578 CASTNER V.
}'EDERAL REPORTER·. " MAGONE. CoNANT and others .". SAME. 'lJ.
SAME.
AVIS and others
(Oircuit Oourt, S. D. New York. November 7, 1887.) 1. CUSTOMS DUTIES-AcTION TO RECOVER-BILL OF PARTICULARS-SERVICE OF.
Where plaintiff in an action to recover, from a collector of customs, duties alleged to been illegally exacted, fails to serve a bill of particulan within 80 days after defendant's appearance, as required by section 8012, Rev. St., judgment of non pros. must be entered against him.
2.
BAME.
The court has no power to grant an application by plaintiff for leave to serve a bill of particulars nunc pro tunc after the expiration of 80 days from defendant's appearance. Section 8012, Rev. St.,is mandatory, not directory, in its provisions. Pott v. ArthWf', 15 Blatchf. 814, modified and distinguished.
8.
These three cases were suits against a collector of customs for the recovery of. duties paid in excess, Defendant appeared by attorney on August 17, 1887. Plaintiffs procured from defendant's attorney extensions oftim.e to ,serve their Gomplaints, which were served on September 30, 1887. The bills of particulars were annexed to the copies of the complaints so served. Defendant moved for judgments of '¥Ion pro8., un- . der section 3012, Rev. St. . Stephtm. A. Walker, U.S. Atty., and W. Wickham Smith, Asst. U. S. , Atty., for the motion. AlexanderP. Ketchum, contra. LACOMBE, J. In these three {lases motion is made by the defendant for judgment of non pr08. against the plaintiffs, under section 3012, Rev. St. This motion is based upon an affidavit showing that the action is ot1ne to recover from the defendant alleged to have been erroneo\:l.sly or illegally exacted by him as collector of customs. at the port of New York; .that the defendant duly appeared by attorney oil the seventeenthof August, 1887, by the service upon the attorney for the plaintiffs on said dlLte of a notice of appearance; arid that no bill of particulars, as required by section 3012, Rev. St. U. S., has ever been served, although the 30 days limited by the said section has long since expired. In opposition to defendant's motion, plaintiff in each case submits an affidavit by which the following facts appear: The 30-days limit by the section above cited was the sixteenth day of September, 1887, and on that day application was made for an extension of time to serve the complaint; plaintiff's attorney supposing that his clerk had, in accordance with instructions, obtained at the same time an extension of time for the service of the bill of particulars. On the thirtieth of September, 1887, and within the time covered by such extension, plaintiff served a copy of the complaint, to which was annexed a bill of particulars. Upon the argument of the motion in open court, the plaintiff's attorney applied for leave to serve a bill of particulars nuncproWilnc.
WARREN· v. BURNHAM.
579
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.,
fl.
BURNHAM.
(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.
4.
COSTS-PARTNERSIIIP-AcCOUNTING.
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-
