jury unless all the parties waive a jury trial and ask for the determination of the court on an agreed statement of facts, or unless they are willing to submit to the decision of the district court without appeal.

A jury trial may be had on an involuntary petition if asked for within ten days of the return day, otherwise the judge will determine the questions arising on it.2 The debtor must file a claim for a jury trial, and the court will then order it.3

Offences must be tried by a jury, since they are punishments for crimes, but a punishment for contempt of court need not be so tried, as it is a civil proceeding.5

§ 483. Act of 1898. 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.

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.

Oaths in similar cases under the former act were first required to be taken before a district judge or register or a commissioner of the circuit court, but this was afterward extended to notaries public.7

§ 484. Act of 1898.-SEC. 21. EVIDENCE. -a. A court of bankruptcy may, upon application of any

1 See Bray v. Cobb, 91 Fed. Rep. 102. 2 Act of 1898, § 18 d.

8 Forms 6 and 7.

Supra, § 6. See Act of 1898, § 2 (4). 5 Hendryx v. Fitzpatrick, 19 Fed. Rep. 810; Cooley, Constitutional Limitations, 6th ed. 389, note 2.

6 Act of 1867, §§ 11, 22, 14 Stats. 521, 527, Rev. Stats. §§ 5017, 5079,

7 Stats. 1874, c. 390, § 20, 18 Stat. 186; Stats. 1876, c. 304, 19 Stat. 206; Re Bailey, 15 N. B. R. 48, Fed. Cas. No. 727.

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 hereafter 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.

f. 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 jurisdic tion of the court, the regularity of the proceedings, and of the fact that the order was made.

g. A certified copy of an order confirming a composition shall constitute evidence of the revesting of the title of his property in the bankrupt, and if recorded shall impart the same notice that a deed from the trustee to the bankrupt if recorded would impart.

This is a power given to the court in addition to the power to summon witnesses.1

The bankrupt cannot be examined before the adjudication,2 because before that time the estate is not in process of administration; and so of any other person. An examination of a bankrupt may be ordered at any time after the adjudication. The trustee may be examined, and the bankrupt should have the right to examine.5

Clause a is in substance like §§ 5086 and 5087 of the Revised Statutes, except that it provides for examination before the judge of a state court, and applies only to persons who are competent witnesses under the state law. As to the scope of the examination and the persons subject to it see supra, §§ 142 et seq. It has been held that the bankrupt's wife may be examined. Such was the rule under the last law, but it is not so now in the district court in any state when the wife is not a competent witness.9

Witnesses are to be examined before the referee by a party or his attorney in the same manner as in courts of law. The deposition is to be drawn up under the direction of the referee and signed by the witness in the referee's presence. It is to

be taken down in the form of narrative, unless the referee thinks it ought to be by question and answer. The referee is to note any objections to questions with his decisions thereon. The court may impose costs for immaterial depositions.1 An imprisoned debtor may be brought before the court for examination.2 The referee may authorize the employment of a stenographer. The order for examination of the bankrupt and the summons for witnesses should be in the form prescribed by the Supreme Court.

There is nothing in the act or in the rules of the Supreme Court which requires the examination of the bankrupt to be conducted before the referee personally.5 Rule XXII. applies only to witnesses. As a practical matter the bankrupt's examination will usually be held at some place which is convenient for the parties, but not before the referee. The oath should be administered by the referee at the first meeting, and the bankrupt should sign before the referee, or the referee should at least sign the examination.

As to depositions see 1 Garland & Ralston, Federal Practice, p. 569 et seq., and p. 692 et seq.

The referee is to approve the bond of a trustee. Bonds of trustees are to be filed of record in the clerk's office of the district court (§ 50 h), but it is evident that the record spoken of in clause e is that under the statutes of the states requiring deeds to be recorded. It was the duty of an assignee under the last law to record his assignment in the registry of deeds.8 The title of a trustee can be collaterally impeached only on the ground that he was appointed under an unconstitutional law or that the court did not have jurisdiction.9

It has been held that a state has the power to make an assignment conclusive evidence of the assignee's right to sue,10 and there is no doubt that Congress has the same power.

There is nothing in paragraph f which provides that a discharge shall be conclusive, but it is the general rule in this country that a discharge cannot be collaterally attacked,1 and such a rule is necessary to the successful operation of a bankrupt law. Notwithstanding that the provision here is different from that under § 5119 of the Revised Statutes, where the discharge was made conclusive, it should be held that a discharge cannot be collaterally attacked, except for want of jurisdiction in the court which granted it.

As to the order for discharge or confirmation of composition see Forms 59, 62.

There is no provision in paragraph g which relates to the effect of a discharge in revesting property in a bankrupt. Probably a similar rule should be applied to this case as to that of a confirmation of a composition. There was no provision in the last law for a transfer to the bankrupt after his discharge, but the title revested in the bankrupt after the estate was wound up.1

The property will not revert to the bankrupt after the composition proceedings are begun till their confirmation.5

$485. Act of 1898.-SEC. 22. REFERENCE OF CASES AFTER ADJUDICATION.-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.

1 Supra, § 427.

2 Supra, § 294.

Formerly § 34 of the Act of 1867, 14 Stats. 533.

4 Burton v. Perry, 46 Ill. 71; Steevens v. Earles, 25 Mich. 40. 5 Titcomb v. Bradlee, 59 Mass.

190.