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
manding cases to allow amendments as prevailing in the supreme court. In Fwtcher v. Peck, 6 Cranch, 87, by consent the pleadings were amended by giving .substanceto a plea otherwise bad. Numerous cases can be cited where cases have been remanded by the supreme court to a,llow amendment, none disputing the power or authority of the appellate court to allow the amendment, but alleging .the .practice against it. 8 How. 610, before eited. So that the power of the appellate court to allow amendments may be taken as established, and it remains to be determined only whether there is any well-settled practice of this court against it, and requiring a remanding of the case to dd substantial justice. This court is mainly an appellate court for admiralty and revenue cases, and it is only under the bankrupt law that it has any other appellate jurisdict:on of any moment. In the two former classes of appeals the prac-, tiee is well settled to allow the amendments. In the last class there is no practice settled that has been called to my attention. Section 636" Rev. St., would seem to give authority to the circuit court to try every appeal case de novo, as it may direct such judgment, decree, or order to be rendered, etc., as the justice of the case may require· . I think the amendment was properly allowed in this case, but it should have 'been on terms which, however, can be corrected in the decree. The motion to strike out is denied, whereupon the complainantS' are entitled to a decree pro confesso, which is granted-the appellants to pay the costs of the district court and the appellees the costs of this court;
UNITED STATES 17.
HOWELL and others.
October Term, lS8l.)
(Circuit Court, IV. D. North Carolina.
STATlt ExEMPTION LAWS.
State exemption laws are inapplicable to debts due from a citizen to the United States, 2 CASE STATED, Upon a return of no property found in excess of the homestead and personal property exemptions allowed by the constitution and laws of the state upon execution for any debt, on motion by the United States district attorney for an alias execution to be issued to the marshal, and for an order of court directing him to make a levy and sale of the property without regarding such exemptions, held, that he was entitled to the order asked for. In this case an execution was issued upon a jndgment obtained by the United States against the defendants upon a warehouse bond, and the marshal made return to this term of the court that no levy was made, as no goods