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ified on behalf of a creditor by an attorney in fact or an accredited agent. Wald v. Wehl (C. C. 1881) 6 Fed. 163; In re California Pac. R. Co. (D. C. 1874) Fed. Cas. No. 2,315. But in this case, proof of his agency or of his express authority to do the particular act is necessary. In re Rosenfields (D. C. 1871) 11 N. B. R. 86, Fed. Cas. No. 12,061. But if the petition is defective for failing to show such authority, it may be amended. In re California Pac. R. Co. (D. C. 1874) Fed. Cas. No. 2,315. Or supplementary proof may be received nunc pro tunc in the discretion of the court to establish the authority of the agent. In re Rosenfields (D, C. 1871) 11 N. B. R. 86, Fed. Cas, No. 12,061.
14. By officers or agents of corporation.-Where a corporation is a petitioning creditor, its name may be signed and the petition verified for it by its attorney, by an agent, or by one of its officers duly authorized to act for it in this particular. In re Chequasset Lumber Co. (D. C. 1901) 112 Fed. 56, 7 Am. Bankr. Rep. 87; Walker v. Woodside (C. C. A. 1908) 164 Fed. 680, 21 Am. Bankr. Rep. 132; In re Bellah (D. C. 1902) 116 Fed. 69, 8 Am. Bankr. Rep. 310; Merriam v. Sewall (1857) 8 Gray (Mass.) 316. The authority of an officer of a corporation to sign and verify the petition must be specially conferred by statute, by-law, or resolution of the directors, and must appear on the face of the petition or be shown by evidence. In re McNaughton (D. C. 1873) 8 N. B. R. 44, Fed. Cas. No. 8,912; Roche y. Fox (D. C. 1877) 16 N. B. R. 461, Fed. Cas. No. 11,974.
The president of a company has no inherent power to take the necessary steps to have the corporation adjudged bankrupt, and hence a voluntary petition filed on behalf of the corporation, and signed and verified by the president, but which fails to show that any action had been taken by the board of directors authorizing the filing of the petition, or empowering the president to execute the petition in the name of the corporation, is insufficient to confer jurisdiction on the court of bankruptcy. In re Jefferson Casket Co. (D. C. 1910) 182 Fed. 689, 25 Am. Bankr. Rep. 663.
15. Amendment of petition.—The referee in bankruptcy has jurisdiction and discretion to order amendments to be made in the petition and schedules of a voluntary bankrupt referred to him, in particulars as to which he finds them defective or insufficient. In re Brumelkamp (D. C. 1899) 95 Fed. 814, 2 Am. Bankr. Rep. 318.
An application for leave to amend is fatally defective if it does not state the reason for the error or defect sought to be amended, but the applicant may be granted time to supply this omission. In re Portner (D. C. 1907) 149 Fed. 799, 18 Am. Bankr. Rep. 89.
The provision of General Order No. 11 (post, § 9614), with reference to allowing amendments, does not abrogate or restrict the general power of amendment in other respects vested in the courts of bankruptcy. In re Bellah (D. C. 1902) 116 Fed. 69, 8 Am. Bankr. Rep. 310; In re Hill (D. C. 1842) Fed. Cas. No. 6,485:
The privilege of amending a petition in bankruptcy rests in the sound judicial discretion of the court, which will not be interfered with on review unless an abuse of discretion is shown. Armstrong v. Fernandez (1908) 208 U. S. 324, 28 Sup. Ct. 419, 52 L. Ed. 514; Sabin v. Blake-McFall Co. (1915) 223 Fed. 501, 139 C. C. A. 49; In re Rosenblatt (C. C. A. 1912) 193 Fed. 638, 28 Am. Bankr. Rep. 401; Woolford v. Diamond State Steel Co. (D. C. 1905) 138 Fed. 582, 15 Am. Bankr. Rep. 31.
Leave to amend a defective petition in involuntary bankruptcy should be denied where the amendment would not be in furtherance of justice nor in the interest of creditors. In re Farthing (D. C. 1913) 202 Fed. 557.
It is proper to refuse to allow an amendment as to jurisdictional facts, or one going to the very foundation of the proceeding. In re Wood (D. C. 1873) 13 N. B. R. 96, Fed. Cas. No. 17,935; In re Craft (C. C. 1868) 2 N. B. R. 111, Fed. Cas. No. 3,317; In re Farthing (D. C. 1913) 202 Fed. 557, 29 Am. Bankr. Rep. 732.
A creditor who has joined in the petition cannot object to an amendment thereof which is necessary to the prosecution of the same to final effect. In re Sargent (D. C. 1875) 13 N. B. R. 144, Fed. Cas. No. 12,361.
Amendments to a petition relate back to the time of the filing of the original petition, and have the same force and effect as if included in the petition itself. Millan v. Exchange Bank (1910) 183 Fed. 753, 106 C. C. A. 327, 24 Am. Bankr. Rep. 889; Ryan v. Hendricks (1908) 166 Fed. 94, 92 C. C. A. 78, 21 Am. Bankr. Rep. 570; Sherman v. International Bank (C. C. 1878) Fed. Cas. No. 12,765. For this reason, where a petition, sufficient in form to give the court jurisdiction, is filed within four months after the commission of the act of bankruptcy alleged, it is no sufficient objection to the allowance of an amendment that the four months have more than elapsed at the time the amendment is applied for. In re Shoesmith (1905) 135 Fed. 684, 68 C. C. A. 322, 13 Am. Bankr. Rep. 645; International Bank v. Sherman (1879) 101 U. S. 403, 25 L. Ed. 866; Hark v. C. M. Allen Co. (1906) 146 Fed. 665, 77 C. C. A. 91, 17 Am. Bankr. Rep. 3; In re Brown Commercial Car Co. (C. C. A. 1915) 227 Fed. 387. A petition in bankruptcy is amendable, and if the amendment does not set up new matter, or
cause of action, the amended pleading will be regarded as a continuation of the original, and will
his notes to one of the creditors for the balance of his debt, the notes so given are void. Tinker v. Hurst (1888) 70 Mich. 159, 38 N. W. 16, 14 Am. St. Rep. 482.
A composition may be set aside on account of a fraudulent or secret advantage given to one creditor, though it does not appear that the bankrupt himself procured it or was a party to it. In re Sawyer (D. C. 1876) Fed. Cas. No. 12,395. Where an offer of money was made to two creditors, by the bankrupt's bookkeeper, to induce them to consent to a composition, and the bankrupt had no actual knowledge of the offer, but the bookkeeper was employed generally to see the creditors and procure their consent, held, that the bankrupt was chargeable with what his representative did in the matter, and the proceeding was vitiated and the composition must fail. In re Bennett (D. C. 1876) Fed. Cas. No. 1,312. Where a creditor was induced to consent to the composition by an undefined expectation of advantage held out to him by the indorser of the note which the creditor held, the composition was properly set aside, though it did not appear that the bankrupt had anything to do with it. In re Sawyer (D. C. 1876) Fed. Cas. No. 12,395. The signature of a creditor to the composition agreement, obtained upon the promise of another creditor to give him the promisor's trade in the future will invalidate the composition. In re Shine (D. C. 1877) Fed. Cas. No. 12,788.
That creditors holding notes of a bankrupt corporation, indorsed by individuals connected with the bankrupt, before accepting a composition, obtained an agreement by such indorsers that they should not thereby be discharged, does not invalidate the composition, since that would be the legal result of it without any promise. In re B. Jacobson & Son Co. (C. C. A. 1912) 196 Fed. 949, 28 Am. Bankr. Rep. 492.
A bankrupt may use his credit to acquire the money required for the purposes of a composition offered conformably to the bankruptcy act to his . creditors, and what inducement he gives to the person loaning him the money is a matter which does not concern the existing creditors, and hence does not affect the validity of the composition. And extortion or attempted extortion
a consideration for acting or forbearing to act in bankruptcy proceedings (which is expressly forbidden by the statute) cannot be inferred from a promise by the bankrupt, after adjudication, that if certain creditors would loan him a specified sum to be used in paying the consideration of an offered composition, he would pay them the balance of their claim when such composition was confirmed, after deducting their share of the consideration of the composition, which promise they accepted, making the loan for the said purpose. Zavelo V. Reeves (1913):
227 U. S. 625, 33 Sup. Ct. 365, 57 L. Ed. 676, 29 Am. Bankr. Rep. 493. And see Hickman V. Galveston Dry Goods Co. (1906) 42 Tex. Civ. App. 582, 94 S. W. 157.
When a bankrupt has proposed terms of composition and the same have been approved by a majority of the creditors, such creditors and their attorneys have an interest in common in securing an acceptance of the composition offered, and thereafter may properly participate in securing the necessary consents. And it is not improper for the attorney for the receiver, having secured powers of attorney to that end, to represent and vote for creditors in favor of the composition, so long as no false statements are made, and there is no trickery or collusion between creditors and the bankrupt, and no fraud practiced. In re McLellan (D. C. 1913) 204 Fed. 482, 30 Am. Bankr. Rep. 325.
9. Deposit for payment. — The requirement of this section as to the deposit of money on a composition agreement is imperative, and if it is not complied with, the composition will not be confirmed, although the application is not opposed by any creditor. In re Frear (D. C. 1903) 120 Fed. 978, 10 Am. Bankr. Rep. 199. Confirmation of the composition will be withheld where the money deposited to cover the cost of the proceedings is not sufficient in amount. In re Rider (D. C. 1899) 96 Fed. 808, 3 Am. Bankr. Rep. 178. The "cost of the proceedings" includes any fees which may be payable under the statute in disbursing the money. In re Mayer (D. C. 1900) 2 Nat. Bankr. News, 527.
Where a bankrupt obtained from a third person and deposited funds to carry out a composition which was subsequently withdrawn, expenses incurred pending the composition, which would not have been incurred if the proceedings had gone forward as originally contemplated, were payable out of the deposit. In re Wiener (D. C. 1914) 215 Fed. 278. Where a third person advances money to a bankrupt, to be deposited to perform an offer of composition, such deposit is liable for expenses incurred by reason of the stay secured by the bankrupt by the composition proceedings, if they fail, though not for delay occasioned by the opposition of a creditor to the offer of composition. In re Wiener (D. C. 1914) 217 Fed. 173.
On petition to the court of bankruptcy, the bankrupt may be relieved from the necessity of depositing the sum nec. essary to pay the costs and fees of the proceedings, on filing a stipulation, acceptable to the court, that it will pay all such costs and fees as if the money were actually in court. In re J. B. White & Co. (D. C. 1915) 225 Fed. 796.
The "debts which have priority," for the purposes of this section, include all
amendment. In re Bellah (D. C. 1902) 116 Fed. 69, 8 Am. Bankr. Rep. 310. A petition which alleges the insolvency of the debtor at the time of the filing of the petition may be changed by amendment so as to charge insolvency at the date of the execution of the alleged preference. In re Pangborn (D. C. 1910) 185 Fed. 673, 26 Am. Bankr. Rep. 40. But an amended petition, executed as such by a creditor, to be filed in proceedings previously instituted, cannot thereafter and after the proceedings have been dismissed by the court, be converted into an original petition by striking out the word "amended," and so made the basis of a new and independent proceeding. In Hyde & Gload Mfg. Co. (D. C. 1900) 103 Fed. 617, 4 Am. Bankr. Rep. 602.
The allegations in the petition concerning the commission of an act of bankruptcy may also be amended, where necessary, either in the way of being made more specific or in being made to conform more closely to the facts as developed. Thus, if these allegations are vague, general, and lacking in detail, the particulars may be supplied by amendment. In re Cliffe (D. C. 1899) 94 Fed. 354, 2 Am. Bankr. Rep. 317; In re Nelson (D. C. 1899) 98 Fed. 76, 1 Am. Bankr. Rep. 63.
If the petition charges the commission of an act of bankruptcy by a transfer of property with intent to hinder or defraud creditors, but it is developed at the hearing that the transfer was made in satisfaction of an existing debt or for a consideration, it is proper for the court to permit an amendment charging that the transfer was made with intent to prefer the creditor benefited by it. Hark v. C. M. Allen Co. (1906) 146 Fed. 665, 77 C. C. A. 91, 17 Am. Bankr. Rep. 3; In re Hark (D. C. 1905) 142 Fed. 279, 15 Am. Bankr. Rep. 460; In re Henderson (D. C. 1881) 9 Fed. 196.
Setting up new act of bank. ruptcy.-An amendment setting up a new act of bankruptcy, not charged in the original petition, is in the discretion of the court, and its allowance is not improper, especially where the testimony at the trial or hearing plainly discloses the commission of an act of bankruptcy additional to that alleged in the petition, and particularly if the proof fails as to the act originally charged, so that the proceeding will be saved and the ends of justice promoted by granting the amendment. International Bank v. Sherman (1879) 101 U. S. 403, 25 L. Ed. 866; Chicago Motor Vehicle Co. v. American Oak Leather Co. (1905) 141 Fed. 518, 72 C. C. A. 576, 15 Am. Bankr. Rep. 804; In re Hamrick (D. C. 1909) 175 Fed. 279, 23 Am. Bankr. Rep. 721; In re Nusbaum (D. C. 1907) 152 Fed. 835, 18 Am. Bankr. Rep. 598; In re Miller (D. C. 1900) 104 Fed. 764, 5 Am. Bankr. Rep. 140; In re Lange (D. C. 1899)
97 Fed. 197, 3 Am. Bankr. Rep. 231; In re Mercur (D. C. 1899) 95 Fed. 634, 2 Am. Bankr. Rep. 626; In re Strait, 1 Nat. Bankr. News, 354; In re Gallinger (D. C. 1870) 4 N. B. R. 729, Fed. Cas. No. 5,202; Hardy v. Bininger, 4 N. B. R. 262, Fed. Cas. No. 6,057. An amendment may be allowed alleging any act of bankruptcy within the general scope of the facts set forth in the original petition. In re Irish (D. C. 1915) 228 Fed. 573. But it is necessary for the petitioning creditors, in order to obtain this privilege, to explain or excuse their omission to allege the new act of bankruptcy in their original petition. White V. Bradley Timber Co. (D. C. 1902) 116 Fed. 768, 8 Am. Bankr. Rep. 671; Wilder v. Watts (D. C. 1905) 138 Fed. 426, 15 Am. Bankr. Rep. 57.
Numerous cases, however, rule that a new or entirely different act of bankruptcy cannot be introduced into the petition by an amendment. In re Pure Milk Co. (D. C. 1907) 154 Fed. 682, 18 Am. Bankr. Rep. 735; In re Harris (D. C. 1907) 155 Fed. 216, 19 Am. Bankr. Rep. 204; In re Sears (1902) 117 Fed. 294, 54 C. C. A. 532, 8 Am. Bankr. Rep. 713; Reed v. Crowley (D. C. 1868) 1 N. B. R. 516, Fed. Cas. No. 11,644; In re Leonard (D. C. 1871) 4 N. B. R. 562, Fed. Cas. No. 8,255; Stern v. Schonfield (C. C. 1878) Fed. Cas. No. 13,377.
If the introduction of a new act of bankruptcy by amendment is permissible, it is wholly improper to permit an amendment of this kind where the new act of bankruptcy proposed to be set up was committed more than four months before the application for leave to amend, so that it could not be made the basis of a new original petition. In re Haff (1905) 136 Fed. 78, 68 C. C. A. 646, 13 Am. Bankr. Rep. 362; Walker v. Woodside (1908) 164 Fed. 680, 90 C. C. A. 644, 21 Am. Bankr. Rep. 132; In re Pure Milk Co. (D. C. 1907) 154 Fed. 682, 18 Am. Bankr. Rep. 735; In re Perlhefter (D. C. 1910) 177 Fed. 299, 25 Am. Bankr. Rep. 576.
