In re SALLADAY. District Court, E. D. Illinois. October 20, 1927. No. 316-D. Bankruptcy42-Surviving partner may file bankrupt petition, though estate of deceased partner was being administered in probate court (Bankruptcy Act [11 USCA]). Where state law provided that title to partnership property vested in survivor in trust for payment of debts, surviving partner had right under the Bankruptcy Act (11 USCA) to file a petition in bankruptcy, and to have benefits of discharge in bankruptcy as surviving partner, since under the act, so far as creditors are concerned, the separate estates of individual partners and of the partnership are distinct entities, and fact that estate of deceased partner was being administered in probate court does not affect jurisdiction of bankruptcy court. arate estates of the individual partners and of the partnership are distinct entities, each embraced with a trust in favor of the creditors of the respective entity. Courts have differed somewhat upon the proposition of whether the surviving partner may file a petition in bankruptcy, but it seems logical that this court has jurisdiction of such a petition, and that the surviving partner has a right under the Bankruptcy Act to be adjudged bankrupt, and to have the benefits of a discharge in bankruptcy as surviving partner. In view of this right, this court is without discretion to deny his petition. The Circuit Court of Appeals for the Seventh Circuit, in the case of In re L. Stein & Co., 127 F. 547, held that, in case of the insanity of a partner and the appointment of a conservator of his estate, the partnership might still be adjudged bankrupt, though the insane partner might not be adjudicated. The court recognized the correctness of decisions to the effect that a copartnership may be adjudged a bankrupt after Alfred A. Johnson, of Danville, Ill., for the death of one partner, and cited a number bankrupt. of cases in support of that proposition. In Bankruptcy. In the matter of the bankruptcy of J. B. Salladay, surviving part ner of Mater & Sallady. On motion to set aside the adjudication and dismiss the petition. Motion denied. A. B. Dennis, of Danville, Ill., for Mrs. Matro. LINDLEY, District Judge. Motion is made by interested parties to set aside the adjudication and dismiss the voluntary petition of bankrupt as surviving partner of Mater & Salladay, on the ground that, inasmuch as prior to the filing of the voluntary petition Mater died, and his estate is being administered in the probate court, this court has no jurisdiction to adjudicate the surviving partner bankrupt and administer the assets of the partnership now in the possession of the surviving partner. Under the Illinois statute (Smith-Hurd Rev. St. 1925, c. 1062, § 25, subd. 2, par. d) title to firm property vests in the survivor in trust for the payment of debts. The estate of neither of the partners is entitled to any share of the partnership assets until and unless the copartnership debts have been paid in full. The surviving partner is charged with the duty of converting the assets into cash, paying the partnership debts, and accounting for the surplus, if any, to the respective estates of the partners. Thus it will be seen that the Illinois statute does not contemplate that the administrator of the estate of the deceased partners shall have title to or possession and custody of any of the assets of the copartnership. Under the Bankruptcy Act (11 USCA), so far as creditors are concerned, the sep In the case of In re Wells (D. C.) 298 F. 109, Judge Hickenlooper passed upon the express question here involved, stating that, where the Ohio Code (section 8085 et seq.) provides for the conduct of the business after the death of one partner by the surviving partner, the partnership can still be adjudi. cated after the death of one of the partners on the petition of the surviving partner, notwithstanding the administration of the deceased partner's estate in the state court. In the case of In re Meyer, 98 F. 976, the Circuit Court of Appeals for the Second Circuit had before it a situation where the petition in bankruptcy was filed after the death of one of the partners. The court held that the partnership was rightfully adjudged bankrupt. See, also, Briswalter v. Long (C. C.) 14 F. 153, which recognized the right of an individual to an adjudication in bankruptcy, both as an individual and as a surviving partner of a firm. To the same effect are In re Pierce (D. C.) 102 F. 977; Nichols v. Emerson, 210 App. Div. 281, 206 N. Y. S. 13; In re Adams (D. C.) 283 F. 431. In the latter case the Circuit Court of Appeals denied the petition for revision in 283 F. 1023. Other concurring decisions are In re Coe (D. C.) 157 F. 308; In re Stevens, 1 Sawy. 397, Fed. Cas. No. 13,393. See, also, Black on Bankruptcy (4th Ed.) 273. The suggestion that the administration of the estate of the partnership is vested in the probate court, and that the doctrine of 22 F.