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given by him shall be offered in evidence against him in any criminal proceeding.
Provided, however, That he shall not be required to attend a meeting of his creditors, or at or for an examination at a place more than one hundred and fifty miles distant from his home or principal place of business, or to examine claims except when presented to him, unless ordered by the court, or a judge thereof, for cause shown, and the bankrupt shall be paid his actual expenses from the estate when examined or required to attend at any place other than the city, town, or village of his residence.
[Act of 1867. SEC. 11 makes provision for the schedule of property.
SEC. 14. . The debtor shall also, at the request of the assignee and at the expense of the estate, make and execute any instruments, deeds, and writings which may be proper to enable the assignee to possess himself fully of all the assets of the bankrupt.
SEC. 26. . . . and he shall execute all proper writings and instruments, and do and perform all acts required by the court touching the assigned property or estate, and to enable the assignee to demand, recover, and receive all the property and estate assigned, wherever situated; and for neglect or refusal to obey any order of the court, such bankrupt may be committed and punished as for a contempt of court. [Provision is here made for bankrupt's absence.] He shall also be at liberty, from time to time, upon oath to amend and correct his schedule of creditors and property, so that the same shall conform to the facts. For good cause shown, the wife of any bankrupt may be required to attend before the court, to the end that she may be examined as a witness; and if such wife do not attend at the time and place specified in the order, the bankrupt shall not be entitled to a discharge unless he shall prove to the satisfaction of the court that he was unable to procure the attendance of his wife. . . The order of adjudication of bankruptcy, shall require the bankrupt forthwith, or within such number of days, not exceeding five after the date of the order or notice thereof, as shall by the order be prescribed, to make and deliver, or transmit by mail, post-paid, to the messenger, a schedule of the creditors and an inventory of his estate in the form and verified in the manner required of a petitioning debtor by section thirteen.]
Attendance of bankrupt at meetings.- A bankrupt cannot be proceeded against for contempt when, owing to sickness, he is unable to attend a meeting as required by the register. (In re Carpenter, 1 N. B. R. 51; Fed. Cas. 2427.) Where, in proceedings against him, on the day of hearing he neither enters appearance nor denies by answer the allegations of the petition, he may be ordered to state in writing the number of his creditors and the amount due them, and a request for jury trial to determine the fact of bankruptcy and for leave to file an answer may be denied. (Clinton et al. v. Mayo, 12 N. B. R. 39; Fed. Cas. 2899.) The creditors are to decide on the sufficiency of the excuse for the debtor's absence from their meeting, and the court will not disturb such decision without good cause shown. (In re Wronkow et al., 18 N. B. R. 81; 26 Pittsb. Leg. T. 2; Fed. Cas. 18105.) He must appear in person or by representative at the creditors' meeting in composition, and submit the required statement, but is not bound to appear at the hearing to submit any statement. (In re Scott et al., 15 N. B. R. 73; 4 Cent. Law J. 29; Fed. Cas. 12519.) See also MEETINGS OF CREDITORS, Sec. 55.
Compliance with orders.-The court may order a bankrupt to pay over the proceeds received from the sale of notes sold just previous to the serving of an injunction upon him (In re Mempner, 6 N. B. R. 521; Fed. Cas. 7689); and if it appears that he has not surrendered any portion of his property which he should have, he may be ordered to do so, and upon failure he may be punished for contempt. (In re Salkey et al., 11 N. B. R. 423; 6 Biss. 269; 7 Chi. Leg. News, 178; Fed. Cas. 12253.) He will not be permitted to pay money which he has collected and which belongs to the estate for interest on mortgages, unless it appear that such payment is for the benefit of the estate. (In re Ettinger, 18 N. B. R. 222; Fed. Cas. 4543.) Upon being adjudicated a voluntary bankrupt, he must surrender all the assets, notwithstanding there may be a pros pect of settlement with the creditors. (In re Shafer et al., 2 N. B. R. 178; 1 Chi. Leg. News, 326; Fed. Cas. 12694.)
The schedule.-Unless there was a design to conceal the property, where it has been transferred, an omission to place it in the schedule is no ground for refusal of discharge. (In re Smith, 13 N. B. R. 256; 1 Woods, 478; Fed. Cas. 12995.) It has been held that the following should be included in the schedule: The interest of an individual member of a firm in a partnership (In re Brick, 19 N. B. R. 508); property conveyed in fraud of the creditors of grantor (In re O'Bannon, 2 N. B. R. 6; Fed. Cas. 10394); growing and ungathered crops, as personal property (In re Schumpert, 8 N. B. R. 415; Fed. Cas. 12491); a judgment in favor of a bankrupt. (In re Sallee, 2 N. B. R. 78; 2 Amer. Law T. Rep. Bankr. 7; Fed. Cas. 12256.) The retention of possession of chattels by a vendor after the sale thereof is conclusive evidence of fraud as against creditors, and the failure to include such property in his schedule at the time of filing the petition in bankruptcy, or to otherwise dis
close his interest therein, is concealment thereof, and ground for with. holding discharge. (In re Hussman, 2 N. B. R. 140; 2 Amer. Law T. Rep. Bankr. 53; 1 Chi. Leg. News, 177; Fed. Cas. 6951.)
