Even though corporation was not subject to adjudication as a bankrupt. Appointment of a receiver denied, when no necessity therefor. In re Knopf, 16 Am. B. R. 432, 144 Fed. 245. In re Moody, 12 Am. B. R. 718, 131 Fed. 525. In re Benedict, 15 Am. B. R. 232, 140 Fed. 55. When property is in hands of State receiver previously appointed. Notice to alleged bankrupt proper, but not necessary. In re Abrahamson and Bretstein, 1 Am. B. R. 44. In re Standard Cordage Co. (D. C., N. Y.), 30 Am. B. R. 448, 184 Fed. 156. An appointment without notice is not in a constitutional sense a deprivation of property without due process of law. Latimer v. McNeal (C. C. A., 3d Cir.), 16 Am. B. R. 43, 142 Fed. 451, 73 C. C. A. 567, affg. In re Francis (D. C., Pa.), 14 Am. B. R. 676, 136 Fed. 912. Bryan v. Bernheimer (U. S. Sup.), 5 Am. B. R. 623, 181 U. S. 188, 45 L. Ed. 814. May be appointed to take charge of the property although estate is being administered by assignee or receiver in State court. In re Etheridge Furniture Co., 1 Am. B. R. 112, 92 Fed. 329. Bauman Diamond Co. v. Hart (C. C. A., 5th Cir.), 27 Am. B. R. 632, 192 Fed. 498, 113 C. C. A. 104. Appointment of receiver discretionary with the court and mandamus does not lie to compel such appointment. Edinburg Coal Co. v. Humphrey (C. C. A., 7th Cir.), 13 Am. B. R. 593, 134 Fed. 839, 67 C. C. A. 435. Order appointing receiver cannot be attacked collaterally in the same or other court. Ross v. Stroh (C. C. A., 3d Cir.), 21 Am. B. R. 644, 165 Fed. 628, 91 C. C. A. 616. White v. Davis, 134 Ga. 274, 67 S. E. 716. Effect of appointment.— In re Nelson & Bro. Co., 18 Am. B. R. 66, 149 Fed. 590. In re Alton Mfg. Co., 19 Am. B. R. 805, 158 Fed. 367. Title to property in hands of receiver. In re La Plume Milk Co., 16 Am. B. R. 729, 145 Fed. 1013. Power of Court to protect its receiver. Mason v. Wolkowich (C. C. A., 1st Cir.), 17 Am. B. R. 709, 150 Fed. 699, 80 C. C. A. 435. Preservation of receiver's rights acquired in an involuntary proceeding pending when adjudication follows in a voluntary proceeding. In re New Chattanooga Hardware Co. (D. C., Tenn.), 27 Am. B. R. 77, 190 Fed. 241. What petition should state. "Absolutely necessary for preservation of estate." In re Oakland Lumber Co. (supra). In re Rosenthal, 16 Am. B. R. 448, 144 Fed. 548. T. S. Faulk & Co. v. Steiner, Lobman & Frank et al. (C. C. A., 7th Cir.), 21 Am. B. R. 623, 165 Fed. 861, 91 C. C. A. 547. Consent of bankrupt alone, not sufficient, s. c. Provisions of the order. Order should fix amount of bond, and specify powers. Order should fix time for filing petitioning creditor's bond before receiver takes possession. In re Haff (C. C. A., 2d Cir.), 13 Am. B. R. 354, 135 Fed. 742, 68 C. C. A. 380. What an order directing bankrupt to deliver books to receiver should provide. In re Geo. Harris, 20 Am. B. R. 911, 164 Fed. 292. Review of order.- [See § 25, Vol. I, ante.] An appeal cannot be had from an order appointing a receiver in bankruptcy, but where the appointment is made by the same order which directs service upon the alleged bankrupt by publication and such order is reversed and set aside on appeal, the appointment of the receiver falls with it. Bauman Diamond Co. v. Hart (C. C. A., 5th Cir.), 27 Am. B. R. 632, 192 Fed. 498, 113 C. C. A. 104. In re Cash-Papworth, Grow-Sir [In re Franklin Sugar Refining Co.] (C. C. A. 2d Cir.), 31 Am. B. R. 709, 210 Fed. 24, 126 C. C. A. 604. When appeal is pending from decree or order dismissing petition in involuntary bankruptcy, property will not be taken out of hands of receiver. In re Ward, 28 Am. B. R. 36, 194 Fed. 179. Powers of receiver.- [See § 2, Vol. I, ante.] In re Heim Milk Product Co. (D. C., N. Y.), 25 Am. B. R. 746, 183 Fed. 787. No authority to compromise claims against bankrupt estate without order of Court. Southern Steel & Iron Co. v. Hickman & Co. (C. C. A., Ala.), 27 Am. B. R. 203, 208, 190 Fed. 888. Duties of. In re Desrochers (D. C., N. Y.), (supra). In re Tisch, 29 Am. B. R. 339, 202 Fed. 1018. Form No. 117 CONSENT OF BANKRUPT TO APPOINTMENT OF RECEIVER (Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 54.) United States District Court, for the District of IN THE MATTER OF In Bankruptcy No. Bankrupt. I hereby consent to the appointment of a receiver as prayed for in the foregoing petition, (and that I be adjudged a bankrupt, as prayed for in the petition of .... and others, verified. 