[Milhous v. Aicardi.]

by mail or personally, on all creditors on all creditors upon the schedule filed with the debtor's petition, or whose names may be given to him in addition by the debtor," &c. The 34th section discharges the bankrupt from all debts proved and provable against his estate, except those enumerated in the 33d section. It makes the certificate of discharge conclusive evidence, in favor of the bankrupt, of the fact and regularity of his discharge; except that, within two years from the date thereof, the discharge may be set aside and annulled, in the same court, on proof that it was fraudulently obtained. It is thus seen that, by the terms of the act, the discharge can only be annulled in the bankrupt court, and within two years from its grant. No debts are excepted from its operation, except those enumerated in the 33d section; and no state court has jurisdiction to impair its force, save only in ascertaining the facts of the exceptions referred to, or the provability of a demand not within the exceptions.

If the omission of a creditor's name and debt, from the debtor's schedule of his liabilities, should have the effect to exempt that debt from the discharge, the inducement to fraudulent bankruptcy would be much enhanced, by agreements with creditors who knew too much; while the bankrupt's simple ignorance of the condition of his affairs, or his reasonable belief that, in certain instances, no obligation existed, would make the law a snare to him.

2. The remedy by supersedeas is proper. Ewing v. Peck, 17 Ala. 339; S. C. 26 Ala. 413.

The judgment is affirmed.

NOTE BY REPORTER. The appellant's counsel having filed an application for a rehearing, on the points and authorities shown in his brief, supra, the foregoing opinion was withdrawn, and the cause was held under advisement until December, 1876, when the following additional opinion was delivered, and the reporter was instructed to publish both of the opinions.

MANNING, J.-A judgment of affirmance was rendered in this cause, at a former term; and a rehearing was allowed, upon the question, whether the fraudulent omission of a creditor's name from the schedules annexed by a debtor to his petition for the benefit of the bankrupt law of 1867, so invalidated the discharge afterwards granted him thereupon in the district court of the United States, as to prevent it from barring the creditor's proceeding against him for the recovery of the debt in a state court. The supreme court of Vermont, in a forcible opinion, held that a discharge so obtained should not be used

[Milhous v. Aicardi.]

as a shield for the bankrupt debtor in such a case.

Batchelder

v. Low, 43 Vermont, 662. The opposite of this proposition was maintained in the highest judicial court of Massachusetts, in Black v. Blazo, 117 Mass. 17. See, also, Corey v. Ripley, 56 Maine, 69; Way v. Howe, 108 Mass. 502; Burpee v. Sparhawk, Ib. 111.

It is well settled, that the omission through mistake, without fraud, of a debt, or of a creditor's name, from the schedules of a petitioning bankrupt, does not impair the efficacy of the discharge granted him. Numerous decisions to this effect are collected on page 930 of the 8th edition of Mr. Bump's Law and Practice of Bankruptcy. These decisions are founded on the idea, that by the publication and advertisement required by the 11th and 29th sections of the bankrupt act, now contained in part in sections 5019 and 5109 of the Revised Statutes of the United States, the parties concerned in the subjectmatter of a proceeding in bankruptcy had all the notice which the congress of the United States, whose control and jurisdiction over it are complete, thought indispensably necessary in a cause which is of the nature of a proceeding in rem. And the provision in the same law of congress, that the court granting to a bankrupt debtor a discharge from his debts shall have authority, upon sufficient reasons being shown, within two years afterwards, to set aside or annul such discharge, has been generally construed to be, in effect, an inhibition of a like authority to any other court, and also as prescribing a moderate and just period of time, not too late in the debtor's life, after which he shall not be harassed by charges, of which the evidence for his defence may be lost, and which might prevent him from prosecuting a subsequent career of industry and usefulness.

This policy rests upon the assumption, which is the basis of other enactments and legal requirements, that every person takes so much interest in the property which belongs, or the credits which are due to him, as to keep himself informed of all the circumstances which affect their value; and therefore, that if it shall happen that the leisurely proceedings which take place in open court, after advertisement in the public newspapers, for the release of a bankrupt debtor, escape while thus in progress the observation of his creditors, it is reasonably certain that their ignorance of his discharge will not continue two years after it was granted.

In the cause before us, the only fraud charged against the appellee relates to the omission of the appellant's name as one of his creditors. It is not alleged that the debtor did not surrender all his property and effects, or that the appellant had knowledge of facts which would have prevented the granting of a discharge. The only injury, inferable from the averments

[Milhous v. Aicardi.]

of the replication, that he can have sustained, is that he did not participate with other creditors in the distribution of the bankrupt's estate. In this respect, the appellant is no worse off than another creditor would be, whose name was omitted from the schedule only by mistake; and it is established, as we have seen, that the law affords no redress to such creditor. It would, we think, be a contravention of the law and policy of congress, in a matter over which it has exclusive jurisdiction, to allow the appellant to come in, and set aside, as to him, the discharge granted to his debtor by a district court of the United States, sitting in bankruptcy, and carrying out the provisions of the bankrupt act of 1867, upon an allegation by appellant, made more than two years after the granting of such discharge, that his name was fraudulently omitted from the schedules of his debtor.

The judgment of the court below is, therefore, affirmed.

VOL. LI.

INDEX.

ACTION.

1. By infant; when cause of action accrues.

When an infant sues to
enforce a right of action springing out of the performance of acts
which constitute an estoppel en pais, the cause of action in his
favor accrues, not from the time when the acts were done, but from
the subsequent time when, having attained his majority, he failed to
disaffirm them. Montgomery v. Gordon, 377.

