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Ben. 430; Fed. Cas. 5254.) A failure of a bankrupt to surrender the books of account to the assignee in insolvency, make return of them in his schedules or otherwise account for them, creates the presumption that he has them, and he is held guilty of concealing them. (In re Beale, 2 N. B. R. 178; 1 Lowell, 323; 2 Amer. Law T. Rep. Bankr. 95; 1 Chi. Leg. News, 326; Fed. Cas. 1150.)

In the following cases it has been held unnecessary to keep books of account, and discharge has been granted: One who was a stock and gold broker, but was not a member of a stock exchange, and conducted his business through other brokers who were members (In re Moss, 19 N. B. R. 132; Fed. Cas. 9877); an illiterate farmer who also periodically pur chased and sold horses, cattle, etc. (In re Cote, 14 N. B. R. 503; 2 Lowell, 374; Fed. Cas. 3267.)

Failure to keep books not excused.- Where a bankrupt has not kept proper books of account for several months before his bankruptcy, a discharge will be refused. (In re Archenbrown, 12 N. B. R. 17; 7 Chi. Leg. News, 231; Fed. Cas. 505.) It has also been held under the act of 1867 that a discharge will be refused where there is an omission to keep proper books of account, even without fraudulent intent (In re Solomon, 12 N. B. R. 94; 6 Phila. 481; 25 Leg. Int. 364; 1 Chi. Leg. News, 77, 107; Fed. Cas. 13167; In re Archenbrown, 12 N. B. R. 17; 7 Chi. Leg. News, 231; Fed. Cas. 505); or where the omission is not wilful. (In re Newman, 2 N. B. R. 99; 3 Ben. 20; 1 Chi. Leg. News, 123; Fed. Cas. 10175.)

The following have been held to constitute a proper keeping of books of account: The keeping of all invoice bills carefully together without an invoice book, the other customary books being kept (In re Reed, 12 N. B. R. 380; 1 N. Y. Wkly. Dig. 100; Fed. Cas. 11639); bank books showing amount received, and books showing amounts and to whom paid, but no cash book (In re Marsh et al., 19 N. B. R. 297; Fed. Cas. 9109); an entry of a chattel mortgage or a promissory note in a trader's blotter; a real-estate transaction entered in the blotter kept by the bankrupt as a trader, fully disclosing his indebtedness thereto. (In re Winsor, 16 N. B. R. 152; 9 Chi. Leg. News, 402; 2 Cin. Law Bul. 212; Fed. Cas. 17885.) A detached check is admissible in evidence, such check having once formed a part of the book, and together with the stub showed just how the book was kept. (In re Brockway, 7 N. B. R. 595; 6 Ben. 326; Fed. Cas. 1917.) A pass-book is a book of account and a necessary one. (In re Blumenthal, 18 N. B. R. 575; Fed. Cas. 1576.) Books of accounts in another business need not be kept. (In re Friedberg, 19 N. B. R. 302; Fed. Cas. 5116; In re Herdic, 19 N. B. R. 385; Fed. Cas. 6403.) The accidental omission of entries in a trader's books of account is no ground for withholding a discharge (In re Burgess, 3 N. B. R. 47; Fed. Cas. 2153); nor is the mutilation of books of account, if satisfactorily explained (In re Noonan et al., 3 N. B. R. 63; Fed. Cas. 10291); nor will a discharge be refused where material erasures and alterations appear on the books of a bankrupt, unless it is evi

dent that they were made with fraudulent intent. (In re Antisdel, 18 N. B. R. 289; Fed. Cas. 490.) It is not necessary that the books of account contain entries of debts owed at the time the bankrupt went into trade, previously contracted, as well as those debts incurred in his business as a trader. (In re Winsor, 16 N. B. R. 152; 9 Chi. Leg. News, 402; 2 Cin. Law Bul. 212; Fed. Cas. 17885.) If creditors can gather from the books kept by a bankrupt a correct understanding of his financial condition, the requirement that proper books of account shall be kept is satisfied. (In re Antisdel, 18 N. B. R. 289; Fed. Cas. 490.)

