join as petitioning creditors in the original petition, and that he be adjudicated a bankrupt. That petition referred to the original petition as setting forth the acts of bankruptcy which had been committed by Stein. The court thereupon made an order permitting these creditors to join in the original petition. Subsequently other creditors of Stein were permitted to join in the original petition. October 31, 1899, another subpoena was issued by the court directing Stein to appear and answer. Thereupon Stein appeared, and filed a plea, which, in substance, challenged the jurisdiction of the court to proceed, because he had not been served with a subpoena until after the supplemental petitions were filed. The plea was overruled, and an adjudication of bankruptcy was ordered. The question which is raised by the appeal is whether the court lost jurisdiction under the original petition because of the omission of the petitioning creditors therein to prosecute the proceeding, and was without authority to permit other creditors, whose petitions were not filed within four months of the alleged act of bankruptcy, to join and prosecute to an adjudication of bankruptcy. It is insisted for the appellant that the court lost jurisdiction because there was no service of a subpoena to answer the original petition pursuant to the provisions of section 18, cl. "a," Bankr. Act. That provi sion reads as follows: "Upon the filing of the petition for involuntary bankruptcy, service thereof, with a writ of subpoena, shall be made upon the person therein named as defendant in the same manner that service of such process is now had upon the commencement of a suit in equity in the courts of the United States, except that it shall be returnable within fifteen days, unless the judge shall for cause fix a longer time; but in case personal service cannot be made, then notice shall be given by publication in the same manner and for the same time as provided by the law for notice by publication in suits in equity in the courts of the United States." The argument for the appellant is that the word "shall," as used in the section, is mandatory. The rule of construction of statutory provisions regulating the time, form, and mode of proceeding by courts and public officers is that they are generally to be deemed directory, and as intended merely to secure system, uniformity, and dispatch in the conduct of public business. "Provisions of this character are not usually regarded as mandatory unless accompanied by negative words, importing that the acts required shall not be done in any other manner or time than designated." French v. Edwards, 13 Wall. 506-511, 20 L. Ed. 702, 703. We find nothing in the language of the section, or in any of the other provisions of the act, inconsistent with the application of the general rule. Undoubtedly, if the subpoena were made returnable in less than the 15 days prescribed by the section, the alleged bankrupt would be deprived of the full opportunity to appear and answer which the section contemplates, and an adjudication, under these circumstances, would be erroneous, but we do not suppose it could be held void; and this is the only regulation in the section having regard to the rights or protection of the alleged bankrupt. The other regulations are manifestly to secure convenient and orderly procedure. That it was not the intention of the act that a petition should become functus officii by the omission of the petitioning creditors to proceed to an adjudi cation is apparent from the provisions of section 59. Clause “f” reads as follows: "Creditors other than original petitioners may at any time enter their appearance and join in the petition, or file an answer and be heard in opposition to the prayer of the petition." Clause "g" reads as follows: "A voluntary or involuntary petition shall not be dismissed by the petitioners or for want of prosecu tion or by consent of parties until after notice to the creditors." These provisions expressly authorize other creditors than the peti tioners to avail themselves at any time of the original petition, including, of course, the act of bankruptcy alleged therein, and to contest the propriety of an adjudication whenever their rights would be injuriously affected thereby. They also prevent the dismissal of the original petition by the creditors therein, or by the bankrupt, whether for good cause or collusively, without giving the other creditors an opportunity to oppose. It is urged that to permit other creditors to procure an adjudication who have not sought to do so until after four months have elapsed since the act of bankruptcy would enable them to overhaul conveyances and sales as fraudulent or preferential which could not be done otherwise, and might work injustice to those whose titles had by lapse of time become safe. Nothing in the bankrupt act indicates a solicitude for the protection of fraudulent vendees, and, if creditors whose preferences may be disturbed have any equities to urge against an adjudication, they are authorized by section 59 to intervene and present them. And, even if imaginable cases of hardship may arise, the plain language of the act, authorizing creditors "at any time" to join in the original petition, cannot be disregarded. It is not necessary to decide that the bankruptcy court is without authority to dismiss a petition, on the application of the bankrupt, for want of prosecution, and upon notice to all his creditors, when there has been an unreasonable delay to proceed. All that we decide is that a plea to the jurisdiction in a case like the present cannot be maintained. The judgment is affirmed. (105 Fed. 751.) ABLOWICH et al. v. STURSBERG et al. (Circuit Court of Appeals, Second Circuit. January 22, 1901.) No. 48. BANKRUPTCY-REFUSAL OF DISCHARGE. Bankrupts, having concealed or destroyed their books of account, to thwart investigation into their financial condition, are properly denied their discharge. Appeal from the District Court of the United States for the Southern District of New York. Arthur Furber, for appellants. Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges. PER CURIAM. The evidence in the record satisfactorily denotes that the bankrupts had their books of account in their possession or under their control at the time of the preparation of the schedules annexed to their petition of bankruptcy, and that they have concealed or destroyed them for the purpose of thwarting an investigation into their financial condition. The order denying their petition for a discharge was consequently justified. Order affirmed, with costs. (105 Fed. 754.) In re UTT et al. RIDGELY NAT. BANK v. MATHENY. (Circuit Court of Appeals, Seventh Circuit. January 2, 1901.) No. 692. 1. BANKRUPTCY-PROCEEDINGS FOR REVISION-PARTIES. In proceedings in the circuit court of appeals under Bankr. Act 1898, $24b, for the review of an order made by a court of bankruptcy distributing a fund in the hands of the trustee of a bankrupt in payment of fees, costs, and expenses, in accordance with a petition of the trustee, where none of the distributees except such trustee were parties to the record below they need not be made parties to the petition for revision, but will be deemed sufficiently represented by the trustee.1 2. SAME-SALE OF MORTGAGED PROPERTY-RIGHTS OF MORTGAGEES. A decree was entered in a state court foreclosing a first and second mortgage on real estate, and ordering its sale. Before the time fixed for the sale, creditors filed a petition against the mortgagors, on which they were adjudicated bankrupts. Such creditors also filed a bill in the circuit court of the United States on which they obtained an injunction restraining further proceedings for the sale of the mortgaged property by the state court. Thereafter the mortgagees joined in a petition to the court of bankruptcy asking that the property' be sold by the trustee for payment of their liens, and such sale was ordered and made, the proceeds received being insufficient to pay the mortgage debts. On petition of the trustee the court ordered the first mortgage paid from the proceeds, but displaced the second in favor of the costs and expenses incurred in both the bankruptcy proceedings and the injunction suit, including fees allowed to counsel for the creditors and trustee. No other assets of the bankrupt came into the hands of the trustee. Held, that such order was erroneous, except in so far as it directed payment of the costs incurred in selling the property, including compensation to the trustee not exceeding that to which the master in the state court would have been entitled. 3. SAME-COMMISSIONS OF REFEREES AND TRUSTEES-Dividends. Under Bankr. Act 1898, §§ 40, 48, providing that referees and trustees in bankruptcy shall be entitled to commissions on "dividends” paid by the estate, they are not entitled to commissions on sums paid to mort 1 Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9. gagees from the proceeds of the mortgaged property on its sale by order of the court of bankruptcy, such sums not being dividends, within the meaning of the statute. In Bankruptcy. Petition for revision of an order made by a court of bankruptcy. This is a petition under subdivision "b" of section 24 of the bankrupt act of 1898 for a revision of proceedings in bankruptcy of the district court of the United States for the Southern district of Illinois. The material facts are these: Pamelia S. Clark, holding a first mortgage, and the Ridgely National Bank of Springfield, Ill., holding a second mortgage, executed by Edgar W. Utt, John P. Utt, and Frank Utt, partners under the name of Utt Bros., upon real estate, on March 21, 1899, obtained in the circuit court of Sangamon county, Ill., a decree of foreclosure, whereby there was determined to be due on the first mortgage $5,539.21, with $173 costs and solicitor's fee, and on the second mortgage $4,320.37, with $143 costs and solicitor's fee; and in pursuance of that decree the master in chancery of the court had duly advertised a sale of 'the property to occur on March 27, 1899. On March 17th the Black Diamond Coal Company and other creditors filed in the district court of the United States for the Southern district of Illinois a petition that the Utt Brothers be adjudged bankrupts, and on April 3d ensuing an adjudication to that effect was entered. Excepting the mortgaged property and the proceeds of the sale thereof, no assets of any character came into the trustee's possession. On March 22d, before the advertised day of sale and before the adjudication in bankruptcy, the Black Diamond Coal Company brought a bill in the United States circuit court for the Southern district of Illinois praying an injunction forbidding a sale of the mortgaged property by the master in chancery under the decree of the state court. On March 25th a restraining order was issued, and the defendants were ruled to show cause on April 5th why an injunction should not issue, and in June following the writ was ordered as prayed, and no appeal from the order was taken; but on November 4, 1899, the holders of the two mortgages joined in a petition to the district court that. the trustee in bankruptcy be directed to advertise and sell the mortgaged property, and to pay to them out of the proceeds of the sale the amounts found due by the Sangamon circuit court. On November 27th the court made an order to that effect, including in the costs of this proceeding, directed to be first paid, the sum of $200 allowed to the solicitors of the petitioners. This allowance the solicitors for the Ridgely National Bank disclaimed in open court before the sale was made, and reserved to themselves and the bank the right to except to any allowance for any fees or charges in the bankruptcy proceedings. A sale made on December 26th was set aside because the bid was less than three-fourths of the appraised value of the property, and on January 18, 1900, a resale was made to the Ridgely National Bank for the sum of $7,600, there being due on the first lien more than $6,000, and upon the lien of the bank near $5,000. The sale was reported to and approved by the court on February 3, 1900, and on the same day the trustee presented to the court a petition asking that the sum bid for the property "when received" be distributed as follows: "First. That said sum first be applied to the payment of principal and interest due on the mortgage held by Pamelia S. Clark and all the costs of this bankruptcy proceeding, which said costs shall include the clerk's, referee's, marshal's, trustee's, and appraisers' costs and Commissions as provided by law, and all other costs incident to and growing out of such bankruptcy proceedings, and the sale of said real estate, including advertisements and other expenses incurred by the trustee in carrying out the decretal order of sale entered herein, and that said costs shall also include the sum of five hundred dollars for W. St. John Wines, the Solicitor for the petitioning creditors, and also the sum of one hundred dollars for Robert Matheny, the solicitor for the trustee, which said sums of five hundred dollars and one hundred dollars, respectively, the court may find to be a reasonable compensation for their services; said payments to be made according to the schedule following, to wit. Second. That 45 C.C.A.-3 * after the payment of the said amount due the said Pamelia S. Clark and the costs and expenses as set out in the foregoing schedule the undersigned may be directed to apply the balance in his hands to the discharge of the principal and interest due on the mortgage held by the Ridgely National Bank set out in the decretal order heretofore entered herein, which said principal and interest at this date amounts to the sum of four thousand five hundred and seven and 57/100 dollars, and if, after the application of said balance, there should still remain in the hands of the said trustee any portion of the money realized from such sale, that the undersigned may be directed to bring the same into court for further order and direction." Of the items embraced in the schedule referred to, the Ridgley National Bank objected that the following were not properly chargeable against the fund in preference to the lien of the bank: ... $202 00 100 00 25.00 2.00 32.00 Lee Matheny, trustee's commissions.... Robert Matheny, attorney for trustee. M. B. Converse, clerk, for use of W. St. John Wines fees advanced C. P. Hitch, U. S. marshal, marshal's fees advanced for use of St. Appraisers' fees and expenses. W. E. Shutt, referee's expenses. Attorney's fees W. St. John Wines. W. E. Shutt, referee's commission on sale. S. D. Scholes, attorney's fees in Clark mortgage in district court.. C. P. Hitch, marshal, for the use of St. John Wines. J. T. Jones, clerk's costs in injunction proceedings. J. T. Jones, clerk, use W. St. John Wines.. 18 25 500 00 76.00 100 00 11.55 6.00 7.30 5.00 The court, on April 27, 1900, overruled the objection, and ordered “that the said trustee proceed to distribute said proceeds in the manner indicated in his said petition." These facts in greater detail, with full copies of the documents, orders, and decrees referred to, are set forth in the petition presented by the Ridgely National Bank to this court on May 15, 1900. The record shows a notice dated May 14, 1900, and addressed "To Lee Matheny, trustee, Robert Matheny, attorney, W. St. John Wines, William E. Shutt, S. D. Scholes," etc., to the effect that on May 15th, or as soon thereafter as the court would hear the same, application would be made to this court for leave to file a petition for the review of the order dated April 27th. Service of that notice on the day of its date was acknowledged by each of the persons to whom it was addressed. Upon presentation of the petition the order of this court was that it be filed and that "Lee Matheny, trustee, answer thereto within twenty days from service of a copy of this order." He filed an answer on June 5th, 1900, reiterating in substance the facts already stated. C. L. Conkling, for petitioner. Samuel P. Wheeler, for respondent. Before WOODS and GROSSCUP, Circuit Judges, and BUNN, District Judge. WOODS, Circuit Judge, after making the foregoing statement, delivered the opinion of the court. It is insisted that the petition should be dismissed for the lack of necessary parties, who, it is said, are directly interested and not represented by the trustee, who is the sole respondent. It is a sufficient answer that none of those referred to were parties to the proceedings below, none of them had intervened for the purpose of asserting a claim upon the fund, and except in the petition of the trus tee their names appear nowhere in the record. Represented as they were solely by the trustee below, they must be deemed to be suffi |