, 13 N. B. R. 360.) Where, after parties have warehoused their property, they file their petition and are adjudicated bankrupts and duly discharged, it has been held that their liability for storage is a continuing one, and their discharge does not release them from liability incurred after the filing of the petition. (Robinson V. Pesant, 8 N. B. R. 426.)

Where a suit is brought to recover for a month's rent, part of which accrued before bankruptcy and part afterwards, for the part accruing

before bankruptcy the plaintiff may prove against the estate and the discharge will release it, but for that part accruing afterward he may recover, as the discharge did not release it. (Treadwell et al. v. Marden, 18 N. B. R. 353.)

The discharge of one member of a firm is no bar in a suit against the firm, if the creditor can show that there were no partnership assets at the time of the filing of the petition in bankruptcy. (Crompton et al. v. Conkling et al., 15 N. B. R. 417; Fed. Cas. 3408.)

A creditor may take a decree in rem against property on which he has a lien, notwithstanding his debtor has been discharged as a bankrupt. (Stoddard v. Locke et al., 9 N. B. R. 71.)

Where, in an action upon an undertaking on which defendants were sureties, the judgment debtor is discharged in bankruptcy before affirmance of the judgment in favor of the plaintiff on appeal, such discharge does not constitute a defense. (Knapp et al. v. Anderson et al., 15 N. B. R. 316.) Where the holder of an accommodation note, knowing it to be such, signs a resolution in favor of composition, the maker of the note is not released from liability. (Guild v. Butler, 16 N. B. R. 347.) Where to dissolve an attachment a defendant gives an undertaking with two sureties, and more than four months after the issuance of the attachment bankruptcy proceedings are had, the discharge in bankruptcy will not prevent judgment being recovered and the sureties being bound therefor. (Holyoke v. Adams, 10 N. B. R. 270.) Likewise, a bankrupt's certificate of discharge, duly pleaded in an action against him in a state court, will not dissolve an attachment made by virtue of the writ in the action, more than four months prior to the defendant's commencement of proceedings in bankruptcy, which attachment may be enforced by an execution issued upon a special judgment rendered by the court in which the action was entered and prosecuted. (Deighton v. Kelsey et al., 4 N. B. R. 155.)

A creditor who obtains a judgment for his debt after his debtor has been adjudicated a bankrupt and takes out execution cannot prove his debt in bankruptcy, and the judgment will not be affected by the certificate of discharge. Such creditor cannot oppose the bankrupt's discharge. (In re Gallison et al., 5 N. B. R. 353; 2 Lowell, 72; Fed. Cas. 5203.) A bankrupt court has no jurisdiction to review or modify in any way the decree of a state court granting alimony to a bankrupt's wife. The monthly payments falling due after bankruptcy are due by natural obligation and not by contract, and they are not affected by a discharge.) (In re Garrett, 11 N. B. R. 493; 2 Hughes, 235; Fed. Cas. 5252.)

In an action to set aside a transfer of property made to defraud creditors, the fraudulent holder of the property cannot set up as a defense the debtor's discharge in bankruptcy where the debtor has waived such discharge. (Dewey et al. v. Moyer et al., 16 N. B. R. 1.)

Debts in general released by discharge.- All debts which by their nature are provable are discharged whether they in fact could be

proved or not. (In re Kingsley, 1 N. B. R. 66; 1 Lowell, 216; 7 Amer. Law Reg. (N. S.) 423; 15 Pittsb. Leg. J. 235, 277; Fed. Cas. 7819.) Where a principal is released from a debt by his discharge in bankruptcy, he will also be released from his contingent liability to his surety for the same debt. (Halliburton v. Carter, 10 N. B. R. 359.) A bankrupt who purchases the business of another under a covenant to pay his debts and hold him harmless is released by a discharge in bankruptcy, although he falsely represents to the vendor that the debts are paid. (Brown et al. v. Broach et al., 16 N. B. R. 296.) Likewise a person conveying and covenanting that the premises are free from all incumbrances, when in fact they are subject to a mortgage, which the purchaser has to pay, is protected by a discharge by a composition. (Wells v. Lamprey, 16 N. B. R. 205.) And where land is sold and a warranty deed is given, and it is agreed in writing to pay a certain mortgage, and the seller is discharged in bankruptcy, after which the land is sold under the mortgage, the debt is discharged (Parker v. Bradford, 17 N. B. R. 485); also a debt on a bond filed by a claimant to obtain the delivery of property is released, although the bankrupt subsequently endeavored to sustain his case by false testimony. (United States v. Rob Roy, 13 N. B. R. 235; 1 Woods, 42; Fed. Cas. 16179.)

