The power to appoint an ancillary receiver in bankruptcy ought not to be exercised without such notice to the persons in possession of the property, and to other parties in interest, as will answer the requirement of due process of law. Ross-Meeham Foundry Co. v. Southern Car & Foundry Co. (D. C. 1903) 124 Fed. 403, 10 Am. Bankr. Rep. 624.

The court of bankruptcy appointing an ancillary receiver has jurisdiction to hear and determine the claims of third persons asserting title to the property in question or liens upon it. Fidelity Trust Co. v. Gaskell (1912) 195 Fed. 865, 115 C. C. A. 527, 28 Am. Bankr. Rep. 4. Such court also has authority to settle the ancillary receiver's accounts, affording to creditors, or to the trustee of the primary jurisdiction, an opportunity to question the correctness of the accounting in the ancillary court, the receiver not being bound to account to the court of primary jurisdiction. Loeser v. Dallas (1911) 192 Fed. 909, 114 C. C. A. 349, 27 Am. Bankr. Rep. 733.

The duty of an ancillary receiver in bankruptcy is limited to the collection of assets and to holding the same to await the appointment of a trustee, and he will not ordinarily be authorized to sell any of the property in his custody. In re Brockton Ideal Shoe Co. (D. C. 1912) 194 Fed. 233, 27 Am. Bankr. Rep. 577.

An application to vacate the receivership, on a ground going to the root of the whole matter, as, that the alleged bankrupt was solvent and had not committed an act of bankruptcy, should not be made in the first instance to the court of ancillary jurisdiction (the same person having been appointed receiver in both districts), but to the court of original jurisdiction. Hayes (D. C. 1912) 192 Fed. 1018, 27 Am. Bankr. Rep. 713.

In re

When the accounts of a receiver have been settled by a court having jurisdiction, he may be summarily ordered to pay over the balance due, and his surety may be held liable therefor. In re Reliable Bottle Box Co. (D. C. 1912) 199 Fed. 670, 29 Am. Bankr. Rep. 371.

A receiver in bankruptcy will be surcharged with the value of any property coming into his hands and not accounted for. In re Consumers' Coffee Co. (D. C. 1908) 162 Fed. 786, 20 Am. Bankr. Rep. 835.

Though a petition in bankruptcy is dismissed, on the ground that the alleged bankrupt was not amenable to the law, yet as the court had jurisdic

tion to determine that question, its appointment of a receiver was not void, and hence it may in its discretion allow and pay the expenses of the receivership out of the funds in the receiver's hands, where his services were beneficial to the estate. In re Wentworth Lunch Co. (D. C. 1911) 189 Fed. 831.

It was formerly held that the question of allowing commissions or compensation to the receiver in bankruptcy, and the amount, was committed entirely to the sound judicial discretion of the court, as in ordinary cases in courts of equity, to be determined upon a consideration of the services rendered in the particular case. In re Schoenfeld (1910) 183 Fed. 219, 105 C. C. A. 481, 25 Am. Bankr. Rep. 748; In re Kirkpatrick (1906) 148 Fed. 811, 78 C. C. A. 501, 17 Am. Bankr. Rep. 594; In re Martin Borgeson Co. (D. C. 1907) 151 Fed. 780, 18 Am. Bankr. Rep. 178; In re Leonard (D. C. 1910) 177 Fed. 503, 24 Am. Bankr. Rep. 97. But this matter was specifically regulated by an amendment to the bankruptcy act adopted June 25, 1910, c. 412, 36 Stat. 838. See infra, § 48.

28. - Fees of receiver's attorney. -Ordinarily, the duties of a statutory receiver for an alleged bankrupt neither require nor justify the employment of an attorney, and hence no claim for the services of an attorney so employed is chargeable per se against the estate, predicated alone on the fact of employment and service rendered. In re T. E. Hill Co. (1907) 159 Fed. 73, 86 C. C. A. 263, 20 Am. Bankr. Rep. 73; In re Leonard (D. C. 1910) 177 Fed. 503, 24 Am. Bankr. Rep. 97; In re Union Bank (1883) 37 N. J. Eq. 420. A receiver in bankruptcy is entitled to the assistance of counsel, and a reasonable allowance (keeping in view the economy enjoined by the general policy of the bankruptcy act, and taking into consideration the value of the estate) will be made to him in the settlement of his accounts for services rendered in the administration of the estate while in his hands. He is not entitled to an allowance for services rendered by the attorney for the petitioning creditors in instituting the proceedings and obtaining the receiver's appointment, or for other services rendered primarily in the interests of his clients, and the former is a matter for consideration (if at all) on the settlement of the estate in the hands of the trustee, with which the receiver has nothing to do. In re Oppenheimer (D. C. 1906) 146 Fed. 140, 17 Am. Bankr. Rep. 59; In re Falkenberg (D. C. 1913) 206 Fed. 835, 30 Am. Bankr. Rep. 718.

