The opinion of the court was delivered by
Brewer, J.:A single question is all that is involved in this case. At what time did proceedings in a certain case in *413bankruptcy commence? This is presented as a question of law, for the facts are undisputed. These facts are contained in the 2d and 5th findings of fact made by the district court,, which are as follows:
“ 2d. On the morning of the same day, that is, at the hour of nine o’clock and fifteen minutes, on the forenoon of February 6th, 1871, certain creditors of the said firm of Charles' Liebenstein & Co., who were then merchants engaged in business, and residents in the city of Leavenworth, in this county, presented a petition in due form, and regular in all respects, to the Hon. Mark W. Delahay, Judge of the District Court of the United States for the District of Kansas, alleging acts of bankruptcy on the part of said firm, and asking that they might be adjudged bankrupts, and that such other proceedings might be had as authorized and provided for by the bankrupt law. And the Judge of said United. States District Court, thereupon, at the hour last above stated, at the office of the Register of Bankruptcy for this district, in said city, made and granted three several orders—one for the injunction, one for the arrest of the members of said firm,, and one directing the defendant Houston, who was then, and still is Marshal of the United States for said District, to forthwith take possession, provisionally, of all the goods, wares, merchandise, and property of said firm; and the said Judge fixed the. amount of bail to be given on said order of arrest at $10,000.
“ 5th. At the time said petition was presented to the aforesaid Judge of the United States District Court, and the said orders thereon were made as aforesaid, Hiram Griswold, Register in Bankruptcy for this district, noted on the back of said petition, the hour of said day, to wit, nine o’clock and fifteen minutes; but the said petition had not then, nor was' it until the following day, sent to and filed in the office of the clerk of said district court, at Topeka, on which last-named day said clerk signed his name to the indorsement of filing made as aforesaid by said register on the back of said petition.”
These proceedings in bankruptcy were carried on to successful consummation, and Liebenstein & Co. adjudged bankrupts. The title under which the plaintiff in error, plaintiff below, claims, dates from ten o’clock and fifteen *414minutes on the morning of February 6th 1871, or an hour later than the time of issue of the orders in bankruptcy. By § 14 of the bankrupt act the title of the assignee in cases of voluntary bankruptcy relates back to the commencement of .the proceedings, and by §42 a like effect is given to proceedings in involuntary bankruptcy. The first paragraph of § 38, reads:
“Sec. 38. And be it further enacted, That the filing of a petition for adjudication in bankruptcy, either by a debtor in his own behalf, or by any creditor against a debtor, upon Avhich an order may be issued by the court or by. a register in the manner provided in section four, shall be deemed, and taken to be the commencement of proceedings in bankruptcy under this act.”
When was the petition filed in this case ? An examination ■ of the indorsement over the signature of the clerk shoAvs that it Avas on February 6th 1871, at 9.15 a.m. But this indorsement is not a record, so as to import verity, and conclude the parties. Going back of the indorsement the facts are, that while the petition Avas in the hands of the judge and register at that time, and while process was then issued thereon, it did not reach the clerk or clerk’s office till the next day. The indorsement, excepting the signature of the clerk, Avas made by the register at the time he received the petition. Was that a “filing,” within the meaning of the section -quoted? “A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file.” 1 Bouvier’s LaAV Diet., 524. The indorsement is not the filing. It is simply evidence of it. The clerk of a court is the custodian of its papers and records. To him must be - delivered any paper which is to belong to the files of that court. The commencement of proceedings in bankruptcy is the commencement of a suit in the district court. In re, Adams, 2 Bank. Reg., 92. “The clerks of the several district courts .shall enter upon each petition in bankruptcy, the day, and the hour of the day, upon which the same shall be filed, and shall also make a similar note upon every subsequent paper filed AA’ith them; and the papers in each case shall be kept in *415:a file by themselves.” General Orders in Bankruptcy No. 1. If this was all that bore upon the question, it would be one ■of little difficulty, and we should be compelled to hold that the filing did not take place until the 7th of February, the time the petition reached the clerk’s office. And this is the rule applicable to every other court, and to almost every other •class of cases. But bankruptcy proceedings are sui generis; .and we arc satisfied that this petition was filed at the time it passed into the hands of the judge- and register, and on it process had been issued. By the first section of the bankrupt law, the district courts arc constituted courts of bankruptcy. -“The said courts shall always be open for the transaction of business under this act, and the powers and jurisdiction hereby •conferrcd shall be exercised as well in vacation as in term time, and a judge sitting at chambers shall have the same powers and jurisdiction * * * as when sitting in court. * * * Said courts may sit for the transaction of business in bankruptcy at auy place in the district, of which place and the time of holding court they shall have ■given notice, as well as at the places designated by law for holding such courts.” Bankrupt Law, § 1. It seems ‘ from this that not only is the bankrupt court always open, but that it may be a movable court. It is said the clerk’s, •office and the clerk follow the court; but for the transaction •of other than bankruptcy business the clerk’s office is stationary, at the place designated by law. But the holding of • court necessitates the filing of papers, and the issue of process. The one can make little progress without the other. Hence it appears at the very outset of the bankrupt law, that congress contemplated the necessity of filing papers otherwise than by delivering them to the clerk, at his stationary office, .although it provided that such office should be their final •place of custody. To make more serviceable this bankrupt law, a new officer, a register in bankruptcy, was created, with functions partly judicial and partly ministerial. At his •office, and by him, is transacted a lai’ge proportion of the .bankrupt business. General Order No. 2 reads as follows: *416“All process/ summons, and subpoenas, shall issue out of the court, under the seal thereof, and be tested by the clerk; and blanks with the signature of the clerk and seal of the court may upon application be furnished to the registers:”- If the petition must pass to the clerk’s office before process may issue, why leave blanks elsewhere than at that office ? Fuinishing registers with blank processes, signed and sealed, gives them authority to use them. But the issue of process implies a case in court, the filing of a petition. Again.by General Order, and in § 4 of the law, a memorandum of all acts by a register must be made, entered in a docket of his own, and forwarded by at least the mail of the subsequent day to the clerk, to be by him entered in a minute book of proceedings in bankruptcy. These proceedings are entered in this book as of the date of performance by the register, and not of the date of receipt by the clerk. In other words, the record of the clerk tallies in point of time with the- acts of the register. A similar requirement obtains in regard to papers. See General Order No. 7. There are other provisions of the bankrupt law which .bear with more or less force upon this question, and which point in a similar direction to those last quoted. The judge of the U. S. court, when he ordered process to issue in this case, evidently considered that the petition was filed. We understand that a like practice exists in other districts. While the construction of a federal law by the federal courts, other than the supreme, is not conclusive, it is nevertheless entitled to careful consideration; and where that construction generally prevails it will have great influence with us in coming to a decision. The judgment of the district court will be affirmed.
All the Justices concurring.