Page:Federal Reporter, 1st Series, Volume 1.djvu/856

 848 FEDEBAIi BBFOBTEB. �decision in favor of the bankrupt. The petition sets forth, as grounds for avoiding the discharge, some of the same specifi- cations only. It also alleges facts which, if true, tend to show that certain acts of the bankrupt since he obtained the discharge would, if the trial of the specifications were now had, be competent evidence in proof of the specifications. The petition does not allege that the petitioners had no knowledge of the acts alleged in the specifications as grounds for avoiding the discharge before the same was granted. �The bankrupt bas appeared and objects that the petition states no case against him, under section 5120, which he should be required to answer. �I think it is clear that section 5120 does not authorize a rehearing or new trial upon specifications heard and deter- mined before the discharge, even if the opposing creditor can adduce new facts, even the conduct of the bankrupt happening since the discharge, which would be competent evidence in case of a new trial, or a discovery since the discharge of new evidence, tending to support the specifications. The evident purpose of section 5120 was to give creditors who had failed to oppose the discharge, for the reason that they had no knowl- edge before the discharge that the grounds now alleged for opposing it existed, an opportunity within two years to make the necessary charges and to prove them. �The privilege given is not so broad as the right to a new trial on newly discovered evidence, and I think it cannot be claimed that a creditor, who, before the discharge, filed spec- ifications setting forth, by way of charge against the bank- rupt, fraudulent acts, had no knowledge of those acts. He necessarily had such knowledge of them that he was able to allege them; and it must be assumed as against him that he alleged them in good faith, and upon such information as jus-ified him in doing so. This section does not provide that the creditor must have had no knowledge of ail the evidence which may be produced to support the charges, but no knowl- edge of the fraudulent acts charged. It is based on the the- ory that if the creditor knows of the fraudulent acts, then, ffith the power given by the act to examine the bankrupt ��� �