(2d) 301 comity requires that the bankruptcy court shall not interfere, cannot apply to the situation at hand. True, the surviving partner is charged with the duty of accounting to the administrator of the deceased partner, but the title is in him, not as an officer of the court, but by virtue of his contract relations with the deceased party and the statute vesting him with the legal title. The partnership. has debts for which, as surviving partner, he remains liable, and which he is not able to pay. The Bankruptcy Act gives him the same right as any other partner or individual to be discharged from his obligations upon surrender of all assets, whether as partner or as individual. It may well be that this proceeding is illadvised, but in the court's view it has no discretion in the premises, and cannot deny to the surviving partner jurisdiction to entertain his petition. The motion will be denied, and an exception allowed. In Bankruptcy. In the matter of James W. Lord, bankrupt. On application for discharge. Granted. Merriken & Merriken, of Denton, Md., for bankrupt. cial discretion of the judge. Bankruptcy Act, § 14 (11 USCA § 32); Woods v. Little (C. C. A.) 134 F. 229, 232. We are dealing here with a voluntary bankrupt. He is entitled to his discharge, unless the objecting creditors sustain the burden of proving that he has done acts which are sufficient to deny him a discharge. In re Johnson (D. C.) 215 F. 748. Fraudulent concealment of assets is a ground for denial of discharge. Bankruptcy Act, § 14(b). But it is essential to prove in this regard that the concealment was knowingly and fraudulently made. If there is no clear proof of this, the specifications must be overruled. In re Agnew (D. C.) 225 F. 650; In re Bacon (D. C.) 205 F. 547; In re Taylor (D. C.) 188 F. 479; In re Nelson (D. C.) 179 F. 320; In re Griffin Bros. (D. C.) 154 F. 537; In re Conn. (D. C.) 108 F. 525. The conclusion of the referee in this case, that the proof is insufficient, appears to be correct, and therefore it follows that the specifications must be overruled. An order granting the discharge will be entered. Petition of KIRTON. District Court, S. D. New York. July 8, 1927. Aliens 66-Time of service on foreign vessel not counted as residence for naturalization purposes (8 USCA § 384). Alien, who for 18 months during the five years immediately preceding filing of his petition for naturalization, served as an officer on British ships, may not be admitted to citizenship under Act May 9, 1918, § 1 (8 USCA § 384), though his family may have resided continuously in the United States during that time. Naturalization Proceeding. Petition of Godfrey Francis Kirton for naturalization. W. Brewster Deen, of Denton, Md., for Denied. objecting creditors. COLEMAN, District Judge. James W. Lord, having been adjudged a voluntary bankrupt on January 29, 1926, filed a petition for discharge on March 9, 1926. To this specifications in objection, on the ground of fraudulent concealment of assets, were filed April 24, 1926. The report of the referee, filed December 31, 1926, finds that the testimony of witnesses, taken at the hearing of these specifications, was vague and unsatisfactory, and concludes that "as a whole there was no affirmative testimony introduced sufficient to establish the allegations of the specifications of objections." The granting or withholding of a discharge in bankruptcy is for the sound judi BONDY, District Judge. The petition for naturalization was filed on May 14, 1926. The petitioner, during the five-year period immediately preceding the date of his petition, served from February 7, 1922, to June 10, 1922, as third officer on the British steamship Wabasha, and from July 1, 1922, to August, 1923, as second officer on the British steamship Winamac. The total service on these vessels of foreign registry during the statutory five-year period aggregated approximately one year and six months. The Act of May 9, 1918, provides: "Service by aliens upon vessels other than of American registry, whether continuous or broken, shall not be considered as residence for naturalization purposes within the jurisdiction of the United States, and such aliens can not secure residence for naturalization purposes during service upon vessels of foreign registry." 