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plaintiff suing all the members of a firm one of whom is bankrupt may be required to stipulate not to take execution against the bankrupt if he should obtain his discharge, or, under the present practice, not to prosecute against him at all. So a solvent partner is barred from recovering of the bankrupt his proportion of the joint debts, because he might have paid them and then have proved for this share. Of course the debts themselves are discharged, else his right of contribution would be undoubted.

In this country opinions are not wholly agreed on this point, but the soundness of the English decisions is clear. We have already seen that the mode of settlement is the same whether one or more or all of the partners are bankrupt, and it follows that the effect of the discharge must be the same. Indeed, the statutes imply this result, when they declare, as several of them do, that the discharge of one partner shall not release his co-partners. The weight of authority in this country accords with the weight of reasoning. The cases and dicta opposed to this view are cited in the following note. Several of them decide that the discharge is restricted to separate debts when the bankrupt has omitted all mention of his co-partnership debts in his schedule, from which the courts have inferred that he did not seek a discharge from them.5 Such an omission, if fraudulent, would be a reason for annulling the discharge, but not for limiting its true scope, unless the statute provides that omitted creditors are not affected by the proceedings. No one

299.

1 Lindley, Partnership, 6th ed., p. Lowell, 511, Fed. Cas. No. 17,664; Re

2 Aflalo v. Fourdrinier, 6 Bing. 306; Wood v. Dodgson, 2 M. & S. 195.

8 Supra, § 128.

4 Willson v. Gompartz, 11 Johns. 193; Butcher v. Forman, 6 Hill, 583; Tucker v. Oxley, 5 Cranch, 34, 40, per Marshall, C. J.; Rice Appt. 7 Allen, 112 (surviving partner); Barclay v. Phelps, 4 Met. 397; Lothrop v. Tilden, 8 Cush. 375; Morrison v. Woolson, 23 N. H. 11; Buckner v. Calcote, 28 Miss. 432; Re Stevens, 1 Sawyer, 397, Fed. Cas. No. 13,393; Wilkins v. Davis, 2

Brick, 4 Fed. Rep. 804; Re Leland, 5
N. B. R. 222, Fed. Cas. No. 8228; West
Phila. Bank . Gerry, 106 N. Y. 467;
Rand . King, 156 Mass. 515; Re Abbe,
2 N. B. R. 75, Fed. Cas. No. 4.

5 Hudgins v. Lane, 11 N. B. R. 462, Fed. Cas. No. 6827; Re Plumb, 9 Ben. 279, Fed. Cas. No. 11,231; Corey v. Perry, 67 Maine, 140; Glenn v. Arnold, 56 Cal. 631, on the construction of the insolvent law of California; Re Little, 1 N. B. R., 341, Fed. Cas. No. 8390; Poillon v. Lawrence, 77 N. Y. 207 semble. 6 See § 459.

can be a bankrupt in part. If it should clearly and unequivocally appear that he asks for a discharge from only one class of debts (a very improbable contingency), he might be estopped as to others.

§ 448. Discharge from one Class of Debts. The statute may authorize the courts to grant a discharge from one set of debts and not the other, as where an offer of composition is made to and accepted by one class exclusively. So when an assent of creditors was required, or in the alternative the payment of fifty per cent in dividends, it was held that such a payment upon the separate debts would authorize the court to grant a discharge of those debts.2 In neither of these classes of cases does the decision depend upon the bankruptcy being joint or several. In the cases cited it was joint.

§ 449. Bond to Dissolve Attachment. When property is attached on mesne process and a bond is given by the defendant, with sureties, to dissolve it, the condition is to pay the judgment. If the debt is one dischargeable by a decree in bankruptcy and the defendant obtains and pleads his discharge pending the action, no judgment can, in ordinary cases, be recovered and there is no breach of the bond. It has been held, however, by some courts that if the attachment by reason of the time which had elapsed before the bankruptcy or for some other reason would not have been dissolved by the assignment, the court in which the action is pending may render a special judgment to bind the sureties, in order that the plaintiff may have the same benefit by his bond which he would have had by his attachment. In Massachusetts a statute was found needful to effect this result.5

1 Ebbs v. Boulnois, L. R. 10 Ch. 479; Meggy v. Imp. Disc. Co. 38 L. T.

N. S. 309.

5 Stat. 1875, ch. 68. Before the statute, Carpenter v. Turrell, 100 Mass. 450; Hamilton v. Bryant, 114 Mass. 543; 2 Baker's Case, 8 Cush. 109; Mor- Braley v. Boomer, 116 Mass. 527; Johnrison v. Woolson, 23 N. H. 11, per son v. Collins, 117 Mass. 343. Since Perley, J. the statute, Barnstable Sav. Bank v. Loring v. Eager, 3 Cush. 188; Car- Higgins, 124 Mass. 115; Denny v. penter v. Turrell, 100 Mass. 450.

