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Needles National Bank, 94 Fed. 925, 36 C. C. A. 553; Merchants' Bank of Valdosta v. Baird, 160 Fed. 642, 645, 90 C. C. A. 338, 341, 17 L. R. A. (N. S.) 526. The officer of the German Bank who took this note for $6,610.20 knew, and through him the bank itself knew, that Hansen gave it on behalf of his corporation to pay the notes of himself and of others which the bank itself owned, that this mercantile corpora. tion derived no benefit from the payment of these notes, and that to the amount thereof its note must be invalid under the law in the hands of its payee. In this state of the case the bank assumed the burden and the risk of proving in the teeth of its knowledge that the note was given by the Mercantile Company for some legal consideration sufficiently beneficial to it to support its promise to pay these debts of others. It has not only failed to bear this burden, but the proof is that there never was any such consideration.
The order of the court below must accordingly be reversed, and the case must be remanded, with directions to allow the claim of the German Bank for $1,322.32 and interest thereon at 8 per cent. per annum from November 20, 1907; and it is so ordered.
SALT LAKE VALLEY CANNING CO. et al. V. COLLINS.
Bankruptcy proceedings against a partnership and its members may properly be consolidated with those against a corporation which is entirely owned by one of the partners, in the interest of economy of administration.
[Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. $ 96.*] Petition for Revision of Proceedings of the District Court of the United States for the District of Montana, in Bankruptcy.
In the matter of Cooney Bros. & Walsh, a corporation, bankrupt. The Salt Lake Valley Canning Company petitions for revision. Petition dismissed.
Nicholas A. Rotering and Louis P. Donovan, for petitioners. Robert McBride, for respondent. Before GILBERT, ROSS, and MORROW, Circuit Judges. ROSS, Circuit Judge. The question presented by this petition is whether or not the District Court erred in confirming an order made by the referee in the bankruptcy proceedings against Cooney Bros., a partnership, and F. H. and B. É. Cooney as individuals, consolidating therewith the bankruptcy proceedings against Cooney Bros. & Walsh, a corporation, upon evidence which showed that the corporation styled Cooney Bros. & Walsh was a mere form under which F. H. Cooney also transacted business, and of the property of which corporation F.
was the real owner. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1307 to date, & Rep'r Indexes
We see no error in the action of the court in affirming the action of the referee, for, so far from resulting in injury to any right of any creditor of Cooney Bros. & Walsh, the creditors of that corporation can, as said by the court below, be better protected "through one ad. ministration than by having several, with the attendant burden of doubling expenses and costs." As also said by the District Court, the trustee chosen in the prior proceedings against Cooney Bros. and F. H. and B. E. Cooney may readily be changed in the event any of the creditors shall be able to show that he is not the proper person.
The petition for revision is dismissed, at the petitioner's cost.
FOUNTAIN V. SAWYER et al.
The proper amount to allow for a salvage service is a matter of opinion, based upon the evidence as to the facts and circumstances surrounding the services, and the rule on appeal is that the amount allowed by the lower court should not be reduced, unless some important error has been committed, such as a violation of just principles, or clear and palpable' mistake, or gross overallowance.
[Ed. Note.–For other cases, see Salvage, Cent. Dig. § 133; Dec. Dig. § 51.*
Awards in federal courts, see note to The Lamington, 30 C. C. A. 280.] Appeal from the District Court of the United States for the Southern District of Florida.
Suit in admiralty by Thomas Sawyer and others for salvage services. Decree for libelants, and James Fountain, claimant, appeals. Affirmed.
G. Bowne Patterson, for appellant.
PER CURIAM. The services rendered by the libelants in the court below were unquestionably salvage services, and the only question before this court is as to the amount of salvage compensation.