18. Filing and presenting petition.Proceedings in involuntary .bankruptcy take date from the filing of the petition, and not from the issuance of process or its service. In re Appel (D. C. 1900) 103 Fed. 931, 4 Am. Bankr. Rep. 722; In re Lewis (D. C. 1899) 91 Fed. 632, 1 Am. Bankr. Rep. 458; First Nat. Bank v. Masterson (1911) 29 Okl. 76. 116 Pac. 162.
The filing of a petition in bankruptcy is a caveat to all the world and in effect an attachment and injunction. In re Schow (D. C. 1914) 213 Fed. 514; Hamilton v. Smith (1907) 36 Mont. 1, 92 Pac. 32, 122 Am. St. Rep. 330.
It is not necessary that the petition should be filed or presented to the court simultaneously with its execution; the fact that it was attested a number of
tions of objection to the confirmation of an offer of composition rests on the objecting creditors. Bolles V. Kelley (1915) 222 Fed. 63, 137 C. C. A. 601; In re Rivkin (D. C. 1914) 216 Fed. 218; In re H. J. Arrington Co. (D. C. 1902) 113 Fed. 498, 8 Am. Bankr. Rep. 64; City Nat. Bank v. Doolittle (1901) 107 Fed. 236, 46 C. C. A. 258, 5 Am. Bankr. Rep. 735.
The court will not permit objections to an offer in composition which had been heard and sustained to be withdrawn. In re Levenson (D. C. 1914) 223 Fed, 874.
The bankrupt has the right and capacity to appear and controvert the ob. jections offered by creditors. French (D. C. 1909) 181 Fed. 583, 25 Am. Bankr. Rep. 77.
13. Confirmation and proceedings thereon.-It is the duty of the court to confirm a composition if it is for the interest of creditors, and the bankrupt has not done or omitted to do anything to prevent a discharge, and the offer and acceptance are in good faith, and have not been procured by improper means. In re McLellan (D. C. 1913) 204 Fed. 482, 30 Am. Bankr. Rep. 325; In re Silberstein (D. C. 1915) 225 Fed. 665.
As this section contemplates that dissenting creditors may be compelled to accept the percentage which is satisfactory to the majority, and may be deprived of their remedies on the balance of their claims, it should be strictly construed. Broadway Trust Co. v. Manheim (1905) 47 Misc. Rep. 415, 95 N. Y. Supp. 93.
The court can inquire whether a composition offered by a bankrupt conforms to the requirements of subdivision "d" of this section though it has been approved by a majority of the creditors and there is no objection made thereto. In re Kinnane Co. (D, C. 1915) 221 Fed. 762. Denying confirmation (D. C. 1914) 217 Fed. 488.
Refusal to confirm composition offered by bankrupt and recommended by referee, and remand of matter to referee, in order that claimant, denied a hearing because of delay in filing and serving specifications, might have its day in court, held within the discretion of the trial judge. In re Soloway & Katz (C. C. A. 1914) 211 Fed. 333.
To justify the confirmation of a composition, it must appear to the court to be for the best interest of all the creditors, not merely for the advantage of certain creditors or of a certain class. In re Hannahs (D. C. 1876) Fed. Cas. No. 6,033; In re Purcell (D. C. 1878) 18 N. B. R. 447, Fed. Cas. No. 11,470. Though it is opposed by only a small minority of the creditors, yet the court has power to reject it if satisfied that a settlement of the estate through the agency of a trustee in bankruptcy would be more for their interest. In re Whipple (C. C. 1858) Fed. Cas. No. 17,513.
