In re Stevenson

• Decision Date: 16 May 1899
• Docket Number: 5.
• Citation: 94 F. 110
• Parties: In re STEVENSON.
• Court: U.S. District Court — District of Delaware

94 F. 110

In re STEVENSON.

No. 5.

United States District Court, D. Delaware.

May 16, 1899

(Syllabus by the Court.)

The four months after the commission of an act of bankruptcy within which, under the provisions of the bankrupt act of July 1, 1898, a petition in involuntary bankruptcy must be filed, are to be so computed as to exclude the day on which such act was committed; hence, where the act of bankruptcy was committed October 20, 1898, the petition could properly have been filed February 20, 1899.

The bankrupt act requires the filing within the specified period of four months of a petition in duplicate, one copy for the clerk and the other for service on the alleged bankrupt; and where a petitioner has within that period filed only one copy of the petition, the court has no authority after the expiration of such period to permit the filing of a second copy.

The various provisions of the bankrupt act clearly disclose a legislative intent that proceedings in bankruptcy shall be conducted and closed with all reasonable expedition; and while it is true that a petition may be filed at such time on the last day of the period of limitation as to render impossible either the service or issuance of process within that period, it was nevertheless the manifest intention of congress that the duplicate copy for service should be filed within that period, ready to be served with all convenient speed.

Rule 11 in bankruptcy, prescribed by the supreme court, authorizes the court to allow corrections to be made of errors insufficiencies and uncertainty in the petition or schedules but not practically to repeal the legislative declaration that petitions must be filed in duplicate within the four months specified.

Rule 1 in bankruptcy provides that the clerk's docket shall contain a memorandum of the filing of the petition, but does not mention a copy of the petition; and, as the petition is to be filed in duplicate, the docket should show such filing.

J. W. M. Hewlin and Charles G. Rumford, for petitioning creditors.

Austin Harrington and William S. Hilles, for bankrupt.

BRADFORD District Judge.

This is a motion to dismiss the petition in involuntary bankruptcy of The Importers and Traders National Bank of New York praying that Alfred P. Stevenson be adjudged a bankrupt. The motion as filed assigned four grounds, two of which were abandoned on the hearing. The remaining grounds are as follows:

'1. Because the petition in said cause was not filed within four months after the commission of the alleged act of bankruptcy, as required by law.

2. Because the petition filed in this cause was not filed in duplicate.'

The petition was filed February 20, 1899, but not in duplicate, and disclosed that the act therein charged as an act of bankruptcy was committed October 20, 1898; consisting of the confession by the respondent of certain judgments in the Superior court of Delaware for New Castle County. On March 2, 1899, the counsel for the petitioner applied for and obtained leave of the court to file nunc pro tunc a duplicate creditor's petition. The court, while not satisfied as to the propriety of allowing the duplicate to be filed at that time, deemed it just that the petitioner should not be deprived of any right to which it might be entitled through such filing; the respondent having full opportunity by a proper proceeding thereafter to raise the point and have it determined. The questions involved in the motion have now been fully argued and are fairly before the court for decision. They are in substance, first, whether a petition in involuntary bankruptcy, in which the alleged act of bankruptcy consisted of the confession of judgment by the respondent October 20, 1898, could legally be filed February 20, 1899; and, second, whether a duplicate copy of the petition could legally be filed after the expiration of the four months limited by the bankrupt act, if a single copy of the petition was filed within that period. No question as to the sufficiency of the petition in other respects is before the court for consideration at this time. Section 3, subd. b, of the act provides as follows:

'A petition may be filed against a person who is insolvent and who has committed an act of bankruptcy within four months after the commission of such act. Such time shall not expire until four months after the date of the recording or registering of the transfer or assignment when the act consists in having made a transfer of any of his property with intent to hinder, delay, or defraud his creditors or for the purpose of giving a preference as hereinbefore provided, or a general assignment for the benefit of his creditors, if by law such recording or registering is required or permitted, or, if it is not, from the date when the beneficiary takes notorious, exclusive, or continuous possession of the property unless the petitioning creditors have received actual notice of such transfer or assignment.'

