| Mass. | Jan 11, 1915
The petitioners, having effected a composition with their creditors, were released from all provable debts. Bankruptcy act, 1898, § 1 (12), §§ 12,14, as amended by the U. S. Sts. of February 5, 1903, c. 487, and June 25, 1910, c. 412. Turner v. Hudson, 105 Maine, 476. The creditor at whose instigation they are being prosecuted as poor debtors under B. L. c. 168, although scheduled and notified of the proceedings in which it participated, did not prove the notes on which it has obtained judgment in an action begun after adjudication. The petitioners retained counsel, who duly appeared of record, but after the composition had been effected withdrew their appearance, and upon default judgment, after the lapse of several months, was entered as of the date of default, and execution issued. It appears that neither petitioner had actual notice of the withdrawal or of the default or of the entry of judgment and issuance of execution until after the proceedings for their arrest were begun. While conceding, that as the notes were provable debts, further proceedings would have been stayed, if the discharge had been pleaded, the respondents contend that, if before verdict or default a discharge is obtained, failure to plead it is a waiver of the defence.
The petitioners, who upon the conceded facts were not negligent, and who were unrepresented, urge that a failure to plead a certificate of discharge before judgment is, under the circumstances, excusable in equity and it now may be set up. Or that under the
But this section very plainly refers only to the period covered by the pendency of the bankruptcy proceedings, during which jurisdiction is conferred on the bankruptcy court to protect the bankrupt from arrest on a provable debt until a discharge has been granted or refused. Wagner v. United States, 104 Fed. Rep. 133. In re Marcus, 104 Fed. Rep. 331. In re Fife, 109 Fed. Rep. 880. People v. Erlanger, 132 Fed. Rep. 883. In re Adler, 144 Fed. Rep. 659. United States v. Peters, 166 Fed. Rep. 613. Turgeon v. Bean, 109 Maine, 189.
A discharge in bankruptcy, like the statute of limitations or the statute of frauds or a release under seal, to be effective must be pleaded. If at the time of adjudication or afterwards the bankrupt is sued on a provable debt, his sole remedy is to obtain a continuance, if necessary, and plead his discharge, and where this is done all further proceedings are stayed. Dimock v. Revere Copper Co. 117 U.S. 559" court="SCOTUS" date_filed="1886-03-29" href="https://app.midpage.ai/document/dimock-v-revere-copper-co-91638?utm_source=webapp" opinion_id="91638">117 U. S. 559. Boynton v. Ball, 121 U.S. 457" court="SCOTUS" date_filed="1887-04-25" href="https://app.midpage.ai/document/boynton-v-ball-91938?utm_source=webapp" opinion_id="91938">121 U. S. 457.
It accordingly must be held that, as the court had jurisdiction of the cause of action and of the parties and the petitioners did not interpose this defence, the judgment is not open to collateral attack, and may be enforced by arrest as well as by levy upon their goods, chattels or lands. Dimock v. Revere Copper Co. 117 U.S. 559" court="SCOTUS" date_filed="1886-03-29" href="https://app.midpage.ai/document/dimock-v-revere-copper-co-91638?utm_source=webapp" opinion_id="91638">117 U. S. 559. Lane v. Holcomb, 182 Mass. 360" court="Mass." date_filed="1903-01-05" href="https://app.midpage.ai/document/lane-v-holcomb-6428034?utm_source=webapp" opinion_id="6428034">182 Mass. 360. Hirsh v. Beard, 200 Mass. 569" court="Mass." date_filed="1909-01-07" href="https://app.midpage.ai/document/hirsh-v-beard-6430509?utm_source=webapp" opinion_id="6430509">200 Mass. 569.
If the provisions of our insolvency laws, that where the debtor obtains his discharge he is forever therefore exempt from arrest or imprisonment on account of any debt or demand provable against his estate, also had enumerated bankrupts, or if we had a statute providing that, if at any time after a year had elapsed since a bankrupt was discharged from his debts he might apply upon proof of his discharge for an order directing the judgment to be
Nor are we'called upon to determine whether the petitioners, upon discovery of what had been done, could have had the judgment vacated by a petition for review under R. L. c. 193, §§ 22-35, and then have pleaded their discharge, or whether, if the judgment had been obtained fraudulently, a court of equity would permanently enjoin the judgment creditor from attempting to enforce it. Brooks v. Twitchell, 182 Mass. 443" court="Mass." date_filed="1903-01-07" href="https://app.midpage.ai/document/brooks-v-twitchell-6428064?utm_source=webapp" opinion_id="6428064">182 Mass. 443. Freeman on Judgments (4th ed.) § 489, note 3. 23 Cyc. 991, note 44. Starr v. Heckart, 32 Md. 267" court="Md." date_filed="1870-03-07" href="https://app.midpage.ai/document/starr-v-heckart-7892966?utm_source=webapp" opinion_id="7892966">32 Md. 267. Manwarring v. Kouns, 35 Tex., 171" court="Tex." date_filed="1872-07-01" href="https://app.midpage.ai/document/manwarring-v-g-l-kouns--bros-4891249?utm_source=webapp" opinion_id="4891249">35 Texas, 171. Park v. Casey, 35 Tex., 536" court="Tex." date_filed="1872-07-01" href="https://app.midpage.ai/document/park-v-casey-4891317?utm_source=webapp" opinion_id="4891317">35 Texas, 536.
The petition in each case must be dismissed for the reasons stated.
So ordered.