ner, C. C. A., 131 Fed. 57; Re Spalding, C. C. A., 139 Fed. 244; Re Edward Ellsworth Co., 173 Fed. 699. But see Re Pickens Mfg. Co., 158 Fed. 894. So where the petition or bill upon which the appointment was made alleges insolvency and the order states that the appointment is made on consideration of the foregoing petition," Doyle-Kidd Dry Goods Co. v. Sadler-Lusk Trading Co., 206 Fed. 813; parol evidence is then inadmissible to prove the contrary. Ibid. Where' the bill upon which the appointment is made alleges insolvency, it will be presumed that that was a ground for such appointment, although other grounds therefor were named, and the decree does not state specifically which influenced the court; Lowenstein v. McShane Mfg. Co., 130 Fed. 1007; Hooks v. Aldridge, C. C. A., 145 Fed. 865; Beatty v. Andersen Coal Min. Co., C. C. A., 150 Fed. 293; Re Kennedy Tailoring Co., 175 Fed. 871; unless insolvency is not a cause for a receivership under the law of the State. Re Spalding, C. C. A., 139 Fed. 244. But see Exploration Mercantile Co. v. Pacific H. & S. Co., C. C. A., 177 Fed. 825. Where the definition of insolvency by the State statute is broader than that in the Bankruptcy Act, an appointment for the former reason is not a cause for bankruptcy, unless the facts show that the case falls within the latter law. Re Douglas Coal & Coke Co., 131 Fed. 769, 774, 12 Am. B. R. 539; Re Golden Malt Cream Co., C. C. A., 164 Fed. 326. Where

the appointment was made in fact because of insolvency, although there was no such statement in the pleadings or decrees, it was, held that there was an act of bankruptcy. Re Beatty, C. C. A., 150 Fed. 293; Re Belfast Mesh Underwear Co., 153 Fed. 224. But see Re Columbia Real Estate Co., 205 Fed. 677. In such a case, the question whether the receiver was appointed on the ground of insolvency might be for the jury. Blue Mountain Iron & Steel Co. v. Portner, C. C. A., 131 Fed. 57. For example, upon the dissolution and liquidation of the assets of a corporation. Re Bennett Shoe Co., 140 Fed. 687; or joint stock company, Re Hercules Atkin Co., 133 Fed. 813, without any proceeding in the court. Where a sheriff took possession of the personal property of a corporation under a special writ of fieri facias, with statutory authority to distribute the proceeds among all of its creditors, it was held that that was in fact the appoinment of a trustee because of insolvency and constituted an act of bankruptcy. Re International Coal Min. Co., 143 Fed. 665.

6 Blue Mountain Iron & Steel Co. v. Portner, C. C. A., 131 Fed. 57; Re Wm. S. Butler & Co., C. C. A., 207 Fed. 705. The appointment of a temporary receiver to preserve the property until it can be determined whether insolvency exists is insufficient. Zugalla v. Mercantile Agency, C. C. A., 142 Fed. 927, 16 Am. B. R. 67. See Re Hudson River El. Power Co., 173 Fed. 934.

7 Re Hercules Atkin Co., 133 Fed. 813.

§ 626. 130 St. at L. 544, 547, § 3. The admission may be made in the course of a previous bankruptcy proceeding, Re D. F. Herlehy Co., 247 Fed. 369, as to what is not such an admission, see Re Standard Shipyard Co., 262 Fed. 522.

2 Re Wilmington Hosiery Co., 120 Fed. 179; Re Berthoud, 231 Fed. 530. But see Brinkley v. Smithwick, 126 Fed. 686.

3 Re Duplex Radiator Co., 142 Fed. 906, 15 Am. B. R. 324; Re Moench, C. C. A., 130 Fed. 685, 12 Am. B. R. 240; affirming 123 Fed. 965; s. c., 123 Fed. 977, 10 Am. B. R. 656; criticised, XVII Harv. L. Rev. 131; Re Russell Wheel & Foundry Co., 222 Fed. 569; Re Wellesley, 252 Fed. 854.

4 Re Kersten, 110 Fed. 929. But not, it has been held, against the consent of the others. Re Wellesley, 252 Fed. 854.

5 Re Marine & Conveyor Co., 91 Fed. 630; Re Mutual Mercantile Agency, 111 Fed. 152; Re Moench, C. C. A., 130 Fed. 685, 12 Am. B. R. 240. It has been held: that in California, Re Am. Guarantee & Secur

ity Co., 192 Fed. 405, and New York, Re Lisk Mfg. Co., 167 Fed. 411; Re Moench & Sons Co., C. C. A., 130 Fed. 685, 66 C. C. A., 37; the corporation may make the admission through a resolution of its board of directors. But an admission signed by a majority of its directors individually is ineffective. Re Gold Run Min. & Tunnel Co., 200 Fed. 162.

