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proof heard, and for any deficiency from the sale he is a general creditor, to share pro rata in the distribution of the general assets. (In re Ruehle, 2 N. B. R. 175; 2 Amer. Law T. Rep. Bankr. 59; 16 Pittsb. Leg. J. (O. S.) 5; 1 Chi. Leg. News, 186; Fed. Cas. 12113.) The holder of a note advanced by a factor to a manufacturer, and by him indorsed and procured to be discounted, who has agreed to a composition with the factor and receives his right to prove the full amount of the note against the other parties to it, need not, in proving against the manufacturer, give credit for the full amount received by him on the composition, but must abate his proof by giving credit for the amount of the manufacturer's goods in possession of the factor at the time of his bankruptcy. (Ex parte Harris et al., 16 N. B. R. 432; 2 Lowell, 568; Fed. Cas. 6109.)

The proof, in general.- When a creditor seeks to prove a debt against the estate of a bankrupt, he stands in the position of a plaintiff at law. (In re Prescott, 9 N. B. R. 385; 5 Biss. 523; 6 Chi. Leg. News, 151; Fed. Cas. 11389.) Every person submitting himself to the jurisdiction of the bankrupt court in the progress of the cause, for the purpose of having his rights determined, is a party to the suit, and is bound by the determination of the court. (Wiswall et al. v. Campbell et al., 15 N. B. R. 421; 93 U. S. 347.) The proof of claim in bankruptcy is not a suit, the commencement of which is per se necessary to suspend the running of the statute of limitations (In re Eldridge & Co., 12 N. B. R. 540; 2 Hughes, 256; 1 N. Y. Wkly. Dig. 243; Fed. Cas. 4331); but the proceeding to prove a debt is part of the suit in bankruptcy, and the judgment of the circuit court thereon is final. (Wiswall et al. v. Campbell et al., Ass., 15 N. B. R. 421; 93 U. S. 347.)

It is optional with the judgment creditor whether he will prove his debt in bankruptcy or rely on his judgment lien. (Heard v. Jones, 15 N. B. R. 402.) When a debtor is adjudged a bankrupt, all proceedings against him in a state court must stop, if the subject-matter of the suit can be proven against his estate in bankruptcy; and no creditor who holds a claim which might be proven in bankruptcy, whether the debt is secured by lien or not, can enforce such debt in a state court, except by the permission of the district court. (In re Winn, 1 N. B. R. 131; 1 Amer. Law T. Rep. Bankr. 17; Fed. Cas. 17876.)

Although a foreign creditor's rights are not affected by United States bankruptcy proceedings until proof of debt is made in the United States, yet the remedy afforded, when sought in the United States courts, must be determined by the Bankrupt Act and laws of the United States. (In re Bugbee, 9 N. B. R. 258; Fed. Cas. 2115.)

Where a holder of promissory notes indorsed by the bankrupt purchases them for an exceedingly low price and is aware of trouble between the maker and the indorser, he must be charged with knowledge which he might have obtained if he had made inquiry, and he is also charged with notice of the bankrupt's insolvency. (In re Hook, 11 N. B. R. 282, Fed. Cas. 6672.)

A creditor holding collaterals is not bound to apply them before enforcing his direct remedies against the debtor. (Lewis, Trustee, v. United States, 14 N. B. R. 64; 92 U. S. 618.)

