In re LEVY

In re LEVY. (District Court, E. D. Wisconsin. April 24, 1900.) 1. Bankruptcy — Deposit of Fees — Poverty Affidavit. Tlie statutory affidavit of a voluntary bankrupt that he has not, and cannot obtain, the money with which to pay the tiling Cees, is prima facie evidence of his inability to make the deposit required; and if, upon examination as to his available means, proper inquiries being fairly answered, it appears that there was no money or property held by the petitioner at the institution of the proceedings, or obtainable through his individual earnings or efforts, the exemption from making such deposit must be allowed, and the case proceed. 2. Same — ISio Assets — Appointment of Trustee. In a case of voluntary bankruptcy, if no substantial assets are disclosed by the schedules, or discovered aliunde, the appointment of a trustee is not indispensable; and no person elected to that office can be compelled to seiwe without compensation. If creditors insist upon the appointment of a trustee, they must advance the statutory fees, or otherwise arrange for ids compensation. In Bankruptcy. [MAJORITY — ►SEA MAN. District Judge.] ►SEA MAN. District Judge. In this case the bankrupt filed with his petition the statutory affidavit that he is without, and cannot obtain, the money with which to pay the advance fees. His testimony in that regard taken on the examination before the referee is certified for consideration by the court, and instructions are requested upon the following questions: (1) Whether further proceedings should be had under the petition until deposit by the bankrupt of the advance fees; and (2) whether it is necessary that a trustee be appointed, as the assets scheduled are esteemed to be worthless; and, if so, has the referee power to compel one to accept and qualify as such without compensation. 1. On the examination of the bankrupt inquiry was made both as to his individual means, earnings, and circumstances and the means and circumstances of his wife and other relations; and in reference to the latter inquiry, if material, his answers are neither satisfactory nor ingenuous. No means are disclosed, however, within the present ownership or control of the bankrupt to justify an order requiring deposit of the advance fees of $25. The provision of the statute in this regard has received various constructions, and the utmost liberality in favor of the bankrupt is indicated in the opinion of the circuit court of appeals for the Fifth circuit in Sellers v. Bell, 94 Fed. 801, 814, 36 C. C. A. 502. Without adopting the extreme view there expressed, I am clearly of opinion that the statute intends to exempt a petitioner who has no means from making the preliminary deposit of $25, and must be fairly interpreted to that end; that the affidavit in connection with the schedules establishes prima facie right to such exemption, subject, however, to investigation; and, if the inquiry is fairly answered respecting available means, and none appear held by the petitioner when the proceedings were instituted, nor obtainable through his individual earnings or efforts, the exemption must be allowed. 2. In the absence of substantial assets, either appearing from the schedules or discoverable, the appointment of a trustee -is not indispensable, and clearly no power exists to require acceptance and qualification by one who may be chosen, but refuses to accept without compensation. If creditors insist on an appointment under such circumstances, they must furnish the advance fee, or otherwise arrange with the proposed trustee.