The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1851-11-15

R1vvnons VI tnn ect, or shall W1fully omit or 70
fuse to comply With any orders or directions Of such
court, or to conform to any other requisites of this
act or sh All IN the proceedings under this act ad nit
false or fictitious debt against his estate he sh eli
not 90 emitted 70 any such discharge or cert6oste
nor shall any person, being q merchant, banker
factor, broker, underwater, marine insurer, be
ep6itled to any such discharge or certificate. who
shall become bankrupt, and who shall not have
kept proper books of account after the passing of
this act, nor any person who, after the passing of
this act shall apply trust fu ads to his own useS Ii
will be seen that all the causes of objections to the
obta lining of the discharge are enumerated. The
"And such discharge and certificate, when daily
g-anted, shall in all courts of justice be deemed a
full ard complete discharge of ali debts contracts,
and other engagements Of such bankrupt, which
are pr0veable under this act, and shall be and
may be pleaded rs full and comp lete bar to
all suits brought in any court of judcature
whatever, and the same shall be conclusive
evidence Of itself in favor of such bank.
fraud or wful concealment by him of his pro-
perty or rights of perty as aforesaid, contrary
to the provisions Of this act, on prior reasonable
notice specifying in writing such fraud or conceal
ment."' 1t will be observed that the expression,
fraud or wiIful concealment of property" is pre-
csey the same as that used in the foreg DING part
OF the section, indicating one of the grounds which
should prevent a bankrupt's discharge. The other
enumerated objections to the allowance of the GER
tihcate, such as preferences, not keeping pro-
PER books Of account, not Obeying the orders of
the t court &c seem to be studiously omitted We
could Lot construe the expression, fraud wilful
ooncealment of property" meaning 'sor shall
have preferred any Of his creditors contrary to the
provisions of this act" without constituting it also
to In can "or who shall wilfully omit or refuse to
comply with any ORDER or direction of such court
and also, "who shall not have kept proper books of
account" All the grounds of objection to obtain
ing the certificate are distinctly enumerated. The
discharge. when obtained, can be impe achsd only
on one of those grounds The language of the act
seems to US to be Gle ar and am biguous. A pre-
ference made by failing and insolvent debtor,
though it may be unlawful and contrary to the prov
try, or, as far know, in any other considered
to be case of actual fraud. 1t may be a n,ai,.m
prohtb'tvm, but not maiun' in Sc. The word
fraud" as used in the second section, and gene
rally IN the act, so far as it is used in connection
with the preference of creditors, to be used
in the same sense as the word " unla wful" The
preferences by the act were rendered void and un-
lawful. They prevented the issue of the cert Gcate
but only actual fraud operated to set it aside. The
debtor who had parted with all his property to his
creditors, but who had given to one more than to
another, could not have obtained certificate if
those creditors, not preferred, interpesed obec
ton at the time of his application in bankruptcy.
i hen was the time to interpose such objections.
The case of fraud-of wilful concealment of the
bankrupts property, to be retained for his own
benefits widely different. The very frst step
which he took-the petition which he would pre-
sent-weuid be stamped with perjury A certificate
of discharge, thus obtained, could always be i'm.
peached. 1t must be borne in mind, however, that
in commercial countries, discharges in bankruptcy
are always impeached with great caution. After
the lapse of years petitions to set aside discharges
are sometimes at rejected, and they are seldom
granted without reference to ascertain how far the
may affect other bona fde creditors who
may have traded with and trusted the bankrupt after
his discharge, and upon the faith of his certificate
In the case now before u.s. if it was conceded that
preferences, in contemplation of bankruptcy, were
acts Of fraud. and vitiated the discharge, still
think that this discharge would be good, as we
feel fully warranted, by the proof in saying that
when the preferences we're made, the defendant did
not contem plate avalpg himself Of the provisions
Of the act. We were satisfied fully, upon the
hearing, that there no foundation for the
charge of the conceament of property. Laying
aside the question as to preferences, there is not
in our judgment, the slightest ground for i'm
peachirg this discharge Though We have pre-
ferred to place our decision upon the grounds
which We have considered, we feel it our duty
TO say that, if determination Of the entire
merits of the case had been rendered necessary,
We should have directed the same decree to be
entered. The complainants, in our judgment
have failed, on the merits, in making cut their
case: The bill must, therefore, be dismissed, as
to all the defendants.