The effect of proof.- Proving a debt in bankruptcy does not of itself operate as an absolute extinguishment or satisfaction of the debt, the creditor being remitted to his former rights and remedies if the bankrupt be refused his discharge. (Dingee v. Becker, 9 N. B. R. 508; Fed. Cas. 3919; Miller v. O'Kain, 14 N. B. R. 145.) Where proof of a claim is given in the form required by statute, a prima facie case is made, subject only to an order for further proof and the right of a creditor, or person interested, to offer counter-proof. (In re Saunders, 13 N. B. R. 164; 2 Lowell, 444; Fed. Cas. 12371.) Rights of creditors accrue after admitted proof of claim, and such creditors then have the right to ask for an amendment of the petition for any defect therein. (In re Jones, 2 N. B. R. 20; Fed. Cas. 7447.) A debt or principal must be proven or allowed before the costs made prior to the commencement of proceeding in bankruptcy can be proved and allowed. The original debt having been allowed, attachment costs may be proved if made before commencement of proceedings in bankruptcy without knowledge of insolvency. (In re Preston, 5 N. B. R. 293; Fed. Cas. 11393.) A creditor proving his claim is a "party" to the proceedings, and in no sense a witness, and is not entitled to fees. (In re Paddock, 6 N. B. R. 396; Fed. Cas. 10658.) If a creditor prove his full claim without reference to his lien or security, and without apprising the bankrupt court of its existence, such an act would be waiver of the lien and a relinquishment of the security to the assignee. (Stewart v. Isidor et al., 1 N. B. R. 129; In re Granger & Sabin, 8 N. B. R. 30; Fed. Cas. 5684; In re McConnell, 9 N. B. R. 387; 10 Phila. 287; 31 Leg. Int. 61; 21 Pittsb. Leg. J. 107; Fed. Cas. 8712.) It is prima facie an extinguishment of any security held for the same and may ripen into a conclusive extinguishment. (In re Parkes, 10 N. B. R. 82; Fed. Cas. 10754.) Where, having a security on the property of a third party, he proves his claim without setting out his security and receives a dividend, he forfeits his security only in case those interested in the estate would be benefited thereby. (Bassett et al. v. Baird, 17 N. B. R. 177.) The creditor will have the benefit of any counter-bonds or collateral securities which the principal debtor has given to the surety, or person standing in the situation of a surety, for his indemnity; such securities being regarded as trusts for the better security of the debt; but if such creditor prove his debt as unsecured, he waives an l relinquishes his lien (In re Jaycox & Green, 8 N. B. R. 241; Fed. Cas. 7242); but the mortgage is not thereby extinguished, the assignee being subrogated to the rights of the holder. (Hiscock, Ass., etc. v. Jaycox & Green, 12 N. B. R. 507; Fed. Cas. 6531.)

An indorser is not released from his liability even if the holder of the note has proved his debt in bankruptcy against the maker for the full amount as an unsecured claim; but the holder by so proving his debt

releases all his right and claim as well at law as in equity to a mortgage given for the purpose of indemnifying the indorser. (Merchants' Nat. Bank of Syracuse v. Comstock, 11 N. B. R. 235.)

If a party who took a bill of sale as security deliberately prove a debt which assumes that he is the absolute owner of the goods, and persist in such false claim in an action by the assignee to recover the goods, and attempt to support it by his own oath, he is estopped from claiming them as security. (Willis v. Carpenter et al., 14 N. B. R. 521; Fed. Cas. 17770.)

Where execution has issued, and levy been made on the property of a debtor sufficient to satisfy the judgment, the creditor is not estopped from proceeding in bankruptcy against the debtor, but such proceeding will be held to be a waiver of the levy. (In re Sheehan, 8 N. B. R. 345; Fed. Cas. 12737; In re Bloss, 4 N. B. R. 37; Fed. Cas. 1562.) But a creditor who, in ignorance of his legal rights and in good faith, files proof of a claim secured by a deed of trust, will not be deemed to have waived his lien under such deed, especially if he be acting in a fiduciary capacity. (In re Brand, 3 N. B. R. 85; 2 Hughes, 334; 2 Amer. Law T. Rep. Bankr. 66; Fed. Cas. 1809.) A security is not waived by merely proving a second claim as a general claim. (Hatch v. Seely, 13 N. B. R. 380.) A creditor holding security for his debt does not in any manner prejudice his claim to the same, by proving his debt as one with security, and setting out the particulars of the security and its estimated value, such proof being a prerequisite to any action for the appropriation of the security, in satisfaction, in whole or in part, of the debt. (In re Grinnell & Co., 9 N. B. R. 29; 7 Ben. 42; 21 Pittsb. Leg. J. 82; Fed. Cas. 5830.)

