In re Sherwood

21 F. Cas. 1286, 1 Nat. Bank. Reg. 344

Opinion

CADWALADER, District Judge.

The certificate states no point or matter on which a party desires an opinion. Xor does the register certify any ease or question as having been stated by parties for my opinion. Whether such a certificate is directly authorized by the sixth section of the act of congress, may be doubted. The regular mode of raising a question as to the propriety of charges of the register is by exceptions on j the part of the assignee, or, in some cases, | on the part of the bankrupt. But -where parties may have no disposition to take such exceptions, or the register desires to receive instruction as to his official duty, there is perhaps no objection to his adopting, as he has done here, a course analogous to that ¡ prescribed by the sixth section. If so, how- I ever, -the question submitted should not be decided in his favor unless the parties opposed in interest have been so notified as to afford full opportunity .for contestation. As the certificate under the sixth section of the act “may be varied by the judge,” I 'will I state in answer the following important pre- j liminary questions: First. Can a register in i bankruptcy fulfil the requirements of his of- j ficial duty by holding stated or occasional ■ monthly sessions, in a county of his district . in which he does not reside, on days of his , own appointment? Second. Can he fulfil ¡ those requirements without having in every ¡ county in which he may act within his dis- j triet, an office always open, attended by him- ] self or by a resident clerk, where the docket, ! minutes, and papers of every bankruptcy in | such county are securely and methodically j kept, and are there open every day during i the hours of business, to the inspection of i those interested? Third. Does any enact- j ment of congress, or general order of the ; judges of the supreme court, or course of j practice in this court, authorize any such charge by a register as “for minimum fees in ordinary unopposed eases, fifty dollars?” These three questions are prefatorily answered in the negative.

As to the first and second, the register cannot fulfil the duties of his appointment for any county in which the business in bankruptcy must wait upon his convenience, or in which he cannot hold sessions whenever the business may require them, or cannot continue them at convenient short intervals, if not from day to day, as long as may be required. Nor can he fulfil the requirements of his official duty, as to any county in which the books and papers are not so open to inspection, at the local seat of justice, as those in the office of the clerk of a court should be.

As to the third question, the act of congress requires, not payment in advance of the sum of fifty dollars, but, on the contrary, the deposit of it as a security. Against this amount are to be charged all the specific amounts earned for services under the forty-seventh section of the act and the thirtieth general order. Some of the registers take so strictly limited a view of their rights, as to make, I believe, no charge whatever beyond these amounts, for expenditures. Opinions of district judges on this point have, I believe, differed, some of them denying, others doubting, but others admitting, the right to a reasonable allowance for the revision of the papers, and the performance of other duties, requiring the exertion of intellectual effort, and the aid of legal science and experience. I am strongly disposed to make such an allowance, if I can do so without infringing legislative prohibition, express or implied. But such a question cannot be definitely decided ex parte. The allowance, if made, must be measured cautiously. I have as yet had no conception that in any ordinary unopposed case, where travelling expenses have not been incurred, the specific charges and additional allowance can together exceed fifty dollars. Where no assets are to be accounted for, and the creditors are few. the registers have, in some instances, accounted to the assignees for a surplus or balance of the deposit of fifty dollars. Of course this amount may be exceeded by the charges, in cases in which complicated questions concerning proofs or assets arise, or in which the solicitor of the bankrupt is extraordinarily inattentive. I have no present recollection of any peculiar eompléxity of any case in the county to which the present certificate refers.

The foregoing remarks may serve to introduce the observation, that the services performed by this register under the fifth and other sections of the act of congress have not been rendered under any special order of the court, within the meaning of the provision of the fourty-seventh section of the act. They have, on the contrary, been ordinary" services, under its general requirements. I have, however, been disposed to admit a single qualification of this view in the ease of the first day’s attendance of a petitioning debtor before the register, because the register’s attendance on this day is not appointed by himself, but is ordered (and, as I would have said specially ordered), by the court. But other district judges have expressed a contrary opinion, after considering the question more maturely. The point here involved is only the difference between five and three dollars, for attendance on the first day. This point, will not require decision, because the register has, I believe, never attended in this county, under such an order, in less than two cases, on the first day. As he will thus be allowed six dollars or more for this day, that is to say, three dollars in each of two or more cases, there can be no sufficient reason for the special allowance, though such reason might have existed if there had been a single case only. For every day’s attendance at the seat of justice of this count}', in the ease of this bankrupt three dollars will therefore be the proper charge, if allowable under the conditions prescribed by general order 6. . This does not include the days consumed in travelling to and from the county seat. They will be next considered. The travelling expenses of the register, whether chargeable under the fifth section of the act- or independently of it, appear to have been properly apportioned among the several cases, and should be allowed. He also, as I understand, proposes to charge as to every journey, for two days consumed, one in going and the other in returning, as for days of service rendered in the proceedings. This charge, in addition to the travelling expenses will, if made, be subject to exception. I cannot therefore decide ex parte in favor of it. But my present inclination is to allow it, if it does not exceed six dollars (that is to say three dollars per day), provided the charge of six dollars is, like that of the travelling expenses, averaged among the cases for which the journey was made. As a charge of the full amount in every one of the cases, it cannot be allowed. In this ease, its proportion will, if allowed, make a small addition to the item of $17.45.

