IN BE LLOYl>.
is drawn out of a jury-box, in due course ,otthe lot,gives the defendant the legal right to have such person sworn as one of the jury. In Mansell v. The Queen, 8 E. & D. 79, it is said:
"There is no necessity or right that a person shall be tried by particular jurymen till the prisoner has been given in charge to the jury." See, also, HiU v. Yates, 12 East,228. . .
The case cited from the Alabama reports (Parsons v. State, 22 Ala. 53) turned upon the provisions of .the statute of the state, and appears to have been overruled by a subsequent case in the same state; Waller v. The 40 Ala. 325. The other points made in behalf of the defendant do not appear to be of sufficient to call for remark. The motions are denied.
In ,., LLOYD, Bankrupt
(Di3triCt (Jourt, W. D. Penn311lflania.
1. BANKRUPTCy-ATTORNEYS' FQs.
Under the amended general. orders inbankruptey no allowances out of the estate. of the bankrupt can be made to the attorneys of the petionlng creditors for having the debtor adjudged a bankrupt, except the t20 docket fee taxable :to the prevailing party in a suit in equity.
In Bankruptcy. Sur application of Dr. J.T. Christy and J. W. Curry for the allowance of etc. Geo. Shirar, Jr., and Geo. M. Reade, for report. ACHESON, D.J. This case is one in involuntary ba'nkruptcy, where the debtor resisted an adjudication. The active petitioning creditors seek to be allowed for attorneys' fees paid or incurred by. them in prosecuting the case to adjudication. The application for this allowance is made under general order No. 31, which provides as follows':
" In case of involuntary bankruptcy, where the debtor resists an adju. dication,and the court, after hearing, shall adjudge the debtor a rupt, the petitioning creditor recover,. to be paid out of same <Josts' that are allowed' by law to a party recovering in' a suit in
equity; and, ip the petition shall be dIsmissed, the debtor may recover like costs from the petitioner."
The register, to whom this application was referred, has reported in favor of the allowance of $460 attorneys' fees paid by the petitioning creditors, and $3,116.87 attorneys' fees incurred but not yet paid. The fees, as fixed by the , are not unreasonable in amount, and, under the peculiar circumstances of the case, there are equitable reasons which would incline me to favor their allowance, could I see that I had any discretionary power to make the order recommended by the register. But, whatever may have been tbeearlier practice, the general orders in. banIquptcy, as amended by the supreme court on 1875,.in my judgment, cut up by the roots all allo.'Yances of to the than attorneys of the petitioning fee of $20 taxable to the prevailing party in a suit in equity. General order No. 30 contains this clause:
"No allowance shall be made against the estate of a bankrupt for fees of attorneys, solicitors,. or cOUlllse1, except when 'n'ecessariiy employed lYg the a88ignee, when the same may be allowed as a disbursement."
General' 'order No. 30 and: ordar 31 must be read together, and the result is, as I apprehend them, that the court f&rbid'den. to make any allowance for the 'fees' of the attorcosts by law m,an eqUlty 81l1t·. , · ; Says Blumenstiel, commenting on general order No. 25, (L. & P. ill Bankruptcy, 875:)
" The' effect'of this is also to prevent any clllfrge being lllaM on behalf of attorneys who are not employed by the assignee himself; so that solicitofs.acting onbelialf of particUlar creditors, and who ljj their the estate, cannot claim or be awarded any compensalabor tion therefor out. of the estate, but must look to the parties who employed them for their pay. Thus allowances to attorneys of petitioning credi tors for having the debtor adjudged a bankrupt, are, by virtue of this rule,. abolished," except (he adds) the taxable docket fee of $20, allowable under general order No. 31.
In Hauenstien v. Lynham, 100 U. S. 4:83, the supreme court say : "It is a settled rule in this court never to allow counsel on either side to be paid out of the fund in dispute." ld.4:91. In the spirit of this rule, and to guard against abuses which
IN RIll 'XIMBALl.. '
threatened to creep into the administratIon of the bankrupt law, the Bulireme court, as I conceive, $0 amended the general orders in bankruptcy as to put an end to allowances out of the bankrupt's estate to the petitioning creditors' attorneys, solicitors, or counsel.
And now, May 31,'1881, the register's report, in so far as it recommends the allowance of attorney's fees, is disapproved, and such allowances, whether for fees paid or incurred, are, refused i but the court confirms the report of the register in resplkt to other necessary expenditures and disuursements, and the same, as set forth in the repol't, are allowed.
I'n re KIMBALL, Bankrupt.
(Circuit Oourt, D.
BANKRUPTCy-BoOKS OF ACCOUNT.
A teamster, who, even to a very considerable extent, buys and sells hay and straw for the bona fide purpose of keeping his teams from standing idle, is not such a merchant or tradesman as is hound to tpe tpe bankrupt law. keeP books - [ E D. ·
for Revision.' Dudley & Du4ley, for petitionel'; Ger>. W. Morse and IT'. O."Liine; fbrlbankrnpt.
districtcOl'lrt ;,\Vrua,right in hQlding ha,nkrupt'w.a.s not such a m'erchant or tradesman as :isbdundto keep; boob of account. was a teamster, owning many horses 'and carts, and engaged years very extensively in his regular business. When tpa,t bec.ame slack, he took to lilupplying certain friends and neighbors with hay and straw. He did this to keep his horses and carts, employed, 'and when he sold at wholesale he charged only enough above the cos.t to pay his usual charges for teaming. He sold sometimes at retail, but how often or how much does not appear. The total amount of business which he 'did' in 'hay and straw, in some years, was very considerable. ' . , I was much impressed with the argument for the creditor, that this man really had two distinct vocations, that of a.