Page:Federal Reporter, 1st Series, Volume 9.djvu/212

 IN BB HENDERSON. 197 �petition in bankruptcy, the petitioning crediter began a civil action against the debtor for the recovery of his debt, and had prosecuted the same to judgment, thereby securing a lien upon the defendant's property; and alleges that, by reason thereof, the petitioner is estopped from prosecuting this proceeding. To this defence a gen- erai demurrer is interposed. �I think the demurrer is well taTcen. Bankruptcy proceedingg are not instituted for the recovery of the creditors' debt, but to secure a distribution of the debtor's property to all his creditors. Therefore, the commencement, by the crediter, of an action for the recovery of the debt, is not a bar to a proceeding, under the bankrupt law, to declare the debtor a bankrupt. As to what effect, if any, the lien obtained by the crediter in such action is to have against other cred- itors it is not necessary now to decide. The matters set up do not eonstitute a bar to the proceeding for an adjudication of bankruptcy, and the demurrer must be sustained. �A motion bas been made for leave to amend the petition. The original petition, filed in 1878, set out the conveyance of certain premises by the debtor to his -wife through a trustee, and charged that the same was made without consideration and with intent to delay, hinder, and defraud his creditors, and to defeat the operation of the bankrupt act. It also charged a transf er and conveyance of certain personal property to Ayres McCreary, with the same intent. The amendment proposed sets out the same conveyances, but charges that the first, to the debtor's wife, was made upon the pretended consideration of an indebtedness to her, and with intent to prefer her and to defraud, etc., as in the original petition ; and that the second, to Ayres McCreary, was made with intent to prefer him and to de- fraud, etc. The amendment does not allege what can properly be called a new act of bankruptcy. The act was the transfer of the property. The amendment proposed simply charges a new intent, and should be allowed. �Finally, there is an application on the part of other creditors to join as petitioning creditors. This proceeding was begun March 16, 1878, and it appears that the petitioning crediter does not eonstitute the requisite one-fourth in number and one-third in amount of the alleged bankrupt's indebtedness. It is claimed that the requisite number and amount is a jurisdictional fact, and that that require- ment not having been fulfilled before the repeal of the bankrupt law, the court has no power to permit others to join or to proceed further ��� �