8 USCA § 384. It has been held that the five years' residence necessary for naturalization cannot be computed from sea service on foreign vessels, even if the applicant's wife and children reside in this country. In the Matter of MacKinnon, 193 App. Div. 893, 183 N. Y. S. 108. See United States v. Habbick (D. C.) 287 F. 593. The petition for naturalization, therefore, is denied. UNITED STATES ex rel. BOROWIEC v. FLYNN, District Director of Immi gration. he left Poland it would be impossible for him to obtain a passport for the United States, and that his destination was therefore Canada. The inspector who conducted the hearing recommended "that he be deported to the country from whence he came." The order of deportation issued by the Secretary of Labor ordered the return of the alien to Poland as the country from which he came. The sole question involved is whether the alien should be deported to Canada or to Poland. The phrase "the country whence they came," as used in the Immigration Act (8 USCA § 156), has been fairly construed by the authorities to mean the country in which the alien last had domicile prior to his unlawful entry into the United States. Ex District Court, W. D. New York. October 25, parte Gytl (D. C.) 210 F. 918, and cases 1927. Aliens 54(12)-Whether Polish alien, unlawfully entering from Canada, should be deported to Canada or Poland, depends on intent with which he became domiciled in Canada. Whether an alien who emigrated from Poland to Canada, where he remained four months, and then unlawfully entered the United States, should be deported to Canada or Poland, depends on whether he was domiciled in Canada with intention of becoming a bona fide resident. Habeas Corpus. Petition on relation of Tiofel Borowiec against William Flynn, District Director of Immigration, in charge at Buffalo, N. Y., for writ of habeas corpus. Decision deferred. Parker & Parker, of Niagara Falls, N. Y. (Alan V. Parker, of Niagara Falls, N. Y., of counsel), for petitioner. Richard H. Templeton, U. S. Atty., of Buffalo, N. Y. (Roy P. Ohlin, Asst. U. S. Atty., of Buffalo, N. Y., of counsel), for respondent. ADLER, District Judge. The relator, a native of Poland, sailed from Danzig to Liv erpool, England, in August, 1926, and from there sailed to Canada, after having obtained a passport to Canada, where he arrived on September 10, 1926. He remained in Canada for a period of four months, during which time he was engaged as a farm hand in Yorkton, Saskatchewan. From there he went to Hamilton, Ontario, in search of work, and was apprehended in the act of being smuggled into the United States on January 20, 1927. Upon the hearing granted the relator on January 22, 1927, the above facts appeared, and the relator testified that he knew when cited. If the relator used Canada only as the front porch or doorstep by which he entered the United States, using the language of Judge Hough in the case of United States v. Curran (C. C. A.) 16 F.(2d) 958, then there is no question but that he should be returned to Poland, the land of his nativity. If, however, he had emigrated to Canada with the intention of becoming a bona fide resident of Canada, the question is whether Canada had accepted him as a resident, and whether he had become domiciled there. This may be determined in this case if the relator be tendered to the authorities at the nearest port of entry from Canada, the country from which he entered the United States, and, if he is not accepted by them, the order for deportation to Poland will stand, and it is so ordered. ALLIS-CHALMERS MFG. CO. v. COHN et al. District Court, S. D. California, S. D. November 1, 1927. No. 2611-J. Principal and agent 137(1)-Plaintiff, permitting manufacturer to display apparatus incorporating plaintiff's product, held estopped to deny manufacturer's authority to sell and collect price. Where plaintiff delivered electrical generating apparatus manufactured by it to H., who built it into a truck and sold combined apparatus as portable generating outfit, held that, notwithstanding understanding between plaintiff and H. that the combined and jointly owned ap paratus should not be delivered on a sale until plaintiff received price of its merchandise, plaintiff, having permitted H. to have sole custody 22 F.