
    In re ROSE.
    (District Court, W. D. Pennsylvania.
    February, 1907.)
    Bankrtjptci'— Examination of Banxrupi^Gbeditobs Entitled to Examine.
    A creditor, named as such in a bankrupt’s schedule, is entitled to examine the bankrupt under Bankr. Act July 1, 1898, c. 541, § 21a, 30' Stat. 552 (U. S. Comp. St. 1901, p. 3430), upon any matter properly relevant to the proceedings, and it is not necessary that he should first prove his claim.
    In Bankruptcy. On certificate from referee.
    Cassidy & Richardson, for petitioners.
    Chantler & McClung, for creditor.
   EWING, District Judge.

The question certified here is whether, without proving his claim, an alleged creditor is entitled to examine the bankrupt. It appears from the report of the referee that on the 5th of September, 1906, the bankrupt appeared and was duly sworn, and William A. Jordan, Esq., counsel for J. D. Bernd Company, the only creditor named in the bankrupt’s schedule, started to examine the bankrupt, when objection was interposed on the ground that said party, the J. D. Bernd Company—

“has proven no claim in this case, as disclosed by the record, and "does not now offer to prove any claim, but has expressly stated through his counsel that they do not propose to prove any claim, because in the opinion of the counsel the indebtedness of J. D. Bernd Company against this bankrupt is not dischargeable by the bankruptcy proceedings, and therefore the said J. D. Bernd Company has no standing at the present time in this proceeding by the referee.”

The referee ruled that:

“It appearing that the examination of this bankrupt has been adjourned from August 17, 1908, until this date, for the purpose of enabling the .1. D. Bernd Company to prove its claim in this case, and it further appearing that no claim has been Hied on behalf of said company, andl that said company is the only person named in the schedules filed by the bankrupt, the referee Is of opinion that the said J. D. Bernd Company is not at the present time entitled to examine the bankrupt, and tlio objection is sustained.”

While it is alleged in the objection that the counsel for the J. D. Bernd Company stated that they do not propose to prove any claim, because in his opinion the indebtedness is not dischargeable by the bankruptcy proceedings, yet that is not stated as a fact by the referee, nor is his ruling based on that, but solely on the ground of the failure first to prove the claim.

In Brandenburg on Bankruptcy, § 519, it is said that:

“Any person who shows that he is actually a creditor of the bankrupt, as by being so named in the schedule, or by any other satisfactory evidence, is entitled to an order for the examination of the bankrupt, although he has not formally proved his claim.”

In Re Walker (D. C.) 3 Am. Bankr. Rep. 35, 96 Fed. 550, a similar question is considered, and it is there held that it is not necessary for any one who appears to be a creditor to prove his claim before he is entitled to an examination of the bankrupt; and it is said:

“Was there sufficient evidence before the referee to show that the creditor had a provable claim against the estate? I think there was. The claim was listed by the bankrupt as a debt which he was owing, and he was required by section 7 of the act (Bankr. Act July 1, 1898, c. 541, 30 Stat. 518 [U. S. Comp. St. 1901, p. 3425]) to state under oath the amount of the claim, and the consideration out of which it arose. This, of course, would not establish the claim, nor the right of the creditor to share in dividends; but as to such matters as the examination of the bankrupt, and as against, him, it certainly makes oujt at least a prima facie case that the claim exists and is provable against the estate.”

The same case rules that a creditor who has not proved his claim is entitled to oppose the discharge of the bankrupt, and, if he is entitled to oppose a discharge without proving his claim, he ought likewise to be allowed to examine the bankrupt for the purpose of establishing the grounds of his objections.

So, also, in Re Jehu (D. C.) 2 Am. Bankr. Rep. 498, 94 Fed. 638, Judge Shiras states:

“I know of no provision of the bankrupt act which requires that a creditor must file and prove up his claim before he is entitled to an order for the examination of the bankrupt.”

From these authorities it would appear that it is wholly unnecessary to require one who appears to be a creditor of the bankrupt to prove his claim before being entitled to examine the bankrupt, and I therefore conclude that the referee was in error in refusing to permit the examination in this case, and it is directed that such examination, if the creditor so desires, be now allowed. Of course, the referee will see that the examination is conducted along proper lines and for legitimate purposes with reference to the bankruptcy proceeding, either to show the condition of the estate of the bankrupt, its whereabouts, amount, etc., or to elicit such matters as might be available in opposition to his discharge, or some other relevant testimony.  