cumstances of the case, recited in the report, did not excuse the delay. In re Meade, 19 N. B. R. 335; 16 Fed. Cas. 1281.

It will not be presumed in the circuit court, as a ground for reversing the order granting the discharge, that the bankrupt and his wife were not examined, from the fact that the record failed to show it, there having been an order directing such examination. The register's certificate is not necessary to the bankrupt's discharge. Huntington v. Saunders, 64 Fed. Rep. 476.

The general principle is that jurisdictional facts will be presumed in favor of the jurisdiction; and the court refused to entertain an application to annul a discharge on the ground that one of the members of the bankrupt firm did not reside within the district, and the firm did not do business therein. Allen v. Thompson, 10 Fed. Rep. 116.

A creditor who had proved his debt against the bankrupt and received his dividend filed a bill in the circuit court to vacate the discharge on the ground of fraud. It was held that the circuit court had no power to entertain such a bill; that the district court in which the adjudication was had had jurisdiction, and the court considered without deciding whether the circuit court could entertain jurisdiction of such a bill by one who was not a party to the proceedings. Commercial Bank v. Buckner, 20 How. 108.

The court refused to allow a creditor who was contesting the validity of a discharge to amend his petition by adding another specification, the discharge having been granted two years previously. In re Simms, 9 Fed. Rep. 440.

It is not necessary that a creditor should have proved his debt to enable him to proceed for the annulment of a discharge. In re Douglass, 11 Fed. Rep. 403.

In this case a certificate of discharge was vacated for the want of a notice to creditors under section 5109, R. S. Allen v. Thompson, 10 Fed. Rep. 116.

In a proceeding to annul a discharge in bankruptcy (section 5120, R. S.), costs may be awarded to the prevailing party. In re Holgate, 8 Ben. 255; 12 Fed. Cas. 335.

The limitation in the Act of 1867 (section 5120, R. S.), is absolute, and the time begins to run from the date of the discharge, and not from the discovery of the alleged fraud. In re Brown, 19 N. B. R. 312; 4 Fed. Cas. 338.

Under the Act of 1867, it was necessary that a suit to set aside the discharge of a bankrupt should be commenced within two years. Pickett v. McGavick, 14 N. B. R. 236; 19 Fed. Cas. 588.

The period of limitation to a petition to vacate a discharge begins from the date of discharge, and not from the discovery of the fraud on which it is based. Mall & Co. v. Ullrich, 37 Fed. Rep. 653.

In support of a motion to set aside a discharge, it is not competent to prove acts not set forth in the specifications. Tenny et al. v. Collins, 4 N. B. R. 477; 23 Fed. Cas. 848.

A bankrupt had sold his farm to his father-in-law, who deeded it back to the bankrupt's wife for a nominal consideration. The deeds were not recorded. The wife stated to him that both deeds were burned, and he repeated this statement to creditors and procured credit on such representation. Later, the deeds were placed on record. In filing a petition in bankruptcy he omitted the property from his schedules. Upon the facts stated the court held that he had been guilty of concealment and perjury, and the discharge was set aside. In re Rainsford, 5 N. B. R. 381; 20 Fed. Cas. 188.

When a creditor filed specifications in opposition to the discharge of a bankrupt which were decided to be too vague, and he did not seek to amend, and a discharge was granted, and one month later he applied to have it set aside, the court held that he was guilty of laches. In re McIntire, 2 Ben. 345; 16 Fed. Cas. 150.

CO-DEBTORS AND SURETIES.

16. Co-Debtors of Bankrupts.- (a.) The liability of a person who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt.

The acceptance of a composition in bankruptcy proceedings against the principal does not discharge a collateral liability for the same debt. In re Burchell, 4 Fed. Rep. 406.

"Neither the discharge of the bankrupt, nor any step taken by the creditor in the course of the proceedings in bankruptcy in regard to his debt against the bankrupt, can have the effect to release, discharge, or affect any person liable for the same debt for or with the bankrupt either as partner, joint contractor, indorser, surety or otherwise." In re Levy et al., 2 Ben. 169; 15 Fed. Cas. 431.

