§. 2347. Certified copy of order approving trustee's bond evidence

of title.

A certified copy of the order approving the bond of a trustee shall constitute conclusive evidence of the vesting in him of the title to the property of the bankrupt, and if recorded shall impart the same notice that deed from the bankrupt to the trustee if recorded would have imparted had not bankruptcy proceedings intervened. Clause e of § 21, act July 1, 1898, c. 541, 30 Stat. 552, U. S. Comp. Stat. 1901, p. 3430.

§ 2348. effect of order as to compensation or discharge, as evidence.

A certified copy of an order confirming or setting aside a composition, or granting or setting aside a discharge, not revoked, shall be evidence of the jurisdiction of the court, the regularity of the proceedings, and of the fact that the order was made.

Clause f of § 21, act July 1, 1898, c. 541, 30 Stat. 552, U. S. Comp.
Stat. 1901, p. 3431.

§ 2349. Order confirming composition as revesting title and as notice when recorded.

A certified copy of an order confirming a composition shall constitute evidence of the revesting of the title of his property in the bankrupt, and if recorded shall impart the same notice that a deed from the trustee to the bankrupt if recorded would impart.

Clause g of § 21, act July 1, 1898, c. 541, 30 Stat. 552, U. S. Comp. Stat. 1901, p. 3431.

§ 2350. Taking of testimony before referee.

The examination of witnesses before the referee may be conducted by the party in person or by his counsel or attorney, and the witnesses shall be subject to examination and cross-examination, which shall be had in conformity with the mode now adopted in courts of law. A deposition taken upon an examination before a referee shall be taken down in writing by him, or under his direction, in the form of narrative, unless he determines that the examination shall be by question and answer. When completed it shall be read over to the witness and signed by him in the presence of the referee. The referee shall note upon the deposition any question objected to, with his decision thereon; and the court shall have

power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just.

Twenty-second order in bankruptcy, in effect Jan. 2, 1899.

Under the above provision it is the duty of the referee to receive all evidence offered, note objections and record the evidence, following the equity practice.16 16 Hearings before referee are within the rule that party may attend judicial hearings away from place of business without being subjected to service of process.17

16In re Sturgeon, 139 Fed. 608, (C. C. A.)

17 Morrow v. Dudley Co. 144 Fed.

441.

CHAPTER 68.

JURISDICTION AND PROCEDURE ON APPEAL.

§ 2360. Appellate courts to have same jurisdiction in controversies arising in bankruptcy proceedings as in other cases.

§ 2361. Special appellate jurisdiction of circuit court of appeals. When appeal in equity lies to circuit court of appeals.

§ 2362.

§ 2363.

When appeal lies to Supreme Court on allowance or rejection of claims.

§ 2364.

§ 2365.

§ 2366.

§ 2367.

Appeals to circuit court of appeals how allowed and rejected.
Allowance and time for taking appeals to Supreme Court.
Findings of fact and conclusions of law-other papers in recor·l.
when case may be certified to Supreme Court.

§ 2360. Appellate courts to have same jurisdiction in controversies arising in bankruptcy proceedings as in other cases.

The Supreme Court of the United States, the circuit courts of appeals of the United States, and the Supreme Courts of the Territories, in vacation in chambers and during their respective terms, as now or as they may be hereafter held, are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The Supreme Court of the United States shall exercise a like jurisdiction from courts of bankruptcy not within any organized circuit of the United States, and from the supreme court of the District of Columbia.

Clause a of § 24, act July 1, 1898, c. 541, 30 Stat. 553, U. S. Comp. Stat 1901, p. 3431.

The above provision confers appellate jurisdiction of controversies arising in bankruptcy proceedings in absolute terms.1 The appellate juris

diction conferred however is limited to those controversies between the trustee and adverse claimants the jurisdiction over which is conferred by

1Steele v. Buel, 104 Fed. 968, 44 C. C. A. 287.

§ 2 of the Bankruptcy act.2 It does not cover bankruptcy proceedings proper, appellate jurisdiction over which is conferred by §§ 24 b and 25 a3 and which include questions between the alleged bankrupt and his creditors as such, commencing with the petition for adjudication, ending with the discharge, and matters of administration generally. The section therefore vests the appellate courts with power to review the decisions of separable controversies in reference to the title, possession or distribution of the estates of bankrupts which the courts of bankruptcy may render in the course of their proceedings,5 and such power is not revoked by the grant of appellate jurisdiction over the three classes of cases mentioned in § 25 a.6 Nor is it impaired by the grant of power of revision in matters of law contained in § 24 b.7 The jurisdiction conferred by the section is limited by the general jurisdiction conferred by the act creating the circuit court of appeals.8 So, since that act limits the right of appeals to final decisions9 no appeal will be granted from a decision on a "controversy" by a bankruptcy court, not final.10

§ 2361. Special appellate jurisdiction of circuit court of appeals. The several circuit courts of appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. [a] Such power shall be exercised on due notice and petition by any party aggrieved.[b]-[a]

Clause b of § 24, act July 1, 1898, c. 541, 30 Stat. 553, U. S. Comp. Stat. 1901, p. 3432.

[a] Review of proceedings in matters of law.

The above provision does not affect the general appellate jurisdiction vested by the previous section.15 The jurisdiction conferred is limited to a review of matters of law16 of some action taken or order made in the course

2In re Mueller, 135 Fed. 713, 68 C. C. A. 349; see Hewit v. Berlin Machine Works, 194 U. S. 300, 48 L. ed. 987, 24 Sup. Ct. Rep. 690; Hutchinson v. Otis, 190 U. S. 552, 47 L. ed. 1179, 23 Sup. Ct. Rep. 778; Burleigh v. Foreman, 125 Fed. 217, 60 C. C. A. 109; In re Friend, 134 Fed. 778, 67 C. C. A. 500; Security etc. Co. v. Hand, 143 Fed. 38, (C. C. A.)

