$5027. [This section is repealed by act of June 22, 1874, ch. 390, § 14, 18 Stat. 182.]

ACTS OF 1867 and 1874, § 5028. If upon the hearing or trial the facts set forth in the petition are found to be true, or if upon default made by the debtor to appear pursuant to the order, due proof of service thereof is made, the court shall adjudge the debtor to be a bankrupt, and shall forthwith issue a warrant to take possession of his estate.

Statute revised March 2, 1867, ch. 176, § 42, 14 Stat. 537. Prior Statute April 4, 1800, ch. 19, § 5, 2 Stat. 23.

There is never any propriety in delaying the issuing of the warrant after an adjudication in an involuntary case. On the contrary, it ought to be and can be issued forthwith, as the statute requires, so that the property of the bankrupt may be forthwith taken possession of by the marshal, as the messenger of the court. In re Howes & Macy, 9 B. R. 423; s. c. 7 Ben. 102.

A day for the first meeting of creditors can be named in the warrant, although the schedule of creditors has not been prepared. The day must be not less than ten nor more than ninety days after the issuing of the warrant. In re Howes & Macy, 9 B. R. 423; s. c. 7 Ben. 102. See ante, p. 294.

ACTS OF 1867 and 1874, § 5029. The warrant shall be directed, and the property of the debtor shall be taken thereon, and shall be assigned and distributed in the same manner and with similar proceedings to those hereinafter 1 provided for the taking possession, assignment, and distribution of the property of the debtor, upon his own petition.

Statute revised - March 2, 1867, ch. 176, § 42, 14 Stat. 537. Prior Statute April 4, 1800, ch. 19, § 6, 2 Stat. 23.

There is no such thing as a surrender in involuntary bankruptcy. There is a seizure of property. An adjudication in involuntary bankruptcy, even though uncontested, does not make the debtor a voluntary bankrupt or give him the privilege of making, or the register the power of accepting, the surrender which only a voluntary bankrupt can make. Nor can it make any difference, that after an uncontested adjudication in an involuntary case, the bankrupt desires to make a surrender. The machinery of an involuntary case having been set in motion, the case must proceed as an involuntary case. The court has no discretion to vary the mode of procedure, or to substitute the register for the marshal, as the officer to act. In re Howes & Macy, 9 B. R. 433; s. c. 7 Ben. 102.

1 So amended by act of February 18, 1875, ch. 80, 18 Stat. 320.

An order may be passed allowing the debtor to sell his property at retail, and pay the proceeds to the messenger daily. In re Reiman & Friedlander, 11 B. R. 21; s. c. 13 B. R. 128; s. c. 7 Ben. 455; s. c. 12 Blatch. 562.

If the marshal under the warrant takes property out of the possession of a receiver appointed by a State court, he must return it. In re Glenham Manuf. Co., 1 Cent. L. J. 100.

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ACT OF 1898, CH. 3, § 7. Duties of Bankrupts. (a) The bankrupt shall (8) prepare, make oath to, and file in court within ten days, unless further time is granted, after the adjudication, if an involuntary bankrupt, and with the petition if a voluntary bankrupt, a schedule of his property, showing the amount and kind of property, the location thereof, its money value in detail, and a list of his creditors, showing their residences, if known, if unknown, that fact to be stated, the amounts due each of them, the consideration thereof, the security held by them, if any, and a claim for such exemptions as he may be entitled to, all in triplicate, one copy of each for the clerk, one for the referee, and one for the trustee; and (9) when present at the first meeting of his cerditors, and at such other times as the court shall order, submit to an examination concerning the conducting of his business, the cause of his bankruptcy, his dealings with his creditors and other persons, the amount, kind, and whereabouts of his property, and, in addition, all matters which may affect the administration and settlement of his estate; but no testimony given by him shall be offered in evidence against him in any criminal proceeding.

ACT OF 1867, § 5030. The order of adjudication of bankruptcy shall require the bankrupt forthwith, or within such number of days, not exceeding five, after the date of the order or notice thereof, as shall by the order be prescribed, to make and deliver, or transmit by mail, post-paid, to the messenger, a schedule of the creditors and an inventory and valuation of his estate in the form, and verified in the manner required of a petitioning debtor.

