MONEY OR MERCHANDISE CARRIED IN TRUNK, WHETHER CONSTITUTES PART OF BAGGAGE or not: See Orange County Bank v. Brown, 24 Am. Dec. 129; Hawkins v. Hoffman, 41 Id. 767, and the notes thereto. Money for traveling expenses, carried in a passenger's trunk, is a part of his baggage, but not money carried for purposes of speculation or otherwise: McKee v. Owen, 15 Mich. 127; Berkshire Woollen Co. v. Proctor, 7 Cush. 426; Dunlap v. International St. Co., 98 Mass. 376. Costly jewelry, samples, or other merchandise, carried in valises or trunks, is no part of a traveler's baggage: Michigan etc. R. R. Co. v. Carrow, 73 Ill. 357; Collins v. Boston etc. R. R. Co., 10 Cush. 507; Stimson v. Connecticut etc. R. R. Co., 98 Mass. 84; nor a feather-bed carried by a passenger on a vessel not for use on the voyage: Connolly v. Warren, 106 Mass. 748, all citing the principal case.

LIABILITY OF PASSENGER CARRIERS GENERALLY: See McElroy v. Nashua etc. R. R. Co., 50 Am. Dec. 794, and note.

TEBBETTS V. PICKERING.

[5 CUSHING, 83.]

OMISSION IN COUNT ON NOTE TO SET OUT MEMORANDUM thereon, which constitutes a defeasance or qualifies the stipulations of the note, is a variance, and the note will not support the count; but if the declaration contains the common money counts, and the memorandum is merely that the note is given as collateral security for another note, the variance is immaterial.

COUNT FOR MONEY HAD AND RECEIVED LIES ON SPECIAL CONTRACT i nothing remains to be done but to pay a stipulated sum of money. Hence, such a count is good on a note given as collateral security for a debt which remains unpaid, if the note is due.

OBJECTION THAT NO BILL OF PARTICULARS WAS FILED as required by the rules of practice, if not taken in the court below, can not be insisted upon afterwards.

BILL OF PARTICULARS IS UNNECESSARY TO LET IN NOTE AS EVIDENCE under the money counts in a declaration giving notice of the nature of the claim by containing a count on the note.

DISCHARGE IN INSOLVENCY AFTER PRIOR INSOLVENCY IS INVALID, under the Massachusetts statute, without the written assent of three fourths of the creditors, unless the estate pays fifty per cent. of the debts. DISCHARGE IN INSOLVENCY DOES NOT AFFECT NOTE TO CITIZEN OF ANOTHEf. STATE who was such when the note was made and until the discharge. ASSUMPSIT, the declaration containing a count on a note, and also the money counts. At the trial in the common pleas the note sued on was offered in evidence, but there was a memorandum thereon, not set out in the declaration, to the effect that the note was given as collateral security for certain other notes. A motion for a nonsuit on the ground of variance was overruled. The defendant offered in evidence a discharge in insolvency on his own application. It appeared that three fourths of the cred

itors did not assent thereto in writing, and that the assets did not pay fifty per cent. of the debts, and it was proved that on a previous application for the benefit of the insolvent law the defendant had been refused a discharge because the assets did not pay fifty per cent. of the debts. It further appeared that the plaintiff was, at the making of the note, and ever since, a citizen of Maine. The defendant's discharge was, on these grounds, heid no defense. Verdict for the plaintiff. Exceptions by the defendant.

E. G. Dudley, for the defendant.

F. B. Hayes, for the plaintiff.

By Court, Dewey, J. It is unnecessary to decide whether the instrument offered in evidence supports the special count. If that was the only count upon which the plaintiff could recover, the inquiry would then properly arise, whether the memorandum appended to the note, and signed by the defendant, could in any sense be considered a defeasance of the note, or as containing anything to qualify the stipulations in the note itself. If so, then upon the authority of the case of Whitaker v. Smith, 4 Pick. 83, the evidence would not support the count on the note. But it is unnecessary to consider this point, as the writ contains the common money counts, and these are quite sufficient to embrace the plaintiff's case upon the evidence.

