In re Brockway

BrowN, D. J. The issue raised by the specifications, so far as respects not keeping proper books of account, is the same as in the previous application for a discharge.- The parties to the issue are also the same, and the proceeding for a discharge is in the same bankruptcy. The evidence of witnesses on the former trial' of the same issue is therefore competent evidence upon this hearing, on proof that the witnesses are either dead or out of the jurisdiction. 4 Wall. 222; 12 How. 71 (U. S.) 576; 7 Pet. 272. An application Cor a discharge is a part of and continuation of one proceeding in bankruptcy commenced by the original petition. In re Ankrim, 3 McLean, 285, 289; In re Farrell, 5 N. B. R. 125. Sufficient proof was given upon the present hearing before the register of the death or absence of Gordon to make his former testimony competent under the rule; and the stipulation given in this case makes the copy produced equivalent to the original testimony, which ought to have been on file under the former proceeding for a discharge. The testimony is not sufficient to shqw either the death of Speir or his absence beyond the jurisdiction of the court; and I do not, therefore, consider his former deposition. Sufficient evidence was given of the inability of the opposing creditor to produce the books (which I cannot doubt were practically under the control of the bankrupt after the purchase of them by the seaman, Leach, bis brother-in-law) to admit secondary evidence. The testimony of Gordon on the former hearing being thus admissible upon this hearing, I am satisfied, upon examination, that it shows such a failure to keep proper books of account as should bar the bankrupt’s discharge. There was no proper cash-book, nor proper stock-book; and Gordon, one of the assignees, a competent man, could not make out from them either the course, situation, or pecuniary result of the business; and, upon application to the bankrupt, he either could not, or would not, make explanation. More than half of the bankrupt’s indebtedness proved consists of three items alleged to be owed to his wife, his brother, and his son; all alleged to bo for debts connected with his business, and nowhere appearing on the books, as Gordon testifies. The books could not be balanced, and, in brief, they utterly failed to furnish any satisfactory account of the course and result of his business, such as is necessary to entitle a bankrupt to his discharge. Section 5110, subd. 7; In re Frey, 9 Fed. Rep. 376, 384. On this ground the application should bo denied.