The estate of the bankrupt is in process of administration after
the petition has been filed and a receiver appointed and an
examination may be ordered at any time thereafter under § 21a of
the Bankruptcy Act.
Section 7 of the Bankruptcy Act does not prevent a prosecution
for perjury in the giving of testimony by the bankrupt; the
immunity applies to past transactions concerning which the bankrupt
is examined. Glickstein v. United States, 222 U.
In the absence of clearly expressed legislative intent,
retrospective operation will not be given to statutes, nor, in
absence of such intent, will a statute be construed as impairing
rights relied upon in past conduct when other legislation was in
force. Union Pacific R. Co. v. Laramie Stock Yards, ante,
p. 231 U. S. 190
Section 860, Rev.Stat., although repealed before testimony was
used, if in force when the testimony was given, protected the giver
thereof from having it used against him in a criminal
The use of testimony given by the bankrupt in a hearing before a
commissioner to contradict his testimony given before the referee,
in a trial on an indictment for perjury in giving the latter
testimony, violates the immunity guaranteed under § 860 Rev.Stat.,
and the use thereof is reversible error
192 F. 548 reversed.
The facts, which involve the immunity of one examined in a
bankruptcy proceeding prior to the repeal of § 860, Rev.Stat., from
having his testimony used against him, and the construction of §§ 7
and 21a of the Bankruptcy Act, are stated in the opinion.
Page 231 U. S. 714
MR. JUSTICE DAY delivered the opinion of the Court.
This is a writ of certiorari to the Circuit Court of Appeals for
the Second Circuit. The case concerns a prosecution
Page 231 U. S. 715
commenced in the Circuit Court of the United States for the
Southern District of New York by the finding of two indictments
against the petitioner herein, charging perjury in a bankruptcy
proceeding. Upon trial, the defendant, Cameron, was convicted and
sentenced, and upon writ of error, the judgment of the circuit
court was affirmed by the circuit court of appeals, 192 F. 548.
The first indictment, after setting forth the proceedings in
bankruptcy against the Knickerbocker Piano Company, of which the
defendant was president and treasurer, alleged that he, upon
inquiry, under oath before a special examiner and commissioner
appointed under § 21a of the bankruptcy act prior to adjudication,
"First. That he, the said Albert B. Cameron, the aforesaid
witness, shortly prior to the filing of the aforesaid petition in
bankruptcy against the said Knickerbocker Piano Company, had sold a
number of pianos to William C. Smith, the petitioner in bankruptcy
"Second. That he, the said Albert B. Cameron, the witness
aforesaid, had a conversation with the said William C. Smith
concerning the sale to him of pianos by him, the said Albert B.
"Third. That he, the said Albert B. Cameron, the aforesaid
witness, had sold to the said William C. Smith eight pianos for the
sum of $668."
And it alleged that the defendant thereby committed perjury.
By the second indictment the defendant is said to have committed
perjury in a proceeding before the referee in testifying:
"First. That he, the said Albert B. Cameron, had not been able
to obtain the address of the said William C. Smith, and had never
known the said address."
"Second. That he, the said Albert B. Cameron, had
Page 231 U. S. 716
had a conversation or conversations with the said William C.
Smith in regard to his, the said William C. Smith's, buying pianos
of and from the said alleged bankrupt."
The two indictments were consolidated, and, the defendant
pleading not guilty, trial was had, and a verdict of guilty
returned upon which judgment was rendered.
The petitioner contends that the bankruptcy act does not
authorize the proceeding before the commissioner prior to the
adjudication. The record discloses that a receiver had been duly
appointed of the assets and effects of the bankrupt, and that he
had applied to the court under § 21a of the Bankruptcy Act of 1898
for an order requiring the bankrupt, its officers and directors, to
appear before a special examiner and commissioner, to be examined
concerning the property of the bankrupt and the acts and conduct of
its officials. The court made the order requested, and appointed
the special examiner and commissioner, before whom Cameron appeared
and testified, giving, in the course of his examination, the
testimony charged in the first indictment to be false. This
proceeding was prior to the adjudication in bankruptcy, which
followed a few days later. Whether the examination of Cameron upon
oath at that stage of the proceedings was authorized by the
Bankruptcy Act depends upon a construction of clause a,
21, of the act, which provides, in part, as follows:
"A court of bankruptcy may, upon application of any officer,
bankrupt, or creditor, by order require any designated person,
including the bankrupt and his wife, to appear in court or before a
referee or the judge of any state court, to be examined concerning
the acts, conduct, or property of a bankrupt whose estate is in
process of administration under this act."
