10 Ala. 523 | Ala. | 1846
The English act of Parliament of the 5 Goo. 2, ch. 30, contains in its 7th section provisions similar in some respects to our own, and directs the certificate shall be a full answer to a subsequent suit, unless the plaintiff in the action can prove the certificate Avas obtained unfairly and by fraud. Under this clause the decisions are numerous, that the payment of money, or any other thing, by the bankrupt, to a creditor, to induce him to consent to the alloAvance of a certificate, is a fraud on the act, which avoids the discharge. [Rabson v. Culze; 1 Doug. 230; Ex parte Butt, 10 Vesey, 359; Ex parte Hall, 17 Ib. 62; Holland v. Palmer, 1 B. & P. 95; Philips v. Dicas, 15 East, 248.]
The chief difference Avith respect to the creditors betAVeen the act of Congress and the act of 5 Geo. 2, ch. 30, is, that under the latter no certificate is to be alloAved, unless four-fifths of the creditors, for not less than tAventy pounds, shall consent in writing to the same. [2 Geo. 5, ch. 30, § 10, reduced to three-fifths, 49 Geo. 3, ch. 121, § 18, Cook’s Bank. L, 45, 93.] The act of Congress, hoAvever, docs not make the consent essential to the allowance of the certificate, but imposes on the creditors the obligation of filing their dissent in Avriting, at the hearing. To prevent the allowance of the certificate at that time, on the ground of dissent, a majority of the creditors Avho have then proved their debts, must dissent, and even then the bankrupt has the right to have it determined by a jury under the directions of the court, or by the court, whether the bankrupt has or has not made a full surrender of all his estate, as by the act required, and has, or has not, in all things conformed to the directions of the act.
In vieAV of this difference in the principle of the enactments, it is difficult to say the decisions are applicable to the act of Congress. The creditor here is required to be active in expressing his dissent, and the mere fact that another creditor has been induced to withdraw his opposition, is not by itself a fraud on the act. We incline the more Avillingly to
On the whole, we come to the conclusion, that the court properly refused to give'the instructions asked by the plaintiff, and that there is no available error in those given.
Judgment affirmed.