under the seal thereof, and be tested by the clerk; and blanks, with the signature of the clerk and seal of the court, may, upon application, be furnished to the referees."2 Service of the subpœna may be waived 3 but such waiver does not deprive creditors of the right to ten days' notice.4 respective territorial districts, and in the county in which the bankrupt resides or the major part of his property is situated, in which notices required to be published by this act and orders which the court may direct to be published shall be inserted. Any court may in a particular case, for the convenience of parties in interest, designate some additional newspaper in which notices and orders in such case shall be published." A subpœna may thus be served when the bankrupt has been a resident of the district for the greater part of six months before the filing of the petition and cannot then be found therein. Hills v. F. D. McKinniss Co., 188 Fed. 1012. The omission from the order of publication of a recital that "the subpoena, ' should be served by publication of the order, together with the subpœna,' "" was held to be no ground for setting aside the adjudication. Hunter, Walton & Co. v. J. G. Cherry Co., C. C. A., 247 Fed. 458. Service by publication is void when the order does not designate a time for appearance and such order is not published, although there is a publication of the citation. Sidney L. Bauman Diamond Co. v. Hart, C. C. A., 192 Fed. 498. It has been held that, where service is made upon the alleged bankrupt without the district, the court acquires no jurisdiction over his per who is a member of, or resident in, the bankrupt's family, that is sufficient. Re Norton, 148 Fed. 301. Where the alleged bankrupt is a hotel keeper and usually resides there, it is sufficient service to leave the subpoena and petition with the clerk at the hotel. Re Risteen, 122 Fed. 732. In such cases, there is no need of publication. Re Norton, 148 Fed. 301. A foreign corporation may be served by service upon the State commissioner of corporations within the district, where he is duly appointed attorney to receive service for the corporation. Re Magid Hope Silk Co., 110 Fed. 352. The failure to serve the subpœna before the return day does not terminate the proceedings; but the court has the power to grant an alias subpoena. Re Stein, C. C. A., 105 Fed. 749; Gleason v. Smith, Perkins & Co., C. C. A., 145 Fed. 895. 2 General Order III. For the proof requisite for an order of serv ice by publication of notice to creditors, see Re Dvorak, 107 Fed. 76. 3 Re L. Humbert Co., 100 Fed. 439, 440, per Shiras, J. It has been held that, when the bankrupt files an answer upon the merits and takes the stand to prove facts, therein alleged, he waives all objections to the manner of service although a motion to dismiss the petition for a defect in service has previously been filed. Re Smith, 117 Fed. 961. 4 Re L. Humbert Co., 100 Fed. 439, 440. "a. Creditors shall have at least ten days' notice by mail, to their respective addresses as they appear in the list of creditors of the bankrupt, or as afterwards filed with the papers in the case by the creditors, unless they waived notice in writing, of (1) all examinations of the bankrupt; (2) all hearings upon applications for the confirmation of compositions; (3) all meetings of creditors; (4) all proposed sales of property; (5) the declaration and time of payment of dividends; (6) the filing of the final accounts of the trustee, and the time when and the place where they will be examined and passed upon; (7) the proposed compromise of any controversy; (8) the proposed dismissal of the proceedings, and (9) there shall be thirty days' notice of all applications for the discharge of bankrupts. b. Notice to creditors of the first meeting shall be published at least once and may be published such number of additional times as the court may direct; the last publication shall be at least one week prior to the date fixed for the meeting. Other notices may be published as the court shall direct. c. All notices shall be given by the referee, unless otherwise ordered by the judge."5 5 30 St. at L. 544, 561, § 58a, as amended 36 St. at L. 838. Where after a petition of involuntary bankruptcy was filed, one of voluntary bankruptcy was presented, it was held that notice of the latter should be given to the former petitioners before an adjudication. Re Dwyer, 112 Fed. 777. Notice to the creditors of an application for an adjudication of involuntary, Re Billing, 145 Fed. 395, or of voluntary bankruptcy is not required, 30 St. at L. 544, 551, § 18; unless a petition for involuntary bankruptcy has been previously filed in the same or another district in which case notice of the application for an adjudication upon, the voluntary petition should be given to the former petitioning creditors, Re Dwyer, 112 Fed. 777; International