any act to prejudice it, is, I think, clearly substantiated, not merely by the claims of the petitioners in the litigation in England, which has been all the time going on, but especially, also, from the fact that two other bills of exchange for about the same amounts, as to which the attorney knew the goods had been forwarded, were omitted from the proofs, and have never been presented in bankruptcy at all, although the claim to a lien on the goods as to those bills was attended by additional litigation here, growing out of the assertion of title to the goods by the original vendors of Baxter & Co. The proofs, therefore, must be regarded as being made under a pure mistake of fact on the part.of the attorney who prepared them, and mistake of mixed law and fact on the part of the petitioners. In such cases it has been the practice in courts of bankruptcy in this country to permit the error to be corrected when the estate has not been injuriously or when any action based thereupon can be recalled or compensated. In the case of Clark et Biningerj in this court, (5 N. B. R. ""255,) proofs were allowed to be amended nnder circumstances similar. In the case of Edward Hubbard, Jr., 1 Low. 190, (1 N. B. R. 679,) Lowell J., s a y s : "
.. When proof has been under a mistake of fact, or even of law, it be corrected, almost as a matter of course, if neither the bankrupt nor other creditors who have proved will be injured. And even where the rights of others will be affected. if the only effect is to restore all parties to the position they were in before the debt was proved, it would be proper to allow the withtlrawal if there had been a mistake and no want of diligence."
10 N. B.R. 82, Longyear, J., says: The court undoubtedly possesses the power, in its discretion, to allow proofs of debt to be amended, and in cases of mistake or ignorance, Whether of fact or oil law, will generally exercise that power in the absence of fraud, and When all parties can be placed in the same situation they would have been in jf the error bad not occurred, and where justice Beems to demand that it should be done." In re Brand, 8 N. B. B. 824; In re Jaycox, 8 N. B;R, 277; &x; parte Harwood, Crabbe, 496; Edwards v. Morgan, McClel. 551.
In the case of John F.
But where a creditor, by proof of his debt, has taken part in the meetings of creditors, and controlled the action of others in the choice of an assignee or trustee, or influenced the qUGstion of the bankrupt's discharge, he is held precluded from any subsequent change in his proofs. New Bedford, etc., v.Jt'a·ir Haven, etc., 9 Allen, 175, 180; Ex parte Solomon,l Glyn & J. 25; Stewart v. [sidor, 1 N, B. R. 485; In re Bloss, 4 N. B. R. 147.
MEHRBACH V. LIVERPOOL &' GRlllA'r,'WESTERN STEAK CO.
also present such objections as wereavailahle iIi opposition present petition. The amendments ate, therefore, allowed only upon the terms of restoring the dividends on the two bills in question heretofore received, with interest thereon, and the payment of $50 counsel fees and charges of the trustee upon this application, and also upon payment of the costs and counsel fees of the trustee in the suit of Brown, Shipley & Co., commenced in July, IS81, up to this time, in case the trustee shall elect to abandon .the. further defence of that action; and, if he shall not so elect, then upon a stipulation of Brown, Shipley & Co. that in case of their success in said suit they shall have no costs therein up to this time, but shall pay the trustee's costs up to this date.
LIVERPOO:r.&' GREAT WESTERN STEAM
(Di8trict Oourt, E. D. NCIJJ Y01'k,April 10, 1882.)
SHIPPING-ORAL AGREEMENT-REOOVERY BAOK OF Fl;\fIGHT MONEY.
Libellant and respondent. entered intq an agreement for the shipment by libellant, on various vessels of the respondent, of 250 horses, to be transported from New York to Liverpool, and that libellant, in consideration of areduction in the rate of freight, should pay the freight at the time of shipment and assume all the risks of the voyage, including the risk of a failure to perform the voyage by reason of perils ohIie 'Su'bsetluently a shipment of 54 horses was made, which were lost at sea. Held, that the horses were taken on board in pursuance of the oral agreement;Jlotwithstanding a bill of lading was delivis noniable 'for the return of the ered to the shipper, and that the freight money paid for their'transportation. ' . '
Butler, Stillman « Hubbard,forlibellant. Beebe, Wilcox« Hobbs, for respondent. BENEDICT D. J. This is ali ·actioll,:brought in the name of Isaac Mehrbach, libellant, for the benefit of,thePhcenix Insurance Company, to recdver of the owners of the steam-ship Idaho the sum of $2,70Q, being money paid those ownerabythe libellant as the freight of 54 horses shipped on board the Idaho on May 21, 1881,'to ,be transported t'oLiverpool, but ne'ver delivered,owingtoa loss of the steamer with hereargo at sea, before the cot1lpletionof the''\Toyage. The evidence shows the shipment of the horses; the payment of the freight, 'a.mounting to $2,700,'by the libellant to the respondent ; the