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2 March 1867.
14 Stat. 5:25.
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 rosignahim 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 surviv
ing 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 for or be chosen eligible as assignee ;(6) 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.
VI. PROBATE OF DEBTS. 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) What debts may
be proved. 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 en
dorser, &c. upon 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)
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.
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
(@) The clause properly applies to vacancios caused by the 330. Nor one contracted by a feme covert. Ex parte Slichter, 2 resignation or removal of assignees who have been duly appointed Bank. Reg. 107. But the reservation of usurious interest, on the and approved. Ex parte Scheiffer, 2 Bank. Reg. 179.
discount of a note, by a national bank, does not bar the probate (6) The assignee must be a resident of the district. Ex parte of the principal debt. Moore v. Exchange Bank of Columbus, 1 Havens, 1 Bank. Reg. 126. Or have a fixed place of daily busi- Bank. Reg. 123. An attorney's bill for opposing the adjudication
Ex parte Loder, 2 Bank. Reg. 161. He must not of bankruptcy, is a debt provable under the act; not a lien on be related to the bankrupt. Ex parte Powell, 2 Bank. Reg. 17. the assets. Ex parte New York Mail Steamship Co., 2 Bank. Reg. A creditor's attorney may be chosen assignee. Ex parte Clair. 170. A wife may claim as a general creditor of her husband, for mont, 1 Bank. Reg. 42; Ex parte Lawson, 2 Bank. Reg. 44; Ex money deposited with him. Ex parte Bigelow, 2 Bank. Reg. 170. parte Barrett, Ibid. 165. But a director of a bank to which the (d) A judgment obtained after the adjudication of bankruptcy, debtor has confessed a judgment, cannot be appointed assignee. extinguishes the original debt, and is not provable against the Ex parte Powell, 2 Bank. Reg. 17.
estate. Ex parte Williams, 2 Bank. Reg. 79; 8. P. Ex parte (c) Any debt which may be proved by complying with any of Knoepfel, 1 Den. 398. the provisions of the bankrupt law, is a provable debt. Rankin (e) A creditor, in proving his debt, may include the interest o. Florida. Atlantic and Gulf Central Railroad Co., 1 Bank. Reg. due thereon, without regard to the mode of its statement in the 196. A debt barred by the statute of limitations of the bank- schedule. Ex parte Orde, 1 Ben. 361. The rights of creditory rupt's domicil, may be proved against his estate; to prevent a arise and accrue after proof of their claims. Ex parte Joves, 2 probate, the debt must be shown to be so barred throughout the Bank. Reg. 20. A creditor may prove his claim before the first United States. Ex parte Ray, 16 Am. L. R. 283; contri, Ex parte meeting of creditors. Ex parte Patterson, 1 Ben. 448. Kingsley, Ibid. 423; 8. c. 1 Bank. Reg. 66; Ex parte Shepard, 16 () A party holding the bankrupt's notes, as collateral security, Am. L. R. 487; 3. c. 1 Bank. Reg. 115; Ex parte Harden, Ibid. 97. may prove them to an extent sufficient to secure dividends to the If the statute be relied on as a defence, it must be set up affirma- amount of his claim. Baily v. Nichols, 2 Bank. Reg. 151. So, tively by the debtor. Ex parte Knoepfel, 1 Ben. 398. A debt the liability of the bankrupt as endorser having become absolute, created by fraud is provable under the act. Ex parte Rundle, 2 a creditor holding a mortgage from the maker to secure their Bank. Reg. 19; Ex parte Comstock, 22 Vt. 612. But a judgment payment, may nevertheless prove the full amount of the notes for a fine imposed by a criminal court cannot be admitted to pro- against the estate of the endorser. Ex parte Cram, 1 Bank. Reg. bate. Ex parte Sutherland, 17 Am. L. R. 39. A debt contracted 132. in confederate notes is not provable. Baily v. Milner, 55 Geo.
Rent and other
2 March 1867. ruptey 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 periodical pay
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. Upliqnidated 40. If any bankrupt shall be liable for unliquidated damages arising out of any damages.