(2d) 302 At Law. Action by the Allis-Chalmers Manufacturing Company against Harry Cohn and others. Judgment for defendant named. Ray Howard, of Los Angeles, Cal., for plaintiff. thereof and to display it for sale, with full Hollins & Arrousez were engaged in knowledge of H.'s business methods, was estop- building portable outfits for generating elecped to deny authority of H. to sell the apparatus and collect price therefor, as against pur- tricity used by motion picture producers. chaser without knowledge of agreement. They had an established salesroom and shop. The plaintiff manufactured the generating apparatus, which was suitable to the purpose, and which was arranged in parts, so that it could be mounted upon a truck frame and wheels. In practice it was built into the truck frame, so that, when completed, it was integral and constituted a portable generating unit. The plaintiff, with full knowledge of the method and business of Hollins & Arrousez, from time to time delivered to the latter generating equipment for the purpose of permitting Hollins & Arrousez to build it into a truck and negotiate a sale of the combined apparatus. Out of the proceeds of the sale the manufacturer plaintiff received the price of its merchandise, and Hollins & Arrousez received enough ordinarily to reimburse them for the additional property they had added and produce a profit to them besides. Sam Wolf and Ben C. Cohen, both of Los Angeles, Cal., for defendant Harry Cohn. JAMES, District Judge. This is an action to recover possession of an electrical generating equipment, of which the plaintiff was the manufacturer. Defendant Harry Cohn claims title and right to possession by reason of a purchase made from Hollins & Arrousez. The facts touching the relations of the several parties being considered, leaves to my mind, as determinative of the judgment to be entered, the one question as to whether the purchase of Cohn was bona fide and for value. Under the showing made by Cohn, who produced his canceled check for $5,000, which he testified he paid to Hollins & Arrousez for the equipment, I am of the opinion that it must be found that the purchase was a valid one, and not one of form only knowingly made for the secret advantage of Hollins & Arrousez. In saying that this question is the only one demanding close scrutiny, it is with the settled opinion in mind that the case on its other facts-facts undisputed by any oneestablishes a clear case of ostensible agency in Hollins & Arrousez, as representatives of the plaintiff, to sell and receive payment for the electrical merchandise in question. If it cannot be properly so concluded, then every purchaser of an agent handling merchandise for a manufacturer, where such agent, with the knowledge of the manufacturer, holds himself out as authorized to negotiate sales, must endure the hazard of losing the property purchased because of a secret agreement between the manufacturer and the agent that the agent shall not have authority to confer title or receive money. If such were the case, the course of trade, handled through long established channels and usage, would be greatly interrupted, if not destroyed. The facts here, I think, make an unusually strong case of estoppel against the plaintiff on the ground of ostensible agency. It may be conceded that there was an understanding between the plaintiff and Hollins & Arrousez that the combined and jointly owned apparatus should not be delivered on a sale until plaintiff had received the price of its merchandise, but the public dealing with Hollins & Arrousez would have no means of knowing of such an agreement. Plaintiff stood by and allowed its merchandise to be displayed in a place where such merchandise was ordinarily sold-to be in the exclusive, actual custody of the persons in charge of the salesroom and with the full knowledge in itself that Hollins & Arrousez would negotiate a sale of the generating apparatus. I can find no evidence sufficient to warrant an inference that defendant Cohn, who had purchased on prior occasions combined generators of that class from the same agents, had knowledge or notice that the agents were not authorized to make delivery and receive the purchase price. That the acts of Hollins & Arrousez, in selling on the eve of their bankruptcy at a much reduced price the generating unit and failing to account to their principal for the invoice, are entitled to sharp condemnation, cannot aid in protecting the plaintiff as against the rights of the innocent purchaser. It is not too strong a term to use to say that Hollins & Arrousez acted in clear fraud of their principal's rights. From the conclusions, the findings and judgment must be for the defendant Cohn; and it is so ordered. THE HERDIS. THE G. A. KOHLER. District Court, D. Maryland. November 2, 1927. Nos. 1459, 1461. 