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Northwestern University School of Law 



National Reporter System. United States Séries. 

THE 

FEDERAL REPORTER. 

VOLUME 129 



CASES ARGUED AND UETERMINED 

IN THE 

CIRCUIT COURTS OF APPEALS AND CIRCUIT 

AND DISTRICT COURTS OF THE 

UNITED STATES. 

PERMANENT EDITION, 

JUKE— JULY, 1904. 



ST. PAUL: 
WEST PUBLISHING CO. 

1904. 



COPYEIGHT, 1904> 
BT 

WEST PUBLISHING COMPANY. 



FEDERAL REPORTER, VOLUME 129. 

JUDGES 

OF THE 

UNITED STATES CIRCUIT COURTS OF APPEALS AND THE 
CIRCUIT AND DISTRICT COURTS. 



FIRST CIRCUIT. 

Hon. OLIVER WENDELL HOLKBS, Circuit Justice Washington, D. C. 

Hon. LE BARON B. COLT, Circuit Judge Bristol, R. 1. 

Hon. WILLIAM L. PUTNAM, Circuit Judge ...Portland, M8. 

Hon. CLARENCE HALB, District Judge, Maine Portland, Me. 

Hon. EDGAR ALDRICH, District Judge, New Hampsliire Llttletcn, N. H. 

Hon. FRANCIS C. LOWELL, District Judge, Massacliusetts Boston, Mass. 

Hon. ARTHUR L. BROWN, District Judge, Rliode Island Providence, R. I. 



SECOND CIRCUIT. 

Hon. RUPUS W. PECKHAM, Circuit Justice Washington, D. C. 

Hon. WILLIAM J. WALLACE, Circuit Judge Aibany, N. Y. 

Hon. B. HENRY LACOMBB, Circuit Judge New York, N. Y. 

Hon. WILLIAM K. TOWNSEND, Circuit Judga New Haven, Conn. 

Hon. ALFRED C. COXE, Circuit Judge Utica, N. Y. 

Hon. GEORGE C. HOLT, District Judge, S. D. New Yorli New York,' N. Y. 

Hon. JAMES P. PLATT, District Judge, Connecticut Harttord, Conn. 

Hon. GEORGE W. RAY, District Judge, N. D. New York Norwlch, N. Y. 

Hon. GEORGE B. ADAMS, District Judge, S. D. New York New York, N. Y. 

Hon. EDWARD B. THOMAS, District Judge, E. D. New York.... 29 Liberty St.. New York. 

Hon. HOYT H. WHEELER. District Judge, Vermont Brattleboro, Vt. 

HOB. JOHN R. HAZEL, District Judge, W. D. New York Buffalo, N. T. 



THIRD CIRCUIT. 



Hon. HENRY B. BROWN, Circuit Justice Washington, D, a 

Hon. MARCUS W. ACHESON, Circuit Judge Pittsburgh, Pa. 

Hon. GEORGE M. DALLAS, Circuit Judge Phlladelphla, Pa. 

Hon. GEORGE GRAY, Circuit Judge Wilmlngton, Del. 

Hon, EDWARD G. BRADFORD. District Judge, Delaware Wilmlngton, Del. 

Hon. ANDREW KIRKPATRICK, District Judge, New Jersey» Newark, N. J. 

Hon. WILUAM M. LANNINQ, District Judge. New Jersey» Trenton, N. J. 

> Died May 3, 1904. 

' Appolnted May 3, 1904, to succeed Klrkpatrick, District Judge. 

129 F. (v) 



Vi , 129 FEDERAL IlErOIlXKK. 

Hon. JOHN B. McPHBRSON, District Juflse, B. D, PennsylïanSa Philadclpliia, Pa. 

Hou. J. B. HOUjAND, District Juflge, H. D. Pennsylvania • Philadelphia, Pa. 

Hon. ROBERT WODROW ARCHBALD, District Judge, M. D. Pennsylvanla..Soraiiton, Pa. 
Hon. JOSEPH BUFFINGTON, District Judge, W. D. Pennsylvanla Plttsburgh, Pa. 

FOURTH CIRCUIT. 

Hon. MELVILLB W. FULLER, Circuit Justice Washington, D. 0. 

Hon. NATHAN GOFF, Circuit Judge Clarksburg, W. Va. 

Hon. CHARLES H. SIMONTON, Circuit Judge» Charleston, S. C. 

Hon. JETER C. PRITCHARD. Circuit Judge».... , S. C. 

Hon. THOMAS J. MORRIS, District Judge, Maryland Baltimore, Md. 

Hon. THOMAS R. PURNELL, District Judge, B. D. North Carolina Raleigh, N. C. 

Hon. JAMES E. BOYD, District Judge, W. D. North Carolina Greensboro, N. C. 

Hon. ■WILLIAM H. BRAWLEY, District Judge, E. and W. D. South Car. .Charleston, S. 0. 

Hon. EDMUND WADDILL, Jr., District Judge, E. D. Virginia Richmond, Va. 

Hon. HENRY CLAY McDOWELL, District Judge, W. D. Virginia Lynchburg, Va. 

Hon. JOHN J. JACKSON, District Judge, N. D. West Virginia Parkersburg, W. Va. 

Hon. BENJAMIN F. KELLER, District Judge, S. D. West Virginia Branwell, W. Va. 

FIFTH CIRCUIT. 

Hon. EDWARD D. WHITE, Circuit Justice Washington, D. 0. 

Hon. DON A. PARDEE, Circuit Judge Atlanta, Ga. 

Hon. A. P. McCORMICK, Circuit Judge Dallas, Tex. 

Hon. DAVID D. SHBLBY, Circuit Judge Huntsvlile, Ala. 

Hon. THOMAS GOODB JONES, District Judge, I*. and N. D. Aiabama...Montgoniery, Ala. 

Hon. HARRY T. TOULMIN, District Judge, S. D. Aiabama Mobile, Ala. 

Hon. CHARLES SWAYNB, District Judge, N. D. Fiorida Pensacola, Fia. 

Hon. JAMES W. LOCKE, District Judge, S. D. Fiorida Jacksonville, Fia. 

Hon. WILLIAM T. NBWMAN. District Judge, N. D. Georgia Atlanta, Ga. 

Hon. EMORY SPEER, District Judge, S. D. Georgia Maçon, Ga. 

Hon. CHARLES PARLANGE, District Judge, E. D. Louisiana New Orléans, La. 

Hon. ALECK BOARMAN, District Judge, W. D. Louisiana Shreveport, La. 

Hon. HENRY C. NILÉS, District Judge, Ni and S. D. Mississippi Kosclusko, Misa. 

Hon. DAVID E. BRYANT, District Judge, B. D. Texas Sherman, Tex. 

Hon. EDWARD R. MEEK, District Judge, N. D. Texas Ft. Worth, Tex. 

Hon. THOMAS S. MAXEY, District Judge. W. D. Texas ....Austln, Tex. 

Hon. WALLER T. BURNS, District Judge, S. D. Texas Houston, Tex. 



SIXTH CIRCUIT. 



Hon. JOHN M. HARLAN, Circuit Justice Washington, D. a 

Hon. HBNRY F. SBVERENS, Circuit Judge Kalamazoo, Mich. 

Hon. HORACE H. LURTON, Circuit Judge Nàshville, Tenn. 

Hon. JOHN K. RICHARDS, Circuit Judge Ironton, Ohio. 

Hon, ANDREW M. J. COCHRAN, District Judge, E. D. Kentucky Covington, Ky. 

Hon. WALTER EVANS, District Judge, W. D. Kentucky Louisviile, Ky. 

Hon. HENRY H. SWAN, District Judge, B. D. Michigan Détroit, Mich. 

Hon. GEORGE P. WANTY, District Judge, W. D. Michigan Grand Rapids, Mich. 

Hon. AUGUSTXJS J. RICKS, District Judge, N. D. Ohio Cleveland, Ohio. 

Hon. FRANCIS J. WING, District Judge, N. D. Ohio Cleveland, Ohio. 

Hon. ALBERT C. THOMPSON, District Judge, S. D. Ohio Cincinnati, Ohio. 

Hon. CHARLES D. CLARK, District Judge, E. and M. D. Tennessee Ohattanooga, Tenn. 

Hon. ELI S. HAMMOND, District Judge, W. D. Tennessee Memphia, Tenn. 

• Appolnted in accordance wlth an act ol Congress provlding for an additional District 
Judge for thls District. 

• Died Aprii 25, 1904. 

• Appointed to succeed Simonton, Circuit Judgo. 



JUDQE3 OB' THE COURTS. Vil 



SEVENTH CIRCUIT. 



Hon. WILLIAM R. DAT, Circuit Justice , 'Washington, D. C. 

Hon. JAMES G. JENKINS, Circuit Judge Mllwaukee, Wls. 

Hon. PETER S. GROSSGUP, Circuit Judge Chicago, lU. 

Hon. FRANCIS E. BAKER, Circuit Judge Indianapolls, Ind. 

Hon. CHRISTIAN C. KOHLSAAT, District Judge, N. D. Illinois Chicago, III. 

Hon. ALBERT B. ANDERSON, District Judge, Indiana Indianapolls, Ind. 

Hon. J. OTIS HUMPHREY, District Judge, S. D. Illinois Springfleld, 111. 

Hon. WILLIAM H. SEAMAN, District Judge, B. D. Wisconstn Sheboygan, Wls. 

Hon. EOMANZO BUNN, District Judge, W. D. Wisoonsin Madison, Wls. 



EIGHTH CIRCUIT. 



Hon. DAVID J. BREWBR, Circuit Justice Washington, D. C. 

Hon. WALTBR H. SANBORN, Circuit Judge St Paul, Mlnn. 

Hon. AMOS M. THAYER, Circuit Judge St. Louis, Mo. 

Hon. WILLIS VAN DEVANTER, Circuit Judge Cheyenne, Wyo, 

Hon. WILLIAM C. HOOK, Circuit Judge Leavenworth, Kan 

Hon. JACOB TRIEBBR, District Judge, E. D. Arkans.is Little Rock, Ark. 

Hon. JOHN H. ROGBRS, District Judge, W. D. Arkansas Ft. Smith, Ark. 

Hon. MOSES HALLETT, District Judge, Colorado Denver, Colo. 

Hon. SMITH McPHERSON, District Judge, S. D. lowa Red Oak, lowa. 

Hon. HENRY THOMAS REBD, District Judge, N. D. lowa Cresco, lowa, 

Hon. JOHN C. POLLOCK, District Judge, Kansas Topeka, Kan. 

Hon. WM. LOCHREN, District Judge, Minnesota Minneapolis, Minn. 

Hon. PAGE MORRIS, District Judge, Minnesota Duluth, Mlnn. 

Hon. ELMER B. ADAMS, District Judge, E. D. Missouri St. Louis, Mo. 

Hou. JOHN F. PHILIPS, District Judge, W. D. Missouri Kansas City, Mo. 

Hon. W. H. MUNGBR, District Judge, Nebraska Omaha, Neb. 

Hon. CHARLES F. AMIDON, District Judge, North Dakota Fargo, N. D. 

Hon. JOHN B. CARLAND, District Judge, South Dakota Sioux Falls, S. D. 

Hon. JOHN A. MARSHALL, District Judge, Utah Sait Lake City, Utah. 

Hon. JOHN A. RINBR, District Judge, Wyomlng Cheyenne, Wyo. 



NINTH CIRCUIT. 



Hon. JOSEPH McKBNNA, Circuit Justice Washington, D. C. 

Hon. WM. W. MORROW, Circuit Judge San Francisco, Cal. 

Hon. WILLIAM B. GILBERT, Circuit Judge Portiand, Or. 

Hon. EESKINB M. ROSS, Circuit Judge Los Angeles, Cal. 

Hon. JOHN J. DE HAVEN, District Judge, N. D. Calilornia San Francisco, Cal. 

Hon. OLIN WBLLBORN, District Judge, S. D. Calitornia Los Angeles, Cal. 

Hon. V/ILLIAM H. HUNT, District Judge, Montana» , Mont. 

Hon. CORNELIUS H. HANFORD, District Judge, Washington Seattle, Wash. 

Hon. THOMAS P. HAWLEY, District Judge, Nevada Carson City, Ney. 

Hon. CHARLES B. BBLLINGER, District Judge, Oregon Portiand, Or. 

Hon. JAMES H. BEATTY, District Judge, Idaho Boise City, Idaho. 

• Appointed April 19, 1904, to succeed Knowles, District Judge. 



CASES REPORTED. 



Page 

Abner, Finley v. (C. C. A.) 734 

Adiims Exp. Oo., Jones v. (0. C.) 618 

Adler, In re (D. C.) 502 

/Etna Ins. Co., Lewis v. (O. C. A.) 100t> 

Alden Speare's Sons Co. v. Hubiuger (C. 

G. A.) 538 

Alexis V. United States (0. O. A.) 60 

Allen, The ïïditli L. (C. O. A.) 209 

Allendorf, In re (D. C.) 981 

Allen-West Commission Co. v. Grumbles 

(C. C. A.) 287 

American Bridge Co. v. Peden (C. O. A.). .1004 
American Car & Foundry Co., Morton 

Trust Co. V. (O. C. A.) 91C 

iVmerican Cent Life Ins. Co., Riggs v. (C. 

G. A.) 207 

American Chocolaté Machinery Co. v. 

Helmstetter (C. C.) 919 

American Cotton Co., Rembert Roller Oom- 

press Co. V. (0. C. A._) 355 

American Sales Book Co. v. Carter-Orume 

Co. (C. 0. A.) 1004 

American Sheet Steel Co., Cecil v. (C. C. 

A.) 542 

American Spirits Mfg. Co. v. Easton (C. C. 

A.) 1004 

American S. S. Co. v. American Steel 

Barge Co. (C. 0. A.) 65 

American Steel Barge Co., American S. S. 

Co. V. (C. C. A.)... 65 

American Surety Ce, Campbell & Zell Co. 

V. (C. O.) 491 

American Tin Plate Co., Chambers v. (C. 

C. A.) 561 

Animarinm Co., Mahler v. (C. C. A.) 897 

Anson M. Bangs, The (0. C. A.) 103 

.Vnthony v. Burrow (0. 0.) 783 

Vrrighi, Denver & R. G. R. Oo. v. (C. C. A.) 347 
.\tchison, T. & S. F. R. Co., Empire State 

Cattle Co. V. (C. C.) 480 

Atchison, T. & S. F. R. Co., Minnesota & 

D. Cattle Co. v. (0. C.) 480 

Atchison, T. & S. F. R. Co., Sawyer v. 

(C. C. A.) 100 

Atlantic Coast Line R. Co., Wilson v. (C. 
C.) 774 

Bacon, Lake Steam Shipping Co. v. (D. C.) 819 

Bailey, Hibberd t. (0. O. A.) 575 

Balliet v. United States (C. C. A.) 689 

Baltimore & O. R. Ce, Robinson v. (C. C. 

A.) 753 

Banga, The Anson M. (0. C. A.) 103 

Barber v. National Carbon Co. (C. C. A.) 370 

Beckett, Dugan v. (C. C. Ai) 56 

Belknap, In re (D. C.) '. 646 

Bilby, Carey v., two cases (C. C. A.) 2Û3 

Bilfinger, Georgia Pine Turpentine Co. v. 

(C. C.) 131 



129 F. 



(ix) 



Page 
Bird V. Terry (0. C.) 472 

Bird, Terry v. (C. C. A.) 592 

Black Hills & N. W. R. Co. v. Tacoma 

Mill Co. (C. C. A.) 312 

Bogen & Trummel v. Protter (C. C. A.).. 533 
Boston Herald Co., O'Connell v. (C. C.)... 839 

Brake v. Callison (G. O. A.) 201 

Brake, Callison v. (C. C. A.) 190 

Breiner, In re (D. C.) 155 

Brennan v. United States (C. G.) 837 

Brill V. Peokham Mfg. Co. (O. C.) 139 

Bristol V. United States (C. C. A.) 87 

Brought V. Cherokee Nation (C. 0. A.) 192 

Brown, Lanyon Zinc Co. v. (C. 0. A.) . . . 912 
Brown, Western Tie & Timber Co. v. (C. 

O A "ï 728 

Bry ce V. Soùftern 'b. ' Co! ' ("6." C.) '. '. '. '. '. '. '. 966 
Buchanan & Co., Perkins Electric Switch 

Mfg. Co. V. (C. 0.) 134 

Buckingham, The (D. C.) 975 

Buck Mfg. Ce, Paulus v. (G. G. A.) 594 

Bullock Electric & Mfg. Co. v. Westing- 

house Electric & Mfg. Co. (G. G. A.) 105 

Bunker UiU & Sullivan Mining & Concen- 

trating Co., Empire State-ldaho Mining 

& Developing Co. v., two cases (C. 0. A.). .1005 

Burrow, Anthony v. (C. O.) 783 

Busk Tunnel R. Co., Daly v. (G. C. A.). .. 513 
Butte & B. Consol. Min. Co., Heinze v. 

(C. C. A.) 274 

Butte & B. Gonsol. Min. Co., Heinze v. 

(C. C. A.) 337 

Callison v. Brake (C. C. A.) 196 

Callison, Brake v. (O. C. A,) 201 

Camdeu Interstate B. Co. v. Catlettsburg 

(C. C.) 421 

Camdeu Ironworks, Midvale Steel Co. v. 

(C. C.) 246 

Camp V. Peacock, Hunt & West Go. (0. 

C. A.) 1005 

Campbell & Zell Co. v. American Surety 

Co. (C. C.) 491 

Canadian Pac. R. Co., Elliott v. (G. G.).. 163 

Capital City, The (D. C.) 402 

Carey v. Bilby, two cases (C. 0. A.) 203 

Carter-Grume Co., American Sales Book 

Co. V. (0. C. A.) 1004 

Cary Bros. & Hannon v. Morrison (C. C. 

A.) 177 

Catlettsburg, Camden Interstate R. Co. v. 

(C. C.) 421 

Gecil V. American Sheet Steel Co. (C. C. 

A.) 542 

G. E. Riley & Co. v. Milieu Cotton Mills 

(G. G.) 141 

Chambers v. American Tin Plate Co. (0. 

C. A.) 561 

Chase, Hoadley y. (0. 0. A.) 1005 



129 FEDERAL REPORTER. 



Cherokee Nation, Brought v. (C. C. A.)... 192 
Oherokee Nation, Hargrove v. (C. C. A.) . . 186 
Ohesapeake & D. Canal Co., Giing v. (0. 

0.) 996 

Clieung Him Nim t. United States (C. C. 

A.) 5S5 

Chew Hing v. United States (C. C. A.).. 585 
Ohicaso Lumber & Timber Ce, Wilson v. 

(C. C.) 636 

Chicago, M. & St. P. R. Co. v. Voelker 

(C. C. A.) 522 

Chin Chew Fong v. United States (C. C. 

j^\ ^ ^ 585 

Chisho'lm,'The' Màry'F.'(D; 0.')'.'.".'."'.*.'.". 814 
Christensen Engineering Co. v. Westing- 

house Air Brake Co. (O. O. A.) 96 

Cliristie-Street Commission Co. v. United 

States (C. C.) 506 

Chubb, Norwicli & N. Y. Transp. Co. v. 

(C. O. A.) 1006 

Circuit Court of United States, Southern 

Uist. of lowa, United States v. (0. O. A.) 897 
City of Mobile t. Sullivan Timber Co. 

(C. C. A.) 298 

Clark V. KansVV City,' Ft.'s. &'m.' R.'Co. 

(C.C. A.) 341 

Clark V. Pidcock (0. C. A.) 745 

Clark, Lewis v. (0. C. A.) 570 

Clark, United States v. (C. 0.) 241 

Collier, Lopez v. (C. C. A.) 104 

Comptograph Co. v. Meclianical Account- 

ant Co. (C. C.) 394 

Cougdon, In re (D. C.) 478 

Oonnors, Mason v. (0. O.) 831 

Oottrell & Son v. Smokeless Fuel Co. (C. 

C.) 174 

Courier-Citizen Co., O'Conuell v. (C. C.) . . 839 

Covington. First Nat. Bank v. (C. C.) 792 

Crawford v. Eidman (C. C). 092 

Cunningham, United States v. (D. 0.) 833 

Daly V. Busk Tunnel E. Co. (C. C. A.) . . 513 

Dann, In re (D. C.) 495 

Dauntless, The (C. C. A.) 715 

Davis V. Kansas & T. Coal Co. (C. C.)... 149 
Denver & R. G. R. Co. v. Arrighi (C. C. 

A.) 347 

Desmond, Peyton v. (C. C. A.) 1 

Deutschland, The (D. C.) 904 

Diamond Drill & Machine Co., Kelley v. 

(C. C. A.) :... 756 

Diamond Match Co. v. Union Match Co. 

(0. C.) 602 

Dickinson v. Sannders (O. C. A.) 16 

Dowagiae Mfg. Co. v. Minnesota Moline 

Plow Co. (C. C. A.) 1005 

Downing, United States v. (C. C. A.) 90 

Dugan V. Beckett (O. O. A.) 56 

Dumper No. 8, The (C. C. A.) 98 

Dunn V. Gans (O. C. A.) 7-50 

Eastern Commission & Importing Co., In 

re (D. O.) 847 

Baston, American Spirits Mfg. Co. v. (C. 

0. A.) 1004 

Edith L. Allen, The (0. C. A.) 209 

fî. H. Godshalk Co. v. Sterling (C. C. A.) 580 

Eidraan, Crawford v. (0. G.) 992 

Elliott V. Canadian Pac. R. Co. (O. 0.) . . . 163 
BUis & Co., Priée & Hart v. (C. C.) 482 



Paga 
Empire State Cattle Co. y. Atchison, T. & 

S. F. R. Co. (C. C.) 480 

Empire State-Idaho Mining & Deveioping 
Co. V. Bunker Hill & Sullivan Mining & 
Concentrating Co., two cases (C. G. A.) . . 1005 

Bnsley Co., Kessler & Co. v. (C. C.) 397 

Everleth, In re (D. C.) 620 

Express, The (D. C.) 655 

Fairmont Mills, Johnston v. (O. O. A.).... 74 

Feingold, McNulty v. (D. C.) 1001 

B'elt «& Tarrant Mfg. Co. v. Mechanical Ac- 

countant Co. (C. C.)... 386 

Ferry v. Wariug Hat Mfg. Co. (C. C.) 389 

Fidelity Mut. Life Ins. Co., Riggs v. (C. C. 

A.) 207 

Finley v. Abner (C. C. A.) 734 

Fireman's Fund 1ns. Co. of San Francisco, 

Norwich & N. Y. Transp. Co. v. (C. 

O. A.) 1006 

First Nat. Bank v. Covington (C. C.) 792 

First Nat. Bank v. Simpson (C. C. A.)... 257 
Pirth Co. V. Millen Cotton Mills (C. C.) . . . 141 

Flagg Mfg. Co., In re (C. C. A.) 588 

B'ortune Gold Min. Oo., Résurrection Gold 

Min. Co. V. (C. C. A.) 668 

Preedley, Wilson v. (O. O.) 835 

Frost & Adams v. Saltonstall (O. C.) 481 

Furber, The J âmes T. (D. C.) 808 

Gans, Dunn v. (C. C. A.) 750 

Geiser, In re (D. C.) 237 

General Electric Co., Gill v. (C. C. A.). ... 349 
General Electric Co., Star Brass Works t. 

(C. C. A.) 102 

General Gaslight Co. v. Matchless Mfg. Oo. 

(C. C.) 137 

Georgia Pine Turpentine Co. v. Bilfinger 

(C. C.) 131 

Gilbert, In re (C. C. A.) 212 

Gill V. General Electric Co. (C. C. A.).... 349 
Gilson V. Mutual Reserve Fund Life Ass'n 

(O. C.) 1003 

Girard Glazed Kid Co., In re (D. 0.) 841 

Godshalk Co. v. Sterling (O. C. A.) 580 

Goldman, In re (C. C. A.) 212 

Gordon Suppîy & Mfg. Co., In re (I). C.) 622 
Graham v. Planters' Compress Co. (D. C.) 253 
Grand Circle, Women of Woodcraft, Kelly 

v. (O. O.) 830 

Greene, Merritt & Ohapman Derrick & 

Wrecking Go. v. (C. C.) 969 

Gring v. Chcsapeake & D. Canal Co. (C. 

C.) 996 

Grumbles, Allen-West Commission Co. v. 

(C. C. A.) 287 

Haie & Kilburn Mfg. Co. v. Oneonta, C. & 

R. S. R. Co. (C. C.) 598 

Haie & Kilburn Mfg. Go., Lehigh Valley 

Traction Go. v. (C. C. A.) 1005 

Hallwood Cash Register Co., National 

Cash Register Co. v. (C. C. A.) 114 

Hall & Wimberly, Lamar v. (C. C. A.). .. 79 
Hargrove v. Cherokee Nation (C. C. A.) . . 186 
Hartford Life Ins. -Co., Riggs v. (C. C. A.) 207 

Head, Phillips v. (C. C. A.) 1007 

Heide v. Wallace & Co. (C. C.) 649 

Heinze v. Butte & B. Consol. Min. Co. (C. 

C. A.) 274 



CASES RBPOETED. 



XI 



Page 
Heinze t. Butte & B. Consol. Min. Co. (C. 

0. A.) 337 

Helmstetter, American Chocolaté Machin- 

ery Oo. V. (0. 0.) 919 

Hempstead v. Thomas (C. C. A.) 907 

Hempstead, Thomas v. (C. C. A.) 1007 

Hennessy v. Tacoma Smelting & Refining 

Co. (C. 0. A.) 40 

Hennessy Bros. & Evans Co. v. Memphis 

Nat. Bank (C. C. A.) 557 

Hercules, The (D. C.) 945 

Hibberd v. Bailey (C. C. A.) 575 

Hibberd v. McGill (C. C. A.) 590 

Hoadley v. Chase (0. C. A.) 1005 

Hobbs, Tower v. (C. C. A.) 918 

Horan v. Hughes (D. 0.) 248 

Horan v. Hughes (C. C. A.) 1005 

Hosmer v. Wyoming Ry. & Iron Co. (O. 

C. A.) 883 

Houghton, Ex parte (C. C.) 239 

Hubinger, Alden Speare's Sons Co. v. (0. 

C. A.) 538 

Hughes, Horan v. (D. C.) 248 

Hughes, Horan v. (C. C. A.) 1005 

Humes, O'Shaugnessy v. (0. C.) 953 

Huntzicker v. Illinois Cent. R. Co. (C. C. 

A.) 548 

Idlewild, The (D. C.) 846 

Illinois Cent. R. Co., Huntzicker v. (0. C. 
A.) 548 

Insurance Co. of North America, Norwich 
& N. Y. Transp. Co. v. (0. C. A.) 1006 

International Nav. Co. v. Sea Ins. Co. (C. 
C. A.) 13 

International Silver Co., Palato v. (0. C.).. 652 

James T. Furber, The (D. C.) 808 

Johnston v. Fairmont Mills (C. 0. A.).... 74 

Johnston, Terry v. (C. C. A.) 354 

Joues V. Adams Exp. Co. (C. C.) 618 

Kalamazoo Corset Co. v. Simon (C. C.) . . . 144 
Kalamazoo Corset Co. v. Simon (0. 0. A.). 1005 
Kansas City, Ft S. & M. R. Co., Clark v. 

(C. C. A.) 341 

Kansas City. P. & G. R. Co., State Trust 

Co. V. (C. C.) 455 

Kansas & T. Coal Co., Davis v. (0. O.)... 149 
Kelley v. Diamond Drill & Machine Co. 

(C. C. A.) 756 

Kelly V. Grand Circle, Women of Wood- 

craft (0. C.) 830 

Kemp V. McBride (C. C.) 382 

Kennedy, Leighton v. (C. C. A.) 737 

Kent, Union Transp. Co. v. (0. C. A.) 715 

Kerr, Phénix Ins. Co. of Brooklyn, N. Y. 

V. (C. O. A.) 723 

Kessler & Co. v. Ensley Co. (C. C.) 397 

Lake, United States v. (D. C.) 499 

Lake Jackson Sugar Co., In re (D. C.) . . . 640 

Lake Steam Shipping Co. v. Bacon (D. 0.) 819 

Lamar v. Hall & Wimberly (C. C. A.) 79 

Land Title & Trust Co. v. McCoach (0. 
Q j^\ ^ g^-|^ 

Lanyon Zinc Co.'v.' Brown'(C.'6.' A.) ','.'.'. ', '. 912 

Larsen v. S. P. Shotter Co. (C. C.) 945 

Leeds Woolen Mills, In re (D. C.) 922 

Lee Yue v. United States (O. C. A.).. 585 



Page 
Lehigh Valley Traction Co. t. Haie & Kil- 

burn Mfg. Co. (C. C. A.) 1005 

Lehigh Valley Transp. Co. v. Minnesota S. 

S. Co. (C. C. A.) 22 

Leighton v. Kennedy (0. C. A.) 737 

Le Marchel, Tegarden v. (C. C.) 487 

Lewis, In re (D. C.) 147 

Lewis V. .astna Ins. Co. (C. C. A.) 1006 

Lewis v. Clark (C. C. A.) 570 

Lewis, United Stetes v. (C. C.) 823 

Lincoln, In re (D. C.) 247 

Lopez V. Collier (C. C. A.) 104 

Lyndhurst, The (D. C.) 843 

McBride, Kemp v. (C. C.) 382 

McCabe, United States v. (C. C. A.) 708 

McCarthy v. Westfield Plate Co. (C. O. 

A.) 128 

MeCoach, Land Title & Trust Co. v. (O. 

C. A.) 901 

McCoach, Philadelphia TYust, Safe De- 

posit & Ins. Co. V. (C. C. A.) 906 

McCracken & McLeod, In re (D. C.) 621 

McFarland v. State Sav. Bank (C. C.).. 244 

McGill, Hibberd v. (C. C. A.) 590 

McGrath, In re (D. C.) 237 

McNulty V. Feingold (D. C.) 1001 

Mahler v. Animarium Co. (G. C. A.) 897 

Mary F. Chisholm, The (D. C.) 814 

Mason v. Connors (C. C.) 831 

Mason, United States v. (C. C. A.) 742 

Matchless Mfg. Co., General Gaslight Co. 

V. (C. C.) ,. 137 

Mechanical Accountant Co., Comptograph 

Co. V. (G. C.) 894 

Mechanical Accountant Co., Felt & Tar- 

rant Mfg. Co. v. (C. C.) 386 

Memphis Nat. Bank, Hennessy Bros. & 

Evans Co. v. (C. C. A.) 557 

Merritt & Chapman Derrick & Wrecking 

Co. V. Greene (O. C.) 969 

Midvale Steel Co. t. Camden Ironworks 

(C. C.) 246 

Miles, In re (C. C. A.) 1006 

Milgraum & Ost, In re (D. C.) 827 

Milieu Cotten Mills, C. E. Riley & Co. v. 

(C. CO 141 

Milieu Cotton Mills, Southern Cotton Mills 

& Commission Oo. v. (C. C.) 141 

Millen Cotton Mills, William Firth Co. v. 

(C. O.) 141 

Minnesota Moline Plow Co., Dowagiac 

Mfg. Co. V. (0. C. A.) 1005 

Minnesota S. S. Co. v. Lehigh Valley 

Transp. Co. (O. C. A.) 22 

Minnesota & D. Cattle Co. v. Atchison, T. 

& S. P. K. Co. (C. C.) 480 

Missouri Drug Co. v. Wyman (C. C.) . . . . 623 
Missouri Pac. R. Co. v. Western Assur. 

Co. (C. C.) 610 

M. M. Buck Mfg. Co., Paulus v. (O. C, A.) 594 

Moore, United States v. (D. C.) 159 

Moore, United States v. (0. C.) 630 

Morrison v. O'Brion (0. O. A.) 893 

Morrison, Cary Bros. & Hannon v. (O. C. 

A.) 177 

Morse v. St. Paul Fire & Marine Ins. Co. 

(C. 0.) 233 

Morton Trust Co. v. American Car & 

Foundry Co. (0. C. A.) 916 



Xil 



129 FEDEEaL, EïïPOETEU. 



Page 

Murphy, Social Regîster Ass'n t. (0. G.).. 148 
Mutual Life Ins. Oo. of New York, West- 

inghouse Electric & Mfg. Co. v. (0. G.) . . 213 
Mutual Reserve Fund Life Ass'n, Gilson v. 

(G. C.) 1003 

Xatchez, ïhornton v. (C. C. A.) 84 

National Garbon Ce, Barber v. (G. C. A.) 370 
National Gash Kegister Co. v. Hallwood , 

Cash Register Go. (G. C. A.) 114 

National Cash Register Go. v. New Go- 

lumbus Watch Co. (G. G. A.) 114 

National Meter Go. v. Neptune îileter Go. 

(G. C. A.) 124 

National Surety Go. v. United States (C. 

C. A.) 70 

Neptune Meter Go., National Mcter Co. v. 

(C. C. A.) 124 

New Brunswick, The (C. G. A.).- 893 

New Oolumbus Watch Go., National Cash 

Register Go. v. (G. C. A.) 114 

New England, ïhe (0. G. A.) 1006 

Newman, In re (C. C. A.) 1006 

New Orléans & N. B. R. Go., Rutledge v. 

(C. C. A.) 94 

New York. Shortland Bros. Co. v. (D. C.) 973 
Northern Pac. R. Go., Weidenfeld v. (G. 

G. A.) 305 

Northwestern Nat. Life Ins. Co., Riggs 

V. (C. C. A.) 207 

Norwich & N. Y. Transp. Co. v. Chubb 

fC. C. A.) 1006 

Norwjch & N. Y. Transp. Co. v. Fireman's 

Fund Ins. Co. of San Francisco (G. C. 

