Page:Federal Reporter, 1st Series, Volume 5.djvu/66

 6e FEDERAL REPORTER. �a memorandum thereon of certain defeets in the averments and the verification of the petition. On the morning of the eleventh of March the attorney of the petitioning creditors took the petition from the clerk's office and caused these defeets to be supplied, and returned the petition reverified to the clerk's office before noon on that day. On the same day, at 20 minutes after 1 o'clock in the afternoon, the execution on this creditors' judgment was put in the hands of the sher- ifif for service, and îrom that honr it is claimed that the lien of the execution attached to the goods -which have since been sold. The petition came again before the judge on the eleventh of March, and on that day he directed the issue of an order to show cause against the alleged bankrupt. At the time the petition was returned by the judge to the clerk, it was marked by the clerk: "Filed March 11, 18?8, at 3 o'clock p. M." This creditor gave authority to the attorney for the petitioning creditors to present and prosecute the peti- tion in its behalf with other creditors, and il had not revoked this authority on the eleventh of March, 1878. The cred- itors' petition alleged that the petitioners "believe and allege the fact to be that they constitute at least one-fourth in num- ber of ail the creditors of the said I. Bear & Sons, whose claims exceed $250, and that the aggregate of ihe debts due by the said I. Bear & Sons to your petitioners, provable under the Eevised States and unsecured, amount to at least one- third of ail the debts of the said I, Bear & Sons provable under the Eevised Sta tûtes." �The first objection made to this claim is that the creditera* petition had been filed within the meaning of the bankrupt law before the levy, and that, therefore, this creditor acquired no lien thereby. I think this objection is well taken. It is evident from the statute that the commencement of a bank- ruptcy proceeding, upon which event the property, by rela- tion back, passes to the assignee subsequently appointed, is the filing of the petition. A presentation of a petition to the clerk for the action of the court is, I think, to be considered a filing, whether the clerk then marks it filed or not. Eev. St. § 5024, evidently implies that the filing ����