Where attorneys for the receiver of an alleged bankrupt were also actively engaged in a protracted contest in

bankruptcy, as attorneys for the petitioning creditors, and were not independent counsel employed by the receiver, as contemplated by an order granting leave to the receiver to employ counsel, and the bankruptcy proceeding was thereafter dismissed, an order declining to make an allowance to such attorneys for services render-. ed to the receiver was correct, such expense being rightfully chargeable against the petitioning creditors. In re T. E. Hill Co. (1907) 159 Fed. 73, 86 C. C. A. 263, 20 Am. Bankr. Rep. 73. Since a receiver in bankruptcy is required to stand independent of the parties to the litigation, he will not be allowed to charge the estate for services rendered to him by the attorney for either party during the continuance of such relation. In re T. L. Kelly Dry Goods Co. (D. C. 1900) 102 Fed. 747, 4 Am. Bankr. Rep. 528.

Fees to the attorney for a receiver in bankruptcy should be allowed only to the extent that his services were rendered for the direct benefit of the entire estate, and not of any particular creditor. In re Ketterer Mfg. Co. (D. C. 1907) 156 Fed. 719, 19 Am. Bankr. Rep. 638; Platt v. Archer (D. C. 1876) Fed. Cas. No. 11,214.

The number of attorneys employed by a receiver in bankruptcy is not an element to be considered in allowing fees, but the allowance should be made as though but one attorney had been employed. In re Falkenberg (D. C. 1913) 206 Fed. 835, 30 Am. Bankr. Rep. 718.

29. Sales of property by receivers.A receiver appointed by the court of bankruptcy to take charge of the property of the bankrupt, pending the election and qualification of a trustee, may be ordered to sell the property or any part of it, when such a course is necessary for the preservation of its value. In re Becker (D. C. 1899) 98 Fed. 407, 3 Am. Bankr. Rep. 412; In re B. D. Garner & Co. (D. C. 1907) 153 Fed. 914, 18 Am. Bankr. Rep. 733; In re De Lancey Stables Co. (D. C. 1909) 170 Fed. 860, 22 Am. Bankr. Rep. 406. If the receiver is not in possession of particular property, the court of bankruptcy has no jurisdiction to order its sale and determine the rights of adverse claimants in the proceeds. First Nat. Bank v. Chicago Title & Trust Co. (1905) 198 U. S. 280, 25 Sup. Ct. 693, 49 L. Ed. 1051, 14 Am. Bankr. Rep. 102. But this may be done with the consent of the claimant who has the possession of the property. Ommen v. Talcott (D. C. 1909) 175 Fed. 261, 23 Am. Bankr. Rep. 572. Where a corporation is adjudged bankrupt in Massachusetts and an ancillary receiver appointed in New York, he will not be authorized to sell the bankrupt's stock in trade in New York,

in the absence of any proceedings therefor in the domiciliary jurisdiction. In re Brockton Ideal Shoe Co. (D. C. 1912) 194 Fed. 233, 27 Am. Bankr. Rep. 577. A sale by a receiver in bankruptcy without the order of the court conveys no title. In re Styer (D. C. 1899) 98 Fed. 290, 3 Am. Bankr. Rep. 424; In re Fulton (D. C. 1907) 153 Fed. 664, 18 Am. Bankr. Rep. 591; Muschel v. Austern (1904) 43 Misc. Rep. 352, 87 N. Y. Supp. 235. A receiver in bankruptcy has no authority to sell at private sale on his own responsibility, but if he reports to the court an offer made by an outside party for the purchase of property in his charge, and the court makes an order authorizing him to accept the offer and sell the property, the transaction becomes a judicial sale, and the purchaser can be compelled, by rule or attachment, to comply with its terms. In re J. Jungmann, Inc. (1911) 186 Fed. 302, 108 C. C. A. 380, 26 Am. Bankr. Rep. 401.

