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of the court, or, at its discretion, by an election by the creditors, in the manner herein before provided, at a regular meeting, or at a meeting called for the purpose, with such notice thereof in writing to all known creditors, and by such person, as the court shall direct. (a) The resignation or removal of an assignee shall in no way release Effect of resignahim from performing all things requisite on his part for the proper closing up of his tion or removal. trust and the transmission thereof to his successors, nor shall it affect the liability of the principal or surety on the bond given by the assignee. When, by death or other- Rights of surviving assignees. wise, the number of assignees is reduced, the estate of the debtor not lawfully disposed of shall vest in the remaining assignee or assignees, and the persons selected to fill vacancies, if any, with the same powers and duties relative thereto as if they were originally chosen. Any former assignee, his executors or administrators, upon request, and at the expense of the estate, shall make and execute to the new assignee all deeds, conveyances and assurances, and do all other lawful acts requisite to enable him to recover and receive all the estate. And the court may make all orders which it may deem expedient to secure the proper fulfilment of the duties of any former assignee, and the rights and interests of all persons interested in the estate. No person who Preferred credithas received any preference contrary to the provisions of this act shall vote for or be or not to vote eligible as assignee; (b) but no title to property, real or personal, sold, transferred or as assignees. conveyed by an assignee, shall be affected or impaired by reason of his ineligibility. An assignee refusing, or unreasonably neglecting, to execute an instrument, when Process of conlawfully required by the court, or disobeying a lawful order or decree of the court in tempt against the premises, may be punished as for a contempt of court.
for or be chosen
VI. PROBATE of debts.
14 Stat. 525.
34. All debts due and payable from the bankrupt, (c) at the time of the adjudication 2 Mar. 1867 ? 19. of bankruptcy, (d) and all debts then existing, but not payable until a future day, (a rebate of interest being made when no interest is payable by the terms of the contract) may be proved against the estate of the bankrupt.(e)
35. All demands against the bankrupt for or on account of any goods or chattels Claims in trover wrongfully taken, converted or withheld by him may be proved and allowed as debts, to the amount of the value of the property so taken or withheld, with interest.
36. If the bankrupt shall be bound as drawer, endorser, surety, bail or guarantor, Liabilities as enupon any bill, bond, note, or any other specialty or contract, or for any debt of another person, and his liability shall not have become absolute until after the adjudication of bankruptcy, the creditor may prove the same after such liability shall have become fixed, and before the final dividend shall have been declared.(g)
(a) The clause properly applies to vacancies caused by the resignation or removal of assignees who have been duly appointed and approved. Ex parte Scheiffer, 2 Bank. Reg. 179.
2 March 1867.
37. In all cases of contingent debts and contingent liabilities contracted by the Contingent liabankrupt, and not herein otherwise provided for, the creditor may make claim therefor, and have his claim allowed, with the right to share in the dividends, if the contingency shall happen before the order for the final dividend; or he may at any time apply to the court to have the present value of the debt or liability ascertained and liquidated, which shall then be done in such manner as the court shall order, and shall be allowed to prove for the amount so ascertained.
(b) The assignee must be a resident of the district. Ex parte Havens, 1 Bank. Reg. 126. Or have a fixed place of daily business therein. Ex parte Loder, 2 Bank. Reg. 161. He must not be related to the bankrupt. Ex parte Powell, 2 Bank. Reg. 17. A creditor's attorney may be chosen assignee. Ex parte Clairmont, 1 Bank. Reg. 42; Ex parte Lawson, 2 Bank. Reg. 44; Ex parte Barrett, Ibid. 165. But a director of a bank to which the debtor has confessed a judgment, cannot be appointed assignee. Ex parte Powell, 2 Bank. Reg. 17.
