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tion may be directed at any time before the final disposition of the case, although his previous examination has been adjourned without a day. The examination may be had at any time, even before adjudication, or after his removal from the district 6 his discharge.7 A special master 8 or commissioner 9 appointed to conduct the examination.
The bankrupt "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.” 10 He is not entitled to any witness fees. 11 Great latitude is allowed in the
4 Re Bryant, 188 Fed. 530. His second examination can only be obtained for cause shown by an der, the application for which should be upon notice to him; Re Fleischer, 151 Fed. 81; Rc Herskovitz, 152 Fed. 316. Contra, Re Crenshaw, 155 Fed. 271; Remington on Bankruptcy, $ 1543. Upon such an application, the trustee need not set forth the nature and character of the testimony sought, Re Bryant, 188 Fed. 530.
5 Cameron v. U. S., 231 U. S. 710, affirming 192 Fed. 548; U. S. v. Liberman, 176 Fed. 161. U. S. v. Coyle, 299 Fed. 256. It has been held that where there has been no adjudication nor receivership the bankrupt should have notice of an application for his examination, Rawlins Hall-Epps Clothing Co., C. C. A., 217 Fed. 884; that in such a case the application may be denied for laches, Re Wilkes-Barre Light Co., C. C. A., 208 Fed. 539; and that it should not then be permitted solely in order to aid the petitioning creditors in establishing their case
for adjudication, Rawlins v. HallEpps Clothing Co., C. C. A., 217 Fed. 884. See infra § 638b.
6 Re Havens, C. C. A., 255 Fed. 478.
7 Re Fleischer, 151 Fed. 81; supra, $ 629.
8 U. S. v. Coyle, 229 Fed. 256. 9 Re Fleischer, 151 Fed. 81.
10 30 St. at L. 544, $ 7. Where the bankrupt obtained an order of protection, forbidding his arrest on civil process while in attendance for examination in a State where he did not reside, it was held that when he was there arrested on claim not dischargeable in bankruptcy, he should be discharged by the court of bankruptcy upon the writ of habeas corpus. U. S. ex rel. Mansfield v. Flynn, 179 Fed. 316. It has been held that the writ of habeas corpus ad testificandum should not issue to bring before the court, for examination, the bankrupt, who is in another State in the custody of the authorities there, after his commitment as a lunatic. Re Thaw, C. C. A., 166 Fed. 71.
11 Re Shanker, 138 Fed. 802.
examination; but the rules which prevail in the Federal courts concerning the direct and cross-examination of witnesses are usually followed.12 “No testimony given by the bankrupt shall be used against him in any criminal proceeding.” 18 A refusal
12 Re Kinnane Co., 217 Fed. 488.
13 30 St. at L. 544, 548, 87. This does not exempt him from an indictment for perjury then committed, Glickstein v. U. S., 222 U. S. 139; Edelstein v. U. S., C. C. A., 149 Fed. 636; Cameron v. U. S., 231 U. S. 710. But see U. S. v. Rhodes, 212 Fed. 518, holding that false testimony by the bankrupt upon his examination before the referee for purposes of discovery when no issue has been joined does not constitute perjury., Cf. State v. Strait (Minn.), 102 N. W. 913. Upon the trial of an indictment for concealing assets, his schedules may be put in evidence. Johnson v. U. S., 228 U. S. 457. Cf. Ensign v. Pennsylvania, 227 U. S. 592; Edelstein v. U. S., C. C. A., 149 Fed. 636; U. S. v. Brod, 176 Fed. 165.
As to what testimony is sufficiently material to be the subject of an indictment for perjury see Ulmer v. U. S. 219 Fed. 641; U. S. v. Coyle, 229 Fed. 256. He may be punished for contempt for such perjury and for evasive answers, Rc Fellerman, 119 Fed. 244, 17 Am. B. R. 785; supra, § 428b. When the answer is claimed to be evasive or insufficient, the bankrupt should be so admonished and given an opportunity to purge himself before he is committed, Re Blitz, 232 Fed. 276; and for a refusal to produce his books, Re Magen, 179 Fed. 572; Re Alper, 162 Fed. 207; Re Sorkin, 166 Fed. 831.