However special the contract, yet if there remains no other duty, than the mere payment of a stipulated sum of money, the count for money had and received will be sufficient: Felton v. Dickinson, 10 Mass. 287; State Bank v. Hurd, 12 Id. 171; Baker v. Corey, 19 Pick. 496; Bates v. Curtis, 21 Id. 247; and more directly in point, being the case of a promissory note, given in consideration that the payee would assign a certain mortgage, the case of Payson v. Whitcomb, 15 Id. 212. There is no practical inconvenience resulting from this form of pleading, inasmuch as the rules of practice require reasonable notice to be given of the nature of the claim sought to be enforced, whenever the party needs such information, and moves for an order to that effect.

It is insisted, however, on the part of the defendant, that the plaintiff was required, by the rule of the court of common pleas, to file a bill of particulars, or be precluded from introducing this evidence under the general counts. To this objection, two answers may be given: 1. No such objection appears to have been taken in the court of common pleas, and therefore

AM. DEC. VOL. LI-4

is not properly open here; as that court had full power, if such objection had been taken, to have granted further time to the plaintiff for filing such bill of particulars, and thus avoided this objection; 2. The defendant had full notice of this claim of the plaintiff from the pleadings. The note itself now sought to be recovered was set forth as a cause of action in one of the counts. This superseded the necessity of filing a bill of particulars, setting forth the note as a demand, upon which the plaintiff would rely at the trial.

The further ground of defense, arising from the discharge granted by a master in chancery, is also unavailing to the defendant; because the case falls within the provisions of the act of 1844, chapter 178, section 5, which declares the discharge invalid, in the case therein specified; and because the plaintiff, at the time of the making of the promise, was, and ever since has been, a citizen of the state of Maine: Savoye v. Marsh, 10 Metc. 594 [43 Am. Dec. 451]; Woodbridge v. Allen, 12 Id. 470. Exceptions overruled.

MEMORANDUM ON NOTE CONSTITUTES ESSENTIAL PART OF IT, WHEN: See Barnard v. Cushing, 38 Am. Dec. 362; Fletcher v. Blodgett, 42 Id. 487, and the notes thereto.

VARIANCE BETWEEN WRITING DECLARED ON AND THAT OFFERED IN EVIDENCE, WHEN MATERIAL AND WHEN NOT: See Ross v. Overton, 2 Am. Dec. 552; Walsh v. Gilmor, 6 Id. 502; Bellas v. Hays, 9 Id. 385; Hastings v. Lovering, 13 Id. 420; Newell v. Mayberry, 23 Id. 261; Miller v. Brown, Id. 693; Adams v. Lisher, 25 Id. 102; Dibrell v. Miller, 29 Id. 126; Leidig v. Rawson, Id. 354, and the notes thereto.

WHETHER ASSUMPSIT FOR MONEY HAD AND RECEIVED, or for goods sold and delivered, or for work and labor performed, etc., can be maintained where there is a special contract: See Newman v. McGregor, 24 Am. Dec. 193; Clendenen v. Paulsel, 25 Id. 435; Fowler v. Austin, 26 Id. 701; Pool v. Tuttle, Id. 552; Cummings v. Nichols, 38 Id. 501; Mattocks v. Lyman, 46 Id. 138. As to the right of the payee of a note to surrender it and recover on the original consideration, although the declaration contains a count on the note, see Melledge v. Boston Iron Co., post, 59, and note.

OBJECTIONS NOT MADE IN COURT BELOW NOT CONSIDERED ON WRIT OF ERROR OR APPEAL: See various examples of the application of this rule, in Beekman v. Frost, 9 Am. Dec. 246; Campbell v. Stakes, 19 Id. 561; Newsum v. Newsum, Id. 739; Birely v. Staley, 25 Id. 303; Sasscer v. Walker, Id. 272; Mitchell v. Anderson, 26 Id. 158; Barrett v. Wills, Id. 315; Nesbitt v. Dallam, 28 Id. 236; Apperson v. Cottrell, 29 Id. 239; Pennsylvania etc. Co. v. Dandridge, Id. 543; Driggs v. Dwight, 31 Id. 283; Reid v. Edwards, Id. 720; Jones v. Hardesty, 32 Id. 180; Hewett v. Buck, 35 Id. 243; Schlencker v. Risley, 38 Id. 100; Martin v. Webb, 39 Id. 363; Lewis v. Bank of Kentucky, 40 Id. 469; Clark v. State, Id. 481; Union Bank v. Lea, 41 Id. 275; Phillips v. Runnels, 43 Id. 109; State v. Morgan, 47 Id. 329; Rabe v. Fyler, 48 Id. 763, and in cases cited in the notes thereto. In Bond v. Bond, 7 Allen, 6, it is laid down, citing the principal case, to be well settled, that on exceptions no objections

can be considered which do not appear to have been raised and passed on by the court below.

