estate and his accounts, though the order is not of course.1 A creditor who has proved, or offered to prove, his debt may be examined concerning it by the assignees, or by any other creditor, or by the bankrupt.2 But if a creditor has no security, and does not intend to prove his debt, there is no occasion or authority to examine him about it. If he has security, the assignees have a right to ascertain its validity and amount with a view to their own action in redeeming or contesting it; and he is bound to produce his mortgage deed, or the papers on which he has a lien, though the purpose of the examination may be to contest his claim.1 § 149. Who may examine. A creditor, or the assignees as representatives of the creditors, may have an order for examination of any one who is subject to be examined.5 "Creditor" means one who has taken proper steps to have his debt admitted to proof; and an objection to his debt should not avail to exclude him from this right, unless it is probable that he has no debt at all, for its amount is quite immaterial. One who is interested as a contributory to the debts of a corporation may examine creditors offering proofs, because the, amount of his liability depends upon the total amount of the debts. The bankrupt is in like manner interested to diminish the amount of his liabilities, in case he should not obtain his discharge, or where that or the amount of his allowance may depend upon the rate of dividend, or the assent of creditors, or where the statute makes him responsible for permitting false debts to be 1 Ex parte Perryer, 1 M. D. & De G. 276; Ex parte Lawrence, 1 De G. J. & S. 307; Ex parte Crossley, L. R. 13 Eq. 409; Re Smith, 14 N. B. R. 432, Fed. Cas. No. 12,988. So a receiver appointed by a State court. Re Hulst, 7 Ben. 40, Fed. Cas. No. 6864. 2 Act of 1867 § 22; 14 Stat. 527; R. S. § 5081. [In England a petitioning creditor must be present at the hearing and submit to cross-examination. Re Purrett, 2 Manson, 403.] 22. Re Accid., etc. Co., L. R. 5 Eq. 4 2 Christian, 2d ed., 110; Ex parte Caldecott, Mont. 55; Ex parte Herbert, 13 Ves. 183, 189. See the discussion in Ex parte Trueman, 1 Dea. & Ch. 464. 5 Ex parte Lawrence, 6 L. T. N. s. 559; Re Ray, 2 Ben. 53, Fed. Cas. No. 11,589; Chamberlain v. Hall, 3 Gray, 250; Act of 1898, § 21 a. See Re Belden, 4 Ben. 225, Fed. Cas. No. 1238. [A creditor who has not proved cannot examine. Madison v. Piper, 53 Pac. Rep. 395 (Idaho).] 7 Lindley, Companies, 5th ed., p. 689. proved, and he may, therefore, examine creditors in these cases.1 It will be illegal for the assignees to agree not to examine a bankrupt, though in consideration of a sum of money to be added to the assets, unless the sum were enough to pay all the debts. For any one else to accept money for such a purpose would be not only illegal, but fraudulent. 3 § 150. Whether the Bankrupt can examine his Assignees. Whether the bankrupt has a right to examine his assignees concerning their settlement of the estate is more doubtful. Several of the statutes required the assignees to account to the bankrupt, and to pay him the surplus of the estate; but they appear to have been somewhat narrowly interpreted as meaning that they must account to him if there was or ought to have been a surplus. On principle, the bankrupt should have this right, subject to the direction of the court, because he has an interest to increase his assets as well as to diminish his liabilities. § 151. The Proceeding is judicial; Privilege from Arrest. The examination is a judicial proceeding, and all parties and witnesses are protected from arrest upon civil process in going to, staying at, and returning from it, as in other courts. This is a right at common law beside and beyond the protection given to the bankrupt by the statute, and shields him from arrest, at the suit of the crown, or upon an outlawry, or for an attachment for not paying money into court.5 The husband of a witness attending with her has been held to be within the 1 Act of 1867, § 22; 14 Stat. 527; R. S. § 5081 [but see Re Beall (1894), 2 Q. B. 135]. 2 Nerot v. Wallace, 3 T. R. 17. 