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beis (1849) 11 Pa. 13. Or where the bankrupt promises to pay the debt in full if the creditor will pay the taxes for a year on certain property, which is done. Thornberry v. Dils (1882) 80 Ky. 241.

A promise to pay a particular creditor in full if he will refrain from opposing the bankrupt's application for a discharge, or if he will dismiss a proceeding to set aside the discharge, is fraudulent and void. Tirrell v. Freeman (1885) 139 Mass. 297, 1 N. E. 350; Fell v. Cook (1876) 44 Iowa, 485. If the condition was not in the nature of an election offered to the creditor, but contained something personal to the bankrupt, or involved the occurrence of a future event or the future existence of a certain state of affairs, then it must be pleaded and shown that the condition has been fulfilled or, as the case may be, that the event has happened or that the contemplated state of affairs now exists. Smith v. Stanchfield (1901) 84 Minn. 343, 87 N. W. 917; Stern v. Bradner Smith & Co. (1907) 225 Ill. 430, 80 N. E. 307, 116 Am. St. Rep. 151; Griel v. Solomon (1886) 82 Ala. 85, 2 South. 322, 60 Am. Rep. 733; Apperson v. Stewart (1872) 27 Ark. 619; Tolle v. Smith (1895) 98 Ky. 464, 33 S. W. 410; Yate v. Hollingsworth (1821) 5 Har. & J. (Md.) 216; La Tourrette v. Price (1855) 28 Miss. 702; Goldman v. Abrahams (1880) 9 Daly (N. Y.) 223; Lanier v. Tolleson (1883) 20 S. C. 57; Sherman v. Hobart (1853) 26 Vt. 60; Dearing v. Moffitt (1844) 6 Ala. 776; Richardson v. Bricker (1883) 7 Colo. 58, 1 Pac. 433, 49 Am. Rep. 344.

If the bankrupt promises to pay the debt after the lapse of a certain time, no action can be maintained on the debt or the new promise until such time has elapsed. Arnold v. Elliott (1846) 7 Humph. (Tenn.) 354. The bankrupt's undertaking to pay the debt when he completes a certain contract, when he collects certain claims due to him, when he returns from a contemplated journey, or the like, does not make the promise a conditional one, but is rather to be regarded as a specification of the time for payment. Eaton v. Yarborough (1855) 19 Ga. 82; Swan v. Lullman (1882) 12 Mo. App. 584. A promise to pay "as soon as possible," made after a discharge in bankruptcy, is not a conditional promise. Sundling v. Willey (1905) 19 S. D. 293, 103 N. W. 38, 9 Ann. Cas. 644. Where the bankrupt's promise is that, if he had not paid a certain debt, contracted before the bankruptcy, he would pay it, the creditor has only to prove that the debt has not been paid, and then the promise becomes absolute. Hill v. Kendall (1853) 25 Vt. 528. A promise that, if the creditor should lose a certain case then pending in the appellate court, the bankrupt would make it good to him, becomes enforceable upon the determination of the appeal adversely to the

creditor. Herndon v. Givens (1849) 16 Ala. 261. A promise to do certain work and apply it on a debt discharged by bankruptcy cannot be construed into a promise to pay the debt in any other way. Lawrence v. Harrington (1890) 122 N. Y. 408, 25 N. E. 406. A promise to pay "as soon as I get through with that squaring up" is not sufficient to revive the debt, unless it is shown exactly what was meant by the "squaring up." Stern v. Nussbaum (1874) 5 Daly (N. Y.) 382.

A condition attached to the promise may be waived by the bankrupt, and will be considered as having been waived by his making payments on the debts prior to the happening of the condition. Tompkins v. Hazen (1898) 30 App. Div. 359, 51 N. Y. Supp. 1003. But see this case on appeal (1900) 165 N. Y. 18, 58 N. E. 762.

46. Promise to pay when able.-A promise by a discharged bankrupt to pay an antecedent debt as soon as he is able (or as soon as he can, or as soon as he has the money, or the like), though it is a conditional promise, is not void for uncertainty, but is capable of enforcement by suit. Kraus v. Torry (1905) 146 Ala. 548, 40 South. 956; Torry v. Krauss (1907) 149 Ala. 200, 43 South. 184; Griel v. Solomon (1886) 82 Ala. 85, 2 South. 322, 60 Am. Rep. 733; Egbert v. McMichael (1848) 9 B. Mon. (Ky.) 44; Eckler v. Galbraith (1876) 12 Bush (Ky.) 71. Compare Bigelow v. Norris (1885) 139 Mass. 12, 29 N. E. 61; Elwell v. Cumner (1883) 136 Mass. 102.

