243 F. 781 | D. Mass. | 1917
It is doubtful whether the practice is sound (see In re Chase [D. C.] 186 Fed. 408); but it is clear that the petitioner was prevented from bringing the matter to the attention of the court within the permitted time by the clerk’s statement to his attorney, and that what the petitioner did conformed to the current practice of the court. Under such circumstances, he ought not to suffer; and the petition for discharge should be treated as if presented to the court at the time when it was first tendered to the clerk.
“It is not the purpose or policy of the law in such a matter as this io take advantage of errors, or mistakes, or misconstructions.” Ray, J., in Re Daly (D. C.) 224 Fed. 263, 266.
The petitioner’s counsel, through an honest mistake as to the law, supposed that the petition for discharge could not be filed until the equity proceedings in the state court (in which charges were made against the bankrupt, which would be sufficient, if established, to defeat the discharge) had been terminated. He therefore did not attempt to file the petition for discharge until the conclusion of those proceedings. It would, I think, be altogether too strict a construction of the statute to hold that on such facts the bankrupt did not have the right to petition for his discharge within the six months period.
An order will be entered nunc pro tunc (see Mitchell v. Overman, 103 U. S. 62, 64, 26 L. Ed. 369) as of the date of the filing of the petition for discharge, September 25, 1916, finding that the petitioner was unavoidably prevented from filing his petition within the prescribed time; and a further order granting the discharge.