In re Daniel P. Kingsley.

against foreign creditors, but in some respects quite the contrary; for if he has been beyond seas, he has a longer time allowed him. If within the United States, there is no reason for any discrimination in his favor. The complaint of any creditor that he might probably find a foreign forum, which, because it is foreign, would give him a remedy which he has lost by negligence in the true and proper forum, is not entitled to much consideration. One case of practical hardship may be put, and that is when a creditor has actually sued his debtor away from home, and obtained security by attachment or otherwise, which would be taken away by the bankruptcy, and yet he would have no right to prove his debt. I consider that the bankrupt law makes a sufficient provision for such a case, by enacting that an action might be prosecuted to final judgment, and the amount of the judgment be proved in bankruptcy.

I agree with Judge Blatchford, that the bankrupt, by putting the debt upon his schedule, does not make a new promise to pay it. This depends somewhat upon the particular statute of limitations, and it has been so decided in Massachusetts in a case under the state insolvent law, so called, which is a bankrupt law, though one limited and restrained in its operation by the Constitution of the United States. And it is so upon principle, because the debtor does not make out his schedule with any view to the payment, but to the discharge of his debts. And besides, the creditors have a right to plead the statute as well as he, and they are not bound by his schedule: Richardson v. Thomas, 13 Gray, 381; Roscoe v. Hale, 7 Gray, 274; Stoddard v. Doane, 7 Gray, 387, and see the cases in Roscoe v. Hale. In those cases, it is true, the debt was not barred when the schedules were made; but if the schedule were evidence of a new promise, two of those decisions must have been for the plaintiff, because the schedules have been made within six years before suit brought. The fact weakens the argument to this extent, that it cannot be said the debtor was merely carrying out his legal duty in putting the debt in his list, and that he did it, as it were,

In re Andrew J. Walker.

under legal compulsion, and not voluntarily. I do not suppose that he would be so bound in respect to this debt, but it still remains true that he did it diverso intuitu.

February, 1868.

Proof rejected.

U. S. DISTRICT COURT, MASSACHUSETTS.

The oath of allegiance annexed to the debtor's petition may be taken before a

register.

In re ANDREW J. WALKER.

LOWELL, J. One of the creditors objects that all the proceedings have been irregular and void, because the oath of allegiance annexed to the debtor's petition was taken before Mr. Sherman, one of the registers in bankruptcy for this district. This objection affects not only this case but nearly all others in the district, because the clerk, finding no warrant in the law or rules for administering this preliminary oath, has carefully abstained from doing so, and the several registers have been relied on for this business. It is argued that by section 4 of the act, registers are empowered to administer oaths in proceedings before them, and that no case is before them until it has been referred to them, and that this expression of one power impliedly excludes all others of a similar kind. This argument has much weight, and if this were the whole law on the subject, might be controlling, but there are other sections applicable to this question. By section 11 every petitioner for the benefit of the act shall annex to his petition a schedule, verified on oath before the court, or before a register in bankruptcy, or before one of the commis sioners of the circuit court, of his debts, &c., and an inventory verified in like manner, of his estate, &c., provided that all citizens of the United States shall take and subscribe the oath now in question. It is not said in terms, that this oath may be taken in the same way as the others which are in

In re Louis Glaser.

cluded in the same paragraph; but it would be no strained construction to hold that it is so intended.

Again, by section 10 the supreme court have power by rule to regulate the duties of the several offices of the district courts, and generally for carrying the provisions of the act into effect, and they have established forms of petition, which by the rules we are required to follow, and in that form, this oath is to be taken before a judge, register, or commissioner. I cannot but conclude that the supreme court either considered that the law was to be construed to include registers, or that by virtue of their full powers to regulate the duties of officers and practice generally, they saw fit, as well they might, to give them that authority.

183. Rr. 24.

U. S. DISTRICT COURT, S. D. NEW YORK.

A United States district court has power to relieve a bankrupt from arrest, on process of a state court, in an action founded upon a debt that may be discharged in bankruptcy. The question whether the debt be one contracted in fraud, may be examined into and determined by the district court.

