TITLE XII.

FEES, COSTS AND ATTORNEY-GENERAL'S

STATISTICS.

ACT OF 1898, CH. 5, § 40. Compensation of Referees. (a) Referees shall receive as full compensation for their services, payable after they are rendered, a fee of ten dollars deposited with the clerk at the time the petition is filed in each case, except when a fee is not required from a voluntary bankrupt, and from estates which have been administered before them one per centum commissions on sums to be paid as dividends and commissions, or one-half of one per centum on the amount to be paid to creditors upon the confirmation of a composition.

(b) Whenever a case is transferred from one referee to another the judge shall determine the proportion in which the fee and commissions therefor shall be divided between the referees.

(c) In the event of the reference of a case being revoked before it is concluded, and when the case is specially referred, the judge shall determine what part of the fee and commissions shall be paid to the referee.

§ 48. Compensation of Trustees. (a) Trustees shall receive, as full compensation for their services, payable after they are rendered, a fee of five dollars deposited with the clerk at the time the petition. is filed in each case, except when a fee is not required from a voluntary bankrupt, and from estates which they have administered, such commissions on sums to be paid as dividends and commissions as may be allowed by the courts, not to exceed three per centum on the first five thousand dollars or less, two per centum on the second five thousand dollars or part thereof, and one per centum on such sums in excess of ten thousand dollars.

(b) In the event of an estate being administered by three trustees instead of one trustee or by successive trustees, the court shall apportion the fees and commissions between them according to the services actually rendered, so that there shall not be paid to trustees for the administering of any estate a greater amount than one trustee would be entitled to.

(c) The court may, in its discretion, withhold all compensation from any trustee who has been removed for cause.

§ 51. Duties of Clerks.— (a) Clerks shall respectively (1) account for, as for other fees received by them, the clerk's fee paid in each case and such other fees as may be received for certified copies of records which may be prepared for persons other than officers; (2) collect the fees of the clerk, referee, and trustee in each case instituted before filing the petition, except the petition of a proposed voluntary bankrupt which is accompanied by an affidavit stating that the petitioner is without, and can not obtain, the money with which to pay such fees; (3) deliver to the referees upon application all papers which may be referred to them, or, if the offices of such referees are not in the same cities or towns as the offices of such clerks, transmit such papers by mail, and in like manner return papers which were received from such referees after they have been used; (4) and within ten days after each case has been closed pay to the referee, if the case was referred, the fee collected for him, and to the trustee the fee collected for him at the time of filing the petition.

§ 52. Compensation of Clerks and Marshals. (a) Clerks shall respectively receive as full compensation for their service to each estate, a filing fee of ten dollars, except when a fee is not required from a voluntary bankrupt.

(b) Marshals shall respectively receive from the estate where an adjudication in bankruptcy is made, except as herein otherwise provided, for the performance of their services in proceedings in bankruptcy, the same fees, and account for them in the same way, as they are entitled to receive for the performance of the same or similar services in other cases in accordance with laws now in force, or such as may be hereafter enacted, fixing the compensation of marshals.

§ 62. Expenses of Administering Estates. (a) The actual and necessary expenses incurred by officers in the administration of estates shall, except where other provisions are made for their payment, be reported in detail, under oath, and examined and approved or disapproved by the court. If approved they shall be paid or allowed out of the estates in which they were incurred.

In 1868 a suit was commenced by one T. against C. and others for the Joint benefit of the bankrupt and one W., who had agreed to share in the results of the litigation and bear its expenses in equal proportions. A judgment was recovered in favor of T., from which an appeal was taken about the time the proceedings in bankruptcy were commenced.

