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so taken is a part of the record, to which creditors are entitled to access so long as it remains in the custody of the referee, although it might in a suit for a preference, injuriously affect the party taking it.8

§ 639. Evidence in bankruptcy. "(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.1 (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.2 (g) A certi

would be an abuse of process to compel its production or permit its introduction. Missouri-Am. El. Co. v. Hamilton-Brown Shoe Co., C. C. A., 165 Fed. 283. See §§ 343, 353, supra. Contra. He may exclude repetitions of the same question. Re Romine, 138 Fed. 837; reversed upon another point, Bank of Ravenswood v. Johnson, C. C. A., 143 Fed. 463. Approved in Remington on Bankruptcy § 552. See General Order XXII. Supra §§ 352, 355, 391, 638.

8 Re Samuelsohn, 174 Fed. 911. § 639. 1 This authorizes the taking of a deposition of a witness who lives more than a hundred miles from the place of trial whether within or without the State, Re Washington Steel & Bolt Co., 210 Fed. 984. See Supra §§ 354-359.

2 The bankrupt has the burden of proving his solvency unless he appears with his books, papers and accounts, submits to an examination and fully testifies, as to all matters tending to establish solv

fied copy of an order confirming a composition shall constitute evidence of the revesting of the title of his property in the bank

ency or insolvency. 30 St. at L. 544, 547, § 3. Supra § 638a. Re Perlhefter, 177 Fed. 299. See Cummins Grocer Co. v. Talley, C. C. A., 187 Fed. 507. In the absence of countervailing evidence it is presumed that a bankrupt was insolvent at the close of the day preceding that on which an involuntary petition was filed against it, followed by an adjudication, Re Star Spring Bed Co., C. C. A., 265 Fed. 133. The burden of proof is otherwise usually upon the creditor to support the allegations of their petitions. Re Rome Planing Mill, 96 Fed. 812. But where the bankrupt alleged that a note held by a petitioner was void because given in consideration of a gambling transaction, it was held that the respondent had the burden of proof to show that fact. Hill v. Levy, 98 Fed. 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. Re Lange, 97 Fed. 197. Voluntary bankruptcy creates no presumption of previous insolvency. Re Chappell, 113 Fed. 545. It was held to be no evidence of insolvency that a corporation made an arrangement with the bank to overdraw its account. McDonald V. Clearwater Shortline Ry. Co., 164 Fed. 1007. A judgment against the bankrupt, entered more than four months before the commission of the act of bankruptcy, is admissible upon the proof of insolvency. Re McGowan, 134 Fed. 498, which considers other

questions concerning the admissibility of evidence upon this issue. In determining presumptions and the burden of proof, the Federal courts are not bound by the State decisions. Young v. Lowry, C. C. A., 192 Fed. 825. It was held that a judge who made an order appointing a receiver was a competent witness to testify that the appointment was not made because of insolvency. Schumert & Warfield v. Security Brewing Co., 199 Fed. 358. Upon an issue as to the insanity of an alleged bankrupt, it was said that the evidence of his acts, speech and demeanor, the change of his habits, and the testimony of physicians who treated him, was of greater weight than the hypothetical testimony of alienists. Re Ward, C. C. A., 194 Fed. 89. Upon the trial of an issue as to the value of land, it was held that the master properly excluded cross-examination of the trustee concerning efforts made by him to secure purchasers at a given price and his knowledge or understanding of what the property could have been bought for, Re Graves, 182 Fed. 443; and that evidence of the amounts received on sale of similar land in the neighborhood was inadmissible in the absence of proof that it was substantially of the same value as the land in controversy and covered with similar timber, Ibid. A party who called a witness was not allowed to impeach his credibility. Re San Miguel Gold Min. Co., 197 Fed. 126. A verified proof or petition for the allowance of a claim is prima facie evidence

rupt, and if recorded shall impart the same notice that a deed from the trustee to the bankrupt if recorded would impart."

of its validity, Whitney v. Dresser, 200 U. S. 532, 50 L. ed. 584, infra, § 645; but not, it has been held, of any facts therein alleged to establish its priority, Re Jones, 151 Fed. 108. Where the claimant did not rest on his proof of claim, but offered evidence which was insufficient to establish its allegations, it was held that he could not, upon appeal, use the allegations, in the proof to supply the deficiencies in his testimony, Re T. A. McIntyre & Co., C. C. A., 174 Fed. 627. Upon an issue as to the validity of a claim, a claim against another debtor for the same debt, which was previously allowed, is inadmissible in support of objections. Re James Dunlap Carpet Co., 171 Fed. 532. An adjudication in Lankruptcy is in that proceeding conclusive of all the jurisdictional facts, and cannot be collaterally attacked. Re Hecox, C. C. A., 164 Fed. 823; Re V. & M. Cumher Co., 182 Fed. 231; Cook v. Robinson, C. C. A., 194 Fed. 785; Lazarus v. Eagen, 206 Fed. 518; (all cases of insolvency). Where the petition charged different acts of bankruptcy and the adjudication did not show upon which it was based, it was not treated as res adjudicata of either, Re Julius Bros., C. C. A., 217 Fed. 3. See In re McCruza, C. C. A., 214 Fed, 207. Where a material issue was the indebtedness of the bankrupt to a Ietitioner, an adjudication of bankruptcy which found that issue in favor of the latter was conclusive evidence of the validity of his claim, which could not thereafter be dis

An

puted by either the bankrupt or another creditor, Re Henry Ulfelder Clothing Co., 98 Fed. 409. order or judgment sustaining objections to a claim upon the ground that the claimant had received a preference binds him in a subsequent action by the trustee to recover such preference. Re Davidson, 211 Fed. 687. See supra § 186j. The adjudication is not conclusive evidence of the bankrupt's insolvency against a creditor who is defendant to a suit to recover a preference when the latter did not appear in the bankruptcy proceedings. Gratiot County State Bank v. Johnson, 249 U. S. 246. Findings in a proceeding before the same referee that has been finally dismissed for want of jurisdiction cannot be the basis of find

ings in a subsequent proceeding before him. Re Rosenberg, 116 Fed. 402.

