117 F. 790 | S.D.W. Va | 1902
(after stating the facts as above). Section 6 of chapter 3 of the bankruptcy act provides that “this act shall not affect an allowance to bankrupts of the exemptions which are prescribed by the state laws in force at the time of the filing of the petition in the state wherein they have had their domicile for the six months, or the greater portion thereof, immediately preceding the filing of the petition.” It seems clear that the provision of this section was intended to protect property and effects in the hands of the bankrupt, to the extent provided by the exemption laws of the state wherein was his domicile, against the claims of creditors which might be filed in the bankruptcy proceedings. It does not appear to be reasonable to hold that such exemptions may be retained as against the actual and necessary court costs of the bankruptcy proceedings, initiated by the voluntary filing of a petition by such bankrupt. Not only doesi this seem unreasonable, but the words of the act itself seem clearly, to my mind, to, negative any such construction of the section above quoted.
Section 51, in speaking of the duties of clerks, provides as follows:
«* * * 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 cannot obtain, the money with which to pay such fees.”
A fair construction of the above language indicates that it was the intention of the act to allow voluntary bankrupts to file their petition without the payment in advance of the fees therefor, only in case they did not have, and could not obtain, the money with which to pay such fees. In other words, if the bankrupt was absolutely without money or effects of any kind, but was able to borrow from his friends money with which to pay the court costs, he could not properly malee the affidavit required in this case, and it would be his duty to pay the fees-. This is a matter which has been decided by several different district courts, and the following authorities are cited; In Re Collier (D. C.) 93 Fed. 191, it was held that an affidavit of inability by the petitioner to pay the fees is not conclusive of his poverty; and, if circumstances appear casting doubt upon the truth of the affidavit, the question may be sent to the referee, to investigate and report the facts as to petitioner’s ability to deposit the fees. Also “a person employed by a railroad company at a salary of $30 per month, such salary being exempt from execution by the laws of the state, is not entitled to take the benefit of the bankruptcy law without depositing the fees required by the act, on an affidavit that he cannot obtain the money with which to pay such fees; and his petition will be dismissed unless the fees are deposited within a reasonable time. The exemptions allowed by the act do not excuse the payment from them of the fees of the bankruptcy court.” In Re Bean (D. C.) 100 Fed. 262, it was held that “the liability of a voluntary bankrupt to pay the fees required by Bankr. Act 1898, § 51, cl. 2, does not depend upon his having property which is not exempt, but he is excused from such payment only in case of absolute inability. He may be ordered to pay such fees out of pension money remain
The ruling of the referee herein is approved in full.
