BROWN, District Judge. The petition in the above case was filed on November 20, 1899, against the four defendants above named. It states that they composed the co-partnership doing business under the name and style of the Anglaise-Americaine Soap Company; that during the greater part of the six months next preceding the defendants had their respective domiciles in the county of New York within this district and also had property therein; that the co-partnership being insolvent on October 5, 1899, suffered a judgment to be recovered against it, under which a portion of its property was sold by the sheriff under execution, whereby the judgment creditors would obtain a preference; and the petition asks that said "co-partnership may be adjudged to be a bankrupt."

The subpoena was served personally on Stem in this district; the other defendants were served by order in Baltimore and Richmond. On January 9th the defendant Passano appeared specially for the purpose of moving to dismiss the petition for want of jurisdiction, and upon an affidavit obtained an order to show cause why the petition should not be dismissed. The affidavit states in brief that none of the defendants had their residence or domicile at any time within this district; that Blair during all the period referred to had his domicile and resided at Richmond, Va., and the other three defendants at Baltimore, Md.; that Passano had left the firm from three to four months before the petition was filed, and Rosston a month later; and that at the time of the preference alleged, the firm consisted of Blair and Stem only.

Upon the return of the order to show cause and on hearing, a reference to a commissioner was ordered to take proof and report the facts as to the place of business as well as the residence or domicile of all the parties.

From the report of the commissioner, it appears that the business of the Anglaise-Americaine Soap Company was started at Baltimore, where it was continued until about August 11th or 12th, when it was removed to this district; that on July 22, 1899, Passano withdrew from the firm, transferring his interest to the other three partners, who by agreement assumed all the co-partnership liabilities; that on August 11, 1899, Rosston also retired from the firm, whereupon the business was removed to this district by Blair and Stem, the remaining partners, as above stated; that Blair and Stem, from that time, continued the business under the same name and under the name and style of "Blair-Stem Company, Selling Agents for Anglaise-Americaine Soap Company"; that they continued the business in this district until on or about November 1, 1899, after which date and until the petition was filed November 9th, they were engaged in winding up the affairs of said company; and that they had no other place of business subsequent to August 12, 1899; that Blair, between the 12th and 18th of August, removed to New York from Baltimore, where he continued to reside until the 1st day of November, when he went to Richmond to reside; that Stem did not reside or have his domicile here, at any time prior to November 7, 1899.

These findings are supported by the evidence. They show, therefore, that the petition cannot be sustained upon its averment of domicile within this district, since neither of the four partners had his domicile or resided here long enough to support the jurisdiction of the court.

Further inquiry concerning the place of business of the several partners was had in view of the possible allowance of an amendment to the petition, setting up a place of business within the district for the requisite period. Section 5c of the act provides that in cases of partnership "the court which has jurisdiction of one of the partners may have jurisdiction of all"; and by section 2, subd. 1, the court is authorized to adjudge bankrupt persons "who have had their principal place of business, resided, or had their domicile within its jurisdiction" for the greater portion of the six months preceding the petition. The above facts show that two of the partners, Blair and Stem, had their only place of business within this district for a little over three months prior to the petition, if the period from November 1st to November 20th be deemed a period of doing business, during which the firm of Blair and Stem was in liquidation, in charge of Mr. Stem; otherwise not. Under the circumstances above stated, I think the period from November 1st to November 20th cannot be excluded from the period during which Stem at least had his principal place of business in New York. The circumstances are altogether different from those in the case of In re Little, 2 N. B. R. 294, Fed. Cas. No. 8,391.

It is urged that the business conducted by Blair and Stem in New York, was not the original partnership business of the four partners above named, but the business of a new firm; and that the provision of section 5c should be held applicable only to cases where the partner is transacting the same firm's business within the particular jurisdiction, and not where he is simply transacting an independent business of his own. But in this case Stem and Blair were in fact liquidating the old firm's business during this time. Nor do I perceive any sound reason for limiting, as suggested, the ordinary meaning of the language used in sections 5c and 2, subd. 1. Whatever doubts may have been raised under the act of 1867 (Cameron v. Canieo, 9 N. B. R. 527, 4 Fed. Cas. 1,128), the proceeding may certainly now be commenced in any district in which either partner resides; the present act leaves no doubt on this point (Lowell, Bankr. 360; Loveland, Bankr. 191; In re Murray [D. C.] 96 Fed. 600); and the same was held by Story, J., under the act of 1841. The reasons for the broad option given by the present act were probably reasons of convenience, and to authorize the proceedings to be had in any district wherein a partner was ordinarily to be found, whether by residence, domicile, or place of business.

