In re Pure Milk Co.

154 F. 682, 1907 U.S. Dist. LEXIS 256

• Court: District Court, S.D. Alabama
• Decided: May 4, 1907
• Docket: No. 459
• Status: Published

Opinion

TOULMIN, District Judge.

The averment in the petition that the alleged bankrupt had within four months paid money to one or more creditors, with intent to prefer such creditors over its other creditors, is insufficient as an averment of an act of bankruptcy. In re Nelson (D. C.) 98 Fed. 76, and authorities cited therein. If the petition-originally filed was insufficient in averring an act of bankruptcy, then it in effect averred no act of bankruptcy. Leave to amend may be granted, but will not generally be granted when the proposed amendment would introduce into the petition entirely new acts of bankruptcy.

New acts of bankruptcy will not be permitted to be introduced into the petition after the four months’ period has expired. A fortiori, where no act of bankruptcy is averred in the original petition, should an act of bankruptcy be permitted to be introduced after the four months’ period - has expired? Brandenburg on Bankruptcy, p. 304, § 466. Here the petition avers no specific act of bankruptcy, and the amendment is founded upon an act which it appears was committed more than four months before the amendment is proposed to be made, which, it seems to me, is a much stronger case against the petitioner’s claim than when a new act of bankruptcy is sought to be introduced.

Moreover, the application to be allowed to amend does not comply with rule 11 (18 Sup. Ct. v). No showing is made why the act of bankruptcy now proposed to be averred was not set out in the original petition. Collier on Bankruptcy, pp. 223, 224; Loveland on Bankruptcy, p. 183 ; White v. Bradley Timber Co. (D. C.) 116 Led. 168.

The motion is hereby denied.