In the Matter of James D. Ray, a Bankrupt. section provides, that the court may, on the application of "any creditor," "examine upon oath the bankrupt, or any person tendering, or who has made proof of claims, and may summon any person capable of giving evidence concerning such proof, or concerning the debt sought to be proved, and shall reject all claims not duly proved, or where the proof shows the claim to be founded in fraud, illegality, or mistake." Before a creditor can, under section twenty-six, apply for an order to examine the bankrupt he must prove his claim. The words, "any creditor," in that section mean any creditor who has proved his claim. It is true, that the examination under that section may extend to an examination concerning the claim itself. But an examination of the bankrupt, when desired, in regard to a claim proved or sought to be proved, can take place under the twenty-second section; and the words, "any creditor," in the last clause of that section, must, from the language of the whole section, be held to mean not only a creditor who has proved his debt, but a creditor who has tendered proof of a debt which has not yet been allowed, so as to authorize the latter, as well as the former, to apply for an examination under the twenty-second section. The order for the examination in the present case is stated to have been made under the twenty-sixth section, and I must intend that it was not to be merely an examination in reference to the debt claimed by these creditors. As their debt had been proved, they had a right, under section twenty-six, to apply for the order. The debt being proved, and the order being made, the creditors have a right to proceed with the examination. The twenty-third section requires the court to allow all debts duly proved. But, under the provision in the twenty-second section, before quoted, the court is required to reject all claims not duly proved, or where the proof shows the claim to be founded in fraud, illegality, or mistake. The claim of these creditors must stand as In the Matter of James D. Ray, a Bankrupt. proved until it is rejected, either as not having been duly proved or as having been founded in illegality or mistake. If the bankrupt desires to have the claim rejected for any such reason, he must apply to the court by petition, and a reference will be ordered under section thirty-eight, to make the examination provided for by section twenty-two. I might content myself with answering the question certified, by saying that a creditor who has proved his debt has a right to examine the bankrupt under section twenty-six of the Act, although his debt may appear to be barred under the circumstances set forth in this case. But what is really desired by the parties is a decision whether the debt in this case is one which ought to be rejected as being barred by the statute of limitations of New York. The Bankruptcy Act is silent as to the operation of any statute of limitation. The nineteenth section provides, that "all debts due and payable from the bankrupt at the time of the adjudication of bankruptcy," may be proved against his estate. This language is broad enough, on its face, to include all debts, no matter of how long standing. I have not met with any decision under any former Bankruptcy Act of the United States on the question presented. But in England it has always been held, under the bankruptcy law, that a debt which cannot be recovered in an action, against a plea of the statute of limitations, cannot be proved in bankruptcy (Ex parte Dewdney, 15 Vesey, 479; Re Clendining, 9 Irish Eq. R., new series, 287). And in England a dividend paid on such a debt was ordered to be repaid (Ex parte Dewdney, ubi supra). The principle involved is, that the debtor is under no obligation to pay such a debt, and that, therefore, it cannot be said to be "due and payable." The rule in England continues to be the same, and the ground on which it is put by elementary writers is, that the bankrupt has no option as to defending or In the Matter of James D. Ray, a Bankrupt. not defending a claim against his estate in bankruptcy, save through the action of the assignee, and the assignee is bound, in the interest of the body of creditors, to set up any legal defence which the bankrupt could have set up if he were not bankrupt (1 Archbold's Law of Bankruptcy, by Griffith & Holmes, edition of 1867, p. 533; 2 Doria & Macrae's Law and Practice of Bankruptcy, p. 787). I think that is the proper rule, and that, under section nineteen of the Bankruptcy Act, no debt can be considered "due and payable" which is barred by limitation, and that a debt so barred cannot be proved in bankruptcy. Is the debt in the present case so barred? The Code of Procedure of New York provides (sections 74, 91), that a civil action on causes of action such as those in this case, can only be commenced within six years after the causes of action accrued, but that the objection that the action was not commenced within the time limited can only be taken by answer. The whole scope of the statute is one affecting the remedy merely, and