(c) Any debt which may be proved by complying with any of the provisions of the bankrupt law, is a provable debt. Rankin v. Florida. Atlantic and Gulf Central Railroad Co., 1 Bank. Reg. 196. A debt barred by the statute of limitations of the bankrupt's domicil, may be proved against his estate; to prevent a probate, the debt must be shown to be so barred throughout the United States. Ex parte Ray, 16 Am. L. R. 283; contrà, Ex parte Kingsley, Ibid. 423; s. c. 1 Bank. Reg. 66; Ex parte Shepard, 16 Am. L. R. 484; 8. c. 1 Bank. Reg. 115; Ex parte Harden, Ibid. 97. If the statute be relied on as a defence, it must be set up affirmatively by the debtor. Ex parte Knoepfel, 1 Ben. 398. A debt created by fraud is provable under the act. Ex parte Rundle, 2 Bank. Reg. 49; Ex parte Comstock, 22 Vt. 642. But a judgment for a fine imposed by a criminal court cannot be admitted to probate. Ex parte Sutherland, 17 Am. L. R. 39. A debt contracted in confederate notes is not provable. Baily v. Milner, 35 Geo.
What debts may be proved.
38. Any person liable as bail, surety, guarantor or otherwise for the bankrupt, who Claims of sureshall have paid the debt, or any part thereof, in discharge of the whole, shall be enti- ties, &c. tled to prove such debt, or to stand in the place of the creditor if he shall have proved the same, although such payments shall have been made after the proceedings in bank
330. Nor one contracted by a feme covert. Ex parte Slichter, 2 Bank. Reg. 107. But the reservation of usurious interest, on the discount of a note, by a national bank, does not bar the probate of the principal debt. Moore v. Exchange Bank of Columbus, 1 Bank. Reg. 123. An attorney's bill for opposing the adjudication of bankruptcy, is a debt provable under the act; not a lien on the assets. Ex parte New York Mail Steamship Co., 2 Bank. Reg. 170. A wife may claim as a general creditor of her husband, for money deposited with him. Ex parte Bigelow, 2 Bank. Reg. 170. (d) A judgment obtained after the adjudication of bankruptcy, extinguishes the original debt, and is not provable against the estate. Ex parte Williams, 2 Bank. Reg. 79; 8. P. Ex parte Knoepfel, 1 Ben. 398.
(e) A creditor, in proving his debt, may include the interest due thereon, without regard to the mode of its statement in the schedule. Ex parte Orne, 1 Ben. 361. The rights of creditors arise and accrue after proof of their claims. Ex parte Jones, 2 Bank. Reg. 20. A creditor may prove his claim before the first meeting of creditors. Ex parte Patterson, 1 Ben. 448.
(g) A party holding the bankrupt's notes, as collateral security, may prove them to an extent sufficient to secure dividends to the amount of his claim. Baily v. Nichols, 2 Bank. Reg. 151. So, the liability of the bankrupt as endorser having become absolute, a creditor holding a mortgage from the maker to secure their payment, may nevertheless prove the full amount of the notes against the estate of the endorser. Ex parte Cram, 1 Bank. Reg. 132.
2 March 1867. ruptcy were commenced. And any person so liable for the bankrupt, and who has
not paid the whole of said debt, but is still liable for the same or any part thereof, may, if the creditor shall fail or omit to prove such debt, prove the same either in the name of the creditor or otherwise, as may be provided by the rules, and subject to such regulations and limitations as may be established by such rules.
39. Where the bankrupt is liable to pay rent or other debt falling due at fixed and stated periods, the creditor may prove for a proportionate part thereof up to the time of the bankruptcy, as if the same grew due from day to day, and not at such fixed and stated periods.
40. If any bankrupt shall be liable for unliquidated damages arising out of any contract or promise, or on account of any goods or chattels wrongfully taken, converted or withheld, the court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate. (a) No debts other than those above specified shall be proved or allowed against the estate. (b)
41. In all cases of mutual debts or mutual credits between the parties, the account between them shall be stated, and one debt set off against the other, (c) and the balance only shall be allowed or paid; but no set-off shall be allowed of a claim in its nature not provable against the estate: Provided, That no set-off shall be allowed in favor of any debtor to the bankrupt, of a claim purchased by or transferred to him after the filing of the petition.
