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judge, within the limits of their districts as established from time to time, with jurisdiction to (1) 1 consider all petitions referred to them by the clerks and make the adjudications or dismiss the petitions; (2)2 exercise the powers vested in courts of bankruptcy for the administering of oaths to and the examination of persons as witnesses and for requiring the production of documents in proceedings before them, except the power of commitment; (3) exercise the powers of the judge for the taking possession and releasing of the property of the bankrupt in the event of the issuance by the clerk of a certificate showing the absence of a judge from the judicial district, or the division of the district, or his sickness, or inability to act; (4) perform such part of the duties, except as
'If on the last day within which pleadings may be filed none are filed by the bankrupt or any of his creditors, the judge on the next day, if present, or as soon thereafter as practicable, shall make the adjudication or dismiss the petition. (Sec. 18, e.) If the judge is absent from the district, or the division of the district in which the petition is pending, on the next day after the last day on which pleadings may be filed, and none have been filed by the bankrupt or any of his creditors, the clerk shall forthwith refer the case to the referee. (Sec. 18, f.) Upon the filing of a voluntary petition, the judge shall hear the petition and make the adjudication or dismiss the petition. If the judge is absent from the district or the division of the district in which the petition is filed at the time of the filing, the clerk shall forthwith refer the case to the referee. (Sec. 18, g.)
2 Referees are authorized to administer oaths (sec. 20, a), and are required to perform such part of the duties, except as to questions arising out of applications of bankrupts for compositions or discharges, as are conferred on courts of bankruptcy. (Sec. 38-4.) In case of contempt before a referee he is required to certify the facts to the judge, who, in a summary manner, hears the evidence of the acts complained of and imposes such punishment as he sees fit. (Sec. 41, b.)
3 Upon satisfactory proof that a bankrupt against whom an involuntary petition has been filed and is pending has committed an act of bankruptcy, or is neglecting his property so that it is deteriorating in value, the judge may issue a warrant to the marshal to seize and hold it subject to further orders. (Sec. 69.)
With the exception of the power of commitment and the power to pass upon questions arising out of the application of bankrupts for compositions or discharges, referees have generally the powers of courts of bankruptcy. (Sec. 2.)
to questions arising out of the applications of bankrupts for compositions or discharges, as are by this Act conferred on courts of bankruptcy and as shall be prescribed by rules or orders of the courts of bankruptcy of their respective districts, except as herein otherwise provided; and (5)1 upon the application of the trustee during the examination of the bankrupts, or other proceedings, authorize the employment of stenographers at the expense of the estates at a compensation not to exceed ten cents per folio for reporting and transcribing the proceedings.
[Act of 1867. SEC. 4. That nothing in this section contained shall empower a register to commit for contempt or to hear a disputed adjudication, or any question of the allowance or suspension of an order of discharge; but in all matters where an issue of fact or of law is raised and contested by any party to the proceedings before him, it shall be his duty to cause the question or issue to be stated by the opposing parties in writing, and he shall adjourn the same into court for decision by the judge.
SEC. 5. . . . and such register, so acting, shall have and exercise all powers, except the power of commitment, vested in the district court for the summoning and examination of persons or witnesses, and for requiring the production of books, papers and documents.]
See General Order XII promulgated by the Supreme Court with reference to referees.
Jurisdiction of register over petitions for adjudication.- Petition was filed and defendant made default; adjudication was proper by register. (In re De Ford, 18 N. B. R. 454; Fed. Cas. 3744.) But where the petition is against firm, notice must be given to all members. (In re Lewis, 1 N. B. R. 19; 2 Ben. 96; Fed. Cas. 8311.) Petition will not be dismissed because the depositions supporting it are defective. (Cunningham v. Cady, 13 N. B. R. 525; 8 Chi. Leg. News, 165; 4 Amer. Law Rec. 510; Fed. Cas. 3480.) Irrelevant issues raised by a party not in court will be returned to the register undecided by the judge. (In re Haskell, 4 N. B. R. 181; Fed. Cas. 6191.) The register is an officer of the court and takes judicial notice of its judgments and decrees. (In re Scott, Collins & Co., 15 N. B. R. 73; 4 Cent. Law J. 29; Fed. Cas. 12519.)
I The necessary expenses incurred by officers in the administration of estates, unless otherwise provided, are to be reported in detail, under oath, examined and approved or disapproved by the court. If they are approved they are payable out of the estate in which incurred. (Sec. 62.)
