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11 F.(20) 429 required "to signify in writing within sixty OLD DOMINION MARINE RY. CORPORA.

TION et al. v. NORTHERN TRANSP. days after the passage of this act its ac

CO. ceptance of the terms and provisions hereof." If a national bank omitted to signify such

WEST END TRUST CO. V. SAME. acceptance within 60 days, the federal re

(District Court, D. Delaware. November 13, serve board in its discretion could give the

1925.) bank 30 days' notice, at the end of which the

Nos. 453, 462. bank ceased to act as a reserve agent. No other consequence of failure to signify ac

1. Maritime liens m48. ceptance is provided, except that the act Court of equity has no power to sell vesfurther sets forth that, if a national bank sels free of maritime liens without lienbolder's

consent, express or implied. within a year fails to become a member bank or to comply with any of the provisions of 2. Maritime liens Ew48. the act, its rights should be forfeited, but

Maritime lien holder, claiming lien against

vessel sold without his consent by receiver, has only by decree of the court. In the absence

no rights in proceeds. of action by the comptroller, the bank continued to be a national bank, although it did

In Equity. Consolidated suits by the not become a federal reserve bank.

Old Dominion Marine Railway Corporation In Shaw v. United States, supra, the and others and by the West End Trust Comcourt, in passing upon the very point as in pany against the Northern Transportation the case at bar, decided that an indictment Company. The motion of the United States brought under section 5209, as amended by for leave to file petition that receiver be the act of September 26, 1918, was defective, directed to pay petitioner out of the moneys because it failed to allege that a national arising from sale of defendant's vessels in bank was a federal reserve bank or member his hands the amount of certain alleged maribank. The court said: “They (meaning time liens thereon was granted, and argument national banks] were not made members, no

heard on the merits as if on motion to dislens volens, and presumptions may not be miss petition. Petition dismissed. indulged to cure material defects in criminal

David J. Reinhardt, U. S. Atty., of pleading."

Wilmington, Del., and Willis E. Monty, If the indictment alleged that the First of Burlington, Vt., for the United States. National Bank of Rockville Center were a William G. Mahaffy, of Wilmington, federal reserve bank or member bank, then Del., and Francis S. Laws, of Philadelphia, the offense charged to be committed would Pa., for receiver. be in violation of section 5209. However, Charles McC. Howard, of Baltimore, the allegation that it was a national bank is Md., for bondholders' committee. insufficient, unless the indictment alleges that the bank is a federal reserve bank or member MORRIS, District Judge. Motion for bank.

leave to file petition of the United States of [2,3] By the weight of authority, the rule America, praying in effect that the receiver is that from the indictment itself it must be directed to pay to the petitioner out of judicially appear that an offense has been the moneys arising from the sale of vessels of committed. The court cannot take judicial the Northern Transportation Company, and notice that the First National Bank of now remaining in his hands, the amount of Rockville Center is a federal reserve bank certain alleged maritime liens of the petior member bank. Cohn v. U. S., 258 F. 355, tioner against certain of said vessels, not 169 C. C. A. 371 (C. C. A. Second Circuit); having been opposed and no reason appear. U. S. v. Hess, 8 S. Ct. 571, 124 U. S. 483, ing why the motion should be denied, it will 31 L. Ed. 516; U. S. v. Cruikshank, 92 U. S. be granted and the petition filed. For pur542, 23 L. Ed. 588.

poses of expedition and convenience the [4] The alleged offenses charged in the in- merits of the petition were debated by coundictment commenced on July 7, 1920, and sel, as if upon a motion to dismiss, at the terminated April 8, 1922. If, as contended time fixed for hearing upon the motion for by the government, the defendant was a fugi- leave to file. Briefs upon the merits have tive from justice, the statute of limitations likewise been submitted and considered. does not apply (Ferebee v. U. S. [C. C. A.] [1,2] I do not understand from the cases 295 F. 850), and the district attorney may that a court of equity may sell vessels free resubmit the case to the grand jury.

and discharged from maritime liens without Demurrer sustained. Defendant dis- the consent, express or implied, of the liencharged. Settle order on notice.

