cases where a jury trial is given by this Act, and make the adjudication or dismiss the petition.

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.

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.

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.

The procedure established by this act is quite different from that under the last law, especially in the circumstance that the marshal is regularly given possession of the estate only in one instance.1

2

The petition should clearly allege the facts which give the court jurisdiction and the act of bankruptcy relied on. It must be under oath. The oath must be made by the creditors themselves, but objection to a petition sworn to by an attorney is waived by answer. The petition must be written or printed plainly, without abbreviation or interlineation except for the purpose of reference. Amendments may be allowed on application to the court. They must be written out plainly and

1 See supra, § 466.

2 Supra, § 48.

8 Re Simonson, 92 Fed. Rep. 904,

1 N. B. N. 230.

4 Rule V.

verified by oath. The application shall state why the error was made in the original paper. The form of the petition is prescribed by the Supreme Court.2

The petition is to be served on the debtor with a writ of subpœna, the form of which is prescribed by Form 5. The debtor is notified to appear before the court at a day named to show cause why he should not be declared bankrupt.3

As to the service of the subpoena see 1 Foster Federal Practice, 2d ed. §§ 91 et seq.

For a further discussion of the requirements of the petition see infra, § 521.

Any creditor may appear and plead. There is nothing in the act which would prevent any one having a provable claim (§ 1, (9)) from pleading, though he were a secured creditor or one who had been given a preference. And any person whose rights would be affected should be allowed to appear and plead,* but by the terms of clause b and § 59 f it seems that only creditors (defined in the act to be persons having provable claims) would be allowed to be heard. The petitioning creditors and the debtor can not by agreement extend the time for answer without leave of court.5

A bankrupt or a creditor may himself conduct the proceedings but the creditor can conduct only his own case and can not appear for others. A party may appear by attorney, who must be authorized to practice before the circuit or district court. The clerk must keep a docket open to the public on which are to be recorded the minutes of the proceedings. The names of the attorneys shall be entered on the docket.9 All papers filed are to be endorsed with a brief statement of their character 10 and the time of filing noted by the clerk or referee. Notices and orders may be served on attorneys except when otherwise required by the act.12 Process, summons, and 7 Ib. See supra, § 465.

1 Rule XI.

2 See Forms 1, 2, and 3.

3 Form 4.

4 Supra, § 53.

5 Re Simonson, 92 Fed. Rep. 904,

1 N. B. N. 230.

8 Rule I.

9 Rule V.

10 Ib.

11 Rule II.

12 Rule V.

6 Rule IV.

subpoenas must be under seal of the court, tested by the clerk.1

The court has power to dismiss a petition even if an act of bankruptcy has been committed, if there are equitable reasons for so doing;2 but it would seem that § 59 g requires that creditors should be notified, though that section does not relate to this precise case.

The court is to hear the petition as soon as may be without a jury unless the bankrupt claims one. Undoubtedly there would be power to adjourn the hearing from time to time.3

The form of an adjudication of bankruptcy, or of an order dismissing the petition, is prescribed in Forms 12 and 11.

If there is no dispute over an involuntary petition, it would seem that the only thing for the judge to decide is whether the court has jurisdiction and the petition is in proper form. And so in the case of a voluntary petition. This was the rule under the former law in the case of a voluntary petition. And this act does not contemplate that in case of a voluntary petition there shall be any chance for creditors to be heard except when the petitioner himself wishes to withdraw the petition, or it is to be dismissed by consent or for want of prosecution (§ 59 g). In England the petition will be dismissed if the petitioning creditor does not appear on the day set for the hearing.5

A form for order of reference by the clerk is prescribed by the Supreme Court.

§ 482. Act of 1898.-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

1 Rule III.

2 Supra, § 58.

8 Re Thurlow (1895), 1 Q. B. 724.

4 Re Fowler, 1 N. B. N. 680, Fed. Cas. No. 4998.

6 Re Stockley, 10 Morrell, 131.

6 Form 15.

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.

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.

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.

All issues of fact in bankruptcy proceedings in the district and circuit courts shall be tried by a jury, except as otherwise provided in the bankrupt act.1 A trial by jury in the circuit court may be waived,2 but there is no similar provision with regard to trials in the district court. A trial may be waived by both parties, however, if they agree on a statement of facts.1 If the case is determined in the district court by a jury or on agreed facts, there can be a review by writ of error in a higher court. It is competent for the parties to an action in the

1 Rev. Stats. §§ 566, 648.

2 Rev. Stats. § 649.

8 Blair v. Allen, 3 Dill. 101, Fed. Cas. No. 1483; Lyons v. Nat. Bank, 19 Blatch. 279; Rogers v. United States, 141 U. S. 548, 554.

223; Supervisors v. Kennicott, 103 U. S. 554, 556; Henderson's Spirits, 14 Wall. 44, 53.

5 See cases cited in note 4, ante, and Blair v. Allen, 3 Dill. 101; Fed. Cas. No. 1483; Lyons v. Nat. Bank, 19

Campbell v. Boyreau, 21 How. Blatch. 279.

district court to waive a trial by jury, and a judgment of the court under such circumstances will be binding on them;1 but there can be no review of the action of the court by writ of error.2

A jury trial may be had except when otherwise provided in this act. In parts of the act it is evidently contemplated that there shall be a determination of the issue by a jury. It is provided that a composition or a discharge shall be set aside on a trial under certain circumstances (§§ 13 and 15). The clause as to confirming a composition provides for a hearing (§ 12 c), and that as to granting a discharge provides that the judge shall hear the application and any proofs and pleas in opposition (§ 146). In these sections of the act which come so closely together, the word “trial” is used as contrasted with "hearing." The first refers to a trial by jury, and the second to a determination by a judge. It is true that in § 4 of the present act the word "trial" does not mean a trial by jury, but that is because the usual meaning of the word is controlled by other parts of the act which show that a debtor is not to have a trial by jury unless he claims it. But it is the evident intention of Congress that a debtor who has been granted his discharge, or whose offer of composition has been confirmed, shall have the right to submit to a jury the question of revocation of the discharge or composition.

The district court is the only court which has jurisdiction of compositions and discharges. Under the authority of the cases cited above, it would appear that the question of setting aside a composition or revoking a discharge must be tried before a

1 Kearney v. Case, 12 Wall. 275, 281, and cases.

2 Minor v. Tillotson, 2 How. 392; Prentice v. Zane, 8 How. 470; Guild v. Frontin, 18 How. 135; Kelsey v. Forsyth, 21 How. 85; Campbell v. Boyreau, 21 How. 223; Flanders v. Tweed, 9 Wall. 425; Kearney v. Case, 12 Wall. 275; Rogers v. United States, 141 U. S. 548, and cases cited at page 556; Perego v. Dodge, 163 U. S. 160, 166. 3 Rev. Stats. §§ 566, 648.

4 See Galpin v. Critchlow, 112 Mass. 339, and Ins. Co. v. Dunn, 19 Wall. 214, for the construction of an act where these words were used in a similar way. Also Gordon v. Scott, 2 N. B. R. 86, Fed. Cas. No. 5620; United States v. Curtis, 4 Mason, 232, Fed. Cas. No. 14,905; Minnett v. Milwaukee & St. Paul Ry., 3 Dill. 460, Fed. Cas. No. 9636. Supra, § 466. 6 Infra, § 486.