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As a general rule, any person who could maintain an action on a debt in his own name, such as an executor, factor, assignee in bankruptcy, may petition for adjudication in respect of such debt. An infant may petition, though the court may require his next friend to become responsible for costs.2

When the petition is brought in behalf of a creditor, the authority is sufficient if it is by a partner or joint contractor in behalf of all, by a general agent, by one having full authority to collect debts.8 In some cases which savor of refinement it has been held that a mere power to bring action will not authorize this peculiar form of suit; but a general appearance and denial of the merits would be a waiver.5

§ 45.

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A Sole Creditor may petition. If there be but one creditor of the supposed bankrupt, he is not to be deprived of the remedies of the bankrupt law, but may file a petition.

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§ 46. Time of filing. The petition must be filed within a certain time, in this country usually six months after the act of bankruptcy has been committed."

Time is reckoned as in the ordinary affairs of life, inclusive of the first day and exclusive of the last, or vice versa. If the act is done, for example, on the first day of January, a petition filed on the first day of July will be in time.8

1 Ex parte Goodwin, 1 Atk. 100; Rogers v. James, 7 Taunt. 147; Sadler v. Leigh, 4 Camp. 195; Rumsey v. George, 1 M. & S. 176; Ex parte Barber, 1 Gl. & J. 1; Ex parte Paddy, 3 Mad. 241; Ex parte Harding, 10 Jur. N. s. 412; Re Jones, 7 N. B. R. 506, Fed. Cas. No. 7450. [A survivor of two joint creditors may petition. Re Tucker, 2 Manson, 358.]

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2 Ex parte Brocklebank, 6 Ch. D. join in the petition, unless there are less 358. than twelve creditors in all. § 59 b.]

8 Pleasants v. Meng, 1 Dall. 380; Ex parte Hodgkinson, 19 Ves. 291; Ex parte Mitchell, 14 Ves. 597; Re Raynor, 7 N. B. R. 527, Fed. Cas. No. 11,597; Spencer v. Parke, 4 Hawaiian R. 452.

4 Guthrie v. Fisk, 3 B. & C. 178; Ex parte Bank of Ireland, 1 Moll. 261. See Williams v. Harding, L. R. 1 H. L. 9.

7 Act of 1867, § 35, 14 Stat. 536; R. S. § 5129. [Act of 1898, § 3 b, requires the petition to be brought within four months.]

8 Dutcher v. Wright, 94 U. S. 553; Richards v. Clark, 124 Mass. 491; Cooley v. Cook, 125 Mass. 406. See Bemis v. Leonard, 118 Mass. 502; Re

When, however, the act is complete, a petition may be filed on the same day.1

Where the act consists of an attachment, judgment lien, or transfer, the time does not begin to run until the recording of the lien or transfer, if by law it must or may be recorded; or until the open, notorious, and exclusive possession of personal property, if possession is required to give the transfer validity.2

If the last day is Sunday, or other dies non mentioned in the statute, that day is excluded in terms if the computation is by days; and by construction if it is by months or years.1

§ 47. Continuing Acts. The act of bankruptcy of remaining abroad with intent to defraud has been held to be continuous, or renewed day by day, so that the petition may be brought at any time while the act and intent exist, no matter how long after they first existed.5 Some judges hold that the suspension of commercial paper is an act of this character; but on this point the authorities are divided. In the somewhat analogous case of a debtor lying in prison for a certain time, it seems to have been taken for granted that the act was not of a continuing character; nor is it so in case of neglecting to dissolve an attachment."

8

§ 48. Amendments. The petition should clearly and distinctly allege the facts which give the court jurisdiction, and the acts of bankruptcy relied on.10

Heard, 8 Morrell, 144; Re Dawes,
4 Manson, 117. See Re North (1895),
2 Q. B. 264; Miner v. Goodyear Co.,
62 Conn. 410; Act of 1898, § 31.
1 Wydown's Case, 14 Ves. 80; Ex
parte Dufrene, 1 Ves. & B. 51; Ex
parte Kebble, 7 Morrell, 50.

2 Thornhill v. Link, 8 N. B. R. 521, Fed. Cas. No. 13,993; Act of 1898, § 3 b.

8 Act of 1867, § 48, 14 Stat. 540; R. S. 5013; Act of 1898, § 31.

4 Lang's Case, 2 N. B. R. 480, Fed. Cas. No. 8056; Cooley v. Clark, 125 Mass. 406.

Ex parte Bunny, 1 De G. & J. 309; Bunny v. Hunt, 11 Moore P. C.

189. [And so of absenting one's self to defeat creditors. Re Alderson (1895), 1 Q. B. 183.]

