93 FEDERAL REPORTER.
'of the same Class;' the itlsolventdebtor is 'thereupon 'chlltged with a
the clearly implied duty' to vacate or: discharge the time allowed him by the act For example, if he has a defense to the debt, he may set it up; 'or,: if he can overthrow the preference because the- oreditor's procedure has been defective, he may choose that method of attack.· If neither of ' these weapons is avai'lable, he has still at cotrunand one sufficient weapon, of which he cannot be deprived, -he can apply promptly to the court in bankruptcy, and ask that his property should be ratably divided among his creditors. If he fails to mo'Ve, his inaction is properly regarded as a confession that he is hopelessly insolvent, and as conclusive proof that he consents to the preference that he has declined to strike down. This construction of the statUte seems to us to beth'e natural meaning of the clause in question, and to be in harmony with the general purpose of the act. . A ,similar conclusion was reached a month or two ago in the district court for the Eastern district of Missouri in Re Reichman, 91 Fed. 624. To avoid we desire to call attention to the fact that the preference complained of in the present: 'eaSe was obtained! by the issuing of execution'in NOVember, and not by the giving of the judgment notes. Wlien he gave the notes,the debtor was solvent, and no other creditor could complain; but, when execution was issued, he had become insolvent, and the 'situation had materially changed. If the judgments had been entered,say, in December,'1897, and he had then had real estate to be bound thereby, an enforcement of the Herdn November, 1898, against the realty, would not offend against the clause in question. ' We are of opinion that Henry Moyer has committed the act of bankin clause 3 of section 3, and that the motion for adruptcy jUdication mnst prevaiL
In re FOERST. Court,S.D. New York; Aprl115, 1899.)
BANKRUPTCy-EXAMINATIONS IN BANKRUPTCy-SCOPE OF INQUIRY.
The wife of a bankrupt, under examination as a witness at the lnsf.lL;tro of the trus,tee or creditors, may be' questioned as to money or other 'lropetty In her possession, and as to how and when the same was received or acquired, provided only that the testimony shows such questions to be reasonably pertinent to the subject of inquiry, the nature and location ot the assets of the banl,rupt. "
In Bimkruptcy. On question certified by referee. William Riley, for creditors. for bankrupt. Edward District Judge. Upon an examination of the bankrupt and other witnesses before the referee in behalf 'Of the trustee and creditors, objection being 'made to questions, put to the wife of the bankrupt during her examination as respects moneys which she held, and when; and how received, the question as to the admissibility of this testimony has been certified to the court.
IN RE COLLIER.
There is no precise rule governing the admissibility of such testimony, other than that it should be reasonably pertinent to the subject of inquiry. In general, a large latitude of inquiry should be allowed in the examination of persons closely connected with the bankrupt in business 9.ealings, or otherwise, for the purpose of discovering assets and unearthing frauds, upon any reasonable surmise that they have assets of the debtor. The intent of the bankrupt law is that only the debtor dealing honestly with his property shall be dis(;harged; and that any proper assets of the estate, however concealed, shall be made available to creditors. The examination for this purpose is of necessity to a considerable extent a fishing examination. The extent to which it shall be permitted to go, must be determined by the sound judgment of the officer before whom it is taken. Reasonable examination should not be allowed to be checked by constant objections that the materiality of the answer may not be immediately apparent, where no harm can arise to the witness from the disclosure, if the transaction is honest. If the' result of such an examination may often be a considerable amount of immaterial testimony, this is a much less evil than to stifle examination by technical rules which would defeat the purpose of the act, and discredit the administration of the law in the interest of creditors. Unreasonable discursiveness in the examination will be in some measure checked by making it at the expenBe of the examining party; if plainly frivolous or prolix, it should be stopped. Where questionable proceedings have been disclosed, greater latitude in the prosecution of inquiries should be allowed; and the precise form or order in which the questions are put can scarcely be deemed material. Upon the above general principles, and upon the matters already disclosed on this examination, I think the witness should answer as respects any moneys or property acquired by her during the year prior to the adjudication, or even further back, should further testimony show such inquiries to be reasonably pertinent. '
In re COLLIER.
(DIstrict Court, W. D. Tennessee.
April 15, 1899.)
BANKRUPTCy-VOLUNTARY PETITION-PAUPER'S OATH.
Under Bankruptcy Act 1898, § 51, reqUiring the clerk to collect the fees of -officers In each case before filing the petition, except where the petition of a voluntary bankrupt is "accompanied by an affidavit stating that the petitioner is without and cannot obtain the money with which to pay such fees," such affidavit is not conclusive of the poverty of the petitioner; and, if circumstances appear casting doubt upon the truth of the affidavit, -as, that the petitioner appears by counsel not shown to be acting gratuitously,-it may be sent to the referee to investigate and report the facts as to the petitioner's ability to deposit the fees. A person employed by a railroad company at a salary of $30 per month, such salary being exempt from execution by the law of the state, Is not entitled to take the benefit of the bankruptcy law without depositing the fees required by the act, on an affidavit that he cannot obtain the money