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Rules of procedure. The general rules and orders made by the Supreme Court are not designed to create or declare, nor do they create and declare, the rights of creditors in the estate of the bankrupt; still less do they abrogate and annul those rights. (In re Baxter et al., 18 N. B. R. 560; Fed. Cas. 1121.) The district courts have no power to make general rules in bankruptcy. (In re Kennedy et al., 7 N. B. R. 337; Fed. Cas. 7699.)

Courts of bankruptcy are not hampered by such technical rules as will prevent the doing of what is just, and for the protection of the state, even if it required the revocation of an order once made. (Samson v. Burton, 6 N. B. R. 403.)

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.

[Act of 1867. SEC. 48.

And in all cases in which any particular number of days is prescribed by this act, or shall be mentioned in any rule or order of court or general order which shall at any time be made under this act, for the doing of any act, or for any other purpose, the same shall be reckoned, in the absence of any expression to the contrary, exclusive of the first, and inclusive of the last day, unless the last day shall fall on a Sunday, Christmas day, or on any day appointed by the President of the United States as a day of public fast or thanksgiving, or on the fourth of July, in which case the time shall be reckoned exclusive of that day also.]

Bankruptcy was adjudicated November 26, 1867; the bankrupt filed his application for discharge November 27, 1868; November 26, 1868, was Thanksgiving day; the court held that the application was made within one year as required by the act, under the equity and fair construction of the provision for computation of time. (In re Lang, 2 N. B. R. 151; Fed. Cas. 8056.) In computing the time within which an appeal in bankruptcy must be taken, Sunday is to be counted, except when the last day would fall on Sunday, in which case Sunday is excluded. (In re York et al., 4 N. B. R. 156; Fed. Cas. 18139.) The day on which the petition was filed is excluded in computing the time a preference must stand in order to be valid. (Dutcher v. Wright, Ass., etc., 16 N. B. R. 331; 94 U. S. 558.)

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.

Where two petitions are filed against the same individual in different districts, the first hearing must be had in the district in which the debtor has his domicile; and where there are two or more petitions against the same partnership in different courts, each having jurisdiction, the petition first filed shall be first heard, 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 adju dication retains jurisdiction over all the proceedings until the same is closed. (Orders VI.)

It is frequently the case that a person may reside in the jurisdiction of one court, do business in another, and have his domicile in still another; or, in the case of a partnership, each member of a firm may live in different judicial districts and transact business in still others, so that a number of courts may at the same time have jurisdiction to render an adjudication of bankruptcy. This section provides for such a contingency. The power of transfer is conferred by section 2 (19). A court which has jurisdiction of one of the partners may have jurisdiction of all the partners and of the administration of the partnership and individual property. (Sec. 5, c.)

Under the law of 1867 the court whose jurisdiction was first invoked had entire control, and proceedings in other courts were stayed or dis missed. (In re Boston, H. & E. R. R. Co., 6 N. B. R. 209; 9 Blatchf. 101; 6 Amer. Law Rev. 582; Fed. Cas. 1678; Shearman et al. v. Bingham et al., 5 N. B. R. 34; 1 Lowell, 575; Fed. Cas. 12733; In re Leland, 5 N. B. R. 222; 5 Ben. 168; Fed. Cas. 8228; vide especially as to partners, In re Smith, 3 N. B. R. 15.) It will be noticed that the present law makes the "greatest convenience of parties" the ground for the transfer and relinquishment of jurisdiction.




Sec. 33. Creation of two offices.-a. The offices of referee and trustee are hereby created.

The offices of referee and trustee created by this act correspond substantially to those of register and assignee under the act of 1867. While these are the only two offices specifically created, provision is also made for the appointment of receivers and the designation of marshals to take charge of the property of bankrupts after the petition has been filed and until dismissed, or the trustees have qualified, in case it becomes necessary for the preservation of the estate. (Sec. 2-3.) The referee is an officer of the United States, and as such is entitled to transmit through the mail free, in penalty envelopes, exclusively official mail matter in accordance with the provisions of section 368, Postal Laws and Regulations (p. 159, Act of July 5, 1884).

