XXXIV. COSTS IN CONTESTED ADJUDICATIONS. In cases of involuntary bankruptcy, when the debtor resists an adjudication, and the court, after hearing, adjudges the debtor a bankrupt, the petitioning creditor shall recover, and be paid out of the estate, the same costs that are allowed to a party recovering in a suit in equity; and if the petition is dismissed, the debtor shall recover like costs against the petitioner. Notes of Decisions Amount and items of cost.-See note Resistance of adjudication by debtor. 31 under 9586, ante. -See notes 30 and 37 under § 9586, ante. XXXV. COMPENSATION OF CLERKS, REFEREES, AND TRUSTEES. 1. The fees allowed by the act to clerks shall be in full compensation for all services performed by them in regard to filing petitions or other papers required by the act to be filed with them, or in certifying or delivering papers or copies of records to referees or other officers, or in receiving or paying out money; but shall not include copies furnished to other persons, or expenses necessarily incurred in publishing or mailing notices or other papers. 2. The compensation of referees, prescribed by the act, shall be in full compensation for all services performed by them under the act, or under these general orders; but shall not include expenses necessarily incurred by them in publishing or mailing notices, in travelling, or in perpetuating testimony, or other expenses necessarily incurred in the performance of their duties under the act and allowed by special order of the judge. 3. The compensation allowed to trustees by the act shall be in full compensation for the services performed by them; but shall not include expenses necessarily incurred in the performance of their duties and allowed upon the settlement of their accounts. 4. In any case in which the fees of the clerk, referee and trustee are not required by the act to be paid by a debtor before filing his petition to be adjudged a bankrupt, the judge, at any time during the pendency of the proceedings in bankruptcy, may order those fees to be paid out of the estate; or may, after notice to the bankrupt, and satisfactory proof that he then has or can obtain the money with which to pay those fees, order him to pay them within a time specified, and, if he fails to do so, may order his petition to be dismissed. He may also, pending such proceedings, both in voluntary and involuntary cases, order the commissions of referees and trustees to be paid immediately after such commissions accrue and are earned. [Last sentence promulgated December 11, 1905.] Notes of Decisions Fees of clerks for copies of petition and notice of application for discharge. -See note 1 under § 9636, post. Duties of clerks-Deposit of filing fogs. See note 1 under § 9635, post. Per diem for services of referee when away from home.-See note under § 9624, post. XXXVI. 1. Appeals from a court of bankruptcy to a circuit court of appeals, or to the supreme court of a territory, shall be allowed by a judge of the court appealed from or of the court appealed to, and shall be regu was closed, held entitled to fee not exceeding 2 per cent. on the first $1,000 and one half of 1 per cent. on the balance. In re Griesheimer (D. C. 1913) 209 Fed. 134. Under this section and § 9586, subd. 5, ante, where a bankrupt's receiver turned over to the trustee $1,739.92, together with the bankrupt's stock, fixtures, and uncollected book accounts, the receiver was only entitled at that time to an allowance of $148.56 for his services, and was not entitled to an allowance on the property turned over in kind until the trustee had realized thereon. In re Falkenberg (D. C. 1913) 206 Fed. 835. The requirement of notice to creditors of the receiver's application for compensation is imperative, and no allowance of fees can rightfully be made until after such notice. In re Falkenberg (D. C. 1913) 206 Fed. 835, 30 Am. Bankr. Rep. 718. A notice of hearing of an application for an allowance of fees to a bankrupt's receiver and his counsel, specifying the amount asked in dollars and cents, was not objectionable for failure to ask for an additional allowance. In re Cash-Papworth, Grow-Sir (1913) 210 Fed. 24, 126 C. C. A. 604. Creditors desiring to object should promptly file exceptions with the referee, and may bring the matter before the court by petition for review of the decision of the referee on the questions thus raised. Reliance Storage & W. Co. (D. C. 1900) 100 Fed. 619, 4 Am. Bankr. Rep. 49. In re If the receivership was obtained by fraud or imposition practiced upon the court, and was in no way beneficial to the estate, the court will be justified in refusing to make any allowance for the services of the receiver. In re Desrochers (D. C. 1911) 183 Fed. 991, 25 Am. Bankr. Rep. 703. Where the court of bankruptcy, upon the filing of a petition in involuntary bankruptcy, orders the marshal to take possession of the property of the bankrupt and hold the same until a trustee is appointed, the marshal is entitled to receive, out of the estate, compensation for his services under such order, in addition to the costs and expenses incurred. In re Adams Sartorial Art Co. (D. C. 1900) 101 Fed. 215, 4 Am. Bankr. Rep. 107. A marshal, placed in charge of the property of the bankrupt, may hire a competent watchman or store-keeper, if he considers it necessary for the preservation of the property, and the reasonable pay of such a keeper will be allowed out of the estate. In re Scott (D. C. 1900) 99 Fed. 404, 3 Am. Bankr. Rep. 625; In re Lowenstein (D. C. 1869) 3 N. B. R. 268, Fed. Cas. No. 8,572; In re Comstock (D. C. 1874) 9 N. B. R. 88, Fed. Cas. No. 3,075; In re Pace (D. C. 1878) Fed. Cas. No. 10,640; In re Johnston (D. C. 1875) 12 N. B. R. 345, Fed. Cas. No. 7,421. The expenses incurred by a receiver, in counsel and witness fees, in resisting a motion for his removal, will be allowed as a charge upon the fund or estate, where it appears that, although there were apparent grounds for the motion, yet the receiver had acted in good faith and with integrity of purpose. Cowdrey v. Railroad Co. (C. C. 1870) Fed. Cas. No. 3,293. § 9633. (Act July 1, 1898, c. 541, § 49.) Accounts and papers of trustees. Accounts and Papers of Trustees.-a The accounts and papers of trustees shall be open to the inspection of officers and all parties in interest. (30 Stat. 558.) § 9634. (Act July 1, 1898, c. 541, § 50.) Bonds of referees and trus tees. Bonds of Referees and Trustees.-a Referees, before assuming the duties of their offices, and within such time as the district courts of the United States having jurisdiction shall prescribe, shall respectively qualify by entering into bond to the United States in such sum as shall be fixed by such courts, not to exceed five thousand dollars, with such sureties as shall be approved by such courts, conditioned for the faithful performance of their official duties. b Trustees, before entering upon the performance of their official duties, and within ten days after their appointment, or within such further time, not to exceed five days, as the court may permit, shall respectively qualify by entering into bond to the United States, with such sureties as shall be approved by the courts, conditioned for the faithful performance of their official duties. c The creditors of a bankrupt estate, at their first meeting after the adjudication, or after a vacancy has occurred in the office of trustee, or after an estate has been reopened, or after a composition has been set aside or a discharge revoked, if there is a vacancy in the office of trustee, shall fix the amount of the bond of the trustee; they may at any time increase the amount of the bond. If the creditors do not fix the amount of the bond of the trustee as herein provided the court shall do so. d The court shall require evidence as to the actual value of the property of sureties. e There shall be at least two sureties upon each bond. f The actual value of the property of the sureties, over and above their liabilities and exemptions, on each bond shall equal at least the amount of such bond. g Corporations organized for the purpose of becoming sureties upon bonds, or authorized by law to do so, may be accepted as sureties upon the bonds of referees and trustees whenever the courts are satisfied that the rights of all parties in interest will be thereby amply protected. h Bonds of referees, trustees, and designated depositories shall be filed of record in the office of the clerk of the court and may be sued upon in the name of the United States for the use of any person injured by a breach of their conditions. i Trustees shall not be liable, personally or on their bonds, to the United States, for any penalties or forfeitures incurred by the bankrupts under this Act, of whose estates they are respectively trustees. Joint trustees may give joint or several bonds. k If any referee or trustee shall fail to give bond, as herein provided and within the time limited, he shall be deemed to have declined his appointment, and such failure shall create a vacancy in his office. 