FELLOWS et al. v. FREUDENTHAL, 102 F. 731

SEAMAN, District Judge, after making the foregoing statement, delivered the opinion of the court. The facts upon which the objections to the discharge of the bankrupt rest are undisputed, and two questions only are presented by the assignment of errors:

(1) Whether the conceded facts clearly sustain the objections; and, if not, (2) whether costs were properly charged as taxed against the objecting creditors. 1. The bankruptcy act is imperative in granting to the bankrupt the right to a discharge “unless he has (1) committed an offense punishable by imprisonment as herein provided; or (2) with fraudulent intent to conceal his true financial condition and in contemplation of bankruptcy, destroyed, concealed, or failed to- keep books of account or records from which his true condition might he ascertained.”

Section 14b. The objections in the ease at bar are confined to tbe first-mentioned cause, and specify as the offense committed by the bankrupt that he “knowingly and fraudulently” made. (1) “a false oath in relation to this proceeding in bankruptcy,” and (2) a false account in, the same maiter; hut the testimony relates solely to the charge of making a false oath, and the only contention is that the affidavits of the bankrupt to his petition and accompanying

schedule of property are false because he omits from the

schedule a showing of ownership by himself of the shares of stock in the Central House-Furnishing Company which are held in the name of his wife. The serious offense thus charged is one of the crimes punishable by imprisonment under the bankrupt act, and its ingredients are clearly defined in

section 29b as “having knowingly and fraudulently * ⅞ ® made a false oath” in the proceedings. This language is followed in stating the ground of objection, and it is obvious rhat no ground exists, within the statute, unless the proof establishes both ingredients of the offense-ownership in fact by the bankrupt of the shares in question, and clear knowledge of such fact on his pari, either directly shown or necessarily implied from the circumstances. In the case at bar the proof establishes neither of these requisites.

Legal title to the shares of stock was vested in the wife, through her original subscription and subsequent purchases, directly from the company, and has so remained ever since,, without apparent ownership in the bankrupt in any form.

It is contended, however, that these transactions in the name of the wife were mere devices to cover up and place beyond the reach of creditors property acquired by the bankrupt, and held in fact for his use and benefit; and, if the testimony establishes this proposition of fact, decisions of the supreme court of Illinois are cited as to the status of the legal title in such case which, would tend to complicate the issue upon the one question of ownership 'in fact, with this possible result: that the issue whether an offense was committed would then be left to depend upon the mere-presumption of knowledge by the bankrupt of the effect in law of the transaction, — upon a mere legal fiction, — in lieu of evidence to establish knowledge in fact.

But neither of the problems thus suggested requires solution here, for the reason that the testimony fails to support the appellants’ contention that the title of the wife in the shares of stock held by her conclusively appears to be'so held as a mere cover and fraudulent device for actual ownership by the bankrupt.

Indeed, the testimony discloses no- ground for impeachment of the transaction as a fraud upon creditors, unless it be because of their relation as husband and wife, supplemented by the fact that the husband was employed by, and shared in the management of, the corporation, and the possible inferencé that 12 of the 71 shares obtained by the wife were paid for out of her share of the corporate profits.

Whether sufficient ground exists, either in these circumstances or otherwise, to impound for the benefit of the estate any of the shares so held, can be determined only in a direct proceeding between the proper parties, and not collaterally on the statutory hearing for discharge-, which cannot involve the rights of the wife, and where the single question presented by the objections is, has the bankrupt knowingly made a false oath in the omission to

schedule as his individual property shares of stock which are issued to and claimed by his wife? As the act limits the grounds of objection, so far as applicable here, to the commission of a criminal offense within

section 29b, it is plain that the issue cannot extend to prior conduct or transactions merely fraudulent as to creditors, and not made criminal. Such is the construction of these provisions uniformly adopted by the district judges, so far as their opinions appear reported, and it is approved as applicable to the order overruling the objections under consideration. 2. In reference to the remaining assignment of error, the award of taxable costs against the objecting creditors was authorized by subdivision 18 of

section 2 of the bankruptcy act, and the allowance of $25 as costs of the referee on the hearing is the only debatable question.

Section 40 of the act expressly provides that “referees shall receive as full compensation for their services, payable after.they are rendered, a fee of ten dollars deposited with the clerk at the time the petition is filed in each case,” together with a small percentage on payments out of the estate.

This provision is in harmony with the purpose manifested throughout the act, to so limit all allowances as to secure economical administration of proceedings and estates in bankruptcy; and the duty of the courts to construe and administer the act in conformity with-that purpose is well declared and exemplified in the opinion of Jenkins, Circuit Judge, speaking for this court, in the recent case of In re Curtis, 100 Fed. 784.

If the charge in question is for services rendered by the referee in the performance of the duties of a referee under the act, it is plainly not taxable as costs in this instance; for' however inadequate the prescribed compensation may be, he takes the office cum onere, and must abide by the fees so fixed. In sections 88 and 39 the jurisdiction and duties of referees are spe-eifically enumerated, but the matter of hearing applications for a discharge is not included, either iu direct terms or inferentially, while subdivision 4 of

section 88 clearly excepts such hearings from his jurisdiciiou. 5! oreo ver,

section 14b expressly provides that “the judge shall hear the applications for a discharge, and sue.li proofs and pleas as may be made in opposition thereto.” As the district courts are invested with jurisdiction both at law and in equity, to “enable them to exercise original jurisdiction in bankruptcy proceedings” (section 2), the power unquestionably exists to order a reference for the purpose of the hearing pursuant to the equity practice; and it would be practically impossible to conduct the hearings otherwise in districts like tin' -Northern district of Illinois, with the press of other business, and cases in bankruptcy under the present act numbering in the thousands.

The reference is then made t.o the referee in the capacity of special master, not as referee’in bankruptcy, and for a duiv independent of 11a1 latter office, and in no sense incompatible. To avoid confusion, it would seem better practice to designate the appointee as special master for the xiurpose in Hie order, but the fact that the name of “referee” or “referee in bankruptcy” is retained instead cannot affect his performance of the duties. His report is advisory, only, and the final hearing is before the district judge.

For the necessary service so performed under the order of reference, the appointee, is entitled to a reasonable allowance, unaffected by the fact that he held as well the office of referee in bankruptcy, and was probably chosen for that reason. The spirit of the act should he observed, as we have indicated, in making the allowance; and, from the testimony shown in this record, Ore amount so taxed appears to he reasonable, in that view. The order of the district court is accordingly affirmed.