A judgment recovered in an action in assumpsit pending proceedings in bankruptcy is barred by a discharge. (In re Stansfield, 16 N. B. R. 268; 4 Sawy. 334; Fed. Cas. 13294.)

A surety on the bond of a United States officer is released from his liability thereon by a discharge in bankruptcy. (United States v. Throckmorton, 8 N. B. R. 309; 18 Int. Rev. Rec. 54; Fed. Cas. 16516.)

If a creditor proves his debt against a bankrupt, the only effect is that be cannot afterwards maintain a suit against the bankrupt on the debt, and proceedings pending thereon against the bankrupt, and unsatisfied judgments already obtained thereon against the bankrupt, are discharged. (In re Levy, 1 N. B. R. 66; 2 Ben. 169; 1 Amer. Law T. Rep. Rep. Bankr. 122; Fed. Cas. 8297.)

A bankrupt who purchases the business of another under a covenant to pay his debts and hold him harmless is released by a discharge in bankruptcy, although he falsely represents to the vendor that the debts are paid. (Brown et al. v. Broach et al., 16 N. B. R. 296.)

In an action by lien-holders a judgment may be rendered limiting the plaintiffs to a sale of the land, where it appears that, by reason of their discharge in bankruptcy, the defendants are released from personal liability on the judgment. (Reed v. Bullington, 11 N. B. R. 408.) Where a bankrupt has bought notes from an executor of an estate under circumstances which were held to be constructive or legal fraud, but he had been guilty of no actual fraud, and he was afterwards discharged in bankruptcy, and suit is brought against him to recover the value of the notes, the discharge is a good defense. (Neal v. Scruggs et al, Ex'rs, etc., 17 N. B. R. 102.)

A claim for damages for wrongful conversion of personal property is provable and a discharge in bankruptcy would release the bankrupt from such a claim; and his plea of bankruptcy interposed in a suit brought in a state court to recover such damages is a complete bar. (Coles v. Roach, 10 N. B. R. 288.)

Where, after the commencement of bankruptcy proceedings, the debtor gives a bond to dissolve an attachment issued more than four months before the commencement of proceedings, he may plead his discharge in an action upon the bond. (Hamilton v. Bryant, 14 N. B. R. 479; ch. 176.) Where a bankrupt, prior to bankruptcy, sells land under a covenant for indefeasible title, when in fact the wife of a former owner has a dower interest not relinquished, the claim for breach of covenant in the event of the wife surviving her husband and asserting her rights is not such an "unliquidated" or "contingent" claim as may be proved in bankruptcy, and in an action on such claim a discharge in bankruptcy is a complete defense. (Riggin & Magwire, 8 N. B. R. 484; 15 Wall. 549.)

A claim for a breach of warranty is such a claim as should be proved in a bankrupt court, and therefore the defendant's discharge in bankruptcy is a bar to such a claim, it having accrued prior to proceedings in bankruptcy. (Williams v. Harkins, 15 N. B. R. 34.)

A judgment obtained on a breach of a promise to marry is barred by the discharge of the bankrupt. (In re Sidle, 2 N. B. R. 77; Fed. Cas. 12844.)

An injunction restraining creditors from suing pending adjudication is dissolved by a debtor's discharge in bankruptcy. (In re Thomas, 3 N. B. R. 7; Fed. Cas. 13890.)

A discharge in bankruptcy is a complete bar to a suit on a claim provable under the bankrupt law, but its dismissal does not prejudice proceedings on it under that law. (Humble v. Carson, 6 N. B. R. 84)

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.

[Act of 1867. SEC. 40. That upon the filing of the petition authorized by the next preceding section, if it shall appear that sufficient grounds exist therefor, the court shall direct the entry of an order requiring the debtor to appear and show cause, at a court of bankruptcy to be holden at a time to be specified in the order, not less than five days from the service thereof, why the prayer of the petition should not be granted; and may also, by its injunctions, restrain the debtor, and any other person, in the meantime, from making any transfer or disposition of any part of the debtor's property not excepted by this act from the operation thereof and from any interference therewith. A copy of the petition and of such order to show cause shall be served upon such debtor by delivering the same to him personally, or leaving the same at his last or usual place of abode; or, if such debtor cannot be found, or his place of residence ascertained, service shall be made by publication in such manner as the judge may direct. No further proceedings, unless the debtor appear and consent thereto, shall be had until proof shall have been given, to the satisfaction of the court, of such service or publication; and if such proof be not given on the return day of such order, the proceed