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(289 F.)

presented by the record in this case. This is not a case where the plaintiff has failed to move the substitution of the successor of the defendant Payne as Agent within 12 months from the date of his resignation. It is a case where John Barton Payne has been sued as such Agent after he had resigned the office and after his successor, Davis, had been appointed. Since his resignation on March 28, 1921, John Barton Payne has had no authority to represent the President or the United States in any litigation arising out of the operation of railroads during the World War. Appellant brought suit against the wrong party, and must abide the consequences of his mistake. N. Y. S. M. Milk Pan Ass'n v. Rem. Ag. W'ks, 89 N. Y. 22; Zukowski v. Armour, 107 Ill. App. 663; Jordan v. Chicago & A. Ry. Co., 105 Mo. App. 446, 79 S. W. 1155; Hall v. School Dist. No. 4, 36 Mo. App. 21; Hunnicutt et al., Commissioners, v. Stone, Ordinary, 85 Ga. 435, 11 S. E. 663.

The suit cannot be maintained against John Barton Payne, and the court below did not err in sustaining his demurrer to the complaint. Judgment affirmed.

SCOVELL, WELLINGTON & CO. v. BRICKLEY.

In re EARNEST A. SMITH & CO.

(Circuit Court of Appeals, First Circuit.

No. 1615.

May 15, 1923.)

Bankruptcy 440-Order allowing compensation for services rendered receivers not reviewable by appeal..

An order allowing a claim for services rendered the receivers of the bankrupt estate was not reviewable by appeal, under Bankruptcy Act, 25a (Comp. St. § 9609), the order being an administrative matter; nor, where the case presented only questions of fact, could the appeal be treated by the Circuit Court of Appeals as a petition to revise in matter of law under section 24b (Comp. St. § 9608).

Appeal from the District Court of the United States for the District of Massachusetts; James M. Morton, Judge.

In the matter of Earnest A. Smith & Co., bankrupt. Petition by Scovell, Wellington & Co., public accountants, for services rendered Bartholomew A. Brickley, trustee in bankruptcy. From an order awarding petitioners insufficient relief, they appealed to District Court, and from affirmance again appeal. Affirmed.

George A. Sweetser, of Boston, Mass., for appellants.
Francis T. Leahy, of Boston, Mass., for appellee.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

PER CURIAM. This is an appeal under section 25a, c. 541, of the Bankruptcy Act of July 1, 1898 (Comp. St. § 9609), from an order of the District Court allowing the appellants the sum of $2,000 for services performed for the receivers of the bankrupts' estate. The claim, as presented to the trustee, was for the sum of $4,037.52. It was allowed by the referee at $2,000, from which order both parties petitioned the District Court for a review.

If the case can be regarded as properly before us on appeal under section 25a, which we think cannot be done, as the order allowing the bill against the receivers was an administrative matter (O'Brien v. Ely, 195 Fed. 64, 115 C. C. A. 80; Davidson & Co. v. Friedman, 140 Fed. 853, 72 C. C. A. 553; Ohio Valley Bank Co. v. Switzer, 153 Fed. 362, 82 C. C. A. 438; In re Kinnane Co.'s Estate, 242 Fed. 769, 155 C. C. A. 357), we are not inclined to disturb the finding of the two lower tribunals, as we do not regard it as clearly against the weight of the evidence and wrong.

Then again, if the case as presented raised only questions of law, so that the appeal could be treated by this court as a petition to revise in matter of law under section 24b, being Comp. St. § 9608 (Chesapeake Shoe Co. v. Seldner, 122 Fed. 593, 58 C. C. A. 261; Gaudette v. Graham, 164 Fed. 311, 90 C. C. A. 243), we do not think the case can be so regarded, for, as we view it, it presents only a question of fact. If the referee received evidence that should have been excluded, or made erroneous rulings of law, there is nothing in the record to show that the District Court, in reviewing the case, considered such evidence, or approved such rulings in reaching his conclusion.

