3

act and allowed by special order of the judge." It has been held that a referee cannot receive an extra allowance, even by the consent of all the parties in interest. It is usual to allow the referee compensation for office rent, clerk hire and incidental expenses, and in order to provide for this, to authorize a charge by him of ten cents for each notice served. By special order, the referee may be allowed his traveling and hotel expenses when necessary for the discharge of his duties, but not to a per diem compensation for his services in such a case. The court may review an allowance by the referee of fees to himself.

§ 663. Trustee's fees. (a) Trustees shall receive for their services, payable after they are rendered, a fee of five dollars deposited with the clerk at the time the petition is filed in each case, except when a fee is not required from a voluntary bankrupt, and such commissions on all moneys disbursed or turned over to any person, including lien holders, by them, as may be allowed by the courts, not to exceed six per centum on the first $500 or less; four per centum on moneys in excess of $500 and less than $1,500, two per centum on moneys in excess of $1,500 and less than $10,000, and one per centum on moneys in excess of $10,000, and in case of the confirmation of a composition after the trustee has qualified the court may allow him as compensation, not to exceed one-half

Tracy, C. C. A., 2nd Ct., 179 Fed. 366; § 638, supra. In the Sixth Circuit it has been held that this cannot be done. Re Sweeney, C. C. A., 168 Fed. 612. So in the Southern District of Ohio, Re Troth, 104 Fed. 291; and in the Western District of Michigan, Re Wilcox, 156 Fed. 685.

3 General Order XXXV. The court has no power to allow a referee any additional compensation for extraordinary services. Re Meadows, 199 Fed. 304. Where the referee continued the bankrupt's business in order to complete Government contracts, it was held that he was not entitled to any additional compensation by a percentage calcu

lated upon the amount which was raised and expended for that purpose or otherwise. Bray v. Johnson, C. C. A., 166 Fed. 67. See, also, Re Meadows, 199 Fed. 304.

4 Dressel v. North State Lumber Co., 119 Fed. 531.

5 Remington on Bankruptcy, $ 3032. Citing Re Dunn Hardware & Furniture Co., 134 Fed. 997. But see Re Elk Valley Coal Mining Co., 213 Fed. 383. For an allowance for stationery, see Re Dixon, 114 Fed. 675. As regards the salary of his clerk, see Re Tebo, 101 Fed. 419. 6 Re Daniels, 130 Fed. 597.

7 Re Elk Valley Coal Mining Co., 213 Fed. 383.

8 Re Allert, 173 Fed. 691.

of one per centum of the amount to be paid the creditors on such composition. (b) In the event of an estate being administered by three trustees instead of one trustee or by successive trustees, the court shall apportion the fees and commissions between them according to the services actually rendered, so that there shall not be paid to trustees for the administering of any estate a greater amount than one trustee would be entitled to. (c) The court may, in its discretion, withhold all compensation from any trustee who has been removed for cause. "(e) Where the business is conducted by trustees, marshals, or receivers, as provided in clause five of section two of this Act, the court may allow such officers additional compensation for such services by way of commissions upon the moneys disbursed or turned over to any person, including lien holders by them, and, in cases of receivers or marshals, also upon the moneys turned over in kind by them to the trustees; such commissions not to exceed six per centum on the first five hundred dollars or less, four per centum on moneys in excess of five hundred dollars and less than one thousand five hundred dollars, two per centum on moneys in excess of one thousand five hundred dollars and less than ten thousand dollars, and one per centum on moneys in excess of ten thousand dollars: Provided, That in case of the confirmation of a composition such commissions shall not exceed one-half of one per centum of the amount to be paid creditors on such composition: Provided further, That before the allowance of compensation notice of application therefor, specifying the amount asked, shall be given to creditors in the manner indicated in section fifty-eight of this Act."2 Courts of Bankruptcy are allowed to "authorize the business of bankrupts to be conducted for limited periods by receivers, and the marshals, or trustees, if necessary in the best interests of the estates, and allow such officers additional compensation for such services, but not at a greater rate than in this Act allowed trustees for similar services. "Neither

