b The judge shall hear the application for a discharge, and such proofs and pleas as may be made in opposition

Any

of domicile be raised as an objection to a discharge (In re Mason [D. C.], 99 Fed. Rep. 256; in re Clisdell [D. C.], 101 Fed. Rep. 246), though if this ground existed, the creditors may again examine the bankrupt (See $7[9]), and if the evidence on such examination warrants, move to vacate the adjudication. ground warranting a refusal to discharge that is disclosed on the bankrupt's examination must be proved on the issue of a discharge by evidence other than that of the record of the examination, for that is not admissable on such an issue (In re Logan [D. C], 102 Fed. Rep. 876).

The specifications opposing a discharge may be filed by any creditor whose name is mentioned in the schedule, whether his claim is proved or not (In re Frice [D. C.]. 96 Fed. Rep. 611). Such specifications must be full, clear and distinct, and based upon the statutory grounds specified in the section under discussion (In re Hixon [D. C.], 1 N. B. News, 326; s. c. 93 Fed. Rep. 440; in re Thomas [D. C.], 1 N. B. News, 329; s. c. 92 Fed. Rep. 912; In re Holman [D. C.], 92 Fed Rep. 512; in re McGurn [D. C.], 102 Fed. Rep. 743) they must be as specific, definite and certain as a criminal complaint (In re Hirsch [D. C.], 96 Fed. Rep. 468; in re Peacock [D. C.], 101 Fed. Rep. 560; in re Pierce [D. C.], 103 Fed. Rep. 64), though it had been held, in one of the very earliest decisions under the Act, that the specifications are not subject to demurrer (Anon [D. C.], 1 N. B. News, 2). If the persons filing the specifications decline to produce proofs, other persons interested may do so (In re Houghton, 10 B. R. 337). When the objections raised to a discharge are overruled and a discharge ordered, the certificate thereof will not issue until the expiration of ten days after such order (In re Hirsch [D. C.], 96 Fed. Rep. 468).

Under the former Acts, it was held that where a member of a partnership filed an individual petition in which he asked for a discharge from all his provable debts, the same warranted a discharge from both individual and partnership liabilities (In re Pierson, 10 B. R. 107; Wilkins v. Davis, 15 B. R. 60; in re Downing, 3 B. R. 748; s. c. 1 Dill. 33; in re Stevens, 5 B. R. 112; s. c. I Saw. 397; in re Frear, 1 B. R. 660; in re Grady, 3 B. R. 227; in re Abbe, 2 B. R. 75; in re Leland, 5 B. R. 222; West Phila. Bank v. Gerry, 106 N. Y. 467). This rule met with opposition on the ground that partnership assets did not pass to the trustee (Crompton v. Conkling, 15 B. R. 417; Trimble v. More, 15 J. & S. [N. Y. Superior Ct.], 340; in re Shepard, 3 B. R. 172; in re Noonan, 10 B. R. 331). However forcible that objection might have been, it can hardly be tenable under the present Act, for ample provision is made to distribute among creditors every form of assets belonging to a bankrupt (See 85, 70). Notwithstanding, it has been held under the present Act that when the partnership as such is not in bankruptcy, individual members are not entitled to a discharge affecting firm debts (In re Meyers [D. C.], 96 Fed. Rep. 408. See also in re McFaun, subter). It would be difficult to harmonize such a holding with the spirit of the present Act, for a rule so broad would result in denying the benefits of the Act to individual members of a firm when it would be impracticable to procure an adjudication as to the firm. The better, and no doubt true rule, is that first stated, that on an individual petition, one is entitled to a discharge of both individual and firm debts. Such a discharge will be granted under the present Act, but the petition should set forth the names of the partners and pray for a discharge from firm debts; the schedule should list both the petitioner's individual property and debts, and the property and debts of the firm; notices to the creditors should inform them that firm debts are affected and that a discharge from their debts is prayed; and notices of the filing of the petition and creditors' meetings should be sent to the other partners of the firm (In re

thereto by parties in interest, at such time as will give parties in interest a reasonable opportunity to be fully heard,' and investigate the merits of the application, and discharge the applicant unless he has (1) committed an offense punishable by imprisonment as herein provided; or (2) with fraudulent intent to conceal his true

Laughlin [D. C.], 96 Fed. Rep. 589; in re Hartman [D. C.], 96 Fed. Rep. 593; in re McFaun [D. C.], 96 Fed. Rep. 592; in re Russel [D. C.], 97 Fed. Rep. 32).