1

Statutes revised March 2, 1867, ch. 176, § 42, 14 Stat.. 537; July 27, 1868, ch. 258, § 2, 15 Stat. 228.

ACT OF 1867, § 5031. If the debtor has failed to appear in person, or by attorney, a certified copy of the adjudication shall be forthwith

1 So amended by act of June 22, 1874, ch. 390, § 15, 18 Stat. 182.

served on him by delivery or publication in the manner provided for the service of the order to show cause: and if the bankrupt is absent or can not be found, such schedule and inventory shall be prepared by the messenger and the assignee from the best information they can obtain.

Statute revised

- March 2, 1867, ch. 176, § 42, 14 Stat. 537. The service of the order of adjudication is a necessary incident to the duty of serving the warrant, although it is not embraced within the command of the writ. The service by publication is mainly a right or privilege personal to the bankrupt, and the delay in such service should not retard the general course of proceedings. The return of the service of the order may be made wholly on the warrant or separately on the warrant and order, but the latter course is preferable. In re Kennedy et al., 7 B. R. 337.

TITLE IX.

PROCEEDINGS TO REALIZE THE ESTATE FOR

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CREDITORS.

ACT OF 1898, CH. 1, § 1. Definition.-(9) "Creditor" shall include any one who owns a demand or claim provable in bankruptcy and may include his duly-authorized agent, attorney or proxy. ACT OF 1898, CH. 6, * * * § 55. Meetings of Creditors.— (a) The court shall cause the first meeting of the creditors of a bankrupt to be held, not less than ten nor more than thirty days after the adjudication, at the county seat of the county in which the bankrupt has had his principal place of business, resided, or had his domicile; or if that place would be manifestly inconvenient as a place of meeting for the parties in interest, or if the bankrupt is one who does not do business, reside, or have his domicile within the United States, the court shall fix a place for the meeting which is the most convenient for parties in interest. If such meeting should by any mischance not be held within such time, the court shall fix the date, as soon as may be thereafter, when it shall be held.

ACT OF 1898, CH. 6, § 58. Notices to Creditors. (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 waive notice in writing, of (1) all examinations of the bankrupt; (2) all hearings upon applications for the confirmation of compositions or the discharge of bankrupts; (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, and (8) the proposed dismissal of the proceedings.

(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.

ACT OF 1898, CH. 6, § 28. Designation of Newspapers.- (a) Courts of bankruptcy shall by order designate a newspaper published within their 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.

Under the law of 1867 it was held that a mere clerical mistake occurring in proceedings in bankruptcy, though resulting in a failure to specially notify creditor, will not destroy the effect of the proceedings as regards such creditor. Thornton v. Hogan, 17 B. R. 277.

ACT OF 1867, § 5032. The notice to creditors under warrant shall state: First. That a warrant in bankruptcy has been issued against the estate of the debtor.

Second. That the payment of any debts and the delivery of any property belonging to such debtor to him or for his use, and the transfer of any property by him, are forbidden by law.

Third. That a meeting of the creditors of the debtor, giving the names, residences, and amounts, so far as known, to prove their debts and choose one or more assignees of his estate, will be held at a court of bankruptcy, to be holden at a time and place designated in the warrant, not less than ten nor more than ninety days after the issuing of the same.

Statute revised March 2, 1867, ch. 176, § 11, 14 Stat. 521. Prior Statute - April 4, 1800, ch. 19, § 6, 2 Stat. 23.

The fixing of the time for the first meeting of creditors is a matter in the discretion of the register. In re Heyes, 1 B. R. 21; s. c. 1 Ben. 333; s. c 36 How. Pr. 249.

Where, after the issuing of the warrant, an amendment is made adding the names of a large number of creditors, a new warrant should be issued, to be served on all the creditors of the bankrupt. This warrant should briefly recite the proceedings that gave rise to the new warrant, and embrace the names contained in the original warrant, as well as those added by the amendment. If the newspaper notices have been properly given under the original warrant, they need not be repeated. In re Perry,