In re Alsberg,

required in the provisions of the Bankrupt Law, these sections appear to me to be conclusive on all questions of prima facie evidence made out by State proceedings-or the absence of evidence as to the sufficient grounds of arrest in the State proceedings.

"The petitioner may deny any of the facts set forth in the return, or may allege any other facts that may be material in the case."

Surely he may deny that he has been arrested for a debt contracted in fraud, no matter what affidavits may have been made by State authority to the contrary, and surely he may allege that he has been arrested for a dischargeable or releaseable debt, though it does not appear from the State proceedings that he was arrested by reason of the debt being contracted in fraud. These sections render clear the duty of the court to hear all legal testimony in the cause, and go further; they permit "the return and all suggestions made against it" to be amended by the leave of the court, so that thereby the material facts may be ascertained.

The question of fact as to the creation of a debt not dischargeable by the discharge of the bankrupt, having been already passed on, it only remains for the Court to say that the motions to discharge and enjoin against any further proceedings are refused. As a stay of proceedings is not desired unless in connection with the discharge of the prisoner, no order is made in reference to that matter.

THEREUPON the bankrupt applied to the United States Circuit Court for the District of Delaware, to have said proceedings and orders supervised and set aside, and the bankrupt discharged from imprisonment, and for injunctions to restrain the plaintiffs in said writs from prosecuting their actions until the final determination of proceedings in bankruptcy.

The case was argued before Hon. William Strong, Justice of the Supreme Court of the United States, who rendered his decision, June 29, 1877, as follows:

In re Gifford.

STRONG, J.-After argument and consideration, it is ordered that the action of the District Court be approved, and this petition is dismissed.

UNITED STATES DISTRICT COURT-W. D. MICHIGAN.

AUGUST 4, 1877.

In the absence of consent by creditors in voluntary cases, no matter when commenced nor when the debts were contracted, the assets must pay thirty per cent., or there can be no discharge.

In compulsory cases, if otherwise entitled thereto, the bankrupt is entitled to a discharge irrespective of the assent of creditors or the amount of his assets.

In re HAVILAND GIFFORD.

Arthur Brown, for bankrupt.

Edwards & Sherwood, for creditor.

WITHEY, J.-Sept. 26, 1876, a voluntary petition was filed and an adjudication followed. Debts have been proved upon which the bankrupt is liable as principal debtor, all contracted prior to January, 1869. There were no assets. Under such a state of facts a discharge is asked. The law now in force applicable to the question is the 9th Section of the act of June 22, 1874, which declares: "In cases of voluntary bankruptcy, no discharge shall be granted to a debtor whose assets shall not be equal to thirty per centum of the claims proved against his estate, upon which he shall be liable as principal debtor, without the assent of at least one-fourth of his creditors in number, and one-third in value; and the provision in Section 33 of the act of March second, eighteen hundred and sixty-seven, requiring fifty per centum of such assets, is hereby repealed." Section 21 of the same act repeals all acts and parts of acts inconsistent with the provisions of this

act.

Nevertheless, it is contended for the bankrupt that the previous condition of the law, which gave a discharge as to all

In re Gifford.

debts contracted prior to 1869, whether the assets pay anything or not, entitles this applicant to a discharge. (Original Sec. 33, 14 Stat., 533-Amendment of 1868, 15 Stat., 227, Sec. 1-Additional Amendment of 1870, 16 Stat., 276, Sec. 1.)

We know of no decided case that sustains such proposition, and if any was cited we could not follow it unless it was rendered by a court whose decision would be binding on this court. In re Sheldon (12 N. B. R., 63) is cited; also In re Francke (10 N. B. R., 438). In both those cases the petition and adjudication were prior to the passage of the act of June 22, 1874, and it was therefore held they were governed, as to the question of discharge, by the condition of the law as it existed prior to the change in 1874.

First, We have to say that the cases, if correctly decided, are not applicable or authority in the case at bar. They were cases pending prior to the passage of the act of 1874, and therefore held not to be governed by it. This case was commenced subsequent to the enactment of 1874, and therefore is governed by it.

