a notice of application for discharge, and for stationery, but not for services in making copies of the petition for the discharge." 58 The mere omission of a debt from the schedule is not ground for setting aside his discharge, and an order vacating the discharge and permitting the addition made without notice to the creditor is void.59 Where the actual facts did not warrant the discharge and there was fraud on the part of the bankrupt in sending notice of application for his discharge to a creditor at a wrong address, the discharge will be vacated.60 B. Grounds for refusal.-It is not ground for refusing a discharge that the bankrupt omifted creditors from the schedule, nor because he had made a false oath in bankruptcy proceedings against a corporation in which he was an officer," nor will bad faith be presumed from a mere under or over statement of debts." 68 65 The willful and fraudulent concealment of property by the bankrupt will deprive him of his right to a discharge, and it is such a concealment for the bankrupt to fail to schedule an interest as a cestui que, or a contract under which he was to receive money, though nominally assigned to another, where it was treated by the bankrupt and the assignee as belonging to the former," or to schedule only a portion of shares of corporate stock claimed as exempt when he had a contract by which he was to receive a larger number of shares ;67 but the mere omission of exempt property, or a failure to name certain corporate stock in his schedule or that he undervalued it," or that he omitted a conveyance of land which might have been subjected to the payment of the creditor's debts, made more than three years before the passage of the bankruptcy act,70 or that he undervalued certain real interests,"1 or that there had been a large shrinkage in the property of the bankrupt previous to filing of petition" is not alone sufficient to show a concealment. The bankrupt has the burden of proving that money received by him after the appointment of the trustee was paid to the trustee.73 The charge of fraudulent concealment of property should be supported by a fair preponderance of credible evidence." Failure to keep books of account.-The omission of sales from books of account," or loans to the bankrupt though made a few months before the bankruptcy 55. In re Dixon, 114 Fed. 675. 56. In re Dixon, 114 Fed. 675. 57. In re Dixon, 114 Fed. 675. 58. The creditor not having knowledge of bankruptcy proceedings in time to have proved his claim since in such case he is not prejudiced-In re Monroe, 114 Fed. 398; In re Hawk (C. C. A.) 114 Fed. 916. 59. In re Hawk (C. C. A.) 114 Fed. 916. 60. Facts held to show a fraudulent concealment of property and fraud in sending notice of applications of discharge warrantIng a vacation of the discharge-In re Roosa, 119 Fed. 542. 61. In Blalock, 118 Fed. 679; In Monroe. 114 Fed. 398. re re 67. 68. 69. 70. In re Semmel, 118 Fed. 487. In re Semmel, 118 Fed. 487. In re Countryman, 119 Fed. 639; Paxton v. Scott (Neb.) 92 N. W. 611. 71. It appeared that the bankrupt did not know his exact interest in certain land, and in the schedule claimed a half interest when in fact he had a life interest-In re Blalock, 118 Fed. 679. 72. In re Leslie. 119 Fed. 406. 73. Evidence held sufficient to show that money received by the bankrupt after filing of petition had not been paid over to his trustee-In re Leslie, 119 Fed. 406. 74. re In re Leslie, 119 Fed. 406; In re Sals62. Bankruptcy Act 1898. §§ 14, 29, subd. bury, 113 Fed. 833. Weight to be given to b (2) In re Blalock, 118 Fed. 679. bankrupt's testimony-In Baldwin, 119 63. Sufficiency of evidence to show bad Fed. 796. Evidence held sufficient to show a fraudulent concealment of assets-In re faith in the statement of Indebtedness-In re Miner. 114 Fed. 998. Evidence held in- Baerncopf, 117 Fed. 975; In re Blalock, 118 sufficient to show that the bankrupt had Fed. 679; In re Schenck, 116 Fed. 554; In made false oath with respect to a claim re Lesser (C. C. A.) 114 Fed. 83; In re Holagainst which he scheduled-In re Miner, 117 stein, 114 Fed. 794; In re Otto, 115 Fed. 860; Fields v. Karter (C. C. A.) 115 Fed. 950. Fed. 953. To show fraud in listing creditors as would justify a refusal to set aside a judgment released by the bankrupt's discharge as provided by N. Y. Code Civ. Proc. § 1268-In re Mollner, 75 App. Div. (N. Y.) 441. 64. In re Leslie. 119 Fed. 406. 65. Hudson v. Mercantile Nat. Bank (C. C. A.) 119 Fed. 346. Though advised by an attorney that he had been divested of all interest therein-In re Stoddart, 114 Fed. 486. 66. In re Semmel, 118 Fed. 487. 