Over administering of oaths.- When a creditor applied verbally for the examination of a bankrupt, it was held that the order could only be granted when applied for by petition, duly verified, showing good cause therefor (In re Adams, 2 N. B. R. 33; 2 Ben. 503; 36 How. Pr. 51; Fed. Cas. 39); and a witness cannot refuse to be sworn, on the ground that he acted as counsel for the bankrupt and is his legal adviser. (In re Woodward et al., 3 N. B. R. 177; 4 Ben. 102; Fed. Cas. 17999.) The oath of allegiance annexed to the petition of the debtor may be taken before a register. (In re Walker, 1 N. B. R. 67; Fed. Cas. 17062.) The affidavits or depositions taken before a register after the filing of the petition are valid, although proceedings may not be pending before him. (In re Deane, 2 N. B. R. 29; 15 Pittsb. Leg. J. 581, 583; Fed. Cas. 3700.)
Over examination of bankrupt.- Bankrupt as witness: An application for an order for the examination of a bankrupt before the register need show no cause therefor, nor be verified by an affidavit (In re McBrien, 2 N. B. R. 73; 2 Ben. 513; Fed. Cas. 8665; In re Lanier, 2 N. B. R. 59; Fed. Cas. 8070); it need not be in writing (In re Solis, 4 N. B. R. 18; Fed. Cas. 13165); and he may allow an order for the examination of the bankrupt by each creditor. (In re Adams, 2 N. B. R. 92; 3 Ben. 7; 36 How. Pr. 270; 1 Chi. Leg. News, 170; Fed. Cas. 40.) The register has not the power by announcement beforehand to fix a time within which the examination of debtor must be concluded without regard to the nature of questions or the interest in which they are propounded (In re Tift, 17 N. B. R. 421; Fed. Cas. 14036); but after a bankrupt's discharge, the register cannot order him to appear and submit to examination touching his acts prior to adjudication. (In re Dean, 3 N. B. R. 188; Fed. Cas. 3701.) The register must determine whether a bankrupt shall be allowed to consult his counsel during examination. (In re Lord, 3 N. B. R. 58; Fed. Cas. 8502.) See EVIDENCE, Sec. 21.
Manner of examination. The register must have power in composition proceedings to conduct inquiries and take down the substance of the answers and to adjourn the meeting, even in some cases against the wishes of one party or the other; but not to conduct a written examination as to all the inquiries which would be proper in bankruptcy; and he would be justified in refusing to permit inquiries beyond the day of meeting (In re Proby, 17 N. B. R. 175; 12 Amer. Law Rev. 598; Fed. Cas. 11439); and the register has no power to decide on competency, materiality or relevancy of any question, and has therefore no power to exclude any question. (In re Rosenfield, 1 N. B. R. 60; 15 Pittsb. Leg. J. 245; 1 Amer. Law T. Rep. Bankr. 47; Fed. Cas. 12059: In re Bond, 3 N. B. R. 2; Fed. Cas. 1618.) A register is not authorized to hear testimony as to a creditor's right to vote for assignee (In re Noble, 3 N. B. R. 25; 3 Ben. 332; Fed. Cas. 10282); and cannot make any binding decision or compel a witness to answer, if he refuses. (In re Koch, 1 N. B. R. 153; 1 Amer. Law T. Rep. Bankr. 121; 15 Pittsb. Leg. J. 531; Fed. Cas.
Examination of assignee.— An assignee may be required to testify as any other witness and the register has authority to make requisite order. He is not subject to an examination by creditor whenever the latter may desire it, and the register will refuse an application for his examination unless upon issues regularly referred to him. (In re Smith, 14 N. B. R. 432; Fed. Cas. 12988. Contra, In re Hicks et al., 19 N. B. R. 449; Fed. Cas. 6457.)
As to proof of claim.— A register has power to pass upon the validity of the proof of claims except when an issue of law or fact is raised (In re Bogert et al., 2 N. B. R. 139; 38 How. Pr. 111; 1 Chi. Leg. News, 211; Fed. Cas. 1598); and to postpone the proof of a claim where there are doubts as to validity, in view of preference contrary to the provision of the act of 1867 (In re Stevens, 4 N. B. R. 122; Fed. Cas. 13391); but if debts are objected to, the register cannot admit them to proof and allow a vote for assignee (In re Hunt, 17 N. B. R. 205; 35 Leg. Int. 71; Fed. Cas. 6884); nor has he power to expunge prima facie proofs of debt or to reject claims; nor has he authority to refuse the votes of the claimants nor to exclude them from dividend (In re Jaycox v. Green, 7 N. B. R. 303; 7 West. Jur. 18; Fed. Cas. 7240); nor was it competent for creditors and bankrupt to submit the question of the amount due to arbitration of register (In re Ford et al., 18 N. B. R. 426; Fed. Cas. 4932); nor for claimant and assignee to submit claim as to amount to register (Moran et al. v. Bogart, 14 N. B. R. 393); but a creditor holding security is entitled to have his claim referred to the register for investigation, and the assignee is not justified in rejecting it until proofs have been taken. (In re Noonan & Co., 6 N. B. R. 579.)