A.) 1006 

Worwich & N. Y. Transp. Oo. v. Insurance 

Co. of North America (G. C. A.) 1006 

Norwich & N. Y. Transp. Co. v. Security 

Ins. Co. of New Haven (C. C. A.) 10O6 

O Brion, Morrison v. (C. G. A.) 893 

O'Connell v. Boston Herald Co. (C. 0.). . 830 

O'Connell v. Courier-Citizen Co. (C. 0.).. 839 

O'Hara v. United States (C. C. A.) 551 

Ohio Brass Co., Thomson-Houston Electric 

Co. V. (C. G.) 378 

One Black Horse, United States t. (D. C.) 167 

O'Neill, United States v. (G. G. A.) 909 

Oiieonta. C. & R. S. R. Co., Haie & Kil- 

burn Mfg. Oo. v. (G. C.) 598 

Oriental American Co., United States v. 

(G. G.) 249 

O'Shaugnessy v. Humes (C. G.)..... 933 

Pacifie Transport Co., Steamship Bucking- 

ham Oo. V. (D. 0.) 975 

Palato T. International Silver Co. (C. G.) 652 

Pancoast, In re (D. 0.) 643 

Parsons, The Thomas M. (D. C.) 972 

Paul, Paul Steam System Co. v. (C. G.).. 757 
Paul Steam System Go. v. Paul (0. 0.). .. 757 
Paulus V. M. M. Baek Mfg. Co. (C. C. AJ 594 
Peacock, Hunt & West Go., Camp v. (G. 

C. A.) 1005 

Pease, In re (D. C.) 446 

Peckham Mfg. Co., Brill v. (O. O.) 139 

Peden, American Bridge Co. v. (G. 0. A.). .1004 
Pennsylvania Go., Western Union Tel. Co. 

V. (C. O. A.) 849 

Pépin Tp. t. Sage (G. C. A.) 657 



Page 
Perkins JBÎlectric Switch Mfg. Co. v. Buch- 

anan & Go. (C. G.) 134 

Peyton v. Desmcud (G. C. A.) 1 

Phénix Ins. Go. of Brooklyn, N. Y., v. 

Kerr (G. C. A.) 723 

Philadelphia Trust, Safe Deposit & Ins. Co. 

V. McCoach (G. C. A.) 906 

Phillips V. Head (C. C. A.) 1007 

Pidcock, Clark v. (C. G. A.) 745 

Fine Forest, The (C. 0. A.) 700 

Pitt, Rodgers v. (0. G.) 9;a 

Pittsburg Goal Co., Robinson v. (G. C. A.) 324 
Planters Oompress Go., Graham v. U->. 

0.) • • '<^-3" 

Powers, Ex parte (D. C.) 983 

Price & Ilart T. T. .1. Ellis & Co. (C. G.). . 482 
Frotter, Bogen & Trummel v. (G. C. A.) . . 533 

Quigley, Walmsley v. (C. C. A.) 583 

Qnincy, Toliman v. (C. C.) 974 

Radford v. United States (C. O. A.) 49 

Reiuhart, In re (D. 0.) 510 

Rembert Roller Compress Co. v. American 

Cotton Go. (0. C. A.) 353 

Résurrection Gold Min. Go. v. Fortune 

Gold Min. Go. (C. G. A.) ,668 

Riggs V. American Cent. Life 1ns. Go. 

(C. C. A.) 207 

RiggB V. Fidelity Mut. Life Ins. Go. 

(C. G. A.) 207 

Riggs V. Hartford Life Ins. Go. (C. G. A.) 207 
Riggs V. Northwestern Nat. Life Ins. Go. 

(0. C. A.) 207 

Riggs V. Union Life Ins. Go. of Indiana 

(G. C. A.) 207 

Riley & Co. v. Milieu Cotton Mills (C. 

C.) 141 

River Spinning Co., SauTageau v. (G. G.) . . 901 
Robinson v. Baltimore & O. R. Go. (G. 

G A) 753 

Roliinson V." Pittsburg CoaV Co. " (6." G.' A.) 324 

Robinson v. Whitcomb (C. G. A.) 873 

Rodgers v. Pitt (C. C.) 932 

Russell V. Russel! (C. G.) 434 

Rutledge v. New Orléans & N. E. R. Co. (C. 

G. A.) 94 

Sage, Pépin Tp. v. (0. 0. A.) 657 

St. Paul Fire & Marine Ins. Go., Morse v. 

(O. G.) 23n 

Saltonstall, Prost & Adams v. (G. C.) 481 

Sampson & Murdock Co. v. Seaver-Rad- 

ford Co. (C. C.) 761 

Samuel H. Gottrell & Son v. Smokeless 

Fuel Go. (0. G.) 174 

Saunders, Dickinson v. (G. C. A.) 16 

Sauvageau v. River Spinning Co. (C. G.).. 961 
Sawyer v. Atchison, T. & S. F. R. Go. (C. 

G. A.) 100 

Scharer, Weeks v. (O. C. A.) 333 

Schophofen, Van Ingen v. (G. G. A.) 352 

Schriver, Western Union Tel. Co. v. (C. 

G. A.) 344 

Scott V. Stockholders' Oil Go. (C. C.) 615 

Sea Ins. Go., International Nav. Co. v. 

(0. C. A.) 13 

Seaver-Radford Go., Sampson & Murdock 

Go. V. (a c.) 761 



CASES EBPOKTED. 



Xlll 



Page 

Security Ins. Co. of New Haven, Norwich 

fe N. Y. Transp, Co. v. (G. 0. A.) 1000 

Shalius V. TJnited States (G. 0.) 843 

Shoe & Leather Reporter, In re (G. C. A.) 588 
Shortland Bros. Go. v. Kew York (D. 0.). . 973 

Shotter Co., Larsen v. (C. G.) 945 

Simon, Kalamazoo Corset Co. v. (C. 0.).. 144 
Simon, Kalamazoo Corset Co. v. (0. 0. 

A.) 1005 

Simpson v. First Nat. Bank (C. C. A.) 257 

Siins V. Union Assur. Soc. (G. G.) 804 

Smokeless Fuel Co., Samuel H. Cottrell & 

Son V. (G. 0.) 174 

Social Register Afis'n v. Murphy (C. C.) . . 148 
Southern Cotton Mills & Commia^ion Co. v. 

V. Millen Cotton Mills (C. C.) 141 

Southern Pac. Co., ïavlor v. (C. G. A.). ..1007 

Southern K. Co., P.ryce v. (C. C.) 9fl(î 

Southwark, The (D. C.) 171 

Speare's Sous Co. v. Hubinger (G. G. A.) 538 

a P. Shotter Co., Larsen v. (C. C.) 945 

Stanley Instrument Co., Westinghouse 

Electric & Mfg. Co. v. (C. G.) 140 

Star Brass Works v. General Flectric Co. 

(G. C. A.-) 102 

State Sav. Bank, McFarland v. (C. C.) 244 

State Trust Co. t. Kansas City, P. & G. 

II. Co. (C. C.) 455 

Steamship Buckingham Co. v. Pacific 

Transport Co. (D. C.) 975 

Sterling, E. II. Godshalk Co. v. (C. C. A.).. 580 

Stockholders' OU Go., Scott v. (C. C.) 615 

Stone V. Whitridge, White & Co. (C. C. 

A.) 33 

Sullivan Timber Co., City of Mobile v. (C. 

0. A.) 298 

Surprise, The (C. C. A.) 87,3 

Swan V. Western Union Tel. Co. (C. C. A.) 318 

Tacoma Mill Co., Black Hills & N. W. R. 

Co. V. (G. C. A.) 312 

Tacoma Smelting & Refining Co., Henues- 

sy V. (C. 0. A.) 40 

Taylor v. Southern Pac. Co. fC. C. A.) 1007 

Tegardeo v. Le Marchel (G. G.) 487 

TeJry T. Bird (C. C. A.) 592 

Terry v. Johnston (C. O. A.) 354 

Terry, Bird v. (C. G.) 472 

Thomas v. Hempstead (C. C. A.) 10O7 

Thomas v. Wanamaker (G. C. A.) 92 

Thomas, Hempstead v. (C. C. A.) 907 

Thomas M. Parsons. The (D. C.) 972 

Thomson-Houston Electric Co. T. Ohio 

Brass Co. (C. C.) 378 

Thornton v. Natchez (0. C. A.) 84 

ïhree Packages of Distilled Spirits v. Unit- 
ed States (G. C. A.) 329 

T. J. EUis & Co., l'rice & Hart v. (O. C.) . . 482 

ToUman v. Quincy (0. C.) 974 

Tonopah Min. Co. of Nevada, Tonopah & 

S. L. Min. Co. v. (C. C. A.) 1007 

Tonopah & S. L. Min. Co. v. Tonopah Min. 

Co. of Nevada (0. C. A.) 1007 

Tower v. Hobbs (C. O. A.) 918 

Trader, The (D. C.) 462 

Triton. The rC. C. A.) 698 

Tsoi Yii V. United States (C. 0. A.) 585 

Union Assur. Soc, Sims v. (0. C.) 804 



Page 
Union Life Ins. Co. of Indiana, Riggs v. 

(C. C. A.) 207 

Union Match Co., Diamond Match Co. v. 

(C. C.) 602 

Union Transp. Co. v. Kent (0. 0. A.) 715 

United States v. Circuit Court of United 

States, Southern Dist. of lowa (C. 0. A.) 897 

United States v. Clark (C. 0.) 241 

United States v. Ouuninghara (D. C.) 833 

United States v. Downing (C. O. A.) 90 

United States v. Lake (D. C.) 499 

United States v. Lewis (0. C.) 823 

United States v. MeCabe (G. C. A.) 708 

United States v. Masou (C. G. A.) 742 

United States v. Moore (D. C.) 159 

United States v. Moore (C. C.) 630 

United States v. One Black Horse (D. C.) . . 167 

United States v. O'Neill (G. G. A.) 909 

United States v. Oriental American Oo. 

(C. C.) 249 

United States, Alexis v. (C. G. A.) 60 

United States, Balliet v. (C. C. A.) 689 

United States, Brennan v. (C. C.) 837 

United States, Bristol v. (C. C. A.) 87 

United States, Cheung Him Nim v. (G. C. 

A.) 585 

United States, Chew Hing y. (C. G. A.). .. 585 
United States, Chin Chew Fong v. (C. G. 

A.) 585 

United States, Christie-Street Commission 

Co. V. (O. C.) 506 

United States, Lee Yue v. (C. C. A.) 585 

United States, National Surety Co. v. (G. 

C. A.) 70 

United States, O'Hara v. (C. C. A.) 551 

United States, Kadford v. (0. 0. A.) 49 

United States, Shalius v. (G. G.) 845 

United States, Three Packages of Distilled 

Spirits V. (G. C. A.) 329 

United States, Tsoi Yii v. (C. C. A.) 585 

United States, Watts v. (D. C.) 222 

United States, Yee Yuen v. (C. C. A.) 585 

Van Ingen v. Schophofen (C. C. A.) 352 

Voelker, Chicago, M. & St. P. R. Co. v. (C. 
C. A.) 622 

Wagner Electric Mfg. Co., Westinghouse 

Electric & Mfg. Co. v. (C. C.) 604 

Wallaee & Co., Heide v. (C. C.) 649 

Walmsley v. Quigley (C. C. A.) 583 

Wanamaker, Thomas v. (C. C. A.) 92 

Waring Hat Mfg. Co., Ferry v. (C. C.).. 389 

Washburn, York v. (C. C. A.) 564 

Watts V, United States (D. C.) 222 

Weeks v. Scharer (G. C. A.) 333 

Weidenfeld v. Northern Pac. R. Co. (C. 

C. A.) 305 

Western Assur. Co., Missouri Pac. R. Co. 

V. (C. C.) 610 

Western Tie & Timber Co. v. Brown (C. 

C. A.) 728 

Western Union Tel. Co. v. Pennsylvania 

Co. (G. O. A.) 849 

Western Union Tel. Co. v. Schriver (C. C. 

A.) 344 

Western Union Tel. Co., Swan v. (C. O. 

A.) 318 

Westfield Plate Co., McCarthy v. (0. C. 

A.) 128 



XXT 



129 FBDEBAL BBFORTEB. 



Page 



Westinghouse Aîr Brake Co., Ohristensen 
Engineering Co. v. (0. O. A.) 

Westinghouse Electric & Mfg. Co. t. Mu- 
tual Life Ins. Co. of New York (C. C,)., 

Westinghouse Electric & Mfg. Co. v. Stan- 
ley Instrument Co. (O. C.) 140 

Westinghouse Electric & Mfg. Co. v. Wag- 
ner Electric Mfg, Co. (C. C.) 

Westinghouse Electric & Mfg. Co., Bul 
lock Electric & Mfg. Co. v. (C. 0. A.).. 

Whitcomb, liobinson v. (0. C. A.) 

Whitridge, White & Co., Stone v. (0. 0. 
A.) 83 



96 
213 



604 

103 
873 



Pag» 
William Firth Co. v. Millen Cotton Mills 

(C. C.) 141 

Wilson V. Atlaui»- Coast Line K. Oo. (0. 

G.) 774 

Wilson V. Chicago Lumber & Timber Co. 

(C. C.) 636 

Wilson V. B^eedley (O. C.) S35 

Wyman, Missouri Drug Co. v. (C. C.) 623 

Wyoming Ry. & Iron Ce, Hosmer v. (C. 

O. A.) 883 

Yee Yuen v. United States (C. 0. A.),... 585 
York V. Washburn (C. C. A.) 564 



t 



CASES 

AEGXJED AND DETERMINED 



IK TBB 



UNITED STATES CIRCUIT COURTS OF APPEALS AND THE 
CIRCUIT AND DISTRICT COURTS. 



PEYTON et al. V. DESMOND. 

(Carcult Court of Appeals, Eighth Circuit February 16, 1904) 

No. 1,878. 

1. VENtTE— ACTIOH TO Eecovee fob Teespass to Beàl Bstate— LOCAt OB 

Teansitoet, Accoeding to Law of State Where Brought. 

Whether an action to recover pecuniary damages for trespass to real 
estate is real and local, or Is Personal and transltory, Is essentlally a 
matter o£ state pollcy or local law, and must be determlned by the 
View taken of the nature of the action in the state in which It Is brought. 

2. Same— Minnesota. 

In Minnesota an action to recover pecuniary damages for trespass to 
real estate in another state Is vlewed, not as relatlng to the real estate. 
but only as affording a Personal remedy, and transltory. 

3. Same— Pleadino — Action to Recoveb foe Ctjttinq and Removal of Tim- 

BEE— When Teansitoet. 

Where the facts stated and the relief demanded show that the grava- 
men of the action is the conversion of lumber manufactured out of trees 
wrongfuUy eut and removed from plaintiff's land by défendant, and that 
the purpose of the action is to recover the value of the lumber, and not 
damages for any dépréciation In the value of the land, the action is transi- 
tory, although the trespass to the land Is stated as lllustrating the charac- 
ter of the conversion, and as bearing upon plaintIfC's right to recover the 
value of the manufactured lumber. 

4. Same. 

The glvlng of an instruction in such an action, at the request of the de- 
fendant, that the measure of damages recoverable was the value of the 
logs as they stood in the trees, could not change the nature of the action, 
whether or not It stated the correct measure of damages ; nor can it be 
Invoked by défendant to defeat the jurisdiction of the court. 

5. Public Lands— Peocbedings to Acquise Title— Jueisdiction of Land 

Department. 

The jurisdiction of the Land Department over public lands continues 
so long as the légal tltle remains in the United States, and the décisions 
and rulings of that department in proceedings to acqulre title to such 
lands, prxor to the act which passes the légal title from the government, 
are interlocutory, and are as mueh open to review or reversai by the 

129 F.— 1 



2 129 FEDERAL REPORTER. 

Land Department, while the légal tltle remains In the United States, as 
are the interlocutory decrees of a court open to review upon the final 
heariug. 

6. Same— Final Act of Land Department— Tebmination of Jurisdiction. 

The issuance of a patent, or such other act as passes the légal title 
from the government, is the final act, and the expression and entry of 
the final judgment, of the offleers of the Land Department, and marks 
the termlnation of the jurlsdiction of thèse officers. 

7. Same— Notice of Peoceedings in Land Depaetment. 

The power of the Land Department to review its prior rulings, and to 
cancel existing entries, while the légal title remains in the United States, 
Is not unlimited or arbitrary, and can be exereised only af ter notice to 
parties in interest and due opportunity for a full hearing. 

8. Same— CoNVETANCB BY Entetman Pbiob to Patent— Rights Aoquired. 

One who purchases from an entryman, on the faith of a final reeeipt 
or patent certiflcate, before the issuance of a patent, takes only the equity 
of his vendor, subject to the authority of the Land Department to cancel 
the entry, while the légal title remains in the United States, if it is found 
that the entry is based upon an error of law or a clear misapprehension 
of the facts, which, if not corrected, will lead to the transfer of the 
government's title to one not entitled to it. 

9. Same— Décision of Land Department as to Mattees of Faot Conclusive 

IN COLLATEEAL PeOCEEDING. 

The Land Department being a spécial tribunal to which Congress bas 
confided the administration of the public land laws, the final judgment 
of that department as to matters of fact properly determinable by it is 
conclusive, when brought to notice in a collatéral proceeding. 

10. Same— Effect of State Stattjte. 

A State statute, purporting to regulate the effect of final receipts issued 
by the Land Department of the United States, cannot restrict the au- 
thority of the offleers of that department in the disposition of the public 
lands, or withhold from the grantees of the United States any of the 
incidents of the transfer of the government title. 

11. Same — Application of Docteine of Relation. 

The doctrine of relation is applicable to public land transactions, and, 
wbere necessary to give efCect to the intent of the statute or to eut ofC 
Intervening claimants, the patent is deemed to relate back to the initia- 
tory act. 

12. Same— Homestead Patentée— Right to Recovee fob Timbee Cut afteb 
Initiation of Claim and befoee Issuance of Patent. 

A patent issued under the homestead laws relates back to the initia- 
tion of the claim, and gives the patentée the right to recover the value 
of timber wrongfully eut and removed from the land after the initiation 
of his claim, as established by the patent proceedlngs, and prior to the 
issuance of the patent. 

In Error to the Circuit Court of the United States for the District of 
Minnesota. 

This action was brought in thé Circuit Court of the United States for 
the District of Minnesota, Fifth Division, December 29, 1898, by George E. 
Desmond, a citizen of Wisconsin, against Hamilton M. Peyton and Levi A. 
Barber, citizens of Minnesota, and résidents of the Fifth Division of the 
Minnesota District. The complaint alleged that the plaintiff made homestead 
settlement in 1890 upon a stated quarter section of public land in Wisconsin, 
containing merchantable pine timber aggregating 3,600,000 feet, board meas- 
ure ; that continuously thereafter he resided upon and occupied the land, and 
obtained a United States patent therefor May 16, 1898, by full and regular 
compliance with the homestead law ; that in the winter of 1893 and 1894, 

If 11. See Public Lands, vol. 41, Cent. Dig. § 315. 



PETTON V. DESMOND. 8 

whlle he was In possession of the land under his homestead clalm, the défend- 
ants "wrongfuUy and unlawfully and forcibly entered upon" the land, and eut 
therefrom ail the pine timber ; that they thereafter carried off and removed 
ail of this timber, and sawed the same Into lumber, and thereafter, and before 
the Issuance of the patent to plalntlfif, sold and dlsposed of the lumber ; tbat 
the acts of the défendants were done and performed wlth full knowledge of 
the rights of the plalntiflC to the timber, and agalnst bis protest; that the 
value of the timber prlor to the cutting of the trees was $4 per thousand feet, 
board measure, and after being sawed into lumber was $12 per thousand feet, 
board measure. Judgment was prayed for $43,200, the value of the lumber, 
wlth Interest. The case was soon bronght to issue, but a trial was not had 
until October, 1902, when a verdict was returned for plaintlff in the sum of 
$9,425, with interest, for which judgment was given agalnst défendants. No 
objection was made to the jurisdiction until immediately preceding the trial, 
when défendants moved that the action be dismlssed for the reason, as then 
asserted by them, that It was one for trespass to realty in Wisconsin, and 
was therefore local, and not withln the jurisdiction of the court below. The 
action upon thls motion was as follows : 

"Mr. O'Brien [for plaintlff] : * • * This action Is brought to recover 
the value of the timber eut and carried away from the land. It Is not, under 
the statutes of Minnesota, nor under the practice of tbis state, an action of 
trespass. It is an action in trover, pure and simple ; and the measure of dam- 
ages hère is the value of the timber when eut from thé land, and not the injury 
to the land. The resulting injury to the land in this case is not alleged as a 
matter of damage, nor would the court permit testimony to be Introduced to 
show it. It Is really an action of trover, because the damages sought to be 
recovered is the value of the property when severed from the land. * * * 

"Mr. Hayden [for défendants] : I will concède that they could bave made 
a transltory action out of this matter, by using the same facts, if they had 
seen flt to bring their action in trover Instead of In trespass. 

"The Court: I think I understand your position fuUy. It Is not a mat- 
ter of words, but it is a matter of the substantive facts, constituting the plain- 
tiff's right to recover. He seeks to recover in this case — the complaint leaves 
no doubt that he so seeks to recover — the value of the timber at the latest 
stage when it can be traced into your hands, to wlt, the value of the lumber. 
He does not seek to recover damages for the depleted value of the land, whlch 
is the essential feature of a suit in trespass. The motion is denied." 

Other rulings at the trial were to the efCect that the title obtained by plain- 
tlff, by his compliance with the homestead law, and by the issuance to him 
of the patent for the land, related back so as to enable him to maintain this 
action. 

The évidence showed that plaintlff and one Benjamin F. Judd settled upon 
the land prior to the passage of the land grant forfeiture act of September 
29, 1890, c. 1040, § 2, 26 Stat 496 [U. S. Comp. St. 1901, p. 1599], under which 
the land was restored to the public domain ; that each claimed to bave settled 
with a View to obtaining title under the homestead laws of the United States t 
that each claimed to be the prior settler, and each presented in due time at 
the local iand office an application to make homestead entry, but the applica- 
tion of Judd, being presented flrst, was allowed by the local land offlcers, and 
that of the plaintlff rejected ; that a contest, based upon plaintiff's claim of 
prior settlement, was then commenced in the local land office by plaintlfiC 
agalnst Judd's entry, the proceedings in which resulted in a décision by the 
Secretary of the Interior agalnst the plaintlff, January 7, 1893; that Judd 
on July 17, 1893, eommuted his homestead entry, and obtained a patent cer- 
tlficate, but no patent was ever issued to him; that plaintlff on October 9, 
1893, or possibly when Judd submitted final proof upon his entry, instituted 
in the local land office further contest proceedings agalnst Judd's entry, which 
resulted in a décision by the Secretary of the Interior May 23, 1896 (Desmond 
V. Judd, 22 Land Dec. Dep. Int. 619), declaring that Judd had not tn good falth 
maintained his résidence on the land as required by the homestead law, and 
dlrectlng the cancellatlon of his entry ; that, following this décision, plaintiffl 
made final homestead entry of the land, under the statute requiring flve years' 
résidence, and under that entry obtained a United States patent May 16, 1898 ; 



é 129 FEDERAL REPORTER. 

that In the meantîme, on October 11, 1893, the lands were conveyed by Judd 
to défendants; that défendants had knowledge of, and participated in, the 
cpntest proeeedings In the Land Department which resulted In the cancella- 
tion of Judd's entry; and that the cutting and conversion of ihe timber by 
défendants occurred in the winter of 1893 and 1894, while the contest pro- 
eeedings last named were pending. 

Arthur H. Crassweller (Frank Crassweller, on the brief), for plain- 
tiffs in error. 

C. D. O'Brien (Thos. D. O'Brien and P. H. Seymour, on the brief), 
for défendant in error. 

Before SANBORN, THAYER. and VAN DEVAInITER, Circuit 
Judges. 

VAN DEVANTER, Circuit Judge, after stating the case as above, 
dehvered the opinion of the court. 

By the common law of England, an action for the recovery of dam- 
ages for in jury to land is local, and can be brought only where the land 
is situated. This is the law in most of the states of the Union, i 
Chitty, PI. 281 1 Shipman, Com. L. PI. (2d Ed.) 201, 383; Cooley on 
Torts, 471; Livingston v. Jefïerson, 15 Fed. Cas. 660, No. 8,411; 
McKenna v. Fisk, i How. 241, 11 L. Ed. 117; Ellenwood v. Marietta 
Chair Co., 158 U. S. 105, 15 Sup. Ct. 771, 39 L. Ed. 913. The opéra- 
tion of this common-law rule has been much restricted by législation in 
England (British South Africa Co. v. Companhia de Mocambique 
[1893] App. Cas. 602) and in some of the states (15 Fed. Cas. 665, 
note; Genin v. Grier, 10 Ohio, 209, 214). There are other states in 
which the rule never prevailed. Holmes v. Barclay, 4 La. Ann. 63. 
The matter is essentially one of state policy or local law. As was said 
by Mr. Justice Gray in Huntington v. Attrill, 146 U. S. 657, 669, 13 
Sup. Ct. 224, 36 L. Ed. II 23 : 

"Whether actions to recover pecuniary damages for trespasses to real estate 
♦ * * are purely local, or may be brought abroad, dépends upon the ques- 
tion whether they are viewed as relating to the real estate, or only as afford- 
ing a Personal remedy. * • ♦ And whether an action for trespass to land 
in one state can be brought in another state dépends on the view which the 
latter state takes of the nature of the action." 

In Minnesota an action for pecuniary damages for trespass to real 
estate in another state is viewed, not as. relating to the real estate, but 
only as affording a personal remedy. It is there deemed to be transitory 
in nature, and not local. In Little v. Chicago, etc., Railway Co., 65 
Minn. 48, 67 N. W. 846, 33 L. R. A. 423, 60 Am. St. Rep. 421, the 
Suprême Court of that state, in sustaining the jurisdiction of the courts 
of the state over an action brought to recover damages for injuries to 
real estate situated in Wisconsin, said : 

"The réparation Is purely personal, and for damages. Such an action la 
purely personal, and in no sensé real." 

By the existing judiciary act (Act Aug. 13, 1888, c. 866, § i, 25 
Stat. 433 [U. S. Comp. St. 1901, p. 508]) it is declared: 

"That the Circuit Courts of the United States shall hâve original cognl- 
zance, concurrent with the courts of the several states, of ail sults of a civil 
nature, at common law or in equity, where the matter in dispute exceeds, ex- 
clusive of interest and costs, the sum or value of two thousand dollars and 



PETTON V. DESMONO. 5 

* * ♦ in which there shall be a eontroversy between cltizens of différent 
States, * * * bnt wliere the jurlsdiction is founded only on the fact that 
the action is between citizens of différent states, suit shall be brought only 
in the district of the résidence of either the plaintiff or the défendant. 

* • *" 

This action présents a eontroversy between citizens of différent states, 
and was brought in the district and division of the résidence of the 
défendants. It is of a civil nature, is a common-law action, and the 
matter in dispute exceeds, exclusive of interest and costs, the sum or 
value of $2,000. Being also an action which is cognizable in the courts 
of the State, as before shown, it is equally within the concurrent 
cognizance of the Circuit Court of the United' States, within that state. 
It was said by Mr. Justice Field in Gaines v. Fuentes, 92 U. S. 10, 18, 
20, 23 L. Ed. 524, in referring to the jurisdiction of the fédéral courts 
of suits at common law or in equity in which there is a eontroversy 
between citizens of différent states: 

"The Constitution imposes no limitation upon the class of cases involving 
controversies between citizens of différent states to which the judicial power 
of the United States may be extended, and Congress may therefore lawfully 
provide for bringing, at the option of either of the parties, ali such controver- 
sies within the jurisdiction of the fédéral judiciary. * • • There are no 
separate equity courts in Louisiana, and suits for spécial relief of the nature 
hère sought are not there designated suits in equity. But they are none the 
less essentially such suits; and if, by the law obtaining in the state, cus- 
tomary or statutory, they can be maintained in a state court, whatever désig- 
nation that court may bear, we think they may be maintained by original 
process in a fédéral court, where the parties are, on the one side, citizens of 
Louisiana, and, on the other, citizens of other states." 

Even if the action be regarded as one for thç recovery of damages 
for injury to land, we think it was cognizable in the circuit court. 

But we believe this is an action for the recovery of damages for the 
conversion of personal property — one more in the nature of trespass 
de bonis asportatis or trover than of trespass quare clausum fregit — and 
that it is transitory, and not local, under the common-law distinction. 
By the laws of Minnesota (sections 5131, 5228-5231, Gen. St. 1894), the 
forms of actions existing at common law are abolished, and the fîrst 
pleading or complaint by the plaintiff is required to contain a plain 
and concise statement of the facts constituting his cause of action, and 
a demand for the relief to which he supposes himself entitled. The 
facts stated and the relief demanded, rather than the form of statement, 
détermine the nature of the action. The facts hère stated and the relief 
demanded show that the gravamen of the action is the conversion of the 
lumber manufactured out of the trees, and that the purpose of the action 
is to recover the value of the lumber. There is no direct statement of a 
dépréciation in the value of the land by reason of the trespass, and there 
is no attempt to dwell upon the injury to the land by stating that the re- 
maining trees or undergrowth were injured, that roads were con- 
structed through the land, or that the soil was disturbed in hauling 
away the pine timber, or was incumbered with the limbs and tops of 
the trees removed. This, and the fullness and particularity with 
which the complaint states the manufacture of the severed trees 
into lumber and their conversion, shows that the conversion is deemed 
the principal thing, and that the trespass is stated only as illustrating 



6 129 FEDERAL KEPOETER. 

the character of tlie conversion, and as bearing upon plaintiff's right 
to recover the value of the manufactured himber, which, as alleged, is 
identical with the amount for which judgment is demanded. The fact 
that the défendants did not question the nature of the action until at the 
trial, almost four years after the action was commenced, and that then 
the plaintifï promptly and decisively declared it to be one to recover 
the value of the timber when severed from the land, and not damages 
for any resulting injury to the land, requires that any doubt or uncer- 
tainty as to the nature of the action arising from the fuUness of state- 
ment in the complaint be resolved in favor of the jurisdiction ; the 
case being one where, upon the facts stated, the plaintiff, in commencing 
his action, could hâve made the trespass to the land the gravamen 
thereof, or, waiving that, could haye relied upon the conversion. When 
the timber was severed from the land it became personal property, but 
the title to it was not changed. It remained the property of the owner 
of the land, as before the severance, and he could hâve followed and 
reclaimed his property into whatever jurisdiction it might hâve been 
taken, or he could hâve maintained an action in the nature of trespass de 
bonis asportatis for damages for its unlawful asportation, or he could 
hâve maintained an action in the nature of trover for damages for its 
conversion. United States v. Cook, 19 Wall. 501, 22 L,. Ed. 210; Schu- 
lenberg v. Harriman, 21 Wall. 44, 64, 22 L,. Ed. 551 ; United States v. 
Steenerson, i C. C. A. 552, 50 Fed. 504; McGonigle v. Atchison, 33 
Kan. 726, 7 Pac. 550; Nelson v. Burt, 15 Mass. 204; Riley v. Boston 
Water Power Ce, 11 Cush. 11 ; Farrant v. Thompson, 5 B. & Aid. 826 ; 
Richardson v. York, 14 Me. 216; Moody v. Whitney, 34 Me. 563; 
Whidden v. Seelye, 40 Me. 247, 255, 63 Am. Dec. 661; Bulkley v. 
Dolbeare, 7 Conn. 232; Wadleigh v. Janvrin, 41 N. H. 503, 520, y y 
Am. Dec. 780; Greeley v. Stillson, 27 Mich. 153; Tyson v. McGuineas, 
25 Wis. 656, 659; Mooers v. Wait, 3 Wend. 104, 20 Am. Dec. 667; 
Wright V. Guier, 9 Watts, 172, 36 Am. Dec. 108; Harlan v, Harlan, 
15 Pa. 507, 53 Am. Dec. 612; Forsyth v. Wells, 41 Pa. 291, 80 Am. 
Dec. 617. The rule for determining the character of the action is well 
stated in 2 Waterman on Trespass, § 1102 : 

"Although, as standing trees are part of the Inherltanee, and the severing 
them from It Is deemed an Injury to the freehold, for which trespass quare 
clausum fregit is the appropriate remedy, yet the party may waive that ground 
of recovery, and daim the value of timber only thus severed and carried away. 
In the one case the entering and breaking of the close Is the gist of the action ; 
in the other, the taking and carrying away of the property. In the latter case 
the action Is transitory, and not local." 

This case is unlike Ellenwood v. Marietta Chair Co., 158 U. S. 105, 
15 Sup. Ct. 771, 39 E. Ed. 913, relied upon by the plaintiffs in error, 
because there the allégations of the pétition made a continuing trespass 
upon the land, covering a period of more than 10 years, the principal 
thing, and the conversion of the timber only incidental. The case of 
Stone V. United States, 167 U. S. 178, 182, 17 Sup. Ct. 778, 42 L. Ed. 
127, is more in point. There the pétition stated the ownership of the 
lands by the plaintifif, and that the défendant "unlawfuUy, wrongfully, 
and willfully eut from the said lands 77,441 trees." It then stated 
with much particularity that the défendant thereafter manufactured the 
trees into lumber and railroad ties and converted thèse to his own use, 



PETTON T. DESMOND. 7 

and, after stating the value of the trees when standing upon the land, 
and the value of the manufactured products at the time of the conver- 
sion, demanded judgment for the latter. After distinguishing the case 
of Ellenwood v. Marietta Chair Co., Mr. Justice Harlan, speaking for 
the court, said: 

"In the présent case the pétition, It Is true, avers that the United States 
was the owner of the lands from which the trees were eut, but the gravamen 
of the action was the conversion of the lumber and the railroad ties manu- 
factured out of such trees, and a judgment vras asked, not for the trespass, 
but for the value of the Personal property so eonverted by the défendant The 
description in the pétition of the lands and the averment of ownership in the 
United States were intended to show the right of the government to claim the 
value of the Personal property manufactured from the trees illegally taken 
from its lands. Although the government's [defendant's] déniai of the [gov- 
ernment's] ownership of the land made it necessary for it to prove its owner- 
ship, the action, in its es^ential features, related to Personal property, was of 
a transitory nature, and could be brought in any jurisdiction in which the 
défendant could be found and served with process." 

