21.] Proof of Claim not to be Made Before Attorney- Evidence.

of the United States were required to be taken before the district judges, the registers or commissioners of the Circuit Court; and only those officers could take the verification of the schedule or inventory.

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Proof of Claim Not to be Made Before the Attorney of the Claimant.-Under the former act it was held that the proof of a claim in bankruptcy should not be taken before the claimant's attorney in that matter, because under that act a proof of a claim was something more than a mere affidavit. It was a judicial proceeding, and it was expressly required that the proof should be 'satisfactory" to the officer taking it. (In re Nebe, Fed. Cas. 10.073; 11 N. B. R. 289.) Although under the present act proof is little more than an affidavit, it should not be taken by one's own attorney, it being a general rule in the United States, that an affidavit should not be taken before one's own attorney even though he be authorized ex officio to take it. But the fact that the attorney for a party takes the oath of his client for the proof of a debt in bankruptcy does not justify its dissolution. (In re Kimball, 4 Am. B. R. 144; 100 Fed. 777.) In the case of In re Kindt (3 Am. B. R. 443; 98 Fed. 403), it was held that the verification of the petition of the bankrupt before one not then an attorney of record of such bankrupt but who subsequently became such attorney was not invalid on that account.

SEC. 21. Evidence.-a A court of bankruptcy may, upon application of any officer, bankrupt, or creditor, by order require any designated person, including the bankrupt, who is a competent witness under the laws of the State in which the proceedings are pending, to appear in court or before a referee or the judge 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.

of

b The right to take depositions in proceedings under this act shall be determined and enjoyed according to the United States laws now in force, or such as may be hereafter enacted relating to the taking of depositions, except as herein provided.

c Notice of the taking of depositions shall be filed with the referee in every case. When depositions are to be taken in opposition to the allowance of a claim notice shall also be served upon the claimant, and when in opposition to a discharge notice shall also be served upon the bankrupt.

d Certified copies of proceedings before a referee, or of papers when issued by the clerk or referee, shall be admitted as evidence with like force and effect as certified copies of the records. of district courts of the United States are now or may hereafter be admitted as evidence.

e 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 a deed from the bankrupt to the trustee if recorded would have imparted had not bankruptcy proceedings intervened.

f 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.

g 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.

Analogous Provisions of Former Acts.

As to depositions and the taking of evidence by commission: R. S. sections 5003. 5004, 5005 and 5006; act of 1867, sections 5. 7, and 38; act of 1841, section 7; act of 1800 sections 14. 15. As to examination of third parties: R. S. section 5087; act of 1867. section 26: act of 1800. sections 14. 15. As to certified copies of proceedings, being evidence: R. S. section 4992; act of 1867. section 38. As to nature of evidence, of certified copy of order of discharge: R. S. section 5119; act of 1867. section 34. As to purpose of recording certified copy of bond: R. S. section 5054; act of 1867, section 14; act of 1800, section II.

"To be Examined." Section 21a.-The act of 1867 contained two provisions somewhat analogous to paragraphs a and b of the section under consideration. Sections 5.003 to 5,006, R. S. both inclusive, provided that evidence or examination in any pro

ceeding might be taken before the court or a register in bankruptcy viva voce, or in writing before a commissioner of the Circuit Court, or by affidavit, or on commission; and the court might direct a reference to a register in bankruptcy or other suitable person to take and certify such examination, and might compel the attendance of witnesses and the production of books and papers, and the giving of testimony in the same manner as in suits in equity in the Circuit Court. The section under consideration, in paragraphs b and c, manifestly permits the taking of evidence before the officers named therein, in practically the same manner. The other provision of the Act of 1867 was contained in Revised Statutes, section 5,087, which provided that the bankruptcy court might require the attendance of any person as a witness to be examined in the same way in which the bankrupt might be examined pursuant to section 5086 of the Revised Statutes, the latter being the provision corresponding to section 7 (9) of the present act. It is clear that paragraph a of the section of the present act under consideration intends to provide a proceeding for such an examination of third parties, similar to the examination of the bankrupt. It expressly enacts that any person. who is a competent witness may be examined "concerning the acts, conduct or property of the bankrupt." It does not say that such person may be subpoenaed as a witness and be compelled to give his testimony only where there is a trial of issues, but evidently contemplates an examination independent of and perhaps. preliminary to any trial. (See In re Fixen, 2 Am. B. R. 822; 96 Fed. 784.) In the case of In re Howard (2 Am. B. R. 582; 95 Fed. 415), arising under the present act, the referee had made an order upon the application of the trustee requiring a third party to be examined before him concerning the acts, conduct and property of the bankrupt. The witness appeared before the referee in obedience to a subpoena issued upon such order and by counsel objected to being examind. The referee overruled the objection. The court sustained the referee and quoted the following language from the referee's decision.

