vessel, with the help of competent experts in such undertakings, the libelant and its insurance company both reached the conclusion that the cost of raising and repairing her would exceed the insurance, $30,000. The insurance company thereupon offered either to pay the libelant the full amount of the insurance $30,000-taking an assignment of the libelant's interest in the wreck, or $25,000 in full settlement of all claims under the policy. The libelant accepted the offer of $30,000 and assigned its interest to the insurance company. A little later John I. Snow, of Rockland, Maine, bought the wreck for $5,000, raised her, expended some $22,000 in raising and repairing her, and, in December, 1920, sold her for $60,000, out of which he paid a commission of $10,000. The government's complaint is really grounded on Snow's success in raising and restoring her to a seaworthy condition. But this is not a sound legal ground for challenging the honest conclusions, reasonably reached by the libelant and the insurance company, under the advice of men experienced in such undertakings and having every motive to save the vessel. The commissioner's finding, affirmed by the court below, that libelant "acted with reasonable diligence in its efforts to prevent the total loss," must be here affirmed. [3] Nor is there merit in the government's contention of error in the finding of $95,000. This record shows, and it is probably a matter of common knowledge, that at this time August, 1918, before the outcome of the war was determined, months before the Armistice —abnormal values attached to practically all kinds of seagoing vessels. In Standard Oil Co. v. Southern Pacific Co., 268 U. S. 146, 158, 45 S. Ct. 465, 468 (69 L. Ed. 890), the Supreme Court described price conditions on vessels as follows: "In August, 1918, the immediate demand for ships was greater than the supply, the shipyards were working to full capacity, wages and prices were high, the trend of construction costs was upward, and the element of time was of the utmost importance." Analyzing the evidence in the light of applicable conditions, we find no support for the government's contention that the commissioner and the court below were wrong in finding that on the day of the collision the Cornelia was worth $95,000. The commissioner deducted the $5,000 received from Snow, and added $1,084.68 for expense items not in dispute. If the vessel, restored, was worth $60,000 in December, 1920-months after the great drop of prices had begun, and more than two years after the Armistice-it is easy to believe her market value in August, 1918, was $95,000. The decree of the District Court is affirmed. McCAUGHN, Collector, v. WILLIAMS. Circuit Court of Appeals, Third Circulit. January 3, 1928. No. 3639. Internal revenue 2 (3)-Statute Imposing excise tax on membership in club held valid (Revenue Act 1921, § 801 [Comp. St. $ § 63095b]). A membership in a social club cannot be regarded for taxing purposes as property but as giving a right to share in the social features afforded by the club in the use of its property and facilities during continuance of the membership, whether a life or annual membership, and Revenue Act 1921, § 801, (Comp. St. § 6309% b), imposing an excise tax on such right or privilege, is valid. In Error to the District Court of the United States for the Eastern District of Pennsylvania; Oliver B. Dickinson, Judge. Action by Ira Jewell Williams against B. D. McCaughn, Collector of Internal Revenue. Judgment for plaintiff, and defendant brings error. Reversed. For opinion below, see 17 F. (2d) 295. George W. Coles, U. S. Atty., of Philadelphia, Pa., and Ralph S. Scott and Alexander W. Gregg, both of Washington, D. C., for plaintiff in error. Ira Jewell Williams, William Clarke Mason, and Francis Shunk Brown, all of Philadelphia, Pa., for defendant in error. Before BUFFINGTON, WOOLLEY and DAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. In the court below, Ira Jewell Williams brought suit and had judgment against the United States for income tax, alleged to have been wrongfully assessed against him and which he paid under protest. Thereupon the government sued out this writ of error, and the question involved is, Is a tax imposed annually upon a life membership in a social club a direct tax upon property and as such void as being unapportioned under article 1, §§ 2 and 9, of the Federal Constitution? About June 30, 1919, Mr. Williams became a life member of the University Club of Philadelphia on payment of the life membership fee of $750, and thereby and thereafter was excused from the payment of annual dues. While the club owns valuable real estate, it 23 F.