75. Bankruptcy Act. § 14b (2). Though the bankrupt kept full books of accounts, but act was passed," and though entered in private books continually in the bankrupt's possession and concealed by him," is not the keeping of proper books of account within § 14, b, (2). Where the bankrupt's condition for at least a year prior to his failure was one of such hopeless insolvency that he would be presumed to have known it, a failure to keep the requisite books of account will be considered to have been in contemplation of bankruptcy.78 The destruction of books material to the proper condition of the bankrupt, though the books were the books of account of a firm of which bankrupt had been a member, is ground for refusal of his discharge." C. Liabilities released.-Choses in action which by operation of the act passed to the trustee, though not scheduled or reduced to the trustee's possession, are barred by a discharge in bankruptcy so where the creditor had actual knowledge of the proceedings,81 otherwise where he had no notice of the proceeding until too late to prove the claim.82 84 83 85 A valid lien acquired more than four months before the filing of a petition in bankruptcy, and not proved against the estate, is not affected by the bankrupt's discharge, whether the lien was contracted or judicial, or statutory, as a mechanic's liens and such a lien is acquired by the commencement of a judgment creditor's suit before the bankruptcy of the judgment debtor,87 or an action to establish a special lien on the property,88 and a lien of garnishment. 89 Therefore, after the discharge in bankruptcy, the stay of an attachment may be vacated and judgment rendered against the attached property, or the plaintiff may take a judgment with a perpetual stay." An attachment lien acquired pending bankruptcy proceedings does not survive the defendant's discharge in bankruptcy.02 94 93 90 Under the act of 1898, a cause of action for a debt created by fraud is nct barred by a discharge of defendant in bankruptcy, which is not limited to common law actions of fraud or deceit, nor need it have accrued while the bankrupt was acting as an officer or in some fiduciary capacity," nor is it barred by filing proof thereof with the trustee, though the claimant may have waived the cause of action for the tort, and a failure to return an overpayment made by mistake on 96 falled to produce them until compelled to do 80, and then produced but one book which omitted certain sales, and his explanation that the omitted ones were made to his son under an agreement that he should offset them against previous shortages in other sales-In re McBachron, 116 Fed. 783. 76. In re Feldstein (C. C. A.) 115 Fed. 25%; In re Greenberg, 114 Fed. 773. 87. Within N. Y. Code Civ. Pro. § 1268 authorizing the cancellation of judgments against discharged bankrupts except "where the judgment was a lien on real property owned by the bankrupt before he was adjudged bankrupt," and the judgment creditor who had brought the suit is entitled to have the judgment stand for the purpose of enforcing the lien as acquired-Arnold v. Tre 77. In re Feldstein (C. C. A.) 115 Fed. viranus (N. Y.) 78 App. Div. 589. 259. 79. In re Conley, 120 Fed. 42. 78. In re Feldstein (C. C. A.) 115 Fed. 259. 88. 89. 90. McCall v. Herring (Ga.) 42 S. E. 468. 616. 80. Especially where the creditors whose debts were discharged received nothing from the estate-Scruby v. Norman, 91 Mo. App. 517. 81. Zimmerman V. Ketchum (Kan.) 71 Pac. 264; Graham v. Richerson, 115 Ga. 1002. 82. In re Monroe, 114 Fed. 398. 3. Bankruptcy Act 1898 merely takes away from the lien creditor the right to proceed against the debtor in personam-Evans 7. Rounsaville, 115 Ga. 684; Wenhamm v. Mallin, 103 Ill. App. 609. $4. Philmon v. Marshall (Ga.) 43 S. E. 48. Evans v. Rounsaville. 115 Ga. 684. 65. Paxton v. Scott (Neb.) 92 N. W. 611. 86. Such a lien is not acquired by legal 166. Proceedings within § 67b-Holland v. Cun1. 96 Mo. App. 67. Cur. Law-22. 96. Frey v. Torrey (N. Y.) 70 App. Div. 166. 