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.(6) Ibid. 2 20. 41. In all cases of mutual debts or mutual credits between the parties, the account Right of set-off. 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. Claims of lien- 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. 43. No creditor proving his debt or claim shall be allowed to maintain any suit at Probate of debt 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. 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, be stayed.
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;(?) and provided also, that if the amount due
Suits at law to
the creditor is in dispute, the suit, by leave of the court in bankruptcy, may proceed (a) A creditor cannot prove a claim for unliquidated damages, 125; Lee v. Franklin Avenue German Savings Institution, 1 without an application for the assessment thereof under this Chicago Leg. News 370.
Ex parte Clough, 16 Pitts. L. J. 25; 8. C. 2 (g) See Ex parte Brand, 2 Am. L. T. Bank. 66. If a lien-creBank. Reg. 59.
ditor prove his debt, the assignee is entitled to be subrogated to (6) A creditor may amend his proof, but will not be allowed to the creditors' lien upon the real estato of the bankrupt. Wallace withdraw it. Ex parte Lowerre, 1 Ben. 406. See Ex parte Laps- v. Coprad, 26 Leg. Int. 262; 8. 0. 3 Bank. Reg. 10, ley, 1 Penn. L. J. 245; Ex parte Harwood, Crabbe 496; Ex parte (h) As a general rule, the assignee, though he has power to sell Brand, 2 Am. L. T. Bank. 66; Ex parte Emison, 2 Bank. Reg. 179. lands subject to encumbrances, ought not to do so, as a clear sale
(c) A claim of the bankrupt for uoliquidated damages cannot is most to the advantage of the estate. Ex parte McClellan, 1 be set off against that of a creditor. Ex parte Orne, 1 Ben. 361. Bank. Reg. 91.
(d) A lien-creditor can only prove for the balance of his debt, (i) This does not apply to the probate of a debt created by after deducting the value of the property on which he held a fraud, which is not dischargeable under the 33d section. Ex lien. Ex parto Winn, 1 Bank. Reg. 131. A secured creditor parte Migel, 2 Bank. Reg. 153; Ex parte Rosenberg, Ibid. 81; Ex must prove for his balance, or he cannot participate in the dis- parte Robinson. Ibid. 108. tribution. Ex parte Bridgman, 1 Bank. Reg. 59; Ex parte Bol- (k) The granting of a final discharge, ipso facto, dissolves the ton, Ibid. 83. Te may prove, without surrendering his securi- injunction, without motion. Ex parte Thomas, 3 Bank. Reg. 7. ties; he is deemed a general creditor after exhausting them. Ex (l) The object of this clause is to prevent a race of diligence pierte Ruehle, 2 Bank. Reg. 175; 8. c. 2 Am. L. T. Bank. 59; and between creditors, and to protect the bankrupt from being Bee Ex parte Campbell, 16 Am. L. R. 100; Jones v. Lench, 1 Bank. harassed with suits, pending the question of his discharge. Ex Reg. 165. Where oncunibered property is sold by the assignee, parte Metcalf, 6 Int. R. Rec. 2:23. And, therefore, an action to the lieu-creditor is entitled to the proceeds, deducting only the recover a provable debt is to be stayed, until a determination be cost of proving his lien; there is no prior claim thereon for the hard as to the discharge, whether the debt be one that will be general expenses in bankruptcy. Ex parte Hambright, 2 Benk. discharged or not. Ex parte Rosenberg, 2 Bank. Reg. 81; Ex keg. 157.
Parte Migel, Ibid. 153. But see Ex parte Seymour, 1 Ben. 348. (e). A creditor may make proof of his claim withont necessarily Before the appointment of assignees a petition for an injuncascertaining the value of securities held by him. Ex parte tion can be filed only by the bankrupt; after assignees are Bigelow, 1 Bank. Reg. 186; 8. c. 1 Am. L. T. Barik. 95. A creilitor appointed, the petition should be filed ly them. Ex parte Bowie, Becured by a deed of trust with a power of sale, must prove his 1 Bank. Reg. 185. As to when the court of bankruptcy will debt as one holding security, and obtain permission of the court enjuin proceedings in a state court, see ex parte Reed, 0 Int. R. to have the security sold; a sale made without such permission Rec. 21; Ex parte Jacoby, Ibid. 119; Ex parte Robinson, 2 Pank. will be set aside by the court. Davis v. Delaney, 2 Bank. Reg. Reg. 108; Ex parte Campbell, 16 Am. L. R. 100.
of the act.
