every actual creditor has a direct interest. The proceeding is summary, and in a high degree informal, and it should be free from technical embarrassment. No one is entitled to be heard thereon who has no interest to protect. To justify an intervention the object or purpose disclosed must be one which in a legal sense is meritorious and not purely officious; therefore the facts alleged as ground of intervention must be such as entitle the applicant to consideration. The court must be able to see that the intervention may serve some useful purpose, either in protecting the rights of the applicant, or those of the creditors at large. In re Boston R. R. Co., 6 B. R. 209, 222; s. c. 9 Blatch. 101, 409; Bonnet v. James, 1 N. Y. Leg. Obs. 310; in re Heusted, 5 Law Rep. 510; Clinton v. Mayo, 12 B. R. 39.

No creditor can appear and contest the proceedings until he proves his debt. Dutton v. Freeman, 5 Law Rep. 447.

The creditor who is charged by the petition with receiving a preference may appear and oppose the adjudication. In re Heusted, 5 Law Rep. 510; Clinton v. Mayo, 12 B. R. 39.

A petitioning creditor who has filed a prior petition in another court may intervene. In re Boston R. R. Co., 6 B. R. 209; s. c. 9 Blatch. 101.

A creditor who has received a mortgage which is liable to be assailed as a preference may intervene. In re Walter S. Derby, 8 B. R. 106; s. c. 6 Ben. 232.

An attaching creditor may intervene and oppose the adjudication. In re S. Mendelsohn, 12 B. R. 533; s. c. 3 Saw. 343; in re Hatje, 12 B. R. 548; s. c. 6 Biss. 436; in re Francis M. Jack, 13 B. R. 296; s. c. 1 Woods, 549; in re C. G. Scrafford, 14 B. R. 184; s. c. 15 B. R. 104; s. c. 4 Cent. L. J. 19. An attaching creditor may intervene to contest an adjudication upon the merits as well as to claim that the court has no jurisdiction of the case. In re Elias G. Williams, 14 B. R. 132.

An attaching creditor who intervenes to oppose an adjudication may take advantage of any defense available to the debtor. Ibid.

An attaching creditor may contest the adjudication on the ground that the proper proportion of creditors has not joined in the petition. In re C. G. Scrafford, 14 B. R. 184; s. c. 15 B. R. 104; s. c. 4 Cent. L. J. 19.

An objection to defects in the petition may be made even at the hearing. The objection is in the nature of a motion in arrest of judgment. In re Waite & Crocker, 1 B. R. 373; s. c. Lowell, 207.

The process, pleadings, and proceedings in a case of involuntary bankruptcy must be regarded as governed and controlled by the rules and regulations prescribed in the trial of civil actions at common law. Ins. Co. v. Comstock, 8 B. R. 145; s. c. 16 Wall. 258.

A reasonable construction requires the debtor's allegations to be reduced to writing, and in such form as to raise an issue in analogy to issues in other cases triable by a jury. The word "allegations" is used in the sense of pleadings, as meaning a formal statement of the acts of bankruptcy in the petition, and a like formal defense of the debtor thereto, either a general denial which will put in issue all the facts stated in the petition, or a statement of any matters in avoidance according to the rules governing pleadings in common-law cases. In re Sutherland, 1 B. R. 531; s. c. 1

Deady, 344; in re Alexander Findlay, 9 B. R. 83; s. c. 5 Biss. 480. Contra, in re Heydette, 8 B. R. 333.

Form No. 61 is the form of the order to be entered by the court. It is not an act or allegation of the debtor, but is an order of the court based upon the allegation of the debtor previously presented or communicated to the court in some form, either orally or in writing. In re Alexander Findlay, 9 B. R. 83; s. c. 5 Biss. 480; in re Sutherland, 1 B. R. 531; s. c. 1 Deady, 344. Contra, Phelps v. Classen, 3 B. R. 87; s. c. 1 Wool. 204; in re Dunham & Orr, 2 B. R. 17; s. c. 2 Ben. 488; s. c. 1 L. T. B. 89; in re Heydette, 8 B. R. 333; in re Hawkeye Smelting Co., 8 B. R. 385.

The answer should be made under oath. The general rule in all courts is to require a pleading or petition to be answered in as solemn a manner as it is required to be made. In re Alexander Findlay, 9 B. R. 83; s. c. 5 Biss. 480. Contra, in re Gebhardt, 3 B. R. 268; in re Heydette, 8 B. R. 333.

The objection that the petition is not duly signed and verified is waived by putting in a denial of the act of bankruptcy, and a demand for a trial. By such an act the debtor waives not only the necessity of an order to show cause, but the necessity of proof of the authority of the person signing the petition, and, in fact, of any verification whatever. Proof of the authority of a person signing a creditor's petition in a representative capacity, and a verification of the petition, like the accompanying proof of the petitioning creditor's debt and deposition as to the alleged act of bankruptcy, are requisite only to authorize the making of an order to show cause. When that is done their office is accomplished, and they never can be and never are of any other or further use in the case. In re Moses A. McNaughton, 8 B. R. 44.

