Certainly Topham gave no value for the property thus conveyed. This, in itself, we think sufficient evidence to justify the finding of the referee as to fraud. In addition, the evidence discloses that Ernst & Ernst, certified accountants, in opening up a set of books for the corporation, with the knowledge and consent of Topham, carried the par value of this corporation promotion stock on its records as good will, $1,100,000. Exceptants cite In re Pipe Line Oil Co. (C. C. A.) 289 F. 698, and Clinton Mining & Mineral Co. v. Jamison, 256 F. 577, 167 C. C. A. 607, as ruling the instant case. We subscribe very fully to the ruling of these cases, but cannot see that they support the contention of exceptants, for the reason that here we have evidence of fraud on facts as they existed when this stock transaction was consummated. We therefore conclude that there was no error in the findings of fact and conclusions of law of the referee as to the bona fides of this stock issue in exchange for property. [2] This leads us next to the discussion of the amount and rate of assessment. The referee found that the allowed and approved claims against the bankrupt estate, with accrued interest, would amount to more than $500,000, and in addition thereto estimated that the cost, expense, disbursements, and attorney's fees of the administration of the estate, together with the cost of collecting percentage. We can see no error in making this computation. By so doing no legal right is taken away from the individual stockholders, who still have the right to contest their individual liability to such assessment, except that they are concluded by the finding in this case as to the administrative necessity of this assessment. The referee has made it plain by his order that it is without prejudice to the individual rights of shareholders to contest their respective individual liability. It is also contended that the referee erred in directing the trustee to bring action in equity in this court to collect these assessments. Counsel for the trustee contends that, inasmuch as this is a Delaware corporation, and an action in equity is authorized in Delaware to collect stock subscriptions and to adjust liabilities between stockholders, such an action is proper here. We have grave doubts that such an action would lie in this case, and therefore conIclude that the trustee should not be limited as to his forum for the recovery of these assessments. We therefore conclude that the order of the referee should be modified to that extent only. An order may be entered accordingly. In re PERELSTINE. 10, 1926.) 1. Bankruptcy ~405. One scheduled as a creditor, who has filed a reclamation petition, not yet determined, is a "party in interest," and may contest bankrupt's discharge. 2. Bankruptcy 413(3). Verification on information of specification of objections to discharge in bankruptcy is sufficient. unpaid stock subscriptions, would amount to (District Court, W. D. Pennsylvania. March $100,000. The referee then ordered the collection of a preliminary assessment against stock of sufficient amount to realize $600,000. The inclusion of this $100,000 for costs and attorney's fees is objected to as being unwarranted by the facts of the case, there being no evidence to warrant such an estimate. The amount to be included in the preliminary assessment for attorney's fees and costs and expenses must necessarily be an estimate. It may be that the amount is high, but the referee bases his estimate on the amount of costs and attorney's fees that have already accrued in the case, and we cannot at this time say that his estimate is wrong. Certainly, if there is an overplus collected beyond that necessary to pay debts and the costs of administering the estate, the shareholder paying will be entitled on final distribution to that overplus. We therefore cannot convict the referee of error in this regard. [3] Exceptants also urge that the referee erred in computing the actual amount of the assessment of shareholders involved in dollars and cents, instead of merely fixing the 3. Bankruptcy 407 (1). Irregularity in proceedings for considering an offer of composition may not be specified as an objection to discharge of bankrupt. In Bankruptcy. In the matter of Morris Samuel Perelstine, trading as the Carter Shoe Company, bankrupt. On motion to dismiss specification of objections to bankrupt's discharge. Motion denied. See, also, 7 F. (2d) 780. Weil, Christy & Weil, of Pittsburgh, Pa., for Selz, Schwab & Co. Maurice Chaitkin, of Pittsburgh, Pa., for bankrupt. 15 F. (2d) 64 SCHOONMAKER, District Judge. We have a motion on the part of the bankrupt to dismiss specification of objections filed by Selz, Schwab & Co., Albert H. Weinbrenner, and the American Seating Company. This motion must prevail as to Albert H. Weinbrenner and the American Seating Company, for, so far as they are concerned, the objections have not been verified. This leaves for our consideration only the sufficiency of the specification filed by Selz, Schwab & Co. [1] The first thing to notice is the question of whether or not the specification sufficiently shows that Selz, Schwab & Co. are entitled, under the statute, to object; that is, whether they are creditors interested in the estate. Selz, Schwab & Co. are listed as a creditor in the bankrupt's schedule. Their specification of objections discloses them to be a creditor