1 Suits upon referees' bonds shall not be brought subsequent to two years after the alleged breach of the bond. m Suits upon trustees' bonds shall not be brought subsequent to two years after the estate has been closed. (30 Stat. 558.) Notes of Decisions Bonds of trustees in bankruptcy.A trustee in bankruptcy must give a separate and distinct bond in each case in which he may be appointed trustee; a general bond conditioned for the performance of his duties in all cases in which he may be appointed is not sufficient. In re McFaden (D. C. 1869) 3 N. B. R. 104, Fed. Cas. No. 8,785. The mere fact that the sureties are not residents of the district is not a sufficient reason for rejecting a bond which is in all other respects unobjectionable. Ex parte Milwaukee R. Co. (1866) 5 Wall. 188, 18 L. Ed. 676. And where the principal becomes liable for the full amount, and the bond is executed by several sureties, who become liable in smaller sums aggregating the whole amount of the bond, this is a good and sufficient bond. Bradley Fertilizer Co. v. Pace (1897) 80 Fed. 862, 26 C. C. A. 198. But the wife of the trustee should not be accepted as a surety on his bond, if the law of the particular state is such that a married woman cannot bind herself or her separate property as a surety on a bond. In re McFaden (D. C. 1869) 3 N. B. R. 104, Fed. Cas. No. 8,785. The condition of such an obligation is construed with some strictness, and it is held that if a trustee in bankruptcy makes payments of money in his hands without an order of the court, and in violation of the rules, a liability Generally speaking, an accounting by The bond may be sued on in the name of the United States for the use of any person injured by the breach of its condition, and it is not necessary for the party so injured to obtain leave of court to sue. Alexander V. Union Surety & Guaranty Co. (1903) 89 App. Div. 3, 85 N. Y. Supp. 282. Where a trustee in bankruptcy has been removed from his office for mismanagement and default, and a new trustee appointed, the latter may be considered as a "per son injured" by the breach of condition of the bond of the former trustee and may sue thereon, and a district court of the United States has jurisdiction of the action. U. S. v. Union Surety & Guaranty Co. (D. C. 1902) 118 Fed. 482, 9 Am. Bankr. Rep. 114. But see CONTRA, Alexander v. Union Surety & Guaranty Co. (1903) 89 App. Div. 3, 85 N. Y. Supp. 282. But a state. court of general original jurisdiction will also have jurisdiction of an action on the bond of a trustee in bankruptcy. Alexander v. Union Surety & Guaranty Co. (1903) 89 App. Div. 3, 85 N. Y. Supp. 282. § 9635. (Act July 1, 1898, c. 541, § 51.) Duties of clerks. 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. (30 Stat. 558, 559.) Notes of Decisions 1. Deposit of filing fees.-The deposit with the clerk of the fees prescribed by this section on the part of a voluntary bankrupt not excused on the ground of poverty is a condition precedent to the filing of the petition; but if the petition is placed on file and an adjudication made without payment of the fees, the objection may be raised on the bankrupt's application for discharge, and action on such application will be stayed until the filing fees are paid. In re Barden (D. C. 1900) 101 Fed. 553, 4 Am. Bankr. Rep. 31. When the petition of a proposed voluntary bankrupt is accompanied by an affidavit stating that he has not and cannot obtain the money with which to pay the filing fees, the clerk will file the petition and docket the case without exacting the deposit of such fees. In re Fees Payable by Voluntary Bankrupts (D. C. 1899) 95 Fed. 120. An affidavit by a voluntary bankrupt that he is without, and cannot obtain, the money with which to pay the filing fees is prima facie evidence of the facts stated. In re Levy (D. C. 1900) 101 Fed. 247. But it is not conclusive, and if circumstances appear casting doubts on the truth of the affidavit, the case may be sent to the referee to investigate and report the' facts. In re Collier (D. C. 1899) 93 Fed. 191, 1 Am. Bankr. Rep. 182. And the petitioner must then support his allegation of poverty by