In order to recover on such a promise, the creditor must plead and prove that the debtor is presently able to pay the debt. Patten v. Ellingwood (1850) 32 Me. 163; Green v. McGowan (1886) 7 Ky. Law Rep. 661; Taylor v. Nixon (1857) 4 Sneed (Tenn.) 352; Stern v. Gerber (Sup. 1912) 137 N. Y. Supp. 879; Torry v. Krauss (1907) 149 Ala. 200, 43 South. 184; Mason v. Hughart (1849) 9 B. Mon. (Ky.) 480. It is, however, no ground of demurrer to the declaration in such a suit that it does not state in what the defendant's ability to pay consists. Horner v. Speed (1857) 2 Pat. & H. (Va.) 616.

To sustain the burden of proving the debtor's ability to pay, the creditor must show his present possession of sufficient and available means. Proof of his ability to borrow the money is not sufficient. The defendant is entitled to show what portion of his earnings it is necessary for him to use for the support of himself and his family, and if the residue is insufficient to pay the debt, ability to pay is not shown. Kraus v. Torry (1905) 146 Ala. 548, 40 South. 956. And the law does not require the debtor to reduce his family expenditures to such a point that enough will remain to satisfy the creditor. Torry v. Krauss (1907) 149 Ala. 200, 43 South. 184. Though the plaintiff may show that the defendant has

establishing his claim, may obtain a general judgment. Hill V. Harding (1882) 107 U. S. 633, 2 Sup. Ct. 404, 27 L. Ed. 493; Byers v. First Nat. Bank (1877) 85 Ill. 423; Tinkum v. O'Neale (1869) 5 Nev. 93.

A creditor enforcing an execution on a judgment recovered in the state court, in defiance of an injunction of the court of bankruptcy, in which the debtor has filed a voluntary petition, is guilty of contempt. In re Atkinson (D. C. 1872) 7 N. B. R. 143, Fed. Cas. No. 606. Where a bankrupt obtained an injunctive order from the bankruptcy court staying all suits and proceedings against him on the part of certain creditors, their agents and attorneys, to collect certain specified debts, and thereupon a suit by one of the creditors was discontinued, and afterwards a new suit was brought through the same attorney in the same court for the recovery of the same debt, with allegations of fraud, it was held that the last named suit was a violation of the injunction. In re Schwarz (D. C. 1882) 14 Fed. 787. The jurisdiction of the court of bankruptcy to issue an injunction of this kind may be inquired into by the state court, and if the latter finds that the federal court has acted without authority, the injunction may be disregarded, or the parties may be enjoined from attempting to enforce it. Kittredge v. Emerson (1844) 15 N. H. 227.

A sale of property of the bankrupt on execution, after notice of an injunction granted by the court of bankruptcy staying further proceedings in the ac'tion, will render the officer liable. Stinson v. McMurray (1845) 6 Humph. (Tenn.) 339.

Where the suit is against the bankrupt and another jointly, and proceedings are stayed as to the bankrupt, judgment may be rendered against both defendants, and an order made staying execution as to the bankrupt until the question of his discharge is determined. Byers v. First Nat. Bank (1877) 85 Ill. 423.

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Where a creditor has already recovered judgment against the bankrupt and a third person, though he is enjoined from enforcing execution against the bankrupt, this does not affect his right to proceed against the other defendant. Penny v. Taylor (D. C. 1874) 10 N. B. R. 200, Fed. Cas. No. 10,957.

15. Effect of grant or denial of discharge. An injunction issued by the court of bankruptcy, staying proceedings against the bankrupt in a state court until the question of his discharge shall have been determined, if not ipso facto dissolved by the granting of the discharge, should ordinarily be vacated as a matter of course on the application of the creditor who was stayed or enjoined. In re Rosenthal (D. C. 1901) 108 Fed. 368, 5 Am. Bankr. Rep. 799; In re Flanders (D. C. 1903) 121 Fed.

936, 10 Am. Bankr. Rep. 379; In re Thomas (D. C. 1869) 3 N. B. R. 38, Fed. Cas. No. 13,890; Kittredge v. Emerson (1844) 15 N. H. 227. The same action should be taken by a state court, when the stay of proceedings was granted by it. Wakeman v. Throckmorton (1902) 74 Conn. 616, 51 Atl. 554.

An injunction obtained ex parte in the bankruptcy court, after the discharge has been granted, continuing the previous injunction, was held to have been improvidently granted and was vacated. In re Herzberg (D. C. 1885) 25 Fed. 699.

