COMPENSATION.

§ 40. Compensation of Referees.— (a.) Referees shall receive. as full compensation for their services, payable after they are rendered, a fee of ten dollars deposited with the clerk at the time the petition is filed in each case, except when a fee is not required from a voluntary bankrupt, and from estates which have been administered before them one per centum commissions on sums to be paid as dividends and commissions, or one-half of one per centum on the amount to be paid to creditors upon the confirmation of a composition.

(b.) Whenever a case is transferred frm one referee to another the judge shall determine the proportion in which the fee and commissions therefor shall be divided between the referees.

(c.) In the event of the reference of a case being revoked before it is concluded, and when the case is specially referred, the judge shall determine what part of the fee and commissions shall be paid to the referee.

In the case cited, are discussed allowances to registers, services for which charges are allowable, and how questions concerning such charges can be raised. In re Sherwood, 1 N. B. R. 344; 21 Fed. Cas. 1286 (18CS).

After the deposit for costs had been exhausted, and no assets had come into the hands of the assignee, the court ordered the bankruppt, in a proceeding of involuntary bankruptcy, to pay the register's and clerk's costs. In re McBride, 15 Fed. Cas. 1218.

It was held under the Act of 1867 that the court, and not the clerk, should fix the fees of the register, and that the register could be compelled to pay any excess of fees received by him into the court. In re Portington et al., 8 Ben. 173; 19 Fed. Cas. 1082.

The fees taxed by a register for his own services are considered by Judge Blatchford in the case cited. In re Robinson, 2 Ben. 145; 20 Fed. Cas. 974.

CONTEMPTS.

§ 41. Contempts Before Referees.-(a.) A person shall not, in proceedings before a referee, (1) disobey or resist any lawful order, process, or writ; (2) misbehave during a hearing or so near the place thereof as to obstruct the same; (3) neglect to produce, after having been ordered to do so, any pertinent document; or (4) refuse to appear after having been subpoenaed, or, upon appearing, refuse to take the oath as a witness, or, after having taken the oath, refuse to be examined according to law: Provided, That no person shall be required to attend as a witness before a referee at a place outside of the State of

his residence, and more than one hundred miles from such place of residence, and only in case his lawful mileage and fee for one day's attendance shall be first paid or tendered to him.

(b.) The referee shall certify the facts to the judge, if any person shall do any of the things forbidden in this section. The judge shall thereupon, in a summary manner, hear the evidence as to the acts complained of, and, if it is such as to warrant him in so doing, punish such person in the same manner and to the same extent as for a contempt committed before the court of bankruptcy, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of, or in the presence of, the court.

Where a bankrupt refuses to answer a proper question upon examination before the register, the court will compel him to answer. In re Holt, 3 N. B. R. 241; 12 Fed. Cas. 428.

A custodian of the estate of the bankrupt ad interim had been appointed, and the register had ordered the bankrupt to pay over to him certain moneys. Held, that disobedience of such an order was a contempt. In re Speyer et al., 6 N. B. R. 255; 22 Fed. Cas. 928.

It was held under the Act of 1867 that a malicious attack upon the character of a register in bankruptcy in a paper filed in court was a contempt of court. In re Breck et al., 13 N. B. R. 216; 4 Fed. Cas. 44. [See notes to § 21 ]

§ 42. Records of Referees.

RECORDS.

(a.) The records of all proceedings in each case before a referee shall be kept as nearly as may be in the same manner as records are now kept in equity cases in circuit courts of the United States.

(b.) A record of the proceedings in each case shall be kept in a separate book or books, and shall, together with the papers on file, constitute the records of the case.

(c.) The book or books containing a record of the proceedings shall, when the case is concluded before the referee, be certified to by him, and, together with such papers as are on file before him, be transmitted to the court of bankruptcy and shall there remain as a part of the records of the court.

VACANCIES.

43. Referee's Absence or Disability.-(a.) Whenever the office of a referee is vacant, or its occupant is absent or disqualified to act,

the judge may act, or may appoint another referee, or another referee holding an appointment under the same court may, by order of the judge, temporarily fill the vacancy.

§ 44. Appointment of Trustees. (a.) The creditors of a bankrupt estate shall, at their first meeting after the adjudication or after a vacancy has occurred in the office of trustee, or after an estate has been reopened, or after a composition has been set aside or a discharge revoked, or if there is a vacancy in the office of trustee, appoint one trustee or three trustees of such estate. If the creditors do not appoint a trustee or trustees as herein provided, the court shall do so.

§ 45. Qualifications of Trustees.- (a.) Trustees may be (1) individuals who are respectively competent to perform the duties of that office, and reside or have an office in the judicial district within which they are appointed, or (2) corporations authorized by their charters. or by law to act in such capacity and having an office in the judicial district within which they are appointed.

§ 46. Death or Removal of Trustees. (a.) The death or removal of a trustee shall not abate any suit or proceeding which he is prosecuting or defending at the time of his death or removal, but the same may be proceeded with or defended by his joint trustee or successor in the same manner as though the same had been commenced or was being defended by such joint trustee alone or by such

successor.

When only one creditor proves his debt or attends the meeting, he is entitled to name the assignee. Anon., 1 N. B. R. 216; 1 Fed. Cas. 1013. When only one creditor appears at a meeting of creditors to elect an assignee, he has the right to make the election. In re Haynes, 2 N. B. R. 227; 11 Fed. Cas. 914.

It is optional with creditors who have proved their claims whether they will or will not wait for others to prove before proceeding to elect an assignee. In re Lake Superior Ship Canal R. I. Co., 7 N. B. R. 376; 14 Fed. Cas. 951.

When a creditor is added by an amendment to the bankrupt's schedule, It is not necessary to hold another meeting of the creditors to elect an assignee, if one has already been chosen. In re Carson, 5 Ben. 277; 5 Fed. Cas. 172.

