IN BE BLUMER.

4:89

In re W. H.

BLUMER

& Co., Bankrupts.*

(Di8trict Oourt, E. D. Penn8ylfJania. May 3,1882.
J.

AND SEPARATE ASSETS-COSTS.

Where the members of a firm are adjudicated batikt'upts,'the' costs of the proceeding must, under section 36 of the bankrupt act, (1l6ction 5121, Rev. 8t.·) be afte!. apportioned pro rata between the partnership deducting the portion of the costs chargeable tothep'llrtuership there is any balance of Pllitnership assets, however small, tile creditors will not beeutitled to share pare PM8U with the separll.te'd.etlitb1'&in'the ·dis'tribq. tion of the separate estates.
2. SAME. . .

Semble, that if there are partnership assets the the assignee, in a costs larger than the amount of such assets, vain attempt to realize more, will not entitle the partnetlJhip Creditors to share.with the separate Creditors in the distribution of the separate estates.

This ease came hefore upon the report of' the as to the assets to and the costs chargeable against.'tbe joint and separate estates oftha bankrupts respectively.. His repott showed the following fa(Jts : .. .' .
William H. Blumer, Jesse M. Line, and William ani trading as William .R.. Blumer & Co., were adjudicated bank:rup'ts.. amounts realized from the respective estates were as follows: · $ 3,438 51 From tbe partnersbip estate, ., separate estate of W. H. Blumer, 15,122 44 51,951 14 " J . M. Line, · " .. 23,32732 " " ., W. Kern, · · All of the estates were insolvent. The partnership creditors claimed that against the $3,438.51 realized from the partnership assetssbould be set off the following amounts: Costs of clerk, marshal, register, assignee, etc., in the bankruptcy proceedings, . · $4,777 06 Costs of proofs of debt against the joint estate, 1,358 00 JUdgment in favor of the United States against the partnersbip, 796 31 entitled to priority of payment, ·
'6,931.37

As this would more than exhaust the partnership estate, they claimed that the case was to be treated as if there were no partnership assets, and that they should share in the separate estates pari passu with the separate creditors. This claim was resisted by the latter. It appeared that the large amount of tbe costs was owing to the fact that various circumstances-including, especially, the imperfect condition ot the bankrnpts' books-rendered necessary a protracted examination for the purpose of obtaining information with
.Reported b1 Frank P. Prlehatd, Esq., of the Philadelphia bar.

490

REPORTER.

regard to the condition of the bankrupts' affairs; and that, although this examination did not result in any increase of the assets, yet it was, in the opinion of the register, and proper. .It also appeared that the only portion of the costs, :could .be specifically charged to t):le realization of assets was the assignee's commission, viz., $49.68. the

W. D. Lucken/Jachand T. B. Metzger, for assignee. John D. Stilel(, Edward Harvey, R. E. Wrigkt,Jr.,P. K. Erdman, R. O. McMU1'trie, and John Bupp, for creditors. BUTLER, D. J. lmportantquestions discijssed by counsel, (react:) may be passed, specting the e:l,fectof section 36 of the in this case. Where, joint and separate assets are realized, and may be distributed to creditors oftllerespective estates,' it! carinot, of' course, be doubted that the rule of "joint to joint, and separate to separate," this case joint as well 8S separate assets were realized. applies. More than $3,000, the cost ofr,ealization, received ,by the assignee. A part of this we think might hav:e'been distribut!ed to creditors. If it had been, or the accoun.t hafi"been closed with the Bunt in hand; it 'is not pretended that the joint' 'creditors could' in the separate estates. Can it be that an of the money in a. vain (tllongh obtain more, changes the rule of distribution? ' Such a view:woil14 seem unreasonable; and especially so in this case, where the J!loney was expended in a fruitless effort to transfer to them the exclusive enjoyment of the very property now in controversy. Although defeated in this, the money was very profitably spent,for the joint creditors, if by such expenditure they have acqtiired a right to'share this property. We donot think, however,they have. But if this were otherwise the provision respecting costs and e-x:penses, contained in the section, (36,) when applied here, leaves a siniilar balaneeof jointestRte.The required to "keep separate accounts of the joint stock or property of the copartnership, and of the sepal'ate estate of each member t.hereof, and after deducting from the whole amount received by the assignee, the whole amount of expenses and disbursements, the net proceeds of the joint estate shall be apportioned to pay the creditors of the copartnership,. and the net proceeds of the separate estate of each partner sMll be appropriated to pay his 'separate .creditors." This requires an ta.inrpent of the, net proceeds. of each estate, ,by means of ;thededlWtion <specified,-in other ',words, by appontionmg the entire costs to only method whereby provisthe respective estates pr()

In

· GARDNER V. HERZ.

&91

ion can be carried ont: Smith·.v. Smith,13N. B. R. 500. In II majority of cases such apportionment of costs is just and equitable. When applied here, as befole remarked, a considerable balance of joint estate is left for distribution. That the percentage to creditors may be inconsiderable is unimportant. The register will therefore deduct the costs and expenses as herein indicated, distributing the balance of joint assets to joint creditors, and of separate assets to separate creditors. It is proper to say that circuit Judge McKENNAN, who sat with the district judge, concurs in this opinion.

GARDNER

and others v.

HERZ

and another·.

June 27, 1882.)

(Circuit Oourt, S. D. Ne'IJJ York.

PATENTS FOR INVENTlONS-RErSllUE":':'WAl'lT OF NOVELTY.

Where the form ,of a chair seat was old, the material used old, and the method of imparting the form to the material was old, the reillSue was Of any patentable novelty. .

Gifford et Gifford, for complainants. Foster; Wentworth et Foster, for defendants.
WALLACE, C. J. This action is,brought to restrain the infringement of reissued letters patent No. 9,094, dated February 24, 1880, granted to the assignees of George Gardaer for an inprovement in chair seats.' The reissue contains two claims, of which the second only need .be stated'. which is: "A chair seat made of laminm of wood glued together, with the grains in one layer 'crqssing those of the next. concave on the upper surface, convex on the'lower surface, and perforated, as a new article of manufacture, substantially as set forth." The original patent was granted to Gardner May 21, 1872, and contained but a single claim, as follows: ",As a new article of manufacture, a chair seat constructed of veneers of wood, with the grain running crosswise of each other and glued together, all substantially as set forth, and for the purpose specified." This patent has been twice reissued, the first reissue bearing date July 4, The first reissue has been before this court upon a motion fora preliminary injunction founded upon it, and it was decided by'Judge Blatchford upon that occllo!liQJ:1 that none of the claims oftha.t reissue were.