Page:Federal Reporter, 1st Series, Volume 8.djvu/442

428 FEDBBAL BEPOBTEB. �•were not produced, while no such oatside creditors in faet appear, would be, I think, wholly insuffieient evidence upon whicn to lound a decree. �Tbe bill is therefore dismissed. ���In re Beae and others, Bankrupts. �(District Court, S. I). New York. July 14, 1881.) �1. Pbactice — AMENDMEaiTs — Stattjtbs of Limitations. �Amendments will not generally be allowed for the purpose of setling up statutes of limitation to defeat claims otherwise equitable and just. �2, Delat Pbocured by Rbquest. �One cannot take advantage of dclay procured by his attorney's request. �In Bankruptcy. Petition of Hunter. �Oeo. Bell, for petitioner. �Fred. W. Henrichs, for assignee. �Beown, D. J. The general rule is not to allow amendments for the purpose of setting up statutes of limitation merely to defeat a claim otherwise equitable and Just. Walcott v. McFarlan, 6 Hill, 227; 2 Wend. 294; 7 Cow. 401. While the Eleventk Ward Bank Case was pending and undetermined it was undesirable that other suits of a similar oharacter should be multiplied. Jones properly waited for its determination. After that he acted promptly in pre- paring and forwarding proof of secured claim to be filed. The mis- takes made by his attorneys as to the filing of claims show gross careleseness or inattention on their part ; but I think the consequences should not be visited upon Jones, an absent non-resident crediter who held a legal lien on the assets. The affidavit of Brainsby shows that Jones' attorneys were about to file petition for the enforcement of his lien on the proceeds within the two years, but were deterred from doing 80 by the request of the assignee's attorney on the ground of an ap- peal taken by the latter. It would be inequitable to allow the assignee to take advantage of the delay thus procured by his attor- ney's request, {In re Mayhin, 15 B. E. 468,) and I think the usual rule should be applied denying the motion, without costs. ��� �