The debtor may deny that the petitioner is a creditor, and by proofs maintain such denial. The act provides that if the debtor proves that the facts set forth in the petition are not true, the proceedings shall be dismissed. The facts set forth in the petition are all those which are necessary to make it the duty of the court to adjudge the debtor a bankrupt; that is to say, there must be before the court a creditor with a provable debt to the required amount, and there must be established an act of bankruptcy within six months before the filing of the petition. It must also be alleged and shown that the debtor owes provable debts to the amount of $300. Unless all these concur, the petitioner has no right to prosecute the petition, and however he may be able to prove, or does prove, the commission of acts of bankruptcy, he is not by law clothed with the right or power to begin or sustain a prosecution or ask a decree. In re Cornwall, 6 B. R. 305; s. c. 9 Blatch. 114; in re Ouimette, 3 B. R. 566; s. c. 1 Saw. 47.

The debt and the act of bankruptcy taken together constitute the cause of action. The defense set up may go to either or both of these matters, and there may be several defenses to each, but they must be separately stated that is, so that each one will stand or fall by itself without the aid of the other. In re Ouimette, 3 B. R. 566; s. c. 1 Saw. 47.

It is nowhere expressly or impliedly said that one who can furnish proof which, unexplained and uncontradicted, would show prima facie that he is

a creditor, may file a petition, or that a party may be adjudged a bankrupt upon such petition. The objection that the petitioner is not a creditor goes not only to his disability, but to the jurisdiction of the cause. It would be monstrous injustice if parties were not only liable to be proceeded against, but must necessarily be adjudged bankrupts, submit to a warrant and be dispossessed of all their property at the instance of any one and every one who either dishonestly or by mistake was able to present, by petition and affidavits, prima facie evidence of a debt, when in truth none existed. It might often happen that the only act of bankruptcy alleged depended for its character upon the very question whether any debt was owing to the petitioner; and if a mere prima facie case shown by the petition precluded further inquiry on that question, a party might be declared a bankrupt, his property be subjected to administration under the law, and, in the end, it would appear that the petitioner, having no debt, no act of bankruptcy had been committed, and the whole proceeding, injurious as it must be, was wholly groundless. In re Cornwall, 6 B. R. 305; s. c. 9 Blatch. 114.

When the petition sets forth the several acts of bankruptcy alleged conjunctively, the denial in the answer should be in the disjunctive, and in such form as to fully deny either of the intentions imputed to the debtor. In re S. T. Smith, 3 B. R. 377; s. c. 4 Ben. 1; s. c. 1 L. T. B. 147.

A proceeding in bankruptcy is not an action to collect a debt, but to procure an adjudication of bankruptcy, and, therefore, a plea of tender of the amount due the petitioner can, under no circumstances, be a defense to it. The allegation of the petition is, that the party is not only indebted to the petitioner, but that he has committed an act of bankruptcy. To this it is no sufficient answer to allege a tender of the amount due. The court will not presume that the petitioner is the only creditor. If, in fact, there are no other creditors, the plea should contain an allegation to that effect. A plea containing such an allegation would not be a good defense. In re Ouimette, 3 B. R. 566; s. c. 1 Saw. 47.

If the debtor proves that there are no other creditors to the requisite amount to proceed against him under the bankruptcy act, and tenders the amount due on the petitioning creditor's claim, together with the costs of the proceedings, the proceedings will be dismissed. In re Daniel Sheehan, 8 B. R. 353.

If the tender of payment does not include the costs, the debtor must pay full costs, as upon an adjudication, after hearing, if the proceedings are dismissed. Ibid.

If the petitioning creditor, after the filing of the petition, obtains an order, in the suit instituted in a State court for the arrest of the bankrupt and another, but instructs the sheriff not to arrest the bankrupt, a voluntary surrender and giving of bail in that action will not be a sufficient ground for dismissing the petition, although the debt which constitutes the cause of action in both cases is the same. A person proceeded against as a bankrupt does not by voluntarily placing himself under arrest, or in jail, or in any other place of confinement, remove himself from the effect of the bankruptcy law. In re George Merkle, 5 Ben. 8.

The debtor may set up a claim for unliquidated damages arising out of a contract, as a set-off or counterclaim against the petitioning creditor's debt. In re Osage V. & S. K. R. R. Co., 9 B. R. 281; s. c. 1 Cent. L. J. 33. Where a debtor has committed an act of bankruptcy, he cannot discharge himself from his legal liability for such act by subsequent rescission or undoing thereof. In re Thomas Ryan, 2 Saw. 411.

A feme covert may avail herself of her coverture to defeat the debt which is the basis of proceedings in bankruptcy. In re Schlichter et al., 2 B. R. 336; in re Howland, 2 B. R. 357; in re Rachel Goodman, 8 B. R. 380; s. c. 5 Biss. 401.

When a note is given by a feme covert, it must appear on the face that it was given with the intent to bind her separate estate, or there must be allegations that it was given for the benefit of her separate estate, or in the course of trading transactions which she is authorized to engage in by law. In re Howland, 2 B. R. 357; in re Schlichter, 2 B. R. 336.

A married woman, living separate and apart from her husband, may, under the laws of California, contract a valid debt, which can be enforced against her. In re Julia Lyons, 2 Saw. 524; s. c. 1 A. L. T. (N. S.) 167.

A person who is so unsound of mind as to be wholly incapable of managing his affairs can not, in that condition, commit an act for which he can be forced into bankruptcy by his creditors against the objection of his guardian. In re Marvin, 1 Dillon, 178; s. c. 3 C. L. N. 394; in re Mitzel, 3 Cent. L. J. 555.

The denial of a fraudulent intent to give a fraudulent preference involves a confession of an intent to give a preference, though not a fraudulent one. Such a preference is an act of bankruptcy. In re R. Sutherland, 1 B. R. 531; s. c. 1 Deady, 344.

A corporation by appearing and answering a petition thereby admits that it may be proceeded against in bankruptcy, and can not afterward object that the petition does not allege that it is a moneyed, business or commercial corporation. In re Oregon B. Printing Co., 13 B. R. 503; s. c. 11 Pac. L. R. 233; s. c. 3 Cent. L. J. 515.

Irrelevant or immaterial matter in a pleading may be stricken out, although it is a denial of an immaterial allegation in a prior pleading. In re Oregon B. Printing Co., 13 B. R. 199; s. c. 14 B. R. 405; s. c. 3 Saw. 614.

When the case is brought to a hearing on petition and answer, and the answer denies material averments contained in the petition, the averments must be regarded as disproved, unless they are conclusively presumed by law. Wells et al. (ex parte H. B. Claflin & Co.), 1 B. R. 171; s. c. 1 L. T. B. 20; s. c. 7 A. L. Reg. 163.

It is a well-settled rule of pleading, that a traverse or denial must not be taken on a mere matter or conclusion of law, for the effect would be to submit the question of law to the jury rather than to the court. But when the conclusion is a mixed one of law and fact, then it is clearly traversable, and the issue raised thereby triable by a jury, under the direction of the court as to the law. The sale of his property by a debtor is not necessarily an act of bankruptcy. It depends upon the intent with which it is done, and as this intent is not a mere conclusion of law, but of law and fact

compounded, it may be traversed or denied. In re Silverman, 4 B. R. 523; s. c. 2 Abb. C. C. 243; s. c. 1 Saw. 410.

Although the intent to prefer is a necessary ingredient in the alleged act of bankruptcy, yet if a preference is a necessary consequence of the facts admitted in the answer, the law conclusively presumes the intent to prefer, and the intent can not be denied and tried as an issue of fact. When, by law, the consequences must necessarily follow the act done, the presumption is ordinarily conclusive, and can not be rebutted by any evidence of intention. In re Silverman, 4 B. R. 523; s. c. 2 Abb. C. C. 243; s. c. 1 Saw. 410; in re S. T. Smith, 3 B. R. 377; s. c. 4 Ben. 1; s. c. 1 L. T. B. 147; in re Thomas Ryan, 2 Saw. 411.

An allegation in the answer as to the value of property which the debtor owns and holds, is simply surplusage and immaterial, and ought to be stricken out, but it is no ground for a demurrer. A plea of a tender of the petitioner's debt may be stricken out as immaterial. Objections to the sufficiency of an answer may be taken by demurrer. When a demurrer to an answer is overruled, the petitioner may be permitted to reply on payment of costs. In re Ouimette, 3 B. R. 566; s. c. 1 Saw. 47.

If the denial of the allegation in the petition is not in proper form, the proper course is to move to strike the paper from the file, and to vacate the subsequent record and order made thereon. In re Heydette, 8 B. R. 333. When the answer consists merely of the denial contained in Form No. 61, no replication is needed. In re Dunham & Orr, 2 B. R. 17; s. c. 2 Ben. 488; s. c. 1 L. T. B. 89.

If the petitioning creditor is declared a bankrupt, his assignee may be substituted as a petitioner in his place, and prosecute the petition. In re B. F. Jones, 7 B. R. 506.

The remedies of an assignee under the law are regulated by the same provisions that control the rights of other parties. He can not in any way secure from an insolvent debtor a preference over other creditors for the estate which he is administering. He must adopt the only remedy which the law allows him in the performance of his duty to collect the assets of the bankrupt, and that is the filing of a petition in bankruptcy against the bankrupt's insolvent debtor. Ibid.

A motion for an adjudication upon or notwithstanding the respondent's answer may be denied, and the case allowed to proceed to trial upon the merits. In re Safe D. & S. Inst., 7 B. R. 392.

A jury can not be demanded on any day but the return day. By consent of parties, an adjourned day may be held to be the same in all respects as the return day. In re G. & H. Pupke, 1 Ben. 342; in re Gebhardt, 3 B. R. 268; in re Sherry, 8 B. R. 142; Clinton v. Mayo, 12 B. R. 39.

If the petition was not signed originally by the requisite number of creditors, and was only made complete by the filing of an intervening petition after the return day, the debtor may demand a jury trial on the day when such intervening petition is filed. In re J. M. Kintner, 22 Pitts. L. J. 150.

If the debtor demand a jury trial, the court may issue a special venire