The proper amount to allow is a matter of opinion, based upon the evidence as to the facts and circumstances surrounding the services, and the rule on appeal is that the amount allowed by the lower court should not be reduced, unless some important error has been committed, such as the violation of just principles, or clear and palpable mistake, or gross overallowance. See The Sybil, 4 Wheat. 98, 4 L. Ed. 522; The Camanche, 8 Wall. 448, 19 L. Ed. 397; The Connemara, 108 U. S. 359, 2 Sup. Ct. 754, 27 L. Ed. 751. In this case we find no important error, no violation of just principles, nor clear mistake, nor gross overallowance.
The judgment of the District Court is therefore affirmed. *For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
MCKAY V. GULF REFINING CO.
(Circuit Court of Appeals, Fifth Circuit. January 18, 1910.)
No. 1,947. 1. MARITIME LIENS (& 17*)-LIEN FOR SUPPLIES-FLORIDA STATUTE.
Rer. St. Fla. 1892, § 1738 (Gen. St. Fla. 1906, § 2204), giving a lien for supplies furnished to vessels, was not repealed by Act June 4, 1903 (Laws 1903, c. 5143), providing for mechanics' liens.
[Ed. Note.-For other cases, see Maritime Liens, Cent. Dig. § 22; Dec. Dig. $ 17.*] 2. MARITIME LIENS (8 60*)—ENFORCEMENT OF STATUTORY LIENS-ADMIRALTY JURISDICTION.
Contracts for supplies to a vessel at her home port are maritime in their nature, and liens therefor created by state statutes are within the admiralty jurisdiction, and enforceable only by proceedings in rem in the federal courts.
[Ed. Note. For other cases, see Maritime Liens, Cent. Dig. 98; Dec. Dig. $ 60.*
Created by state laws, see note to The Electron, 21 C. C. A. 21.] Appeal from the District Court of the United States for the Southern District of Florida.
Suit in rem in admiralty by the Gulf Refining Company to enforce a statutory lien. Decree for libelant, and claimant, James McKay, appeals. Affirmed.
W. A. Carter and John P. Wall, for appellant.
PER CURIAM. The law of Florida giving a lien for supplies furnished to vessels within her borders (section 1738, Rev. St. Fla. 1892 ; Gen. St. Fla. 1906, § 2204) was not repealed by act of June 4, 1903 (Laws Fla. 1903, c. 5143), entitled "An act to provide liens for materialmen, mechanics," etc.
Contracts for supplies to a vessel at her home port are maritime in their nature, and liens therefor created by state statutes are within the admiralty jurisdiction, and enforceable by proceedings in rem only, in the federal courts. The Madrid (C. C.) 40 Fed. 677.
The decree of the District Court is affirmed.
In re KAUFMAN,
96*)-INVOLUNTARY PROCEEDINGS-AMENDMEN TO INCLUDE PARTNERSHIP.
Involuntary proceedings in bankruptcy against an individual cannot be changed, during their pendency and after testimony has been taken, by a mere order amending the title, so as to embrace also a proceeding against a partnership of which the original defendant is one member.
[Ed. Note.-For other cases, see Bankruptcy, Dec. Dig. & 96.*] *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
Petition to Review Order of the District Court of the United States for the Southern District of New York.
In the matter of Isaac Kaufman, bankrupt. On petition by Lena Kaufman to revise an order which amended the title of the proceeding so as to read “In the Matter of Isaac Kaufman, Individually, and Isaac Kaufman, a Copartnership Consisting of Isaac Kaufman and Lena Kaufman, Bankrupts." It also adjudged that “Lena Kaufman, the wife of Isaac Kaufman, is a copartner in the copartnership Isaac Kaufman." Reversed.
Wolf & Kohn and Sol. Kohn (Charles L. Grad, of counsel), for petitioner.
Cohen, Creevey & Richter (Julius H. Cohen and Ralph W. Gwinn, of counsel), for respondent.
Before LACOMBE, WARD, and NOYES, Circuit Judges.