Holyoke v. Adams, 59 N. Y. 233; Re Albrecht, 17 N. B. R. 287, Fed. Cas. No. 145; Zollar v. Janvrin, 49 N. H. 114. See supra, § 339.

Merrifield, 128 Mass. 228; Sullivan v.
Langley, 128 Mass. 235; O'Neil v. Har-
rington, 129 Mass. 591; Sullings v.
Ginn, 131 Mass. 479; Bernheimer v.
Charak, 170 Mass. 179.

It is sometimes held that the release of the attachment is the consideration for the undertaking of the sureties and that the courts will permit a judgment to be obtained in order to charge them, though proceedings are pending and were begun within four months after the attachment.1

Where the undertaking of the surety is merely to return attached property to the sheriff, a dissolution of the attachment relieves him.2 But where a question of title was involved and the sureties undertook absolutely to return property replevied, it was held that a discharge of the principal did not release the sureties.3

§ 450. Recognizance under Poor Debtor Law. In Massachusetts a defendant taken in execution gives a recognizance conditioned that he will, within ninety days, apply to take the oath for the relief of poor debtors. Such a defendant went into insolvency under the insolvent law of Massachusetts on the ninetieth day after giving his recognizance, and it was held that there was no provable debt against him on his recognizance, because the breach did not occur until the ninety-first day, and therefore that his discharge would not avail either him or his surety. In the same State it is held that bankruptcy and an assignment under it will not relieve the obligation to appear and take the oath.5

In Pennsylvania, on the other hand, where the condition of the bond is to surrender or apply for the benefit of the insolvent law of the State, an application for the benefit of the bankrupt law of the United States is a substantial compliance with the condition.6

In New York an imprisoned debtor must apply to the proper court and annex a schedule of his property. It is not a compliance with this law to aver that he is a bankrupt and that his assignee has been duly appointed.

§ 451. Judgments obtained pending Proceedings. In England bankruptcy was not a good plea, and the courts would

1 McCombs v. Allen, 82 N. Y. 114.
2 Payson v. Payson, 1 Mass. 283.
8 Wolf v. Stix, 99 U. S. 1.

4 Smith v. Randall, 1 Allen, 456.

5 On this subject, see Grinnell, Poor Debtor Law of Massachusetts.

6 Barber v. Rogers, 71 Penn. St. 362; Hubert . Horter, 81 Penn. St. 39.

7 Bally more v. Cooper, 46 N. Y. 236

1

not continue an action to await the debtor's discharge. Each party was left to pursue his remedies in his own way; but if a creditor obtained judgment on a provable debt pending the proceedings, he was bound by the discharge and it was early enacted that if he took the defendant in execution under such circumstance, the court would discharge him out of custody upon summary application.2 The bankrupt's after-acquired goods might be discharged in a similar way.2

3

This practice was followed in New York under an insolvent law resembling the bankrupt acts in the circumstance that no opportunity was given the insolvent to stay proceedings in an action pending the question of his discharge. The creditor must be permitted in these proceedings or in a later action to prove that his debt is not covered by the certificate, as, for example, that it was fraudulently incurred.*

In Massachusetts it was the practice to grant a continuance for a reasonable time of actions on provable debts to enable a defendant who was going through the court of insolvency or bankruptcy to obtain his discharge and plead it in an action then pending. If he neglected to avail himself of this opportunity he was held bound by a judgment obtained after the proceedings were begun, but before the discharge was granted. If a motion for continuance was overlooked and judgment obtained review would lie.7

The Act of Congress of 1867 adopted the practice of Massachusetts by requiring suits to be stayed for a reasonable time to await the action of the court of bankruptcy on the question of discharge. It naturally followed that many courts adopted

8

1 Re Gallison, 2 Lowell, 72, 74, Fed. Cas. No. 5203.

2 Bouteflour v. Coates, Cowp. 25; Blandford v. Froud, ib. 138; Scott v. Ambrose, 3 M. & S. 326; Willett v. Pringle, 2 B. & P. N. R. 190; and cases cited in the argument of Boynton v. Ball, 121 U. S. 457.