230 St. at L. 544, $ 48e, as amended by 36 St. at L. 838.

330 St. at L. 544, § 2, subdivision 5; 32 St. at L. 797. It has been held that a trustee cannot be allowed, in addition to his usual

the referee, receiver, marshal, nor the trustee shall in any form or guise receive, nor shall the court allow them, any other or further compensation for their services than that expressly authorized and prescribed in this Act." "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." 5 It has been held that a trustee is not entitled to commissions nor attorneys' fees out of the proceeds of property sold by him which are owned by and returned to an adverse claimant. Before the amendment of 1910, previously quoted, which allows the trustee commissions on moneys turned over to lien holders, the preponderance of authority held that, where the trustee sold property subject to a lien, his commissions should be estimated upon the balance after the lienor had been paid principal and interest and not upon the whole purchase price. Where a creditor buys in the property and

commissions, duplicate commissions upon the amounts disbursed by him in conducting the business of the bankrupt, pursuant to the order of the court. Re Cambridge Lumber Co., 136 Fed. 983; Re Kirkpatrick, C. C. A., 148 Fed. 811. Contra, Re Pequod Brewing Co., N. Y. L. J. April 19, 1907, per Dexter, referee. Cf. Remington on Bankruptcy, § 2116.

4 30 St. at L. 544, § 72; 32 St. at L. 797; Re Screws, 147 Fed. 989; Re Meadows, 199 Fed. 304.

5 General Order XXXV. A trustee, who is an attorney at law, cannot be allowed compensation for legal services rendered by him to the estate. Re George Halbert Co., C. C. A., 134 Fed. 236. A trustee was allowed his counsel fees out of the fund involved in litigation, which he instituted to reduce the number of claimants to a special fund belonging primarily to mortgage creditors. Re Waterloo Organ

Co., C. C. A., 154 Fed 657. It has been said that a trustee should not be allowed reimbursement for a premium paid to a surety company for furnishing his official bond, Re Hoyt, 119 Fed. 987; Remington on Bankruptcy, $ 2038; but such disbursements are frequently allowed and seem not to be improper. The trustee is allowed the fees of an auctioneer employed by him for a sale.

6 Gillespie v. J. C. Piles & Co., C. C. A., 178 Fed. 886.

7 Re Meadows, 199 Fed. 304; supra, § 642. Contra, Re Utt, C. C. A., 105 Fed. 754; Re Mammoth Pine Lumber Co., 116 Fed. 731; Re Sanford Furniture Mfg. Co., 126 Fed. 888. See Re Anders Push Button Telephone Co., 136 Fed. 995; Re Zehner, 193 Fed. 787.

The expense of taking care of property subject to a lien, when not incurred with the consent of the lienor, was not allowed to the

applies the dividend to the payment of the purchase price, the amount of such dividend is included in the estimation. 8

§ 664. Receiver's fees. (d) Receivers or marshals appointed pursuant to section two, subdivision three, of this Act shall receive for their services, payable after they are rendered, compensation by way of commissions upon the moneys disbursed or turned over to any person, including lien holders, by them, and also upon the moneys turned over by them or afterwards realized by the trustees from property turned over in kind by them to the trustees, as the court may allow, not to exceed six per centum on the first five hundred dollars or less, four per centum on moneys in excess of five hundred dollars and less than one thousand five hundred dollars, two per centum on moneys in excess of one thousand five hundred dollars and less than ten thousand dollars, and one per centum on moneys in excess of ten thousand dollars: Provided, That in case of the confirmation of a composition such commissions shall not exceed one-half of one per centum of the amount to be paid creditors on such compositions: 1 Provided further, That when the receiver or marshal acts as a mere custodian and does not carry on the business of the bankrupt as provided in clause five of section two of this Act, he shall not receive nor be allowed in any form or guise more than two per centum on the first thousand dollars or less, and one-half of one per centum on all above one thousand dollars on moneys disbursed by him or turned over by him to the trustee and on moneys subsequently realized from property turned over by him in kind to the trustee: Provided further, That before the allowance of compensation notice of application therefor, specifying the amount asked, shall be given to creditors in the manner indicated in section fifty-eight of this Act."2 The bankruptcy law further provides that Courts

