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the peculiar and irregular methods employed in this proceeding, to take the more direct course, as above indicated.
Lee M. Friedman, trustee.
John H. Blanchard, for objecting creditors.
LOWELL, District Judge. At the first meeting of creditors, sundry claims were presented for proof, and all those presented by parties now appealing from the decision of the referee were there contested. In view of all these circumstances, more fully set out in his certificate, that officer found it impracticable at that meeting to pass upon the validity of the claims there presented, and continued their consideration. See section 57d, Act July 1, 1898, c. 541, 30 Stat. 560 [U. S. Comp. St. 1901, p. 3443]. As it thus became impossible to proceed to the election of a trustee in the ordinary manner, the referee appointed a trustee, as provided in section 44, 30 Stat. 557 [U. S. Comp. St. 1901, p. 3438]. The circumstances were unusual, and the referee did not deem it expedient to postpone the election until the contested claims had been passed upon, and an adjourned meeting could be had. No injustice was thus done to creditors, for, after the validity of their claims has been established, they can ask the court for the removal of the trustee thus appointed, without allegation or proof of his dishonesty or inefficiency. In disposing of their petition for removal, the court would bear in mind the unusual circumstances of the trustee's original appointment, and would protect the rights which creditors ordinarily possess in choosing a trustee of the bankrupt estate. The referee, indeed, could have continued the administration of the estate by the receivers already appointed, or by other receivers substituted for these, but he deemed it for the best interests of the estate that the title to the bankrupt's property should be vested immediately in a trustee. While administration by a receiver ordinarily accomplishes much the same result as administration by a trustee, yet circumstances may well exist to make the latter desirable. If at the first meeting all claims offered for proof are in dispute, and it is impracticable at that time to settle the dispute, it appears to be within the discretion of the referee to appoint a trustee under section 44. The judgment of the referee is therefore affirmed.
Creditors prayed a recommittal of the certificate in order that the referee might certify additional facts and evidence. If the appellants desire that the judge shall weigh the evidence and determine questions of fact, they should ordinarily procure that the evidence before the referee is taken down stenographically, and by him certified to the judge. If this be deemed inadvisable on account of expense or other reasons, the parties should specifically point out to the referee that testimony which they wish him to summarize in his report, and they should ask him for specific findings of fact on which they may rely at the hearing before the judge. Nothing of the sort was done here, and the appellants are therefore left to depend upon the summary of evidence and the findings of fact contained in the certificate. In order that the appellants should lose nothing substantial by their oversight, the court
has inquired of the referee concerning one additional finding especially desired by the appellants, namely, that certain creditors named were a majority in number and amount of claims presented, and that no evidence was given before the referee attacking the validity or genuineness of their claims. The court is informed by the referee, as sufficiently appears from the certificate, that the validity and genuineness of all these claims was contested before him. If there was a contest, and the referee continued consideration of the claims, it is immaterial that no evidence impeaching their validity was presented at the first meeting. Continuance was within the referee's discretion.
DALY v. QUINLAN.
(District Court, E. D. New York. July 7, 1904.)
1. NAVIGABLE WATERS-DOCKS-PROJECTING ROCKS-DAMAGES TO VESSELSNEGLIGENCE.
Where the owner of a dock failed for two years after dredging the space along the dock to examine the same for obstructions, or to use reasonable care to provide and maintain a safe bottom for boats coming to the dock, though he was notified of a pointed rock lying in such bottom, and rising some 18 inches above the bed of the sea, he was guilty of negligence rendering him liable for injuries to a vessel caused by her settling on such rock with the falling of the tide.
Carpenter, Park & Symmers, for libelant.