The controversy is over the meaning of the phrase, "a bankrupt
whose estate is in process of administration under this act." The
construction of this provision differs
Page 231 U. S. 717
in the federal courts, some of them having held that there can
be no such examination until after adjudication, as it is only then
that the bankrupt can be subjected to such proceeding. Of this
class are Skubinsky v. Bodek,
172 F. 332; Podolin v.
193 F. 1021; In re Thompson,
179 F. 874;
In re Davidson,
158 F. 678; In re Crenshaw,
F. 271. To the opposite view are In re Fixen & Co.
F. 748; In re Fleischer,
151 F. 81; Ex Parte
155 F. 908; Wechsler v. United States,
579; United States v. Liberman,
176 F. 161. We are of
opinion that the estate was in process of administration at the
time when the examination before the commissioner was ordered and
the testimony of Cameron given. This Court has decided that the
filing of the petition in bankruptcy operates to place the property
of the alleged bankrupt in custodia legis,
any creditor from attaching it; and, although, by the terms of the
act, the estate does not vest in the trustee until the date of the
adjudication, it is placed at the time of the filing of the
petition under the control of the court with a view to its ultimate
distribution among creditors. Acme Harvester Co. v. Beekman
Lumber Co., 222 U. S. 300
222 U. S. 307
and see Mueller v. Nugent, 184 U. S.
, 184 U. S. 14
Everett v. Judson, 228 U. S. 474
228 U. S.
-479. And this is true notwithstanding, as contended
by the petitioner, that, should the attempt to obtain an
adjudication of bankruptcy fail upon the subsequent hearings, the
receivership would necessarily be vacated and the property turned
back to the alleged bankrupt.
In order to arrive at the true meaning of § 21a, other
provisions as well as the purpose of the act must be had in view.
The object of the examination of the bankrupt and other witnesses
to show the condition of the estate is to enable the court to
discover its extent and whereabouts, and to come into possession of
it, that the rights of creditors may be preserved. If such
examination is postponed
Page 231 U. S. 718
until after adjudication, which may not take place for at least
twenty days, within which the bankrupt in involuntary bankruptcy is
given leave to appear and plead, the estate may be concealed and
disposed of, and the purpose of the act to hold it and to
distribute it for the benefit of creditors defeated. The importance
of such early examination of bankrupts was emphasized in In re
151 F. 81. By subdivision 9 of § 7 of the act, it
is provided that the bankrupt shall,
"when present at the first meeting of his creditors, and at such
other times as the court shall order, submit to an examination
concerning the conducting of his business, the cause of his
bankruptcy, his dealings with his creditors and other persons, the
amount, kind, and whereabouts of his property, and, in addition,
all matters which may affect the administration and settlement of
Here is found authority to examine the bankrupt at such other
times than the first meeting of creditors as the court may direct.
This section should be read with § 21a, and throws light upon its
proper construction. In this case, the petitioner had invoked the
jurisdiction of the court, a receiver had been appointed to take
possession of the property, the court was so far in possession of
it as to prevent other courts from seizing it, and thus defeating
the bankruptcy jurisdiction. We are of opinion that the estate was
then in process of administration, and the examination ordered was
within the jurisdiction of the court.
Other questions in the case relate to alleged violations of
immunity afforded the defendant under statutes of the United
States, which were invoked by him at the trial in the circuit
court. Records were there offered in evidence showing the testimony
given by Cameron before the examiner and before the referee.