I have already intimated, under the head of the third preliminary question, that some allowance to a register beyond the payment of his expenses, and for his daily attendances, and of the other items specified in the forty-seventh section of the act, and in the thirtieth general order, may possibly be proper, even in an unopposed case in which the as-signee receives no assets. Recurring to this intimation, I will make some explanatory suggestions. In unopposed cases, it is not the course of practice to appoint special commissioners for the performance of occasional incidental or collateral functions, not within the specified official duty of the register. He, nevertheless, performs many such unofficial functions, for which the appointment of a special commissioner would be inconvenient and expensive. This extra work is of such a kind as no person who is not a lawyer could perform. It includes reports, explanatory statements, answers to questions, &c. For such work, a master in chancery, auditor, or commissioner ordinarily receives compensation, beyond his per diem allowances and specific charges. Moreover the register, in at least three stages of an unopposed case in which the petitioner swears and the assignee certifies that there are no assets, must study the case in its general and particular relations. The first stage is that which precedes the issuing of the warrant. The second stage is that of the first public meeting of creditors, and any adjourned sittings of it. In a later stage, there must, for several reasons, be at least one other public meeting of creditors. One reason is that all proofs of debt made before the assignee are necessarily more or less provisional, and that under the aet of congress remissness cannot .be imputable to a creditor who does not prove his debt at the first meeting, if it-is proved at a second meeting. A more important reason, which is twofold, is that, at a private session of the register, the non-existence or hopelessness of available assets cannot be safely determined, nor can the irresponsibility of the bankrupt, and of the assignee, for the want of assets be definitively ascertained. For the same reasons, and others, the examination of such a bankrupt cannot, with any propriety, be closed otherwise than at a public meeting. In this judicial district, such arrangements under these heads are carried into effect, through the register, that the general and particular notices of the meeting for these purposes really cost nothing. Upon the bankrupt’s application for a discharge they are included in the notices for the final hearing in court. Under the useful provision of general order 25, the notices for the transaction, at the same public meeting, of any business under sections 27 and 28 of the act of congress, are likewise thus included. The great importance of this public meeting before the register, prior to the day appointed for the final hearing in court, has appeared in the fact that notwithstanding an interval of many days between them, registers who have diligently prosecuted the business, have, in some cases, been unable to complete it until after the day in court. Tn such eases, through recorded continuances in court, from week to week, the notices remain in force until the papers have been filed by the register in the clerk’s office, when all inconveniences are obviated by an order enlarging the time for objections to the discharge for ten days after the next stated weekly session. The amounts of labor of the register in the primary, and in the ultimate stage, are often inversely proportional to each other; and in some cases, the last examinations have developed important disclosures. ²

In ordinary unopposed eases of this kind, an additional charge of at least five dollars in every one of the three stages, and, in many cases, of ten dollars in one or more of them, would be very moderate. The question whether it is allowable may, as I have said, be raised by an exception. There would be a dangerous tendency, perhaps, of such charges, if allow•ed, towards undue expansion. ³ Justice may, nevertheless, require their measured allowance.

The most embarrassing consideration which the present certificate suggests, appears to be that, in future, this register will not be able, as heretofore, to lighten the burden of his travelling expenses' by dividing it among many cases. It would, of course, be impossible to sanction the postponement of a non-resident register’s visits to such a remote county until he may, through the accumulation of business, become able so to distribute the charges. From the burden of examinations under the twenty-sixth section ófi the act, and of other such business, the court might, at his request, relieve him by the occasional special appointment of a resident local commissioner. But in all cases the presence of the register in every one of the three stages which have been mentioned, seems to be indispensable. In many cases he must attend oftener, and in some cases much oftener. If he retains the appointment of this county he cannot expect full reimbursement of his travelling and incidental expenses in all cases. In a ease in which there is no expectation of assets, I think that he should not be paid for more than three journeys, though he may make more than three, and that he should not receive more money than twelve dollars for any one journey, though he may expend more money.⁴ I trust that he may be able, without injustice to himself, to acquiesce in these restrictions. He is a most useful officer of the court, and highly respected and esteemed. The appointment of a register who resides in this county would not benefit the inhabitants of it otherwise than by reducing the charges and increasing the facility and frequency of recourse to the officer.

2 On the 26th December. 1807. the following memoranda were furnished in the form of a circular letter, by the court for the assistance of the registers: “The papers of every bankrupt should, in order to entitle him to his discharge, contain a complete list of his debts and inventory of his estate, a satisfactory exposition of the cause of his insolvency, an account of his losses, with a precise and full statement and explanation of every transfer, disposition, payment, or appropriation, &c., not made in the regular course of his ordinary business for full and valuable consideration, or in the necessary expense's of living of himself and his family, and all other information which may be material as to his business debts or estate. His examination should not be passed without such full disclosure, affirmative and negative, as may be required under each of these heads. As to his debts and his estate, no repetition of the contents of the petition, or of any former additions or corrections of it by way of amendment, will be required. The last examination, should, however, state whether any omissions in these respects hat e occurred. The principal purpose of this examination is to obtain disclosure under the several other heads above mentioned.’’

3 Where sordid motives would induce such an expansion of the charges, they might no less induce an improper multiplication of meetings if the charges were not allowable. Such motives cannot be imputable to any of the present registers. I do not consider precedents under English tariffs of charges applicable.

4 So high a charge would probably not be allowed under this head, in the district of any other register.