The Charleston daily news. [volume] (Charleston, S.C.) 1865-1873, 1869-03-11
BLINKRUPTCT.


BANKRUPTCY.
IN THE DISTRICT COURT OF THE UNITED STATES
FOB The WESTERN DISTRICT OF sooih oAi'
oLINA.
In the matter of Abncr Hambrieht, Bankrups..lln IN
pantrnmcy.-At orkvlle. in said District, on the
= day of November, A. D. 1868.
DISTRICT OF SOUTH CAROLINA, S. S.
Tn N. Honorable George S. Bryan Judge Of the
District Court aforesaid:
SIR-I the undersigned. having peen uesl9nateo
bv the court as the Registrar in Bankruptcy before
whom the pi ocee dings in the above matter OF the
bankruptcy of Abner Hambrieh aie to be had, do
hereby certify that in the due course OF such pro-
ceedtngs, the following question, pertinent to the
same arose. and was stated and agreed to by j. Boil
ion Smith ESQ.,, attorney for a. F. Smith, executor
of j. B. MANNING, deceased, and I. W. Clawson, at
torney for J. s. r thomson and l. :: Jeherys. as
Hgnee of the estate OF Abner Hambr:ght, the aSoVe
named bankrupt.
The estate of the bankrupt, as embraced in his
schedules consisted Of one tract OF land CONTAINING
ITO acres an undivided interest i'll two other snal
tracts, and small peiso atty The whoie OF tne
~ eset estate vas set off to the bankrupt by the as
sienees aid tie OILY property sold by them Wcs tne
land referrt to above for which they realized the
sum of $50 l8 a. F. Smith. executor OF D. D. Man
ming, deceased, disor ri the oanErup,, nolas "a
1856, which created lien on the bankrupts estate
This debt he has proved secured debt against the
bapkrupt's estate, acccr ing to form 80 th'ces
Manuel, p-). The property OF the bankrup: was
sojd by the assiguees, free from incumbrapce, and
the proceeds of sale insufficient to pay the lees
costs and expenses Of bankruptcy, and to pay on the
Judgment OF A. F. Smith. exc :utor, referred 10
above the said A. F. Smith, executor by his attorney
j Bolton smith, tsq has since lie sale served q
notice on the assignee, which is hereunto attached
that he claims the proceeds of the sac OF the lands
as applicable to the afore aid Judgment.
QUESTION.
r. Bolton Smith, attorney for A. F. Smith, e1ecu-
tor insists that the judgment is entitled to be paid
n,t of the proceeds of sale to The exclusion OF the
fees costs and expenses, whereas 1t IS suom1tten
ny T. W. Clawson, attorney for asslgness, that the
N os, costs and expenses in bankruptcy snoud nrst
be paid and that the balance, If any, remaining III
their hands, should be applied to the judgment and
fbe said pa ties requested that the same should be
certified to your Honor for our option thereon.
OPINION OF THE REo1srRAR.
The registrar agrees with the attorney for the as
adonee that the proceeds of sale of the property
should be Hrst applied to the payment OF the ices,
snce any, remaining in their hands be applied to
Under section % Of the Bankrupt sct (Rices Man.
ual p. 6S it is provided that in tls order OF d.
ing claims shall be entitled priority, &c First
The fees and expenses OF SUITS and the several
proceedings in bankruptcy.
In the 47th section (Rice's Manual, p. ST. after
providing schedule of tees for the different officers,
the act says: Such fees shall have priority OF pay
meut over all oh>r claims, out OF the estate OF the
and If there are not sufi-
Gent assets for the payment of the fees the person
upon whose penon the warrant issues shall pay the
same
And in the next paragraph the act further says:
ssBe.ore any dividends is declared. the assl2n.es
sha nav out of the estate of tho messenger the fol-
lowing fees" Rices Manual, p. VI.
