J. B. MCPHERSON, District Judge. It is clear to my mind that the tobacco in question, which the importers themselves brought in as "scrap leaf tobacco," is properly described as "scrap" or "sweepings," and is not "leaf" tobacco at all, in the meaning to be given to that word as it is used in the first sentence of paragraph 214 in the tariff act of 1897 (Act July 24, 1897, 30 Stat. 169, c. II [U. S. Comp. St. 1901, p. 1648]). This sentence is as follows: "The term wrapper tobacco, as used in this act, means that quality of leaf tobacco which is suitable for cigar wrappers, and the term filler tobacco means all other leaf tobacco." The tobacco in question is suitable neither for wrappers nor for fillers, as these terms are commonly and commercially understood, although it appears from the evidence that it may be used as a filler in the manufacture of one very small size of tobacco cigarettes; and I think, therefore, that the collector and the board of general appraisers were right in imposing a duty of 55 cents a pound, under paragraph 215, which applies this rate to "all other tobacco, manufactured or unmanufactured, not specially provided for in this act." The decision of the board of general appraisers is accordingly affirmed. THE ANDREW WELCH. (District Court, N. D. California. March 5, 1903.) No. 12,579. 1. COLLISION-VESSEL BREAKING FROM MOORINGS-DEFENSE OF INEVITABLE ACCIDENT. Evidence considered, and held insufficient to sustain the burden of proof resting upon a bark, which broke from her moorings during a storm, and came into collision with another vessel, to establish that the injury resulted from inevitable accident or vis major, but, on the contrary, to show that it was due to the insufficiency of her fastenings. In Admiralty. Suit for collision. Sullivan & Sullivan, for libelants. Page, McCutchen, Harding & Knight, for defendants. DE HAVEN, District Judge. This action was brought by the owners of the bark Northwest against the bark Andrew Welch to recover damages resulting from a collision between the two vessels. The vessels lay at the same wharf in the Bay of San Francisco on March 1, 1902, during a very severe gale, in which the Andrew Welch broke away from her moorings and collided with the Northwest. The libel alleges that the Andrew Welch "was improperly, negligently, unskillfully, and unsecurely fastened and moored," and that "the appliances and hawsers with which said bark was fastened and moored * were defective and insufficient for such purposes." It is claimed by the Andrew Welch that the breaking of her mooring ropes was due to vis major, and that the collision which followed was due to the foul berth given to her by the Northwest. This latter contention is not sustained by the evidence, and, the collision * having been caused by the Andrew Welch in drifting from her mooring, "she must be liable for the damages consequent thereon, unless she can show affirmatively that the drifting was the result of inevitable accident or a vis major, which human skill and precaution and a proper display of nautical skill could not have prevented." The Louisiana, 3 Wall. 164, 18 L. Ed. 85. After a very careful consideration of the evidence, and of the briefs filed in behalf of the respective parties, I have reached the conclusion that the collision cannot be attributed to inevitable accident, but was due to the defective and insufficient fasts by which the Andrew Welch was moored. The evidence shows that the wire rope used by the Andrew Welch in making fast to the wharf, while it was of the required diameter for a vessel of her tonnage, was weakened from prior use and insufficient; that its breaking strain was only about 131⁄2 tons, whereas a sound rope of its dimensions would have a breaking strain of 22 tons. Without entering into any further discussion of the evidence, it is sufficient to say that, in my opinion, it sustains the allegations of the libel as to the cause of the collision. A decree will be entered in favor of the libelants, and the cause referred to United States Commissioner Morse for the purpose of ascertaining and reporting the damages sustained by them. In re JOHN J. LAFFERTY & BRO. (District Court, E. D. Pennsylvania. March 27, 1903.) 1. BANKRUPTCY-ALLOWANCE OF CLAIMS-DEFENSE OF LIMITATION. In Bankruptcy. On certificate from referee. Julius C. Levi and William C. Wilson, for claimants. J. B. MCPHERSON, District Judge. Certain claims against the bankrupt estate were disallowed by the referee upon the ground that they were barred by the statute of limitations, and this certificate presents the question whether such disallowance was correct; the statute having been pleaded, not by the bankrupt, but by a creditor. The argument on behalf of the claimant is that the statute of limitations is a personal privilege belonging exclusively to the debtor, and that under no circumstances may it be set up by another creditor. In general, the correctness of this argument may be conceded, but it needs some qualification. There is a well-recognized exception, which is thus stated in 19 A. & E. Enc. of Law, 187: "Whether the estate being administered is that of a defunct corporation, or of a deceased. or insolvent individual, it seems that any creditor may object to the allowance of any particular claim on the ground that it is barred by the statute;" or to use the language of 13 Enc. of Plead. & Prac. p. 195: "Where a court of equity has taken possession of the estate of the debtor, for the purposes of distribution, and proceeded to ascertain the debts and incumbrances, to enable it properly to administer and distribute the assets, any creditor interested in the fund is permitted to interpose the defense of the statute of limitations." These statements in the text are abundantly supported by the authorities cited in the notes. See, also, In re Kingsley, Fed. Cas. No. 7,819. The action of the referee in rejecting the claims is approved. In re RIDDLE'S SONS. (District Court, E. D. Pennsylvania. March 25, 1903.) No. 861. 1. BANKRUPTCY-PREFERENCE-PAYMENT TO DOWRESS. The payment by a partnership within four months prior to its bankruptcy of a sum of money to the mother of the partners, on account of accrued interest on her statutory dower in real estate owned by the partners through descent from their father, but upon which the mother had a lien for her dower and interest, cannot be assailed as a preference under the bankruptcy law. In Bankruptcy. On certificate from referee. Hampton L. Carson and H. H. Bowman, for Lydia C. Riddle. John Weaver, Frederick S. Drake, and W. Roger Fronefield, for objecting creditors. J. B. MCPHERSON, District Judge. Upon the facts found by the referee-and the evidence certainly supports the finding-his conclusion properly follows. Mrs. Riddle had a lien for her statutory dower, principal and interest, upon certain real estate that descended to the bankrupts years ago from her husband and their father. The interest being largely in arrear, the bankrupts paid her $4,000 on this account within four months preceding the adjudication. The lien being unaffected by the bankrupt act, the payment was unassailable on the ground that it was a preference; and, if the money had been taken out of their individual funds, I think no further question would be likely to arise. None does arise now. But as the fund that is in course of distribution at present is the proceeds of personal property of the partnership, and as it seems to be true that the $4,000 was partnership money, it may perhaps be proper hereafter, when the real estate is sold upon which the lien rests, to inquire whether the land continued to be the individual property of the bankrupts, or had been converted into property of the partnership, and, in the former contingency, whether the partnership creditors. are then entitled to be subrogated to a due proportion of the proceeds of sale. On this subject I intimate no opinion. The report of the learned referee is approved. In re HAYNES & SONS. District Court, M. D. Pennsylvania. May 9, 1908.) No. 25. 1. BANKRUPTCY-DISCHARGE-PETITION-OBJECTIONS-PRACTICE. Where bankrupts have been allowed to file a petition for a discharge, notwithstanding more than a year has passed since the adjudication, the only question open thereafter is whether they are entitled to a discharge, and creditors seeking to oppose the discharge are confined to the statutory objections. Though the court entertains a petition for a bankrupt's discharge more than a year after the adjudication, on an insufficient showing, the remedy is a motion to vacate, and it is too late to contest the matter on the hearing of the petition. In Bankruptcy. A. W. Potter, for bankrupts. ARCHBALD, District Judge. The bankrupts having been allowed to file their petition, notwithstanding more than a year had passed since the adjudication, the only question open was whether they were entitled to a discharge, and creditors who sought to oppose it were confined to the statutory objections. It may be that the court entertained the petition after the year upon an insufficient showing, but the remedy, if so, was to move to vacate. It was too late to contest the matter on the hearing of the petition after the expense incident to it had been incurred. Let a decree be made allowing a discharge. RUSH v. LAKE. (Circuit Court of Appeals, Ninth Circuit. May 4, 1903.) No. 898. 1. BANKRUPTCY-ALLOWANCE OF CLAIM-REVIEW ON APPEAL. On review of an order of a referee disallowing a claim, the District Court filed an opinion disapproving of finding of fact made by the referee on which the disallowance was based, but entered no order in the matter. Afterwards the referee, following such opinion, entered an order allowing the claim, which was approved and confirmed by the court. Held that on appeal by the trustee from such judgment of the court allowing the claim, which was the first judgment or order from which an appeal could be taken, the question of fact involved was open to review by the Circuit Court of Appeals. 2. SAME-PROOF OF PARTNERSHIP EVIDENCE CONSIdered. Evidence examined, and held to sustain the finding of a referee that one claiming to be a creditor of the estate of a bankrupt was a silent partner of his business. Appeal from the District Court of the United States for the Eastern Division of the District of Washington. For opinion below see III Fed. 893. This is an appeal from the judgment of the District Court allowing the claim of the appellee against the firm of E. C. Clark, bankrupt. Clark had entered into business at Spokane, Wash., about August 1, 1899, with G. J. Reiter, under the firm name of Clark & Reiter. On June 1, 1900, Reiter sold his interest in the firm to Clark for the sum of $400 cash, Clark assuming and agreeing to pay off the existing debts against the firm. At that time the firm was owing, according to the findings of the referee, $18,358.96. Clark continued the business under the name of E. C. Clark. Some of the debts were reduced in amount, some were paid, some were increased, and new debts were contracted. At the time of the dissolution, according to the books of Lake, the appellee, Clark & Reiter owed him $9,313.96. Lake loaned Clark thereafter $1,900, and took his note therefor. On January 28, 1901, Clark filed his petition in bankruptcy, and on the same day was adjudged a bankrupt. His schedule showed his assets to be $20,197.56, and his liabilities $27,005.78. Lake presented his claim against the estate, to which objection was made on the ground that he was a partner in the firm of Clark & Reiter, and a partner with E. C. Clark after the dissolution. On August 21, 1901, the referee disallowed the claim, on the ground that upon the testimony taken before him he found that Lake was a partner in the firm of Clark & Reiter. Thereafter Lake filed his petition for a review of the order of the referee, and that officer certified to the court the question of fact whether Lake was such partner, together with the testimony which had been taken before him. The District Court filed an opinion, in which he reviewed the testimony and reached the conclusion that it was not sufficient to show that Lake was such partner. The court made no order, however, allowing the claim, and no judg ment was entered thereon. The referee thereafter, in pursuance of the opinion of the District Court, on March 12, 1902, allowed Lake's claim. The trustee thereupon filed his petition for review of that order, and on June 10, 1902, the District Court rendered judgment in the following terms: "Upon hearing said matter, it is ordered and adjudged that the order of the referee allowing said claim is approved and confirmed." Within 10 days from the date of that judgment the present appeal was taken. ¶ 1. Appeal and review in bankruptcy cases, see note to In re Eggert, 43 C. C. A. 9. 122 F.-36 |