42. When a creditor has a mortgage or pledge of real or personal property of the bankrupt, or a lien thereon for securing the payment of a debt owing to him from the bankrupt, he shall be admitted as a creditor only for the balance of the debt after deducting the value of such property, (d) to be ascertained by agreement between him and the assignee, or by a sale thereof, to be made in such manner as the court shall direct; (e) or the creditor may release or convey his claim to the assignee upon such property, and be admitted to prove his whole debt.(g) If the value of the property exceeds the sum for which it is so held as security, the assignee may release to the creditor the bankrupt's right of redemption therein on receiving such excess; or he may sell the property, subject to the claim of the creditor thereon; (h) and in either case, the assignee and creditor, respectively, shall execute all deeds and writings necessary or proper to consummate the transaction. If the property is not sold, or released and delivered up, the creditor shall not be allowed to prove any part of his debt.
Ibid. 21. Probate of debt
43. No creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have waived all
to be a waiver of right of action and suit against the bankrupt; and all proceedings already commenced,
the bankrupt. Suits at law to be stayed.
or unsatisfied judgments already obtained thereon, shall be deemed to be discharged and surrendered thereby; (i) and no creditor whose debt is provable under this act, shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bankrupt, until the question of the debtor's discharge shall have been determined; and any such suit or proceedings shall, upon the application of the bankrupt, be stayed, to await the determination of the court in bankruptcy on the question of the discharge, (k) provided there be no unreasonable delay on the part of the bankrupt in endeavoring to obtain his discharge; (7) and provided also, that if the amount due the creditor is in dispute, the suit, by leave of the court in bankruptcy, may proceed
Rent and other periodical pay
Ibid. 20. Right of set-off.
Claims of liencreditors.
(a) A creditor cannot prove a claim for unliquidated damages, without an application for the assessment thereof under this clause the act. Ex parte Clough, 16 Pitts. L. J. 25; s. c. 2 Bank. Reg. 59.
(b) A creditor may amend his proof, but will not be allowed to withdraw it. Ex parte Lowerre, 1 Ben. 406. See Ex parte Lapsley, 1 Penn. L. J. 245; Ex parte Harwood, Crabbe 496; Ex parte Brand, 2 Am. L. T. Bank. 66; Ex parte Emison, 2 Bank. Reg. 179. (c) Á claim of the bankrupt for unliquidated damages cannot be set off against that of a creditor. Ex parte Orne, 1 Ben. 361. (d) A lien-creditor can only prove for the balance of his debt, after deducting the value of the property on which he held a lien. Ex parte Winn, 1 Bank. Reg. 131. A secured creditor must prove for his balance, or he cannot participate in the distribution. Ex parte Bridgman, 1 Bank. Reg. 59; Ex parte Bolton, Ibid. 83. He may prove, without surrendering his securities; he is deemed a general creditor after exhausting them. Ex parte Ruehle, 2 Bank. Reg. 175; s. c. 2 Am. L. T. Bank. 59; and see Ex parte Campbell, 16 Am. L. R. 100; Jones v. Leach, 1 Bank. Reg. 165. Where encumbered property is sold by the assignee, the lieu-creditor is entitled to the proceeds, deducting only the cost of proving his lien; there is no prior claim thereon for the general expenses in bankruptcy. Ex parte Hambright, 2 Bank. Keg. 157. (e) A creditor may make proof of his claim without necessarily ascertaining the value of securities held by him. Ex parte Bigelow, 1 Bank. Reg. 186; 8. c. 1 Am. L. T. Bank. 95. A creditor secured by a deed of trust with a power of sale, must prove his debt as one holding security, and obtain permission of the court to have the security sold; a sale made without such permission will be set aside by the court. Davis v. Delaney, 2 Bank. Reg.
125; Lee v. Franklin Avenue German Savings Institution, 1 Chicago Leg. News 370.
(g) See Ex parte Brand, 2 Am. L. T. Bank. 66. If a lien-creditor prove his debt, the assignee is entitled to be subrogated to the creditors' lien upon the real estate of the bankrupt. Wallace v. Conrad, 26 Leg. Int. 252; s. c. 3 Bank. Reg. 10.
(h) As a general rule, the assignee, though he has power to sell lands subject to encumbrances, ought not to do so, as a clear sale is most to the advantage of the estate. Ex parte McClellan, 1 Bank. Reg. 91.
