The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1868-07-09

The UNITED STATES DISTRICT CouRT-HoN
GEO. S. BRYAN PRESIDING. subjoined
opinion of Judge Bryan upon q question SUBJ
mitted by W. J. clawson, Esq, Registrar Of
the Fourth Congressional District, Us to the
fee Of counsel being allowed out Of the estate
Of q bankrupt in an issue of involuntary bank
ruptcy, viii be read with interest by members
of the bar throughout the stase:
Ex parte Wilson & Witherspoou, attorneys,
inre Moore 4 Moore, creditors, vs. Daniel VIII
Iiams, defendant and bankrupt.
The Court III this case concurs in the con-
cirsion and recommendation OF the Registrar,
for the reasons sta.ed by him, and other con-
siderations, which seem to have weight. -,
The analogous case in which counsel lees
are allowed in oui' State Courts IN Chancery Is
that OF creditors bill against the insolvent
estate Of G deceased person. Now, in contem-
apIation of law, so far as his property is con-
scerned, the bankrupt is dead. BE is no longer
entitled to control over it, or the distribution
Of it. It is assets in the possession of the
Court to be administered by the agency OF an
assignee for the equal benefit of all creditors,
not preferred. end protected by liens-and such
lien creditors secured in their liens, as in the
case of au estate of q deceased insolvent. In
every successful prosecution of o suit in invol-
untary bankruptcy, the result IS, that the de-
fendant declared bankrupt is deprived OF bis
property, and it becomes an estate held for the
benefit Of his creditors. The creditors petit
tion is inevitably, in all such cases, substan-
TALLY creditors bill against deceased in-
solvent Such creditor is the champion GER
tainly OF all creditors who either at the time
Of the suit or after its successful prosecution
choose to.aYail themselves OF its benefits.
They are OF liberty at any time to come in
and pIofit by it. Shall they do so without max
ing the equal contribution to the expenses OF
the suit (as in our Courts OF Chancery), which
has secured them q share in the banlruptt's
estate? And shall the creditor, who has (as in
this case) rescued the estate, and made the
fund for the benefit OF the general creditors.
be alone excluded from the common benefit?
Shall he who is thus common benefactor be
made martyr and scapegoat? Shall he
bear the whole burden and reap scarcely any,
if any-benefit? Not certainly If the Bankrupt
Act is founded in justice, and its policy to be
enforced.
There is a very cogent reason why any sim
gle creditor should feel at liberty to prosecute
without the fear of having his claim swallowed
up by the expenses Of the suit, even when sue
cessfuI. The act contemplates fraud as the
ground Of prosecution in great variety OF
forms. Instant action By one creditor IN q
precise locality, separated from other cieal-
tors, and without opportunity OF counseling
with them, is necessary for the efficient ad.
ministration Of the law, and the protection of
the whole body of creditors. To wait for time
for consultation would, in numerous IN.
stances, be to. lose the golden moment and let
the fraudulent debtor 60 free. There should
be no him to any creditor acting
promptly un> sr such circumstances. On the
contrary, he should be permitted and invited
to play the part of champion of those in COM
mon interest with him; to become the guardian
of those who, from ignorance or absence, can
not take care Of themselves. How can this
be, when the paralyzing thought is ever pre-
sent to his mind, that when he has maintained
the justice Of the act, and secured the benef-
cent end contemplated by it, he is to be pun
ished and not rewarded for his zeal, activity
and vigilance.
That when he has brought conviction to the
fraudulent debtor, and rescued property in the
act of transition, or the debtor, himself, In the
act of escape, he is to be mulcted for all his
pains and expenses, and others, and not him
self TO reap the full benefit of labors and sacrl-
fees sanctioned by the act, and essential to its
maintenance.
And let it be noted that it isnot only when
successful that the petitioning creditor can ask
his fellow-creditors to contribute anything.
He takes upon himself all the hazards and bur-
dens Of defeat. It is only when successful, and