2. By landlord, against purchaser of crop from tenant.

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The landlord
cannot maintain an action for money had and received, against one
who, with knowledge of his statutory lien on the tenant's crop (Rev.
Code, §§ 2961-63), and of the non-payment of the rent, purchases
the crop from the tenant, and sells it. Blum v. Jones, 149.

3. By reversioner, for injury to personal property. - A sale of the entire
interest in a personal chattel in which there is a reversion, whether
by the tenant of the particular estate or by a stranger, is an injury
to the reversion, for which the reversioner may maintain a special
action on the case; and although he afterwards regains the pos-
session, before the termination of the particular estate, or himself
becomes the purchaser at the sale, neither of these facts is, of itself,
a bar to the action. Williams v. Brassell, 397.
4. Against owner, for trespass by hogs.

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Trespass lies against the owner
of hogs, for injuries committed by them to the lands and crops of
another, although he had no notice in fact of their roving and mis-
chievous propensity. Gresham v. Taylor, 505.

5. Against principal or agent, for negligence of servants or sub-agents.
A contractor is not the agent of his employer, except as to the spe-
cific results which he undertakes to accomplish; and he is himself
responsible to third persons for his negligence, or for the negligence
of servants or other persons employed by him in the execution of the
work. Holt v. Whatley, 569.

6. When action lies on official bond of county treasurer.-

The failure of a

county treasurer to pay the certificate of a state witness, when it is
a charge on the fine and forfeiture fund of the county, and he has
proper funds with which to pay it, is a breach of the condition of
his official bond, for which an action lies. Briggs v. Coleman,

561.

7. When action lies on official bond of justice of the peace, for wrongful
arrest and imprisonment. Under the statute declaring the legal
effect of official bonds (Rev. Code, § 169), the sureties on the official
bond of a justice of the peace are liable, jointly with him, for a
wrongful arrest and imprisonment by him under color of his office.
Kelly v. Moore, 364.

8. Abatement and revivor of action. An action of unlawful detainer is
within the statute authorizing the revivor of "real actions to try the
title, or for the recovery of the possession of lands" (Rev. Code,
§ 2556); and on the death of the defendant, pending the action, it
may be revived against his personal representative. Ridgeway's
Adm'r v. Waugh, 423.

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ACTION- Continued.
9. Distinction between assumpsit and debt. — The Code abolishes the dis-
tinction existing at common law, between the actions of debt and
assumpsit, and makes the judgment the same for causes of action
recoverable in either form; consequently, an amendment of the
complaint, which would convert the action from one form into the
other, though unnecessary, is allowable. Knapp's Executor v. Kings-
bury, 563.

10. As to actions against the husband and wife, or against the wife's stat-
utory separate estate, for necessaries, see title HUSBAND AND Wife,

1-10.

ADVANCES ON CROPS.

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1. Mortgage and crop lien for advances; construction and registration of. —
An instrument of writing, which, by apt words, conveys the grantor's
growing crop and other personal property, to secure the payment of
a promissory note given for advances supplied to him; conditioned
to be void if the note is paid at maturity, and containing a power of
sale in the event of a default, is a mortgage, although the note
may also contain all the requisites of a statutory lien for advances
(Rev. Code, §§ 1858-60); and the failure to record it within sixty
days, which is necessary to its validity as a statutory lien, does not
prevent it from operating as a mortgage against all persons except
creditors and purchasers without notice. Gafford v. Stearns, 434.
2. Conflicting liens of landlord and mortgagee for advances. - In trover
by the mortgagee of a tenant, against the landlord, for the con-
version of the mortgaged crop, the defendant may show that, by the
terms of the contract of renting, which were not known to the
plaintiff, although he had knowledge of the renting, the tenant was
indebted to him for advances, and turned over the crop to him, be-
fore the expiration of the term, because he was himself unable to
gather it. Holman v. Lock's Adm'r, 287.

ADVERSE POSSESSION. See LIMITATIONS, STATUTE OF.

AGENCY.

1. Notice to agent or attorney. - Notice, actual or implied, to an agent, is
notice to his principal; yet, to charge the principal with implied
notice of facts, because they were known to his attorney, the attor-
ney's knowledge must be acquired during the existence of his agency.
Pepper & Co. v. George, 190.

2. Notice to agent, of dishonor of bill.—To charge a party with notice
of the dishonor of a bill of exchange, because notice was given to
another person as his agent, it must be shown that it was within the
scope of the agent's duties to receive such notice; and the mere
fact that he was "the financial agent" of his principal is not suf-
ficient proof of this. N. Y. & Ala. Contracting Co. v. Selma Savings
Bank, 305.

3. Liability of principal and agent, for negligence of servants or sub-agents.
A contractor is not the agent of his employer, except as to the
specific results which he undertakes to accomplish; and he is him-
self responsible to third persons for his negligence, or for the negli-
gence of servants or other persons employed by him in the execution
of the work. Holt v. Whatley, 569.

AMENDMENT.

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1. Of attachment, affidavit, and bond. — When an attachment is sued out
by a partnership, against a partnership, and the names of the indi-
vidual partners are nowhere stated, the affidavit, bond, and attach-
ment may be amended, on motion, so as to set out their names. Sims,
Harrison & Co. v. Jacobson & Co. 186.