The decree of the District Court is affirmed, and the appellee recovers his costs of appeal.

ROTHLISBERGER et al. v. UNITED STATES.

(Circuit Court of Appeals, Sixth Circuit. May 8, 1923.)

No. 3760.

Criminal law 394-Searches and seizures 3-Search warrant held valid and evidence procured thereunder admissible.

That a search warrant described the premises to be searched only by street and number, which number was not exactly that of the premises searched, or that the person named therein was neither the householder nor owner of the premises searched, but was a member of the owner's family, held not to render the warrant invalid, or evidence secured thereby inadmissible against him.

In Error to the District Court of the United States for the Western Division of the Northern District of Ohio; John M. Killits, Judge. Criminal prosecution by the United States against Ernest Rothlisberger, Sr., and Louis Rothlisberger. Judgment of conviction, and defendants bring error. Affirmed.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

(289 F.)

Neal H. Deeds and Stanley A. Grzezinski, both of Toledo, Ohio, for plaintiffs in error.

Gerard J. Pilliod, Asst. U. S. Atty., of Cleveland, Ohio (E. S. Wertz, U. S. Atty., of Cleveland, Ohio, and George R. Effler, Asst. U. S. Atty., of Toledo, Ohio, on the brief), for the United States.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

PER CURIAM. The plaintiffs in error, father and son, were convicted of having in their possession, with knowledge, property which had been stolen while in interstate transportation, and of having thereby violated section 1 of the Act of February 13, 1913 (37 Stat. 670, U. S. C. S. § 8603).

A search warrant, which formed the basis for admitting certain evidence, is attacked because the property to be searched was identified only by giving the street and (an erroneous) number, and because the person named therein was neither the householder nor the owner of the premises. The building searched, 121 Hay street, was a single family residence, occupied by the Rothlisberger family, and owned by the mother, and L. Rothlisberger, the person named in the warrant, was a member of that family, an adult son living there. The warrant gave the number as 123. There is nothing to show that there was any building No. 123, or any room for doubt as to the house intended.

We find no justification, upon principle or authority, for thinking that the proceedings under the search warrant were unlawful for either of these reasons. While the evidence to charge the father with the essential guilty knowledge was wholly circumstantial, we think it was sufficient to give legal basis for the conclusion which the jury reached. The large quantities of other property, not named in the indictment but found in the house and said to have been also stolen from railroad cars, had a distinct tendency to show this knowledge.

We find in the assignments of error nothing else which we think calls for comment.

The judgment is affirmed.

MCLEAN OIL CO. v. ASHWORTH HEIRS et al.

(Circuit Court of Appeals, Fifth Circuit. April 2, 1923.)

No. 3988.

Courts 405(5)—Appeal from decree dismissing for want of jurisdiction transferred to Supreme Court.

Where the decree appealed from dismissed the bill on the ground the court was without jurisdiction to determine it, so that the appeal should have been taken to the Supreme Court, it will be transferred to that court in compliance with Act Sept. 14, 1922.

Appeal from the District Court of the United States for the Eastern District of Texas; W. Lee Estes, Judge.

For other cases see same topic& KEY-NUMBER in all Key-Numbered Digests & Indexes

Suit in equity by the McLean Oil Company against the Ashworth Heirs and others. From a decree dismissing the bill for want of jurisdiction, complainant appeals. Appeal transferred to the Supreme Court.

See, also, 283 Fed. 422.

W. D. Gordon, of Beaumont, Tex., for appellant.
Oliver J. Todd, of Beaumont, Tex., for appellees.

Before WALKER, BRYAN, and KING, Circuit Judges.

PER CURIAM. It appearing that the decree appealed from dismissed the suit on the ground that the court was without jurisdiction to determine it, and that the appeal should have been taken to the Supreme Court of the United States, in compliance with the Act of Congress approved September 14, 1922 (42 Stat. 837, c. 305), it is ordered that said appeal be transferred to the Supreme Court of the United States at the cost of the appellant.