A debtor, who had been arrested in a civil action, gave a bond with sureties. Thereafter, he received a discharge in bankruptcy. It was held under the Act of 1867 (section 5067, R. S.), that the discharge released the judgment and the obligation of the sureties on the bond, and that the arrest did not afford any lien which was not released by such discharge. Long v. Dickerson, 15 Blatchf. 459; 15 Fed. Cas. 825.

DEBTS NOT Affected.

§ 17. Debts not Affected by a Discharge.- (a.) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as

(1.) Are due as a tax levied by the United States, the State, county, district, or municipality in which he resides;

(2.) Are judgments in actions for frauds, or obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another;

(3.) Have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy; or

(4.) Were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity.

Claims of the United States.

Claims of the United States are not barred by a discharge in bankruptcy, and must be paid in full. In re Huddell et al., 47 Fed. Rep. 206. Justice Bradley expressed the opinion that the federal government is not bound by a discharge under the Bankrupt Act. U. S. v. The Rob Roy, 1 Woods, 42; 27 Fed. Cas. 873.

Held, under the Act of 1800, that a debt due the United States on a custom-house bond was not barred by a discharge in bankruptcy. U. S. v. King, Wall. Sr. 13; 26 Fed. Cas. 788 (1802).

Held, that the obligation of a surety on the bond of a collector of internal revenue was released by a discharge in bankruptcy. U. S. v. Throckmorton et al., 8 N. B. R. 309; 28 Fed. Cas. 158.

Where the United States proved its debt against a bankrupt and maintained the priority of its claim, it was held that the debt was nevertheless not discharged under the Act of 1867. U. S. v. Herron, 20 Wall. 251.

A discharge under the Bankrupt Act of 1841 was held to cover a debt due the United States on account of customs duties. U. S. v. Zerega, 28 Fed. Cas. 804 (1856).

The surety of a postmaster was held to be entitled to a discharge under the Bankrupt Act of 1841, and may plead his discharge in bar of a suit by the government. U. S v. Davis, 3 McLean, 483; 25 Fed. Cas. 780 (1844).

[But observe that by the language of the above section, the exception is limited to taxes "levied by the United States," etc.]

Debts Created by Fraud.

The Act of 1867 excepted debts incurred by fraud from a discharge in bankruptcy. Held, that the word means actual fraud and such as involves moral turpitude. Neil v. Clark, 95 U. S. 704; Strang v. Bradner, 114 id. 555.

Construing the word "fraud" as found in section 5117, R. S., the supreme court held that it means an act involving moral turpitude or intentional wrongdoing, and not merely a fraud in law. Noble v. Hammond, 129 U. S. 65.

A discharge in bankruptcy does not release a debt incurred by fraud, notwithstanding it was proved and a dividend paid upon it. Neil v. Clark, 95 U. S. 704; Strang v. Bradner, 114 id. 555.

A debt created by fraud, but reduced to a judgment for money only, is not covered by a discharge in bankruptcy. Warner v. Cronkhite, 6 Biss. 453; 29 Fed. Cas. 243.

A suit by a purchaser of land sold by an assignee of the bankrupt against a grantee under a conveyance that is a fraud on creditors is not barred by a discharge in bankruptcy. Bartles v. Gibson, 17 Fed. Rep. 293.

In deciding whether a debt was contracted by fraud, the district court is not bound by the decision of a state court, but may consider all legal evidence. In re Alsberg, 16 N. B. R. 116; 1 Fed. Cas. 557.

In determining whether a debt is discharged in bankruptcy, a fraud committed by one partner in conducting the business of the firm is chargeable to the firm, though the other members were in fact ignorant of it. Strang v. Bradner, 114 U. S. 555.

Where a person had collected money for another, and involuntary proceedings were commenced against him before he pays it, it was held that the indebtedness was not created by fraud, embezzlement or in a fiduciary capacity within the exception in section 5117, R. S. Noble v. Hammond, 129 U. S. 65.

A plea of discharge in bankruptcy will not be sustained against a bill in equity to rescind a contract on the ground of fraud. Smith v. Babcock et al., 2 Woodb. & M. 246; 22 Fed. Cas. 432.

