Page:Federal Reporter, 1st Series, Volume 5.djvu/65

 IN EE BEAE. '- 53 �On the ground, therefore, of a failure to prove the non- existence of firm assets,-the petitioners' application to share pari passu in the individual estate must be denied. �Petition dismissed. ���In re Bbab and others, Bankrupts. �(District Court, S. D. New York. December, 1880.) �1. Date of Filino Petition— Rev. 8t. 5024 — Sbcdred I)ebt of Pkti- �TIONING CliEDITOB — WaiVEU. �A petition for adjudication in bankruptcy is to be deemed as flled wlthin the meaning of Kev. St. } 5024, from the time it is presented to the clerk for the action of the court. The time of filing does not date from the time when the clerk presents it to the judge for his action as to issuing an order to show cause. �A secured crediter, who joins in à creditors' petition, thereby repre- gents himself as an unsecured crediter, and must be hëld to haVe ■waived or abandoned his security ; . and his petition for payment of judgment from the proceedg of property sold by the assignee in bank- ruptcy, on the ground that he had made a levy of his execution pribr to the filing of the creditors' petition, must be denied. ' �It is immaterial that the creditor's signature was not necessary *o make up the number of creditors and amount required by the stat- ute. �George Bell, for petitioner. �F. W. Hendricks, for assignee. �Croate, D. J. This is an application by a creditor, Holmes, Booth & Haydens, a manuf acturing corporation, for payment of a judgment recovered by it before the bankruptcy out of the proceeds of the property sold by the assignee. The property was sold under the order of the court, free from the claim of this creditor, and it is now insisted that at the time of the filing of the petition it had a lien by levy of exe- cution on the property. The material f acts are as follows : On the ninth day of March, 1878, a creditors' petition, in which this creditor joined, was presented by the attomey for the petitioning creditors to the clerk of this court. It was by the clerk on the same day laid before the judge, who made ����