Silver Co. v. New York Jewelry Co., C. C. A., 233 Fed. 945; Re Continental Coal Corp., C. C. A., 238 Fed. 113. But see Re Vanoscope Co., C. C. A., 233 Fed. 53. Any member of a partnership, who refuses to join in a petition to have the partnership declared bankrupt, shall be entitled to resist the prayer of the petition in the same manner as if the petition has been filed by a creditor of the partnership, and notice of the filing of the petition shall be given to him in the same manner as provided by law and by these rules in the case of a debtor petitioned against; and he shall have the right to appear at the time fixed by the court for the hearing of the petition, and to make proof, if he can, that the partnership is not insolvent or has not committed an act of bankruptcy, and to make all defenses which any debtor proceeded against is entitled to take by the provisions of the act; and § 630. Pleadings by the respondents in bankruptcy. In involuntary bankruptcy, "the bankrupt, or any creditor, may appear and plead to the petition within five days after the re in case an adjudication of bankruptcy is made upon the petition, such partner shall be required to file a schedule of his debts and an inventory of his property in the same manner as is required by the act in case of debtors against whom adjudication of bankruptcy shall be. made. General Order VIII. See Re Murray, 96 Fed. 600; Re Russell, 97 Fed. 32; Re Altman, 95 Fed 263. Where a non-resident of the district afterwards alleged to be a partner was not originally joined there can be no adjudication against him until he has been given due notice of the proceeding and afforded an opportunity to answer. Re J. & M. Schwartz, 204 Fed. 326. § 630. 1 Re Cohn, 220 Fed. 956; Re Gibney Tire & Rubber Co., 241 Fed. 879. For a case where the status of the respondent as a creditor was held to be conceded, see Johansen Bros. Shoe Co. v. Alles, C. C. A., 197 Fed. 274. A judgment creditor who recovered his judgment within the period of four months may answer the petition. Re Carey, 254 Fed. 688. It has been held that, when a petition for involuntary bankruptcy alleged that a creditor has obtained an unlawful preference, he may be allowed to intervene and defend; Goldman v. Smith, 93 Fed. 182; and that the adjudication in bankruptcy is then conclusive proof of such a preference, Re American Brewing Co., C. C. A., 112 Fed. 752; but that he is not obliged to do so. Gratiot County State Bank v. Johnson, 249 U. S. 246; and if he does not the adjudication will not affect his rights. Ibid. That petition to vacate an involuntary adjudication of bankruptcy can be maintained only by the bankrupt or by a creditor with a provable claim, not by a mere equitable lienor upon property claimed to belong to the bankrupt's estate. Re Columbia Real Estate Co., C. C. A., 112 Fed. 643. A creditor cannot intervene to oppose a voluntary petition of bankruptcy. Hanover Nat. Bank V. Moyses, 186 U. S. 181, 191, 46 L. ed. 113; Re Jehu, 94 Fed. 638, 2 Am. B. R. 498; Re Ives, C. C. A., 113 Fed. 911, 7 Am. B. R. 692; Remington on Bankruptcy, § 43; not to oppose a petition by partners for an adjudication of bankruptcy, even when one or more of the partners refuse to join. Re Carleton, 115 Fed. 246; Remington on Bankruptcy, §§ 43, 76. That a person who is not a member of a bankrupt firm, although named as such in the petition, cannot object to the adjudication of the firm and the petitioning partner as bankrupt. Re Fook Woh & Co., 232 Fed. 483. Stockholders may intervene to oppose a petition of involuntary, Ogden v. Gilt Edge Consol. Mines Co., 225 Fed. 723; and even one of voluntary bankruptcy. Zeitinger v. Hargadine-McKittrick Dry Goods Co., C. C. A., 214 Fed. 719, reversing 244 Fed. 711. It is the safer practice for them to comply with Equity Rule 27, supra §§ 145, 258c; but they need not always do so. Ogden v. Gilt Edge Consol. Mines Co., 225 Fed. 723. A receiver ap turn day, or within such further time as the court may allow.' It has been held that the creditors of a voluntary bankrupt cannot file answers to his petition; nor dispute the insolvency.5 It has been held that an answer must follow the prescribed form, and that if it responds to multifarious matter in the petition or is unnecessarily defensive, it must be prepared in the official form and refiled as of the original date; the original answer, however, remaining on file.6 "All pleadings setting 2 In computing the time, the first day must be excluded and the last day included, Day v. Beck & Gregg Hardware Co., C. C. A., 114 Fed. 834. The previous filing of a defective pleading does not cut off the right to file a proper pleading within the time. Ibid. It has been held that one day's time, when allowed by the court for the filing of an answer to an amended petition, was insufficient. Lockman v. Lang, C. C. A., 132 Fed. 1. 