From the clauses fthe act above referred to, two
propositiors seem necessarily to follow:
First. hat the fees. sis and expenses nave
priority Of payment all other claims against the
bankrupt's estate.
is'seconoly. That the bankrupt is liable to pay no
fees or expenses of his bankruptcy beyond his depo
sit fee provided he has 40 estate which comes to the
hands Of the assignee sufficient for the payment of
the same" ...,, -,
6nd an opinion in the Bankrupt Court Report Lp 49,
in these words: 1.-The bankrupt may apply to the
siepee 10 pay from assets in his hands any sums he
NAV have advanced, or procured to be advanced to
the hal as his fees and the assiGnsc may charge
the sam among his disbursements to be paid out OF
the assete."
THE iustice and equity Of this ruling Is obvious,
from the fact that under Rule % OF General Orders
lRices Manual p. 1l7) 1t is provided That the ices
secured IN all cases. before they shall be compelled
to perform the duties required OF them by the par
ties requiring such services.
Thus itwould appear that II the deposit lea :s nos
snfcIent to nav all the costs aud any Of the officers
refuse to perform t-e duties required OF them until
their fees are paid or secured. and the bankrupt
should pay or secure the fees he is enutled to bave
the same refunded by his assignee. out OF 1s estate
II a creditor, holding lien against the bankrupts
estate ,s entitled to the whole Of the proceeds OF the
sale of the bansrupts estae bound by his lien, then
he would BE- also entitled to have the personal estate
of the bankrupt which is liable to be set en- to him.
sold for the Same purpose. But Congress has under
TAKEN as think they had the rRl to do, to exempt
for the benefit OF the bankrupt .household and kitch
an furniture" and "oIher articles and necessaries
to the value of $50. creditor holding lien has
the right to have the proceeds OF the sale OF real es
tate appli ID to the payment OF his lien, TO the ex
cusion of the fees and expenses Of bankruptcy then
he would have equal right to have the whole of
the personal estate sold for the same purpose there
by entirely deprivlrg the bankrupt from any of the
property exem pied under the humane provisions cf
the Bankrupt act, except the mere pitance allowed
under the exemption law Of the State.
MCGOWAN. ESQ, attorney for the petitioner, your
Honor held that the sheriff had no right to levy and
sell the personal estate OF the bankrupt which might
be set OF to him under the Bankrupt act, and en-
join ed him, as thind you had the rsht to do from
selling my property which would certify Has ex-
empt under he Bankrupt act. And III that case, my
is the levy was made before the filing Uf
the petition in bankruptcy.
the bankrupt petition. But regard that as matter
of no consequences; for no creditor whose debt Is
proyable in bankruptcy hiss any right to interned-
ale with the bankrupt's estate, after The fug of tue
patit1ou. without the leave of the District Court.
Upon the filing of the petition, all proceedings
against the bankrupt in st to Courts must stop satu
os.o The District Court having exclusive original ju-
rjsdiction over the bankrupt his estate, and his
creditors. r..,.,
Upon this point refer your Honor TO the le1rned
decision of Judge Erskine Of the Northera District
of Georgia, le orted in the "L1w Tines Bankrupt
cy Report" (parag.aph IT and 1871 In Re- Elijah Z.
VIM. With that opinion fully concur.
am the etore of the opinion that the assignees
should first pay the costs and expenses OF bankrupt
cy and the .lance to the credi or holding lien in
this case, and so respectfully recommend.
W. J. CLAwsoN Registrar.
IN THE MATTER OF ABNER HANBRIaHT, BANKRUPT.
In this case the schedules of tie bankrupt showed
that he had interest in certlin parcels OF real
estate and IN email personally. The personally was
set of to the bankrupt under th- provisions of the
fourteenth Section Of the act. The real estate was
bound bv the lien ofa judgment entered in the State
Court for some seventy6ve ts75) dollars which had
also been duly proven in bankruptcy. This real
estate under an order of this court had been sold by
the assignee ire from all membranes, and
brought ut the tale eighty tl8-l00i dollars. There
are no other funds in the hands of the assignee.
The creditor holding the JUDGMENT claims that
the proceeds of the sale Of the roay, bound by his
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