In re Vastbinder

• Decision Date: 28 December 1903
• Docket Number: 366.
• Citation: 126 F. 417
• Parties: In re VASTBINDER.
• Court: U.S. District Court — Middle District of Pennsylvania

126 F. 417

In re VASTBINDER.

No. 366.

United States District Court, M.D. Pennsylvania.

December 28, 1903

David Cameron, for demurrer.

N. H Ryan and Sherwood & Owlett, for petitioner.

ARCHBALD District Judge.

This is a special demurrer, filed by the respondent, calling in question, in several particulars, the sufficiency of the proceedings instituted against him. The first question is as to the verification of the petition. This is made by the attorneys in fact of the petitioning creditors, all of whom are corporations of other states, who swear that they are authorized to institute the proceedings and verify them, and that the statements made therein are true, 'to the best of their knowledge, information and belief. ' There can be no doubt as to the right of an attorney in fact to make the necessary oath where the facts are within his own knowledge, and this will be assumed where the oath is in positive terms. In re Chequasset Lumber Company (D.C.) 112 F. 56; In re Herzikopf (D.C.) 118 F 101; In re Hunt (D.C.) 118 F. 282. But in the present instance the oath is not positive, but qualified-- to the best of the affiants' knowledge, information, and belief-- rather loose terms, which may be made to mean anything or nothing. The difficulty is that the facts which are affirmed of knowledge are not distinguished from those which are based on information, thus, in effect, dissipating the force of the affidavit. The first ground of demurrer is therefore well taken, but, as this is an amendable defect opportunity will be given to remedy it. In re Bellah (D.C.) 116 F. 69.

The original petition was sufficient on its face, so far as respects the number and amount of the claims represented-- being made by the Troy Wagon Works, with a debt of $758.93 the Thornhill Wagon Company, with one of $162.50; and the Rex Buggy Company, with another of $1,137. Nine other creditors have asked and been allowed to intervene, but, as the extent of the debts due them is not specified, no account can be taken of them, except for number. Three of them, as it is said, have received preferences, which disqualify them; but, even if that be true, six are left, of unquestioned competency, which is all that is necessary in that connection. Of the original petitioners, however, it is conceded by the amendment presented at the argument that the Troy Wagon Works and the Rex Buggy Company at the time of filing the petition had each secured a judgment before a justice of the peace, issued execution, and obtained a levy on the respondent's goods; also that the Troy Wagon Works, within a month, had received a cash payment of $20, and four wagons, to apply on their debt, and that the Rex Buggy Company had also received a similar payment of $57. By reason of these preferences, it is claimed that neither of them had a provable debt, and that the proceedings, not being sustained by the requisite amount of claims, must therefore be dismissed.

Whether a creditor who has obtained a preference can file an involuntary petition is a controverted question, which I shall not undertake to decide. It is held that he cannot, in In re Rogers Milling Company, 4 Am.Bankr.R. 540, 102 F. 687, In re Gillette & Prentice, 5 Am.Bankr.R. 119, 104 F. 769, and In re Burlington Malting Company, 6 Am.Bankr.R. 369, 109 F. 777; and that he can, in In re Herzikopf (D.C.) 118 F. 101. It seems to turn on whether one who has secured a preference has a provable debt within the meaning of the law, as to which it is said in Collier on Bankruptcy (4th Ed.) 407, that 'provable' here has the sense of 'allowable,' and...