(i) This does not apply to the probate of a debt created by fraud, which is not dischargeable under the 33d section. Ex parte Migel, 2 Bank. Reg. 153; Ex parte Rosenberg, Ibid. 81; Ex parte Robinson. Ibid. 108.
(k) The granting of a final discharge, ipso facto, dissolves the injunction, without motion. Ex parte Thomas, 3 Bank. Reg. 7. (1) The object of this clause is to prevent a race of diligence between creditors, and to protect the bankrupt from being harassed with suits, pending the question of his discharge. Ex parte Metcalf, 6 Int. R. Rec. 223. And, therefore, an action to recover a provable debt is to be stayed, until a determination be had as to the discharge, whether the debt be one that will be discharged or not. Ex parte Rosenberg, 2 Bank. Reg. 81; Ex parte Migel, Ibid. 153. But see Ex parte Seymour, 1 Ben. 348. Before the appointment of assignees a petition for an injunc tion can be filed only by the bankrupt; after assignees are appointed, the petition should be filed by them. Ex parte Bowie, 1 Bank. Reg. 185. As to when the court of bankruptcy will enjoin proceedings in a state court, see Ex parte Reed, 6 Int. R. Rec. 21; Ex parte Jacoby, Ibid. 149; Ex parte Robinson, 2 Bank. Reg. 108; Ex parte Campbell, 16 Am. L. R. 100.
to judgment, for the purpose of ascertaining the amount due, which amount may be 2 March 1867. proved in bankruptcy, but execution shall be stayed as aforesaid.
44. If any bankrupt shall, at the time of adjudication, be liable upon any bill of Debts due in several rights. exchange, promissory note or other obligation, in respect of distinct contracts, as a member of two or more firms carrying on separate and distinct trades, and having dis tinct estates to be wound up in bankruptcy, or as a sole trader and also as a member of a firm, the circumstance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not prevent proof and receipt of dividend, in respect of such distinct contracts, against the estates respectively liable upon such contracts.
45. All proofs of debts against the estate of the bankrupt, by or in behalf of creditors residing within the judicial district where the proceedings in bankruptcy are Before whom pending, shall be made before one of the registers of the court in said district; (a) and probate to be by or in behalf of non-resident "creditors," before any register in bankruptcy in the judicial district where such creditors or either of them reside, (b) or before any commissioner of the circuit court authorized to administer oaths in any district. (c)
46. To entitle a claimant against the estate of a bankrupt to have his demand How debts are to be proved. allowed, it must be verified by a deposition in writing, on oath or solemn affirmation, before the proper register or commissioner, setting forth the demand, the consideration thereof, whether any and what securities are held therefor, and whether any and what payments have been made thereon; that the sum claimed is justly due from the bankrupt to the claimant; that the claimant has not, nor has any other person, for his use, received any security or satisfaction whatever other than that by him set forth; (d) that the claim was not procured for the purpose of influencing the proceedings under this act, and that no bargain or agreement, express or implied, has been made or entered into, by or on behalf of such creditor, to sell, transfer or dispose of the said claim, or any part thereof, against such bankrupt, or take or receive, directly or indirectly, any money, property or consideration whatever, whereby the vote of such creditor for assignee, or any action on the part of such creditor, or any other person in the proceedings under this act, is or shall be in any way affected, influenced or controlled; (e) and no claim shall be allowed unless all the statements set forth in such deposition shall appear to be true. Such oath or solemn affirmation shall be made by the claimant, testifying of his own knowledge, unless he is absent from the United States, or prevented by some other good cause from testifying, in which cases the demand may be verified in like manner by the attorney or authorized agent of the claimant testifying to the best of his knowledge, information and belief, and setting forth his means of knowledge; or if in a foreign country, the oath of the creditor may be taken before any minister, consul or vice-consul of the United States; and the court may, if it shall see fit, require or receive further pertinent evidence either for or against the admission of the claim. Corporations may verify their claims by the oath or solemn affirmation of their president, cashier or treasurer.