19...), and I hereby waive any bond on the part of me to be the person described in and who executed the foregoing consent and duly acknowledged to me that he executed the same. Form No. 118 BOND OF PETITIONING CREDITOR UPON APPOINTMENT OF RECEIVER · (Hagar and Alexander's Bankruptcy Forms [2d Ed.], No. 55.) in the full and just sum of dollars, lawful money of the United States of America, to which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, successors and assigns, jointly and severally, firmly by these presents. Sealed with our seals and dated the ...... day of in the year .... Whereas, a petition has been duly filed in this Honorable Court, praying that the said .... cation has been made for the appointment of a receiver to take charge of and hold the property of the said alleged bankrupt, prior to the adjudication, and pending the hearing upon the said petition. Now, therefore, the condition of the above obligation is such, that if the said shall in the event of the said petition being dismissed, pay to the said or alleged bankrupt legal representative, all costs, expenses and damages occasioned by such seizure, taking and detention of the property of said alleged bankrupt then the above obligation to be void, otherwise to be and remain in full force and virtue. In presence of Cross-references.- See §§ 2, (3), 15, 3-e, 69a. Required where application is made for a receiver to take charge of, and hold the property of the alleged bankrupt or any part thereof, prior to the adjudication and pending a hearing on the petition. Receiver and marshal take possession of the property for substantially same purpose. Bonds given under 3-e and 69-a construed. T. E. Hill Co. v. U. S. Fidelity and Guaranty Co. (Ill. Sup. Ct.), 33 Am. B. R. 781, 250 III. 242, 95 N. E. 150. Bond by single surety company sufficient. In re Sears-Humbert and Co., 10 Am. B. R. 389. Runs only to respondents at time bond is given. In re Spalding (C. C. A., 2d Cir.), 17 Am. B. R. 667, 150 Fed. 120, 80 C. C. A. 74. The bond should be filed before the receiver takes possession. In re Haff (C. C. A., 2d Cir.), 13 Am. B. R. 354, 135 Fed. 742, 68 C. C. A. 340. In re Sunseri, 18 Am. B. R. 231, 156 Fed. 103. In re McKane, 18 Am. B. R. 594, 158 Fed. 647. Compare In re Hines, 16 Am. B. R. 538, 144 Fed. 147. Liability of bondsmen upon dismissal of petition. In re Smith, 16 Am. B. R. 478, 146 Fed. 923. Selkregg v. Hamilton, 16 Am. B. R. 474, 144 Fed. 557. In re Nixon, 6' Am. B. R. 693, 110 Fed. 633. In re Sears-Humbert and Co., 10 Am. B. R. 389. In re Hines, 16 Am. B. R. 538, 144 Fed. 147. In re Williams, 9 Am. B. R. 736, 120 Fed. 34. Nixon v. Fidelity and Deposit Co. of Maryland (C. C. A., 9th Cir.), 18 Am. B. R. 174, 150 Fed. 574, 80 C. C. A. 336. In re Lavoc (C. C. A., 2d Cir.), 15 Am. B. R. 290, 142 Fed. 960, 74 C. C. A. 130. Hoffschlaeger Co. v. Young Nap, 12 Am. B. R. 526. To sustain action in State court on bond not necessary that costs and damages be first fixed by Bankruptcy Court. T. E. Hill Co. v. U. S. Fidelity & Guaranty Co., 33 Am. B. R. 781, 250 Ill. 242, 95 N. E. 150. Recovery may be had even though taking of property by receiver is not proven to have been wrongful. S. c. supra. Liable only for usual costs unless petitioners acted without probable cause and with malice, when the remedy is a suit in the nature of malicious prosecution. In re Moehs v. Rechnitzer (D. C., N. Y.), 22 Am. B. R. 286, 174 Fed. 165. T. E. Hill Co. v. Contractors, etc., Co. (App. Ct., Ill.), 24 Am. B. R. 84. See, "Collier on Bankruptcy," 10th Ed. p. 983. Compare In re Philadelphia and Lewes Transportation Co., 11 Am. B. R. 444, 127 Fed. 896. In re Metals Extraction and Refining Co., 27 Am. B. R. 11, 195 Fed. 226. In re Ward (D. C., N. J.), 29 Am. B. R. 547, 203 Fed. 769. Counsel fees disallowed. In re Shon (D. C., Mass.), 32 Am. B. R. 388, 212 Fed. 797. Alleged bankrupt should file his bill of costs with the clerk and give notice to the creditors. In re Haeseler-Kohlhoff Carbon Co., 14 Am. B. R. 381, 135 Fed. 867. No liability on petitioning creditors for trustee's deficit. In re Metals Extraction and Refining Co., 27 Am. B. R. 11, 195 Fed. 226, 115 C. C. A. 178. Recovery only against person or persons applying for appointment of receiver and not against the petitioning and intervening creditors generally. In re Ward (D. C., N. J.), 29 Am. B. R. 547, 203 Fed. 769. |