It will be observed that all the existing forms in bankruptcy require the signature of the party himself. It may be, as in that of the debtor's petition,-form No. 1,-that the attorney signs it also, but not in any one of them,-certainly not in the petition for discharge or the specifications in opposition, forms No. 57 and No. 58,— does the attorney sign alone. Indeed only to the three petitions, respectively, of the bankrupt, of a bankrupt partnership, and of creditors for an adjudication in bankruptcy,-forms Nos. 1, 2, and 3,-is any provision made, or any note of any signature of attorneys; and not in one is there any verification by the attorney, except in proofs of claims, specially authorized to be so verified. There can be no implied authority, therefore, from the act itself, the orders, or the forms, for any signature or verification by an attorney. There must be some special authority by the court in the particular case for extraordinary reasons recognized as sufficient by general law, if it can be done at all. 2 Daniell, Ch. Prac. (1st Ed.) 268,-where it is said that, even where there be a power of attorney, and an authority of the court to sign by attorney, it is preferable to take the answer without signature, rather than to have the attorney sign the name of a defendant, so strict is this rule requiring the party to sign for himself. I Daniell, Ch. Prac. (5th Ed.) 395, note; 16 Enc. Pl. & Prac. 517; 22 Enc. Pl. & Prac. 1022, 1041, 1043. And where an attorney is allowed to take the oath it is on a special form. Id.; 4 Desty, Fed. Proc. (9th Ed.) 517, 819, in removal petitions; Id. 326, in admiralty pleading. In Re Simonson (D. C.) 92 Fed. 904, 1 Am. Bankr. R. 197, it was held that a petition in involuntary bankruptcy could not be verified by the attorney, and that section I (9) did not authorize it to be so verified. And in Re Brumelkamp (D. C.) 2 Am. Bankr. R. 318, 95 Fed. 814, it was held that the verification could not be taken before one's own attorney, where he was at the same time a notary. And in Re Brown, 50 C. C. A. 118, 112 Fed. 49, 7 Am. Bankr. R. 252, in the circuit court of appeals, Fifth circuit, it was definitely held that the specification in opposition to a discharge is a pleading, and requires verification, under section 18c of the statute. And as to the necessity for a verification of certain forms in bankruptcy, and especially of the petition for discharge and the specifications in opposition, see 22 Enc. Pl. & Prac. 379, 382.

The precise form required for the verification of any pleading is not, by the general law and practice, uniformly settled, is often doubtful, and difficult to frame, and presents some interesting conflict of opinion. Let us examine a little closely some of the varieties of form found in the verifications prescribed in these bankruptcy forms of 1898. A simple jurat, "Sworn to and subscribed before me," is often prescribed, as in that for a denial of bankruptcy,-form No. 6, for example. That prescribed for a debtor's petition (form No. 1) and a partnership petition (form No. 2) is a very common form of verification, but one that has been judicially criticised as defective, at least when it is appended to a paper that does not in its very text definitely point out that which is stated of the party's own knowledge and that which is stated only upon his information, while that of the creditors' petition (form 3) is a positive affirmation on oath

that the facts stated therein "are true"; that being the most absolute form known to the law, like that to a plea of non est factum (14 Enc. Pl. & Prac. 590; 16 Enc. Pl. & Prac. 546); or to a plea in equity (4 Desty, Fed. Proc. [9th Ed.] 517). And noticeably the verifications to the debtor's schedules are bare declarations that each is "a statement," etc., "in accordance with the acts of congress," etc., which acts of congress seemingly do not in terms require either oath to be "a true" statement,-section 7 (8); section 29 (2), as did the act of 1867 (Rev. St. § 5015); and under the act of 1867 a corporation petition was signed by the president or other officer or agent, who affixed the seal of the corporation, and the oath was to be "changed to correspond with the form of the petition" (form No. 3, Bump, Bankr. [9th Ed.] 894). And it may be worth remarking here that a too close copying of the forms of 1867 may have resulted in making nugatory the oaths of the bankrupt to his schedules if they be challenged on an indictment for perjury. In Re Brown, 50 C. C. A. 118, 112 Fed. 49, 7 Am. Bankr. R. 252, it was held that the form of verification for specifications in opposition to a discharge. should be "positive and certain, not vague and argumentative," and that the verification should be "by positive oath to the existence of the facts relied on as grounds for the same." This was said of verifications by the creditors in a form which states that "I am informed on reliable information, and have good reason to believe, and do believe, that the allegations and statements contained in the foregoing opposition to discharge are true"; and also by an attorney to the same effect, only he set out in his oath the sources of his information; both being held insufficient; and this decision is by the court. of appeals of the Fifth circuit.

The familiar form for the verification of a bill in equity when that is required in practice is by an appended affidavit the wording of which is suited to the fact that the text of the bill itself states distinctly that averment which is made of the pleader's own knowledge and that which is made upon his information. But not one of these bankruptcy forms does this, as will be seen by inspecting them. Yet the debtor's voluntary petition has prescribed for its verification the common form of an affidavit to a bill,—a form of oath which is discredited by the authorities when the pleading does not in its text make discrimination between statements of one's own knowledge and of one's information from others. 22 Enc. Pl. & Prac. 1021, 1022, citing Stirlen v. Neustadt, 50 Ill. App. 378, where it is said that under such a verification it can only be known "by probing the mind of the pleader," which statement is given on self-knowledge and which on information only. See, also, Fost. Fed. Prac. (3d Ed.) § 87, note 10. On the other hand, the creditor's involuntary petition has its verification in the absolute form of a plea in equity, namely, "that the statements subscribed by them are true." An analysis of the petition filed by creditors and a comparison of it with the debtor's own petition and the partnership petition show that the two latter state facts that naturally are within the petitioner's own knowledge; while the other states some facts that naturally are within self-knowledge, such as those relating to the nature of the creditors' claims, and oth

ers that naturally, or generally, rather, would be derived from information, such as those relating to the acts of bankruptcy. And yet according to the form they must swear as positively to these last as to those stated of self-knowledge. As to the forms of verification. generally, see 22 Enc. Pl. & Prac. 1022, 1041, 1043; 16 Enc. Pl. & Prac. 594; 4 Desty, Fed. Proc. (9th Ed.) 517, 819; Fost. Fed. Prac. (3d Ed.) §§ 87, 151; Bates, Fed. Eq. Prac. §§ 123, 337, 342; 2 Daniell, Ch. Prac. (1st Ed.) 270, 286; Id. (5th Ed.) 394, note; Id. 743, 2171, 2172. Certainly the framework language of specifications in opposition to a discharge would not naturally take the form of a bill in equity, but rather that of a criminal information or indictment; wherefore the verification of a bill would hardly adapt itself to such a pleading.

Now, then, when a nicely discriminating and sensitive conscience comes to scrutinize these oaths which it is to take, it is very natural that one with such a conscience should hesitate to swear that charges made on the information of others "are true." Naturally, one would prefer to swear that one "believes them to be true." But it may be that the pleading to which he is swearing does not, in its text, discriminate between actual knowledge and information. If it be specifications in opposition to a discharge, it would be very difficult to so frame it as to meet the wants of the tender conscience, and put it in that shape. Practically it cannot be done, if technically it would be good. Neither can the affidavit of verification itself be any more practically so framed. By order of the supreme court a petitioning creditor must swear that facts that he states in his petition (form 3) on the information of others "are true," and why should he not make the same oath when he comes to specify his grounds opposing the discharge, albeit the knowledge come from others? In the very nature of the case it is to be implied that the oath is upon information, or, at least, it may be the one way or the other; and he is entitled to salve his conscience with the palliating implication. He must so salve it in the creditors' petition; and at any bar, in a trial for perjury, say, his oath would be so understood, especially where it was compulsory; and let us hope that it would be so understood in any court of conscience and at the bar of the Almighty, when He shall come to judge all of us in mercy and in truth. Psalms, lxxxix. 14.

I sincerely sympathize with the sensitiveness of litigants on this subject, as the law has always done in framing these forms of verification by oath; and would be inclined to be satisfied that the statute would be met by that form of oath which the supreme court appends to the debtor's petition (form No. 1) and to the partnership petition (form No. 2), notwithstanding the sensible objection to it set forth by the courts in Illinois and elsewhere. The statute might not be as completely satisfied by those verifications, but sufficiently, nevertheless, as it is by the form appended to the creditors' petition. (form No. 3), also by that court. But for the sake of precedent and uniformity of practice, if nothing else, until the supreme court itself. shall prescribe the form of verification for the specifications in opposition to a discharge (form 58), I feel constrained to adopt in this

district the form sanctioned by our Brother Meek in a Texas district, and approved by the circuit court of appeals for that circuit, and we will follow the form of verification to a creditors' petition (form No. 3), which has been sanctioned by the supreme court for a pleading not less obnoxious to the sentiment of a scrupulous regard for one's oath. In re Brown, supra.

The result here is:

1. The specifications opposing a petition for discharge (form No. 58) must be signed by the opposing creditor as indicated in the form itself, and not alone by the attorney or counsel, and must be sworn to by him.

2. If there be more than one creditor joined in the specifications, all must so sign it, and all must swear to it.

3. The verification must be in the form prescribed by the creditor's petition (form No. 3), to wit:

"Do hereby make solemn oath that the statements contained in the foregoing specification of grounds of opposition to the bankrupt's discharge subscribed by me (or them) are true."