2 March 1867.
to judgment, for the purpose of ascertaining the amount due, which amount may be proved in bankruptcy, but execution shall be stayed as aforesaid. 44. If any bankrupt sball, 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 distinct 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 cre- Ibid. & 22. ditors residing within the judicial district where the proceedings in bankruptcy are 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 probata 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 Ibid. & 23. 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 though both the bankrupt and creditor reside in the samo of the registers of the home district. Ex parte Haley, 2 Bank. district. Ex parte Shepard, 16 Am. L. R. 484; & c. 1 Bank. Reg. Kez. 13; Ex parte Stranss, Ivil 18. The register has power to 115. By act of 27 July 1868, supra 15, such commissioners may pras npon the satisfactory or unsatisfactory character of proof take probate of debts in all cases. of the debt; but where a question of law or fact is raised in (d) Creditors can exhibit and substantiate their claims, withrespect thereof, it must be certified to the indge. Ex parte Bo- out previously ascertaining the value of the securities which gert, 2 Bank. Reg. 139. It the register reject the probate, the they may hold. Ex parte Bigelow, 1 Bank. Reg. 186; see Ex assignee is entitled to notice of an applicatiou to the district parto Bridgman, Ibid. 59. judge to review the decision. Ex parte Mitteldorfer, 3 Bank. (e) Formal proof is prima facie sufficient. Ex parte Colman, 2
Bank. Kog 172. (6) Dehts due to non-resident creditors may he proved before (g) See Ex parte Bellamy, 1 Ben. 390; Anon., 2 Bank. Reg. 21, aur register or commissioner of another district. Ex parte (h) Such order cannot be made by the register. Ex parte ComStruksi, ? Bank. Ber. 18.
stok, 2 Bank. Reg. 171. (c) A debt may be proved before a United States commissioner,
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) be postponed 49. Any person who, after the approval of this act, shall have accepted any preference, Preferred creditors to surrender having reasonable cause to believe that the same was made or given by the debtor, their securities. 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. Allowance of pro- 50. The court shall allow all debts duly proved, and shall cause a list thereof to he
made and certified by one of the registers.(6) And any creditor may act at all meetings Attorneys in
by his duly constituted attorney, the same as though personally present.(c) Ibid. & 24. 51. A supposed creditor who takes an appeal to the circuit court from the decision of Appeals from ro the district court, rejecting his claim in whole or in part, shall, upon entering his appeal jection of pro- 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. Surrender of in- 52. A bill of exchange, promissory note or other instrument, used in evidence upon proved.
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.
VII. SALE OF PERISHABLE PROPERTY, 2 Mar. 1867 % 25. 53. When it appears to the satisfaction of the court, (e) that the estate of the debtor, 14 Stat. 528.
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 exble property.
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.(9) 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 Proceeds to be shall hold the funds received in place of the estate disposed of; and the proceeds of deemed the mea
the sale shall be considered the measure of the value of the property, in any suit or Not to bar action controversy between the parties, in any courts. But this provision shall not prevent against the assignee.
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.
Bure of value.
VIII. EXAMINATION OF THE BANKRUPT, ETC. 2 Mar. 1867 2 26.
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, parte Graves, 1 Bank. Reg. 19. to the validity of, and the right to prove any debts, without re- (9) The bankrupt, before the appointment of an assignee, gard to the time when the depositions in proof were filed. Ex stands in a fiduciary relation to the estate, and cannot be a purparte Patterson, 1 Ben. 418. It is the duty of the register, when chaser. March v. Ileaton, 2 Bank. Reg. 66. Under the 22d rulo he entertains doubts of the validity of a claim, or of the right of in bankruptcy, the court cannot grant the order to sell property, a creditor to prove it, and is of opiuion that such validity or as perishable, until it comes into the possession of the messenger, right ought to be investigated by the assignee, to postpone the or assignee. Ex parte Metzler, 1 Ben. 356. proof of the claim until the assignee is chosen. Ex parte Orne, 1 (h) In cases of fraud, the court may assume the custody of
personal property in the hands of a vendee of the bankrupt, pur(b) See Anon., 1 Bank. Reg. 2.