THOMAS, District Judge. This action is to recover damages for injuries to libelant's boat caused by a rock adjacent to respondent's dock, upon which the vessel settled with the falling tide. Although the boat was old, and it would not have been prudent to allow her to rest on a hard bottom, yet a pointed rock, rising some 18 inches above the bed of the sea, caused the injury. It is not expectable that a vessel, old or new, should meet with such rock. About two years before this, Quinlan, the owner, had caused the space along the dock to be dredged. After that had been done, one of the dredgers, in reply to Quinlan's inquiry, took measurements, and said, "I guess you have got 10 feet all along here-10%." Quinlan said, "Are you sure?" He said, "Yes." From that time forward for two years no inspection of the bottom was made, although the respondent's foreman was notified the year before the accident that there was a rock about 24 feet off the bulkhead. Thereupon the foreman ascertained the presence of such rock, and reported to Quinlan. There is evidence that during the two years after the dredging the libelant's boat, on a single occasion, and other boats drawing as much or more than libelant's boat, had been to the dock without injury, and even that they rested on the bottom without injury. It was the duty of the respondent to use reasonable care
1. See Wharves, vol. 48, Cent. Dig. § 37.
to provide a safe bottom for boats coming to his dock, and to use the same care to maintain the bottom in proper condition. There is not the slightest evidence of any inspection or care in the matter of maintaining the bottom in good condition. It seems to have been the idea of the respondent that he could wait until boats lying at or approaching his dock met with obstruction, before taking any steps to find or to remove the same. This is not the care contemplated by law. It was his duty to use ordinary care to anticipate injury, and to keep the space about his dock under surveillance, for he knew that the bed was liable to change under the action of the water. He showed no vigilance, but awaited events. Such conduct, observed through two years, does not show proper care.
The libelant should have a decree.
THE OUR FRIEND.
(District Court, E. D. Pennsylvania. August 1, 1904.)
1. ADMIRALTY-COLLISION-LIBEL IN FORMA PAUPERIS.
Where libelant, in a proceeding in admiralty for collision resulting in the loss of libelant's sloop, tackle, apparel, and furniture, alleged that by reason of his poverty he was unable to defray the expense of litigation. and prayed that process might issue and be served in forma pauperis, as authorized by Act Cong. July 20, 1892, c. 209, § 1, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706], and there was no proof that libelant's sworn statement as to his poverty was false, the fact that he purchased the sloop for $500 was insufficient to establish that he possessed property at the time the suit was instituted, or had acquired any since that time, justifying the court in requiring him to give security for costs.
Joseph Hill Brinton, for libelant.
Willard M. Harris, for respondent.
HOLLAND, District Judge. This is a petition to compel the owner of the libelant sloop to enter security for costs. It appears that on or about the 30th day of May, 1904, the tug Majestic collided with libelant's sloop, as a result of which the sloop was totally wrecked, and her tackle, apparel, and furniture, together with the provisions and other articles aboard, were destroyed, the total value of which is claimed to be $600. The libelant, in his libel, alleges that, by reason of his poverty, he is unable to defray the expense of litigation, and prays that process may issue and be served in forma pauperis, in accordance with the provisions of the act of Congress of July 20, 1892, c. 209, § 1, 27 Stat. 252 [U. S. Comp. St. 1901, p. 706]. The petition filed by respondent, requesting that the libelant be required to enter security, avers that the libelant paid $500 for the sloop, for the destruction of which he seeks to recover in this suit, and that he was engaged in the
fishing business, showing conclusively that he had not brought himself within the exceptions in favor of poor seamen. The answer to this petition denies that the libelant has any other property other than the sloop that is alleged to have been wrecked, and is therefore unable to give security for costs. There are no depositions taken by the petitioner to show that the libelant made a false statement in his libel when he swore that, by reason of poverty, he was unable to defray the expense of litigation. The fact that the libelant purchased a sloop for $100 is no evidence that he was possessed of property at the institution of the suit, or has acquired any since that time, enabling him to give ecurity in this case. There is nothing to show that he has any propcrty citside of what he had invested in his catboat, and this, he alleges, is a total loss, by reason of the collision. It may be that the admiralty ccart can require a libelant to enter security in a case under this act, where the libelant, who by reason of his poverty was unable to pay costs and enter security at the time the suit was instituted and the writ issued, has Lecome possessed of property subsequently and before the termination of the suit; but where a litigant brings an action in forma pauperis under this act, and at the time of the institution of the suit he has sufficient property to pay costs and enter security, and that afterwards is made to appear to the satisfaction of the court, the proper proceeding is, we think, under the fourth section of this act, to dismiss such cause, where it is made to appear that the allegation of poverty is untrue, or if the court is satisfied that the alleged cause of action is frivolous or malicious.
