In re Balmer

2 F. Cas. 560, 3 Hughes 637

• Court: District Court, E.D. Virginia
• Decided: April 15, 1878
• Status: Published

Opinion

HUGHES, District Judge.

Two questions arise for determination:

1. Can creditors who have not proved their claims in bankruptcy until after the day fixed for showing cause against the discharge of the bankrupt, then make objection to the issuing of the discharge on any other ground than fraud specifically and distinctly charged? and if not

2. Whether the consent of the only creditor or creditors who have proved their claims at the day for showing cause against the discharge, as given in this case, is sufficient under section nine of the amended bankruptcy act of 22d June, 1874, amending what is now section 5112 of the Revised Statutes of the United States?

1. I think it is perfectly clear under general order 24 in bankruptcy that the objection to the discharge in this case was not made in time or in proper form; and that it therefore cannot be allowed by the court. There has been no “specification in writing of the grounds of opposition” to the discharge filed at all in this cause. The petition does not in terms make objection to the discharge. It simply asks that the bankrupt’s application may be stayed to await the result of an examination of the bankrupt under oath. It does not charge fraud or any wilful intent to defraud on the part of the bankrupt It merely sets forth the belief that a piano-forte and certain jewelry were riot surrendered, and asks a stay of the application for discharge. But even if this paper were such a “specification of the grounds of opposition” to the discharge, as is contemplated by general order 24, it was not filed “within ten days after the day” on which the creditors were required to show cause against it. That day was the 10th December, 1877. If we consider that the whole time during which the register kept the matter open, waiting for a personal consent in writing to arrive from Dunnill, was in law but one day; yet, that paper having arrived', on the 21st January, 1878, the objection was. still too late, because of not having been filed within ten days after that day. And: even if we consider that the matter was before the register until the date of his certificate of conformity, to wit, the 28th February, 1878, the objection was still not in time; for it was not filed until the 15th March, 1878. I think, therefore, that, as “a specification in writing of grounds of opposition” to the bankrupt’s discharge, this paper is insufficient in form; and I also think, that it was invalid as not in time, under order 24. It can have no effect as such a. “specification,” and the objecting creditor,. Wadsworth, must resort to his remedy under section 5120, which allows a discharge, after it is granted, to be revoked within two-years for fraud charged and proved against the bankrupt.

2. The consent which was given in this case, by the consenting creditor, Dunnill,, seems to me to have been, under all the circumstances, sufficient. That creditor (who was the only one who/had proved his claim) was in Europe. The bankrupt was his general attorney in fact here, still empowered to act for him, inasmuch as his bankruptcy had not terminated that power. Story, Ait. § 48G. That attorney either offered or tendered to the register for his principal, a consent to the discharge in writing. The register declined to receive Balmer’s consent as attorney in fact for Dunnill, but held the matter open until a specific consent in writing, signed by Dunnill personally, could be obtained from Europe, which in due course of mail was received, and was filed on the 21st January, 1878. Even if the clause in section 5112, which requires the consent of creditors to be in writing, has not been repealed by the ninth section of the amended bankruptcy act of 22d June, 1874, [18 Stat. 180,3 the consent in writing which was offered or tendered to the register was valid and sufficient. The refusal of the register to receive such a paper as the law requires to be “filed in the case” cannot affect the rights of the person whom the law requires to file it, if he tenders it, or offers to file it. See Bennett v. Hunter, 9 Wall, [76 U. S. 320.] The creditor, through his duly accredited attorney, did all that he could do.

But in addition to the action of the attorney in fact, we have also that of Mr. Dun-nill’s attorney at law. This creditor’s counsel offered also before the register to assent to ilie discharge. This assent could, of course, only be given orally, and was given orally. It is not necessary in this case to decide whether a creditor’s consent to a bankrupt’s discharge must be' in writing; but I will say that, inasmuch as section nine of the amending act of June, 1874, repeals in terms the essential provision of section 5112, I think it repeals along with it the requirement that the consent of creditors shall be in writing at least so far as to make a declaration in open court by the creditor that he consents a sufficient consent in the contemplation of the ninth section of the amended act. If the consent is given out of court, it must needs be in writing without doubt. But if it be given orally before the register, or in court before the judge, and is made to appear on the record by either the judge or the register, I deem such declaration of consent to be sufficient in contemplation of the amendatory section nine.

On the whole, I think the consent of Dun-nill to Balmer’s discharge in bankruptcy, as it appears on the face of the record before me. to be as complete as it could well be made, and that it is sufficient. The discharge may issue.