Whether a defendant has had opportunity to plead his discharge depends on the situation of the cause and the practice of the court; part of a day has been held insufficient and several days or even a clear court day sufficient.1

3

§ 453. Summary Discharge or Stay of Executions. We have already seen that after a bankrupt had been discharged the court in which a judgment had been recovered would discharge him out of custody upon summary petition pending the bankruptcy, and relieve his property from seizure.2 A like practice prevails as to all judgments which are barred by the discharge, such as those recovered before the bankruptcy. That such an order was made without notice to the creditor does not render it void, and the sheriff is exonerated by it. It is likewise the practice to exonerate bail in a summary way. Orders of this sort do not avoid the judgment, which may still be the foundation of an action, if the judgment creditor is advised that he can successfully dispute the bankrupt's certificate.

Sheriffs and other officers acting under precepts apparently valid are not liable in tort for arresting a discharged bankrupt; the remedy is against the judgment creditor or other principal. In Massachusetts the remedy for the improvident issue of execution is by audita querela.7

§ 454. Mode of Pleading Discharge. At the present time a discharge in bankruptcy may be pleaded in a very simple and direct mode, stating merely that the defendant became bank

1 Baker v. Judges of Ulster, 4 Johns. 191; Palmer v. Hutchins, 1 Cow. 42; Baker v. Taylor, ib. 165; Hanson v. Blakey, 4 Bing. 493; Braun v. Weller, L. R. 2 Ex. 183; Revere Copper Co. v. Dimock, 90 N. Y. 33, affirmed 117 U. S. 559.

2 Supra, § 451.

3 Graham v. Peirson, 6 Hill, 247; Pinckney v. Hegeman, 53 N. Y. 31; Cornell v. Dakin, 38 N. Y. 253; Palmer v. Hussey, 87 N. Y. 303; Williams v. Humphreys, 50 N. J. Law, 500; Fran

cis v. Ogden, 22 N. J. Law, 210; Curtis v. Slosson, 6 Penn. St. 265.

Reed v. Gordon, 1 Cow. 50; Cunningham v. Brown, 5 Cow. 289.

5 Geikie v. Hewson, 4 M. & G. 618; Woolley v. Cobbe, 1 Burr. 244; Mannin v. Partridge, 14 East, 599; McCausland v. Waller, 1 Har. & J. 156; Comm. v. Huber, 5 Pa. L. J. 331; Nettleton v. Billings, 17 N. H. 453; Seaman v. Drake, 1 Caines, 9; Long v. Dickerson, 15 Blatch. 459, Fed. Cas. No. 8480.

6 Aldrich v. Aldrich, 8 Met. 102 7 Foss v. Witham, 9 Allen, 572.

rupt at such a time and in such a court, and obtained his certificate. Of course, as error in the proceedings cannot be shown, it is impertinent for either party to plead it. Whether the facts to establish jurisdiction must be pleaded by the defendant is not entirely settled; the better opinion is that the want of jurisdiction, when admissible at all, is matter of defence.1 If the statute prescribes a mode of pleading, it should be followed.2

If the discharge is obtained too late to be pleaded, as for example after a default, or if through accident or misunderstanding the time has gone by, the court may in its discretion open the case. If it should refuse, or even if the defendant should not apply for this indulgence, his rights, in a suit on the judgment, would not be affected.

§ 455. Pleading Discharge (continued). — By the practice in many States if a defendant obtains and pleads his discharge pending an action, the plaintiff may discontinue or submit to a verdict without costs. It follows that if the defendant refuses to rely wholly upon his discharge he cannot rely upon it at all, in other words, he cannot plead double in such case, because he puts the plaintiff at a disadvantage. If, therefore, the defendant insists upon a trial upon the merits of his original case, he may be required to waive the discharge. A court of appeals will usually permit a discharge obtained pending the appeal to be pleaded. In strict pleading a discharge obtained pending an action, should be pleaded at the next term;7 and

