In re Goldsmith

McPIIEBSOlSr, District Judge.

The discharge of the bankrupt was opposed upon the ground that he had committed one of the offenses specified in section 29, Bankr. Act, namely, that he had “made a false oath :i * * in, or in relation to, any proceeding in bankruptcy.” The objections were heard by the referee, from whose report it appeal's that the oath in question was taken in 188.9 before a common pleas judge of Philadelphia county, in a hearing under the Pennsylvania act of 3 842. During this hearing the bankrupt testified concerning the causes of his insolvency, and concerning other matters that need not now be referred to. The stenographer’s notes of his testimony were introduced before the referee at the meeting of creditors held in January last, an agreement having been made between counsel for certain creditors and counsel for the bankrupt that these notes “shall tie transcribed and made part of this record, and have the same force and effect as if the said testimony was originally taken before the referee in this proceeding.”

These notes contain the statements that are declared to he false, and are relied on to prevent the discharge; but I think it is clear that, even if their falsity be assumed, no offense under section 29 has been committed. The bankrupt took no oath before the referee that his former testimony was true, and he did not himself agree (whatever effect the agreement might have had) that such testimony should be treated as if it had been repeated in the bankruptcy proceedings. It was his counsel who made the agreement, and manifestly it exceeds the authority of counsel thus to expose his client to the danger of prosecution for perjury. I do not say that under such an agreement the testimony might not be used for ordinary civil purposes, but to say that a criminal prosecution could be based upon it is a different proposition.

As there was no oath before the referee, there is no foundation of fact for the objection, and the report must be approved.