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§ 628. Amendments to petitions in bankruptcy. "The court may allow amendments to the petition and schedules on application of the petitioner. Amendments shall be printed or written, signed and verified, like original petitions and schedules.1 If amendments are made to separate schedules, the same must be made separately, with proper references. In the application for leave to amend, the petitioner shall state the cause of the error in the paper originally filed."2

"In case two or more petitions shall be filed against the same individual in different districts, the first hearing shall be had in the district in which the debtor has his domicile, and the petition may be amended by inserting an allegation of an act of bankruptcy committed at an earlier date than that first alleged, if such earlier act is charged in either of the other petitions; and in case of two or more petitions against the same partnership in different courts, each having jurisdiction over the case, the petition first filed shall be first heard, and may be amended by the insertion of an allegation of an earlier act of bankruptcy than that first alleged, if such earlier act is charged in either of the other petitions; and, in either case, the proceedings upon the other petitions may be stayed until an adjudication is made upon the petition first heard; and the court which makes the first adjudication of bankruptcy shall retain jurisdiction over all proceedings therein until the same shall be closed." The

XI, Re Harrell, 222 Fed. 160, infra, § 628. Upon his application for such permission he should show the cause of the error which he wishes to correct. Re Brincat, 233 Fed. 811.

§ 628. 1 The verification of the petition for leave to file them may be sufficient, International Silver Co. v. N. Y. Jewelry Co., C. C. A., 233 Fed. 945; Hall v. Pullman Co., 253 Fed. 297.

2 General Order XI. See infra, § 637.

8 General Order VI. This order does not prevent the allegation of subsequent acts of bankruptcy where only one petition has been filed. Re Hamrick, 175 Fed. 279. It has been

held that bankruptcy proceedings against a partnership and its members may properly be consolidated with those against a corporation entirely owned by one of the partners, Salt Lake Valley Canning Co. v. Collins, C. C. A., 176 Fed. 91; but that involuntary proceedings against an individual cannot be changed, after testimony has been taken, so as to embrace a proceeding against a partnership of which he was a member, Re Kaufman, C. C. A., 176 Fed. 93; that proceedings instituted against individuals, who were also members of a firm, cannot be amended so as to include the partnership, if relief against the

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grant or refusal of permission to amend a petition in bankruptcy rests largely in the discretion of the Court of Bankruptcy, and will rarely be interfered with by a court of review; but an order permitting or refusing 7 leave to make an amendment may be set aside by the Circuit Court of Appeals upon a petition to review the same. In order to obtain leave to amend, there must be in the record as it stands the substance of that which is asked for; the right to amend can go no further than to bring forth and make effective that which is in some shape already there. But very general language in the original petition will support an amendment thereto. It has been held, that even jurisdictional allegations may be inserted or corrected by amendment.10 That a petition which does not show on its face that the petitioner's claims are five hundred dollars or more

firm was not originally prayed; and that the adjudication of a partnership as bankrupt cannot be made nunc pro tunc so as to take effect from the date of the adjudication as such of its individual members as bankrupts; but a joint voluntary petition of two members of a firm was amended so as specifically to pray an adjudication of the partnership a bankrupt, when it originally tended to show that such relief was desired, Re Mercur, C. C. A., 122 Fed. 384, 10 Am. B. R. 505; Remington on Bankruptcy, § 69; Re Mercur, C. C. A., 122 Fed. 384, 10 Am. B. R. 505; Re Meyers, 97 Fed. 757, 3 Am. B. R. 260.

4 Armstrong v. Fernandez, 208 U. S. 324, 52 L. ed. 514.

5 Pittsburgh Laundry Supply Co. v. Imperial Laundry Co., C. C. A., 154 Fed. 662; Re Sig. H. Rosenblatt & Co., C. C. A., 193 Fed. 638. See Re MeGraw, 254 Fed. 442.

6 Re Sears, C. C. A., 117 Fed. 294; Re Haff, C. C. A., 136 Fed. 78.

7 Ogden v. Gilt Edge Consol. Mines Co., C. C. A., 225 Fed. 723.

8 Re Mercur, 116 Fed. 655, 657;

affirmed in C. C. A., 122 Fed. 384, 388.

9 Chicago Motor Vehicle Co. v. American Oak Leather Co., C. C. A., 141 Fed. 518; Re Hark, 142 Fed. 279; Re Crenshaw, 156 Fed. 638; Ryan v. Hendricks, C. C. A., 166 Fed. 94; Re Pangborn, 185 Fed. 673; Re Irish, 228 Fed. 573; Re Havens, C. C. A., 255 Fed. 478. Where the petition alleged a preferential transfer in the language of the statute with insufficient specifications, an amendment was allowed although more than four months had then passed since the act of bankruptcy and meanwhile an adjudication or voluntary bankruptcy had been made. International Silver Co. v. N. Y. Jewelry Co., C. C. A., 233 Fed. 945.

10 Re Plymouth Cordage Co., C. C. A., 135 Fed. 1000. Thus, it has been held that amendments may be allowed by inserting the allegations: that the alleged bankrupt is not a wage earner or farmer; Armstrong v. Fernandez, 208 U. S. 324, 52 L. ed. 514; Beach v. Macon Grocery Co., C. C. A., 120 Fed.

may be amended by joining other creditors whose claims are sufficient to make up the jurisdictional amount,11 and that the allegation that the creditors are less than twelve may be cured by amendment.12 Other acts of bankruptcy, which occurred within the first four months before the filing of the application for leave to amend, may be added to the petition; 13 provided that they were unknown to the petitioners when the petition was filed; 14 but not, it has been held, acts of bankruptcy which occurred more than four months before the amendment is sought; 15 except in cases of the consolidation of two petitions.16 It has been held that, in the latter class of cases, an act of bankruptcy cannot be inserted in the first petition by amendment,17 and that additional acts of bankruptcy cannot be added after the default of the bankrupt.18 A fraudulent concealment of property is a continuous act which may be added by amendment at any time within four months of its discovery.19 The

736; Re Plymouth Cordage Co., C. C. A., 135 Fed. 1000; Re First Nat. Bank of Belle Fourche, C. C. A., 152 Fed. 64; Re Marion Contract & Construction Co., 166 Fed. 618. See Re Crenshaw, 156 Fed. 638; or the business in which a respondent corporation is engaged, Re First Nat. Bank of Belle Fourche, C. C. A., 152 Fed. 64; Re Broadway Sav. Trust Co., C. C. A., 152 Fed. 152; and, where a single creditor filed the petition, that all the creditors are less than twelve in number, Re Plymouth Cordage Co., C. C. A., 135 Fed. 1000; Re Mackey, 110 Fed. 355; Re Bellah, 116 Fed. 69; Re Haff, C. C. A., 136 Fed. 78, 81. Cf. Millan v. Exch. Bank, C. C. A., 183 Fed. 753.

11 First State Bank of Corwith, Iowa, v. Haswell, C. C. A., 174 Fed. 209; Milan v. Exchange Bank of Mannington, C. C. A., 183 Fed. 753. Contra, Re Stein, 130 Fed. 377; Re Plymouth Cordage Co., C. C. A., 135 Fed. 1000; criticised in Remington on Bankruptcy, § 269.

Fed. Prac. Vol. III-72

12 Re Mackey, 110 Fed. 355; Re Bellah, 116 Fed. 69; Re Haff, C. C. A., 136 Fed. 78, 81.

13 Re Mercur, 95 Fed. 69; Re Haff, C. C. A., 136 Fed. 78, 81. 14 Wilder v. Watts, 138 Fed. 426. 15 Re Haff, C. C. A., 136 Fed. 78; Re Pure Milk Co., 154 Fed. 682; Re Louisell Lumber Co., C. C. A., 209 Fed. 784; Re Condon, C. C. A., 209 Fed. 800; Re Brown Commercial Car Co., C. C. A., 227 Fed. 387; Re Lewis Shoe Co., 235 Fed. 1017; Re Triangle S. S. Co., 267 Fed. 303. Contra, Hark v. C. M. Allen Co., C. C. A., 146 Fed. 665; Re C. W. Bartleson Co., 253 Fed. 296; Re Brown Commercial Car Co., C. C. A., 227 Fed. 389. 16 General Order VI, quoted supra.

17 Re Sears, C. C. A., 117 Fed. 294; criticised in Remington on Bankruptcy, § 298.

18 Re Harris, 155 Fed. 216.

19 Re Havens, C. C. A., 255 Fed. 478. A misnomer of a bankrupt may be corrected by an amendment.

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court may refuse leave to amend when it is not clearly in furtherance of justice.20 In general, an amendment takes effect as of the date of the filing of the original petition; 21 but not where it sets forth acts of bankruptcy not charged in the original petition.22 It is the frequent practice to have the court direct that the amendments be made nunc pro tunc,23 but the amendment

Gleason v. Smith, Perkins & Co., C. C. A., 145 Fed. 895. Names of creditors who were preferred, when originally unknown, may be added by amendment. Re Hark, 142 Fed. 279. The affidavit annexed to the petition may be amended by adding, to the jurat, the name of the place where the verification was taken. Armstrong v. Fernandez, 208 U. S. 324, 52 L. ed. 514, or by making it upon knowledge instead of upon information and belief. Re Farthing, 202 Fed. 557; Sabin v. BlakeMcFall Co., C. C. A., 223 Fed. 501. It has been held: that the requisite affidavit may be added by amendment. Re Vastbinder, 126 Fed. 417. Where the evidence admitted proves a different act of bankruptcy from that alleged, the petition may be amended to conform to the facts proved. Re Miller, 104 Fed. 764; Chicago Motor Vehicle Co. v. Am. Oak Leather Co., C. C. A., 141 Fed. 518. It has been held that, in such a case, the amendment should be deemed made." Re Lange, 97 Fed. 197. An amendment may be allowed after a new trial, to make the petition conform to the facts developed at the former trial. Re Hark, 142 Fed. 279; s. c., C. C. A., Hark v. C. M. Allen Co., 146 Fed. 665. It has been held that, when eighteen months have elapsed since the discharge of a bankrupt, he cannot have the proceedings opened in order to amend his schedules by including the name and residence of a creditor omitted therefrom,

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who had no notice or knowledge of the proceedings, although there are no assets of the estate. Re Hawk, C. C. A., 114 Fed. 916, where no notice of the application was given to the creditor; Re Spicer, 145 Fed. 431.

20 Wilder v. Watts, 138 Fed. 426; Woolford v. Diamond State Steel Co., 138 Fed. 582. Re Farthing, 202 Fed. 557; Re Forbes, 235 Fed. 316. An application by a bankrupt, nearly a year after the adjudication, to amend his schedules so as to bring in an omitted creditor was refused. Re Kittler, 176 Fed. 655.

21 Re Shoesmith, C. C. A., 135 Fed. 684; Ryan v. Hendricks, C. C. A., 166 Fed. 94; Re Pangborn, 185 Fed. 673. It was so held of amendments adding creditors to the petition. First State Bank of Corwith, Iowa v. Haswell, C. C. A., 174 Fed. 209; Millan v. Exchange Bank of Mannington, C. C. A., 183 Fed. 753. Consequently, when the court thus corrected a misnomer of the alleged bankrupt in an involuntary proceeding, it was held that the proceedings took precedence of those on a voluntary petition, subsequently filed, and invalidated an adjudication upon the latter, made before the amendment and before service of process upon the bankrupt. Gleason v. Smith, Perkins & Co., C. C. A., 145 Fed. 895.

22 See cases cited in note 15 supra.

23 Hark v. C. M. Allen Co., C. C.

must be sworn to. An application to amend a petition in bankruptcy will be denied where the petitioner fails to state a reason for the former omission of the matter which he wishes to add to his petition.24 The bankrupt should be allowed a reasonable time within which to answer the amendment to the petition.25 A single day is insufficient.26

§ 629. Process and notices to creditors. "Upon the filing of a 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 law for notice by publication in suits to enforce a legal or equitable lien in courts of the United States, except that, unless the judge shall otherwise direct, the order shall be published not more than once a week for two consecutive weeks, and the return day shall be ten days after the last publication unless the judge shall for cause fix a longer time." "All process, summons and subpoenas shall issue out of the court,

A., 146 Fed. 665. Leave to amend, nunc pro tunc, a petition for the adjudication of the members of a partnership as bankrupts, so as to include a prayer for the adjudication of the partnership also as a bankrupt nunc pro tunc as of the date of the original petition was denied. Re Mercur, C. C. A., 122 Fed. 384. See supra, § 618. But, it was held otherwise where the original petition showed that the petitioners intended to have the firm also adjudicated a bankrupt. Re Meyers, 97 Fed. 757, 3 Am. B. R. 260. Re C. W. Bartleson Co., 253 Fed. 296. 24 White v. Bradley Timber Co., 116 Fed. 768; Wilder v. Watts, 138 Fed. 426; Re Portner, 149 Fed. 799; Re Pure Milk Co., 154 Fed. 682. "It must be shown that the petitioners or their attorney had no

knowledge of, and could not have ascertained with reasonable diligence, the facts sought to be added by the amendments at the time the original petition was filed, or that the facts were omitted by inadvertence, mistake or other reason which would excuse such omission." White v. Bradley Timber Co., 116 Fed. 768. But, in such a case, leave to renew the application may be allowed. Re Portner, 149 Fed. 799. 25 Lockman v. Lang, C. C. A., 132 Fed. 1; Wilder v. Watts, 138 Fed. 426.

26 Lockman v. Lang, C. C. A., 132 Fed. 1.

§ 629. 130 St. at L. 544, 551, § 18; 32 St. at L. 797. See supra, §§ 163, 165, 166. "Courts of bankruptcy shall by order designate a newspaper published within their

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