In re Comstock

6 F. Cas. 240, 9 Nat. Bank. Reg. 88

• Court: District Court, E.D. Michigan
• Decided: July 1, 1874
• Status: Published

Opinion

LONGYEAR, District Judge.

First As to the item paid the marshal as messenger, one hundred and eighty-nine dollars and four cents. By the requirement of general order number twelve, the marshal must accompany his return, whenever practicable, with vouchers for all expenditures charged by him. ‘Whenever vouchers are omitted he must state in his reton, or produce other testimony of, the reasons for such omission, in order that the court may judge of the practicability of his obtaining vouchers. In this instance no vouchers are produced, and no reasons for the omission are stated in the return. It was stated, however, on the argument before me, that this being a comparatively early case, and the law not being well understood when the business was transacted, vouchers were omitted by oversight of .the deputy who did the business, and that so long a time has elapsed that it is now impracticable to obtain vouchers. The court may, no doubt, exercise a discretion in this matter, and upon its being made to appear before the register that the reasons above stated are the true and only reasons for not producing vouchers, or that it was impracticable at the time to obtain them, the register is authorized to act upon the account without insisting upon their production. As to the item charged in the marshal’s return, for “storekeeper, twenty-days, at two dollars and a half per day, fifty dollars,” I think the rule laid down by Blatehford, J., in Re Lowenstein [Case No. 8,572], is a very proper and judicious one, and the same is adopted by this court. It is this: “The sum actually paid a keeper to watch property in custody, not exceeding two dollars and a half a day, may be taxed, upon satisfactory proof that a prudent precaution, in regard to all concerned in the property, justified the marshal in placing a keeper over it; that the keeper actually continued in charge of it for ihe time specified, and that the sum charged therefor is reasonable for the serv^e, and has been actually paid by the marsh Upon such proof being made before the register the item must be allowed.

Second. As to the item for cash paid petitioning creditor’s attorney’s fees and expenses, one hundred and seventy-five dollars; the first item of the attorney’s bill being for retainer, fifty dollars, and the last two items thereof being for expenses, ten dollars, and services, fifteen dollars, attending first meeting of creditors, is disallowed. After adjudication the petitioning creditor has no preference over any other creditor as to allowance of expenses incurred by him in connection with the bankruptcy proceedings. The matter is referred back to the register to proceed therein in accordance with the foregoing decision.