c All pleadings setting up matters of fact shall be verified under oath.'

d If the bankrupt, or any of his creditors shall appear, within the time limited, and controvert the facts alleged in the petition, the judge shall determine, as soon as may be, the issues presented by the pleadings, without the intervention of a jury, except in cases where a jury trial is given by this act, and make the adjudication or dismiss the petition.

2

e If on the last day within which pleadings may be filed none are filed by the bankrupt or any of his creditors, the judge shall on the next day, if present, or as soon thereafter as practicable, make the adjudication or dismiss the petition.3

f If the judge is absent from the district, or the division of the district in which the petition is pending, on the next day after the last day on which pleadings may be filed, and none have been filed by the bankrupt or any of his creditors, the clerk shall forthwith refer the case to the referee."

and cases there cited). Creditors, however, are not entitled to file an answer to a voluntary petition (In re Richard [D. C.], 94 Fed. Rep. 633).

1Verification may not be made by attorney unless the facts are within his own knowledge; it is not jurisdictional, and is waived unless objected to before a plea and answer on the merits (In re McNaughton, 8 B. R. 44; in re Simmons, 10 B. R. 253; in re Sargent, 13 B. R. 144; Simonson v. Sinsheimer [C. C. A], 95 Fed. Rep. 948; Leidigh Carriage Co. v. Stengel [C. C. A.], 1 N. B. News, 296; s. c. 95 Fed. Rep. 637).

As to jury trials, see §19. "The right of a trial by jury in bankruptcy proceedings is limited to the question of insolvency of the defendant" (Simonson v. Sinsheimer et al. [C. C. A.], 100 Fed. Rep. 426, 429).

A failure to appear and oppose within the time limited is a default within the inherent authority of the court to vacate (In re Dupee, 6 B. R. 89, and cases cited; Thomas v. Hunter, 3 McLean, 297). See U. S. Equity Rules XVIII and XIX as to defaults.

An adjudication is conclusive as to all persons not parties, and it will not be vacated on the petition of a stranger (In re Columbia Real Estate Co. [D. C.], 101 Fed. Rep. 965).

The clerk can only refer an involuntary petition in cases where no issue is made by the bankrupt or creditors upon the facts set out in the petition (In re L. Humbert Co. [D. C.], 100 Fed. Rep. 439).

g Upon the filing of a voluntary petition the judge shall hear the petition and make the adjudication or dismiss the petition. If the judge is absent from the district, or the division of the district in which the petition is filed at the time of the filing, the clerk shall forthwith refer the case to the referee.1

SEC. 19. Jury Trials.―a A person against whom an involuntary petition has been filed shall be entitled to have a trial by jury, in respect to the question of his insolvency, except as herein otherwise provided, and any act of bankruptcy alleged in such petition to have been committed, upon filing a written application therefor at or before the 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. 2

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 sit

1The referee cannot make the adjudication in a case referred to him under the foregoing paragraph where partners of a firm not joining in the petition contest the adjudication of the firm; he must certify the case to the Judge for determination (In re Murray [D. C.], 96 Fed. Rep. 600). On an adjudication of a petition of a member of a copartnership praying a discharge from individual and firm debts, firm creditors may prove their claims against the estate of the individual under §5h (In re Laughlin [D. C.], 96 Fed. Rep. 589). See $2(18) touching taxation of costs, $5 as to partners, $14 as to discharges and $17 as to debts not affected by a discharge, together with the notes to these sections.

2 All issues of fact presented by the pleadings in an involuntary case are to be determined by the Judge, except when a jury trial is given by this act (§18d). The cases in which such a trial is given are contained in this paragraph. It is given (1) in respect to questions of insolvency and (2) any act of bankruptcy alleged in the petition. The language of the paragraph is so clear that it would seem very difficult to misinterpret. Yet, the circuit court of appeals for the 6th circuit says: "The right of a trial by jury in bankruptcy proceedings is limited to the question of insolvency of the defendant" (Simonson v. Sinsheimer et al., 100 Fed. Rep. 426). Had Congress intended trial by jury to be so limited, it certainly would have omitted the language, "and any act of bankruptcy alleged in such petition to have been committed." Aside from the cases specified in this section, the court may allow jury trials on other questions, in its discretion, the proceedings in bankruptcy being equitable in character (In re Rude [D. C.], 101 Fed. Rep. 805).

ting 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.

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.'

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.2

Unless a bankruptcy act contains provision to the contrary, which the present does not, any party is entitled to have an issue of fact tried by a jury (R. S $566, 648, 649). This is the provision of the law-making branch of the government. The law-construing branch, however, evinces a disposition to limit the right of jury trials to questions that must be proved in establishing acts of bankruptcy (Simonson v. Sinsheimer et al. [C. C. A.], 100 Fed. Rep. 426, 429), allowing it as discretionary when other questions are at issue (In re Rude [D. C.], 101 Fed. Rep. 805), and denying it in questions of contempt (Ripon Knitting Works et al. v. Schreiber [D. C.], 101 Fed. Rep. 810). In none of these cases, however, did adverse claims arise. When they do, the parties interested therein are entitled to a jury trial in the bankruptcy court in a plenary action, the court having no jurisdiction to summarily determine such claims (In re Russell et al. [C. C. A.], 101 Fed. Rep. 248).

