§ 8.] Can a Discharge be Granted After the Death of a Bankrupt?

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.

Analogous Provisions of Former Acts.—

R. S., section 5090; act of 1867, section 12; act of 1800, section 45.

No Abatement. The former act provided that the proceedings should not be abated by the death of the bankrupt after the issuing of the warrant which followed the adjudication. Under the present act, proceedings do not abate if they have been commenced, that is, if the petition has been filed. Proceedings against a partnership do not abate by reason of the death of one partner, and it was held under the former act that they did not, even if the death occurred before the adjudication. (Hunt v. Pooke, Fed. Cas. 6,896; 5 N. B. R. 161. Compare Ex p. Hall, 1 De Gex, 332.)

Can a Discharge be Granted After the Death of a Bankrupt?— By the former act it was provided that one could not obtain a discharge without taking certain oaths. It was held that the word "proceedings," in the section providing that proceedings should not be abated by the death of the bankrupt, did not include a discharge, that is, that it did not include any proceeding unless there could be a compliance with the requirements of the act, and that as a deceased bankrupt could not take the oaths which entitled him to a discharge, his personal representatives could not continue that special proceeding and obtain a discharge.

But even under the Act of 1867 it was held that if the bankrupt died after his uncontested application for discharge had been submitted to the court a discharge might be entered nunc pro tunc as of the date when the report of the register was filed. (Young v. Ridenbaugh, 11 N. B. R. 563; 2 Dill. 239; Fed Cas. 18,173.) Under the present Act as there are no statutory provisions requiring that an application for discharge shall be verified, there

Dower Rights, etc.- Protection and Detention of Bankrupts. [Ch. III

is no obstacle in the way of personal representatives procuring a discharge of the estate of the bankrupt if they so desire, unless objections thereto are sustained.

Rights of Dower and Allowance. The provision in this section is a new enactment. But apart from statute, the wife's common law inchoate right of dower is no part of the estate of the husband and is not affected by proceedings in bankruptcy against him. (Porter v. Lazear, 109 U. S. 84.) There seems to be as yet no discussion on the rights of the surviving wife to any allowances which she may take under a State statute and which are not inchoate before the death of her husband. Where property of the husband has been disposed of by the trustee to purchasers during the lifetime of the husband it is presumable that no rights of the wife will attach except such as were inchoate prior to the husband's death. (Compare Hawk v. Hawk, 102 Fed. 679; 4 Am. B. R. 463.)

The last mentioned case holds the principle by analogy. In that case a wife who had begun proceedings for divorce but not yet obtained such divorce, it was held, could not enjoin the distribution of one-third of her husband's property as against his trustee in bankruptcy under a statute of the State of Arkansas providing that the wife when granted a divorce against her husband should be entitled to one-third of her husband's property.

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 Lankruptcy or engaged in the performance of a duty imposed by

this act.

b The judge may, at any time after the filing of a petition by or against a person, and before the expiration of one month after

៩ 9. ]

Purpose and Character of the Protection.

the qualification of the trustee, upon satisfactory proof by the affidavits of at least two persons that such bankrupt is about to leave the district in which he resides or has his principal place of business to avoid examination, and that his departure will defeat the proceedings in bankruptcy, issue a warrant to the marshal, directing him to bring such bankrupt forthwith before the court for examination. If upon hearing the evidence of the parties it shall appear to the court or a judge thereof that the allegations are true and that it is necessary, he shall order such marshal to keep such bankrupt in custody not exceeding ten days, but not imprison him, until he shall be examined and released or give bail conditioned for his appearance for examination, from time to time, not exceeding in all ten days, as required by the court, and for his obedience to all lawful orders made in reference thereto.

Analogous Provisions of Former Acts-As to protection from arrest: R. S. § 5107; act of 1867, § 26; act of 1800, §§ 22, 38, 60.

As to arrest of bankrupt: R. S. § 5024; act of 1867, § 40.

Purpose and Character of the Protection.-An examination of the section shows that one purpose of the protection afforded is to preserve unimpaired the authority of the bankrupt court over the subject-matter and also over the persons of the parties to the proceeding. This is shown by the exemption which allows an arrest under process from that court. It is further shown by the fact that an arrest founded upon a debt which would be released by a discharge cannot be made at any time; and still further shown by the fact that an arrest in an action whether founded upon a debt which would be released or not released by a discharge, cannot be made at times when it would interfere with proceedings in bankruptcy; that is, while the bankrupt is in attendance upon a court of bankruptcy or engaged in the performance of a duty imposed upon him by the bankruptcy law or by an order of the bankruptcy court. Protection from arrest in actions founded upon dischargeable debts is simply in accordance with the general scope and purpose of the Bankruptcy Act. Protection from arrest while performing duties required by the act or by orders of the court, is in accordance with the

Purpose and Character of the Protection.

