Year: 1876

VrOCeCdInEB q
clearly invited by the statute to make such admission
II the adm ssion made in good faith and he s
invited TO do so on the ding OF the petition and before
the orfer 20 show Issued be served and
when he be advised Of the existence Of the petition
only by Information communicated TO him otherwise
than sn the due course OF legal proceeding II on the
making OF admission the Court Is satisfied that tue ad
mission made good faith the Court il required TO
$50 adJudge-that is 20 adJudge sthat the requisite
number and amount OF creditors have pettioned and
Il enacted that such judgment shall be final and that
the matter shall proceed without further steps that
suecI Ihe requirements respect to the three classes
OF cases OF action the return day OF the order
10 show cause and the nnaity Of the Judgment is do
clared IN the same terms The admission In THIS
ana the Judgment thereon were IA due form No cues
ton is raised that subject What then, the effect
OF the statutes The Court is authorized 10 hnd TACT
10 De satshed or the existence Of ac oy evidence
placed before It. either sworn allegation IN the petit
ton, not denied by the debtor or the return OF the
order 10 show cause or evidence that added CREDITORS
coming ia after den al by the debtor such return
make up the requisite number and amount or ad-
mission by she debtor made in writing the ang
OF the petition, the Court be Satisfied that
such admission ~ made IN good faith. II the
lists and that judgment declared be hnal: and Il
Is enacted that the matter bankruptcy shall proceed
without further steps On that subject These pro-
visions significant aud Indicate that some eneciye
meaning must be attached TO the word nnaL It's
be the end OF all inquiry on the point whether
the required number and amount OF creditors have
Petloheu mere are 70 De no iurther steps on that
subject II the debtor denies the allegation the
OF the order TO show and hles list Of his


ors and the Court on notice TO the creditors and ON
evidence obtained by investigation, determines that
/
petitioned and then allows time for Others join
they do JOIN and sign the petition, and then the Court
determines and adjudges that with those joining the
required NUMBER have petitoned, that judgment Is TO
be hna and il Is not TO be permitted either TO the
debtor OF to any creditor thereafter to come In and
show that the Court erred and that the
wise. So If like Judgment 4 failure Of the debtor
10 deny the OF the order to show cause tho
allegation Of the petition as TO the number aud
amount OF creditors and 80, II a like judgment on an
admission by the debtor, the filing Of the petition,
that the requisite number and amount Of Creditors
ave be 81 ig
sary limit to the number of times the Court may be
required to reexamine the question thus declared TO be
finally adludged speak now OF an allegation merely
that the CouE in fact erred, and not Of allegation
OF fraud bad faith These provisions show that the
judgment is final not only as respects the debtor but
respects all his creditors II final as reSpects his
estate and all interested in It 1t is in the nature OF
judgment rem. in respect 20 the matter adjudged
by H. These provisions further show that the
requirement OF the statute that the petition shall be the
petition OF one-fourth in number and one-third in
anoupt OF the creditors, IS not Jurisdictonal
point, or quasi jurisdictIona point, in
such wise that, when there is proper allegation in
the petition as " the number and amount OF creditors
and when there is judgment of the Court that such
allegation Is true, the tact be re-examined either
by the Court which rendered the judgment a col
lateral proceeding, unless fraud be alleged and
jewell n Ma and Bkcy Reg 443. 444l.
70 to be entirely sound He says.-'st
cannot see that the number and amount OF petitioners
has anything TO do with the jurisdiction OF the Court
Congress has very carefully provided that want of
parties shall be taken advantage OF strictly da-
tory plea and disposed of in summary way, not tor





