A creditor who has appeared in a bankruptcy proceeding cannot oppose the discharge on the ground that the petition for bankruptcy was not filed in the right district. By appearing he waives any objections which merely affect the question of the personal jurisdiction of the court over the bankrupt.

SAME-METHOD OF OPPOSING

68. The method of opposing a discharge is by specifications filed by parties in interest, setting out the grounds of opposition with reasonable particularity, and giving such facts as will enable the bankrupt to defend himself. This raises the issues of law and fact, the statements of the specifications being presumed to be denied by the bankrupt, and no further step is required of the bankrupt. He can raise legal questions by motion to dismiss.

The act requires the judge to hear the application for a discharge, and such proofs and pleas as may be made in opposition thereto by the trustee or other parties in interest. Under this language the question must be raised by formal specifications in opposition. These must set out the grounds on which the discharge is opposed with reasonable particularity, giving such necessary facts in connection. with the general charge as will enable the bankrupt to defend himself. The party opposing cannot merely come in and follow the language of the statute defining the grounds of opposition to a bankrupt's discharge."

8 In re Clisdell (D. C.) 101 Fed. 246; ante, p. 94, note 18, and p. 102, note 41. See "Bankruptoy," Dec. Dig. (Key-No.) § 405; Cent. Dig. 88 709-711.

In re Goodale (D. C.) 109 Fed. 783; In re Peck (D. C.) 120 Fed. 972; In re Bromley (D. C.) 152 Fed. 493. See "Bankruptcy," Dec. Dig. (Key-No.) § 413; Cent. Dig. §§ 712-727.

But though the specifications are vague and indefinite, the bankrupt cannot go to trial on them in the lower court, and raise this objection to them for the first time in the appellate court.10

The court may, in its discretion, allow the specifications to be amended so as to make them more definite, but it is not apt to exercise this discretion in this manner where the creditors have been guilty of laches.11

When the specifications are filed, it is not necessary for the bankrupt to join any formal issue thereon. As far as they raise questions of fact, they are presumed to be denied by the bankrupt, and his failure to file a formal paper denying them is not an admission of their validity, and would not authorize any default decree against him. As to questions of law, he need not file any paper in the nature of a demurrer. He can raise the questions before the court on motion to dismiss.12

SAME-BURDEN OF PROOF

69. The burden is upon creditors opposing a discharge to prove the facts necessary to defeat it by a preponderance of evidence clear and convincing.

There is some conflict of decision as to the quantity of evidence necessary to prove the ground alleged as opposition to the discharge. There can be no question that the

10 In re Osborne, 115 Fed. 1, 52 C. C. A. 595. See "Bankruptcy,” Dec. Dig. (Key-No.) §§ 413, 458.

11 Id.; In re Glass (D. C.) 119 Fed. 509; In re Carley, 117 Fed. 130, 55 C. C. A. 146; Kentucky Nat. Bank v. Carley, 121 Fed. 822, 58 C. C. A. 158. Nor would an amendment adding a new ground of opposition be permitted after the 10 days allowed by the rule for filing them. In re Johnson (D. C.) 192 Fed. 356. See "Bankruptcy," Dec. Dig. (Key-No.) § 413.

12 In re Logan (D. C.) 102 Fed. 876; In re Crist (D. C.) 116 Fed. 1007. See "Bankruptcy," Dec. Dig. (Key-No.) § 413.

burden of proof in the first instance is upon the creditor opposing it. It has been held in some cases that a fair preponderance of evidence is all that is necessary in order to sustain this burden of proof.13 On the other hand, it has been held, on stronger reasoning, that, although the proof need not be such as to leave the matter beyond a reasonable doubt, it must be more than a mere preponderance, and must be clear and convincing.14

The grounds on which a discharge can be opposed are, in the main, grounds connected with the commission of a criminal offense, or the commission of some fraud. While the proceeding to show that a criminal offense has been committed as a means of defeating the discharge is not a criminal proceeding, it has the effect of fastening the commission of a crime upon the defendant. Hence it is not unreasonable to expect proof beyond that required in ordinary civil suits. The release of a debtor from a load of debt, and his restoration to the producing class of the community, are the fundamental reasons for the enactment of the bankrupt law, and the presumptions ought to be in favor of his discharge. Hence, while it might be too heavy a burden on the creditor to require the amount of proof necessary in criminal procedure, it is not putting too much upon him to require a degree of proof equal to that required for the proof of fraud in ordinary civil proceedings. Policy as to Granting Discharge

The policy of the bankrupt court is in favor of granting a discharge. The act contemplates a speedy discharge, and the court will not permit creditors to unreasonably delay

13 In re Leslie (D. C.) 119 Fed. 406; In re Dauchy (D. C.) 122 Fed. 688. See "Bankruptcy,” Dec. Dig. (Key-No.) § 414; Cent. Dig. §§ 720-722.

