In Bankruptcy. In the matter of Frank Nathan, bankrupt. On exceptions to the report of the referee in bankruptcy as special master. Exceptions sustained, and case referred to the present referee as special master.
SCHOONMAKER, District Judge.
This case now comes before the court on exceptions to the report of J.R.W. Baker, referee in bankruptcy, as special master, to whom the case was referred to take testimony and make report thereof to the court of his findings of fact, together with his recommendations in favor of, or against, the discharge of the bankrupt.
We have considered these exceptions and are of the opinion that they must be sustained, because it does not appear, in connection with the report of the special master recommending against the discharge, that there was any actual testimony taken before the referee as special master upon the issue submitted to him. He has apparently based his findings entirely upon the records of the bankruptcy case had before him as referee. While the courts have held that testimony of the bankrupt may be considered against him in determining right to a discharge (Shaffer v. Koblegard Co. [C.C.A.] 183 F. 71; In re Malschick [D.C.] 217 F. 492), we are not certain, from the report of the referee and the record before us, that there was any formal offering of this testimony by the persons objecting to the discharge in support of their action.
In order to obtain a full and proper hearing of the objections to this discharge, we sustain the exceptions of the special master, who has died, and refer the case to the present referee as special master to take testimony upon the specification of objections to the bankrupt's discharge and to report his findings to the court. An order may be submitted accordingly.