22 F. Cas. 782 | S.D.N.Y. | 1870
BY
[The supreme court has prescribed several forms of petitions, requests, and applications, but omits any form for an “application” in this case. And the “order for bankrupt’s examination,” prescribed by the supreme court (form No. 45), recites an “application,” but does not say anything of a petition or an affidavit showing good cause for granting the order.
[In the Case of Brandt [Case No. 1,813], the court says: “If a creditor desires to examine the debtor, the proper way to do it is by petition to the court, otherwise the court could know nothing of the desire of the creditor.” Nothing is said of showing good cause for granting the order.
[In the Case of Lanier [Id. 8,070], the following opinion of the register: “It is my opinion that the application of the assignee for the examination of the bankrupt need not be verified by his affidavit. I do not think that the law intends that any reason shall be stilted by the assignee in his application.” is appx-oved by the court. The right of a creditor to the order of court is by the statute put upon the same footing as the right of the assignee; and the register in that case sustains the opinion just quoted by the following argument, which seems to the undersigned to [)<> very cogent, and forcible upon this question, and applicable alike to the case of an application by a creditor, and to the case of an application by the assignee in bankruptcy, for the examination of the bankrupt. “That this is the meaning of the 26th section [of the act of 1807 (14 Stat. 529)] is evident from the context. A bankrupt may be required to submit to an examination regarding his bankruptcy at any time, on the application of the assignee, or of a creditor; but in order to obtain an order for the examination of the wife of the bankrupt, ‘good cause’ must -be shown befoi’e it can-be granted, or she required to attend. The maxim ‘Expressio unius est exclusio alterius,’ applies with great force here, as the proper rule of construction. The intent of the legislature is clearly expressed in making ‘good cause shown’ a condition precedent to the examination of the wife of the bankrupt, while the bankrupt himself may. be examined at any time, on the application of the assignee, or, without any application, by the court ‘me-ro motu.’ Bankr. Act, S 26. No fact then appearing in the application of the assignee, and no reason being given except what the law clearly sanctions and implies in the demand itself, no verification is necessary -to be made by the assignee, in thus invoking tlie assistance of the court to enable him to perform his duties under the law."
[The point was decided the same way in respect to an application by an assignee for the examination of the banknxpt in the Case of McBrien [Case No. 8.665|, in this court. As has been seen, the statute does not make any distinction between an assignee and a creditor in this provision, giving the right to examine the bankrupt: and all the reasoning of the register in his opinion in this case, ap
[Where the creditor has proved his debt against the bankrupt, and, either in person or by his attorney, makes a verbal application to the register in charge of the case, who knows of the fact of the proof of his debt by the creditor, for an order for the examination of the bankrupt, and the order is granted and issued, the absence of a formal petition in writing for the order, ought not to defeat the creditor in his attempt to examine the bankrupt, and exempt the bankrupt from the duty of submitting to an examination. The manner of the application, whether verbally or in writing,- so far as the bankrupt is concerned, is immaterial, so long as an application was actually made, which was the case in the present proceeding, as the fact of the application is recited in the order. To say that, an application in writing would give validity to the proceeding, when the same words expressed verbally to the court or register would be insufficient, would be to give effect to a ceremony at the expense of the substance.
[The-register is of the opinion that the creditor is entitled to an order for the examination of the bankrupt, notwithstanding the bankrupt has applied for his discharge.
TThe register will probably require greater diligence on the part of the creditor in the nrosecutidn of his examination, where, in case no objections are filed, the bankrupt will soon be entitled to his discharge, than in a case where the application for the examination of the bankrupt has been made at an early period of the proceedings in bankruptcy. But the creditor is not to be absolutely precluded from examining the bankrupt because he has not made his application for the examination until after the bankrupt has applied for his discharge.]