holder. Such consent was not given by the petitioner prior to the sale of the vessels, and confined in the United States Marine Hos. the absence of such consent is confirmed by pital at New Orleans, where he remained the present attitude of the petitioner that it for 22 days. is still in a position to proceed under its The answer admits the contract, and that liens against the vessels sold. It seems to during its life, and during the course of the me to be wholly impossible for a maritime voyage for which the libelant had signed, he lien holder to have and retain his lien against became ill and remained in the United States the vessel after sale, and yet have rights Marine Hospital for a period of 22 days. against the proceeds of sale. Where prop- The answer also admits that for the 22 days erty is sold subject to a lien, the proceeds the libelant was in the Marine Hospital he of sale begin to arise only at the point was paid no wages. The answer pleads as where the rights of the lienholder leave off. justification for holding the wages that the Such proceeds represent only the value of the shipping commissioner ruled that the libelproperty over and above the lien, and con- ant was not entitled to these wages, and sequently belong exclusively to others--to also pleads that libelant signed a full release those whose rights in, to, or against the res to the ship for his wages. were divested and sold.

[1] In The Osceola, 23 S. Ct. 483, 189 U. S. For these reasons the petition must be 158, 169, 47 L. Ed. 760, Mr. Justice Brown, dismissed.

in speaking for the Supreme Court, has

shown that the law giving wages to a seaTHE JUNEAU.

man falling sick while in the service of the

ship is founded on general maritime law. (District Court, E. D. Louisiana.

Such wages must be given “as long as the February 27, 1926.)

voyage continues." No. 16150.

In the case before me the libelant was, I 1. Seamen em 20-Seaman held entitled to think, entitled to his wages for the time he wages while ill in hospital, where voyage had

was in the hospital, and it is admitted that not ended when he left hospital.

the voyage had not ended when Robinson Under general maritime law, seaman be- left the United States Marine Hospital. coming sick while in service of ship is entitled

[2,3] The case shows that the libelant signto wages as long as voyage continues, and seaman was therefore entitled to wages while ill

ed a release for his wages. This may be in hospital, where voyage had not ended when taken as a “prima facie" defense; there behe left hospital.

ing no testimony offered by the libelant, I 2. Seamen om 25.

was at first inclined to hold that libelant had Release signed by seaman is prima facie not made out his case. The testimony of defense to libel for wages.

the master of the ship has since been brought 3. Seamen om 25–Seaman's release of wages

to my attention. He testifies as follows: held of no force, where ship's answer ad- “Q. At the time that Robinson was finalmitted, and master testified, that he was paid ly paid off and received his discharge from no wages while sick in hospital.

the vessel, what deduction, if any, did you On libel for seaman's wages while in hos

make-how
many days?

A. Twenty-two pital, seaman's release held of no force, where ship's answer admitted, and master testified, days, for the time he was in the hospital. that he was paid no wagės during such period. “Q. So that, on the basis of continual

employment, there would be a balance due In Admiralty. Libel by Churchill Rob- him of $69.67; is that correct? A. A balinson against the steamship Juneau. De

ance due him of $69 and so many cents; there cree for libelant.

would be the 22 days that the commissioner W. J. & H. W. Waguespack, of New had ruled he was not entitled to be paid, Orleans, La., for libelant.

while in the hospital. Terriberry, Rice & Young, of New Or- "Q. I repeat that, on the basis of continleans, La., opposed.

ual employment from September 17 to De

cember 13, there would be a balance due him HALE, District Judge. This is a libel of $69.67; is that correct? A. Yes, sir." brought to recover 22 days' wages at the In view of the admission of the answer rate of $95 per month, namely, $69.76, which that the libelant was paid no wages while he the ship still owes, and which it refuses to was in the hospital, and the testimony of the pay. Libel alleges that the libelant was in captain, I am of the opinion that the release the service of the ship from the 17th day signed by the libelant should be held to be of September, 1919, to December 13, 1919, of no force: I think the libelant has, by the when he was discharged; that before his pleadings and proofs, brought before the contract terminated he became ill, and was court enough to sustain the libel.

