ever, were entered on a separate book. The omissions were held not to be sufficient to prevent his discharge. In re Jewett, 3 Fed. Rep. 503. The books that were produced did not constitute proper books of account, but it appeared that one of the bankrupts, who had absconded, took with him the cash-book. Held, that the facts did not constitute a sufficient objection to a discharge. In re Kraft et al., 4 Fed. Rep. 523. Held, under the Act of 1867, that the existence of obscurity in the books of a bankrupt did not offer any reason to refuse a discharge, wher the obscurity was explained, and the entries were made without fraud or deceit. In re Townsend, 2 Fed. Rep. 559.

In the case cited, a discharge was refused for a failure to keep proper books of account, notwithstanding such books as the bankrupt kept, with the invoices on file, might have enabled an accountant to make out proper statements. In re Bernia, 5 Fed. Rep. 723.

After selling out his store the bankrupt engaged in the business of buying and selling apples, partly on his own account and partly in connection with another. His omission to keep books of account was held to deprive him of his right to a discharge. In re Tyler, 4 N. B. R. 104; 24 Fed. Cas. 457.

The bankrupts were dealers in bark and lumber. They had no other cash-book but their bank account, but each member of the firm kept a book showing disbursements, and to whom made. It was held that these constituted proper books of account. In re Marsh et al., 19 N. B. R. 297; 16 Fed. Cas. 792.

Under the Act of 1867, a failure by a merchant to keep proper books of account was a ground for refusing a discharge, whether or not the omission was with fraudulent intent. In re Solomon, 2 N. B. R. 285; 22 Fed. Cas. 787.

A bankrupt kept his cash account on slips, and only entered the footings of these slips on his cash-book, so that it was impossible to tell for what purpose the items were disbursed. These were held not to be proper books of account. In re Perry et al., 19 Fed. Cas. 264.

A retail merchant testified that he kept no invoice-book, but that he preserved his invoices carefully so that a complete account of all goods received by him could be made out, and also kept a set of books in usual form. The court overruled an objection to his discharge on the ground that he had not kept proper books of account. In re Reed, 12 N. B. R. 390; 20 Fed. Cas. 417.

Some years before the passage of the Bankrupt Act of 1841, the debtor had committed a fraud in an assignment for the benefit of his creditors. It was held that this would not bar his discharge under that act. In re McFarlan, 16 Fed. Cas. 89 (1842).

A bankrupt who had not kept a cash-book, journal or ledger was refused a discharge on the ground that he had not kept proper books of account. At the same time it was held that the absence of the cashbook alone would not be sufficient to prevent a discharge if receipts and payments appeared from other books. In re Hannahs, 8 Ben. 475; 11 Fed. Cas. 445.

A discharge was refused where the bankrupt was a member of a firm which had sold its stock to another firm consisting of the same partners with one other, and had made no entry of the sale on the books of the old firm. In re Colcord, 2 Hask. 455; 6 Fed, Cas. 33.

A discharge will not be refused on account of accidental omissions of entries in the bankrupt's books of account. In re Burgess, 3 N. B. R. 196; 4 Fed. Cas. 725.

The books of a bankrupt firm did not show the condition of accounts between the partners. A discharge was refused. In re Jorey et al., 2 Bond, 336; 13 Fed. Cas. 1122.

The bankrupts had kept no cash-book for ten months and it was impossible to ascertain their condition from their books of account. A discharge was refused. In re Bellis et al., 4 Ben. 53; 3 Fed. Cas. 135. "Proper books of account" are such as will enable a competent accountant to ascertain the condition of the bankrupt's affairs. In re Wartenbach, 11 N. B. R. 61; 2 Fed. Cas. 956.

A discharge was refused to a bankrupt who was a tradesman and who had not kept an invoice or stock-book. In re White, 2 N. B. R. 590; 29 Fed. Cas. 966.

The bankrupt had engaged for a short time in the business of buying and selling tobacco and cigars, and in that business had kept no books of account. The business had been closed out, and there were no debts due to or from him arising from that business. Held, that the fact that he had not kept books of account could not be urged against his discharge. In re Freidberg, 19 N. B. R. 302; 9 Fed. Cas. 815.

S. and B. were associated in business under an agreement which was held not to amount to a partnership. B., the bankrupt, kept proper books of account with his customers, but nothing to show the state of his accounts with S. A discharge was refused. Later, a pass-book was produced in which the transactions between B. and S. were entered every day. Thereupon a discharge was granted. In re Blumenthal, 18 N. B. R. 555, 575; 3 Fed. Cas. 757, 758.

