Page:Federal Cases, Volume 31, Part 1.djvu/128

 247 (§95) the jurisdictional amount. — In re Skelley, Case No. 12,921. All the creditors joining in a petition need not file proofs of debts.— In re Philadelphia Axle Works, Case No. 11,091. § 96. — What demands are included in computation. Costs of attachment proceedings do not con- stitute a demand against a debtor which can be included in estimating the amount of his provable debts,— In re Hatje, Case No. 6,215. In computing the quorum of creditors, debts secured and debts barred by the statute must be eliminated, and all offsets due the debtor de- ducted.— In re Bouton, Case No. 1,706. Secured creditors or those claiming liens are not counted in determining whether the req- uisite number of creditors have joined in the petition. Act June 22. 1874.— In re Frost, Case No. 5,134; In re Green Pond R. Co., Id. 5,786; In re Crossette, Id. 3,435. The claim of a creditor on a bond, the sure- ties on which have been indemnified by mort- gage, is not a secured claim, and should be counted in computing the legal quorum of pe- titioning creditors.- In re Lloyd, Case No. 8,- 429. An indorsed promissory note is not a secured claim, within the meaning of Rev. St. § 5075 (Act 1867).— In re Broich, Case No. 1,921. A secured creditor may be counted as having a provable debt if he reasonably releases his security before the hearing and decision as to a quorum. — In re Crossette, Case No. 3,435. The act of joining in a creditors' petition by a secured creditor, without reference to the security, is a waiver of such security. — In re Broich, Case No. 1,921. Creditors fraudulently preferred are not to be counted in estimating the number and val- ue of creditors who must join in the petition (Act 1867, § 39, as amended Act 1874, S 12).— Clinton V. Mayo, Case No. 2,899; In re Currier, Id. 3,492; In re Israel, Id. 7,111. Attachment creditors who acquired their liens within four months are not to be reckon- ed in computing the proportion of creditors who must unite in the petition. — In re Scraf- ford. Case No. 12,556, reversing Id. 12.557; In re Jewett, Case No. 7.305. CONTRA, see In re Broich, Case No. 1,921. A party may purchase a claim in good faith, in order to join in an involuntary petition, and make the necessary number. — In re Woodford, Case No. 17,972. If such sale of a claim is void for fraud or want of consideration, the claim is to be deem- ed to belong to the assigner, and will be so treated in determining whether the requisite creditors have joined in the petition. — In re Woodford, Case No. 17,972. An indorser of the bankrupt's paper, who has, before the filing of the petition, become absolutely liable to the holders, by due notice of dishonor, is not a creditor of the bankrupt at the time of such filing. — In re Riker, Case No. 11,833. Where an indorser pays an indorsee of a note pending bankruptcy proceedings against the maker, the indorsee is no longer a creditor of the maker, and the indorser becomes subro- gated to the indorsee's rights.— In re Broich, Case No. 1,921, '''S 97. Time to join in petition.''' Twenty days will be allowed pending investi- gation of the sufficiency of the bankrupt's list of creditors for other creditors to join in the petition for adjudication. — In re Bullock, Case No. 2,130. BANKRUPTCY, II. (C), 4. [Fed. Cas. Digest.J {§ 98) 248 Creditors may unite in the proceedings any time before the judicial ascertainment, made on notice to creditors, that the requisite number and amount have not joined. Rev. St. § 5021, as amended Act June 22, 1874, § 12.— In re Frisbee, Case No. 5,129. Where the ascertainment as to whether the requisite number and amount of creditors have joined is not made upon reasonable notice to the creditors, the power to grant time for oth- er creditors to join is not limited by Act June 22, 1874, § 12.— In re Rebmeister, Case No. 11,- 623. Petitioning creditors will be allowed 10 days further time, in Which to obtain the consent of others to join in the petition. — In re California Pac. R. Co., Case No. 2,315. § 98. — Hearing and determination. Where a question is made as to whether a sufficient number of creditors have joined in an involuntary petition in bankruptcy, the case may be referred to a register or commissioner to examine the proofs and report.— In re Sar- gent, Case No. 12,361. On a denial by the debtor that the requisite number and amount of creditors have joined, a reference will be ordered to ascertain the fact, on 10 days' notice to all creditors, on which ref- erence the creditors have the affirmative of the issue.— In re Hymes, Case No. 6,986. Upon a reference to a register to determine whether or not there is a legal quorum of pe- titioning creditors, he should return with his report lists of the claims counted and rejected. —In re Lloyd, Case No. 8,429. In determining whether the petitioners rep- resent one-third of all the debts provable, the bankruptcy court may examine a petition for an injunction filed with the petition in bank- ruptcy.— In re California Pac. R. Co., Case No. 2,315. An affidavit of debtors admitting that the petition is presented by the requisite creditors accompanying a petition for involuntary bank- ruptcy is no part thereof, but is evidence of good faith in admissions by bankrupts on which the adjudication was founded, and any examination of the facts adjudged by the court is forbidden unless fraud is alleged. — In re Duncan, Case No. 4,131. The allegation and proof as to the requisite number of creditors joining in the petition can- not be waived by the debtor. — In re Scammon, Case No. 12,427. The petition will be dismissed on motion without requiring the debtor to file a schedule, where it appears that the petitioning creditors knew that they did not constitute the requisite number of creditors, under Act .Tune 22, 1874, —In re Scammon, Case No. 12,429. On such motion the court will hear affidavits in evidence offered by either party, and may order an examination of the persons verifying the petition. — In re Scammon, Case No. 12,429. Since the amendatory act of June 22, 1874, a petition by a single creditor will not be sustain- ed, if it appears that he did not have good rea- son to believe that he constituted the requisite portion of the creditors. — In re Scammon, Case No. 12,428. Affidavits are admissible to show that a sin- gle creditor, filing a petition, had good reason to believe that he did not constitute the requi- site proportion of creditors (Act June 22, 1874). — In re Scammon, Case No. 12,428. The bankruptcy court may inquire into the value of securities held by creditors, to deter- mine whether the debts due petitioners are of the amount required, and that a secured credit- or has a provable debt. - In re California Pac. R. Co., Case No. 2,315.