It has been held that a petition which alleges that the debtor suffered creditors to obtain a preference through legal proceedings must specify the details of the transaction constituting the preference; 10 that a petition is defective for lack of certainty when it merely alleges that the debtor has, within four months last past, transferred large amounts of his property to one or more of his creditors with intent to prefer such creditors over his other creditors, without specifying the times, places, persons and circumstances of the preference;" that a petition is multifarious when it unites prayers for an adjudication in bankruptcy, for a provisional seizure of his property by the marshal, and for an injunction against the disposition of the property by attaching creditors and a receiver of a State court.12 It seems, however, that these objections are waived by a general denial and a demand for a trial by jury; 13 and that they can be cured by amendment.14 "The court may allow amendments to the petition and held, when a petition was filed on behalf of a partnership accompanied by separate petitions on behalf of each partner, that $25 should be deposited with each petition, In re Barden, 101 Fed. R. 553; but when a single petition was filed on behalf of the firm and of the individuals, that but one deposit need be made. In re Gay, 98 Fed. R. 870; In re Langslow, 98 Fed. R. 869. It has been held that the affidavit of the proposed voluntary bankrupt is not conclusive. In re Collier, 93 Fed. R. 191. But see Sellers v. Bell (C. C. A.), 94 Fed. R. 801. That when the circumstances, as, for example, the appearance for the petitioner of counsel not shown to act gratuitously, cast doubt upon the truth of the affidavit, the court may direct a reference to determine whether the bankrupt should be relieved from paying the fees. In re Collier, 93 Fed. R. 191. That if the bankrupt has enough exempt property to pay the fees, he will not be excused therefrom. In re Collier, 93 Fed. R. 191; In re Bean, 100 Fed. R. 262. But see Sellers v. Bell (C. C. A.), In re 10 In re Cliffe, 94 Fed. R. 354. 11 In re Nelson, 98 Fed. R. 76. 12 In re Ogles, 93 Fed. R. 426. See Mather v. Coe, 92 Fed. R. 333. 13 In re Cliffe, 94 Fed. R. 354. See Mather v. Coe, 92 Fed. R. 333. 14 Ibid. schedules on application of the petitioner. Amendments shall be printed or written, signed and verified, like original petitions and schedules. If amendments are made to separate schedules, the same must be made separately, with proper references. In the application for leave to amend, the petitioner shall state the cause of the error in the paper originally filed." 15 It has been held that a petition of voluntary bankruptcy may be withdrawn at any time before a creditor has proved a claim,1 provided all costs and fees of officers are paid.17 § 478. Process and notices to creditors.-"Upon the filing of a petition for involuntary bankruptcy, service thereof, with a writ of subpoena, shall be made upon the person therein named as defendant in the same manner that service of such process is now had upon the commencement of a suit in equity in the courts of the United States, except that it shall be returnable within fifteen days, unless the judge shall for cause fix a longer time; but in case personal service cannot be made, then notice shall be given by publication in the same manner and for the same time as provided by law for notice by publication in suits in equity in courts of the United States." The manner of serving subpoenas in suits of equity both personally? and by publication has been described in a preceding chapter of this book. "Courts of bankruptcy shall by order designate a newspaper published within their respective territorial districts, and in the county in which the bankrupt resides or the major part of his property is situated, in which notices required to be published by this act and orders which the court may direct to be published shall be inserted. Any court may in a particular 15 G. O. xi; In re Cliffe, 94 Fed. R. 354; In re Lange, 97 Fed. R. 197; In re Merwin, 95 Fed. R. 634; In re Nelson, 98 Fed. R. 76; In re Ogles, 93 Fed. R. 426; In re Miller, 104 Fed. R. 764; In re Kean, 2 Hughes, 322; s. C., Fed. Cases 7,630. As to the time when an amended petition is considered to have been filed, see In re Washburn, 99 Fed. R. 84. For a case where an amendment of the schedules was not allowed, see In re Moran, 105 Fed. R. 901. 16 In re Hebbart, 104 Fed. R. 322. 17 In re Salaberry, 107 Fed. R. 95. § 478. 130 St. at L 544, 551, § 18. 2 Supra, $$ 94, 95. 3 Supra, § 97. It has been held that where service is made upon him outside of the district, the court acquires no jurisdiction over the person of the bankrupt. In re Appel, 103 Fed. R. 931. For the proof requisite for an order of service by publication of notice to creditors, see In re Dvorak, 107 Fed. R. 76. case, for the convenience of parties in interest, designate some additional newspaper in which notices and orders in such case shall be published." "All process, summons and subpoenas shall issue out of the court, under the seal thereof, and be tested by the clerk; and blanks, with the signature of the clerk and seal of the court, may, upon application, be furnished to the referees."5 "Formal service of the subpoena may be waived, by a proper and authorized acceptance of service being entered thereon by the alleged bankrupt; but in the case of corporations, actual service of the writ obviates all question upon the right of a corporate official to accept service of process in a case attacking the existence of the corporation. The return-day having been thus fixed, then the case must remain in the clerk's office until the expiration of the ten days allowed to the bankrupt or any creditor to