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§ 29.]

Conspirators-Defendant May be a Witness.

differing from the Act of 1867. In all of the offenses mentioned in paragraph b, essential elements, which must be stated in the indictment and found upon the trial, are that the act is done knowingly and fraudulently. Inasmuch as the schedules required by section 7 (8) must be verified, a wilful and fraudulent omission of a material asset or a material debt, would seem to be an offense punishable by imprisonment. (Compare U. S. v. Nichols, 4 McLean, 23.) A bankrupt who submits the facts in regard to his property fairly to the advice of his counsel, and who, acting under the advice thus given, withholds certain items from his schedule, is not guilty of perjury, the fraudulent intent being wanting. (U. S. v. Conner, 3 McLean, 573.) But if he makes false statements in regard to it, in answer to interrogatories proposed to him in his examination, it is perjury. (U. S. v. Dickey, I Morris, 412.) False swearing to a fact, to the best of the opinion of the witness, which the witness, though without any reasonable cause, believes to be true, is not perjury. (Commonwealth v. Brady, 5 Gray [Mass.] 78.) But perjury cannot be predicated of a witness where the false testimony was on a prior proceeding and incorporated by consent. (In re Goldsmith, 4 Am. B. R. 234; 101 Fed. 570.)

Conspirators.-U. S. Revised Statutes, section 5,440, provide: "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, all the parties to such conspiracy shall be liable to a penalty of not more than ten thousand dollars, or to imprisonment of not more than two years, or to both fine and imprisonment in the discretion of the court." Under this section it was held that a person who conspired with another to commit an offense against the Bankruptcy Act of 1867 was liable to prosecution. (U. S. v. Bayer, Fed. Cas. 14.547; 4 Dill. 407.)

Defendant May Be a Witness.-The Act of March 16, 1878, chapter 37 (20 Stat. L. 30), provides that

Proceeding by Indictment — Inspection of Accounts - Rules, etc. [Ch. IV.

"In the trial of all indictments, information, complaints, and other proceedings against persons charged with the commission of crimes, offenses, and misdemeanors, in the United States courts, Territorial courts, and courtsmartial, and courts of inquiry, in any State or Territory, including the District of Columbia, the person so charged shall, at his own request but not otherwise, be a competent witness. And his failure to make such request shall not create any presumption against him."

This statute must be considered as overruling various decisions to the contrary rendered before its enactment.

Proceeding by Indictment.-Under the former act which made the wilful and fraudulent omission of assets from the schedule a misdemeanor, it was held that such an offense was not an infamous crime, and that a proceeding against the offender might be by information and not indictment. (U. S. v. Block, Fed. Cas. 14,609; 15 N. B. R. 325.)

But as to all offenses referred to in subdivisions "a" and "b" it must be assumed since the decisions of In re Wilson (114 U. S. 422) and Mackin v. U. S. (117 U. S. 348) that all offenses which are punishable by imprisonment for more than one year must be presented by indictment.

Inspection of Accounts.-As to what is a reasonable opportunity of inspecting accounts, compare In re Brewer; Ex p. Runel (1 DeGex, M. & G. 491.)

SEC. 30.

Rules, Forms, and Orders.-a All necessary rules, forms, and orders as to procedure and for carrying this act into force and effect shall be prescribed, and may be amended from time to time, by the Supreme Court of the United States.

Analogous Provisions of Former Acts.

Act of 1867, section 10.

The General Orders of the Supreme Court are obligatory and binding on courts of bankruptcy. They confer rights as well as

$31.]

Computation of Time-Time by Months and Years.

prescribe rules of practice and must be followed. (In re Scott, 3 Am. B. R. 625; 99 Fed. 404.) But the forms and orders indicate only the substance and are not necessarily exclusive as to cases not falling strictly within their terms. (See In re Paige, 3 Am. B. R. 679; 99 Fed. 538. See also In re Soper, 1 Am. B. R. 193.)

SEC. 31. Computation of Time.-a Whenever time is enumerated by days in this act, or in any proceeding in bankruptcy, the number of days shall be computed by excluding the first and including the last, unless the last fall on a Sunday or holiday, in which event the day last included shall be the next day thereafter which is not a Sunday or a legal holiday.

Analogous Provisions of Former Acts.—
R. S. section 5013; act of 1867, section 48.

