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Vol. I.)

IN RE SCULL.

[No. 9.

verified by the oaths of the first five signers thereof, if so many there be. This means, that if there are five or less signers, all must verify the petition by oath ; but that if there are more than five signers, it will be

1 sufficient if the first five of them so verify it. This necessarily implies that there may be more signers than those who verify the petition by oath, and implies, also, that those who are petitioners must sign the petition.

As, in the present case, the petition does not state that the petitioners constitute the requisite number and amount of creditors, it must be held that it appears that the requisite number and amount of creditors have not petitioned. As the case was commenced before June 22d, 1874, an order will be entered herein by the clerk, if the petitioning creditors desire, granting twenty days from the formal entry of such order, as the time within which the petition may be amended so as to show a compliance with the requirement of the statute as to the number and amount of petitioning creditors ; and providing that at the expiration of that time, or when such amendment shall be filed, if before the expiration of that time, the clerk shall present to the court all papers which shall have been filed herein, including those filed with a view to such amendment of the petition, to the end that the matter in bankruptcy may proceed, or the proceedings may be dismissed, as the case may be.

The only act of bankruptcy alleged in the petition is, that the debtor, being insolvent, suffered his property to be taken on legal process, with the intent to give a preference to a creditor and to defeat the operation of the act. This was an act of bankruptcy when the petition was filed. By the act of 1874, it is no longer made an act of bankruptcy. The debtor, being insolvent, must procure his property to be taken on legal process, with the intent to give a preference, or to defeat or delay the operation of the act; and all the provisions of the section of the act of 1874, which specifies what are acts of bankruptcy on which a person can be adjudged an involuntary bankrupt, are by it made applicable to the present case, commenced since December 1st, 1873. Therefore, if the present petition is to be proceeded with at all it must, in respect to the matter alleged in it as constituting the act of bankruptcy set forth, be amended by averring that the debtor procured his property to be taken. An amendment to that effect will be allowed to be made within the twenty days before provided for.

The provisions of the statute have been carefully considered in the above observations, because the number of petitions in involuntary bankruptcy, filed in this district, between December 1st, 1873, and June 22d, 1874, was three hundred and forty-six. Of this number, ninety-eight were discontinued, and in one hundred and eighteen others adjudications have been entered. This leaves one hundred and thirty in which no adjudication has been entered, and which come under the provisions of the act of 1874. In all of these one hundred and thirty, which are in the same situation as the present case of Isaac Scull, and in all of them in which the petition was filed before June 22d, 1874, and no order of adjudication was formally filed and entered before June 22d, 1874, the clerk will enter a like order if either party desires it.

Vol. I.)

IN RE HILL.

(No. 9.

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PRACTICE UNDER ACT OF JUNE 22, 1874, IN RESPECT
OF PETITION. -JUDGMENT DEFINED.

IN RE HILL.

The signature by a judge of his initials to a memorandum upon the petition prior

to June 22, 1874, will not warrant the signing of an order of adjudication, after

that date, nunc pro tunc. The petition must be made to conform to the requirement of the act of 1874 in every particular.

BLATCHFORD, J. The petition in this case, in involuntary bankruptcy, was filed on the 17th of January, 1874. The order to show cause was returnable on the 24th of January. On that day the debtor appeared and filed a denial in the usual form, and demanded a trial by the court, and an order was made referring it to a commissioner, to take the evidence. The commissioner's report of the evidence was filed on the 6th of March, the matter was brought to hearing before the court, and on the 18th of March a memorandum signed by the initials of the judge, was made by him on the petition, directing that an order of adjudication be entered. No such order was entered prior to June 22d, 1874, probably for the reason that the petitioning creditors did not desire or procure such order to be entered. I am now asked to sign such an order, nunc pro tunc, as of the 18th of March. I do not see how this can be done. The test must be whether a formal order of adjudication has been entered. Until the entry of such formal order, a discontinuance has always been allowed by this court to be entered, if desired by the petitioning creditor. A direction that such order be entered, the order not having been prepared in form, is no more than the decision of the judge. It is not a judgment, or an entry on the files of the court, that the court adjudges thus and so. The form of an adjudication of bankruptcy on a creditor's petition is prescribed by form No. 58. Nothing else is an adjudication or an adjudging, and, therefore, the debtor in the present case remained, on the 22d of June, 1874, “ to be adjudged a bankrupt,” under the provisions of the act of 1874, that is, on such a petition as I have held in the case of In re Scull to be the necessary form of petition. The clerk will enter, in the present case, the like form of order with that directed in the case of Scull, if either party desires it.

It is proper to say, that there are two acts of bankruptcy alleged in the petition. The direction for an order of adjudication was that it should be entered on the first act of bankruptcy alleged. That is an allegation that the debtor on the 22d of November, 1873

(fifty-six days before the filing of the petition), being a merchant, stopped payment of his commercial paper, and did not resume payment of it within a period of fourteen days. If the petition is to be proceeded with as to such first act of bankruptcy, it must conform to the act of 1874, by averring that the commercial paper was made or passed in the course of the business of the debtor as a merchant, and that he did not resume payment of it within a period of forty days. An amendment to that effect will be allowed to be made within the twenty days allowed for the amendment in regard to the number and amount of creditors.

Vol. I.)

IN RE KEELER.

(No. 9.

BANKRUPTCY. - PRACTICE UNDER ACT OF JUNE 22, 1874, AS TO PE

TITION. INSUFFICIENCY OF ADMISSION OF NUMBER AND AMOUNT OF CREDITORS.

IN RE KEELER.

In involuntary cases the petition must contain a proper allegation as to the requi

site number and amount of petitioning creditors. The admission of the debtor that the terms of the law have been complied with will not dispense with such allegation. There can be no adjudication except it be made and shown to be true to the satisfaction of the court.

BLATCHFORD, J. The petition in this case, which is one in involuntary bankruptcy by a single creditor, contains no allegation that the creditor constitutes one fourth, at least, in number of the

creditors of the debtor, and that the aggregate of his debts, provable under the act, amounts to at least one third of the debts so provable. It was filed July 23d, 1874. It is accompanied by a separate paper, purporting to be signed by the debtor, and reading thus: “The said James R. Keeler does hereby admit, that the requisite number and amount of his creditors have joined in the petition herein, and does consent that proceedings shall be had under said petition, as a petition signed by the requisite number and amount of his creditors." There is no authentication of the genuineness of the signature to this paper, nor is it verified by the oath of the signer. I have held, in the case of In re Scull, that the petition must contain the allegation which, as before said, this petition does not contain. The absence of such allegation, which, if in the petition, is verified by the oath to the petition, is not supplied by any admission by the debtor, much less by admission in form such as the one now presented, and not accompanied by any oath that the petitioning creditor does constitute the required number and amount of creditors. It is the allegation of the petition as to the number or amount of petitioning creditors, which, by the statute, the debtor may deny, by a statement in writing to that effect. The statute then says (Act of June 22d, 1874, § 12): “ But if such debtor shall, on the filing of the petition, admit in writing that the requisite number and amount of creditors have petitioned, the court, if satisfied that the admission was made in good faith, shall so adjudge, which judgment shall be final, and the matter proceed without further steps on that subject.”. The purport of this provision, in view of the context, is, that the admission is to be an admission of an allegation in the petition, which shows that the requisite number and amount of creditors have petitioned, and which allegation is before the court, verified by the oath to the petition. The court, even after such admission in writing, is to be satisfied that the admission was made in good faith, before it can adjudge that the requisite number and amount of creditors have petitioned. Certainly, it cannot be thus satisfied on the present papers : a petition without the allegation ; an admission not acknowledged or verified; no evidence of the authenticity of the signature of the debtor; no oath that the petitioning creditor constitutes the requisite number and amount of creditors; and an admission which states the legal conclusion, that the requisite number and amount of creditors have joined in the petition (without anything to show that the

Vol. I.]

BLAKE CRUSHER Co. v. WARD.

(No. 9.

debtor knows what such requisite number and amount of creditors is), instead of stating and admitting facts from which the court can draw such legal conclusion. The statute intends to exclude collusion, and not to permit a person to be adjudged an involuntary bankrupt unless the statute is strictly complied with. This is shown not only by such provision that the court must be satisfied that such admission of the debtor was made in good faith, but also by the provision of section 13 of the act of 1874, that the court must be satisfied that the requirement as to the number and amount of petitioning creditors has been complied with, or else must dismiss the proceeding.

I therefore cannot, on these papers, issue an order to show cause.

EASTERN

CIRCUIT COURT OF THE UNITED STATES.

DISTRICT OF MICHIGAN.

[JANUARY, 1874.]

