The qualifications of a referee are prescribed by the statute.' Their jurisdiction is as follows: "Referees respectively are hereby invested, subject always to a review by the judge, within the limits of their districts as established from time to time, with jurisdiction to (1) consider all petitions referred to them by the clerks and make the adjudications or dismiss the petitions; (2) exercise the powers vested in courts of bankruptcy for the administering of oaths to and the examination of persons as witnesses, and for requiring the production of documents in proceedings before them, except the power of commitment; (3) exercise the powers of the judge for the taking possession and releasing of the property of the bankrupt in the event of the issuance by the clerk of a certificate showing the absence of a judge from the judicial district, or the division of the district, or his sickness or inability to act; (4) perform such part of the duties, except as to questions arising out of the applications of bankrupts for compositions or discharges, as are by this act conferred on courts of bankruptcy, and as shall be prescribed by rules or orders of the courts of bankruptcy of their respective districts, except as herein otherwise provided; and (5) upon the application of the trustee during the examination of the bankrupts, or other proceedings, authorize the employment of stenographers at the expense of the estates at a compensation not to exceed ten cents per folio for reporting and transcribing the proceedings." 10

9 "Individuals shall not be eligible to appointment as referees unless they are respectively (1) competent to perform the duties of that office; (2) not holding any office of profit or emolument under the laws of the United States or of any State other than commissioners of deeds, justices of the peace, masters in chancery, or notaries public; (3) not related by consanguinity or affinity, within the third degree as determined by the common law, to any of the judges of the Courts of Bankruptcy or Circuit Courts of the United States, or of the justices or judges of the appellate courts of the districts wherein they may be appointed; and (4) residents

of, or have their offices in, the territorial districts for which they are to be appointed." Ibid., § 35.

10 30 St. at L. 544, 555, § 38. Each referee must account to the judge under oath with vouchers on the first Tuesday of each month. G. O. xxvi. The referee has power, upon the application of the trustee in bankruptcy, to cite the bankrupt to appear before him and show cause why he should not be ordered to surrender the property in his possession which it is claimed constitutes assets of the estate; and the referee can make an order in accordance with the evidence after a hearing upon the return of the order to show cause.

In

The duties of referees are thus prescribed: Referees shall (1) declare dividends and prepare and deliver to trustees dividend sheets showing the dividends declared and to whom payable; (2) examine all schedules of property and list of creditors filed by bankrupts, and cause such as are incomplete or defective to be amended; (3) furnish such information concerning the estates in process of administration before them as may be requested by the parties in interest; (4) give notices to creditors as herein provided; (5) make up records embodying the evidence, or the substance thereof, as agreed upon by the parties in all contested matters arising before them, whenever requested to do so by either of the parties thereto, together with their findings therein, and transmit them to the judges; (6) prepare and file the schedules of property and lists of creditors required to be filed by the bankrupts, or cause the same to be done, when the bankrupts fail, refuse, or neglect to do so; (7) safely keep, perfect, and transmit to the clerks the records herein required to be kept by them, when the cases are concluded; (8) transmit to the clerks such papers as may be on file before them whenever the same are needed in any proceedings in courts, and in like manner secure the return of such papers after they have been used, or, if it be impracticable to transmit the original papers, transmit certified copies thereof by mail; (9) upon application of any party in interest, preserve the evidence taken, or the substance thereof as agreed upon by the parties before them when a stenographer is not in attendance; and (10) whenever their respective offices are in the same cities or towns where the courts of bankruptcy convene, call upon and receive from the clerks all papers filed in courts of bankruptcy which have been referred to them. Referees shall not (1) act in cases in which they are directly or indirectly interested; (2) practice as attorneys and counselors at law in any bankruptcy proceedings; or (3) purchase,

re Oliver, 96 Fed. R. 85; In re Mayer, 98 Fed. R. 839. See infra, § 484, note 2. It was held under the act of 1867 that a register had no power upon the application of creditors to issue a summons for the examination of a trustee appointed under section 43 and for the production of books and

papers by him, In re Hicks, 2 Fed. R. 851; and that the issues upon a petition to determine whether certain assets were a part of the bankrupt estate might be referred to a register as a special master. In re Thomas, 35 Fed. R. 337.

directly or indirectly, any property of an estate in bankruptcy."