In re MARK SHOE CO.

(District Court, D. Massachusetts. May 3, 1923.)

No. 27315.

Bankruptcy474-Mortgagee held not chargeable with expense of continuing business for benefit of estate.

Where the business of a bankrupt is continued by the trustee for the benefit of the estate, a mortgagee of the property cannot be charged with any part of the expenses of such continuance.

In Bankruptcy. In the matter of the Mark Shoe Company, bankrupt. On review of order of referee. Affirmed.

Joseph W. Keith, of Brockton, Mass., for Home Nat. Bank.
Mark M. Horblit, of Boston, Mass., for trustee.

BREWSTER, District Judge. The trustee in bankruptcy, and prior to his appointment an assignee for the benefit of creditors, occupied premises of one Stone and continued thereon the business in which the bankrupt had been engaged until the merchandise and fixtures were sold by the trustee under order of the referee. The property sold was subject to a chattel mortgage for $4,200 held by the Home National Bank. The referee found the mortgage to be valid to the extent of $570.95. The sale was made free from all liens, and lien of the mortgagee was transferred to the proceeds. These proceeds amounted to $1,015, and the amount now in the hands of the trustee is $634.12. A claim for rent amounting to $715 is presented by an assignee of the lessor. While the amount due on the mortgage and the amount of the rent have been matters of dispute, no question is now raised regarding either of these amounts. The lessor's assignee contends that the rent should be borne in part by the mortgagee, on the ground that it was

For other cases see same topic & KEY-NUMBER în all Key-Numbered Digests & Indexes

(289 F.)

an expense incurred in preserving the assets of the estate. It has been held that the reasonable cost appropriate to foreclosing and selling incumbered property may be assessed on the lienholder in case the proceeds are insufficient to satisfy the lien, but that expenses incurred in the general administration of the estate will not be charged to the lienholder (Gugel v. New Orleans Nat. Bank, 39 Am. Bankr. R. 160, 239 Fed. 676, 152 C. C. A. 510), and in some cases the lienholder has been required to contribute to expenses of preserving the assets, when obviously the expenses were incurred for the benefit of the lienHolder. The Bethulia, 37 Am. Bankr. R. 227, 200 Fed. 879. But in the instant case the referee has found as a fact that the expenses for rent were incurred, not for the benefit of the mortgagee, but for the benefit of the creditors of the bankrupt, whose representative, as trustee in bankruptcy, elected to continue the business on the premises for the sole purpose of enabling him to sell the property more advantageously as a going concern.

In view of this finding of the referee I do not think the cases cited by the trustee warrant a reversal of the order of the referee directing the trustee to pay over to the Home National Bank the sum of $570.95, and this order is affirmed.

LIBERTY CENT. TRUST CO. OF ST. LOUIS, MO., et al. v. GILLILAND OIL CO.

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I. Bills and notes 126-Attorney's fees in receivership recoverable under terms of note.

Under a provision in notes, "if not paid at maturity we agree to pay all costs of collection, including reasonable attorney's fees," payee was entitled to recover for services of attorney in connection with examination of assets during a receivership negotiation without appearance in court, but the fees should be limited to the notes collected which were matured. 2. Receivers 152-Rule as to fixation of rights as of date of appointment held not applicable.

The rule that the rights of ail parties are fixed as of the time of the appointment of the receiver, and that no claim for services thereafter rendered may be sustained, is only a rule of convenience in the administration of bankrupt or insolvent estates, and not applicable where the estate is more than ample to discharge all claims.

3. Bills and notes 126-Services of creditor in receivership proceeding not affecting attorney's fees for collection of note; "collection services."

Services rendered by a creditor in a receivership proceeding, or his attorney, in connection with the gathering in of assets and converting them into cash and distributing them to those entitled thereto, are administrative acts, for which under exceptional circumstances equitable costs are at times allowed; but such services, when rendered by a creditor through his attorney, are not "collection" services, within the meaning of a provision in a note permitting reasonable attorney's fees.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

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