(2d) 841 is chartered by the state of Pennsylvania as a corporation, not for profit, but for social purposes. The tax in question was assessed by virtue of that provision which in section 801 of the Act of 1918 (Comp. St. § 6309%b), section 801 of 1921 (Comp. St. § 6309%b), and section 501 of 1924 (26 USCA § 872; Comp. St. § 63092e), reads as follows: "In the case of life memberships a life member shall pay annually, at the time for the pay ment of dues by active resident annual members, a tax equivalent to the tax upon the amount paid by such a member, but shall pay no tax upon the amount paid for life membership"-and the decisive question is whether the present tax is one on property, as Mr. Williams contends, or an excise tax, as the government avers. Although the tax here in question is small, the principle involved is important, and the case has been presented on both sides with great earnestness, and the paper books display a wealth of scholarly research which reflects credit on the counsel concerned. We shall not attempt to discuss these questions, but limit ourselves to stating our conclusions upon the crucial question to which all discussion finally centers, namely, whether the tax assessed against Mr. Williams was laid on his property. That the club owns valuable real estate and that Mr. Williams, as a member of the club, has a present proprietary interest in its property and in the event of its dissolution might participate in the distribution thereof among its then members is the fact. But such proprietary interest does not of itself determine the question, for it still remains to consider the question, What is the relationship of club membership toward the property of the club? The annual member as distinguished from a life member, so long as he pays his dues and remains in good standing, is entitled to share with other members in the use of the club's property for the social purposes for which it was chartered. The exercise of such social privileges constitutes the purpose which called the club into being, and its ownership of property is an incident to enable the club to carry out the social purposes of its creation. When the annual member ceases to pay his dues or for any reason ends his membership, the chartered social purposes of the club as to him ends, and perforce all right, share, or participation in its incident of property. He cannot by his own act sell his membership; it is not an asset; it does not survive the severing of his connection with the club, and equally with a life membership all rights to the club end with death. Seeing then that membership of a club, while it involves a certain usufruct of property for social purposes and is to that extent an interest in its property of such a substantial sort that a club member cannot be unjustly expelled therefrom, yet, where substance is concerned, we are of opinion that membership of a club cannot be regarded for taxing purposes as property, but as a right to share in the social features afforded by the club in the use of its property and facilities. It is the exercise of this personal privilege of the member, annual by virtue of maintained continuity of annual dues, and anticipation and prepayment of all dues at once by a life member, which the federal statute, and rightly we hold, taxes. So regarding, the judgment below must be reversed. STANDARD OIL CO. OF LOUISIANA v. Circuit Court of Appeals, Fifth Circuit. No. 5098. I. Salvage ~51-Appellate court should not reduce salvage award, unless so excessive as to be unjustifiable on any reasonable view. It is difficult to arrive at a fair award in salvage cases, but appellate court should not alter decree for the reason that the award appears too large, unless the excess is so great that, on any reasonable view of the facts, the applicable to the case. award cannot be justified by the rules of law 2. Salvage 34-$4,000 for assistance by steamer to river barges and tug with disabled engines held not excessive. Considering value of property involved, and assistance rendered, $4,000 awarded steamer, which took and made fast to the bank of the Mississippi a fleet of eight loaded oil barges and a tug with disabled engine adrift in the current, held not so large as to be excessive. United States for the Eastern District of Suit for salvage by L. V. Cooley, master and owner of the steamer America, against the Standard Oil Company of Louisiana. From a decree for libelant (17 F.