In view of the temporary nature of the functions of a receiver in bankruptcy, sales of property by him should be authorized only when the property is perishable or is rapidly depreciating in value. In re Desrochers (D. C. 1911) 183 Fed. 991, 25 Am. Bankr. Rep. 703; In re Harris (D. C. 1907) 156 Fed. 875, 19 Am. Bankr. Rep. 635. Where the receiver acquires possession of a leasehold as part of the bankrupt's estate, he should not attempt to make a sale of it. In re Fulton (D. C. 1907) 153 Fed. 664, 18 Am. Bankr. Rep. 591. The sale of goods as perishable is for the benefit of all concerned, the money realized standing in place of the property itself, against which the parties interested may assert their rights the same as if the sale had not taken place. In re Le Vay (D. C. 1903) 125 Fed. 990, 11 Am. Bankr. Rep. 114.

"Perishable property," as used in General Bankruptcy Order 18 (post, § 9614), permitting the court in its discretion to direct sale of perishable property, held not limited to the property which deteriorates physically, but includes that liable to deteriorate in value and price by reason of delay in the disposition thereof. In re Pedlow (1913) 209 Fed. 841, 126 C. C. A. 565.

III. TAXATION OF COSTS AND FEES

30. Power to award costs.-The obvious policy of the Bankruptcy Act, manifest in all of its provisions touching on the subject, is to reduce to a minimum the expense of administering estates, and the courts are bound to give the statute such a construction and application as will fulfill the intention of congress in this regard. In re J. W. Harrison Mercantile Co. (D.

C. 1899) 95 Fed. 123, 2 Am. Bankr. Rep. 419; In re Fullick (D. C. 1912) 201 Fed. 463, 28 Am. Bankr. Rep. 634. In cases of involuntary bankruptcy, where the debtor resists adjudication, and the court, after hearing, adjudges the debtor a bankrupt, the petitioning creditors shall recover, and be paid out of the estate, the same costs that are allowed to a party recovering in a suit in equity; and if the petition is dismissed, the debtor shall recover like costs against the petitioner. General Order in Bankruptcy, No. 34 (post, § 9614). And see In re Ghiglione (D. C. 1899) 93 Fed. 186, 1 Am. Bankr. Rep. 580; In re Morris (D. C. 1902) 115 Fed. 591, 7 Am. Bankr. Rep. 709. As regards the case where the petition is dismissed, it is held that this applies only in cases where the jurisdiction of the court was not questioned, or was sustained, and the decision was on the merits, and not to cases where the petition was dismissed for want of jurisdiction or because the defendant was not amenable to the law. In re Philadelphia & Lewis Transp. Co. (D. C. 1904) 127 Fed. 896, 11 Am. Bankr. Rep. 444.

Upon the dismissal of a petition in bankruptcy, the respondent is entitled to costs, but not to an allowance for counsel fees or expenses or damages, unless there was an application to seize and hold his property. In re Williams (D. C. 1903) 120 Fed. 34, 9 Am. Bankr. Rep. 736; In re Morris (D. C. 1902) 115 Fed. 591, 7 Am. Bankr. Rep. 709; In re Ghiglione (D. C. 1899) 93 Fed. 186, 1 Am. Bankr. Rep. 580. And the fact that a temporary injunction was granted to restrain supposed debtors from paying money into the hands of the alleged bankrupt does not bring the case within the provisions of Bankruptcy Act, § 3e (post, § 9687). In re Williams (D. C. 1903) 120 Fed. 34, 9 Am. Bankr. Rep. 736.

The court of bankruptcy has authority under its general equity powers to order the petitioning creditors to pay the expenses of a receivership, where the receiver was appointed on their application on the filing of their petition, which petition was subsequently dismissed as unfounded. In re Lacov (1905) 142 Fed. 960, 74 C. C. A. 130, 15 Am. Bankr. Rep. 290. See In re Eagle Steam Laundry Co. (D. C. 1911) 184 Fed. 949, 25 Am. Bankr. Rep. 868. And such order may be enforced by proceedings in contempt. In re Lacov (1905) 142 Fed. 960, 74 C. C. A. 130, 15 Am. Bankr. Rep. 290. But if the receiver has continued in the possession of the property until after the defendant has been adjudged bankrupt by the court in another district, the authority to compensate the receiver passes to the court making the adjudication, which takes exclusive jurisdiction of the estate. In re Sears,

Humbert & Co. (1904) 128 Fed. 275, 62 C. C. A. 623.