Cameron claimed that this testimony was incompetent for the purpose
of establishing his guilt beyond showing that it was in fact
Page 231 U. S. 719
Counsel for petitioner relies upon the immunity clause of § 7 of
the Bankruptcy Act, and upon § 860 of the Revised Statutes in force
at the time the testimony was given, but repealed by the Act of May
7, 1910, 36 Stat. 352, c. 216. Section 7, subdivision 9, of the
Bankruptcy Act, cited above, concludes: "But no testimony given by
him shall be offered in evidence against him in any criminal
proceeding." This section was before this Court, so far as the
immunity provided is concerned, in Glickstein v. United
States, 222 U. S. 139
where it was held not to prevent a prosecution for perjury in the
giving of testimony by a bankrupt, and the immunity was held to
apply to past transactions concerning which the bankrupt might be
examined. In the opinion in that case, Edelstein v. United
Circuit Court of Appeals for the Eighth Circuit, 149
F. 636, which had held that the words "any criminal proceeding" in
which immunity is provided are limited to such criminal proceedings
as arise out of the conduct of the bankrupt's business or the
disposition of his property, etc., concerning which he may be
examined, was cited with approval. In Ensign v.
Pennsylvania, 227 U. S. 592
227 U. S. 600
it was held that full effect could be given to the immunity
provision by confining it to the testimony given under subdivision
9, to which it was immediately subjoined. As the present
prosecutions was based upon alleged false swearing in the course of
the bankruptcy proceedings, § 7 of the Bankruptcy Act can have no
Petitioner also invokes the protection of § 860 of the Revised
Statutes, which reads:
"No pleading of a party, nor any discovery or evidence obtained
from a party or witness by means of a judicial proceeding in this
or any foreign country, shall be given in evidence, or in any
manner used against him of his property or estate, in any court of
the United States, in any criminal proceeding, or for the
enforcement of any
Page 231 U. S. 720
penalty or forfeiture: Provided,
that this section
shall not exempt any party or witness from prosecution and
punishment for perjury committed in discovering or testifying as
The government contends that the subsequent repeal of this
section deprives the petitioner of the immunity afforded. We cannot
agree with this contention. It would be subversive of principles of
right and justice to give such effect to a statute upon the
protection of which the petitioner had the right to rely at the
time when called upon to testify in the bankruptcy court, and in
consequence of which he may be presumed to have given his
testimony. A retrospective operation of statutes is not to be given
except in clear cases, unequivocally evidencing the legislative
intent to that effect. Union Pacific R. Co. v. Laramie Stock
Yards Co., 231 U. S. 190
231 U.S. 199
, and previous
cases in this Court, cited in the opinion in that case. Summers
v. United States, 231 U. S. 92
the absence of a clearly expressed legislative intent to the
contrary, the court will presume that the lawmaking power is acting
for the future, and does not intend to impair obligations incurred
or rights relied upon in the past conduct of men when other
legislation was in force. White v. United States,
191 U. S. 545
191 U. S.
The circuit court of appeals in the instant case was of opinion
that the petitioner was entitled to the immunity afforded in § 860
of the Revised Statutes, but failed to find in the record any
instance of its violation. Section 860, by its express terms, does
not exempt a party from prosecution for perjury committed in
testifying in the instances named. It was held in Glickstein v.
United States, supra,
of § 7 of the Bankruptcy Act, that this
immunity was not intended to put a premium upon perjury by giving
protection against the use of the testimony in prosecutions for
that crime, and we cannot agree with petitioner's contention that
the use of such testimony is limited to proving that
Page 231 U. S. 721
it was in fact given. In prosecutions for perjury, the statute
saved the right to use such testimony for any legitimate purpose in
establishing the charge made. While this is true, the statute, by
its terms, protects the party from the use of such testimony in any
court of the United States in any criminal proceeding.
The subsequent prosecution of Cameron for perjury in the two
bankruptcy proceedings was a criminal proceeding in a court of the
United States, and the testimony given in the one bankruptcy
proceeding, not tending to establish perjury in that proceeding,
should not have been received to establish the crime charged in the
other proceeding. In this case, it will be noted from the statement
already made that the indictment based upon the testimony before
the referee charged that Cameron falsely swore that he had not been
able to obtain and had never known the address of William C. Smith,
the man with whom it was charged the fraudulent transactions
regarding the pianos were had. In the first indictment based upon
the testimony before the commissioner, there is no such charge. The
government having put in evidence the proceedings before the
referee showing that Cameron there testified that he did not know
Smith's address, and that he was not acquainted with his friends,
and that he did not know anyone who knew him, the record of
Cameron's testimony before the commissioner was offered in
evidence, and, over specific objections calling attention to the
lack of such charge in the first indictment based on the
proceedings before the commissioner, the government was permitted
"Q. Did you, shortly prior to the filing of the petition, sell
some pianos and realize cash on them?"