47. If the proof is satisfactory to the register or commissioner, it shall be signed by Effect of probate. the deponent, and delivered or sent by mail to the assignee, (g) who shall examine the same and compare it with the books and accounts of the bankrupt, and shall register, in a book to be kept by him for that purpose, the names of creditors who have proved their claims, in the order in which such proof is received, stating the time of receipt of such proof, and the amount and nature of the debts; which books shall be open to the inspection of all the creditors. The court (h) may, on the application of the assignee, or of any creditor, or of the bankrupt, or without any application, examine upon oath the bankrupt, or any person tendering or who has made proof of claims, and may summon any person capable of giving evidence concerning such proof, or concerning the debt sought to be proved, and shall reject all claims not duly proved, or where the proof shows the claim to be founded in fraud, illegality or mistake.
48. When a claim is presented for proof before the election of the assignee, and the judge entertains doubts of its validity or of the right of the creditor to prove it, and is
(a) Debts due to resident creditors must be proved before one of the registers of the home district. Ex parte Haley, 2 Bank. Reg. 13; Ex parte Strauss, Ibid 18. The register has power to pass upon the satisfactory or unsatisfactory character of proof of the debt; but where a question of law or fact is raised in respect thereof, it must be certified to the judge. Ex parte Bogert, 2 Bank. Reg. 139. If the register reject the probate, the assignee is entitled to notice of an application to the district judge to review the decision. Ex parte Mitteldorfer, 3 Bank. Rez. 9.
(b) Debts due to non-resident creditors may be proved before any register or commissi ner of another district. Ex parte Strauss, 2 Bank. Reg. 18.
(c) A debt may be proved before a United States commissioner,
though both the bankrupt and creditor reside in the same district. Ex parte Shepard, 16 Am. L. R. 484; 8 c. 1 Bank. Reg. 115. By act of 27 July 1868, supra 15, such commissioners may take probate of debts in all cases.
(d) Creditors can exhibit and substantiate their claims, without previously ascertaining the value of the securities which they may hold. Ex parte Bigelow, 1 Bank. Reg. 186; see Ex parte Bridgman, Ibid. 59.
(e) Formal proof is primâ facie sufficient. Ex parte Colman, 2 Bank. Reg. 172.
(g) See Ex parte Bellamy, 1 Ben. 390; Anon., 2 Bank. Reg. 21. (h) Such order cannot be made by the register. Ex parte Comstock, 2 Bank. Reg. 171.
2 March 1867. of opinion that such validity or right ought to be investigated by the assignee, he may When probate to postpone the proof of the claim, until the assignee is chosen. (a)
49. Any person who, after the approval of this act, shall have accepted any preference, having reasonable cause to believe that the same was made or given by the debtor, contrary to any provision of this act, shall not prove the debt or claim on account of which the preference was made or given, nor shall he receive any dividend therefrom, until he shall first have surrendered to the assignee all property, money, benefit or advantage received by him under such preference.
50. The court shall allow all debts duly proved, and shall cause a list thereof to be made and certified by one of the registers.(b) And any creditor may act at all meetings by his duly constituted attorney, the same as though personally present. (c)
51. A supposed creditor who takes an appeal to the circuit court from the decision of the district court, rejecting his claim in whole or in part, shall, upon entering his appeal in the circuit court, file in the clerk's office thereof a statement in writing of his claim, setting forth the same, substantially, as in a declaration for the same cause of action at law, and the assignee shall plead or answer thereto in like manner, and like proceedings shall thereupon be had, in the pleadings, trial and determination of the cause, as in action at law commenced and prosecuted, in the usual manner, in the courts of the United States, except that no execution shall be awarded against the assignee for the amount of a debt found due to the creditor. The final judgment of the court shall be conclusive, and the list of debts shall, if necessary, be altered to conform thereto. The party prevailing in the suit shall be entitled to costs against the adverse party, to be taxed and recovered as in suits at law; if recovered against the assignee, they shall be allowed out of the estate.
ors to surrender their securities.