trustee. Re Vulcan Foundry & Mach. Co., C. C. A., 180 Fed. 671. But see Re Stewart, 193 Fed. 791. 8 Re Morse Iron Works & Dry Dock Co., 154 Fed. 214.

§ 664. 1 Where the composition was offered after the receiver had accounted and his allowance had been fixed, his fees were not thereby reduced. Re Miller, 243 Fed. 245.

230 St. at L. 544, § 48d, as amended by 36 St. at L. 838. For the former rule as to notice, see Re Martin Borgeson Co., 151 Fed. 780. Where a receiver turns over property in bulk without having converted it to money, it seems that his commissions may be allowed him upon the value thereof. Re Cambridge Lumber Co., 136 Fed. 983

of Bankruptcy may "authorize the business of bankrupts to be conducted for limited periods by receivers, the marshals, or trustees, if necessary in the best interests of the estates, and allow such officers additional compensation for such services, but not at a greater rate than in this Act allowed trustees for similar services." 8 In all other matters it seems that the court has full discretion as to the amount of fees that shall be given to a receiver. The receiver's fees are not to be deducted from the compensation of the trustee.5

§ 665. Attorney's fees. The bankruptcy law, after providing for the payment of taxes, directs that the order of payments of debts that have priority shall be: "(1) the actual and necessary cost of preserving the estate subsequent to filing the petition; (2) the filing fees paid by creditors in involuntary cases; (3) the cost of administration, including the fees and mileage payable to witnesses as now or hereafter provided by

330 St. at L. 544, § 2, subd. 5; 32 St. at L. 797. Cf. Ibid., § 48e quoted supra, § 663. See Re George W. Shiebler & Co., C. C. A., 174 Fed. 336; Re Charles Knosher & Co., C. C. A., 197 Fed. 136. Re Griesheimer, 209 Fed. 134. As to what is conducting business, see Re Charles Knosher & Co., C. C. A., 197 Fed. 136.

4 Re Scott, 99 Fed. 404; Re Sully, 142 Fed. 895; Re Kirkpatrick, C. C. A., 148 Fed. 811; Re Martin Borgeson Co., 151 Fed. 780. Contra, Re Richards, 127 Fed. 772; Re Cambridge Lumber Co., 136 Fed. 983; Re Weissman, 267 Fed. 588. A receiver is not entitled to compensation for services rendered by the attorney for the petitioners in instituting the bankruptcy proceedings and obtaining his appointment. Re Oppenheimer, 146 Fed. 140. Where the receiver has been negligent; he may be denied any commissions. Re Schoenfeld, C. C. A., 183 Fed. 219. Where the receiver and his counsel had acted according to

.

their best judgment and with some justification, it was held that their expenses should be allowed, although the receivership caused more than was justified by the necessity of the case. Re Krause, 155 Fed. 702. See supra, § 322. The court appointing an ancillary receiver has power to fix his fees and provide for their payment and that of his expenses, out of any funds in its hands belonging to the estate. Fidelity Tr. Co. v. Gaskell, C. C. A., 195 Fed. 865, 874. It has been said that receivers should, in no case, receive more compensation than the trustee. Remington on Bankruptcy, § 2119; see Dunlap Hardware Co. v. Huddleston, C. C. A., 167 Fed. 433; see Re Leonard, 177 Fed. 503.

5 Re Richards, 127 Fed. 772. Where a receiver is afterwards appointed trustee, his compensation for services in both capacities may be adjusted at the same time. Re James Carothers & Co., 182 Fed. 501.