9 F. Cas. 740 | S.D.N.Y. | 1868
In answer' to the question certified in this case, I reply:
1. The question is certified on the prayer of the witness, under section 0 of the act. The register might properly have refused to certify the question. It is only a party to the proceedings before the register, who can take the opinion of the district judge on a certificate of the register, on a matter arising in the course of such proceedings, or upon the result of them. The word “party” means the bankrupt or a creditor of his. It does not mean a witness who is not the bankrupt or a creditor of his.
2. I notice, from the certificate-of the register, that the witness was represented bo-
3. The register was correct in his decision, that the witness was properly under examination.
4. The register certifies that the witness, without standing on the objection, submitted himself to examination. Section 7 of the act provides, that, if any person examined before a register refuses or declines to answer, the judge shall have power to order such person to pay the costs thereby occasioned, if such person be compellable by law to answer, and such person shall also be liable to be punished for contempt The objection made by the witness in this case was so entirely frivolous, that, if he had not submitted to an examination, the case would have been a clear one for the im- : position of costs and for pimishment for contempt. The objection made was, that there ' is no authority to examine a witness in any matter under the bankruptcy act, unless there be a question in controversy to be settled by testimony, and not until after the examination of the bankrupt himself. The twenty-sixth section of the act, under which section the witness in this ease was summoned, requires him to submit to an examination on oath upon all matters relating to the disposal or condition of the bankrupt’s property, to his trade and dealings with others, and his accounts concerning the same, to all debts due to or claimed from him, and to all other matters concerning his property and estate and the due settlement thereof according to law. In addition to this, the court can compel the giving of testimony by witnesses, in the taking of evidence, under section 38 of the act. The objection made by the witness was wholly without foundation, and the fact, that he himself was unwilling to stand upon it, showed that he regarded it as untenable.
5. Although the objection was made, yet, by submitting to an examination, which the register states was concluded, the witness waived the objection, and after that there was no point or matter, within the meaning of section G of the act, to be certified by the register. and he ought on that ground to have refused to certify the question.
