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with the creditor in his individual capacity, and subsequent to the date of the partnership of the creditor, under which partnership name he claimed notice as a creditor, was held not to be fraudulent or wilful omission. (In re Pierson, 10 N. B. R. 107; Fed. Cas. 11153.) When all the members of a firm petition for the benefit of the act they are jointly and severally bound to make the required statements of their debts, whether copartnership or individual, or due by them jointly with other persons not parties to the petition. (In re Warren and Charles Leland, 5 N. B. R. 222; 5 Ben. 168; 4 Amer. Law T. 185; Fed. Cas. 8228.)

The relation of the schedule to composition proceedings.- In cases of composition the statement should conform to the schedule in bankruptcy. (In re Haskell, 11 N. B. R. 164; 1 Cent. Law J. 531; Fed. Cas. 6192.) A mistake without fraud, made by the debtor in his statement of the amount due to the creditor, will not vitiate a composition. (Ex parte Trafton, In re Trafton, 14 N. B. R. 507; 2 Lowell, 505; Fed. Cas. 14133; Beebe v. Pyle, 18 N. B. R. 162.) Where the facts relating thereto were brought out by the testimony and considered by the creditors in coming to the conclusion to accept the composition, it is not a good objection that property standing in the name of the bankrupt's wife should have been included in the schedules. (In re Welles, 18 N. B. R. 525; Fed. Cas. 17377.) Nor is the fact that the schedules stated the real estate of the debtor as of unknown or uncertain value a good objection to a composition. (In re Welles, 18 N. B. R. 525; Fed. Cas 17377.)

The effect upon a discharge of an omission from the schedule.— A certificate of discharge in bankruptcy is not a bar to a suit against a bankrupt by a creditor who was not named in the schedule accompanying the petition in the bankruptcy proceedings. (Barnes v. Moore, 2 N. B. R. 174; Lamb, Ass., v. Brown, 12 N. B. R. 522; 7 Chi. Leg. News, 363; 1 NY. Weekly Dig. 176; Fed. Cas. 8011.)

The effect of the insertion of the claim in the schedule. The filing of the petition by a bankrupt and his including the claim of a creditor in the schedule of debts is equivalent to a new promise, so as to prevent the claim, if not already barred, from being defeated by the statute of limitations. (In re Eldridge & Co., 12 N. B. R. 540; 2 Hughes, 256; 1 N. Y. Weekly Dig. 243; Fed. Cas. 4331; In re Hertzog, 18 N. B. R. 526; Fed. Cas. 6423. For contra, see 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.) The schedule in general.— A deposition of a creditor setting forth a claim against a bankrupt for unliquidated damages for a breach of contract, which does not appear in the sehe lule, is not proof thereof, unless the amount is fixed by assessment, application for which must be made by the creditor. (In re Clough, 2 N. B. R. 59; 2 Ben. 508; 16 Pittsb. Leg. J. 25; Fed. Cas. 2905.) A creditor is not prejudiced by refusal of permission to take a copy of the schedule, so long as it was produced before

times, for the pur

the register and made accessible to the creditor at all pose of examining it or the bankrupt in respect to it. (In re Tifft, 18 N. B. R. 227; Fed. Cas. 14033.) When but a single creditor proves his claim, he is entitled to be paid in full as far as the assets are sufficient for the purpose, and if there be any residue the same must be applied to the payment of such creditors as the bankrupt has acknowledged to hold valid claims. (In re Haynes, 2 N. B. R. 78; 1 Gaz. 78; Fed. Cas. 6269.) In an action brought under the Bankrupt Act, the schedule of indebtedness is not material evidence of insolvency. (Tyler, Ass., v. Brock et al., 17 N. B. R. 239.)


Acts and duties of the bankrupts generally. If it appear, in the regular course of proceedings, that an applicant for discharge has failed in any particular to perform his duty as a bankrupt, the application for discharge will be refused. (In re Palmer, 14 N. B. R. 437; 2 Hughes, 177; Fed. Cas. 10678.) Where a bankrupt is indorser on a note which falls due after the adjudication of bankruptcy and before the appointment of an assignee, he may waive demand and notice. (Ex parte Tremont National Bank, In re Battey, 16 N. B. R. 397; 2 Lowell, 409; 25 Pittsb. Leg. J. 84; Fed. Cas. 14169.)

Examination of bankrupts. See post, p. 178.

Sec. 8. Death or insanity of bankrupts.-a. The death or insanity of a bankrupt shall not abate the proceedings, but the same shall be conducted and concluded in the same manner, so far as possible, as though he had not died or become insane: Provided, That in case of death the widow and children shall be entitled to all rights of dower and allowance fixed by the laws of the State of the bankrupt's residence.

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[Act of 1867. SEO. 12. . If the debtor dies after the issuing of the warrant, the proceedings may be continued and concluded in like manner as if he had lived.]

This is a deviation from the ordinary rule that death or insanity abates a suit, and, jurisdiction once obtained, permits the administration of an estate until closed.