Court, but the suticiency OF the plaintiffs petition
which is very different thing II the Court should
decide wrongly that point Its decision would bind all
the land The District Court has jurisdiction in bank
rupcy person residing within the district
$500 of provable debts and when paper purports
TO be petition bankruptcy, and which alleges such
residence and Indebtedness Is filed, and order OF
notice has been duly served, there is and be
Jursdctonal fact remaining, II the residence and IN
debtedness to the extent OF $500 admitted The
Court may then proceed TO allow refuse amendments
anything else proper for a court do that has





parties" 4" In that case the petition was one in involun
tary bankruptcy and there had Indication
a resolution for composition had been passed II
objected that the petition fatally defective and
ruptcy could be said to be pending because averrcd
that the petitonng creditors constituted the requisite
number and amount of the creditors Of one of the
titiohng creditors instead OF the person proceeded
against The Court, while OF opinion that amend
ment was necessary, granted motion to amend in the
above particular.


In the present the petition contains all the
necessary jursdctiona allegations, and the further
at least in number OF all the creditors OF the debtors
copartners In business in the city OF New York !
debts exceed $40 and that the aggregate the pc
ttuber's debts, provabe under the statute amount
az least one third OF all the debts SO provable against
the debtors such copartners. 1t then proceeds
set out the nature and amounts OF the several claims
OF the petitioning creditors II nowhere appears
the petition what is the total number OF all the creditors
OF the debtors whose debts exceed $3.50 what the
of the debts provable against the debtors
go that the Court say, on inspecting the petition
and comparing the number Of petiuoning creditors
with any total number or the aggregate Of
the debts set forth as debts due to the
Of provable debts, that the requisite number and
amount Of creditors have not petitioned There is
allegation ID the petition that they have Hence such
allegation cannot be regarded as being over
borne controlled by any conflicting facts
appearing the face OF the petition This observation
applies 10 the error maniiesty clerical in emitting 70
iii the amounts OF the debts three instances and
the statements OF the claim Of Barring Brothers Co


As any facts forth in the affidavit OF Walter s
Carter presented 10 the Court with the petition 10
satisfy the Court that the admission OF the debtor
made In good iaith such afhvavt was no part OF the
petition The Court received IL evidence Of the good
faith OF the admission and acted upon it, and there-
upon upon and upon the petition adjudged that the
requisite number and amount had peti,ioned ANY in.
qury into the truth OF the facts set forth IN such
adavit or any exam nation OF the fact adudgcd by
the court is forbidden before shown, unless fraud
or bad faith be alleged


As 70 fraud or bad faith there is not the slightest
evidence that the pettioning creditors any OF them
in signing the petition containing the
allegations II does, did not in good faith,
believe those allegations TO be true, parties TO
any fraud imposition in respect OF any OF such ale
cations Nor there evidence that the debtors
signing the admission they did practice any fraud
imposition acted IN bad faith or that Mr. Carter did
making the statement contained IN his affidavit
Moreover, were 10 entertain the forbidden in
curry whether the petoning creditors did, when
the petition hed constitute the requisite number
and amount, the burden OF proof afer an adjudication
made on petition regular on It's face, would be on
those who apply TO set aside the adu cation, and
the evidence adduced on the question could not
hesitate say that the applicants had failed mako.
and that the petitonng creditors we're not suiclent In
number and amount


The aciudcation is further attacked on the ground OF
what called collusion by the debtors This couson
rs alleged consist the fact that the debtors gave
their ard and assistance TO the signing, presenting and
filing OF the petition died against them, and followed
that up by making the written admission and waiver
Of the order TO show before set forth.
They solicited OF their creditors join in the pc
tition against them, and they sent = circular note,
signed by themselves TO others OF their creditors say
ing that "a movement is now on foot among some OF
leading creditors 10 put us into involuntary hank
rupcy and ieel assured that this course will real
ze the most creditors and be the best for all
concerned and asking for the signature Of the credi
tor 70 an appended paper authorizing the attorneys
who represent the pcttioning creditors in these pro-
ccedinss TO sign the creditors name 20 petition
bankruptcy against the debtor IL Is alleged
thai the debtors thus favored, instead OF resist
ing what is under the statute, hostile
proceeding thus made u ostensiby hostile when
l. Al VIII he