now attained in a more regular way by prohibiting vexatious suits 1

Such a petition is refused when some equitable ground is shown against it, by a change in the situation, as where a garnishee process has been discharged by the proof, and the garnishee has paid over the funds to the assignees; or where the proving creditor has taken an active part in the proceedings so as to affect by his vote the choice of assignees or the discharge of the bankrupt, or where he desires to make use of some inequitable power.2 But merely voting for assignee will not have this effect.3

The general practice of permitting a withdrawal is so well established, that courts of law have several times taken for granted that the permission in a given case was a mere form, and have proceeded as if it had been obtained.

Debts § 218. Expunging, reducing, and amending Proofs. are usually proved ex parte, and this is much the more convenient method. It results from this practice that creditors or other persons interested may move to diminish or expunge proofs. There is no limit of time within which such a motion must be made. It has often happened that a defect in a debt. is discovered after a dividend has been paid; and the court has power, in such case, to order it to be refunded. As in withdrawing, so in amending proofs, the proving creditor is permitted to change from joint to separate and the reverse, or to amend; terms will, of course, be imposed, such as refunding dividends.5

But a great lapse of time, especially if there may have been

1 Robson, 7th ed., p. 382; Act of 1867, § 21; 14 Stat. 526; R. S. § 5106.

2 See Hooker v. Olmstead, 6 Pick. 481; N. Bedf. Inst. v. Fairhaven Bank, 9 Allen, 175; Couldery r. Bartrum, 19 Ch. D. 394; Ex parte Solomon, 1 Gl. & J. 25; Stewart v. Isidor, 1 N. B. R. 485; Re Bloss, 4 N. B. R. 147, Fed. Cas. No. 1562.

Re Schofield, 12 Ch. D. 337, per

James, L. J., p. 345; Franklin County Bank v. Greenfield Bank, 138 Mass. 515.

4 See Bemis v. Smith, 10 Met. 194.

5 Ex parte Capot, 1 Atk. 218; Ex parte Bolton, 2 Rose, 389; Ex parte Morris, 16 N. B. R. 572, Fed. Cas. No. 9823; Re Parkes, 10 N. B. R. 82, Fed. Cas. No. 10,754; Re Baxter, 12 Fed Rep. 72.

loss of evidence, or if dividends have been paid long before, will authorize the court to refuse to expunge.1

A debt which has been rejected cannot be proved excepting in the ordinary way of appeal, of which a striking example is found in Phosphate Co. v. Molleson,2 already mentioned.

But when a remedial statute was passed admitting a new class of debts, one of this class was permitted to be proved, though it had once been disallowed. And the court would review a decree upon the discovery of fresh evidence of a character to authorize a new trial.

§ 219. Waiver of Action by Proof. Some statutes have provided that the proof should be, of itself, a waiver of all actions, and a surrender of all judgments in respect to the debt proved. These statutes had a meaning in England, because the law there gave a remedy for all proved debts much like a judgment, and even authorized the courts of bankruptcy, if the discharge was refused, to issue execution upon them as if they were judgments; and the assignees had a right to take all the after-acquired property of the bankrupt excepting wages up to the time of his discharge. These remedies took the place of ordinary judgments and executions, and rendered it unnecessary for the creditors to retain any right of action; because, if the discharge should be granted, it would be valueless, and, if not, these other remedies were as good, or better.

4

Two of our statutes copied these provisions, which are wholly inapplicable here; because a bankrupt, with us, owns all the property which he acquires after the proceedings are begun, and if he fails to obtain his discharge, the only remedy for the recovery of debts is by ordinary action. Therefore, to prohibit actions by his creditors, after a fair opportunity has been given him to obtain his discharge, and he has neglected to obtain it, or after it has been refused, is to give an undischarged bankrupt all the benefits of a discharge, so far as proved debts are concerned. For these reasons, Congress

1 Ex parte Bolton, 1 Dea. & Ch. 556.

2 4 App. Cas. 801.