Sec. 34. Appointment, removal, and districts of referees.-a. Courts of bankruptcy shall, within the territorial limits of which they respectively have jurisdiction, (1) appoint referees, each for a term of two years, and may, in their discretion, remove them because their services are not needed or for other cause; and (2) designate, and from time to time change, the limits of the districts of referees, so that each county, where the services of a referee are needed, may constitute at least one district.

[Act of 1867. SEC. 3. . . That it shall be the duty of the judges of the district courts of the United States, within and for the several districts, to appoint in each Congressional district in said districts upon the nomination and recommendation of the Chief Justice of the Supreme Court of the United States, one or more registers in bankruptcy, to assist the judge of the district court in the performance of his duties under this act.

SEC. 5.... Such registers shall be subject to removal by the judge of the district court. . . •]

The referee under this act occupies an office corresponding to that of register under the act of 1867. To a limited extent he exercises judicial functions, and is essentially an assistant to the judge in the district for which appointed. He must take the oath of office prescribed for judges of United States courts in section 712, U. S. R. S. (Sec. 36.) He is liable to punishment for conviction of the offense of acting as referee, when interested; purchasing property of the bankrupt's estate, or refusing to permit an inspection of his accounts. (Sec. 29, c.) See also note to sec. 33. The qualification of referees is provided for by section 35.

Under subdivision 2 of this section, each county where the services of a referee are needed may constitute at least one district. The number that may be appointed for each county is without limit; there may be as many as necessary to expeditiously transact the business. The practice obtaining in some courts of placing several counties in one district is erroneous. One serious complaint of the act of 1867 was the inconvenience and added expense resulting from the inaccessibility of courts and their officers, and to avoid a similar complaint the term "each county may constitute at least one district" was used.

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Sec. 35. Qualifications of referees.- a. Individuals shall not be eligible to appointment as referees unless they are respectively (1) competent to perform the duties of that office; (2) not holding any office of profit or emolument under the laws of the United States or of any State other than commissioners of deeds, justices of the peace, masters in chancery, or notaries public; (3) not related by consanguinity or affinity, within the third degree as determined by the common law, to any of the judges of the courts of bankruptcy or circuit courts of the United States, or of the justices or judges of the appellate courts of the districts wherein they may be appointed; and (4) residents of, or have their offices in, the territorial districts for which they are to be appointed.

[Act of 1867. SEC. 3.

No person shall be eligible to such appointment unless he be a counselor of said court, or of some one of the courts of record of the state in which he resides.]

Consanguinity is the relation existing between persons descending from a common ancestor; affinity is the connection existing in conse

quence of marriage between the husband or wife and the kindred of the other. The degrees in either case are computed alike, thus: counting from the bankrupt (or the husband or wife, as the case may be) up to the common ancestor and down to the party related, counting each person as one, and excluding the bankrupt (or the husband or wife, etc.).

The word "officer" is defined to include clerk, marshal, receiver, referee and trustee (sec. 1-18); and the word "referee" to mean the referee who has jurisdiction of the case or to whom the case has been referred, or any one acting in his stead. (Sec. 1—21.)

Sec. 36. Oaths of office of referees.-a. Referees shall take the same oath of office as that prescribed for judges of United States courts.

[Act of 1867. SEC. 3. . And he shall, in open court, take and subscribe the oath prescribed in the act entitled "An act to prescribe an oath of office, and for other purposes," approved July second, eighteen hundred and sixty-two, and also that he will not, during his continuance in office, be, directly or indirectly, interested in or benefited by the fees or emoluments arising from any suit or matter pending in bankruptcy, in either the district or circuit court in his district.]


U.S. Rev. Stat., sec. 712, provides as follows: The justices of the Supreme Court, the circuit judges, and the district judges, hereafter appointed, shall take the following oath before they proceed to perform the duties of their respective offices: "I dc solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as according to the best of my abilities and understanding, agreeably to the constitution and laws of the United States: So help me God."

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Sec. 37. Number of referees.-a. Such number of referees shall be appointed as may be necessary to assist in expeditiously transacting the bankruptcy business pending in the various courts of bankruptcy.

The number of referees for each district is to be determined by the amount of business, but each county must constitute at least one district and have at least one referee. (See sec. 34 and note.)

Sec. 38. Jurisdiction of referees.-a. Referees respectively are hereby invested, subject always to a review by the

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