92

FlliDERJ.'L REPORTER.

to propeHyverify the petition. was' :jurisdictional and fatal, a da

busppecedentwould have been established, from which much collusive harn:nnightcome, and the ends: of justice and the wise purposes of the bankrupt act entirely frustrated, in many cases. The motion to dismiss the petition for want of. proper verification is therefore over· ruled. Upon the whole case as it DOW presents itself under section 18 of the bankrupt act, it seems to the court to be its imperative duty to make an adjudication as soon as practicable after 10 days have ex· piredafter the return day fixed in the subprena; and as no reason has been suggested, legally sufficient to prevent or further delay it, the adjUdication will be made now.

In re THOMAS. (DIstrict Court, S. D; Iowa, Centr8.1 Division. April 3, 1899.)
No. 531.

1.

BANXRUPTCY-DISCHARGE-SPECIFICATIONS IN OPPOSITION.

A discharge in bankruptcy will not be postponed or refused on sped· tlcatlons in opposition which merely allege the creditor's .belief that the bankrupt owns property. whi<'h he Is and has not listed in his schedule, since creditors have full oPportunity to ascertain the facts In relation to property by examination of the bankrupt.

S. SAME'-BunbEN OF PROOF.

The bankrupt's application fOT discharge will not be denied unless credo Itors opposing the same all.ege and prove one of the statutory grounds for Withholding the discharge., The court will not refus!!. to discharge the bapkrupt 'on grounds neit specified or proved by creditors.

3.

SAME-GROUNDS FOR REFUSING DISCHARGE-FRAUD.

It Is no ground for to discharge a bankrupt that the debt of the opposing creditor wa:screated by the fraud of the bankrupt.

In Bankl'uptcy. Application of bankrupt fol' discharge. On cer· tificate of 8. 8. Ethridge, Esq., referee in bankruptcy. L. L.Mosher, for bankrupt. Anna Harding, pro set
WOOLSON,District JUdge. Application having t:leen duly made for discharge of the bankrupt, and referred to the proper referee, notice was duly given to creditol'9 of time for filing written appearanc.e in opposition to the disehal'ge. Within the time so tixed, .one. creditor (Anna Harding, of Indianola, Iowa) filed with the referee certain specification of grounds in opposition to discharge. Briefly stated, these grounds were: That in 1893, she lent to the bankrupt'$100, taking his note therefol'; note to mature in one year. After the debtor's repeatedrefu·sals to pay the debt, this creditor put the note inito,judgment, "iz. in April" 1895. "That since the execution of said note said Thomas pUlcha.'Jed a homestead in,lnqianola, Iowa, the payment of this IUld other debts, had the deed to said property, executed to his:.wife.,; ,That he is now occupying said property as a home for hiraself ·and family, and: in tl1eenjoyment

IN RE THOMAS.

913

of the luxuries of life in a home secured with funds received in part from your petitioner." The grounds of opposition to discharge, a part of which are quoted above, close with the expression of the creditor's belief that the bankrupt now has sufficient funds to pay her said claim against him, and that he is asking discharge for the sole purpose of avoiding payment of his honest debts, which he is abundantly able to pay. With reference to that portion just summarized of the stated grounds, it is sufficient to say that the mere belief of the creditor cannot postpone granting the discharge. The present bankruptcy statute affords abundant opportunity for examination under oath of the bankrupt, touching every material phase of his rights and interests in property, so that the creditor is able to obtain the sworn testimony of the bankrupt in all these matters; and one ground for refusal to grant discharge is-section 11, b (I)-that he has committed the offense of-section 2H, b (2)-making "a false oath in or in relation to any proceeding in hankruptcy." If the facts were as claimed, as to the bankrupt having property not scheduled, and the bankrupt had so testified on his examination, the trustee should have pursued the interest of said bankrupt, and brought its proceeds into the estate. If, with the facts as claimed, the bankrupt had testified otherwise, such false oath could successfully have been used to prevent his discharge. But no ground of opposition to discharge is herein based on a false oath. Section 14, paragraph b, makes it the duty of the judge to grant the discharge, provided the requisites as to notice, etc., have been obsened, unless one of the two grounds in said paragraph stated is proven. The duty of proving that such ground exists is on the opposing creditor. Where the grounds are duly specified, and, if proven, would prevent discharge, the judge will fix time and place of hearing. But the judge neither seeks to discover grounds, nor supplies lack of specification. "He shall diseharge, unless," etc. The grounds here specified are (1) obtaining the loan of money under promises not performed, etc.,-in substance, that the debt was created by fraud; (2) that the bankrupt has an interest in the homestead standing in the name of the wife; and (3) belief of creditor that bankrupt has property with which, if he would, he might pay the claim. That the debt was by fraud of the bankrupt, if such be the case, is not a ground for refusal of discharge under the statute. Section 17 provides that from debts so created a diseharge does not release the bankrupt. And, when the discharge is pleaded as a defense to the enforcement of such debt, proof that the debt was so created makes the discharge inoperative against it. But the statute does not justify withholding the discharge therefor. Collier, in his excellent treatise on Bankruptcy, says (page 135):
"A discharge can be refused only because the existence of bne of the two grounds meIitioned in this section is established, or else because it is shown that the court has no jurisdiction. The mere fact that the only debt is one which the discharge will not affect-for instance, that it was due from the debtor in a fiduciary capacity, or Was created by his fraud-is no reason for refusing the discharge. The question how the discharge affects particular 92 F.-58