Where creditors successfully oppose the bankrupt's application for discharge, and incur costs and expenses in so doing, they would ordinarily be taxable against the bankrupt; but if he is entirely without money, the court will not make a useless order upon him to pay such costs, and there is no warrant in law to tax such costs against the estate. In re Kyte (D. C. 1911) 189 Fed. 531, 26 Am. Bankr. Rep. 507.

31. Amount and items of costs.-On dismissal of an involuntary bankruptcy petition, only such costs, counsel fees, expenses, and damages as are occasioned by the seizure and detention of the bankrupt's property can be recovered; the recovery of all other costs and expenses depending on their being brought within clause 18 of this section and General Order 34 (post, § 9614), which are merely declaratory of the general equity power over cost. In re Ward (D. C. 1913) 203 Fed. 769.

Petitioning and intervening creditors and alleged bankrupt may stipulate for an apportionment as between themselves of the costs and expenses, and a creditor may not then set off against the amount of expenses taxed against him his demand against the bankrupt. King Hardware Co. v. J. G. Christopher Co. (1915) 222 Fed. 224, 138 C. C. A. 54.

Customers of a bankrupt stockbroker, carrying stocks on a margin, are not entitled to any docket fee in reclamation proceedings. In re J. F. Pierson, Jr., & Co. (D. C. 1915) 225 Fed. 889.

A trustee in bankruptcy, bringing an action to recover stock alleged to have been fraudulently transferred by the bankrupt, and taking possession thereof as provided by Code Civ. Proc. Cal. § 510 et seq., held not entitled, as a part of his costs, to the expenses incurred in keeping and feeding the stock pending the action. Meyer v. Perkins (Cal. App. 1913) 130 P. 206, rehearing denied by Supreme Court, Id. 208.

Extra compensation to expert witnesses. above the statutory witness fee and mileage, cannot be taxed as costs or allowed against a losing party in a court of bankruptcy; and the court will not be bound to make such an allowance because counsel have SO agreed, especially where the 1oreement is not in writing. In re Carolina Cooperage Co. (D. C. 1899) 96 Fed. 604.

As to the expense of taking down and preserving testimony, it is held that, except where a stenographer is employed on the application of the trustee, as provided by section 38, cl. 5 (post, 9622), or there has been a stipulation of parties, or money has

been deposited for the expense, as provided by General Order in Bankruptcy No. 10 (post, § 9614), the referee cannot be allowed for the expense of a stenographer. In re Mammoth Pine Lumber Co. (D. C. 1902) 116 Fed. 731, 8 Am. Bankr. Rep. 651. In any event, the compensation allowed to stenographers will be scrutinized by the court, and reduced if deemed excessive. In re Ellett Electric Co. (D. C. 1912) 196 Fed. 400, 28 Am. Bankr. Rep. 453.

32.

Costs on appeal.-Where proceedings for review of an order of the court of bankruptcy are dismissed for want of jurisdiction, without any motion therefor, neither party will be allowed costs. Hutchinson v. Le Roy (1902) 113 Fed. 202, 51 C. C. A. 159, 8 Am. Bankr. Rep. 20. No costs should be allowed to either party where, on appeal against a trustee from an order in bankruptcy, such order is reversed on a ground not assigned or urged by the appellant. In re Dickson (1901) 111 Fed. 726, 49 C. C. A. 574, 55 L. R. A. 349, 7 Am. Bankr. Rep. 186.

Although a decree in bankruptcy is reversed on review in the circuit court of appeals, no costs should be allowed when the petition for review was delayed nearly six months, and the estate has probably deteriorated through the delay, and where further proceedings are necessary. In re Endlar (1911) 192 Fed. 762, 113 C. C. A. 48, 27 Am. Bankr. Rep. 758.

Where an appeal is taken from an order overruling respondent's demurrer to a bill of complaint brought by the trustee in bankruptcy, and pending the appeal the bill is voluntarily dismissed by the complainant, on leave of court, without prejudice, and at his own cost, thereby making necessary the dismissal of the appeal, he should be required to pay the costs on appeal. re Orman (1901) 107 Fed. 101, 46 C. C. A. 165, 5 Am. Bankr. Rep. 698.

In

33. Persons entitled to costs.-Where a petition for adjudication in involuntary bankruptcy is contested, costs will be awarded to the successful party, that is, to the alleged bankrupt if he defeats the petition, or to the petitioning creditors if the adjudication is made. In re Sheehan (D. C. 1873) 8 N. B. R. 353, Fed. Cas. No. 12,738.

