county of and State of being duly sworn and examined at the time and place above mentioned, upon his oath says: [Here insert substance of examination of party.] Referee in Bankruptcy. Cross-references.- See §§ 7, 21, 38, 41. Also General Order XXII. This form is archaic.— The bankrupt or the witness is sworn and his examination taken down by a stenographer and transcribed, and the testimony, after being read over and signed, is made part of the referee's record-book. Testimony. Testimony of bankrupt a part of the record and creditors are entitled to access to it. In re Samuelsohn, 23 Am. B. R. 528, 174 Fed. 911. Referee not required to take notes of testimony personally or incur expense for clerical or stenographer's services without indemnity therefor. He should supervise the examination at expense of party taking it or he may allow it to be taken by the parties themselves. In re Warzawiak, 1 National Bank'r News, 135. rupt, and the proceeding in bankruptcy is pending in the district court of the United States for the ..... district of These are to require you, to whom this summons is directed, personally to be and appear before .. referees in bankruptcy of the said court, at at ... o'clock in the .... ...... day of ..... Witness the Honorable this ..., one of the on the ...... noon, then and there judge of said court, and the day of .. A. D. Clerk. Cross-references. To the law, §§ 7(9), 21, 52-b; to the General Orders, III, XXII; to the forms, No. 28. See also, for designation of persons other than the marshal to serve subpoenas, Equity Rule, XV, Vol. IV, post, though the phrasing of the Return, supra, seems to indicate that any person may serve a subpoena without specific designation. RETURN OF SUMMONS TO WITNESS In the District Court of the United States for the ..... District and makes oath, and says that he did, on day of ... On this day of of and State of the serve of and State of .... A. D. 19..., personally in the county of with a true copy of the summons hereto annexed, by delivering the same to him; and he further makes oath and says that he is not interested in the proceeding in bankruptcy named in said summons. Subscribed and sworn to before me, this .... day of A. D. 19... Form No. 31 PROOF OF UNSECURED DEBT In the District Court of the United States for the of IN THE MATTER OF Bankrupt. In Bankruptcy. District in the county of oath, and says that in said district of and made the person by [or against] whom a petition for adjudication of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to said deponent in the sum of consideration of said debt is as follows: .... dollars; that the that no part of said debt has been paid [except that there are no set-offs or counterclaims to the same [except..... ]; ... .]; and that deponent has not, nor has any person by his order, or to his knowledge or belief, for his use, had or received any manner of security for said debt whatever. Subscribed and sworn to before me, this ..... A. D. 19... Creditor. day of [Official character.] Cross-reference.- Consult § 57, ante. If this form does not fit the latter special clauses must usually be added. Thus (1) that no note is held to or judgment entered on the debt, and (2) concerning the average due date on an account maturing at different times, and (3) if on open account, when such account became or will become due, and (4) if by a corporation (see Form 33) why the claim is not verified by its treasurer, and (5) if the claim has been assigned after bankruptcy, certain other allegations as to the assignment. For these special clauses see Form No. 206, post. This can be sworn to before persons "authorized to administer oaths in proceedings before the courts of the United States, or under the laws of the State where the same are taken." See § 20, ante. Power of attorney.- Proof of claim and power of attorney to make proof may be contained in the same instrument, but the instrument must, in that event, contain all of the allegations and requirements for both the proof and the power. Matters of Saslow (D. C., Ohio), 47 Am. B. R. 243, 275 Fed. 587, and see note to Form No. 21, ante. Practice. See § 57, Vol. II, ante. In re Sumner, 4 Am. B. R. 123, 101 Fed. 224. In re Dunn Hardware and Furniture Co., 13 Am. B. R. 147, 132 Fed. 719. Proofs of debt must show at least (1) the claim, (2) the consideration therefor, (3) security held therefor, (4) payments thereon, (5) that sum claimed is justly due and owing. It is the duty of the referee to examine the proofs filed to ascertain whether they comply with the statute and general orders. In re Goble Boat Co. (D. C., N. Y.), 27 Am. B. R. 48, 190 Fed. 92. Undisclosed credits, erasure of word "except" after "no part of said debt has been paid." In re Girvin (D. C., N. Y.), 20 Am. B. R. 490, 160 Fed. 197. What may be considered as a claim. In re Faulkner (C. C. A., 8th Cir), 20 Am. B. R. 542, 161 Fed. 900, 88 C. C. A. 505. Court may not allow inequitable claims. In re Dove Harris Woodworth Co. (Ref., N. Y.), N. Y. Law Journal, April 10, 1916. When not "duly proved." In re Goble Boat Co. (supra). Proof by representative of a class. In re Salvator Brewing Co. (C. C. A., 2nd Cir.), 28 Am. B. R. 56, 193 Fed. 989, 113 C. C. A. 626, aff'g s. c. 26 Am. B. R. 21, 188 Fed. 522. All the formalities required in ordinary pleadings do not apply to the filing of a proof of debt in bankruptcy. Kelsey v. Munson (C. C. A., 8th Cir.), 28 Am. B. R. 520, 198 Fed. 841, 117 C. C. A. 483. Proof of claim for a loan is sufficient, although the allegations do not amount to a count in assumpsit for money had and received. Flower v. Commercial Trust Co. (C. C. A., Sth Cir.), 35 Am. B. R. 74, 223 Fed. 318. Statement of Consideration.