In re McCallum & McCallum

• Decision Date: 11 February 1904
• Docket Number: 993.
• Citation: 127 F. 768
• Parties: In re McCALLUM & McCALLUM.
• Court: U.S. District Court — Eastern District of Pennsylvania

127 F. 768

In re McCALLUM & McCALLUM.

No. 993.

United States District Court, E.D. Pennsylvania.

February 11, 1904

Warner & Houseman, for First Nat. Bank of Bethlehem, Pa.

John Dickey, Jr., for Sixth Nat. Bank of Philadelphia, Pa.

J. B McPHERSON, District Judge.

With every disposition to be liberal in the allowance of amendments, there is nevertheless a limit to the power of the court in this regard. If the year within which claims may be proved is still unexpired, amendments are largely a matter of course, but after the expiration of the year a different situation is presented. The rights of creditors are then fixed by the act itself, and no new right can be introduced. If the proof of a right that had already been asserted in substance should thereafter be found to lack form or precision, ordinarily, I suppose, such defect might still be remedied; but, as Judge Archbald said in a similar case (his opinion was afterward adopted by the circuit court of appeals):

'The general right to amend, regardless of the time which has elapsed, is abundantly sustained by the authorities. * * * But to do so, it is plain, 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 forward and make effective that which in some shape is already there. ' In re Mercur (D.C.) 116 F. 655; Id., on appeal, 122 F. 384, 58 C.C.A. 472.

That was an effort to amend proceedings against the two members of a partnership, who had been adjudged bankrupts individually and had been discharged, so as to bring in the firm, and have an adjudication against the partnership also. Here the partnership and individual members have all been adjudged bankrupts, and a creditor, having proved his claim against the firm, seeks to amend it after the year has expired so as to add to it a claim against one of the members upon a separate contract. The facts are these: The bankrupt firm made a promissory note payable to the order of William H McCallum, one of the partners, by whom it was duly indorsed. The claim against the firm, based upon their contract as makers, was proved by the creditor; but the claim against William's individual estate, based upon the separate and distinct contract of indorsement, has not been proved. The year has gone by, and to permit the proof of claim that is now upon file with the referee to be so amended as to include the second contract would...