In re Little

S.D. New York

In re Little

15 F. Cas. 598, 2 Ben. 186, 1 Nat. Bank. Reg. 341, 1868 U.S. Dist. LEXIS 284

CourtDistrict Court, S.D. New York

DecidedMarch 4, 1868

StatusPublished

Cited by5 cases

This text of 15 F. Cas. 598 (In re Little) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Little, 15 F. Cas. 598, 2 Ben. 186, 1 Nat. Bank. Reg. 341, 1868 U.S. Dist. LEXIS 284 (S.D.N.Y. 1868).

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Opinion

BLATCHFORD, District Judge.

I think that the register erred in denying the motion of the bankrupt, which was, that he be permitted to amend his petition and schedules in such manner as will permit his copart-ner to be joined with him in the proceedings in regard to the bankruptcy of the firm. The petition, which I have examined, is an individual petition, setting forth only one [599]*599schedule of debts and one Inventory of assets, both of which are stated in the petition to be the individual debts and assets of the petitioner. But the schedule of debts shows that a large portion of the debts consists +of debts of a copartnership, of which the petitioner was a member, and the inventory of assets shows that part of the assets consists of credits due to said copart-nership. Under these circumstances, as the petitioner prays to be discharged from all his debts provable under the act, and some of the debts set forth in the schedule annexed to his petition are debts of the said firm, the petition is one to have the firm declared bankrupt on the petition of one of its partners, within the provisions of section thirty-six of the act, and of general order No. 18. As Dana did not join in the petition of Little, he ought to have been brought in, by proper proceedings, under general order No. 18, before an adjudication of bankruptcy was made on the petition of Little. The defect is now sought to be remedied by Little. His petition requires to be amended, and his schedules require to be amended. He asks to be allowed to amend them so as to join Dana with him in the proceedings. Dana can be so joined, either by joining voluntarily in the petition of Little, or by being brought in, on. notice, under general order No. IS. When he is so brought in he can be discharged from his debts, including the debts of the firm; and, until Dana is so brought in, Little cannot be discharged from the debts of the firm, because the theory and intent of section thirty-six of the act, and of general orders Nos. 16 and 18, are that the creditors of a firm shall be required to meet but once, and in one bankruptcy forum, all questions in regard to the bankruptcy of the firm, and in regard to their debts against the firm, and in regard to the administration in bankruptcy of the assets of the firm.

Section twenty-six provides, that the bank-nipt shall “be at liberty, from time to time, upon oath, to amend and correct his schedule of creditors and property, so that the same shall conform to the facts,” and general order No. 83 prescribes regulations in regard to the amendment of schedules. General order No. T provides, that “the court may allow amendments to be made in the petition and schedules, upon the application of the petitioner, upon proper cause shown, at any time prior to the discharge of the bankrupt.” General order No. 7 confers on the register the power of ordering amendments of any proceedings. The case was, therefore, a proper one for the register to allow the bankrupt to amend his petition and schedules, for the purpose set forth in his application to amend. The clerk will certify this decision to the register, James F. Dwight, Esq.

[Upon a subsequent hearing, the application of the bankrupt for discharge was refused for want of jurisdiction. It being shown that the bankrupt was a resident and doing business, not in the district, but in New Jersey. Case No. 8,391.]

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BLATCHFORD, District Judge.

I think that the register erred in denying the motion of the bankrupt, which was, that he be permitted to amend his petition and schedules in such manner as will permit his copart-ner to be joined with him in the proceedings in regard to the bankruptcy of the firm. The petition, which I have examined, is an individual petition, setting forth only one [599]*599schedule of debts and one Inventory of assets, both of which are stated in the petition to be the individual debts and assets of the petitioner. But the schedule of debts shows that a large portion of the debts consists +of debts of a copartnership, of which the petitioner was a member, and the inventory of assets shows that part of the assets consists of credits due to said copart-nership. Under these circumstances, as the petitioner prays to be discharged from all his debts provable under the act, and some of the debts set forth in the schedule annexed to his petition are debts of the said firm, the petition is one to have the firm declared bankrupt on the petition of one of its partners, within the provisions of section thirty-six of the act, and of general order No. 18. As Dana did not join in the petition of Little, he ought to have been brought in, by proper proceedings, under general order No. 18, before an adjudication of bankruptcy was made on the petition of Little. The defect is now sought to be remedied by Little. His petition requires to be amended, and his schedules require to be amended. He asks to be allowed to amend them so as to join Dana with him in the proceedings. Dana can be so joined, either by joining voluntarily in the petition of Little, or by being brought in, on. notice, under general order No. IS. When he is so brought in he can be discharged from his debts, including the debts of the firm; and, until Dana is so brought in, Little cannot be discharged from the debts of the firm, because the theory and intent of section thirty-six of the act, and of general orders Nos. 16 and 18, are that the creditors of a firm shall be required to meet but once, and in one bankruptcy forum, all questions in regard to the bankruptcy of the firm, and in regard to their debts against the firm, and in regard to the administration in bankruptcy of the assets of the firm.

Section twenty-six provides, that the bank-nipt shall “be at liberty, from time to time, upon oath, to amend and correct his schedule of creditors and property, so that the same shall conform to the facts,” and general order No. 83 prescribes regulations in regard to the amendment of schedules. General order No. T provides, that “the court may allow amendments to be made in the petition and schedules, upon the application of the petitioner, upon proper cause shown, at any time prior to the discharge of the bankrupt.” General order No. 7 confers on the register the power of ordering amendments of any proceedings. The case was, therefore, a proper one for the register to allow the bankrupt to amend his petition and schedules, for the purpose set forth in his application to amend. The clerk will certify this decision to the register, James F. Dwight, Esq.

[Upon a subsequent hearing, the application of the bankrupt for discharge was refused for want of jurisdiction. It being shown that the bankrupt was a resident and doing business, not in the district, but in New Jersey. Case No. 8,391.]

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Bluebook (online)

15 F. Cas. 598, 2 Ben. 186, 1 Nat. Bank. Reg. 341, 1868 U.S. Dist. LEXIS 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-little-nysd-1868.

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