36 S.C. 87 | S.C. | 1892
The opinion of the court was delivered by
The three cases above stated were all concerned about an assignment which J. S. Robbins executed for the benefit of his creditors. Robert IV. Shand, Esq., was the assignee.'and the'case first above stated wa's brought against him to set aside the assignment, and the other two case3 he had to institute for the benefit of the assigned estate. See Akers v. Rowan. 33 S. C., 452.
On April 14, 1891, his honor. Judge Hudson, passed the following order: “On motion of John T. Sloan, Jr., and Maishall & Weston, for the defendant in the two last above entitled actions, and with the-consent of Clark & Muller and Lyles & Haynsworth, attorneys for plaintiff in the last above entitled actions, &c.. it is ordered, that Robert VV. Shand, Esq., as assignee, do show cause before me on April It), 1891, at 10 o’clock, a. m., or as soon thereafter as counsel can be heard, wh.y he should not apply the funds now in his hands, as assignee, to the payment of the costs and disbursements of the defendants’ attorneys, including fees of the officers of the court, in the two last above mentioned actions.” To this rule the assignee, R W. Shand, Esq., made “return,” which should appear in full in the report of the case.
ITis honor, Judge Hudson, upon the-return to the rule, made the following order: “On hearing rule to show cause, and the sworn return thereto of Robert W. Shand, assignee, and after hearing argument by Messrs. Sham and Weston in support of the rule, and Mr. J. S. Muller contra, it is ordered and adjudged, that said'return is sufficient, and that the said rule be, and the same is hereby, discharged. It is-further ordered, that sajd Robert W. Shand, assignee, be and is hereby authorized to pay out of the assigned estate in his hands, the said fees and disbursements of his said attorneys, amounting in the aggregate to $337.50, and the costs of the officers of court, exclusive of defendants’-attorneys, in the two cases last above stated, the fees and disbursements of said attorneys of said assignee and the costs of said officers of court to be paid ratably ; and that he apply the residue, if any there be, to the payment of the costs and disbur-ements of defendants’ attorneys in the two cases last above stated,” &c.
From this order The Central National Bank of Columbia ap
The assignee, Robert W. Shand, Esq., was a trustee for the proper administration of the assigned estate. The seeming complications in the matter of costs and fees has arisen out of the fact, that the assigned fund found in the hands of the assignee has, turned out to be insufficient to satisfy all the costs and fees properly chargeable. It is not. and could not be, properly charged, that the assignee had made himself personally liable for costs and fees, “for mismanagement or bad faith 'in the conduct of the business,’’ under section 330 of the Code.' It is unfortunate that the assigned funds in the hands of the assignee are not sufficient to
It follows that the only question is, whether the fees and disbursements of the lawyers employed by the assignee to assist him in his duties were necessary and proper expenses, incurred in
The judgment of this court is, that the judgment of the Circuit Court be affirmed.