In re Warne

10 F. 377 | E.D. Pa. | 1882

Butler, D. J.

The register finds that the bankrupt was guilty of fraud, in failing to deliver to his assignee a horse, phaeton, and harness, as charged in the specification, and that he is not, therefore, entitled to a discharge.

It is probable the register is right in finding that this property belonged to the bankrupt, and should have been returned to the assignee; but we cannot accept his conclusion that the failure to return it, standing alone, shows such fraud as forbids the bankrupt’s discharge.

The most reasonable inference from the facts is that he did not know it should be returned, — that he believed it to be his daughter’s. Accepting the creditor’s allegation that he had given it to her, it was hers as respects everybody but creditors. To hold that he was familiar with the law on the subject, and consequently knew that the property should be returned, would not be justifiable. At most, his failure to return it should be regarded as a mistake. As respects the question of discharge, such a mistake is unimportant. The transfer to the daughter may have amounted to constructive fraud; but the failure to deliver to the assignee, through want of knowledge, would hardly amount even to this. The fraud contemplated by the statute, as a bar to the bankrupt’s discharge, is fraud in fact, involving moral turpitude — intentional wrong. Neal v. Clark, 95 U. S. 704; Sharpe v. Warehouse Co. 37 Leg. Intel. 85; Stewart v. Platt, Id. 118; In re Wyatt, 2 N. B. R. 280.

The register’s act in reopening the case and admitting further proof was right.

The specifications subsequently prepared, and filed on the argument, should have been filed while the matter was before the register, and been reported upon by him. In the absence of a report they cannot be satisfactorily considered, and we do not think tho caso should be kept open by another reference. I may say, however, that I do not find in the case anything to sustain these specifications. No motive is suggested, or can be discovered, for the false swearing attributed to the bankrupt. His testimony -was directly against himself. The only admissible inference is that he was laboring under a misapprehension, either as respects the question propounded, or the facts of which he spoke. Nor does it appear that he had any motive to conceal his books. Thoy contained nothing that could be used against him, so far as appears; and their production was essential to his own case. I find no satisfactory evidence that ho was guilty of wilful neglect or misconduct respecting his books.