In re Wolf

159 F. 299, 1908 U.S. Dist. LEXIS 105

• Court: District Court, E.D. Pennsylvania
• Decided: February 20, 1908
• Docket: No. 2,945
• Status: Published

Opinion

J. B. McPHERSON,

District Judge. The specifications in question are as follows:

“(1) That the said Martin L. Wolf, oil the 11th day of December, 1899, was in possession as bailee of 10 barrels of Rosemont whisky belonging to the undersigned, which was to be delivered on demand: the same having been purchased on that date by him from the said Martin L. Wolf for the sum of $1,-007.

•‘(2) Thai: demand was made upon the said Martin L. Wolf, bankrupt, for the said 10 barrels of Rosemont -whisky March 15, .1904, February 21, 1906, March 8, 1906, and August 18, 1900, and at divers other times since, and many times before, said first-mentioned date; but the said Martin L. Wolf lias always failed and refused, and does still fail and refuse, to deliver the same or any part thereof.

“(3) That protestant has been informed and believes tliat the said Martin L. Wolf has converted the said 30 barrels of Rosemont whisky to his own use, for which an indictment is now pending in the court of quarter sessions of the peace for the county of Philadelphia, of October sessions, 1906, No. 391.”

In these specifications the objecting creditor charges the bankrupt with the offense of larceny as bailee, committed at some time between March, 190±, and August 18, 1906. Inspection of the indictment referred to shows that the charge therein is larceny; but for present purposes the variance is immaterial.

The dilemma that confronts the creditor is this: Either (1) his claim will not be affected by a discharge, because the debt was created by the bankrupt’s “fraud, embezzlement, misappropriation or defalcation while acting * * * in any fiduciary capacity” (Act July, 1, 1898, c. 541, § 17a (4), 30 Stat. 550 [U. S. Comp. St. 1901, p. 3428]), and if this is the situation, and the debt will not be affected, he has evidently no interest in the proceeding, and therefore no standing to file objections; or-(2) his debt will be extinguished by the discharge, and in that event, while he has a right to file such specifications as he may see proper, he must take care to present some objection that is recognized by section 14 as a valid reason for refusing the discharge. That section requires the court to grant the bankrupt’s application unless one or more of six specified grounds for refusal shall be made to appear; and an examination of these statutory grounds will show plainly that none of them includes the offense of larceny, or larceny as bailee, committed by a bankrupt against an objecting creditor more than a year before the petition was filed.

The specifications must therefore be dismissed as insufficient.