chased before the vendor is adjudged a bankrupt. Ex parte (c) How the anthority of an attorney to act in the choice of an Hunt, 2 Bank. Reg. 160. The court of bankruptcy assumes assignee must be shown. Ex parte Knoepfel, 1 Ben. 330, 398; jurisdiction over all property under the control of the bankrupt, Ex parte Purvis, 6 Int. R. Rec. 173. The power of attorney need for purposes of administration. Ex parte Hambright, 2 Bauk Dot be acknowledged. Ex parte Powell, 2 Bank. Reg. 17. A Reg 157. See Ex parte Wilbur, 1 Ben. 527. power to several persons jointly cannot be exercised by one of (i) The application of the assignee for the examination of the them alone. Ex parte Phelps, 1 Bank. Reg. 139, One member bankrupt, need not be verified by athdavit; nor is it necessary of a firm may constitute an attorney to cast the vote of the firm that the application should specify the matters in which it is in the choice of an assignee. Ex parte Barrett, 2 Bank. Reg. 165. proposed to examine him, or the particular reasons for the same. It soems, that a member of the bankrupt firm cannot represent Ex parte Lanier, 2 Bank. Reg. 59. It is only necessary that the claims against the estate. Ex parto Mitteldorfer, 3 Bauk. Reg. 9. court should be satisfied of the bona fides of the application. Ex
(d) If the claim be founded on a promissory note, it must be parte McBrien, 2 Bank. Reg. 73. If the assignee examine the produced, when required; otherwise, if it be merged in a judg bankrupt, he must pay the costs of the examination, which, if ment. Ex parte Knoepfel, 1 Ben. 398.
he be without funds, must be advanced by the creditors. Ex (e) An application to soll perishable property, under this clause, parte lughes, 1 Bunk. Reg. 9; sco Ex parto Van Tuyl, 2 Bank must be made to the court, by petition, not to the register. Ex Reg. 25.
14 Stat. 5:29.
creditor, (a) or without any application,(6) at all times, require the bankrupt, upon 2 March 1967. 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- baukrupts. 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.
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.
58. The bankrupt shall at all times, until his discharge, be subject to the order of Bankrupt to be the court, and shall, at the expense of the estate, execute all proper writings and order of the instruments, and do and perform all acts required by the court touching the assigned court until dis
charged. 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 instrumeats. 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 baukrupt's wife. wife do not attend at the time and place specified in the order,(?) 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
To execute pro
(a) A creditor may prove his claim and have an order for the in which it is shown that he might possibly have an interest. examination of the bankrupt at any time after the commence. Ex parte Bonesteel, 2 Bunk. Reg. 106. But all questions which, ment of the proceedings. Ex parte Orne, 1 Ben. 361; Ex parte on their face, relate to property that does not belong to the bankBaum, Ibid. 274; Ex parte Patterson, Ibid. 418. Each creditor rupt, are irrelevant. Ex parte Van Tuyl, 1 Bank. Reg. 193. le has a right to examine the bankrupt, under this clanse, but such cannot be examined as to property acquired since the filing of his examinations are to be regulated as to time, manner and cause, petition. Ex parte Levy, 1 Ben. 496. And see Ex parte Levy, 6 by the register, in the exercise of a sound discretion. Ex parte Iut. R. Rec. 134; Ex parte Lyon, Ibid. 135; Ex parte Carson, 2 Adams, 2 Bank. Reg. 92. See Ex parte Robinson, Ibid. 162. To Bank. Reg. 41; Ex parte Patterson, 1 Ben. 544. obtain an order for the examination of the bankrupt, tho creditor (9) Ex parte Fredenburg, 1 Bank. Reg. 31; Ex parte Blake, 2 must apply by petition or affidavit, and show good cause for Bank. Reg. 2. The time for examining witnesses does not expire granting the sanie. Ex parte Adams, 2 Bank. Reg. 33. See Ex by the filing of a petition for a discharge; the time for showing parte Blumenthal, 1 Bank. Reg. 33. The register's fee for such causo agninst the discharge may be kept open for a reasonalile examination must be paid by the creditor, in the first instance. time, to allow of the examination of witnesses. Fx parte SeckEx parte Macintire, 1 Ben. 277. A bankrupt, summoned by a endorf, 1 Bank. Reg. 185. The bankrupt is not entitled to notice creditor to appear as a witness, is pot entitled to witness's foes. of a witness called by the assignee. Ex parte Levy, 1 Ben. 454. Ex parte McNair, 2 Bank. Reg. 77; Ex parte Okell, 1 Badk. Rog. (h) The register has power to allow such amendment, but the 52.
