102 F. 731 | 7th Cir. | 1900
after making the foregoing statement, delivered the opinion of the court.
The facts upon which the objections to the discharge of the bankrupt rest are undisputed, and two questions only are presented by the assignment of errors: (1) Whether the conceded facts clearly sustain the objections; and, if not, (2) whether costs were properly charged as taxed against the objecting creditors.
1. The bankruptcy act is imperative in granting to the bankrupt the right to a discharge “unless he has (1) committed an offense punishable by imprisonment as herein provided; or (2) with fraudulent intent to conceal his true financial condition and in contemplation of bankruptcy, destroyed, concealed, or failed to- keep books of account or records from which his true condition might he ascertained.” Section 14b. The objections in the ease at bar are confined to tbe first-mentioned cause, and specify as the offense committed by the bankrupt that he “knowingly and fraudulently” made. (1) “a false oath in relation to this proceeding in bankruptcy,” and (2) a false account in, the same maiter; hut the testimony relates solely to the charge of making a false oath, and the only contention is that the affidavits of the bankrupt to his petition and accompanying schedule of property are false because he omits from the schedule a showing of ownership by himself of the shares of stock in the Central House-Furnishing Company which are held in the name of his wife. The serious offense thus charged is one of the crimes punishable by imprisonment under the bankrupt act, and its ingredients are clearly defined in section 29b as “having knowingly and fraudulently * ⅞ ® made a false oath” in the proceedings. This language is followed in stating the ground of objection, and it is obvious rhat no ground exists, within the statute, unless the proof establishes both ingredients of the offense-ownership in fact by the bankrupt of the shares in question, and clear knowledge of such fact on his pari, either directly shown or necessarily implied from the circumstances. In the case at bar the proof establishes neither of these requisites. Legal title to the shares of stock was vested in the wife, through her original subscription and subsequent purchases, directly from the company, and has so remained ever since,, without apparent ownership in the bankrupt in any form. It is contended, however, that these transactions in the name of the wife were mere devices to cover up and place beyond the reach of creditors property acquired by the bankrupt, and held in fact for his use and benefit; and, if the testimony establishes this proposition of fact, decisions of the supreme court of Illinois are cited as to the status of the legal title in such
2. In reference to the remaining assignment of error, the award of taxable costs against the objecting creditors was authorized by subdivision 18 of section 2 of the bankruptcy act, and the allowance of $25 as costs of the referee on the hearing is the only debatable question. Section 40 of the act expressly provides that “referees shall receive as full compensation for their services, payable after.they are rendered, a fee of ten dollars deposited with the clerk at the time the petition is filed in each case,” together with a small percentage on payments out of the estate. This provision is in harmony with the purpose manifested throughout the act, to so limit all allowances as to secure economical administration of proceedings and estates in bankruptcy; and the duty of the courts to construe and administer the act in conformity with-that purpose is well declared and exemplified in the opinion of Jenkins, Circuit Judge, speaking for this court, in the recent case of In re Curtis, 100 Fed. 784. If the charge in question is for services rendered by the referee in the performance of the duties of a referee under the act, it is plainly not taxable as costs in this instance; for' however inadequate the prescribed compensation may be, he takes the office cum onere, and must abide by the fees so fixed. In sections 88 and 39 the jurisdiction and duties of referees are spe-