Page:Federal Reporter, 1st Series, Volume 5.djvu/67

 ÏS BS BEAB. 55 �preccdes the action of the iudge in determinîng whether or not an order to show cause may properly Ibsus upon it; and the time of filing is not the time when the clerk itjresents it to the judge, but the time when it is lodged in the clerk's office ready to be presented to the judge. ThÏH petition must, therefore, be considered as having been filed at least as early as 12 o'clock on the eleventh of March, even if the withdrawal of the petition on the morning of that day operated to annul the proceeding of Saturday as a filing. Tt is urged that, under the circumstances shown, it was not presented to the clerk on the elieventh for filing, unless the judge should find it to be in such form as to authorize the issue of an order to show cause ; but I cannot find in the tes- timony any evidence of a qualified delivery to the clerk. �I think, also, it is very clear that by joining in the cred- itors' petition this crediter waived any lien or security which it may bave acquired by the levy, even if the petition should be held not to have been filed till 3 o'clock on the eleventh of March. The creditors -who can join in a creditors' petition are unsecured creditors only. Creditors whose debts are provable under the act must join tp the requisite number and amount. Eev. St. § 5021. Secured creditors may prove their debts in fuU, in which case they waive or abandon their security, or they may have the security valued and prove for the balance. Eev. St. § 5075. By the, petition this «reditor represented to the court that its debt was unsecured, that it was provable under the act, and that the aggregate of its debt and those of the other petitioners constituted the requisite number and amount of ail the unsecured debts of the alleged bankrupts. On the faith of this averment this «reditor and his co-petitioners obtained the adjudication of the bankrupts. This petitioner is obviously bound by this averment, and cannot now be heard to aver the contrary, especially for the purpose of gaining some advantage in the distribution of the estate over its co-petitioners. It is imma- terial if, as suggested on its behalf, there was the requisite number and amount without ineluding this debt. The .peti- tioner took its position theii as. an unsecured oreditor, and ����