The assignee in bankruptcy was substituted in place of the bankrupt, who was a defendant in the suit, and contributed to the payment of counsel fees and expenses until he gave notice that he would pay no more expenses. Afterward, under an order of the court, the assignee was permitted to withdraw and assign all his interest in the litigation to W. The judgment was reversed by the general term and a new trial ordered, and the court of appeals affirmed the judgment of the general term. The counsel having, after the termination of the suit, presented a claim against the assignee for their services before as well as after his substitution; Held, that they were only entitled to payment for their services and disbursements after the assignee stipulated to be substituted, and that W., by taking the assignment of the assignee's interest, assumed all its burdens, and has no equity to demand reimbursement from the assignee. In re Litchfield, 18 B. R. 347.

While the assignee is bound to pay a reasonable compensation for the use of premises occupied by him in winding up the estate, he does not, by accepting the trust, become the assignee of leases belonging to the bankrupt, or bound to pay the rent reserved. In re Ives et al., 18 B. R. 28.

The same rule applies where the marshal kept property seized by him on premises which had been leased by the bankrupt. The estate is liable to the landlord before the appointment of the assignee, not on the ground of contract, but upon equitable considerations for a benefit conferred upon the estate, and the allowance is to be measured by the benefit thus conferred. Ordinarily it is the value of the premises for storage of the goods, unless circumstances are such as to make a greater expense proper. The landlord is entitled to nothing by virtue of the covenants of the lease unless the assignee elected to take the lease, and thereby became in fact the assignee thereof. In re Wheeler & Lang, 18 B. R. 385.

An assignee is not bound to take a leasehold estate belonging to the bankrupt unless it would be beneficial to the creditors for him to do so. White v. Griffing, 18 B. R. 399.

Where the assignee has accepted the lease, and has sold his interest, as assignee in the leased premises to the lessor, the lease is thereby extinguished, and the guarantor of the lease released from all liability accruing after the commencement of the bankruptcy proceedings. Ibid.

ACTS OF 1867 and 1875, § 5124. In each case there shall be allowed and paid, in addition (a) to the fees of the clerk of the court as now established by law, or as may be established by general order for fees in bankruptcy, the following fees, which shall be applied to paying for the services of the registers:

First. For issuing every warrant, (b) two dollars.

Second. For each day in which a meeting (c) is held, three dollars. Third. For each order for a dividend, three dollars.

Fourth. For every order substituting an arrangement by trust deed for bankruptcy, two dollars.

Fifth. For every bond with sureties, two dollars.

Sixth. For every application for any meeting in any matter under this Title,1 one dollar.

Seventh. For every day's service while actually employed under a special order (d) of the court, a sum not exceeding five dollars, to be allowed by the court.

Eighth. For taking depositions, the fees now allowed by law. Ninth. For every discharge when there is no opposition, two dollars.

Such fees shall have priority of payment over all other claims out of the estate; and, before a warrant issues, the petitioner shall deposit with the clerk of the court fifty dollars, (e) as security for the payment thereof; and if there are not sufficient assets for the payment of the fees, the person upon whose petition the warrant is issued shall pay the same, and the court may issue an execution against him to compel the payment to the register.

Statutes revised - March 2, 1867, ch. 176, § 47, 14 Stat. 540; July 27, 1868, ch. 258, § 2 15 Stat. 228. Prior Statutes April 4, 1800, ch. 19,

§§ 46, 47, 2 Stat. 33; Aug. 19, 1841, ch. 9, § 13, 5 Stat. 448.

(a) The fees for necessary services performed by the clerk in bankruptcy proceedings, which are not provided for by the bankruptcy act or the rules, but are provided for by section 828, may rightfully be taxed and allowed under the latter. In re A. Alexander, 3 B. R. (quarto) 20.

The register is not entitled to fees of clerk in addition to the fees given by the act to the register. In re John W. Dean, 1 B. R. 249; s. c. 1 L.. T. B. 9; in re A. Alexander, 3 B. R. (quarto) 20.

The order of reference is not a process, and the clerk is not entitled to a fee of $1 for issuing it. In re John W. Dean, 1 B. R. 249; s. c. 1 L. T. B. 9.