Second, Mr. Justice Miller, at the Circuit (In re King, 1 Cent. Law Journal, p. 506), holds the opposite view to that expressed by Judge Blatchford. (See also Judge Lowell, In re Griffiths, ibid., p. 507.) The cases referred to were all involuntary, but the point decided in each is alike applicable to voluntary cases. It is simply a question as to the application of a remedial statute. We fully agree with the views expressed in the last-named two cases. The act of 1874 governs in both voluntary and involuntary cases. As to involuntary cases we have so held in several instances, in none of which has an opinion been written.

As the law now stands we hold that in the absence of consent by creditors in voluntary cases, no matter when commenced nor when debts were contracted, the assets must pay thirty per cent., not fifty per cent., or there can be no discharge; whereas in compulsory cases the bankrupt, if otherwise entitled thereto, is entitled to a discharge irrespective of the assent of creditors or the amount of his assets.

In re Boyd.

We have prepared this brief opinion in order to promulgate the conclusions of this court on the questions and points stated, and thus avoid having them again argued before us.

UNITED STATES DISTRICT COURT-OREGON.

JULY 24, 1877.

The lien given by Section 266 of the Oregon civil code upon the docket of a judgment arises from the docket and not the judgment; it is a strict legal right and must stand or fall by the statute which gives it.

The docket entry is not a part of the judicial proceeding which ends with the entry of judgment, and therefore such entry cannot be referred to for the purpose of supplying omissions or explaining ambiguities in the docket; but the latter must be complete in itself.

A judgment which by its terms cannot be enforced against the property of a party cannot become a lien thereon.

In re HAMILTON BOYD, Bankrupt.

John Catlin, for the assignee.

William H. Effinger and G. W. Yocum, for the creditors.

DEADY, J.-The questions arising upon the objections to these proofs of debt were heard and submitted together, and will be so disposed of.

On March 2, 1876, Ira Goodnough obtained judgment in the Circuit Court of the State for the county of Multnomah against said bankrupt and A. H. Johnson, for the sum of seven thousand eight hundred and seventy-five dollars in gold coin, with interest on five thousand five hundred dollars of the same from January 5, 1876, at one per centum per month in like coin, and fourteen dollars and eighty cents costs and disbursements. Said judgment was given upon a promissory note made by said bankrupt and Johnson-the latter being, in fact, a surety thereon.

On the same day this judgment was given, an entry was made in the "Judgment Docket" of said Circuit Court, under appropriate heads, of the date of said judgment, the names of

In re Boyd.

the parties thereto, the date of such entry, and under the head of "Amount of Judgment," the following--" Costs 14 80: Face 7875 00"-without any dollar mark or other sign or word to signify or indicate what was the denomination of these figures or what they represented. The entry also contains a head just following the last named, entitled, "Rate of Interest" under which is written the word "Coin." On the right hand of the docket are three columns, headed respectively—“ Appeals, When Taken;" "Judgment of Appellate Court;" and "Satisfaction, When Entered," as provided in Section 562 of the Code of C. P. Under these heads and across these columns is written" Int. on $7,500 part thereof at 1 per cent. per mo. from Jan. 5, 1876."

On March 3, 1876, Boyd filed his petition in bankruptcy in this court, upon which he was afterwards duly adjudged a bankrupt. On October 4, 1876, Goodnough proved said judgment as a secured debt against Boyd's estate, claiming therein to have a lien by virtue of the docketing of said judgment upon all the real property of the bankrupt within the county. The assignee objected to said proof of debt-the objections being: (1) That said judgment was taken and procured in fraud of the Bankrupt Act; and (2) that said proof is not sufficient as proof of a secured debt, because said judgment was never duly docketed so as to become a lien upon the bankrupt's property.

The creditor answered the objections and the matter was heard before the register who found for the creditor upon the first objection and for the assignee upon the second. The question-Whether the ruling of the register should stand?—was then, at the request of counsel, certified into court and argued by counsel.

At common law a judgment for a debt or damages could only be enforced against the goods and chattels and the present profits of the lands of the debtor. But the possession of the lands could not be reached. Afterwards the statutes of Westminster 2, 13 Ed. I., Ch. 18 (2 Inst., 394), gave the creditor the option to take a moiety of the debtor's land upon an elegit, to hold until the rents and profits would satisfy the judgment;