Allowance of pro-
Appeals from rejection of pro
Surrender of instruments
VII. SALE OF PERISHABLE PROPERTY, ETC.
53. When it appears to the satisfaction of the court, (e) that the estate of the debtor, or any part thereof, is of a perishable nature, or liable to deteriorate in value, the Sales of perisha court may order the same to be sold, in such manner as may be deemed most ex
2 Mar. 1867 25. 14 Stat. 528.
52. A bill of exchange, promissory note or other instrument, used in evidence upon the proof of a claim, (d) and left in court or deposited in the clerk's office, may be delivered by the register or clerk having the custody thereof, to the person who used it, upon his filing a copy thereof, attested by the clerk of the court, who shall endorse upon it the name of the party against whose estate it has been proved, and the date and amount of any dividend declared thereon.
pedient, under the direction of the messenger or assignee, as the case may be, who
shall hold the funds received in place of the estate disposed of.(g)
Sales of pro
54. And whenever it appears to the satisfaction of the court, that the title to any to which is dis- portion of an estate, real or personal, which has come into possession of the assignee, puted.
or which is claimed by him, is in dispute, (h) the court may, upon the petition of the assignee, and after such notice to the claimant, his agent or attorney, as the court shall deem reasonable, order it to be sold, under the direction of the assignee, who shall hold the funds received in place of the estate disposed of; and the proceeds of the sale shall be considered the measure of the value of the property, in any suit or
Proceeds to be deemed the measure of value.
Not to bar action controversy between the parties, in any courts. But this provision shall not prevent against the as
2 Mar. 1867 26. 14 Stat. 529.
the recovery of the property from the possession of the assignee, by any proper action commenced at any time before the court orders the sale.
VIII. EXAMINATION OF THE BANKRUPT, ETC.
55. The court may, on the application of the assignee in bankruptcy, (i) or of any
(a) The bankrupt can object, at the first meeting of creditors, to the validity of, and the right to prove any debts, without regard to the time when the depositions in proof were filed. Ex parte Patterson, 1 Ben. 448. It is the duty of the register, when he entertains doubts of the validity of a claim, or of the right of a creditor to prove it, and is of opinion that such validity or right ought to be investigated by the assignee, to postpone the proof of the claim until the assignee is chosen. Ex parte Orne, 1 Ben. 361. (b) See Anon., 1 Bank. Reg. 2.
(c) How the authority of an attorney to act in the choice of an assignee must be shown. Ex parte Knoepfel, 1 Ben. 330, 398; Ex parte Purvis, 6 Int. R. Rec. 173. The power of attorney need not be acknowledged. Ex parte Powell, 2 Bank. Reg. 17. A power to several persons jointly cannot be exercised by one of them alone. Ex parte Phelps, 1 Bank. Reg. 139. One member of a firm may constitute an attorney to cast the vote of the firm in the choice of an assignee. Ex parte Barrett, 2 Bank. Reg. 165. It seems, that a member of the bankrupt firm cannot represent claims against the estate. Ex parte Mitteldorfer, 3 Bank. Reg. 9. (d) If the claim be founded on a promissory note, it must be produced, when required; otherwise, if it be merged in a judgment. Ex parte Knoepfel, 1 Ben. 398.
(e) An application to sell perishable property, under this clause, must be made to the court, by petition, not to the register. Ex
parte Graves, 1 Bank. Reg. 19.
(g) The bankrupt, before the appointment of an assignee, stands in a fiduciary relation to the estate, and cannot be a purchaser. March v. Heaton, 2 Bank. Reg. 66. Under the 22d rule in bankruptcy, the court cannot grant the order to sell property, as perishable, until it comes into the possession of the messenger, or assignee. Ex parte Metzler, 1 Ben. 356.
(h) In cases of fraud, the court may assume the custody of personal property in the hands of a vendee of the bankrupt, purchased before the vendor is adjudged a bankrupt. Ex parte Hunt, 2 Bank. Reg. 166. The court of bankruptcy assumes jurisdiction over all property under the control of the bankrupt, for purposes of administration. Ex parte Hambright, 2 Bank, Reg 157. See Ex parte Wilbur, 1 Ben. 527.
