were not such at the time of the commission of the act of bankruptcy alleged, and did not hold their rights against the bankrupt at that time," and whose claims are not payable at the time of filing the petition. It has been held that the claim must 7 Callison v. Brake, C. C. A., 129 Fed. 196, affirming Re Callison, 130 Fed. 987, 12 Am. B. R. 344; Remington on Bankruptcy, § 214. It has been held that an assignee of all the claims of his assignor may join in the petition, Re H. E. Paige Motor Car Co., 251 Fed. 318, and that so may the holder of a note as agent or trustee for the true owner. Re Veler, C. C. A., 249 Fed. 633. 830 St. at L. 544, 561, § 59; Re Brinckmann, 103 Fed. 65, 4 Am. B. R. 551; Re Yates, 114 Fed. 365. A surety who has paid part of the obligation of his principal may be a petitioner, Boyce v. Guaranty Co., C. C. A., 111 Fed. 138, 7 Am. B. R. 6; but, it has been held, that a surety cannot file a petition before he has paid any part of such obligation, Phillips v. Dreher Shoe Co., 112 Fed. 404, 7 Am. B. R. 326; criticised in Remington on Bankruptcy, $231. It has been held that one of the petitioners may be the holder of a claim for unliquidated damages because of the breach of a contract of sale, when the damages are capable of liquidation, Re Stern, C. C. A., 116 Fed. 604, 8 Am. B. R. 569, affirming Re Manhattan Ice Co., 114 Fed. 399, 7 Am. B. R. 408. Contra, Re Big Meadows Gas Co., 113 Fed. 974, 7 Am. B. R. 697; and a claimant for damages because of a breach of warranty upon a sale of personal property. Contra, Re Morales, 105 Fed. 761, 5 Am. B. R. 425; F. L. Grant Shoe Co. v. Laird, 212 U. S. of a 445, 53 L. ed. 591; affirming Re Frederick L. Grant Shoe Co., C. C. A., 130 Fed. 881, 12 Am. B. R. 349. When the claim is provable, liquidation may be ordered subsequent to the filing of the petition, in order to determine whether the petitioner had a right to join in the institution of the proceeding. F. L. Grant Shoe Co. v. Laird, 212 U. S. 445; affirming Re Frederick L. Grant Shoe Co., C. C. A., 130 Fed. 88 1, 12 Am. B. R. 349; a depositor with a claim against the directors bank for misappropriation of its funds, Re Brown, C. C. A., 164 Fed. 673; the holder of a judgment for negligently causing death, Re Putnam, 193 Fed. 464; holders of claims based upon liability as a stockholder, Re Smith, 209 Fed. 91. Upon a demurrer to the petition, the debtor cannot claim that a judg ment therein pleaded is not final because a motion for a new trial is pending. Re Putnam, 193 Fed. 464. It has been said that the amount due each petitioner need not be exactly determined so long as it appears that they are creditors to an amount sufficient to satisfy the statute. Re Hughes, 183 Fed. 872. But it was held otherwise when the petition did not show the nature and amount of the claim. Re Crafts Riordon Shoe Co., 185 Fed. 931. It has been held: that the holder of an unliquidated claim for a tort, which has no contractual relation, cannot join in the petition, Beers v. Hanlin, 99 Fed. 695, 3 Am. B. R. 745; Re Brinckmann, 103 Fed. 65, have been provable at the time of the commission of the act of bankruptcy. A creditor who has received an unlawful preference cannot join in the petition unless he offers to surrender this,10 and in the Southern District of New York, such were compelled to deposit the preference with the clerk of the court as an alternative to the dismissal of their petition. A creditor may be estopped from filing the petition.12 A creditor may 4 Am. B. R. 551; Re Yates, 114 Fed. 365; and that a judgment, entered subsequent to bankruptcy proceedings, upon a claim therein provable, cannot form a basis for a subsequent proceeding in bankruptcy when no application was made for a discharge in those originally instituted. Re Schnabel, 166 Fed. 383. The pendency of an action by a petitioner to collect his claim and the interposition therein of a counter-claim by the bankrupt is not the insuperable objection. Re Automatic Typewriter & Service Co., C. C. A., 271 Fed. 1. A claim by the assignee of a bankrupt against a petitioning creditor for damages because of a wrongful attachment, cannot be set off against the latter's claim against the bankrupt, when determining the sufficiency of a petition. Re Bevins, C. C. A., 165 Fed. 434. 9 Beers v. Hanlin, 99 Fed. 695, 3 Am. B. R. 745; Re Brinckmann, 103 Fed. 65, 4 Am. B. R. 551. Criti cised in Remington on Bankruptcy, $214; Re Crafts-Riordon Shoe Co., 185 Fed. 931. Contra, Re Van Horn, C. C. A., 246 Fed. 822; where the claims were provable at the time of the filing of the petition. 