70 Me. 153; Van Nostrand v. Barr, 30 Md. 128; Griswold v. Platt, 9 Met. [Mass.], 16; Perry v. Langley, 1 B. R. 559; s. c. 5 Low. Rep. 117; Martin v. Barry, 37 Cal. 208; s. c. 2 B. R. 629. See also Shryock v. Bashore, 13 B. R. 481, for an extended discussion and classification of the cases relative to the extent of the suspension of State Laws). A State Law that merely prescribes a mode by which the trust created by an assignment, recognized by the common law for the benefit of creditors, shall be carried out is not an insolvent law, especially when it does not discharge an insolvent from arrest or imprisonment or prevent his after-acquired property being appropriated to the payment of his debts (Mayer v. Hellman [U. S. Supreme Ct.], 91 U. S. 496; Cook v. Rogers, 31 Mich. 91; Von Heim v. Elcus, 8 Hun. 516). Although such an assignment would be an act of bankruptcy (83), if bankruptcy proceedings are not commenced within four months, the effect would be the same as though no National Bankruptcy Law was in force. It may be said, in general, that any State Law, by whatever name it may be known, will be suspended by the National Bankruptcy Law if it directly or indirectly provides for distributing the assets of an insolvent, for discharging an insolvent of his legal obligations or effects the same by dissolving an insolvent body corporate so as to distribute its assets. The distribution of an insolvent's estate can be legally undertaken, it would seem, only by the court of bankruptcy (Platt v. Archer, 9 Blatch. 559; in re Independent Ins. Co., 6 B. R. 260; Thornhill v. Bank of La. 5 B. R. 375).

Rules in Bankruptcy.

SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1898.

In pursuance of the powers conferred by the Constitution and laws upon the Supreme Court of the United States, and particularly by the act of Congress approved July 1, 1898, entitled "An act to establish a uniform system of bankruptcy throughout the United States," it is ordered, on this 28th day of November, 1898, that the following rules be adopted and established as general orders in bankruptcy, to take effect on the first Monday, being the second day, of January, 1899. And it is further ordered that all proceedings in bankruptcy had before that day, in accordance with the act last aforesaid, and being in substantial conformity either with the provisions of these general orders, or else with the general orders established by this court under the bankrupt act of 1867 and with any general rules or special orders of the courts in bankruptcy, stand good, subject, however, to such further regulation by rule or order of those courts as may be necessary or proper to carry into force and effect the bankrupt act of 1898 and the general orders of this court.'

'The Supreme Court of the United States is expressly empowered by the bankruptcy Act to prescribe all necessary rules, forms and orders as to procedure and for carrying this Act into force and effect, and to amend the same from time to time (830). Independently of statute, courts have an inherent power to prescribe such rules as may be necessary to give legislative acts force and effect (Havemeyer v. Ingersoll, 12 Abb. Pr. N. S. [N. Y.] 301; Snyder v. Bauchman, 8 S. & R. [Pa.] 336; Angel v. Plume, 73 Ill. 412; Fullerton v. Ú. S. Bank, 1 Peters, 604; Hill v. Barney, 18 N. H. 607; Thompson v. Pershing, 86 Ind. 303; Texas Land Co. v. Williams, 48 Tex. 602. See also 8 Am. & Eng. Ency. Law [2 Sed.], 29). It may be questionable, however, whether this independent power is incident to courts of bankruptcy. A bankruptcy Act differs from all other Acts in that it is circumscribed by the constitutional requirement of uniform operation. Did each court possess the power of formulating rules to give the Act force and effect, the want of uniform operation might be as apparent as the variance of the rules. This fact seems to have been recognized in delegating to the Supreme Court the power to provide such rules. Such delegation of power undoubtedly deprives the District Courts of all authority touching the same, except in so far as relates to vesting referees with jurisdiction in addition to that conferred upon them by the Act.

I.

Docket.'