Time by Months and Years.-Although the statute expressly provides only for a method of computing time when the enumeration is by days, it was held under the former act which was substantially similar in its provisions, that a fair construction of it required that the same rule should be applied when the time was enumerated by months or years. Under that statute, which permitted one to apply for a discharge within a year from the adjudication, it was held that where one had been adjudicated bankrupt on the 26th of November of a certain year, and the 26th of November of the following year came upon Thanksgiving Day, it being a legal holiday, the application could be filed on the 27th of November. (In re J. B. Lang, Fed. Cas. 8,056; 2 N. B. R. 480.) To same effect: Cooley v. Cook (125 Mass. 406). But the general rule of law is that when a thing must be done within a certain number of months or years, if the last day falls on Sunday or a holiday, it cannot be done on the next day. (Compare Amer. and Eng. Ency. of Law [1st ed.], title, Time.) In another case in bankruptcy it was held that an attachment

Time by Months and Years - Transfer of Cases.

[Ch. IV. made on the 8th of March, at seven o'clock in the afternoon was voidable, if the petition in bankruptcy was filed on the 8th of July at two o'clock in the afternoon, the court in that case not applying the rule which requires that the last day should be included, but holding that the general common-law rule that fractions of a day are not to be considered did not apply, and that in ascertaining whether or not a petition in bankruptcy had been filed within four months from the time of securing such an attachment, hours and minutes might be counted to see whether the time had expired. (Westbrook Mfg. Co. v. Grant, 60 Me. 88.) In a similar case it was held that the day on which the petition was filed must be excluded. (Dutcher v. Wright, 16 Albany Law Journal, 100; s. c. 94 U. S. 553.) When Sunday or a holiday is one of the intervening days, it is to be counted. (In re York v. Hoover, Fed. Cas. 18,139; 4 N. B. R. 479.) The filing of a petition which will establish the date from which is to be determined the validity of liens and preferential transfers, which are in some cases voidable under this act, must be the filing of a petition which alleges the necessary jurisdictional facts. If no adjudication can be made on it, it will not mark the date from which time is to be measured. (In re Rogers, Fed. Cas. 12,003; 10 N. B. R. 444.) A petition is filed at the time when presented to the clerk for action by the court, not at the time when the clerk presents it to the judge to obtain a subpoena or a show cause order thereon.

Cross-reference.-Compare notes to section 60, paragraph on When Do the Four Months Expire.

SEC. 32. Transfer of Cases.-a In the event petitions are filed against the same person, or against different members of a partnership, in different courts of bankruptcy each of which has jurisdiction, the cases shall be transferred, by order of the courts relinquishing jurisdiction, to and be consolidated by the one of such courts which can proceed with the same for the greatest convenience of parties in interest.

32.]

Transfer of Cases - Where May the Petition be Filed.

Analogous Provisions of Former Acts.—

As to transfers in cases of two petitions being filed against one partnership: Rule XVI. of Orders in Bankruptcy, under the act of 1867.

And see following G. O. 6 as to effect of filing petitions in different districts.

VI. PETITIONS IN DIFFERENT DISTRICTS.

In case two or more petitions shall be filed against the same individual in different districts. the first hearing shall be had in the district in which the debtor has his domicil, and the petition may be amended by inserting an allegation of an act of bankruptcy committed at an earlier date than that first alleged, if such earlier act is charged in either of the other petitions; and in case of two or more petitions against the same partnership in different courts, each having jurisdiction over the case, the petition first filed shall be first heard, and may be amended by the insertion of an allegation of an earlier act of bankruptcy than that first alleged, if such earlier act is charged in either of the other petitions; and, in either case, the proceedings upon the other petitions may be stayed until an adjudication is made upon the petition first heard; and the court which makes the first adjudication of bankruptcy shall retain jurisdiction over all proceedings therein until the same shall be closed. In case two or more petitions shall be filed in different districts by different members of the same partnership for an adjudication of the bankruptcy of said partnership. the court in which the petition is first filed, having jurisdiction, shall take and retain jurisdiction over all proceedings in such bankruptcy until the same shall be closed; and if such petitions shall be filed in the same district, action shall be first had upon the one first filed. But the court so retaining jurisdiction shall. if satisfied that it is for the greatest convenience of parties, in interest that another of said courts should proceed with the cases, order them to be transferred to that court.

(And see In re Waxelbaum, 3 Am. B. R. 392; 101 Fed. 228.) Where May the Petition be Filed.-The petition may be filed at the option of the petitioner in any one of three districts, viz., the district in which the bankrupt for the greater portion of the six months previous to the filing of the petition has resided, or has his domicil or has had his principal place of business. In the case of non-resident aliens having no principal place of business in the United States, or in the case of persons who have been adjudged bankrupt by courts of competent jurisdiction without the United States, it may be in any district in which they have property. (Section 2 [1].) Jurisdiction over one partner

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