NOTICES.

§ 58. Notices to Creditors.-(a.) 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 applications 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.

(b.) 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 may be published as the court shall direct.

(c.) All notices shall be given by the referee, unless otherwise ordered by the judge.

Where the name of the bankrupt was Wm. D. Hill and the notice to creditors read "Wm. B. Hill" the variance was held not to be material. In re Hill, 1 Ben. 321; 12 Fed. Cas. 144.

A notice to creditors addressed "Levley, N. Y.," was not a notice to Lawrence J. Levley who resided in that city. In re Archenbrown, 11 N. B. R. 149; 1 Fed. Cas. 1084.

When the notice of a meeting of creditors is addressed to a creditor by the wrong name, he is not bound by the proceedings of such meeting. Anon., 1 N. B. R. 122; 1 Fed. Cas. 1012.

A sale of incumbered property without notice to the lien creditors was held to be void under the Act of 1867. Ex parte Drewry, 2 Hughes, 435; 7 Fed. Cas. 1074.

The publication of a notice to creditors under rules 5 and 21 in pursuance of the Act of 1867 is considered in the case cited. In re Robinson, 1 Ben. 270; 20 Fed. Cas. 973.

Where a notice of a meeting of creditors was duly published and mailed. the regularity of the proceedings is not affected by the failure of a creditor to receive it. In re Stetson, 4 Ben. 147; 22 Fed. Cas. 1316.

Where creditors failed to receive their notice in time to attend, and their presence might have changed the result the vote, the meeting may be reopened upon a prompt application. In re Spencer, 18 N. B. R. 199; 22 Fed. Cas. 914.

Where schedules are amended by the addition of the names of new creditors, a new warrant should issue to be served on such creditors, and they should receive notice containing the names of all the creditors. In re Perry, 1 N. B. R. 220; 19 Fed. Cas. 263.

The court of bankruptcy will set aside an order made without notice approving a schedule of exempt property, or confirming a report of sales, made on the day that the same were filed. In re l'eabody, 16 N. B. R. 243; 19 Fed. Cas. 35.

Under section 27 of the Act of 1867, notice of the second meeting of creditors was required to be sent to the creditors without respect to whether they had proved their debts. Thereupon the whole fund in the hands of the assignee could be distributed, in the absence of sufficient objections to such action. In re Mills, 7 Ben. 452; 17 Fed. Cas. 393.

If there are no assets, and no debts have been proved when the bankrupt applies for his discharge, the assignee must nevertheless give notice. Anon., 1 N. B. R. 122; 1 Fed. Cas. 1012.

Held, under section 17 of the amendment of 1874, that upon an application to set aside a composition, notice should be given to all creditors as well as the debtor. Ex parte Hamlin, 2 Low. 571; 11 Fed. Cas. 367.

The proof of a debt had been lost. It was held that the creditor was nevertheless entitled to a notice of the application for a discharge, and that the discharge must be refused until the proof is supplied and the notice given. In re Freidlob, 19 N. B. R. 122; 9 Fed. Cas. 817.

The marshal's return of service of notice to creditors is not conclusive, nor is the register's certificate as to the correctness of the inventory. In re Hill, 1 Ben. 321; 12 Fed. Cas. 144.

The return of the marshal to the warrant certified that he had "sent written or printed notices to the creditors named on the schedules, and herewith returned, which schedules were made up by him on the best information he could obtain in respect thereto, after diligent .search." Held sufficient. In re Adams, 5 Ben. 544; 1 Fed. Cas. 82.

The certificate of the clerk of the court that the copies of a notice were duly mailed to each creditor" was held to be sufficient evidence of the fact stated. In re Townsend, 2 Ben. 62; 24 Fed. Cas. 102.

A failure to publish the notice of a meeting of creditors in one of the designated papers, and an omission in the warrants of the names, residences and amounts of the debts of creditors, was held to be sufficient ground for setting aside the proceedings. In re Hall, 2 N. B. R. 192; 11 Fed. Cas. 201.

In the absence of fraud, all parties are chargeable with notice of the proceedings in bankruptcy. Barron v. Newberry, 1 Biss. 149; 2 Fed. Cas. 937.

The supreme court held, under the circumstances of the case, that notice

of proceedings in composition was notice of the original proceeding. Liebke v. Thomas, 116 U. S. 605.

The policy-holders of a life insurance company were, by its charter, entitled to vote for trustees, and to share in the profits. Proceedings in bankruptcy were set aside because the policyholders were not notified of the meeting of creditors. In re Atlantic M. L. I. Co., 9 Ben. 270; 2 Fed. Cas. 168.

PETITIONS.

§ 59. Who may File and Dismiss Petitions.— (a.) Any qualified person may file a petition to be adjudged a voluntary bankrupt.

(b.) Three or more creditors who have provable claims 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; 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.

(c.) Petitions shall be filed in duplicate, one copy for the clerk and one for service on the bankrupt.

(d.) 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 to or during such hearing a sufficient number shall join therein, the case may be proceeded with, but otherwise it shall be dismissed.

(e.) 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.

(f.) Creditors other than original petitioners 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.

(g.) A voluntary or involuntary petition shall not be dismissed by the petitioner or petitioners or for want of prosecution or by consent of parties until after notice to the creditors.

The statement in a petition that there was due to the petitioners the sum of $500 and upward was held to be sufficient under the Act of 1841. Ex parte Shouse, Crabbe, 482; 22 Fed. Cas. 27 (1842).

