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resist the prayer of the petition in the same manner as if the petition had been filed by a creditor of the partnership, and notice of the filing of the petition shall be given to him in the same manner as provided by law and by these rules in the case of a debtor petitioned against; and he shall have the right to appear at the time fixed by the court for the hearing of the petition, and to make proof, if he can, that the partnership is not insolvent or has not committed an act of bankruptcy, and to make all defenses which any debtor proceeded against is entitled to take by the provisions of the act; and in case an adjudication of bankruptcy is made upon the petition, such partner shall be required to file a schedule of his debts and an inventory of his property in the same manner as is required by the act in cases of debtors against whom adjudication of bankruptcy shall be made." 10

such relief, from his individual indebtedness. Re Russell, 97 Fed. 32, 3 Am. B. R. 91. It has been said that, in such a case, the petition should be treated as involuntary against the partner who fails to join. Medsker v. Bonebrake, 108 U. S. 66, 27 L. ed. 654, 2 Sup. Ct. 351; Re Murray, 96 Fed. 600, 3 Am. B. R. 601; Re Carleton, 115 Fed. 246, 8 Am. B. R. 270; Re Carleton, 131 Fed. 146, 12 Am. B. R. 475; but as voluntary so far as the creditors are concerned. Re Murray, 96 Fed. 600, 3 Am. B. R. 601; Re Carleton, 115 Fed. 246, 8 Am. B. R. 270; Re Carleton, 131 Fed. 146, 12 Am. B. R. 475. If the other partners, upon notification, join with the petitioners and confess themselves bankrupt, the proceeding is treated as absolutely voluntary. Re Murray, 96 Fed. 600, 3 Am. B. R. 601. Upon a petition paying for an adjudication of the bankruptcy of the firm alone, there can be no adjudication of the bankruptcy of any of the individual

Fed. Prac. Vol. III-70

members, although they are petition-
ers. Re Lenoir-Cross & Co., 226
Fed. 227; but the petition may be
amended so as to pray an adjudica-
tion of the bankruptcy of one or
more of the partners instead of
that of the firm and all of them as
originally prayed. Re Young, 223
Fed. 659.

9 It has been held that the part-
ners who fail to join can make no
defense to the petition, except that
. of solvency. Re Forbes, 128 Fed.
137, 11 Am. B. R. 787, but that
they are entitled to a jury trial
upon this issue. Re Murray, 96
Fed. 600, 3 Am. B. R. 601; Re
Forbes, 128 Fed. 137, 11 Am. B. R.
787. A creditor cannot intervene to
resist the adjudication, upon a peti-
tion filed by a single partner. Re
Carleton, 115 Fed. 246, 8 Am. B.
R. 270.

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In general, the bankruptcy law treats partnerships as distinct entities. It has been held that the firm alone may be adjudged a bankrupt, without any adjudication against the individual. members thereof, 12 but the partnership and the individual members may, in the same proceeding, be adjudicated bankrupts, and the partners may then receive a discharge, both individually and as members of the firm.13 It has been said that this cannot be done in an involuntary proceeding, except so far as concerns individual members who have not committed, nor participated in committing, one of the acts of bankruptcy.14 In the case of an involuntary petition, the act of bankruptcy charged need not have been committed by all the partners.15

C. C. A., 224 Fed. 97; Re Hansley & Adams, 228 Fed. 564. Where a partner files a petition in bankruptcy alleging that another member, whom he makes a partner, has refused to join, and praying that they both be adjudged bankrupts; and afterwards the other partner comes in, confesses himself a bankrupt and is so adjudged; it is a case of involuntary bankruptcy. Davis v. Stephens, 104 Fed. 235. As to amendments to petitions in partnership cases, see § 628, notes 3 and 23, infra.

11 Re Meyer, C. C. A., 98 Fed. 976, 979, 3 Am. B. R. 559; Re Perley & Hays, 138 Fed. 927, 15 Am. B. R. 54. It is treated as distinct from other partnerships composed in part of the same members. Fidelity Tr. Co. v. Gaskell, C. C. A., 195 Fed. 865.

12 Re Meyer, C. C. A., 98 Fed. 976, 979, 3 Am. B. R. 559; Strause v. Hooper, 105 Fed. 590, 5 Am. B. R. 225; Re Sanderlin, 109 Fed. 859, 6 Am. B. R. 384; Re Perley & Hays, 138 Fed. 927, 15 Am. B. R. 54. Contra, Re Carleton, 115 Fed. 246, 8 Am. B. R. 270; contra, Re Forbes, 128 Fed. 137, 138-140, 11

Am. B. R. 787, a strong opinion by Lowell, J. See Re Perlhefter, 177 Fed. 299; Francis v. MeNeil, 228 U. S. 695.

