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time within which an answer may be filed. If such application is not filed within such time, a trial by jury shall be deemed to have been waived.

b. If a jury is not in attendance upon the court, one may be specially summoned for the trial, or the case may be postponed, or, if the case is pending in one of the district courts within the jurisdiction of a circuit court of the United States, it may be certified for trial to the circuit court sitting at the same place, or by consent of parties when sitting at any other place in the same district, if such circuit court has or is to have a jury first in attendance.

[Act of 1867. SEO. 41. . The court shall proceed summarily to hear the allegations of the petitioner and debtor, and may adjourn the proceedings from time to time, on good cause shown, and shall, if the debtor on the same day so demand in writing, order a trial by jury at the first term of the court at which a jury shall be in attendance, to ascertain the fact of such alleged bankruptcy.]

Whenever an alleged bankrupt denies the allegation of insolvency, he must appear in court and submit to an examination, and in case he fails to so attend, the burden of proving his solvency rests upon him. (Sec. 3, d.) The right of trial by jury extends also to cases where the defendant is charged with committing an offense in violation of the provisions of this act. (Sec. 19, c.)

The writ of subpoena is issued at the time of filing the petition and is returnable in fifteen days, unless such time is extended by the judge (sec. 18, a), and the bankrupt or any creditor may appear and plead within ten days after the return day, or within such further time as the court may allow. (Sec. 18, b.)

For the acts of bankruptcy, and the issue of solvency as to which jury trials are specifically provided for, see section 3, a, b, c and d. There are few decisions among the old cases bearing on the particular provisions of this section. The following cases are given as having a possible bearing by analogy: A defendant who files a demurrer to the whole petition will not be allowed, after such demurrer is overruled, to file a genera! answer or denial of all the acts of bankruptcy alleged and demand a jury trial of the issues so raised. (In re Benham, 8 N. B. R. 94.) Issues of fact raised in summary proceedings may be tried by jury. (Bill, Ass., v. Beckwith, 2 N. B. R. 82; 1 Chi. Leg. News, 103; Fed. Cas. 1406.) A jury trial may be allowed to determine the amount of rent due which accrued while the assignee occupied the premises. (Buckner v. Jewell

et al, 14 N. B. R. 286.) The rule that every one is presumed to contemplate the necessary consequences of his acts is a presumption of fact, and where there are circumstances in a case tending to show that a party did not, in paying a certain creditor, in fact intend to prefer him, the question as to the actual intent may be left to the jury, notwithstanding the party was insolvent, and the necessary effect of his payment was to prefer. (In re Seeley, 19 N. B. R. 1; Fed. Cas. 12628.) A court may submit a question as to the existence of a partnership to the jury instead of charging them as a matter of law, as the court can take a matter from the jury whether a point is undisputed or not. (In re Jelsh et al., 9 N. B. R. 412; Fed. Cas. 7257.) It is a question of fact for the jury whether or not, at the time a creditor took an assignment of property from the debtor, the creditor knew or had reason to know the debtor was insolvent. (Ecker v. McAllister, 17 N. B. R. 42.) The question of inadequacy of price, as an evidence of fraud in a sale by an insolvent vendor, should be left to the jury. (Rhoads v. Blatt, 16 N. B. R. 32.) Where a bankrupt had permitted creditors to take goods from his store, and had made a general assignment for benefit of creditors just preceding his bankruptcy, and no explanations of such acts were offered, he is conclusively presumed to have intended to prefer creditors, and there was no question for the jury. (In re Seeley, 19 N. B. R. 1; Fed. Cas. 12628.) A respondent who does not file his answer until after the expiration of the rule to show cause cannot demand that the issues thus raised shall be tried by a jury. (In re Gebhardt, 3 N. B. R. 63; Fed. Cas. 5294.) A defendant who appears, but neither pleads, demurs nor demands trial by jury, but obtains a continuance, cannot then demand trial by jury, but the court may permit a plea to be filed, which shall be tried by the court. (In re Sherry, 8 N. B. R. 142.) Whether a judgment is or is not rendered for fraud is not a question for a jury, but is to be determined by inspection of the record. (Flanagan v. Pearson, 14 N. B. R. 37.)

c. The right to submit matters in controversy, or an alleged offense under this Act, to a jury shall be determined and enjoyed, except as provided by this Act, according to the United States laws now in force or such as may be hereafter enacted in relation to trials by jury.

By U. S. Rev. Stats., sec. 566, the trial of issues of fact in all causes, except cases in equity and cases in admiralty and maritime jurisdiction, shall be by jury. By sec. 648 the trial of issues of fact in the circuit courts shall be by jury, except in cases of equity and of admiralty and maritime jurisdiction, and except as otherwise provided in proceedings in bankruptcy, etc. Sec. 649 provides that issues of fact in civil cases in any circuit court may be tried and determined by the court

without the intervention of a jury, whenever the parties file a stipulation in writing waiving a jury. The finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury.

Sec. 20. Oaths, affirmations.-a. Oaths required by this Act, except upon hearings in court, may be administered by (1) referees; (2) officers authorized to administer oaths in proceedings before the courts of the United States or under the laws of the State where the same are to be taken; and (3) diplomatic or consular officers of the United States in any foreign country.