and interested in the estate of the bankrupt. The bankrupt contends that, inasmuch as they have not proved their claim, and the time for filing proofs of claim has expired under the statute, they no longer have any interest in the estate, and cannot file specification of objections. The authorities are not in accord on this subject. Some hold that, to object to the discharge, a creditor and party in interest must be one who has a debt provable in bankruptcy, which would be affected by the discharge. In re Chandler, 138 F. 637, 71 C. C. A. 87 (7th Circuit); In re Servis, 140 F. 222 (D. C. Iowa); In re Main, 205 F. 421, 30 Am. Bankr. Rep. 547 (District Court, Iowa). Others hold that parties scheduled as creditors may oppose discharge, even though they have not proven their claims. In re Frice (D. C.) 96 F. 611. Still others hold that a creditor from whom property has been obtained by a materially false statement in writing is entitled to contest the discharge, even though the bankrupt would not be discharged from that particular debt. In re Reed (D. C.) 191 F. 920. A person also has been held to have sufficient interest to entitle him to oppose discharge where his claim is contingent and unliquidated, so as to be incapable of being proved as a debt, Ex parte Traphagen, Fed. Cas. No. 14,140; also, where he held an equitable claim against the estate, he was held to be entitled to file objections, In re Tebbetts, Fed. Cas. No. 13,817; and also where a claim against the estate is being contested, even though the claim has not been proved, In re Belden, Fed. Cas. No. 1,238. The District Court of the United States for the Eastern District of Pennsylvania has also held that one who has a suit pending against a bank15 F. (2d)-5 rupt for the recovery of a debt, which is contested, is a party in interest, and entitled to contest the bankrupt's right to a discharge, although his claim has not been proved in the bankruptcy proceedings. In re Conroy, 134 F. 764. In the instant case, Selz, Schwab & Co. have presented a reclamation petition to claim property in the hands of the trustee, alleging that it was obtained from them fraudulently by the bankrupt; that proceeding, yet undecided, is pending in this court. They, therefore, are a scheduled creditor, and have presented a claim against the estate, even though not in the form of an ordinary proof of claim, and we think are sufficiently interested in the estate to oppose discharge. We can say that they may be permitted hereafter to file a proof of claim, should the reclamation proceeding be decided against them. We therefore hold them to be parties interested in the estate sufficiently to permit them to file specification of objections. [2] The next thing to be noticed with reference to the motion to dismiss is the reference to the form for verification. The bankrupt claims that a specification verified to the best of affiant's information is not sufficient. On that question this objection should be dismissed. Judge McPherson, District Judge in the Eastern District of Pennsylvania, held that such a verification on information of specification of objection is sufficient, and we think properly so. In re Milgraum & Ost (D. C.) 129 F. 827, 12 Am. Bankr. Rep. 306. In the supplement to their specification, Selz, Schwab & Co. have filed an affidavit, as to the items of the specification that come within the particular knowledge of their manager, that such statements therein contained are true, and that, as to the balance of the statements contained in the specification of objections, they are true and correct to the best of his knowledge, information, and belief, and that he expects to prove them on hearing. We think that this is sufficient. Now, as to the specification of the acts done by the bankrupt, namely, the obtaining of property or credit upon materially false statements in writing for the purpose of obtaining property or credit, we think the specification, as amended and supplemented by the creditor objecting, is sufficiently specifie, and is not subject to objection on that ground. [3] As to the second objection offered by Selz, Schwab & Co., i. e., that for the purpose of obtaining the assent of the creditors to the composition, proceedings before the referee were irregular, we do not think that this comes within the objections which may plaintiff. Alexander S. Diven, of Elmira, for de fendant. jury was influenced by sympathy for plaintiff, owing to the severe pain and suffering he endured at the hospital in the efforts of the physicians to save his life. His neck, spine, and shoulder blade were fractured by his fall from the locomotive upon being struck, as he testified, by the stationary car on the crossover. Shortly after arriving at the hospital, he was put in a plaster cast, and later a metallic cast was substituted, extending from the top of his head to his hips; and in the course of the treatment a halter and pulley was at one time used on his head, with a weight attached, to straighten his spine and prevent curvature. It required, no doubt, drastic treatment to save his life. Although his life was spared, his shoulder and right arm were terribly atrophied, and since then the arm has been amputated. There is abundant evidence of other painful injuries, and no one doubted that he suffered severe pain and discomfort during all the time he was under treatment at the hospital-a