108 F. 208 | S.D.N.Y. | 1901
The practice in this district under repeated rulings is, to admit, so far as relevant, any prior depositions or testimony of the bankrupt at any time during the previous proceedings in the cause. It would be a needless expenditure of time and money in proceedings before the referee in support of the specifications against a discharge, to take town afresh the same testimony that the bankrupt had already given in his examination before the court for the purpose of framing specifications, when that testimony was in writing and offered before the referee.
In the present case it appears that the bankrupt’s testimony upon his previous examination was not formally signed by him, although numerous adjournments were signed by him on the minutes. When his testimony was offered in support of the specifications, it was rejected, apparently on the ground of incompetency alone, and not because it had not been signed, or because the bankrupt might wish to make corrections in the written statement. The testimony was competent and should be received when properly evidenced. Proper evidence of what his testimony was, would be either his own signature and verification, or in the absence of that, the testimony of the person who took the minutes. The latter in fact is the ordinary mode of proving the testimony of a party given on a previous trial in an independent cause. Subsequently before the referee, the person who took the notes of the bankrupt’s examination testified that the notes of the testimony were truly and correctly taken. The testimony was then again offered and again rejected. It should have been received. The signature of the bankrupt was. no longer necessary; nor was it necessary that he should be directed either to sign it, or correct it, if he wished. By the testimony of the witness it was duly proved and was competent. Thenceforward the burden was upon the bankrupt to overcome it.