It has been held under the present act that the government will not pay the expense of a jury called in a bankruptcy case, and unless the parties provide for the same no jury will be empaneled (In re Carter [D. C.], 1 N. B. News, 179). The theory on which this holding is based is that the government should not be put to an expense that inures to private benefit. The reasoning appears faulty and does not seem to be in harmony with the spirit of the Act. It might be carried to a ridiculous extent by saying that the parties should also provide for the pay and expenses of the judges, otherwise no judge would act. Congress unquestionably intended that the machinery of the Federal courts should be employed in bankruptcy the same as in other cases.

2No affidavit should be taken before the attorney of record of the person making it (In re Nebe, 11 B. R. 289; Taylor v. Hatch, 12 Johns. [N. Y.], 340; Toorle v. Smith, 34 Kan. 27; Prynne v. Roe, 8 Dowling's Pr. Cas. 340; Vary v. Godfrey, 6 Cowan [N. Y.], 587. See also "affidavits" in Am. & Eng. Ency. of Law). A voluntary bankrupt is not guilty of a false oath in making an affidavit that he cannot obtain the sum with which to pay the filing fees, though friends would advance the same if requested, he not being required to solicit gifts or loans, or to pay the same out of his exemptions or money earned after the filing of the petition (Sellers

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.

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.'

b 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 here

v. Bell [C. C. A.], 94 Fed. Rep. 801). Nor is he so guilty in swearing to a schedule in which he states he has no assets when more than four months before his bankruptcy he transferred goods to his wife without consideration, such transfer being valid as to him (In re Crenshaw [D. C.], 95 Fed. Rep. 632).

1See R. S. $5087. Any competent witness brought before the court upon the order in this paragraph specified, will be obliged to produce books in his possession and to answer any question directly or indirectly relating to the subjects of examination, however he may be affected thereby, unless the answer tends to actually incriminate him (Ex p. Campbell, L. R. 5 Ch. App. 703; in re Fay, 3 B. R. 660; in re Pioneer Paper Co., 7 B. R. 250; in re Feinberg, 3 Ben. 162; s. c. 2 B. R. 425; Garrison v. Markley, 7 B. R. 246; in re Stuyvesant Bank, 6 Ben. 33; s. c. 7 B. R. 445; in re Trask, 7 Ben. 60; in re Comstock, 13 B. R. 193; in re Fredenburg, 2 Ben. 133; S. c. I B. R. 268; in re Fixon & Co. [D. C.], 96 Fed. Rep. 748; in re Mellen [D. C.], 97 Fed. Rep. 326; in re McCormick [D. C.], 97 Fed. Rep. 566; in re Cliffe [D. C.], 97 Fed. Rep. 540; in re Horgan [D. C.], 97 Fed. Rep. 319), unless it calls for information of a strictly confidential nature which the witness received while acting in a professional capacity (In re Aspinwall, 10 B. R. 448; in re Bellis & Milligan, 3 B. R. 199; s. c. 38 How. Pr. 79), or while occupying conjugal relations (In re Jefferson [D. C.], 96 Fed. Rep. 826; in re Mayer [D. C.], 97 Fed. Rep. 328). The scope of all inquiries is intended to enable the trustee to find assets, or the creditors to discover grounds of opposition to a discharge (In re Horgan et al. [C. C. A.], 98 Fed. Rep. 414). The order requiring appearance for such examination, is in effect a subpoena, and it "may run into any other district" and reach a witness living not more than one hundred miles from the place of holding court (R. S. §876; in re Woodward, 8 Ben. 112; s. c. 12 B. R. 297). See also as to examination of bankrupts, §7(9) and notes; and as to indemnity for expenses, Rule X.

If the evidence on a question is balanced, the scales will be turned against him who neglected to take steps open to him whereby he could have in some degree asserted the fact in dispute (În re Hirsch [D. C.], 96 Fed. Rep. 468).

after enacted relating to the taking of depositions, except as herein provided.'

c 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.

d Certified copies of proceedings before a referee, or of papers when issued by the clerk or referee, shall be admitted as evidence with like force and effect as certified copies of the records of district courts of the United States are now or may hereafter be admitted as evidence.'

e A certified copy of the order approving the bond of a trustee shall constitute conclusive evidence of the vesting in him of the title to the property of the bankrupt, and if recorded shall impart the same notice that a deed from the bankrupt to the trustee if recorded would have imparted had not bankruptcy proceedings intervened.3

ƒ A certified copy of an order confirming or setting aside a composition, or granting or setting aside a discharge, not revoked, shall be evidence of the jurisdiction of the court, the regularity of the proceedings, and of the fact that the order was made.

1See R. S. $85003-5006 inclusive. As to taking testimony, see Rule XXII; and relating to testimony of imprisoned debtors, Rule XXX.

2See R. S. $84992, 5119. It is not necessary to introduce the whole record; any portion of it complete and distinct in itself may be introduced in evidence (Michener v. Payson, 13 B. R. 49; Dupuy v. Harris, 6 B. Mon. 534: Sheldon v. Clews, 13 Abb. N. C. 40), but not for the purpose of affecting the interests of strangers to the bankrupt proceeding (Wilson v. Harper, 5 Rich. [N. S.], 294; Pringle v. Leverich, 97 N. Y. 181).

The title of the bankrupt's property vests in the trustee the instant the adjudication is made (see §70), the same as that of a deceased vests in an administrator, and like the latter, he can exercise no control over it until his bond is approved and filed. A sale by the bankrupt after the order of adjudication and before the qualification of the trustee conveys no title, especially if the purchaser has notice of the proceeding in bankruptcy (Davis v. Anderson, 6 B. R. 145; in re Neale, 3 B. R. 177). A certified copy of the order approving the trustee's bond, however, should be recorded as early as possible to protect the trustee's title.