Page:Federal Reporter, 1st Series, Volume 9.djvu/390

 IN BB HEIiLEB. 375 �An involuntary petition in bankruptcy was filed against the part- nership in April, 1878.. An adjudication was ordered and entered, but no assign,ee was appointed until July, 1879. On two different occasions afterwards, the assignee inquired of the bankrupt Heller for the books, writings, and papers of the late firm, and was told ty Heller that he knew nothing about them ; that he had never had the possession or control of them ; and that everything belonging to the partner ship had been left in the hands of the other partner, Katz. Not only have the opposing oreditors failed to show that this state- ment was not true, but other evidence, put in by them, corroborates it. It would seem to be a singular perversion of language to hold that auch conduct proves concealment. It proves quite the reverse. Considering this same specification in Hammond v. Coolidge, 3 N. B. E. 276, Judge Lowell says: �" The concealment of the bopks from the assignee does involve the question of intent. If the books weve accidentally lost, bofore the bankruptcy, there can have been no such concealment. If they were not lp|st,.but within the control of the defendants, and not given up on deraand, with Intent to pre- vent the assignee from obtaining them, but their existence denied, the charge is sustained." �Here their existence is not denied, but admitted. They were hot within the control of the petitioning bankrupt. They were held by his laie partner, Katz, and there was no evidence tending to prove that this bankrupt attempted to mislead the assignee, either as to their existence or where they were to be found. And so in regard to ihe remaining question of fraud and negligence in not delivering property to the assignee. The testimohy under this specification had reference to the books of account. Whether the legislature meant to include them in the word "property," as used in the section of the act, is questionable ; but even if it did, the charge is not sustained against one partner by proof that another partner refused or neg- leeted to surrender them on demand. �The certificate of discharge will be signed. ��� �