98 demand is not a fraud within the act. Under the amendment of 1903, however, a claim based on fraud while acting as an officer or in a fiduciary capacity alone is excepted, and technical trusts and not implied trusts are embraced within the term "fiduciary capacity;" therefore a claim against the bankrupt as administrator,' or for the conversion of the proceeds of property sold under a deed of trust by the trustee, or to enforce a trust in land of the bankrupt held by another, or for trust funds deposited with the bankrupt banker merely for transmission to parties entitled thereto are not barred; but a claim for goods procured by fraudulent representations is. Whether the action was for fraud is conclusively determined by the judgment in the state court, though the entire record may be examined." Interest collected on funds in the hands of one acting in a fiduciary capacity is not barred by his discharge in bankruptcy.R A decree for alimony entered in a state court previous to the bankruptcy of the defendant, or a judgment for damages for the alienation of a wife's affections are not released by the discharge.10 A judgment entered by consent after the discharge of the defendant in bankruptcy in an action pending before the institution of the proceedings will not be vacated on the ground that the debt was discharged by the bankrupt, but a judgment on the common money counts is barred by the discharge of the judgment debtor in bankruptcy.12 A cause of action for conversion,18 or a pending action of trover to try title is not barred by the discharge of defendant in bankruptcy.11 The discharge of a bankrupt principal will not affect the liability of his surety or co-debtor,15 but will render his co-obligors liable for debt,10 therefore statutory liabilities of stockholders are not released by the discharge of the corporation in bankruptcy." D. Pleading and evidence.—A plea of a discharge in bankruptcy must be filed within the time prescribed by court rules and in the manner and form required by statute,18 and a failure to plead or prove the discharge is a waiver of the benefit thereof.19 A plea of general denial and discharge in bankruptcy are not inconsistent pleas.20 Bankruptcy of an appellant may be shown in the appellate court by evidence dehors the record.21 between No fiduciary relations exist seller and purchaser of merchandise, such relation being necessary to except a judgment for fraud from the operation of the discharge, under § 17 of the Bankruptcy Act -Harrington v. Herman (Mo.) 72 S. W. 546; Morse & Rogers v. Kaufman, 4 Va. Sup. Ct. Rep. 172, 40 S. E. 916. 6. 546. Harrington v. Herman (Mo.) 72 S. W. 19. Wakeman v. Throckmorton, 74 Conn. 616. As where the bankrupt first calls attenMatter of Bullis (N. Y.) 68 App. Div. tion to it by motion of arrest three weeks after verdict nearly seven months after verdict-Lane v. Holcomb, 182 Mass. 360. 7. 508. 8. Stickney v. Parmenter. 74 Vt. 58. 9. Welty v. Welty, 195 Ill. 335. 20. 10. Exline v. Sargent, 23 Ohio Cir. Ct. R. 21. Ruff v. Milner, 92 Mo. App. 620. BASTARDS. § 1. Legal elements and evidences of illegitimacy.-To establish illegitimacy in the offspring of a lawfully married woman, the impossibility that the husband be the father must be shown.1 A wife cannot bastardize her children born while she is living with a husband not shown to be impotent." "Cohabiting" in statutes declaring the presumption of legitimacy means ostensible living together as man and wife. Parish records of a foreign country may be prima facie evidence of illegitimacy,* and are not overcome by the presumption of legitimacy or legitimization by marriage of parents. § 2. Rights and duties of and in respect to bastards.-Statutes requiring the father to support his minor children do not require him to support his illegitimate child. An agreement by him to pay for support and expenses is supported by the withdrawal of the mother's claim for support to the overseer of the poor." Damages awarded the mother of a bastard by arbitrators will be upheld, the mother being liable for support. The mother may transfer her right of custody to the putative father, though such transfer may be void as against the child if contrary to his interests. Illegitimate children referred to in an application for insurance as adopted children and who lived with insured may recover under a benefit certificate limited to wife, children, dependents, or blood relatives.10 11 Inheritance.-Between acknowledged and unacknowledged collateral heirs, the former inherit. Under statutes rendering bastards capable of inheritance and transmission of inheritance through the mother, they may inherit from a brother of the mother dying after her.12 § 3. Procedure to ascertain paternity and compel support.-Where the statute provides for a proceeding by an "unmarried" woman she need not be unmarried at the time of complaint.13 A minor prosecutrix may dismiss of her own motion," though in Nebraska it is held that prosecutrix cannot compromise a judgment.15 Dismissal on provision for maintenance is a bar to a second prosecution.16 1. Adger v. Ackerman, 115 Fed. 124, 52 C. C. A. 568. 