On the 8th of May 1852, under the St. of 1848, c. 304, § 9, the debtors might have received their discharge. They had complied with all the provisions of the statutes; the three meetings prescribed by law had been held; a majority in number and value of all creditors who ever proved claims had filed their assent. The lapse of six months is not necessary before a certificate of discharge may be given. Journeay v. Gardner, 11 Cush. 355.
The question is, whether the subsequent action of a portion of the creditors on the 11th of May has affected this right. On that day certain of the creditors filed with the clerk a written revocation of their assent to the discharge. This was the last day of the six months after the date of the assignment, and the last day on which the assent of creditors could be made. The third meeting had been adjourned to the 15th of the month, and- no meeting could be called before the six months had expired. At the adjournment of the third meeting, held on the 15th of May, this instrument of revocation was first brought to the notice of the commissioner. The assignee contends that this instrument operated as a revocation of the assent previously given by the creditors who signed it; that it left less than a majority assenting to .the discharge ; and that therefore the discharge could not be granted.
*255We are not called upon to determine whether an assent to the discharge of an insolvent debtor, once given, can be revoked or withdrawn upon petition to the commissioner, notice to the insolvent, at a meeting of the creditors, and for good cause shown—as that it was obtained by fraud, misrepresentation, or for a pecuniary consideration. The question is, whether it can be done, when no meeting of creditors is held, without notice to the insolvent, without cause alleged, and without the action of the commissioner upon the subject. We are of opinion that it cannot.
Under the St. of 1844, c. 178, § 4, providing that the discharge should be granted, unless a majority in value of the creditors who had proved their claims should dissent, it was held that a dissent filed could not be withdrawn. Beverly Bank v. Wilkinson, 2 Gray, 519. That case would go very far to settle this. The distinction, however, perhaps is, that the other creditors acquired an interest in the dissent filed.
But independently of that decision, no effect can be given to this instrument. The insolvent court, though not technically a court of record, is yet bound to record all its proceedings. Sts 1838, c. 163, § 14; 1848, c. 304, § 4 ; 1852, c. 189, § 3. Upon this record, the validity of the discharge, so far as the course of proceeding is concerned, is to be determined. The certificate is but prima facie, and the court will always go behind it, and look into the record, to see if the discharge was properly granted, Gardner v. Nute, 2 Cush. 333. Cox v. Austin, 11 Cush. 32. The statute requires the assent to be in writing, that it may be made part of the record, either by being actually spread upon it, or so filed as to make part of it. This is necessary to show whether the majority in number and value have assented, and whether their assent was seasonable.
Under the St. of 1852, c. 293, creditors who have proved their claims may assent in writing to the discharge, though an appeal from the allowance of their claims may be pending; and such assent is to have the same effect, if the claims be finally allowed, as if the appeal had not been taken; and not otherwise. Under this statute, it is plain that the record must show who had assented *256Suppose, by way of example, claims are so proved, amounting in the whole to $9,000; a majority in number and to the value of $5,000 assent; but appeals as to different claims, amounting to $1,500, are pending. The validity of the discharge depends upon the final allowance of these claims, and if there is no record showing the claims proved, and which of the creditors assented, the question of discharge or not could not be settled.
If the written assent of the creditors is made part of the record, it would seem to follow that that record could not be changed, and the assent withdrawn or revoked, but upon the judicial determination of the commissioner.
But there are still stronger reasons against giving effect to such an instrument. The allowance of such withdrawal of assent, without notice to the insolvent, without the action of the commissioner, without cause assigned, would work great injustice to the insolvent, especially if, as in this case, it can be done the last day of the six months, and when there is no opportunity to supply the deficiency.
Such construction of the statute would open the door to fraud and all manner of indirection. The creditor might file his assent for the very purpose of revoking it when it was too late for the debtor to help himself. It would lead to confusion and uncertainty in the transaction of the business of insolvent courts. If a creditor may, of his mere motion, revoke his assent once given, he may assent and withdraw at his pleasure.
The statute gives to creditors the election to assent or not, at their pleasure; but having made their election, they must abide by it, unless for good cause shown they are permitted to revoke.
Decree affirmed.