was not contributed to or caused by the absence of lights, but that it was occasioned by the negligence of the master and those in charge of the Buckeye. The exception to the commissioner's report will be overruled, and a decree entered in accordance with the findings of this report. THE
(Oircuit Oourt, 8. D. New YO'l'k. 1.
Where both parties appeal, and the decree of the .u neither party recovers costs of the appellate court.
Beebe, Wilcox tt Hobbs, for libellant. E. D. .l1cCarthy, for cl:1imants. BLATCHFORD, C. J. In this case I entirely concur in the views of the district judge, and his conclusion, in his decision in the court below, based upon the rule laid down by that court in the case of The William Murtaugh, 3 FED. REP. 404, which rule is a proper one for the protection of property and life. There must be a decree for the libellant for $733.05, with interest from January 28, 1881, and for his costs in the district court, taxed at $265.85. As both parties appealed to this court, and the decree below is not disturbed, neither party is to recover costs of this court·
· See a FED.
and others v. MOODY and another, Assignees.
;Circuit Court, M. D. l1labama.
EQmTy-ApPEAL-AMENDMENT OF SUBSTANCE.
On appeal in equity from the district court of the United States, the circuit .::ourt can permit an amendment of substance.
In the circuit court, there is no settled practice to allow such amendments in appeal cases in bankruptcy.
It seeIll8, that in admiralty and revenne cases brought to that court on appeal the practice is well settled to allow amendments of this nature
, PARDEE, C. J. This case is a cause in equity, originally brought in the district court to set aside a fraudulent conveyance of a bank. rupt, and after final decree in t.hat court has been appealed, under section 4980, Rev. St., to this court. It came up for hearing at last term, when an amendment of subst.ance was allowed to the original bill, and the cause continued to allow the defendant to meet the a:nended bill by motion to out or answer or plead, as counsel might advise. The defendant moves to strike out the amendment, and this motion presents the question whether it is allowable on appeal in equity to permit amendments to pleadings. In Kennedy v. Georgia State Bank, 8 How. 610, it is said:
"There is nothing in the nature of an appellate jurisdiction, proceeding according to the common law, which forbids the granting of amendment.s. And the thirty-second section of the judiciary act of 1789, (now Rev. St. § 954,) allowing amendments, is sufficiently comprehensive to embrace causes of appellate as well as original jurisdiction...
E. Bragg, for complainants. C. Clopstock for respondents.
And then the court cites Anon. 1 Gall. 22, in which case Justice Story, in a forcible argument, holds that amendments may be allowed in appellate courts. This would seem to settle the question, but counsel claims that this power claimed in 8 How. and under l:iection 954 goes only to amendments of form and not to amendments of substance. In Jackson v. Ashton, 10 Pet. 480, an amendment to aver citizenship, . so as to give jurisdiction, was only refused because application came too late. In Garland v. Davis, 4 How. 155, the right to amend was recognized, but the case was remanded because of the practice of reo