Cross-references: To the law: §§ 5, 18. (Vol. III, post.) Nos. 2, 30. To the General Orders: VI, VII. Meaning and application of order. This order provides the only method of procedure in partnership cases. Its provisions are plain, specific and easily understood. They mean that whenever a person who is a member of an existing partnership, or who was a member of a defunct partnership, desires to go into a court of bankruptcy, he must bring the firm and the other partners into court with him. Matter of Freund (Ref., Ia.), 1 Am. B. R. 25. It has no other purpose than to prescribe the practice for the class of cases where less than all the partners file a petition to have the partnership adjudged bankrupt. In re Ceballos (D. C., N. Y.), 20 Am. B. R. 459, 464, 161 Fed. 445. Although the bankruptcy law contains no provision expressly authorizing a partner to file a petition against his copartners, such power must be implied from this general order and § 8 of the act. In re Ceballos & Co. (D. C., N. Y.), 20 Am. B. R. 459, 465, 161 Fed. 445. It is manifest that this order has no application to a petition by an individual who is a member of a firm to have himself and not the firm adjudicated a bankrupt. N. Y. Deaf and Dumb Institute v. Crockett, 17 Am. B. R. 233, 240, 117 App. Div. 269, 102 N. Y. Supp. 412. Since there should only be partnership bankruptcies in cases which show assets, this order refers only to such cases. In re Altman (Ref., N. Y.), 1 Am. B. R. 689. The Supreme Court in this general order seems to recognize the same distinction as it does in the prescribed forms, between an adjudication of a bankrupt and of an individual partner. In re Barden (D. C., N. Car.), 4 Am. B. R. 31, 101 Fed. 553. See, generally, In re Carleton (D. C., Mass.), 8 Am. B. R. 270, 115 Fed. 246. Notice of hearing; how given.-Under the provisions of this order due notice must be given of the time fixed for a hearing upon a petition to declare a partnership a bankrupt. If the non-joining member or members of the firm can be found, in the district or out of it, personal service must be made; but if personal service cannot be had, then, upon filing before the judge (or the referee, if the case has been referred by the clerk) an affidavit showing that personal service cannot be made, an order of publication will be granted. In re Murray (D. C., Ia.), 3 Am. B. R. 601, 96 Fed. 600; In re Murray and Winters (D. C., Ia.), 3 Am. B. R. 90. Where one of the members of a copartnership petitions for an adjudication of bankruptcy against the firm as well as the members of it, this must be clearly shown in the petition and notice of the hearing of the petition must be given to the non-joining partners before the firm can be adjudged bankrupt. In re Russell (D. C., Ia.), 3 Am. B. R. 91, 97 Fed. 32. Objecting partners; filing schedules. The objecting partners, though they have committed no act of bankruptcy and cannot be adjudicated individual bankrupts, must file a schedule of their individual debts and inventory their property, upon the adjudication of the partnership and the petitioning partner. In re Ceballos & Co. (D. C., N. Y.), 20 Am. B. R. 467, 161 Fed. 451; Matter of Lenoir-Cross Co. (D. C., Tenn.), 35 Am. B. R. 774, 226 Fed. 227. This general order provides for the filing of schedules on the part of a solvent partner. Matter of Solomon & Carvel (D. C., N. Y.), 20 Am. B. R. 488, 163 Fed. 140. The non-assenting partner must file schedules of his individual estate and debts, as any surplus remaining after the discharge of his individual liabilities is an asset of the firm applicable to the payment of the liabilities of the partnership. In re Junk & Balthazard (D. C., Wis.), 22 Am. B. R. 298, 169 Fed. 481; Armstrong v. Fisher (C. C. A., 8th Cir.), 34 Am. B. R. 701, 224 Fed. 97. The fact that, without complying with general order 23, a referee made an order on an unadjudicated member of a partnership, after it, and the other member had been adjudicated bankrupt, to file a schedule of his debts and an inventory of his property on or before nineteen days after the adjudication, was not fatal to the order of the court confirming such an order, because the unadjudicated member was required by the bankruptcy law and general order 8 to make these findings within ten days after that adjudication. Armstrong v. Fisher (C. C. A., 8th Cir.), 34 Am. B. R. 701, 224 Fed. 97. Defense of non-joining partners.