The directors of a New York corporation may authorize an officer to make the statutory admission, if not forbidden by any by-law. Re Lisk Mfg. Co., 167 Fed. 411; where there was a failure to notify some of the directors who lived in a distant State, but neither the stockholders, nor a new member subsequently elected, made any attempt for several months to vacate a receivership obtained in the bankruptcy proceedings. See also, Re Rollins Gold & Silver Min. Co., Fed. 982, 985; Re Moench & Sons Co., 123 Fed. 965, aff'd C. C. A., 130 Fed. 685, 66 C. C. A. 37. It seems that the directors of an Arizona Powder Co. v. Geis, C. C. A., 204 Fed. 565 (where two of the directors, whose presence was required for a quorum, were cred

102

itors); a California, Re American Guarantee & Security Co. of, 192 Fed. 405; Michigan, Re Riley, Talbot & Hunt, 15 Am. B. R. 159; Re Russell Wheel & Foundry Co., 222 Fed. 569; New Jersey, Re Mutual Mercantile Agency, 111 Fed. 152; Rhode Island, Re Marine & Conveyor Co., 91 Fed. 630; and Wisconsin, Re T. L. Kelly Dry Goods Co., 102 Fed. 748, 4 Am. B. R. 528; corporation may do the same without the consent of the stockholders. See, also, Re Riley, Talbott & Hunt, 15 Am. B. R. 159. But that a corporation of Massachusetts, Re Bates Mach. Co., 91 Fed. 625; or Oregon, Re Quartz Gold Min: Co., 157 Fed. 243; cannot. In the absence of a by-law, a vote by a majority of the board is sufficient, Re Marine & Conveyor Co., 91 Fed. 630; and it was held that a failure to give notice of the meeting to three nominal directors, who had never attended since the organization of the board, did not affect the validity of the act, Re Marine & Conveyor Co., 91 Fed. 630.

6 Re Burbank Co., 168 Fed. 719; Re Southern Steel Co., 169 Fed. 702, holding that a resolution authorizing an attorney to represent the corporation in any bankruptcy proceedings pending or that might be

brought, and, in his discretion, to agree to the appointment of receivers, was insufficient. See BakerRicketson Co., 97 Fed. 189.

7 Re Bates Mach. Co., 91 Fed. 625; Re Burbank Co., 168 Fed. 719.

8 Re Wilmington Hosiery Co., 120 Fed. 179. But see Brinkley v. Smithwick, 126 Fed. 686.

9 Re Hudson River El. Power Co., 173 Fed. 934.

§ 627. 130 St. at L. 544, 561, § 59. An answer to an involuntary petition cannot be treated as a petition in voluntary bankruptcy, Re Condon, C. C. A., 209 Fed. 800; but where, subsequent to the institution of involuntary proceedings against a corporation, its directors passed a resolution consenting to the adjudication, it was held that such proceedings became in substance voluntary, although involuntary in form. Re New Amsterdam Motor Co., 180 Fed. 943. It has been held that a petition of voluntary, filed subsequent to one of invountary, bankruptcy will not be sustained, when the result would be to validate certain acts complained of under that first filed. Re Dwyer, 112 Fed. 777. The filing of a voluntary petition is not in itself an act of bankruptcy and does not justify an involuntary proceeding.

Re J. M. Ceballos & Co., 161 Fed. 445; Re Lachenmaier, C. C. A., 203 Fed. 32. They must be filed in the clerk's office; not sent immediately to the judge. Re Sykes, 106 Fed. 669. The clerk's docket should contain a memorandum of the filing of both copies of the petition. Re Stevenson, 94 Fed. 110; Re Dupree, 97 Fed. 28. The proceedings in bankruptcy are begun by the filing of the petition; not by the service of process upon the respondent. Re Appel, 103 Fed. 931. Where a verified petition accompanied by schedules was, after its filing, in part withdrawn, and a new petition filed with certain portions of the old petition pasted thereon containing also additional schedules and assets it was held that the day when the second petition was filed was the date of filing, and that the filing of the first should be disregarded. Re Washburn, 19 Fed. 84. It has been said that the filing of the petition is notice to all the world, and in effect an attachment and an injunction. Re Breslauer, 121 Fed. 910. See infra, § 643. Where a verified petition accompanied by schedules was, after its filing, in part withdrawn, and a new petition filed with certain portions of the old petition pasted thereon containing also additional schedules and assets it was held that the day when the second petition was filed was the date of filing, and that the filing of the first should be disregarded. Re Washburn, 99 Fed. 84. Where upon

