General Grounds for Refusing Discharge. [Ch. III. on the face of the papers. (In re Burk, supra; in re Rosenfeld, Fed. Cas. 12,057; 8 A. L. Reg. 44; s. c. 2 N. B. R. 117.) But he is not required to answer or demur to raise an issue upon the specifications. In the case of In re Logan, 4 Am. B. R. 525; 102 Fed. 876, passing upon this point, Evans, J., said: "It is insisted by the creditor, inasmuch as the bankrupt made no response to the specifications of objections to the discharge. that the charges made by the creditor therein should be taken as confessed; and we are cited to Loveland, Bankr. sec. 281, in support of this view. We cannot agree with that learned author in the proposition that further pleading was necessary. There is no rule in bankruptcy which requires in such cases any further pleading by a bankrupt. By the mode of procedure, uniform in this district, at least, the bankrupt files a petition for a discharge, in which he avers that he has complied with all the provisions of the Bankrupt Act. This is his pleading, and upon it the proper notice is served upon all creditors. The prayer of this petition will be granted as of course, unless some creditor objects, and specifies his grounds of objection. If the grounds are specified, the case goes to the referee as the next step to ascertain and report the facts. Unless the specified grounds are established by the proof, the discharge is granted. Nothing is taken for granted, and the onus is on the creditor. Failure to establish the objections by evidence cannot be a ground for refusing the discharge, and it follows logically and inevitably from this fact that no further pleading is necessary upon the part of the bankrupt. The proof must be taken in any event, and without proof the creditor fails. The bankrupt may rely upon the presumption of innocence. This no doubt explains why no general rule has been made by the Supreme Court requiring further pleadings in such cases. The issues are made by the bankrupt's petition for a discharge and the creditors' specifications of objections thereto, and the only step the rules require after this in order to a settlement of the question is the reference to ascertain and report the facts, unless the court itself does that, in which event the same rules would apply. And it may add stress to this view that, excepting one not alleged in this case, all the specifications of objections, to be sufficient in law, must charge what is a criminal act upon the part of the bankrupt, and the law in such cases itself enters a plea of not guilty, unless in cases where there is a voluntary and express plea of guilty." Jury Trials. As to jury trials see section 19 post. Grounds for Refusing a Discharge.-In General.-It was said in a prior edition of this work that a discharge would be refused when it was shown that the court had no jurisdiction. If the court has no jurisdiction of the subject-matter, this is probably true because that question of jurisdiction may be raised at any time, but clearly where the objection goes only to the jurisdiction over 14.] Specific Grounds for Refusing Discharge. the person it is the better opinion that such an objection must be taken promptly and it will be too late to raise it upon the bankrupt's application for discharge. (Compare In re Mason, 3 Am. B. R. 599; 99 Fed. 256; in re Clisdell, 4 Am. B. R. 95; 101 Fed. 246 and cases cited.) Moreover the fact that the bankrupt owes debts which a discharge would not bar or release is no ground for refusing him a discharge, the right to a discharge being one thing, the effect of it when granted quite another. (In re Rhutassel, 2 Am. B. R. 697; 96 Fed. 597; in re Thomas, 1 Am. B. R. 515; 92 Fed. 912.) Specific Grounds for Refusing a Discharge.-It follows then that the only grounds for refusing a discharge are those contained in the statute. Under the Bankruptcy Act of 1867, there were ten distinct grounds for refusing a discharge. In the bankruptcy bill which was afterwards enacted as the Bankruptcy Law of 1898 (the present law), during all the legislation on the subject down to the time of the report of the con conferrees, there were also nine or ten grounds for a refusal of a discharge. In fact in the original bill, the failure by the bankrupt to perform almost any of the several duties imposed upon him by section 7 was a sufficient ground for denying a discharge. The reduction of this number to the grounds specified in the section under consideration was one of the many concessions made by those advocating the bill to those who at first opposed it upon the ground that it was oppressive towards the unfortunate debtor. The first ground is that the bankrupt has committed an offence punishable by imprisonment which is provided in the Act which has reference to section 29b. It is not necessary that there should be conviction for such an offence. Section 14 makes the mere commission of the offence a ground for refusing a discharge. The remaining ground for refusing discharge is, as stated in section 14b, the destruction, concealment or failure to keep books or records with fraudulent intent to conceal the bankrupt's true financial condition and in contemplation of bankruptcy. [Ch. III. Specific Grounds for Refusing Discharge. It will be noticed that the commission of any of the offences mentioned in 29b as grounds for refusing a discharge must be made "fraudulently and knowingly." (In re Pierce, 4 Am. B. R. 554; 103 Fed. 64.) It is also to be noted that the fraud must have been committed prior to the law making it a crime in order to bar a discharge. (See In re Webb, 3 Am. B. R. 204; 98 Fed. 404.) As a rule, the burden of proof rests upon those opposing the discharge to establish the grounds of