That case is so nearly identical with the présent one that the dé- 
cision of the Suprême Court therein controls the détermination of the 
question now under considération, and requires that this action be held 
to be transitory and within the jurisdiction of the Circuit Court. 

It is said that "the court charged the jury that the measure of dam- 
ages was not the value of the logs taken, but their value as it ap- 
peared in the tree," and because of this we are asked to déclare this 
action local. This instruction was given at the request of the de- 
fendants. If it properly states the rule for measuring the damages to 
be awarded in an action for the conversion of personal property under 
the circumstances shown at the trial (Wooden Ware Co. v. United 
States, 105 U. S. 432, 27 L. Ed. 230; Forsyth v. Wells, 41 Pa. 291, 80 
Am. Dec. 617; Gentry v. United States, 41 C. C. A. 185, loi Fed. 51 ; 
United States v. Homestake Mining Co., 54 C. C, A. 303, 117 Fed. 481), 
it is in harmony with the court's jurisdiction of the case ; and, if it states 
the rule more favorable to the défendants than they were entitled to 
ask, its only efïect has been to diminish the damages which otherwise 
would hâve been awarded to the plaintif! — a matter which cannot be 
invoked by the défendants to defeat the jurisdiction or otherwise. It 
was correctly ruled at the beginning of the trial, and again at its close, 
that the action was one for the conversion of personal property and not 
for trespass to land. 

Does plaintiff's title under the patent issued May 16, 1898, upon his 
homestead entry, relate back to a time anterior to the cutting of the 
timber by the défendants in the winter of 1893 and 1894, and entitle 
him to maintain this action? The solution of this question dépends 
upon the effect to be given in this action to the proceedings in the Land 
Department of the United States upon the adverse claims of the plaintiff 
and Judd. The land covered by the patent issued to the plaintiff, 
while formerly within a land grant made in aid of the construction of 
a railroad, was restored to the public domain under the act of September 
29, 1890, c. 1040, § 2, 26 Stat. 496 [U. S. Comp. St. 1901, p. 1599], with 
a direction that actual settlers in good faith at the date of the act should 
hâve a préférence right of entry, and should "be regarded as such actual 
settlers from the date of actual settlement or occupation." Proceedings 



8 129 FEDERAL REPORTER. 

to acquire the tîtle to this land, instituted and condticted in the Land 
Department, with due notice to the parties in interest, and with oppor- 
tunity for full hearing, resulted in the issuance of a patent conveying 
the government's title to the plaintiff. During the pendency of thèse 
proceedings, while the légal title was yet in the United States, and 
with notice of plaintiff's claim, the défendants purchased the land from 
Judd, eut and removed therefrom the timber, and sold the lumber into 
which it was sawed by them. In doing this, the défendants relied upon 
a ruling of the land officers which declared Judd's claim to be the su- 
perior one, and under which he had submitted proof of compliance with 
the homestead law, and had obtained a certificate declaring that he was 
entitled to a patent. But this ruling and the issuance of this certificate 
were not in themselves final acts, and, no patent being issued thereon, 
they never became final. The rulings and acts of the officers of the 
Land Department of the United States, made and donc in the course of 
proceedings to obtain the title to public land before the issuance of a 
patent, are interlocutory ; and, "until the matter is closed by final 
action, the proceedings of an officer of a department are as much open 
to review or reversai by himself or his successor as are the interlocutory 
decrees of a court open to review upon the final hearing." New Or- 
léans V. Paine, 147 U. S. 261, 266, 13 Sup. Ct. 303, 37 L. Ed. 162. The 
issuance of a patent, or such other act as passes the légal title from the 
government, is the final act, and is the expression and entry of the final 
judgment of the officers of the L,and Department; and this is the act 
that marks thc'termination of the jurisdiction of thèse officers and the 
beginning of the jurisdiction of the courts. Moore v. Robbins, 96 U. S. 
530, 533, 24 L. Ed. 848 ; United States v. Schurz, 102 U. S. 378, 396, 
401, 402, 26 L,. Ed. 167; Smelting Co. v. Kemp, 104 U. S. 636, 640, 26 
L. Éd. 875 ; Michigan Land & Lumber Co. v. Rust, 168 U. S. 589, 592, 
18 Sup. Ct. 208, 42 L. Ed. 591 ; Brown v. Hitchcock, 173 U. S. 473, 19 
Sup. Ct. 485, 43 L. Ed. 772; Bockfinger v. Poster, 190 U. S. 116, 23 
Sup. Ct. 836, 47 L. Ed. 975. "The true rule, drawn from an examina- 
tion of ail of the authorities, is that the jurisdiction of the Land Depart- 
ment ceases where the jurisdiction of the courts commences, viz., vv'hen 
the légal title passes, and that there is no hiatus between the termination 
of the one and the beginning of the other. Under this rule the land 
will always be within a jurisdiction which can administer the lav/, and 
protect.both public and private rights" involved in proceedings for the 
acquisition of its title. Parcher v. Gillen, 26 Land Dec. 34, 42. So long 
as the légal title remains in the United States, the land laws are in pro- 
cess of administration. Michigan Land & Lumber Co. v. Rust, supra ; 
Beley v, Naphtaly, 169 U. S. 353, 364. 18 Sup. Ct. 354, 42 L. Ed. 775 ; 
Brown v. Hitchcock, supra. And the extent, character, and validity 
of rights claimed under those laws, and of entries made thereunder, are 
subject to inquiry, examination, and détermination in the Land Depart- 
ment. See authorities supra, and Orchard v. Alexander, 157 U. S. 
372, 15 Sup. Ct. 635, 39 L. Ed. j^iT^ Hawley v. Diller, 178 U. S. 476, 
488, 490, 20 Sup. Ct 986, 44 L. Ed. II 57; Cosmos Co. v. Gray Eagle 
Oil Co., 190 U. S. 301, 309, 23 Sup. Ct. 692, 47 L. Ed. 1064. That 
this is necessarily so is shown in the following statement of Mr. Secre- 
tary Lamar (5 Land Dec. Dep. Int. 494), which received the approval 



PETTON V. DESMOND. a 

of the Suprême Court în Knight v. United States L'an'd Association, 142 
U. S. 161, 178, 12 Sup. Ct. 258, 35 L. Ed. 974: 

"For example, If, when a patent Is about to Issue, the secretary should dls- 
cover a fatal defect in the proceedings, or that, by reason of some newly as- 
certained fact, the patent, if issued, would hâve to be annulled, and that It 
would be his duty to ask the Attorney General to Institute proceedings for its 
annulment, It would hardly be seriously contended that the secretary might 
not interfère and prevent the exécution of the patent He could not be obligea 
to sit quietly and allow a proceeding to be eonsutumated, which It would be 
immediately his duty to ask the Attorney General to take measures to annul." 

But the power of the Land Department to review its prior rulings 
and to cancel existing entries is not unlimited or arbitrary (Cornélius 
V. Kessel, 128 U. S. 456, 9 Sup. Ct. 122, 32 L. Ed. 482), and can be exer- 
cised only after notice to parties in interest and due opportunity for a 
full hearing (Brown v. Hitchcock, 173 U. S. 478, 19 Sup. Ct. 485. 43 
L. Ed. 772 ; Guaranty Savings Bank v. Bladow, 176 U. S. 448, 453, 20 
Sup. Ct. 425, 44 L. Ed. 540; Hawley v. Diller, 178 U. S. 489, 20 Sup. 
Ct. 986, 44 E. Ed. 1157; Thayer v. Spratt, 189 U. S. 346, 351, 23 Sup. 
Ct. 576, 47 L. Ed. 845). One who purchases of an entryman before the 
issuance of a patent obtains no greater right or estate than is possessed 
by the entryman, and acquires at the most a right or équitable estate, 
which is subject to examination in the Land Department while the title 
remains in the government. In the absence of a statute providing 
otherwise, he is chargeable with knowledge of the state of the title which 
he buys, holds it subject to any equities which could be asserted against 
it in the hands of the vendor, and takes the risk of losing it if it is 
subsequently shown that the entry is based upon an error of law or a 
clear misapprehension of the facts, which, if not corrected, will lead to 
the transfer of the government's title to one not entitled to it. Hawley 
V. Diller, 178 U. S. 485-488, 20 Sup. Ct. 986, 44 E. Ed. 1157; Guar- 
anty Savings Bank v. Bladow, 176 U. S. 454, 20 Sup. Ct. 425, 44 L. Ed. 
540; Thayer v. Spratt, 189 U. S. 352, 23 Sup. Ct. 576, 47 L. Ed. 845. 
The Land Department being a spécial tribunal to which Congress has 
confided the administration and exécution of the laws for the disposition 
of the public lands, the final judgment of the officers of that depart- 
ment as to matters of fact properly determinable by them is conclusive, 
when brought to notice in a collatéral proceeding, such as this is, and 
is unassailable, except by a direct proceeding for its correction or annul- 
ment. Johnson v. Towsley, 13 Wall. 72, 20 L. Ed. 485 ; Shepley v. 
Cowan, 91 U. S. 330, 340, 23 L. Ed. 424 ; Quinby v. Conlan, 104 U. S. 
420, 26 L. Ed. 800 ; Steel v. Smelting Co., 106 U. S. 447, i Sup. Ct. 
389, 27 E. Ed. 226; Moss V. Dowman, 176 U. S. 413, 20 Sup. Ct. 429, 
44 L. Ed. 526; Calhoun, etc., Co. v. Ajax, etc., Co., 182 U. S. 499, 510, 
21 Sup. Ct. 885, 45 E. Ed. 1200; De Cambra v. Rogers, 189 U. S. 119, 

23 Sup. Ct. 519, 47 L. Ed. 734; Gertgens v. O'Connor, 191 U. S. 237, 

24 Sup. Ct. 95, 48 E. Ed. 164 ; James v. Germania Iron Co., 46 C. C. 
A. 476, 107 Fed. 597; Uinta Tunnel, etc., Co. v. Creede, etc., Co., 57 
C. C. A. 200, 119 Fed. 164. As was said by Mr. Justice Field in 
Smelting Co. v. Kemp, 104 U. S. 636, 640, 26 L. Ed. 875 : 

"The exécution and record of the patent are the final acta of the officers 
of the government for the transfer of its title, and, as they can be lawfully 
performed only after certain steps hâve been taken, that instrument, duly 



10 129 FEDERAL EEPORTER. 

signed, countersigned, and sealed, not merely opérâtes to pass the title, but 
is in the nature of an officiai déclaration by that brancb of the government 
to which the aliénation of the public lands, under the law, is intrusted, that 
ail the requirements preliminary to its issue hâve been complied with. The 
presumptions thus attending it are not open to rebuttal in an action at law." 

By the application of thèse established rules to the facts of this case, it 
is seen that the proceedings in the Land Department, which terminated 
with the issuance of the patent to the plaintifï, were within the jurisdic- 
tion of that department, and by them it is conclusively determined, sq 
far as this action is concerned, that the plaintiff, by full compliance 
with the requirements of the homestead law, entitled himself to the pat- 
ent; that he lawfully settled upon the land, and lawfully maintained 
his résidence thereon for a continuons period of at least five years be- 
fore the patent was issued, thèse being conditions précèdent to obtain- 
ing a patent under the statutes (section 2291, Rev. St., Act May 14, 1880, 
c. 89, § 3, 21 Stat. 140, 141, U. S. Comp. St. 1901, pp. 1390, 1393) under 
which this patent was issued ; that Judd never entitled himself to a pat- 
ent ; and that his entry was properly canceled, because wrongfully ob- 
tained. The défendants obtained no right to the land or to the timber 
by their purchase from Judd. His entry and his conveyance to the de- 
fendants hâve no bearing whatever upon this action, save as they indi- 
cate whether the défendants appropriated the timber under such an 
honest belief in a légal right so to do as affects or limits the damages 
which otherwise would be recoverable from them. 

After the plaintiff, in the course of asserting a claim adverse to 
Judd, had secured the cancellation of the latter's entry and the re- 
jection of the defendant's claim thereunder, it was entirely compétent 
for the land ofïicers to give full effect to plaintiff's résidence upon the 
iand during the existence of that entry, if such résidence was actual, 
and was begun and maintained in good faith, with a view to obtaining 
title under the homestead law. Counsel for the défendants call atten- 
tion to a statute of Wisconsin (section 4165, Rev. St. 1898) purporting 
to give certain probative force to a final receipt or patent certificate is- 
sued under the land laws of the United States, and argue from this 
that the plaintiff was a mère trespasser during the existence of Judd's 
entry, and that his résidence upon the land during that time could not 
be made the basis of any right, légal or équitable. There are two suf- 
ficient answers to this contention. One is that, before the plaintiff's 
résidence during that period was made the basis of issuing a patent 
to him, the receipt or certificate issued to Judd had been canceled by 
compétent authority because it was wrongfully obtained, and by that 
cancellation had been deprived of ail probative force. Guaranty Sav- 
ings Bank v. Bladow ; Thayer v. Spratt, supra. The other is that a 
State cannot by its législation restrict or affect the authority of the of- 
ficers of the Land Department in the disposition of the public lands of 
the United States, or withhold from the grantees of the United States 
any of the incidents of the transfer of the government's title. Bagnell 
v. Broderick, 13 Pet. 436, 450, 10 L. Ed. 235 ; Wilcox v. McConnel, 
13 Pet. 498, 516, 10 L. Ed. 264; Irvine v. Marshall, 20 How. 558, 564, 
15 L. Ed. 994; Gibson v. Chouteau, 13 Wall. 92, 99, 20 L,. Ed. 534; 
Langdon v. Sherwood, 124 U. S. 74, 84, 8 Sup. Ct. 429, 31 L. Ed. 344; 
Paige v. Peters, 70 Wis. 182, 35 N. W. 329, 5 Am. St. Rep. 156. 



PETTON V, DESMOND, 11 

From what has been said, it is clear that tlie défendants are liab.te to 
the plaintiff or to the United States for the conversion of the timber, 
and that their only lawful concern is that they be made to respond only 
to the rightful claimant. Their liability is as certain as if the cutting 
had been a willful trespass; and the measnre of the damages for the 
conversion is the same, whether the right of recovery is in the plaintiff 
or in the United States. We therefore return to the question whether 
the plaintiff's title under the patent relates back to a time anterior 
to the cutting of the timber, and entitles him to recover for its conver- 
sion. It will be observed that the question is not whether the doctrine 
of relation can be invoked to create a liability where otherwise there is 
none, or to defeat or impair an intervening right or equity of an inno- 
cent third person, or can be invoked by one whose default and lâches 
will make its application operate unjustly upon another (Evans v. Du- 
rango Land & Coal Co., 25 C. C. A. 531, 537, 80 Fed. 433, 438), or by 
a stranger to the title (Gibson v. Chouteau, 13 Wall. 92, ici, 20 L. Ed. 
534), or can be invoked to avoid a liability otherwise existing (United 
States V. Bail [C. C] 31 Fed. 667; United States v. Freyberg [C. C] 
32 Fed. 195; United States v. Norris [C. C] 41 Fed. 424; Teller v. 
United States, 54 C. C. A. 349, 117 Fed. 577), or to make lawful an act 
which was criminal when donc (Teller v. United States, 51 C. C. A. 
230, 113 Fed. 273; Teller v. United States, 54 C. C. A. 349, 352, 117 
Fed. 577, 580). Nor is the question whether a homestead claimant 
may, in advance of perfecting his claim into a full légal or équitable 
title, maintain an action against another for the value of timber severed 
from the land, which the homestead claimant could not hâve lawfully 
severed for purposes of sale. Shiver v. United States, 159 U. S. 491, 
16 Sup. Ct. 54, 40 E. Ed. 231. Thèse several matters, whether deter- 
mined or undetermined by existing décisions, are apart from the matter 
now under considération, save as the principles controlling it may be 
applicable to them. While the doctrine of relation is of équitable 
origin, it has a well-recognized application to proceedings at law. By 
it "is meant that principle by which an act done at one time is consid- 
ered, by a fiction of law, to hâve been done at some antécédent period. 
It is usually applied where several proceedings are essential to complète 
a particular transaction, such as a conveyance or deed. The last pro- 
ceeding which consummates the conveyance is held, for certain pur- 
poses, to take effect by relation as of the day when the first proceeding 
was had." Gibson v. Chouteau, 13 Wall. 92, 100, 20 E. Ed. 534. Its 
purpose is to promote Justice and to give effect to the lawful intention of 
the parties. Its most fréquent application is to conveyances of real 
property or interests therein in pursuance of an antécédent contract, 
when, to give effect to the intention of the parties, or to protect pur- 
chasers from the vendee pending the fulfillment of the contract, the title 
is considered as having vested in the grantee not merely from the date 
of the actual conveyance, but from the time when the contract was 
made. The doctrine is also applied to public land transactions, when, to 
give effect to the intent of the statute or to eut off intervening claim- 
ants, the patent is deemed to relate back to the initiatory act. Ross v. 
Barland, i Pet. 655, 664, 7 E. Ed. 302 ; Eandes v. Brant, ro How. 348, 
372, 13 E. Ed. 449; Lessee of French v. Spencer, 21 How. 228, 240, 16 



12 129 FEDERAL EEPOKTER. 

L. Ed. 97; Beard v. Federy, 3 Wall. 478, 491, 18 L. Ed. 88; Grisar 
V. McDowell, 6 Wall. 363, 380, 18 L. Ed. 863 ; Stark v. Starr, 6 Wall. 
402, 418, 18 h. Ed. 925; Lynch v. Bernai, 9 Wall. 315, 325, 19 L. Ed. 
714; Shepley v. Cowan, 91 U. S. 330, 337, 340, 23 L. Ed. 424; Weeks 
V. Bridgman, 159 U. S. 541, 546, 16 Sup. Ct. y2, 40 L. Ed. 253 ; United 
States V. Loughrey, 172 U. S. 206, 218, 219, 225-231, 19 Sup. Ct. 153, 
43 L. Ed. 420. Thus it was said in Shepley v. Cowan : 

"The party who takes the Initlatory step In such cases, If followed up to 
patent, is deemed to hâve acqulred the better right, as agalnst otliera, to the 
premises. The patent which Is afterwards issued relates back to the date 
of the initlatory aet, and cuts off ail intervening claimants. Thus the patent 
upon a State sélection takes effect as of the time when the sélection is made 
and reported to the land office, and the patent upon a pre-emption settlement 
takes effect from the time of the settlement, as disclosed in the declaratory 
statement or proofs of the settler to the register of the local land office." 

Other applications of the doctrine will be found in Cothrin v. Faber, 
68 Cal. 39, 4 Pac. 940, 8 Pac. 599; Jackson v. Bull, i Johns. Cas. 81 ; 
Id., 2 Caines, Cas. 301 ; Jackson v. Ramsay, 3 Cow. 75, 15 Am. Dec. 
242; Heath v. Ross, 12 Johns. 146; St. Onge v. Day, 11 Colo. 368, 
18 Pac. 278 ; Musser v. McRae, 44 Minn. 343, 46 N. W. 673. It con- 
clusively appears, as before shown, that the timber was severed from 
the land after the initiation and during the maintenance of the plain- 
tifï's homestead claim; in other words, while he had a conditional or 
inchoate right to the land, which was capable of perfection through 
compliance with the homestead law, and which in due course ripened 
into a full légal and équitable title before the commencement of this 
action. This conditional or inchoate right included an exclusive right 
to the possession so long as the plaintiff should comply in good faith 
with the requirements of the law controlling homestead claims, and in- 
cluded a further right to eam and receive the title. This right to the 
possession and to earn and receive the title extended to everything 
which was part of the land — timber as well as soil. The severance of 
the timber from the soil was a violation or infraction of the plaintifï's 
right to the possession, and of his right to earn and receive the title. 
It was an injury to both. It may be that the conditional or inchoate 
right of a homestead claimant is subject to a power in Congress to 
terminate it in whole or in part — as to the land or only as to the timber 
— at any time before it is perfected into a vested équitable estate by full 
compliance with the requirements of the law, but it is not terminable 
or subject to impairment by third persons. Unquestionably, in the ab- 
sence of the exercise of such a power by Congress — and its exercise hère 
is not claimed — the plaintifif was entitled, upon perfecting his home- 
stead claim, to receive a conveyance of the land in the condition in which 
it was when his claim was initiated. The défendants made that im- 
possible. When the patent was issued, the timber was gone. In its 
stead there existed a right of action for its conversion. Does not the 
promotion of justice — the due protection of the plaintiff's rights — re- 
quire that his patent be held to relate to the date of his initlatory act, 
and thereby to invest him with that which now takes the place of the 
timber? We think it does. The terms of the statute are such that the 
présence of valuable timber on pubHc land does not exclude it from 
homestead settlement or entry. It is therefore probable and reasonable 



INTEENATIOXAL NAT. CO. V. SEA INS. 00. 13 

that tîie plaintiff, in selecting thîs tract from among others, was îti- 
fluenced by the value given to it by its timber. It was the intention of 
the government, by the homestead law, and was the intention of the 
plaintiff, in accepting the provisions of that law, that, upon his compli- 
ance with its requirements, he should be entitled to the land, with what- 
ever advantages were incident to its natural condition and character, 
whether due to the fertility of its soil, or to its growth of timber. But 
for the act of the défendants, that intention would hâve been effectuated, 
and the timber would hâve passed to the plaintiff by the patent, as did 
the soil from which the timber was severed. It does not comport with 
the spirit of the homestead law to say that, after the initiation and 
partial perfection of a homestead claim, some third person may rob 
the land of a substantial part of that which gives it value, and that, on 
full compliance with the law by the homestead claimant, the government 
may convey to him that which is left of the land, and may recover 
from the wrongdoer, and retain to its own use, the value of that which 
has been unlawfully taken from the land through no fault or wrongfui 
act of the homestead claimant. The law does not contemplate anything 
so unreasonable. The principles underlying and supporting the doc- 
trine of relation are such that it may be as readily invoked to remedy or 
correct a loss such as is hère disclosed, occurring while the claim was 
being perfected, as to prevent the loss of the entire right or title through 
an intervening claim. The plaintiff's title under the patent relates 
back to a time prior to the severance and conversion of the timber by 
the défendants, which was after the initiation of his claim, and entitles 
him to maintain this action. 
The judgment is affirmed. 



INTERNATIONAL NAV. CO. v. SEA INS. CO., Limited. 

(Circuit Court of Appeals, Second Circuit. Marcli 8, 1904) 

No. 113. 

1. Marine Insurance— Salvagb Expenses— Law Governing Appoetionmbnt. 
An English valued policy on a stiip eontained ttie provision: "General 
average salvage, and spécial charges as per foreign custom, payable ac- 
eording to foreign statements, • • • or per rules of port of discharge, 
♦ * * at the option of assured." Held, that under such provision the 
law of New York, the port of discharge, governed as to the amount payable 
by the insurer on account of salvage arising from stranding, there ad- 
justed, and the insured was entitled to recover on the policy, in accordance 
with the law of the port, a sum which bears the same ratio to the entire 
salvage he was compelled to pay as the amount of the policy bears to the 
policy value of the ship, although the award was made on a higher valua- 
tion, and not, as by the law of England, only such part of said sum as 
bears the same ratio to the whole as the policy valuation bears to the 
valuation on which the adjustment was made. 

Appeal from the District Court of the United States for the Eastem 
District of New York. 

This cause comes hère on appeal from a decree of the District Court, 
Eastern District of New York, in favor of the libelant, owner of the 
steamer St. Paul, claiming loss under a poHcy of marine insurance. 
The opinion of the District Court is found in 124 Fed. 93. 



14 129 FEDERAL EEPOETBR. 

Wilhelmus Mynderse, for appellant. 
Henry G. Ward, for appellee. 

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges. 

PER CURIAM. The St. Paul, on a voyage from Southampton, 
stranded on the New Jersey coast, and salvage services were rendered 
to vessel and cargo, as the resuit of which the vessel reached New 
York, having sustained physical damage involving serions repairs. 
The salvors took légal proceedings against vessel and cargo, and an 
award was made separately against each. The St. Paul (D. C.) 82 
Fed. 104, aiïirmed by this court 86 Fed. 340, 30 C. C. A. 70. The 
award against the vessel (exclusive of the share to be borne by the 
freight) was $129,914.57. A statement was made up by Johnson & 
Higgins, average adjusters, in which the salvage award against the 
steamer was claimed as a particular average, being added to the cost 
of repairs to the ship caused by stranding; the total amount being 
$248,377.28. This statement was presented to the underwriters on the 
St. Paul, both in this country and in England. Some of the American 
underwriters refused payment of the claim under the said statement. 
Suit was brought in the District Court, Southern District of New 
York, and libelant l'ecovered. International Navigation Co. v. Atlantic 
Mutual Ins. Co. (D. C.) 100 Fed. 304. That décision was affirmed by 
this court. 108 Fed. 987, 48 C. C. A. 181. 

The respondent hère is a British corporation, and issued the policy 
of Insurance in I,ondon. The vessel was valued in ail her policies at 
£275,000, and she was insured for the whole of that amount ; the re- 
spondent underwriting £4,500. The salvage award was made on the 
basis of actual value in her salved condition, $2,000,000 (£410,256) ; 
and her value in sound condition was $2,100,000 (£441,025). The libel- 
ant claimed to recover ^Vstbo of the $248,377.28. The insurers con- 
tend that their liability for the salvage award is restricted to *''/2tbo 
of ^'^"""AiioaB thereof. The conceded amount was paid, and this suit 
was brought to recover the différence. The question in dispute is 
whether, under a valued policy, where salvage has been awarded on 
a higher valuation, the insured can recover ratably from the several 
underwriters the salvage he has had to pay, or only such part of it 
as is in the same proportion to the whole salvage paid as the total policy 
valuation is to the valuation on which salvage was awarded. 

No question seems to be raised as to the amount to be paid for re- 
pairs to the vessel. It will be perceived that the question presented is 
a single one, and the concessions of the respective parties hâve greatly 
simplified it. The respondent's method of calculation is in accord with 
English law. The libelant's is in accord with American law. For 
brevity of statement, the one may be called "nominal proportion"; the 
other, "actual proportion." 

The policy is a British contract, and is to be interpreted accordingly. 
It is, however, "compétent to an underwriter on an English policy to 
stipulate, if he think fit, that such policy shall be construed and applied, 
in whole or in part, according to the law of any foreign state, as if 
it had been made in and by a subject of the foreign state." Gréer v. 



INTERNATIONAL NAV. CO, V. SEA INS. CO. 15 

Poole, 5 Q. B. D. 272. The policy of the défendant contaîns tlie fol- 
lowing provision : 

"General average, salvage and spécial charges as per foreign custom, pay- 
able aecording to foreign statements or per York-Antwerp rules, or York-Ant- 
werp rules of 1S90, or per niles of port of discliarge, if in accordance with 
contract of affreightment at the option of assured." 

Precisely Ihis form of words is not found in anv of the cases cited 
upon the briefs, but it seems to us reasonably easy of interprétation. 
As was stated before, without some such clause, the assured on a 
valued policy was liable to pay in some foreign port gênerai average 
charges at one rate, and when lie came to his underwriter for indemnity 
would be paid at a différent rate, receiving less than he had paid, and 
not securing complète indemnity. The same rule applied to claims 
for salvage loss as to claims for gênerai average loss. Steamship 
Balmoral Company v. Marten, L. R. App. Cases (1902) 511. Naturally 
the assured sought to. correct this by some spécial provision which the 
underwriter might be willing to assent to. A provision quite f re- 
quently adopted was, "General average aecording to foreign custom;" 
also, "General average as per foreign statement." Such provisions 
hâve been considered by British courts, and in each instance it was 
held that the underwriter could not dispute thé adjustment as to the 
propriety of particular items, or as to correctnèss of thé apportion- 
ment, and was bound by the décision of the foreign average stater, or 
by the custom of the foreign port, both as to fact and law on the sub- 
ject of gênerai average. Mavro v. Océan Ins. Co., L. R. 9 C. P. 595 ; 
The Mary Thomas, Prob. Div. (1894) 123; Harris v. Scaramanga, i 
Asp. Mar. Cas. 344 ; De Hart v. Compania Anonima, 9 Asp. Mar. Cas. 
345, affiirmed 8 Commercial Cases, 314. The lâst citation contains the 
following: . 

"The gênerai efifect of the mémorandum [to pay gênerai average as per for- 
eign statement, if so made up] is to make the underwriters liable as to gên- 
erai average for whatever the owners of the goods might be called upon to 
pay on that account by the foreign statement of adjustment • * * If an 
adjustment has to be effected in a foreign port, it is obviously convenient that 
there should be a provision that in such a case the underwriter should stand 
in the shoes of those primarily liable upon it." 

In none of the cases cited was the proposition raised, as it is hère, 
that, although the assured inight hâve paid gênerai average charges 
on actual valuation, his claim for such loss should nevertheless be re- 
adjusted by scaling it down to a "nominal proportion." It would cer- 
tainly seem that the manifest object of the clause would be defeated 
by so narrow an interprétation. "General average as per foreign cus- 
tom" would be a déclaration not wholly lived up to, if foreign custom 
made the assured pay on one basis, but the mémorandum clause allowed 
him to collect only on another. No authority, British or other, is cited 
which is persuasive to so narrow an interprétation of a clause obviously 
intended to relieve the assured from the risk of meeting disaster with- 
out being compelled himself to meet the added risk of the geographical 
location of his ship when the loss was incurred and the port of safety 
was reached. Indeed, it would seem that the avoidance of this geo- 
graphical risk was the genesis of the clause. 



16 129 FEDERAL KEPOEÏEK. 

The phraseology of the clause in the policy now under considération 
is broader than in the cases cited, for it submits to "foreign custom," 
whether there be an adjustment or not, "salvage and spécial charges." 
We concur entirely with the District Judge in the conclusion that un- 
der that clause the settlement ôf salvage losses under the policy must 
be in conformity to the law of the country in which the assured pays 
them. 

The decree is affirmed, with interest and costs. 



DICKINSON et al. v. SAUNDERS et al. 

(Circuit Court of Appeals, First Circuit, April 13, 1904.) 

No. 516. 

1, FOEEIGN CORPOKATION— DeCBBE APPOINTING RecEIVERS CoNSTRUED. 

A decree appolnting recelvers for a foreign corporation, and directing 
that they continue to operate the property until otherwise directed, and 
from the mbneys coming into thelr hands pay ail sums due to employés 
and ail expenses of carrying on the business, eonstrued, under the cir- 
cumstances, as requiring the receivers to pay from the proceeds of the 
corporation's property ail claims for wages earned prior to their appoint- 
ment, as well as wages earned thereafter. 

2. Same—Peioeitt— Wages or Employés. 

Where a fédéral court could hâve acqulred jurisdlction to appoint re- 
ceivers for a foreign corporation only by consent of the parties, and no ob- 
jection was made by any party to such appointment, or to a decree re- 
quiring the receivers to pay from the proceeds of the corporation's prop- 
erty ail sums due employés, together with ail the expenses of carrying 
on the business, the receivers could not thereafter, under the circum- 
stances of this case, refuse to pay in full claims for wages earned by 
employés of the corporation prior to the receivers' appointment, none of 
which exceeded $300 in amount, in préférence to other unsecured claims. 

Appeal from the Circuit Court of the United States for the Dis- 
trict of Massachusetts. 

Guy Cunningham, for appellants. 

Henry T. Lummus (Charles N. Barney, with hini on the brîef), for 
appellees. 

Before PUTNAM, Circuit Judge, and ALDRICH and BROWN. 
District Judges. 

PUTNAM, Circuit Judge. This appeal arose out of a bill in equity 
filed in the Circuit Court for the District of Massachusetts on the 7th 
day of August, 1902, by the Boston & Gloucester Steamboat Company 
and others against the Cape Ann Granité Company, incorporated under 
the law5 of Maine, but said to hâve a usual place of business at 
Gloucester, in Massachusetts. The bill alleged that the Cape A"" 
Granité Company in March, 1894, executed a mortgage of its fran- 
chises and ail its property to secure an issue of bonds, and that ail 
the complainants were holders of portions thereof, either absolutely 
or as collatéral security, and also of certain shares of capital stock- 



DICKIXSON V. SATJXDERS. IT 

that the mortgage was in default; that the défendant corporation 
had an amount of property of varions kinds, and was largely in- 
debted; that its property had been attached by various creditors; 
that the corporation was wholly insolvent, and that it was likely that 
a race of diligence wonld ensue between its différent creditors, ail 
of which would resuit in a multiplicity of suits, and in dismember- 
ment and sale of its property by piecemeal and at a sacrifice ; that 
its Personal property, consisting principally of machinery and equip- 
ment, was of great value as attached to and part of its plant, but of 
little value when separated therefrom, and that the value of ail its 
property consisted largely in its continued working opération as a 
unit; and that it was necessary, for the protection of its bondholders 
and creditors and for the préservation of its assets, that ail its prop- 
erty within the jurisdiction of the court be taken into its judicial 
custody by the appointment of a receiver. Thereupon the bill prayed 
that the rights of the parties in interest might be ascertained and 
protected; that the court would administer the entire property of 
the corporation, and for such purposes would marshal its assets 
and enforce the various rights, liens, and equities ; and that a re- 
ceiver be appointed to take possession of ail the assets, with au- 
thority to manage and préserve the same till the same should be 
sold and the proceeds distributed. 