(i) The application of the assignee for the examination of the bankrupt, need not be verified by affidavit; nor is it necessary that the application should specify the matters in which it is proposed to examine him, or the particular reasons for the same. Ex parte Lanier, 2 Bank. Reg. 59. It is only necessary that the court should be satisfied of the bona fides of the application. Ex parte McBrien, 2 Bank. Reg. 73. If the assignee examine the bankrupt, he must pay the costs of the examination, which, if he be without funds, must be advanced by the creditors. Ex parte Hughes, 1 Bank. Reg. 9; sec Ex parto Van Tuyl, 2 Bank Reg. 25.
creditor, (a) or without any application, (b) at all times, require the bankrupt, upon 2 March 1867. reasonable notice, (c) to attend and submit to an examination, on oath, (d) upon all Examination of matters relating to the disposal or condition of his property, (e) to his trade and deal bankrupts. ings with others, and his accounts concerning the same, to all debts due to or claimed from him, and to all other matters concerning his property and estate and the due settlement thereof according to law; which examination shall be in writing, and shall be signed by the bankrupt and filed with the other proceedings.
56. And the court may in like manner, require the attendance of any other person of other persons. as a witness; (g) and if such person shall fail to attend, on being summoned thereto, Process of conthe court may compel his attendance by warrant directed to the marshal, commanding him to arrest such person and bring him forthwith before the court, or before a register in bankruptcy, for examination as such witness.
where the bank
57. If the bankrupt is imprisoned, absent or disabled from attendance, the court Examination. may order him to be produced by the jailer, or any officer in whose custody he may rupt is disabled be, or may direct the examination to be had, taken and certified, at such time and from attendance. place and in such manner as the court may deem proper, and with like effect as if such examination had been had in court.
Bankrupt to be object to the court until dis
order of the
58. The bankrupt shall at all times, until his discharge, be subject to the order of the court, and shall, at the expense of the estate, execute all proper writings and instruments, and do and perform all acts required by the court touching the assigned property or estate, and to enable the assignee to demand, recover and receive all the property and estate assigned, wherever situated; and for neglect or refusal to obey per instruments. any order of the court, such bankrupt may be committed and punished as for a contempt of court.
59. If the bankrupt is without the district, and unable to return and personally When default to attend at any of the times, or do any of the acts which may be specified or required pursuant to this section, and if it appears that such absence was not caused by wilful default, and if, as soon as may be after the removal of such impediment, he offers to attend and submit to the order of the court in all respects, he shall be permitted so to do, with like effect as if he had not been in default.
60. He shall also be at liberty, from time to time, upon oath, to amend and correct Power to amend his schedule of creditors and property, so that the same shall conform to the facts. (h)
61. For good cause shown, (i) the wife of any bankrupt may be required to attend Examination of before the court, to the end that she may be examined as a witness; (k) and if such bankrupt's wife. wife do not attend at the time and place specified in the order, (1) the bankrupt shall not be entitled to a discharge, unless he shall prove to the satisfaction of the court that he was unable to procure the attendance of his wife.(m)
62. No bankrupt shall be liable to arrest, during the pendency of the proceedings
(a) A creditor may prove his claim and have an order for the examination of the bankrupt at any time after the commencement of the proceedings. Ex parte Orne, 1 Ben. 361; Ex parte Baum, Ibid. 274; Ex parte Patterson, Ibid. 448. Each creditor has a right to examine the bankrupt, under this clause, but such examinations are to be regulated as to time, manner and cause, by the register, in the exercise of a sound discretion. Ex parte Adams, 2 Bank. Reg. 92. See Ex parte Robinson, Ibid. 162. To obtain an order for the examination of the bankrupt, the creditor must apply by petition or affidavit, and show good cause for granting the same. Ex parte Adams, 2 Bank. Reg. 33. See Ex parte Blumenthal, 1 Bank. Reg. 33. The register's fee for such examination must be paid by the creditor, in the first instance. Ex parte Macintire, 1 Ben. 277. A bankrupt, summoned by a creditor to appear as a witness, is not entitled to witness's fees. Ex parte McNair, 2 Bank. Reg. 77; Ex parte Okell, 1 Bank. Reg. 52.
