IN BE BROCI:WAY.
and witnesses are not only privileged from 'arrest op oivil process, but also from the service of summons in civil actions, while attending court. The propriety of such a rule for witnesses is clear. They are compelled to attend by virtue of the process of the court, and the court feels under obligation to protect them, not only while attending, but in going and returning. My attention, however, has not been called to a case, nor do I think that one exists, where such an exemption has been extended to the service of a subpama to testify in the cause on which they are giving attendance; and it does not come within the reason of the rule. There are a number of cases in the reports where proceedings for attachment against witnesses have been taken for their refusal to obey the process of subpama, served in the very presence of the court; but in none of them has the suggestion been made that such a service was unlawful. See Jupp v. Andrews, Cowp. 845; Pitcher v. King, 2 Dow!. & L. 755; Bowles v. Johnson, 1 W. BI. 36. That a party to a suit can be compelled by a subpama duces tecum to produce papers and documents to be used in the trial as evidence is no longer an open question. Murray v. Elston, 23 N. J. Eq. 212. All the reasons assigned by the defendant for not obeying the writ and producing the papers required rather aggravate than excuse or justify his refusal. The rule must be absolute. As the object of the proceeding is to compel the defendant to perform an act or duty which appears to be within his power, the judgment to be entered will be largely controlled by his conduct hereafter.
(Oircuit Oourt, S. D. New York.
BANKRUPTCy-REFUSAL OF DrSCHARGE-SECOND ApPLICATION-EvIDENCE-REB ADJUDICATA-AMENDATOHY ACT OF JULY 26, 1876.
A bankrupt having appI:ed for his discharge, it was denied by the district court, because his application was not made within one year from the date of adjudication of bankruptcy. Specifications opposing the discharge had been filed hy creditors, including. among other grounds of objection, that the bankrupt had not kept proper books of account: and proofs were taken upon the issue, but were not considered by the court. Subsequently, and after the passage of the act of July 26, 1876, allowing an application for discharge to be made" at any time after the expiration of 60 days, and before the final dispos:tion of the cause," the bankrupt madc a second application for dischal'gein the same proceeding, which WIS opposed by the same creditors upon the same specifications, together with additional grounds of opposition. The proofs taken on the first application were used by the opposing creditors upon the second application, and by these proofs alone it was made to appear th:tt the bankrupt had not kept proper hooks of account, and on that ground the discharge was denied. Held, on appeal to the circuit court, (1) that the proofs taken 011 the former application were competent; (2) that the former decision, denying the discharge, was conclusive between the hankrupt and his creditors, and It bar to the seconr! application; (3) and that the subsequent amendment of the bankrupt act did not impair or affect the controlling force of the previous adjudication.
Bankruptcy,Appeal. For decision of district court see 12 FED. REP. 69. 111. H. Regensberger, for petitioner. A. C. Brown, for opposing creditors. WALLACE, J. The bankrupt having applied for his discharge, it was denied by the district court, because his application was not made within one year from the date of the adjudication of bankruptcy. Specifications opposing the discharge had been filed by creditors, including, among otber grounds of objection, that the bankrupt had not kept proper books of account, and proofs were taken upon the issue; but these proofs were not considered by the court, it having been held that the application was too late. Subsequently, by the act of July 26, 1876, (19 St. at Large, 102,) the section of the bankrupt act (section 5108, Rev. St.) requiring the application for discharge to be made within a year, having been amended so that it could be made "at any time after the expiration of sixty days, and before the final disposition of the cause," the bankrupt made a second application for discharge in the same proceeding. The discharge was opposed by the same creditors, upon the same specifications, together with additional grounds of opposition. The district court denied the discharge, because the bankrupt had not kept proper books of account. 12 FED. REP. 69. The proofs taken upon the first application were used by the opposing creditors upon the second application, and it was by these proofs alone that it was made to appear that proper books of account had not been kept by the bankrupt. The learned district judge held that, the issue being the same, the parties the same, and the proceeding for a discharge being in the same bankruptcy, the proofs taken upon the former application were competent. It is now urged by the bankrupt that this conclusion was erroneous. Treating both applications as in substance one proceeding, there is no reason why the depositions used on the first occasion should not be competent upon the second. Unless the second application is to be deemed a rehearing of the original application, the bankrupt is finally precluded from obtaining his discharge. Upon a rehearing, the proofs originally taken are always admissible. Daniell, eh. Pro c. § 2. But I am constrained to hold that the order denying the discharge made upon the first application is a fatal obstacle in the way of any discharge. The order was, in effect, a final adjudication adverse to the right of the bankrupt to a discharge. So long as it remains in force, it is conclusive between the bankrupt and his creditors. It matters not that it was termed an order instead of a decree. Dwight v. St. John, 25 N. Y. 203. It was a decision upon the merits of the controversy, because it proceeded upon the ground that the bankrupt had not complied with a condition of the bankrupt act which was vital and imperative, if not jnrisdictional. Re Wilmott) 2 N. B. R.
UNITED STATES v. LANDSBERG.
214; Be Martin, 2 N. B. R. 548; Re Sloan, 12 N. B. R. 59. Undoubtedly that decision would not preclude a new bankruptcy proceeding, nor, probably, a discharge in such proceeding, if tile bankrupt could have shown himself entitled to one. Re Farrell, 5 B. R. 125; Re Drisko, 13 N. B. R. 112, and 14 N. B. R. 551. For the purposes of the present bankruptcy that decision must be deemed adjudicata, that the bankrupt is not entitled to a discharge, because he has not complied with a condition essential to his right. It was a condition which could not be waived by a creditor, and which the court was bound to consider as a prerequisite to a discharge. The subsequent amendment of the bankrupt act did not impair or affect the controlling force of the previous adjudication. Assuming, what may well be controverted, that the amendment may be given such retroactive effect as to authorize an application for a discharge in a pending proceeding, although the year from the date of the adjudication of bankruptcy had expired, it certainly cannot operate reo troactively to overthrow a prior judgment. A retrospective construction to a statute is never favored; neither will it be inferred that congress intended to exercise a doubtful power. It is, at least, doubtful whether the act would be within the legislative competency, if intended to effect such a result. State of Pennsylvania v. Wheeling Bridge, 18 How. 421. The order of the district court is affirmed.
December 22, 1882.) 5393
(Circuit (lourt, S. D. New York.
ORIMINAL LAW AKD PROCEDURE-PERJURy-MATERIAL MATTER-REV. ST. -CR08S-ExAUINATION BEFORE UNITED'STATES COM1IUSSIONER.
Where a party charged with counterfeiting, on examination before a United States commissioner, testifies, on cross-examination, in answer to a question" that he has never been in prison, when he has been in a state prison, su"h false answer amounts to "material malter," within the meaning of Rev. St. § 5392, and an indictment for perjury will lie. .
Motion for New Trial and in Arrest of Judgment.
J. G. Agar, Asst. U. S. Dist. Atty., for the United States. R. N. Waite, for defendant.
Before WALLACE, BENEDICT, and BROWN, JJ. BENEDICT, J. The accused, having been convicted of perjury, now moves for a new trial and in arrest of judgment. The principal question presented for determination is whether the crime of perjury waS: committed by the accused when he made the false statement, under oath, which is set forth in the indictment. This statement was madeunder the following circumstances, as shown at the trial: The ac-·