Thus the bill looked not merely to a foreclosure of the mortgage 
in which the complainants were interested, but to a winding up and 
distribution of the assets of the corporation, and the conséquent 
intervening control and management of its affairs, with the view of 
making its assets of most available value. Thereupon, the same day 
the bill was filed, the appellants were appointed interlocutory re- 
ceivers as prayed by the bill, and were authorized to retain posses- 
sion of ail the properties until sold, and to operate and continue 
the business until otherwise directed, and from the moneys coming 
into their hands to pay ail sums due to employés and ail expenses 
of carrying on the business. No objection to thèse proceedings 
seems to hâve been taken from any quarter, so that we hâve no 
occasion to consider any question except that which is now ex- 
pressly before us. 

Subsequently to fîling the bill, on May i6, 1903, certain petition- 
ers intervened, setting forth that they were "workmen and serv- 
ants" employed by the défendant corporation during April, May, 
June, July, and August, 1902; that they had clainis against it for 
the various amounts stated in the schedule attached to the pétition, 
as wages earned during the months specified for labor necessary to 
its business from day to day; that the claims were contractée as 
a part of current expenses in the ordinary course; that the receiv- 
ers had sold and converted into cash a large amount of personal 
property which was not covered by the mortgage in question; that 
they had applied none of the same to the payment of the claims of 
the petitioners, and had refused to do so ; and that it was likely that 
the property and money remaining in their hands, if distributed 
among ail the unsecured creditors, would be insufficient to pay in 
fuU. Thereupon they prayed that their claims might be allowed as 
129 F.— 2 



18 129 FEDERAL REPORTER. 

preferred, and hâve priority over ail other unsecured claims, and 
that, so far as the petitioners were entitled to priority, the receivers 
might be ordered to pay them. 

The receivers put in an answer to this pétition, and objected to 
the granting thereof. There is nothing in the record showing a di- 
version of assets as alleged. With that exception, the case rests 
on the substance of the pétition as we hâve given it. The court de- 
creed that the debts of the petitioners should be allowed as pre- 
ferred, and that the receivers should pay the same. From this de- 
cree the receivers seasonably appealed. 

It does not appear that the assets of the défendant corporation 
hâve ever been disposed of under the form of a decree of distribu- 
tion, but it is admitted that some of the property not covered by 
the mortgage has been sold by the receivers and converted into 
cash, which at the time of the filing of the intervening pétition was 
in their hands. It also appears that thus the receivers hâve in their 
hands a sum, not bound by the mortgage, sufficient to pay the pe- 
titioners in full, but that such payments, if made, would leave almost 
nothing for the other unsecured creditors. The claims allowed by 
the court cover a period of something more than four months prior 
to the appointment of the receivers, and the total of some of them 
was in excess of $ioo, but none in excess of $300. The learned 
judge of the Circuit Court filed no opinion, so that the grounds on 
which he made his decree are not before us. 

The record présents no equity in behalf of the intervening peti- 
tioners, other than that they were workmen. The défense rests on 
the ground that their claims diiifer in no way from any of the unse- 
cured liabilities to which they ask to be preferred. The proposi- 
tion is also made that the défendant is not a quasi public corpora- 
tion, the continued opération of which is of gênerai interest. The 
receivers maintain that the décisions of the Suprême Court allowing 
priorities relate to corporations which owe duties to the public, on 
which account, in ôrder that there may not be a cessation of the 
performance thereof, they say spécial concessions hâve been made. 

There hâve been numerous voluminous opinions of the Suprême 
Court with référence to priorities involved in the administration of 
the property of quasi public corporations like railroads, which it 
would be laborious and unnecessary to digest and classify. A late 
gênerai statement of them will be found in Southern Railway Com- 
pany V. Carnegie Steel Company, 176 U. S. 257, 20 Sup. Ct. 347, 44 
L,. Ed. 458. It is true that, so far as such corporations are con- 
cerned, the court has said that, inasmuch as they owe duties to the pub- 
lic, their mortgagees acquiring security thereon do it with the implied 
équitable undertaking on their part that no summary action by them 
shall interfère with the performance of such duties. Therefore it has 
been said that if mortgagees, instead of rel3'ing upon their strictly 
légal rights and légal remédies, see fit to go into equity, they must con- 
sent to équitable terms in référence thereto. In the same way the 
court has recognized another equity in behalf of indebtedness created 
from hand to mouth in favor of laborers, mechanics, and dealers sup- 
plying material for day to day opération, to the effect that, if mortga- 



DICKINSON V. SAUNDEES. 19 

gees, after a raiiroad corporation becomes insolvent, accept payment 
of interest, and allow to be applied thereto moneys which ought to 
hâve been used in disbursing the cost of the opération of the property, 
another equity arises, by virtue of which what has thus been- taken 
from the immédiate hand to mouth creditors shall be restored to them. 
But the equity which is claimed hère is of an éntirely différent char- 
acter. It is simply a question between différent classes of unsecured 
creditors ; that is, between those who, on the one hand, are understood 
to give crédit, and those who, on the other, furnish labor with no inten- 
tion of crédit, but with the expectation of immediately being paid from 
day to day eut of the accruing earnings of the property. Therefore 
the questions arise whether there is such an equity, and, if yes, what 
is its extent ? This equity, if it exists at ail, is, of course, appHcable to 
ail classes of employers whose property cornes into the hands of chan- 
cery for administration. 

Some courts recognize this equity. Perhaps it never lias been put 
better than in Jones v. Arena Publishing Company, 171 Mass. 22, 50 
N. E. 15. The opinion in behalf of the majority of the court said at 
pages 27 and 28, 171 Mass., and page 16, 50 N. E., as follows : 

"The questions whether taxes and debts due to workmen for labor are en- 
titled to priority may be considered together. The relief sought is merely the 
gettlng in and the distribution of what are linown in equity as 'légal assets.' 
In the course of the administration of assets, courts of equity follow the same 
rules in regard to légal assets which are adopted by courts of law, and give 
the same priority to the différent classes of creditors which is enjoyed at law : 
thus maintaining a practlcal exposition of the maslm, '.a^quitas sequitur 
legem.' 

"It would be a plain injustice if a gênerai créditer, by resorting to equity 
for the administration of his debtor's goods, merely for the reason that by the 
aid of equity the amount to be divided would be larger, could gain a further 
advantage by reducing to the level of common creditors workmen whose wages 
would hâve priority if the assets were left to be administered at law, or could 
thus place his own debts upon an equality with taxes which would hâve been 
paid in full had not equity Interfered. The défendant corporation was sub- 
jected to our insolvency ï&w by force of St. 1890, c. 321 ; and, if equity had not 
corne in to conserve and distribute its légal assets, the wages of its workmen 
and the taxes due from it would bave priority in the distribution of its assets 
by the usual agencies of common law. Those agencies could not keep its busi- 
ness going at the time when the bill was filed. For this reason only, the 
creditors, merely to increase the amount of the fund, asked equity to inter- 
fère in behalf of ail creditors alike. It would be unjust if that interférence 
should be at the sole cost of the workmen and of the public, through depriving 
claims for labor and taxes of the priority of payment which they would hâve 
had if equity had not intervened." 

At the time the decree appealed from was made there was an ex- 
isting statute in Massachusetts, now found in Rev. Laws 1902, c. 150, 
§ 29, as follows : 

"The following claims shall, in the settlement of estâtes by receivers, be en- 
titled to priority in the order named : 

• ••****•• 

"Second. Wages to an amount of not more than one hundred dollars due to 
an operative, clerk or servant for labor, either performed within one year last 
preceding the appointment of the receiver or for the payment for which a suit, 
which was commenced within one year after the performance of the labor, is 
pending or was terminated within one year after said appointment." 



20 129 FEDERAL REPORTEE 

The bankruptcy act of July i, 1898, c. 541, § 64b, 30 Stat. 563 [U. 
S. Comp. St. 1901, p. 3447], provides priority for wages due to work- 
men, clerks, or servants, earned within three months before the date 
of the" commencement of proceedings in bankruptcy, not to exceed 
$300 to any claimant. Turning, therefore, either to the local statute, 
or to what, for the fédéral courts, is the higher authority, a priority in 
favor of creditors of the class of the interveners in this case is de- 
clared as a rule of administration, not only for quasi public corpora- 
tions, but for ail corporations, and in the fédéral statute for corpo- 
rations and individuals. Although the statute of the state of Massa- 
chusetts could not, of course, control proceedings in the fédéral courts, 
and undoubtedly had no direct relation to receivers appointed by those 
courts, and although it may be possible for the appellants to claim 
that this particular corporation was not within the classes of corpora- 
tions subject to proceedings under the bankruptcy statutes, yet each 
législative System déclares a policy which a chancellor, in hunting 
about for sorne analogy to guide the équitable administration of 
his office, might lay hold of under some circumstances. While not 
strictly bound by either, he might be justified, if his duty required 
it, in taking into considération each or both in disposing of a question 
like that before us. 

Judicial discrétion, it is true, is subject to rules, and not arbitrary. 
It must, of course, be governed by reasonable considérations, and is so 
far from involving pure discrétion that it may be reviewed on appeal. 
The présent case, however, is peculiar in such substantial respects that 
it does not require that we should sharply détermine the questions sug- 
gested ; and it affords little opportunity for our revising the action of 
the Circuit Court, unless clearly unreasonable. The défendant cor- 
poration having its habitat in Maine, the Circuit Court for the District 
of Massachusetts had, according to vi^ell-settled rùles, no jurisdiction 
over a bill of the character in question, unless by consent; and that 
it took jurisdiction implies that it was by the consent, and, indeed, it 
may be said at the request, of ail the parties to the proceeding. No one 
intervened to object thereto. The statutes of the state of Maine, where 
this corporation was created, provide précise and peculiar methods for 
winding it up and distributing its assets, which neither contemplate nor 
authorize a proceeding of the kind instituted in the Circuit Court. 
Neither do the statutes of Massachusetts provide for proceedings of 
this character with référence to foreign corporjitions. Neither was the 
case framed to come within the eighth section of the act of March 3, 
1875 (18 Stat. 472, c. 137), providing specially for the administration 
of real or personal property within the district. The extent to which 
the authorities hâve given fédéral courts jurisdiction in their own right 
with référence to winding up corporations or marshaling their assets 
is in instances where the state statutes provide for their dissolution, 
and for équitable proceedings for that purpose, which, of course, may 
be adopted by the fédéral courts, as in Terry v. Commercial Bank of 
Alabama, 93 U. S. 454, 23 L. Ed. 620, and in Mellen v. MoHne Malléable 
Iron Works, 131 U. S. 352, 9 Sup. Ct. 781, 33 L. Ed. 178, or in in- 
stances of ordinary creditors' bills after judgment and exécution re- 
turned nulla bona, like Central Trust Company v. McGeorge, 151 U. 



DICKIN80N V. SAUNDEES. ^a 

S. 12g, 14 Sup. Ct. 286, 38 L. Ed. 98, or in instances when called on 
to collect and dispose of the assets of dissolved corporations, domes- 
tic or foreign. The case, therefore, against the Cape Ann Granité 
Company, as made in the Circuit Court, was purely of the parties' own 
sélection, as well as was the tribunal itself. 

But in this case the distinctive feature is that the decree appointing 
the receivers contained the following direction which we hâve already 
stated, namely: "From the moneys coming into their hands to pay 
ail sums due to employés and ail expenses of carrying on said busi- 
ness." That the expression "sums due to employés" means the very 
sums in controversy hère, follows logically from the fact that ail wages 
due them, accruing after the appointment of the receivers, were covered 
by the words "ail the expenses of carrying on said business." There- 
fore the expression "ail sums due to employés" means sums due at 
the time of the décrétai order appointing the receivers, and which ac- 
crued before it. It has for a long time been customary, where parties 
apply for interlocutory receivers of a going concern, for the court to 
insert some provision of this character in the décrétai order appointing 
them. Sometimes this is done at the motion of the court or of one 
of the adversary parties. Under such circumstances, some of the ob- 
servations in Kneeland v. American Loan & Trust Company, 136 U. 
S. 89, 10 Sup. Ct. 950, 34 L. Ed. 379, apply, so that, even though the 
order appointing interlocutory receivers désignâtes certain rights of 
priority, this will not justify an unreasonable exercise of judicial power 
in référence thereto. 

The présent record, however, shows that the décrétai order appoint- 
ing the receivers was summarily entered on the same day with the 
filing of the bill against the défendant corporation; and inasmuch as, 
for the reasons we hâve already stated, the proceedings under the bill 
must hâve been by the consent of ail concerned, it is a reasonable in- 
terprétation of the record that the décrétai order, and ail the terms 
thereof, were simultaneously assented to by ail concerned. Under 
those circumstances, the observations in Kneeland v. American Loan 
& Trust Company hâve no pertinency, unless there was a clear mistake 
or clear injustice, or unless it appeared that new parties, having an 
interest not represented before the court when it took jurisdiction and 
appointed the receivers, had subsequently intervened. Nothing of ei- 
ther kind appears hère. So far as the record shows, the parties to it 
are the same who came into the court originally and voluntarily agreed 
to ail that occurred. The proceeding was therefore purely voluntary 
on ail sides. The complainànts in the original bill in the Circuit Court 
must be assumed to hâve understood the probability that, unless a pro- 
vision Hke that which we hâve cited was inserted in the decree, the 
corporation might be held to be within the statutes of bankruptcy, and 
proceeded against accordingly, in which event substantially the same 
priorities would hâve been acquired as are now sought to be enforced. 
We must therefore hold that it is in harmony with the reason of the 
case, and with the probable intention of the parties, that the provision 
which we hâve cited from the interlocutory order appointing the re- 
ceivers, with référence to "sums due to employés," is to be construed 
as we construe it. As we hâve already said, we must hold that this ex- 



22 129 FEDERAL KEPORTEK. 

pression was voluntarily assented to. It follows that, as parties to the 
original proceeding hâve got whatever advantages they could out of it, 
they must accept the consequential burdens. 

It is not essential that the bankruptcy statutes were not strictiy ap- 
plicable to this défendant corporation, if such were the fact. It is 
sufficient that there was a probability that they were. The same is 
true as to the fact that the time limit in those statutes for preferred 
wages is three months, while the limit in the case at bar appears to hâve 
been four. No amount allowed any employé by the order appealed 
from was equal to the maximum permitted by the statutes, so that, 
merely on account of the departure as to length of time, it cannot be 
said that the policy declared by Congress is inapt or was not sufficiently 
regarded. Taking this analogy in connection with the peculiar cir- 
cumstances of this proceeding to which we hâve referred, including 
the provision which we hâve cited from the décrétai order appoiuting 
the receivers, and the circumstances under which it was assented to, it 
is impossible for an appellate tribunal to find that there was anything 
unjust in the requirement of the Circuit Court that that provision 
should be literally and fully complied with. 

Therefore, without definitely deciding that the rules with référence 
to receivers of corporations of a quasi public character can be properly 
extended to other employers, we are required by the peculiar circum- 
stances of the case before us to afSrm the decree of the Circuit Court. 
In this we reach, under substantially the same circumstances, the same 
conclusion as was arrived at by the Circuit Court of Appeals for the 
Fifth Circuit, with référence to a corporation organized for mère pri- 
vate gain, in Reinhart v. Augusta Min. & Inv. Co., 94 Fed. 901, 36 C. 
C. A. 541. 

The decree of the Circuit Court is aifirmed, and each party will pay 
its costs on appeal. 



MINNESOTA S. S. CO. v. LEHIGH VALLEY TRANSPORTATION CO. et al. 

LEHIGH VALLEY TRANSPORTATION CO. v. MINNESOTA S. S. CO. et al. 

(Circuit Court of Appeals, Sixtti Circuit. March 22, 1904.) 

Nos. 1,229, 1,230. 

1. Collision— SuDDEN Sheeking of Vessel— Bueden of Peoof. 

A vessel whicli suddenly sheers from her proper course In ordlnary 
weather, in a fairly ample space for navigation, and under no apparent 
stress of circumstances occurring without lier fault, and, in conséquence 
of such sheering, comes Into collision with another vessel, is presumptively 
in fault for the collision, and has the burden of exonerating herself. 

2. Same— Steam Vessels Meeting— Pboceeding Abbeast in Ohannel. 

The steamer Mariposa, with the barge Martha in tow on a line 600 
feet long, both heavily laden with iron ore, was coming down the dredged 
channel through Lake St. Clair in the evening at a speed of about 7 miles ; 
the channel being 800 feet wide. When near the south end of the eut, 
signais for passing port to port were exchanged between the Mariposa 
and the steamers Troy and Wllbur, which were coming up lightly laden, 
and were then just below the bend at the entrance to the channel, and 
about three-fourths of a mile away. The two steamers came on abreast 
the Troy on the starboard side, and the Wilbur about 40 feet away, at a 



MINNESOTA S. S. CO. V. LEHIGH VALLET TRANSPORTATION CO. 23 

speed of 13 miles or more, and passed the Mariposa safely, but about that 
time the Wilbur took a sudden sheer to port, and struck and sunk the 
Martha. The weight of testimony tended to show that when the signais 
were exchanged the Mariposa was about on the range llne in the mlddle 
of the channel ; that she then ported, and, on seelng that the two meeting 
steamers were abreast, ported again, the Martha followlng each tlme, and 
that at the tlme of collision they were each about 150 feet to the westward 
of the center of the channel ; also that the Wilbur passed the Mariposa 
at a distance of about 50 feet, and was at no tlme east of the range llne. 
She called to the Troy to stand off and give more room, which being re- 
fused, she slackened speed just before meeting the Mariposa, which 
brought her stern withln the suction at the stem of the Troy, and caused 
the sheer. Held, that nelther the Mariposa nor the Martha was in fault, 
It appearing that the latter ported again on seeing the Wilbur sheer, but 
could not then get out of the way, but that the collision was due to the 
fault of the Wilbur and the Troy, for coming up abreast, as they did, so 
near the center of the channel ; the Troy also belng in fault for unneces- 
sarily crowdlng the Wilbur toward the meeting vessels. 
3. Admibalty — Trial — Exclusion oï Evidence. 

In the trial of an admiralty cause, where the testimony Is taken before 
the court, ail testimony ofEered, although objected to, should be admitted, 
subject to the objection for the beneflt of the appellate court, unless so 
utterly irrelevant or immaterlal that there can be no question of its in- 
admisslbility. 

Appeal from the District Court of the United States for the Eastern 

District of Michigan. 

Thèse are appeals from a decree of the district court. In admiralty, render- 
ed in a cause of collision between the steamer B. P. Wilbur and the barge 
Martha on the evening of October 26, ISOO, near the lower end of Lake St. 
Clair, and in a channel or eut extendîng from a point not far above the place 
where the waters of the lake pass down into the Détroit river, upward through 
the shoal water of the lake for several miles. The channel is straight, is 20 
feet deep, and of the width of 800 feet. The Pèche Island Range, running 
through its center, makes a course about two points to the lèft of the last 
course below on which vessels come up out of the Détroit river. The western 
side of the channel Is marked by white llghts a mile and a half or more 
apart. On the eastern slde are red lights opposite to the others, and, of 
course, the same distance apart. 

The steamer Mariposa, with the Martha in tow, on a Une 600 feet long, 
both laden with iron ore, was coming down the channel on her way to Lake 
Erie ports. The Wilbur was going up, lightly laden, and was moving along- 
side the steamer Troy, also going up, lightly laden; the Wilbur béing on the 
port side of the ïroy. Signais were exchanged between the Mariposa and the 
Wilbur and the ïroy in due season, while the two latter Were below the eut, 
and nearly three-quarters of a mile distant from the Mariposa, slgnlfying an 
agreement to pass on the port hand. The Mariposa was moving at a speed 
of about 7 miles an hour, and the up-bound steamers at a spèed of 13 miles, 
or a little more. The Wilbur and the Troy passed the Mariposa at a safe 
distance and without trouble, but at that tlme the Wilbur took a sudden sheer 
to port, and, striklng the Martha on the bluff of her bow, broke Into that ves- 
sel for a distance of 20 feet, and beyond her collision bulkhead. The bow of 
the Martha immedlately fiUed with water and sank to the bottom. The after 
part of the vessel floated for a brlef time, and then went down. The damage 
from the collision to the Martha amounted to $43,000 and over, and the Wilbur 
sustained damage to the amount of over $15,000. The collision occurred about 
half past 9 o'olock, a half mile above the lights at the lower end of the eut. 
The night was somewhat dark, though the weather was clear. and calm. 
There is a current in the eut of about a mile an hour. The Mariposa was 380 
feet long. Her breadth of beam was 45 feet, and her draught 17 feet. The 
Martha's length was 352 feet, her breadth was 44 feet, and her draught 17 feet 
and 6 inches. The Wilbur was 290 feet long, 40 feet beain, and 14% feet 



24 129 FEDERAL KEPOEÏEK. 

draught The Troy was 402 feet long, 45 feet beara, and had a draughl of 
14 feet. More particular détails of many of the principal facts are stated In 
the opinion, whlch foUows. 

The owner of the Martha, the Minnesota Steamship Company, llbeled the 
Wilbur and the Troy for her damage ; alleging that the misconduct of the 
lâtter contributed to the sheer of the AVllbur, whereby the mischlef was done. 
The Lehlgh Valley Transportation Company, claimants of the Wilbur, an- 
swered for that vessel, denylng ail fault, and, by cross-llbel and pétition, 
charged the Troy, the Mariposa, and the Martha wlth responsibility for tlie 
damages suffered by the Wilbur. The Western ïi'ansit Company, claimants 
of the Troy, answered, denying ail fault, and by pétition brought In ail the 
other vessels; charging them with various faults, and praylng that they be 
eharged with the damages ensuing In exonération of the Troy. Answers to 
the cross-libel and pétitions having been flled, and testimony taken, the par- 
ties were heard thereon. By the decree the Wilbur and the Mariposa were 
condemned, and each decreed to pày one-half of the whole damage. The 
Troy and the Martha were exonerated. The Minnesota Steamship Company 
and the Lehlgh Valley Transportation Company bave severally appealed. 

Hermon A. Kelley (Hoyt, Dustin & Kelley, of counsel), for appel- 
lant Minnesota S. S. Co. 

John C. Shaw (Martin Carey and Shaw, Warren, Cady & Oakes, of 
counsel), for appellant Lehigh Valley Transportation Co. 

Harvey D. Goulder (S. H. Holding and F. S. Masten, of counsel), for 
appellee Western Transit Co. 

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. 

SEVERENS, Circuit Judge, having made the preceding statement, 
delivered the opinion of the court. 

The outline of the controversy, as above shown, indicates that \ve 
should fîrst consider the case of the Wilbur, whose sudden departure 
from her course was the immédiate cause of the disaster. Having re- 
gard to the gênerai facts aiready stated, without more, a presumption 
of fault on the part of that vessel arises, which she takes the burden of 
dispelling. She is bound to explain how it was that, in ordinary 
weather, in a fairly ample space for navigation, and being under no 
stress of circumstances occurring without her fault, she should hâve 
been suffered to go off on so dangerous a course. The Olympia, 6i Fed. 
I20, 9 C. C. A. 393 ; The F. W. Wheeler, 78 Fed. 824, 24 C. C. A. 353 ; 
The Mitchell Transportation Co. v. Green, 120 Fed. 49, 60, 56 C. C. A. 
455; Davidson v. American Steel Barge Co., 120 Fed. 250, 56 C. C. A. 
86; The Australia, 120 Fed. 220, 222, 224, 56 C. C. A. 568. 

She has endeavored to explain, by charging that her sheer was pro- 
duced by the improper conduct of the Troy and the Mariposa, in that 
those vessels wrongfully and unlawfully maintained a course so close to 
her, on either hand, that she could not control her own movements, 
and was powerless to avoid the disaster to which those vessels impelled 
her. But her answer gives color for a belief which is abundantly con- 
fîrmed by the testimony that the Wilbur and Troy had been coming 
up the river ever since they left Détroit, eight miles below, at a rapid 
gait abreast of each other, "neck and neck," as one of the ofïicers of the 
Troy expresses it in his testimony, apparently struggling for precedence. 
It appears that, when the vessels arrived at Détroit, the Wilbur was 
ahead, but that she stopped or slackened speed there momentarily, to 
pick up the mailboat, and the Troy got by her, or nearly by her, before 



MINNESOTA S. S. CO. V, LEHIGH VALLEY TRANSPORTATION CO. 25 

she got under full speed again. At ail events, shë drew up alongside 
of the Troy, and the vessels maintained that position, at varying dis- 
tances apart, going up the river at a pace se rapid as to attract the atten- 
tion and remark of those they passed, and exciting appréhension of 
danger to other craft which they met or passed. The court below was 
complaisant enough toaccept the statement of the ofïïcers of the Wilbur 
and the Troy that they were not racing. But it matters little by what 
expression their conduct is characterized. We are convinced that the 
purpose of those on each of the steamers was that the other should 
not be allowed to get ahead of her, and that they were more intent on 
that purpose than to observe the habits of prudent navigation of their 
ships. The officers of the Wilbur say that she came around for the 
entrance of the eut only a few feet — 30 to 50 — from the lower white 
light on the west aide, and the Troy was about the same or a little 
further distance oft" on the starboard hand of the Wilbur. We are not 
prepared to say that, if thèse vessels had been proceeding separately, 
their speed was improper ; and there is no reason to suppose in the prés- 
ent instance that, if the vessels had corne up singly, the disaster would 
hâve occurred. But they had no sufficient reason for supposing that 
those coming down would know that they were coming up in that form, 
and would make préparation to give them a wide berth. The danger 
of su'dden sheers from passing other vessels, especially when going at 
great speed, is well understood ; and the danger is increased when two 
vessels are moving in the same direction, close to each other, but at 
varying speed, so that the stern of the one is liable to fall into the 
trough behind the otrer. The resuit in this instance is one of which 
there was risk. A prudent navigator would hâve taken account of it. 
A giddy one, intent on a contest of speed, might not. The captain of 
the Wilbur testifies that he was conscious of the risk ; that he did not 
like to hâve the Troy so near him; that he felt uncomfortable ; that 
he checked twice to permit the Troy to go ahead before they entered 
the channel, but that she did not, and came up into the eut not more 
than 100 feet away from the Wilbur. But he also says that there would 
hâve been no difficulty in checking the Wilbur to the extent necessary 
in order to follow the Troy, and it is manifest this was so. 

When the captain of the Wilbur testifies, as he does, that his sensé of 
the danger he was in became so great after the two steamers rounded 
to, and were about to meet the down-bound vessels, that he checked 
his own vessel, and that she immediately began to sheer, and he was 
unable thereafter to stop her until the collision happened, the immé- 
diate cause of the disaster becomes clear. The Troy was considerably 
larger than the Wilbur. The stems of the vessels were opposite. The 
stem of the Troy was 100 feet in advance of that of the Wilbur, and 
the two vessels were on parallel lines, and about 40 feet apart. When 
the Wilbur checked, her stern was sucked into the wake of the Troy 
by the inflowing waters at the stern of the latter; and this influence, 
combined with the impact of the water displaced by the bow of the 
Troy upon the forward starboard side of the Wilbur, and the high 
speed at which the vessels were moving, would naturally effect the 
uncontrollable sheer which the captain of the Wilbur says his vessel 
experienced. As the speed of the vessels was still nearly alike, thèse 



26 129 FEDERAL REPORTER. 

influences were not momentary, but were sustained for a time. It is 
contended on the part of the Wilbur and the Troy that the Mariposa 
produced, or at least contributed to produce, the sheer of the Wilbur. 
But that vessel, by the account of the Wilbur herself, was nearly twice 
as far away from her as the Troy. Besides, she was a meeting vessel, 
and in such case her influence was only momentary; and, her speed 
being moderate, the suction at her stem could net hâve been great— 
not greater than would be frequently experienced in ordinary naviga- 
tion. 

The influences which operated hère, and which are so constantly ob- 
served by intelligent seamen, were discussed and in great measure ex- 
plained by this court in the case of The Alexander Folsom, 52 Fed. 403, 
3 C. C. A. 165. And in severar cases since we hâve had occasion to 
observe their décisive eflfect in contributing to disastrous collisions. 
The Ohio, 91 Fed. 547, 33 C. C. A. 667; The Fontana, 119 Fed. 853, 
56 C. C. A. 365 ; The Australia, 120 Fed. 220, 56 C. C. A. 568. 

When the steamers came around into the channel, they knew what 
the position of the Mariposa and her tow was. If there was danger, 
they could see it. They were three-quarters of a mile ofï. But they at 
no time gave any signal to the Mariposa of apprehended danger. For 
reasons which we shall state hereafter, we are convinced that the Mari- 
posa and the Martha were for some distance, before they met the up- 
bound steamers, on the western side of the middle of the fairway or 
dredged channel. It is certain, and it is the one thing about which there 
is no dispute, that the Wilbur and the Troy were advancing abreast 
and very close to each other — not more than 40 feet apart. Those on 
the Wilbur called to the Troy to stand ofï and give the Wilbur more 
room, or to check her speed. This request was met by an obstinate 
refusai. The Troy justifies herself by the allégation that she was 
already well over to the eastern side of the channel, and could not pru- 
dently give more room. Moreover, the captain of the Troy testifies 
that there was ample distance between the Troy and the Mariposa 
and her tow to allow the Wilbur free passage by, with proper manage- 
ment. And hère we stop to notice the attitude of the Troy and her 
testimony in making her défense. Her oiïîcers are responsible for the 
story that, at the time the Wilbur sheered off, the Troy was about 40 
to 50 feet from the eastern side of the channel; that the Wilbur was 
abreast of her (that is, their sterns were opposite each other) ; that 
the Mariposa was on a course 250 feet westward of the Troy. This 
would bring the Mariposa considerably east of midchannel. We think 
this testimony savors of a self-serving purpose, and, in respect to the 
Troy's position in the channel, it is so opposed to the weight of the 
testimony, and the probabilities arising from facts which we feel quite 
sure of, that we are constrained to regard it as unreliable. We refuse 
to believe that the Troy was where she says she was, and are convinced 
that the complaint of the Wilbur that during the critical period the 
Troy wrongfully crowded her too far over to the westward is well 
founded. As will be shown later on, sufiicient reasons appear for be- 
lieving that the collision occurred quite to the westward of the middle 
of the channel, and at a place where the Wilbur had no right to be ; 
and, further, that she bas not excused herself for being there. We 



MINNESOTA S. 8. CO. V. LEHIGH VALLET TRANSPORTATION OO. 27 

think the Wilbur was at fault in not taking counsel of her fear, and in 
going up alongside of the Troy at the speed they were moving— a men- 
ace to meeting vessels. We do not say that of itself her checking her 
speed in extremis was an actionable fault. But she voluntarily placed 
herself in a position where she was liable to be in extremity. She can- 
not, therefore, plead the péril she came into as an excuse. The Aus- 
tralia, supra ; 7 Cyc. 309. 

From the necessity of the case, we hâve been obliged, in discussing 
the conduct of the Wilbur, to deal with the conduct of the Troy also. 
We think she shared in the fault of the Wilbur in going up the 
channel in the relation with her that she held, and at the speed they 
maintained, and that she imnecessarily crowded the Wilbur into tbo 
close proximity with the course of the Mariposa and the Martha — 
whether from perversity or recklessness, we do not say — and refused 
to give room, when she had ample opportunity for doing so without 
danger to herself, when she knew of the straits the Wilbur was in. 
Her fault was even greater than the Wilbur when the final catastrophe 
was brought on. 

When we say the Troy crowded the Wilbur into toc close proximity 
with the Mariposa and the Martha, we hâve in mind the speed of the 
Troy and the Wilbur, and their relation to each other. 

Counsel for both the Wilbur and the Troy hâve given considérable 
space in their briefs to the question as to which of those two vessels 
was to be regarded as the one overtaking the other, with a view to 
claiming for their respective vessels the privilège given by rule 22 (Act 
Feb. 8, 1895, c. 64, 28 Stat. 649 [U. S. Comp. St. 1901, p. 2891]), to the 
one overtaken. The claim of the Troy is that she passed the Wilbur 
while the latter was under check at Détroit, and thus gained the favored 
position. For the Wilbur it is claimed that the Troy came up only to 
a position where she lapped the Wilbur, and did not deprive the Wilbur 
of the leading position. We do not feel called upon to décide this ques- 
tion. A disagreement over such a matter furnished no apology for en- 
gaging in a reckless contest in navigable waters, and putting others 
who were exercising their lawful rights therein to hazard and ultimate 
loss ; nor did it give either the right to obstinately persist in a course 
which would bring the other into péril. 

It remains to consider what judgment ought to be pronounced in re- 
gard to the Mariposa and the Martha. If the testimony of the officers 
of thèse vessels is to be believed, there is no reasonable ground for 
thinking that either of them was at fault. - From that it would appear 
that, in coming down through the eut, they first met the Majestic, a 
steamer going up, and, turning to starboard, passed her by the port 
hand. Thereupon they swerved back toward the range line, when, the 
signais for passing the steamers below having been given and answered, 
they again tumed out to starboard, and proceeded on that course until 
they saw the vessels coming up abreast of each other, when the Mari- 
posa ported again; the Martha following her. The steamers passed 
the Mariposa safely, the Wilbur being rather close and already begin- 
ning to sheer. Nothing could then be donc. Only the fraction of a 
minute elapsed after the Wilbur passed the Mariposa before the crash 
came. Meantime the Martha, seeing the Wilbur coming, had vainly 



28 129 FEDERAL RErOKïKK. 

portée! again. The stem of tlie Wilbur stove in lier port bow, and pene- 
trated to the collision bulkhead. The distance from her bottom to the 
bed of the channel was only aj-^ feet, and she sank on her fore foot 
immediately. The after part swung around somewhat to port, filled, 
and went down. The captain of the Martha did not pay attention to 
the range, but kept his vessel properly headed on his steamer. No 
fault can be found if he did as he says. For the Wilbur it is urged 
that he ought to hâve seen the sheer of the vessel earlier, and hâve 
taken measures to get out of the way. But the combined speed of the 
meeting vessels was 20 miles an hour. When the Wilbur was first per- 
ceptibly sheering ofï, she was probably not much, if any, more than 
1,000 feet from the Martha. They would come together in from one- 
half to three-quarters of a minute. We do not think it would bave 
been possible for the Martha to hâve escaped. Besides, the péril was 
extrême from the time the sheer became décisive ; .and we should think 
the indulgence due to his situation would excuse the master of the Mar- 
tha, even if he did not do ail that he might hâve done, or did not do it 
as quickly as he would but for the excitement of the moment. The 
Ohio, 91 Fed. 547, 33 C. C. A. 667; The Bywell Castle, 4 Prob. 
Div. 219; The Elizabeth Jones, 112 U. S. 514, 5 Sup. Ct. 468, 28 L. 
Ed. 812; The Maggie Smith, 123 U. S. 349, 8 Sup. Ct. 159, 31 L. Ed. 

175- 

The testimony of those navigating the Mariposa was given by those 
who were charged with that spécial duty, and they gi^'e the course, 
which they run with particular référence to the range lights which they 
say they ail the while observed. It is a standard rule, approved by 
many décisions, that "more weight is to be given to witnesses who 
testify as to the movements of their own vessel than to witnesses on 
other moving vessels or onlookers." 7 Cyc. 397, tit. "Collisions," where 
numerous cases are cited. There is other testimony, however, to which 
we are referred, tending to a différent conclusion in référence to some 
of the questions involved — mainly, however, to the question on which 
side of the channel the collision occurred. This testimony comes from 
those not on the Mariposa or the Martha, and who, from lack of obser- 
vation or the opportunity of observation, testify from estimâtes made 
from their recollection of the situation. There is nothing based on 
certain data which conflicts with the testimony of the officers of the 
Mariposa. Moreover, the testimony of thèse latter, as respects the 
point nov/ in question, is corroborated by the position in which the 
Martha was found by the wreckers, and this is shown beyond doubt to 
hâve been athwart the channel; her head lying 175 feet west of mid- 
channel, and her stern extending just over it. This was her position 
when she went down. When it is remembered that she was heavily 
laden, and the blow of the Wilbur was a violent and crushing one, we 
do not think it probable that she was carried by the shock very far out 
of her course. Both her captain and the watch testify that the bow 
of the Martha dropped instantly, and did not swing after the collision. 
Thèse indications point to the conclusion that the fore end of the Mar- 
tha sank quickly to the bottom, and that her stern was turned around 
to port on the pivot of her fore foot by the pressure of the current while 
her stern was sinking. If this conclusion is correct, the fair inference 



MINNESOTA S. S. CO. V. LEHIGH VALLEY TRANSPORTATION CO. 29 

is that the place where the vessels came together was as much as 150 
feet to the westward of midchannel. The course taken by the Wilbur 
on turning around the lower Hght on her port side to go up the eut 
also tends to confirm the testimony from the Mariposa. As we gather 
from the testimony of those concerned with the navigation of the 
Wilbur, she passed about 40 feet distant, and then steadied to a bearing 
on the second red Hght on the eastern side of the channel, 134 miles 
distant. As the collision happened only one-third of that distance up, 
it seems more than doubtful whether the Wilbur could hâve crossed 
the range line in the middle of the channel when she sheered off to the 
westward. If that be so, the whole departure of her sheer was in the 
western half of the channel, and locates the Mariposa and the Martha 
about where they say they were. And in the cross-libel of the Wilbur 
she avers that, as they were meeting the Mariposa, the Troy, "instead 
of checking or directing her course to starboard in accordance with 
the announced intention, kept her speed and held near the center of 
the eut." As the Wilbur was on the port side of the Troy, and 40 feet 
away, and her own width was 40 feet, and she passed the Mariposa 50 
feet distant, the Mariposa having a breadth of beam of 40 feet, it would 
follow that the Mariposa's course was 150 feet to the westward of 
midchannel. 

It is contended for the Wilbur that the Mariposa should hâve known 
that the Wilbur and the Troy were coming up abreast, and that they 
would need more ample room than she gave them. We think that she 
gave them ample room, whether she knew they were coming abreast 
or not. But we think, also, that there is no just ground for contending 
that while the steamers were below the eut the Mariposa should be ex- 
pected to know that the steamers were coming abreast. The lights 
of other vessels were there. The Troy and the Wilbur had separated 
somewhat at that time, and there was nothing in the indication of their 
lights from which alone their position could be seen, which should 
warn the vessels above of any such intention. After they made the 
turn and began to corne up, they could, we should suppose, be seen, and 
probably were, for the Mariposa ported again. AU the while the latter 
vessel was entitled to suppose that, passing signais having been given 
and understood, the steamers would turn out when it should become 
necessary; and this expectation might justly last until it became évi- 
dent they were not doing their duty. When this did become évident, 
the Mariposa could hâve done nothing to mend the situation. At the 
speed the steamers were going up, it was scarcely two minutes from 
the time they came around the lower Hght until they were passing the 
Mariposa. If the Troy had ported, as she should, there probably 
would hâve been no trouble. And as it was, it is very doubtful whether 
there would hâve been any collision if the master of the Wilbur had 
not incautiously checked his vessel, and thus subjected her to the in- 
fluence by which she was turned off. Neither the Wilbur nor the 
Troy is privileged to charge it as the fault of the Mariposa that she 
relied on them to do their duty, so long as they did not clearly show 
that they did not intend to do it. 

We observe that in a number of instances the district court, upon 
objection, excluded testimony tendered at the hearing (which was had 



30 129 FEDERAL REPORTER. 

in open court) upon various grounds which were assigned by the court. 
In several of thèse instances we think the testimony tendered and re- 
jected was material and compétent. But it happens in this case we 
are able to form definite conclusions without the aid of that which 
was rejecteâ, and that which was rejected was in support of thèse con- 
clusions. We think, however, we should call attention to the error 
and inconvenience of this practice. If the court of first instance was 
empowered to make the ultimate judgment, there might be little or no 
objection to the course pursued. But as its détermination is subject 
to appeal, and the appellate court might hâve a différent opinion in 
regard to the competency and materiality of the rejected testimony, 
the difficulty becomes obvions. In such circumstances it might be- 
come necessary to undo ail that had been donc subséquent to the taking 
of the testimony and go over the ground again, and thus involve much 
cost and delay. The proper course is to receive the testimony ten- 
dered, subject to the objection, unless, indeed, it be so utterly irrelevant 
or immaterial that there could not possibly be any doubt about it. The 
power of the court to punish with the costs the bringing in of flagrantly 
indirect and useless testimony should ordinarily be a sufficient déterrent. 

We think the district court was right in holding the Wilbur and dis- 
charging the Martha, but we cannot approve its decree in discharging 
the Troy and holding the Mariposa. We are very clear that the Wil- 
bur and the Troy were the parties who should be held responsible 
for the disaster, and should be condemned to pay the damages. Upon 
the conclusions already stated, and the reasons given therefor, we think 
the Wilbur and the Troy should satisfy the damages of the former by 
equal contribution; the lien of the Wilbur to be subordinate to that 
of the owners of the Martha for her damage. 

The decree of the district court, so far as concerns the responsibility 
of the Wilbur and the Martha, is affirmed as herein modified by the 
judgment against the Troy, with costs of both courts. So far as it 
concerns the responsibility of the Mariposa and the Troy, it is re- 
versed, with directions to enter a decree charging the Wilbur and the 
Troy with the damages of the Martha and interest, and with the costs 
of both courts, to be collected one-half from the stipulators for each, 
with the proviso that, if such moiety cannot be collected from each, 
recourse may be had upon the other to the extent of its stipulation 
above the sum of such other's moiety of damage decreed against her, 
and charging the Troy, in favor of the Wilbur, with one-half the dam- 
ages of the latter, with interest thereon; each of those parties to pay 
its own costs hère and in the court below, the lien of the Wilbur to be 
subject to that in favor of the Martha upon the Troy for her damage, 
interest and costs, as herein decreed. 

Following will be found the opinion of the court below : 

SWAN, District Judge (orally). The three steamers which figure In thla 
case are ail charged with fault— the Wilbur, the ïroy, and the Mariposa. So 
far as the Troy Is concerned— for I -will commence at the easiest end of the 
case— the situation is this: I flnd, as I stated during the argument, that the 
Troy passed the Wilbur when nearly abreast of Woodward avenue; that the 
AVilbur there renounced her priority of right, and made herself the overtaliing 
vessel. I think that is thé fair weight of the testimony. There is on this 



MINNESOTA S. S. OO. V. LEHIQH VALLET TKANSPORÏATION CO. 31 

point the usual conflict of évidence that attends admlralty cases, and would 
attend any case, whatever the subject-matter, where the witnesses must speak 
as to matters that are not plalnly visible, not Uluminated by daylight— the 
matters occurring in the dark; but I think that the Troy Was thenceforth con- 
tinuously ahead— at some times further ahead than others. If we throw ont 
ail the Interested testimony in the case, it fairly appears In the testimony of 
the mail carriers— the two witnesses from the mailboat; whose names hâve 
escaped me— that the Troy bad fairly cleared the Wllbur while the latter was 
waitlng for the mail. That being the case, the Wilbur was to her an over- 
taking vessel. That continued to be the relation between them, and gave to 
thelr navigation the appearance of belng engagea in a contest of speed. Both 
masters deny that their course up the river had any such character, and I 
must accept their déniai, and believe they were going up there at their or- 
dinary gait— 12 or 13 miles an hour, though I think the man that was ahead 
was very glad to keep his position, and the man behind would hâve been glad 
to hâve exchanged with him. They proceeded upon the usual course, both of 
them belng compétent mariners, and I believe both mean to tell the truth— 
they proceeded upon the course whlch each regarded as safe. There was noth- 
ing to Intimate danger to them, nothing to induce appréhension. They ran 
at a speed of 12 or 13 miles an hour, keeping safely away from each other 
and from other vessels, and navigating without incident until they had en- 
tered the mouth of the eut or dredged channel of Lake St Clair, when they 
exchanged signais with the steamer Mariposa, which had the schooner Martha 
in tow, bound down. The Mariposa at that time was about midchannel, and 
I do not think changed that position. I think she came down with the usual 
Inclination of a vessel having the ranges and being on the ranges to adhère 
to them. I won't use the term commonly applled to that navigation which 
monopolizes the ranges, because It is habitually done by most masters, often 
from timidity inspired by the slze and draft of the vessels— a morbid fear of 
possibly grounding if on either hand of midchannel. The signais between the 
Mariposa, the Troy, and the B. P. Wilbur were seasonably exchanged. The 
mutual relations of the Troy and of the Wilbur continued safe as they went 
up the eut until just before they came abreast of the Mariposa. That is the 
testimony of Capt. Gillies. It is the testimony of Capt. Fuller. Neither of 
them saw any appearance of danger in the situation, and both approved its 
safety until Just before the collision. Now, each vessel, tliere is no doubt, 
had a right to go up there just as fast as she could, provided she exercised 
that right with due regard to the interest and safety of others; and the vessel 
that was ahead had a right to keep ahead, if she could, providing, as I say, 
she exercised that right reasonably. Therefore the Troy is not censurable for 
keeping ahead, as she was safely away from the Mariposa and Martha. Nor 
is the Wilbur to be condemned for getting along as fast as she could, but, as 
she was the overtaking vessel, she was bound to exercise that right with much 
greater clrcumspection, so as not to approach too closely to the Troy, or bring 
herself within the opération of the latter's suction; and, if she did so, she 
must abide the conséquences. She put herself voluntarily in that position. 
She could not lawfully attempt to pass the Troy without the latter's consent, 
for which she did not ask. According to the testimony, they were at a safe 
distance from each other, and there was no sign on the part of either beat that 
it was affected by the proximity of the other until they were getting nearly 
abreast of the Mariposa. Then it was seen by the master of the Wilbur that 
his vessel was dropping ofC to port and towards the course of the Mariposa. 
It then became his instant duty to eheck or drop behind the Troy. ïhis he 
failed to do, but, in his efforts to avoid the Mariposa, drew in so closely to the 
Troy as to get within her suction, when, of course, and as was to be expected, 
the Wilbur sheered to port, and held her sheer until she struck the Mariposa's 
consort, the Martha. No fault can be imputed to the Troy. I think she was 
navigating properly, and I do not think Capt. Fuller's testimony — any reading 
of it — will condemn Capt. Gillies' conduct there. Capt. Fuller, as was pointed 
out in the argument, did not question that the Troy was as far east as she could 
go, and his judgment upon her course Is confirmed by Mr. Montgomery, the 
lookout of the Wilbur. The witnesses on the Wilbur agrée that the distance 
between the vessels was 75 or 100 feet, until they had proceeded up the eut 



32 129 FEDERAL KEPORTEU. 

some distance, and pronounced that distance safe. Whén It was reduced to 30 
or 40 feet or less by the approach of the Wilbur to the Troy, that was the 
voluntary act of the Wilbur, which the Troy eonld net prevent, and for the 
conséquences of which she cannot be condemned. The Troy's witnesses testify 
that the steamers were much further apart comlng up the eut, and when the 
Wilbur took her sheer; but as the duty of keeplng clear was, by the White 
Law Rule 22, and pilot rule 6, wholly upon the Wilbur, and the Troy, clearly 
complied with those rules, tte latter is faultless. The Troy neither attempted 
to cross the bow or crowd upon the course of the Wilbur, which took ail the 
risks of her own course, and cannot ask the Troy to share its conséquences 
with her. 

No one who erer tried an admiralty case ever found that the witnesses 
on moving vessels, speaking of distances in the nighttime and of moving ves- 
sels, ever got within any reliable distance of anything. The Troy, I think, was 
safely over to the eastward, and when Capt. Gillies, of the Troy, was callcd 
upon by the master of the Wilbur to give him more room, he answered back: 
"I cannot I am as far over as I can go." The Wllbur's master then said: 
"Why don't you check, then?" Capt. Gillies replied: "Why don't you check 
yourselfî" or something of that kind. Capt. FuUer responded: "I hâve 
checked." Now, as I hâve said, Capt. FuUer voluutarlly put himself in that 
situation. The checking of the Troy would net bave helped the Wilbur at 
that time. Perhaps Capt. FuUer thought there was room enough between the 
Troy and the Mariposa, and rightly thought so, had it not been that he un- 
guardedly brought his steamer within the Troy's suction. That was the spring- 
bead of thls disaster. I think that at that time the Troy was nearer the dis- 
tance stated by Capt Gillies from the east bank than the witnesses for the 
Wilbur hâve put it, and I do so for thèse reasons: (1) Gillies was in a bet- 
ter position to estimate that distance than the master of the Wilbur, who ad- 
mits that he could not. (2) According to the master of the Mariposa, he 
thought that the Wilbur was 75 feet away from him. Add to this estimate 
the Wilbur's beam, about 40 feet and the distance between the Wilbur and the 
Troy, 35 to 40 feet, and the beam of the Ttoy, 45 feet, would put the Troy 
ont about 150 or lt55 feet from the Mariposa, upon the judgment of the wit- 
nesses on the part of the Mariposa and the Wilbur alone. The welght of the 
testimony satlsfies me that the Troy was fuUy 250 feet away, at least, from 
the Mariposa, for a nearer position is irreconcilable with admitted facts. (3) 
The misfortune in the case was the unfortunate move by the Wilbur, which 
caused her to sheer ofC. She went ofC very rapldly, and when she struck the 
Martha she did not expend ail her energy In that blow. The proofs are clear 
that she struck the Martha, swung around simultaneously with the blow, 
which was delivered at a speed of 12 or 13 miles an hour, recoiled, and swung 
right across stream. The Troy passed her when she had recoiled across tlie 
channel. One of the witnesses says he could hâve jumped aboard the Troy 
from the Wilbur. Another says there was a distance of 40 feet there. I don't 
care which it is. It would show that tlie Troy was considerably further to 
the eastward when the Wilbur moved ont from the Martha simultaneously 
with the impact than the hurried views of the witnesses on the moving Mari- 
posa and the Wilbur estimated. The Wilbur is 290 feet long between per- 
pendiculars, and probably 310 or 315 feet over ail. If 250 feet of her length 
was across or nearly across the channel — if the Troy cleared her 10 feet when 
the Wilbur's bow lay on the Martha, or 40 feet, as the Troy's witnesses state — 
the Troy was about 300 feet to eastward of midchannel at the collision. 
She perhaps could hâve gone a little further to eastward, but that her master 
could not know. His judgment erred on the side of the safety of his own 
vessel, and cannot be Impeached because the event showed he might hâve gone 
further. The Star of Hope, 9 Wall. 230, 19 L. Ed. 638 ; The City of Antwerp 
and The Friederick, L. R. 2 P. C. 25. Especially is this true in the sudden 
emergency created by the Wilbur's too close approach. It Is incumbent upon 
the Wilbur to show that she was brought into contact with the Martha 
through no fault of her own. She is prima facie the wrongdoer. I don't thlnlc 
she bas met that burdea. She oecupies the same position in thls case as did 
the Santiago in the case preceding. Through misfortune or fault or the facts 
of the case, she is unable to meet that burden, and should be condemned. 



STONE V. WHITRIDGE, WHITE <fe CO. 33 

The last question is one of more difficulty, and that is as to the Marlposa 
and the Martha. The mlsfortune fell upon the Martha. I thlnk that the 
weight of the testlmony shows that certalnly the Martha was not further west 
than the range Une at the tlme she was struck. She was about the center of 
the ehannel, and perhaps a Utile to the eastward of It I think that her chan- 
gea position and headlng were produced by the energy of the blow wlth wbich 
the WUbur hit her, whlch slued her around at that point The Marlposa was 
responslble for her position, and ought to share the conséquences of the col- 
lision. The two vessels whlch are to be condemned hère are the Wilbur, as the 
first wrongdoer, and the Marlposa, as the second. The Troy is dlsmlssed from 
the action, wlth costs. 

Mr. Shaw: What does your honor do wlth the Martha? 

The Court: The Martha was helpless. I thlnk the damages sbould be dl- 
vided between the Marlposa and the Wilbur — the Wilbur belng chiefly in fault ; 
but the Marlposa Is blameworthy for not bavlng taken tlmely and sufflcient 
action to avoid the up-comlng vessels and allow them room. There would 
hâve been no accident had It not been for the sheer of the Wilbur and her 
unfortunate navigation, and there probably would not hâve been any acci- 
dent if the Marlposa had put her consort in the right place. The Marlposa 
did not follow her own signal, and, although she announced that she was 
directing her course to starboard, she did not, and therefore I thlnk the dam- 
ages sbould be divided between the Wilbur and the Marlposa. 

WhUe the navigation of steam vessels at hlgh speed when approachlng othet 
vessels, or under conditions portending possible danger, cannot be too strongly 
reprobated, and not infrequently Is ground of condemnatlon of both, when 
one only infllcts the injury, yet in this case the active and proximate Instru- 
ment of wrong was the Wilbur, whlch voluntarlly took upon herself the haz- 
ard of the known danger of too close proximity to the Troy, which. In the 
judgment of her master, was runnlng as close to the there unmarked easterly 
boundary of the ehannel as was prudent — a judgment whlch Is not even now 
questioned by the master of the Wilbur. 

The master of the Troy had a right to navlgate his vessel in the beUef that 
the Wilbur would be properly and prudently navigated, and would not attempt 
to pass the Troy wlthout the latter's consent, and, of course, that she would 
not draw tnto dangerous proximity. This fault the Wilbur recklessly com- 
mltted at a tlme when no préventive measure could bave been taken by the 
Troy, and the Wilbur therefore bas no right to caU upon the Troy for con- 
tribution. 



STONE, Collecter, v. WHITRIDGE, WHITE & CO. 

(Circuit Court of Appeals. Fourth Circuit Mareh 14, 1904.) 

No. 518. 

1, OUSTOMS DtTTIES— FOEEIOR COINS— FLUCTUATION IN VALUE. 

Section 25, Tarife Act Aug. 28, 1894, c. 349, 28 Stat 552, prescrlbea 
that the value of forelgn coins shall be estimated in money of the 
United States on the basis of the pure métal found therein, as estimated 
by the director of the mint and proclalmed by the Secretary of the Treas- 
ury, subject to the provlso "that the Secretary of the Treasury may order 
the liquidation of any entry at a diflferent value whenever satlsfactory 
évidence shall be produced to hlm showing that the value in United 
States currency of the forelgn money specified in the invoIce was at the 
date of certification at least ten per centum more or less than the value 
proclaimed durlng the quarter in which the consular certification occur- 
red." Held, that the fluctuation to which this provlso bas référence is 
that of the metallie value, and not of the exchange or commercial value. 

2. Same — Liquidation bt Obdeb op Secretabt of thic Tbeasuby — Review — 

JUBISDICTION OF BOABD OF GENEBAL ApPBAISEBS. 

Where, assuming to act under section 25, Tarlfit Act Aug. 28, 1894, c. 349, 
28 Stat. 552, , authorizing the Secretary of the Treasury to order the 
reliquidation of any entry on the basis of a value différent from that 

129 F.— 3 



34 129 FEDERAL EEPORTER. 

estimated by the director of the mint when satlsfled that there has been 
a fluctuation of at least 10 per cent, from the proclaimed value of the 
currency specifled In the involce, the secretary directs a collector of cus- 
toms to rellquidate on the basls of the exchange or commercial value of 
a certain forelgn coin, and not of the metallic value, held, that he goes 
beyond hls authority, and that the action of the collector pursuant to such 
direction may be reviewed by the Board of General Appraisera and the 
courts, under sections 14 and 15, Customs Administrative Act June 10, 
1890, c. 407, 26 Stat. 137, 138 [D. S. Comp. St. 1901, p. 1933]. 

3. SAME— BOAED OF GENERAL APPEAISERS— RELATIONS WITH TEEASUET DEPAET- 

MENT. 

The Board of General Appraisers, aeting wlthin Its jurisdiction, Is an 
Independent tribunal, empowered by law (sections 13, 14, Customs Admin- 
istrative Act June 10, 1890, c. 407, 26 Stat. 186, 137 [U. S. Comp. St. 1901, 
pp. 1932, 1933]) to pass upon certain controversies between the government 
and the importer, and in this respect is not subordinate to the Treasury 
Department 

Appeal from the Circuit Court of the United States for the District 
of Maryland. 

This appeal was brought by William F. Stone, collector of c'ustoms 
at the port of Baltimore, from an aiïirmance of a décision of the Board 
of General Appraisers (In re Whitridge, G. A. 51 lo — ^T. D. 23,632), 
which reversed the collector's assessment of duty on certain mer- 
chandise imported by Whitridge, White & Co. 

John C. Rose, U. S. Atty. (Morris A. Soper, Asst. U. S. Atty., on the 
briefs), for appellant. 

Albert Comstock and William R. Sears, for appellees. 

Before SIMONTON, Circuit Judge, and BOYD and KELLER, 
District Judges. 

BOYD, District Judge. The facts in this case are substantially as 
follows: Stone, the appellant, is collector of customs for the district 
and port of Baltimore, Md. In June, 1900, Whitridge, White & Co., 
the appellees, imported from India into the port of Baltimore a cargo 
of gunny bagging. The gunnies were purchased by the importers 
at Calcutta, and were invoiced in rupees, which is a silver coin of 
India. The Barrowmore, in which the gunnies were brought into 
this country, arrived in Baltimore on the i8th of June, 1900, and the 
goods were entered for consumption on that day. On the iith of 
July, 1900, the collector at Baltimore liquida ted the duty on the said 
goods by converting into United States gold dollars the rupees of the 
invoices at the rate of 32 cents for each rupee. To this liquidation the 
importers entered a protest in writing on the i6th day of July, 1900, 
and on the 29th of May, iQor, the collector, aeting under instructions 
from the Secretary of the Treasury, reliquidated the duty on said goods 
by converting into United States gold dollars the rupees of the invoices 
at the rate of 20.7 cents for each rupee. That thereafter, on the X2th 
day of June, 1901, the collector again reliquidated the invoices, and 
placed the value of the rupee at 32 cents. This last action of the 
collector was in response to instructions from the Secretary of the 
Treasury, relative to thèse invoices, as follows: 

"In this regard I hâve to Inform you that satisfactory évidence has been 
produced, to the Secretary of the Treasury, showing that the value, in Dnlted 



STONB V. WHITEIDGB, WHITE & CO. 35 

States currency, of the foreign money of the involces, namely, the rupee of 
India, was 32 cents at the date oï certification, which Is ten per cent, more 
than the value proclalmed during the quarter in which the consular certifica- 
tion occurred. In view of the fact stated, you are hereby directed to reliqui- 
date the entries hereinbefore mentioned, on the basis of this latter value, under 
the authority conferred upon the Secretary of the Treasury, by the proviso to 
section 25 of the act of August 28th, 1894." 

To this reliquidation the appellees duly filed a protest in writing with 
the collector at Baltimore. The goods imported are dutiable at five- 
eighths of a cent a pound upon the weight as taken in the reliquidation 
of June 12, igoî, and in addition thereto at the rate of 15 per cent, 
of their dutiable value. It is admitted that the metallic value of the 
rupee on April 19, 1900, the date on which the invoices in this case 
were certified, was substantially 20.7 cents, and at no time between the 
ist of April, 1900, and the ist of July, 1900, did the metallic value of 
the rupee even approximate 32 cents. It is further admitted that the 
reliquidation made by the collector on the I2th of June, 1901, to which 
the importers objected, and which is the basis of this proceeding, in 
which the Indian rupee was valued at 32 cents, was the exchange value 
of the rupee at the date of the certification of the invoices, as shown and 
attested by the certificate of the United States consul gênerai at Cal- 
cutta. On the ist of April, 1900, acting under the authority of law, 
the director of the mint had estimated the metallic value of an Indian 
rupee to be 20.7 cents, and this valuation was duly proclaimed by the 
Secretary of the Treasury. The action of the Secretary of fhe Treas- 
ury in directing a reliquidation of the invoices upon which the présent 
controversy arises was based upon an opinion of the secretary that, 
after the estimate of the director of the mint, and the proclamation 
thereon, the value of the Indian rupee during the quarter had varied 
as much as 10 per cent. ; that its value had appreciated this much, 
or more, and that the invoices of the gunnies imported by the appellees 
should be reliquidated for duty at the exchange or commercial value 
of the Indian rupee, which was certified by the consul, and not at the 
metallic value, which had been estimated by the director of the mint. 
As before stated, against the reliquidation of June 12, 1901, made by 
the collector of Baltimore under the instructions of the Treasury De- 
partment, the appellees protested, and this protest, with the facts in the 
case, was submitted by the collector to the Board of General Appraisers 
at New York. This board rendered a décision adverse to the collector, 
declaring, in efïect, that the metallic, and not the commercial, value 
of the Indian rupee at the time of the invoices was the true basis of 
liquidation. From this décision the case was brought by pétition on 
behalf of the collector to the Circuit Court for the District of Mary- 
land. The Circuit Court affirmed the décision of the Board of Gen- 
eral Appraisers, and the collector appealed to this court. 

The appellant lays down two propositions, namely, that the liquida- 
tion of June 12, 1901, was the décision of the Secretary of the Treas- 
ury, and was final, and that the Board of General Appraisers had no 
jurisdiction to review it. The question hère is, therefore, can thèse 
positions, or either of them, be maintained? We think not. The Cus- 
toms Administrative Act of June 10, 1890, c. 407, § 14, 26 Stat. 137 
[U. S. Comp. St. 1901, p. 1933], plainly provides that, when the col- 



36 129 FEDERAL KEPOETER. 

lector of customs has liquidated invoices for duty the owner or im- 
porter may, after such liquidation, give notice in writing to the collector 
of his objections thereto, and, if the merchandise is entered for con- 
sumption, shall pay the full amount of the duties and charges ascer- 
tained to be due thereon; and upon such notice and payment the 
collector shall transmit the invoice, and ail the papers and exhibits con- 
nected therewith, to the Board of three General Appraisers, which shall 
be on duty at the port of New York, etc., which board shall examine 
and décide the case thus submitted, and their décision, or that of a 
majority of them, shall be final and conclusive upon ail persons inter- 
ested therein. * * * Section 15 of said act provides for an appeal 
from the décision of the Board of General Appraisers to the Circuit 
Court of the United States on behalf of either party. 

The appellant contends that the action submitted to the Board of 
General Appraisers was not that of the collector of customs at Balti- 
more, but was a décision of the Secretary of the Treasury, made in the 
discharge of the duties imposed upon him by law, and that the Board 
of General Appraisers has no authority in law to review him. It is 
insisted on the part of the appellant that Congress could not hâve in- 
tended to submit the décision of the Secretary of the Treasury, upon 
matters in which the statute imposes upon him the responsibility of 
deciding, to review, and possibly reversai, by subordinate divisions of 
his own department. We cannot agrée that in exercising the powers 
of review vested in the Board of General Appraisers by law the board 
is a subordinate division of the Treasury Department. On the other 
hand, the members of the Board of General Appraisers are appointed 
by the Président, by and with the advice and consent of the Senate, and, 
acting within its jurisdiction, the board is an independent tribunal, 
empowered by law to pass upon certain controversies between the gov- 
ernment and the importer, and in this respect the board is no more 
subordinate to the Treasury Department than is any other court. As 
bearing upon this view, we may refer to the fact that by section 15 
of the administrative customs act it is provided, among other things, 
that, if the Secretary of the Treasury is dissatisfied with the action of 
the board, his only relief is by appeal to the Circuit Court of the United 
States. It may be well at this juncture to give the full text of section 
25 of the act of Congress of August 28, 1894, c. 349, 28 Stat. 552, upon 
the construction of which the questions involved in this case dépend. 
That section reads as follows: 

"That the value of forelgn coin, as expressed in tlie money of aceount of the 
United States, shall be that of the pure métal of such coin of standard value, 
and the values of the standard coins in circulation of the various nations of 
the world, shall be estlmated quartérly by the director of the mint, and be 
proclaimed by the Secretary of the Treasury immedlately after the passage 
of this act, and thereafter quartérly on the first day of January, April, .luly 
and October, in each year, and the values so proclaimed shall be followed in 
estimating the value of ail foreign merchandise exported to the United States 
during the quarter for which the value is proclaimed, and the date of the con- 
sular certification of any invoice shall, for the purposes of this section, be con- 
sidered the date of exportation : provided, that the Secretary of the Treasury 
may order the liquidation of any entry at a différent value whenever satisfac- 
tory évidence shall be produced to him showing that the value In United States 
curreney of the foreign money speclfled in the invoice was, at the date of cer- 



STONE V. WHITRIDGE, WHITE & CO. 37 

tlfleation, at least ten per eentum more or less than the value proclaimed dur- 
ing the quarter in whleli the consular certification occurred." 

In disposing of the questions presented, and especially that in which 
jt is insisted by the appellant that the reHquidation of June 12, 1901, 
was a décision of the Secretary of the Treasury, and therefore final, 
withotit power in the Board of General Appraisers or the courts to 
review it, it is perhaps as well to consider the reasons which must hâve 
led to the enactment of the law which we hâve just quoted, and by this 
method we may arrive at the true ineaning of the législation. We find 
that for many years in the administration of o^r tariff laws great difïi- 
culties had been encountered in so adjusting the value of goods pur- 
chased in foreign countries and invoiced in foreign money as to be 
altogether fair, in every instance, to the government and to the im- 
porter. Especially was this true of importations of goods which had 
been purchased in countries where silver coin was the standard money. 
This condition gave rise to disagreements between the government and 
the importers, and often the aid of the courts was invoked to relieve the 
situation. The Congress, no doubt appreciating existing conditions, 
undertook to set the matter at rest by the act of March 3, 1873, c. 268, 
17 Stat. 602, by which it was enacted : 

"ïliat the value of foreign coin as expressed in the money of account of the 
United States shall be that of the pure métal of such coin of standard value, 
and the values of the standard coins in circulation of the various nations of 
the world shall be estlmated annually by the director of the mint, and be pro- 
claimed on the flrst day of January by the Secretary of the Treasury." 

This act was plain, and there could be no doubtful construction of 
its terms. It provided that the metallic value of foreign coin should be 
estimated annually by the director of the mint, and proclaimed on the 
ist day of January by the Secretary of the Treasury. When so esti- 
mated and proclaimed, the value of foreign coin for the purposes of 
liquidation of invoices of imported goods was settled, and had the 
force of a statute, which controlled the action of the collectors and 
other officers of the customs in determining import duties, and it was 
in view of this statute that the décisions in Hadden v. Merritt, 115 U. 
S. 25, 5 Sup. Ct. 1169, 29 L. Ed. 333, and The United States v. Kling- 
enberg, 153 U. S. 93, 14 Sup. Ct. 790, 38 L. Ed. 647, were made, as 
was also the décision in Cramer v. Arthur, 102 U. S. 612, 26 L. Ed. 
259, that the valuations of foreign standard coins made by the director 
of the mint and proclaimed by the Secretary of the Treasury were con- 
clusive and binding both on collectors of customs and on importers, 
and that évidence to show that such valuations were inaccurate was not 
receivable. In the latter case the principle declared in Collector v. 
Richards, 23 Wall. 246, 23 E. Ed. 95, was cited and reaffirmed. Thèse 
several décisions are upon the ground that the director of the mint, 
in basing his estimate upon the metallic value of foreign coin, had acted 
within the scope of the authority conferred upon him by the statute, 
and, having so acted, his finding of fact became the law as fully as if 
his estimate had been incorporated in the statute itself. 

Section 25 of the act of August 28, 1894, excepting the proviso, was 
a substantial re-enactment of the law of 1873, the only change being 
that the director of the mint should make his estimâtes of the value 



88 129 FEDERAL REPORTER. 

of foreign coin quarterly, instead of annually, as provided in tlie 
previous law. And then cornes the proviso: 

"That the Secretary of the Treasury may order the liquidation of any entry 
at a différent value, whenever satisfactory évidence shall be produced to him, 
showlng that the value In United States currency of the foreign money specl- 
fled in the invoIce was, at the date of the certiflcation, at least ten per centum 
more or less than the value proclalmed during the quarter in whlch the con- 
snlar certiflcation occurred." 

That fréquent fluctuations in the metallic value of foreign coins led 
to the act of 1894 would seem to be indisputable. The law as it stood 
since 1873 empowered the director of the mint to make his estimate of 
the metallic value of foreign coin on the ist day of January in each 
year, but Congress saw the necessity of having this estimate made 
quarterly, instead of annually, but still adhered to thé metallic value 
as the basis of the estimate. Then where can we fiiid a reason to 
conclude that it was the intention of Congress to make a departure 
from the metallic principle which permeated its législation, and confer 
upon the Secretary of the Treasury an exclusive power to arbitrarily 
adopt another basis? Is it not more in accord with the language of 
the statute, the purposes for which it was enacted, the conditions it 
was intended to meet, and fair construction, to hold that the proviso 
was inserted in the act simply to authorize the Secretary of the Treas- 
ury, in case there should be a variation in the metallic value of the 
foreign coin after the director of the mint had made his estimate 
at the first of the quarter, and before, by the terms of the law, he could 
make another estimate at the beginning of the next quarter, to order 
liquidations when it was made satisfactorily to appear to him that such 
variations in the metallic value to the extent of 10 per centum had 
taken place? If such is not the law, then under the proviso to section 
25 the Secretary of the Treasury is absolutely unrestrained. He is 
neither limited by the metallic value nor by the exchange value of the 
foreign coin, but he may, at his option, prescribe any value for foreign 
coin, and direct its use by officers of the customs in the invoicing of 
foreign goods for duty ; and, following out the contention of the ap- 
pellant in this case, the importer would hâve no remedy whatever, either 
through the Board of General Appraisers, or the courts. Certainly 
Congress did not intend to confer such unbridled power upon the head 
of an executive department. 

This question is admirably discussed in two very learned opinions 
recently delivered, the one in the Circuit Court of the United States 
for the District of Massachusetts, in the case of The U. S. v, Beebe, 
117 Fed. 670, and the other in the same case in the Circuit Court of 
Appeals for the First Circuit, 123 Fed. 762, 58 C. C. A. 563. It is not 
necessary for us to go further than to cite the opinions in thèse two 
cases, which we think déclare the law as it is, and proceed upon a line of 
reasoning which leads irresistibly to the conclusion that, when the Sec- 
retary of the Treasury undertook to order a reliquidation of the foreign 
invoices for duty upon a basis other than the metallic value of the for- 
eign coin in which such invoices were certified, he went beyond his 
authority, and his act had no légal effect. 

We then come to the considération of the question as to whether 
the décision of the Secretary of the Treasury and the subséquent ac- 



8T0NE V. WHITRIDGE, WHITB & CO. 39 

tion of the collector of customs thereunder can be reviewed by the 
Board of General Appraisers and by the courts. We cannot put this 
question more forcibly than by quoting from the comprehensive opinion 
of Judge Coït in the Beebe Case, 117 Fed. 670, the following language : 

"Can the secretary choose any standard of value for the foreign coin he 
pleases — as, for example, the exchange value — and wlU sueh action be final 
although It Is outside of the authorlty and jurisdictlon conferred upon him 
by the proviso? Can the secretary first adopt an Illégal standard of value, 
and then make an order or flndlng based upon such Illégal standard which 
cannot be impeached? If the doctrine of concluslveness goes to this estent, 
then the Importer is no longer governed by the laws which Congress enacts, 
but by the secretary's interprétation of them; and the resuit might be that 
under the form of reliquidation the pure métal rule of value in the assess- 
ment of duties, which has prevalied slnee the origln of the government, maj 
to a large extent be nullifled." 

It is conceded that, if the ascertained metallic value of the silver 
rupee of India, either that made by the director of the mint at tht' 
first of the quarter and proclaimed by the secretary, or a metallic 
value deterrained by the secretary under the proviso of section 25, 
had been adopted by the collector, in making the reliquidation of in- 
voices of the appellees' goods on the I2th of June, 1901, under the dé- 
cisions before cited, such action by the collector would hâve been con- 
clusive. But the collector did not do this. On the other hand, acting 
under instructions from the Secretary of the Treasury, he adopted as 
a basis of liquidation the commercial value of the rupee, as certified 
by the American consul at Calcutta, at the date of the invoices. The 
instruction was the act of the secretary, but the liquidation ascertaining 
the dutiable value of the goods and determining the amount of duty 
to be paid by the importer was the act of the collector. "The action of 
a collector in declining to accept the proclaimed value of a foreign 
standard coin and in adopting another standard, thereby increasing the 
amount of duty on imported merchandise, does not relate to a disputed 
appraisement, but to the amount of duties; and under Customs Ad- 
ministrative Act June 10, 1890, §§ 14, 15, is reviewable on the protest 
of the importer by the Board of General Appraisers and the Circuit 
Court." U. S. v. J. Allston Newhall & Co. (C. C.) 91 Fed. 525. In 
the présent case the collector ignored the metallic value of the rupee — 
20.7 cents — which had been proclaimed for the quarter in which the 
importation of the goods was made, and adopted the exchange value 
of 32 cents, which appeared from the certificate of the consul, and 
thus increased the amount of duty upon the importation. The princi- 
ple declared in the Newhall Case, which we hold to be the law, applies 
hère, and, in our opinion, the Board of General Appraisers and the Cir- 
cuit Court of the United States had jurisdiction. 

As bearing upon this point, and in entire accord with the position we 
take, we quote again from the learned opinion of the Circuit Court of 
Appeals for the First Circuit in the case of The United States v. Beebe 
& Sons, 123 Fed. 76S, 58 C. C. A. 562, in which Judge Putnam, in de- 
livering the opinion of the court, says: 

"The United States ralses a question of the jurisdiction of the Board of 
General Appraisers. On that point we need add but very llttle to what was 
said in the Circuit Court The act of June 10, 1890, c. 407, 26 Stat 131, Is the 



40 129 FEDERAL EEPORTEXl. 

law whlch establlshed this tribunal. The United States rests on tlie words 
'décision of the collecter,' found in section 14, and they claim that in the case 
at bar the 'décision' was not that of the collecter of Boston, but of the Secre- 
tary of the Treasury. This is a narrow construction of the expression, because 
the ultimate tribunal which reliquidated was not the secretary, but the col- 
lecter; so that at common law mandamus would lie only against the latter, 
and not against the former. This position, moreover, begs the question, be- 
cause, If the action of the secretary was unlawful — as we hold it was — the 
collecter could rest nothing done by him en that action, and whatever he did 
was his own." 

The judgment of the Circuit Court is affirmed. 



HENNESST et al. v. TACOMA SMELTING & REFINING CO. et ai. 

(Circuit Court of Appeals, Ninth Circuit March 9, 1904.) 

No. 961. 

1. Res Judicata— Deceee Holding Judgment an Estoppel— Effect of Re- 

VERSAL or Judgment Pending Appeal. 

A decree based in whele or in part en a plea of res judicata will be re- 
versed on appeal where pending such appeal the judgment held to eonsti- 
tute an estoppel has been reversed, the fact of such reversai being one 
of which the appellate court may take judicial notice. 

2. FEDERAL Courts— Pendency or Prior Suit in State Court— Comity. 

In a suit by mlnority stockhelders, the Suprême Court of a state de- 
cided that a lease of its property by a corporation to a new corporation, 
which had acquired a majority of Its stock, was ultra vires and void, and 
enjoined the old company frem recognizing auy vote cast by the lessee 
as a stockholder, on the ground that, under the laws of the state, it had 
no Power to hold such stock. Thereùpon it transferred its stock to in- 
dlvlduals, by whese vote it was determlned that the old corporation should 
dissolve and sell its property. The mlnority stockhelders then commenced 
a second suit in a state court to enjoin such action, for the removal of 
the trustées, the appolntment of a receiver, and the caneellation of the 
stock transferred by the new company ; alleging that it was still, in fact, 
the owner thereof, and that the proposed action was in its interest, to 
enable it to ebtaln the property. Such suit having been dlsmlssed by the 
court, the complainants commenced a second suit in a fédéral court, iu- 
volving to some estent the same issues. Subsequently the judgment of 
the state court dismissing the suit therein was reversed on appeal by the 
Suprême Court of the state, and the cause remanded for trial. Held 
that, under the circumstances, the fédéral court should await the final 
action of the state courts, which had first obtalned jurisdictien, before 
proeeeding with the hearing of the case before it 

Appeal from the Circuit Court of the United States for the Western 
Division of the District of Washington. 

On December 6, 1898, the Tacoma Smelting & Refining Company, a cor- 
portation owning and operating a smelter near Tacoma, in the state of Wash- 
ington, made a lease of its entire smelting plant and ail its property for a 
term of 10 years to the Tacoma Smelting Company, a corporation created for 
the purpose of taking the lease. The first company will in this opinion 
be designated the "old company," and the second company the "new com- 
pany." The resolution to exécute the lease was approved by the majority 
of the stockhelders of the old company, but was opposed by a mlnority repre- 

1F 2. Conflict of jurisdictien between state and fédéral courts, see note to 
Louisville Trust Ce. v. City of Cincinnati, 22 C; O. A. 350. 



HENNESSr V. TACOMA SMELTING & REFINING CO. 41 

senting from 12 to 15 per cent, of the stock, who flled a written protest 
against tlae same. Shortly after Its exécution the mlnority stockholders re- 
quested the trustées of the old company to take légal proceedings to cancel 
the lease on the ground that it was ultra vires and void. The request was 
denied. Thereafter the mlnority stockholders commenced an action In the 
superlor court of the state of Washington for Pierce county, sulng as stock- 
holders and in behalf of their corporation, to set aside the lease. In that 
action it was flnally determined by the Suprême Cîourt of Washington that 
the lease was ultra vires of the old corporation and void, on the ground 
that, at the meeting at which the resolution was adopted authorizing the lease, 
the majority of the stock of the old company was held and voted hy the 
new company, the statutes of the state glviug to no corporation created under 
Its laws the power to hold stock in another corporation; also on the ground 
that the articles of the old company contalned no expressions of the power of 
that company to exécute a lease of its property. The judgment of the court 
onjoined the old company from recognizing any vote cast by the new com- 
pany, or by any one in its behalf. This décision was rendered July 12, 
1901. The new company at that tlme held 5,G09 shares of the stock of the 
old company, out of a total of 6,7T6 shares. On July 20th the certiflcates 
of the shares held by the new company were by the trustées of the old com- 
pany canceled, and new certlflcatea were issued to F. W. Bradiey, William 
Alvord, Henry Bratnober, and W. K. Rust, who were al) stockholders of the 
new company. On December 21, 1901, thèse persons asslgned ail of said 
shares to Chester Thorne. Thorne took the same with full notice of the 
judgment in the said action. After the décision W. R. Eust, then vice prési- 
dent of the new company, and at the same time secretary of the old com- 
pany, bought 255 shares of the stock of the old company, and on January 
20, 1902, he transferred 20 shares thereof to 20 persons; giving 1 share to 
each, and 235 shares to W. G. Hellar. On March 7, 1902, Hellar transfer- 
red 8 of the shares held by him to 8 persons. This distribution of shares 
was avowedly made for the purpose of securing a two-thirds majority in 
number of hoiders of shares in the old company, as well as two-thirds of 
the stock. The purpose was to effeet a dissolution of the old company, and 
a sale of its property. It was at this point in the course of events that 
the mlnority stockholders, being the same persons who are the appellants 
in the case which is now before us, commenced a suit in the superlor court 
of the state of Washington for Pierce county (Case No. 19,209) against the 
two corporations and the trustées of the old company, Browne, Oakes, Rust, 
Clark, Daily, Craig, and Heilig, alleging in their complaint, in brief, that, 
notwithstanding the décision of the Suprême Court of the state of Wash- 
ington above alluded to, the new company still retained the possession of the 
leased property ; that the trustées of the old company were merely its tools, 
and that as long as they remalned in office no action would be taken to 
recover the property from the new company ; that the stock held by Thorne 
still belonged to the new company; and that the transfer to him was a 
sham— and praying for relief as foilows: That the trustées of the old com- 
pany, Browne, Rust, Clark, Oakes, Daily, Craig, and Heilig, be restrained 
from acting as officers or trustées of that corporation, and that they be re- 
moved from office; that the new company and the aforesaid trustées of the 
old company be enjoined from tearing down or removing from the smelting 
plant or buildings of the old company any machinery then in the buildings, 
and from interfering with any of the old company's property; that a receiver 
be appointed to take charge of and manage the said property; that Thorne 
be enjoined from transferring his stock, and that the stock so held by him 
be declared void; that the old company and its offlcers be restrained from 
allowing him to vote the same; that an accountlng be had with the new 
company, and said trustées so named, of ail their doings with said property, 
and that they he required to restore ail of the same to the old company; 
and that the new company account for its profits made while in possession 
thereof. In that suit a temporary restralning order was issued, and there- 
after, on motions to extend the order pendlng the suit and to appoint a re- 
ceiver, the court, on March 6, 1902, denied both motions and dismissed 
the suit for want of equity In the bill of complaint. TTie plaintifCs promptiy 



42 129 FEDERAL REPORTEE. 

filed thelr motion to vacate thé Judgment, on the ground of irregularity in 
entering tlie same. The motion was tal^en under advisement, and was not 
decided until after the entry of the final decree in the court below in the 
présent suit. 

In the meantlme, on March 7, 1902, a meeting of the stoclcholders of the 
old Company was held, at which It was ordered by the holders of more than 
two-thirda of the stock that the corporation be dissolved, and its property 
sold and assets distributed. On March 19, 1902, the new company com- 
menced an action in the superior court of Pierce county, state of Washington, 
against the old company, to recover judgment for §141,640.28, upon an al- 
leged accoimt stated on the adjustment of ail matters in dispute between 
the two companies. Subsequently one of the minority stockholders, by leave 
of the court, intervened in that action, eontesting the validity of the elalm, 
and the right of the plaintlfC therein to recover upon said alleged account 
stated. That action was still pending at the date of the entry of the de- 
cree which is appealed from in the présent case. On Aprll 25, 1903, on the 
motion of the plaintif!: in that action, that cause was dismlssed. On March 
26, 1902, the stockholders who had been the plaintiffs in the action in the 
superior court of the state commeneed the présent suit in the United States 
Circuit Coiu-t for the District of "Washington against the old company and 
its then directors, Browne, Oakes, Mottet, Albertson, Hellar, Thorne, and 
It'ogg. The new company was not made a party to the suit. The bill con- 
tained maiiy of the allégations that had been embodied in the bill of cam- 
plajnt in case No. 19,209 in the superior court, and it alleged that the 
trustées named were unfit persons to carry on the proceedings of winding 
up the corporation ; that they were the créatures of the new company, pledged 
to seeure it the smelting plant, and allow its claim for improvements made 
thereon, to which, the bill alleged, it was not entitled. It was alleged 
that the new company had been in the possession of the smelting plant and 
property of the old company under said void lease a little more than three 
years, and had realized large profits therefrom; that the old company had 
allowed a claim In the sum of $141,640.28 in favor of the new company; that 
the allowance of that claim and the proceedings looking to a sale of prop- 
erties were part of a scheme to avoid the efCect of the judgment of the 
superior court in which it had been declared that the lease was void, and 
to enable the new company to acquire the property of the old company. It 
prayed that the trustées named be restrained from acting as such otfîcers 
of the old company or on behalf of its creditors and stockholders, and from 
selling or charging with a lien any of its property, and from carrying out 
the sale proposed to be made; that a receiver be appointed of its property; 
and that a liquidation of the aft'airs of the corporation be had through him. 
On September 3, 1902, the appellants filed a supplemental bill, alleging that 
on August 7, 3902, the board of trustées of the old company held a meeting 
at which tliey considered two bids which they had received for the smelting 
plant and property — one a cash bid for $250,000, the other a bid of $230,000 
made by the new company; that they had accepted the latter, and had di- 
rected that a contract of sale be executod in accordance therewith; that in 
the contract of sale so executed it was recited that the new company liad a 
valid claim against the old company for $141,640.28; that the new company 
agreed to procure asslgnments from the holders of not less than 5,931 shares 
of the stock of the old company of ail dividends that may at any time be 
declared thereon; and that the new company was to make payment for the 
said purchase by receipting its bill for ^141,640.28, by receipting for divi- 
dends on said 5,931 shares of stock, and by paylng the sum of $31,799.72 In 
cash, provided that, if it should be found that it had paid too much in cash, 
the balance should be refunded; and, if It had paid too little, it should pay 
whatever further sums should from time to time be deemed necessary by the 
old company. 

ïhe appellees answered, and, among other défenses, pleaded that the de- 
cree of the superior court of the state of Washington in case No. 19,209 
was a judicial détermination of ail matters and issues stated in appellants' 
bill. At the commencement of the suit the appellants moved for the appoint- 
ment of a receiver, and for a temporary injunction enjoining the appellees 



HENNESST V. TACOMA SMELTING 4 EEFINING CO. 43 

from goîng forward with the proposed sale. Thèse applications were taken 
under advisement by the court. On July 22, 1902, the trustées of the old 
Company having eaused a new notice of sale to be given, the appellants flied 
their motion for an injunction to enjoin them from making the sale, and from 
charging wIth any claim the smeltlng plant and properties of the old Com- 
pany. The motion was denied upon the appellees' giving a bond to the ap- 
pellants In the sum of $43,000. 

Testimony was taken upon the issues, and on November 26, 1902, a final 
decree was entered dismissing the appellants' bill, the court ruling that the 
decree of the superlor court in case No. 19,209 was concluslve and binding 
upon the parties in the présent suit as to ail questions whiçh were or might 
hâve been litigated lu that case; that that décision not having, in terms or 
in légal effect, annihllated any of the stock of the old company, nor denied 
the right of the new company to transter the stock which it held, nor pre- 
cluded Its vendees fjom voting that stock, but having judiclally determined 
that ïhorne acquired a majority of the stock of the old company lawfully, the 
issues in the présent case were therefore narrowed and limlted by the plea 
of res judlcata to the question whether the appellants were entltled to any 
relief In equity by reason of the facts and transactions since March (J, 1902, 
the date of that decree. The court confined its considération to the relief 
sought concerning the élection of the new board of trustées of the old com- 
pany, the attempted settlement of accounts betweeu the old company and the 
new, the initiation of proceedings to dissolve the old company, and the sale 
of its property, and the application for the appointment of a recel ver. As to 
ail thèse matters the court was of the opinion that the appellants were en- 
tltled to no relief. Concerning the allowanee of the claim of the new com- 
pany for $141,640.28, the court made no finding or spécial adjudication in the 
decree, but in the course of the opinion remarked: "AU questions as to the 
lawfulness and righteousness or unrighteousness of the settlement referred 
to are or may be the subject of litigation In an action at law pending in the 
superlor court, in which the new company is plalntiff, and is asking for a 
judgment for the amount of the balance so agreed to. The fact that the same 
controversy Is involved in a pending lawsuit between the same parties in 
another court of concurrent jurisdiction does not oust this court of jurisdic- 
tion, and, although it may uselessly add something to the burdens of the 
court, the parties hâve a right to a hearing and décision." Thèse remarks 
were made with référence to the action at law in the superlor court of Pierce 
county, State of Washington, brought by the new company against the old 
to obtaln judgment upon an account stated for $141,640.28. The court in the 
opinion proceeded thereupon to discuss that claim, and, wlthout entering Into 
the items of the account, expressed the opinion that the adjustment which 
was made was nelther unfalr nor unlawful. The court further sald: "I 
hâve considered the propriety of retaining the case for final liquidation after 
the action stlll pending in the superlor court [the action on the account stated] 
shall hâve been terminated, but to do so will delay an appeal for an indefinite 
time; and, in my judgment, it is expédient for the parties to hâve a final 
decree entered, which may be appealed from at once." 

T. L. Stiles, E. L,. Parsons, A. N. Fitch, and James M. Harris, for 
appellants. 

Charles S. Fogg and W. H. Bogie, for appellees. 

Before GILBERT, ROSS, and MORROW, Circuit Judges. 

GILBERT, Circuit Judge, after stating the case as above, delivered 
the opinion of the court. 

One of the assignments of error is that the court held that the judg- 
ment of the State court in case No. 19,209 operated as a bar or as an 
adjudication of any of the matters involved in the présent case. We 
need not enter into a considération of the disputed questions involved 
on this assignment, further than to advert to the fact that, subséquent 



44 129 FEDERAL REPORTER. 

to the final decree rendered by the court below, tlie judgment so relied 
upon as an estoppel was reversed by the Suprême Court of the state of 
Washington, pn November 26, 1902, the date of the entry of the final 
decree which is hère appealed from, the suit in the state court was 
pending therein on the motion of the plaintiffs for an order to vacate 
the judgment on the ground of irregularity in entering the same. On 
January 2, 1903, that order was denied. The plaintifïs therein, desiring 
to appeal from the order, and having been denied by the trial court a 
statement of facts necessary for the prosecution of their appeal, applied 
to the Suprême Court of the state of Washington for a mandamus to 
the judge of the superior court, requiring him to sign the desired state- 
ment. On July 2, 1903, that application was allowed. State ex rel. 
Hennessy v. Huston, 72 Pac. 1015. The Suprême Court, in rendering 
its judgment, disapproved the ruling of the superior court that there 
was no equity in the complaint, and held, upon the facts alleged in the 
pétition for the writ, that the judgment had been irregularly entered. 
The court issued the writ, and thereafter the desired statement was 
made, and the appeal was presented to the Suprême Court. On De- 
cember 10, 1903, the décision of that court was rendered thereon. 
Hennessy v. Tacoma S. & R. Co., 74 Pac. 584. It was held that the 
judgment of the superior court had been prematurely entered, and it 
was adjudged that the judgment be reversed, and the cause remanded 
to the superior court, with instructions to proceed with the trial on the 
issues joined. It has been held that the effect of a reversai of a judg- 
ment completely destroys its efficacy as an estoppel, and that an ij^pel- 
late court may take judicial notice on the appeal of such a reversai oc- 
curring after the date of the décision appealed from. Butler v. Eaton, 
141 U. S. 240, II Sup. Ct. 985, 35 L,. Ed. 713. In that case the Suprême 
Court had before it for review on writ of error the judgment of the 
Circuit Court for the District of Massachusetts, in which it had been 
adjudged that a certain prior judgment of the Suprême Judicial Court 
of Massachusetts constituted an estoppel as to a portion of the amount 
sued for. After the date of the judgment of the Circuit Court the 
décision of the Suprême Judicial Court of Massachusetts was, upon 
writ of error from the Suprême Court of the United States, reversed. 
The latter court, in deciding the case of Butler v. Eaton, took judicial 
notice of that reversai, and said that, when the judgment so relied upon 
as an estoppel "was given in évidence in this case, it was effective for 
the purpose of a défense, but its effectiveness in that regard is now 
entirely annulled. * * * It is apparent from an inspection of the 
record that the whole foundation of that part of the judgment which is 
in favor of the défendant is, to our judicial knowledge, without any 
validity, force, or efïect, and ought never to hâve existed. Why, then, 
should not we reverse the judgment, which we know of record has 
become erroneous, and save the parties the delay and expense of taking 
ulterior proceedings in the court below to effect the same object?" The 
court therefore reversed the judgment of the Circuit Court, and re- 
manded the cause, with directions to enter judgment for the plaintiff 
in error for the whole amount sued for in the action. On the authority 
of that case, we entertain no doubt that the decree of the lower court 
in the présent case must be reversed. 



HENNESST V. TACOMA SMELTING 4 BEFINING 00. 43 

Only one other assignment of error need be referred to. That is 
that the court erred in holding that the claim of the new company 
against the old in the sum of $141,640.28 was a valid and lawful claim. 
The détermination of the validity of that claim, and ail questions con- 
cerning the allowance or disallowance of crédits for the value of the 
betterments or improvements placed upon the property by the new 
company, and the items thereof, if allowed, are involved in the issues 
presented in case No. 19,209 pending in the state court. As that court 
had obtained jurisdiction of thèse issues before the présent suit was 
begun, and the cause is there pending for final détermination, ail ques- 
tions involved in that suit should, we think, be left for the adjudication 
of that court, unaffected by any views that hâve been expressed in the 
opinion in the court below. The bill in the présent suit prayed for no 
relief concerning the allowance or disallowance of the claim for im- 
provements, or any of the items thereof, except that it prayed that the 
appellees be enjoined from charging or suflfering to be charged with 
any claim, lien, or demand any of the properties of the old company. 
This evidently had référence to the allégations in the bill that the pur- 
pose of the original parties to the action on the account stated was to 
suffer a judgment to be taken therein which should become a lien on 
the property of the old company. But the case made upon the bill in 
the Circuit Court involves issues and seeks relief in addition to those 
which are pleaded in the case in the state court. It may be that the 
latter court will, in its final decree, afford such relief and so efFectually 
dispose of ail the matters in controversy as to leave no necessity for 
further action in the case in the Circuit Court. 

We think that, under the circumstances, the decree of the Circuit 
Court should be reversed, and the cause remanded, with instructions to 
await the final disposition of the cause in the state court. Such will be 
the order of the court. 

The following is the mémorandum décision of the Circuit Court : 

HANFORD, District Judge. It is the opinion of the court that the final de- 
cree of the superior court In case No. 19,209 Is equally as conclusive and bindlng 
upon the parties as to ail questions which were or might hâve been Iltigated in 
that case as the décision of the Suprême Court in the case which was prosecut- 
ed by Mr. Parsons in behalf of the mlnority stockholders. That décision did 
not in terms, nor in légal eflfect, annihilate any of the stock of the Taeoma 
Smelting & Kefining Company, nor deny the right of the Taeoma Smelting Com- 
pany (the new company) to transfer the stock which it held, nor preclude 
its vendees from voting that stock and participating in the business of the 
old company; and the decree in case No. 10,209 is a judiclal détermination 
by a court of compétent jurisdiction that Mr. Thorne acquired a majority 
of the stoclî of the old company lawfully. That decree has not been attacked 
for fraud, and this court has no power to set it aside. ïlierefore the Issues 
In this case are narrowed and limited by the plea of res adjudicata to the 
question whether the complainants are entitled to any relief In equity by 
reason of the facts and transactions since the date of that decree, viz., March 
6, 1902. Thèse transactions include the élection of a new board of trustées, 
the attempted settlement of aceounts between the old smelting company and 
the new one, the initiation of proceedings to dissolve the old corporation, 
and the sale of Its property. 

The élection of a new board of trustées is not of Itself ground for any com- 
plaint whatever. MInority stockholders are certainly entitled to be protected 
In ail their légal and équitable righta, but it is equally true that the major- 



46 129 FEDEEAL EEPORTER. 

Ity have the riglit to prevail in the eholce of trustées who are cliarged v.nth 
responslbllity for managing the business of a corporation. Tlie trustées 
elected at the meeting of March 7th are ail legally qualifled, and each of tliem 
Is a business man of good réputation. Whilst it is true that they were pre- 
dlsposed to be frîendly towards the pollcy of the majority stockholders, and 
opposed to the confiscation of the investments made in betterments of the 
smelting plant, on the other hand the évidence does not Justify the denuncia- 
tlon of thèse gentlemen as conspirators to defraud the complainants. 

After a patient examination of the pleadlngs and évidence in this case, 
and considération of the arguments and the autborities cited on both sides, 
and a great deal of délibération, I am not strongly impressed with the appeal 
which the complainants are making to a court of equity. The Company in 
whlch they are stockholders, as a bxisiness enterprise, was not a success ; 
and, after contending agaiust adverse conditions for years, it reached a point 
•where it had to give up the struggle, and make a sale of its plant under 
conditions which meant a sacrifice, or else make some such arrangement, 
as it did make. The promoters of the new organization did not attempt 
to "freeze out" the minority stockholders. They secured the capital re- 
qr.ired to improve the plant, and expended it in the hope of avoiding a com- 
plète wreck of the old company; and, after the lease had been adjudged to 
be invalid, they offered to share with them, on a fair basis in proportion to 
their holdings, ail the advantages of a proposed reorganization of both com- 
panies. The minority stockholders refused to do anytblng to help estricate 
the old company from its predicament, or to accept any terms ofCered them, 
and have ever slnce shown a disposition to make themselves obnoxious, so 
as to compel their associâtes to buy their stock at $100 per share, although 
when it vras originally issued the company only recel ved $50 per share, and 
it has never been worth in the market more than was originally paid for it. 

On the 7th of March, 1902, when the new board of trustées were elected, 
the company had no friends, and its minority stockholders were actively 
hostile. There was no money in the treasury with which to carry on a busi- 
ness which, to be successful, requires a large amount of ready cash. It 
was obvious, therefore, that a sale of the plant and dissolution of the corpora- 
tion was necessary. This being so, the complainants had a right to apply 
to a court of compétent jurlsdictlon for the appointment of a receiver, to 
gather up and dispose of the assets, pay debts, and distribute whatever 
should remain among the stockholders, and this court might have lawfully 
taken the property into its custody, through a receiver, for the purposes 
mentioned; but there is a practical as well as a légal side to this case, and 
a court of equity is required to exercise a Sound discrétion in dealing with 
property of litigants. To illustrate, the value of the property and the price 
obtainable for it would necessarily be alïected by the continued opération 
or shutting down of the smelter, because the actual opération of the smelter 
could not b€ stopped and started again without the loss of a large sum of 
money, and the interruption of its business would necessarily depreciate its 
value. Taking thèse matters into considération, and also considering that 
the new trustées were men of good réputation and flnancial responslbllity, 
the court considered that it could not choose a receiver who "would do bet- 
ter for the litigants in protecting their interests, in carrylng on the business 
and disposing of it, than the new board of trustées. The décision of the 
court denying the application for the appointment of a receiver, made at the 
beginning of the lltigation, commends itseif to my mind now, after the final 
hearing, as being for the best interests of ail. 

The smelter plant has been sold under the direction of the board of trus- 
tées. In their argument upon the final hearing, the solicitors for the com- 
plainants disputed the adequacy of the price obtained, but no showing has 
been made of a probability that upon a resale of the property by a eom- 
missioner or agent of this court, under any conditions which might be 
prescribed, a better price can be obtained. Therefore it is my conclusion 
that the complainants have not made out a case entitling them to have the 
court interfère, by the appointment of a receiver or otherwise, with the 
disposition of the smeltiug plant, and the court caunot prevent eonsum- 
mation of the dissolution proceedings which have been inaugurated by the 
holders of the requiaite amount of stock. 



HENNESST V. TACOMA SMELTING & EEFINING CO. 47 

Only one subject of controversy remains to be considered, and that is the 
adjustment of the claims of the two companies against each other, in which 
the new board of trustées admitted and allowed a balance in favor of the 
new Company of $141,000. Ail questions as to the lawfulness and righteous- 
ness or unrighteousness of the settlement referred to are or may be the sub- 
ject of litigation in an action at law pending in the superlor court, In which 
the new company is plaintifC, and is asking for a judgment for the amount of 
the balance so agreed to. The fact that the same controversy is involved in 
a pending lawsuit between the same parties in another court of concurrent 
jurisdlction does not oust this court of jurisdiction, and, although It may use- 
lessly add something to the burdens of the court, the parties hâve a right to 
a hearing and décision. And upon that question it is my opinion that not- 
withstanding the rule that an Intruder upon real estate, or a tenant unlawfuUy 
holding over after the termination of bis tenancy, cannot compel the owner 
of the premises to pay the value of improvements made without bis consent, 
the Suprême Court of the United States bas recognized the palpable Injustice 
of allowing a corporation which is a party to an ultra vires contraet to seize 
and retain, without paying for it, valuable property transferred or created 
upon the faith of the contraet In the case of Central Transportation Com- 
pany V. Pullman's Car Company, 139 U. S. 60, 11 Sup. Ct. 488, 35 L. Ed. 55, 
I flnd the foUowing déclaration of the law by the Suprême Court: "A con- 
traet ultra vires being unlawful and void, not because it is In itself Immoral, 
but because the corporation, by the law of Its création, Is incapable of making 
it, the courts, while refusing to maintain any action upon the unlawful con- 
traet, hâve always striven to do justice between the parties, so far as could 
be done consistently with adhérence to law, by permitting property or money 
parted with on the f aith of the unlawful contraet to be recovered back, or com- 
pensation to be made for It. In such case, however, the action is not main- 
tained upon the unlawful contraet, nor according to its terms; but on an Im- 
plied contraet of the défendant to return, or, failing to do that, to make com- 
pensation for, property or money which it bas no right to retain. To main- 
tain such an action is not to aflirm, but to disatiirm, the unlawful contraet." 
That was an action to recover rent upon the covenants of a lease. A judg- 
ment of nonsuit was granted on the ground that the lease was ultra vires, and 
the Suprême Court aflirmed the judgment. Before the décision of the Suprême 
Court holding the lease to be ultra vires had been rendered, the Pullman Com- 
pany, which was the lessee, filed a bill In equity for an injunction to restrain 
the lessor from bringing other actions to collect rent, and In that suit the lessor 
filed a cross-bill asking for a judgment in its favor for the value of the property 
which It had delivered pursuant to the lease ; also for the value of certain con- 
tracts and patent rights assigned, and for compensation for the ruin of its busi- 
ness. The Suprême Court sustained the cross-bill, but held that "in no way, 
and through no channels, directly or Indirectly, wIU the courts allow an action 
to be maintalned for the recovery of property delivered under an illégal con- 
traet, where, In order to maintain such recovery, It is necessary to bave re- 
course to that contraet. The right of recovery must rest upon a disafiirmance 
of the contraet, and it is permitted only because of the désire of courts to do 
justice as far as it Is possible to the party who bas made payment or delivered 
property under a void agreement, and which. In justice, be ought to recover." 
For the reasons stated in the above quotation, the judgment of the court below, 
which was in favor of the lessor, upon Its cross-bill, for over $4,000,000, was 
reversed ; the Suprême Court holding that the recovery should be restricted to 
the actual value of the physical property which the lessee had absorbed. With 
respect to this branch of the case the court said : "We eonclude that the cross- 
defendant is not liable for the contracts and patents transferred, nor for the 
possible damage the Central Company may bave sustained, as above stated. It 
is liable for the value of the cars, furniture, etc., transferred. It is a libéral 
estimate of the value of this property to say that it amounted in 18^ to as 
mueh as it did In 1870, yet we are disposed to deal in as libéral a manner with 
the cross-complainant as we fairly may, while not violating any settled prin- 
ciple of law. In order to give to it such measure of relief as the circumstances 
of the case seem to justify. We therefore take the value of the property in 
the cars, etc., in 1885 at the sum of $710,816.50, To that, we thiuk, should be 



48 129 FEDERAL REPORTER. 

added the $17,000 cash received from the Central Company, making a total 
of $727,846.50, and interest from January 1, 1885, for which the eross-def endant 
is liable, together with eosts." PuUman's Car Company v. Transportation Oo., 
171 U. S. 138, 161, 18 Sup. Ot. 808, 817, 43 L. Ed. 108. Upon the prlnciples 
of that décision, the Tacoma Smelting & Reflning Company had no valld claim 
to recover from its lessee the profits of the smelting business while the plant 
■was being operated by the latter Company, nor to recover anything except 
property which it parted with on the faith of the contract, or the value of any 
part thereof which could not be restored, and I hold that the rights of the 
parties were reciprocal; that Is to say, the right of the lessor to recover its 
property, or compensation for it, is not stronger in equity than the right of 
the lessee to hâve compensation for the Investments which it made in better- 
ments on the falth of tlie ultra vires contract. In the eyes of the law the two 
corporations were equally in fault, and a court of equity will not permit 
either to appropriate and retain property of the other unconscionably. It is 
true that the minority stoekholders who protested against the lease are entitled 
to spécial considération, and their rights are not exactly the same as the rights 
of their company. But even they hâve no standing in a court of equity to 
unjustly insist upon profiting by a forfeiture. Equity does not favor for- 
feitures. The value of their interests involved is to be measured by the value 
of their stock, as it would be unaffected by the ultra vires contract, and they 
hâve no just claim for anything more. 

This court would not uphold the trustées of a corporation In giving away its 
property or In creating flctitious debts, whereby the assets might be dis- 
sipated; but, in View of the décisions of the Suprême Court of the United 
States referred to, the trustées of the Tacoma Smelting & Refining Company 
were not obligea to yield to the demands of the minority stoekholders to re- 
pudiate ail liability to pay for permanent and unmovable additions to the 
smelting plant which were necessary to the successful opération thereof. The 
adjustment which was made is, in my opinion, neither unfair nor unlawful. 
I say it is not unfair, because the promoters will get back less than they put 
in, déductions were made of estimated dépréciation in value of the improve- 
ments by use thereof, and a set-off for rent was allowed, and the complainants 
hâve not suffered by it in the diminution in value of their stock. They will 
not reçoive as large a dividend as they would if the court would lend itselt 
to aid in the confiscation of property created by others, but the amount of 
their dividend will not be less than the probable value of their stock in 1898 
or now, If the ultra vires contract had not been made, unless the amount shall 
be further diminished by reason of expensive litigation for which they only 
can be held to be responsible. 

I hâve considered the propriety of retaining the case for final liquidation 
after the action stlll pending in the superior court shall hâve been terminated, 
but to do so will delay an appeal for an indefinite time, and, in my judgment, 
it is expédient for the parties to hâve a final decree entered, which may be 
appealed from at once. 

By reason of an intimation from the court at the time of denying the ap- 
plication for appointment of a receiver, the sale of the smelting plant was post- 
poned, and the terms of the sale were modified. For this reason, I hold that 
the eosts should be divided. 

Let a decree be entered dismissing the case on the merits, and awarding to 
the défendants one-balf of their taxable eosts. 



EADFOED V. TJNITED STATES. 49 

EADFORD V. UNITED STATES. 

(Circuit CJourt of Appeals, Second Circuit March 8, 1904.) 

No. 55. 

L FEDERAL CoUBTS—ApPEAL—ReCOKD— REDUCTION. 

On an appeal to the Circuit Court of Appeals, where there Is no question 
raised as to the credibility of any wltness, or as to the weight of his tes- 
timony, and it is not important that the court should know just how the 
testlmony was given, the testimony should not be printed in question and 
answer In the appeal record, but should be presented in narrative form. 

2. Cbiminal Law — INDICTMENT— Motion to Quash— Evidence befobe Grand 

JUEY. 

The déniai of a motion to quash an indictment. on the ground that It 
was based on Incompétent évidence of essentlal facts before the grand jury 
is a matter of discrétion, and is not a proper subject of exception. 

3. SAME— AlTIDAVITS. 

The affidavit In support of a motion to quash an indictment on the 
ground that It was founded on incompétent testimony was to the eflfect 
that no other or différent évidence than that given by déponent, which 
was objected to, was produced, or taken before the grand jury, pertaining 
to the question in issue, and that déponent was présent "in and about the 
grand jury during the entire session thereof," was InsufBcient to show 
that no other testimony was introduced. 

4. Same— JuBOES— Oedeb ôf Challenge— Objections— Waivee. 

Where, in a crimlnal prosecution in the fédéral courts, there was a dis- 
pute between counsel, while the jury was being impaneled, as to the order 
in which their respective peremptory challenges should be used, but nei- 
ther counsel called the court's attention to it, and the United States at- 
torney reserved one of his challenges until after talesmen had been drawn, 
it was not error to permit the government's attorney to exercise such chal- 
lenge after defendant's challenges had been exhausted. 

5. State Statutes— Application. 

Code Cr. Proc. N. Y. § 385, providing the order in which jurors drawn 
for the trial of criminal cases shall be challenged, is not blnding on the 
fédéral courts sittlng in that state for the trial of criminal cases. 

6. Same— CoHSPiEACT— Evidence— Objections. 

Where, in a prosecution for eonspiracy, the court held that certain évi- 
dence Introduced was admissible as against one of the conspirators only, 
and called the government attorney's attention expllcitly to the fact that 
It was Inadmissible as against the others, the admission of such évidence 
was not subject to exception on the part of the other défendants. 

7. Same. 

In a prosecution for eonspiracy to defraud the United States by the ex- 
écution of straw bail, the introduction of affidavlts of justification could 
not be objected to under Rev. St. § 860 [U. S. Comp. St. 1901, p. 661], pro- 
hiblting the introduction of évidence obtained from a party or wltness 
by means of a judicial proceeding, by any of the conspirators except those 
who made the afiidavlts. 

8. Saue — Eléments or Offense— Loss. 

In a prosecution for eonspiracy to defraud the United States by the ex- 
écution of straw bail, it was not necessary that the government should 
prove that the accused did not appear on the day requlred, since the gov- 
ernment was defrauded when the accused weré released on the strengfh 
of a recognlzance, apparently good, but worthless in fact. 

If 5. See Courts, vol. 13, Cent. Dig. § 908. 
129 F.— 4 



50 129 FEDERAL REPORTER. 

In Error to the District Court of the United States for the West- 
ern District of New York. 

Thls cause cornes hère upon a writ of error to revlew a judgment of the 
District Court, Western District of New Xorlî, convicting plaintifC in error 
of a violation of section 6440, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3676], 
which reads as follows : "5440. If two or more persons conspire either to com- 
mit any offense agaiust the United States, or to defraud the United States In 
any manner or for any purpose, and one or more of such persons do any act 
to efiCect the object of the consplracy, ail the parties to such conspiracy shall 
be liable to a penalty of not less than one thousand dollars and not more than 
ten thousand dollars, and to Imprisonment not more than two years." The 
two indictments, which were duly Consolidated by order of the court and tried 
together, charged four persons — Radford, Parrish, McLaren, and James — wlth 
entering into an unlawful agreement and combination and conspiring together 
to defraud the United States. The détails of the conspiracy were as follows : 
Two Ohlnamen — Moy Dong Gin and Aye Yub — were under arrest charged with 
having unlawfully entered the United States, and were each held for trial 
before a United States commlssioner. It was charged that the défendants 
agreed together that adjournments should be aslîed for and application made 
to admit to bail, and that upon the fixing of the bail Parrish and James should 
ofCer themselves as sureties. Ail four of them knew that the proposed sureties 
were not worth anything above just debts and liabilities, and therefore, in 
order to enable them ostensibly to justify by specifying and describing prop- 
erty as their own, it was agreed that Radford should convey to James and 
McLaren should convey to Parrish certain pièces of real estate speciflcally 
set forth in the indictment, which property was so conveyed for no other pur- 
pose than to be referred to in the sureties' justification. It was further char- 
ged that the properties so conveyed were not worth any sum above the amount 
of the incumbrances thereon, that this was well known to ail of the accused, 
and that the whole scheme was one to defraud the United States by securing 
the release of the Chinamen upon recognizances apparently good, but in reality 
worthless, so that upon the failure of the Chinamen to appear for trial the 
government would be defrauded of the amount of the recognizances. The acts 
charged to hâve been donc in furtherance of the conspiracy were the eonvey- 
ance by Radford to James of three lots on St. Lawrence avenue, BufCalo, aud 
three lots on Stone street, Tonawanda, and by McLaren to Parrish of a lot 
on Crowley avenue, BufCalo ; aiso the giving of recognizances by James and 
Parrish, with afiidavits of justification referrlng to the pièces of property so 
conveyed. The bail was accepted by the commissioners, and the Chinamen 
released. The latter failed to appear for trial, and the recognizances were 
duly estreated. The four accused persons were tried together. The jury 
found Radford and Parrish guilty, and acquitted McLaren and James. 

C. A. Dolson, for plaintiff in error. 
Chas. H. Brown, for défendant in error. 

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges. 

LACOMBE, Circuit Judge (after stating the facts as above). Be- 
fore entering upon a discussion of the points raised by assignment 
of errors and hère argued, we must call attention to the character 
of the record presented to this court. It consists of 580 printed 
pages and a supplément of 96 pages in typewriting containing ex- 
hibits. The appeal is by Radford only, and there was no motion to 
direct acquittai as to him, or, indeed, as to any of the others. In 
view of the issues involved, the testimony is most voluminous, and 
it has been presented to us without the slightest efïort to assist the 
court by concentrating its attention to the parts material to the as- 
signments of error. Apparently it was thought that the only labor 
required of counsel was to fasten together the stenographer's min- 



EADFOED V. UNITED STATES. 51 

utes arid the exhibits, and hâve them certified by the clerk of the 
District Court. In a note at the end of this opinion will be fouud 
a fair illustration of the resuit of such practice. Had this weari- 
some succession of question and answer been presented in narrative 
form, it is altogether probable that the record would hâve shrunk 
to a quarter, at least, of its présent size, and this court hâve been 
spared the labor of winnowing wheat from chafï. Of course, thcre 
are many occasions when it is quite important to know just how 
the testimony was given, what hésitation there may hâve been on 
the part of a witness, what contradictions, how much of his answer 
was suggested by a question, so that there may be proper apprécia- 
tion of the weight to be given to his testimony. But on this appeal 
there is no question raised as to the credibility of any witness or 
as to the weight of his testimony. Concededly, at the close of the 
case, ail such questions were to be left to the jury, and they were 
so left. Counsel should appreciate that, although their first duty is 
to their client to see to it that everything material to that client's 
case, however trivial, is laid before the reviewing court, they also, 
as members of the bar practicing before that court, owe it a duty. 
We need not expatiate further on this point. It is thought — as it 
is hoped — that those who read the footnote and thèse criticisms will 
hereafter be more careful to discharge their full duty as counseiors 
of this court. 

Of the 25 errors assigned a few only hâve been presented in ar- 
gument. Thèse only need be discussed hère. It is assigned as er- 
ror that the court denied a motion to quash the indictments, which 
was based on the proposition that the grand jury acted upon incom- 
pétent évidence of the essential facts on which the charge was predi- 
cated, it appearing that a clerk in the office of the county clerk of 
Erie county (whose office is in Buflfalo) attended before the grand 
jury in Lockport, and testified that upon a search of the records 
made by him he found certain deeds, mortgages, and judgments on 
file. It would be a sufficient answer to this assignment to call at- 
tention to the well-settled rule that such a motion is ordinarily ad- 
dressed to the discrétion of the trial court. The reason for enter- 
taining motions to quash on grounds such as that above indicated 
is well set out in U. S. v. Farrington (D. C.) 5 Fed. 343 : 

"No person should be subjected to the expense, vexation, and contumely of 
a trial for a criminal oiïense unless the charge has been investigated, and a 
reasonable foundation laid (or an indictment or Information." 

After conviction this reason no longer exists, because an intelli- 
gent and impartial jury of his peers, after a careful investigation, 
at which he has been represented by counsel, with full power to 
cross-examine, to introduce évidence, to tell his own story if he so 
choose, and to plead his cause, has reached the conclusion not only 
that there was a reasonable foundation for the charge, but that the 
charge was true. "The motion to quash was clearly determinable 
as a matter of discrétion. It was preliminary in its character, and 
the déniai of the motion could not fînally décide any right of the 
défendant. The rule laid down by the elementary writers is that a 
motion to quash is directed to the sound discrétion of the court. 



52 129 FEDERAL REPORTER. 

and, if refused, is not a proper subject oî exception." U. S- v. 
Rosenberg, 7 Wall. 580, 19 L. Ed. 263. But, if this were not so, 
the motion to quash would be held to be wholly without merit. By 
reason of the circumstance that the one affidavit on which it was 
made was among the typewritten exhibits, it did not corne to our 
attention on the argument, and for the future guidance of counsel 
in other causes it should now be referred to. The clerk from the 
county clerk's office, after setting forth what he testified to as to 
the records he had found on file, avers that no record or document 
from that office was taken to the grand jury, and that none were 
exhibited to him when he gave his testimony. The remaining por- 
tion of his affidavit is as foUows : 

"That no other or différent testimony or évidence [than his own] was pro- 
dueed or taken before said grand jury pertaining to the deeds, mortgages, or 
judgments appearing in the name of or against the said Ernest L. Parrish. 
as déponent verily belleves ; and the reason for his belief is that déponent 
was the only person from the said Erie county clerk's office before said grand 
jury ; that déponent was présent in and about the grand jury during the entire 
session of the said grand jury at the city of Lockport, as aforesaid ; that dé- 
ponent saw no books, records, or documents from said Erie county clerk's 
office befoi'e said grand jury at Lockport." 

The expression, "présent in the grand jury during the entire ses- 
sion," is of dubious meaning, but, if it stood alone, it might be con- 
strued as averring that he was in the grand jury room from the 
beginning to the end of every one of their meetings when this case 
was considered. But the affiant manifestly makes no such claim. 
He swears only that he "was présent in and about the grand jury." 
How a person who is "about" a grand jury thereby becomes quali- 
fied to State everything which that body did and did not do is not 
apparent. How does he know that the grand jury did not hâve be- 
fore them duly authenticated copies of every deed, mortgage, and 
judgment to which he testified? How does he know what other 
évidence they may hâve had of the transactions on which the charge 
was based? The belief of a person "présent about a grand jury" 
is unimportant, and his assertion as to what took place in the grand 
jury room (except when he happened to be in it) is devoid of ail 
weight. A motion to quash the indictments on such an affidavit as 
the one found among the exhibits was preposterous, and the effort 
to review the ruling of the trial judge thereon is frivolous. 

Error is assigned in that the court permitted the United States 
attorney to excuse a particular juryman against objection. The rec- 
ord is not quite clear as to what occurred. It appears that after ex- 
aminations on the voir dire, and the exercise of ail défendants' per- 
emptory challenges, there were less than 12 men in the box, and the 
panel was exhausted. Talesmen were summoned and examined, the 
box was filled, and défendants' counsel announced that they were 
content with the jury. There is nothing to show that the govern- 
ment had made a like announcement. Thereupon the United States 
attorney proceeded to ask some questions of one of the jurymen. 
Whether or not he was one of those who entered the box after de- 
fendants had exhausted their challenges does not appear. Objec- 
tion was made that the prosecuting officer was "bound to exhaust 



KADFORD V. UNITED STATES. 53 

his objections before the défendant takes up the objections." There 
seems to hâve been some dispute between counsel while the jury 
were being impaneled as to the order in which their respective per- 
emptory challenges should be used, but neither of them called the 
court's attention to it. Upon hearing the objection above quoted, 
the court remarked that, if counsel had asked for a ruling, it would 
hâve made one; but that, not having done so, the challenge to the 
juror would be allowed. We see no error in this. Counsel appar- 
ently relies on section 385 of the New York Code of Criminal Pro- 
cédure, which provides that "chp.llenges to an individual juror must 
be taken first by the people and then by the défendant." Appar- 
ently this statute contemplâtes that when the box is filled with 12 
men, who hâve successfully passed examination on the voir dire, 
they shall be taken up one by one in regular order, and as to each 
one so taken up the prosecutpr first shall be required to state wheth- 
er he challenges or not, and, if lie do not challenge that juror, then 
the défendant shall be required to state whether or not he challenges 
him. If either challenge, and the vacant seat be filled by another 
juror, then the same order of propounding challenges to him should 
be observed; and the challenging should proceed in like order till 
the number of peremptory challenges allowed are exhausted, or both 
sides are on record as having specifically declined to challenge every 
one of the twelve in the box. This seems to be an excellent method 
of presenting the challenges, and would no doubt tend in practice 
to expedite the sélection of a jury by cutting off some of the finessing 
with which that opération is so often obstructed. But, though it 
may quite appropriately be followed in the fédéral courts, the state 
statute does not lay down the rule for those tribunals in criminal 
trials (Logan v. U. S., 144 U. S. 263, 12 Sup. Ct. 617, 36 L. Ed. 429), 
and there is no error assignable if the trial judge fails to conform 
to state practice. As has been already indicated, there was no error 
in the disposition of the case at bar. Certainly upon no reasonable 
theory could either sida hâve been compelled to exhaust its chal- 
lenges until there were 12 men in the box to sélect from ; and, if 
either side chose to exhaust its allpwance without first making some 
request of the court as to regulating the order of challenge, it can- 
not complain if the other side has more prudently reserved one or 
more of its challenges to meet the sélections from a new panel of 
talesmen, of whose names no one was advised until after the trial 
had begun, and as to whose antécédents, therefore, there has been 
no opportunity for inquiry. 

It is next assigned as error that the court admitted in évidence 
"the deeds to the Virginia property." The défendant Parrish, in 
his affidavit of justification, stated that, in addition to the Crowley 
avenue property, he owned 542 acres of land in Virginia, free and 
clear of incumbrances. It was sought to be proved that this land 
had been conveyed to him by Radford, and that title had been di- 
vested by certain tax sales. Objection was made to the tax deeds 
because it was not shown that the preliminary steps to a tax sale 
had been taken. It will be unnecessary to examine any of thèse 
objections. The record shows that the government called a deputy 



54 129 FEDERAL REPORTER. 

clerk of the Virginia court, and asked him some question about the 
title. Thereupon objection was taken, and the court ruled that the 
évidence would be received on the question of intent against Rad- 
ford and Parrish. Before the question was answered, a further ob- 
jection was raised that the witness was incompétent, and he was 
withdrawn, the United States attorney stating that he would show 
the State of afïairs otherwise, and he ofïered a deed. Before the 
deed was received, défendants' counsel said: "If the court please, 
you announced this évidence would be received as to Radford. I 
think your honor should receive it as to Parrish only." To which 
the court replied, "Yes, I will recall that. Correct my ruling in that 
regard;" and thereupon three deeds covering the Virginia property 
were received, the court again stating, as the third was présentée!, 
that the évidence was received as tending to show that Parrish had 
no title in the property, and as to characterizing his intent and guilty 
knowledge. And as the last of the Virginia deeds — the fourth one — 
was marked in évidence the court said : "Of course, you under- 
stand, Mr. District Attorney, that this proof is ofïered solely as 
against Mr. Parrish, and not as against any of the other alleged 
conspirators," to which the District Attorney replied that he cer- 
tainly so understood it. Under thèse circumstances the plaintifif in 
error Radford cannot complain of the admission of this évidence. 
If, when the case went to the jury, he had any appréhension that the 
jury might forget that the évidence was received only against Par- 
rish, he should hâve asked to hâve them further instructed to dis- 
regard it as against himself. This he did not do. 

Exception was reserved to the admission in évidence of the afii- 
davits of justification — i. e., ownership of property — which défend- 
ants Parrish and James submitted with the recognizances they signed 
on the ground that such afHdavits were "évidence obtained from a 
party or witness by means of a judicial proceeding," and as such 
within the provisions of section 860, Rev. St. U. S. [U. S. Comp. St. 
1901, p. 661]. Such voluntary afifidavits are apparently not within 
the section, but, if they were, the only persons who could invoke 
its provisions were those who had made the affidavits — Parrish and 
James. The plaintifï in error Radford could not properly object to 
their introduction against him. 

The sole remaining assignment of error which has been argued is 
to a refusai to charge the following proposition : 

"It Is absolutely necessary to establish under this indictment that the dé- 
fendants agreed that the Chinamen should not appear upon the adjourned 
day, because, if they did appear, no loss could occur upon the bond, and it 
would be an agreement, by the resuit of which the United States could not 
possibly hâve a loss. It must therefore be affirmatively proven as one of the 
essential éléments of the crime charged that the défendants, and each of them, 
knew beforehand, and when they made the agreement, that thèse Chinese 
would not appear upon the adjourned day. A loss must oceur, or at least there 
must be an agreement that could be effectuated." 

The exception to the refusai so to charge was unsound. The 
United States were defrauded when the release of the Chinamen 
was obtained on the strength of a recognizance, apparently good, 
but in reality worthless. It was not necessary to go further, and 



EADFOED 7. UNITED STATES, 55 

show that the défendants conspired to remove the Chinamen from 
the jurisdiction of the commissioner. The jury, from the proof, was 
entirely warranted in finding that it was the expectation of the con- 
spirators that the persons who were left foot-loose when the bail 
bonds were accepted would avail themselves of the opportunity to 
decamp. The gist of the offense under section 5440 is the conspiracy 
to defraud, coupled with a single overt act. Whether or not the 
conspiracy is successful is wholly immaterial. 
The judgment is affirmed. 

NOTE. 

Excerpts from Record. 

Cross-examînatlon of a wltness for the prosecution, who had testlfled that 
he had bought a pièce of property In Tonawanda, for the considération of some 
watches given to the vendor: "Q. Was it more than one watch? A. I be- 
lieve so, yes. Q. Are you sure? A. No. Q. Sllver watch, was it? A. No. 
Q. Sure? A. Yes. Q. It must hâve been brass, then? A. No. Q. What? 
A. Not necessarily. Q. Copper one? A. No. Q. Do you know what the watch 
was worth? A. I couldn't tell you now. Q. Will you swear it was worth 
$10? A. Yes. Q. 512? A. Yes. Q. $15. A. Yes. Q. $20? A. Yes. Q. How 
much? A. I couldn't tell you the exact amonnt, as I sald. Q. Could you tell 
me wlthin $10? A. I don't think so. Q. Could you tell me within $20? A. 
Probably not. * * * Q. Hâve you ever acted as straw man for anybody? 
A. Never. Q. Isn't that part of your business? A. Part of my business? Q. 
Generally? A. Indeed, not. Q. Don't laugh at It Just answer my question. 
A. Indeed not. Q. Do you know Samuel H. Cowles? A. I do not. Q. Did 
you ever see him? A. Not to my knowledge. Q. Do you know Harry Cowles? 
A. Harry Cowles? I do not. Q. Do you know Walter Cowles? A. I know 
W. C. Cowles. Q. Well, Walter C. Cowles, do you know him? A. Yes, sir. 
Q. Did you take the proi)erty as straw man for Walter? A. I did not. Q. 
As his agent? A. I did not. Q. Did you hâve any interest In the property 
— real interest? A. I did. Q. Ever hâve? A. I did. * * * Q. What is 
your business now? A. Gem expert. Q. What? A. Gem expert. Q. Work- 
ing for any spécial firm, or generally on your own hook? A. Work for a flrm 
in New York City. Q. What firm? A. J. Dreiser & Son. Q. What is the 
name? A. J. Dreiser & Son. Q. What is the address? A. 292 5th avenue. 
Q. How long hâve you been at work for them? A. 5 years and a half. Q. 
As gem expert? A. I bave. Q. For that length of time? A. For that length 
of time. Q. Where do you live in New York? A. 31 W. 82d street Q. Mar- 
ried man? A. Yes. Q. How long hâve you lived there? A. About a year. 
Q. Where did you live before that? A. 1254 Lexington avenue. Q. Keep 
bouse there? A. Yes. Q. How long did you live there? A. About 8 months. 
Q. Where did you live before that? A. 201 W. 106th street. Q. Did you 
keep bouse there? A. Yes, sir. Q. How long did you live there? A. A year. 
Q. Where did you live before that? A. I don't believe I can give you the 
number. Q. Well, give me the street. A. 25th street. Q. How long did you 
live there? A. I should say about a year. Q. Can you be any more definlte 
than that? A. No. Q. Where did you live before that? A. Several différent 
places where we boarded. Didn't keep house before that Q. Well, you bave 
been in New York only slnce '97. How many places hâve you boarded at since 
you hâve been there, before you commenced to keep house? A. Perhaps three. 
Q. Or more? A. I don't think so. Q. How long did you stay in each place? 
A. I couldn't tell you exactly ; several months, perhaps. Q. And perhaps 
not? A. Longer in some; shorter in others. • * * Q. Did you ever pay 
any taxes on the property? A. Never did. Q. Did you ever reçoive any rents 
from anybody? A. Never did. Q. What? A. I never did. Q. That was in 
1890? A. That was in 1890. Q. You remained hère until 1897? A. 1897. 
Q. Never paid a dollar taxes? A. Never did. Q. Never paid a penny interest? 
A. Never did. Q. Never received a penny rent? A. Never did. Q. Never at- 
tempted to pay any part of the mortgageî A. Never did. Q. Never assumed 



."G 129 FEDERAL EEl'ORTER. 

possession of the property? A. Except as It stood In my name. Q. We!l, 
you never assumed possession? You never went there and took possession? 
A. I never went there and toolî possession, no. Q. No. ïou never had any- 
body there in possession for you, so far as you linow? A. No. Q. ïou a 
uian of weaith at that time? A. No. Q. Quite limited circumstances, were 
you not? A. Comparatively so." 

In the examlnation of this wltness alone there are niany more pages of sim- 
ilar évidence wlthout objection to a single question or motion to strilie ont a 
single ansvyer. And the testimony of the other wituesses is presented iu the 
same slovenly manner. 

Excerpt No. 2. 

The question to the wltness, a searcher in the county elerk's office, asked if 
he found a certain deed on record. There Is a wliole ))rinted page of elaborate 
objections, but at the end of the discussion the objections are overruled, and 
no exception taken, the wltness answerlng in the négative. Thls Is a sample 
of many other pages where multltudlnous objections, whlch challenge atten- 
tion and analysis, are needlessly presented, since no exception is reserved. 



DUGAN V. BBCKBTT. 

(Circuit Court of Appeals, Flfth Circuit March 8, 1904.) 

No. 1,241. 

1. Chattel Moetgaqes— Validity— Feaud— Fedebal Courts— State Law— 

EtiLE of Décision. 

In determinlng whether a chattel mortgage executed by a bankrupt 
was fraudulent on lt« face, the fédéral courts foUow the décisions of the 
courts of last resort of the state In whlch the controversy arose, the law 
on the subject being regarded as a rule of property. 

2. Same — MoRTaAGOB's Possession — Effect. 

Where a chattel mortgage on a bankrupt's stock of goods authorized 
the mortgagor to continue In possession and sell the goods, but required 
that he should deposlt to the mortgagee's bank account each day the re- 
ceipts for sales over the amount of the running expansés of the store, to 
be applied on the debt, and that, If he failed so to do, the trustée named 
in the mortgage ghould at once take possession and sell the stock at pub- 
lic auctlon, such mortgage was not fraudulent on its face. 

Appeal from the District Court of the United States for the Northern 
District of Mississippi. 

On February 26, 1901, Joe A. Cohen executed and dellvered the follovriug 
mortgage : 

"In considération of the sum of one dollar, I convey and warrant to J. C. 
Baptist, as trustée, the following property now situated in the storehouse now 
occupied by J. A. Cohen in the Olty of West Point, Clay County, Mississippi, 
to-wlt : 

"Ail the stock of goods, wares and merchandise now In sald storehouse, to- 
gether wlth ail showcases, counters, flxtures and Iron safe. Also ail goods, 
wares and merchandise to be hereafter acquired and placed in sald storehouse, 
on ail of whlch thls incumbrance shall Immedlately attach, together with ail 
notes, securitles, accounts and bank [book] debts now made and due him in 
the course of his business or hereafter to be made or acquired by hlm in the 
course of said business. 

1 1. State laws as rules of décision In fédéral courts, see notes to Griffin v. 
Overman Wheel Co., 9 C. C. A. 548 ; Wllson v. Perrin, 11 C. C. A- 71 ; HUl 
V. Hite, 29 C. C. A. 553. 

K 2. See Chattel Mortgages, vol. 9, Cent. Dlg. § 410. 



DTJGAN V, BECKETT. 57 

"In trtist, to sceure R. C. Beckett a promlssory note from me to hlm for the 
snm of twenty-three hundred and twenty-flve ($2,325.00) dollars, of this day 
and date, due and payable on the Ist day of November, 1901, bearlng Interest 
at the rate of 8% from date. 

"Now the considération of thIs deed of trust la that the sald R. C. Beckett 
has paid on hls indorsement for said J. A. Cohen and for advancements thls 
day made to said J. A. Cohen to pay hls debts, and for money also this day 
advanced to sald J. A. Cohen, to enable hlm to make cash purchases in a re- 
plenlshment of his sald stock of goods now on hand, so as to enable hlm to 
sell the same to the best advantage. And the agreement being that the said 
J. A. Cohen is to deposlt the net proeeeds from sald business, over and above 
running expenses thereof, each day, to the crédit of R. C. Beckett in the Bank 
of West Point, Miss., until sald indebtedness Is fully paid off and satlsfled, and 
It being furtber agreed that ail the purchases hereafter made by the said J. 
A. Cohen are to be for cash from the said fund so advanced, and also, that in 
the event of any other purchases being made, or any other purchases being 
made on crédit, that th* seller shal) first be notifled, in wrltlng, of the exist- 
ence of this trust dsed, 

"Now, therefors, if th« said J. A. Cohen shall falthfully comply with ail the 
provisions of tWa tnipt, and pay said amount at or before maturity, then thls 
trust is to be vclâ- 

"But if said J. A. Ohe» shall violate any of the provisions of thls deed, 
or shall not hav» the saœe fulïy paid off snd dlscharged at the maturity there- 
of, together witii «11 Interest, then, In either event, the said trustée at the 
request of sald R. C. Beckett ©r his assigns or légal représentatives, shall im- 
medlately take charge of ail of said property mentioned and included in thia 
trust deed, and la the true intent and meaning thereof, and shall proceed to 
sell the same at public outcry to the hlghest bidder for cash, In front of the 
Courthouse door of paid county, after giving ten days' notice of the time, 
place and t^rtns of sala by wrltten or printed notices put up in at least three 
public places in said county, and otit of the proeeeds shall flrst pay ail the 
costs and charges lacident t» the exécution of this trust ; and shall then pay 
whatever balanos la âne t« said R. C. Beckett, until the same is fully paid off 
and satisfied, and the balance shall be paid to said J. A. Cohen or whoever 
may at the time be legally entitled thereto. 

"The said J. C. Baptist accepts the provisions of this trust If the said J. 
C. Baptist shoulct die, or remove from the state, county or town, or should 
become unable or unwilling or fail or refuse to exécute this trust, then said 
R. O. Beckett, or his assigns or légal représentatives, may appoint another 
trustée, who shall hâve and exercise the same powers and dutles, and thls 
power to appoint a substituted trustée shall exist as often and so long as any 
vacancy from any of the above causes shall occur or exist. 

"Witness our signatures thls Feby. 26, 1901. 

"[Signed] Joe A. Cohen. 

"I accept thls trust J. C. Baptist, Trustea. 

"R. C. Beckett" 

The mortgagie was duly acknowledged by the parties to it on the day of lt« 
date, and was duly flled and recorded in the proper office on the same day. 
On a pétition flled in the lower court December 2, 1901, Joe A. Cohen was ad- 
judicated an involuntary bankrupt and Henry Dugan was appointed his trus- 
tée in bankruptcy. Cohen having made default in the payment of the mort- 
gage to secure the debt to Beckett, F. G. Barry, who had been substituted as 
trustée In the mortgage, took possession of the mortgaged goods. Barry, as 
such trustée under the mortgage, sold the goods under an agreement between 
ail the parties In Interest that he would deposlt the proeeeds of the sale in 
bank, and that they should be turned over, without déduction, to the trustée 
in bankruptcy, subject to the rights of R. C. Beckett and others. On January 
29, 1902, R. G. Beckett flled his pétition in the bankruptcy court claiming un- 
der the mortgage the proeeeds of the sale of the goods. On February 24, 1902, 
Henry Dugan, trustée in bankruptcy, answered Beckett's pétition, alleging that 
the mortgage was vold as to creditors because Oohen was allowed to remain 
In possession of the merchandise and to continue to sell the same. Beckett'» 
pétition was referred to the référée, and ou a hearing before hlm be found 



58 129 FEDEEAL REPORTER. 

and reported to the court that the mortgage was not vold on Its face, and that 
It was not Invalid as matter of fact. And he therenpon ordered that the pro- 
ceeds of the sale of the goods to the amount of $2,177.85, with interest thereon, 
be pald to R. 0. Beckett by the trustée In bankruptcy out of money in his 
hands derived from the sale of the property described in the mortgage. The 
referee's report was confirmed by decree of the district court, and thereupon 
Henry Dugan, trustée In bankruptcy, appealed to this court, and assigns that 
the court below erred In the decree rendered. 

