1. A federal question which was treated as open, and decided, by
the state supreme court, will be reviewed here without inquiring
whether its federal character was adequately called to the
attention of the state trial court. P. 260 U. S.
2. A question of burden of proof may amount to a federal
question when intimately involving substantive rights under a
federal statute. P. 260 U. S.
Page 260 U. S. 593
3. The burden of proof is one thing, and the necessity of
producing evidence to meet that already produced another. P.
260 U. S.
4. A creditor who would avoid the effect of a discharge under
the Bankruptcy Act upon the ground that the debt was not scheduled,
with his name, must prove himself within that exception, and the
debtor who would excuse the omission of the creditor's name upon
the ground that the creditor had notice or actual knowledge of the
bankruptcy proceedings must prove himself within that exception to
the exception. P. 260 U. S.
232 Mass. 188 affirmed.
Certiorari to a judgment of the Superior Court of Massachusetts,
entered on a finding for the plaintiff made subject to exceptions,
which were overruled by the Supreme Judicial Court, in an action on
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit upon a judgment. The defendant, Warren H. Hill,
pleaded a discharge in bankruptcy. Subsequently he died, and his
executors, the petitioners, took his place. There was a trial
before a judge without a jury. The plaintiff introduced proof that
the judgment was unsatisfied and rested. The defendants proved the
discharge and rested. In rebuttal, the plaintiff introduced the
schedules of creditors in bankruptcy of Hill, in which schedules
the plaintiff's name did not appear. The defendants asked for
rulings that the burden was upon the plaintiff to show that he was
not notified of the defendant's bankruptcy and that he had no
knowledge of it.
Page 260 U. S. 594
These were refused subject to exceptions, and the Court found
for the plaintiff. The exceptions were overruled by the Supreme
Judicial Court, and judgment was entered upon the finding.
Smith v. Hill,
232 Mass. 188. A writ of certiorari was
allowed by this Court.
It is argued for the respondent that there is no jurisdiction in
this Court because the attention of the trial judge was not called
specifically to the Bankruptcy Act as a ground for the rulings
asked, and because, even if it had been, it is said, the burden of
proof is to be determined by the practice of the state. As we are
of opinion that the judgment was right, we shall not discuss these
objections at length. We deem it enough to say, as to the first,
that the appellate court treated the question as open and decided
it, and as to the second, that here, as in Central Vermont
Railway Co. v. White, 238 U. S. 507
though perhaps in a somewhat less intimate and obvious way, the
burden of proof is so connected with the substantive rights given
to the respective parties by the statute -- indeed so flows from
the words of the statute -- that the ruling upon it may be reviewed
The merits were fully and adequately discussed by the Supreme
Judicial Court. In order to dispose of them, it will not be
necessary to repeat the distinction, familiar in Massachusetts
since the time of Chief Justice Shaw, Powers v. Russell,
13 Pick. 69, and elaborated in the opinion below, between the
burden of proof and the necessity of producing evidence to meet
that already produced. The distinction is now very generally
accepted, although often blurred by careless speech. Thayer,
Preliminary Treatise on Evidence, c. 9. The Bankruptcy Act of July
1, 1898, c. 541, § 17a(3), 30 Stat. 550, amended by Act of February
5, 1903, c. 487, § 5, 32 Stat. 798, provides that a discharge
"shall release a bankrupt from all of his provable debts, except
such as . . . (3) have not been duly scheduled in time for proof
Page 260 U. S. 595
allowance, with the name of the creditor if known to the
bankrupt, unless such creditor had notice or actual knowledge of
the proceedings in bankruptcy."
(The Amendment of March 2, 1917, c. 153, 39 Stat. 999, does not
change this language, and was adopted after the discharge.) By the
very form of the law, the debtor is discharged subject to an
exception, and one who would bring himself within the exception
must offer evidence to do so. Kreitlein v. Ferger,
238 U. S. 21
238 U. S. 26
McKelvey v. United States, 260 U.
. But there is an exception to the exception,
"unless the creditor had notice," etc., and, by the same principle,
if the debtor would get the benefit of that, he must offer evidence
to show his right. We agree with the Court below that justice and
the purpose of the section justify the technical rule that, if the
debtor would avoid the effect of his omission of a creditor's name
from his schedules, he must prove the facts upon which he
The petitioners urge two further objections. They say that it
did not appear that the debtor knew the name of his creditor. The
trial judge was warranted in inferring that, when a judgment had
been recovered against him in Boston, where he lived, he knew the
name of the man who recovered it and who lived hard by. Again, they
say that the debt may have been scheduled under some other name.
The judge had the schedule before him, and, for all that appears,
well may have inferred that it was not.
But we cannot treat these questions as open. The Supreme
Judicial Court stated that the questions presented related wholly
to the burden of proof, and it was said at the argument and not
denied that, in their brief before that Court, the petitioners
asserted that the sole issue was on the refusal to give the
requests stated above. That is all that is before us now, although
we have been unwilling to let the petitioners suppose that, were it
otherwise, they would be better off.