In re Gaylord

• Decision Date: 06 December 1901
• Docket Number: 67.
• Court: U.S. Court of Appeals — Second Circuit
• Parties: In re GAYLORD.

112 F. 668

In re GAYLORD.

No. 67.

United States Court of Appeals, Second Circuit.

December 6, 1901

Before WALLACE, and LACOMBE, Circuit Judges, and TOWNSEND, District judge.

WALLACE Circuit Judge.

If the bankrupt, in his examination at the first meeting of creditors, intentionally testified falsely respecting a material fact, we do not doubt that his perjury constituted a valid objection to his discharge, and that his discharge should have been refused. Section 7 of the bankrupt act provides that no testimony given by the bankrupt at any meeting of creditors 'shall be offered in evidence against him in any criminal proceeding. ' The proceeding for a discharge is not a criminal proceeding, and the section has no apparent application to it. His right to a discharge is governed by section 14. That section, among other things authorizes the court of bankruptcy to grant him a discharge unless he has 'committed an offense punishable by imprisonment as herein provided. ' The words descriptive of the offense which will preclude a discharge refer to section 29. That section defines the criminal offenses created by the act, and separates them into two classes; one class being those punishable by imprisonment, and the other being those punishable by fine. Six offenses are therein enumerated in the class which are punishable by imprisonment. One of the six is the making of a false oath by any person in any proceeding in bankruptcy. It is the obvious meaning of section 14 that the commission of any one of the six offenses shall preclude the bankrupt from obtaining a discharge, and the words 'offenses punishable by imprisonment as herein provided' are used to save a particular enumeration of these offenses. The false oath is none the less an offense because it cannot be proved. If it is in the category of offenses for which the punishment is imprisonment by the terms of section 29, it matters not whether the bankrupt can or cannot be convicted of it. We have been referred to the case of In re Marx (D.C.) 102 F. 676, as sanctioning a different conclusion, but we are unable to assent to the reasoning of that decision.

The false oath of the bankrupt which is relied upon to defeat his discharge consisted in testimony to the effect that when he made the transfer of his property to his wife in November 1895, he did not know that the pending action brought by him against the board of supervisors of Schoharie county had...