Effect of the death of the bankrupt.- A proceeding in bankruptcy will not be discontinued by the death of the bankrupt between the time of entry of the order of adjudication and the physical “issuing of the warrant." (In re Litchfield, 9 N. B. R. 506; 7 Ben. 259; Fed. Cas. 8385.) The death of one partner prior to an adjudication on the question of bankruptcy is not legal cause for dismissing the petition. (Hunt, Tillinghast & Co. v. Pooke & Steere, 5 N. B. R. 161; Fed. Cas. 6896.) Where the bankrupt died five months after filing his petition and his attorney

asked for discharge on account of the death, it was held that the discharge could not be granted because the bankrupt had not taken the necessary oath prior to his decease. (In re Gunike, 4 N. B. R. 23; 2 Chi. Leg. News, 367; 1 Pac. Law Rep. No. 8, p. 3; Fed. Cas. 5868.) A brother of one adjudged a bankrupt who died before adjudication is not a partner in interest, and is not entitled to file a petition to obtain permission to dispose of the bankrupt's property. (Karr v. Whittaker et al., 5 N. B. R. 123; Fed. Cas. 7613.) Where the debtor appears and confesses the acts of bankruptcy charged in a creditor's petition, and a trustee is appointed, a creditor who has proved his debt cannot have set aside the adjudica tion after the death of the bankrupt and after the rights of third par ties have intervened. (In re Thomas, 11 N. B. R. 330; 7 Chi. Leg. News, 187; Fed. Cas. 13891.)

The effect of the insanity of the bankrupt.-A person cannot commit an act of bankruptcy while insane, but if he becomes insane after committing the act he can be proceeded against in bankruptcy. (In re Pratt, 6 N. B. R. 276; 2 Lowell, 96; Fed. Cas. 11371.) A person who is under guardianship as a lunatic may be proceeded against in involuntary bankruptcy in opposition to the wishes of his guardian. If the person was insane at the time of the commission of the alleged act of bankruptcy he cannot be adjudicated a bankrupt for that act. (In re Weitzel, 14 N. B. R. 466; 7 Biss. 289; 3 Cent. Law J. 557; Fed. Cas. 17365.) An application to set aside the default and subsequent adjudication in bankruptcy will be granted, and the bankrupt will be allowed to show cause why he should not be so adjudged, when he files affidavits alleging that he was insane at the time the debts were created and also at the time of the proceedings against him and until a recent period, where it appears that the assignee has made no distribution. (In re Murphy, 10 N. B. R. 48; Fed. Cas. 9946.)

The relation of the right of dower to bankruptcy.- A valid convey. ance may be made by the assignee of land held by the husband at the time of bankruptcy without reserving or providing for dower interest. (In re Kelly v. Strange, 2 N. B. R. 2; Fed. Cas. 7676.) Where the husband and wife join in a deed duly acknowledged so as to release the dower, if the deed be avoided in the hands of a fraudulent grantee as having been executed by the bankrupt with intent to hinder, delay and defraud creditors, the assignee in bankruptcy will be entitled to the land divested of the wife's claim of dower and the husband's right to a homestead. (Cox, Ass., v. Wilder et al.. 5 N. B. R. 443; Fed. Cas. 3309.) But where a fraudulent conveyance has been set aside, the making of such conveyance does not forfeit the dower right of the wife against the assignee in bankruptcy. (Cox v. Wilder et al., 7 N. B. R. 241; 2 Dill 45; 5 Amer. Law T. Rep. (U. S. Cts.) 500; Fed. Cas. 3308.) The dower interest of a wife claiming her dower in certain real estate belonging to the bankrupt and sold by the assignee in pursuance of an order of the court will not be divested by the sale. (Lazear v. Porter, Ass., 18 N. B.

R. 549; In re Angier, 4 N. B. R. 199; 1 Amer. Law T. Rep. Bankr. 248; Fed. Cas. 388.) It has been held that a feme covert does not become a surety for her husband by charging her inchoate right of dower for her husband's benefit; that she is not entitled to dower in real estate held as partnership assets; and an agreement that she be compensated for a lease of her contingent right of dower is not to be implied. (Hiscock Ass., etc. v. Jaycox & Green, 12 N, B. R. 507; Fed. Cas. 6531.) The wife's right of dower, where she joins in the mortgage of her husband's property, can be barred only by sale of such property under a power of sale contained in the mortgage or by a decree of a court of competent jurisdiction, where she can be made the party to the proceedings, a sale in bankruptcy proceedings being ineffectual for the purpose. (In re Bartenbach, 11 N. B. R. 61; 2 Amer. Law T. Rep. (N. S.) 33; Fed. Cas. 1068.)

Sec. 9. Protection and detention of bankrupts.-a. A bankrupt shall be exempt from arrest upon civil process except in the following cases: (1) When issued from a court of bankruptcy for contempt or disobedience of its lawful orders; (2) when issued from a State court having jurisdiction, and served within such State, upon a debt or claim from which his discharge in bankruptcy would not be a release, and in such case he shall be exempt from such arrest when in attendance upon a court of bankruptcy or engaged in the performance of a duty imposed by this Act.