Any creditor of a bankrupt may oppose the discharge whether he has proved his debt or not (In re Sheppard, 1 N. B. R. 115; 7 Amer. Law Reg. (N. S.) 484; 1 Amer. Law T. Rep. Bankr. 49; Fed. Cas. 12753); but creditors who have proved their debts cannot have the bankrupt's discharge set aside after his death in order that they may prove their demands against the estate of the debtor in the hands of his administrator. (Young et al. v. Ridenbaugh, 11 N. B. R. 563; 3 Dill. 239; 7 Chi. Leg. News, 242; Fed. Cas. 18173.) Where creditors each file a petition against a debtor who himself files a petition and is adjudged a bankrupt, and the creditors prove their claims under the voluntary petition, they thereby waive their right to continue the involuntary proceedings. (In re Nounnan & Co., 6 N. B. R. 579.) Where a debt is created by fraud, a creditor does not waive his right to sue for the balance by proving his claim and taking a dividend (In re Clews et al., 19 N. B. R. 109; Fed. Cas. 2891); but where he proves his claim, and, finding no assets to pay it, attempts to force payment by a fi. fa., he will be held to have waived his judgment lien by proving his claim. (Heard v. Jones, 15 N. B. R. 402.)

The prohibition that no creditor proving his claim shall be allowed to

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maintain any suit therefor at law or equity against the bankrupt cannot have any broader scope than is warranted by the letter of the statute. It does not inhibit collateral remedies. The right of action against a party as a stockholder of a corporation is not affected by the bankrupt law. (Allen v. Ward, 10 N. B. R. 285.) Proving a debt and receiving a dividend in bankruptcy against a corporation are not a bar to recovering judgment for the balance in a state court. (Ansonia Brass and Copper Co. v. New Lamp Chimney Co., 10 N. B. R. 355.) A creditor whose debt is secured by a mortgage of the bankrupt's estate, having proved his claim, may, with leave of the bankrupt court and in the absence of objection by the assignee, proceed to foreclose the mortgage in a state court (McHenry et al. v. La Societe Francaise, 16 N. B. R. 385; 95 U. S. 581); but a creditor who proves his debt and asserts his lien in the bankrupt court is not entitled to resort to a state tribunal to enforce his lien against the same property which was the subject of adjudication in the bankrupt court. (Spilman v. Johnson, 16 N. B. R. 145.) Where an indorsee receives payment from the indorser during pendency of proceedings, he cannot unite in the petition, even though he proved his claim before payment but had not filed it. (In re Broich et al., 15 N. B. R. 11; 7 Biss. 303; Fed. Cas. 1921.)

It is no ground of defense or suspension of an action on a joint or joint and several promissory note against a surety that the note has been proved as a claim against the principal in bankruptcy proceedings. (Greeg v. Wilson, 15 N. B. R. 142.)

Where, in making proof of a claim, a creditor does not show that the bankrupt holds an unsatisfied claim against him and the assignee brings suit on the claim, the creditor will not be entitled to a set-off for the amount allowed on his proof. (Russell, Ass., v. Owen, 15 N. B. R. 322.)

In an action for goods sold and delivered the defendant may plead in bar his bankruptcy, and the proof of the plaintiff's claim against his estate, or at any time after the institution of the proceedings in bankruptcy may apply to the court in which the action is pending for a stay of proceedings. If he does neither, the judgment rendered against him is valid, and, in the absence of fraud, is conclusive against him and the surety on his bond to dissolve an attachment. (Cutter et al. v. Evans, 11 N. B. R. 448.)

A bankrupt who is held in arrest and bail in a judgment in a civil action founded upon a debt created by fraud will not be discharged from custody by the court in which bankruptcy proceedings are pending, although the judgment debtor may have proved his debt in the proceedings. (In re Robinson, 2 N. B. R. 108; 6 Blatehf. 253; 36 How. Pr. 176; 2 Amer. Law T. Rep. Bankr. 18; Fed. Cas. 11939.)

