In re Lathrop et al. all such claims, both those in the name of Prescott and those in the name of Mr. Hawkins, regarded and regards the position and rights of the holders of the claims only as between themselves, as agents or their real principals, the bankrupts and such bona fide creditors of the bankrupts as had not parted with their claims by transfering them in the shape of a sale to Prescott, or some other person acting for the bankrupts. It now appears that aside from the claims so held by Prescott and by Mr. Hawkins, the unpaid proved debts amount to only two hundred and thirty-one dollars and eighty cents, and the unpaid unproved debts to only ninety-three dollars and thirty-seven cents, and that the assets in the hands of the assignee in bankruptcy are ample to pay such debts in full; while, therefore as between the estate in the hands of the assignee and the bona fide unpaid creditors of the bankrupts, the claims held by Prescott and Mr. Hawkins could not come in as the claims of creditors for a dividend until all the claims proved by bona fide unpaid creditors should be fully paid, yet when such last named claims and all the unpaid unproved debts are disposed of, as is now practically the case, the question on the evidence now before me is a very different one. I am now called upon to distribute the surplus assets of the bankrupts among themselves, or to transfer such assets to the bankrupts. The question comes up on a petition by Lathrop, one of the bankrupts, that the claims held by Prescott and Mr. Hawkins be disallowed and rejected, and that he be allowed his share of the estate, or that the estate be assigned by the assignee to him jointly with the other two bankrupts, his former partners, Cady & Burtis. If he is to enjoy the benefit of the rejection of the claims held by Prescott and Mr. Hawkins, as claims to their full amounts against the estate, he must take such benefit cum non. Such claims amount on their faces to one hundred and five thousand and twenty-three dollars and eighty-four cents. He repudiates having had anything to do with the purchase of such claims, and has alleged and proved that what has been done towards purchasing them has been done In re Lathrop et al. wholly by Cady & Burtis, through the agency of Prescott and of Mr. Hawkins. The money that was raised to purchase the claims was put into the hands of Prescott to the extent of sixty-two thousand, three hundred and fifteen dollars and eighty-one cents; and into the hands of Mr. Hawkins to the extent of fifteen hundred and sixty-four dollars. With the former sum Prescott purchased claims to the amount of one hundred and three thousand, four hundred and nine dollars and eighty-four cents; and with the latter sum Mr. Hawkins purchased claims to the amount of one thousand six hundred and fourteen dollars. These claims, before they were so purchased, were all of them bona fide debts against the bankrupt, for which Lathrop was liable. By their rejection he is to be freed from the amount of indebtedness which they represent. It is not equitable that he should be so freed without contributing his share of the money which went to satisfy the creditors who held the claims. Prescott and Hawkins represents those who furnished such money, whoever they were. The amounts paid by Prescott and Mr. Hawkins for the claims, must be refunded to them, as an equitable claim against the estate in the hands of the assignees, before such estate can be distributed among the bankrupts or turned over to them. In this regard Prescott and Mr. Hawkins may be considered as subrogated to the rights of the creditors who assigned to them to the extent of the moneys they actually paid to such creditors, and the claims may be considered as valid in their hands to the extent of the moneys they so paid with interest. A suit for an accounting in repect of the partnership affairs of the bankrupts, as between themselves, is pending in a court of the state. That is the proper tribunal to superintend and enforce such accounting. The pleadings in such suit have formal shape, and the rights of the partners, as respects each other, will not be adjudicated as the out-branch of a proceeding in bankruptcy. The assignees in bankruptcy are entitled to be relieved, as soon as possible, from their tedious and troublesome, and acrimonious contest among these part In re Heller. ners, and to depart without day when all the creditors of the bankrupts depart. A decree will be entered providing for the payment in full by the assignees of the two hundred and thirty-one dollars and eighty cents of unpaid proved debts, with interest. For the payment into court of the ninety-three dollars and thirty seven cents of unpaid unproved debts, with interest. For the payment of the commission of the assignees, and the charges, fees, disbursements and expenses of their attorney and counsel, and the fees of the register and clerk. For the payment to Prescott of the sixty-two thousand three hundred and fifteen dollars and eighteen cents, with interest; and to Mr. Hawkins of the fifteen hundred and sixty-four dollars, with interest. For the transfer of the remainder of the estate by the assignees to the bankrupts, jointly, by proper instalments. GEORGE WILCOX, for Lathrop. DEXTER A. HAWKINS, for himself and Prescott and Cady and Burtis. UNITED STATES DISTRICT COURT-S. D. NEW YORK. [Before JOHN Fгroн, Register.] A register has the right to allow amendments to the schedules on the ex parte application of the bankrupt, at any time while the cause is pending before him, but it is the better practice, if there shall have been an appearance on the part of creditors, to issue an order to show cause, &c., and to require due notice of such application to be given. It is the duty of the bankrupt to amend his schedules so as to make them conform to the facts, and that the filing of specifications does not deprive him of that right or release him from that duty. The register should allow all necessary and proper amendments whenever a proper cause therefor is shown. In re B. HELLER. Upon affidavits and upon all the pleadings and proceedings in this cause, the bankrupt moves to amend schedule A attached to his petition for adjudication in bankruptcy, by striking out certain debts which were inserted in a previous amendment through a mistake of the law, the debts having In re Heller. been contracted by the bankrupt since the filing of his petition. Since the adoption of the code of procedure by the legislature of this state, amendments to any pleadings or proceedings are allowed virtually as a matter of course, and are within the discretion of the court, and being allowed whenever proper cause is shown. Sections 172, 173 and 174, of the Code. The practice of the state courts under section one hundred and seventy-three of the code, which section of the code is as follows: "The court may, before or after judgment, in furtherance of justice and in such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party or a mistake in other respect; or by inserting other allegations material to the case; or when the amendment does not change substantially the claim or defence, by conforming the pleading or proceeding to the facts proved," has been settled by the following decisions: Amendment before trial, matter of course, Troy & Boston R. R. Co. v. Tibbetts, 11 How. 170; Dagurre v. Orser, 3 Abb. 86. Reasonable excuse for defect sufficient, Huntington v. Slade, 22 Barb. 164, see further, Merchant v. N. Y. Life Ins. Co., 2 Sand. 659; 2 Code Rep. 66 87; Chapman v. Webb, 1 Code Rep. U. S. 388. Summons may be amended after judgment, Sluyter v. Smith, 2 Born. 673; see also 13 How. 287. Affidavits may be amended, 13 How. 350. A warrant of attachment may be amended, Kissam v. Marshall, 10 Abb. 424. Where amendment is in furtherance of justice, but little restriction upon power of amendment, Van Ness v. Bush, 14 Abb. 36; Beardsley v. Stover, 7 How. 294; 3 Abb. 86. Court will allow amendment of complaint necessary to conform it to the facts proved, Hunter v. Hudson River Iron Co., 2 Barb. 493. By section one hundred and seventy-four of the code of procedure, whenever any proceeding taken by a party fails to conform in any respect to the provisions of this code, the court may, on motion, permit an amendment so as to make it conformable thereto. In re Heller. The motion to amend is properly made. General order V; in re Morford, B. R. Sup. xlvi; in re Perry, 1 N. B. R. 2; in re Little, 1 N. B. R. 74; in re Watts, 2 N. B. R. 145. The bankrupt is required by the bankrupt act of March 2, 1867, to make his petition and schedule conform to the provisions of the law, in re Orne, B. R. Sup xviii. And the court has authority to allow amendments to be made at any time prior to the discharge of the bankrupt. General order V. "He shall be at liberty from time to time, upon oath, to amend and correct his schedules of creditors and property, so that the same shall conform to the facts." United States bankrupt act, section 26; in re Jones; 2 N. B. R. 20; in re Orne, B. R. Sup. xviii. In the last cited case BLATCHFORD, J., says: "An error, whenever discovered, must be corrected, no matter what proceedings have theretofore taken place." "The register may order schedule to be amended at any stage of the proceedings." In re Perry, 1 N. B. R. 2. Additional amendments were allowed after the assignee had made and filed his report. I entertain no doubt of the right of the bankrupt to amend under section twenty-six, nor of the application being properly made to the register. A bankrupt may amend schedules even after the hearing of specifications against the discharge, in re Preston, 2 N. B. R. 27. In this cause leave to amend was granted by the register under section twenty-six of the act, and general orders five, seven and thirty-three. Schedule A was amended by the addition of about twenty-five creditors, among these were included the names of eight persons, the indebtedness to whom was subsequent to filing of the petition. As the discharge, if granted, could not release the petitioner from debts contracted after the filing of his petition, those creditors whose names were improperly inserted could suffer no loss or damage by the mistake. They had not proved or attempted to prove their debts, and the proceedings have not been effected in any way by their names being inserted in the amended schedules. The bankrupt, on becoming aware of the error, seeks to correct it by striking out those names from his amend |