1. Seamen 27 (9)-Whether one is entitled to preferred maritime lien for wages of crew is determined from nature of services performed (Ship Mortgage Act, § 30, subsec. M [46 USCA § 953]). Whether one is entitled to preferred maritime lien under Ship Mortgage Act, § 30, subsec. M (46 USCA § 953 [Comp. St. § 81464nnn]), for wages of crew of vessel, must be determined from nature of services performed. 2. Seamen 27 (9)-Former masters, acting as caretakers of vessels moored in navigable waters, performing maritime services, were entitled to preferred maritime liens for wages under Ship Mortgage Act; "seaman;" "crew" (Ship Mortgage Act, § 30, subsec. M [46 USCA 953]). Former masters, acting as caretakers of vessels moored in navigable section of Baltimore harbor, performing maritime services of keeping steam up for pumps and winches, keeping vessels pumped out, attending to proper anchorage, etc., were entitled to preferred maritime liens for wages as part of crew of vessel, under Ship Mortgage Act, § 30, subsec. M (46 USCA § 953 [Comp. St. § 81461⁄4nnn]), and were entitled to priority over mortgagees in fund in registry from sale; "crew" being group of seamen belonging to vessel, and "seaman" being one who takes part in practical navigation of vessel, and fact that ship's officers are denied wage liens, being immaterial. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Crew; Seaman.] 3. Seamen 27(9)—Any ambiguity In statute relating to preferred maritime liens must be resolved in favor of seaman (Ship Mortgage Act, § 30, subsec, M [46 USCA § 953]). Any ambiguity in Ship Mortgage Act, § 30, subsec. M (46 USCA § 953 [Comp. St. 8 81464 nnn]), relating to preferred maritime liens for wages of crew of vessel, must be resolved in favor of seamen, since it is a historic maxim of admiralty courts that seamen shall be accorded special consideration and protection. In Admiralty. Libels by the Continental Trust Company against the schooner Herdis, and against the schooner G. A. Kohler and the schooner B. S. Taylor, for foreclosure of mortgages, in which one Hopkins and one Hansen and others intervened. Decree for interveners named for amounts claimed as liens. COLEMAN, District Judge. These two cases raise the same questions and were heard together. The libel of the Continental Trust Company in the case against the schooner Herdis alleges that a mortgage for $40,000 upon the vessel was executed to the libelant by the owners, the Maryland Navigation Company, on April 9, 1924; that it conformed to the requirements of the Ship Mortgage Act of 1920 (46 USCA §§ 911-984 [Comp. St. §§ 81464jjj-81461⁄4t]), and therefore constitutes a "preferred mortgage," as defined by that act. The same facts are alleged as to the schooners G. A. Kohler and B. S. Taylor, except that the mortgage covering both of these vessels was for $42,000, and was executed May 18, 1924. The libels then set out the bankruptcy of the owners, and ask for foreclosure of the mortgages, sale of the vessels, and payment out of the proceeds, etc. A number of intervening libels on account of supplies furnished subsequent to the date of the mortgages were filed. In addition, there was filed against the Herdis a libel by her former master for $446.92, being the portion of agreed wages, at the rate of $160 per month, still unpaid, for services as caretaker from the time the schooner was laid up in Baltimore on April 1, 1926, till it was seized by the marshal on September 2, 1926. A similar libel was filed against the schooner G. A. Kohler, claiming $212.67 for like services by her former master, at the rate of $175 per month. The vessels were sold under the original libels on November 19, 1926, and there was paid into the registry $4,835.98 on account of the Herdis, and $12,428.13 on account of the other two schooners. The mortgages, being admittedly valid, are prior to the subsequent supply liens under the express provisions of section 30, subsection M, of the Ship Mortgage Act (41 Stat. 1004 [46 USCA § 953; Comp. St. § 81464nnn]). In fact, this is conceded by counsel for the supply men. The only material question, then, is whether the wage claimants are entitled to priority over the mortgagees in the fund in the registry. If they are not, obviously nothing remains with which to pay them. The basis of the wage claimants' contention is that their claims are for "wages of the crew of the vessel," giving them a "preferred maritime lien," within the language of section 30, sub Edward Duffy, of Baltimore, Md., for section M, which reads as follows: libelant. John Henry Skeen and Marbury, Gosnell & Williams, all of Baltimore, Md., for claimants. "(a) When used hereinafter in this section, the term 'preferred maritime lien' means (1) a lien arising prior in time to the recording and indorsement of a preferred mortgage |