co-ordinate power exists in the judge; the origival amendments (b) An order for the examination of a bankrupt is always allowed should be filed with the clerk. Ex parte Morford, 1 Ben. marie by the court, op petition for final dischargo; any other 264. Procerdings in bankruptcy are amendable, but not for the examination must be ordered on petition of the assignee or of purpose of introducing new, or essentially changing the grounds creditors. Ex parte Brandt, 2 Bank. Reg. 109.
of prosecution or defence, except under special circumstances. (c) It is the duty of the debtor to be really for examination, Ex parte Reed, 1 Bank. Reg. 137. After the first meeting of creuron due notice, but he need not notify the creditor when and ditors, material alterations to the schedules of debts or property, where the examination is to be had. Ex parte Littlefield, 3 are not allowable, by way of amendment, except on such concl. Bank. Reg. 13.
tions as may prevent injustice. Ex parte Ratcliffe, 1 Bank. Reg. (d) A bankrupt under examination, has no right to consult 98; 8. C. 25 Lex. Int. 9:2. A bankrupt may amend his petition, with counsel, before answering, unless the register see good after adjudication, so as to bring in his cupartners, in order to a ca'lse for allowing it. Ex parte Tanper, 1 Bank. Reg. 59; 8. C. discharge of the firin debt. Ex parte Little, 1 Bank. Reg. 74; 8. 15 Pitts. L. J. 211; Ex parte Judson, 1 Bank. Reg. 82; contrd, c. 15 Pitts. L. J. 268. Where an amendment has been allowed, a Ex parte Patterson, 6 Int. R. Rec. 165. He may bo cross-ex- new warrant should issue. Ex parte Perry. 1 Bank. Reg 2. amined by his own counsol. Ex parte Learhman, 1 Bank. Reg. (i) The examination of the bankrupt's wife, is not a matter 91. He may decline to answer, if, by so doing, he would crimi- of right; it will only be granted for good cause shown to the date himself. Ex parte Koch, 1 Bank. Reg. 153; Ex parte Pat- court. Ex parte Levy, 6 Int. R. Rec. 206. terson. 1 Ben. 544. He must take the risk of deciding whether (k) She is not bound to appear and be examined, unloss she be he will answer or not. Ex parte Rosenfield, 1 Bank. Reg. 60. paid the usual and proper witness fees. Ex parte Van Tuyl, 2 The register has no power to decide on the competency, mate- Bank Reg 25; Ex parte Griffin, 1 Bank. Reg. 83. riality or relevancy of any question. Ilid.; Ex parte Levy, 1 (1) It is sufficient, to serve the order on the husband; he must Ben. 496; Ex parte Bond, 3 Bank. Reg. 2. IIe cannot make procure the attendance of his wife, or prove his inability to do so. any binding decision, or compel a witness to answer. Ex parte Ex parte Van Tuyl, 2 Bank. Reg. 177. koch, 1 Balik. Reg. 153.
(m) Ex parte Van Tuyl, 2 Bank. Reg. 25. (e) A bankrupt must answer questions in relation to property