In re Haff

• Decision Date: 04 January 1905
• Docket Number: 90.
• Citation: 135 F. 742
• Parties: In re HAFF.
• Court: U.S. Court of Appeals — Second Circuit

135 F. 742

In re HAFF.

No. 90.

United States Court of Appeals, Second Circuit.

January 4, 1905

Martin Conboy, for petitioner.

Leo Levy, for respondent.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

WALLACE Circuit Judge.

This is a petition by the alleged bankrupt in review of an order of the District Court in bankruptcy refusing to vacate the appointment of a receiver of his property. February 2, 1904 one Linane, a creditor of Haff, filed a petition that Haff be adjudged a bankrupt, and at the same time made an ex parte application to the court for the appointment of a receiver of his property; and thereupon the court appointed one McKeen such receiver, and ordered Haff and all other persons having property of his under their control forthwith to turn it over to the receiver upon the filing by the receiver of a bond approved by the court for the faithful discharge of his duties. The order contained this further provision: 'It is further ordered that the petitioning creditor herein file a bond in the sum of one thousand dollars under section 3e of the bankruptcy act' (Act July 1, 1898, c 541, 30 Stat. 547 (U.S. Comp. St. 1901, p. 3423)). The receiver thus appointed, without waiting for the filing of the bond by the petitioning creditor, took possession of the property of Haff. April 30th, no bond in the meantime having been filed by Linane, Haff moved the court to vacate the appointment of McKeen as receiver. It is the order denying this motion which Haff seeks to review.

Section 3, subd. e, Bankr. Act, provides as follows:

'Whenever a petition is filed by any person for the purpose of having another adjudged a bankrupt, and an application is made to take charge of and hold the property of the alleged bankrupt, or any part of the same, prior to the adjudication and pending a hearing on the petition, the petitioner or applicant shall file in the same court a bond * * * in such sum as the court shall direct, conditioned for the payment, in case such petition is dismissed, to the respondent, his or her personal representatives, all costs, expenses and damages occasioned by such seizure, taking and detention of the property of the alleged bankrupt.'

Section 69, Bankr. Act. (30 Stat. 565 (U.S. Comp. St. 1901, p. 3450)), is as follows:

'A judge may, upon satisfactory proof, by affidavit, that bankrupt against whom an involuntary petition has been filed and is pending, * * * issue a warrant to the marshal to seize and hold it subject to further orders. Before such warrant is issued the petitioners applying therefor shall enter into a bond in such an amount as the judge shall fix, with such sureties as he shall approve, conditioned to indemnify such bankrupt for such

...