Page:Federal Reporter, 1st Series, Volume 9.djvu/688

WAREBN V. MOODY. 673 �Warren and others v. Moodt and another, Assignees. [Circuit Court, M. D. Alabama. December, 1881.) �1. Equity— Appeal — Amkndmbnt of Substance. �On appeal in equity f rom the district court of the United States, the circuit court can permit an amendaient of substance. �2. Samb— Same — Same — Pbactice. �In the circuit court, there is no settled practice to allow such amendments in appeal cases in bankruptcy. S. Same— Samb. �It seems, that in admiralty and revenue cases brought to that court on appeal the practice is well settled to allow ameadments of this nature �In Bankruptcy. On appeal. �E. Bragg, for complainants. �C. Clopstock for respondents. �Pardee, C. J. This case is a cause in equity, originally brought in the district court to set aside a fraudaient conveyance of a bank- rapt, and after final decree in that court has been appealed, under section 4980, Eev. St., to this court. It came up for hearing at last tenn, when an amendaient of substance was allowed to the original bill, and the cause continued to allow the defendant to meet the amended bill by motion to strike 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 ap- peal in equity to permit amendments to pleadings. �In Kennedy v. Georgia State Bank, 8 How. 610, it is said: �"ihere is nothing in the nature of an appellate jurisdiction, proceeding according to the common law, which forbids the granting of amendments. And the thirty-seeond section of the judiciary act of 1789, (now Eev. St. § 954,) allowing amendments, is sufficiently comprehensive to embrace causes of appellate as well as original jurisdiction. " �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 ap- pellate courts. �This would seem to settle the question, but counsel claims that this power elaimed in 8 How. and under section 964 goes only to amendments of form and not to amendments of substance. In Jackson v. Askton, 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 re- v.9,no.l2— 43 ��� �