330 St. at L. 544, 552, § 21; as amended by 32 St. at L. 797. The testimony of a bankrupt upon his examination at a creditors' meeting, or otherwise, may be offered in evidence against him as an admission upon his application for his discharge, Re Leslie, 119 Fed. 406; Shaffer v. Koblegard Co., 183 Fed. 71; or upon any other application in the proceeding, Re Wilcox, C. C. A., 109 Fed. 628; Re Alphin & Lake Cotton Co., 131 Fed. 824; Re Wiesen Bros., 135 Fed. 442; Re Greer, 189 Fed. 511. Even, it has been said, although it was not signed nor taken down in writing, if it is proved by the testimony of those who heard the same, Re Bard,

Other witnesses must, however, be paid or tendered their legal fees in advance. It has been held: that a witness cannot be compelled to appear at a place outside the State where he resides, although within one hundred miles from his residence; 5 and that he cannot be compelled to attend within the State at a place more than one hundred miles from his residence. "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 fees for one day's attendance shall be first paid or tendered to him." Except, perhaps, upon examinations for the purpose of discovery 7 it seems that the referee may rule upon the admission and exclusion of evidence.8 He may exclude repetitions of the same questions.9

108 Fed. 208; Re Knasak, 151 Fed. 503. It has been held: that such statements, made by the bankrupt are admissible against the trustee in litigation with a stranger to the proceeding, Re Thompson, 197 Fed. 681; that in a plenary action by a trustee in another court in the same district, it cannot take judicial notice of matters of record in the bankruptcy proceedings, McDonald v. Clearwater Shortline Ry. Co., 164 Fed. 1007; See supra § 329; and that insolvency may then be proved by the uncorroborated testimony of the bankrupt, Collett v. Bronx Nat. Bank, 200 Fed. 111; which seems to hold that the testimony of the bankrupt upon his examination in bankruptcy is then admissible. Contra Taylor v. Nicholas, 134 App. Div. (N. Y.) 787. It has been held that, in an action by a trustee against stranger to the proceeding, the books of the bankrupt are competent evidence of his insolvency, Ernst v. Mechanics' & Metals Nat. Bank of N. Y., 200 Fed. 295. Contra Taylor v. Nicholas, 134 App. Div.

a

(N. Y.) 787. A single case seems to hold that the uncorroborated testimony of the bankrupt upon his examination in the bankruptcy proceedings is competent for the same purpose, Collett v. Bronx Nat. Bank, 200 Fed. 111. Contra Re Hersey, 171 Fed. 1004. The testimony of other persons in other applications in the proceeding in bankruptcy cannot be offered in evidence against the bankrupt, except as a means of contradicting a witness then examined, after his attention has been called to the same, Re Alphin & Lake Cotton Co., 131 Fed. 824; Re Weisen Bros., 135 Fed. 442.

4 Re Kerber, 125 Fed. 653. See supra, § 343. The husband of a bankrupt is entitled to witness fees. Re Marcus, 160 Fed. 229.

5 Re Cole, 133 Fed. 41. But see Re Hemstreet, 117 Fed. 568. 630 St. at L. 544, § 41.

7 Supra, § 638b.

8 Re De Gottardi, 114 Fed. 328; Re Wilde's Sons, 131 Fed. 142. Re Ruos, 159 Fed. 252.

9 Re Romine, 138 Fed. 837; re

§ 640. Meetings of creditors and appointments of trustees. "(a) The court shall cause the first meeting of the creditors of a bankrupt to be held, not less than ten nor more than thirty days after the adjudication, at the county seat of the county in which the bankrupt has had his principal place of business, resided, or had his domicile; or if that place would be manifestly inconvenient as a place of meeting for the parties in interest, or if the bankrupt is one who does not do business, reside, or have his domicile within the United States, the court shall fix a place for the meeting which is the most convenient for parties in interest. If such meeting should by any mischance not be held within such time, the court shall fix the date, as soon as may be thereafter, when it shall be held. (b) At the first meeting of creditors the judge or referee shall preside, and, before proceeding with the other business, may allow or disallow the claims of creditors there presented, and may publicly examine the bankrupt or cause him to be examined at the instance of any creditor. (c) The creditors shall at each meeting take such steps as may be pertinent and necessary for the promotion of the best interests of the estate and the enforcement of this act.1 (d) A meeting of the creditors, subsequent to the first one, may be held at any time and place when all of the creditors who have secured the allowance of their claims sign a written consent to hold a meeting at such time and place. (e) The court shall call a meeting of creditors whenever one-fourth or more in number of those who have proven their claims shall file a written request to that effect; if such request is signed by a majority of such creditors, which number represents a majority in amount of such claims, and contains a request for such meeting to be held at a designated place, the court shall call such meeting at such place within thirty days after the date of filing the request.

versed upon another point, Bank of Ravenswood v. Johnson, C. C. A., 143 Fed. 463. Approved in Remington on Bankruptcy, $552.

§ 640. 1 The referee may call a meeting to allow the creditors to decide whether litigation should be instituted which, if unsuccessful, would subject the estate to expense

and possible cost, Re Cutler & John, 228 Fed. 771. It has been held improper to allow a creditors' meeting to select the attorney for the trustee, Re Columbia Iron Works, 142 Fed. 234; or to elect appraisers, Ibid.; or to determine the manner in which the property shall be sold, Re Arnett, 112 Fed. 770.

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