PRACTICE IN UNITED STATES COURTS. — VERIFICATION. CONSTRUCTION OF EQUITY RULE 95. — ENTITLING OF AFFIDAVITS. NOTARY PUBLIC.

BLAKE CRUSHER CO. v. WARD.

a

Notaries public are officers before whom affidavits may be taken and bills and an.

swers verified within the meaning of existing laws. Affidavits entitled as in a cause pending when no such cause was in existence cannot be read unless the entitling be rejected, which, if it render the affidavits meaningless in material particulars, will not be allowed. Practice in respect of verification, and construction of Equity Rule 95.

Motion for a preliminary injunction on bill of complaint and accompanying affidavits, to restrain the defendants from an alleged infringement of a patent for a stone crusher.,

The affidavits were made, some in Connecticut and some in Pennsylvania, and were all sworn to before notaries public. They were all made before this suit was commenced. They are, nevertheless, all entitled in a cause the same as is the entitling of this case, notwithstanding that no such cause was pending or in existence at the times the affidavits were made.

The bill was signed and the verification of the same was by an agent and director of the complainant corporation; and the verification appears also to have been made before a notary public of the State of Connecticut.

No answer has been put in nor counter affidavits filed, but at the hearing of the motion the defendants appeared by counsel and opposed the granting of the motion on the grounds, 1. That the verification of the bill and the affidavits were not entitled to be read and used because they were not taken before an officer authorized to take the same to be used in this court. 2. The affidavits are entitled in a cause which had no exist

Vol. 1.)

BLAKE CRUSHER Co. v. WARD.

(No. 9.

may

ence when they were made. 3. That the verification of the bill is insufficient because it is upon information and belief only, and is otherwise defective.

Mr. A. Russell, for complainant.
Mr. H. B. Brown, for defendant,

LONGYEAR, J. First. As to the officers before whom the verification and affidavits were taken.

The act of Congress of July 29th, 1854 (10 Statutes, 315), provides, “ That notaries public be and they are hereby authorized to take depositions, and do such other acts in relation to evidence to be used in the courts of the United States, in the same manner and with the same effect as commissioners to take acknowledgments of bail and affidavits now lawfully take or do.” I think it safe to assume that taking of verifications to bills and answers, and of affidavits in support of or to oppose motions for injunction, are “acts in relation to evidence" within the

, meaning of the above provision ; and, therefore, the verification and affidavits were properly taken before such officers.

By the previous act of September 16th, 1850 (9 Statutes, 458), the signature and official seal of the notary was recognized as sufficient evidence of his official character and the genuineness of his acts; and as the act of July 29th, 1854, was supplementary to the act of 1850, the same recognition must be extended to the signature and seal of the notary under that act. See, also, Goodyear v. Hulliben, 3 Fish. 251, 254. In the present case, the jurats to the verification of the bill, and to the affidavits, all have the signatures and official seals of the notaries, and are therefore sufficiently authenticated.

Second. As to the entitling of the affidavits as in a cause pending when no such suit was in existence at the time. By an unbroken current of decisions, some of which are cited below, in England and in this country, such affidavits are not entitled to be read or used for any purpose whatever. The test, and the main ground of their rejection is, that there being no such cause in existence at the time, the affiant could not be convicted of perjury if the affidavit is false. Rex v. Jones, 1 Str. 704; Rer v. Pierson, Arch. 313; Rex v. Harrison, C. T. R. 60; King v. Cole, C. T. R. 640 ; 1 Dan. Ch. Prac. 891; Humphrey v. Cande, 2 Con. 509; Haight v. Turner, 2 J. R. 370 ; Bronson v. Mitchill, 12 L. J. R. 460; Milliken v. Selye, 3 Denio 54; Hawley v. Donnelly, 8 Paige, 415.

8 In Bronson v. Mitchell, two of the judges thought the entitling might be rejected as surplusage, but the majority of the court decided otherwise and the affidavits were rejected. And in some of the English cases cited, the question of rejecting the entitling as surplusage was mooted, and it was held that, even if competent in any case, it could not be done in those cases, because it would render many material portions of the affidavits meaningless on account of references to “ the said defendant," &c. That is precisely the case here. It results therefore that, with the entitling retained, the affidavits cannot be read; with the entitling rejected, they are in many material portions meaningless. The affidavits must therefore be rejected.

Third. As to the verification of the bill. This is evidenced only by the jurat of the officer before whom the verification was made. The jurat is as follows:

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