By the twenty-ninth section of the Bankrupt Act of 1867, it was provided that no discharge shall be granted if the bankrupt being a merchant or tradesman has not subsequently to the passage of the act kept proper books of account. If account-books are not kept the discharge must be refused even though such failure was the result of no intent to defraud creditors or to conceal the condition of his business. The keeping of mere memorandum-books which fail to show particulars and construction of debts due to and by the creditors and debtors of the bankrupt is not keeping of such proper books as are required by the twenty-ninth section of the Act. In re Numan, 1 Chi. Leg. News, 123; 18 Fed. Cas. 96. The bankrupts had failed to enter on their books several important transactions relating to their property. A discharge was refused. In re Grieves et al., 15 Alb. L. J. 167; 11 Fed. Cas. 3.

Where a trader's books were not posted to date, and the accounts were kept on separate pieces of paper, a charge of failure to keep proper books of account will not be sustained. In re Hammond et al., 1 Low. 381; 11 Fed. Cas. 380.

The bankrupt kept a wharf where he sold wood and coal. Books of account were kept by a skillful clerk, but for some time previous to his discharge he had no cash account. A discharge was refused. In re Littlefield, 1 Low. 331; 15 Fed. Cas. 624.

The burden of proof is on a creditor who opposes a discharge on the ground that the bankrupt had not kept proper books of account. In re Banks, 1 N. Y. Leg. Obs. 274; 2 Fed. Cas. 755 (1843).

Vague parol statements about the condition of the bankrupt's books of account will not justify the court in refusing a discharge; the evidence must be conclusive. In re Batchelder, 1 Low. 373; 2 Fed. Cas. 1012. Notwithstanding only one partner was responsible for the failure to keep proper books of account, a discharge will be refused to both. In re George et al., 1 Low. 409; 10 Fed. Cas. 193.

A memorandum-book in which the bankrupt kept the time of employees was held not to be " proper books of account" under the Act of 1867. In re Garrison, 5 Ben. 430; 10 Fed. Cas. 49.

· Proper books of account" need not be in any particular form; but they must be sufficient to show the condition of the bankrupt's affairs. In re Gay, 1 Hask. 108; 10 Fed. Cas. 105.

A bankrupt who conducted a strictly cash business, which had been closed out several months before the filing of his petition, was granted a discharge, notwithstanding he had failed to keep any books of account. In re Keach, 1 Low. 335; 14 Fed. Cas. 156.

It will not excuse a debtor who has failed to keep proper books of account that the failure was entirely due to his bookkeeper. In re Hammond et al., 1 Low. 381; 11 Fed. Cas. 380.

Books of account were held to be sufficient that presented a true account of his business, and not of his personal expenses. In re McCarthy, 15 Alb. L. J. 293; 15 Fed. Cas. 1252.

The cash-book of the bankrupt firm failed to show in an intelligible or proper manner the nature and character of the receipts and disbursements entered in it. A discharge was refused. In re Mackay et al., 4 N. B. R. 66; 16 Fed. Cas. 156.

Miscellaneous.

When a bankrupt's discharge is refused, a creditor who has proved his debt is restored to his former rights and remedies. Dingee v. Becker, 9 N. B. R. 508; 7 Fed. Cas. 724.

A discharge in bankruptcy cannot be set up in support of an injunetion to restrain the enforcement of a judgment in a state court; it should have been pleaded in bar to the action. Goodrich v. Hunton, 2 Woods, 137; 10 Fed. Cas. 608.

A discharge in bankruptcy after an attachment, but before judgment, can be pleaded in bar, so as to prevent the attaching creditor from perfecting his attachment by a judgment. Ex parte Foster, 2 Story, 131; 9 Fed. Cas. 508.

A verified answer in a suit in equity by the bankrupt may be used against him in bankruptcy. Anon., 1 N. Y. Leg. Obs. 349; 1 Fed. Cas. 1015 (1843).

The record is conclusive of the jurisdiction of a court in bankruptcy unless attacked by a direct proceeding. Until the decree has been set aside in such a proceeding, the discharge of a bankrupt cannot be opposed on the ground that the statements in the petition as to residence are untrue. In re Ives et al., 5 Dill. 146; 13 Fed. Cas. 181.

A discharge does not in any manner reinvest the bankrupt with control of the estate which he has surrendered in bankruptcy. In re Anderson, 2 Hughes, 378; 1 Fed. Cas. 831.