A bankrupt who has not made a complete disclosure of his assets cannot require that creditors opposing the discharge specify objections, or abide by specifications which they may have filed. (In re Long, 3 N. B. R. 66; 7 Phila. 578; 26 Leg. Int. 349; Fed. Cas. 8477.) Where real estate held by partners as tenants in common is classified in the schedule as partnership assets, such classification will not convert the separate property of the individual partners into firm property in derogation of the rights of separate creditors. (In re Zug, 16 N. B. R. 280; 23 Int. Rev. Rec. 392; 34 Leg. Int. 402; 25 Pittsb. Leg. J. 29; Fed. Cas. 18222.) The refusal or neglect of an involuntary bankrupt to pay to the assignee a sum returned in his inventory as "cash on hand" constitutes contempt. (In re Dresser, 3 N. B. R. 138; Fed. Cas. 4077.) Where a bankrupt has failed to put property in his schedule, the right of the assignee to recover it is not barred by discharge granted before discovery. (Maybin v. Raymond, Ass., 15 N. B. R. 353; 4 Amer. Law T. Rep. (N. S.) 21; Fed. Cas. 9338.)
The wilful and fraudulent omission by a bankrupt from his inventory of a portion of his assets may be cause for prosecution, but it is not an infamous crime as the term is used at common law and in the fifth amendment to the constitution. (United States v. Block, 15 N. B. R. 325; 4 Sawy. 211; 9 Chi. Leg. News, 234; Fed. Cas. 14609.) Where it appeared that after a conveyance of property, and before the filing of the petition in bankruptcy, a receiver had been appointed by the state court, it was held that whatever title the bankrupt had in the property, after the conveyance, had vested in the receiver, and there was no false swearing by reason of its not having been inserted in the schedule. (In re Freeman, 4 N. B. R. 17; Fed. Cas. 5082.) It has been held that the following need not be included in the schedule: The gift by a bankrupt to his wife, before adjudication and not in contemplation of insolvency, of funds which were used in improving the separate estate of the wife, and which does not vest in him such an interest as would pass to his assignee (In re Wyatt, 2 N. B. R. 84; 1 Chi. Leg. News, 107; Fed. Cas. 18106); where a husband's equitable interest in the wife's estate has been levied upon and sold under execution (In re Hummitsh, 2 N. B. R. 3; In re Pomeroy, ibid.; 15 Pittsb. Leg. J. (O. S.) 494; Fed. Cas. 6866); the right of a bankrupt to one-half of the net profits of business of another conducted in his own name. (In re Beardsley, 1 N. B. R. 121; 1 Amer. Law T. Rep. Bankr. 94; Fed. Cas. 1184.)
Amendment of the schedule. A register has power to allow a bankrupt to amend his schedule on his ex parte application without notice, and no creditor has a right to oppose such application. (In re Watts, 2 N. B. R. 145; 3 Ben. 166; 2 Amer. Law T. Rep. Bankr. 74; Fed. Cas. 17293.)
Material mistakes, as the entire omission of a debt or the name of a creditor, may be corrected. (Beebe v. Pyle, 18 N. B. R. 162; In re Heller, 5 N. B. R. 46; 41 How. Pr. 213; Fed. Cas. 6339.) Amendment of the schedule will be permitted where the debtor had been adjudicated a bankrupt and the warrant issued for the first meeting of creditors, and it is shown by affidavits that the names of certain creditors had been omitted; but the marshal will be required to issue a new warrant. (In re Perry, 1 N. B. R. 2; 1 Amer. Law T. Rep. Bankr. 4; Fed. Cas. 10998.) Material additions to the schedule of debts or of property are not allowable by way of amendment after the first meeting of creditors, except upon such conditions as may prevent injustice. In case of amendment the issuing of an alias warrant will be required. (In re Ratcliffe, 1 N. B. R. 98; 25 Leg. Int. 92; 6 Phila. 466; 1 Amer. Law T. Rep. Bankr. 47; 15 Pittsb. Leg. J. 343; Fed. Cas. 11578.) The register has power to allow an amendment of his schedule by the bankrupt to include additional property, but creditors are not thereby precluded from opposing the discharge on the ground of such omission. (In re Watts, 2 N. R. R. 145; 3 Ben. 166; 2 Amer. Law T. Rep. Bankr. 74; Fed. Cas. 17293.) Where a bankrupt sought to amend his schedule by adding twenty other debts, the court held that there had been culpable laxity, and refused to allow the amendment except upon such terms, to be reported by the register, as would prevent injustice to creditors. (In re Morgenthal, 1 N. B. R. 98; 28 Leg. Int. 92; 6 Phila. 468; Fed. Cas. 9813.) A bankrupt may, even after consideration of specifications in opposition to discharge, amend his schedule, by order of the court. (In re Preston, 3 N. B. R. 27; Fed. Cas. 11392.) A discharge will not be granted when the bankrupt has omitted from his schedule of assets an estate in expectancy under a will, but leave will be granted to amend. (In re Connell, Jr., 3 N. B. R. 113; Fed. Cas. 3110.)