"A. Yes, I did."
"Q. To whom were they sold?"
"A. They were sold to W. C. Smith."
"Q. Where is his place of business? "
Page 231 U. S. 722
"A. He is not in business."
"Q. Who is he?"
"A. Why, an acquaintance of mine."
"Q. Where does he live?"
"A. On St. Nicholas avenue, I don't recall the address."
"Q. What number?"
"A. I don't remember."
"Q. Between what streets?"
"A. Above 125th."
"Q. Is it an apartment or a private house?"
"A. Why, I think just a furnished room, or rooms."
"Mr. McManus: I object to this as immaterial and not within the
issues. There is no allegation in the indictment, or the assignment
of perjury, as to the alleged address of William C. Smith, and in
the proceedings before the commissioner --"
"Mr. Smith: I am reading so the jury will get some sort of a
comprehensive idea as to what the man testified to. This is the
beginning of this alleged transaction with William C. Smith."
"The Court: Cut it down closer."
"Mr. Smith: I have cut it down to about two pages."
"Objection overruled. Exception by defendant."
"Mr. Smith (reading):"
"Q. How long have you known him?"
"A. Oh, three or four years."
"Q. Do you know whether he is employed by anybody?"
"A. Yes, sir, but I don't know where."
"Q. You haven't any idea in what capacity he is employed?"
"Q. How often do you meet him?"
"A. Not very often."
"Q. How often did you meet him before this last
"A. Oh, two or three times. "
Page 231 U. S. 723
"Q. How long do you know him?"
"A. Three or four years, I think."
"Mr. McManus: This is another line, subject to the last
"Q. Where did you first meet him?"
"A. New York."
"A. I don't recall that."
"Q. Do you know anybody else other than yourself who knows Mr.
"A. He has a number of friends."
"Q. Do you know of anybody?"
"A. My brothers."
"Q. Outside of your family?"
"Q. Is he related to you?"
"Q. Is he related to any member of your family?"
"Q. Do you know how he can be located?"
"A. Why, yes, I could get hold of him."
"Q. How could you get hold of him today?"
"A. I'd go and ask my brother."
"Q. You think he could give you the address?"
"A. Yes, sir, I think so."
"Q. Did you send to Mr. Smith to come to the place and buy some
"A. I had to sell some pianos to get some money."
"Q. Where did you send to get him?"
"A. I got him through my brother."
The effect of this testimony was to distinctly contradict the
testimony which Cameron had given before the referee, and which was
the subject matter of the indictment based on the proceedings
before that officer. It did not tend to establish the charge
growing out of his testimony before
Page 231 U. S. 724
the commissioner, which related solely to the sale of pianos and
conversations between Cameron and Smith concerning the sales. The
district attorney contended that this testimony was competent in
order that the jury might get some sort of comprehensive idea as to
what the man testified to, and, in view of that statement and the
expressed view of the court that anything that threw light on the
event was admissible, the testimony was admitted. It is contended
that it was competent as showing the relations of Cameron the Smith
and to identify Smith, but there was no question in the case as to
who Smith was. He was a witness called to establish the charge of
perjury, and he was the person with whom it was charged the
fraudulent dealings in pianos were had by the bankrupt. The
testimony offered as to what Cameron swore to before the examiner,
while not tending to establish the charge of perjury based upon
testimony in that instance, did contradict the testimony which he
had given before the referee, and directly tended to establish the
charge under that indictment. We think to permit the use of the
testimony for that purpose was to permit the testimony given in the
one instance to be used in a criminal proceeding based upon
testimony given in the other instance, and therefore to violate the
immunity given in § 860 of the Revised Statutes, then in force.
Other errors are alleged, and it is contended that there was no
adequate proof of the charges made, but these questions were
submitted to the jury and cannot be reexamined here. We are of the
opinion that error was committed in the use given to the testimony
taken before the commissioner in the manner we have stated, and for
that reason the judgment of the circuit court of appeals, affirming
the conviction of Cameron in the court below, should be
Reversed and remanded to the District Court of the United
States for the Southern District of New York.