(b) An order for the examination of a bankrupt is always made by the court, on petition for final discharge; any other examination must be ordered on petition of the assignee or of creditors. Ex parte Brandt, 2 Bank. Reg. 109.
(c) It is the duty of the debtor to be ready for examination, upon due notice, but he need not notify the creditor when and where the examination is to be had. Ex parte Littlefield, 3 Bank. Reg. 13.
(d) A bankrupt under examination, has no right to consult with counsel, before answering, unless the register see good cause for allowing it. Ex parte Tanner, 1 Bank. Reg. 59; 8. c. 15 Pitts. L. J. 244; Ex parte Judson, 1 Bank. Reg. 82; contrà, Ex parte Patterson, 6 Int. R. Rec. 165. He may be cross-examined by his own counsel. Ex parte Leachman, 1 Bank. Reg. 91. He may decline to answer, if, by so doing, he would criminate himself. Ex parte Koch, 1 Bank. Reg. 153; Ex parte Patterson. 1 Ben. 544. He must take the risk of deciding whether he will answer or not. Ex parte Rosenfield, 1 Bank. Reg. 60. The register has no power to decide on the competency, materiality or relevancy of any question. Ibid.; Ex parte Levy, 1 Ben. 496; Ex parte Bond, 3 Bank. Reg. 2. He cannot make any binding decision, or compel a witness to answer. Ex parte Koch, 1 Bank. Reg. 153.
(e) A bankrupt must answer questions in relation to property VOL. II.-7
in which it is shown that he might possibly have an interest. Ex parte Bonesteel, 2 Bank. Reg. 106. But all questions which, on their face, relate to property that does not belong to the bankrupt, are irrelevant. Ex parte Van Tuyl, 1 Bank. Reg. 193. l!e cannot be examined as to property acquired since the filing of his petition. Ex parte Levy, 1 Ben. 496. And see Ex parte Levy, 6 Int. R. Rec. 134; Ex parte Lyon, Ibid. 135; Ex parte Carson, 2 Bank. Reg. 41; Ex parte Patterson, 1 Ben. 544.
(9) Ex parte Fredenburg, 1 Bank. Reg. 34; Ex parte Blake, 2 Bank. Reg. 2. The time for examining witnesses does not expire by the filing of a petition for a discharge; the time for showing cause against the discharge may be kept open for a reasonable time, to allow of the examination of witnesses. Fx parte Seckendorf, 1 Bank. Reg. 185. The bankrupt is not entitled to notice of a witness called by the assignee. Ex parte Levy, 1 Ben. 454. (h) The register has power to allow such amendment, but the co-ordinate power exists in the judge; the original amendments allowed should be filed with the clerk. Ex parte Morford, 1 Ben. 264. Proceedings in bankruptcy are amendable, but not for the purpose of introducing new, or essentially changing the grounds of prosecution or defence, except under special circumstances. Ex parte Reed, 1 Bank. Reg. 137. After the first meeting of creditors, material alterations to the schedules of debts or property, are not allowable, by way of amendment, except on such condi tions as may prevent injustice. Ex parte Ratcliffe, 1 Bank. Reg. 98; s. c. 25 Leg. Int. 92. A bankrupt may amend his petition, after adjudication, so as to bring in his copartners, in order to a discharge of the firm debts. Ex parte Little, 1 Bank. Reg. 74; s. c. 15 Pitts. L. J. 268. Where an amendment has been allowed, a new warrant should issue. Ex parte Perry. 1 Bank. Reg 2.
(i) The examination of the bankrupt's wife, is not a matter of right; it will only be granted for good cause shown to the court. Ex parte Levy, 6 Int. R. Rec. 206.
(k) She is not bound to appear and be examined, unless she be paid the usual and proper witness fees. Ex parte Van Tuyl, 2 Bank. Reg 25; Ex parte Griffin, 1 Bank. Reg. 83.
(1) It is sufficient, to serve the order on the husband; he must procure the attendance of his wife, or prove his inability to do so. Ex parte Van Tuyl, 2 Bank. Reg. 177. (m) Ex parte Van Tuyl, 2 Bank. Reg. 25.