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defective to be amended; (3) furnish such information concerning the estates in process of administration before them as may be requested by the parties in interest; (4)2 give notices to creditors as herein provided; (5) make up records embodying the evidence, or the substance thereof, as agreed upon by the parties in all contested matters arising before them, whenever requested to do so by either of the parties thereto, together with their findings therein, and transmit them to the judges; (6) prepare and file the schedules of property and lists of creditors required to be filed by the bankrupts, or cause the same to be done, when the bankrupts fail, refuse, or neglect to do so; (7) 5 safely keep, per
1 The refusal of a referee to permit a reasonable opportunity for an inspection of the accounts, papers and records relating to estates of bankrupts in his charge by parties in interest, when directed by the court, renders him liable to a fine and the forfeiture of his office. (Sec. 29, c.) 2 Referees are required to give creditors at least ten days' notice by mail, to their respective addresses, of all examinations of the bankrupt, hearings upon applications for confirmation of composition or discharges, meetings of creditors, proposed sales of property, declaration and time of payments of dividends, filing the final accounts of the trustee, time and place they will be examined and passed upon, proposed compromise of any controversies, and the proposed dismissal of the proceedings. (Sec. 58, a.) Before giving notices he may require of the person in whose behalf the duty is performed indemnity for such expense. (Orders X.) The referee is also required to notify trustees of their appointment. (Orders XVI. See, generally, Orders XXIII.)
3 For the purpose of having any order made by a referee reviewed, there should be filed with him a petition therefor, setting out the error complained of, and the referee must forthwith certify the question presented to the judge. (Orders XXVIL) Courts of bankruptcy must consider and confirm, modify or overrule, or return, with instructions for further proceedings, records and findings certified to them by referees. (Sec. 2-10.) 4 The schedule required to be filed by the bankrupt should be filed within ten days after the adjudication, if an involuntary bankrupt, and with the petition if a voluntary bankrupt, and should show the amount and kind of property, the location thereof, its money value, etc. (Sec. 7-8.)
5 The records in all proceedings in cases before a referee should 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. The records of the proceedings should be kept in a separate book or books, and when the case is concluded before the referee it must be certified to by him,
fect, and transmit to the clerks the records, herein required to be kept by them, when the cases are concluded; (8) 1 transmit to the clerks such papers as may be on file before them whenever the same are needed in any proceedings in courts, and in like manner secure the return of such papers after they have been used, or, if it be impracticable to transmit the original papers, transmit certified copies thereof by mail; (9) 2 upon application of any party in interest, preserve the evidence taken or the substance thereof as agreed upon by the parties before them when a stenographer is not in attendance; and (10)3 whenever their respective offices are in the same cities or towns where the courts of bankruptcy convene, call upon and receive from the clerks all papers filed in courts of bankruptcy which have been referred to them.
[Act of 1867. SEC. 4. That every register in bankruptcy, so appointed and qualified, shall have power, and it shall be his duty, to make adjudication of bankruptcy, to receive the surrender of any bankrupt, to administer oaths in all proceedings before him, to hold and preside at meetings of creditors, to take proof of debts, to make all computations of dividends, and all orders of distribution, and to furnish the assignee with a certified copy of such orders, and of the schedules of creditors and assets filed in each case, to audit and pass accounts of assignees, to grant protection, to pass the last examination of any bankrupt in case whenever the assignee or a creditor do not oppose, and to sit in chambers and despatch there such part of the administrative business of the court and such uncontested matters as shall be defined in general rules and orders, or as the dis
and, with such papers as are on file before him, be transmitted to the court of bankruptcy, and there remain a part of the records of the court. (Sec. 42.)
1 Clerks are required to return papers which were received from the referees after they have served their purpose. (Sec. 51-3.)
2 In the taking of evidence referees may administer oaths or affirmations. (Sec. 20.)
3 Clerks are required to deliver to the referee, upon application, all papers which may be referred to them, or, if the office of the referee is not in the same city or town with the clerk, transmit such papers by mail. (Sec. 51-3.)
trict judge shall in any particular matter direct; and he shall also make short memoranda of his proceedings in each case in which he shall act, in a docket to be kept by him for that purpose, and he shall forthwith, as the proceedings are taken, forward to the clerk of the district court a certified copy of said memoranda, which shall be entered by said clerk in the proper minute-book to be kept in his office, and any register of the court may act for any other register thereof.
That any party shall during the proceedings before a register, be at liberty to take the opinion of the district judge upon any point or matter arising in the course of such proceedings, or upon the result of such proceedings, which shall be stated by the register in the shape of a short certificate to the judge.
SEC. 27. . . . In case a dividend is ordered, the register shall, within ten days after such meeting, prepare a list of creditors entitled to dividend, and shall calculate and set opposite to the name of each creditor who has proved his claim the dividend to which he is entitled out of the net proceeds of the estate set apart for dividend, and shall forward by mail to every creditor a statement of the dividend to which he is entitled, and such creditor shall be paid by the assignee in such manner as the court may direct.]
Duties of referees.-These are set forth in General Orders XII. They should keep an account of their expenses and make return of the same to the judge under oath on the first Tuesday in each month. (Orders XXVI.) The register's duty in countersigning checks is judicial and not ministerial in its character. (In re Clark, 9 N. B. R. 67; Fed. Cas. 2810.) Duties with reference to schedule.- See DUTIES OF BANKRUPT, sec. 7, ante, p. 88.