PER CURIAM. Counsel for Lena Kaufman contends that the record does not sustain the finding that she was a partner with her husband; but it is not necessary to go into that branch of the case. For the purposes of this appeal it may be assumed that for some time prior to the filing of the petition in bankruptcy there was a firm in the district doing business under the name of Isaac Kaufman, the partners in which were Isaac Kaufman and Lena Kaufman. The existence of the firm, however, was not known, or even suspected, and in consequence the proceeding was instituted, not against any partnership, but against Isaac Kaufman individually.
The difficulty with the order is that, after proceedings against the individual had progressed for a considerable time, much testimony having been taken, it undertakes to establish the pendency pari passi of another proceeding against the firm, which was never begun by filing any petition against it, and to put that second proceeding in the same condition as the first. In our opinion this cannot be done by a mere order. Such a procedure would deprive the firm and the partner now sought to be brought in of the opportunity which the statute gives them to controvert the facts alleged in the petition, and to have, if they so desire, a trial by jury on the question of insolvency and any act of bankruptcy alleged to have been committed. Act July 1, 1898, c. 541, $$ 180, 19a, 30 Stat. 551 (U. S. Comp. St. 1901, p. 3429).
This case is to be distinguished from those cited on the brief, where the original proceeding was against a firm, and, upon the discovery of a partner not originally named or known, he was brought in as one of the members of the firm.
The order is reversed.
FUERST BROS. & CO. V. UNITED STATES.
(Circuit Court of Appeals, Second Circuit. December 7, 1909.)
No. 84 (4,168).
1. Customs DUTIES (8 38*)-CLASSIFICATION—"COCOANUT OIL”-REFINED OIL.
In Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 626, 30 Stat. 199 (U. S. Comp. St. 1901, p. 1085), the provision for "cocoanut oil" includes refined as well as unrefined oil.
(Ed. Note.-For other cases, see Customs Duties, Dec. Dig. 38.*] 2. Customs DUTIES ($ 30*)--CLASSIFICATION-REFINED COCOANUT OIL—"Cocoa
Refined cocoanut oil is not "cocoa butterine,” within the meaning of Tariff Act July 24, 1897, c. 11, § 1, Schedule G, par. 282, 30 Stat. 172 (U. 8. Comp. St. 1901, p. 1652).
[Ed. Note.-For other cases, see Customs Duties, Dec. Dig. $ 30.*
For other definitions, see Words and Phrases, vol. 8, p. 7605.) 3. Customs DUTIES (8 38*)-CLASSIFICATION--SPECIFIC DESIGNATION.
"Cocoanut oil," in Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 626, 30 Stat. 199 (U. S. Comp. St. 1901, p. 1685), is a more specific term than "cocoa butterine,” in section 1, Schedule G, par. 282, 30 Stat. 172 (U. S. Comp. St. 1901, p. 1652).
[Ed. Note. For other cases, see Customs Duties, Dec. Dig. § 38.*]
Appeal from the Circuit Court of the United States for the Southern District of New York.
Appeal from a decision (166 Fed. 1014) of the Circuit Court, Southern District of New York, in a customs case.
The importation in question is refined cocoanut oil. The importers in their protest claimed that it was entitled to free entry as "cocoanut oil,” under Tariff Act July 24, 1897, c. 11, § 2, Free List, par. 626, 30 Stat. 199 (U. S. Comp. St. 1901, p. 1685). The collector assessed it for duty under section 1, Schedule G, par. 282, of said act (30 Stat. 172 (U. S. Comp. St. 1901, p. 1652]), which reads as follows: "Cocoa butter or cocoa butterine, three and one-half cents per pound."
The Board of General Appraisers affirmed the action of the collector, and the Circuit Court affirmed the Board. The importers appeal. Reversed.
Comstock & Washburn (J. Stuart Tompkins, of counsel), for importers.
D. Frank Lloyd, Deputy Asst. Atty. Gen. (William A. Robertson, Sp. Atty., of counsel), for the United States.
Before LACOMBE, COXE, and NOYES, Circuit Judges.
NOYES, Circuit Judge (after stating the facts as above). The term "cocoanut oil” in the free list is broad enough to include refined
*For other cases see same topic & $ NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes