The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918. Page: 1,011
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UNITED STATES V. BRAINERD
distinction between yachts and any other property capable of use only
as means of recreation or pleasure. Nobody has any hesitation about
such as are consumable, like wines, or flowers, or perfumes, or tobacco.
It would be a fatuous defense against an action for injuries to such as
these to prove that the owner would certainly have consumed them
himself. Furthermore, if the defendant had wrongfully destroyed a
yacht or motorcar, he would be hardier than most, were he to offer
to show that the owner was bound not to sell or to let it. Yet surely
there can be no distinction, at least it would seem so, between the loss
of a part of the recreation derivable from such property and the loss
of the whole. All of them in the end are consumable, and the differ-
ence is only in the extent of the loss.
But it is urged that the contrary is established in The Conqueror,
166 U. S. 110, 17 Sup. Ct. 510, 41 L. Ed. 937. I must concede that
some of the language in that case, broken from its context, lends
itself to that conclusion, but the decision involved nothing of the kind.
It turned upon the dubiousness of the proof of value of the yacht.
Doubtless that is a necessary condition of damages, here as elsewhere.
We are all accustomed to the purchase and sale of pleasures and recre-
ation, whether they be embodied in the use of things, hke this, or in
entertainment, like the stage. They have an exchange value, like the
uses of any other parts of the appropriable world, which answer our
native dispositions. The test is, as m every other case, their value
in exchange; for the purpose of the recovery is to effect the result of
an exchange. I see no reason to think that, if the exchange value of
the yacht's use in The Conqueror, supra, had been established in the
customary way, the libelant would have had further difficulty in his re-
 The award may also include the cost of finding the crew during
the detention; this being a burden upon any putative charterer, and
not included in the hire. The libelant was not obliged to dismiss his
crew in minimization of his damages.
UNITED STATES v. BRAINERD et al.
(District Court, E. D. Oklahoma. February 6, 1918.)
Nos. 2703-2705, 2710.
1. BANKRUPTCY e20-REFEREE'B ILLEGAL COLLECTION OF FEES-RECOVERY
BY UNITED STATES.
In view of the condition in referee's bonds, and the fact that fees and
compensation go to a referee as an individual, the United States cannot,
despite Act July 1, 1916, c. 209, providing for investigation of the ac-
counts of referees, etc., recover from referees in bankruptcy, for the
benefit of private litigants sums allowed and retained out of estates in
excess of amounts provided for by the Bankruptcy Act.
2. BANKRUPTCY 0=o223-ALLOWANCE TO REFEREE--OLLATERAL ATTACK-"JU-
As an order allowing fees and compensation to a referee is a "Judicial
order," and as the Bankruptcy Act provides for review of the same, such
4mFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
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The Federal Reporter with Key-Number Annotations, Volume 250: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, August-October, 1918., legislative document, 1918; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38821/m1/1026/: accessed April 27, 2018), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.