330 St. at L. 544, as amended 32 St. at L. 279, § 18b. Where the time has expired an answer cannot be filed without leave of the court. Re Mutual Mercantile Agency, 111 Fed. 152. It has been said that such leave should not be given ex parte and that notice should be given to all creditors who have appeared in the proceeding. Re D. F. Herlehy Co., 247 Fed. 369. See Re First Nat. Bank of Belle Fourche, C. C. A., 152 Fed. 64; Blackstone v. Everybody's Store, C. C. A., 207 Fed. 752. A delay of three months has been held to be such laches as to justify a denial of the application. Re Marion Contract & Construction Co., 166 Fed. 618; Re D. F. Herlehy Co., 247 Fed. 369. But not a delay of six weeks. Altonwood Park Co. V. Gwynne, C. C. A., 160 Fed. 448, or of twenty-nine days, infra, § 637a. 4 Re Jehu, 94 Fed. 638; Re Carleton, 115 Fed. 246; Re R. H. Pennington & Co., 228 Fed. 388. 5 Ibid.; supra, § 619. The default of the bankrupt does not make the proceeding voluntary. Mattoon Nat. Bank v. First Nat. Bank, C. C. A., 102 Fed. 728. 6 Mather v. Coe, 92 Fed. 333. Contra, Re Paige, 99 Fed. 538. Cf. Bray v. Cobb, 91 Fed. 102. The respondent may demur to the petition. W. A. Gage & Co. v. Bell, 124 Fed. 371. Judge Hammond said: that it was doubtful whether any answer could be filed which did not exactly follow the language of the prescribed Form No. VI; namely, “a brief and simple denial (1) that the defendant debtor has committed the act of bankruptcy, or (2) that he is insolvent, and (3) an averment that he should not be declared a bankrupt for any cause in said petition alleged,' W. A. Gage & Co. v. Bell, 124 Fed. 371, 374. But lengthy answers are not un usual. Ibid. It has been said: that, when the bankrupt admits his insolvency, his willingness to be adjudged upon that ground may be inferred, Brinkley v. Smithwick, 126 Fed. 686; and that, in such a case, his reservation of a right to move to dismiss the proceedings for irregularities and want of notice is too indefinite to be considered. Ibid. An allegation in an answer that the petitioners at the time of the commission of the alleged act of bankruptcy did not have provable claims which amounted, in excess of the value of securities held by them, to five hundred dollars, does not traverse an allegation in the petition, in accordance with the official form, that the petitioners have provable claims to that amount. Re John A. Etheridge & Co., 92 Fed. 329. Where the answer simply denied that within four months next preceding the date of the filing of said petition he transferred while insolvent a portion of his property for the use of the Bank of Commerce & Trust Company,' &c., it was held to be a negative pregnant and insufficient, but that a motion to strike it out was waived by filing a replication thereto. Cummins Grocer Co. v. Talley, C. C. A., 187 Fed. 507. Where the answer averred that a corporation "denies that it has committed any of the acts of bankruptcy set forth in said petition, or that it is insolvent, or at the time of filing such involuntary petition in bankruptcy was insolvent, and that it should not be declared bankrupt for any cause in said petition alleged'; the second negative was treated as an independent denial. Lackawanna Leather Co. v. La Porte Carriage Co., C. C. A., * * * * 211 Fed. 318. Where the act of bankruptcy charged was the acknowledgement in writing of inability to pay debts and willingness to be adjudged bankrupt, an answer thus described was held to be insufficient: "The answer is rested upon the general averment upon information and belief that the proceedings are 'collusive,' and that the petition has been filed 'for the purpose of defrauding creditors of the alleged bankrupts.' These general averments are followed by the more specific ones that for some weeks prior to the filing of the petition the alleged bankrupts had admitted their insolvency and were negotiating with their creditors for a settlement, and when admittedly insolvent, and at the very time the negotiations for a compromise settlement with their creditors were pending they had bought largely of new stock. A further averment is made, on the like basis of information and belief, that the petitioners will withdraw the proceedings when a settlement is effected. To these are added averments that some of the petitioning creditors have set forth the amounts of their claims at sums less than is really due them. The usual prayer for the dismissal of the proceeding follows.'' Re Cohn, 220 Fed. 956, 957. It is no defense to a petition in involuntary bankruptcy that the petitioners had previously agreed to release the debtor upon payment of onehalf of their claims, when they have not been paid, and one-half of their claims exceed the jurisdictional amount. Simonson v. Sinsheimer, C. C. A., 95 Fed. 948. Nor is the motive of the creditors material, Re Simonson, 92 Fed. 904; but see ·Re Harper & Bros., 100 Fed. 266. |