c33:No. 396

MANTON, Circuit Judge
(dissenting).
The appellant was assigned as attorney for the receiver in bankruptcy after full disclosure by affidavit of his relations with the bankrupt and his creditors. The judge doing so suspended rule 8 in making the order. Later in the proceedings, another District Judge declined to vacate the assignment of the appellant after a full hearing and again after a full disclosure. The appellant was peculiarly qualified to perform services beneficial to the estate of the bankrupt and did so efficiently. lie did not volunteer his services free of charge. He was encouraged to continue in his professional endeavors by the judicial actions of two District Judges. This was accompanied by the promise implied in law that for faithful services he would be paid.
Rule 8 is said to be divisible into two parts, employment of the attorney and compensation for professional work. The rule is said to be mandatory' rather than directory and, since it is mandatory, it may not be waived or suspended. There is an intimation in Weil v. Neary, 278 U.S. 160, 49 S.Ct. 144, 73 L.Ed. 243, where a similar rule in effect in the Western District of Pennsylvania was under consideration, that it could be waived by a District Judge (see 278 U.S. page 171, 49 S.Ct. page 148), though it is true that the rule in that case specifically provided for exceptions. In exercising its rule-making power, District Courts cannot restrict or enlarge their jurisdiction or change the statutory or substantive law. Washington-Southern Navigation Co. v. Baltimore & Philadelphia Steamboat Co., 263 U.S. 629, 44 S.Ct. 220, 68 L.Ed. 480; Woodbury v. Andrew Jergens Co., 61 F.(2d) 736 (C.C.A.2), certiorari denied Berenson v. Woodbury, 289 U.S. 740, 53 S.Ct. 659, 77 L.Ed. 1487. Rule 8 is a rule of practice. Within section 731, title 28 U.S.C.A., the District Judges may “from time to time, and in any manner not inconsistent with any law of the United States, or with any rule prescribed by the Supreme Court under section 730 of this title, make rules and orders * * * [to] regulate their own practice as may be necessary or convenient for the advancement of justice.” Rules of practice may ordinarily be waived. United States v. Breitling, 20 How. 252, 15 L.Ed. 900; Matter of Schulte-United, 59 F.(2d) 553 (C.C.A.8); Holmes v. Ginter Restaurant Co., 54 F.(2d) 876 (C.C.A.1) ; Strohhar v. Dwinnell, 29 F. (2d) 915 (C.C.A.5).
When compensation was denied below, it was not merely an exercise of judicial discretion; it was thought that the court did not have the power to make the assignment or to grant compensation. But, since the court did have such power, I think the order should be reversed and the cause remanded to the court below for fixation of compensation.

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