136 F. 355 | 8th Cir. | 1905
The partnership firm of Barton Bros, was composed of Clib Barton, William P. Barton, Jr., and Ross J.
The evidence, without contradiction, showed that on or about the 25th day of November, 1902, Clib Barton, who was the active-manager of the business, went to Little Rock, Ark., and sold a lot. of cotton of the firm, and received therefor between seven and eight thousand dollars in money, in packages of fifty and one hundred, dollar bills, which he brought home and delivered to William P. Barton, Jr., who was the bookkeeper of the firm, who claims to-have put the package containing the money in an ordinary wooden desk, with a roller top, and inside of a drawer inclosed with a. door, and that he locked the door and the desk, where the money,, according to the petitioners’ statement, remained during Friday night and Saturday and Saturday night following, when they allege-the storehouse was burglarized, and the desk opened, and the money abstracted and stolen. This was a simple question of fact for the determination of the trial court on the evidence. The function of the District Judge on such a hearing is akin to that of a chancellor-in an equity proceeding. Where, as in this case, the hearing was-on oral testimony, his conclusions on disputed questions of fact should not be disturbed by the appellate court, except for cogent
A careful reading of the record has failed to persuade us that injustice has been done appellants by denying their petition for a final discharge from their debts. The spirit of the bankrupt act is commendable. Its purpose is to release the honest debtor from the burden of debts which he is unable to longer carry; to give freer play to his energies and enterprises, that he may thereafter be better able to support himself and those dependent upon his earnings, and thereby be in position to render a better service to the state and to society. This beneficent policy is conditioned always upon the bankrupt’s full and complete surrender of all his unexempt property for the benefit of his creditors. He must be honest in this respect. He must neither conceal nor withhold knowingly anything from his creditors which they are entitled, under the law, to know or receive. Whenever the court is impressed with the belief, after due inquiry and examination, that in the main the bankrupt has intended and tried' to comply with the law, he should be dealt with liberally on his petition for manumission from his debts. On the other hand, in order to obstruct gross abuses of the spirit of the bankrupt act, that it may not aid the dishonest debtor in being acquitted of his honest debts, while withholding aught that he should surrender for the benefit of his creditors, it is the duty of the court to look into the heart of his transactions.
When the partners received between seven and eight thousand dollars for said cotton, their assets reduced to cash were inadequate to meet their liabilities. They had past-due obligations to creditors. This large amount of cash, without notice of its possession to their creditors, was placed in an insecure wooden desk in a public store, and left unguarded for two whole nights. This money was not entered by the bookkeeper on the cashbook of the company. It was not even counted by said bookkeeper, for the flimsy reason, assigned by him, that he was busy, and for the lack of opportunity to make the count without exposing the money to the public, although two nights had intervened, when they would have had the privacy of their own counting room for such purpose. The three partners knew of .the deposit of this money in said desk. There was a large safe in the storeroom, which, while it may not
Without going into further details, the only plausible suggestion against the complicity of the surviving brothers in the appropriation of this money is the opportunity Clib Barton had to take it, as he had the means of access to it. This suspicion is largely predicated of the assumption that he was seen at a late hour the night of the alleged burglary about the balcony of the storehouse. This assertion rests upon the merest hearsay testimony. No witness testified to having so seen him, but a witness was permitted, without objection, to say he was told that Clib Barton was wandering about drunk that night, and was seen about the place at a late hour. It is apparent why this incompetent statement was admitted unchallenged. The objecting creditors deemed it a circumstance bearing on the existence of a probable conspiracy between the brothers to surreptitiously extract' and hide the money, while the surviving brothers were willing enough to save themselves by the imputation thus cast upon their dead brother, so long as the ignominy of it did not proceed from their own mouths. In a contention between living brothers and the dead one, the presumption would rather favor the innocence of the latter. Maudlin drunk as he was when he returned with the money, he turned the package over to William P. Barton, Jr., the bookkeeper, who thus became its custodian; and it is doubtful if Clib Barton, who continued in an intoxicated con
There were other instances and circumstances in evidence of an inculpatory character against the conduct of the .petitioners in connection with this money, which are not of sufficient importance to-affect the conclusion reached by the District Judge. Giving to his conclusion that deference to which it is entitled, his action in denying the petitioners for discharge must be affirmed. It is accordingly so ordered.