As there is no evidence here to sustain an allegation that the libelant has subsequently to the bringing of the suit become possessed of sufficient property to enable him to pay the costs or enter security for the same, the petition is dismissed.
UNITED STATES v. FLEITMANN & CO.
(Circuit Court, S. D. New York. June 1, 1904.)
1. CUSTOMS DUTIES-SUFFICIENCY OF PROTEST-STATEMENT OF OBJECTIONS.
sons for his objections."
Application for review of a decision of the Board of General Appraisers reversing the assessment of duty by the collector of customs at the port of New York on merchandise imported by Fleitmann & Co.
The only question that the board passed on was whether the protest which the importers had filed with the collector of customs satisfied the requirements of section 14, Customs Administrative Act June 10, 1890, c. 407, 26 Stat. 137 [U. S. Comp. St. 1901, p. 1933], where it is prescribed that an importer shall, in making a protest, set forth therein "distinctly and specifically the reasons for his objections." Note United States v. Bayersdorfer (C. C. A.) 126 Fed. 732, and United States v. Knowles (C. C. A.) 126 Fed. 737. It appeared that the merchandise had been improperly classified under paragraph 390, Tariff Act July 24, 1897, c. 11, § 1, Schedule L, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], relating to silk trimmings and similar merchandise, and that it was correctly classifiable under paragraph 391, 30 Stat. 187 [U. S. Comp. St. 1901, p. 1670], at the rate of 50 per cent. ad valorem. The claim of the importers, however, was that "said goods are dutiable only at the rate of 50 per cent. ad valorem, under paragraph 389 of the Tariff Act of 1897." Said paragraph 389 (30 Stat. 187 [U. S. Comp. St. 1901, p. 1670]) relates to silk bandings, bone casings, etc., while paragraph 390, under which classification should have been made, relates to manufactures of silk not specially provided for.
Henry A. Wise, Asst. U. S. Atty.
Benjamin Barker, Jr., for importers.
TOWNSEND, Circuit Judge. The decision of the Board of Appraisers is affirmed on the authority of U. S. v. Shea, Smith & Co., 114 Fed. 39, 51 C. C. A. 664; U. S. v. Salambier, 170 U. S. 621, 18 Sup. Ct. 771, 42 L. Ed. 1167; and Allen v. U. S. (C. C.) 127 Fed. 777.
In re SANBORN.
(District Court, W. D. New York. April 12, 1904.)
1. BANKRUPTCY-DISCHARGE-OPPOSITION-DISCONTINUANCE-COLLUSION. Where, on an application for a bankrupt's discharge, it appeared that certain creditors had opposed the discharge, and had applied for time to file specifications, but, though the time had expired, the specifications had not been filed, and the referee, in a supplemental report, had refused a certificate of conformity required by bankruptcy rule 10, the facts tended to create a presumption or a suspicion that some act had been done by or on behalf of the bankrupt to secure the discontinuance of the opposition, justifying the refusal of the bankrupt's discharge pending a further report by the referee.
Plumley & Plumley, for the bankrupt.
HAZEL, District Judge. It appears by the records of this court that there has been opposition by various creditors to the discharge of the bankrupt. Requests for extensions of time to file specifications in opposition to a discharge were heretofore made, and granted by this court, but as yet no specifications have been filed, though the time to do so has now expired. The referee, in a supplemental report, has re