The bankrupt is entitled to his disbursements in proceedings to obtain his discharge. In re Dibblee (D. C. 1870) Fed. Cas. No. 3,887. If the bankrupt advances the money necessary to pay for the issuance and publication of notices of his application for discharge, he is entitled to repayment of the same out of the estate. Hatcher (D. C. 1906) 145 Fed. 658, 16 Am. Bankr. Rep. 722. In a proceeding to revoke or annul the discharge of a bankrupt, costs may be awarded to

In

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the prevailing party. In re Holgate (D. C. 1876) Fed. Cas. No. 6,601.

A trustee in bankruptcy is entitled to costs on bringing to a successful conclusion an action to recover assets of the bankrupt, set aside an unlawful assignment or transfer of his property, avoid a fraudulent conveyance, or recover an illegal preference. Ommen v. Talcott (D. C. 1909) 175 Fed. 261, 23 Am. Bankr. Rep. 572; Stackhouse v. Holden (1901) 66 App. Div. 423, 73 N. Y. Supp. 203; Clowe v. Seavey (1911) 74 Misc. Rep. 254, 131 N. Y. Supp. 817; Parker v. Travers (1908) 74 N. J. Eq. 812, 71 Atl. 612.

Claimants having claims against the estates of bankrupts must ordinarily establish them at their own expense, and they will not be allowed their costs and expenses out of the estate, unless where it appears that the defense made by the trustee was captious or unwarranted. In re Stewart (D. C. 1910) 178 Fed. 463, 24 Am. Bankr. Rep. 474. But see In re Waterloo Organ Co. (1907) 154 Fed. 657, 83 C. C. A. 481, 18 Am. Bankr. Rep. 752. Where issues in the bankruptcy proceedings, arising out of the involved conditions of the claims, were caused entirely by the methods of the creditor, the trustee should not be charged with costs. Dowse v. Hammond (1904) 130 Fed. 103, 64 C. C. A. 437.

On referee's finding for claimant, seeking to reclaim property from trustee in bankruptcy, allowance of costs and disbursements to claimant held within the referee's discretion. In re Reeves (D. C. 1915) 227 Fed. 711.

Costs in bankruptcy, to be paid out of proceeds of specific property covered by a lien before payment of the lien creditor, specified. In re Rauch (D. C. 1915) 226 Fed. 982.

In the case of proceedings taken by parties other than the trustee, such as judgment creditors, mortgagees, or other lien claimants, to set aside fraudulent conveyances, or otherwise to rescue or reclaim property alleged to belong to the estate in bankruptcy, the general rule is that they may be allowed compensation out of the estate for costs, expenses, and counsel fees, in so far as their efforts have inured to the benefit of the general creditors, in the way of creating or preserving a fund for distribution, but not otherwise. In re Lesser (D. C. 1900) 100 Fed. 433, 3 Am. Bankr. Rep. 815; In re J. C. H. Claussen & Co. (D. C. 1908) 164 Fed. 300, 21 Am. Bankr. Rep. 34; In re Dumahaut (D. C. 1879) 19 N. B. R. 394, Fed. Cas. No. 4,126.

A sheriff or other person who has had the custody of property of a bankrupt estate may be reimbursed for his expenses in caring for and preserving it. In re Fortune (D. C. 1869) 2 N. B. R. 662, Fed. Cas. No. 4,955; In re Williams (D. C. 1868) 2 N. B. R. 229, Fed. Cas. No. 17,705.

Where property of the bankrupt was attached within four months before the filing of the petition, it is error to require. as a condition of delivery of the attached property to the trustee, that he shall pay counsel fees and costs to the attorney for the attaching creditors and the costs of the attachment. In re Shoemaker (1913) 205 Fed. 113, 123 C. C. A. 345, 30 Am. Bankr. Rep. 349.

34. Persons, property, or funds liable for costs.-It is the duty of every one connected with the administration of the bankruptcy laws to make sure that no fees or charges, except those intended by the facts of Congress, are paid out of the estate. In re Metallic Specialty Mfg. Co. (D. C. 1914) 215 Fed. 937.

