The opinion of the court was delivered by: BYERS
These are two motions to affirm referee's orders sustaining exceptions to paragraph 4 of the second and third amended specifications of objection to discharge, in companion cases, which present but one question: hence one opinion will apply to both.
There is a narrow matter of construction presented, which can be understood only by quoting the original specification of objection, the amendments thereto, and the directions of the referee concerning leave to amend.
In its original form, the fourth specification read as follows:
"Fourth: That the bankrupt falsified books of account and records from which his financial condition and business transactions might be ascertained, to wit: falsified his books and records to show withdrawals of various sums of money for business purposes, whereas the said sums were not used for such purposes."
The foregoing was filed on February 11, 1944, pursuant to an order of January 27, 1944, fixing the first named date as that to which the time for filing specifications of objection was extended.
A hearing on exceptions conducted on March 15th developed that the fourth specification was objected to as being similar to the third, which alleged falsification of books of account and records to show the withdrawal of $7,000 for business purposes "whereas the said sum was not used for such purposes" -- on the ground that the fourth is similar to the third and should be eliminated but, if the trustee intended to allege other than the said $7,000, he should so state. The ruling of the referee was:
"I will sustain your objection to that allegation. If it is intended that paragraph Fourth allege withdrawals of sums included in the $7,000 of the third allegation, then the allegation is objectionable for the reason that it would be repetitious If it is intended to allege sums other than the $7,000, then those other items should be alleged with particularity to enable the bankruptcy to meet the issue."
At the end the following appears:
"I will grant the trustee's motion, that he have until the 24th of March to file amended specifications. Amended specifications, however, are not to enlarge the issues."
On March 24, 1944, amended specifications were filed, from which the following is quoted:
"Fourth: For the reason that he had destroyed, concealed or failed to keep or preserve, or mutilated or falsified books of account or records from which his assets and liabilities might be ascertained, in that the bankrupt has caused or permitted original records to be removed from the bankrupt's place of business or residence to a place or places not now known to the Trustee, to wit: concealing manuscript of a book intended to be published with the bankrupt's name as author, and concealing original files relating to matters in which the bankrupt was consulted in his capacity as insurance counselor, the value of all of which is not now known to the Trustee." (Italics supplied.)
It should be noted that the third specification referred to falsification of books and records to show the withdrawal of $7,000 for business purposes, whereas the ...