False swearing in the schedule.- It must appear that the bankrupt knew the claim was false in order to bar a discharge on the ground that he swore falsely in the affidavit accompanying his schedule that he was indebted to the creditors named therein, or that he did not disclose to the assignee that the claim was false and fictitious. (In re Blumenthal, 18 N. B. R. 555; Fed. Cas. 1576.) If a bankrupt put into his schedule, as due, a debt which is false, it will prevent his obtaining a discharge, even though the debt be not proved. In such case the onus probandi is on such creditors to show that the debt was false, and where there is a failure to substantiate the allegation a discharge will be granted. (In re Orcutt, 4 N. B. R. 176; Fed. Cas. 10550.) If, by wilfully making a false schedule or affidavits, the bankrupt prevents notice to a creditor, his discharge may be annulled. (Rayl, Adm'x, v. Lapham, 15 N. B. R. 508; In re Herrick, 7 N. B. R. 341; Fed. Cas. 6419.) Where a creditor wishes to avoid the discharge on the ground that his claim was not included in the bankrupt's schedule, he must attack the discharge on the
ground of fraud, in the court where granted. (Symonds v. Barnes, 6 N. B. R. 377.)
Omission of creditors from the schedule.-The omission of names of creditors in the schedule of a bankrupt with their knowledge and consent is not ground for withholding a discharge (In re Needham, 2 N. B. R. 124; 1 Lowell, 309; 2 Amer. Law T. Rep. Bankr. 39; 16 Pittsb. Leg. J. 313; 1 Chi. Leg. News, 171; Fed. Cas. 10081); and the mere omission is not a substantive ground for avoiding or preventing the discharge of such creditor unless the omission be wilful or fraudulent. (Payne & Bro. v. Able et al., 4 N. B. R. 67.) When it appears at the first meeting of creditors that the names of certain creditors by whom claims against the estate are presented do not appear on the schedule, the proof of such claims should be postponed until after the election of the assignee. (In re Milwain, 12 N. B. R. 358; 1 N. Y. Weekly Dig. 76; Fed. Cas. 9623.) It is the province of the court to pass on all questions of concealment of assets and failure to name all creditors. (In re Scott, Collins & Co., 15 N. B. R. 73; 4 Cent. Law J. 29; Fed. Cas. 12519.) A discharge cannot be impeached collaterally on the ground that a creditor had no notice of the bankruptcy proceedings, and that notice was not given because of the fraud of the bankrupt in representing in his schedule that a creditor's residence was unknown to him, when he actually knew the same. (Rayl, Adm'x, etc. v. Lapham, 15 N. B. R. 508.) The correctness of the schedule of creditors, or the fact that a creditor received notice of the proceedings by creditors, does not determine the question of jurisdiction either of the proceedings or to grant a discharge. (In re Archenbrown, 11 N. B. R. 149; 7 Chi. Leg. News, 99; Fed. Cas. 504.) Creditors cannot recklessly file a petition for the purpose of making the alleged bankrupt file a statement of his creditors. (In re Scammon, 11 N. B. R. 280; 6 Biss. 195; 7 Chi. Leg. News, 42; 9 West. Jur. 175; Fed. Cas. 12429.)
Claims to be included in the schedule. A debtor is required to file a list of his creditors and the amount of their respective claims. (Warren Savings Bank v. Palmer & Co., 10 N. B. R. 239; 10 Phila. 286; 31 Leg. Int. 261; 6 Chi. Leg. News, 366; 21 Pittsb. Leg. J. 193; Fed. Cas. 17207.) The omission to place a claim upon the list of creditors is merely a circumstance of suspicion. (In re Mendelsohn, 12 N. B. R. 533; 3 Sawy. 342; Fed. Cas. 9420.) The existence of a difference between the list of creditors filed by the debtor and the list filed by petitioning creditors constitutes an issue to be tried and determined upon the evidence adduced. (In re Hymes, 10 N. B. R. 433; 7 Ben. 427; Fed. Cas. 6986.) Debtors should set down in the schedule all the papers that they may be liable on, with proper explanations in regard to them. (In re Henry et al., 17 N. B. R. 463; 9 Ben. 449; Fed. Cas. 6370.) A debt due the wife should be embraced in the schedule. (In re Rosenfeld, 2 N. B. R. 49; 1 Amer. Law T. Rep. Bankr. 100; Fed. Cas. 12057.) The omission of a debt contracted