This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The bankrupt act provides: "A certified copy of an order • * * granting or setting aside a discharge, not revoked, shall be evidence of the jurisdiction of the court, the regularity of the proceedings, and of the fact that the order was made."1 This section was intended to relieve the bankrupt from the necessity of proving the entire record of the bankruptcy proceedings, to prove his discharge. Under this section, and under the general principles of law, it is held by the weight of authority that if the discharge is admitted or proved the burden of proof is upon the creditor to show that such discharge is not a defense to the liability which he is seeking to enforce.2 An attempt has been made to distinguish between the burden of proof and the weight of the evidence; and to hold that the burden of proof, which the bankrupt assumes if he pleads his discharge in bankruptcy and such allegation is denied by the creditor, does not shift; but that with the production of new evidence the burden may shift from one side to the other.3 While it is more accurate to use the term "burden of proof" as fixed by the pleadings and as remaining throughout the case upon the party on whom it is thus placed, the courts are very likely to use it with reference to the necessity of offering evidence to meet the uncontradicted evidence offered by the adversary party; and as thus used with reference to a discharge in bankruptcy, the introduction of evidence by one of the parties frequently drives the other to meet it by other evidence, or to lose the case. If the discharge in bankruptcy is conceded to exist, or if it is proved, the creditor can not recover unless he shows that his claim was not provable in bankruptcy,4 if he seeks to avoid the effect of the discharge on this ground, as where he claims that the claim was for wilful and malicious injury, or incurred by fraud and the like.5 If the fact that the debt in question was omitted from the schedule is conceded or is established, the debtor is bound, in most jurisdictions, to establish the fact, by affirmative evidence, that the creditor had notice of the proceedings in bankruptcy in time to take advantage thereof.6 It has been held, however, that the presumption in favor of the discharge renders a discharge operative as against a debt which was not scheduled, unless the creditor shows that he did not have knowledge of the proceedings.7 It would seem that the presumption in favor of the discharge should not protect a debtor who has failed to comply with the requirements of the bankrupt act by omitting the name of a creditor from the schedule. Whichever party may be bound to establish notice, or the want of it, in cases of this sort, the use of the term "burden of proof" in two different senses induces some courts to say that the burden of proof remains on the defendant who has alleged his discharge, and that this burden does not shift although the preponderance of evidence shifts from side to side; while the other use of the term "burden of proof" leads other courts to speak of the effect of introducing evidence which must be met in order to prevail, as the shifting of the burden of proof.
13 Morris v. Perkins. 148 Ga. 554, 97 S. E. 526.
For a case refusing an injunction, but not involving the effect of a discharge, see Pell v. McCabe, 250 U. S. 573, - L. ed. -.
14 Bryant v. Kinyon, 127 Mich. 152, 53 L. R. A. 801. 86 N. W. 531; Bailey v. Gleason, 76 Vt. 115, 56 Atl. 537.
15 Balk v. Harris, 130 N. Car. 381, 41 S. E. 940; Bailey v. Gleason, 76 Vt. 115, 56 Atl. 537.
16,Tarecki Mfg. Co. v. McElwaine, 107 Fed. 249.
17 B. F. Roden Grocery Co. v. Leslie, 169 Ala. 579, 53 So 815.
18 Bailey v. Gleason, 76 Vt. 115, 56 Atl. 537.
1 Section 21(f), Act of 1898, as amended Feb. 5, 1903, c. 487, | 7.
2 United States. Kreitlein v. Ferger, 238 U. S. 21, 59 L. ed. 1184.
Illinois. Van Norman v. Young, 228 111. 425, 81 N. E. 1060.
Iowa. Hallagan v. Dowell (la.), 139 N. W. 883 [s. c, 179 la. 172, 161 N. W. 1771.
Mississippi. King v. Kellogg, 114 Miss. 375, 75 So. 134.
New Jersey. Claflin v. Wolff, 88 N. J. L. 308, 96 Atl 73.
North Carolina. Laffoon v. Kerner, 138 N. Car. 281, 50 S. E. 654.
Vermont. In re Grout, 88 Vt. 318, 92 Atl. 646.
3 Smith v. Hill, 232 Mass. 188, 2 A. L. R. 1667, 122 N. E. 310 [citing, Sloan v. Grollman, 113 Md. 192, 77 Atl. 577; Wylie v. Marinofsky, 201 Mass. 583, 88 N. E. 448; Wineman v. Fisher, 135 Mich. 604, 98 N. W. 404; Calmenson v. Moudry, 137 Minn. 123, 162 N. W. 1076; Armstrong v. Sweeney, 73 Neb. 775, 103 N. W. 436].
4 Hallagan v. Dowell, 179 la. 172, 161 N. W. 177; Bailey v. Gleason, 76 Vt. 115. 56 Atl 537.
5 Hallagan v. Dowell (la.), 139 N. W. 883 [s. c, 179 la. 172, 161 N. W. 177].
6Maryland. Sloan v. Grollman, 113 Md. 192, 77 Atl. 577.
Massachusetts. Smith v Hill. 232 Mass. 188, 2 A. L. R. 1667, 122 N. E. 310.
Michigan. Wineman v. Fisher, 135 Mich. 604, 98 N. \V. 404.
Minnesota. Calmenson v. Moudry, 137 Minn. 123, 162 N. W. 1076.
Nebraska. Armstrong v. Sweeney. 73 Neb. 775, 103 N. W. 436.
7 Laffoon v. Kerner, 138 N. Car. 281. 50 S. E. 654.