visional interlocutory order may be so set aside. That such a cause pending in the circuit court is to be dealt with as a cause in equity, is decided in Marin v. Lalley, 17 Wall. ]4. Now, as to the manner in which this matter of the insufficiency or incompetency of the authentic proof can be "Passed upon. It seems to me that that is the entire controversy, and that it' must be passed upon by the court by a final decree, otherwise the chief and in this case the only question in the case would be decided by an interlooutory order, without any termination of the cause, and in case tlie decision should be in favor of dissolving the order, would leave the mortgagee without opportunity to continue his seizure by a suspensive appeal, which, in justice, he ought to be placed in a position to have, and would deprive him of the right to elect to turn his proceedings into a suitfQr foreclosure via ordinaria. The rule is, therefore, discharged,' as presenting a matter which mus.t..beconsidered upon a final hearing, when a decree can be ret1will dispose of the case.
In re BROCKWAY, Ban}trupt.
(Di8trict Court, S. D. New York. April 28',1882.)
PRACTICE-ADMISSION OF EVIDENCE ON FORMER ,'I;illlrAL-BANKRUPTCY.
The rules in regard to the reception of evidence tllkenupc;>n 8: former tri'l<l are applicable to proceedings in bankruptcy upon two su:Jcessive and independent petitions for a discharge, in reference to made by the same creditors. Both petitions, though independent, arc parts ofobe bankruptcy proceeding. The first petition by a bankrupt for his discharge having been denied, but not upon the merits, held;that upon a: subsequent application and a hearing before the register thereon, upon the same objections first filed, that the testimony of a witness taken on the hearing under the first petition was competent evidence on the second proceeding, the witness having in the mean ti.rtle died. Held, also, that the former testimony of another witness,whose death was not shown, nor his absence from the jurisdiction of the court certain, was not competent. ,
2. BANKRUPTCy-SUCCESSIVE·A.Pl'J.ICATIONS FOR DISCHARGE.
S. DI8CHAUGE, WHEN DENIED.
The bankrupt having been engaged in the business of a brewer, and not having kept any cash-book or invoice-book or stock-book, and 'from such books as were kept it being impossible, even with the aid of any explanations which the bankrupt could or would give, to ascertain or explain satisfactorily the course, situation, or' pecuniary result of his business, held, that dis· chargr. must be denied. '. ,
Application for Discharge. On January 21,1871, Brockway was adjudicated a bankrupt on his own petition. On April 22, 1872, he filed a petition for a discharge from his debts, to which specifications of objections were filed, stating, among other things, that he had not kept proper books of account, with the requisite specification of particulars. After evidence taken upon, these and other specifications before the register upon the merits, the application was brought to a hearing in this court on October 30, 1875, when the application .was denied by Blatchford, J., on the sole ground that the application for a discharge had "not been made within one year from the adjudication of bankruptcy, as required by the law then existing. Upon that proceeding before the register the books of the bankrupt were produced, and the evidence of two witnesses, Gordon and Speir, was taken in regard to them and their contents. Prior to the first application for a discharge the books, with other assets, had been sold under the order of the court, and purchased by one Leach, a sailor, without family, and a brother-in-law of the bankrupt. On April 21, 1879, the bankrupt filed his present renewed application for So discharge under the provisions of the law as amended. The same opposing creditor filed specifications of objections embracing the same objections in regard to the want of keeping proper books of account as before. The former testimonyof Gordon and Speir, upon the previous application for a discharge, not being found on file, a stipulation was entered into between the parties that certain copies should stand in place of the originals; and evidence was also given that the books which had been produced upon the former hearing could not be found. The former testimony of Gordon and Speir was thereupon offered in evidence by the opposing creditor, under the stipulation, which was objected to by the bankrupt on the ground that the original, if produced, would not be competent upon this independent proceeding for a discharge. Numerous other objections were made to the discharge not considered by the court. M. H. Regensburger, for bankrupt. Beach It Brown, for opposing creditor. 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 j 12 How.
IN RE BROCKWAY.
(U. S.) 576; 7 Pet. 272. An application for 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 ister 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 former proceeding for a The testimony is not sufficient to show 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 oannot doubt were practically under the control of the bankrupt aftel the purchase of them by the seaman,Leach,hisbrother-in-law) to admit secondary evidence. :The testimony of· Gordon on the former hearing being thusfl.dmissible 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 be 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 "e Frey, 9 FED. REP. 376, 384. On this ground the application should be denied.
In re BAXTER, Bankrupt.
(District Court. 8. D.
BANKRUPTCy-PROOFS OF DEBTS-AMENDED PROOFS.
Proofs of debt. made under a mistake of fact or law, may be amended or withdrawn. if no action has been based upon such proofs which cannot be recalled or compensated.
SAME-MISTAKES-WITHDRAWAL OF PROOFS-INDEMNrry.
Where proofs of debt were made by B. B. & Co. upon two bills of exchange, drawn upon.London, against consignments of merchandise, unaccompanied by a transfer of the bill of lading, and the branch house of B. B. & Co., in London, at the time of such proof, claimed a lien upon the proceeds of the mer· chandise there as security for the bills, which was disputed and in litigation between various claimants upon the fund, including the trustee of the bankrupt's estate. and the facts were known to the creditor here, who verified the Ploofs of debt, and supposed that the facts were also known to his attorney but who was ignohere, to whom the preparation of the proofs was rant thereof and accordingly prepared the proofs 'o,s unsecured claims, held. that the case was one of mistake of mixed fact and-law, and the creditors had leave to withdraw their proofs upon terms of indem.ldty to the estate. Held, also, that the mere receipt of dividends upon such proofs is no obstacle to the withdrawal or amendment of the proofs, as the l;lividends may be returned. with interest. '
SAME-WITHDRAWAL of PROOFS, WHEN' ALLOWED-RETURN OF DIVIDEND.
But where· the trustee of a bankrupt was defending in England against a claim made by creditors upon a ccrtain fund as security for their demands, upon the ground that they were est.opped by having proved their claims here as unsecured, and also defended upon the merits, denying the creditors' alleged lien upon the fund, held. that the creditors' withdrawal of proofs should be allowed.9nly upon the return of dividends, with interest, the payment of the costs of this application, and of all the costs and counsel fees in the litigation in England, if the 'trustee elected to abandon the further defence of the case there, or, -if not, then upon payment of the trusteo'a costs up to this time.
Petition for Leave to Withdraw Proofs. W. W. McFarland, for petitioners. Abbott B1'othc'rs, for trustee. BROWN, D. J. This is a petition by Brown Bros. & Co. for leave to withdmw their proofs of debt heretofore made upon two bills of exchange drawn by Archibald Baxter & Co. upon Jones Bros., of London, at 60 days' sight,-the one dated August 5, 1875, for £2,500, payable to the order of Brown, Shipley & Co.; the 'other dated August 6, 1875, for £1,000, payable to the same payees,-which were drawn against the "account of cheese per Britannic, and lard per Greece;" which bills had been purchased by the petitioners on the day of their date. On the seventh day of August, 1875, Baxter & Co. failed, and made an assignment of their property in trust for their creditors.