1 See Rev. Stats. (U. S) § 5119; English Bankruptcy Act, 1883, § 30, cl. 3; Whitney v. Rhoades, 3 Allen, 471; Symonds v. Barnes, 59 Maine, 191; Stephens r. Ely, Hill, 607; Reed v. Vaughan, 15 Mo. 137; Jones v. Russell, 44 Ga. 460; Heffren v. Jayne, 39 Ind. 46; McMinn v. Allen, 67 N. C. 131; White v. How, 3 McLean, 291, Fed. Cas. No. 17,549; Lathrop v. Stuart, 5 McLean, 167, Fed. Cas. No. 8113; Rowan v. Holcomb, 16 Ohio, 463; Parker v. Atwood, 52 N. H. 181; McCormick v. Pickering, 4 N. Y. 276; Viele v. Blanchard, 4 G. Greene, 299; Price v. Bray, 1 Zab. 13

2 Stoll v. Wilson, 38 N. J. Law, 198. 8 Bank v. Webster, 48 N. H. 21; Golden v. Blaskopf, 126 Mass. 523; Lee v. Phillips, 6 Hill, 246; Shurtleff v. Thompson, 63 Maine, 118.

Park v. Moore, 4 Hill, 592; Hart v. Storey, 1 Johns. 143; Honeywell v. Burns, 8 Cow. 121; Sandford v. Sinclair, 6 Hill, 248.

5 Goward v. Dunbar, 4 Cush. 500. 6 Lewis v. Shattuck, 4 Gray, 572; Morris v. Briggs, 3 Cush. 342; Glazier v. Carpenter, 16 Gray, 385; Bank of Bellows Falls v. Onion, 16 Vt. 470.

7 Desobry v. Morange, 18 Johns. 336.

waives the earlier pleas; and though this practice is now much relaxed, the courts will refuse to admit the plea after a long delay, or if it is inequitable.2

A case was tried on its merits in a State court and the plaintiff obtained judgment; upon error the Supreme Court affirmed the rulings below and sent a mandate accordingly. In the meantime the defendant obtained a discharge in bankruptcy. It was held that he could not resist an entry of judgment, but it was intimated that he might have a remedy by audita querela.3 § 456. Second Bankruptcy. If one who has become bankrupt and has been refused his discharge becomes bankrupt a second time, and obtains a discharge the debts which might have been proved in the former proceedings will not be discharged, because as to them it is res judicata that the debtor was not entitled to this relief. This exemption is waived by the creditor, if he proves in the second proceedings.*

In the United States, the statutes usually provide that in a second bankruptcy there shall be no discharge unless a certain large dividend is paid, or all the old debts have been settled.5 In the latest English law, there can be no discharge of one who has before been bankrupt or has made a composition."

§ 457. Corporations. The statutes do not grant a discharge to corporations which are made bankrupt, and judgments may be recovered against them, notwithstanding their bankruptcy, if necessary to charge directors or shareholders or for any other purpose.7

1 Wheelock v. Rice, 1 Doug. 267. 2 Medbury v. Swan, 46 N. Y. 200; Barstow v. Hansen, 4 Sup. Ct. N. Y. (T. & C.) 569, 2 Hun, 333; Holyoke v. Adams, 59 N. Y. 233; Sandford v. Sinclair, 3 Denio, 269. But if there are no equities, delay is not fatal. Falkner v. Hunt, 76 N. C. 202; Banque FrancoEgypte. v. Brown, 24 Fed. Rep. 106.

31.

3 Goodrich v. Wilson, 135 Mass.

Gardner v. Way, 8 Gray, 189; Whitney v. Willard, 13 Gray, 203.

5 A discharge under the Act of Congress is not a payment within the meaning of such a statute. Whitney v. Weed, 156 Mass. 224.

6 B. A. 1890, § 8.

7 Athol Nat. Bank v. Hingham Mfg. Co., 121 Mass. 399. [Under the Act of 1898 corporations are not expressly disqualified from receiving a discharge.

4 Gilbert v. Hebard, 8 Met. 129; See infra, § 477.]

§ 458. All Rights against Sureties and other Persons liable for Bankrupts' Debts are Preserved. - It is a fundamental and universal rule that the discharge in bankruptcy is personal to the bankrupt, and does not release any mortgage, pledge, or lien upon his property, nor any person who is liable for or with him to pay the same debt as copartner, surety, or otherwise howsoever. The reservation is often made in the statute, but this is unnecessary, for it will be taken for granted, and will be applied to a discharge by a statutory composition.2

It was once intimated by a very able judge that a consent by the creditor to the debtor's discharge might operate to discharge sureties; 3 and there has been one decision to this effect, but the law is otherwise. The surety may pay the debt and prove it, and if he choose not to do so, the proving creditor not only may assent, but is morally bound to assent, if he finds it. to be just that the debtor should be discharged; and if he do so, though contrary to an express notice by the surety, the latter will not be released.5

In some cases it may be the creditor's duty to prove the debt, if the surety has not an equal opportunity to do so, and he may under such circumstances be bound to give credit for any dividend which the estate of the principal would have paid.

