was the doubt restored by that court's decision in Louisville Trust Co. v. Comingor,16 a case which applied the Bardes rule only to the assignee and his attorneys and that, too, only when they had become vested with an adverse title prior to the bankruptcy. Since the amendatory act of 1903, Bardes v. Bank being no longer the law, there can now be no doubt about the power of a court of bankruptcy to restrain general assignment proceedings; indeed, it becomes its duty proprio motu, at once a petition, especially an involuntary petition, is filed.17 38. Of suits or proceedings in personam.-Much that goes before might be repeated here. Two classes of proceedings are, however, peculiarly against the person, (a) ordinary suits for the collection of simple debts, and (b) proceedings which may result in the attachment and detention of the body of the debtor. Stated broadly, the former, subject to limitations already discussed, especially where the debt proceeded on is the result of a fraudulent preference, 18 will always be stayed. On the other hand the latter class of cases will rarely be stayed, for the reason that, as a rule, arrest on civil process rests on obligations which are not dischargeable in bankruptcy.19 To this generalization there are, of course, exceptions, as where the remedy on a simple contract debt given by the State law includes arrest;20 or where a stay is granted to proceedings in a State court for contempt for nonpayment of alimony.21 Where an attempt is made to enforce a dischargeable claim in a State court by proceedings to punish the bankrupt for contempt, the bankruptcy court may, in its discretion, restrain such proceedings.22 An injunction restraining further proceedings in an action in a State court operates in 16. 184 U. S. 18, 7 Am. B. R. 305. See also In re Carver, 7 Am. B. R. 539, 113 Fed. 128. 17. Collier on Bankruptcy, 6th ed., p. 147. 18. In re Nathan, 92 Fed. 590. 19. See in re Cole. 5 Am. B. R. 780, 106 Fed. 837. For what debts are not discharged, see Bankr. Act, 1898, section 17; Collier on Bankruptcy, 6th ed., pp. 216 et seq. 20. In re Grist, 1 Am. B. R. 89. 21. In re Houston, 2 Am. B. R. 107, 94 Fed. 119; on appeal, Wagner v. Houston, 4 Am. B. R. 596, 104 Fed. 133. 22. Matter of Adler, 16 Am. B. R. 414, 144 Fed. 195. restraint of proceedings in such court to punish the bankrupt for an alleged contempt committed before the adjudication in bankruptcy.23 In addition to the cases already cited, those found in the note below will prove suggestive.24 25 § 39. Practice. The jurisdiction conferred on the court of bankruptcy by this section is not exclusive. Application may be made to the State court, and the mandatory provisions of the section are as binding on that court as on the federal court.2 Ordinarily, the application should be made in that court in the first instance,26 In that event, the practice will be that provided by the State law. The production of a certified copy of the petition or of the adjudication will be enough to establish the fact that such a proceeding has been begun. But it is in no sense the duty of the State court to stay merely because it hears of the bankruptcy of a suitor. It must be informed of the facts by proper pleadings.27 If the application is made to the court of bankruptcy, it should be made to the judge if there has yet been no order of reference; otherwise, to the referee in charge.28 Where upon an application for an injunction the parties submit the question at issue between them to the referee for disposition, they are bound, as the court might have referred the matter to the referee in the first instance; but the right of a referee to 23. In re Fortunato, 9 Am. B. R. 630, 123 Fed. 622. See In re De Lany & Co., 10 Am. B. R. 634, 124 Fed. 280. 24. Suits or acts which have been restrained.-In re Krinsky, 7 Am. B. R. 535, 112 Fed. 658; In re St. Albans Foundry Co., 4 Am. B. R. 594; In re Booth, 2 Am. B. R. 770, 96 Fed. 943; Vietor v. Lewis, 1 Am. B. R. 667; In re Northrop, 1 Am. B. R. 427; In re Adams, 1 Am. B. R. 94; In re McKee, 1 Am. B. R. 311; In re Jackson, 2 Am. B. R. 501, 94 Fed. 797. Suits or acts where restraint has been refused.—In re Greater American Exposition Co., 4 Am. B. R. 486, 102 Fed. 986; In re Sullivan, 2 Am. B. R. 30; Reid v. Cross, 1 Am. B. R. 34; In re Meyers, 1 Am. B. R. 347; Mather v. Coe, 1 Am. B. R. 504, 92 Fed. 333. 25. In re Rosenberg, Fed. Cas. No. 12,054; In re Metcalf, Fed. Cas. No. 4,494. 26. In re Geister, 3 Am. B. R. 228, 97 Fed. 322. 27. Johnson v. Bishop, Fed. Cas. No. 7,373. 28. See Bankr. Act, 1898, section 38a (4). award an injunction cannot be regarded as finally settled.25 The power of referees have been restrictd in some instances, by the rules of the courts of bankruptcy, to the granting of temporary restraining orders only.30 $ 40. Papers and procedure.—Save in the interval between the filing of the petition and the adjudication, a stay is always discretionary. Suits, except remedies incident to valid liens, should, as a rule, be stayed. Unless there has been an abuse of discretion, the stay will not be interfered with on appeal.31 Application is usually made by a petition setting out the jurisdictional facts such as the name of the suit, in what court, for what it is brought, the names of the persons sought to be enjoined, of their attorneys of record, and the like, and, if on information and belief, accompanied by sustaining affidavits,32 the reasons why the stay should be granted must clearly appear. If there be a trustee, he should apply, though, if he refuses or neglects so to do, or if a trustee be not yet appointed, any party in interest, including the bankrupt, may do so. Before adjudication, the petitioning creditors are the proper persons, but any party interested in the proceeding may also apply. The stay is granted ex parte, and endures until it is modified or dissolved, unless limited in time by its terms. If a stay proper, as distinguished from a mere temporary injunction coupled with an order to show cause, the granting of it may be indorsed on the petition by the judge or the referee, and the clerk must then issue a writ of in 29. In re Benjamin, 15 Am. B. R. 351, 140 Fed. 320. 