The approval of a majority of the creditors is prima facie evidence that the acceptance of the offer will be for the best interest of all concerned, and the burden of proof will rest upon those who oppose the confirmation on this ground. In re Goldstein (D. 0. 1914) 213 Fed. 115; In re Barde (D. C. 1913) 207 Fed. 654; In re Hoxie (D. C. 1910) 180 Fed. 508, 25 Am. Bankr. Rep. 32; In re Waynesboro Drug Co. (D. C. 1907) 157 Fed. 101, 19 Am. Bankr. Rep. 487; In re Joseph (C. C. 1885) 24 Fed. 137.
If objection is interposed by a minor. ity, it becomes the duty of the court to make an independent investigation and determination. In re Waynesboro Drug Co. (D. C. 1907) 157 Fed. 101, 19 Am. Bankr. Rep. 487; In re Keiler (D. C. 1878) 18 N. B. R. 36, Fed. Cas. No. 7,648.
In determining this question, the offer of composition should be compared with what the creditors would probably receive upon a settlement of the estate by a trustee in bankruptcy, and not with what the debtor might possibly be able to pay them. In re Whipple (D. C. 1875) Fed. Cas. No. 17,513. Only those assets should be considered which have been surrendered or can be recovered and made available for distribution. In re Linderman (D. C. 1909) 166 Fed. 593, 22 Am. Bankr. Rep. 131.
14. Grounds for refusing confir. mation.-As to the objection that the barkrupt has been guilty of acts or omissions which would bar his discharge, if it is clearly made out this objection must prevail, and the composition must be rejected, however advantageous to creditors it might have been, and though it will result in their securing a smaller percentage of their debts than they would have received under the composition. In re Griffin (D. C. 1910) 180 Fed. 792, 25 Am. Bankr. Rep. 206; In re Comstock (D. C. 1907) 154 Fed. 747, 19 Am. Bankr. Rep. 65; In re Godwin (D. C. 1903) 122 Fed. 111, 10 Am. Bankr. Rep. 252.
An objection of this kind will not be sustained unless it appears that the conduct of the bankrupt to which exception is taken was willfully and intentionally false, fraudulent, or deceitful. This applies to the objection that he failed to keep proper books of account or concealed or destroyed his books or accounts. In re Barde (D. C. 1913) 207 Fed. 654; In re Silberstein (D, C. 1915) 225 Fed. 665; In re Rivkin (D. C. 1914) 216 Fed. 218; In re Sabse. vitz (D. C. 1912) 197 Fed. 109, 28 Am. Bankr. Rep. 623; In re Olman (D. C. 1902) 134 Fed. 681, 13 Am. Bankr, Rep. 395; In re Wilson (D. C. 1901) 107 Fed. 83, 5 Am. Bankr. Rep. 849; In re Barde (D, C. 1913) 207 Fed. 654. Or that he omitted to include in his schedule property which belonged to his estate. In re B. Jacobson & Sop
ceive service of process within the state. In re Magid-Hope Silk Co. (D. C. 1901) 110 Fed. 352, 6 Am. Bankr. Rep. 610. If the corporation has been dissolved by decree of a state court, and a receiver appointed to wind up its affairs, service may be made by publication, as this is a case where the defendant cannot be found. In re Washington Marine Ins. Co. (D. C. 1868) Fed. Cas. No. 17,246.
While a defendant may ordinarily waive service of process, this cannot be done in a bankruptcy proceeding, or at least it will not justify an adjudication before the return day of the writ, because creditors have the right to intervene and plead to the petition, and they must be allowed the full statutory time for that purpose.
In re L. Humbert Co. (D. C. 1900) 100 Fed. 439, 4 Am. Bankr. Rep. 76.
If the defendant is temporarily absent from the district, but has his dwelling house or usual place of abode therein, the service may be made by leaving a copy there with some adult member of the family, as authorized by the equity rules, this being a personal service within the meaning of the bankruptcy act. In re Norton (D. C. 1906) 148 Fed. 301, 17 Am. Bankr. Rep. 504,
The validity of service was sustained where it had been effected by leaving the subpæna and a copy of the petition with the clerk of a hotel of which the bankrupt was the proprietor and where he usually resided, although, at the time, he was absent in another town in the last stage of a fatal illness. In re Risteen (D. C. 1903) 122 Fed. 732, 10 Am. Bankr. Rep. 494.
