In re Cliffe

McPHERSON, District Judge. The referee has certified that Frederick W. Tunnell, who was called as a witness by the trustee and the petitioning creditors, has declined to answer questions concerning the indebtedness of the bankrupt. Judgment was obtained against the bankrupt by the witness in January of this year, about a month before the petition in bankruptcy was filed, and the sum appearing by the judgment to be owing was collected by execution. The question is presented whether the provisions of the act of 1898 concerning the examination of witnesses before a referee differ from similar provisions in the bankrupt act of 1867. Without quoting the language of the two statutes, it may be enough to say that such difference as may exist does not seem to me to be material; and I feel bound, therefore, by the decisions upon the act of 1867, cited in the learned referee’s opinion. , Even if section 23 of the act of 1898 forbids the trustee to sue an adverse claimant in a federal court, unless the bankrupt himself could have sued in that tribunal, — a point I do not decide, — nevertheless there is no limitation expressed by that section upon the right, given by clause “a” of section 21, to examine “any designated person * * concerning the acts, conduct or property of a bankrupt whose estate is in process of administration”; and I do not find a limitation necessarily implied by the language, or by the subject-matter, of section 23. Whether the trustee shall sue at all is the principal and preliminary question to be determined by the examination provided for by section 21. Before what tribunal he shall sue, after the preliminary question has been decided in the affirmative, is a distinct and succeeding step, and with this matter only is section 28 concerned. The two subjects are so far separate, that I do not regard one as materially modifying the other. The decision of the referee is approved, and it is now ordered that the witness submit to examination upon matters concerning the acts, conduct, or property of the bankrupt.