was

the filing of the petition without a copy, the clerk made and certified a copy thereof, which was delivered to the marshal and served upon the defendant; it was held that it a duplicate within the requirement of the statute. Millan v. Exchange Bank, C. C. A., 183 Fed. 753. Where only one copy of the peti tion was filed, it was held that court could not permit the filing of a second copy after four months from the commission of the act of bankruptcy therein specified. Stevenson, 94 Fed. 110. It has been held that such an omission is not waived by a general appearance without objection. Re Stevenson, 94 Fed. 110; Re Dupree, 97 Fed.

28.

the

Re

Contra, Re Plymouth Cordage Co., C. C. A., 135 Fed. 1000; Remington on Bankruptcy, § 284. Where the petition was filed with malice and without probable cause, it may be the subject of an action in the nature of a suit for malicious Prosecution. Re J. Ito Terusaki, 238 Fed. 934. Averments which were immaterial and impertinent were held to be the ground for an action for libel; but not allegations which were pertinent and material, Lesser, Rt. v. International Trust Co-, App. Div. (N. Y.) 12.

2 General Order V.

175

Re Carthage Lodge, No. 365, I. O. O. F., 220 Fed. 694; the petition must be verified by or on behalf of each petitioner, 30 St. at L. 544, 551, § 18; Green River Deposit Bank v. Craig, 110 Fed. 137, 138; Remington on Bankruptcy, § 281. In the case of a partnership, the affidavit of one of its members is sufficient. Walker v. Woodside, C. C. A., 164 Fed. 680. The affidavit of the attorney for the petitioners might be held to be insufficient, Re Simonson, 92 Fed. 904; Re Nelson, 98 Fed. 76; contra, Re Herzikopf, 118 Fed. 101; Re Hunt, 118 Fed. 282; Re Vastbinder, 126 Fed. 417; except in the case of natural persons who reside outside of the district. Rogers v. De Soto Placer Min. Co., C. C. A., 136 Fed. 407; or perhaps in a case of a corporation, Re Chequasset Lumber Co., 112 Fed. 56; Re R. L. Radke Col., 193 Fed. 735. It is the safer practice for a corporation to have the affidavit sworn to by its president. Walker v. Woodside, C. C. A., 164 Fed. 680. In the case of voluntary petition the petitioner swears "to the best of my knowledge, information and belief." Form No. 1. The creditors' petition should contain a positive affidavit "that the

statements contained in the foregoing petition, subscribed by them, are true." Form No. 3. The difference is important and should be observed. A creditor's petition is insufficient when verified upon knowledge, information and belief, Re Farthing, 202 Fed. 558, or upon belief, Sabin v. Blake-McFall Co., C. C. A., 223 Fed. 501, is insufficient. Contra, Re Ball, 156 Fed. 682. Such a defect however, is not jurisdictional. It may be cured by affidavit. Ibid.; infra, § 628. It is waived by an answer without its interposition. Lackawanna Leather Co. v. La Porte Carriage Co., C. C. A., 211 Fed. 318. A petition to transfer the proceeding to another district was held to be sufficient when certified by the petitioner "to the best of his knowledge, information and belief." Re Okmulgee Producing & Refining Co., 265 Fed. 736. In the City of New York the affidavit may be made before a Commissioner of Deeds. Re Morse, 210 Fed. 900. When a voluntary petition is filed by a corporation, it should set forth a resolution of the board of directors, authorizing this. See Re Jefferson Casket Co., 182 Fed. 689; Dodge v. Kenwood Ice Co., C. C. A., 204 Fed. 577. Contra, Re Kenwood Ice Co., 189 Fed. 525. An objection because of its omission comes too late after adjudication. Dodge v. Kenwood Ice Co., C. C. A., 204 Fed. 577. A statutory prohibition of an assignment, Bell v. Blessing, C. C. A., 225 Fed. 750 (California) or a dissolution, Re United Grocery Co., 239 Fed. 1016, without the consent of the stockholders is not such a restriction. Opposition by the corporation and board to the appointment of a receiver by a State court,