[2d] 950), on behalf of himself, the steamer and crew, respondent appeals. Affirmed. Arthur A. Moreno, of New Orleans, La. (Lemle, Moreno & Lemle, of New Orleans, La., on the brief), for appellant. John D. Grace, M. A. Grace, and Edwin H. Grace, all of New Orleans, La., for appellees. Before WALKER, BRYAN, and FOS- In that event there would have been a loss TER, Circuit Judges. BRYAN, Circuit Judge. This appeal is taken on the ground that the decree of the District Court, which awarded $4,000 as salvage, is excessive. While appellant's tug Standard, with eight barges loaded with fuel oil in tow, was proceeding down the Mississippi river, one of its two engines broke a camshaft. The other engine could not be used, and there were no anchors on board of sufficient weight to hold against the prevailing current in the river of 22 or 3 miles per hour. The result was that the fleet was adrift in the current without motive power to direct its course. Distress signals were given just above Rich Bend, and about 60 miles above New Orleans, and in response appellee's river boat America came alongside. The barges were lashed ahead of the Standard in tiers, and were being taken by the current toward the west bank. The America was made fast to the rear barge on the port side, and therefore had the fleet between her and the west bank. She backed up, straightened the fleet out, and placed it sidewise, so as to flank the west bank, where it was made fast, and so remained until repairs were made, after which it proceeded safely on its voyage. The America's service began about 6:30 p. m., and lasted but little more than an hour. Five of the barges were constructed of wood, and because of their age were regarded by appellant to be of only nominal value. They were heavily loaded, and contained in the aggregate fuel oil of a value of approximately $29,000. Other approximate values, as estimated by appellant, were as follows: The three steel barges, $140,000; their cargo, $41,000; and the tug Standard, $38,000or a total of $248,000. The America was insured for $40,000, though appellant claims that she was of much less value. The risk to the America was slight. It is suggested that, if the barges had struck the bank head on, or nearly so, the current was sufficient to swing the whole fleet around and crush the America between it and the bank; but that operation would have been a slow one, and would have afforded ample time to cast off lines. There was some risk that she might become disabled or damaged by striking a snag or floating piece of timber. There was apparent danger that, but for the America's assistance, the current of the river would force the fleet of barges against the bank, and that the impact would break up one or more of the wooden barges. of cargo of considerable value. There was also apparent danger that one or more of the steel barges might have been broken in two by striking the bank, or some other object, with such force as would have raised up one end and placed too much weight on the other. The greatest danger to the fleet was that of a collision with some moving vessel or stationary object on the river. [1] It is always difficult to arrive at a fair award in salvage cases; but an appellate court "should not alter the decree for the reason that the amount awarded appears to be too large, unless the excess is so great that, upon any reasonable view of the facts found, the award cannot be justified by the rules of law applicable to the case." The Connemara, 108 U. S. 352, 360, 2 S. Ct. 754, 759, 27 L. Ed. 751. [2] In this case, considering the value of the property involved and the assistance rendered, which we think was meritorious, the amount awarded by the decree is not, in our opinion, so large as that it fairly can be held to be excessive. The decree is affirmed. R. W. & M. F. ROSE CO. v. MARVIN, In re HUGHES. Circuit Court of Appeals, Third Circuit. January 16, 1928. No. 3663. Bankruptcy 188(3)—Order given by bankrupt to creditor held not equitable assignment and invalid as against trustee. An order given to a creditor by bankrupt, who was plaintiff in a pending action against a county, directing his attorney or the county to pay to the creditor a certain sum from the amount recovered, to be applied on his debt, held not an equitable assignment and not to entitle the creditor to recover the proceeds of the judgment from bankrupt's trustee. United States for the Middle District of Appeal from the District Court of the Pennsylvania; Albert W. Johnson, Judge. In the matter of Wells S. Hughes, bankrupt; Frank M. Marvin, trustee. From an order denying the claim of the R. W. & M. F. Rose Company to a fund in the hands of the trustee, the company appeals. Affirmed. David Cameron, of Wellsboro, Pa., for appellant. Frank H. Rockwell, Crichton & Orvlett, and Rockwell & Rockwell, all of Wellsboro, Pa., for appellee. 23 F.