When a firm is the bankrupt, the court may refuse it a discharge and grant a discharge to individuals of it, or vice versa (In re George & Proctor, 1 Lowell, 409; in re Schofield, 3 B. R. 551; in re Downing, 3 B. R. 748; Chemical Nat. Bank v. Meyer [D. C.], I N. B. News, 304; s. c. 92 Fed. Rep. 896). In view of this, the partnership petition for a discharge should incorporate a prayer for the individual discharge of the members composing the firm. The omission of such a prayer, however, is not fatal, since any individual member is entitled to file an individual application for a separate discharge the same as though an individual petition for adjudication had been filed (In re Meyers [D. C.], 97 Fed. Rep. 757).

When an issue on a discharge is referred to a referee to take testimony, his record should show the proceedings (Mahoney v. Ward [D. C.], 100 Fed. Rep. 278), and he should not only report the evidence and his rulings, but also findings and recommendations (In re Kaiser [D. C.], 99 Fed. Rep. 289), though he has no authority to grant a discharge (Anon [D C.], IN B. News, 2; in re McDuff [C. C. A.], 101 Fed. Rep. 241). A discharge will not relieve a bankrupt from the payment of a fine imposed by a court of law (In re O'Donnell [D. Č.], 1 N. B. News, 59), nor will it affect a lien acquired more than four months before the petition was filed (In re Blumberg [D. C.], 1 N. B. News, 258; s. c. 94 Fed. Rep. 476). To get the benefit of it, the discharged bankrupt must appear and plead it (In re Wesson [D. C.], 88 Fed. Rep. 855; in re Rhutassel [D. C.], 96 Fed. Rep. 597; in re Peacock [D. C.], 101 Fed. Rep. 560; in re Marshall Paper Co. [C. C. A.], 102 Fed. Rep. 872), the last case holding that a limited judgment might be taken against him in order to enforce a secondary liability.

1This hearing can only be had before the judge (838[4]), the referee not having power to grant discharges (Ruling by Judge Thompson: Anon, supra; in re McDuff, supra. See also 38 as to the jurisdiction of referees). The referee may issue the order fixing the time for the hearing (238; in re Gettleson, 1 B. R. 604; in re Bellamy, 1 B. R. 96; s. c. I Ben. 426), and give the notice required (858). The creditors are entitled to a notice in writing, mailed to them ten days before the hearing (858[2]), sent to such address as they may desire (Rule XXI), and to such other notice as the court shall direct (2586; 828). The right to appear at the hearing and object to the discharge is not limited to the creditors, but anyone having an interest may do so (In re Sheppard, 1 B. R. 439), even though the claim of the creditor so objecting be not yet proven (In re Book, 3 McLean, 317), whether it is contingent and unliquidated, or whether it is simply an interest in the surplus moneys and not against the bankrupt at all (In re Traphagan, 1 N. Y. Leg. Obs. 98).

The applicant only can be the bankrupt, or if a partnership, a member of it, and the offenses of which he may be guilty so far as his own estate is concerned and which are expressly punishable by imprisonment, are (a) knowingly and fraudulently concealing from his trustee property belonging to his estate, (b) making a false oath or account in relation to the proceedings in bankruptcy, or (c) extorting or attempting to extort money or property as a consideration for acting or forbearing to act in bankruptcy proceedings (8296 [1, 2, 5]). These are the

financial condition and in contemplation of bankruptcy, destroyed, concealed, or failed to keep books of account or records from which his true condition might be ascertained.'

only grounds, under this subdivision of the paragraph, which will authorize the court to refuse a discharge. It has been held, however, that a false oath made in the examination provided for in 87(9) is no ground for refusing a discharge as the testimony so given could not be used to convict him of the offense (In re Marx et al. [D. C.], 102 Fed. Rep. 676). The court may also punish by imprisonment one who is guilty of any other violation of the act (2[4, 13]), or who shall be adjudged guilty of contempt before referees (22 [13, 16], 841). The intention of Congress, however, was not to make the bankrupt's failure to perform the duties set out in 27, or the offenses punishable as contempts, grounds for a refusal to discharge. These were made grounds in the original draft of the bill that became the present law, but were stricken out before its passage as a consession to the opposition.