10 Re Miller, 104 Fed. 764, 5 Am. B. R. 140; Stevens v. Nave-McCord Co., C. C. A., 150 Fed. 71, 17 Am. B. R. 610. Such surrender may be made at any time before the ad judication. Re Murphy, 225 Fed. 392; Re Automatic Typewriter & Service Co., C. C. A., 271 Fed. 1. 11 Re Miller, 104 Fed. 764, 5 Am. B. R. 140; Re Gillette, 104 Fed. 769, 5 Am. B. R. 119; Re Murphy, 225 Fed. 392. 12 By participation in the act of bankruptcy. Re Romanow, 92 Fed. 510; Simonson v. Sinsheimer, C. C. A., 95 Fed. 948; Clark v. Henne & Meyer, C. C. A., 127 Fed. 288, 11 Am. B. R. 583; Lowenstein v. McShane Mfg. Co., 130 Fed. 1007, 12 Am. B. R. 601; Moulton v. Coburn, C. C. A., 131 Fed. 201, 12 Am. B. R. 553; Re Hark, 142 Fed. 279, 15 Am. B. R. 460; Lowenstein v. McShane Mfg. Co, 130 Fed. 1007, 12 Am. B. R. 601. This may be by entering a judgment for the purpose of aiding the institution of bankruptcy proceedings. Re Taylor House Ass'n, 209 Fed. 924; Re McKinnon Co., 237 Fed. 869. When the act of bankruptcy consists in a receivership or insolvent assignment, by assisting in the application for a receivership. Re Gold Run Min. & Tunnel Co., 200 Fed. 162. See Re McKinnon Co., 237 Fed. 869, where there was also laches, or by assenting to the assignment. Re Romanow, 92 Fed. 510; Clark v. Henne & Meyer, C. C. A., 127 Fed. 288, 11 Am. B. R. 583; Moulton v. Coburn, C. C. A., 131 Fed. 201, 12 Am. B. R. 553; Re Lewis 13 withdraw from an involuntary petition by leave of the court; but, it has been held, that this cannot be done when the result F. Perry & Whitney Co., 172 Fed. 745 (where the assent was by a clerk who had given similar assents in previous instances). Despres v. Galbraith, C. C. A., 213 Fed. 190; Utz & Dunn Co. v. Regulator Co., C. C. A., 213 Fed. 315; Re Henry Campe & Co., 240 Fed. 433; (where the assignment was not recorded and the State law was otherwise not complied with.) But it has not been held by consent to a former assignment which did not take effect without the subsequent one made the foundation of the bankruptcy proceedings. Doty v. Mason, 244 Fed. 587, nor when the consent was induced by fraud, Canner v. Webster Tapper Co., C. C. A., 168 Fed. 519; Re Curtis, C. C. A., 94 Fed. 630; or the State court had no jurisdiction of the proceedings in insolvency, Re Weedman Stave Co., 199 Fed. 948. Nor by the indorsement of their attorneys under peculiar circumstances of the word 'seen' upon an order of the State court for the sale of the property assigned. Simonson v. Sinsheimer, C. C. A., 100 Fed. 426, affirming 96' Fed. 579. Nor by selling goods to the assignee. Ibid. Nor by appearing in the State court for the purpose of preventing a distribution of the insolvent estate until the time arrived at which proceedings in bankruptcy could be instituted. Leidigh Carriage Co. v. Stengel, C. C. A., 95 Fed. 637. Nor by attacking in a State court certain preferences in the assignment. Ibid. Nor by joining with the insolvent and his assignee in a petition to the State court for a decree authorizing the conveyance of land to the cred claims. C. A., itor in part payment of his claim on the promise that he should receive a bond to indemnify him in case he should be required to pay back for the benefit of other creditors part of the proceeds of the land, which bond was never given. Re Curtis, C. C. A., 94 Fed. 630. Nor by prosecuting an action in the State court for the recovery of a debt. Re Henderson, 10 Fed. 385.. Nor by their submission to the assignee, at his request, of an unveri fied statement of their Simonson v. Sinsheimer, C. 95 Fed. 948; s. c., C. C. A., 100 Fed. 426. Nor by delaying the institution of proceedings in bankruptcy for about two months at the request of the defendant who represented that he was about to offer a composition to his creditors. Ibid. It has been held that a corporation is not estopped from joining in the petition by the fact that one of its officers in his individual capacity acted as assignee under the assign ment, which is attacked as an act of bankruptcy. Re Winston, Fed. 187, 10 Am. B. R. 171. They are estopped by accepting dividends from the assignee, Simonson v. Sinsheimer, C. C. A., 95 Fed. the receiver, Ohio Motor Co. man Magneto Co., C. C. Fed. 370; and has been delay for four months in opposing the assignment. Re Lewis F. Perry & Whitney Co., 172 Fed. 752. Ohio Motor Co. v. Eiseman Magneto Co., C. C. A., 230 Fed. 370. 