116 F. 655 | E.D. Pa. | 1902
On December 20, 1898, James Watts Mercur and Ulysses Mercur, his brother, both individually and as partners, trading as J. W. Mercur & Co., made a voluntary assignment for the benefit of creditors to Ezekiel Hunn; Jr., who qualified and entered upon his duties in accordance with the state law. Within four months afterwards, on March 24, 1899, proceedings were instituted in this court to have the two Mercurs declared bankrupts, and on July 31st following an adjudication was made against them, and subsequently Chas. P'rancis Gummey was appointed their trustee. A rule was thereupon taken on the assignee to turn ovar the property in his hands, both firm and individual. This he resists, and the question is whether he can be compelled to do so. Taking the case as it stood when the rule was entered, it is clear that, so far as firm property is concerned, it cannot be maintained. The proceedings against the two bankrupts, as we shall see more fully later, while begun and carried on simultaneously, are distinct and several. There has been no adjudication against the firm, and the trustee was not appointed to represent it, but only the two members who happened to compose it in their separate and individual capacity. Under such circumstances the trustee has no authority to demand or interfere with the firm assets. This is settled by the case of Amsinck v. Bean, 22 Wall. 395, 22 L. Ed. 801, where it was held that, while the assignee (trustee) in bankruptcy of the joint stock and property of a partnership is required by the statute to' administer the separate estate of the individual members, as well as that of the firm, there' is no reciprocal regulation with regard to the estate of the partnership where an individual member of it has alone been adjudged a bankrupt. In conformity with this, it was also decided that, where one of two partners had transferred to the other all his interest in the firm assets, to be applied to the payment of the firm
As a preliminary matter, it may be observed that there is no such finality to the proceedings that we cannot, even at this late stage, revise and amend them, if otherwise authorized. The general right to amend, regardless of the time which has elapsed, is abundantly sustained by the authorities. Sandusky v. Bank, 23 Wall. 289, 23 L. Ed. 155; In re Ives (C. C. A.) 113 Fed. 911; In re Henschel (D. C.) 114 Fed. 969. But to do so it is plain there must be in the record as it stands the substance of that which is asked for. The right to amend can go no further than to bring forward and make effective that which is in some shape already there. The question, therefore, is whether the amendment which is now applied for is justified by the proceedings which have so far been taken; and to judge of this we must look into them somewhat more closely. As already seen, they were begun on March 24, 1899, at the instance of the Charter National Bank, of Media, as the holder of a joint note of James Watts Mercur and Ulysses Mercur, his brother, and another of James Watts Mercur individually, by two several petitions, one against the one bankrupt and the other against the other. It was in each case charged that the alleged bankrupt, while insolvent, had joined, the one with the other, in conveying away a certain farm owned by the two together, with intent to hinder, delay, and defraud creditors; and in the case of James Watts Mercur, additionally, that while insolvent he had suffered a creditor to obtain a preference by the entry of a confession of judgment against him. The
The petition of the Vulcanite Paving Company to have the firm of J. W. Mercur & Co. declared bankrupt nunc pro tunc is refused.
The rule on Ezekiel Hunn, Jr., assignee for the benefit of creditors of James Watts Mercur individually, and of J. W. Mercur and Ulysses Mercur as partners trading as J. W. Mercur & Co., to turn over the property in his hands, is discharged as to the property of the said firm, but made absolute as to the individual property of the said James Watts Mercur, and Ulysses Mercur individually, so far as at has not been already administered.
Specially assigned.