In re LOUIS GLASER.

IN this case, the bankrupt filed his voluntary petition in bankruptcy on the 13th of January, 1868. Among the debts set forth in his petition is one to Townsend & Yale, of $451.20, for merchandise sold by them to him. On the 5th of February, 1868, Townsend & Yale commenced a suit against him in the superior court of the city of New York, to recover the debt. The complaint in the suit is founded solely on a sale and delivery of goods to the amount of the debt. On the same day, the bankrupt was arrested by the sheriff of the city and county of New York, on an order of arrest granted by the state court on the 4th of February, 1868, which required him to be held to bail in $650. The ground of arrest set forth in the affidavit, on which the order of arrest was granted, was that the bankrupt was guilty of a

In re Louis Glaser.

fraud in contracting the debt, and the circumstances alleged to constitute the fraud are set forth in the affidavit. The bankrupt now shows to this court, by affidavit, that, on the 15th of January, 1868, he was adjudicated a bankrupt and received from the register a certificate of protection; that, on his arrest, he gave to the sheriff the bail required; that all the allegations of fraud contained in the affidavit on which the order of arrest was granted are untrue; and that the debt to Townsend & Yale is one provable in bankruptcy, and one from which a discharge in bankruptcy will relieve him. He therefore applies to this court for an order discharging him from arrest, and discharging the bail which he has given. The application is founded on the last clause of the 26th section of the bankrupt act, which provides that "no bankrupt shall be liable to arrest during the pendency of the proceedings in bankruptcy, in any civil action, unless the same is founded upon some debt or claim from which his discharge in bankruptcy would not release him."

The creditors in this case have not proved their debt in the bankruptcy proceedings, and they raise an objection to the jurisdiction of this court to grant the relief asked by the bankrupt, on the ground that no power is conferred on this court by the bankrupt act to enforce the protection from arrest given by the 26th section, even though it should find that the bankrupt was arrested after the commencement of the proceedings in bankruptcy, and that his arrest was founded on a debt from which his discharge in bankruptcy would release him. The point taken is, that the circuit court for this district is the proper court to administer the relief sought, and not the district court; that, under the 2d section of the act, the circuit court has "a general superintendence and jurisdiction of all cases and questions arising" under the act, and, therefore, of this question, which arises under the 26th section; and can, on the application of the party aggrieved, hear and determine the case. It is urged that the jurisdiction invoked by the bankrupt on this application is not within the special grants of jurisdiction given by the 1st

In re Louis Glaser.

section of the act to the district court; that this is not a case or a controversy arising between the bankrupt and a creditor who claims a debt or demand under the bankruptcy; that it does not concern the collection of the assets of the bankrupt; that it does not concern the ascertainment or liquidation of any lien or other specific claim on any of such assets; that it does not concern the adjustment of any priority or conflicting interest in the sense in which that language is used in the 1st section; that it does not concern the marshalling or disposition of any of the funds or assets of the bankrupt; and that it does not concern any act, maker, or thing to be done by this court, under or in virtue of the bankruptcy, within the meaning of that language in the 1st section.

BLATCHFORD, J. The first clause of the 1st section of the act gives to the district court original jurisdiction in this district in all matters and proceedings in bankruptcy, and authorizes it to hear and adjudicate upon the same according to the provisions of the act; and that general grant of jurisdiction is followed by the special grant before referred to, extending such jurisdiction "to all acts, matters, and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt, and the close of the proceedings in bankruptcy." Registers are, by section 3, to be appointed "to assist the judge of the district court in the performance of his duties" under the act. By section 4, power is given to every register, and it is made his duty to grant protection." This undoubtedly means protection to the bankrupt from being arrested in cases where he is not liable to arrest-protection from arrests to which, by the 26th section, he is not liable. The justices of the supreme court have so construed it, for not only have they by General Order No. 5 defined one of the powers of a register to be to grant protection on the surrender of a bankrupt, but they have, by General Order No. 4, provided that a bankrupt "may receive from the register a protection against arrest, to continue until the final adjudication on his application for a discharge, unless suspended or vacated by order of the

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