122 948; or v. EiseA., 230 held by See S 13 Re Coburn, 126 Fed. 218, af firmed as Moulton v. Coburn, C. C. A., 12 Am. B. R. 553. S would be to compel the dismissal of the proceeding; 14 nor does the payment of a claim after the filing of the petition defeat the proceedings by reducing the claims below the jurisdictional amount; provided, at least, that other creditors sufficient to supply the jurisdictional amount subsequently join.15 § 620. Acts of bankruptcy. "(a) Acts of bankruptcy by a person shall consist of his having (1) conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, any part of his property with intent to hinder, delay, or defraud his creditors, or any of them; or (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors; or (3) suffered or permitted, while insolvent, any creditor to obtain a preference through legal proceedings, and not having at least five days before a sale or final disposition of any property affected by such preference vacated or discharged such preference; or (4) made a general assignment for the benefit of his creditors, or, being insolvent, applied for a receiver or trustee for his property or because of insolvency a receiver or trustee has been put in charge of his property under the laws of a State, of a Territory, or of the United States; or (5) admitted in writing his inability to pay his debts and his willingness to be adjudged a bankrupt on that ground. (b) A petition may be filed against a person who is insolvent and who has committed an act of bankruptcy within four months after the commission of such act. Such time shall not expire until four months after the date of the recording or registering of the transfer or assignment when the act consists in having made a transfer of any of his property with intent to hinder, delay, or defraud his creditors or for the purpose of giving a preference as hereinbefore provided, or a general assignment for the benefit of his creditors, if by law such recording or registering is required or permitted, or, if it is not, from the date when the beneficiary takes notorious, exclusive, or continuous possession of the property, unless the petitioning creditors have received actual notice of such transfer or assignment. (c) It shall be a complete defense to any proceedings in bankruptcy 14 Re Quincy Granite Quarries Co., 147 Fed. 279. 15 Re Ryan, 114 Fed. 373. instituted under the first subdivision of this section to allege and prove that the party proceeded against was not insolvent as defined in this act at the time of the filing of the petition against him, and if solvency at such date is proved by the alleged bankrupt the proceedings shall be dismissed, and under said subdivision 1 the burden of proving solvency shall be on the alleged bankrupt."1 § 621. Fraudulent transfers, concealment, or removal of property as acts of bankruptcy. A fraudulent transfer, conveyance, concealment or removal of property by a debtor, or his permitting the same to be concealed or removed, is an act of bankruptcy. The concealment of property differs from a transfer thereof in that the latter is final and complete when once accomplished, while the former is continuous. It has been said that the word "removed" signifies an actual or physical change in the position or locality of the property; and that § 620. 130 St. at L. 544, 546, 547, 3, as amended by 32 St. at L. 797. 'con § 621. 130 St. at L. 544, 546, $3. The statute provides: that "transfer' shall include the sale and every other and different mode of disposing of or parting with property or the possession of property, absolutely or conditionally, as a payment, pledge, mortgage, gift, or security;" and that cealed' shall include secrete, falsify and mutilate." 30 St. at L. 544, §1; Re Shapiro, 106 Fed. 495; Re Greenberg, 106 Fed. 496; Badders Clothing Co. v. Burnham-MungerRoot D. G. Co., C. C. A., 228 Fed. 47; Re Ambrose Matthews & Co., 229 Fed. 309; Re Burg, 245 Fed. 173; Morrison v. Rieman, C. C. A., 249 Fed. 97; Re M. S. Fersko, Inc., C. C. A., 250 Fed. 357; Re Wellesley, 252 Fed. 852; Johnson-Baillie Shoe Co. v. Bardsley, Elmer & Nichols, 237 Fed. 763. The transfer may be made by the confession while insolvent more than four 3 months before the filing of the petition. Re Irish, 238 Fed. 411. The performance by the bankrupt of services in business carried on for his wife's benefit upon her individual credit, although he seeks to create the impression that he is the owner thereof, is not such a transfer. Rowe v. Drohen, 245 Fed. 684. 2 Citizens' Bank of Salem v. De Pauw Co., C. C. A., 105 Fed. 926. See Re Mingo Valley Creamery Ass'n, 100 Fed. 282. But see § 656, infra. Consequently, it has been held that, when an insolvent conceals his property with the intent to hinder, delay or defraud his creditors, they may file a petition against him more than six months after the beginning of the concealment, if it still continues. Re Wilmington Hosiery Co., 120 Fed. 179, 9 Am. B. R. 581; Remington on Bankruptcy, § 108. 3 Re Wilmington Hosiery Co., 120 Fed. 179, 9 Am. B. R. 581; Remington on Bankruptcy, § 107. |