3 In re Friend, 134 Fed. 780, 67 C. C. A. 500; see post, §§ 2361–2362. 4In re Mueller, 135 Fed. 713, 68 C. C. A. 349; In re Friend, 134 Fed. 778, 60 C. C. A. 500.

5 Hewit v. Berlin, etc. Works, 194 U. S. 300, 48 L. ed. 987, 2: Sup. Ct. Rep. 690; Dodge v. Norlin, 133 Fed. 366, 66 C. C. A. 425. and cases cited.

10 In re Columbia etc. Co. 112 Fed. 645, 50 C. C. A. 406.

15 Dodge v. Norlin, 133 Fed. 369, 66 C. C. A. 425.

16 Samuel v. Dodd, 142 Fed. 70, (C. C. A.), and cases cited; Elliot v. Toeppner, 187 U. S. 334, 47 L. ed. 203, 23 Sup. Ct. Rep. 133; Mueller v. Nugent, 184 U. S. 9, 46 L. ed. 409, 22 Sup. Ct. Rep. 269; Kenova etc. Co. v.

of a bankruptcy proceeding.17 Hence it does not extend to suits brought by trustees against third parties.18 Where the review of both questions of law and fact is sought the remedy is by app19 the facts in proceedings under this section being taken as found in the lower court unless so clearly unsustained by the proofs, that the court would be justified, were the case before it on writ of error, in setting aside the verdict for want of evidence.1 By the consensu ensus of opinion the revisory jurisdiction above granted does not include orders and decrees which are appealable under the following section, the two provisions being held exclusive.2 Such was the practice under the former bankruptcy act of 1867. This rule however may necessitate both the filing of a revisory petition and the bringing of an appeal in a doubtful case and it has been disapproved of.5 Among the orders which the courts have reviewed, are discretionary orders,6 orders directing the transfer of property to the trustee, held by the bankrupt? or by a claimants or by State receiver9 and an order committing the bankrupt on his refusal to make such transfer,10 order requiring partners to surrender and schedule individual property;11 orders denying bankrupt's application for leave to amend schedule12 and orders vacating orders allowing such amendment,13 orders restraining further prosecution of attachment suits14 or replevin suits15 in State courts, or denying application to stay suits to enforce liens in such courts, 16 orders denying17 or allowing18 bankrupts claim to an

Graham, 135 Fed. 717, 68 C. C. A. 355.

17In re Jacobs, 99 Fed. 539, 39 C. C. A. 647; In re Antigo etc. Co. 123 Fed. 249, 59 C. C. A. 248.

18 In re Rusch, 116 Fed. 270, 53 C. C. A. 631, see also Lathrop v. Drake, 91 U. S. 516, 23 L. ed. 414; In re Mueller, 135 Fed. 711, 68 C. C. A. 349.

19 See Burleigh v. Foreman, 125 Fed. 217, 60 C. C. A. 109; Hutchinson v. Otis, 115 Fed. 939, 53 C. C. A. 419; see also In re Union etc. Co. 122 Fed. 937, 59 C. C. A. 461; Courier-Journal etc. Co. v. Brewing Co. 101 Fed. 703, 41 C. C. A. 614.

1 In re Cole, 144 Fed. 393, (C. C. A.) 2In re Mueller, 135 Fed. 715, 68 C. C. A. 349; In re Worcester Co. 102 Fed. 808, 42 C. C. A. 637; In re Rouse, 91 Fed. 98, 33 C. C. A. 356; In re Good, 99 Fed. 389, 39 C. C. A. 581; Dickas v. Barnes, 140 Fed. 852.

3See Knight v. Cheney. 5 N. B. R. 305, Fed. Cas. No. 7,883; In re Alexander, Chase, 295, Fed. Cas. No. 160. 4In re Worcester Co. 102 Fed. 811, 42 C. C. A. 641.

105 Fed. 915, 45 C. C. A. 123; where abuse of discretion is clear; In re Carley, 117 Fed. 130, 55 C. C. A. 146.

7In re Nugent, 105 Fed. 581, 44 C. C. A. 620; Fisher v. Cushman, 103 Fed. 860, 43 C. C. A. 381; In re Schlesinger, 102 Fed. 117, 42 C. C. A. 407.

8 Carling v. Lumber Co. 113 Fed. 483, 51 C. C. A. 1.

9 Blumberg v. Bryan, 107 Fed. 673, 46 C. C. A. 552; In re Abraham, 93 Fed. 766, 35 C. C. A. 592.

10 In re Rosser, 101 Fed. 562, 41 C. C. A. 497.

11 Dickas v. Barns, 140 Fed. 849. 12 Moran v. King, 111 Fed. 730, 49 C. C. A. 578.

13 In re Hawk, 114 Fed. 916, 52 C. C. A. 536.

14 Bear v. Chase, 99 Fed. 920, 40 C. C. A. 182.

15 In re Russell, 101 Fed. 248, 41 C. C. A. 323.

16In re Horton, 102 Fed. 986, 43 C. C. A. 87; and see in re Marshall etc. Co. 102 Fed. 872, 43 C. C. A. 38.

17In re Carpenter, 109 Fed. 558, 48 C. C. A. 545; Richardson v. Wood5In re Holmes, 142 Fed. 392; In ward, 104 Fed. 873, 44 C. C. A. 235; re McKenzie, 142 Fed. 385. In re Tollett, 106 Fed. 866, 46 C. C. A. 11; 54 L.R.A. 222.

6In re Lesser, 99 Fed. 913, 40 C. C. A. 177; see also Ross v. Saunders,

18In re Holden, 113 Fed. 141, 51 C.