Form No. 45 is a process. Ibid.

(b)-The register is not entitled to any fee for the list of creditors that accompanies the warrant. In re J. H. Robinson, 1 B. R. 285; s. c. 2 Ben.

145; s. c. 1 L. T. B. 25. (c) Where two meetings are held in the same case on one day, the register is only entitled to $3. Ibid.

The word "meeting," wherever used in this section and elsewhere, means a meeting of creditors, such as is spoken of in sections 5033, 5092, 5093. In re Macintire, 1 B. R. 11; s. c. 1 Ben. 277. Contra, in re Sherwood, 1 B. R. 344; s. c. 6 Phila. 461.

1 So amended by act of February 18, 1875, ch. 80, 18 Stat. 320.

Contra, in

Whenever the register orders the creditors to meet, he is entitled to this fee. In re John W. Dean, 1 B. R. 249; s. c. 1 L. T. B. 9. re J. H. Robinson, 1 B. R. 285; s. c. 2 Ben. 145; s. c. 1 L. T. B. 25. The register is not entitled to this fee for making an order for the bankrupt to appear for examination. In re Macintire, 1 B. R. 11; s. c. 1 Ben. 277.

Nor making the order to show cause against the bankrupt's discharge. In re J. H. Robinson, 1 B. R. 285; s. c. 2 Ben. 145; s. c. 1 L. T. B. 25. (d) The register is entitled to $5 a day while acting under an order to examine the papers and report upon their regularity. In re John W. Dean, 1 B. R. 249; s. c. 1 L. T. B. 9; in re J. H. Robinson, 1 B. R. 285; s. c. 2 Ben. 145; s. c. 1 L. T. B. 25.

The register is entitled to $5 a day while acting under a special order of court to take charge of the bankrupt's property, and superintend sales thereof. In re Loder Brothers, 3 B. R. 517; s. c. 3 Ben. 211; s. c. 1 L. T. B. 159.

The order of reference is not a special order, and the register is not entitled to $5 a day while acting under it. In re John W. Dean, 1 B. R. 249; s. c. 1 L. T. B. 9; in re J. H. Robinson, 1 B. R. 285; s. c. 2 Ben. 145; s. c. 1 L. T. B. 25; in re Sherwood, 1 B. R. 344; s. c. 6 Phila. 461.

Where the bankrupt appears in pursuance of an order for his examination, and the examination is postponed without doing anything, the reg ister is not entitled to $5 as for a day's service. In re I. Clark, 1 B. R. 188; s. c. 2 Ben. 72.

(e) The whole $50 must be immediately handed over to the register to whom the case is referred. Anon., 1 B. R. 24.

When a petition is dismissed for want of jurisdiction, the money deposited as security for the fees of the clerk and register must be returned to the petitioner. In re Magie, 1 B. R. 522; s. c. 2 Ben. 369.

The balance that remains after deducting the fees of the register is to be paid to the assignee. In re Sherwood, 1 B. R. 344; s. c. 6 Phila. 461; in re Appold, 1 B. R. 621; s. c. 6 Phila. 469; s. c. 1 L. T. B. 83; Anon., 1 B. R. 123; in re James, 2 B. R. 227; s. c. 1 L. T. B. 121.

If the assets are insufficient in an involuntary case, the court may order the bankrupt to pay the fees of the clerk and the register. In re McBride, 1 W. N. 42.

When the register applies for an order for the payment of his fees in excess of the deposit where there are no assets, it will be set down for hearing upon notice to the petitioning creditors and the bankrupt. In re McBride, 1 W. N. 16.

The following list shows the decisions that have been made in regard to fees in the most important cases. The following abbreviations have been used, to-wit: a, allowed; d, disallowed; r, reduced; B, not charged against the estate, but to be paid by the bankrupt: In re J. H. Robinson, 1 B. R. 285; s. c. 2 Ben. 145; s. c. 1 L. T. B. 25.