The equity rule does not require the copy of the process to be left with a person within the dwelling-house, but is satisfied by a service at the door, outside the house. Phænix Ins. Co. v. Wulf (C. C. 1880) 1 Fed. 775.
In the case of bankruptcy proceedings against an absconding debtor, the law requires the publication of an order designating a day on which the bankrupt is required to appear and answer, demur, or plead; and where the order for publication did not designate a time for appearance, and publication was made of the citation issued by the clerk directing the marshal to summon the bankrupt, instead of the order for publication, it was held that this conferred no jurisdiction on the court to make an adjudication. Sidney L. Bauman Diamond Co. v. Hart (C. C. A. 1911) 192 Fed. 498, 27 Am. Bankr. Rep. 632.
If the defendant in bankruptcy desires to raise the objection that the court has no jurisdiction because the writ was improperly served, he may do so by motion or by defense at the trial, but not by demurrer. In re Seaboard Fire Underwriters (D. C. 1905) 137 Fed. 987, 13 Am. Bankr. Rep. 722. A gen. eral appearance will waive all irregu
larities in the service of process, and confer jurisdiction of the defendant's person. In re Ulrich (D. C. 1869) Fed. Cas. No. 14,327. Where there are several defendants, as in the case of a partnership, one who was not served may appear by attorney. In re Weyhausen (D. C. 1867) Fed. Cas. No. 17,474.
20. Notice to creditors.-Notice to creditors of the commencement of bankruptcy proceedings by the filing of a petition is not necessary, the filing of the proper petition by the proper parties in the proper court conferring jurisdiction, and being in itself a lis pendens and notice to all concerned. In re Billing (D. C. 1906) 145 Fed. 395, 17 Am. Bankr. Rep. 80. And see International Bank v. Sherman (1879) 100 U. S. 406, 25 L. Ed, 866; Mueller v. Nugent (1902) 184 U. S. 14, 22 Sup. Ct. 269, 46 L. Ed. 405, 7 Am. Bankr. Rep. 224; Wiley v. Pavey (1878) 61 Ind. 457, 28 Am. Rep. 677. There is an exception in the case where the bankrupt alleges in his answer the existence of more than twelve creditors, and files a sworn list of his creditors, whereupon the court shall cause such creditors to be notified of the proceeding, it being in the discretion of the court to decide whether notice shall be served personally or by mail, and by whom the service shall be made. In re Tribelhorn (1905) 137 Fed. 3, 69 C. C. A. 601, 14 Am. Bankr. Rep. 491. Notice of bankruptcy proceedings, given to the owner of an interest in a judgment against the bankrupt, is not notice to the other co-owner. Strickland v. Capital City Mills (1906) 74 S. C. 16, 54 S. E. 220, 7 L. R. A. (N. S.) 426.
Although a creditor has had no notice of the petition, this will not entitle him to impeach the decree of adjudication, where the records show a regular proceeding. The fact that his name did not appear on the list of creditors and that he was not notified of the proceeding would not affect the jurisdiction of the court to proceed to an adjudication, nor will it affect the trustee's right to maintain an action against him to recover a preference or to set aside a fraudulent conveyance. Roberts Fernald (1903) 72 N. H. 198, 55 Atl. 942.
21. Parties.-Persons having a lien on the property of a bankrupt passing to his trustee are not parties to the bankruptcy proceeding, unless they come into the bankruptcy court to enforce their rights. In re Reading Hat Mfg. Co. (D. C. 1915) 224 Fed. 786. The appearance of a nonresident as a witness in bankruptcy proceedings, in obedience to a subpæna, does not make him a party to the proceedings. In re Geller (D. C. 1914) 216 Fed. 558. Where an alleged nonresident of the district was claimed to be a member of a bankrupt partnership, but was not