13 Re Springer, 199 Fed. 294; Re Meyer, C. C. A., 98 Fed. 976, 979, 3 Am. B. R. 559; Re Grant Bros., 106 Fed. 496, 5 Am. B. R. 837; Re Forbes, 128 Fed. 137, 11 Am. B. R. 787; Re Lenoir-Cross & Co., 229 Fed. 227; Re Hansley & Adams, 228 Fed. 564; Armstrong v. Norris, C. C. A., 247 Fed. 253.

14 Re Meyer, C. C. A., 98 Fed. 976, 979, 3 Am. B. R. 559. Where the application for a discharge from individual debt was made by a partner in the district where involuntary proceedings were pending, but not brought to a hearing; and the partnership had been adjudicated a bankrupt; a subsequent adjudication in another district upon bis voluntary petition was set aside and he was not permitted there to apply for a discharge. Armstrong v. Norris, C. C. A., 247 Fed. 253.

15 Re Forbes, 128 Fed. 137, 11 Am. B. R. 787; Yungbluth v. Slipper, C. C. A., 185 Fed. 773. Where, subsequent to the dissolution of an insolvent partnership, an execution

§ 619. Creditors who may petition for involuntary bankruptcy. "Three or more creditors who have provable claims 1 against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to five hundred dollars or over; 2 or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt." 8 "In computing the number of creditors of a bankrupt for the purpose of determining how many creditors must join in the petition, such creditors as were employed by him at the time of the filing of the petition or are related to him by consanguinity or affinity within the third degree, as determined by the common law, and have not joined in the petition, shall not be counted." 4 Creditors other than original petitioners

was levied upon the firm's property for a partnership debt, it was held that the failure to discharge such levy constituted an individual act of bankruptcy by the retiring partner. Holmes v. Baker & Hamilton, C. C. A., 160 Fed. 922. The filing of a petition in bankruptcy by one member of a firm against the others is not an act of bankruptcy on the part of the firm. Re J. M. Ceballos & Co., 161 Fed. 445.

§ 619. 1 The holder of a note upon which the bankrupt is an endorser may join in the petition after presentment of the note for payment, dishonor and due notice to the endorser or the performance of the other conditions requisite for the endorser's liability. Re Howell, C. C. A., 215 Fed. 1; Doty v. Mason, 244 Fed. 587.

2 Emerine v. Tarault, 219 Fed. 68. A petitioning creditor who is secured may after the petition is filed waive his security and if necessary amend his petition to allege such waiver. Morrison v. Rieman, C. C. A., 249 Fed. 97.

30 St. at L. 544, 561, § 59b.

430 St. at L. 544, 562, § 59e. A man's wife, or other members of his family, may join in the petition, if otherwise qualified. Re Novak, 101 Fed. 800; Perkins v. Dorman, 206 Fed. 858. Where the bankrupt's father, after the original petition was filed, brought a claim against him, which he assigned to a member of the bar for no consideration except services in its collection; it was held that the latter could not be allowed to intervene as a petitioner. Re Lewis F. Perry & Whitney Co., 172 Fed. 752, affirmed C. C. A. Re Folkstad, 199 Fed. 363, holding that where the debts were contracted in an occupation that was not exempt from bankruptcy, but the act charged as an act of bankruptcy was committed while the bankrupt was a member of an exempt class, he was not subject to an involuntary adjudication. Creditors, Doyle-Kidd Dry Goods Co. v. Sadler-Lusk Trading Co., 206 Fed. 813, or directors, officers and stockholders of a corporation, when creditors, may be petitioners against it.

First Nat. Bank v. Wyoming

may at any time enter their appearance and join in the petition, or file an answer and be heard in opposition to the prayer of the petition. The date of the filing of the petition is the time when

It

Valley Ice Co., 136 Fed. 466. Partnership creditors may petition against the individual partners, as well as against the firm. Re Mercur, 95 Fed. 634, 2 Am. B. R. 626; Re Hee (D. C. Hawaii), 13 Am. B. R. 8; Remington on Bankruptcy, $ 217. The fact that the bankrupt has solicited creditors to file a petition does not make them incompetent petitioners. Re Duplex Radiator Co., 142 Fed. 906, 15 Am. B. R. 324. But see Re Independent Thread Co., 113 Fed. 998, 7 Am. B. R. 704; Re Moench, C. C. A., 130 Fed. 685, 12 Am. B. R. 240; Remington on Bankruptcy, § 216. has been held that a creditor's claim may not be split up into sev eral claims, in order to create the requisite number of petitioners. Re Independent Thread Co., 113 Fed. 998; Re Tribelhorn, C. C. A., 137 Fed. 3, 14 Am. B. R. 491; Re Halsey El. Generator Co., 163 Fed. 118; Stroheim v. Lewis F. Perry & Whitney Co., C. C. A., 175 Fed. 52. See s. c., below. Re Lewis F. Perry & Whitney Co., 172 Fed. 744; and that, when a creditor has purchased several claims, he is to be treated as a single petitioner and a single creditor. Re Worcester Co., C. C. A., 102 Fed. 808; Re Burlington Malting Co., 109 Fed. 777, 6 Am. B. R. 369; Lowenstein v. McShane Mfg. Co., 130 Fed. 1007, 12 Am. B. R. 601; Remington on Bankruptcy, § 203. But see Re Bevins, C. C. A., 165 Fed. 434. The same rule applies to the purchase of a claim for the benefit of a previous creditor when the latter

and its representative will be counted as the same creditor. Emerine v. Tarault, 219 Fed. 68.

