24 rmninnn. .nm=·on*r1=.m.
ofi that case shows that the decision turns wholly upon the construction
to be given section 5106 of the Revised Statutes, instead of section 5105,
and, to my mind, it does not seem to touch the question here under
· consideration. Taken as it now stands, section 5105 clearly prohibits
a creditor who has proved his debt against an estate in bankruptcy ,
· from maintaining a suit at law or in equity, on such cause of action
pending the proceedings in bankruptcy, and, if a discharge is refused,
or the proceedings in bankruptcy determined without a discharge, the
creditor, is remitted to his right of action against the bankrupt.
It is urged that the bankrupt merely has the privilege of insisting
V .1pon a stay of proceedings at law pending his bankruptcy proceedings;`
md that may be true in regard to cases arising under the provisions of
section 5106, but clearly such was not the intention of congress in regard
to cases coming within the provisions of section 5105, as now amended.
Where a creditor has proved his debt, and while the bankruptcy proceed-
ings are pending, awaiting the action of the court upon the question of
the right of the bankrupt to a discharge, it was evidently the policy of
the law to protect the bankrupt from harassing suits by creditors who had
made -themselves parties to the bankruptcy proceedings by coming into
» the bankrupt court and proving their claims; but if those claims were
not satisfied out of the bankrupt’s estate, and the bankruptcy proceed-
ings terminated without the issue of a discharge, or a discharge was re-
fused. to the bankrupt, then those creditors could afterwards proceed
‘ against the bankrupt for the collection of their demands. The language
of the bankrupt law is: "No creditor proving his debt or claim shall be
allowed to maintain any suit at law or in equity thereforagainst the bank-
rupt," etc. This is clearly a peremptory and positive prohibition against
the maintenance of a suit against a. bankrupt by a creditor who has _
proved his debt; and until that prohibition is at an end by the denial
of the discharge, or the determination of the proceedings, the creditor,
'within the meaning of section 23 of the Illinois statute of limitations,
— may be said to be prevented by statutory prohibition from the commence-
ment of an action. Hence I am of the opinion that the demurrer to the
replication is not well taken, and that the replication furnishes a suiiicient
answer to the defense set up in the plea. . `
` Demurrer to the second replication to the defendants third plea over-
ruled.