The opinion of the Court was drawn up by
Whitman C. J.It has been so often held, that the Bankrupt Act, of 1841, is constitutional, and equally affected debts contracted before its passage, as well as those of a subsequent date; and as well in case of voluntary, as of involuntary bankruptcy, that it can scarcely be regarded, at this time, *239as otherwise than preposterous to contend for any other construction. Besides, no such question was raised at the trial; and now first occurs in argument.
The first question, then, to be considered is, was the witness Prescott, properly admitted to give testimony. It is clear that he had no direct interest in the event of this suit. The action is against Pierce upon a note of hand given by him to the plaintiff. If judgment were recovered, and execution issued thereon, it cannot be foreseen, that it would be levied on any property to which the witness could or would lay claim. And if it were rendered certain, that such execution would be levied upon property, which would be claimed by him, before he could be excluded, the Court would have to decide, that his claim was fraudulent and void as against creditors ; and this too in a suit in which he w'as not a party, which the Court could never undertake to do; for, if it was not so fraudulent, his title could not be in danger of being affected by its being seized on such execution. The interest, therefore, which the witness had was both remote and contingent ; and such as could not have the effect to exclude him from testifying.
The defendant, in his defence, introduced his certificate in bankruptcy. This the plaintiff attempted to impeach, as having been -fraudulently obtained; and insisted, that the defendant, at the time he became a bankrupt, had property, which he did not disclose, and insert in his inventory, or schedule of property, rendered in the course of the proceedings in bankruptcy; and that, though the omission was by accident or mistake, it was a fraudulent act, within the meaning of the act, <§> 4 ; the provision of which is, that the certificate shall be a full discharge, “ unless the same shall be impeached for some frand, or wilful concealment of his property, or rights of property, as aforesaid, contrary to the provisions of this act.” The Court ruled that such construction was inadmissible, and we think correctly. The statute shows, that to avoid a certificate, one of two things must be established, either that there was fraud, or a wilful concealment of prop*240erty. This proposition, in behalf of the plaintiff, necessarily excludes a wilful concealment of property ; for such concealment never can be by accident or mistake. And it will be equally absurd to denominate, what occurs from accident or mistake, a fraud.
It was next insisted that the evidence shew .a wilful concealment of property; and this question was submitted to the jury, under certain instructions from the Court, the correctness of which were supposed to be questionable. It was among other things, remarked, that the word fraud included a wilful concealment of property, and that the wilful concealment of property was a fraud, so that the two terms meant the same thing. The counsel for the plaintiff, in his argument, has seized upon this opinion, thus uttered in reference to the case then before the Court, as if it were intended, to ■confound every species of fraud, with the wilful concealment of property, although his position, as applicable to his case, had not the slightest connexion with any other species of fraud. The evidence afforded no other pretence of fraud than what arose from a tendency to prove concealment of property.
To prove a wilful concealment of property, the plaintiff had introduced a witness, who testified, that, in March or April, 1842, the defendant had from five to ten cords of wood, hauled out into the road, near the witness’ house, and about ten cords more in the witness’ field, and ten or fifteen cords more in the woods, on the Kelsea place, from which the residue had been hauled; and that the defendant hauled the same wood to market in June or July of the same year. In reference to this evidence the Court remarked to the jury,'that unless they were satisfied there was a wilful concealment of property on the part of the defendant, the verdict should be in his favor; that perhaps the proof relative to the wood was susceptible of explanation, “ it appearing that the wood was got from the land of another person ; it might be that it was not to be his property till stumpage was paid, or that it was hauled to market upon shares, so that he could not consider himself the owner of it; that to make him guilty of fraud it *241should appear, that it was actually his, so that his assignee could be entitled to it.”
In thus assuming it as a fact, that the defendant did not own the Kelsea place, the Court is supposed to have erred. But in assuming a matter as a fact, no error, in matter of law, is presented ; and it is only as to such errors that exceptions, under the statute, c. 98, can be taken. This assumption, however, if not well founded, should have weight on a motion seasonably filed for a new trial for a verdict against evidence, as the jury might have been misled by it. But on such motion the whole case should be exhibited as it passed before the jury. Many facts, in trials before a jury, pass for such sub silentio. Both parties knowing them to be such they suffer them to pass without notice. A bill of exceptions seldom contains a full report of the evidence offered. Enough, however, does appear in the bill of exceptions in this case to render it presumable, that it was well understood, that there was no pretence, that the defendant owned the Kelsea place. The defendant was a bankrupt, and the attempt was to prove concealment of property; yet no evidence was offered, it is manifest, to prove that he owned that place, and had concealed such ownership. The exceptions render it evident, that his schedule of property, rendered in the proceeding in bankruptcy, was used at the trial. If the Kelsea place had been owned by him, it would either have been found in that schedule, or its not being there would have been used against him. The Judge, therefore, could not have been out of the way in assuming it as an undeniable fact, that the defendant did not own that place.
The suggestions made to the jury, as to the inconclusiveness of the evidence concerning the wood, form no ground of exception under the statute. It was for the plaintiff to make out a case of fraud. The burthen was upon him to do it. If the wood was the defendant’s it was for the plaintiff to prove it. Hauling it from the land of another person did not render it conclusive that he owned it. Such other person might have been produced to prove it, if such had been the fact; and, if *242such had been the fact, it can scarcely be doubted that he would have been called.
Exceptions and motion for a new trial overruled.