§ 2289.proceeding if no jury in attendance. If a jury is not in attendance upon the court, one may be specially summoned for the trial, or the case may be postponed, or, if the case is pending in one of the district courts within the jurisdiction of a circuit court of the United States, it may be certified for trial to the circuit court sitting at the same place, or by consent of parties when sitting at any other place in the same district, if such circuit court has or is to have a jury first in attendance. Clause b of § 19, act July 1, 1898, c. 541, 30 Stat. 551, U. S. Comp. § 2290. general provisions as to right to jury apply. The right to submit matters in controvery, or an alleged offense under this act, to a jury shall be determined and enjoyed, except as provided by this act, according to the United States laws now in force or such as may be hereafter enacted in relation to trials by jury. Clause c of § 19, act July 1, 1898, c. 541, 30 Stat. 551, U. S. Comp. Stat. 1901, p. 3430. A person attempting to replevy property in possession of the trustee should bring suit in the bankruptcy court and is entitled to a jury trial under the above section.8 § 2291. Filing of schedule in involuntary bankruptcy. In all cases of involuntary bankruptcy in which the bankrupt is absent or cannot be found, it shall be the duty of the petitioning creditor to file, within five days after the date of the adjudication, a schedule giving the names and places of residence of all the creditors of the bankrupt, according to the best information of the petitioning creditor. If the debtor is found, and is served with notice to furnish a schedule of his creditors and fails to do so, the petitioning creditor, may apply for an attachment against the debtor, or may himself furnish such schedule as aforesaid. Ninth order in bankruptcy in force Jan. 2, 1899. § 2292. Costs in contested adjudications. In cases of involuntary bankruptcy, when the debtor resists an adjudication, and the court, after hearing, adjudges the debtor a 8In re Russell, 101 Fed. 248, 41 C. C. A. 323. bankrupt, the petitioning creditor shall recover, and be paid out of the estate, the same costs that are allowed to a party recovering in a suit in equity; and if the petition is dismissed, the debtor shall recover like costs against the petitioner. Thirty-fourth order in bankruptcy in effect Jan. 2, 1899. Costs are discussed in another chapter of this Code.10 § 2293. Voluntary petition-hearing and reference. Upon the filing of a voluntary petition the judge shall hear the petition and make the adjudication or dismiss the petition. If the judge is absent from the district or the division of the district in which the petition is filed at the time of the filing, the clerk shall forthwith refer the case to the referee. Clause g of § 18, act July 1, 1898, c. 541, 30 Stat. 551, U. S. Comp. Stat. 1901, p. 3429. Upon the filing of a voluntary petition the creditors may obtain an order for the examination of the bankrupt,12 but the act does not authorize them to contest the adjudication.13 Hence they cannot intervene to show that the petitioner is solvent.14 The right to an adjudication upon a voluntary petition during the pendency of an involuntary petition has been sanctioned both under the act of 186715 and under the present act.16 The consideration guiding the court in such case should be the welfare of the estate.17 Hence if the effect of allowing a voluntary adjudication to stand is to cause property to pass beyond the trustee's power of recovery, the proceedings may be stayed till the involuntary petition is disposed of.18 Upon the filing of a voluntary petition while an involuntary petition is pending, the proper practice is to serve notice to the creditors filing the latter, before an adjudication on the former is allowed.19 voluntary petition which schedules no debt which would be barred by a discharge may be dismissed at court's discretion.20 A § 2294. Right of partner to resist voluntary petition by partner ship. Any member of a partnership, who refuses to join in a petition to have the partnership declared bankrupt, shall be entitled to resist the prayer of the petition in the same manner as if the 10See ante, § 1822, et seq. 12In re Jehu, 94 Fed. 638. 13 In re Ives, 113 Fed. 914, 51 C. C. A, 541; In re Jehu, 94 Fed. 638. 14In re Carleton, 115 Fed. 246; as to right of partner to assist voluntary petition of partnership, see post, § 2294. 15In re Flanagan, 5 Sawy. 312, Fed. Cas. No. 4,850. 16 In re Stegar. 