(2d) 843 Before BUFFINGTON, WOOLLEY, and Roses by giving the order or that they acDAVIS, Circuit Judges. BUFFINGTON, Circuit Judge. This case concerns a fund arising from damages to a landowner caused by the construction of a county road through his premises. The pertinent facts are these: Prior to March 10, 1925, Hughes, the landowner, presented his claim for damages and the matter was so prosecuted by him in an action at law against the county that subsequently he recovered a judgment for some $900. On May 4, 1926, the county paid the balance of said judgment over and above an allowance for attorney's fees to the trustee in bankruptcy of Hughes, who had on February 18, 1926, been adjudged a voluntary bankrupt. On January 17, 1927, R. W. and F. M. Rose, the present appellants, presented a petition to the court below sitting in bankruptcy praying that Hughes' trustee pay them the money paid to him, as above, by the county of Tioga. The trustee answered, denying their right, and the matter was referred to the referee, who took proofs and reported the petition be denied and discharged. From an order confirming the referee's report, this appeal was taken by the Roses. cepted it in extinguishment of the debt. It was but an attempt to give them as security a part up to $1,500 of Hughes' claim against the county, but under the law of Pennsylvania (Vetter v. Meadville, 236 Pa. 564, 85 A. 19; Appeal of Philadelphia, 86 Pa. 179), the county was under no obligation to recognize such a partial order or assignment. Moreover, under the authorities (Geist's Appeal, 104 Pa. 355), the Roses could not have enforced this order against either the county, Hughes, or his trustee, for, as was said by the Supreme Court in Christmas v. Russell, 14 Wall. 70, 20 L. Ed. 762, cited in the foregoing case: "An agreement to pay out of a particular fund, however clear in its terms, is not an equitable assignment. The assign or must not retain any control over the fund any authority to collect, or any power of revocation. If he do, it is fatal to the claim of the assignee. The transfer must be of such a character that the fund holder can safely pay, and is compellable to do so, though forbidden by the assignor." For the foregoing reasons we feel the decree dismissing the Rose petition should be, and is, affirmed. RANDALL et al. v. PROCEEDS OF THE Petition of AMERICAN SURETY CO. 1. Subrogation 15, 1927. 7(1)-Surety on bond for release of vessel from libel is not subrogated to lien on vessel, as against valid prior mortgage or maritime lien. That the claim against the county was Hughes' property, that it passed to his trustee in bankruptcy and was paid by the county to such trustee are facts which entitle the latter to hold the same for the benefit of Hughes' creditors unless the Messrs. Rose can show a better right. This they seek to do by showing that on March 10, 1925, Hughes District Court, W. D. New York. September was indebted to them for about a thousand dollars, and on that date executed and delivered to them the paper printed in the margin.1 This paper was never presented to the commissioners. The Roses did not seek to become parties in his suit against the county nor in fact was any claim made under it until January 17, 1927, when their recited petition was presented to the court below. Do these facts show a right in the Roses superior to that of the trustee? The referee and court held not, and we think rightly. Manifestly the paper was but an order to apply. There is no proof that Hughes paid his debt to the 1 I, Wells S. Hughes, do certify that I have a claim for damages against Tioga county; that the claim is now pending in the courts of Tioga county and from the first proceeds of said claim the commissioners of Tioga county, or my attorney, C. H. Ashton, is hereby authorized and required to pay R. W. & M. F. Rose Company $1,500 or as their interest may appear, and this is an order on them so to do and will be their authority for so doing. When a libeled vessel is released from seizure on bond, the bond stands in lieu of the vessel as to the claim in the libel, and no lien is created against the vessel in favor of the surety, though it pays the decree and takes assignment of the claim, as against a prior mortgage or maritime lien. 2. Courts 343-Statute authorizes substitution of representative appointed in any state for deceased party (28 USCA § 778). 28 USCA § 778 (Comp. St. § 1592), authorizes substitution for a deceased party of his executor or administrator, appointed in any state or territory. 