It has been held that the concealment must be actual and not constructive (Silverman v. Bagley, 3 Mass. 487), but this should be interpreted as embracing any fictitious or colorable alienation of property for the purpose of misleading as to the real ownership, or as to interests therein belonging to the bankrupt (In re Williams, 3 B. R. 286; s. c. 1 Lowell, 406; O'Neill v. Glover, 5 Gray, 144; in re Hussman, 2 B. R. 437; in re Welch [D. C.], 100 Fed. Rep. 65; in re Quackenbush [D. C.], 102 Fed. Rep. 282; in re Hoffman [D. C.], 102 Fed. Rep. 979). It will be a concealment within the meaning of this act to omit from the schedule of assets certain of his property, especially where the bankrupt testified falsely as to the ownership of his business (In re Lowenstein [D. C.], 1 N. B. News, 329), or when property which is shown to have been in his possession some months before his bankruptcy disappears without a reasonable explanation (In re Finkelstein [D. C.], 101 Fed. Rep. 418). This is especially true when the bankrupt's books of account which were in his possession at the time of bankruptcy have been intentionally suppressed or mutilated (In re Mendelsohn [D. C.], 102 Fed. Rep. 219), or as to assets which vest in the trustee (In re Roy [D. C.], 96 Fed. Rep. 400). A bankrupt, however, will not be considered as making a false oath in swearing to a schedule from which assets are omitted through mistake or inadvertence, the same being, therefore, no ground for refusing a discharge (In re Crenshaw [D. C.], 95 Fed. Rep. 632); in re Roy [D. C.], 96 F. R. 400; in re Hirsch [D C.], 96 Fed. Rep. 468), or having listed all his property in his schedules, affixed thereto a valuation placed thereon by appraisers several years before, though such value be much below its present market value (In re McBryde [D. C.], 99 Fed. Rep. 686), nor in making an affidavit that he cannot obtain the sum required for filing fees, though friends would have advanced the amount if requested, he not being required to solicit loans for that purpose, to pay it out of his exemptions, or out of money earned after filing his petition (Sellers v. Bell [C. C. A.1, 94 Fed. Rep. 801). Neither is the fact that a debt was created by fraud or false representations a ground for opposing a discharge (In re Black [D. C.], 97 Fed. Rep. 493; in re Peacock [D. C.], 101 Fed. Rep. 560), the scope of the discharge being a matter for after consideration if questions relative to it arise (In re Mussey [D. C ], 99 Fed Rep. 71).

1The fraudulent intent and contemplation of bankruptcy must both be proved (In re Marston, 5 Ben. 313), for they are questions of fact which the courts will not infer. (See notes to 23 a and b.) The "contemplation of bankruptcy," as used in this section means an intention to become a voluntary bankrupt, or the doing of an act enabling creditors to obtain an involuntary adjudication in accordance

c The confirmation of a composition shall discharge the bankrupt from his debts, other than those agreed to be paid by the terms of the composition and those not affected by a discharge.'

SEC. 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

with the provisions of a law in existence at the time of the "contemplation" (In re Carmichael [D. C.], 96 Fed. Rep. 594; in re Hirsch [D. C.], 96 Fed. Rep. 468).

Books need not be kept in any particular form; memoranda, receipts, etc., showing payments, assets and liabilities, as well as stock on hand seem to be sufficient (In re Mackay, 4 B. R. 66; in re Solomon, 2 B. R. 285; in re Newman, 2 B. R. 302; s. c. 3 Ben 20; in re Bellis & Milligan, 3 B. R. 496; s. c. 4 Ben. 53; in re Holtz [D. C.], 1 N. B. News, 204). The creditors who oppose a discharge for failure to keep books, must prove that the failure was "with fraudulent intent to conceal his [bankrupt's] true financial condition" (In re Schertzer [D. C.], 99 Fed. Rep. 706). The failure to keep books of account regarding property bought with money obtained by surrendering policies of life insurance payable to his wife, is no ground for refusing the bankrupt's discharge, for the reason that such property belongs to his wife (In re Dews [D. C.], I N. B. News, 411). Neither is the destruction or concealment of books, or failure to keep them prior to the passage of the act, grounds of opposition (In re Shorer [D. C.], i N. B. News, 331; in re Cohn [D. C.], 1 N. B. News, 330; in re Holman [D. C.], 92 Fed. Rep. 512; in re Shorer [D. C.], 96 Fed. Rep. 90; in re Stark [D. C.], 96 Fed. Rep. 88, 90; in re Hirsch D. C., 96 Fed. Rep. 468), or a failure to keep them properly subsequently thereto, if the evidence does not show his failure to be with a fraudulent intent to conceal his financial condition in contemplation of bankruptcy (In re Brice [D. C.], 102 Fed. Rep. 114). In all cases, the party opposing a discharge has the burden of proving or establishing the grounds of opposition set out in his specifications (In re Hirsch [D. C.], 97 Fed. Rep. 571; in re Phillips et al. [D. C.], 98 Fed. Rep. 844). The form of a discharge should be made to cover the individual or firm liabilities, or both if a firm is in bankruptcy (In re Gay et al. [D. C.], 98 Fed. Rep. 870), without any reservation relative to debts which may not be affected by the discharge, the scope of the discharge to be determined in the future when the question relative to such debts arises (In re Mussey [D. C.], 99 Fed. Rep. 71). 1See 12 and notes as to confirmation of compositions.

