In re Merrick

17 F. Cas. 75

• Court: District Court, E.D. Michigan
• Decided: February 15, 1878
• Status: Published

Opinion

DOXG-XEAR, District Judge.

By section 22 of the bankrupt act it was provided, “that all proofs of debts against the estate of the bankrupt, by or on behalf of creditors residing within the judicial district where the proceedings in bankruptcy are pending, shall be made before one of the registers of the court in said district, and by or on behalf of non-resident creditors, before any register in bank-ruptey in the judicial district where such creditors, or either of them reside, or before any commissioner of the circuit court authorized to administer oaths in any district.” A difference'of construction by the courts having arisen as to the power of a commissioner, under that provision, to take proof of debts, where the creditor resided within the district where proceedings were pending, congress by section three of the act of July 27, 186S (15 Stat. 228) enacted that “such commissioners may take proof of debts in bankruptcy in all cases, subject to the revision of such proofs by the court according to the provisions of said act.” So that as the law now stands proof of debts in bankruptcy may be taken by a register or by a commissioner in all cases, whether of a resident or non-resident creditor, or whether such commissioner holds his office in the same town or in the same building in which a register holds his office, the only limitation being that it shall be taken before a register or commissioner of the same judicial district in which the creditor resides, or in which the proceedings are pending. The law never did require, neither does it seem to have been contemplated, that such proofs should be taken before the register to whom the bankruptcy has been referred; to the exclusion of all others.

In this state of the law, I cannot see that the court has any discretion to refuse to receive and file a proof of debt which appears on its face to have been taken by a proper officer, and to be correct in form and in substance. By the receipt and filing of proof of debt, and by it alone, the court obtains jurisdiction of the claim and of the creditor presenting it; and then, and then only, does the revisory power of the court over such proof mentioned in the act of 186S commence. The receiving and filing of proof of debt concludes nothing. True, unless otherwise ordered, it entitles the creditor to be placed on the list of creditors, vote for assignee, and receive dividends. But the court may otherwise order; and, under its revisory powers, may postpone the same, as provided in section twenty-three; and, as provided in section twenty-two, summon the creditor and other persons before it, and examine them in regard to the claim itself, and may reject the claim altogether, or in part only; and do all other things in regard to it which the act authorizes to be done. In this case the creditor is a resident of this district, and the commissioner before whom the proof was taken is a commissioner of this district. It appears, therefore, that the proof was taken before a proper officer. The proof is also strictly correct in form and in substance. It is objected, however, by the register, that it is an affidavit merely, and not a deposition. I cannot see the force of this objection, the proof being, as it is, in the exact form prescribed (form No. 4). It is also objected that it appears to have been written by the creditor’s attorney, and not by the commissioner. The rules and regulations for taking depositions of witnesses to be used as evidence in tbe courts usually require that the depositions shall be written by the officer taking it, by some disinterested person in his presence, or by the witness. There is, however, no such requirement in this case. Neither is it of so much importance, in view of the fact that what the creditor must swear to is clearly and explicitly poipted out in the act, section twenty-two, and the exact form in which he shall do it is prescribed (form No. 4). It is a practice, however, not to be commended. It is far preferable, and more in accordance with the spirit of the act, that the officer, with the act and the form before him, should examine the creditor on oath touching the matters specified, and himself reduce the deposition to writing or fill up the printed blank, if such is used. But I am not prepared to decide that unless this is done the proof should be rejected, especially where no attendant or resulting objectionable circumstances or facts are made to appear. If a creditor sees fit to go to the unnecessary expense of employing an attorney to draw up his proof of claim, in an ordinary case, instead of having the officer to do it whose duty it is, I do not know that the court ought to complain; but the court will see to it that the estate is not damaged by an allowance for any such unnecessary service.

Theargumentof the learned registeragainst recognizing the power of commissioners doing business in the same town, or, as in this case, in the same building as the register in charge, is of much force. But, in my view of the matter, it goes rather to the policy and justness of the law than to the validity, or to the power and duty of the court to set it at naught by construction. It is, no doubt, the wiser policy for creditors, in all cases where they can do so conveniently, to make their proof before the register in charge, because he is thereby afforded an opportunity of putting such questions to them, and making such explanations to them as to their rights and liabilities as he may see fit, and the creditor may then be saved the trouble of being afterward summoned before the court to submit to an examination in regard to his claim. But all the court can do is to commend that course to creditors as the wiser policy.

It follows, from what has been said, that the proof of debt of Edmund Cole must be received and filed.