14 In re Corn (D. C.) 106 Fed. 143; In re Howden (D. C.) 111 Fed. 723; Garry v. Jefferson Bank, 186 Fed. 461, 108 C. C. A. 439; In re Taylor (D. C.) 188 Fed. 479. See "Bankruptcy," Dec. Dig. (Key-No.) § 414; Cent. Dig. §§ 720-722.

it. Nor will the court go out of its way to find grounds for refusing it.15

Collateral Weight of Discharge

A discharge is a personal privilege, like the statute of limitations; and therefore, when a creditor is sued, he must plead his discharge, or judgment will go against him, as in any other uncontested case.16

When a discharge is pleaded, the court in which it is pleaded must assume that the proceedings upon it were regular, and that proper notices were given. It cannot be attacked collaterally."

GROUNDS OF OPPOSITION TO DISCHARGE

70. The general grounds of opposition to a discharge are, as prescribed by the statute:

(1) Commission of offenses against the bankrupt act. (2) Intentional destruction or concealment of, or failure to keep, accounts.

(3) Obtaining money or property on credit by false statement in writing for that purpose.

(4) Removal, destruction, or concealment of property,

with intent to hinder, delay, or defraud creditors, within four months previous to filing of petition. (5) Prior discharge in bankruptcy within six years in voluntary proceedings.

15 In re Mudd (D. C.) 105 Fed. 348; In re Hixon (D. C.) 93 Fed. 440; Hardie v. Swafford Bros. Dry Goods Co., 165 Fed. 588, 91 C. C. A. 426, 20 L. R. A. (N. S.) 785. See “Bankruptcy," Dec. Dig. (KeyNo.) $8 407, 415.

16 Fowle v. Park (C. C.) 48 Fed. 789; In re Wesson (D. C.) 88 Fed. 855; Friedman v. Zweifler, 74 Misc. Rep. 448, 132 N. Y. Supp. 320; Heelman v. Goldstone, 161 Fed. 913, 88 C. C. A. 604. See "Bankruptcy," Dec. Dig. (Key-No.) § 435; Cent. Dig. §§ 824-839.

17 Jarecki Mfg. Co. v. McElwaine (C. C.) 107 Fed. 249; First National Bank v. Masterson, 29 Okl. 76, 116 Pac. 162. See "Bankruptcy," Dec. Dig. (Key-No.) § 419; Cent. Dig. §§ 843-852.

(6) Refusal to obey lawful order of, or to answer any material question approved by, the court in the course of the bankruptcy proceedings.

These are set out in section 14 of the act, par. "b." As originally enacted, it read as follows:

"(b) The judge shall hear the application for a discharge, and such proofs and pleas as may be made in opposition thereto by parties in interest, at such time as will give parties in interest a reasonable opportunity to be fully heard, and investigate the merits of the application and discharge the applicant unless he has (1) committed an offense punishable by imprisonment as herein provided; or (2) with fraudulent intent to conceal his true financial condition and in contemplation of bankruptcy, destroyed, concealed or failed to keep books of account or records from which his true condition might be ascertained."

The acts of February 5, 1903, and June 25, 1910, have radically changed this section, not only in language, but by the addition of several grounds not contained in the original act, so that it now reads as follows:

"(b) The judge shall hear the application for a discharge, and such proofs and pleas as may be made in opposition thereto by the trustee or other parties in interest, at such time as will give the trustee or parties in interest a reasonable opportunity to be fully heard, and investigate the merits of the application and discharge the applicant unless he has (1) committed an offense punishable by imprisonment as herein provided; or (2) with intent to conceal his financial condition, destroyed, concealed or failed to keep books of account or records from which such condition might be ascertained; or (3) obtained money or property on credit upon a materially false statement in writing, made by him to any person or his representative for the purpose of obtaining credit from such person; or (4) at any time subsequent to the first day of the four months im