§ 1817. Revocation of discharge. If creditors apply for a revocation of the discharge they must not be guilty of laches, and they must prove that the discharge was obtained through fraud of the bankrupt, or that the facts did not warrant the discharge, and that they did not know of the fraud in time to resist the discharge.108 It has also been held that a creditor who has had ample opportunity to introduce evidence against a discharge cannot have a case reopened for the purpose of introducing additional evidence, a year or more after the proofs have been formally closed.10

§ 1818. Proof of claims.-Whenever a creditor files his verified claim as directed by the statute, he has established the claim prima facie;108 and the party objecting to such claim has the burden of showing that the sworn statement is incorrect or he must at least produce evidence which will equal in probative force the sworn statement of the claimant.109 Any party in interest may object to a claim and is entitled to examine the claimant and other witnesses, if their

re, 119 Fed. (U. S.) 976; Duffy, In re, 118 Fed. (U. S.) 926.

106 Roosa, In re, 119 Fed. (U. S.) 542; Bankruptcy Act 1898, § 15, 30 Stat. L. 546, U. S. Comp. St. 1901, p. 3421; Hoover, In re, 105 Fed. (U. S.) 354; Hansen, In re, 107 Fed. (U. S.) 252; see Paine, In re, 127 Fed. (U. S.) 246.

ment is lost or destroyed, a statement of such fact and of the circumstances of such loss or destruction shall be filed under oath with the claim."

100 Sumner, In re, 101 Fed. (U. S.) 224, holds that, "the burden of proof is not upon the objector to disprove the claim, but he shall

107 Kentucky Nat. Bank v. Carley, produce evidence whose probative 127 Fed. (U. S.) 686.

108 Bankruptcy Act 1898, § 57, "(a) Proof of claims shall consist of a statement under oath, in writing, signed by a creditor setting forth the claim, the consideration therefor, and whether any, and, if so, what securities are held therefor, and whether any, and, if so, what payments have been made thereon, and that the sum claimed is justly owing from the bankrupt to the creditor. (b) Whenever a claim is founded upon an instrument of writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim. If such instru

force shall be equal to, or greater than the evidence offered in the first instance by the claimant. If the creditor shall have complied with section 57a, by filing with the referee a statement under oath, he shall be entitled to have his claim accepted, unless from some circumstances the referee demands further evidence from him, or unless an objection is interposed . . . which shall overthrow the presumptive case made by the claimant." See also, as to verification of claim, Pancoast, In re, 129 Fed. (U. S.) 643.

attendance can be secured without material delay; but the proceedings of the court should not be suspended and delayed when the witness is beyond the jurisdiction of the court unless the evidence is necessary to a just determination of the case.110 When, however, the referee is not satisfied with the evidence introduced, he may suspend action for a reasonable length of time in order to examine the bankrupt, but if this cannot be done, then the referee should decide upon the evidence presented.111 It was held under a former act that, in case the bankrupt is dead, the creditor is a competent witness against the estate,112 and that a wife may prove her claim against her husband's estate by testimony of the bankrupt, and that she is a competent witness herself.113

§ 1819. Compositions.-Examinations of the alleged bankrupt for the purpose of assisting the creditors in determining whether or not they will accept certain compositions114 as fair to all creditors, may be demanded by any creditor who opposes the adoption of the offer; and such creditor may require the bankrupt to produce his books and papers for examination.115 Any creditor may show that the proposed composition is not to the best interest of all creditors and may examine witness to that effect.116 Evidence of a preferred claim of one creditor is not admissible where a composition offered by the bankrupt has been accepted, and where the creditor failed to claim divi

ue Sumner, In re, 101 Fed. (U. S.) 224; Cliffe, In re, 97 Fed. (U. S.) 540; but see, Watkinson & Co., In re, 130 Fed. (U. S.) 218.

"Dreeben, In re, 101 Fed. (U. S.) 110; Bankruptcy Act 1898, § 57, sub. f., provides that, "Objections to claims shall be heard as soon as the convenience of the court and the best interests of the estates will permit."

No. 11770; Bean, In re, 14 Nat.
Bank. R. 182, 2 Fed. Cas. No. 1166.

114 Bankruptcy Act 1898, § 21, sub. f. & g. provide that, "A certified copy of an order of court confirming or setting aside a composition, shall be evidence of the jurisdiction of the court, the regularity of the proceedings, and of the fact that the order was made."

115 Godwin, In re, 122 Fed. (U. S.) 111; Bankruptcy Act 1898, § 12, sub. c.; Proby, In re, 17 Nat. Bank. R. 175, 20 Fed. Cas. No. 11439; Schwab, In re, 8 Ben. (U. S.) 353, 21 Fed. Cas. No. 12499.

11 Keller, In re, 14 Fed. Cas. No. 7654.

dends within a year, if the claim was omitted from the schedule in good faith.117

§ 1820. Record evidence.-"Certified copies of proceedings before a referee, or of papers, when issued by the clerk, or referee, shall be admitted as evidence with like force and effect as certified copies of the records of district courts of the United States are now or may hereafter be admitted as evidence."118 The inventory of a voluntary bankrupt or a certified copy thereof has been held competent against him in another suit, to prove his financial standing.119 An adjudication in bankruptcy, correct in form, is conclusive of the fact decreed and cannot be attached collaterally unless the attaching party can show some fraud or collusion in obtaining the decree. 120 Testimony of witnesses taken before the referee upon other issues cannot be introduced as evidence in another proceeding as against a claimant unless he was a party to and was allowed the privilege of cross-examination.120 But the testimony or deposition of a bankrupt, even if not signed or corrected by the bankrupt, given at any time during the course of the proceedings, either in resisting the petition to be thrown into bankruptcy or the hearing for discharge, may be admitted in later proceedings, where the person who took the notes testifies that they were truly and correctly taken.121

117 Lane, In re, 125 Fed. 772. 119 Bankruptcy Act 1898, § 21, sub. d.; Keller, In re, 109 Fed. (U. S.) 118; this includes approval of bond of trustee, confirmation or setting aside of a composition, granting or setting aside of a discharge, Act 1898, § 21, subs. e. f. g. div. 9.

