WARREN· v. BURNHAM.
It is unnecessary to consider the sufficiency or hlsufficiency of the excuse presented in these cases. This court is without power to allow the service nunc pro tunc of the bill of particulars' required by section 3012, Rev. St. The decision in Pott v. Arthur, 15 BIatchf. 314, is authority only for the allowance of amend'ments as to some formal matter not involving any substantial right of the defendant, and then only undef peculiar circumstances. The statement in the opinion that the statute was "directory merely" is an obiter dictum, and has not been followed in this court to the extent of allowing bills of particulars to be served subsequent A similar application to that of the to the date named in the plaintiff was denied by Judge WALLACE in Schwietering v. Hedden, (Febmary, 1887, not reported,) upon the ground that the court had no power to grant such relief. The application of the plaintiffs for leave to serve bills of particulars nunc pro tunc is therefore denied,and defendant's motion for judgment of non pr08. is
WARREN and others, Assignees, etc.,
(Circuit Oourt, N. D. New York. October 24, 1887.) 1.
SET-OFF AND COUNTER-(JLAIY-PARTNERSHlPACCOUNTING-BANKRUPT PART.NER.
A solvent firm of which a bankrupt is a member may set off against a debt due the bankrupt a debt due by the bankrupt to the firm.
PARTNERSHlP-AccOUNTING-BANKRUPT PARTNER-FRAUD OF.
Where a member of a firm obtained indorsements from another member of the firm, of certain negotiable paper, upon a representation that he was to use such paper for the benefit of the firm, but in fact used it for his individual purposes, and afterwards became bankrupt, the firm remaining solvent, the amount so obtained by the bankrupt is a proper charge against him, and in favor of the firm. In an action brought by the assignees of a person who is a bankrupt individually, but a member of a solvent firm, against the other member of the firm, for an accounting, the defendant may properly claim to his credit amounts advanced by him individually to such bankrupt. Costs in such action, like other equitable actions,.may be awarded to the successful party.
SAME-AcCOUNTING-BANKRUPT PARTNER-ADVANCES TO.
In Equity. The complainants are assignees in bankruptcy of one Lazarus S. Hammond. Hammond was engaged in business as an individual banker at Cape Vincent, New York. He was also, as an equal copartner with the defendant, engaged in carrying on the grain and produce business at the same place, under the firm name of Hammond & Burnham. He was also, as a member of the firm of Doty, Hammond & Co., engaged in the produce commission business in the city of New York. Hammond became a bankrupt, the firm of Hammond & Burnham remainedsolv-
ent. Burnham was iil no way connected with Hammond in the banking business. At the time of the failure, Hammond, as an individual banker, was indebted to the firm of Hammond & Burnham, and the firm was indebted to him, on partnership transactions. Prior to the failure, the firm of Hammond & Burnham was indebted to the Oneida National Bank in about the sum of $15,000. Harmnond represented to Burnham that he had no funds with which to meet this indebtedness, and requested Burnham to indorse two drafts in blank, representing that he could then raise the necessary amount. Relying upon these representations, Burnham indorsed the drafts. The drafts were accepted by Doty, Hammond & Co. after the sum of $5,000 was inserted in each,and the money obtained thereon was applied by Hammond to his own use. Prior to the failure, Hammond was indebted to Burnham individually in the sum of about $5,000. This action was commenced by the assignees to obtain an accounting, upon the theory that the defendant was indebted to them in a large amount. The master pro hac vice, to whom the matter was referred, reported in favor of the defendant upon all the issues, except that he refused to allow in the account the individual ind'ebtedness of the bankrupt to Burnham. J. B. Brooks, for complainants. L. J. Dorwin, for COXE, J. This action comes before the court upon exceptions filed by both parties to the report of the master pro hac vice. I have carefully read this report, and am of the opinion that the findings of fact and conclusions of law are correct. . The principal controversy arises over ,the right of a solvent firm, of which the bankrupt was a member, to