"To be Examined."

[Ch. IV. "The examination of this witness is made upon the authority of sec. 21 of the Bankruptcy Act. of July 1, 1898. It has been decided by the Federal courts in many cases, under a similar provision of the Act of 1867, that all parties who are competent witnesses are liable to undergo such an examination, though they may be parties to proceedings which the trustee in bankruptcy has instituted or intends to institute for the purpose of setting aside liens procured by them, or preferential transfers made to them.' So it is held In re Feinberg, 2 N. B. R. 425; Fed. Cas. No. 4716. It has been further held that such parties will be obliged to answer any and all questions relating to the acts, conduct, or property of the bankrupt, and their dealings with him, even though their answers will give to the trustee evidence which he may use in a subsequent civil action against the examined party. It has been so decided by the Federal courts in the cases of In re Fay. 3 N. B. R. 660; Fed. Cas. No. 4708; In re Pioneer Paper Co. 7 N. B. R. 250; Fed Cas. No. 11178; Garrison v. Markley. 7 N. B. R. 246; Fed. Cas. No. 5256; and in many other cases, which it is unnecessary for the court to cite. In the cases of In re Comstock, 13 N. B. R. 193; Fed Cas. No. 3080, and In re Fredenburg, 1 N. B. R. 268; Fed. Cas. No. 5075, the court decided that the person undergoing this examination is a mere witness, and is not entitled to counsel. He is not a party to the proceedings, and has no rights at stake."

In a well-considered case in the Circuit Court of Appeals of the 2nd Circuit, In re Horgan v. Slattery (3 Am. B. R. 253; 39 C. C. A. 118; 98 Fed. 414), it was held that a large latitude of inquiry should be allowed in the examination of persons closely connected with the bankrupt in business dealings for the purpose of discovering the assets and unearthing frauds and upon any reasonable surmise that they have the assets of the debtor. And the mere fact that the witness is a creditor between whom and the bankrupt's trustee a controversy is pending in a State court cannot excuse him from testifying concerning the acts etc. of the bankrupt on the ground that his answers may furnish evidence against him in the civil suit or the federal court is not a proper forum. (In re Cliffe, 2 Am. B. R. 317: 94 Fed. 354.) But the question as to whether one is a competent witness is to be determined with reference to the laws of the State in which the proceeding is pending, provided those laws are not repugnant to the Constitution of the United States. Thus in the case of In re Jefferson (3 Am. B. R. 174; 96 Fed. 826), it was held that where a State statute declares that a wife is not a witness to confidential

communications between her and her husband, she cannot be compelled in her husband's voluntary proceeding to reveal such confidential matters. (And see In re Mayer, 3 Am. B. R. 222; 97 Fed. 328.) And a witness cannot be compelled to answer any questions which would tend to criminate him. (In re Feldstein, 4 Am. B. R. 321. See EXAMINATION OF BANKRUPT, section 7 [9].)

Under the former act there were several decisions as to the extent of the privilege of a witness to refuse to answer questions, upon the ground that his answers would disclose matters revealed to him in professional confidence. While the courts protect a lawyer in refusing to answer questions as to matters which he ascertains in his capacity as counsel, and which are of a confidential nature, they nevertheless will compel him to testify as to dealings with the bankrupt as a purchaser and in any other than a strictly professional capacity. Thus where an attorney took a conveyance of land from the bankrupt and afterwards re-conveyed to the wife of the bankrupt, and also, where he acted as agent in receiving and disbursing moneys of the bankrupt, he was compelled to answer fully concerning all such matters. (In re Aspinwall, Fed. Cas. 591; 10 N. B. R. 448; in re Bellis & Milligan, 3 N. B. R. 199; s. c. 38 How. Pr. 79.) In the first of the cases above cited it was held that an attorney might be compelled to state whether or not he had drawn a certain deed for the bankrupt. Compare the following English decisions in which the extent to which communications made by a bankrupt to his attorney are privileged as confidential, was discussed and considered: in re Phillips, 20 L. J. 16; Russell v. Jackson, 21 L. J. Chan. 146; Turquand v. Knight, 2 Mees. & W. 98; Ex þ. Lord, Buck, 110; Bramwell v. Lucas, 2 B. & C. 743. A witness on an examination of this nature may be asked as to the name and residence of any other person who can give the desired testimony with regard to the bankrupt's property. (Ex p. Campbell, L. R. 5 Ch. App. 703.) See as to method of taking testimony before the referee, G. O. 22 and Forms 29 and 30.