period of about eight months. His pain and suffering and disfigurement entitle him to adequate compensation in addition to his pecuniary loss. He was a locomotive fireman, 39 years of age, and claimed that he was in line for promotion to locomotive engineer at the time he was injured. His earning capacity was on an average of about $1,700 or $1,800 per annum. At no time in this district has a verdict At Law. Action by Edsall J. Hammond against the Pennsylvania Railroad Company. On motion by defendant for a new trial. Granted, subject to voluntary assent to reduction of verdict. Mortimer L. Sullivan, of Elmira, for anywhere near as large been rendered. It is my judgment, based on verdicts in other cases in this jurisdiction, and also on decisions that have been rendered in the state courts, where the injuries and earning capacity were substantially similar, that the verdict should be pronounced excessive and reduced within proper limits. A case is called to my attention, decided in the Appellate Division, Second Department, in 1918 (Fried v. N. Y. N. H. & H. R. Co., 183 App. Div. 115, 170 N. Y. S. 697), where the recovery, on a second trial, was $85,000, with a loss of both arms at the shoulder and other injuries. On the first trial the recovery was $75,000, which was reduced by the trial judge to $55,000. the trial judge to $55,000. The Appellate Division, in passing upon the second recovery, reduced the damages to $55,000, and considered in doing so, that plaintiff's attorney had a contract for half of the recovery and had himself expended about $12,000, which the court thought might be one reason, in the mind of the jury, for increasing the damages. Plaintiff was foreman of a gang of electric linemen, and it may be inferred HAZEL, District Judge. This action was brought under the federal Employers' Liability Act (Comp. St. §§ 8657-8665) to recover damages for personal injuries sustained owing to defendant's negligence in locating a gondola car on a crossover track in close proximity to a passing engine upor which plaintiff was engaged as fireman, and in consequence of which he was struck by the car as he leaned out of the cab. The verdict of the jury was $77,000. On a previous trial the damages awarded by the jury were $47,000, but the judgment was reversed by the Circuit Court of Appeals because of submission to the jury of a question arising out of a purported settlement between the parties before the action was brought. 7 F. (2d) 1010. On the retrial no testimony in relation to any settlement was tendered. The recovery is so unusually large that I am unable to escape the conclusion that the 15 F. (2d) 67 that his earning capacity equaled that of plaintiff here. Attention is also drawn to Toledo, C. & 0. R. Co. v. Miller, 108 Ohio St. 388, 140 N. E. 617, where a verdict of $75,000 in a negligence case was upheld by the Supreme Court of Ohio, but, on examining the case, it appears that plaintiff was a younger man than plaintiff here, and was engaged in conducting a carnival or show place. His injuries were of a most severe and painful character, and he lost both of his legs in consequence of his injuries. Having in mind these citations, and others cited in briefs of counsel, I think that there should be a reduction in this case from $77,000 to $47,000, the amount of the recovery on the first trial. Unless stipulation is filed by plaintiff reducing the recovery as herein determined within 30 days, there must be a new trial. So ordered. In Bankruptcy. In the matter of Streamer C. Goheen, bankrupt. On exceptions to findings of referee, as special master, on bankrupt's petition for discharge. Exceptions overruled, and discharge granted. with his recommendations in favor of, or against, the discharge of the bankrupt. The specification of objections raises two questions: The first, did the bankrupt obtain money or property on credit through a materially false statement in writing made by him for the purpose of obtaining credit, to the County National Bank? and, second, did the bankrupt unlawfully conceal assets, namely an automobile? The referee found that, although the statement in writing was made to the bank and that statement was incorrect, it was not made with the purpose of obtaining credit from the bank, claiming that the bank officials knew of the bankrupt's financial condition at the time this statement was given, and did not ask it for the purpose of extending credit, but only because the bank was compelled to do so by the bank examiner. The special master found that at that time the bankrupt had reached the financial condition where he could not borrow from any one and that his financial condition was generally known. We are of the opinion that the evidence taken before the special master justified this finding, and that this objection to the discharge must be dismissed. This case, we think, is ruled by those cases which hold that a statement of this character must be materially false, so that a creditor must rely upon it when parting with his property, and if the creditor did not rely upon it, or the debtor did not make the statement for the purpose of obtaining money or property on credit, the discharge would not be barred, no matter how false the statement might be. In re Shaffer, 169 F. 724, District Court of the Northern District of West Virginia; In re Matthews, 272 F. 263 (C. C. A. 7th Cir.); In re Lundberg (C. C. A.) 272 F. 107, 109. As to the second specification of objection, namely, the concealing of assets, an automobile, from the creditors, the referee, as special Jesse C. Long, of Punxsutawney, Pa., for master, found from the evidence that the auCounty Nat. Bank. tomobile in question was purchased by Dr. W. B. Adams, of Punxsutawney, Pa., for Grube, the father of the bankrupt's wife, and bankrupt. SCHOONMAKER, District Judge. This ease now comes before the court on exceptions to the findings of William T. Darr, referee in bankruptcy, as special master, to take the testimony and make report thereof to the court, and of his findings of fact, together given to her; it did not belong to the bankrupt, and under those circumstances there was no concealment of assets. The referee, as special master, therefore recommended that the bankrupt be discharged. We dismiss the exceptions to the special master's report, and concur with his findings. An order may be entered accordingly. In re COTTAGE BAKERIES CO. ty, and, unless the sale comes within the pre (District Court, W. D. Pennsylvania. April, cise terms of the Pennsylvania act, the con 1926.) No. 11933. Bankruptcy 140(1)-Oven sold to bankrupt held not within statute as to conditional sales of chattels to be attached to realty, and sale void as to creditors and bankruptcy trus tee (Pa. St. Supp. 1924, §§ 19734al-19734a13; U. S. Comp. St. § 9631). In absence of evidence that an oven conditionally sold to bankrupt bakery company was or was to be attached to realty, Act Pa. May 1, 1923 (P. L. 117; Pa. St. Supp. 1924, 88 19734a1-19734a13), relating to conditional sale of chattels "attached or to be attached to realty," does not apply, and under Pennsylvania law and bankruptcy Act, § 47a, as amended by Act Cong. June 25, 1910, § 8 (U. S. Comp. St. § 9631), the condition is void as to creditors and as against bankrupt's trustee. ditional sale was void as against the creditors of the bankrupt under the Pennsylvania law, and therefore void as against the bankrupt's trustee, under section 47a2 of the Bankruptcy Act, as amended in 1910 (Comp. St. § 9631). In re Hartdagen (D. C.) 189 F. 546. We had almost precisely the same situation in this court at No. 11794, in Bankruptcy, In re Dennis Banos, Bankrupt, 8 F. (2d) 95, involving a soda water fountain, and we there held that the act did not apply. We therefore can but conclude in the instant case that the petitioner is but a general creditor, and not entitled to the relief prayed for. His petition for special relief must be denied, but without prejudice to his rights to claim as a general creditor. An order may be entered accordingly. MILLER v. SNOOK, Warden. Conrad & FlaHavhan, of Pittsburgh, Pa., (District Court, N. D. Georgia. October 26, for receiver. Chas. P. Walter and McVicar, Hazlett, Gardner & Gammon, all of Pittsburgh, Pa., for Middleby Oven Co. SCHOONMAKER, District Judge. The Middleby Oven Company has filed a petition asking for an order upon the receiver in this case to pay to the petitioner $364.38, the balance alleged to be due the petitioner on the purchase price of an oven sold to bankrupt on a conditional sale contract dated October 9, 1923. The personal property of the bankrupt, including the oven, was sold by the receiver at public auction for a lump sum, and the receiver now has in his hands the proceeds of this sale. There is nothing to indicate the portion of the purchase price that could be allotted to this oven. The receiver has answered this petition, denying the right of the petitioner to the relief prayed for. The question involved is: Does the conditional sales contract set out in the petition come within the provisions of the Pennsylvania Act of May 1, 1923 (P. L. 117; Pa. St. Supp. 1924, §§ 19734a1-19734a13) Turning to that act, we find that it is entitled: "An act concerning conditional sales of chattels attached or to be attached to realty, and regulating the recording and effect thereof; and providing remedies, and penalties." There are no facts alleged in this petition to bring this case within the act. There is no allegation and there is no proof that this oven was attached or was to be attached to the real Criminal law 1926.) No. 96. 996(2). Court cannot reduce sentence, even during term at which it was imposed, after commitment to penitentiary has issued, and marshal suffered to depart with prisoner and commitment; no effort to stop prisoner's surrender to penitentiary, which followed, being made. Habeas Corpus. Proceeding by George E. Miller against John W. Snook, Warden. Remand ordered. Frank A. Doughman, of Atlanta, Ga., for applicant. Clint W. Hager, U. S. Atty., and John W. Henley, Asst. U. S. Atty., both of Atlanta, Ga., for respondent. SIBLEY, District Judge. The applicant, Miller, was sentenced in Pennsylvania to a term of 18 months' imprisonment in the Atlanta penitentiary on October 13, 1925, the sentence to run from its date. The sentence was duly recorded and the prisoner committed to jail to await transportation to the penitentiary. On October 26th, though the record is somewhat confused, I conclude that an additional commitment was issued to the penitentiary, with a certified copy of the sentence annexed, and the marshal was preparing to convey the applicant to the penitentiary. The judge, on the afternoon of that day, informed prisoner's counsel that he would the next morning sign an or |