914

92 F.EDERAL REPORTER.

debts Is to be determined thereafter by tile court in which the bankrupt may be sued upon the debt, should' the bankrt1pt in that suit interpose the discharge as defense. Inre Elliott, 2N. B. R. 110, Fed, Cas. Ko. 4,391; In re Rathbone, 1 N. B. R. 324,2 Ben. 138, Fed. Cas. No. 11,580; In re Rosenfield, 1 N. B. R. 575, Fed. Cas. No. 12,058; In re Wright, 2 N. B. It. 41, Cas. No. 18,070; In re Stokes, 2 N. B. It. 212, Fed. Cas. No. 13,476; In re 2 N. B. R. 298, Fed. Cas. No. 14,124; Chapman v. Forsyth, 2 How. 202."

As to the other grounds attempted to be specified herein, the specifications do not state grounds here available, under the condition of the estate. As before stated, abundant opportunity has been given for examination of the bankrupt at the first meeting of creditors, and the time fixed for filing appearance in opposition to discharge. The creditor did not avail herself of these, and no facts are specified which will justify refusal of discharge, under the statute. Therefore the objections to discharge, as specified, must be overruled, and discharge granted.
UNITED STATES v. H. B. CLAFLIN (Circuit Court of Appeals, Second Circuit. No. 49.
CUSTOMS DUTIES-SILK FABRICs-INTERPRETATION OF STATUTE.

co.

)larch 1, 1899.)

Tariff Act July 24, 1897, par. 387, reads: "·Woven fabrics in the piece ... ... ... weighing not less than 1% ounces per square yard and not more than eight ounces per square yard, and containing not more than 20 per cent. in weight of silk, if in the gum, 50 cents per pound, and if dyed in the piece, 60 cents per pound; if containing more than 20 per cent. and not more than 30 per cent. in weight of silk, if In the gum, 65 cents per pound, and if dyed in the piece, 80 cents per pound; if containing more than 30 per cent. and not more than 45 per cent. in weight of silk, if in the gum, 90 cents pel' pound, and if dyed in the piece, $1.10 per pound: if dyed in the thread or yarn and containing not more than 30 per cent. in weight of silk, if black ... * *,75 cents pel' pound, and if other than black, 00 cents per pound; if containing more than 30 and not more than 45 per cent. in weight of silk, if black ... * *, $1.10 per pound, and if other than black, $1.30 per pound; if containing more than 45 per cent. in weight Qf silk, or if composed Wholly of silk, if dyed in t):J.e thread or yarn and weighted in the dyeing so as to exceed the original weight of the raw silk, if blacl;: * *, $1.50 per pound, and if other than black, $2.25 per pound; if dyed in the thread or )-arn, and the weight is not increased by dyeing beyond the original 'Yeight of the raw silk, $3.00 per pound; if in the" gum, $2.50 per pou"i:ld; if boiled 6ff, or dyed in the piece, or printed, $3.00 per pound; if weighing less than 1% ounces and more than % of an ounCe'per square yard, if in the gum, or if dyed in the thread or yarn, $2.50 'per pound; if weighing ounces and more than % of an ounce per square yard, if boiled off, $3.00 per pound, if dyed or printed in the piece, $3,25 pet: pound; if weighing not more than !AI of an ounce per s'quare yard, $4.50 per pound." Held, that the lastnamed percentage of the silk per yard (more than 45· per cent.) was to be carried forward, and applied to the subdiVision relative to fabrics weighing Jess than 1% ounces and more than % ofan ounce per yard, and that where the weight of the fabrics was not lllo're than % of an ounce per yard.

Aweal from the Circuit Court of the United States for the Southern District of New York.