8 Ex parte Lloyd, 17 Ves. 245.

4 Act of 1841, § 5; 5 Stat. 444; Act of 1867, § 21; 14 Stat. 526; R. S. § 5105. See Batchelder v. Batchelder, 20 Atl. Rep. 728 (N. H.).

found occasion to modify the law of 1867, so as to make it clear that the right of action should not be taken away if the discharge were refused.1

Proof waives any right the creditor may have to sue in tort, or to reclaim goods procured from him by fraud, if he proves for the price, or to insist that his debt shall not be discharged because the debtor was refused his discharge in an earlier bankruptcy; and, under the act of 1841, the holder of a fiduciary debt was obliged to elect, and if he proved, he lost his immunity from the operation of the discharge.3

So proof waives any security or set-off which has not been duly credited.*

In all these cases the waiver attaches only to the debt proved, and the creditor retains all his rights in respect to wholly distinct causes of action.5

§ 220. "Claims.” — A “ claim,” in bankruptcy, is a written notice filed with the proceedings that the claimant holds some contingent liability or other obligation against the bankrupt which is not yet ripe for proof, but which may become a debt hereafter. The word "claim" is often used, especially in this country, as synonymous with "demand," but its technical meaning is more restricted.

Filing a claim makes it irregular for the assignees to divide the whole property until the claim has been disposed of; but if the creditor cannot, or does not, turn it into a debt before the last dividend is ready to be paid, the assignees may have it expunged, unless, for cause, the court shall see fit to order a sum to be retained to meet it. Under one English statute a

1 Act of June 22, 1874, § 7; 18 Stat. 67 L. T. 232; Re Piers (1898), 1 Q. B. 179.

2 Ormsby v. Dearborn, 116 Mass. 386; Seavey v. Potter, 121 Mass. 297; Fisher v. Currier, 7 Met. 424; Gilbert v. Hebard, 8 Met. 129.

3 Chapman v. Forsyth, 2 How. 202. 4 Stammers v. Elliott, L. R. 3 Ch. 195; Armstrong v. Armstrong, L. R. 12 Eq. 614; Hooker v. Olmstead, 6 Pick. 481. [Except when the proof was made inadvertently in England. Re Clarke,

627.]

5 Ex parte Botterill, 1 Atk. 109; Ex parte Matthews, 3 Atk. 816; Ex parte Crinsoz, 1 Bro. C. C. 270.

6 Re Haytor Granite Co., L. R. 1 Ch. 77; Ex parte Simpson, 1 Atk. 70; Ex parte Williams, 4 Dea. & Ch. 180; Ex parte Barwis, 6 De G. M. & G. 762. See Act of 1867, § 27; 14 Stat. 529; R. S. § 5092.

7 See Robson, 7th ed., p. 607.

claim was disregarded unless turned into a debt within six months; in another, the court had discretion to expunge it after six months. In Massachusetts, in administration suits, four years was fixed, which was then the limit for actions against executors.1 If the estate turns out to be solvent, or if the claim is one which the statute absolutely protects, it is not to be expunged. On the other hand, if the statute peremptorily fixes the limit of delay, it must be expunged when that time has passed.

§ 221. Mode of Proof. -Most of the statutes provide that a debt offered for proof shall be drawn out with some formality, and be sworn to and filed.2

The oath should be by the creditor himself, unless prevented by absence or illness, and then by his clerk, agent, or attorney.3 One partner may make proof for all.4

In winding up corporations, no formal probate is required, unless called for by the liquidator or the court.5

The practice in respect to proofs has always been liberal and free from technicalities. Where strict formal proof would be difficult and expensive, it has often been dispensed with. Thus, a next friend has been permitted to prove on behalf of a married woman against her husband's estate, when, by law, they were one person. At present, in most of the States, she might make her own affidavit; so for a lunatic or person of weak mind, or old and ill.7

A bankrupt trustee may prove against his own estate; but the court will, on application, appoint some one to prove. One

1 Gen. Stats., c. 99, § 6.

2 Act of 1867, § 22; 14 Stat. 527; R. S. § 5077. Robson, 7th ed., p. 229. For proof under the act of 1898, see infra, § 520.

