Appeal from the District Court of the United States for the District of New Jersey; John Boyd Avis, Judge.
Before WOOLLEY and DAVIS, Circuit Judges, and DICKINSON, District Judge.
This is an appeal from an order of the District Court discharging the appellee in bankruptcy.
Upon the application of the bankrupt for a discharge, the Hanover-Capital Trust Company, a creditor, filed the following three specifications of objections to his discharge:
"1. He made a false oath in his petition in bankruptcy in that he gave his address for the greater part of the last six months preceding the filing of his petition as 1012 Thirteenth Avenue, Belmar, New Jersey, instead of 723 West State Street, Trenton, New Jersey, where he had resided for many years.
2. He knowingly and fraudulently concealed, while a bankrupt, from his trustee the sum of $134 which he omitted from his schedules.
3. He knowingly and fraudulently concealed, while a bankrupt, from his trustee a one-half interest in a certain business known as the M. & D. Search Co."
The question of discharge was referred to Hon. Adrian Lyon, referee in bankruptcy, who heard the evidence and apparently found that the first and second specifications were insufficient and untenable. At least he did not specifically report on them. As to the third he said that the bankrupt "attempted to conceal from his creditors by a conveyance thereof to his wife" a one-half interest in the business known as the M. & D. Search Company, and recommended that the discharge be denied.
The bankrupt filed exceptions to the report, which were argued before the learned District Judge who sustained the exceptions and entered an order discharging the bankrupt. From this order the Hanover-Capital Trust Company appealed.
1. The appellant says that, "if the first objection was the only objection to the discharge and taken alone, there would perhaps be some reason in brushing it aside and giving the bankrupt the benefit of the doubt, but taking into consideration the other objections, it becomes pertinent."
It is true that the bankrupt did have a legal voting residence in Trenton, but it is also true that he had a home in Belmar where he resided about six months in a year. Both of these properties are owned by Mrs. Meyer, but they were his homes and he could truthfully say that he had a home in Belmar. This subject was not pursued further, because the referee practically stopped it by saying that he took "no stock" in it; that "there was no criminal thing about that." There is no evidence that this statement was made with intent to defraud. It is not material to any issue in the proceedings and does not, therefore, bar his right to a discharge. Bauman v. Feist, 107 F. 83 (C.C.A. 8); In re Chamberlain (D.C.) 180 F. 304, 309; Humphries v. Nalley (C.C.A.) 269 F. 607; In re Mason (D.C.) 8 F.2d 665.
2. Did the bankrupt knowingly and fraudulently conceal $134?
When the bankrupt verified his petition and schedules in bankruptcy, on January 9, 1930, he was, and had been for a long time, sergeant at arms of the Supreme Court and Court of Errors and Appeals of New Jersey, and the $134 represented the half monthly salary which was due him on January 15, 1930, from those courts. There can be no dispute of these facts. The bankrupt testified that this money was not included in his schedules because it did not occur to him that it was an asset of his estate at the time ...