In re Roy

185 F. 551, 1910 U.S. Dist. LEXIS 51

• Court: District Court, W.D. New York
• Decided: December 7, 1910
• Docket: No. 3,697
• Status: Published

Opinion

HAZEL, District Judge.

The authorities cited by counsel for the petitioners (In re Butterfield, Fed. Cas. No. 2,248, and In re McDuffee, Fed. Cas. No. 8,778) were not called to my attention on the original hearing, nor was any suggestion made that a similar question had been considered under the bankrupt act of 1867. Act March 2, 1867, c. 176, 14 Stat. 517. These authorities show that the power given by section 20 of the bankrupt act (Act July 1, 1898, c. 541, 30 Stat. 551 [U. S. Comp. St. 1901, p. 3430]) “to * * * officers authorized to administer oaths in proceedings before the courts of the United States, or under the laws of the state where the same are to be taken,” carries with it the incidental power to take acknowledgments of letters of attorney. Such decisions are in conflict with my former decision herein that the Supreme Court, by General Order 21, subd. 5 (89 Fed. x, 32 C. C. A. xxiii), intended to limit the officers before whom letters of attorney might be acknowledged.

After carefully considering the decision of Judge Brown in Re Butterfield, supra, I am persuaded that it is well reasoned and should have controlled the question certified in this case. Under the act of 1867, there was no requirement that powers of attorne)'- should be acknowledged; but the amendment of 1874 (Act June 22, 1874, c. 390, § 20, 18 Stat. 186) provided that a notary public should be empowered to take proof of claims against the bankrupt estate. General Order 34, then in force, provided for proving or acknowledging claims before a register or United States commissioner, and such rule was not changed or altered after the amendment. In this situation the question arose in the Butterfield Case whether letters of attorney to represent creditors might be acknowledged before a notary public. The learned court was of opinion that the general order ought to be interpreted so as to carry into effect the true intent and object of the Legislature in enacting the bankruptcy law, and upon the subject of whether the power to take oaths includes the power to take acknowledgments said:

“I place my decision upon the ground that the power given to notaries public to take proofs of debt, in view of the usual course of proceedings jn these eases, carries with it as an incident the power to authenticate letters of attorney. I am authorized to say that the Circuit Judge concurs with me in this opinion.”

And again:

“The amendment was intended to obviate the necessity of a creditor traveling perhaps a great distance to the nearest commissioner or register to prove a debt; but if he is compelled to make the same journey after having proved his debt/ to acknowledge a letter of attorney, for all practical purposes the act might as well have never been passed.”

This reasoning would seem to apply to the case at bar, and its soundness cannot be ignored by me. The ruling was subsequently approved and followed in Re McDnffee, supra. These adjudications constrain me to hold that in states where justices of the peace are expressly authorized to take oaths the Supreme Court did not intend by General Order 21, subd. 5, to exclude such officials from taking acknowledgments.

The election of George W. Salisbury as trustee must be vacated and set aside, and another election of trustee held under the direction of the referee, at which election letters of attorney of creditors acknowledged before justices of the peace and otherwise regular shall be received, and the proxies allowed to vote.

So ordered.