In re Pierce, 103 F. 64

In re Pierce

103 F. 64 | N.D.N.Y. | 1900

COXE, District Judge.

After a careful examination tbe referee bas found that tbe evidence is insufficient to warrant a finding that tbe bankrupt knowingly and fraudulently concealed property from bis trustee. I incline to the opinion that tbe conclusion of tbe referee in this regard is correct. If criticism of this condition of affairs is to be 'indulged in it should be directed not against tbe judicial but tbe legislative branch of tbe government. It cannot be disputed that tbe present act permits a discharge no matter bow preferential and fraudulent have been tbe transfers of tbe bankrupt so long as bis acts do not amount to a fraudulent concealment from bis trustee of property belonging to bis estate. Whether this should be so there may be serious doubt, that it is so there is no doubt. Tbe proof here *65fails to establish, a case under section 29b, subd. 1, Bankr. Act. The specification filed by ihe objecting creditor, now opposing the discharge, is, in iny judgment, insufficient to present this issue, or any issue. The objection charging concealment omits the essential and fundamental allegation that the acts were done “knowingly and fraudulently.” The objection that the bankrupt failed to keep books is not mentioned at all. Should the objecting creditor desire to proceed further in this matter he may amend the objections numbered 1 and 2 by inserting (he necessary allegation as above indicated and he may verify the specification nunc pro tunc. Ao hardship can result as the evidence has been taken and considered upon the theory that the specification was sufficient. It would be unfair, however, to permit an objection presenting the issue as to the failure to keep books to be made at this late day. The discharge will in no way preclude the trustee from recovering property fraudulently transferred. The report of the referee is confirmed and the discharge is granted.