opposition. (See In re Boasberg, 1 Am. B. R. 353; in re Hixon, I Am. B. R. 610; 93 Fed. 440; in re Thomas, 1 Am. B. R. 515;92 Fed. 912; in re Idzall, 2 Am. B. R. 741; 96 Fed. 314; in re Cornell, 3 Am. B. R. 172; 97 Fed. 29; in re Philips, 3 Am. B. R. 542; 98 Fed. 844.) There may be cases, however, where the proof of the existence of assets and their sudden disappearance within a short time prior to bankruptcy, or the suspicious destruction of, or failure to keep, books of account will transfer to the bankrupt the burden of proof on the question of concealment of assets. (See In re Meyers, 2 Am. B. R. 707; 96 Fed. 408; in re Rosser, 2 Am. B. R. 746; 96 Fed. 305; in re Purvine, 2 Am. B. R. 787; 96 Fed. 192; in re Tudor, 2 Am. B. R. 808; 96 Fed. 942; in re Dews, 3 Am. B. R. 691; 101 Fed. 549; in re Finkelstein, 3 Am. B. R. 800; 101 Fed. 418; in re Mendelsohn, 4 Am. B. R. 103; 102 Fed. 119; in re Cashman, 4 Am. B. R. 326; 103 Fed. 67; in re Hoffman, 4 Am. B. R. 331; 102 Fed. 979.) The offences thus punishable under section 29b, are when the bankrupt has “knowingly and fraudulently," (1) concealed while a bankrupt or after his discharge from his trustee any of the property belonging to his estate in bankruptcy; or (2) made a false oath in relation to any proceedings in bankruptcy; or (3), presented under oath any false claim or proof against his estate. or used any such claim in composition, personally or by, or as agent, proxy or attorney; or (4), received any material amount of property from his bankrupt estate, after the filing of the petition, with intent to defeat this Act; or (5), extorted or attempted to extort any money or property from any person as a consideration for acting or forbearing to act in the bankruptcy proceedings. $14.] Concealment of Property from Trustee During Bankruptcy. In addition to these enumerated offences, perhaps, should be added contempt of court, which is made a punishable offence by section 2 (13) (16). We will now consider these various grounds for refusing a discharge in detail. 1. Concealment of Property from Trustee During Bankruptcy.The word "conceal" is defined in section I (22) as including "secrete, falsify and mutilate." In order to warrant the refusal of a discharge under this subdivision it is necessary that the creditors shall establish the following propositions beyond a reasonable doubt: First. That the bankrupt has concealed property from his trustee in bankruptcy. Second. That the property so concealed belongs to the bankrupt's estate. Third. That the concealment occurred while he was a bankrupt or after his discharge. Fourth. That the concealment was made knowingly and fraudulently. In other words, it is necessary to show that the bankrupt, since he has been adjudicated a bankrupt, has knowingly and fraudulently concealed from his trustee property which belongs to his estate and should be divided by the trustee among his creditors. (See opinion of Coxe, J., In re Quackenbush, 4 Am. B. R. 271; 102 Fed. 282.) stances. The fraudulent intent that would bar a discharge must be proved, but that, of course, is to be gathered from all the circumCompare section 3 ante, sub nom. INTENT MUST BE PROVED. An omission to include property in the schedules under an honest mistake as to law or fact will not bar a discharge. (In re Wetmore, 3 Am. B. R. 700; 99 Fed. 703; in re Crenshaw, 2 Am. B. R. 623; 95 Fed. 632; in re Hirsch, 2 Am. B. R. 715; 96 Fed. 471, and cases cited.) Indeed the mere omission of property from the schedules is not ipso facto a fraudulent concealment. (Cases supra.) False Oath by Bankrupt. [Ch. III. Where the bankrupt has conveyed property in fraud of his creditors it has been held in many cases that the omission of such property from his schedules constitutes fraudulent concealment as well as false oath. (See In re Hussman, 2 N. B. R. 437; Fed. Cas. No. 6,951; in re Rathbone, 1 N. B. R. 536; 2 N. B. R. 260; Fed. Cas. No. 11,583; in re Hill, 1 N. B. R. 431; Fed. Cas. No. 6,483, which are collected in the opinion of Referee Wise in in re McNamara, 2 Am. B. R. 566, subsequently aff'd by District Judge). See on the other hand opinion of Referee Hotchkiss In re Shreck (1 Am. B. R. 366), following in re McCarthy (Fed. Cas. No. 8,684), and in re Robertson (Fed. Cas. No. 11,921), in which it was held that the verification of a schedule by a bankrupt from which he has omitted property which he has theretofore fraudulently conveyed, is not the making of a false oath under sections. 29 and 14; and further held that the mere fact of omission of the fraudulently conveyed property was not in itself sufficient to justify the refusal of an application for a discharge. While it is clear that any fraudulent transfer consummated before the Bankruptcy Act is not a ground for refusing a discharge, it has been held under the present Act that where a transfer made by the bankrupt before bankruptcy is a mere subterfuge which leaves him in control of the property such transfer will constitute a continuing concealment which will bar discharge. (In re Hoffman, 4 Am. B. R. 331; 102 Fed. 979.) In a case decided by the District Court for the Northern District of New York (In re Quackenbush, 4 Am. B. R. 274; 102 Fed. 282), the objectionable transfers were made long before the Bankruptcy Act, but the bankrupt continued to manage the business connected with the property which was the subject of the transfer, although not in his own name. He set up the facts in his schedules. This was held by Coxe, J., to be a continuing concealment. This case, however, is an extreme one and seems to be of doubtful authority. 2. False Oath by Bankrupt.-This offence is covered generally by what has been said in the preceding paragraph on concealment |