128 Mass. 471 | Mass. | 1880
The bankrupt act of the United States peremptorily requires that any suit upon a claim provable in bankruptcy shall, upon the application of the bankrupt, be stayed to await the determination of the court in bankruptcy upon the question of his discharge, unless there is unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge, or leave is granted by the court in bankruptcy to prosecute the suit to judgment to ascertain the amount due. U. S. Rev. Sts. § 5106. The object of this enactment is to protect the bankrupt from being harassed by suits before the question of his discharge is determined, as well as to enable the assignee in bankruptcy to come in, if he elects so to do, and assume the defence of the suit. If either the bankrupt or the assignee seasonably avails himself of this privilege, it is not in the discretion of the state courts, or of any referee or other officer acting under their authority, to disobey the act of Congress and defeat its object by compelling the defendant to proceed to trial. Ray v. Wight, 119 Mass. 426. Clinton National Bank v. Taylor, 120 Mass. 124. Towne v. Rice, 122 Mass. 67. Page v. Cole, 123 Mass. 93.
In the present case it was stated in the suggestion filed by the bankrupt, brought to the notice of the referee before the hearing, and made a part of his award for the purpose of presenting the question of law to the court, that six months had not elapsed since the commencement of the proceedings in bankruptcy, thus showing that there could have been no delay in applying for a certificate of discharge. U. S. Rev. Sts. § 5108. And no order of the court in bankruptcy, giving leave to prosecute the suit to judgment, was produced. It was therefore ■ the duty of the referee to suspend further proceedings before him, at least until application could be made to the court which appointed him for instructions. The objection having been seasonably interposed before the referee, and renewed