3 Monroe v. Upton, 50 N. Y. 593, and cases cited.

4 Lister v. Mundell, 1 B. & P. 427; Yeo v. Allen, 3 Doug. 214; Linn v. Hamilton, 34 N. J. Law, 305.

5 Barker . Haskell, 9 Cush. 218; Lummus v. Fairfield, 5 Mass. 248.

6 Sampson v. Clark, 2 Cush. 173; Woodbury v. Perkins, 5 Cush. 86; Wolcott v. Hodge, 15 Gray, 547.

7 Todd v. Parton, 117 Mass. 291; Golden v. Blaskopf, 126 Mass. 523. This was mandatory. Page v. Cole, 123 Mass. 93; Seavey v. Beckler, 128 Mass. 471.

8 § 21, 14 Stats. 526, Rev. Stats. §

5106.

the rule in Massachusetts, that the bankrupt must take the trouble to plead his bankruptcy and procure a stay until he could plead his discharge.1 This rule is logically sound, not so much because the debt is merged in the judgment as because the defendant, having had an opportunity to plead his defence, should be held bound by his neglect to do so. It had, however, the inconvenience that bankrupts will not in practice take this trouble, and judgments were often obtained by mere routine when neither party perhaps desired it. The Supreme Court, disregarding logic, held such a judgment to be barred,2 overruling the cases cited in note 1.

§ 452. Discharge must be Pleaded. There is no doubt that when the discharge is obtained before judgment, it must be pleaded puis darrein continuance. This plea is admitted as of right; and it follows that if it is neglected, no relief can be had either at law or in equity against the judgment,5 unless there has been an accident or mistake justly relievable, in which case the court itself in which the judgment was obtained has usually full power of review. If it has not, equity will relieve.

If the discharge is obtained pending an appeal from a judgment for a provable debt in a lower court, the higher court will usually admit the plea or require it to be admitted by the lower court. If not, equity may grant relief.7

1 See Holbrook v. Foss, 27 Maine, 441; Bowen v. Eichel, 91 Ind. 22; Bradford v. Rice, 102 Mass. 472; Boynton v. Ball, 105 Ill. 627; Wise's Appeal, 99 Penn. St. 193; McCarthy v. Goodwin, 8 Mo. App. 380; Steadman v. Lee, 61 Georgia, 58.

2 Boynton v. Ball, 121 U. S. 457; McDonald v. Davis, 105 N. Y. 508. See Re Pinkel, 1 N. B. N. 138.

3 Todd v. Maxfield, 6 B. & C. 105; Rossi v. Bailey, L. R. 3 Q. B. 621; Dimock v. Revere Copper Co., 90 N. Y. 33, affirmed 117 U. S. 559; Hollister v. Abbott, 31 N. H. 442; Desobry v. Morange, 18 John. 336; Hellman v. Licher, 9 Abb. Pr. N. s. 288; Miller v. Clements, 54 Tex. 351.

4 Paris v. Salkeld, 2 Wils. 137.

5 See note 3, and Cutter v. Evans, 115 Mass. 27; Re Tooker, 14 N. B. R. 35, Fed. Cas. No. 14,096; Mechanics Bank v. Hazard, 9 Johns. 392; Steward v. Green, 11 Paige, 535; Merchants' Bank v. Moore, 2 Johns. 294; Cable v. Cooper, 15 Johns. 152; Post v. Riley, 18 Johns. 54; Bellamy v. Woodson, 4 Ga. 175; Bank of Missouri v. Franciscus, 15 Mo. 303; Marsh v. Mandeville, 6 Cush. (Miss.) 122; Rudge v. Rundle, 1 Sup. Ct. N. Y. (T. & C.) 649.

6 Shurtleff v. Thompson, 63 Maine, 119; Hadley v. Boehm, 1 Hun, 304; Revere Copper Co. v. Dimock, 90 N. Y. 33; Golden v. Blaskopf, 126 Mass. 523.

7 Minot v. Brickett, 8 Met. 560; Exchange Bank v. Knox, 19 Gratt. 739; Labron v. Woram, 5 Hill, 373.

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