3 Re Barnes, 1 Lowell, 560, Fed. Cas. No. 1012; Re Jackson, 14 N. B. R. 449, Fed. Cas. No. 7123; Re Whyte, 9 N. B. R. 267, Fed. Cas. No. 17,606.

Ex parte Mitchell, 14 Ves. 597; Ex parte Hodgkinson, 19 Ves. 291.

5 Lindley, Companies, 5th ed., 713. 6 Ex parte Wells, 2 M. D. & De G.

7 Ex parte Maltby, 1 Rose, 387; Ex parte Bucknall, 12 L. J. (Bk.) 42; Ex parte Heald, ib. 37; Ex parte Oxtoby, De G. 453; Ex parte Clarke,

2 Russ. 575.

8 Orrett v. Corser, 21 Beav. 52; Ex parte Colman, 2 Dea. & Ch. 584; Ex parte Collingdon, Mont. & Ch. 156; Ex parte Strettell, ib. 165.

9 Ex parte Shaw, 1 Gl. & J. 127; Ex parte Vine, 1 Dea. & Ch. 357; Ex parte Shakeshaft, 3 Bro. C. C. 197; Ex parte Moody, 2 Rose, 413.

person has often been permitted to prove for a class of creditors; as a collector for the parish, or one parishioner for all;1 the admiral, for prize money due to all the officers and men of the fleet.2

§ 222. Creditors may oppose Proof of others. itor may contest the proof of every other creditor.3

Every cred

In several of the statutes this right is confined, by implication, to proof in the court of bankruptcy, an appeal being given only to the assignees. But in this, as in many other cases, the practice in bankruptcy authorizes the court to permit a creditor, at his own expense, to carry on proceedings in the name of the assignee, if probable cause be shown.

§ 223. Proof by Petitioning Creditor. A petitioning creditor, at whose suit the adjudication was made, must prove for his debt again, because every creditor has a right to object to the debt of every other creditor.5 This rule was established when the proceedings were ex parte; but it remains sound in all defaulted cases. If the adjudication has been contested, the only reason for requiring a fresh proof is, that the decree, though it establishes the debt, does not find its exact amount, but only that it comes up to the amount required for a valid petition.

§ 224. Proof of Bills and Notes. Bills and notes, and other evidences of debt, are filed in court with the proof in the United States;6 "exhibited" to the court, in England. They may be taken from the files here by leaving attested copies.

These papers should be produced when dividends are paid, as vouchers, and that the dividends may be indorsed on them.7

1 Ex parte Exleigh, 6 Ves. 811; Ex parte Child, 1 Atk. 111.

2 Ex parte Russel, 1 Mont. Dig. 115, cited in Eden, Bankruptcy, 2d ed., p. 102. See the case of Portsmouth Bank, cited in Re Rogers, Buck, 490.

Shewen v. Vanderhorst, 1 Russ. & M. 347; Owens v. Dickenson, Cr. & Ph. 48; Tomlin v. Tomlin, 1 Hare, 236; Chapman v. Haley, 43 N. H. 300; Farr v. Williams, 47 N. H. 560. See Hogan's Est., 181 Pa. St. 500.

Freeland v. Mechanics' Bank, 16 Gray, 137. See Coit v. Robinson, 19 Wall. 274, at p. 284; Wiswall v. Campbell, 93 U. S. 347; Huston v. Worthly, 83 Maine, 352.

6 Ex parte Rawson, Jac. 274.

6 Re Northern Iron Co., 14 N. B. R. 356, Fed. Cas. No. 10,322.

7 Ex parte Hossack, Buck, 390; Ex parte Petrie, L. R. 3 Ch. 232; Ex parte Jacobs, L. R. 17 Eq. 575. See infra, $ 520.