set off against a debt due the bankrupt a debt due from the bankrupt to the firm. The allowance of this set-off was in conformity with the law, and is abundantly supported by authority. The finding of the master with reference to the two drafts drawn by the bankrupt on Doty, Hammond & Co., and indorsed by the defendant, is sustained by the proof. The drafts were obtained from the defendant upon the representation that they were necessary to pay a partnership indebtedness. The bankrupt applied them to his own use. The amount paid by the defendant upon these drafts was properly charged against the bankrupt in the account. I see no objection to the allowance aud addition to the account of the individual indebtedness of the bankrupt to the defendant. If the balance on the accounting had been in favor of the bankrupt, the sums found by the master in the sixteenth item of his report could have been set oft' against it. In 1'6 Voetter, 4 Fed. Rep. 632, and cases cited. No injury will be done by permitting these amounts to be added to the sum found due by the master, and all difficulties which might arise under the statute of limitations will thus be avoided. Upon the question of costs, I see nothing to distinguish this case from other equitable actions, or exempt it from the rule which awards costs to the successful party·
The exceptions of the complainants are overruled, and judgment is awarded in conformity with the provisions of the report, except that the individual indebtedness of the bankrupt to the defendant, amounting to $5,144.84 and interest, may be added to the sum found due by the master.
(Gircu.it Gourt, 8. D. New York. October 17,1887.)
CUSTOM DUTIES-AcTION TO RECOVER-AMENDMENT OF BILL-LAPSE OF TIME.
An action against the collector to recover excess of duties paid under protest was begun January, 1866. The bill of particulars was served the following February, an amended bill in December of the same year, and a further amended bill November 3,1882. The earliest entry was of date April 29, 1861. In the latter part of 1887 the plaintiff moved to further amend. Neither the merchandise, the vessel, nor the dates of invoice, entry, payment, or protest, were, as to the items forming the subject of the motion, stated in the bill. In fact, the dates, as ,l?roposed, were" January, 1861." Held that, although under Rev. St. U. S. 954, providing for amendments for defects of form, the court had power to allow amendments of the bill of particulars after the 30 days limited by Rev. St. U. S. 3012, the discretion was to be exercised only in extreme cases, and the plaintiff was not within the rule. The act of congress of February 18. 1867, provides (section 1) that all such suits or prosecutions as have been or shall be commenced under any prior BctS of congress repealed or supplied by the act of July 18. 1866, for acts com· mitted previous to that date, shall be tried and disposed of, etc., as if the act of July 18th, had not been passed. Section 26 of that act, requiring service of a bill of particulars in actions to recover excess of duties paid under protest within 30 days after notice of defendant's appearance, was re-enacted in Rev St. 3012. Held, that the question of the repeal of Rev. St. § 3012, by.the act of F'ebruary 18. 1867, was not before the court on a motion to amend such bill of particulars. The original bill of particulars had the following phrase at the bottom: "E. and O. E. Above intended to include all entries upon which duties and fees were paid by plaintiff to defendant between April 8, 1861, and September 8, 1864." Held, that the sufficiency of the notice was to be determined on the trial, and not on motion to amend the bill of particulars.
SAME-AOTION TO RECOVER-NoTICE-SUFFICIENCY.
Action to Recover Excess of Duties paid under protest. On motion to amend bill of particulars. Almon W. Griswold, for the motion . . -Stephen A. Walker, U. S. Atty., and Thomas Greenwood, Asst. U. S. Atty., opposed.
LACOMBE, J. This action was begun in January, 1866. A bill of particulars was served in February, 1866, an amended bill in December, 1866, and a further amended bill on November 3, 1882. This last bill sets forth the plaintiff's claim as for "excess of duty paid under protest on worRted and cloth dress goods above 35 per cent., and for excess of fees paid for oaths to entries, stamps on invoices, and orders