Since the statute does not lieve him from an indictment for a crime. thus disclosed, Burrell
Fed. Prac. Vol. III-76
Montana, 194 U. S. 572, 48 L. ed. 1122; Re Walsh, 104 Fed. 518; he can plead his privilege against an incriminating question; Re Scott, 95 Fed. 815; Re Rosser, 96 Fed. 308; Re Feldstein, 103 Fed. 269; Re Walsh, 104 Fed. 518; Re Smith, 112 Fed. 509; Re Shera, 114 Fed. 207; U. S. v. Goldstein, 132 Fed. 789 (voluntary bankruptcy). See supra, &$ 339, 343. In such a case, he will not be excused from answer unless it appears from the character of the information sought or the questions propounded or the facts produced by him that his claim has justification, Podolin v. Lesher Warner Dry Goods Co., C. C. A., 210 Fed. 97; nor when he has previously volunteered partial testimony upon the subject. Re Bendheim, 180 Fed. 918. For a case where the refusal to answer certain interrogatories upon the ground that they might incriminate the bankrupt was held to be no ground for the suppression of the whole deposition. Carey v. Donohue, C. C. A., 209 Fed. 328. The objection cannot be taken before he is sworn, Re Scott, 95 Fed. 815. He cannot object to surrendering books of account of a receiver or trustee because they may tend to incriminate him, Matter of Harris, 221 U. S. 274, 55 L. ed. 732. (Where the order directed that the receiver should not permit the books to be used in preparation for any criminal proceeding and that the bankrupt should have notice from him of any subpæna for their production.) Re Sapiro, 92 Fed. 340. Cf.
to answer a question approved by the court and referee may be a ground for denying a discharge in bankruptcy.14
$ 638b. Examination of strangers to bankruptcy proceedings. “A court of bankruptcy may, upon application of any officer, bankrupt, or creditor, by order require any designated person, including the bankrupt and his wife, to appear in court or before a referee or the judge of any State court, to be examined concerning the acts, conduct, or property of a bankrupt whose estate is in process of administration under this act: Provided, that the wife may be examined only touching business transacted by her, or to which she is a party, and to determine the fact whether she has transacted or been a party to any business of the bankrupt."1
Re Nachman, 114 Fed. 995. See, also, Re Edward Hess & Co., 136 Fed. 988. Contra, Re Kanter & Cohen, 121 Fed. 984, 58 C. C. A., 260 (where the bankrupts were relieved from filing schedules as well as from producing books). See U. S. v. Rhodes, 212 Fed. 518. It has been held not to be improper for the trustee to permit the use of such books by a State prosecutor in criminal proceedings against the bankrupt. Re Tracy & Co., 177 Fed. 532. Contra, Blum v. State, 94 Md. 375, 56 L.R.A. 322; People v. Swarts, (Cook County Crim. Ct., Ill.) 8 Am. B. R. 487. It was said, however, that to show the books to trade rivals of the bankrupt would be a wanton and illegal use of the powers of the trustee, Re Tracy & Co., 177 Fed. 532. Cf. State v. Strait, 94 Minn. 384. The Court of Bankruptcy refused to order the State District Attorney to deliver to the receiver books about to be used in the trial of the bankrupt upon an
indictment in the State Court. Re Mandel, 224 Fed. 612.
14 Re Dresser, C. C. A., 146 Fed. 383, Infra § 656.. The statute af
fords no protection to any witness except the bankrupt. Knoell v. U. S., C. C. A., 239 Fed. 16.
$ 638b. 130 St, at L. 544, § 21a, as amended 32 St. at L. 797. An extraordinary ruling in Pennsylvania is to the effect that, notwithstanding the express authority for the examination of the bankrupt 's wife, she cannot be examined in a case as to matters about which the laws of the State make her incompetent to testify. Re Kessler, 225 Fed. 394. It was held that an examination may be had of books of a corporation managed by two bankrupts, in which their wives substantially all the stock, and it is claimed that the corporate property constitutes assets of the bankrupts. Re Horgan, C. C. A., 98. Fed. 414; S. C., 97 l'ed. 319. Cf. Re Cohn, 98 Fed.' 75. The statuto does not authorize such an examination concerning dealings with a trustee in bankruptcy. Re Madero Bros., 256 Fed. 859. It is no objection to the examination that a suit is pending between the trustee and the witness. Re Cliffe, 97 Fed. 540, 542. The pendency of a suit by or against the bankrupt or his
Such an examination may be ordered at any time, even before adjudication. The order may be made by the referee. The examination usually takes place before the referee; but a special master 4 or commissioner 5 may be appointed for such purpose and the referee may be appointed such special master. It seems that the officer before whom the testimony is taken may rule upon the admission and exclusion of evidence. The testimony