11 F.(2d) 431 A decree may be drawn in favor of the entered pursuant to rule 66, the report havlibelant for $69.67 but without interest. ing been filed in the clerk's office more than Libelant has his costs.

20 days, without exceptions filed by either party.

[1] The first question to be decided is: "Has MORGAN et al. v. GRASS FIBRE PULP & the court power to vacate such order of PAPER CORPORATION.

confirmation ?” After reviewing the author(District Court, s. D. Florida. February 20, ities, I think the court has such power, es1926. On Further Hearing, March 16, 1926.)

pecially during the term at which the order

is passed. No court would exercise this powNo. 336.

er in a case where the rights adjudicated by 1. Receivers Om 151- Court held empowered such order are recognized by law, except unto vacate order confirming master's report al. der exceptional circumstances. Such an orlowing complainant's solicitor's fees (rule 66), der in such cases would be a futile exercise

Court has power, at least during term, to vacate order, entered under rule 66, confirm- of power. In cases where the rights adjuing special master's report allowing fees to dicated in the order are doubtful, or not reccomplainant's solicitor, payable out of defend- ognized by law, the court would vacate the ant's assets.

order of confirmation. For these reasons I 2. Receivers 154 (2)-In receivership, cred. required the question whether the complain

itor bringing fund into court is entitled to reasonable solicitors fee, payable only out

ants' solicitor in this case would be entitled of such fund.

to receive counsel fees from the assets of the In receivership, a creditor, who for himself defendant to be argued on this motion; and others brings fund into court, to be ad- which was done, both orally and in briefs ministered for benefit of all, is entitled to a

filed before me. reasonable solicitor's fee, payable only out of such fund.

The record shows that the complainants

on November 25, 1924, filed a bill in chan3. Receivers 154(2)-Complainant, on final determination after discharge of receivers, of

cery in the name of three creditors of the rights to escrow deposit representing a dis- defendant, praying for the appointment of puted claim, held not entitled to attorney's a receiver to take possession of the assets fees.

of the defendant and preserve same, and for Where, after appointment of temporary receiver at instance of three creditor complain

the liquidation of the corporation and the ants, settlement was made of claims of two assets be applied to its indebtedness. Upon creditors, with attorney's fees, and of the third, the hearing a temporary receiver was apexcept for an amount in dispute, to cover which pointed, rule nisi issued, and day fixed for a deposit in escrow was made and receivers discharged, held, on final determination of true hearing on the application for a receiver. indebtedness due third complainant, he was not

The days for such hearing were continued entitled to attorney's fees, since they would from time to time, until on March 31, 1925, be payable only out of defendant's assets, rath- the solicitors for the complainants and the er than fund brought into court.

defendant entered into and filed a stipulaIn Equity. Receivership proceeding by tion in which the payment in full, together George B. Morgan and others against the with counsel fees, for two of the three comGrass Fibre Pulp & Paper Corporation. On plainants, and payment, a sum to cover the motion to vacate order confirming special admitted indebtedness, and the deposit in master's report allowing counsel fees to so- escrow of the difference between the amount licitor for named complainant out of assets claimed and the amount admitted was acof defendant. Motion granted, and, on ex- knowledged; said escrow amount to await ceptions to master's report filed after grant- the final determination of the actual ining of motion, exceptions sustained.

debtedness. On the hearing upon said stip

ulation, an order was entered in which, J. R. Bedgood, of Eustis, Fla., for complainants.

among other things, it was ordered that said Roy P. Hamlin, of Tavares, Fla., and R.

cause should proceed only for the purpose F. Maguire, of Orlando, Fla., for defendant. of determining the correct amount due the

third complainant. On April 22, 1925, an orCALL, District Judge. This cause comes der was entered approving the receiver's acon for hearing upon the motion to vacate counts and discharging him, and ordering the order made herein upon the 21st of him to deliver to the defendant all assets that January, 1926, confirming the special mas- had come into his possession by virtue of the ter's report filed December 29, 1925, allowing receivership. Upon this day the receipt of counsel fees to the solicitor for the complain the receiver and his attorney to the defendant, to be paid out of the assets of defend- ant, covering their fees, etc., incurred for ant. The order attacked in the motion was the receivership, was filed.

