The times. [volume] (Richmond, Va.) 1890-1903, 1901-01-13
CASE IN ANKRUPTCY.
Interesting Decision By Referee Card
well is Rendered.

Mr. C.. P Cardwell, referee in bank
r1ptcv has rendered the following decision
in the case of Mr. John R. Hockaday:
REFEREES REPORT.
Counsel for opposing creditors in this
case contend that the bankrupt should
not be discharged from his obligations set
forth in his schedule. on the following
grounds, to-wit:
!. That he has failed 10 keep rny books
from which his true financial condition
can be ascertained.
II. That he failed to keep said books with
fraudulent intent to conceal his true Imam
cial condition, and
i'll. That he did this in contemplation OF
bankruptcy.
AS to the first contention, that he has
failed TO keep books from which his true
financial condition could be ascectained,
it is true that the testimony shows that
the bankrupt has not exercised such care
in keeping his books and accounts as would
be expected from man of ordinary care
and prudence; but there is no evidence TO
show that he has been crminally negli-
gent, or that he has endeavoced to deceive
the public and creditors as to his true
financial condition. On the contrary. dur
ing his business career at Roanoke he
kept an account of his transactions with
the public and of the disposition OF the
trust fund. That he came into court with
soiled hands, argued by counsel Tor
creditors, is a matter not effectinS the
creditors. but between the trustee and
cestu que trust. and therefore, not within
the judicial Cosnzance of this court.
AS 10 the allegation that there was
fraudulent intent, from all the testimony
the fraudulent intent cannot be Inferred.
Carelessness and negligence is all that
can be shown from the testimony in this
case The failure TO produce books, or the
destruction of them, is not Sufficient alone
to prove fraudulent intent. Where the
bankrupt acts honestly, without intent to
deceive or defraud, he is entitled to II dis
charge. although he may have destroyed
or neglected TO Keep books through mad
vertence ignorance or mistake. The
fraudulent intent must be determined from
acts OF the bankrupt and circumstances
of each particular case II there nave
been such acts and circumstances they
have not been sufficiently proved by the
evidence before the referee.
1t is also contended, as the third ground
upon which the discharge be denied, that
the failure to keep books, etc, was done
by the bankrupt in contemplation OF bank
ruptcy. In the case Of Buckingham vs.
Mclean. 18th Howard, 1GS. the Supreme
Court held that the words Sin contempla-
ton OF I;a nkruptcy'-Or q simple Inability
to pay as debts should become due and
payabie-meant that the debtor must con-
template the commission of whit was
declared by the act TO be an act OF bank
rIptcy. or must have contemplated an
application by himself to be declared a
bankrupt. During the bankrupt's business
career in NOrnolle he could not have con-
templatted the commission Of an act OF
Bankruptcy for the statute Of 1888 had not
been passed, said bankrupt having left
Roanoke in TO-. His business since then
has not been Of such character as to de-
n1nnd a keeping OF books or to deceive
his creditors as to his financial condition
by his failure to do so.
The referee is. therefore. of opinion that
the bankrupt has committed no act which
would justify this court in refusing his
discharge.