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issues made by the pleadings and upon evidence, and the court found the allegations of the petition to be true, entered an order of adjudication, and sent the case to a referee. The petitioning creditor presented her claim to the referee for allowance. Objection was made to the allowance of the claim, for the same reasons set up in the answer at the time the adjudication was made. The referee held that the validity of the claim could not be questioned either by the bankrupt or by any other creditor. In disposing of the case, Judge De Haven said:

"She was the petitioner in the proceeding to have the Henry Ulfelder Clothing Company adjudged bankrupt, and, the alleged fact having been put in issue by the answer to her petition, it was incumbent upon her to prove that she had a legal demand against that corporation for at least $500 in excess of securities held by her. Bankr. Act, July 1, 1898, c. 541, § 59, subd. 'b,' 30 Stat. 561 [U. S. Comp. St. 1901, p. 3445]. Without proof of this fact, the corporation and creditor who appeared in opposition to the petition for involuntary adjudication would have been entitled to a dismissal of the proceeding. In re Cornwall, 9 Blatchf. 114, Fed. Cas. No. 3,250; Bank v. Moore, 2 Bond, 170, Fed. Cas. No. 10,041; In re Skelley, 2 Biss. 260, Fed. Cas. No. 12,921. The question whether she was a creditor in that amount was therefore a material issue in that proceeding, and the decree therein undoubtedly establishes the fact that she was such creditor."

In that case the proof offered by the petitioning creditor before the referee and in the involuntary proceeding for an adjudication was a promissory note upon which she claimed the bankrupt was liable. It having been determined upon the proceedings for adjudication that the note was executed by the corporation and delivered upon a sufficient consideration, the court held that the same question could not be again drawn into controversy in the same bankruptcy proceeding in which the decree of adjudication was given. The learned judge said:

"The law certainly does not contemplate that the petitioning creditor shall be required to establish the validity of a particular claim against the bankrupt more than once in the same proceeding, unless the court shall, upon some legal ground, grant a new trial of such issue."

Under the bankruptcy act, any creditor may voluntarily appear and join in the petition or be heard in opposition thereto, and those not appearing are, we think, in contemplation of law, represented by the bankrupt to the extent of being concluded as to all matters directly in issue and determined by the order of adjudication.

In Candee v. Lord, 2 N. Y. 269, 51 Am. Dec. 294, it was argued that creditors, not parties to a suit affecting the title to the debtor's property, were not in privity with the debtor, and therefore not estopped by the judgment. The court, however, said:

"We think otherwise. The law which gave the judgment debtor the unlimited right (when honestly exercised) to contract debts, to settle and adjust their amount, to secure and to pay them, made him to that extent the representative of all his creditors who should seek the satisfaction of their demands out of his property. So far, at least, they are in privity with, and claim under, their debtor."

In our judgment, there is neither reason nor authority for the contention that an adjudication in bankruptcy made upon issues

such as are presented by the pleadings in this case, and, as the record shows, upon the evidence in support thereof, offered by the respective parties, does not conclude the bankrupt as to the facts therein involved and passed upon by the court. Neither do we think that there is any merit in the contention, made in this case, that other creditors sought to interpose at the hearing before the referee: First, because the creditors presented no objection; they simply said, "We adopt the answer of the bankrupt." The bankruptcy act makes no provision for such procedure. It authorizes any creditor to object to and contest the allowance of any claim, but he must file his own objections and make an issue. The act authorizes other creditors to join in a petition in involuntary bankruptcy, but they must enter a formal appearance, and then, by leave of court, may join by adopting the petition; but no such practice is authorized in respect to one creditor resisting the claim of another. Second, it is an all-sufficient answer that these creditors took no appeal from the action of the District Court. The appeal was taken by the trustee in bankruptcy, who resisted the allowance of the claim as the representative of the estate, and we think such intervening creditors ought not to be allowed to interpose and provoke a trial in their interest, and, after defeat, without incurring the risk of the costs of an appeal, to claim that they were represented by the trustee, and have the costs, if the appeal fails, taxed against the estate.

This record, we think, shows that the defense which the creditors proposed to make to the allowance of the petitioners' claim was a defense in favor of the bankrupt, which he had fully presented to the court, and which had been fully contested. In other words, the effort here is to have a new trial of the same issues between the petitioning creditors and the bankrupt. This, we think, cannot be done. The parties have had their day in court, and are not entitled to another.

We see no reason for disturbing the order made by the District Court, and it is therefore affirmed.

SANBORN, Circuit Judge (dissenting). A thoughtful consideration of the important question presented in this case has failed to bring my mind to yield assent to the conclusion of the majority that creditors who are not parties to the litigation upon a petition. in bankruptcy are estopped by an adjudication thereon from subsequently contesting the allowance of the claim of the petitioning creditor and his right to share in the estate of the bankrupt when he proves and presents it for allowance to the referee and the court. The question arises in this way: On May 2, 1904, the appellees, Cone and Dryden, presented formal proof of their claim for $5,861 against the estate of Gentle, a bankrupt, of which the appellant, Ayres, was trustee. On May 7, 1904, Gentle filed objections to the allowance of this claim, which, if the allegations there made. were true, disclosed the fact that this claim was false and fictitious. Four creditors of the bankrupt, whose claims had been proved and allowed, attached to the statement of these objections a writing

over their signatures, whereby they declared that they "do hereby unite in the objections, * * and hereby adopt the objections of the said bankrupt hereto attached." The appellees objected by an answer to the introduction of any testimony to establish or to defeat their claim, upon the ground that in the trial of the issue whether or not Gentle was a bankrupt, to which the four objecting creditors were not parties, the validity of the claim of the appellees was adjudged. The referee overruled this objection, held that evidence upon the merits of the issue raised by the objections was admissible, and disallowed the claim. The District Court reversed this judgment of the referee and ordered him to allow the claim, upon the ground that both Gentle, who was a party to the proceeding for the adjudication, and the objecting creditors, who were not parties to it, were estopped by the adjudication in bankruptcy from insisting, as they did before the referee, that the claim of the appellees was unfounded. From this order of the District Court which allowed this claim, the trustee appealed.

In the opinion of the majority of the court this order should be affirmed: (1) Because the objecting creditors did not make another and separate statement of their objections, but adopted the written objections made by Gentle by a writing over their signatures; (2) because the trustee appealed from the order, and the objecting creditors did not; and (3) because the creditors and the trustee were estopped by the adjudication in bankruptcy from contesting the allowance of the claim of the appellees.

1. The objections of the four creditors to the allowance of the claim were the same as those presented by Gentle. There were no other objections. These creditors had the right to present and to secure an adjudication of these objections, because they were parties in interest in the allowance of the claim of the appellees. Sections 57d, 57f, Act July 1, 1898, c. 541, 30 Stat. 560 (U. S. Comp. St. 1901, p. 3443). If the statement of the objections had been written in duplicate, and one of the duplicates had been signed by Gentle and the other by the four creditors, or if the latter had copied Gentle's statement of the objections and had signed and filed that copy, their presentation of their objections must have been free from all criticism. For they certainly had the right to make the same objections which Gentle did. When the objections had been formulated, however, and signed by the attorney of Gentle, the four creditors added to them a writing over their signatures, whereby they declared that they united in and adopted the objections "hereto attached"; and this single instrument, which contains the statement of the objections, the signature of Gentle, and the written adoption of the objections "hereto attached" by the four creditors, was entitled "Objections," and filed with the referee and the court. Why were not these the objections of the four creditors as much as they were the objections of Gentle? A mere written statement over their signatures that they objected to the allowance of the claim upon the same grounds that Gentle presented would undoubtedly have amply made these objections on their behalf. The signature to objections is in any event but an

adoption of them, and the fact that one declares in writing that he does adopt them ought not to have less effect. Nor does one fail to adopt or to make any objection because others make or adopt the same. The adoption, filing, and presentation of the objections to the referee and the court were, in my opinion, as effective a making of objections by the four creditors as the filing and presentation of a separate paper which contained the same statement and the same objections over their signatures could have been.

2. The referee rejected the claim. The District Court reversed the order of rejection, and ordered the allowance of the claim. The trustee had the right, and it was his duty, if he believed this claim to be false and fictitious, to appeal from the order which allowed it, and the objecting creditors had no such right unless the trustee refused to take the appeal. Section 25a, 30 Stat. 553 [U. S. Comp. St. 1901, p. 3432; Chatfield v. O'Dwyer, 42 C. C. A. 30, 32, 101 Fed. 797, 799; Foreman v. Burleigh, 48 C. C. A. 376, 109 Fed. 313.

3. Did the adjudication of bankruptcy estop the objecting creditors and the trustee who represents them from contesting the allowance of the claim of the appellees and their right to share in the estate of the bankrupt? It is not material whether or not the adjudication estopped the bankrupt, and for that reason it is conceded that on March 28, 1904, when Gentle was adjudged a bankrupt, 25 days after the filing of the petition in bankruptcy, the issue whether or not he was indebted to the appellees in the sum of $5,861 became res adjudicata between the petitioning creditors and the bankrupt. The estoppel of that adjudication, however, did not arise until that day, which was 25 days after the rights of all creditors in the estate had become fixed, and it did not bind any one who was not a party to the litigation of the issues which that judgment determined.

Although the bankrupt was thus debarred from subsequently contesting the claim, the adjudication against him gave the owners of that claim no right to any share in his estate or to any dividend from its proceeds. Their right to that share and to that dividend was conditioned by the express terms of the bankruptcy act by a subsequent proof of their claim by a written statement under oath (section 57a) and by its allowance by the referee or by the court, and the trustee and other creditors were expressly granted the right to object to and to contest that allowance after the proof had been filed. (Sections 57c, 57k, 30 Stat. 560, 561 [U. S. Comp. St. 1901, pp. 3443, 3444]. Not only this, but the duty still rested upon the bankrupt to "examine the correctness of all proofs of claims filed against his estate" (section 7 [3], 30 Stat. 548 [U. S. Comp. St. 1901, p. 3425]), and, "in case of any person having to his knowledge proved a false claim against his estate, disclose that fact immediately to his trustee" (section 7[7]), and the duty was imposed upon the trustee to defeat such a claim if possible. Chatfield v. O'Dwyer, 101 Fed. 797, 799, 42 C. C. A. 30, 32.

Identity of parties is as essential to an estoppel by res adjudicata as identity of causes of action. Fowler v. Stebbins, 136 Fed. 365 (decided at the last term). The objecting creditors were not named

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as defendants. They did not appear, answer, or take any part in the litigation which resulted in the adjudication of bankruptcy. Upon familiar principles, that litigation was therefore res inter alios acta as to them, and they were not bound by the determination of the issues which the parties might present in it, and which the bankruptcy act required to be litigated at another time and place. This rule is invoked and applied by the express provisions of that act that the creditors may exercise the option to appear in and be barred by the adjudication (section 18b-d, 30 Stat. 551 [U. S. Comp. St. 1901, p. 3429]), or to refrain from taking part in it and be free from it, and that they may object to and contest the allowance of claims of all other creditors, without exception (section 57d). Since no exception of the claims of petitioning creditors from this right of other creditors to contest them was made by the Congress, the conclusive legal presumption arises that it intended to make none, and it is not the province of the courts to do so. Webber v. St. Paul City Ry. Co., 38 C. C. A. 79, 82, 97 Fed. 140, 143; Madden v. Lancaster Co., 12 C. C. A. 566, 573, 65 Fed. 188, 195; McIver v. Ragan, 2 Wheat. 25, 29, 4 L. Ed. 175; Bank of State of Alabama v. Dalton, 9 How. 522, 528, 13 L. Ed. 242; Vance v. Vance, 108 U. S. 514, 521, 2 Sup. Ct. 854, 27 L. Ed. 808.

Moreover, the bankruptcy act has provided a time, a place, and a tribunal where all claims to share in the estate must be heard and allowed upon proofs of claims, and has given the right to all creditors to contest them there. From this provision the presumption necessarily arises that this time, place, and tribunal were to be exclusive, and that all creditors are relieved from the necessity of contesting claims to share in the estate at any other time or place. Petitioning creditors, like all others, are required to prove and secure an allowance of their claims in the face of the objections of other creditors, notwithstanding the adjudication of bankruptcy in their favor. The litigation upon their petition is not the time nor the place prescribed by the law for the trial of the question whether or not, or to what extent, their claims may share in the distribution of the estate of the bankrupt. The logical and inevitable conclusion from these considerations appears to me to be that, when the validity and extent of a petitioning creditor's claim is determined in the litigation upon the petition which results in the adjudication of bankruptcy, the bankrupt and those creditors, and those only who either voluntarily or involuntarily become parties to that litigation, are estopped by the determination there of the petitioner's claim, while all other creditors and the trustee who represents them, when the petitioning creditor's claim to share in the estate is subsequently presented to the referee or the court for allowance, are free to contest it upon its merits as it stood at the time of the filing of the petition in bankruptcy, regardless of the subsequent adjudication.

Nor is this conclusion without authority to support it. The only direct decision upon the question sustains it. That is the decision of Judge De Haven in In re Henry Ulfelder Clothing Co. (D. C.) .98 Fed. 409, cited by the majority. There is an obiter dictum in the

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