- All that a non-joining partner may do under this general order is to resist adjudication against the partnership as a separate entity. In doing so he can defend only against the allegations contained in the petition. If he considers the petition demurrable, he may demur. If not, he may answer. In re Ceballos & Co. (D. C., N. Y.), 20 Am. B. R. 459, 465, 161 Fed. 455. The non-assenting partner cannot set up the want of an act of bankruptcy as a defense to the petition, but he may set up the defense of solvency, and upon that issue he is entitled to a jury trial. In re Forbes (D. C., Mass.), 11 Am. B. R. 787, 128 Fed. 137. Under the provisions of this general order, it is open to any one of the partners to contest an adjudication against the firm, and to defeat it by showing that the firm is not insolvent, or, if insolvent, that it has not committed an act of bankruptcy. In re Laughlin (D. C., Ia.), 3 Am. B. R. 1, 96 Fed. 589. Assets of individual partners.-The individual assets of each partner are subject to the payment of partnership liabilities, and an order may be made that the trustee of the partnership take possession of such assets and administer them, unless, upon proper procedure, such partner is declared a bankrupt, and his creditors elect a trustee. General Order 8 provides for this. Matter of Hansley & Adams (D. C., Cal.), 36 Am. B. R. 1, 228 Fed. 564. Service of petition on special partner. In a voluntary proceeding in bankruptcy by general partners, a copy of the petition should be served with the usual subpoena upon a special partner, but a failure to serve the petition may be supplied after service of the subpoena. Matter of Carrion & Co. (D. C., Porto Rico), 41 Am. B. R. 304, 10 P. R. Fed. 332. IX. SCHEDULE IN INVOLUNTARY BANKRUPTCY In all cases of involuntary bankruptcy in which the bankrupt is absent or cannot be found, it shall be the duty of the petitioning creditor to file, within five days after the date of the adjudication, a schedule giving the names and places of residence of all the creditors of the bankrupt, according to the best information of the petitioning creditor. If the debtor is found, and is served with notice to furnish a schedule of his creditors and fails to do so, the petitioning creditor may apply for an attachment against the debtor, or may himself furnish such schedule as aforesaid. [This general order is new.] Cross-references: To the law: As to referee's, § 39-a (6). As to bankrupt's duty to file schedules, § 7(8); To the Official Forms: (Vol. III, post.) No. 1, with the schedules. Filing schedules by bankrupt.- After an adjudication in bankruptcy all the creditors have a vested interest in the proceeding, and, pursuant to this order, the bankrupt can be compelled to file a schedule of his creditors, or if he is absent or cannot be found, it is the duty of the petitioning creditors to do so. The petition cannot be dismissed except with the consent of all the creditors. Matter of Levi & Klauber (C. C. A., 2d Cir.), 15 Am. B. R. 294, 142 Fed. 962. X. INDEMNITY FOR EXPENSES Before incurring any expense in publishing or mailing notices, oi in traveling, or in procuring the attendance of witnesses, or in perpetuating testimony, the clerk, marshal or referee may require, from the bankrupt or other person in whose behalf the duty is to be performed, indemnity for such expense. Money advanced for these purposes by the bankrupt or other person shall be repaid him out of the estate as part of the cost of administering the same. [This general order is new.] Cross-references: To the law: As to publishing and mailing notices, § 58; As to examinations of the bankrupt or others, §§ 7(9), 21-a; As to marshal's expenses, § 52; As to clerk's expenses, §§ 24, 25, 52, 71; In general, §§ 62, 64-b(3). To the General Orders: IX, XII, XXII, XXVI, XXXV. To the Supplementary Forms: (Vol. III, post.) By analogy, No. 169. Purpose and application of order. The provisions of this order are intended to cover money which the bankrupt or some third party may be called upon to furnish after the initiation of the proceedings in order to meet expenses incurred by the officer for the purposes specially recited in the order, which purposes do not include the money deposited with the clerk to meet the fees (not expenses) of the clerk, referee and trustee. The purpose of the order is to protect the officers from personal loss in the performance of their duties under the bankrupt act, but it is not the intent of the order that the bankrupt shall be repaid the money which presumably he took out of his estate to pay the fees of officers before he filed his petition in bankruptcy. In re Matthews (D. C., Iowa), 3 Am. B. R. 265, 97 Fed. 772. Under this order a bankrupt is entitled to be reimbursed for the amount advanced by him for the issuance, publication and mailing of necessary notices to creditors of an application for his discharge. In re Hatcher (D. C., Tex.), 16 Am. B. R. 722, 145 Fed. 658. The referee is not authorized to require the bankrupt to pay the statutory fee before he is given his discharge where such bankrupt has filed an affidavit of inability. In re Plimpton (D. C., Va.), 4 Am. B. R. 614, 103 Fed. 775. See, generally, Sellers v. Bell (C. C. A., 5th Cir.), 