113 Fed. 978; In re Dwyer, 112 Fed. 777; In re Waxelbaum, 98 Fed. 589. 17In re Dwyer, 112 Fed. 777. petition had been filed by a creditor of the partnership, and notice of the filing of the petition shall be given to him in the same manner as provided by law and by these rules in the case of a debtor petitioned against; and he shall have the right to appear at the time fixed by the court for the hearing of the petition and to make proof, if he can, that the partnership is not insolvent or has not committed an act of bankruptcy, and to make all defenses which any debtor proceeded against is entitled to take by the provisions of the act; and in case an adjudication of bankruptcy is made upon the petition, such partner shall be required to file a schedule of his debts and an inventory of his property in the same manner as is required by the act in cases of debtors against whom adjudication of bankruptcy shall be made. Eighth order in bankruptcy in effect Jan. 2, 1899. A non-asssenting partner may contest an adjudication against the firm.1 He may set up the defense of solvency, but he cannot plead want of an act of bankruptcy, since the partners are not required to set forth such act in the petition.2 Such partner is entitled to notice before the partnership is adjudged bankrupt,5 and where no such notice is given the defect cannot be remedied after adjudication by a paper purporting to be a consent, but not verified, qualified in terms, and signed by attorney only. Such adjudication being unauthorized will be set aside7. 2295. Bankrupt to submit to examination-exemption from criminal prosecution. The bankrupt shall when present at the first meeting of his creditors and at such other times as the court shall order, submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate; but no testimony given by him shall be offered in evidence against him in any criminal proceeding. Clause 9 of § 7, act July 1, 1898, c. 541, 30 Stat. 548, U. S. Comp. Stat. 1901, p. 3425. An examination of the bankrupt may, in important cases, be required many times, 10 and may, under this section, be ordered at any time while 1In re Forbes, 128 Fed. 140. 2In re Forbes, 128 Fed. 140. 5 In re Murray, 96 Fed. 601. 6In re Altman, 95 Fed. 263. In re Russell, 97 Fed. 32; In re Altman, 95 Fed. 263. 10In re Lewensohn, 99 Fed. 73. proceedings are pending.11 It is not confined to transactions occurring within the four months preceding the adjudication, but may extend to prior transactions when pertinent.12 The provision of the above section that no testimony by the bankrupt shall be offered in evidence against him in any criminal proceeding does not afford him complete immunity, hence he still may claim his constitutional privilege of refusing to answer.13 The provision applies only to testimony given by a bankrupt in his own bankruptcy case, and confines the prohibition to the use of such testimony against him in a criminal proceeding.14 It is held that under its terms the bankrupt cannot be held for perjury committed by him in supporting a claim against his estate.15 § 2296. when required to attend-actual expenses, when paid. He [i. e. 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 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. Proviso § 7, act July 1, 1898, c. 541, 30 Stat. 548, U. S. Comp. Stat. 1901, p. 3425. 11In re Price, 91 Fed. 635. 12In re Brundage, 100 Fed. 613. 13 Burrell v. Montana, 194 U. S. 572, 48 L. ed. 1122, 24 Sup. Ct. Rep. 787; United States v. Simon, 146 Fed. 94; United States v. Goldstein, 132 Fed. 789; see also ante, § 1738. 94. 15 United States v. Simon, 146 Fed. 94, and cases cited. § 2305. § 2306. Creditor may designate place to which his notices be sent. § 2307. § 2308. Proof of contingent claim. Proof of execution of letter of attorney and assignment, how made. § 2309. Re-examination of claims filed. § 2310. Transmission of proved claims to clerk. Creditors' meetings, when and how called and held, and business transacted. § 2311. § 2315. § 2316. § 2317. Sale of property. § 2318. Examination of bankrupt and others regarding bankrupt's affairs. Redemption of property and compounding of claims. § 2319. Payment of moneys deposited. § 2320. Imprisoned debtors. § 2321. Power of trustee to compromise. § 2322. Arbitration-choice of arbitrators-findings. What application for arbitration to show. § 2323. § 2324. Application for discharge-time for filing. jurisdiction over one partner sufficient. § 2332. -payment of debts and disposal of surplus. § 2333. Administration where all partners not bankrupt. 1704 |