[Ch. III.

general principle that courts will protect witnesses who come in obedience to their subpoena, and parties to actions pending before them, and officers who are obeying or serving their mandates, from arrest and from service upon them of summons or other process. The provisions of the Bankruptcy Act as to the protection of witnesses do not restrict the common-law rule. (Lamkin v. Starkey, 7 Hun, 479.) This right to protection extends not only to witnesses, but to persons appearing as parties, especially if they are parties defendant. It includes also the attorneys in fact for such parties. (Matthews v. Tufts, 87 N. Y. 568, citing Person v. Grier, 66 N. Y. 124; also Van Lieuw v. Johnson, decided by the New York Court of Appeals, March, 1871; Cole v. Hawkins, Andr. 275; s. c. 2 Str. 1094; Arding v. Flower, 8 T. R. 534; Miles v. McCullough, 1 Binn. 77; Hayes v. Shields, 2 Yeates, 222; Parker v. Hotchkiss, 1 Wall. Jr. 269; Juneau Bank v. McSpedan, 5 Biss. 64; Halsey v. Stewart, 1 South [N. J.], 366; Miller v. Dungan, 8 Vr. [N. J.] 182; in re Healey, 53 Vt. 694.) It includes parties attending bankruptcy proceedings simply as creditors. (Ex p. List, 2 Ves. & B. 373; Ex p. King, 7 Ves. Jr. 312; Selby v. Hills, 8 Bing. 166; Arding v. Flower, 8 T. R. 534; Matthew v. Tufts, 87 N. Y. 568.)

We have then two different kinds of protection from arrest: First, the protection from arrest while in attendance upon court, which we have seen is a common law right. And, second, the protection from arrest upon civil process from any State court upon a debt or claim from which a discharge in bankruptcy would be a release. It will be noticed upon examination that General Order 30 is apparently much broader than the statute in that it provides that a bankrupt may be released from any arrest in a civil action for the collection of a claim provable in bankruptcy. The apparent inconsistency between the Section and the General Order is perhaps best discussed in a quotation from the opinion of Judge Hook in the case of In re Baker (3 Am. B. R. 101; 96 Fed. 954), which is as follows:

"Secs. 752 and 753 of the Revised Statutes authorize the granting of the writ of habeas corpus where the prisoner in jail is in custody on violation of

the Constitution or of a law of the United States. General Order in Bankruptcy No. 30 supplements the statute, and among other things provides:

'If the petitioner, during the pendency of the proceedings in bankruptcy, be arrested or imprisoned upon process in any civil action, the District Court upon his application may issue a writ of habeas corpus to bring him before the court to ascertain whether such process has been issued for the collection of any claim provable in bankruptcy, and if so provable he shall be discharged; if not, he shall be remanded to the custody in which he may lawfully be.'

Sec. 9 of the Bankruptcy Act, in providing for exemption of the bankrupt from arrest upon civil process, makes an exemption when the process is 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.' It will be observed that the language of the order is more comprehensive than the terms of the statute. The former provides for the bankrupt's release upon habeas corpus if the arrest or imprisonment complained of is upon a claim provable in bankruptcy, while sec. 9 of the act permits of his arrest if it is based upon a debt or claim from which his discharge in bankruptcy would not be a release. A similar variance in phraseology existed between sec. 26 of the Bankruptcy Act of 1867 and No. 27 of the General Orders made pursuant to that act.

The concluding clause of sec. 26 of the Act of 1867 is as follows:

'No bankrupt shall be liable to arrest during the pendency of 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.'

General Order No. 30 under the Act of 1898 and No. 27 under the Act of 1867 are identical except in a single instance where the word 'referee' in the former replaces the word 'register' in the latter.

The order must yield to the terms of the statute and the test of the legality of the bankrupt's imprisonment is not whether the claim or demand upon which it is based is provable against the bankrupt's estate, but it is whether his discharge in bankruptcy would operate as a release of the claim or demand The decision of the courts under the Act of 1867 fully sustain this view. In re Robinson, 6 Blatch. 253; In re Patterson, 2 Ben. 155; In re Whitehouse, 1 Lowell, 429."

In a later case, (In re Lewensohn, 3 Am. B. R. 594; 99 Fed. 73,) Judge Brown of the Southern District of New York in discussing the question attempts to reconcile these provisions and also holds as will be seen from the following quotation that the protection may be granted upon terms.

"By section 9a, subd. 2, the bankrupt is declared entitled to be exempt from arrest on civil process, except upon a debt or claim from which his discharge would not be a release. This imports that the bankrupt shall not be exempt from arrest where the debt or claim would not be released by his dis