§ 459. Creditors not Notified. Unless there is an exception in the statute, the debts of creditors who have had no notice of the proceedings are barred, even though the omission were fraudulent on the part of the bankrupt. The courts are

1 Ante, § 446.

2 Tooker v. Bennett, 3 Caines, 4; Megrath v. Gray, L. R. 9 C. P. 216; Ellis v. Wilmot, L. R. 10 Ex. 10; Simpson v. Henning, L. R. 10 Q. B. 406; Ex parte Jacobs, L. R. 10 Ch. 211; Guild v. Butler, 122 Mass. 498; Moore v. Stanwood, 98 Ill. 605.

3 Moore v. Paine, 12 Wend. 123. 4 Re McDonald, 14 N. B. R. 477, Fed. Cas. No. 8753.

5 Browne v. Carr, 2 Russ. 600; 7 Bing. 508, 5 Moore & P. 497; Sigour

ney v. Williams, 1 Gray, 623; Megrath v. Gray, L. R. 9 C. P. 216; Ellis v. Wilmot, L. R. 10 Ex. 10; Ex parte Jacobs, L. R. 10 Ch. 211; Guild v. Butler, 122 Mass. 498.

6 See Am. Bank v. Baker, 4 Met. 164. 7 Parbury's Case, 3 De G. F. & J. 80 ; Heather v. Webb, 2 C. P. D. 1; Burpee v. Sparhawk, 108 Mass. 111; Black v. Blazo, 117 Mass. 17; Burnside v. Brigham, 8 Met. 75; Hubbell v. Cramp, 11 Paige, 310; Fox v. Paine, 10 Ala. 523; Loud v. Pierce, 25 Maine, 233; Crooker

not entirely agreed, especially on the latter part of the proposition, but I consider it the better opinion. In the insolvent debtor's acts of England, (when there were such), and in the composition acts, this rule is modified.

§ 460. Consent of Creditors. Creditors have so great an interest in the question of discharge, that many statutes require the assent in writing of a certain proportion of them to its being granted, however fair and honest the conduct of the debtor may have been. The objections to this rule are that some creditors may be bribed to give their assent- a fact difficult of proof and the right of the creditors being absolute may be exercised from unworthy motives. The necessity for consent is omitted from the latest statute in England, and in some of the states.1 In one or two statutes, now repealed, a certain proportion of creditors must dissent to prevent a discharge.

The creditors who are to be counted in ascertaining whether the consent is sufficient are those who have proved their debts in the proceedings.

§ 461. Acts and Omissions which Prevent Discharge. The consent of creditors, when required, is only one condition necessary to the discharge. This privilege is intended for honest and even careful debtors, and frauds, or certain omissions, if proved to the satisfaction of the court or jury (where that form of trial is provided for), will prevent the discharge.

Though the statutes vary somewhat, it may be said in general that frauds at common law, preferences contrary to the act, misdemeanors under the act, if there be such, or any failure or refusal to comply with the orders of the court, or to

v. Trevett, 28 Maine, 271; Carey v. Esty, 29 Maine, 154; Hurd v. Indiana Mut Ins. Co., 1 Ind. 162; Rogers v. Western Ins. Co., 1 La. Ann. 161; Knabe v. Hayes, 71 N. C. 109; Thornton v. Hogan, 63 Mo. 143; Rayl v. Lapham, 27 Ohio St. 452; Pattison v. Wilbur, 10 R. I. 448; Viele v. Blanchard, 4 G. Greene (Iowa), 299; Shelton v. Pease, 10 Mo. 473. See contra Batchelder v.

Low, 43 Vt. 662; Downer v. Dana, 22 Vt. 337; Steele v. Towne, 28 Vt. 771; Re Pearce, 21 Vt. 611; Morse v. Presby, 25 N. H. 299; Brown v. Rebb, 1 Rich. 374. [The Act of 1898 provides that the debt of a creditor who has no notice of the bankruptcy proceedings shall not be barred. See infra, § 480.]

1 [There is no such requirement in the Act of 1898.]