The time for filing the petition did not expire before the expiration of the period of four calendar months from the date of the confession of judgment. Did or did not that period include February 20, 1899? If, in the computation of time, October 20, 1898, must be excluded, a petition could legally have been filed February 20, 1899, being the last day of the four months. There has been much conflict of opinion on the question whether in the computation of time the terminus a quo should be included in, or excluded from, the period within which by law an act must or must not be done. The decisions on this point have largely been controlled by considerations of hardship or substantial justice as disclosed in the circumstances of the several cases. The general rule, while subject to some exceptions not bearing on the present case, now is that in the absence of a provision to the contrary the terminus a quo should not be included in such period. The doctrine of many of the early cases was otherwise. Thus in Arnold v. U.S., 9 Cranch, 104, the court said:

'It is a general rule that where the computation is to be made from an act done, the day on which the act is done is to be included.'

And in Griffith v. Bogert, 18 How. 158, where it appeared that letters of administration were granted on the estate of a deceased debtor November 1, 1819, and by statute an execution sale of the lands of such debtor was prohibited until after the expiration of eighteen months from the date of the letters, the court, applying the same doctrine, held that an execution sale of such lands May 1, 1821, was valid. The court, however, said:

'If the statute in question were one of limitation, whereby the remedy of the creditor would have been lost, unless execution had issued and sale been made within the eighteen months, probably a different construction might have prevailed.'

In later cases the earlier doctrine of the Supreme Court as to the inclusion of the terminus a quo seems to have been materially departed from, if not abandoned. In Sheets v. Selden's Lessee, 2 Wall. 177, 190, the court said: 'The general current of the modern authorities on the interpretation of contracts, and also of statutes, where time is to be computed from a particular day or a particular event, as when an act is to be performed within a specified period from or after a day named, is to exclude the day thus designated, and to include the last day of the specified period. ' When the period allowed for doing an act,' says Mr. Chief Justice Bronson, 'is to be reckoned from the making of a contract, or the happening of any other event, the day on which the event happened may be regarded as an entirety, or a point of time; and so be excluded from the computation."

In Best v. Polk, 18 Wall. 112, 119, the court said:

'Another objection is taken to the certificate of Edmondson, on the ground that when it was given his term of office had expired. This objection cannot be sustained, for the certificate bears date the 2d March, 1849, and he was commissioned to hold the office of Register 'during the term of four years from the 2d day of March, 1845.' The word 'from' always excludes the day of date.'

So, in Cattle Co. v. Becker, 147 U.S. 47, 13 Sup.Ct. 217 the rule of exclusion of the terminus a quo was applied to a statutory provision in Texas forbidding an application for the purchase of lands, set apart for the benefit of the school fund, to be entertained 'within ninety days from the date of the record' of a former application for the purchase of the same lands. The present case does not involve any question of penalty or forfeiture, or possess any other feature requiring the terminus a quo to be included in the computation of time. In Dutcher v. Wright, 94 U.S. 553, it was held that under the bankrupt act of March 2, 1867, in computing the four months prior to the filing of a petition in bankruptcy, in which period any assignment by an insolvent debtor of his property for the purpose of giving a preference to a creditor was void, the day of such filing must be excluded. Section 35 of that act, now embodied in part in section 5128 of the revised statutes, provided, among other things, that if any person being insolvent, within four months before the filing of a petition in bankruptcy by or against him, with a view to give a preference to any creditor, made any assignment, transfer or conveyance of any part of his property, the person receiving the same having reasonable cause to believe that the person making the same was insolvent and that such assignment, transfer or conveyance was made in fraud of the provisions of that act, the same should be void, and the assignee might recover the property or its value from the person receiving or to be benefited by such assignment, transfer or...