not be required to be recorded at large, but shall be carefully filed, kept, and numbered in the office of the clerk of the court, and a docket only, or short memorandum thereof, kept in books to be provided for that purpose, which shall be open to public inspection.]

Papers which have been exhibited to the court become a part of the depositions, and cannot be withdrawn and a copy substituted therefor, except upon the application of a party who can show a proper use. (In re McNair, 2 N. B. R. 109; Fed. Cas. 8908.)

Sec. 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.

[Act of 1867. SEC. 5. Such register shall be subject to removal by the judge of the district court, and all vacancies occurring by such removal, or by resignation, change of residence, death or disability, shall be promptly filled by other fit persons, unless said court shall deem the continuance of the particular office unnecessary.]

The judge may, at any time, for the convenience of parties or for cause, transfer a case from one referee to another (sec. 22, b), and when so transferred the judge determines the proportion in which the fee and commissions are to be divided (sec. 40, b), or, in case the reference of a case is revoked, he determines what part of the fee and commissions shall be paid to the referee. (Sec. 40, c.)

Sec. 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.

[Act of 1867. SEC. 13. And be it further enacted, That the creditors shall, at the first meeting held after due notice from the messenger, in presence of a register designated by the

court, choose one or more assignees of the estate of the debtor; the choice to be made by the greater part in value and in number of the creditors who have proved their debt. If no choice is made by the creditors at said meeting, the judge, or if there be no opposing interest, the register, shall appoint one or more assignees. If an assignee, so chosen or appointed, fails within five days to express in writing his acceptance of the trust, the judge or register may fill the vacancy. All elections or appointments of assignees shall be subject to the approval of the judge; and when in his judgment it is for any cause needful or expedient, he may appoint additional assignees, or order a new election.

SEO. 18. .

vacancies caused by death or otherwise in the office of assignee may be filled by appointment of the court, or at his discretion by an election by the creditors, in the manner herein before provided, at a regular meeting, etc.]

The direct and responsible representative of the bankrupt is the trustee (termed "assignee" in the prior law), in whom is vested the title of the estate (sec. 70), and who is charged with its care. (Sec. 47.) Under this section there must be one or three trustees, and in the event the latter number is appointed, the concurrence of at least two is necessary to the validity of their every act concerning the administration of the estate. (Sec. 47, b.)

The first meeting of the creditors at which the trustee must be appointed should be held not less than ten days nor more than thirty days after the adjudication in bankruptcy. (Sec. 55, a.) Pursuant to the recommendation of creditors, or when they neglect to recommend the appointment of trustees, courts of bankruptcy must appoint the trustees, and, upon complaint of creditors, remove trustees for cause upon hearings and after notice. (Sec. 2-17.) It is the duty of the referee to notify the trustee of his appointment. (Orders XVI.)

The rules of the Supreme Court provide that no official trustee shall be appointed by the court, nor any general trustee to act in classes of cases (Orders XIV), and also that the appointment of a trustee by creditors shall be subject to the approval or disapproval of the referee or judge. (Orders XIII.) If the schedule of a voluntary bankrupt discloses no assets, and if no creditor appears at the first meeting, no trustee need be appointed. (Orders XV.)

Who may not vote for trustee.- Creditors inhibited from proving their debts will be excluded from voting for assignee (In re Stevens, 4 N. B. R. 122; 4 Ben. 513; Fed. Cas. 13391); and a secured creditor who sold his lien, bid it in himself, and proved his claim for the difference between the face and the amount bid at the sale, and then voted for assignee, had no right to vote. (in re Hunt, 17 N. B. R. 205; 35 Leg. Int. 71; Fed. Cas. 6881.)

Who may vote.-When, at first meeting of creditors, but one proves his debt, he has the right to choose the assignee (In re Haynes, 2 N. B. R. 78; 1 Gaz. 78; Fed. Cas. 6269); and creditors of the firm only can participate in the election of assignees for copartners. (In re Scheiffer et al., 2 N. B. R. 179; 1 Chi. Leg. News, 261; Fed. Cas. 12445.)

Right to vote - Coercion.-The assignee is the agent, attorney and representative of the creditors. The creditors have no power to act except to vote on assignee and on dividends (In re Campbell et al., 17 N. B. R. 4; 3 Hughes, 276; Fed. Cas. 2348); and as a rule, the register should demand the same proof, before admitting vote for assignee, as is requisite in a trial. Exceptional cases, if free from suspicion, might authorize a deviation (In re Northern Iron Co., 14 N. B. R. 356; Fed. Cas. 10322); and the court will not set aside an election of assignee on account of any irregularity in a claim, when its exclusion would not affect result (In re Jackson et al., 14 N. B. R. 449; 7 Biss. 280; Fed. Cas. 7123); but an election persuaded by importunity of the proposed assignee exercised upon creditors will not be approved (In re ——, a Bankrupt, 2 N. B. R. 100); and any attempt of a register to influence the choice of an assignee is improper. (In re Smith, 1 N. B. R. 25; 2 Ben. 113; Fed. Cas. 12971.) Where a person, to secure his election as assignee, agreed with two of his creditors that he would pay their claims in full if they would give him their powers of attorney, the court disregarded his election. (In re Haas, 8 N. B. R. 189; Fed. Cas. 5884.)

Where creditors adopt a resolution appointing trustees, the confirmation of which is contested, the persons desiring the confirmation are moving parties and should file such papers as they see fit in support of motion. (In re American Waterproof Cloth Co., 3 N. B. R. 74; 1 Ben. 526; Fed. Cas. 318.)

