In re Haskell , 11 F. Cas. 770 ( 1871 )

LONGYEAR, District Judge.

The “point or matter” above certified, does not appear to have arisen “during the proceedings before the register” or “in the course of such proceedings, or upon the result of such proceedings,” within the meaning of section 6 of the bankrupt act. Neither is it a statement of “any question or questions in a special case” within the meaning of said section. Neither is Oliver, for whose benefit the opinion of the district judge is sought, a “party” to the bankruptcy proceedings, nor to any proceedings whatever commenced and pending before the register. The questions certified are really nothing more than abstract questions; and, instead of being questions arising in the course of any proceedings in the bankrupt court, or upon the result of any such proceedings, they, in fact, relate merely to proceedings in a suit in another and different court, and are certified in behalf of a person, who, although a party to such latter proceedings, is not a party to any proceedings in the bankrupt court: It may be said that the questions agreed on and stated make “a special case” within the meaning of section 6. But this is not the provision of the section. It is not that parties may make a special case, but it is that they may “state any question or questions in a special case.” There must, of course, be, first, parties, and, second, a case in which questions can arise and be stated. Here both of these elements are wanting. Questions are to be decided only when they necessarily arise, and are not to be anticipated. If Oliver had proved his debt (as a secured debt, of course),-and thus became a party to the bankruptcy proceedings, and had then applied for leave to sell the mortgaged property, and thus have made a special case, there is no doubt that questions arising therein might be stated by consent, and be properly certified; but I do not see how it could be done, short of this, under the law.

See In re Frizelle [Case No. 5,133]; In re Wright [Id. 18,069]; In re Sturgeon [Id. 13,564]; In re Bray [Id. 1,818]. The questions certified not being authorized by the act to be certified, a decision upon them would be coram non judice, and, of course, of no force or effect, and they are, therefore, returned undecided.