Page:Federal Reporter, 1st Series, Volume 10.djvu/136

 124 FEDERAL EBPORTEB. �I N. B. E. 386; S. C. 1 Low. 237; Re Goodfellow, 3 N. B. R. 452; S. C. 1 Low. 510; Re Little, 2 N. B. R. 294; S. C. 3 Ben. 25; Re Dapee.e N.B. R. 89; Re Penn, 8 N. B. R. 582; S. C. 4 Ben. 99; Re Fogerty e Gerrity, 4 N. B. R. 149; S. C. 1 Sawy. 234; Re Thomas, �II N. B. E. 330; Re Bergeron, 12 N. B. R. 385; Re Griffith, 18 N- B. R. 510; Re Hamlin, 16 N. B. R. 522, 528. �Some of these cases would support the position that the discharge may be opposed or vacated by showing that the jurisdictional facts ayen-ed in the original bankruptcy petition are untrue, but I am net willing to assent to that doctrine, and must, for reasons I have stated, hold that the creditors, when they were served with notice of the filing of the petition, should have then promptly taken such steps as were necessary to complain of the jurisdiction, and that they cannot go on to the end and set up such an objection for the first time in opposi- tion to the discharge, or by petition to vacate it. The ouly doubt I have in the matter of vacating this certificate for want of notice of the sep- arate application for the discharge under section 5109, Rey. St., is ■whether sound practice does not require that a creditor moving to vacate it must, in analogy to our state practice in certiorari smAcoram nobis cases, show that he has been injured by setting out facts from which it will appear that the bankrupt is not entitled to a discharge on Bome ground the statute recognizes as a reason forwithholdingit. Why should this disoharge be vacated only to grant another, or should the creditor be permitted to enter into a fruitless opposition? It is, no doubt, a better practice to require such a showing, and if I were to pre- Bcribe a rule of practice in such cases it would be so framed; but here there are the appearances of a fraud on the court in procuring this certificate, and inasmuch as this bankrupt never, so far as I can nowsee, filed any schedule of his individuai assets and liabilities, nor gave any notice to these creditors, it may be that there should be steps taken to compel such schedules, appoint an assignee, and administer the estate ; and in the progress of that administration there may be developments for which a discharge would be withheld. I shall not, therefore, in this case, require the petitioner to set out grounds for which the discharge should be withheld, but if on the hearing the want of notice should be shown as alleged, will, for that reason alone, reopen the case by vacating the discharge. �Overrule the demurrer in accordance with this opinion. ��� �