2. Since Code Civ. Proc. 1962, subd. 5, raises an indisputable presumption of legitimacy of issue of a wife cohabiting with her husband, who is not impotent, the wife cannot testify that children are illegitimate, though Civ. Code, § 195, provides that illegitimacy may be proved like any other fact when legitimacy is disputed by husband or wife, and Code Civ. Proc. § 1879, provides that all persons may be witnesses though parties and persons in interest-In re Mills' Estate, 137 Cal. 298, 70 Pac. 91. 3. Code Civ. Proc. § 1962, subd. 5-In re Mills' Estate, 137 Cal. 298, 70 Pac. 91. 4. Recitals that a child was born to a spinster in a parish record kept under laws requiring a record of all children whether legitimate or not are prima facie evidence under Rev. St. 1898, § 4160, giving such effect to "material facts" in parish records births, marriages or deaths-Sandberg v. State, 113 Wis. 578. of 5. There was evidence that the mother, less than two years after the birth, left the country under her maiden name and without company of a husband-Sandberg v. State, 113 Wis. 578. 10. Hanley v. Supreme Tent, 38 Misc. Rep. (N. Y.) 161. 11. Bourriaque v. Charles, 107 La. 217. 12. Rev. St. 1899, § 2916-Moore v. Moore, 169 Mo. 432. 13. Comp. St. c. 37, § 1-Parker v. Nothomb (Neb.) 91 N/ W. 395. 14. Consent of the county attorney is not required if she enter of record an admission of provision for support-State v. Baker, 65 Kan. 117, 69 Pac. 170. 15. State v. McBride (Neb.) 90 N. W. 209. 16. An admission of provision secured without fraud is binding on both prosecutrix and the state-State v. Baker, 65 Kan. 117. 69 Pac. 170. Evidence.-Paternity need not be established beyond a reasonable doubt." Proof of birth creates a presumption of birth alive.18 The child may be offered in evidence to prove paternity by resemblance.1 Defendant may show association of prosecutrix with other men with opportunity for sexual intercourse at about the time of conception.20 Judgment and damages.-Prosecutrix is not entitled to a sum awarded generally as costs.21 A judgment for support against the putative father may be enforced after he has married the mother.22 Bonds.-The fact that no expenditures were made by the municipality is not defense to an action on a bastardy bond.23 25 § 4. Legitimation, recognition, adoption.-Provisions for formal acknowledg ment of bastards are not exclusive.2 Statutes enabling bastards to inherit from the father, if acknowledged in writing by him, allow writings executed before their passage to capacitate the bastard as heir. If they require that the child be received into the father's family, if the father is living with a woman whom he holds out as his wife and has a home, the child must be received therein.20 Under certain statutes there need be no express intention of making the child an heir.27 Recognitions but not denials of paternity made by a person deceased are admissible.28 A recognition in writing may be in letters from the father to the illegitimate.29 Where a minor bastard is legitimized by the marriage of his parents under the laws of their domicile, such status follows him.80 BETTING AND GAMING. It is not proposed to treat of the keeping of lotteries,' or the validity of wagering contracts.2 § 1. The offense and criminal prosecutions. A. The offense. Validity of regulations. The legislature is ordinarily held to have plenary power to regulate or prohibit gaming. Thus prohibition of gaming in any place barred or made difficult of access to the police, betting on races through a turf exchange, bookmaking and pool selling," the selling of wagers on the drawing of numbers, have been upheld, and the prohibition may be directed only to the proprietors of the 17. Preponderance of evidence sufficientPriel v. Adams (Neb.) 91 N. W. 536. Evidence held insufficient, there being a showing of intercourse with others than defendant-People v. McKay, 72 App. Div. (N. Y.) 527. 18. Priel v. Adams (Neb.) 91 N. W. 536. 19. Kelly v. State, 133 Ala. 195. 20. Where the state has proved defendant's association with prosecutrix at about such time-Kelly v. State, 133 Ala. 195. 21. Barry v. Niessen, 114 Wis. 256. 22. Though the child is thus legitimizedAlderson v. Alderson's Guardian, 24 Ky. Law Rep. 595, 69 S. W. 700. 23. Code Cr. Proc. § 883, makes proof of such expenditures unnecessary-New York v. Buechel, 71 App. Div. (N. Y.) 507. 24. Civ. Code, art. 203, does not exclude arts. 207, 208-Bourriaque v. Charles, 107 La. 217. 25. Acknowledgment in writing before witnesses. of paternity, by a nonresident allen. in 1877, prior to Code, § 3403, makes on his death, after passage of such section, the child heir as to his realty in South DakotaMoen v. Moen (S. D.) 92 N. W. 13. |