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[Act of 1867. SEC. 11. And shall annex to his petition a schedule, verified by oath before the court, or before a register in bankruptcy or before one of the commissioners of the circuit court.

SEC. 22. To entitle a claimant against the estate of a bankrupt to have his demand allowed, it must be verified by a deposition in writing on oath or solemn affirmation, before the proper register or commissioner. . •]

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Any person making a false oath in relation to any proceeding in bankruptcy is liable to be punished by imprisonment for a period of two years. (Sec. 296.) For persons who are authorized to administer oaths, see note to section 21b.

A notary public before whom proof of debt is made must authenticate the same by his official seal as well as his signature. A seal used in common with others will not answer. (In re Nebe, 11 N. B. R. 289; Fed Cas. 10073.) The requisites of a notarial seal are determined by the law of the locality from which the official derives his authority. In the absence of express legislation, it need not contain the name of the official. It is the seal, and not its composition or character of words and devices, which raises the presumption of official character of which the courts take judical notice. The presumption is that it is the official seal of the person it purports to be, and who subscribes the jurat. (In re William W. Phillips, 14 N. B. R. 219; 8 Chi. Leg. News, 409; 22 Int. Rev. Rec. 306; Fed. Cas. 11098.)

The provisions of the statute as to verification of the petition must be strictly followed. It is a matter of substance and right, and is not to be dispensed with. (In re Keiler et al., 18 N. B. R. 10; 7 Chi. Leg. News, 42; 9 West. Jur. 175; Fed. Cas. 7617.) The court has no discretion to refuse to receive and file a proof of debt which appears on its face to have been taken by a proper officer and to be correct in form and substance. (In re Merrick, 7 N. B. R. 459; Fed. Cas. 9463.)

The verification of a schedule and inventory by a bankrupt is an affidavit and may be sworn to before a notary public. (In re John W. Bailey, 15 N. B. R. 48; Fed. Cas. 727.) A debt against a bankrupt's estate may be proven before a United States commissioner, although the bankrupt and the creditor reside in the same judicial district. (In re Sheppard, 1 N. B. R. 115; 7 Amer. Law Reg. (N. S.) 484; 1 Amer. Law T. Rep. Bankr. 49; Fed. Cas. 53.) The form of oath prescribed for proving debts in bankruptcy need not be followed in voting upon resolutions for composition. (Ex parte Morris, 12 N. B. R. 170.)

b. Any person conscientiously opposed to taking an oath may, in lieu thereof, affirm. Any person who shall affirm falsely shall be punished as for the making of a false oath.

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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 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.

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[Act of 1867. SEO. 7. Parties and witnesses summoned before a register shall be bound to attend in pursuance of such summons at the place and time designated therein, and shall be entitled to protection, and be liable to process of contempt in like manner as parties and witnesses are now liable thereto, in case of default in attendance under any writ of subpoena.

SEC. 22. The court may, on the application of the assignee, or of any creditor, or of the bankrupt, or without any application, examine upon oath the bankrupt, or any person tendering or who has made proof of claims, and may summon any person capable of giving evidence concerning such proof, or concerning the debt to be proved.

SEC. 26. That the court may, on the application of the assignee in bankruptcy, or of any creditor, or with

out any application, at all times require the bankrupt, upon reasonable notice, to attend and submit to an examination, on oath, upon all matters relating to the disposal or condition of his property, to his trade and dealings with others, and his accounts concerning the same, to all debts due to or claims from him, and to all other matters concerning his property and estate and the due settlement thereof according to law, which examination shall be in writing, and shall be signed by the bankrupt and filed with the other proceedings; and the court may, in like manner, require the attendance of any other person as a witness, and if such person shall fail to attend, on being summoned thereto, the court may compel his attendance by warrant directed to the marshal, commanding him to arrest such person and bring him forthwith before the court, or before a register in bankruptcy, for examination as such witness. If the bankrupt is imprisoned, absent, or disabled from attendance, the court may order him to be produced by the jailor, or any officer in whose custody he may be, or may direct the examination to be had, taken, and certified at such time and place and in such manner as the court may deem proper, and with like effect as if such examination had been had in court. The bankrupt shall at all times, until his discharge, be subject to the order of the court.

SEC. 38. . . Evidence or examinations in any of the proceedings under this act may 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 may direct a reference to a register in bankruptcy, or other suitable person, to take and certify such examination, and may compel the attendance of witnesses, the production of books and papers, and the giving of testimony in the same manner as in suits in equity in the circuit court.

This gives full opportunity to all parties concerned in bankruptcy proceedings to obtain desired testimony irrespective of the residence of the witnesses. Under this provision it would seem that where the witnesses cannot appear before the court or referee having jurisdiction of the case, they may be required to appear before a referee or judge of a state court where they may for the time be residing. During the examination of the bankrupt or other proceedings, the referee may authorize the employment of stenographers, upon the application of the trustee, at the expense of the estate, at a compensation not to exceed ten cents per folio for reporting and transcribing the testimony. (Sec. 38.)

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