The following have been held not to have kept proper books of account: Bankrupts whose entries of receipts and disbursements in cash books are unintelligible (In re John Murdock et al., In re Mackey, 4 N. B. R. 17; Fed. Cas. 8838); a merchant or tradesman who keeps neither invoice book, cash book, blotter, day book, journal or ledger, but only books containing memoranda of business transactions, from which no correct estimate of the condition can be made (In re Schumpert, 8 N. B. R. 415; Fed. Cas. 12491); one who makes entries of business transactions on slips of paper, each entry being on a separate slip (In re Hammond v. Coolidge, 3 N. B. R. 71; 1 Lowell, 381; Fed. Cas. 5999); one who fails to keep a cash book (In re Bellis et al., 3 N. B. R. 124; 4 Ben. 53; Fed. Cas. 1275; In re Littlefield, 3 N. B. R. 13; 1 Lowell, 331; 2 Amer. Law T. 122; 1 Amer. Law T. Rep. Bankr. 164; Fed. Cas. 8398); a bankrupt who kept no cash book, but had an account with “merchandise" in his ledger, showing in one column aggregate monthly payments for grain, and in another aggregate monthly amount of sales, the books not showing what moneys were expended in carrying on business nor what sums were taken out for family expenses (In re Anketell, 19 N. B. R. 268; Fed. Cas. 394); a bankrupt who preserved the invoices of his purchases, receipts of his payments, a bank book and canceled checks, and a daily memorandum of cash receipts on a slate which were erased each succeeding day (In re Solomon, 2 N. B. R. 94; 6 Phila. 481; 25 Leg. Int. 364; 1 Chi. Leg. News, 77, 107; Fed. Cas. 13167); one who did not keep a book of cash receipts and expenditures (In re Gay, 2 N. B. R. 114; 1 Hask. 108; 1 Amer. Law T. Rep. Bankr. 72; 2 Amer. Law T. Rep. Bankr. 52; Fed. Cas. 5279); one who did not keep invoice or stock books from which to determine what property he was possessed of in his trade (In re White, 2 N. B. R 179; 16 Pittsb. Leg. J. 110; 2 Amer. Law T. 105: 1 Amer. Law T. Rep. Bankr. 136; 1 Chi. Leg. News, 326; Fed. Cas. 17532); a bankrupt who was a merchant, and illiterate, and kept no books of account except a small memorandum book of sales in which the entries were made by his son, daughter, and even strangers purchasing goods of him, but who relied chiefly upon his memory as to his business transactions (In re Newman, 2 N. B. R. 99; 3 Ben. 20; 1 Chi. Leg. News, 123: Fed. Cas. 10175); a debtor who kept no books showing transactions between him and a person whom creditors alleged to be his partner, but who kept

proper books of account with customers. (In re Blumenthal, 18 N. B. R. 555; Fed. Cas. 1576.)

Impeachment of a discharge.-A bankrupt's discharge cannot be impeached in a state court for any of the reasons which would prevent the United States court from granting it. (Alston v. Robinett, 9 N. B. R. 74.) A discharge granted by a court of competent jurisdiction is conclusive as a bar to all suits commenced in state courts, when properly pleaded, and cannot be impeached on the ground that it was obtained by fraud: (Hudson v. Bingham, 8 N. B. R. 494; Smith v. Ramsey, 15 N. B. R. 447.) A discharge is conclusive in the absence of fraud, and cannot be impeached collaterally by a creditor to whom no notice of the proceedings had been given (Williams v. Butcher, 12 N. B. R. 143; Black v. Blazo, 13 N. B. R. 195); nor on the ground that such notice was not given because of the fraud of the bankrupt in representing in his schedule that the creditor's residence was unknown to him when he actually knew such residence. (Rayl, Adm'x, etc. v. Lapham, 15 N. B. R. 508.)

Replication to plea of discharge.- Under the act of 1867 it was held that where a defendant to a suit on a note pleads his discharge in bankruptcy, a replication that the plaintiff ought not to be barred because his claim was not included in the schedule and he had no notice will be held bad on demurrer. (Symonds v. Barnes, 6 N. B. R. 377.) Replications filed in an action in a state court, setting up fraudulent acts of a bankrupt in avoidance of the discharge, will also be held bad. (Reed v. Bullington, 11 N. B. R. 408; Stokes et al. v. Mason, 12 N. B. R. 498.) Matter intended to avoid a discharge should be replied in response to the plea, and should not be set forth in the declaration. (Brown et al. v. Broach et al., 16 N. B. R. 296.) In an action on a judgment recovered prior to an adjudication of bankruptcy, the plaintiff is entitled to set up a fraudulent concealment by the bankrupt of his property, against his plea of discharge. (In re Perkins et al., 3 N. B. R. 189.)

Proceedings suspended to await a discharge. —A bankrupt defendant may file a bond to dissolve an attachment, although it was issued more than four months before the commencement of the proceedings in bankruptcy, and have the case continued to await his discharge. (Braley v. Boomer et al., 12 N. B. R. 303.) Proceedings to collect a provable debt shall, on application of the bankrupt, be stayed, to await the determination of the court in bankruptcy on the question of the discharge, provided there be no unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge. (In re Belden, 6 N. B. R. 443; Fed. Cas. 1239.) Where a creditor having proved his debt in bankruptcy, and there having been unreasonable delay by a debtor in obtaining his discharge, the former attempts to execute a judgment obtained against the latter prior to bankruptcy, such proof is not a satisfaction of the debt, but a discharge by the bankrupt court must first be obtained, and,

if refused, the creditor can proceed at law. (Dingee v. Becker, 9 N. B. R. 508; Fed. Cas. 3919.)

An action was brought by a creditor, who had proved his claim in bankruptcy, three years after adjudication. No dividend had been paid, no final account rendered, and no discharge granted or refused. The defendant set up the pendency of bankruptcy proceedings. The plaintiff urged that, the time having elapsed within which a discharge could be granted, the proceedings were terminated and his right of action revived. It was held that the proceedings were not terminated without a discharge, and that the right of action was not revived. (Wood v. Hazen, 15 N. B. R. 491.)