appear and contest the facts averred in the petition. A waiver on the part of the bankrupt of this period of time cannot deprive creditors of the right to appear in opposition to the petition, and until that time has elapsed it cannot be known whether a contest will or will not be made on behalf of creditors."6 "Creditors shall have at least ten days' notice by mail, to their respective addresses as they appear in the list of creditors of the bankrupt, or as afterwards filed with the papers in the case by the creditors, unless they waive notice in writing, of (1) all examinations of the bankrupt; (2) all hearings upon application for the confirmation of compositions or the discharge of bankrupts; (3) all meetings of creditors; (4) all proposed sales of property; (5) the declaration and time of payment of dividends; (6) the filing of the final accounts of the trustee, and the time when and the place where they will be examined and passed upon; (7) the proposed compromise of any controversy, and (8) the proposed dismissal of the proceedings. Notice to creditors of the first meeting shall be published at least once and may be published such number of additional times as the court may direct; the last publication shall be at least one week prior to the date fixed for the meeting. Other notices shall be published as the court shall direct. All notices 430 St. at L. 544, 554, § 28. 'G. O. iii. 6 In re L. Humbert & Co., 100 Fed. R. 439, 440, per Shiras, J. shall be given by the referee unless otherwise ordered by the judge."7 "Any member of a partnership, who refuses to join in a petition to have the partnership declared bankrupt, shall be entitled to resist the prayer of the petition in the same manner as if the petition has 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 case of debtors against whom adjudication of bankruptcy shall be made.” 2 998 § 479. Pleadings by the respondents in bankruptcy.— In involuntary bankruptcy, "the bankrupt, or any creditor, may appear and plead to the petition within ten days after the return date, or within such further time as the court may allow."1 "All pleadings setting up matters of fact shall be verified. under oath." "If it be averred in the petition that the creditors of the bankrupt are less than twelve in number, and less than three creditors have joined as petitioners therein, and the answer avers the existence of a larger number of creditors, there shall be filed with the answer a list under oath of all the creditors, with their addresses, and thereupon the court shall cause all such creditors to be notified of the pendency of such petition and shall delay the hearing upon such petition for a reasonable time, to the end that parties in interest shall have an opportunity to be heard; if upon such hearing it shall appear that a sufficient number have joined in such petition, or if prior 730 St. at L. 544, 561, § 58. 8 G. O. viii. See In re Murray, 96 Fed. R. 600; In re Russell, 97 Fed. R. 32; In re Altman, 95 Fed. R. 263. § 479. 130 St. at L. 544, 551, § 18. The default of the bankrupt does not to or during such hearing a sufficient number shall join therein, the case may be proceeded with, but otherwise it shall be dismissed." The form of the answer denying insolvency and the commission of the alleged act of bankruptcy is prescribed by the General Orders. It has been held that the creditors of a voluntary bankrupt cannot file answers to his petition." 480. Interlocutory orders, warrants, injunctions, receivers and arrests.-"A judge may, upon satisfactory proof, by affidavit, that a bankrupt against whom an involuntary petition has been filed and is pending has committed an act of bankruptcy, or has neglected or is neglecting, or is about to so neglect his property that it has thereby deteriorated or is thereby deteriorating or is about thereby to deteriorate in value, 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 damages as he 330 St. at L. 544, 561, § 59. 4 Form VI. It has been held that an answer must follow this form, and that if it responds to multifarious matter in the petition or is unnecessarily defensive, it must be prepared in the official form and refiled as of the original date; the original answer, however, remaining on file. Mather v. Coe, 93 Fed. R. 333. Contra, In re Paige, 99 Fed. R. 538. Cf. Bray v. Cobb, 91 Fed. R. 102. It has been held that an issue as to the sufficiency of an answer cannot be raised by demurrer; but that the creditors should then set the case down for hearing on the petition and answer according to the rules of equity prac tice. Goldman v. Smith, 93 Fed. R. 182. An allegation in an answer that the petitioners at the time of the commission of the alleged act of bankruptcy did not have provable claims which amounted, in excess of the value of securities held by them, to five hundred dollars, does not traverse an allegation in the petition, in accordance with the official form, that the petitioners have provable claims to that amount. In re John A. Etheridge F. Co., 92 Fed. R. 329. It is no defense to a petition in involuntary bankruptcy that the petitioners had previously agreed to release the debtor upon payment of one-half of their claim, when they have not been paid, and one-half of their claims exceed the jurisdictional amount. Simonson v. Sinsheimer (C. C. A.), 95 Fed. R. 948. Nor is the motive of the creditors material. In re Simonson, 92 Fed. R. 904; but see In re Harper & Bros., 100 Fed. R. 266. An answer signed in the name of a corporation by its president is presumed to be filed by the authority of the corporation; and it has been held that none but the corporation, its stockholders and its creditors can claim that it was not authorized. In re Columbia R. E. Co., 101 Fed. R. 965. 5 In re Jehu, 94 Fed. R. 638. |