If the defendant fails to obtain his discharge, an action pending against him in a state court at the time of the adjudication survives. American Woolen Co. v. Maaget (1912) 86 Conn, 234, 85 Atl. 583.

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16. Pending actions by bankrupt as plaintiff.-A pending action will abate merely by reason of the bankruptcy of the plaintiff. Thatcher v. Rockwell (1881) 105 U. S. 467, 26 L. Ed. 949; King v. Morrison (1844) 5 Ark. 519; Pittsburgh, C. & St. L. R. Co. v. Nuzum (1878) 60 Ind. 533; Springer v. Vanderpool (1844) 4 Edw. Ch. (N. Y.) 362; Griffin v. Mutual Life Ins. Co. (1904) 119 Ga. 664, 46 S. E. 870.

The transfer of the right of action in a pending suit to a trustee in bankruptcy is a matter of defense to be set up by the defendant, and the failure of the plaintiff to disclose the fact of his bankruptcy is not a fraud nor ground for a new trial. Coulson v. Ferree (1904) 26 Ky. Law Rep. 959, 82 S. W. 1000. Where no trustee has been appointed, the bankrupt still retains title to his property, and may maintain a suit on a chose in action. Rand v. Iowa Cent. R. Co. (1906) 186 N. Y. 58, 78 N. E. 574, 116 Am. St. Rep. 530, 9 Ann. Cas. 452.

If the trustee in bankruptcy declines to prosecute an action begun by the bankrupt, or expressly or impliedly renounces his claim to do so, the suit may be continued by the bankrupt in his own name and for his own benefit. Greenall v. Hersum (1915) 220 Mass. 278, 107 N. E. 941; Hubbard v. Gould (1906) 74 N. H. 25, 64 Atl. 668; Griffin v. Mutual Life Ins. Co. (1904) 119 Ga. 664, 46 S. E. 870; Towle v. Rowe (1878) 58 N. H. 394; Ramsey v. Fellows (1879) 58 N. H. 607; Conner v. Southern Expr. Co. (1871) 42 Ga. 37,5 Am. Rep. 543, 9 N. B. R. 138. But see Peters v. Wallace (1887) 4 S. W. 914, 9 Ky. Law Rep. 215. Before a bankrupt can maintain an action on a claim which, under the adjudication in bankruptcy, passed to his trustee, on the ground that the trustee elected not to take such claim, it devolves upon the bankrupt to show that the trustee was informed of the nature of the claim and that he elected not to take it.

(1883) 74 Ala. 99, 49 Am. Rep. 809; Nowland v. Lanagan (1885) 45 Ark. 108; Classen v. Schoenemann (1875) 80 Ill. 304, 16 N. B. R. 98; Turner v. Chrisman (1851) 20 Ohio, 332; Hubbard v. Farrell (1882) 87 Ind. 215; Spooner v. Russell (1849) 30 Me. 454; Craig v. Seitz (1886) 63 Mich. 727, 30 N. W. 347.

48. Burden of proof and evidence.The burden rests on the plaintiff in an action, to prove a new promise to pay a debt released by the defendant's discharge in bankruptcy, and this fact he must establish by clear and satisfactory evidence. Old Town Nat. Bank of Baltimore v. Parker (1913) 121 Md. 61, 87 Atl. 1105; Goldstein v. Saur (Tex. Civ. App. 1913) 162 S. W. 441; Pearsall v. Tabour (1906) 98 Minn. 248, 108 N. W. 808; Brooks v. Paine (1903) 77 S. W. 190, 25 Ky. Law Rep. 1125; Griel v. Solomon (1886) 82 Ala. 85, 2 South. 322, 60 Am. Rep. 733; Badger v. Gilmore (1856) 33 N. H. 361, 66 Am. Dec. 729; Spaulding v. Vincent (1852) 24 Vt. 501; Haines v. Stauffer (1850) 13 Pa. 541, 53 Am. Dec. 493;

Dye v. Bertram, 6 Am. Law Rep. 355; Atwood v. Gillett (1846) 2 Doug. (Mich.) 206.

The proof must correspond with the allegations of the declaration, and if plaintiff alleges an unconditional promise of defendant to pay, proof of a conditional promise will not authorize a recovery. Buford v. Crigler (1886) 7 Ky. Law Rep. 662; Doom v. Snyder (1888) 10 Ky. Law Rep. 281. On any doubtful or conflicting testimony, the question whether a new promise was made must go to the jury. Bennett v. Bennett (1855) 3 R. I. 152, 67 Am. Dec. 498; United Society in Canterbury v. Winkley (1856) 7 Gray (Mass.) 460. If there is any doubt or ambiguity as to the debt to which the new promise was meant to apply, the plaintiff must identify it by strong and positive proof. Pearsall v. Tabour (1906) 98 Minn. 248, 108 N. W. 808. If the original debt was evidenced by a promissory note, the note itself may be given in evidence to show the consideration for the new promise. Egbert v. McMichael (1848) 9 B. Mon. (Ky.) 44.