5 Ex parte Parker, 3 Ves. 554 Arding v. Flower, 8 T. R. 534; Ex parte King, 7 Ves. 312; Ex parte Jackson, 15 Ves. 116; Ex parte Russell, 19 Ves. 163; 3 13 Eliz., c. 7, § 4; 1 Jac. I., c. 15, List's Case, 2 Ves. & B. 373; Ex parte § 15; 6 Geo. IV., c. 16, § 132. * Ex parte Ryley, 4 Dea. & Ch. 50; Ex parte Dinsdale, 4 De G. M. & G. 873; Ex parte Newhouse, 1 M. D. & De G. 508; Ex parte Malachy, ib. 353; Ex parte Tarleton, 2 M. D. & De G. 189; Ex parte Lomas, 3 Dea. & Ch. 681; Ex parte Bayley, Mont. 208; Ex parte Austin, 4 Ch. D. 13. Clarke, 2 Dea. & Ch. 99; Ex parte Burt, Matthews v. Tufts, 87 privilege; so is the attorney or solicitor of a party or witness.2 There is no protection from arrest upon a criminal proceeding,3 though it take the form of a fine (which, perhaps, might be provable). An arrest of the person privileged is a contempt, for which the party, his attorney, and the officer, if duly warned, are liable. The application for release is more properly made to the court of bankruptcy, though any other, such as the Circuit Court, having jurisdiction to issue the writ of habeas corpus, may be applied to. It is not an ex parte application, but notice should be given to the plaintiff in the action, and, if he fails to appear, to the officer, in order that the party may have a day in court, and show cause against the release, and thus be bound by the order.? As a judicial proceeding, the publication of the examination cannot be libellous; and a warrant for not appearing will not subject the party moving for it to an action for false imprisonment; when the commissioners were only like magistrates, they were protected while acting within the limits of their authority, though their judgment should be erroneous.9 § 152. Order for Examination and Service thereof. - The order for an examination is always made ex parte; 10 it may be made by the register, and be served by any one; but the service should be personal. One examination of the bankrupt 1 Ex parte Britten, 1 M. D. & De G. 278. 7 Ex parte Byne, 1 V. & B. 316. 8 Ryalls v. Leader, L. R. 1 Ex. 296; 2 Gascoygne's Case, 14 Ves. 183; Cooper v. Harding, 7 Q. B. 928. Castle's Case, 16 Ves. 412. 3 Ex parte Jayes, 3 Dea. & Ch. 764. 4 Bancroft v. Mitchell, L. R. 2 Q. B. 549. 6 Ex parte King, 7 Ves. 312. 6 In some of the English cases the courts of common law have refused to entertain the application; but I understand the better opinion to be as stated in the text. Arding v. Flower, 8 T. R. 534, modifying Kinder v. Williams, 4 T. R. 377. See List's Case, 2 V. & B. 373; Plomer v. McDonough, 1 De G. & Sm. 232; Walker v. Webb, 3 Anst. 941. 9 Doswell v. Impey, 1 B. & C. 163. 10 Re English J. S. Bank, L. R. 3 Eq. 203; Re Smith, L. R. 4 Ch. 421; Fricker's Case, L. R. 13 Eq. 178; Re McIntire, 1 Ben. 277, Fed. Cas. No. 8821; Re Frisbie, 13 N. B. R. 349, Fed. Cas. No. 5131. An order should always be entered according to form 45. Re Lanier, 2 N. B. R. 154, Fed. Cas. No. 8070; Re Brant, 2 N. B. R. 215, Fed. Cas. No. 1812; Re McIntire, 1 Ben. 277, Fed. Cas. No. 8821. 11 Re Brant, 2 N. B. R. 215, Fed. Cas. No. 1812; Re Vetterlein, 4 N. B. R. 599, Fed. Cas. No. 16,926; Re Pioneer will be ordered, as of course, upon oral or written application, seasonably made. In England, the assignees' application need not be under oath, while that of a creditor must be. There is power to order several examinations, but the court will exercise it cautiously to avoid vexation and oppression, and will always require cause to be shown for a second or third order, or for one which is applied for after the time for discharge has arrived; where, by accident, an examination is left incomplete, a new order will be granted; and where there is any miscarriage, it should be corrected at the time; it will not be a reason for refusing the discharge that questions were left unanswered, or that any irregularity has occurred which might have been thus corrected. The service of the summons should be personal, giving a reasonable time for obeying it; and if the bankrupt or other witness fail to appear, or refuse to be sworn, or to answer lawful questions, or to sign the deposition, he may be committed by the judge, not by the register.9 Where there is an honest refusal to answer a question, there would be no actual contempt, and the judge would decide the point upon a rule to show cause; or the register may certify the question to the judge, like other questions of law; this is Paper Co., 7 N. B. R. 250, Fed. 1 Kimball v. Morris, 2 Met. 573; Re Gilbert, 1 Lowell, 340, Fed. Cas. No. 5410; Re Solis, 4 Ben. 143, Fed. Cas. No. 13,165, explaining some earlier cases in the same court; Re Mc Brien, 2 Ben. 513, Fed. Cas. No. 8665. 