First meeting of creditors.-The right of creditors to chose assignees at first meeting cannot be denied, but after assignee has been appointed he may, at a subsequent meeting, be removed and trustees appointed (In re Jones, 2 N. B. R. 20; Fed. Cas. 7447), and the vote for assignee should be taken at the earliest moment; and it was held that if proofs of claims are postponed by the register, such creditors are not entitled to vote. They may, however, have the proceedings certified to the court, and if erroneous the court will set aside and refer the matter back for a new vote, unless it appear the vote of the complaining creditor would not change the result (In re Lake Superior Ship Canal, Railroad and Iron Co., 7 N. B. R. 376; Fed. Cas. 7997); but where an adjudication has been made and a warrant has issued for the first meeting, and said petition is still pending without any discontinuance, and the bankrupt files a second petition in which the same debts are named, the choice of an assignee will not be made in the second proceeding. (In re Wielarske, 4 N. B. R. 130; 4 Ben. 468; Fed. Cas. 17619.)

Additional assignees.- An additional assignee may be appointed upon petition to the court showing sufficient reasons (In re Overton, 5 N. B. R.

366; Fed. Cas. 10625); and a resolution of creditors of the bankrupt committing his estate to a trustee and nominating a committee of two members, one of whom is the trustee, to supervise, will not be approved. (In re Stillwell, 2 N. B. R. 164; Fed. Cas. 13447.) The attorney for the creditors may be chosen assignee by the creditors if not otherwise objectionable. (In re Clairmont, 1 N. B. R. 42; 1 Lowell, 230; Fed. Cas. 2781; In re Lawson, 2 N. B. R. 44; Fed. Cas. 8150.) Assignees in bankruptcy are public officers whose appointment under the act of 1867 was required to be approved by the judge of the district court. (Morris et al. v. Swartz, 10 N. B. R. 305.)

Sec. 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.

[Act of 1867. SEC. 18. No person who has received any preference contrary to the provisions of this act shall vote for or be eligible as assignee..

It would appear from this that the trustee need not reside or have his office in the bankruptcy district, provided it is within the judicial district of which his bankruptcy district is a part, which provision also applies to the office of a corporation. It is essential, however, that there should be a residence or some office in the judicial district for which appointed.

Qualifications of trustee.- An assignee must reside in the district in which the proceedings are being carried on (In re Havens, 1 N. B. R. 126; Fed. Cas. 6231); and it has been held that a person residing without, but having fixed place of business within, the jurisdiction of the bankruptcy court, may be appointed an assignee. (In re Loder, 2 N. B. R. 161; 2 Amer. Law T. Rep. Bankr. 87; Fed. Cas. 8459.)

Kinship. The mere fact of relationship on the part of a proposed trustee to the bankrupt or to a creditor cannot be regarded as a disqualification (In re Zinn et al., 4 N. B. R. 145; 43 How. Pr. 64; 4 Ben. 500; Fed. Cas. 18215); but it has been held that a relative of a bankrupt is ineligible as assignee (In re Powell, 2 N. B. R. 17; Fed. Cas. 11354; In re Zinn et al., 4 N. B. R. 123; 40 How. Pr. 461; Fed. Cas. 18216); also that a son of one of a bankrupt firm, who, together with other members of bankrupt's family, presented claims against the estate, is not a proper person. (In re Bogert et al., 3 N. B. R. 161; Fed. Cas. 1600.)

The same person cannot at the same time be receiver under the state law and assignee appointed by the bankrupt court (In re Stuyvesant Bank, 6 N. B. R. 272; 5 Ben. 566; Fed. Cas. 13581); but an attorney for creditors may be appointed assignee of bankrupt's estate. (In re Barrett, 2 N. B. R. 165; 2 Hughes, 44; 1 Chi. Leg. News, 202; 2 Amer. Law T. Rep. 182; 11 Int. Rev. Rec. 21; 1 Amer. Law T. Rep. Bankr. 144; Fed. Cas. 1043; In re Clairmont, 1 N. B. R. 42; 1 Lowell, 230; 1 Amer. Law T. Rep. Bankr. 6; Fed. Cas. 2781.) A director of a bank for the benefit of which the bankrupt had confessed judgment should not be chosen (In re Powell, 2 N. B. R. 17; Fed. Cas. 11354); and the election of one as assignee who was for years the bankrupt's bookkeeper, and who voted under powers of attorney from different creditors, has been set aside. (In re Wetmore et al., 16 N. B. R. 514; Fed. Cas. 17466.).

Sec. 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.

[Act of 1867. SEC. 14. and no suit in which the assignee is a party shall be abated by his death or removal from office; but the same may be prosecuted and defended by his successor, or by the surviving or remaining assignee, as the case may be.

SEC. 15. No suit pending in the name of the assignee shall be abated by his death or removal; but upon the motion of the surviving or remaining or new assignee, as the case may be, he shall be admitted to prosecute the suit in like manner and with like effect as if it had been originally commenced by him.

SEC. 18. That the court, after due notice and hearing, may remove an assignee for any cause which, in the judgment of the court, renders such removal necessary or expedient. At a meeting called by order of the court in its discretion for the purpose, or which shall be called upon the application of a majority of the creditors in number and value, the creditors may, with consent of [the] court, remove any assignee by such a vote as is herein before provided for the choice of assignee. An assignee may, with the consent of the judge, resign his trust and be discharged therefrom. Vacancies caused by death or otherwise in the office