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bankrupt, but so it does to extinguish the debts of all the non-assenting creditors. These assenting creditors, when sufficient in number and amount, by their assent extirpate all the non-assenting debts. Where do they get the power to do this? Clearly, from the statute. The truth is, they are functionaries-quasi ministerial, quasi judicial, it may becharged in part with the administration of the law, and, as such, the depositaries of certain powers, among which is that of determining when the bankrupt shall be discharged and when not. Hilliard on Bankruptcy, (2d Ed.) 239, 241. The law discharges the debts, the law performs the operation of releasing them, the creditors being merely donees of a power to determine the cases in which the law shall so operate. The legislature has left it to the discretion of the creditors whether they will or not assent to the discharge, and this discretion is absolute. Lord Eldon observes that the law has left the bankrupt entirely to the caprice of his creditors to sign the certificate or not, under a high moral obligation, perhaps, but no legal obligation to do it, however great his atonement. And he says “there can be no stronger proof of the good nature and humanity of the British character than the readiness with which creditors sign.” Ex parte Joseph, 18 Ves. 340; Ex parte King, 11 Ves. 417; Ex parte Gardner, 1 Ves. & B. 45; Ex parte Cridland, 3 Ves. & B. 95, 103; Hilliard on Bankruptcy, (2d Ed.) 315, 316. The statute does not name a surviving partner as one of the donees of this power, but from necessity, and by all the analogies of the law, it is faily inferable that it was intended he should be the donee, rather than innumerable and remote beneficiaries of the quasi trust he executes. The release is not without consideration, for the bankrupt law enlarges the remedies of the creditors, and gives them inquisitorial and other powers they would not otherwise enjoy. It also gives ample protection against fraudulent bankruptcies by withholding a discharge in all cases of misconduct by those who ask its relief.
Let the bankrupt be discharged.
1. DISCHARGE-EFFECT OF PROVING A DEBT AFTER THE DAY TO SHOW
A debt proved after the day appointed to show cause against a discharge will not be reckoned in determining whether the assets be equal to 30 per centum of the claims proved against the estate, nor whether the requisite assent, in number and value, of creditors has been obtained. A debt so proved cannot be allowed to influence the question of discharge in any way.
Cases cited: Re Borst, 11 N. B. R. 96; Re Derby, 12 N. B. R. 241; R. Antisdel, 18 N. B. R. 290, 298.
HAMMOND, D. J. The petition for discharge having been filed the fourth day of January, 1879, was assigned for the hearing before the register at Trenton, when and where all creditors were notified by publication, as required by law, to attend and show cause why the discharge should not be granted; the same time and place was appointed for the second and third meetings of creditors. No debts had at that time been proved, nor did any creditors appear at this meeting either to prove their debts or to oppose the discharge. But subsequently, on the ninth of January, 1879, M. L. Meacham & Co. proved their debt and filed it with the register on the twenty-second of January, 1879. The amount of their debt is $1,512.36, upon which the assignee paid all the money in his hands, being the sum of $95. No other creditors have proved their debts. This payment not amounting to 30 per centum of the debt proved, and there being no assent of creditors, the question is whether the bankrupt is entitled to his discharge. The register certifies the facts in his final report, and submits the question.
For the bankrupt it is insisted that the debt proved cannot be counted because the proof was made and filed after the day to show cause; that while it may be true that a creditor may prove at any time before final distribution for the pur.
pose of receiving dividends, the question of the bankrupt's
I do not think that the accidental fact that the second and
Again, by general order 24, a creditor opposing the discharge for cause under sections 5110 and 5111 must appear and enter his opposition on the day when the creditors are required to show cause. This day, then, seems to be the time fixed for the termination of the right of the creditors to make whatever opposition they have to offer. The act can have no other meaning. It is for this purpose the creditors are notified, and it has beer held, after careful consideration of the cases, that creditors who have been duly notified and made no opposition, are to be regarded as consenting to a discharge. Re Antisdel, 18 N. B. R. 290, 298.
I cannot see why the same principle does not apply here. Before this debt was proved, and at all times after the expiration of the day appointed for the creditors to show cause, until this proof of debt was filed the bankrupt was entitled on the record as it stood to his discharge, there being no debts proved, and no opposition made. If the case had been brought to the attention of the court within those dates he would have been discharged before this proof of debt was filed. He cannot be now defeated of his discharge by filing a claim too large to bring his case within the amount of assets required to entitle him to a discharge. A creditor, if he wishes to influence the question of the bankrupt's discharge, must prove his debt on or before the day appointed to show cause, so that it may be reckoned in determining whether the assets be equal to 30 per centum of the claims proved and counted against it, if he withholds his assent in writing; or else he must appear on that day and enter his opposition for cause, and file his specifications within the 10 days allowed for that purpose. Failing to take either of these steps, the weight of his claim is lost, and the right of opposition gone. He must, then, be regarded as consenting to a discharge, although he subsequently prove his debt and receive less than 30 per centum of his claim.
Let a discharge be granted.
1. BANKRUPTCY_DISCHARGE-BOOKS OF ACCOUNT-CASE IN JUDGMENT.
Althongh a merchant need not keep his books after the most approved methods to entitle him to a discharge as a bankrupt, he must have kept accounts and books so that a competent accountant may, from the books themselves, ascertain his true financial condition. Hdd, therefore, that where a bankrupt kept no books except a small pocket memorandum-book, in which he entered each day his cash received and cash paid out; a blotter, in which he entered his daily credit sales; and a book in which he kept accounts with those to
whom he sold on a credit, all imperfectly kept, he was not entitled to a discharge, even though from these books and his invoices kept on file it may have been possible, with such memoranda, to make up
proper accounts. 2. SAME SUBJECT-FRAUDULENT PREFERENCES--CARE OF ASSETS.
A merchant, being insolvent, permitted and authorized certain creditors to take away his goods in payment of their debts. Held, that he could not be discharged. Not only were the preferences fraudulent, but it was his duty to protect his assets against such losses.
The bankrupt, being a small retail grocery and liquor merchant, kept no books except a small pocket memorandumbook, in which each day he entered his cash received and cash paid out, which was lost and never produced; a blotter, in which daily sales on credit were entered; and a kind of ledger, in which accounts for goods sold on credit were kept against the purchasers. These were imperfectly and negligently kept, and his discharge was opposed for not keeping proper books of account. He kept his invoices on file, and it was contended in his behalf that, from that and the books he kept, proper accounts could be made up and his financial condition ascertained.
One of the bankrupt's creditors having obtained judgment against him, issued execution and levied on his goods, the sheriff leaving them with the bankrupt. His creditors came, and without objection helped themselves to the goods, taking them away on drays and wagons. These facts were specified in opposition to his discharge.
James Campbell, Jr., for the creditors.
HAMMOND, D. J., (sitting by designation.) The discharge in this case must be refused. The cash-book mentioned in the proof has not been produced, but, taking all the bankrupt says as to his mode of keeping it to be true, and inspecting the two books he does produce, it sufficiently appears that he did not keep such books of account as the business in which he was engaged required. He kept no merchandise account, no expense account, no account of the purchases made by him, and certainly no proper accounts of anything except of