6 Baldwin v. Wilder, 6 N. B. R. 85, Fed. Cas. No. 806; Re Raynor, 7 N. B. R. 527, Fed. Cas. No. 11,597.

7 Mendenhall v. Carter, 7 N. B. R. 320, Fed. Cas. No. 9426.

8 Wallace v. Black well, 3 Drew. 538. 9 Gross v. Potter, 15 Gray, 556. 10 Re Drummond, 1 N. B. R. 231, Fed. Cas. No. 4093; Re Randall, Deady, 557, Fed. Cas. No. 11,551; Re Redmond, 9 N. B. R. 408, Fed. Cas. No. 11,632; Re Scammon, 10 N. B. R. 66, Fed. Cas. No. 12,430; Bank v. Sherman, 101 U. S. 403.

The court has full power to permit amendments to the petition at any stage of the proceedings, and this power will be liberally exercised. If the amendment introduces a distinct act, not before alleged, and is offered more than six months after its commission, it will be rejected, unless under special circumstances, because the statute bars a petition after this lapse of time.2 There might be fraud or concealment which would vary this rule.

It has been held that jurisdictional allegations or defects in the execution of the petition cannot be amended, but these decisions are unsound.1

§ 49. Joinder and Withdrawal of Petitioners. The petition is necessarily for the benefit of all the general creditors, and a creditor will be permitted to join at any time before or at the hearing. If a sufficient number of creditors failed to join in the original petition, yet the admission of others to join relates back, and makes the date of filing the petition the date of the bankruptcy. Where the statute requires more than one creditor to apply, no creditor who has joined in the petition can withdraw against the will of his co-petitioners. All the

1 Re Haughton, 1 N. B. R. 460, Fed. Cas. No. 6223; Re Gallinger, 1 Sawyer, 224, Fed. Cas. No. 5202; Re Craft, 2 Ben. 214, Fed. Cas. No. 3316; affirmed, 6 Blatch. 177, Fed. Cas. No. 3317; Hardy v. Bininger, 4 N. B. R. 262, Fed. Cas. No. 6057; Re Waite, 1 Lowell, 207, Fed. Cas. No. 17,044; Re Williams, 11 N. B. R. 145, Fed. Cas. No. 17,700; Re Dunhill, 1 Manson, 242.

144, Fed. Cas. No. 12,361; Cunningham v. Cady, 13 N. B. R. 525, Fed. Cas. No. 3480; Roche v. Fox, 16 N. B. R. 461, Fed. Cas. 11,974; Clay v. Towle, 78 Maine, 86.

5 Re Freedley, Crabbe, 544, Fed. Cas. No. 5079; Foster v. Golding, Gray, 50; Re Lacey, 12 Blatch. 322, Fed. Cas. No. 7965; Re Buchanan, 10 N. B. R. 97, Fed. Cas. No. 2073; Re Hawkes, 70 Maine, 213; Re Roberts,

2 Re Crowley, 1 N. B. R. 516; Re 71 Maine, 390; Clay v. Towle, 78 Maund (1895), 1 Q. B. 194.

3 Moore v. Harley, 4 N. B. R. 242, Fed. Cas. No. 9764; May v. Harper, 4 N. B. R. 478, Fed. Cas. No. 9333; Re Rosenfields, 11 N. B. R. 86, Fed. Cas. No. 12,061.

Re Birch, 10 N. B. R. 150; Re California Pac. R. Co., 11 N. B. R. 193, Fed. Cas. No. 2315; Ex parte Jewett, 11 N. B. R. 443, Fed. Cas. No. 7303; Re McKibben, 12 N. B. R. 97, Fed. Cas. No. 8859; Re Sargent, 13 N. B. R.

Maine, 86. The right is sometimes
regulated by statute. See Ex parte
Bristow L. R. 3 Ch. 247; Ex parte
Wier, L. R. 6 Ch. 875; Re Powell
(1891), 2 Q. B. 324; Baker v. Kin-
naird, 94 Ky. 5. Act of 1898, § 59 f.
6 Clay v. Towle, 78 Maine, 86.

7 Re Heffron, 6 Biss. 156, Fed. Cas. No. 6321; Re Hawkes, 70 Maine, 213; Re Vogel, 9 Ben. 498, Fed. Cas. No. 16,981; Re Sargent, 13 N. B. R. 144, Fed. Cas. No. 12,361.

petitioners together cannot dismiss the petition, even with the debtor's consent, unless the court concur.1

Creditors admitted to prosecute may rely on their own provable debts, if sufficient in amount, and are not bound to show that the original petitioners were creditors, because the purpose of the statute is to guard against collusive proceedings as well as unfair settlements.2

§ 50. Petitioning Creditor. By the law of England the petitioning creditor's debt must have been contracted before the act of bankruptcy was committed.3 The original reason was that all debts contracted after such an act were void, and therefore the supposed creditor was not a creditor; though this reason is no longer sound, the rule is maintained on the ground that a fraud cannot affect subsequent creditors, which is not universally true. The point is rarely taken in this country, and is of little importance. In one case the English law was followed."

§ 51. What Creditors estopped to petition. A creditor who has assented to an act of bankruptcy cannot set it up as the basis of a petition. If the act in question is making an assignment for creditors, any conduct, or even silence when there was opportunity to dissent, as at a meeting of creditors where the subject was discussed, will estop the petitioner.