[Act of 1867. SEC. 26. No bankrupt shall be liable to arrest during the pendency of the proceedings in bankruptcy in any civil action, unless the same is founded on some debt or claim from which his discharge in bankruptcy would not release him.]

The term "bankrupt" includes a person against whom an involuntary petition or an application to set aside or revoke a discharge has been filed, or who has filed a voluntary petition, or who has been adjudged a bankrupt (sec. 1-4); hence this right of exemption from arrest may exist where there is no adjudication of bankruptcy, and where there may never be, the filing of the petition fixing the time when the exemption commences to run. The referee may furnish a protection against arrest (Orders XII), and in the event the debtor is under arrest, he may be released on habeas corpus proceedings. (Orders XXX.)

The bankrupt's liability to arrest.-A bankrupt is liable to arrest, pending bankruptcy proceedings, upon a debt created by his defalcation of the proceeds of goods sent to him to be sold on commission and for which he refuses to account. (In re Kimball, 2 N. B. R. 74; affirmed, 2

N. B. R. 114; 2 Ben. 554; Fed. Cas. 7768.) And if arrested on an execution issued on a judgment in an action for fraud, he will not be released pending proceedings in bankruptcy. (In re Whitehouse, 4 N. B. R. 15; 1 Lowell, 429; Fed. Cas. 17564; In re Patterson, 1 N. B. R. 58; 2 Ben. 155; 15 Pittsb. Leg. J. 241; Fed. Cas. 10817.) He will not be released by the bankruptcy court when under arrest upon process in an action for fraud (In re Devoe, 2 N. B. R. 11; 1 Lowell, 251; 7 Amer. Law Reg. (U. S.) 690; 1 Amer. Law T. Rep. Bankr. 90; Fed. Cas. 3843); nor when held in arrest in a judgment in an action for fraud, although the judgment debtor may have proved his debt in the proceedings. (In re Robinson, 2 N. B. R. 108; 6 Blatchf. 253; 36 How. Pr. 176; 2 Amer. Law T. Rep. Bankr. 18; Fed. Cas. 11939.) But a civil action for fraud will be stayed until the final determination of the bankruptcy proceedings. (In re Migel, 2 N. B. R. 153; Fed. Cas. 9538.) The mere filing, however, of charges of fraud in a pending civil suit does not act as such a stay. (Minon v. Van Nostrand, 4 N. B. R. 28; 1 Lowell, 458; Fed. Cas. 9642.) A debtor arrested at the suit of his creditor in a civil action pending in a state court, and afterwards adjudicated a bankrupt, will not be discharged by the bankruptcy court (In re Hazleton, 2 N. B. R. 12; 1 Lowell, 270; 1 Amer. Law T. Rep. Bankr. 105; Fed. Cas 6287), unless the debt on which he is arrested is one of which a discharge in bankruptcy acts as a release. (Brandon National Bank v. Hatch, 16 N. B. R. 468.) He will not be released, even on a writ of habeas corpus, if the debt be not dischargeable in bankruptcy (In re Valk, 3 N. B. R. 73; 3 Ben. 431; Fed. Cas. 16814; In re Alsberg, 16 N. B. R. 116; Fed. Cas. 261), even though arrested before the proceedings in bankruptcy have commenced. (In re Walker, 1 N. B. R. 60; 1 Lowell, 222; Fed. Cas. 17060.)

A debtor under arrest, but in the custody of his bail, is, when surrendered in discharge thereof, theoretically and practically in arrest, substantially, to all intents and purposes, as if he had never been released on bail. (In re Hazleton, 2 N. B. R. 12; 1 Lowell, 270; 1 Amer. Law T. Rep. Bankr. 105; Fed. Cas. 6287.)

The bankrupt's exemption from arrest.- Where proceedings in bankruptcy have been commenced, the bankrupt court has a right to protect the bankrupt from an action and arrest under the authority of a state court, and may issue a writ of habeas corpus to that end. (In re Williams and McPheeters, 11 N. B. R. 145; 6 Biss. 233; 7 Chi. Leg. News, 49; Fed. Cas. 17700.) This exemption is conferred because the party is adjudged a bankrupt by the district court, and the enforcing of the exemption by affirmative action is an act "to be done under and in virtue of the bankruptcy." The court has power to relieve him from arrest, on process of a state court, in an action founded upon a debt that may be discharged in bankruptcy; and the question whether the debt be one contracted in fraud may be examined into and determined by the district court. (In re Glaser, 1 N. B. R. 73; 15 Pittsb. Leg. J. 265; 2 Ben. 180; 1 Amer. Law T. Rep. Bankr. 57; Fed. Cas. 5474; In re Smith et al, 18 N. B. R. 24; Fed. Cas. 12976.)

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