Discharge releases debtor from liability as surety.- A bankrupt is released from liability as surety on a guardian's bond by a discharge in bankruptcy. (Reitz v. People, 16 N. B. R. 96.) A discharge releases a surety on a guardian's bond from liability for defaults of the guardian which occurred prior to commencement of proceedings against the surety. (Jones et al. v. Knox, 3 N. B. R. 559.) Where a principal is released from a debt by his discharge, 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 surety on the bond of a United States officer is released from his liability thereon by a discharge. (United States v. Throckmorton, 8 N. B. R. 309; 18 Int. Rev. Rec. 54; Fed. Cas. 16516.) Where a judgment against the sureties on an appeal bond follows the rendition of a judgment against the principal, sureties discharged in bankruptcy pending such appeal must plead such discharge before judg ment on the appeal is rendered or it will not avail as a defense. (Jones et al. v. Coker et al., 16 N. B. R. 343.)

Failure to plead a discharge.- A delay of over a year in asking for leave to plead a discharge in bar of an action commenced prior to the adjudication is sufficient cause for refusing such request, the plea of a discharge being a purely legal and not an equitable defense. (Medburg v. Swan, 8 N. B. R. 537.) A discharge is no defense where a bankrupt fails to plead the same in bar to an action and allows judgment to be recovered against him (Revere Copper Co. v. Dimock, 19 N. B. R. 372), and by neglecting to insist upon his discharge he waives its benefits and renders any property he may have liable for the judgment. (Dewey et al. v. Moyer et al., 16 N. B. R. 1.) A discharge in bankruptcy does not per se operate as a discharge of all a bankrupt's debts. A court will not take judicial knowledge of a discharge, and, if not pleaded, a valid judgment may be rendered against a bankrupt. (Jenks v. Opp, 12 N. B. R. 19.)

When a discharge may not be plowied.— A bankrupt will not be allowed to file a supplemental answer setting up his discharge, where an attachment issued more than four months prior to the institution of bankruptcy proceedings was dissolved by filing a bond. (Holyoke et al. v. Adams et al., 13 N. B. R. 413.) A discharge obtained pending an ap

peal cannot be pleaded in an appellate court. Such court takes cognizance only of the matters appearing on the record of the court below. (Serra é Hijo v. Hoffman & Co., 17 N. B. R. 124; Knapp et al. v. Anderson et al., 15 N. B. R. 316.) Where, upon suit against a commission merchant for the proceeds of the sale of goods consigned to him, it appears that prior to the commencement of the action the defendant was adjudged a bankrupt, and had received no discharge, a discharge obtained afterward does not release the debt. (Treadwell et al. v. Holloway et al., 12 N. B. R. 61.)

Effect of the discharge on partnership debts.— A man cannot be discharged from his liabilities as a member of a firm unless the debts and assets of the firm are considered and adjudicated upon by the court. (Hudgins v. Lane et al., 11 N. B. R. 462; 2 Hughes, 361; Fed. Cas. 6827.) Where a discharge in bankruptcy is granted to a member of a firm, it is a release of joint debts as well as of separate debts. A discharge binds copartners as well as joint creditors, where granted to a copartner. (Wilkins v. Davis, 15 N. B. R. 60; 2 Lowell, 511; Fed. Cas. 17664.) A discharge properly granted to the individual members of a firm will be available in respect to any indebtedness of any other partnership in which they are interested and for whose debts they might be liable. (In re Warren and Charles Leland, 5 N. B. R. 222; 5 Ben. 168; Fed. Cas. 8228.) A discharge founded upon the individual petition of a firm, the other members of which had died insolvent, would probably operate as a discharge of the petitioner from his debts as a member of said firm as well as individually, but it would be safer to amend the petition. (In re Bidwell, 2 N. B. R. 78; Fed. Cas. 1392.)

Effect, generally, on the discharge, of collateral proceedings.— A discharge may be pleaded by simple averment of the facts in an action to enjoin collection of a judgment on the ground of discharge, and a copy of the discharge need not be set out. (Hayes v. Ford, 15 N. B. R. 569.) If a discharge be pleaded, the court cannot dismiss the cause on that ground, but must submit the issue to a jury. (Austin v. Markham, 10 N. B. R. 548.) A plea setting up a discharge, if a plea in abatement, is bad if not sworn to. If such plea is in bar, when the notes and bond sued upon were given after bankruptcy, it is insufficient. (Beeson et al. v. Howard, 11 N. B. R. 486.) A plea of a discharge which does not set forth a copy of the discharge is bad. A plea is bad at common law unless it aver what court adjudged the defendant to be a bankrupt or granted him his discharge as such, or set out the facts upon which any court would acquire jurisdiction so to do. Such plea should conclude with a verification. If defective, it may be amended. (Stoll v. Wilson, 14 N. B. R. 571.)

No satisfaction of a judgment will be entered on the record upon the production of a discharge unless the judgment is one from which the discharge will release the debtor. An attachment upon exempt prop

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