1 Re Buchanan, 10 N. B. R. 97, Fed. Cas. No. 2073; Re McKeon, 11 N. B. R. 182, Fed. Cas. No. 8858; Re Sheffer, 17 N. B. R. 369, Fed. Cas. No. 12,742. See Re Hester, 22 Q. B. D. 632; Re Flatau (1893), 2 Q. B. 219.

2 See under a somewhat analogous statute, Ex parte Harris, L. R. 1 Ch. 469; Kynaston v. Davis, 15 M. & W. 705.

3 Robson, 7th ed., 210, citing Ex parte Holding, 1 Gl. & J. 97; Ex parte Charles, 14 East, 197; Moss v. Smith, 1 Camp. 489; Ex parte Roberts, 1 Mad. 74; Ex parte Bryant, 1 V. & B. 211; Ex parte Sharp, 3 M. D. & D. 490; Ex parte Hayward, L. R. 6 Ch. 546.

4 Ambrose v. Clendon, Cas. temp. Hard, 267.

In one

5 Ex parte Hayward, L. R. 6 Ch. 546.

Re Muller, Deady, 513, Fed. Cas. No. 9912. But see Phelps v. Clasen, Woolw. 204, Fed. Cas. No. 11,074.

7 Bamford v. Baron, 2 T. R. 594, note; Back v. Gooch, 4 Camp. 232, Holt N. P. 13; Ex parte Kilner, Buck, 104; Ex parte Battier, Buck, 426; Ex parte Cawkwell, 19 Ves. 233; Ex parte Shaw, 1 Mad. 598; Ex parte Bunn, 3 Dea. 119; Ex parte Tealdi, 1 M. D. & De G. 210; Ex parte Fernandes, 1 M. D. & De G. 114; Ex parte Payne, 1 De G. 534 ; Marshall v. Barkworth, 4 B. & Ad. 508; Olliver v. King, 8 De G. M. & G. 110; Tope v. Hockin, 7 B. & C. 101; Ex parte Alsop, 1 De G. F. & J. 289; Ex parte Stray, L. R. 2 Ch. 374; Perry v. Langley, 1 N. B. R. 559, Fed. Cas. No.

case a creditor was held to be bound, though he expressly dissented; but the accuracy of the report of this decision is doubted,2 and if well reported it is unsound.

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Assent given under mistake or misapprehension, without fault on the creditor's part, and more especially if the debtor has purposely misled him, will not be binding; and, of course, an arrangement which the debtor has not carried out within the time limited goes for nothing.4

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§ 52. Preferred Creditors. A preferred creditor cannot prove until he has surrendered his preference,5 and therefore cannot petition, unless the court can admit him to pay the amount of his preference into court.

It will be understood that creditors who are estopped from petitioning are not estopped from proving their debts if the debtor is made bankrupt and the assignment is broken up ;6 unless they have received a dividend which would operate as a preference, in which case they would be obliged to surrender it.5

§ 53. Who may defend. Not only the debtor, but any person whose rights will be affected by the adjudication, may be admitted to defend a petition in invitum, or to apply to set aside the proceedings, or to appeal, as the state of the case may require such as an attaching creditor, whose lien will be dissolved; one who is alleged to have received a preference, etc.;7

11,006; Re Schuyler, 3 Ben. 200, Fed.
Cas. No. 12,494; Re Spencer, 3 N. B. R.
512; Re Mass. Brick Co., 2 Lowell, 58,
Fed. Cas. No. 9259; Re Williams, 14
N. B. R. 132, Fed. Cas. No. 17,706;
Re Michael, 8 Morrell, 305; Re Adam-
son, 71 L. T. 579; Re Hawley, 4
Manson, 41; Re Woodroff, 4 Manson,
46; Re Murrieta, 3 Manson, 35.
Marr v. Washburn, 167 Mass. 35.

See

1 Hicks v. Burfitt, 4 Camp. 235, note. 2 Ex parte Bayly, M. & McA. 438; Ex parte Marshall, 1 M. D. & De G. 581, note.

3 Ex parte Marshall, 1 M. D. & De G. 575; Ex parte Hallowell, 3 M. & Ayr. 538.

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7 Merriam v. Sewall, Gray, 316; Farris v. Richardson, 6 Allen, 118; Brewster v. Shelton, 24 Conn. 140; Ex parte Jones, 3 Dea. & Ch. 697; Re Bergeron, 12 N. B. R. 385, Fed. Cas. No. 1342; Re Mendelsohn, 12 N. B. R. 533, Fed. Cas. No. 9420; Re Hatje, 12 N. B. R. 548, Fed. Cas. No. 6215; Re Jack, 13 N. B. R. 296, Fed. Cas. No. 7119; Re Williams, 14 N. B. R. 132, Fed. Cas. No. 17,706; Re Derby, 6 Ben. 232, Fed. Cas. No. 3815; Re

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