2 Laches has been defined "as such neglect or omission to assert a right, as taken in conjunction with lapse of time, more or less great, and other circumstances causing prejudice to an adverse party, operates as a bar in a court of equity." As no one is ever required by law or equity to do the impossible, it follows that before one can be charged with laches, he must have neglected to assert his right after he had knowledge of it. He must do so, however, within the year. If he does not do so, he will then be barred, not by laches, but by the statutory limitation. For a full discussion of the subject of laches, see 12 Am. & Eng. Ency. of Law, 533-550. Also in re Buchstein, 17 B. R. 1; U. S. Bank v. Cooper, 20 Wall. 171; Littlefield v. Delaware & Hudson Canal Co., B. R. 257.

4

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.'

SEC. 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.2

The Court of Bankruptcy has exclusive jurisdiction to revoke a discharge regular on its face (Corey v. Ripley, 4 B. R. 503; s. c. 57 Me. 69; Dudley v. Mayhew, 3 N. Y. 10; Stevens v. Evans, 2 Barr, 1157; Beston v. Shaw, 1 Met. 130; Com. Bank of Manchester v. Buckner, 20 How. 108; Stetson v. Bangor, 56 Me. 286; Sturgis v. Crowinshield, 4 Wheat. 122), and that jurisdiction can be exercised only on applications filed within the period of limitation fixed by the statute-one year after the discharge (Corey v. Ripley, 4 B. R. 503; Way v Howe, 4 B. R. 677; s. c. 108 Mass. 502; Hudson v. Bingham, 8 B. R. 494; S. c. 12 A. L. Reg. 637; Altson v. Robinett, 9 B. R. 74; s. c. 37 Tex. 56; Reed v. Bullington, 11 B. R. 408; s. c. 49 Miss. 223; Stevens v. Brown, 11 B. R. 568; s. c. 49 Miss. 597; Smith v. Ramsey, 15 B. R. 447; s. c. 27 Ohio St. 339; Symonds v. Barnes, 6 B. R. 377; s. c. 59 Me. 191; Burper v. Sparhawk, 4 B. R. 685; s. c. 108 Mass. 111; Payne v. Able, 4 B. R. 220; s. c. 7 Bush [Ky.], 344; Black v. Blazo, 13 B. R. 195; s. c. 117 Mass. 17; Bank v Olcott, 46 N. Y. 12; Parker v. Atwood, 52 N. H. 181; Oates v. Parrish, 47 Ala. 157; Seymour v. Street, 5 Neb. 85; Stern v. Nussbaum, 5 Daly [N. Y.], 382; in re Archenbrown, 11 B. R. 149; Pickett v. McGavitt, 14 B. R. 236; Commercial Bank of Manchester v. Buckner, 20 How. 108). When the petition shows that the bankrupt concealed assets, swearing falsely to his schedules, it establishes a prima facie case and will be referred to the referee to take proofs, upon due notice to the bankrupt (In re Meyers [D. C.], 100 Fed. Rep. 775).

2A discharge is a personal release and it cannot be pleaded as a defense by one to whom the bankrupt has fraudulently conveyed property so as to defeat a judgment creditor's suit against him and the bankrupt, when the latter fails to appear and plead his discharge (Moyer v. Dewey, 103 U. S. 301). The surety on a bail bond, however, is at liberty to plead the discharge within the time he is entitled to surrender the principal (Richardson v. McIntyre, 4 Wash. C. C. 412; Kane v. Ingraham, 2 Johns. Cas. 403; Hayton v. Wilkinson, 1 Hall's Am. L. J. 260; Olcott v. Lilly, 4 Johns. 407; Thorne v. Brown, 9 Watts, 288). This is on the theory that the liability has not become fixed by the happening of the contingency specified in the bond; and when that is true of other bonds, the same rule will undoubtedly be applied (Wolf v. Stix, 99 U. S. 1; Carpenter v. Terrill, 100 Mass. 450; Hamilton v. Bryant, 14 B. R. 479; s. c. 114 Mass. 543; Braley v. Boomer, 12 B. R. 303; s. c. 116 Mass. 527; Johnson v. Collins, 12 B. R. 70; s. c. 117 Mass. 343; Odell v. Wootten, 4 B. R. 183; s. c. 38 Geo. 225), though if the bond is in the nature of a substituted security, such as a bond given to dissolve an attachment, or a replevin bond, it has been said that the court will not permit the surety to plead the bankrupt's discharge, but will proceed to judgment for the purpose of holding the surety (In re Marshall Paper Co. [C. C. A.], 102 Fed. Rep. 872; Holyoke v. Adams, 10 B. R. 270; s. c. 1 Hun. [N. Y.], 223; [affirmed] 59 N. Y. 233; McCombs v. Allen, 18 Hun. 190; [affirmed] 82 N. Y. 114; Bond v. Gardner, 4 Binn. 269; in re Albrecht, 17 B. R. 287; Hill v. Harding, 107 U. S. 631) The same is also the rule as to appeal bonds where the appellate court admits supplemental pleading; but where that court will not entertain such pleadings, and no matter outside the