The presumption is that a bankrupt upon his discharge has taken the final oath required, when such oath is not found of record. In re Young, 3 Dill. 239; 30 Fed. Cas. 865 (1875).

A plea of discharge under the Act of 1841 which set out the certificate and discharge was held to be good. White v. Howe et al., 3 McLean, 291; 29 Fed. Cas. 1019 (1842).

A discharge in bankruptcy is waived by failure to plead it. Fowle v. Parke, 48 Fed. Rep. 789.

Courts of law or equity will not take notice of a discharge in bankruptcy as a defense unless it is pleaded. It cannot be taken advantage of by motion and affidavit. Fellows et al. v. Hall et al., 3 McLean, 281; 8 Fed. Cas. 1132 (1843).

The discharge of an assignee in bankruptcy does not deprive the court of its jurisdiction to grant a discharge to the bankrupt. In re Forsyth, 4 Fed. Rep. 629.

In an action at law the defendant pleaded a discharge in bankruptcy. The reply set forth that the court of bankruptcy had no jurisdiction. The court held that the court had general jurisdiction in bankruptcy, and as the record showed jurisdiction, it should not be impeached when introduced collaterally. The plaintiff then offered evidence of fraud under a general allegation, and the court held that specific acts must be alleged so as to give notice to the bankrupt. Lathrop v. Stewart, 6 McLean, 630; 14 Fed. Cas. 1185 (1855); Lathrop v. Stuart, 5 McLean, 167; 14 Fed. Cas. 1185 (1850).

An omission to enter an order refusing a discharge may be corrected nunc pro tunc, but not to the prejudice of any intervening rights of third persons. In re Drisco, 14 N. B. R. 541; 2 Low. 430; 7 Fed. Cas. 1092, 1104.

[As to a discharge by proceedings for a composition, see notes under section 12, subhead,, "Effect of Confirmation."]

REVOCATION.

§ 15. Discharges, when Revoked.—(a.) The judge may, upon the application of parties in interest who have not been guilty of undue laches, filed at any time within one year after a discharge shall have been granted, revoke it upon a trial if it shall be made to appear that it was obtained through the fraud of the bankrupt, and that the knowledge of the fraud has come to the petitioners since the granting of the discharge, and that the actual facts did not warrant the discharge.

A discharge under the Act of 1867 was annulled upon evidence that the consent of a creditor was obtained by a promise that his debt should be paid in full. In re Marshal, 3 Fed. Rep. 220.

A corporation was declared bankrupt upon its own petition. A year later a stockholder who had knowledge of the facts, filed a petition to have the proceedings vacated. The petition was denied on the ground of laches. In re Balt. Co. D. Ass'n, 2 Hughes, 259; 2 Fed. Cas. 572.

H. received his final discharge in May, 1869. In February, 1871, two creditors applied to have the discharge set aside, and proved that H. had willfully omitted them from his schedules of creditors and liabilities, and that they had no knowledge of said fact until after the granting of the discharge. The discharge was set aside. In re Herrick, 7 N. B. R. 341; 12 Fed. Cas. 41.

A surety of the bankrupt on a bond to dissolve an attachment, paid the debt of a creditor for the purpose of preventing his opposition to the discharge. This having been done without the knowledge of the bankrupt, it was held that it would not invalidate the discharge. Ex parte Briggs, 2 Low. 389; 4 Fed. Cas. 113.

The court refused to revoke a discharge which was inadvertently granted when the application was not made until the time had expired for a review by the circuit court, and the bankrupt had engaged in new business and contracted new debts. In re Buchstein, 9 Ben. 215; 4 Fed. Cas. 540.

The knowledge that is sufficient to bar a creditor's right to move for the revocation of a discharge must be such that he could have availed himself of it before the return day of the order to show cause why the discharge should not be granted. In re Fowler, 2 Low. 122; 9 Fed. Cas. 615.

Creditors petitioned to have the discharge of the bankrupt set aside on the ground of errors by the court, and fraud. It appeared that while the court below erred in some of its rulings, the errors did not operate to the damage of the petitioning creditors; also that the evidence offered in proof of the charges of fraud was inadmissible. The petition was dismissed by the district court, and its action was sustained by the circuit court on review. Marionneaux's Case, 1 Woods, 37; 16 Fed. Cas. 754. The court refused to vacate an adjudication on an application made nearly one year after it had been entered, and decided that the cir