2 32 & 33 Vict., c. 71, § 96, rule 171. The distinction has sometimes been made in this country, though there appears no very good ground for it. Re Adams, 2 Ben. 503, Fed. Cas. No. 39. But this case was afterwards said to mean that the register had discretion to require an oath. Re Solis, 4 Ben. 143, Fed. Cas. No. 13,165. 3 Re Gilbert, 1 Lowell, 340, Fed. Cas. No. 5410; Re Frisbie, 13 N. B. R. 349, Fed. Cas. No. 5131; Re Isidor, 2 Ben. 123, Fed. Cas. No. 7105. 4 Re Van Tuyl, 2 N. B. R. 70, Fed. Cas. No. 16.881. See Re Robinson, 2 N. B. R. 516, Fed. Cas. No. 11,942. 5 Blanchard v. Young, 11 Cush. 341; Re Littlefield, 1 Lowell, 331, Fed. Cas. No. 8398. 6 Because a substituted service will not be good foundation for an attachment. Re Sandys, 3 Dea. & Ch. 34. 7 Groocock v. Cooper, 8 B. & C. 211. 8 Ex parte Clifton, 7 Morrell, 59; Re Batson, 1 Manson, 45; Act of 1867, §7; 14 Stat. 520; R. S. §§ 5005, 5006; Act of 1898, § 41 b. 9 Act of 1867, §§ 4, 5; 14 Stat. 519; R. S. §§ 4999, 5002. usually done at the close of the examination, when all points of this kind may be heard together.1 § 153. Production of Books and Papers. The witness must produce such books and documents as he is ordered to produce, and must permit their inspection if they contain entries bearing upon the examination, and must inspect such records as are within his power, to enable him to answer fully. He is not in contempt for refusing to read an entry in a book needing no explanation, because the register and parties can read it for themselves. If there is an objection to the regularity of the service, or other matter, which goes to the whole examination, the witness may refuse to be sworn. But, generally speaking, the witness is not to assume that he can give no information, or that illegal questions will be put; and he must be sworn, and wait until some such occasion arises before making objection.5 § 154. Mode of Examination. The examination is to be in writing, which means that it is to be written down by the register or a clerk. It is not to be by interrogatories filed or 1 It has been held that a witness is not a "party" within § 5110, which requires the register to certify every point raised by a party to the proceedings, but that the opinion may be taken by consent under § 5111. See Re Fredenburg, 2 Ben. 133, F. Cas. No. 5075; Re Comstock, 13 N. B. R. 193, Fed. Cas. No. 3080; Re Patterson, 1 Ben. 508, Fed. Cas. No. 10,815; Re Levy, 1 Ben. 496, Fed. Cas. No. 8296. I submit that a person under examination is a party in the strict sense. It would be very in convenient to have every disputed question certified separately, and the practice is for the register to rule for the time being, though he cannot compel obedience; and if at the end any questions remain unanswered which the examining creditor or assignee still insists ought to be answered, they may be referred to the court, whichever way the register may have ruled upon them. Under this practice it is of no great importance whether the witness is called a party or not, as he maintains his rights by refus ing to answer, and the other party must always bring up the question. 2 Ex parte Trueman, 1 Dea. & Ch. 464; Stone's Case, 3 De G. & S. 120; Re Earle, 3 N. B. R. 304, Fed. Cas. No. 4244; Re Burgoyne, 8 Morrell, 139. See Re Higgs, 66 L. T. 296. 3 Isaac v. Impey, 10 B. & C. 442. 4 Re Dole, 11 Blatch. 499, Fed. Cas. No. 3964. 6 Ex parte Meymot, 1 Atk. 196; Nobes v. Mountain, 7 Moore, 39; Ex parte Bunn, 3 Jur. N. s. 1013; Re Woodward, 3 N. B. R. 719, Fed. Cas. No. 17,999; Church v. Choate, 9 Allen, 573; Swan's Case, L. R. 10 Eq. 675; Re Smith, L. R. 4 Ch. 421; Fricker's Case, L. R. 13 Eq. 178. 6 Act of 1867, §§ 5, 26; R. S. §§ 5004, 5086, 5087, rule 12; Re Bromley, 3 N. B. R. 686; Re Tanner, 1 Lowell, 215, Fed. Cas. No. 13,745. See infra, § 484. |