The petitioning creditor was the purchaser of a note which had been delivered by the debtors to the payee after it was due, and after the alleged acts of bankruptcy. It was held to be sufficient to support the petition. Ibid.

Where the petition sets forth the nature of the petitioner's debt, and avers that it is provable, the question then becomes one of law, and not of fact. Sigsby v. Willis, 3 Ben. 371; 22 Fed. Cas. 112.

An equitable demand was held to be sufficient to support a petition in involuntary bankrutcy under the Act of 1867. Ibid.

Two of the petitioning creditors were indorsers of notes given by the bankrupt. It was held that they were not creditors at the time of the filing of the petition, notwithstanding the notes had been dishonored, inasmuch as the holders had the first right to prove. In re Riker, 18 N. B. R. 393; 20 Fed. Cas. 795.

One of the petitioning creditors on a petition filed on the 19th of July declared on a note for $250 which fell due on the 23d of July. The court held that it was not a claim for $250, but for that sum less a rebate of four days' interest. Ibid.

Where the original petition is void for want of proper petitioners, it cannot be sustained by intervening petitions. Robinson et al. v. Hanway, 19 N. B. R. 289; 20 Fed. Cas. 1012.

Where the petitioning creditor was a bank, it was held that the president must have special authority to sign and verify the petition. Roche et al. v. Fox, 16 N. B. R. 461; 20 Fed. Cas. 1065.

A private bank, which was a partnership, was held to be incompetent to maintain a petition in involuntary proceedings against one of the members of the firm. Robinson et al. v. Hanway, 19 N. B. R. 289; 20 Fed. Cas. 1012.

The prosecution of an action by a creditor for the recovery of his debt is not a bar as to proceedings against the debtor in bankruptcy. In re Henderson, 9 Fed. Rep. 196.

Where an indorser's liability becomes fixed, such liability constitutes a debt due and payable from the indorser, which may be made the foundation of involuntary, as well as voluntary, proceedings. In re Nickodemus 2 Chi. Leg. News, 49; 18 Fed. Cas. 222.

A petition in bankruptcy may be supported by a debt secured in whole or in part. In re Stansell, 6 N. B. R. 183; 22 Fed. Cas. 1059.

A creditor whose debt is not yet due may maintain thereon a petition in bankruptcy. In re Ouimette, 3 N. B. R. 566; 18 Fed. Cas. 913 (1870).

A debtor had made an assignment for the benefit of his creditors, and certain creditors had agreed to assent if he would change the assignee. Held, that they were not estopped from filing a petition in involuntary bankruptcy. Spicer et al. v. Ward et al., 3 N. B. R. 512; 22 Fed. Cas. 931. It is not illegal for a debtor to solicit creditors to sign a petition for proceedings against him in involuntary bankruptcy. In re Bouton, 5 Saw. 427; 3 Fed. Cas. 1019.

A petition by a creditor in involuntary proceedings who has previously secured his claim by attachment will not be sustained. In re Hazenes, 4 Dill. 549; 11 Fed. Cas. 941.

A creditor whose claim is provable under the Act can file a petition in involuntary bankruptcy, notwithstanding his claim is not due. Linn et al. v. Smith, 4 N. B. R. 46; 15 Fed. Cas. 563.

The holder of a note not yet due may file a petition in involuntary bankruptcy. In re Alexander, 1 Low. 470; 1 Fed. Cas. 351.

The fact that the petitioner was the only creditor of the alleged bankrupt is no reason for the dismissal of the petition. Ibid..

Under the Act of 1867 it was held that a secured creditor might file a petition if his security fell short by $250 or more of the amount of his claim. Ibid.

When the bankrupt has counterclaims against the petitioning creditor in excess of such creditor's claim, the petition will be dismissed. In re Osage Valley v. S. K. R. Co., 9 N. B. R. 281; 18 Fed. Cas. 841.

A petitioner in involuntary bankruptcy set up a preference to himself as the act of bankruptcy on which an adjudication was asked. The court held that he could not maintain the proceedings without surrendering the preference. In re Rado, 6 Biss. 230; 20 Fed. Cas. 153.

The petitioning creditors had signed an agreement to give the debtors an extension, which was conditional on its receiving the signatures of all the creditors. Subsequently, other creditors attached the property of the debtors. It was held that the petitioning creditors were qualified to file a petition in involuntary proceedings. Ex parte Potts et al., Crabbe, 469; 19 Fed. Cas. 1199 (1842).

As a general rule, the oath of the petitioning creditor is accepted as sufficient proof of his right to institute proceedings; but it may be overcome by evidence disproving his claim. Ex parte Foster, 5 Law Rep. 406; 9 Fed. Cas. 507 (1842).

The debt of the petitioning creditor will not be inquired into as long as the adjudication of bankruptcy stands unrevoked. In re Fallon, 2 N.

B. R. 277; 8 Fed. Cas. 977.

One petition by a bankrupt does not bar a second petition where it appears that the second is based upon debts contracted subsequently to the time when the proceedings under the first were closed. In re Drisco, 14 N. B. R. 541; 2 Low. 430; 7 Fed. Cas. 1092, 1104.

A petitioner in voluntary proceedings could not proceed in forma pauperis under the Act of 1841, but was bound to pay the expenses incident to the prosecution of his petition. In re Greaves, 5 Law Rep. 25; 10 Fed. Cas. 1067 (1842).