Where an alleged bankrupt appealed from an involuntary adjudication, he was not entitled to an order requiring a receiver of his property to pay the costs of the transcript and the printing of the record out of the proceeds of the bankrupt's estate in his hands, merely because the bankrupt was without the means to bear such expenses. Herman Keck Mfg. Co. V. Lorsch (1910) 179 Fed. 485, 103 C. C. A. 65, 24 Am. Bankr. Rep. 705.

Under a stipulation between petitioning and intervening creditors and the bankrupt for apportionment of expenses, including allowances to accountants, the bankrupt held liable for its part of the allowances to the accountants. King Hardware Co. v. J. G. Christopher Co. (1915) 222 Fed. 224, 138 C. C. A. 54.

Since counsel fees, expenses and damages provided by section 3e (post, § 9587), on dismissal of involuntary proceedings, are for special services or damages occasioned by the wrongful taking of the property of an alleged bankrupt, such fees and damages are not taxable in the bankruptcy proceedings, but are recoverable in a suit on petitioners' bond. In re Wise (D. C. 1914) 212 Fed. 567.

Where a petition in bankruptcy is dismissed because it is found that the bankrupt was insane at the time of committing the alleged act of bankruptcy, the costs may be charged against the petitioning creditors. In re Ward (D. C. 1913) 203 Fed. 769, 29 Am. Bankr. Rep. 547.

Where an execution creditor intervenes and opposes the adjudication, on the ground that the debtor is not insolvent, but unsuccessfully, the costs of the proceeding, in so far as the same was rendered necessary by his opposition, may be taxed against such intervener, including the fees of witnesses summoned by him and of any witnesses summoned by the petitioning creditors whose examination would not have been necessary but for the intervention. In re Carolina Cooperage Co. (D. C. 1899) 96 Fed. 604.

Petitioning creditors who succeed in

procuring an adjudication of bankruptcy are entitled to be reimbursed out of the estate for their expenditures and to the allowance of a reasonable attorney's fee. In re Mitteldorfer (C. C. 1869) 3 N. B. R. 1, Fed. Cas. No. 9,675.

Where, on the application of creditors accompanying the petition in involuntary bankruptcy, property of the bankrupt is seized and held pending the adjudication, and the result is the securing or preserving for the estate of valuable otherwise property which would have been lost or dissipated, the petitioning creditors are entitled to reimbursement for their costs and expenses. In re Schwab (D. C. 1869) Fed. Cas. No. 12,498. But where, such a course having been taken, the petition is dismissed, the damages occasioned by the seizure and detention of the property are recoverable, not against the petitioning creditors generally, but against that creditor on whose application the property was seized. In re Ward (D. C. 1913) 203 Fed. 769, 29 Am. Bankr. Rep. 547.

Costs may be awarded against a particular creditor who has insisted on and procured an unnecessary and fruitless examination of the bankrupt in the hope of discovering concealed assets. In re Rozinsky (D. C. 1900) 101 Fed. 229, 3 Am. Bankr. Rep. 830. Or against one who has procured the appointment of a receiver, when such appointment proves to have been unauthorized or unnecessary. In re Wentworth Lunch Co. (C. C. A. 1911) 191 Fed. 821, 27 Am. Bankr. Rep. 515; In re Charles W. Aschenbach Co. (1910) 183 Fed. 305, 105 C. C. A. 517, 25 Am. Bankr. Rep. 502. Or one who has unsuccessfully opposed the bankrupt's application for discharge. In re Miers (D. C. 1912) 193 Fed. 288, 27 Am. Bankr. Rep. 870.

If on the appointment of a receiver no bond, or an inadequate bond, is given, the applicant for the appointment is nevertheless liable for the costs and expenses of the receivership. T. E. Hill Co. v. United States Fidelity & Guaranty Co. (1914) 107 N. E. 194, 265 Ill. 534, affirming judgment (1914) 184 Ill. App. 528.

Where, on re-examination of the allowance of certain claims against a bankrupt's estate, it was found on sufficient evidence that the claims were unsustainable, the referee properly required the claimant to pay the costs of the hearing, but he was not authorized to require that the claimant should also pay a fee to the trustee's attorney. In re Rome (D. C. 1908) 162 Fed. 971, 19 Am. Bankr. Rep. 820. And see In re Todd (D. C. 1901) 109Fed. 265, 6 Am. Bankr. Rep. 88. Even where the claimant succeeds in establishing his claim, as against opposition, the court will not allow him costs and attorneys' fees out of the estate. In re Coventry Evans Furniture Co. (D.