The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-05-18

OPINION OF THE COURT BY JUDD, CT.
On the 14th May 1892, L. Ahung,
trader In Honolulu, was adiudicat-
ed a bankrupt on his own petition
and J f. Hackfeld was elected and
qualified as his assignee On the
18th June a sworn petition WAS filed
by the assignee claiming that the
bankrupt had failed to deliver him
mis- cash book, the bankrupt claiming
that he kept no cash book, although
he did keep other books OF account,
and that the petitioner had reason to
believe that the bankrupt with intent
TO defraud his creditors, had made
fraudulent gifts OF his property
The assignee prayed that the bank
rups might be summoned to appear
before a Judge of the Supreme
Court to answer such lnterrogatorles
as might be put to him aud to show
cause why he should not be impri-
soned as a fraudulent bankrupt I'M
der Sec. Z, Chap. y Laws of 1888.
An order was made for q summons
to issue returnable on the 9th July,
1892.
No proceedings were had on this
matter until March z, 1893, when it
was proceeded with before a Judge
of the Circuit Court First Circuit.
The bankrupt appeared and by coun
sci declined to be subjected to an ex-
animation on the ground that the
tsfatute of 1888 was unconstitutional
The objection was oyerrufed pro
fcrma and evidence was introduced.
The bankrupt refused TO testify and
was not compelled to do So Evil
dence was taken. The Circuit Judge
held on the evidence that within
three years before the commence
ment of the bankruptcy OF T. Ahung
and at the time of filing his petition
be- had failed to keep usual and
reasonable books and accounts set
ting forth Faithfully the state OF his
business transactions. and within the
said time with intent TO conceal the
true state Of his affairs wIllfully
omitted TO keep proper books or &C.
counts and had violated the proEIs-
ions of the Act of 1SSS-and senten-
ced him TO be imprisoned at hard
labor for the term OF five months
An appeal was noted and the bank
rupt admitted TO bail. The Circuit
Court, on appeal, reserved the follow
ing questions for our determination
~ Is Section Z OF Chapter 22
Laws of 1888 unconstitutional
20 Can q Circuit Judge commit
bankrupt to prison on hearing for
the purpose OF examining the bank
rupt, and on such proceedings as
we're held In this case, without pre-
sentation OF criminal CHARGE
81 Do the facts found warrant
the commitment on the complaint
g6led In the said case, and does the
tcomplaint warrant the finding madeE
The Section referred to reads as
follows: IF any bankrupt has COM
mitted any OF the offences herein
after enumerated, the Court may at
the examination OF the bankrupt, or
on the hearing OF the application for
his discharge, by order under seal or
the Court, adiudged said bankrupt
TO be imprisoned for any term not
exceeding six months, with or with
out hard labor. that Is to say, II the
bankrupt-n does Or fails TO do
certain enumerated acts, eight IN
humber, among them being 81 that
le HAS with the intent to conceal
tie true state OF his affairs w1llfuIIy
omitted 70 keep at any time proper
books or accounts: or az Has with
II three years before the commence
nent Of the bankruptcy failed TO
hep usual and reasonable books and
accounts setting forth truthfully the
safe of his business transactions
The first question for our decision
Ewhether this statute IS unconstl-
t1tional. Counsel for the bankrupt
rides upon United States " Fox, (95
e s. 670.) In this case the defend
zt Fox was indicted IN the District
Curt of the United States for the
ofence described IN the Revised
Statutes 20 subdivision OF Sec 51321
WITCH provides that every person
Expecting whom proceedings in
taruptcy are commenced, either
npn his own petition or that OF
1Isditor," who within three months
neore their commencement under
th, false color and pretence OF carry
: n; on business, and dealing In the
Urinary course OF trade, obtains on
crsiit from any person any goods or
chttels with intent TO defraud''
shn be punished by Imprisonment
fu period not exceeding three
yers.
The Court per Field. Justice. said: