The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1868-09-23
NEW YORK CITY.
TIE COURTS.
UNITED STATES cIlculT COURT.
A Bankruptcy Appeal Case-Decisfon.
Before Judge Nelson.
j tldge Nelson has uivan the folInxinn oninion ON

8. D1hAEupicy Appear CdSc-Dtclsfous
Before Judge Nelson.
Judge Nelson has given the following opinion on
appeal
IN tho Natter OF Asa W. Gran, q Bankrupt, &c.
This is petition flied under the second section OF
the Bankrupt at for the purpose OF revising deci
OF the petition of the creditors under the thirty
ninth section OF that act ssatac pro tunc The petit
Craft, the debtor, in contemplation Of bankruptcy,
gave 10 b. Jones confession OF judgment and
caused Judgment to be entered thereon, upon
which execution was issued, &C.; that this comics
sion was entered into with intent to give prefer
ence TO Jones' one OF his creditors and to defeat
states facts showing that the debtor was lnsOlvent
on the return OF the order to show the Pc
tition the debtor denied tho acts OF bankruptcy
set forth in the petition and demanded trial by the
court. The proofs show that Craft was ins0ivent
Wien ne gave the confession Of Judgment, and that
AFTER the sale on execution under jones' Judgment
ne mad no property with which to pay his debts. 1t
appeared, however distinctly that the several acts
tent to take the benefit Of the Bankrupt act which
was the averment relied ON in the petition as the
BANKRUPTCY. The thiity.nint section provides.
among other things, that any person 'who, being
SSankrnpt or insovent or IN contemplation OF
his properly to &c Process SVasa
itors.n DC, 'shail be deemed to have committed an
act OF bankruptcy" 1t will be observed that the
insoyent, or contemplated insolvency, but only that
the several acts alleged done in contemplation
Of bankruptcy. These latter words In the act OF
1S4l were construed to mean in contemplation Of
committing what was made by the act, an act OF
bankruptcy as How. p. 1901. which construction
would seem quite applicable TO the same language
In the present act The result H. the proofs show,
that the acts OF Graft In giving the confession OF
Of Bankruptcy the petition against him failed, un.
less 1t competent for the Court below to grant
the amendment in question, which is, by inserting the
words while ins0lyent, or In contemplation OF insO
vency,n in lieu OF n contemplation or bankruptcy"
The only real objection to an amendment OF petit
ton In bankruptcy, nuno pro tunc, in clause In
this thirty section OF the act, which provides
that the petition shall 'be brought within six months
after the act Of bankruptcy shall have been COM
mitted." To allow substantial amendmenC-that
Is, one going to the whole foundation of the proceed.
ing, nitnc pro tuyac--w0uld be In direct violation OF
this limitation which is obviously for the benefit OF
the debtor. But In the present case the amendment
Is little than formal as facts are alleged In the
petition which, If true, and the proofs substantiate
them, import that the debtor was insOlvent at the
time and committed the acts alleged in contempla-
ton Of insolvency. This new averment, therefore,
could not have taken the debtor by surprise, 1t
simply puts in form what already appeared In sub
stance in the petition and which must have been so
understood by him the trial Of the issue before the
Court as no objection was taken to the evidence
Amendment affirmed.