30. See Rule XXI, Northern and Western Districts of New York. "When a motion for an injunction is pending or is about to be made, the referee may, in order to prevent injury to the property of the bankrupt, or otherwise, grant a temporary restraining order staying proceedings until the hearing and decision of said motion. In case all parties in interest agree that said motion be heard by the referee in charge, they may file with the referee a written stipulation to that effect. The decision of the referee on such motion shall be filed with the clerk, and if the referee decides that an injunotion shall issue, an order to that effect may be made by the judge." 31. In re Lesser, 3 Am. B. R. 758, 99 Fed. 913. 32. In re Keiler, Fed. Cas. 7,647. junction, which, in turn, must be served by the marshal, in the same manner as other federal writs. If a temporary restraining order, the practice of the State courts usually controls as to recitals, the signature of the judge or referee, and the method of service.33 Omnibus stays are not frequent and the writ or order will, as a rule, be addressed to the party stayed eo nomine; however, stays directed generally "to all other persons seem to bind all persons served.34 Whether, if the person to be stayed is not a party to the proceedng, he must be brought in by a subpoena served at the same time, is a question. There is high authority for the practice,35 even under the present law; but the wording of the subsection under discussion does not seem to make it necessary. In actual practice, it is rarely essential, and much less rarely done. Motions to modify or vacate are made in the usual way, on notice and affidavits, and are often subject to district rules or the practice of the local State courts. How far courts will investigate the merits of contested applications depends largely on the conscience and industry of the judge or referee. The authority seems to be that a court of bankruptcy will, if necessary, determine such merits, even swearing witnesses or ordering a referee to ascertain the facts. It will, indeed must, determine whether the debt is dischargeable or not.36 To do this, it must often declare the legal effect of pleadings in the State court, and sometimes of a judgment there granted.37 41. Duration of stays.-If granted before the adjudication, a stay is dissolved by the adjudication, though of course, it may be renewed. If granted after the adjudication, it must be in the words of the statute; these clearly indicate its duration.38 If the 33. Collier on Bankruptcy, 6th ed., 35. Bryan v. Bernheimer, 181 U. S. 188, 5 Am. B. R. 623. 36. In re Basch, 3 Am. B. R. 235, 97 Fed. 761. 37. Burnham v. Pidcock, 5 Am. B. R. 590; Knott v. Putnam, 6 Am. B. R. 80, 107 Fed. 907. 38. "Until twelve months after the date of such adjudication, or, if within such time, such person applies for a discharge, then until the question of such discharge is determined." year goes by and the bankrupt obtains the extension permitted by section 14a, it is questionable whether another stay could be granted under the terms of this section of the law; but it probably could under the general equity powers of the court. It is thought however, that the words "the question of such discharge is determined" are sufficient to embrace the time consumed on an appeal, seasonably taken and diligently prosecuted. Once the discharge is granted or refused, the stay is dissolved. No order to that effect is required. Better practice, however, suggests the application for and entry of such an order, though it is the duty of the court to make such entry, in any event.39 § 42. Continuance of suits - Where bankrupt is defendant.— The words here are not the same as those of the former law, 40 but their effect is similar.41 One option is with the trustee-he may or may not decide to defend42-though, when in doubt, he should report at a meeting of creditors for instructions. The other option is with the court; it may,43 but need not, order the trustee to intervene. The State court, on the other hand, cannot compel him to intervene. 44 He can plead to the jurisdiction, or make any defense which the bankrupt could have made, or even any defense which any creditor could have asserted affirmatively.45 party to such suit, he is bound by the judgment therein.16 If the judgment is already entered, and the State court refuses to open it on a motion of the trustee, the court of bankruptcy cannot, it seems, force the State court to open the case by restraining the enforcement of its judgment.47 It would also seem that a trustee, 39. In re Rosenthal, 5 Am. B. R. 799, 108 Fed. 368. 40. Act of 1867, section 16; R. S., section 5047. 41. Price v. Price, 48 Fed. 823. 42. Traders' Bank v. Campbell, 14 Wall. (U. S.) 87; Reade v. Waterhouse, 52 N. Y. 587. 43. In re Porter & Bros.. 6 Am. B. R. 259, 109 Fed. 111. 44. Oliver v. Cunningham, Fed. Once a Cas. 19,493. But compare Bear v. 45. Loudon v. Blandford, 56 Ga. 150; Sanford v. Sanford, 58 N. Y. 67; Knox v. Bank, 12 Wall. (U. S.) 379. 46. In re Skinner, 3 Am. B. R. 163. 97 Fed. 190; In re Van Alstyne, 4 Am. B. R. 42, 100 Fed. 929. 47. In re Franklin, 6 Am. B. R. 285, 106 Fed. 666, aff'd Jaquith v. |