3. Maritime liens 69-Ship mortgage, though not preferred lien, held to entitle holder to surplus from sale under libel after payment of maritime liens. A mortgage for the purchase price of a vessel, though not so recorded as to become a preferred lien, is valid, and entitles the holder to any surplus arising from sale of the vessel under libel after payment of maritime liens. In Admiralty. Petitions of Henry Randall and others, administrators, and of the American Surety Company, against the proceeds of the steamer Scranton in the registry of the court. On exceptions to petitions. Exceptions to petition of administrators overruled, and exceptions to petition of Surety Company sustained. an assignment of the Tashenberg Bros. indebtedness and their rights under the decree. Prior thereto, on April 1, 1927, Kemp Bros. Coal Company filed a libel against the Scranton to recover the amount due for coal furnished; and later an interlocutory decree of sale in that case was entered. The steamer was sold, under the decree, to William H. Sharp, Jr., and Henry Randall, as administrators of William H. Sharp, deceased, the former owner and mortgagee, for the sum of Stanley & Gidley, of Buffalo, N. Y., for $22,000, which is the fund now in the registry American Surety Co. of New York. of the court. Other libels for claims had also Brown, Ely & Richards, of Buffalo, N. been filed against the steamship, and were Y., for administrators. HAZEL, District Judge. The administrators of William H. Sharp, deceased, owners of a nonmaritime purchase-money mortgage on the steamer Scranton, which was libeled by a creditor and sold by order of this court, have filed an amended petition, claiming the right to participate in the distribution of funds realized on the sale, now in the registry of the court. Exceptions to the petition were filed by the American Surety Company of New York, on the grounds that the mortgage lien is invalid, and that insufficient facts are stated to warrant relief. The American Surety Company also filed its petition against the funds in the registry of the court, claiming a priority of payment over the mortgage debt, and the administrators of the estate of the mortgagee have, in turn, filed exceptions and answer thereto. The exceptions filed on both sides were argued at the same time, and consideration will now be given them. The record shows that the original owner of the steamer Scranton, William H. Sharp, sold her to one Neff for $35,000, both being citizens of the United States, and that $5,000 was paid in cash; the balance of $30,000 being secured by the purchase-money mortgage in controversy. The steamer, on delivery to the purchaser, was operated by him, and in 1926 expenses were incurred for repairs to her boiler and for coal supplied during September and October. Tashenberg Bros., who repaired the boiler, libeled the steamer to recover $4,847.48, the value of the work, and Neff, as owner, on March 6, 1926, to release her from arrest, filed a bond or stipulation in the sum of $6,000, wherein the American Surety Company of New York was surety. Final decree, fixing the amount owing to Tashenberg Bros. at $5,107.59, with interest, was entered on May 14, 1927, and the American Surety Company, two months later, paid the amount, receiving consolidated with the libel filed by Kemp Bros. Coal Company. The American Surety Company also received an assignment from Neff, the owner of the Scranton, of any interest he might have in the proceeds of sale at the time of her seizure and sale. The first questions are whether the American Surety Company, by reason of its payment of the Tashenberg claim, and decree and assignments mentioned, obtained the right to intervene in the proceeding instituted by Kemp Bros. Coal Company, wherein the steamer was sold for the purpose of enforcing its lien, if any, against the proceeds of sale, or whether, because it bonded the vessel, thereby relieving her from arrest, and its subsequent payment of the Tashenberg claim, an equitable lien against the fund eventuated. To both contentions the answer is in the negative. [1] It is well settled in admiralty jurisprudence that, when a libeled vessel is released from seizure by the marshal on a valid bond or stipulation, the bond, undertaking, or stipulation stands in lieu of the vessel as to the claim in the libel, and no lien is created against the vessel in favor of the surety by subrogation or assignment against a valid prior mortgage or maritime liens. The Evangel (D. C.) 94 F. 680; The Vigilant (D. C.) 175 F. 226. The bond or undertaking of Neff, as principal and owner of the Scranton, was, it may be assumed, in the accepted form, and the surety, by its terms, became answerable for any decree that might be rendered in the particular action. In pursuance thereof, the vessel was released from the seizure to her owner for operation. The effect of the surety bond or stipulation was to discharge the maritime lien of Tashenberg Bros., for whose benefit it was given, without subrogation, as above stated, to the lien against the vessel or its proceeds, in the event of a sale under other liens. 1 Benedict on Admiralty (5th Ed.) § |