If the petition were amended, therefore, by averring that Stem's place of business was here during the requisite period, the jurisdiction of the court should be sustained. The petition must, however, further show whether any of the individual partners are solvent. As it stands, it is ambiguous in this regard. It avers that the "partnership is insolvent"; but other statements seem to intimate that

by that averment it is intended only to state that the joint assets are not sufficient to pay the joint obligations. No doubt a firm is sometimes said to be insolvent when only a deficiency of joint assets is meant. But as each partner is liable in solido for the debts of the company, so that they are debts of each individual member as much and as truly as they are debts of the firm, a partnership cannot with strictness be said to be insolvent while any one of the partners is able to pay all the firm's liabilities. Lowell, Bankr. 359; Hanson v. Paige, 3 Gray, 239, 242; In re Bennett, 2 Low. 400, 3 Fed. Cas. 209. By the express provision of section 5h, moreover, the firm assets cannot be administered in bankruptcy if one of the partners is not adjudged bankrupt, unless by his consent. Bank v. Meyer (D. C.) 92 Fed. 896; In re Meyer (C. C. A.) 98 Fed. 976. It is therefore required by rule 1 of this court that the petition shall state whether any partner, not joining in the petition, is solvent or insolvent. Form 2, moreover, prescribed by the supreme court (18 Sup. Ct. xviii.), requires for an adjudication of "the firm" as bankrupts, a statement in the petition that "the partners owe debts which they are unable to pay in full." This necessarily includes the individual responsibility of each, as well as their joint responsibility; and that form evidently contemplates that an adjudication of the firm imports an adjudication of all its members as well. To avoid any ambiguity, and any delay or complication in the subsequent proceed. ings, the insolvency of each member of the firm should be alleged in the petition if an adjudication against the firm and an administration of the firm assets in bankruptcy are sought, in order that issue on that point, if disputed, may be at once taken and heard along with any other issues, and the scope of the proceeding determined without further delay.

The petition may be amended, if desired, within 10 days; if not so amended, it will be dismissed.

In re TINKER.

(District Court, S. D. New York. January 27, 1900.)

1. BANKRUPTCY-DISCHARGE-Judgment fOR TORT-JURISDICTION.

Although the only debt scheduled against the estate of a bankrupt is a judgment of a state court in an action against him for criminal conversation, the court of bankruptcy has jurisdiction of his application for discharge, and will grant him a discharge if he is otherwise entitled to it, without any final determination of the question of the effect of the discharge on such judgment.

& SAME-DEBTS AFFECTED BY DISCHARGE-JUDGMENT FOR CRIM. CON.

Semble, that a judgment against the defendant in an action for criminal conversation is not a judgment "for a willful and malicious injury to the person or property of another," within the meaning of Bankr. Act 1898, § 17, subd. 3, providing that such judgments shall not be released by a discharge in bankruptcy.

In Bankruptcy. On bankrupt's application for discharge and op position thereto by creditor.

Nelson Smith, for bankrupt.
Thomas McAdam, opposed.

BROWN, District Judge. An adjudication of the above bankrupt was made on September 13, 1899, the only debt scheduled being a judgment against him for $50,653.98 damages and costs, recovered in the supreme court of this state in an action of crim. con.

On the return day of the application for a discharge, the judg ment creditor has objected (1) that the judgment is for a "willful and malicious injury to the person or property of another," and therefore will not be released by a discharge; (2) that this being the only debt scheduled, there are no debts to be discharged, and that the court therefore has no jurisdiction to grant any discharge. The gist of the action in which this judgment was recovered is the loss of the comfort, society and assistance of the wife. 2 Greenl. Ev. § 51, and cases there cited; 5 Enc. Pl. & Prac. 616; Barnes v. Allen, 1 Abb. Dec. 117. The violation of these rights springing from the marital relation, though a heinous personal wrong to the husband, can only with difficulty be said to be an "injury to his person" (Ryall v. Kennedy, 52 How. Prac. 517), and though the husband has a legal right to the aid, service and assistance of the wife, the deprivation of this right can hardly be said to be an "injury to his property." See In re Haensell (D. C.) 91 Fed. 355, and cases there cited. Under the common-law system of pleading, indeed, the plaintiff in actions of crim. con. might maintain trespass vi et armis; but the assault pleaded in such cases was an assault upon the wife, not upon the plaintiff; and the loss alleged was "the loss of comfort, fellowship, aid and assistance of the wife." The action, however, might equally be brought in trespass on the case, in which, after alleging the wicked and unjust acts, the same loss and damage were pleaded as in trespass vi et armis. See 2 Chit. Pl. *642, 856.