representative is not a prerequisite. Re Fixen & Co., 96 Fed. 748. The examination may be made concerning facts which could not be the subject of a suit in a court of the United States; Re Cliffe, 97 Fed. 540. The examination is not limted to transactions occurring within the four months preceding the bankruptcy. Re Brunlage, 100 Fed. 613; Re Pursell, 114 Fed. 371. An order for the examination of a stranger to the proceeding concerning the acts, conduct or property of the bankrupt is not a matter of right, but rests in the discretion of the court or referee, Re Andrews, 130 Fed. 383. It has been held that the examination of a third person at the request of a receiver or trustee in bankruptcy may be granted without any showing of the questions to be asked or the facts into which inquiry is to be made; Re Howard, 95 Fed. 415; Re Fixen & Co., 96 Fed. 748. That a witness cannot refuse to attend or be examined by a receiver in bankruptcy on the ground that the order appointing a receiver was ously or improvidently made. Re Fixen & Co., 96 Fed. 748. That he cannot refuse to produce books because he contends that they contain nothing relating to the bankrupt's property; and must leave the determination of that question to the court. Re Fixen & Co., 96 Fed. 748. But see Re Carley, 106 Fed. 862. The witness should not be compelled to answer matters not relevant to the acts, conduct or property of the bankrupt; and when he has denied that the transaction inquired into has any relation to the same, it
seems that the examiner must show some connection therewith, or that the question will be disallowed. Carley, 106 Fed. 862, 866. A witness is not justified in refusing to answer a material question because he owes to his customers the duty not to disclose their private affairs, Re Lathrop, Haskins & Co., 184 Fed. 534; Cf. § 343, supra; nor is an attorney to refuse to identify documents which he has witnessed for his client or to testify with reference to facts concerning which he obtained knowledge from others, Re Ruos, 159 Fed. 252. No notice of the application is required, Re Howard, 95 Fed. 415. It has been said: that the request for the same may be oral, Re Howard, 95 Fed. 415; See Re Abbey Press, C. C. A., 134 Fed. 51, in which the author was counsel, and that the order may be made by the referee. Ibid. After such an examination of a third person has been terminated, a further examination may be ordered by the referee for special cause shown; but it has been said to be within the discretion of the referee to decide in each particular case what cause is sufficient and upon what he will make the order. Ibid. « No person
shall be required to attend as a witness before a referee at a place outside of the state of his residence, and more than one hundred miles from such place of residence, and only in case his lawful mileage and fee for one day's attendance shall be first paid or tendered to him," 30 St. at L. 544, $ 41. Where the examination is held in another district, the proper course is to make an ancil
lary application to a judge of that district for the examination of the witness there, Re Robinson, 179 Fed. 724. See Re Williams, 123 Fed. 321. It has been held that such an examination may be had.
The ex amination may be had by order of the court, in which proceedings in bankruptcy were pending, in another district by a commission under the Revised Statutes, Re Carley, 106 Fed. 862; U. S. R. S., $$ 868, 869. See Re Robinson, 179 Fed. 724, or before a referee in bankruptcy in another district. Re Sturgeon, C. C. A., 139 Fed. 608 (where the order was made by the referee in the district where the proceedings were pending). But see Re Williams, 123 Fed. 321, and that in such a case, it is the duty of the referee to take all the evidence and note objections to the same. Re Sturgeon, C. C. A., 139 Fed. 608. The order may be obtained by the trustee, Fleischer, 151 Fed. 81, or a receiver, Cameron v. U. S., 231 U. S. 710, of the bankrupt, or by a creditor, Re Henderson, 266 Fed. 254. When the time for proof of debts has not expired it seems that the applicant's oath that he is such a creditor is sufficient to support the order. Ibid. A witness other than the bankrupt is not entitled to have counsel present at such an examination. Re Abbey Press, C. C. A., 134 Fed. 51, in which the author
counsel. Every creditor has
the right to participate by counsel in the examination. Re Prussian, 255 Fed. 857, Remington on Bankruptcy 1574, citing contra, Re Cobb, 7 Am. B. R. 104. The bank. rupt has the right to be represented by counsel at all the hearings. Re Hark, 136 Fed. 986.
2 Cameron v. U, S., 231 U. S. 710, affirming 192 Fed. 548. It has been held in such a case the examination should not be extended solely for the purpose of obtaining evidence for use upon the trial of the issue as to the solvency of the alleged bankrupt. Abbott Wauchula Mfg. & Timber Co..(C. C. A.), 229 Fed. 677.
3 Re Abbey Press, C. C. A., 134 Fed. 51, in which the author was counsel.
4 U. S. v. Coyle, 229 Fed. 256.
7 Re De Gottardi, 114 Fed. 328; Re Wilde's Sons, 131 Fed. 142. Re Ruos, 159 Fed. 252; Re Harrison Bros., 197 Fed. 320, 321. But see Re Lipset, 119 Fed. 379; Dressel v. North State Lumber Co., 119 Fed. 531; Re Sturgeon, C. C. A., 139 Fed. 608; Bank of Ravenswood v. Johnson, C. C. A., 143 Fed. 463; reversing Re Romine, 138 Fed. 837; Re Isaacson, 175 Fed. 292. He has power to exclude evidence plainly privileged and which affirmatively appears to be so incompetent, irrelevant and immaterial, that it