To give notice.- See NOTICES, sec. 58, post. An assignee was not summoned, but appeared before the register in proceedings by the assignee. The court held that there was no ground of objection (In re Campbell, 17 N. B. R. 4; 3 Hughes, 276; Fed. Cas. 2348); and the register should see that the assignee gives the creditors notice of proceedings touching the auditing and settlement of the assignee's accounts, and distribution under them. (In re Bushey, 3 N. B. R. 167; 27 Leg. Int. 111; Fed. Cas. 2227.) When a bankrupt amends schedule so as to include additional creditor for a considerable amount, it is not necessary to notify the creditors already named in such schedules before the amendment can take place, if assignee had been chosen. (In re Carson, 5 N. B. R. 290; 5 Ben. 277; Fed. Cas. 2460.)
To prepare records and certify, etc.- A register to whom depositions for proof of debt have been transmitted by another register is not bound to file the same, if they do not appear to be in conformity with
the law. (In re Loder, 3 N. B. R. 162; 4 Ben. 125; Fed. Cas. 3456.) A register has the right to refuse to suspend examination until questions certified by him are decided (In re Tifft, 17 N. B. R. 550; Fed. Cas. 14030); but he must report the testimony, if required (In re Koch, 1 N. B. R. 153; 1 Amer. Law T. Rep. Bankr. 121; 15 Pittsb. Leg. J. 531; Fed. Cas. 7916); and only a party to the proceedings can take the opinion of the judge on a certificate of the register on a matter arising in the course of such proceedings (In re Fredenburg, 1 N. B. R. 34; 2 Ben. 133; Fed. Cas. 5075); and upon the examination of bankrupt, when it was offered to be shown that a certain debt was fraudulently contracted, and the matter certified to court, it was held that the register should report all testimony required. (In re Koch, 1 N. B. R. 153; 1 Amer. Law T. Rep. Bankr. 121; 15 Pittsb. Leg. J. 531; Fed. Cas. 7916.) Where written objections are filed to a proof of debt with the register, he is required to certify the same to the court upon request of either party. (In re Clark et al., 6 N. B. R. 202; Fed. Cas. 2808.)
When a creditor objects to the postponement of his claim he should have the objection entered and the question certified at once. (In re Jackson et al., 14 N. B. R. 449; 7 Biss. 280; Fed. Cas. 7123.)
A court will not refuse to entertain a question as to charges of regis ter, upon a certificate of the register, especially where no objection is made by the parties. (In re Sherwood, 1 N. B. R. 74; 25 Leg. Int. 76; 1 Amer. Law T. Rep. Bankr. 47; 6 Phila. 461; Fed. Cas. 12774.)
Hypothetical questions. A question in order to be certified to the judge must arise in the course of proceedings before register and be tween parties having the right to raise it. (In re Wright, 1 N. B. R. 91; Fed. Cas. 18069.) But upon certification of a question to the court, it refused to pass upon the same, holding that it had not arisen "during the proceedings before the register," or in the course of such proceedings" (In re Wright, 1 N. B. R. 91; Fed. Cas. 18069); and neither court nor register can be the adviser of assignees as to their acts. (In re Sturgeon, 1 N. B. R. 131;2 Amer. Law T. Rep. Bankr. 7; Fed. Cas. 13564) A judge may decline to answer questions certified by a register which are not "points arising in the course of the proceedings before the register." (In re Bray, 2 N. B. R. 53; 1 Chi. Leg. News, 30; Fed. Cas. 1818.)
Generally. It is the duty of a register to exercise a sound discretion in regard to estates in bankruptcy, that all insurable property shall be insured and cared for in every respect. (In re Carow, 4 N. B. R. 178; 41 How. Pr. 112; Fed. Cas. 2426.)
b. Referees shall not (1) act in cases in which they are directly or indirectly interested; (2) practice as attorneys and counselors at law in any bankruptcy proceedings; or (3) purchase, directly or indirectly, any property of an estate in bankruptcy.
That he will not, during
[Act of 1867. SEC. 3. 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.
SEC. 4. . . . .. No register shall be of counsel or attor ney, either in or out of court, in any suit or matter pending in bankruptcy in either the circuit or district court of his district, nor in an appeal therefrom, nor shall he be executor, administrator, guardian, commissioner, appraiser, divider, or assignee of or upon any estate within the jurisdiction of either of said courts of bankruptcy, nor be interested in the fees or emoluments arising from either of said trusts.]
A person violating these provisions is liable to a fine of $500 and a forfeiture of his office. (Sec. 29, c.)
Sec. 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.
[Act of 1867. SEC. 4. The fee of said registers, as established by this act, and by the general rules and orders required to be framed under it, shall be paid to them by the parties for whom the services may be rendered in the course of proceedings authorized by this act.
SEC. 5. That the judge of the district court may direct a register to attend at any place within the district for the purpose of hearing such voluntary applications under this act as may not be opposed, of attending any meeting of creditors, or receiving any proofs of debts, and, generally, for the prosecution of any bankruptcy or other proceedings under this act; and the travelling and incidental expenses of such register, and of any clerk or other officer attending him, incurred in so acting, shall be set[lled] by said court in accordance with the rules prescribed under the tenth section