[2,3] It is the recognized law that, where the amounts due them, not a general credione creditor, acting for himself and other tors' bill for the benefit of all creditors who creditors succeeds in bringing into court a shall come in and contribute to the expense fund to be administered for the satisfaction of the litigation. Other creditors might have of his claim and the claims of other creditors petitioned to come in, had they seen fit, and of the like class, he is allowed a reason- subjected themselves to the payment of counable fee for his solicitor, to be paid out of sel fees, out of the claims allowed, but this such fund. But, as I understand the law, was not done in the instant case. It is true a it is the fund which is applied to the satis- temporary receiver was appointed, who took faction of the claims of creditors out of possession of the books, papers, and visible which this payment of counsel fees is al- property, consisting of plant, etc., of the de lowed. This, I think, is clearly shown by the fendant, and preserved the latter, the cost of case of Huff et al. v. Bidwell et al., 195 F. which was paid by defendant under the stip430, 15 C. C. A. 332, and this was on a ulation noted in the former opinion. general creditor's bill. The bill in the in- It was proper that this cost should have stant case was filed by three creditors for been paid by the defendant. The bringinz themselves, not for the class. It is true a of this suit and the appointment of the temprayer is for the liquidation of the corpora- porary receiver might, and probably did, tion and an application of its assets to the cause the settlement of outstanding claims payment of its debts; but it is extremely against the corporation; but this fact does doubtful whether this prayer would have the not authorize this court to assess counsel fees effect of making this a creditors' bill. But, for complainants' solicitor against the debe that as it may, in the instant case, the fendant, to be paid out of its assets. The debts due the complainants were paid by exceptions to the allowance of counsel fees the defendant, and the disputed amount se- for the complainants' solicitor will be sus. cured on March 31st. These payments were tained. not made from any fund brought in and ad- There are other exceptions to the action ministered by the court. The petition for of the master in admitting testimony, etc., attorney fees was filed April 22d, some time but these I have not considered, as those rulafter the order of March 31st, retaining the ed on decide the matter. case only for the purpose of ascertaining the true indebtedness to the third complainant. Any allowance for counsel fees to be paid by SURRELL et al. V. PIERCE, BUTLER & the defendant would not be from any fund

PIERCE MFG. CORPORATION. being administered by this court, but would (District Court, S. D. New York. February 5, be requiring the defendant to pay out of its

1924.) assets the counsel for three creditors, who 1. Patents 328. were asserting claims adverse to it. This, as

14,002, Surrell patent, claims, 1, 10, 21, 22, I read the authorities, will not be done. and 23, for back draft boiler, held invalid.

I am of opinion, therefore, that the mo- 2. Patents 328. tion to vacate the order of January 21, 1926,

14,003, Surrell patent, for sectional boiler, must be granted, for the reasons above stated. held not infringed. It will be so ordered.

3. Patents en 27(1). On Exceptions to Special. Master's Report entable.

A new use of an old disclosure is not patFiled after Vacating of Order Confirm

4. Patents Om328. ing Report.

1,089,747, Butler patent, for sectional boil. This came on for further hearing upon er, held not infringed. the exceptions filed to the master's report, allowing attorney fees to the complainants'

In Equity. Patent infringement suit by solicitor. A statement of the pleadings in John Ralph Surrell and another against the case will be found in the opinion filed the Pierce, Butler & Pierce Manufacturing February 20, 1926, on the motion to vacate Corporation, wherein defendant pleaded a the order of confirmation of said report, as

counterclaim. Bill and counterclaim diswell as my view of the law controlling the

missed. question of allowance of counsel fees to com

Decree affirmed 11 F.(20) 441. plainants' solicitor.

The patent involved in the counterclaim If I was correct in my views as therein is No. 1,089,747, issued to William M. Butstated, these exceptions to the allowance of ler on March 10, 1914. counsel fees are well taken. This is a suit The following will serve to illustrate the by three creditors only for the collection of various patents considered in the opinion:

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11 F.(20) 432

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