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Rule XLITI On the presentation of a petition for the adjudication of a bankrupt, the clerk shall enter on the minutes of the court the name of the attorney presenting the same, and note the proceedings thereon; and the clerk is hereby directed to attach the seal of the court when required, and to sign the order of adjudication, the order of reference, and all orders of publication in the proceeding, when any of such orders shall have been granted by the judge or court, and such orders shall be entered thereupon.
FOR THE WESTERN DISTRICT OF NEW YORK
Rule I. Sessions of district court Except during the absence or inability of the district judge the district court will be open for the transaction of business as a court of bankruptcy, at the United States court room, in the city of Buffalo, on Tuesday of every week at 10 o'clock in the forenoon, except during the month of August, and when the judge is holding a term elsewhere. No case or matter in bankruptcy will, in ordinary circumstances, be taken up on other days. In case of the nonattendance of the judge at the time hereby appointed, or at any other time which may by special order be designated for any special session of the court, all proceedings shall be continued, as of course and without prejudice, to the next session of the court. The district court will also be open for the transaction of business as a court of bankruptcy on the first days of the regular terms appointed to be held at Elmira on the second Tuesday in January, at Buffalo on the second Tuesday in March, at Rochester on the second Tuesday in May, at Jamestown on the second Tuesday in July, at Lockport on the second Tuesday in October, and at Buffalo on the second Tuesday in November. Bankruptcy business may also be transacted at
Canandaigua on the second Tuesday in September, when the term of the circuit court, appointed to be held at that time, is presided over by the district judge.
Rule II. Notice of motions and other hearings Motions must be noticed and orders to show cause must be made returnable on Tuesdays and at the times and places indicated in the preceding rule. If noticed for any other day, except by leave of the judge, the notice will be treated as a nullity. Notice of motion, if personally served, must be served at least eight days, and if served by mail at least ten days, before the time appointed for the hearing. The judge or referee may, upon an affidavit showing grounds therefor, make an order to show cause why the relief demanded should not be granted and in the order may direct that service of less than eight days shall be sufficient. When not otherwise specially provided for by law, all notices of other hearings and proceedings in bankruptcy shall conform to the foregoing provisions as to notices of motion.
Rule III. Proceedings in counties where there is no referee
or newspaper In case a petition is filed by or against a bankrupt who resides in any county where there is a vacancy in the office of referee, or where the referee is disqualified, absent, sick or otherwise unable to act, the reference shall be made to the referee who is most conveniently located to the bankrupt's residence. In case a petition is filed by or against a bankrupt who resides in a county where there is no designated newspaper, or where the designated newspaper for any reason refuses to act, the notices required by law may be published in a newspaper named by the parties in interest published in the county where the bankrupt resides, or the major part of his property is situated.
Rule IV. Filing petition; deposit of fees All petitions shall be filed with the clerk at his office in Buffalo. At the time of filing a petition thirty dollars shall be paid to the clerk by the petitioner, except in cases where a fee is not required by a voluntary bankrupt; being ten dollars for the clerk, fifteen dollars for the referee, and five dollars for the trustee. In case the petition is dismissed it shall be the duty of the clerk forthwith to return to the petitioner the amount deposited for the fees of the referee and trustee, respectively. Voluntary petitions must be filed in triplicate and involuntary petitions in duplicate. When the judge is absent from the district it shall be the duty of the clerk to enter an order as provided in Form No. 15, reciting the absence of the judge, and referring the case to the proper referee. When the judge is present a court order shall be entered as provided in Form No. 14. Fees deposited by the petitioner in an involuntary case must be returned to him by the trustee out of the estate of the bankrupt in all cases where property sufficient for such purpose comes to the hands of the trustee.
Rule V. Petition in forma pauperis In case a petition is filed by a proposed voluntary bankrupt, which is accompanied by an affidavit under subdivision 2 of section 51 of the act, it shall be the duty of the clerk to file said petition without the payment of the fees provided for by law. If the clerk, or the referee to to whom said petition is referred, has reason to believe such affidavit is false, he may file a certificate to that effect and cause the bankrupt to be examined. If upon such examination the referee reports in writing that the statements contained in such affidavit are false, and that the bankrupt has or can obtain money with which to pay said fees, such report shall be sufficient proof upon which to
Hearings; involuntary petition — Rules 6, 7
base proceedings under subdivision 4 of General Order No. XXXV.
Rule VI. Referee to fix time and place of hearings The clerk shall mail a copy of the order of reference to the referee, and thereafter all proceedings, except such as are required by the act, or by the general orders, to be had before the judge, shall be had before the referee, who shall fix the time when and the place where he will act upon the matters arising in the case; except that all meetings of creditors must be held in the county of the bankrupt, either at the county seat or at a place more convenient for the parties in interest. If the referee cannot attend on the day named in the order of reference he may name a subsequent day within ten days thereafter, and give the bankrupt timely notice of the change; but the day first named shall be the day from which the bankrupt shall be subject to the orders of the court as provided in General Order No. XII.
If the place named in the order of reference be manifestly inconvenient as a place of meeting for the parties in interest, the referee may fix a more convenient place and give the bankrupt timely notice of the change.
Rule VII. Involuntary petition; notice to debtor; reference on
default Where an involuntary petition is filed in conformity with law it shall be the duty of the clerk to issue a subpæna, as provided in Form No. 5, stating the time and place when the debtor is to appear. There shall be endorsed upon the subpæna the following:
“Notice to defendant -- It is not necessary for you to appear on the return day of this subpæna. You may appear and plead to the petition at any time within five days after said return day.”
Subpoena; pleadings Rules 8, 9
In case no pleadings are filed by the bankrupt or any of his creditors the judge, or, in his absence, the clerk, will enter the proper order without further appearance or motion on the part of the petitioner.
Rule VIII. Service of subpoena; publication In involuntary proceedings, if personal service of the subpæna cannot be made by a delivery of a copy thereof to the debtor or to some adult person who is a member or resident in the debtor's family, at his dwelling house or usual place of abode within the district, and if the debtor shall not file his appearance within ten days after the return day of the subpæna, the court, on proof by affidavit of the foregoing facts, and of the whereabouts of the debtor, will make an order directing such debtor to appear, plead, answer or demur, by a day certain to be designated therein, pursuant to section 738 of the United States Revised Statutes, which order shall be served upon such absent debtor, if practicable, wherever found, or if personal service of such order upon such absent debtor is not practicable, such order shall be published as provided in the act; and upon proof of such service or publication of said order, and of compliance with the terms thereof, proceedings shall be had as upon personal service of the debtor within the district.
Upon the petition of one or more of several copartners, where some other member or members of the firm refuse to join in the petition, the like proceedings, if there are firm assets, must be had to bring in the other copartners.
Rule IX. Pleadings in involuntary cases; trial by jury Prior to the denial of bankruptcy, as provided in Form No. 6, the pleadings in involuntary cases on the part of the alleged bankrupt, or any of his creditors who oppose