BILL OF PARTICULARS, NECESSITY, SUFFICIENCY, AND EFFECT OF: See De Sobry v. De Laistre, 3 Am. Dec. 535; Babcock v. Thompson, 15 Id. 235; Roberts v. Beatty, 21 Id. 410; Sidwell v. Evans, Id. 387; Gilpin v. Howell, 45 Id. 720.

Discharge under State Insolvent Law, EFFECT OF, on debts due citizens of another state: See Larrabee v. Talbott, 46 Am. Dec. 637; Brigham v. Henderson, 48 Id. 610, and notes referring to other cases.

WOODBURY V. PERKINS.

[5 CUSHING, 86.]

DISCHARGE UNDER United STATES BANKRUPT ACT IS NO BAR TO ACTION ON JUDGMENT against the bankrupt recovered after the filing of the petition in an action commenced before the filing.

DEBT on a judgment recovered in New Hampshire. The defense was a discharge under the United States bankrupt law, subsequent to the judgment, upon a petition filed before the judgment, but after the commencement of the action in which the judgment was rendered. The judge held it a good bar. Verdict for the defendant. Exceptions by the plaintiff.

L. Gale, for the plaintiff.

B. Rand, for the defendant.

By Court, DEWEY, J. The case of Sampson v. Clark, 2 Cush. 173, was a direct decision upon a similar question, arising under the insolvent law of Massachusetts. It was there held, that where a judgment is obtained against an insolvent debtor, after the first publication of the notice by the messenger of the issuing of a warrant, in an action pending at the time of instituting the proceedings in insolvency, such judgment is not provable as a claim against the insolvent's estate in the hands of the assignee, because it was not in existence at the time of the publication; and the original debt is not provable, because it was merged in the judgment. This decision was upon the statute of 1838, chapter 163, section 3, which allows all debts to be proved against the estate, which are "due and payable" from the debtor, at the time of the first publication of the notice of issuing the warrant in insolvency.

It becomes necessary now to inquire what are the provisions of the bankrupt act under which this discharge was obtained; and whether the case above referred to, in principle, applies to

the present case. The present is a question of the validity of a discharge; that related to the right of a creditor to file his claim; but both must be governed by the same rule; at least, it must be so in cases arising under the statute of 1838, chapter 163. By the provisions of the act of congress of 1841, chapter 9, section 4, it is enacted that "every bankrupt who shall bona fide surrender all his property," etc., "shall be entitled to a full discharge from all his debts, and such discharge shall be deemed a full and complete discharge of all debts, contracts, and other engagements of such bankrupt, which are provable under this act." The fifth section authorizes all creditors to prove their debts against the bankrupt.

In New York, this question seems to have been settled in the case of Kellogg v. Schuyler, 2 Denio, 73, where it was held, in reference to the bankrupt act, that a judgment is an extinguishment of the prior indebtedness; and where it is rendered after the time of presenting the petition, it is not affected by a discharge granted under such petition. In the case of Thompson v. Hewitt, 6 Hill, 254, where the defendant, during the pendency of a suit against him on a promissory note, presented a petition for a discharge under the bankrupt act, and afterwards gave a judg ment for a part of it, by a compromise, the original debt was held to be merged and extinguished by the new judgment, and the judgment not to be affected by the discharge in bankruptcy.

We can perceive no great hardship that can result from taking this view of the question. The parties can neither of them be affected injuriously thereby, without their own assent, or by some laches on their part. The creditor who may have a suit pending against his debtor, at the time such debtor may become the subject of proceedings in bankruptcy, may at once discontinue his suit, and file his claim with the commissioner in bankruptcy, or insolvency, as the case may be, and will in such case be allowed to prove his claim, and receive a dividend. So, on the other hand, the debtor, if he would secure to himself the benefit of a discharge in bankruptcy, in reference to a debt for the recovery of which a suit at law is then pending, has only to interpose his objection to a judgment's being rendered in such suit, by suggesting the proceedings in bankruptcy, and asking a continuance of the action, until the proceedings in bankruptcy have so far progressed as to enable him to plead his discharge in bar of the suit.

But if both parties are content that the demand shall not be affected by the proceedings in bankruptcy; the creditor volun