In re Miner

104 F. 520 | D. Mass. | 1900

LOWELL, District Judge.

In this case the respondents made a general assignment, which has been assented to by all the creditors, with two or three exceptions. One of the nonassenting creditors has filed this petition alone, alleging that all the creditors of the respondents are less than twelve in number, thus seeking to bring himself within section 59b. It was admitted at the argument that the creditors who had assented to the assignment could not join in the petition, but it was urged that they should be counted in reckoning the number of the respondents’ creditors. Under the act of June 22, 1874 (18 Stat. 178, § 12), it was held that preferred creditors should not be reckoned, in computing the proportion of creditors required to join in a petition. In re Israel, Fed. Cas. No. 7,111; Clinton v. Mayo, Fed. Cas. No. 2,899; In re Currier, 2 Low. 436, Fed. Cas. No. 3,492. In the last case Judge Lowell said, “I add, therefore, to the reasons already given why the debt of Dana & Co. should not be counted, that they ought not to join in this petition.” The learned judge thus considered that only those creditors who can join in a petition should be reckoned in computing the proportion who must join in order to make the petition valid. This is in accordance with the language of the statute; for otherwise the word “creditors,” in the first line of section 59b, would have a different meaning from the same word in the third line of the same clause. Again in the same clause it is said that “one of such creditors” (that is to say, one of the creditors who are less than 12 in number) may file a petition, thus plainly implying that the creditors who may file a petition are identical with the creditors whose number is to be reckoned. It is not necessary to decide if thegeneralassigumentheremade be a preference. In West Co. v. Lea, 174 U. S. 590, 19 Sup. Ct. 836, 43 L. Ed. 1098, 1 Nat. Bankr. N. 409, a general assignment is said to be repugnant to the policy of the bankruptcy law, and to show an intent to delay, defeat, and hinder the execution of the act. See, also, In re Gutwillig, 1 Nat. Bankr. N. 554, 34 C. C. A. 377, 92 Fed. 337. If this assignment had provided for a preference, the petitioners’ case would be clearly on that ground. If the debtor is not thrown into bankruptcy, their preference stands, and the law is evaded. In re Israel, supra. Here, if the debtor is not thrown into bankruptcy, Die assignment stands, and the law is evaded. Even if a preference be morally less objectionable than a general assignment, yet I am of opinion that the latter is so objectionable to the spirit of the act that those creditors who have assented to it .are within the scope of the remarks made concerning preferred creditors in the cases above cited. For these reasons, because such is the letter of the act, because such was the construction of an analogous provision in the act of 1867, and because such seems to me the fair intent of the act as a whole, I hold that the creditors who have assented to the assignment are not to be reckoned in the computation required by section 59b. Adjudication to be made.