"The reference to the power to punish for contempt in section 41 of the bankrupt [sic] act was not to confer the power on the court of bankruptcy, for its creation alone invested it with that power, but it was to make it plain that the power was not conferred on referees in bankruptcy...."
How later courts described this case
- "The reference to the power to punish for contempt in section 41 of the bankrupt [sic] act was not to confer the power on the court of bankruptcy, for its creation alone invested it with that power, but it was to make it plain that the power was not conferred on referees in bankruptcy...."
- "The moment the court [of bankruptcy] was called into existence it became possessed of this [contempt] power...."
Written by the judges who cited it.
The opinion
SANBORN, Circuit Judge.
I concur in the order reversing the orders below because the evidence in the record satisfies my mind, beyond a reasonable doubt, that the bankrupt had in his possession or under his control at the time the order of the referee was made a much larger amount of property that belonged to his estate in bankruptcy than the amount which the court finally ordered him to surrender to the trustee. The rule by which this issue is to be de^ termined is that the property of the bankrupt estate traced to the recent possession or control of the bankrupt is presumed to remain there until he satisfactorily accounts to the court for its disposition or disappearance. He cannot escape an order for its surrender by simply adding perjury to fraudulent concealment or misappropriation. It is still the duty of the referee and of the court, notwithstanding his oath and his testimony, if satisfied beyond a reasonable doubt that he has property of the estate in his possession or under his control, to order him to surrender it to the trustee, and to enforce that order by confinement as for contempt. These rules are established and illustrated by the following cases: In re Salkey, 21 Fed. Cas. 235, 238-240 , Nos. 12,253 and 12,254; In re Schlesinger, 42 C. C. A. 207, 208 , 102 Fed. 117 ; Id. (D. C.) 97 Fed. 930, 932 ; In re Deuell (D. C.) 100 Fed. 633, 634 ; In re Greenberg (D. C.) 106 Fed. 496 ; In re McCormick (D. C.) 97 Fed. 566, 567 ; In re Mayer (D. C.) 98.Fed. 839, 841.
The foregoing authorities and those cited below also sustain the proposition that the rule that one charged with constructive contempt may conclusively purge himself thereof by his own oath, which may prevail in cases at law in Indiana and in some other jurisdictions, has no application to cases involving a disobedience of an order of a court to pay money or surrender property, or to cases involving the disobedience of an order of a court of bankruptcy or of equity, or, in many of the code states, to cases involving the disobedience of an order of a state court. In all proceedings for contempt for the disobedience of orders in bankruptcy and in chancery, and in most of the code states in all cases of proceedings for contempt for disobedience of an order of a court, the sworn answers of the party charged with the contempt are evidence to purge him thereof, but they are not conclusive' evidence. They may be contradicted and supported by other testimony, and the question whether or not the party charged has purged himself of the contempt is always to be decided upon a careful consideration of all the evidence produced for and against him. Moreover, an attachment for the disobedience of an order to pay money or to surrender property is considered rather as a civil execution for the benefit of the equitable owners of the fund or property than as a criminal proceeding, although it is in the form of a criminal process for *143 a contempt of the authority of the court. Buck v. Buck, 60 Ill. 105, 106 ; Smith v. Smith, 14 Abb. Prac. 130, 132; 4 Bl. Comm. p. 288; Crook v. People, 16 Ill. 534, 537 ; In re Pitman, 19 Fed. Cas. pp. 727-729, No. 11,184; Rap. Contempt, § 120; Underwood’s Case, 2 Humph. 46 , 49; Rutherford v. Metcalf, 5 Hayw. 58 , 60, 61; Magennis v. Parkhurst, 4 N. J. Eq. 433, 434; State v. Harper’s Ferry Bridge Co., 16 W. Va. 864, 873 ; State v. Matthews, 37 N. H. 450, 455, 456; Henry v. Ellis, 49 Iowa, 205, 206 ; Crow v. State, 24 Tex. 12, 14 .