In re Burt

MILLER, Circuit Justice, delivering orally the opinion of the circuit court on the appeal, in substance said: As to the first act of bankruptcy charged in the petition, there is no proof in the case of any fraud, or wrong intention on the part of the debtor in stopping, or suspending and not resuming payment of his paper; and the question made and argued by counsel was, whether fraud in fact is an essential element when this ground is relied on by the creditors, to make a man a bankrupt. I am aware, he continued, of the different views which have been expressed in the inferior courts upon this subject. My present inclination is to the opinion that the mere fact of a trader or merchant suspending and not resuming payment of his commercial paper without legal excuse, for the period prescribed by the act, constitutes, irrespective of any ingredient of actual fraud, an act of bankruptcy; but as I have a clearer conviction upon the second ground, I pass the above question without pronouncing any more decisively respecting it. My opinion is, that a voluntary assignment by a debtor, under state laws, though such assignment be made for the benefit of all of his creditors, and be free from fraud, is, within the meaning of the bankrupt act, an act of bankruptcy. The effect of such an assignment is to take, or withdraw the property of the debtor from the bankrupt act, and to defeat its operation; and the debtor must, on familiar principles of law, be presumed to intend that effect. Accordingly, the order of the district court adjudging the debtor a bankrupt was affirmed.