As to meetings and adjournment.—A warrant was issued returnable on the 15th of September, but the register was prevented from attending. He made orders of adjournment and forwarded them, he being absent. It was held that the register had no authority to so adjourn a meeting, and a new warrant must issue (In re Dickinson, 18 N. B. R. 514; 26 Pittsb. Leg. J. 143; Fed. Cas. 3895); and when a creditor objects to postponement of his claim, he should have objection entered and the question certified to the court. (In re Jackson et al., 14 N. B. R. 449; 7 Biss. 280; Fed. Cas. 7123; R. S., 5034, 5078, 5083.)
Production of books and papers.-The court will order production of books and papers at the summary hearing on the return day of the order to show cause. (In re Mendenhall, 9 N. B. R. 285; Fed. Cas. 9423.) To perform certain duties of bankrupt court. He may proceed with cause until final discharge of the assignee from the case (In re Dole, 7 N. B. R. 538; 7 West. Jur. 629; Fed. Cas. 3965); and he may examine and pass upon a disputed claim, but such action is subject to review by the court. His power is not limited to postponement of a claim. (In re Keller et al., 18 N. B. R. 331; Fed. Cas. 7654.) He may hear motion ex parte, and can compel assignee to sign certificate showing names
and residences of creditors. (In re Blaisdell, 6 N. B. R. 78; 5 Ben. 420; 42 How. Pr. 274; Fed. Cas. 1488.) He may order the bankrupt to hand over to the custodian of the estate funds in his hands, and failure to obey is a contempt. (In re Speyer, 6 N. B. R. 255; 42 How. Pr. 307; Fed. Cas. 13239.) He may order assignee to furnish all necessary information as to the funds in his hands. (In re Clark et al., 6 N. B. R. 194; Fed. Cas. 2807.) Registers have entire control over proceedings pending before them, including the power to grant or refuse postponements. (In re Hyman, 2 N. B. R. 107; 3 Ben. 28; 36 How. Pr. 282; Fed. Cas. 6984.) He has no authority to decide questions arising from objections urged against the bankrupt's discharge. (In re Puffer, 2 N. B. R. 17; 15 Pittsb. Leg. J. 534; Fed. Cas. 11459.) He cannot admit or postpone a contested claim which he considers valid, but must report it to the court if the vote upon it could affect choice of assignee (In re Bartusch, 9 N. B. R. 478; Fed. Cas. 1086); nor entertain a motion on the part of the bankrupt to set aside the appointment of the assignee (In re Stokes, 1 N. B. R. 130; 1 Amer. Law T. Rep. Bankr. 122; Fed. Cas. 15475); nor make an order to show cause why proof of a debt against the estate of a bankrupt should not be vacated and the record thereof canceled. (Comstock v. Wheeler, 2 N. B. R. 171; 2 Amer. Law T. Rep. Bankr. 87; Fed. Cas. 3084.)
Fees, payment of; register may order.- Under the act of 1867 it was held that an order for the payment of fees and expenses in bankruptcy proceedings out of funds of estate is an order for distribution, and, when unopposed, may be made by register. (In re Lane, 2 N. B. R. 100; 3 Ben. 98; 1 Chi. Leg. News, 123; Fed. Cas. 8042.)
Sec. 39. Duties of referees.-a. Referees shall (1) 1 declare dividends and prepare and deliver to trustees dividend sheets showing the dividends declared and to whom payable; (2) 2 examine all schedules of property and lists of creditors filed by bankrupts and cause such as are incomplete or
1 The first dividend must be declared within thirty days after the adjudication, if the money of the estate is in excess of the amount necessary to pay the debts which have priority, and such claims as have not been but probably will be allowed equals five per centum or more of such allowed claims; and the subsequent dividends are to be declared on like terms as the first, and as often as the amount equals ten per cent. or more, and upon closing the estate. They may be declared oftener and in smaller proportions if the judge sees fit. (Sec. 65.) The trustees are required to pay dividends within ten days after they are declared by the referee. (Sec. 47-9.)
2 Within ten days after an adjudication, in case of involuntary, and with the petition if voluntary, the bankrupt must file a schedule of his property in triplicate, one copy of which must be furnished the referee. (Sec. 7-8.)