Another requisite element to prevent the operation of the discharge is, that the injury shall be "malicious," which seems to require a malevolent intent towards the plaintiff. In actions of a similar nature it has been held that "malice" cannot be predicated, and discharges were therefore granted. Livergood v. Greer, 43 Ill. 213; Howland v. Carson, 28 Ohio St. 625, 16 N. B. R. 372; In re Sullivan, 1 Nat. Bankr. N. 380; Anderson v. How, 116 N. Y. 342, 22 N. E. 695; Com. v. Williams, 110 Mass. 401.

The ordinary course of procedure in adjudging discharges, where the court has jurisdiction of the petition, is to grant the application, if the brankrupt is otherwise entitled to the discharge, without determining in any way its effect in releasing any particular debt, and that course should, I think, be pursued here. Coll. Bankr. 135. There may be other debts of the bankrupt owing to creditors who, though not named in the schedules, yet by reason of their actual knowledge of these proceedings would be barred by the discharge, even though the judgment scheduled should not be released by it. Bankr. Act 1898, § 17, subd. 3. It cannot be said, therefore, that in the latter case the discharge would be of no possible use, or that the court has no jurisdiction to grant it. On the other hand, if not granted, its force and effect could not be adjudicated in the ordinary way by being set up as a bar to any further proceedings upon the judgment; while the granting of the discharge in this proceeding

would not necessarily be res adjudicata as respects its effect as a release from this judgment. The discharge should, therefore, be granted, without any attempt at a final determination of its effect upon the judgment.

In re ABLOWICH et al.

(District Court, S. D. New York.

January 26, 1900.)

BANKRUPTCY-DISCHARGE DENIED-CONCEALMENT OF BOOKS AND ASSETS.

On an application for discharge in bankruptcy it appeared that the bankrupts failed in 1895, and gave a bill of sale to certain creditors, under which the latter took possession of the bankrupts' store, and removed the stock. The bankrupts stated that their books of account were at that time in a safe in the store, and that the inventory of property and schedule of debts which they filed with their petition in bankruptcy was made from their books on the night before the sale to said creditors, when one of the bankrupts had the ledger at his house. It did not appear that the bankrupts ever went to the store for the books, or made any effort to recover them. There was a very large shrinkage or disappearance of assets, which, in the absence of the books, was entirely unexplained. Held sufficient evidence that the bankrupts had destroyed or concealed their books of account with intent to conceal their true financial condition, and the discharge should be refused.

In Bankruptcy. On bankrupts' application for discharge and opposition thereto by creditors.

Arthur Furber, for bankrupts.

James, Schell, Elkus & McGuire, for creditors opposed.

BROWN, District Judge. Upon the objections to the discharge of the bankrupts in the above matter, the referee reports as follows: "The first specification charges that the bankrupts in contemplation of bankruptcy and with fraudulent intent have concealed or destroyed their books of account, so that their true and actual financial condition could not be ascertained.

"I find from the evidence before me, that the bankrupts kept full books of account of all their business, and that they failed in business in 1895, and that about October 1st of that year they gave a bill of sale of their merchandise to Vietor & Achelis, who were creditors, and that said firm took possession of their store and premises and removed the stock.

"That the books of account were kept in a safe in the store, and were left there when Vietor & Achelis took charge, and that none of the bankrupts ever went back to the store to get the books and never made any attempt to get them; but they were, nevertheless, able to make an inventory of their property and a schedule of their creditors and amount of their liabilities when they filed their petition in 1899, which they say were made from their books on the night before the sale to Vietor & Achelis, at which time one of the bankrupts had the ledger at his private residence.

"I do not consider that the bankrupts, either at the time of their failure in 1895, or since filing the petition herein, have made any earnest effort to secure their books of account, and am of opinion that they either destroyed them or fraudulently concealed them; and this view is emphasized by the fact that on January 1, 1895, the firm stated that they had a surplus of assets over liabilities of $150,000, and on October 1, 1895, they made a bill of sale to Vietor & Achelis of all their merchandise to pay their debt to them, and some other creditors, and assigned their book accounts to other creditors and confessed judgments in large amounts, and still their liabilities on October 1, 1895, exceeded their assets by more than $100,000, thus showing a shrinkage in ten months of $250,000, which they are absolutely unable to explain.

99 F.-6