The opinion
Opinion of the Begister: This statement of facts does not, perhaps, fully justify me in submitting the first of the two following questions for the decision of the judge. But, as I am anxious to have some general rule for my guidance hereafter in examinations of bankrupts under section 26 of the bankrupt act, 1867 [ 14 Stat. 529 ], I do not doubt the propriety of submitting the general question. I conceive, then, that the two following questions arise for the decision of the judge, namely: First. May the bankrupt, during his examination, consult counsel, and have his advice, as to the answer to be given to such questions, as may be proposed to him in the course of his examination? Second. Was the register right, in this particular case, in refusing to permit the bankrupt to consult with his counsel before answering the question proposed? The question as to the right of the bankrupt to consult generally with his counsel is very fully discussed by Judge Lowell, United States district court, Massachusetts, in Be Tanner [Case No. 13,-745]. Judge Blatchford, of the United States district court for the southern district of New York, in the Case of Judson [Id. 7,562], has adopted or rather concurred in this opinion of Judge Lowell. The decision of Judge Blatchford in Be Patterson [Id. 10,816], also fully agrees with the opinion of Judge Lowell, above cited. It is agreed, I believe, in all of the cases cited, “that a bankrupt under examination has no right to consult with his counsel except when the magistrate, before whom the examination is conducted, has good cause for allowing it.” Thus leaving the whole matter to the discretion of the register. Holding, as I do, that the bankrupt, when under examination, is a witness on the witness stand, “subject to the same rules and privileges as other witnesses,” that the examination of the bankrupt before me at chambers must be conducted as if the cause was in progress of trial before the judge of the district court; and that to permit the bankrupt’s counsel to advise him, as to the answers he should make to questions propounded to him in the course of his examination, would not only impede the case, but would make it anything but “full, fair, and searching,” in that the counsel would in reality be examined instead of the bankrupt. Holding these opinions, I must, of course, hold that the bankrupt ought not to be permitted to consult with his counsel. The second question, was the register right, in this particular case, in refusing to permit the bankrupt to consult with his counsel? The question proposed by the attorney for the creditor, namely: “Will you file those notes as part of your examination?” could not have possibly involved any question requiring the *117 advice of an attorney. The question was asked in regard to notes in the bankrupt’s possession, spoken of no less than three times in the course of the examination, and could have been answered without any possible detriment to the interest of the bankrupt. To have permitted a consultation here would have greatly impeded the case, and would have been a virtual admission of the right of the bankrupt and his counsel to consult upon all occasions and at their own pleasure. It may not be improper to state that when this question was asked, the bankrupt had been on the stand under examination for about eight hours, and that the examination had been unnecessarily protracted by the verbosity of the bankrupt.