Winkleman

This appeal is from an order adjudging appellant a bankrupt. The case is here on an agreed statement containing little more than a skeleton outline of the facts necessary to present appellant’s sole contention, namely, that a creditor who has received a voidable preference is not qualified and may not be counted as a petitioning creditor in an involuntary proceeding unless he first surrenders or offers to surrender the preference.

The bankrupt has more than twelve creditors. Three of them joined in the bankruptcy petition. One of the three is concededly qualified. As to the other two, the bankrupt offered evidence tending to prove that they had received voidable preferences and had made no offer to return them. The court, apparently being of opinion that the point was not material, declined to consider the evidence relating to it, and the ruling is said to be error.

The relevant statutory provisions are those contained in 11 U.S.C.A. § 95 , subdivisions b and e, Act of June 22, 1938, c. 575, § 1, 52 Stat. 867 . Subdivision e, which appellant claims is controlling, is copied in the margin. 1 Subdivision b, relating directly to those who may file petitions, states: “Three or more…