CHAPTER 67. PROCEEDINGS BEFORE REFEREES AND EVIDENCE. § 2335. Contempts before referees. § 2336. Referees records-certified and transmitted to court. § 2337. § 2338. § 2339. In event of referees absence or disability. Duties of referees-order of reference and subsequent proceedings. -time and place of referee's proceedings. facts. § 2340. Certain matters to be heard by judge—but referee may report § 2344. General and special references, and from one to another, and proceedings without reference. § 2345. § 2346. Existing law as to depositions applies. upon whom notice of taking to be served. § 2347. Certified copy of order approving trustee's bond evidence of title. effect of order as to compensation or discharge, as evidence. § 2348. § 2349. Order confirming composition as revesting title and as notice when recorded. § 2350. Taking of testimony before referee. a. 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; (4) or refuse to appear after having been subpoenaed, or, upon appearing, refuse to take oath as a witness, or, after having taken 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 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. b. 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 the 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 conditons as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court. § 41, act July 1, 1898, c. 541, 30 Stat. 556, U. S. Comp. Stat. 1901. p. 3437. The above provision confers no new or enlarged jurisdiction. Any act, matter or thing punishable by any other United States court is punishable by a bankruptcy court.1 The power to punish however is not vested in the referee, his duty being to certify the facts to the judge who will deal with the matter as if the alleged contempt had arisen in his court. A witness is not in contempt for refusing to answer incriminating questions 4 notwithstanding the provision that his testimony will not be used against him in a criminal proceeding.5 The fact that a witness refuses to testify on the advice of counsel, does not excuse the contempt. The proviso of the above section as to attendance of witnesses, has reference only to hearings before referees, and hence does not change the power of the Federal courts to compel the attendance of witnesses. It is held that a witness cannot be compelled to attend, who resides more than one hundred miles away, though within the States and that he cannot be compelled to leave the State of his residence.9 § 2336. Referees records-certified and transmitted to court. a. 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. b. 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. c. The book or books containing a record of the proceedings shall, 1 Boyd v. Glucklich, 116 Fed. 135, 53 C. C. A. 451. 2Smith v. Belford, 106 Fed. 658, 45 C. C. A. 526. 3In re Romine, 138 Fed. 837; as to jurisdiction of referee in general see ante, § 2240. 4 United States v. Goldstein, 132 Fed. 789; see also In re Levin, 131 Fed. 388. provision does not amount to an exemption from prosecution, Burrell v. Montana, 194 U. S. 573, 48 L. ed. 1122, 24 Sup. Ct. Rep. 787. 6 United States v. Goldstein, 132 Fed. 789. 7In re Hemstrect, 117 Fed. 569; as to attendance of witnesses in Federal court see ante, §§ 1742 et seq. 8In re Hemstreet, 117 Fed. 569. 9 In re Cole, 133 Fed. 414. 5 See Bankruptcy act, § 7 (9); this 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 transmitted to the court of bankruptcy and shall there remain as a part of the records of the court. § 42, act July 1, 1898, c. 541, 30 Stat. 556, U. S. Comp. Stat. 1901, p. 3437. § 2337. In event of referees absence or disability. Whenever the office of a referee is vacant, or its occupant is absent or disqualified to act, the judge may act, or may appoint another referee, or another referee holding an appointment under the same court may, by order of the judge, temporarily fill the vacancy. § 43, act July 1, 1898, c. 541, 30 Stat. 557, U. S. Comp. Stat. 1901, p. 3438. § 2338. Duties of referees-order of reference and subsequent procedings. 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. Clause 1 of 12th order in bankruptcy in force Jan. 2, 1899. Proceedings required by the act and general orders to be had before the judge have been summarized as follows, "applications for discharge, for approval of compositions, for punishment for contempt, contested involuntary petitions in bankruptcy and all petitions for adjudications when the judge is in the district. The proceedings other than these required by the general orders to be had before the judge are applications for injunctions to stay proceedings of a court or officer of the United States or of a State, and for the removal of a trustee."16 A previous section prescribes the jurisdiction of the referee.17 16 In re Abbey Press, 134 Fed. 54, 67 C. C. A. 161. 17 Ante, 2240. § 2339. time and place of referee's proceedings. 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 Clause 2 of 12th order in bankruptcy in force Jan. 2, 1899. § 2340. Certain matters to be heard by judge-but referee may report facts. 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. Clause 3 of 12th order in bankruptcy in force Jan. 2, 1899. § 2341. When papers to be filed after reference. 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. Twentieth order in bankruptcy in force Jan. 2, 1899. § 2342. Orders of referee, what to recite. 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. Twenty-third order in bankruptcy in effect Jan. 2, 1899. § 2343. Review of referee's order by judge. 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 presented, a summary of the evidence relating thereto, and the finding and order of the referee thereon. Twenty-seventh order in bankruptcy in effect Jan. 2, 1899. A party to an order made by a referee cannot have it reviewed unless he pursues the mode above prescribed. 3 § 2344. General and special references, and from one to another, and proceedings without reference. a. After a person has been adjudged a bankrupt the judge may cause the trustee to proceed with the administration of the estate, or refer it (1) generally to the referee or specially with only limited authority to act in the premises or to consider and report upon specified issues; or (2) to any referee within the territorial jurisdiction of the court, if the convenience of parties in interest will be served thereby, or for cause, or if the bankrupt does not do business, reside or have his domicile in the district. b. The judge may, at any time, for the convenience of parties or for cause, transfer a case from one referee to another. § 22 of act July 1, 1898, c. 541, 30 Stat. 552, U. S. Comp. Stat. 1901, p. 3431. The reference may be general or limited, under the above provision. Form No. 14 prescribes the order of general reference.4 Transfer to an other referee has been ordered for official misconduct.5 § 2345. Existing law as to depositions applies. 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 herein provided. Clause b of § 21, act July 1, 1898, c. 541, 30 Stat. 552, U. S. Comp. Stat. 1901, p. 3430. The general procedure for the taking of depositions is set forth in a previous chapter. 8 § 2346. upon whom notice of taking to be served. 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. Clause c of § 21, act July 1, 1898, c. 541, 30 Stat. 552, U. S. Comp. 3 In re Home etc. Co. 147 Fed. 538. 4 See appendix. Fed. Proc.-109. 5 See In re Smith, 2 Ben. 113, Fed. Cas. No. 12971. 1729 8 Ante, § 1760, et. seq. |