Page:Federal Reporter, 1st Series, Volume 5.djvu/313

 IN KH 'WHBEIiiiS; *-3Ôl �the court, (form 51.) It is there noted that in bucIi case the petition should itself state thàt "no deliits have been proved against the ,bankrupt> or that no aseets have corne to the hands of the assignee." If, howe^er, it were regular to file the petition within six months after adjudication in case debts bave been proved, and without the appointaient of an assignee, I think the proof in tbis case is that, if there had been an assignee at the time of the filing of the petition, there •would bave been assets in bis hands. The petition having been filed before the statute permitted it to be filed, no dis- charge can be granted. It is suggested that the opposing crediter bas waived tbis objection by proceeding with the taking of testimony under the specifications, but the oppos- ing crediter took the objection in bis specifications, and I do not think he can waive the objection if be wisbes to do so. For the protection of ail the creditorej the court is bouiid to Bee that the bankrupt bas complied \yitli the conditions of the statute which are requisite to the granting of bis discharge; and, if the record shows that he has not done eo, the dis- charge cannot be granted. Eitber party could haye brought this point to the attention of the court before expendiiig so ■mueh time land money in the taking ôf testimony. It i^ cer- tainly no more the fault'of the opposing crediter thaii itis of the bankrupt that the inatter was not sooner brought \f) th'e .attention of the court. It becomes, unnecessary, therefore, to consider the other questions which arise under the specifi- cations to the merits, since they may not arisû in the case again if a new petition should be filed. �Petition dismissed, without costs to either party as against the other. ����