Cf.

5 30 St. at L. 544, 562, § 59f; Re Charles Town Light & Power Co., 183 Fed. 160. After a petition in involuntary bankruptcy has been filed and before adjudication, other creditors may intervene and join in the petition. Re John A. Etheridge Furniture Co., 92 Fed. 329. Neustadter v. Chicago Dry Goods Co., 96 Fed. 830. Such an intervention may be made by a single creditor, Re Culgin-Pace Contracting Co., 224 Fed. 245, or by creditors who at the time of their intervention would by the lapse of time since the filing of the original petition been barred from originating such a proceeding. Re Bolognesi, C. C. A., 223 Fed. 771. Where the original petitioners were estopped from instituting the proceeding other creditors may intervene, Re Freeman Cotting Coat Co., 212 Fed. 551; but in such a case it was held that they were barred by the lapse of four months between the act of bankruptcy and their intervention, Despres v. Galbraith, C. C. A., 213 Fed. 190. It has been said that a creditor who files a petition has a right to ask other creditors to intervene, when such intervention becomes necessary to preserve the proceedings. Smith, 176 Fed. 426; even if the original petitioners have done nothing after the return of the subpœna indorsed "not found," and the period of four months since the commission of the acts of bank

Re

the number of creditors must be counted, in order to determine how many must join in the petition. No creditors can join who

ruptcy therein alleged has expired. Re Stein, C. C. A., 105 Fed. 749. The court cannot compel creditors to join in a petition, Re Gillette, 104 Fed. 769; and is not required to notify those who have not joined of a dismissal of the petition for an insufficiency of petitioners, Ibid. But see 636, infra. It has been held that, as the purpose of the Bankruptcy Act was to give the majority of the creditors an option to refrain from instituting proceedings, persons who purchased claims after the filing of the petition in bankruptcy cannot intervene as petitioning creditors. Re Kehoe, C. C. A., 233 Fed. 415. It has been said that a creditor may intervene and join the original petitioners at any time prior to the dismissal of the petition. Re Lewis F. Perry & Whitney Co., 172 Fed. 744. It has been held that he cannot join after the decision of the court upon the issues raised by an answer to the petition. Re Tribelhorn, C. C. A., 137 Fed. 3, 14 Am. B. R. 491, but that they may do so after the court has announced its opinion that a motion to dismiss should be granted when no order of dismissal has actually been made. Re C. Jutte & Co., C. C. A., 258 Fed. 422.

6 Re Coburn, 126 Fed. 218, 11 Am. B. R. 212; Re Adams, 130 Fed. 788, 12 Am. B. R. 369; Moulton v. Coburn, C. C. A., 131 Fed. 201, 12 Am. B. R. 553. The date of the adjudication is the time to determine whether sufficient creditors

have joined. Moulton v. Coburn, C. C. A., 131 Fed. 201, 12 Am. B. R. 553; Re Plymouth Cordage Co.,

C. C. A., 135 Fed. 1000, 13 Am. B. R. 665; Remington on Bankruptcy, $ 201; Re Charles Town Light & Power Co., 183 Fed. 160. It has been held that small claims of a few dollars or a few cents, upon current accounts with grocers and small tradesmen should not be counted. Re Blount, 142 Fed. 263, 16 Am. B. R. 97. Claims purposely left unpaid in order to bring the number of creditors up to twelve. Re Burg, 245 Fed. 173. The purchaser of a claim after the filing of the petition cannot be counted in addition to his assignor who retains another claim still unassigned. Emerine v. Tarault, C. C. A., 219 Fed. 68. When an assignee, for the benefit of creditors, bought with the funds of the estate the claims of several creditors, and then reassigned them to others in order to increase the number to more than twelve; it was held that they were extinguished by the purchase and could not be counted. Leighton v. Kennedy, C. C. A., 129 Fed. 737, 12 Am. B. R. 229. It has been said that the claims of creditors who have received preferences are to be counted, if necessary, to sustain the jurisdiction, Boston West Africa Trading Co. v. Quaker City Morocco Co., C. C. A., 261 Fed. 665. Remington on Bankruptcy, § 205, and citations; but are to be excluded if they defeat it, Stevens v. Nave-McCord Co., C. C. A., 150 Fed. 71, 17 Am. B. R. 610; Leighton v. Kennedy, C. C. A., 129 Fed. 737, 12 Am. B. R. 229; Re Blount, 142 Fed. 263, 16 Am. B. R. 97; Remington on Bankruptcy, § 205.

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