The clerk shall keep a docket, in which the cases shall be entered and numbered in the order in which they are commenced. It shall contain a memorandum of the filing of the petition and of the action of the court thereon, of the reference of the case to the referee, and of the transmission by him to the clerk of his certified record of the proceedings, with the dates thereof, and a memorandum of all proceedings in the case except those duly entered on the referee's certified record aforesaid. The docket shall be arranged in a manner convenient for reference, and shall at all times be open to public inspection.

II.

Filing of Papers.*

The clerk or the referee shall indorse on each paper filed with him the day and hour of filing, and a brief statement of its character.

This authority does not arise, however, from the inherent power of the court to provide rules, but inferentially from the Act itself (38a[4]). In any event, the inherent authority of courts to formulate rules must be distinguished from the legislative power to enact laws. Rules can only provide for the execution of laws; they can neither add to nor detract from statutory provisions, or impair rights arising from such provisions or from common law principles (Atlantic Express Co. v. Wilmington, 32 Am. St. Rep. 805; Patterson v. Winn, 5 Peters, 233; Gray v. Chicago, I Woolworth, 63; Ward v. Chamberlin, 2 Blackf. [U. S.] 437; Saylor v. Taylor, 77 Fed. 476; Fisher v. Bank, 73 Ill. 34; Gormerly v. McGlynn, 84 N. Y. 284; in re Glaser, 2 Ben. 180; s. c. 1 B. R. 236; The Illinois, 1 Brown, 13).

1 For analogous provisions, see Rule I, 1867.

2Under the present Act, proceedings are deemed to have been commenced when the petition is filed (81[10]). Under the equity practice, a suit is not pending until the subpoena is returned served and executed (U. S. Eq. Rule XVI).

The docket shall also contain the name with the place of business of an attorney who appears in behalf of any party (Rule IV), and it must show that the petition was filed in duplicate as required by the statute (In re Dupree [D. C.], 99 Fed. Rep. 28). See also 29ɗ(3), 39(7), 42 as to the referee's records, and 8839(6, 8), 49 as to the accounts and papers of the trustee.

*For analogous provisions, see Rule I, 1867.

After a case has been referred to the referee, papers therein may be filed with either the clerk or referee (Rule XX).

III.
Process.'

All process, summons and subpoenas shall issue out of the court, under the seal thereof, and be tested by the clerk; and blanks, with the signature of the clerk and seal of the court, may, upon application, be furnished to the referees.

IV.

Conduct of Proceedings."

Proceedings in bankruptcy may be conducted by the bankrupt in person in his own behalf, or by a petitioning or opposing creditor; but a creditor will only be allowed to manage before the court his individual interest. Every party may appear and conduct the proceedings by attorney, who shall be an attorney or counselor authorized to practice in the circuit or district court. The name of the attorney or counselor, with his place of business, shall be entered upon the docket, with the date of the entry. All papers or proceedings offered by an attorney to be filed shall be indorsed as above required, and orders granted on motion shall contain the name of the party or attorney making the motion. Notices and orders which are not, by the act or by these general orders, required to be served on the party personally may be served upon his attorney."

V.

Frame of Petitions."

All petitions and the schedules filed therewith shall be

For analogous provisions, see Rule II, 1867. See also 18a and U. S. Eq. Rules VII, XI, XVI as to the service of process.

2For analogous provisions, see Rule III, 1867. Also 646(3) as to allowance of attorney fee.

As to who may become bankrupts, see 84, 5; relative to process, pleadings and adjudications, 18; and as to who may file and dismiss petitions, 59.

Since each U. S. Court has separate rules of its own relative to the admission of attorneys, one must have been admitted to practice in the particular district where the bankruptcy proceedings are pending before he is entitled to appear therein. The admission is generally on motion, though the precise requirements must be sought in the rules of the various districts.

See 58 touching notice to creditors; Rule XXIII as to recitation of notices in referee's orders; and Eq. Rule IV as to notice of motions, rules, orders and other proceedings.

For analogous provisions, see Rule XIV, 1867. See also Form 1 for debtor's petition, Form 2 for partnership petition, and Form 3 for creditor's petition.