Parker v. Atwood

52 N.H. 181 | N.H. | 1872

Smith, J.

Sec. 29 of the U. S. Bankrupt Act of 1867 provides that 61 no discharge shall be granted, or if granted, be valid, if the bankrupt * * * has concealéd any part of his estate * * Sec. 34 enacts that the certificate of discharge “ shall be conclusive evidence in favor of such bankrupt of the fact and regularity of such discharge; always provided, that any creditor * * * who shall see fit to contest the validity of said discharge on the ground that it was fraudulently obtained, may, at any time within two years after the date thereof, apply to the court which granted it to set aside and annul the same.” It is clear that, the remedy thus prescribed in the act was intended to be exclusive; and that “ neither in any other mode, nor in any other court,” can the discharge be attacked on the ground that the bankrupt *182fraudulently concealed assets. Otherwise, the discharge might be invalidated in a State court, after the expiration of the two years limited for the commencement of proceedings in the U. S. court to annul it; and the discharge might be held valid in one court and invalid in another — results evidently not contemplated by the act of Congress. The authorities under the U. S. Bankrupt Act of 1841 are not in point. The provisions of the 4th section of that act differ widely from the 34th section of the Act of 1867. In the Act of 1841, no tribunal was specially designated for testing the validity of the discharge.

Our construction of the Act of 1867 is sustained by Corey v. Ripley, 57 Maine 69, and Ocean National Bank v. Olcott, 46 N. Y. 12. It is understood that the decision of the supreme court of Massachusetts, in Way v. Howe (not yet reported), supports this view.

The replication does not allege that the debt due to the plaintiff was omitted from the schedule filed by the bankrupt in the U. S. court; nor does it allege that the plaintiffs were, either innocently or fraudulently, deprived of notice of the bankruptcy proceedings. It is therefore unnecessary to discuss the questions considered in Batchelder v. Low, 43 Vt. 662, Hill v. Robbins, 1 Mich., nisi prius, 305, and Symonds v. Barnes, 59 Me. 191. Demurrer sustained.