A bankrupt having bought from his assignee a judgment against another bankrupt who has been discharged, it was held that the purchase carried the assignee's title, and the judgment being based on a fraudulent conversion, the discharge in bankruptcy was no bar to its enforcement and collection in full, although the purchaser was a codefendant in the judgment. Balliet v. Seeley, 34 Fed. Rep. 300.

A creditor whose claim was created by a fraud, proved it in bankruptcy and received a dividend. It was held that he did not thereby waive his right to bring an action for the balance of the debt. In re Clews, 19 N. B. R. 109; 5 Fed. Cas. 1047.

A judgment had been entered against the bankrupt before the commencement of proceedings, but an appeal from an order of arrest on the ground that the debt was fraudulently created was determined after the filing of the petition, and the order of arrest affirmed. It was held that the debt would not be discharged in bankruptcy, notwithstanding it was in judgment, and that an execution would not be stayed under the Act of 1867 (section 5106, R. S.) In re Pitts, 19 N. B. R. 63; 19 Fed. Cas. 750.

A debt is "created by fraud" within the meaning of the Act of 1867, when the debtor contracted it without intending to pay it in whole or in part. Under the terms of that law the bankrupt is not entitled to a discharge as to such a debt. In re Alsberg, 16 N. B. R. 116; 1 Fed. Cas. 557.

A bankrupt is not released by his discharge from a claim in equity to rescind a contract on the ground of fraud. Doggett v. Emerson, 1 Woodb. & M. 195; 7 Fed. Cas. 821 (1846).

Debts created by fraud are not affected by a discharge in bankruptcy; hence they cannot be used as grounds for opposing a discharge. In re Bashford, 2 N. B. R. 72; 2 Fed. Cas. 1004.

The provisions of a composition will not be enforced by the court of bankruptcy against a creditor who has obtained a judgment by default in a state court upon a debt contracted by fraud, inasmuch as the debt would not be affected by the discharge. In re Tooker, 8 Ben. 390; 24 Fed. Cas. 51.

Fiduciary Debts.

An indebtedness by a bankrupt as guardian, being a fiduciary demand, is not affected by his discharge in bankruptcy. In re Maybin, 15 N. B. R. 468; 16 Fed. Cas. 121.

A discharge in a general form does not affect fiduciary debts, unless they have been proved in the proceedings. In re Tebbetts, 5 Law Rep. 259; 23 Fed. Cas. 826 (1842).

The obligation of a surety on a guardian's bond is not a fiduciary debt, and is covered by a discharge in bankruptcy. Ex parte Taylor, 1 Hughes, 617; 23 Fed. Cas. 727.

The office of register of the land office was held to be "fiduciary " under the Bankruptcy Act of 1841. Ex parte Wright, 1 West. L. J. 143; 30 Fed. Cas. 655 (1843).

Under the Act of 1800, a bankrupt could be discharged from other debts, notwithstanding the existence of fiduciary debts incurred before the passage of the Act. Chapman v. Forsyth, 2 How. 202.

A pledgee who hypothecates the pledged property to secure a debt due from himself, and fails to return it to the original pledgor, does not thereby create a debt by fraud, or in a fiduciary capacity. Hennequin v. Clews, 111 U. S. 676.

To establish a fiduciary character within the meaning of the Bankrupt Act, there must be something more than circumstances under which a trust or confidence is reposed in the debtor according to the popular acceptance of the term. Upshur v. Brisco, 138 U. S. 365.

The bankrupt had constituted the defendant his attorney to pay the former's wife an annual sum. The defendant accepted the mandate, and became a surety for the payments as provided in the power of attorney. Later, the defendant received his discharge in bankruptcy. Held, that the claim of the wife was not fiduciary, and that the obligation was released by the discharge. Ibid.

A fiduciary creditor who proves his debts and participates in the dividends cannot prosecute any other remedy. In re Tebbetts, 5 Law Rep. 259; 23 Fed. Cas. 826 (1842).

A fiduciary creditor may at his election prove his claim in bankruptcy and share in the dividends. If he does not elect to do so, his debt is not affected by the discharge. In re Brown, 5 Law Rep. 258; 4 Fed. Cas. 333 (1842).

Where certain produce had been sent to the bankrupt to be sold on commission, and he had sold it, but failed to remit the proceeds, and was