- See § 57, Vol. II, ante. In re Stevens, 5 Am. B. R. 806, 107 Fed. 243. In re Creasinger, 17 Am. B. R. 538, 145 Fed. 224. "For legal services," insufficient. In re Scott, 1 Am. B. R. 553, 93 Fed. 418. Amount of claim must be definitely stated, not left to depend upon some future contingency. Bay State Milling Co. v. Susman-Fener Co. (Conn., Sup. Ct. of Err.), 39 Am. B. R. 132, 100 Atl. 19. Allegations founded upon "information and belief," not sufficient. In re United Wireless Telegraph Co. (D. C., Me.), 29 Am. B. R. 848, 201 Fed. 445. A statement that claim is for "goods, wares and merchandise" is insufficient. In re Blue Ridge Packing Co., 11 Am. B. R. 36, 125 Fed. 619. In re Morris, 18 Am. B. R. 828, 154 Fed. 211. In re Brett, 12 Am. B. R. 492, 130 Fed. 981. In re Coventry Evans Furniture Co., 22 Am. B. R. 272, 166 Fed. 516. Withdrawal of note from proof of debt. Sec. 57-b. In re Loden, 25 Am. B. R. 917, 184 Fed. 965. Failure to file written instrument with proof of claim under § 57-b raises no presumption against its existence. Whitney v. Dresser (C. C. A., 2d Cir.), 13 Am. B. R. 747, 135 Fed. 495, aff'd, 200 U. S. 532, 535, 50 L. Ed. 584. Absence of date in deposition. In re Blue Ridge Packing Co. (supra). Not a pleading, but a deposition. Should state the origin and character of the debt and the items thereof. In re Creasinger (supra). In re United Wireless Telegraph Co. (supra). Claim for money loaned should state that payments set forth were received on the claim where, on the face of the claim, it appears barred by limitation. Matter of Ballentine (D. C., N. Y.), 37 Am. B. R. 111, 232 Fed. 271. Proof of debt prima facie evidence of the indebtedness. Whitney v. Dresser (supra). A proved claim does not become allowed by the filing thereof. In re Two Rivers Woodenware Co. (C. C. A., 7th Cir.), 29 Am. B. R. 518, 199 Fed. 877, 118 C. C. A. 325. Date of obligations should be given to exclude possibility of defense of statute of limitations. Matter of Eisenberg (D. C., N. Y.), 40 Am. B. R. 864, 251 Fed. 427. Oath and acknowledgment thereof.-See § 57, Vol. II, ante. Proof made under power of attorney, acknowledged before a foreign consul is sufficient. In re Sugenheimer (D. C., N. Y.), 1 Am. B. R. 425, 91 Fed. 744. When taken before notary of another State no further proof of authority required than signature and seal. In re Pancoast, 12 Am. B. R. 275, 129 Fed. 643. County clerk's certificate not necessary. Matter of Eisenberg (D. C., N. Y.), 40 Am. B. R. 864, 251 Fed. 427. Claim sworn to before claimant's attorney of record as notary proper. In re Kimball, 4 Am. B. R. 144, 100 Fed. 777. Amendment of verification. In re Medina Quarry Co. (D. C., N. Y.), 24 Am. B. R. 769, 179 Fed. 929. In re Finlay Bros., 3 Am. B. R. 738, 104 Fed. 675. Assignment of claim after bankruptcy and before proof should be supported by affidavit of assignor, owner at time of filing of petition setting forth the consideration. In re McCarthy Portable Elevator Co. (D. C., N. J.), 30 Am. B. R. 247, 205 Fed. 986. Such facts should be shown as will estop the assignor from making the same claim. In re Miner, 8 Am. B. R. 248, 114 Fed. 998, 9 Am. B. R. 100, 117 Fed. 953. Filing of Proof.- See § 57, Vol. II, ante. In re French (D. C., Mass.), 25 Am. B. R. 77, 181 Fed. 583. A creditor by filing a claim in bankruptcy acquiesces in the adjudication. In re New York Tunnel Co. (C. C. A., 2d Cir.), 21 Am. B. R. 531, 166 Fed. 284, 92 C. C. A. 202. Where a trustee to whom a proof of claim has been delivered does not deliver such proof of claim to the referee, creditor cannot be charged with failure to file proof and it is a sufficient filing of the proof. J. B. Orcutt Co. v. Green (U. S., Sup.), 17 Am. B. R. 72, 204 U. S. 96, 51 L. Ed. 390, rev'g In re Ingalls Bros. (C. C. A., 2d Cir.), 13 Am. B. R. 512, 137 Fed. 517, 70 C. C. A. 101. In re Kessler et al. (C. C. A., 2d Cir.), 25 Am. B. R. 512, 184 Fed. 51, 107 C. C. A. 13, rev'g 23 Am. B. R. 901, 176 Fed. 647. In re Fairlamb Co., 28 Am. B. R. 515, 199 Fed. 278. Not extended to employee of trustee. In re Lathrop, Haskins and Co. (C. C. A., 2d Cir.), 28 Am. B. R. 756, 197 Fed. 164, 116 C. C. A. 601. Creditor entitled to interest. In re John Osborn's Sons and Co. (C. C. A., 2d Cir.), 24 Am. B. R. 65, 177 Fed. 184, 100 C. C. A. 392. |