Jones v. First National Bank

Peters, C. J.

This case is before us on a motion to set aside the verdict of a jury upon certain issues submitted to them, which have been found adversely to the appellant, and in substance deny him a discharge in insolvency. It was brought up by appeal from the Judge of Insolvency, Cumberland county, refusing the appellant a discharge, under the provisions of the insolvent act, for the reasons set forth in the decree. The proceedings in the insolvent court were begun by creditors’ petition, filed May 17, 1884.

The issues found by the jury, in this court, against the appellant, are shown in questions seven, nine and ten, as follows: —

(7.) "Did said insolvent, being a merchant and trader at said Portland, from the first day of January, A. D., 1883, to the *194 sixteenth day of May, A. D., 1884, fail during said period, of any part thereof, to keep a cash book or other proper books of account? Answer. Yes.”

(9.) "Did said insolvent knowingly and falsely swear in his said examination, in a material matter, that he had no private ^business of his own from the time of the failure of said J. Winslow Jones & Co. Limited, namely, on or about the first day of January, A. D., 1882, to the time of the commencement of these proceedings, namely, on the sixteenth day of May, A. D., 1884? Answer. Yes.”

(10.) "Did said insolvent falsely and knowingly swear, in a material matter in the course of said examination, that during the years 1882 and 1883, and that part of the year 1884, which was prior to the commencement of said proceeding’s in insolvency, he had no letter books, in which he kept letter-press copies of letters written by him, or copies of such letters? Answer. Yes.”

The case is not affected by chapter 326 of the act approved March 4, 1885, amending section 46 of chapter 70 of the revised statutes, by which a merchant or trader is required to keep a cash book or other proper books of account. It is provided by the second section of the amendatory act that it shall not apply to pending proceedings.

These issues passed upon by the jury relate to the nature and extent of the insolvent’s business transactions, and were material matters of investigation by his assignee and creditors, for the proper administration of his estate. The failure by a merchant or trader to keep a cash book, or other proper books of account, and false swearing, are made by the statute (§ 46 c. 70, R. S.) causes for refusing an insolvent’s discharge. The right of an insolvent debtor to a discharge from his debts depends upon whether or not he ''has in all things conformed to his duty under this chapter.” (Chap. 70, R. S.)

We have carefully examined and considered the testimony adduced at the trial before the jury on the issues submitted to them, and are of the opinion that it is not a case where the evidence will permit of our interference.

*195 Appellant, on his examination, and at the jury trial, testified that he had carried on no private business, and admitted that he kept no cash book, — no books whatever — and this is a sufficient’ ground for refusing him a discharge. Appellant’s counsel claims-in his argument that he was not then doing business on his-own account, and therefore, not being a merchant or trader,, that he is not amenable to the statute interdiction. To this it is-sufficient to say that the finding is otherwise.

Nor do we think the case one of an accidental failure to make-proper entries, which courts have not considered fatal to a discharge. Appellant’s counsel contends that there must be a finding that the commissions and omissions, charged against the insolvent, were perpetrated by him "for the purpose off defrauding creditors,” before he can be convicted of any wrong which will prevent his discharge under section forty-six of chapter seventy, revised statutes. That phrase in that section applies to matters different from these. If an insolvent swears falsely in material matters, the presumption is conclusive that the intent is to defraud. Nor does it make any difference what the motive-may be in not keeping books — books must be kept — the-requirement is absolute.

A failure to keep a cash book or other proper books of accohnt at any time "since March 23, 1878,” is within the-statute. "Since” means any time after the passage of the act, though the neglect may not cover the whole period. In R Rosenfield, 1 Bank. Reg. 575.

Motion overruled.

Walton, Virgin, Libbey and Emery, JJ., concurred. Haskell, J., having been of counsel, did not sit.