In re Nathaniel O. Cram. surrenders up the security, or it is sold with his consent, and then he may prove for the residue of his debt which the security, when sold, does not discharge. In the latter case, he may prove his debt in bankruptcy without surrendering the security of the third person, which he holds, and may, notwithstanding such proof, proceed to enforce his security against such third person, provided, however, he does not take, under the bankruptcy and the security, more than the full amount of his debt." In that case, an accommodation acceptor of a bill of exchange went into bankruptcy, the holder of the bill having attached certain property of the drawer and having also proved his demand against the estate of the acceptor. Judge Story says, "From the principles which have been stated, admitting the attachment to be a security, and the bankrupt to be a mere accommodation acceptor, it is clear that the creditor has a right to proceed against the bankrupt for his debt in bankruptcy, and also against the other parties to the bill under his attachment, until he has received the full amount of his debt, for it is not a security given by the bankrupt, of his own property, but it is a security obtained by the creditor against other parties to the bill, by a proceeding in invitum. This opinion of the circuit judge for this district has never been questioned, so far as I am informed, by any circuit court, or in any opinion of the supreme court of the United States, and being in conformity with the whole course of decisions under the English bankrupt acts, should govern in the present case, and I therefore decide that the Casco National Bank was not barred from proving the full amount of the notes in question against the bankrupt's estate, on account of the mortgage of real estate given to the bank by the makers of said notes, as security for their payment, said mortgage not being foreclosed, and being merely a security for the debt. The mortgages of the personal property of the Shovel Company, held by claimants to secure the payment of these notes, present a further question, entirely independ In re Nathaniel O. Cram. ent of that growing out of the mortgage of the real estate to secure the same notes. Those chattel mortgages have been foreclosed, and the title to the property covered by them has become absolute in the claimants, and they have since disposed of some of this property. By such a foreclosure, the mortgagees, under the laws of Maine, have received payment of a portion of their debt, equivalent to the value of the property mortgaged, on the day the title to this property became absolute in the mortgagees by their foreclosure. This value has not yet been in any way determined, but whatever it amounts to should be applied in reduction of the claim, and proof allowed only for the balance of the claim remaining unpaid, it is not enough that the claimants are willing to indorse on the amounts received by them from sale of a portion of the property; the whole value of the property should be indorsed; it became the property of the claimants the moment the title became absolute; it was at their risk from that time; if it had been lost or destroyed, or in any way subsequently diminished in value, it would have been at the charge of its owners, the claimants, and so if it had subsequently increased in value, it would have been their gain and advantage. As the amount to be allowed in reduction of the notes for the personal property mortgaged to the claimants by the makers of the notes, as security therefor, and of which the claimants became the absolute owners by foreclosure of said chattel mortgages, was not ascertained and determined, and was not allowed by the claimants in reduction of their claim on these notes. I think for the second cause assigned by the register, in his certificate, he was correct in his decision not to allow these notes to be proved in the present stage of the cause. When a claim against a bankrupt has been paid in part by the bankrupt, or any other party, the balance only is provable against the es tate. The conclusion of the register, that the claimant can only be admitted as a creditor for the balance of its debt, after deducting the value of the security given to it by the Shovel In re Frederick C. Crowley & William L. Hoblitzell. Company, so far as it applies to the mortgage of the real estate which is not foreclosed, is not correct; such security cannot affect the proof of the claim until foreclosure, and an absolute title in the mortgagees of the mortgaged estate. 