"A person shall not, in proceedings before a referee, (1) disobey or resist any lawful order, process, or writ; (2) misbehave during a hearing or so near the place thereof as to obstruct the same; (3) neglect to produce, after having been ordered to do so, any pertinent document; or (4) refuse to appear after having been subpoenaed, or, upon appearing, refuse to take the oath as a witness, or, after having taken the oath, refuse to be examined according to law: Provided, that 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, only in case his lawful mileage and fee for one day's attendance shall be first paid or tendered to him. The referee shall certify the facts to the judge, if any person shall do any of the things forbidden in this section. The judge shall thereupon, in a summary manner, hear the evidence as to acts complained of, and, if it is such as to warrant him in so doing, punish such person in the same manner and to the same extent as for a contempt committed before the court of bankruptcy, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of, or in the presence of, the court."

99 12

"The records of all proceedings in each case before a referee shall be kept as nearly as may be in the same manner as records are now kept in equity cases in Circuit Courts of the United States. A record of the proceedings in each case shall be kept in a separate book or books, and shall, together with the papers on file, constitute the records of the case. The book or books containing a record of the proceedings shall, when the case is concluded before the referee, be certified to by him, and, together with such papers as are on file before him, be trans

11 30 St. at L. 544, 555, 556, § 39. It has been held that a referee who is a debtor to the bankrupt is not disqualified; but that the court upon being apprised of that fact may revoke the order of reference and send the case to another referee. Bray v. Cobb, 91 Fed. R. 102.

1230 St. at L. 544, 556, § 41. The court cannot authorize the referee to carry an order or judgment into effect by the commitment of a person for contempt. Smith v. Belford (C. C. A.), 106 Fed. R. 658.

mitted to the court of bankruptcy and shall there remain as a part of the records of the court." 13

The General Orders provide as follows:

"1. The order referring a case to a referee shall name a day upon which the bankrupt shall attend before the referee; and from that day the bankrupt shall be subject to the orders of the court in all matters relating to his bankruptcy, and may receive from the referee a protection against arrest, to continue until the final adjudication on his application for a discharge, unless suspended or vacated by order of the court. A copy of the order shall forthwith be sent by mail to the referee, or be delivered to him personally by the clerk or other officer of the court. And thereafter all the proceedings, except such as are required by the act or by these general orders to be had before the judge, shall be had before the referee.

"2. The time when and the place where the referees shall act upon the matters arising under the several cases referred to them shall be fixed by special order of the judge, or by the referee; and at such times and places the referees may perform the duties which they are empowered by the act to perform.

"3. Applications for a discharge, or for the approval of a composition, or for an injunction to stay proceedings of a court or officer of the United States or of a State, shall be heard and decided by the judge. But he may refer such an application, or any specified issue arising thereon, to the referee to ascertain and report the facts." 14

"Proofs of claims and other papers filed subsequently to the reference, except such as call for action by the judge, may be filed either with the referee or with the clerk." 15 "In all orders made by a referee, it shall be recited, according as the fact may be, that notice was given and the manner thereof; or that the order was made by consent; or that no adverse interest was represented at the hearing; or that the order was made after hearing adverse interests." 16 "When a bankrupt, creditor, trustee, or other person shall desire a review by the judge of any order made by the referee, he shall file with the referee his petition therefor, setting out the error complained of; and the referee shall forthwith certify to the judge the question

13 30 St. at L. 544, 556, 557, § 42. 14 G. O. xii.

15 G. O. xx.
16 G. O. xxiii.

presented, a summary of the evidence relating thereto, and the finding and order of the referee thereon." 17

The referee's certificate should present specific questions upon which the opinion of the judge is desired. It has been said that a general review of the proceedings before the referee is not permitted.19

§ 482. Evidence.-" Whenever a person against whom a petition has been filed as herein before provided under the second and third subdivisions of this section takes issue with and denies the allegation of his insolvency, it shall be his duty to appear in court on the hearing, with his books, papers, and accounts, and submit to an examination, and give testimony as to all matters tending to establish solvency or insolvency, and in case of his failure to so attend and submit to examination the burden of proving his solvency shall rest upon him."1 "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 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. 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. 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

17 G. O. xxvii.

because given in consideration of a

18 In re T. L. Kelly Dry Goods Co., gambling transaction, it was held 102 Fed. R. 747.

19 Ibid.

§ 482. 130 St. at L. 544, 547, § 3. The burden of proof is otherwise upon the creditors to support the allegations of their petition. In re Rome Planing Mill, 96 Fed. R. 812. But where the bankrupt alleged that a note held by a petitioner was void

that the respondent had the burden of proof to show that fact. Hill v. Levy, 98 Fed. R. 94. A letter by the respondent stating his inability to pay his debts and calling a meeting of his creditors for the purpose of compromising his indebtedness is prima facie evidence of his insolvency. In re Lange, 97 Fed. R. 197.