convincing evidence. In re Williams, 2 Nat. Bankr. News, 206. As to the fact of his actual inability to procure the money with which to pay the fees, he is not required to solicit gifts or loans from his friends for that purpose, and he is not guilty of a false oath in making affidavit that he "cannot obtain" the requisite sum, although it appears that friends would have advanced him the amount if requested. Sellers v. Bell (1899) 94 Fed. 801, 36 C. C. A. 502, 2 Am. Bankr. Rep. 529; In re Mason (D. C. 1910) 181 Fed. 899, 25 Am. Bankr. Rep. 73. But compare In re Hines (D. C. 1902) 117 Fed. 790, 9 Am. Bankr. Rep. 27. But he cannot hold out property which is exempt under the laws of the state and still make the poverty affidavit. The provision of the bankruptcy act giving bankrupts the benefit of exemptions allowed by state law was not intended to exonerate them from payment of the filing fees on their voluntary petitions. Such a bankrupt is excused from payment of the fees only in case of absolute inability to pay them; and such inability does not exist so long as he has money or property sufficient for the purpose, although it is exempt. In re Mason (D. C. 1910) 181 Fed. 899, 25 Am. Bankr. Rep. 73; In re Hines (D. C. 1902) 117 Fed. 790, 9 Am. Bankr. Rep. 27; In re Bean (D. C. 1900) 100 Fed. 262, 4 Am. Bankr. Rep. 53; In re Collier (D. C. 1899) 93 Fed. 191, 1 Am. Bankr. Rep. 182. CONTRA, see Sellers v. Bell (1899) 94 Fed. 801, 36 C. C. A. 502, 2 Am. Bankr. Rep. 529. A voluntary bankrupt whose petition is accompanied by a poverty affidavit cannot subsequently be required to pay the filing fees out of money earned by him after the filing of the petition. Sellers v. Bell (1899) 94 Fed. 801, 36 C. C. A. 502, 2 Am. Bankr. Rep. 529. Under General Order No. 35 (§ 9614, ante), an order for the payment out of the estate of the filing fees, or an order to the bankrupt to pay them, can be made only by the judge, not by the referee. In re Plimpton (D. C. 1900) 103 Fed. 775, 4 Am. Bankr. Rep. 614. General Order No. 10 (§ 9614, ante), providing that clerks and other officers, before incurring expenses of certain kinds, may require the bankrupt or other person in whose behalf the duty is to be performed to furnish indemnity for such expenses, and that money advanced by the bankrupt or other person for this purpose shall be repaid him out of the estate, does not apply to the filing fees prescribed by this section, and such fees, paid by a voluntary bankrupt on the filing of his petition, are not to be repaid to him. In re Matthews (D. C. 1899) 97 Fed. 772, 3 Am. Bankr. Rep. 265. 2. In partnership cases.-Upon the voluntary application of a partnership for the benefit of the act, only one petition need be filed, and all that is done thereupon constitutes one proceeding, although it involves granting a discharge to each of the partners, and only one deposit of the filing fee is required; it cannot be demanded of the partners, as a prerequisite to discharging them, that they should each separately deposit a like fee. In re Langslow (D. C. 1899) 98 Fed. 869, 1 Am. Bankr. Rep. 258; In re Gay (D. C. 1899) 98 Fed. 870, 3 Am. Bankr. Rep. 529. But compare In re Farley (D. C. 1902) 115 Fed. 359, 8 Am. Bankr. Rep. 266. But where a partnership files a voluntary petition for the adjudication in bankruptcy of the firm as such, and creditors. 3. By petitioning 4. Clerk's docket.-The clerk's docket, As a court of bankruptcy is always open for the transaction of business and has no regular terms, it is not necessary for the clerk to make an entry showing the opening and closing of the court on days when he enters proceedings in bankruptcy cases. Keatley v. U. S. (1909) 45 Ct. Cl. 36. § 9636. (Act July 1, 1898, c. 541, § 52.) Compensation of clerks and marshals. 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. (30 Stat. 559.) Notes of Decisions 1. Fees of clerks.-Where the local rule of court provides that the notice of final meeting shall be issued by the clerk in accordance with Official Form No. 57 ($ 9614, ante), which includes the petition for the bankrupt's discharge, the order of notice, jurat, etc., it is held that the clerk is not entitled to charge a fee of 25 cents for each notice sent to creditors, on petition for discharge, but is only entitled to the actual items of expense thereon for postage, stationery, and clerical assist- Sections 1383, 1405, ante, held not |