The result of an election of assignee cannot be changed by the votes of those who filed their proof of claims after the election. In re Lake Superior Ship Canal R. I. Co., 7 N. B. R. 376; 14 Fed. Cas. 951.

Creditors who have received payment under the terms of a composition which is set aside cannot vote at an election of assignee to proceed with the administration of the estate. Ex parte Hamlin, 2 Low. 571; 1 Fed. Cas. 367.

When a separate adjudication is made against a bankrupt who is, or has been a member of a firm, his individual creditors have a right to vote for assignee. In re Falkner, 16 N. B. R. 503; 8 Fed. Cas. 973.

A power of attorney given to a firm to vote for the election of an assignee can only be exercised by all the members of the firm. In re Foye, 2 Low. 399; 9 Fed. Cas. 649.

The register has no power without special order of the court to inquire into the right of creditors to vote in the election of an assignee. The fact that persons fraudulently and by collusion claiming to be creditors voted in such election may be presented to the court as a reason why such election should not be approved. In re Noble, 3 Ben. 332; 18 Fed. Cas. 282 (1869).

One member of a firm can cast the vote of a firm at a meeting of creditors for the full amount of the debt; but as to joint creditors who are not partners neither can act or vote without the authority of the other. In re Purvis, 1 N. B. R. 163; 20 Fed. Cas. 74.

The vote of a creditor for assignee which was procured by corruption should be excluded; but it does not invalidate the election unless it changed the result. In re Pfromm et al., 8 N. B. R. 357; 19 Fed. Cas. 415.

Under the Act of 1867 it required the votes of a majority of all who had proved claims to elect an assignee, and a majority of votes cast was not sufficient. In re Purvis, 1 N. B. R. 163; 20 Fed. Cas. 74.

Neither an agent nor an attorney-at-law of a creditor can vote for assignee unless duly constituted an attorney in fact. Ibid.

A creditor cannot vote at a meeting when his claim is exceeded by a set off for a debt due to the bankrupt. In re Purcell, 18 N. B. R. 447; 20 Fed. Cas. 61.

The question submitted being whether a creditor having a mortgage upon the homestead of the bankrupt in Kansas to secure his demand, has a right to prove his demand, and vote on the choice of an assignee in bankruptcy, it was answered in the affirmative. In re Stillwell, 7 N. B. R. 226; 23 Fed. Cas. 89.

One member of a firm can execute a power of attorney to a third person authorizing him to cast the vote of the firm for the election of the assignee. In re Barrett, 2 Hughes, 444; 2 Fed. Cas. 909.

Judge Lowell condemned the practice of procuring creditors with small privileged claims for wages to prove their debts at the first meeting, so as to vote for assignee, and intimated that he might refuse to confirm such an election. At the same time he denied a motion to reject the proofs of such claims. In re Houghton, 2 Low. 243; 12 Fed. Cas. 588. Property was sold at public auction after the adjudication of the mortgagor on a mortgage for $15,000. The mortgagee purchased it for $142.50 and then proved up the deficiency against the estate of the mortgagor in

bankruptcy. His vote on the claim so proved controlled the election of the assignee. The court held that such a method of ascertaining the value of the security was not contemplated by the Act of 1867, and that the election of the assignee was irregular. In re Hunt, 17 N. B. R. 205; 12 Fed. Cas. 902.

"It is only the creditors who have proved their debts that can participate in choosing an assignee. The proving of debts must, therefore, precede the choosing of an assignee; but it may often happen that a bankrupt owes a hundred or more debts and that it may be impossible, owing to the complicated nature of some, to go through the proofs of one-tenth of them on the day designated in the warrant of notice. If, therefore, in such case a meeting cannot adjourn to the next or another day to take proof of other debts, it will follow that a power which the statute contemplates shall be exercised by a greater part in number and value of the whole, is actually exercised by one-half of the creditors representing but a small portion of the debts. The plainest principles of justice would require such an adjournment from day to day as would furnish proper opportunity to all creditors present to prove their debts, and thus qualify themselves to join in selecting an assignee." In re Phelp et al., 1 N. B. R. 525; 19 Fed. Cas. 436.

An attorney for creditors is eligible to election as assignee. In re Lawson, 2 N. B. R. 113; 15 Fed. Cas. 88; In re Barrett, 2 Hughes, 144; 2 Fed. Cas. 909.

It was held to be a sufficient objection to an appointment of an assignee that he was a director of a bank to whom the bankrupt had given a preference. In re Powell, 2 N. B. R. 45; 19 Fed. Cas. 1211.

When an assignee has been chosen in the interest of the bankrupt, or through his influence, the court will refuse to confirm the election. In re Bliss, 1 Ben. 407; 3 Fed. Cas. 705.

Judge Lovell expressed the opinion that a nonresident of the district, or a person who has an interest antagonistic to that of the general creditors, or the attorney of the bankrupt, should not be chosen assignee; but that the objections do not extend to a general creditor or his attorney, or to a former attorney of the bankrupt. In re Clairmont, 1 Low. 230; 5 Fed. Cas. 810.

Judge Blatchford refused to to confirm the election of an assignee who had made it a regular business to seek out creditors and solicit them to prove their debts and vote for him. In re Doe, 2 N. B. R. 308; 7 Fed. Cas. 802.

Under the Act of 1867 the court refused to confirm the election of an assignee who resided out of the district. In re Havens, 1 N. B. R. 485; 11 Fed. Cas. 849.

The court refused to sanction the election of an assignee when there was only one creditor present at the meeting, and he voted for a person who was a stranger to himself and who had solicited his vote. In re A. B., 3 Ben. 66; 1 Fed. Cas. 2.