Chase v. Farmers' & Merchants' Nat Bank of Baltimore

• Decision Date: 14 January 1913
• Docket Number: 1,644.
• Citation: 202 F. 904
• Parties: CHASE v. FARMERS' & MERCHANTS' NAT. BANK OF BALTIMORE.
• Court: U.S. Court of Appeals — Third Circuit

202 F. 904

CHASE v. FARMERS' & MERCHANTS' NAT. BANK OF BALTIMORE.

No. 1,644.

United States Court of Appeals, Third Circuit.

January 14, 1913

John Lisle and Sam'l Scoville, Jr., both of Philadelphia, Pa for plaintiff in error.

F. B Bracken, of Philadelphia, Pa., for defendant in error.

Before GRAY and McPHERSON, Circuit Judges, and RELLSTAB, District judge.

J. B McPHERSON, Circuit Judge.

On April 12, 1911, the Farmers' & Merchants' National Bank of Baltimore brought suit to recover more than $11,000 from Howard A. Chase, the maker of three promissory notes dated respectively August 8, September 4, and October 6 1906. The affidavit of defense set up the following facts as--

' * * * a just, true, and complete defense to the cause of action as set forth in plaintiff's statement of claim.

'Defendant alleges: That heretofore and on or about the 27th day of March, A.D. 1907, he was duly adjudicated an involuntary bankrupt by proceedings commenced against him in the District Court of the United States for the Eastern District of Pennsylvania. That in the course of said proceedings Chester N. Farr, Jr., was duly elected as trustee in bankruptcy of the estate of this defendant and has qualified as such, and that the said bankruptcy proceedings are still pending and undetermined, and that said trustee has never filed his account or been discharged as trustee of defendant's estate. That the claim on which this suit is based was included in the schedules filed by this defendant in said bankruptcy proceedings, being one of the debts specified by this defendant in said proceedings. That your deponent is informed and believes that the claim on which this suit was brought was duly proved and filed by the plaintiff in this suit in connection with said bankruptcy proceedings. That this suit has been brought subsequent to the institution of these bankruptcy proceedings and after a trustee of defendant's estate was elected, and that the debt on which this suit is founded is one which is dischargeable in the event of defendant's obtaining his discharge in said bankruptcy proceedings.'

The affidavit was held to be insufficient, and judgment was entered for the full amount of the claim. In thus deciding we think the District Court was clearly right. It will be observed that the affidavit does not aver the granting of a discharge, or even the pendency of an application therefor. As the record of the bankruptcy proceedings is not in evidence, we can only conjecture why averments of such obvious importance do not appear. The silence of the...