The effect of failure to prove.— A creditor who has not proved his claim is entitled to be heard on a motion to set aside an adjudication of bankruptcy against his debtor (In re Derby, 8 N. B. R. 106; 6 Alb. Law

J. 422; Fed. Cas. 3815. Contra, In re Brisco, 2 N. B. R. 78; 1 Gaz. 78; Fed. Cas. 1886); but he has no rights in composition proceedings (In re Mathers et al., 17 N. B. R. 225; Fed. Cas. 9274), nor will he be heard in opposition to the bankrupt's discharge. (In re Burk, 3 N. B. R. 76; Deady, 425; 2 Amer. Law T. Rep. Bankr. 45; Fed. Cas. 2156; In re Levy, 1 N. B. R. 66; 2 Ben. 169; 1 Amer. Law T. Rep. Bankr. 122; Fed. Cas. 8297. Contra, In re Boutelle, 2 N. B. R. 51; 15 Pittsb. Leg. J. 616; 1 Chi. Leg. News, 30; Fed. Cas. 1705.) A discharge in bankruptcy will not release the lien of a judgment which was not proved. (Darsey v. Mumpford, 17 N. B. R. 181.) Without proof of the debt no lien can be enforced, any more than dividends can be received on account of it. (In re Jordan, 9 N. B. R. 416; Fed. Cas. 7529.)

Where the state law provides that a judgment is a lien from its date upon all the property of the defendant, a judgment creditor has the right to enforce this lien against exempt property of a bankrupt, if he did not prove his claim. (Bush v. Lester et al., 15 N. B. R. 36.) Where a judgment creditor whose judgment is a lien on the realty of the debtor does not prove his debt, and forecloses under the authority of the court in bankruptcy, but the land is sold under execution, the sheriff's sale may be set aside upon petition of the assignee. (Davis v. Anderson, 6 N. B. R. 146; Fed. Cas. 3623.) A petition by a secured creditor for leave to foreclose a mortgage will be dismissed if no notice be given the assignee, and no proof be made of the existence of the debt. (In re S. F. Frizelle, 5 N. B. R. 122; Fed. Cas. 5132.)

The proof of secured claims.— A creditor secured by a mortgage upon real and personal property may prove his claim, upon making oath to the amount due him and the securities held therefor. (In re Bridgman, 1 N. B. R. 59; 1 Amer. Law T. Rep. Bankr. 48; Fed. Cas. 1866.) He may prove his claim to an amount exceeding the value of the security without abandoning the same, but he is bound to set forth the value, that he may vote as a creditor in respect to the overplus proven by him, upon the choice of the assignee (In re Bolton, 1 N. B. R. 83; 2 Ben. 189; 1 Amer. Law T. Rep. Bankr. 120; Fed. Cas. 1614), who may contest the claim for any usurious surplus. (Bromley, Ass., v. Smith et al., 5 N. B. R. 152; 2 Biss. 511; 3 Chi. Leg. News, 297; Fed. Cas. 1922.) It is not necessary, if he has recovered a judgment after the adjudication of the debtor as a bankrupt, to vacate it before he can prove the claim on which the judgment is recovered, provided the claim be otherwise valid and properly provable. (In re Stevens, 4 N. B. R. 122; Fed. Cas. 13391.) He may before hearing waive his security and join with unsecured creditors to make the requisite number and amount, he then having all the rights of an unsecured creditor. (In re Crossette et al., 17 N. B. R. 208; Fed. Cas. 3435.) If his debt be fully secured he may file a petition in bankruptcy. (In re Stansell, 6 N. B. R. 183; Fed. Cas. 13294; In re Bloss, 4 N. B. R. 37; Fed. Cas. 1562.) It is necessary for him, if his debt be secured by lien, to prove

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