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§ 9602. (Act July 1, 1898, c. 541, § 18, as amended, Act Feb. 5, 1903, c. 487, § 6.) Process, pleadings, and adjudications. Process, Pleadings, and Adjudications.-a Upon the filing of a petition for involuntary bankruptcy, service thereof, with a writ of subpoena, shall be made upon the person therein named as defendant in the same manner that service of such process is now had upon the commencement of a suit in equity in the courts of the United States, except that it shall be returnable within fifteen days, unless the judge shall for cause fix a longer time; but in case personal service can not be made, then notice shall be given by publication in the same manner and for the same time as provided by law for notice by publication in suits to enforce a legal or equitable lien in courts of the United States, except that, unless the judge shall otherwise direct, the order shall be published not more than once a week for two consecutive weeks, and the return day shall be ten days after the last publication unless the judge shall for cause fix a longer time. b The bankrupt, or any creditor, may appear and plead to the petition within five days after the return day, or within such further time as the court may allow.

c All pleadings setting up matters of fact shall be verified under oath.

d If the bankrupt, or any of his creditors, shall appear, within the time limited, and controvert the facts alleged in the petition, the judge shall determine, as soon as may be, the issues presented by the pleadings, without the intervention of a jury, except in cases where a jury trial is given by this Act, and makes the adjudication or dismiss the petition.

e If on the last day within which pleadings may be filed none are filed by the bankrupt or any of his creditors, the judge shall on the next day, if present, or as soon thereafter as practicable, make the adjudication or dismiss the petition.

f If the judge is absent from the district, or the division of the district in which the petition is pending, on the next day after the last day on which pleadings may be filed, and none have been filed by the bankrupt or any of his creditors, the clerk shall forthwith refer the case to the referee.

g Upon the filing of a voluntary petition the judge shall hear the petition and make the adjudication or dismiss the petition. If the judge is absent from the district, or the division of the district in which the petition is filed at the time of the filing, the clerk shall forthwith refer the case to the referee. (30 Stat. 551. 32 Stat. 798.)

Said subdivisions a and b were amended by Act Feb. 5, 1903, c. 487, § 6, cited above, to read as set forth here.

In this section, as originally enacted, subdivisions a and b were as follows: "a Upon the filing of a petition for involuntary bankruptcy, service thereof, with a writ of subpoena, shall be made upon the person therein named as defendant in the same manner that service of such process is now had upon the commencement of a suit in equity in the courts of the United States, except that it shall be returnable within fifteen days, unless the judge shall for cause fix a longer time; but in case personal service can not be made, then notice shall be given by publication in the same manner and for the same time as provided by law for notice by publication in suits in equity in courts of the United States.

"b The bankrupt, or any creditor, may appear and plead to the petition within ten days after the return day, or within such further time as the court may allow."

Section 19 of said amendatory Act Feb. 5, 1903, c. 487, 32 Stat. 801, provided that the act should not apply to bankruptcy cases pending when it took effect, but that such cases should be adjudicated and disposed of conformably to the provisions of the original act.

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219 Fed. 690, 135 C. C. A. 362, affirming order In re Mitchell & Co. (D. C. 1914) 211 Fed. 778.

Petitions in bankruptcy will not be placed on file nor considered unless made out on the prescribed printed forms, written or typewritten petitions being returned to the parties without action. Mahoney V. Ward (D. C. 1900) 100 Fed. 278, 3 Am. Bankr. Rep. 770.

It is not a sufficient reason for rejecting a petition in bankruptcy that the petitioning creditor first wrote his name in the petition in an abbreviated form, and that this was then erased and the name written in full. Malcom (D. C. 1842) Fed. Cas. No. 8,986.

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A petition in bankruptcy filed before the promulgation of the official forms by the Supreme Court should not be dismissed for want of conformity thereto, but the court will order a new petition, in the form prescribed, to be filed nunc pro tunc, the original petition, however, not to be withdrawn from the files. In re Ogles (D. C. 1899) 93 Fed. 426, 1 Am. Bankr. Rep. 671.

A creditor's petition in bankruptcy, being in fact an original petition, is not deprived of its character as such merely because it contains a prayer by the petitioner to intervene in earlier proceedings, as a cautionary measure, in order that he might not be unrepresented in such earlier proceedings. In re Haff (1905) 136 Fed. 78, 68 C. C. A. 646, 13 Am. Bankr. Rep. 362.

