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In the Matter of William H. Hughes, a Bankrupt.

Where an assignee examines a bankrupt, under the twenty-sixth section of the

Bankruptcy Act, the assignee must pay the register's fees, whether he has as

sets of the bankrupt or not. If the examination is for the benefit of creditors, the expenses of it must be ad.

vanced or secured, under the twenty-eighth section of the Act, by the creditors. If the examination is one of the steps preliminary to the bankrupt's discharge

the expenses must be advanced or secured by the bankrupt. These expenses do not include any compensation to the assignee. Provision may

be made for securing such compensation to him.

BLATCHFORD, J. In answer to the three questions certified in this case, the court replies: 1st. Where, on the return of an order to show cause before a register why a bankrupt should not be discharged, a creditor appears and opposes the discharge, the register must make a certificate of his proceedings, stating the opposition, and return the papers into court in like manner as if there were no opposition.

2d. An assignee must make his return, when requested by the bankrupt, under Form No. 35, when he has in fact not received or paid any moneys on account of the estate, even though he may have reason to believe that he will thereafter receive moneys on account of the estate, as the proceeds of assets thereof.

3d. Under the provisions of section four of the Act, and of General Order No. 29, where an assignee examines a bankrupt before a register, under section twenty-six of the Act, the assignee must pay the fees of the register for such examination, whether he has any assets of the estate or not. If there are assets, the court can, under General Order No. 29, reimburse the assignee out of the assets. The bankrupt is not, under such circumstances, bound to pay the fees of the register. By the provisions of section twenty-eight, the assignee, if not in funds from the estate at any time, to a sufficient extent to defray the necessary expenses which will be required for the further execution of his trust, may require that the funds for that purpose shall be advanced or satisfactorily secured to him before he proceeds further. These funds

In the Matter of William H. Hughes, a Bankrupt.

must be advanced or secured by the party for whose benefit the expenses are to be incurred. If they are to be incurred in an examination of the bankrupt, under section twenty-six, with a view to discover assets for the benefit of his creditors, they must be advanced or secured by the creditors. If they are to be incurred in a proceeding by the assignee which is a part of the proper steps preliminary to the discharge of the bankrupt, they must be advanced or secured by the bankrupt. The "expenses,” thus provided for by section twenty-eight, do not cover any allowance to the assignee for his services. Section twenty-eight does not provide for any allowance for such services, except by way of a percentage upon moneys received and paid out by the assignee as assets of the estate. But, by section seventeen, the assignee is to be allowed a reasonable compensation for his services, in the discretion of the court; and, if there

; is any money in his hands, this compensation and all the necessary disbursements made by him in the discharge of his duty, may be retained by him out of such money. This allowance cannot be made until after the services are rendered, because, until the court is advised what the services have been, it cannot determine whether any particular amount of compensation for the services is or is not reasonable, unless perhaps it might, for specific acts, mainly of routine, prescribe specific fees. If there is no money in the hands of the assignee, the pay ment of the compensation referred to in section seventeen, if it is a compensation for services in steps properly preliminary to the discharge of the bankrupt, can, when the compensation has been allowed, be secured by a withholding by the court of the discharge of the bankrupt, until he makes the payment, on the ground that until then he has not in all things conformed to his duty under the Act; and, if it is a compensation for services for which the bankrupt ought not to pay, its payment to the assignee can probably be secured by appropriate

The Steamship Manhattan.

means. Compensation to the assignee for his services in an examination of the bankrupt, under section twentysix, with a view to discover assets for the benefit of his creditors, is not to be paid by the bankrupt.

JANUARY, 1868.

THE STEAMSHIP MANHATTAN.

PASSENGER Act.-STEAMSHIPS.

The provisions of the second section of the Passenger Act of March 3d, 1855 (10

U. S. Stat. at Large, 715), do not apply to steamships.

BLATCHFORD, J. This is a libel filed by the United States against the steamship Manhattan, a foreign vessel, owned in Great Britain, founded on the Act passed March 3d, 1855, entitled “ An Act to regulate the carriage of passengers in steamships and other vessels" (10 U. S. Stat. at Large, 715). The libel alleges, in substance, that the steamship heretofore took on board, at Liverpool, in England, sundry passengers, with the intent to bring them to the United States, and left Liverpool, and brought such passengers to the port of New York, and within the jurisdiction of the United States. It then charges that the vessel, on such voyage, did not have the berths for her passengers constructed, arranged, and occupied as required by the second section of the Act, and avers violations of various provisions of that section, and claims that thereby the master of the vessel forfeited five dollars for each passenger on board on the voyage, and the owners of the vessel also forfeited five dollars for each passenger on board on the

The Steamship Manhattan.

voyage, and that an action has accrued to the United States to recover such penalties, and that a lien on the vessel exists for the amount of them.

The first section of the Act provides, that no master of any vessel, owned in whole or in part by a citizen of the United States, or by a citizen of any foreign country, shall take on board such vessel, at any foreign port other than foreign contiguous territory to the United States, a greater number of passengers than in the proportion of certain specified numbers to the tonnage of the vessel; that the “spaces appropriated for the use of such passengers, and which shall not be occupied by stores or other goods not the personal baggage of such passengers," shall be in certain specified proportions, namely, so many passengers to so many clear superficial feet of deck; that, if it is necessary, for safety or convenience, to store any articles “in any of the decks, cabins, or other places appropriated to the use of passengers,” such places of storage shall not “be deemed to be a part of the space allowable for the use of passengers, but the same shall be deducted therefrom;" and that one hundred superficial feet of deck for a hospital “may be included in the space allowable for passengers."

The second section provides, that “no such vessel shall have more than two tiers of berths, and prescribes what interval there shall be between the lowest part thereof and the deck, and that the berths shall be well constructed, parallel with the sides of the vessel, and be separated from each other in a certain manner, and be of such length and such width, and be occupied each by no more than one passenger, with a provision for larger berths, and for their occupation, under certain circumstances. The section then provides, that, if there shall be any violation of it in any of its provisions, the master of the vessel and the owners thereof shall severally forfeit and pay the sum of five dollars for each passen

The Steamship Manhattan.

ger on board of said vessel on such voyage, to be recovered by the United States in any port where such vessel may arrive.

The fifteenth section of the Act provides, that “the amount of the several penalties imposed by the foregoing provisions regulating the carriage of passengers in merchant vessels, shall be liens on the vessel or vessels violating those provisions, and such vessel or vessels shall be libelled therefor in any circuit or district court of the United States where such vessel or vessels shall arrive."

Relying on the provisions thus found in the first, second, and fifteenth sections of the Act, the United States have filed this libel. The libel does not allege any violation of the first section of the Act, or any overcrowding of passengers, or any carrying of a disproportionate and unlawful number of passengers, or any improper occupation of the space required to be appropriated to the use of passengers, but alleges only violations of provisions of the second section of the Act.

The claimants have filed eleven exceptions to the libel, only one of which, the third, is important to be considered, in the view I take of the statute. The other exceptions involve important questions relating to the admiralty jurisdiction of the court in the suit, and to the power of Congress to impose on a foreign vessel a lien for the penalties prescribed by the second section of the Act, and to other matters, some of substance and some of form. The third exception sets up that the require ments of the second section of the Act do not apply to steamships, and that, therefore, the Manhattan is not liable for the penalties claimed in the libel.

The first, second, and fifteenth sections of the Act employ only the word “vessel," without limiting the description of vessel to a merchant vessel, or a sailing vessel, or a steam vessel. The provisions of those sec

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