On the tenth of October, 1873, John Whittlesey, a creditor of Benjamin C. Hoyt and Enoch C. Hoyt, copartners under the name of B. C. Hoyt & Son, filed a petition in bankruptcy in the district court of the United States for the Western district of Michigan, praying that the said two persons, 'partners as aforesaid,' might be declared bankrupts. The petition contained the prescribed allegations, and set forth, as the demand of the petitioner, a promissory note made by the partnership, in its firm name, to his order. It alleged, as one act of bankruptcy, that the firm had 'fraudulently stopped payment' of its commercial paper 'within a period of fourteen days,' om tting to add 'and not resumed payment within said period.' It alleged, as a second act of bankruptcy, that the firm had 'suspended and not resumed payment' of its commercial paper 'within a period of fourteen days.' Before anything was done on this petition except to file it, and on the twelfth of January, 1874, Daniel Chapman procured to be issued by the circuit court of the county of Berrien, in the state of Michigan, an attachment against the lands and personal property of the said persons, as such copartners, for the sum of $4,895.44, in a suit brought by him in that court, against them, to recover a money demand, which attachment the sheriff, on that day, levied on certain real estate in that county. Enoch C. Hoyt died on the twenty-fifth of February, 1874. On the fifth of March, 1874, a petition, indorsed 'amended petition,' was filed by Whittlesey in the bankruptcy court, containing the same averments as the first petition, with the addition of the words so omitted in the first petition. In the body of the petition there was no mention of its being an amended petition, nor did it allude to the first petition, or to the death of Enoch C. Hoyt, and its prayer was the same as that of the first petition. It was verified March 3, 1874. On the fourteenth of April, 1874, an order was made in the suit in the state court, entering the default of Benjamin C. Hoyt, for want of an appearance, on proof of personal service on him of the attachment and of the filing of the declaration; and on the sixteenth of April, 1874, an order was made on affidavit, suggesting the death of Enoch C. Hoyt, since the issuing of the attachment, and ordering that the action proceed against the surviving defendant, Benjamin C. Hoyt. On the second of May, 1874, an order was made by the bankruptcy court, stated in it to be made on the appearance and consent of 'solicitors for the alleged bankrupts,' reciting that it had been shown that Enoch C. Hoyt had 'departed this life since the commencement of the proceeding in said matter,' and ordering that all proceedings should stand against Benjamin C. Hoyt, survivor of himself and Enoch C. Hoyt, and that they might be prosecuted against him, with like effect as if Enoch C. Hoyt had not died, and that the individual property of Enoch C. Hoyt be surrendered by the marshal to his proper representatives. On the same day Benjamin C. Hoyt filed a denial of bankruptcy, signed by his attorneys, as follows: 'And now the said Benjamin C. Hoyt appears and denies that he has committed the act of bankruptcy set forth in said petition, and avers that he should not be declared bankrupt for any cause in said petition alleged, and he demands that the same be inquired of by a jury.' On the eighth of May, 1874, in the suit in the state court, a judgment was rendered in favor of the plaintiff, against Benjamin C. Hoyt, for $4,930.15, and costs; and on the same day an execution was issued thereon, under which, on that day, the sheriff levied on the same real estate which he had levied on under the attachment. On the first of June, 1874, an adjudication was made by the bankruptcy court in these words: 'ADJUDICATION OF BANKRUPTCY ON CREDITORS' PETITION.
Western District of Michigan, ss.-In the District Court of the United States for the Western District of Michigan. In Bankruptcy.
'In the matter of BENJAMIN C. HOYT, against whom a petition in bankruptcy was filed on the nineteenth day of October, A. D. 1873. At Grand Rapids, in said district, on the first day of June, A. D. 1874. Before Hon. SOLOMON L. WITHEY, District Judge.