The court will consider a petition in bankruptcy as the joint act of all the petitioners, and willful falsehood in one petitioner's verification will cause the summary dismissal of the petition as the fraud of all, and no copetitioner's prayer for an amendment will be heard. In re Keiler (D. C. 1878) 18 N. B. R. 10, Fed. Cas. No. 7,647.

2. In partnership cases.-In proceedings in bankruptcy against a partnership, the general form for a creditors' petition should be used, with such adaptations as will meet the exigencies of the particular case. Mather v. Coe (D. C. 1899) 92 Fed. 333, 1 Am. Bankr. Rep. 504. And see In re Farley (D. C. 1902) 115 Fed. 359, 5 Am. Bankr. Rep. 266; In re Gay (D. C. 1899) 98 Fed. 870, 3 Am. Bankr. Rep. 529; In re Russell (D. C. 1899) 97 Fed. 32, 3 Am. Bankr. Rep. 529.

Where a voluntary petition by partners prays that "the petitioners" may be adjudged bankrupt, instead of "the said firm," but otherwise follows the official form, the variance is not material. In re Meyers (D. C. 1899) 97 Fed. 757, 3 Am. Bankr. Rep. 260.

Proceedings to adjudge a partnership bankrupt, after its dissolution by the death of one of the partners, are not invalidated by the fact that the petition did not refer to the deceased partner, nor disclose that the partners

named were surviving partners, when the business was being continued as provided in the partnership articles. In re Coe (D. C. 1907) 157 Fed. 308, 19 Am. Bankr. Rep. 618. And see Hawkins v. Quinette (1911) 156 Mo. App. 153, 136 S. W. 246.

A petition in bankruptcy, whether by or against the firm, should set out the individual names of all the partners. Adams v. May (C. C. 1885) 27 Fed. 907. This rule applies where one member of a firm files his own petition in bankruptcy, but with the object of obtaining a discharge from the firm debts as well as his individual debts. In re Laughlin (D. C. 1899) 96 Fed. 589, 3 Am. Bankr. Rep. 1.

3. Allegations of petition as to petitioning creditors and their claims.The allegation as to the number of the bankrupt's existing creditors need not be made as a direct assertion of fact, but may be made upon information and belief. In re Scammon (D. C. 1874) 10 N. B. R. 66, Fed. Cas. No. 12,430; In re Joliet Iron & Steel Co. (D. C. 1874) 10 N. B. R. 60, Fed. Cas. No. 7,436; In re Scammon (D. C. 1874) 11 N. B. R. 280, Fed. Cas. No. 12,429; In re Mann (C. C. 1876) 14 N. B. R. 572, Fed. Cas. No. 9,033; Perin & Gaff Mfg. Co. v. Peale (D. C. 1878) 17 N. B. R. 377, Fed. Cas. No. 10,981; In re Roberts (1880) 71 Me. 390.

The petition should allege that the claims of the petitioning creditors amount to the jurisdictional sum, but the want of such an averment may be cured by amendment. In re Pangborn (D. C. 1910) 185 Fed. 673, 26 Am. Bankr. Rep. 40; Roche v. Fox (D. C. 1877) 16 N. B. R. 461, Fed. Cas. No. 11,974; Ex parte Shouse (D. C. 1842) Fed. Cas. No. 12,815.

An allegation that the proposed bankrupt owes a debt, but not that it is due to the petitioning creditor, is insufficient. In re Western Sav. & Trust Co. (D. C. 1877) Fed. Cas. No. 17,442.

The particulars of the claims should be so far explained in the petition that the court may see, on the face of it, that they are provable debts. In re Farthing (D. C. 1913) 202 Fed. 557, 29 Am. Bankr. Rep. 732; In re Hadley (D. C. 1875) 12 N. B. R. 366, Fed. Cas. No. 5,894; In re Harmon (C. C. 1877) Fed. Cas. No. 6,078; In re White (D. C. 1905) 135 Fed. 199, 14 Am. Bankr. Rep. 241.

The provision of section 9641, post, requiring the consideration of a claim to be set forth and sworn to, relates to the proof of the claim and not to the averments of the petition. In re Brett (D. C. 1904) 130 Fed. 981, 12. Am. Bankr. Rep. 492.

The description of the several debts need not state whether they are secured or unsecured. In re Harmon (C. C. 1877) Fed. Cas. No. 6,078. An allegation that the indebtedness of the respondent to one of the petitioners was fraudulently contracted is imperti

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