In re Preston

19 F. Cas. 1289

• Court: District Court, D. Washington
• Decided: July 1, 1871
• Status: Published

Opinion

JACOBS, J.

Two bills of cost have been filed against the estate of said bankrupt by attaching creditors, and their allowance asked for; or rather, the claim is preferred by the sheriff who serves the attachments, and for a while kept the property in exoneration of the attaching creditors. The proof and allowance of these claims are objected to by the assignee, by the creditors who have proved their claims and by the bankrupt. The questions arising thereupon have been duly certified up by the register for decision.

1st. Then, as to the cost bill preferred by the sheriff, in the case of ‘‘Waterman and Katz,” it is objected by the assignee, because the claim of “Waterman and Katz” has never been proven. In other words “Waterman and Katz,” have' neither presented nor proven any claim against the estate of the bankrupt. This objection is well taken, and conclusively disposes of the sixty dollars and twenty-five cents claim against the estate in that case. The debt or principal must be proven and allowed before the costs made before the commencement of proceedings in bankruptcy can be proven and allowed. The costs are but incident. If there is no principal or debt, there can be no incident.

2d. In the case of J. P. White’s attachment costs, several objections are made by the as-signee, and certified up by the register.

First. It has already been decided by Judge Grier, that the sheriff has no lien or preference in this cost bill.

Second. The question now is, White’s debt having been duly proven and allowed, whether the attachment costs can be proven as a general debt against the estate of the bankrupt. I am of the opinion that they can be, if made in good faith before the commencement of proceedings in bankruptcy, and were made without a knowledge of the insolvency of the party and with no intention to defeat the operations of the bankrupt act It is not objected in this case that the attaching creditor knew of the insolvency of the bankrupt, or that the attachment was made to defeat the operation of the bankrupt law. But it Is objected that a part of these costs were made after the commencement of proceedings in bankruptcy.

I find in reference to the cost bill on file, that fifty-six dollars have been charged for service and return of attachment on a boom of logs, and for keeping the same to March twentieth, eighteen hundred and seventy-one. Proceedings in bankruptcy were commenced on the eighteenth, hence all attachments were dissolved at that date. Hence. I disallow two days keeping at the rate charged, (two' dollars per day) and allow the rest, fifty-two dollars.

Third. The charge for attaching and keeping -the oxen and camp gear turned over to the bankrupt as exempted property is all disallowed. The sale of said property was null and void. 1st, because it was made after the commencement of proceedings in bankruptcy, and 2d, because the property was not subject to attachment and sale under the laws of this territory or the bankrupt law.

The register is directed to allow, upon due proof, the fifty-two dollars specified herein, to be paid in the regular order of distribution.