4. If the opposing creditor be a corporation, the signature to the specifications must be in form prescribed by the supreme court under the bankruptcy statute of 1867 for the petition of a corporation (form No. 3, Bump, Bankr. [9th Ed.] 894), to wit:

"In witness whereof, I have hereunto subscribed my name as president (or other officer or agent) of said corporation, and affixed the seal of the same, this day of A. D. "[Seal of the Corporation.]

(Signature of the Officer.)"

5. The oath of verification prescribed for other creditors as above set out must be made by the officer of the corporation, mutatis mutandis.

6. When the opposing creditor is a partnership, the signature of the firm name by one of the partners authorized to sign the firm name will be sufficient; as also the verification by him alone or another partner, if the facts be known to him and not the partner signing the pleading, the form of the oath stating the fact as it may be. 7. The attorneys or solicitors or other agents will not be allowed to take the oath to the verification, and the already existing rule of this prohibition as to all verifications in bankruptcy proceedings will be enforced, unless there be a previous order of the court allowing the oath to be taken by an attorney for reasons appearing in the order and on the face of the oath itself.

Ordered accordingly.

In re BABER.

(District Court, E. D. Tennessee, W. D. August 28, 1902.)

No. 104.

1. BANKRUPTCy-Procedure before Referees.

On an application of a trustee in bankruptcy to the court for advice as to whether he should file a petition to have the claim of a creditor expunged for fraud, the referee has no authority to hear and determine the subject-matter of such petition on the merits.

8. SAME-TRUSTEES- APPLICATION FOR ADVICE.

An application by a trustee for the direction of the court as to whether he shall sign and file a proposed petition against a creditor, prepared by counsel, which alleges that such creditor fraudulently proved his claim as unsecured, and received dividends thereon, while at the same time it was prosecuting a suit in the state courts to enforce collateral security held for the debt, should be denied, and the trustee left to act in the matter on his own responsibility, aided by the advice of counsel, and, if he desires, by that of the creditors.

8. SAME-POWERS AND DUTIES OF TRUSTEES.

While a trustee in bankruptcy acts in a certain sense under the direction of the court, he is vested by the law with the title to the bankrupt's estate, and charged with duties with respect to the same which he is required to perform with intelligence and on his own responsibility. He may employ counsel, using such judgment as an ordinary man would in the transaction of his own business, and may apply to the creditors for authoritative advice and instructions upon questions of expediency, or for assistance with money to conduct litigation if without funds; but he is not entitled to devolve upon the court the responsibility of directing his actions where his legal duty is plain.

In Bankruptcy. On petition to review action of referee.

This is a petition to review the action of the referee on the application of the trustee for instructions by the court. The adjudication of the bankrupt was made October 30, 1900. At the first meeting of the creditors, December 2, 1900, the Bank of Huntingdon proved its claim as one without security for the sum of $2,172.76, and a brother of the cashier of the bank was elected trustee by the creditors. Subsequently, January 29, 1901, and June 12, 1901, the bank received as dividends on its claim an aggregate sum of $608.37. As a matter of fact, at the time the bank proved its claim without security, it held two notes of one Hardin, which had been secured by a purchase-money lien for land sold to Hardin by one McCracken. These notes were for $175 each, and had been assigned to the bank by Baber, the bankrupt, in March, 1900,-the particular date not being shown by the record,— as collateral security for the indebtedness then held by the bank against Baber, which was subsequently proved in bankruptcy as above stated. These collateral notes had never been paid, but subsequently to their assignment to the bank one Swift filed a bill in the state chancery court against Hardin, the maker of the notes, and others, the purport of which is not shown by the record; nor is the date of the filing of that bill shown by the record, but it may be inferred that it was subsequent to the adjudication of Baber in bankruptcy. However this fact may be, both Baber and the bank were made parties to that bill, and the bank filed a cross-bill to enforce the lien of its collateral security by a sale of the land. Neither is the precise date of the filing of this cross-bill shown, but it is to be inferred that it was subsequent to the adjudication in bankruptcy, and subsequent to the proof of debt by the bank in the bankruptcy proceedings. Because in the proceeding now under consideration it is stated "that in the pleadings in said cause in which the said decree was rendered no mention is made of the said bankrupt proceedings," the trustee in bankruptcy was not made a party to this bill, nor was he brought in after his appointment by the plaintiff in the bill, nor by the bank in its cross-bill. He and the bankruptcy proceedings were wholly ignored throughout the progress of the case in the chancery court and the supreme court of the state. The case was conducted as if the bankruptcy proceeding had had no effect upon the right or title of the bank or Baber to the collateral notes. On the 14th of February, 1902, a final decree was made in the chancery court, which declared a lien in favor of the bank for $373.79, the aggregate amount of the notes, and enforced the same by a decree of sale if the money should not be paid in 30 days from the date of the decree. The decree states that no decree is rendered against

12. See Bankruptcy, vol. 6, Cent. Dig. § 346.