not the contract. A complaint setting out a cause of action which appears to have accrued more than six years before the action was commenced, is not objectionable on its face or open to a demurrer. The defence of the limitation must be set up by answer. If it is not so set up, it is waived. Now, the distinction between a law which affects the rights and merits of a contract, and extinguishes it and makes it null and void as the result of a prescription or limitation, and a law which does no more than limit the time within which an action must be brought upon the contract in the courts of the country which enacts the law, is well settled. A law of the latter description is wholly confined to the country enacting it. A law of the former description may, under certain circumstances, so affect the contract and its construction as to be capable of being invoked as a bar to an action on it in another country (Huber v. Steiner, 2 In the Matter of James D. Ray, a Bankrupt. Bingham's N C., 202; Story's Conflict of Laws, § 582). The statute of limitations of New York goes exclusively to the remedy in the courts of New York, and could never be invoked as a bar to an action in another State on the contracts in question in this case. This principle is sought by the creditors in this case to be applied to their claim, and they insist, that, as they would have a right, notwithstanding anything found in the law of New York, to sue the bankrupt on their claim if they find him within the jurisdiction of another State, they ought not to be deprived of the privilege of proving their claim in bankruptcy under a law of the United States, whose operation is co-extensive with the limits of the United States, unless it is shown that the claim is barred throughout the limits of the United States. The English bankruptcy law is co-extensive, as to territorial operation, with the English statute of limitations. The Bankruptcy Act of the United States operates in all the States as well as in New York. Under these circumstances, I think, that a debt, to be barred by limitation, so as not to be provable under the Bankruptcy Act, as not being "due and payable," must be shown to be so barred throughout the limits of the United States. I am the less reluctant to hold this view, because a contrary rule would have an effect which the counsel for the bankrupt in this case seems to have entirely overlooked. By section thirty-two of the Bankruptcy Act, a discharge under it discharges the bankrupt from all debts and claims which are by the Act made provable against his estate (except such as are excepted by section thirty-three); and, by section thirty-four, it is declared, that the discharge shall, with such exception, release the bankrupt "from all debts, claims, liabilities and demands which were or might have been proved against his estate in bankruptcy." If it be held that the debt in this case cannot be proved against the estate, it will not be discharged, and it will stand against the bankrupt. If he In the Matter of James D. Ray, a Bankrupt. shall hereafter be sued on it in another State, the discharge in bankruptcy will be no defence to such suit, if it appears that, on a direct adjudication, the creditors were refused permission, by the court in bankruptcy, to prove their claim, on the ground that it was not provable because it was barred by the statute of limitations of New York, and that statute will be no defence to such suit. The effect of applying, in this case, the views contended for on the part of the bankrupt, would be very disastrous to his interests. The schedules to his petition disclose the names of 324 creditors, whose aggregate debts, as set forth therein, amount to over $120,000. Of these creditors, 235 are set down as residing in the State of New York. Of the entire amount of debts, some $30,000 have been put into the shape of judgments. The rest appear to have been all of them past due for more than six years at the time the petition in bankruptcy was filed, and to be simple contract debts. The same rule that would exclude the debt in question here from being provable, would exclude others, probably the debts of all the 235 creditors who reside in New York, possibly the debts of all the 324, except those in judgment. Thus the bankrupt would, by his discharge, secure a discharge from but a meagre fraction of his debts. In the present case, 10 debts have been proved, amounting, in the aggregate, including the debt in question here, which is proved at $2,897.29, to a little over $13,500. These debts are all of them in the same category. They are simple contract debts, not in judgment, and were all of them due and payable more than six years before the filing of the peti tion in bankruptcy in this case. If they should be held to be not provable against the estate of the bankrupt because they were barred by the statute of limitations of the State of New York at the time such petition was filed, and yet should be held, under section thirty-four of the Act, to be discharged by a discharge in this case, because they were in fact proved against the estate, and |