My decision in the Case of Adams [('ase No. 3!f|. was, that the creditor in that case, in order to obtain an order according to form No. 45, for the examination of the bankrupt, under section 20 of the act. must apply to the register for such order by petition or affidavit duly verified, and show good cause for the granting of the order. The register had so held in that case, on a verbal application to him, without a petition or affidavit, and had refused to grant the order. The effect of the decision was merely that the register had a-discretion, under section 20, to require good cause to be shown for granting the order, by a petition or affidavit duly verified, and, as he had exercised such discretion. I saw no reason in the papers for interfering with his decision. In the Case of McBrien [Case No. S.005J, the register granted an order for the examination of the bankrupt on the written application of the assignee, not sit](ported by an oath. The bankrupt moved before the register to vacate the order, because it was not founded on an affidavit showing good cause for granting it. The register denied the motion, and I confirmed his decision, and concurred in his view that it was discretionary whether to grant an order, and what cause should be shown for it. In the present case, the register, in the exercise of his discretion, thought proper to grant the order, without requiring a petition or affidavit duly verified, showing good cause for granting the same. Nothing appears to show that that discretion was improperly exorcised, and the order must stand. The time to examine the bankrupt does not expire with the mailing of his application for his discharge.
[On behalf of the creditors thus attending before the undersigned, it was objected that the order of reference aforesaid to the undersigned to make the order to show cause aforesaid, and the said order to show cause so as aforesaid made by the undersigned, had been irregularly made, because- assets had come to the hands of the assignee in bankruptcy of the estate and effects of the bankrupt, and s*x months had not elapsed from the adjudication of bankruptcy. In support of this objection, the creditors, by their counsel, read the pages, a copy of which is hereto annexed from Schedule B, annexed to the first petition of the bankrupt in this proceeding. The undersigned stated his opinion that the order of reference and the. order to show cause would not be set aside on the ground of irregularity. The said creditors then filed with the undersigned the copy hereto annexed of the sworn petition of Manning & DeForest, the said creditors of the said bankrupt. and the deposition attached to the same and thereto annexed, of Robert Sewell. Esq., counsel as aforesaid of the said creditors, and again read the portion aforesaid, a copy of which is hereto annexed of Schedule B, annexed to the first petition of the bankrupt in this bankruptcy. The bankrupt then filed with the undersigned the return hereto annexed of the assignee in bankruptcy, of the estate and effects of the bankrupt, and the deposition hereto annexed of Andrew J. Solis, the said bankrupt.
[The counsel for the creditors claimed that the order of reference aforesaid to the undersigned to make the order aforesaid to show cause, and the said order to show - cause, ought to be discharged on the ground that at the time of the application of the bankrupt for a discharge from his debts, six months from the adjudication of bankruptcy of the bankrupt had not expired. The questions whether the order of reference aforesaid to the undersigned to make the order to show cause aforesaid, and the said order to show cause were irregular, and whether the said order of reference and the said order to show cause ought to be discharged on the ground that six months from the adjudication of bankruptcy of the bankrupt had not expired, are. at the request of the parties, certified to the. judge for his opinion thereon.
[Dated at the city of New York, the 22d day of April. P-!7o.j
ISAAC DAYTON. Register.
The register thereupon certified the matter to the court, giving the following opinion: “The petition of the bankrupt of the 26th March, 1S70, praying that he‘may be decreed to have a discharge from his debts, alleged that no assets had come to the hands of the assignee of his estate. No objection is made that this petition was not under oath. The allegation brought the case within the provision of the 29th section of the act, that ‘if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, and within one year, from the adjudication of bankruptcy, the bankrupt may apply to the court for a discharge from his debts,’ and gave the court jurisdiction to make the order of reference, and an order to show cause. In re Bellamy [Case No. 1,260]. Those orders were, therefore, not irregular. Nor should those orders be set aside upon the facts. Certificates of stocks, or claims against debtors of the bankrupt which, up to the time of the application of the bankrupl for discharge, have not actually produced anything, and for which the only offer made is an offer of a small sum of money, whilst there is strong evidence that these stocks and claims are absolutely worthless, may very justly be said not to be assets at the time of the application for discharge, whatever they may have become or may become, afterwards. The bankrupt was, therefore, entitled to make his application for discharge at the expiration of sixty days from the adjudication of bankruptcy.”
BLATCHFORD, District Judge. The order of reference and the order to show cause were regular, and the order to show cause ought not to be discharged on the ground stated. I concur in the views stated by the register in his opinion.
[From 4 N. B. R. 68 (Quarto, 18).]
[From 3 N. B. R. 761 (Quarto, 186).]
[From 3 N. B. R. 76 (Quarto, 186).]