2 Am. B. R. 529, 552, 94 Feȧ. 801. In reimbursing the bankrupt or a creditor for money advanced under this general order to defray the expenses of the referee, marshal or clerk, such reimbursement has the same priority that the expenses themselves would have had; the one making the advancement being subrogated to the rights of the officer whose expenses are advanced. Matter of Burke (D. C., Ohio), 6 Am. B. R. 502, 155 Fed. 703. Other cases citing this order. In re Smith (D. C., N. Car.), 5 Am. B. R. 559, 564, 108 Fed. 39; Matter of McCubbin Co. (Sup. Ct., D. C.), 33 Am. B. R. 277, 42 Wash. Law Rep. 774; Matter of Longhney (D. C., Wash.), 34 Am. B. R. 206, 218 Fed. 980; Matter of Wester (C. C. A., 3d Cir.), 40 Am. B. R. 89, 242 Fed. 465. XI. AMENDMENTS The court may allow amendments to the petition and schedules on application of the petitioner. Amendments shall be printed or written, signed and verified, like original petitions and schedules. If amendments are made to separate schedules, the same must be made separately, with proper references. In the application for leave to amend, the petitioner shall state the cause of the error in the paper originally filed. [The last sentence is new. The rest of the general order is substantially the same as a part of General Order XIV, 1867.] Cross-references: To the law: §§ 2(6) (15), 39-a (2). To the Supplementary Forms: (Vol. III, post.) Nos. 166, 167, 168. To the Equity Rules: (Vol. IV, post.) XXVIII to XXX. As to amendments to petitions, see discussion under § 18; as to amendments of schedules, see under § 7; and as to intervention by other creditors, see under § 59. Purpose and application of order. The purpose of this order is to authorize the court to allow corrections to be made of errors, insufficiencies and uncertainty in the petition or schedules, but not practically to repeal the legislative declarations that petitions must be filed in duplicate within the four months specified. In re Stevenson (D. C., Del.), 2 Am. B. R. 66, 94 Fed. 110. This power of amendment is substantial and conferred for effecting the broad purposes of the act, and is not confined to niceties of diction or other immaterial or merely formal matters. To hold that it does not embrace the insertion of material and essential averments in any stage of the proceedings before judg ment would reduce it to a shadow. In re Mackey (D. C., Del.), 6 Am. B. R. 577, 586, 110 Fed. 355. It deals with amendments to a petition and schedules, but was not intended to abrogate or restrict the general power of amendment in other respects vested in the court. In re Bellah (D. C., Del.), 8 Am. B. R. 310, 116 Fed. 49. See also Gleason v. Smith, Perkins & Co. (C. C. A., 3d Cir.), 16 Am. B. R. 602, 145 Fed. 895. An application for leave to amend matters must set forth the allegations required by this order, and if such allegations are not set forth time may be granted to insert the same. In re Portner (D. C., Pa.), 18 Am. B. R. 89, 149 Fed. 799. See also In re Pure Milk Co., of Mobile (D. C., Ala.), 18 Am. B. R. 735, 154 Fed. 682. No time is specified within which amendments may be allowed under this order. Columbia Bank v. Birkett (Ct. App., N. Y.), 9 Am. B. R. 481, 496, affg. 65 App. Div. 615. The application must state the cause of the error in the paper originally filed. Matter of Brincat (D. C., Ala.), 37 Am. B. R. 587, 233 Fed. 811. Amendment of exemption claim.— A bankrupt, making an imperfect claim to exemptions in his schedules, may be allowed to amend, but such amendment must relate to conditions existing at the time the imperfect claim was formulated. Matter of Crum (D. C., Ohio), 34 Am. B. R. 586, 221 Fed. 729. Verification of amendment.- Failure to verify an amendment to an involuntary petition, as required by this general order, may be subsequently corrected. International Silver Co. v. N. Y. Jewelry Co. (C. C. A., 6th Cir.), 37 Am. B. R. 91, 233 Fed. 945. Other cases citing this order. In re Strait (Ref., N. Y.), 2 Am. B. R. 308; In re Meyers (D. C., N. Y.), 3 Am. B. R. 260, 97 Fed. 757; In re Shaffer (D. C., N. Car.), 4 Am. B. R. 728, 104 Fed. 982; White v. Bradley Timber Co. (D. C., Ala.), 8 Am. B. R. 671, 116 Fed. 768; In re Duffy (D. C., Pa.), 9 Am. B. R. 358, 118 Fed. 926; Matter of Haff (C. C. A., 2d Cir.), 13 Am. B. R. 362, 366, 135 Fed. 742; Burke v. Guarantee Title & Trust Co. (C. C. A., 3d Cir.), 14 Am. B. R. 31, 134 Fed. 562; In re Fisher (D. C., Va.), 15 Am. B. R. 652, 654, 142 Fed. 205; In re Goodman (C. C. A., 5th Cir.), 23 Am. B. R. 504, 174 Fed. 644; Brandt v. Meyhew (C. C. A., 9th Cir.), 33 Am. B. R. 845, 218 Fed. 422. XII. DUTIES OF REFEREE 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. [Paragraph 1, except the last sentence, is the second paragraph of General Order IV, 1867, with slight changes. Paragraph 2 is derived from General |