119 Dupuy v. Harris, 6 B. Mon. (Ky.) 534.

120 Chapman v. Brewer, 114 U. S. 158, 5 Sup. Ct. 799; Michaels v. Post, 21 Wall. (U. S.) 398; Columbia Real Estate Co., In re, 101 Fed. (U. S.) 965; Graham v. Boston R. Co., 118 U. S. 161, 6 Sup. Ct. 1009; Roberts v. Shroyer, 68 Ind. 64; Livermore v. Swasey, 7 Mass. 213; Mount v. Manhattan Co., 41 N. J. Eq. 211, 3 Atl. 726; Bissell v. Post, 4 Day. (Conn.) 79.

120* Keller, In re, 109 Fed. (U. S.) 118.

121 Bard, In re, 108 Fed. (U. S.) 208; Wiswall v. Campbell, 93 U. S. 347, 23 L. ed. 923, holds that, "a proceeding in bankruptcy, from its commencement to its close upon the final settlement of the estate, is but one suit. The several motions made and acts done in the bankruptcy court in the progress of the cause are not distinct suits at law or in equity, but parts of one suit in bankruptcy, from which they cannot be separated." Wilcox, In re, 109 Fed. (U. S.) 628; Horgan, In re, 39 C. C. A. 118, 98 Fed. (U. S.) 414. As to the judgment of the referee being conclusive upon the parties until set aside, see, Rider, In re, 96 Fed. (U. S.) 811; Covington,

§ 1821. Discharge in bankruptcy as a defense.-As a general rule, except in instances in which it is otherwise provided by the bankruptcy law itself, a discharge in bankruptcy releases the bankrupt from all his provable debts; but it is generally regarded as a personal defense to the bankrupt and his representatives and must be affirmatively pleaded and proved as such. The burden is upon him to show the discharge; 122 but a certified copy of the order of the court granting the discharge is sufficient evidence thereof, and of the jurisdiction of the court, and of regularity of the proceedings.123 Where a bankrupt defends on the ground of his discharge in bankruptcy, he must generally show that the debt sued on was scheduled in time for proof and allowance; but it is held that where it appears on its face to be such as is prima facie provable, he is not required to allege that it was provable in the bankruptcy proceedings.124 Evidence is generally admissible, on the other hand, to show that the debts in question were not provable and were created by fraud, embezzlement, misappropriation or defalcation for the purpose of showing that they are not affected by the discharge.125

In re, 110 Fed. (U. S.) 143; Stout,
In re, 109 Fed. (U. S.) 794.

122

Gregory v. Edgerly, 17 Neb. 374, 22 N. W. 703; Cooper v. Cooper, 9 Stew. (N. J. Eq.) 566; Boas v. Hetzel, 3 Pa. St. 298.

Hays v. Ford, 55 Ind. 52; Morse v. Cloyes, 11 Barb. (N. Y.) 100; Pennell v. Percival, 13 Pa. St. 197; Bankruptcy Act 1898, § 21, sub. f., states that a certified copy shall be evidence of jurisdiction of the court, regularity of proceedings and the fact that the order was made.

124 Bailey v. Gleason, 56 Atl. 537; but it need not appear that they

were scheduled in time if the creditor had due notice or actual knowledge of the proceedings. Fider v. Mannheim, 78 Minn. 309, 81 N. W. 2.

123 Ruff v. Milner, 92 Mo. App. 620; Bullis, In re, 68 App. Div. (N. Y.) 508, affirmed in 171 N. Y. 698, 64 N. E. 1119; Lewensohn, In re, 99 Fed. (U. S.) 73; Bennett v. Justices, 166 Mass. 126, 44 N. E. 121; Freeland v. Williams, 131 U. S. 405, 9 Sup. Ct. 763; Cole, In re, 106 Fed. (U. S.) 837; Gerner v. Yates, 61 Neb. 100, 84 N. W. 596; Warren v. Robinson, 21 Utah 429, 61 Pac. 28.

§ 1822. Generally.-It is said by Professor Greenleaf that: "As the acceptor of a bill of exchange and the maker of a promissory note stand in the same relation to the holder, the note being of the nature of a bill drawn by a man on himself, and accepted at the time of drawing, the rules of evidence are, in both cases, the same. The liabilities of the parties to the instruments are of three general classes:—(1) primary and absolute liability; such as that of the acceptor of a bill or maker of a note, to the payee, indorsee, and bearer; (2) secondary and conditional liability; such as that of the drawer of a bill, to the payee or indorsee, and of the indorser to the indorsee; (3) collateral and contingent liability; such as that of the acceptor to the drawer or indorser, and of the drawer to the acceptor. And, accordingly, the action upon a bill or note will be brought, either; (1) by the payee or bearer against the acceptor or maker; (2) by the indorsee against the acceptor or maker; (3) by the payee against the drawer of a bill; (4) by the indorsee against the drawer of a bill, or against the indorser of a bill or note; (5) by the drawer or indorser of a bill against the acceptor; (6) by the acceptor against the drawer."1

12 Greenleaf Ev. § 154.