137 U. S. DISTRICT COURT, N. D. NEW YORK. The district court has power to allow amendments in petitions and proceedings in bankruptcy; but amendments that would introduce into the petition entirely new acts of bankruptcy will be disallowed. In re FREDERICK C. CROWLEY & WILLIAM L. HOB LITZELL. HALL, J. This case was commenced by the filing of the creditor's petition on the 3d day of June, 1867. At that time the general orders and forms promulgated by the justices of the supreme court could not be obtained; and the petition, as is shown by affidavit, was necessarily drawn without any reference to the forms or general orders applicable to such cases. The order to show cause was returnable on the 24th day of July, 1867, but the hearing was, by stipulation, adjourned from time to time, until the 23d day of October thereafter, when, after a partial hearing, an order was made continuing the case until the 13th of November, and giving permission to the petitioners to apply on that day for leave to file an amended petition, upon ten days' notice of such application being served, with copy of the proposed amendments. Further adjournments were made by stipulation, and it was not until the 24th instant that the motion for leave to file the amended petition was made and argued. I do not doubt that this court has power to allow amendments in bankruptcy petitions and proceedings, and that in allowing such amendments it should be governed by substantially the same principles as those which govern the allow In re Frederick C. Crowley & William L. Hoblitzell. ance of amendments in similar cases in other courts; and such, I understand, has been the practice of the English and American courts in bankruptcy cases. Judiciary Act of 1789, sec. 32; 1 Stat. at Large, 91; Ex parte Thwaites, 13 Vesey, 324; In re Blackburn, 1 De Gex, 332; James Bankruptcy, 279; Ex parte Cheesewright, 1 Rose, 228; Frisby's case, 4 Law Rep. 483. But the bankrupt acts having been considered as penal in their character, so far as proceedings against the bankrupt are concerned, the strict rules which apply in actions for penalties and forfeitures have been rigorously adhered to; and it is obvious that in respect to the amendment of sworn petitions there should be no relaxation of the strict rules which prevail in courts of equity in cases where leave to amend a sworn bill or sworn answer is plied for. ap All courts require special reasons for the allowance of amendments in sworn petitions, or in other pleadings which are required to be verified by the oath of the party; and where the object is to introduce new facts, or change essentially the grounds of the prosecution or defence, they are properly disinclined to allow such amendments except for very special reasons, and in cases where they are clearly required in furtherance of justice, and are applied for without unreasonable delay. Smith v. Babcock, 3 Sumner, 583; Thorn v. Germand, 4 Johnson Ch. 363; W. R. Bank v. Stryker, 1 Clarke Rep. 380; Steele v. Sowerby, 6 Durnford & East, 171; Cross v. Kaye, Ib. 443; Swift v. Eckford, 6 Paige, 22; Lloyd v. Brewster, 4 Paige, 537; Maddock v. Hammett, 7 Durnford & East, 55; The Harmony, 1 Gallison, 123; Story Eq. Pl. sec. 896. Such amendments in common law pleadings not verified, are frequently, if not generally, refused. Goddard v. Perkins, 9 N. Hamp. Rep. 488. And as a general rule, it should be satisfactorily shown that the allegations to be added are probably if not certainly true; that they are material to the merits of the controversy; that the party has not been guilty of gross negligence; and that the mistakes to be corrected or the new In re Frederick C. Crowley & William L. Hoblitzell. facts to be alleged, have been ascertained since the original petition or pleading was sworn to, and that application to amend has been made without unnecessary delay. Carter v. Wood, 1 Baldwin Rep. 289; Calloway v. Dobson, 1 Brockenbrough, 119; Mills v. Campbell, 2 Younge & Coll. 398; Lovett v. Cowman, 6 Hill, 223, 227; Story Equity Pleadings, sec. 896. Less stringent rules would encourage carelessness and indifference in drawing and verifying such papers, and would open the door to the introduction of testimony manufactured for the occasion. Courts are, therefore, disinclined to allow, except under very special circumstances, amendments which change the ground of prosecution or defence, and especially when the statute of limitations has run. Bank v. Stryker, 1 Clarke, 380, and other cases above cited; The John Jay, 3 Blatchford, 67; Shield v. Barrow, 17 Howard U. S. C. Rep. 130; Smead v. McCord, 12 Ib. 467; Story Equity Pleadings, sec. 896; Williams v. Cooper, 1 Hill, 637; Weston v. Worden, 19 Wendell, 648. But amendments in respect to a cause of action or defence already imperfectly set forth, are allowed with much greater liberality. Salter v. Bryant, 12 Wendell, 228; Miller v. Watson, 6 Ib. 506; and they will even be allowed to prevent a successful plea of the statute of limitations. Tobias v. Harland, 1 Wendell, 93; The Schooner Adeline, 9 Cranch, 244. Courts are also disinclined to allow amendments for the purpose of aiding in a hard or unconscionable action or defence, and in suits for penalties and forfeitures; and the defence of usury and the statute of limitations have generally been looked upon with disfavor on applications for amendment. In penal actions, or forfeiture cases, and in actions for sianderous words, amendments introducing an entirely new cause of action have been refused, as in some cases above cited. And the English courts regard the bankrupt act as highly penal in its consequences (Ex parte Cheesewright, 3 Rose |