T. W. Brame (Ivy & Ivy and Brame & Barnes, on the brief), for ap- 
pellant. 
R. C. Beckett, pro se. 

Before FARDEE, McCORMICK, and SHELBY, Circuit Judges. 

SHEIyBY, Circuit Judge, after stating the case as above, delivered 
the opinion of the court. 

The appellant's contention is that the mortgage to secure the debt to 
Beckett is void under the common law and the statutes of Mississippi. 
If that is true, althougli it was executed more than four months before 
the adjudication in bankruptcy, it could not be enforced as a valid lien 
on the bankrupt's estate against the creditors of the bankrupt. The 
appellant contends (i) that the mortgage is void for actual fraud, and 
(2) that it is void on its face. There is nothing in the record to sustain 
the first contention. The évidence shows without conflict that Beckett 
only sought to secure the payment of a just debt. If it be conceded that 
Cohen's conduct was fraudulent after the exécution of the mortgage, 
there is no proof whatever that Beckett, or the trustée named in the 
mortgage, was connected with it, or even had any knowledge of it. 
Such fraudulent conduct on the part of the grantor, if it be proved, 
would not afïect the rights of Beckett under the mortgage. Baldwin 
V. Little, 64 Miss. 126, 8 South. 168; Emerson v. Senter, 118 U. S. 3, 
6 Sup. Ct. 981, 30 L. Ed. 49. The question to be decided is whether, 
as matter of law, the mortgage on its face is valid or invalid. More 
than 20 years ago a learned writer on mortgages said that whether a 
mortgage of the stock of goods of a trader, which permits the mort- 
gagor to sell the mortgaged property in the usual course of trade, is 
necessarily fraudulent, is one of the disputed questions of our juris- 
prudence. Jones, Chat. Mort. 379. The same conflict of authority 
on the question continues, the courts of last resort in the several states 
differing greatly in their conclusions. 6 Cyc. I104. In deciding the 
question the fédéral courts follow the décisions of the courts of last re- 
sort of the State in which the controversy arose, the law on the subject 
being regarded as a rule of property. Such a mortgage was by the 
Suprême Court held void in Indiana (Robinson v. Elliott, 22 Wall. 
513, 22 L. Ed. 758), but it would "not ht held, as a matter of law, to 
be absolutely void or fraudulent as to other creditors" in Michigan 
(People's Savings Bank v. Bâtes, 120 U. S. 556, 561, 7 Sup. Ct. 679, 
30 L. Ed. 754) ; and such a mortgage is valid in lowa (Etheridge v. 
Sperry, 139 U. S. 266, 11 Sup. Ct. 565, 35 L. Ed. 171). In the latter 
case, after deciding the question as one of local law, the court observed 
that : "If this were an open question, we could not be blind to the fact 
that the tendency of this commercial âge is towards increased facilities 
in the transfer of property, and to uphold such transfers so far as they 



DUGAN V. BECKETT, 59 

are made in good faith." There are well-considered authorities that 
sustain the position that it is not fraud per se for the mortgagor of 
chattels to retain a power of sale, and that the rétention of such power 
is only a circumstance to be considered by the court or jury, as the case 
niay be, in determining the question of fraud in fact. Jones on Chat. 
Mortgages (3d Ed.) 379 ; 6 Cyc. 1104. The mortgage before the court, 
the vaUdity of which is in question, is not simply a mortgage on a stock 
of goods which permits the mortgagor in the usual course of trade to 
sell the mortgaged property, but it contains other provisions which must 
be considered in connection with this retained power of sale. It per- 
mits Cohen, the mortgagor, to retain possession of the merchandise 
and to continue his business, and as to the disposition of the money, 
the proceeds of sales, it is provided : "And the agreement being that 
the said J. A. Cohen is to deposit the net proceeds from said business, 
over and above running expenses thereof, each day, to the crédit of 
R. C. Beckett in the Bank of West Point, Miss., until said indebtedness, 
is fully paid off and satisfied." It is provided, also, that if the mort- 
gagor "shall violate any of the provisions of this deed" the trustée, at 
the request of the beneficiary, shall immediately take charge of the prop- 
erty and foreclose the mortgage. In Robinson v. Elliott, supra, in 
which, following the local law, a mortgage was held void, the mort- 
gagor having retained the power of sale in the usual course of business, 
the court was careful to say : 

"We are not prepared to say that a mortgage under the Indlana statute 
vvould not be sustained which allows a stock of goods to be retained by the 
mortgagor, and sold by him at retail for the express purpose of applying the 
proceeds to the payment of the mortgage debt. Indeed, it would seem that 
such an arrangement, if honestly earrled ont, would be for the mutual advan- 
tage of the mortgagee and the unpreferred creditors." 

And in Etheridge v. Sperry, supra, Mr. Justice Brewer, speaking for 
the Suprême Court, said: 

"In neither of those cases [referrîng to Means v. Dowd, 128 U. S. 273, 9 Sup. 
Ot. 65, 32 L. Ed. 429, and Robinson v. Elliott, supra] is it affirmed that a 
chattel mortgage on a stock of goods is necessarily invalidated by the fact that 
either in the mortgage or by paroi agreement between the parties the mort- 
gagor is to retaln possession, with the right to sell the goods at retail. On 
the contrary, it is elearly recognized in them that such an instrument is valid, 
nofwithstanding thèse stipulations, if it appears that the sales were to be 
for the benefit of the mortgagee." 

Under the rule indicated by thèse cases, the mortgage in question 
hère' elearly should not be held invalid on its face, unless we are required 
to do 80 by the laws of Mississippi. By statute in Mississippi every 
conveyance of goods or chattels, by writing or otherwise, contrived of 
fraud or collusion with the intent or purpose to hinder, delay, or de- 
fraud creditors, is void as against creditors of the grantor. Rev. Code 
1892, § 4226. But such conveyance is not void as to subséquent credit- 
ors unless made with the intent to defraud them. Id. § 4228. In Har- 
man v. Hoskins, 56 Miss. 142, the court held that a mortgage given by 
a merchant on his stock of goods, which authorized him to remain in 
possession and continue business under the direction of a named trustée, 
was upon its face fraudulent and void. An examination of the case 
shows that it is not out of harmony with the cases that we hâve already 



60 129 FEDERAL REPORTER. 

cited. The mortgage evidently on its face showed that it did not serve 
as a genuine security. The mortgagor was left in possession of the 
stock of goods, with the power to sell the same, and to make purchases 
to replenish his stock in the usual course of business. It did not pro- 
vide that a dollar of the money for which he sold the goods should be 
applied to the payment of the debt apparentlysecured by the mortgage. 
The court, in declaring the mortgage void on its face, laid stress on the 
fact that "nothing is said about cash sales or money thus derived." 
In Joseph v. Levi, 58 Miss. 843, 846, the court held that a like mortgage 
vk'as void on its face as to creditors, although it provided for monthly 
accounts to be rendered to the trustée, and for payment to him of the 
money received, to be applied, however, to payment of the current ex- 
penses of the business and in making purchases to replenish the stock. 
It will be noted that it made no provision for the application of tlie 
proceeds of the sale of the ^oods in payment of the debt secured. The 
court said : 

"As the money was not to be applied to the discharge of the debt secured 
by the terms of the deed of trust, and was to be liept in the business, the in- 
strument is not distinguished from those which hâve been held to be incurably 
viclous and void." 

In each of thèse cases it seems clearly implied that, if provision 
had been made in the mortgage for an application of the proceeds of 
the sale of the goods to the payment of the debts secured, they would not 
hâve been held void on their face. The fact that the mortgage permits 
the mortgagor to hold the pToperty and deal with it does not make the 
mortgage void. The rule, as announced in Mississippi, is that "it 
is only where the conveyance so unmistakably reserves the right to the 
mortgagor to deal with the property mortgaged as his own that ail 
évidence to the contrary should be excluded as contradicting the writing 
that a court can déclare the deed fraudulent in law." Britton v. Cris- 
well, 63 Miss. 394, 401. The provision in the mortgage in question 
hère requiring the proceeds of the sale of the goods to be applied to the 
payment of the debt secured by the mortgage makes it unlike the 
mortgages which the Suprême Court of Mississippi holds to be neces- 
.sarily invalid. The court is of the opinion that the mortgage, on its 
face, is not invalid. 

The decree of the District Court is affirmed. 



ALEXIS V. UNITED STATES, 

(Circuit Court of Appeals, Flfth Circuit. April 5, 1904) 

No. 1,134. 

Laecent fkom THE MAILS— Indictment—Stamped Package. 

In a prosecution under Rev. St. U. S. § 5467 [U. S. Comp. St. 1901, p. 
3691], for larceny from the mails, an Indictment charging that the stolen 
package had been placed in the mail, and came into defendant's possession 
in his capacity as a mail clerk, was sufScient to authorize the admission 
of évidence that the package had been stamped, aud the manner of such 
stamping. 



ALEXIS V. trXITED STATES. 61 

2. Same— Names of Pebsons— Idem Sonans. 

Where an Indlctment charged défendant with extracting from the mails, 
embezzling, and stealing the contents of a package addressed to "L. Krow- 
der," évidence that the pacljage was addressed to "L. Krower" did not 
constitute a variance, such names being idem sonans. 

3. Same— Teiai/— Reopening Case. 

Where there was nothing in defendant's affidavit accompanying his ap- 
plication to hâve the case reopened, and to be permitted to introduce 
further évidence after the testimony had been closed, either as to the 
nature of the évidence sought to be added, as to the witnesses by whom it 
was expeeted to be given, or the reason why it had not been offered sooner, 
to require the granting of the application, It was not an abuse of the 
court's discrétion to deny the same. 

4. Same— Requests to Charge. 

Where, in so far as requests to charge were correct, they were given 
by the court, either in modifications thereto or in the gênerai charge, and 
each of them contained matter that was either erroueous, or not pertinent 
to the proof, the requests were properly denied. 

5. Same— Insteuctions— Witnesses— Credibility op Accused. 

Where the court charged that défendant had a perfect right to testify, 
and, having done so, his testimony should be treated like that of any other 
witness, and that it was for the jury to flnd whether or not he had told 
the truth, it was not error to add that, in eonsidering defendant's testi- 
mony, which, if true, entitled him to an acquittai, the jury should consider 
the very grave interest which he had at stake in the case. 
8. Same— Reasonable Dotjbt. 

Where the court properly charged the law relatin§ to reasonable doubt, 
and declared that défendant was presumed to be innocent, and that such 
presumption obtained until the governmeut convinced the jury beyond a 
reasonable doubt that he was guilty, it was not error to add that, if a 
doubt arose which was an unreasonable doubt, the jury should pay no at- 
tention thereto. 

7. Same— Omitted Instructions. 

The omission of the court to give instructions that were not requested 
by défendant was not ground for reversai. 

8. Same — New TbiaI/— Présence op Défendant. 

A défendant In a criminal case bas no right to be personally présent at 
the hearing of a motion in his behalf for a new trial, and his absence at 
such hearing wIU not invalidate a sentence subsequently passed on him. 

In Error to the Circuit Court of tlie United States for the Eastern 
District of Louisiana. 

W. W. Howe, U. S. Atty. 
W. O. Hart, for défendant. 

Before FARDEE, McCORMICK, and SHELBY, Circuit Judges. 

McCORMICK, Circuit Judge. The indictment in this case con- 
tains two counts, each based on the last paragraph of section 5467 of 
the United States Revised Statutes [U. S. Comp. St. 1901, p. 3691], 
which is substantially as follows: 

"Any such person (that Is, any such post office employé) who shall steal 
any of the things aforesald (that is, the contents out of any letter, packet, 
bag or mail of letters) which shall hâve come into his possession, either in 
the regular course of his officiai duties, or in any other manner whatever, 
and provided the same shall not hâve been delivered to the party to whom 
it Is directed, shall be punishable by Imprisonment at hard labor," etc. 

% 8. See Criminal Law, vol. 15, Cent. Dig. § 2412. 



62 129 FEDERAL KEPORTEU. 

The charging part of each of thèse counts was, substantially, that on 
the i6th day of February, 1900, at the city of New Orléans, the de- 
fendant, being then and there employed in a department of the postal 
service of the United States, to wit, as a clerk in the post office at the 
city of New Orléans, did unlawfuUy, willfully, and feloniously steal, 
take, and carry away (certain articles named), ail being the property 
of one F. M. Hamilton, and the (articles named) were then and there 
stolen and taken as aforesaid by the said George D. Alexis from and 
out of a certain package then lately "put into tlae mail" of the United 
States at the post office in said city of New Orléans, and which then 
and there had come into his possession in his capacity as such clerk, as 
aforesaid, and by virtue of his said office and employment; and the 
said package was directed in the ténor following, that is to say, "John 
W. Francis, care of W. R. Irby & Co., New Orléans, La.," and had not 
been delivered to the party to whom the same was directed, contrary 
to the form of the statute, etc. In the second count the articles named 
were différent, the ownership laid the same, and the count in other 
respects the same, except that it allèges that the said package was 
directed in the ténor following; that is to say, "Léonard Krowder, 
New Orléans, La." There was a gênerai verdict of guilty on both 
counts, and the accused was sentenced to imprisonment at hard labor 
for a term of one year and one day. This sentence does not exceed 
the punishment that might hâve been imposed on either one of the 
counts of this indictment. 

The first, third, and fifth errors assigned relate to the admission of 
évidence in référence to the fact of the package having been stamped, 
the manner in which it was stamped, and the absence of an allégation 
in the count as to its having been stamped at ail. Thèse assignments 
are not well taken, because it was not necessary to allège that the 
package was stamped. Neither the language of the provision of the 
statute under which the indictments were found nor the reason of the 
statute requires any such allégation. The indictment having charged 
that the package then lately put into the mail had come into his pos- 
session in his capacity as such clerk was sufficient averment on that 
point to admit the évidence over defendant's objection taken when the 
évidence was ofîered. United States v. Hall (D. C.) 76 Fed. 568. 

The second assignment is not well taken. It is in thèse words : 

"Because the court erred in allowlng L. S. Woods, a wltness on behalf of 
the United States, to testify on December 20, 1901, regarding the contents of 
the package said to hâve been addressed to h. Krower, when the indictments 
charge défendant with abstracting, embezzling, and stealing the contents 
of a package addressed to L. Krowder." 

The tenth assignment présents the same question. 

"A name need not be correctly spelled in an indictment, if substan- 
tially the same sound is preserved. The following are cases in which 
the variance between the names as alleged and as proven was at least 
as great as in the présent, and in which it was held that the variance 
was not material: Bubb and Bopp [Myer v. Fegaly], 39 Pa. 429 [80 
Am. Dec. 534]; Heckman and Haclcman [Bergmann's Appeal], 88 
Pa. 120; Hutson and Hudson [Cato v. Hutson], 7 Mo. 147; Shafïer 
and Shafer [Rowe v. Palmer], 29 Kan. 337; WooUey and Wolley 



AI.EXIS T. TJNITED STATES. 63 

[Power V. Woolley], 21 Ark. 462; Penryn and Pennyrîne [ElHott v. 
Knott], 14 Md. 121 [74 Am, Dec. 519]." Faust v. United States, 163 
U. S. 452, 16 Sup. Ct. II 12, 41 L. Ed. 224. 

The fourth assignment of error is directed to the action of the court 
in not reopening the case for further évidence after the testimony had 
been closed. There was nothing in the affidavit accompanying the ap- 
plication either as to the nature of the évidence sought to be added 
to what had already been received, or as to the witnesses by whom it 
was expected to be given, or as to reason why they had not been of- 
fered sooner, to require the reopening of the taking of proof. The 
motion was addressed to the discrétion of the trial judge, and his dis- 
crétion was properly exercised. 

The sixth, seventh, and ninth assignments of error are based on the 
refusai of the judge to give certain requested charges. So far as 
thèse requests were correct, they were given by the judge, either in cer- 
tain modifications thereof that he made and gave, or in his gênerai 
charge, and for this reason, and also because each of them contained 
matter that was either not sound or not pertinent to the proof, they 
were rightly refused. 

The eighth error assigned is substantially embraced in the seventh. 

The eleventh error assigned is because the court erred in the gênerai 
charge in giving this part thereof to the jury, to wit: 

"Therefore I say to you, In considering the testimony o( the défendant, 
which, if true, entitles him to acquittai, you are to consider the very grave 
interest that he has at stake in this case." 

This is only the closing Une of the judge's charge on this subject. 

This is the context : 

"When a défendant in a case of this kind takes the stand (which he has a 
perfect right to do), he Is subjected to ail the obligations of a witness, and 
his testimony is to be treated like the testimony of any other witness ; that 
is to say, it will be for you to say, remembering the matter of his testimony, 
and the manner in which he gave it, his cross-examination, and everythlng 
else in the case, whether or not he told the truth. Then, again, It is for you 
to remember — you hâve a perfect right to do so, and it is your duty to do so 
— the very grave interest the défendant has in this case. Now, that does not 
mean, and you must not understand me to say that It means, that whenever 
a man is accused of a crime, and takes the stand in behalf of himself, he 
will naturally commit perjury ; but, of course, as he places himself as a wit- 
ness, he stands like any other witness. But his interest, or bias, or anything 
else that may afCect his testimony, is a matter which, of course, the jury is 
bound to take into considération. Therefore I say to you, in considering the 
testimony of the défendant, which, if true, entitles him to an acquittai, you 
are to consider the very grave interest which he has at stake in this case." 

This charge is not erroneous. Reagan v. United States, 157 U. S. 
301-311, 15 Sup. Ct. 610, 39 L. Ed. 709. 
The twelfth error assigned is: 

"Because the court erred in the gênerai charge by giving this part thereof 
to the jury, to wit: 'Of course, if a doubt arising in your mind is an unrea- 
sonable doubt, you should pay no attention to that doubt' " 

The judge had, in the language used by the defendant's counsel in 
one of his requests, given the jury the following: 

"The case of the United States against the défendant must be made out 
completely to your satisfaction, and beyond ail reasonable doubt" 



64 129 FEDERAL EBPOUTEE. 

Afterwards, in the gênerai charge, he instructed tlie jury tlius : 

"In a case of this kind you cannot flnd the défendant gullty, unless yon are 
satisfied of his guilt beyond a reasonable doubt. You must remember that 
in a crlmlnal case the amount of proof that is required on the part of the 
government Is différent from the amount of proof that is required of the suc- 
cessful party in a civil suit. In a civil suit the verdict goes in favor of the 
party who has the prépondérance of proof. That means the party who has 
more proof than the other slde. But in a criminal case you start out wlth 
the presumptlon that the man brought to the bar of the court is an Innocent 
man, and the jury slt in their seats, and await the time. If It ever cornes, 
when the government convinces them beyond a reasonable doubt that the man 
is guilty. Whenever that condition of things is produced In your minds, then 
it is your bounden duty to find the défendant guilty, regardless of what the 
conséquences may be ; and if you are satisfied beyond a reasonable doubt that 
the défendant is guilty, then you bave no right to withhold that verdict sim- 
ply because of some question of sentiment on your part, or some question of 
mercy, or some question of préjudice. • * * While I hâve said to you 
that you must be convinced beyond a reasonable doubt, do not make the mis- 
take to believe that you must be satisfied beyond ail possible doubt, because 
that Is not the law, and It would not be reasonable, either, that you must 
be satisfied beyond every possible doubt. There is nothing certain except in 
the domain of mathematlcs. I do not know what could be proven beyond 
ail possible doubt Ail that you are called upon to do is to détermine whetli- 
er or not this défendant has been proven to you to be guilty in such a way 
that there is no reasonable doubt arising in your minds. Of course, if the 
doubt arising In your minds is an unreasonable doubt, you should pay no 
attention to that doubt. But if, as reasonable men, considering a matter of 
grave importance, you should corne to the conclusion that a certain amount 
of proof establishes that conclusion In such a manner that you hâve no rea- 
sonable doubt about it, then that is the condition of mind In which you must 
be before you flnd this man guilty ; but you are not required to go beyond 
that and be convinced beyond every possible doubt" 

The thirteenth assignment of error is: 

"Because the court errcd In not specially charging the jury as to their du- 
ties under each count of the indictment and that they might acquit as to one 
and convict as to the other." 

It is no ground for reversai that the court omitted to give instruc- 
tions that were not requested by the défendant. Isaacs v. United 
States, 159 U. S. 487, 16 Sup. Ct. 51, 40 L. Ed. 229. 

The fourteenth assignment of error présents an action of the trial 
judge which is not reviewable in this court. 

The fifteenth assignaient of error — that the court erred in overruling 
the motion in arrest of judgment — is disposed of by the action we hâve 
taken on the previous assignments. The grounds of that motion were 
the same as the suggestions of error we hâve already considered. 

The sixteenth and last error assigned is : 

"The court erred in hearing and deciding the application made for a new 
trial when défendant was not présent in court." 

"A défendant in a criminal case has no right to be personally présent 
at a hearing of a motion in his behalf for a new trial, and his absence 
will not invalidate a sentence subsequently passed upon him." This is 
the syllabus to the case of Commonwealth v. John S. Castello, 121 
Mass. 371, 23 Am. Rep. 277. Judge Gray, who delivered the opinion 
in that case, uses this language : 

"The rule that the défendant has a right to be présent at every step of tha 
proceedings against him in behalf of the commonwealth, from arraignment 



AMERICAN 8. S. CO. V. AMERICAN STEEL BARGE OO. 65 

to sentence, does not apply to a motion for new trial, whleh Is not a necessary 
step in those proceedings, and is not made by the commonweaith, but by the 
défendant himself, and is addressed to the discrétion of the court, and is not 
followed by any new judgment agalnst hlm." 

Montgomery v. United States, 162 U. S. 410, 16 Sup. Ct. 797, 40 L. 
Ed. 1020; Coffin V. United States, 162 U. S. 664, 16 Sup. Ct. 943, 40 
L. Ed. 1109; Sparf and Hansen v. United States, 156 U. S. 51, 15 Sup. 
Ct. 273, 39 L. Ed. 343 — are referred to in support of the gênerai views 
advanced in the foregoing opinion. 

Having noticed the numerous grounds of error assigned, we lind 
them ail without merit, and the judgment is therefore alïirmed. 



AMERICAN S. S. CO. v. AMERICAN STEBL BARGE CO. et aL 

(Circuit Court of Appeals, Slxth arcuit. April 2, 1904.) 

No. 1,251. 

1. Collision— CoNTBiBUTOEY Fault— Bueden and Measuee of Peoof. 

Where the fault of one vessel is palpable and adéquate to account for a 
collision, she cannot impugn the management of another vessel, except on 
clear proof of contributory fault. 

2. Same— Steamee Passing between Meeting Tows. 

The Crescent City, a large lake steamer, laden with iron ore, when com- 
ing down the St. Clair river, at night, overtook and attempted to pass 
the steamer Trevor, with two barges in tow tandem, each on a Une 750 
feet long, just as they were passing round the Southeast Bend. At the 
same time the Maricopa, with the large barge Manila in tow, both in 
water ballast, was passing up. The meeting vessels were within sight 
of each other's lights when the Crescent City started to pass the overtaken 
tow, and soon thereafter passing signais were exehanged, and in pursuance 
thereof the descending steamer and tow kept toward the western side of 
the ehannel, while the Maricopa and tow were as close as possible to the 
eastern bank. As the Maricopa was rounding the bend she was passed 
by the Crescent City, which then took a straight course, maklng toward 
the Canadian or eastern shore, and kept It without checking her speed 
of about 12 miles by the land until she collided with the Manila, then 
sheered off, and struck the towline behind the Trevor, throwing her across 
the ehannel, where she was struck by the first tow before she could get 
eut of the way. There was a distance of about 200 feet between the 
ascending and descending tows. The Trevor was going at a speed of 
9V2 miles by the land, and the Maricopa of 8 miles. There was a 
wind from the southeast, which tended to dirlft the Manila toward 
the ceater of the ehannel. Ueld, that the Crescent City was clearly in 
fault, both because of her excessive speed while trying to pass between 
the two tows at such a place, and for the course she took after passing 
the Maricopa, dlrected toward the course of the Manila; that neither of 
the other vessels was in fault, the speed of the Maricopa apparently being 
necessary to prevent the Manila from drifting, and it appearing that the 
latter was foUowing her steamer, and did ail that was possible to avoid 
the collision. 

Cross-Appeals from the District Court of the United States for 
the Eastern District of Michigan. 

Goulder, Holding & Masten, for appellant. 

Hermon A. Kelley (Hoyt, Dustin & Kelley, of counsel), for appellce 
American Steel Barge Co. 
129 F.— 5 



66 129 FEDERAL EEPOETER. 

John C. Shaw (Charles B. Warren, William B. Cady, and Herbert 
K. Oakes, of counsel), for appellee Minnesota S. S. Co. 

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. 

RICHARDS, Circuit Judge. The séries of collisions out of which 
this case arose took place on the St. Clair river between 8 and 9 o'clock 
the night of August 9, 1899. The night was dark, but clear. A wind 
was blowing across the channel from about S. S. E., probably strong 
enough to drift a slow-going tow. Six vessels were involved. The 
whaleback steamer John B. Trevor, with the barges 131 and 118 in 
tow, ail loaded with ore, was bound down, followed by the steamer 
Crescent City, also loaded with ore, while the steamer Maricopa, with 
the barge Manila in tow, both in water ballast, was bound up. The 
Trevor was 308 feet long, the "131" was 292 feet, and the "118" was 285 
feet. The tow lines were each about 750 feet long. The Trevor and 
her barges each drew about 18 feet, and were making about •jYi 
miles an hour through the water. The Crescent City was 426 feet 
long, drew about 18 feet, and was making about 10 miles through the 
water, or 12 miles by the land. The Maricopa was about 428 feet long, 
and the Manila about 450 feet long ; the towline between being about 
800 feet long. The Maricopa drew about 15 feet aft and l or 2 feet 
forward, the Manila drew about 7 feet aft and 6 feet forward, and their 
speed was about 10 miles an hour through the water, or about 8 by 
the land. The scène of the collisions was what is known as the "South- 
east Bend," beginning about 2j4 miles above the upper end of the St. 
Clair Flats Ship Canal. The river hère winds through the low marsh- 
land known as the "St. Clair Flats." There is nothing on the Canadian 
side to obstruct the view. So a vessel entering the upper end of the 
bend commands the entire bend and river to the ship canal. The 
navigable channel varies in width, being about 900 feet at the points 
of collision, but less above, and is very crooked; a descending vessel 
turning from a course about northwest to a course almost southwest, 
while an ascending vessel swings from a course about northeast to a 
course nearly southeast. When the Crescent City reached the bend, 
coming down, she was fast overtaking the Trevor and her tow. The 
Maricopa and Manila were then approaching or entering the bend, com- 
ing up, and their lights were in plain view over the flats on the 
Canadian side. The Crescent City gave a two-blast signal, which was 
answered, and proceeded, without checking her speed, to pass the 
Trevor tow to port. While the Crescent City was thus overtaking 
and passing the Trevor tow in the bend, the Trevor, and later the 
Crescent City, exchanged one-blast signais with the Maricopa, thus 
agreeing to pass port to port, which required the Crescent City to 
direct her course between the Trevor tow and the Maricopa tow. The 
Crescent City met and passed the Maricopa safely. The distance be- 
tween the Maricopa and the Trevor tow at that time was at least 200 
feet, and between the Crescent City and the Maricopa between 50 and 
75 feet. The Maricopa was on a curved course, gradually swinging, 
under a port wheel, around the bend. The Manila was following her. 
About this time the Crescent City adopted a southwesterly course, bear- 



AMERICAN 8. S. 00. V. AMERICAN STEEL BARGE CO. 67 

ing towards the Canadian shore, which is described by her captain. 
This course was straight, and she kept it without checking her speed 
until she collided with the Manila; the port bow of the Crescent 
City coming in contact with the port quarter of the Manila. The dis- 
tance between the Manila and the Trevor at this time was about 200 
feet. From this collision the Crescent City sheered sharply to star- 
board, and brought up in the bight of the towline between the Trevor 
and the "131," barely missing the stern of the Trevor. The Trevor 
was thrown broadside the channel, heading for the Canadian shore. 
She backed, and, as the towline dropped below the stem of the Crescent 
City, eut it. The Crescent City then went ahead and under a star- 
board helm, straightened up, and passed on down. The Trevor imme- 
diately started her engines, but, before she could get out of the way, 
the "131," coming down at a speed of about 6 miles, struck her on the 
port side aft, staving a large hole, and making it necessary to beach her 
on the Canadian bank. The court below condemned the Crescent City, 
the Maricopa, and the Manila — the first two because of their speed, and 
the last because of her position; taking the view that the stern of 
the Manila was wrongfully in the course of the Crescent City, but that, 
if the Crescent City and the Maricopa had checked down after signal- 
ing to pass, there would hâve been time, after discovering the danger 
ahead, to avoid the collision. The Trevor and her barges were held 
blameless. From the decree based on this finding, the parties hâve ap- 
pealed. 

1. The négligence of the Crescent City was palpable and persistent. 
It began with her speed, was aggravated by her course, and rendered 
inexcusable by her persistence in both, despite a threatened collision. 
When she reached the upper end of the bend, she had a clear view of 
the canal. She could see not only the Trevor tow in the bend ahead, 
going down, but the Maricopa tow below it, coming up. She should 
hâve considered the danger of trying to pass thèse tows in that crooked 
channel, without checking her speed. But she wanted to pass the 
Trevor tow before it should reach the canal, so as not to be delayed 
there, and for this reason kept her speed, and hurried headlong between 
the descending and ascending tows. As was said in The Syracuse, 9 
Wall. 672, 676, 19 L. Ed. 783 : "She had no right thus to hurl her- 
self like a projectile into the midst of the vessels before her, taking the 
hazard of the conséquences." So much the learned judge below found, 
and we concur in this conclusion. 

2. But the fault did not end with the speed, for the Crescent City, 
before she was out of the bend or had passed the Maricopa, adopted a 
straight course, which converged toward the Canadian side, up which 
the Maricopa and Manila were then working on a curved course. 
The Crescent City had not yet passed the "131." The straight course 
taken constituted a short eut across what remained of the bend, inevit- 
ably carrying the Crescent City close to the course of the Maricopa 
tow. Such a course, under the circumstances, was inexcusable, yet 
it is clear it was taken. The captain of the Crescent City says that 
when they met the Maricopa his boat was going steady on a straight 
course. "There is a little curve there, but we were going straight 
then." This course was not changed until he struck the Manila. He 



68 129 FEDERAL EEPORTER. 

marked this course upon the map, and the point of collision was where 
the line approached the Canadian side. The second mate stated they 
were working toward the Canadian shore while passing the Maricopa. 
The captain of the "131" said the Crescent City was heading a point or 
a point and a half further toward the Canadian bank than he was. 
The captain of the Maricopa testified that, when the Crescent City 
passed him, she appeared to be heading not quite a point on to the 
Canadian side. The second mate stated that, when the Crescent City 
passed the Maricopa, she was drawing in ail the time on their course. 
Ail this makes it plain that the Crescent City took a course which car- 
ried her over toward the Canadian shore. At this time there was a 
space, variously estimated at between 200 and 300 feet, left for her be- 
tween the descending and ascending tows. Ail the vessels were in 
the bend. The Trevor and her tow were on the American side of 
the range, near the middle of the channel. The Maricopa, with the 
Manila 800 feet behind, was gradually swinging around the bend, hug- 
ging the Canadian bank. She was without cargo, and so was her 
tow. The Manila was a very large barge — 450 feet long — and was 
drawing only 6 feet forward and 7 feet aft. She exposed a broad sur- 
face to the wind, and the wind was blowing across the channel from 
the Canadian side. Under thèse circumstances, in order to prevent the 
Manila drifting to leeward, it may hâve been advisable not only to tow 
her at a good speed, but to some extent to hold her in to the wind. 
Such being the situation, it was the plain duty of the Crescent City to 
divide the space between the two tows and follow a winding course, 
keeping her distance from the ascending tow until she had cleared it. 
Instead of doing this, in reckless disregard of the existing conditions, 
the Crescent City laid her course a point or a point and a half more 
toward the Canadian side than the course of either the descending 
or ascending tows, and, with strange persistence, held it until she 
struck the Manila. 

3. The captain of the Crescent City admitted that when abreast the 
stern of the Maricopa he discerned the Manila, and realized she was 
across his course. At that time a distance of some 1,200 feet separated 
the Crescent City and the aft quarter of the Manila. The captain was 
asked whether he tried to change his course or check his speed, and an- 
swered that he did not. He was asked, "Why not?" and gave three 
différent excuses: First, that he did not hâve time; second, that he 
did not think it was necessary ; and, third, that he did not hâve room. 
None of thèse excuses are satisfactory. In our opinion, there was 
time and opportunity both to check and to port. If this had been donc, 
we cannot but believe the Crescent City would hâve cleared the Manila. 
Twenty feet to starboard would hâve taken her by. There was ample 
space between the Manila and the Trevor to hâve made this maneuver. 
The captain stated there was at least 200 feet. Why nothing was donc, 
we can hardly conjecture. 

4. We corne now to consider the conduct of the Manila and the 
Maricopa. The lower court condemned both — the former on account 
of her position, the latter on account of her speed. For the reasons 
we hâve given, the fault of the Crescent City is palpable. Both her 
speed and her course were reckless and inexcusable. The doctrine of 



AMERICAN S. S. CO. V, AMERICAN STEEL BARGE CO. G9 

The City of New York, 147 U. S. 72, 85, 13 Sup. Ct. 211, 37 L. Ed. 84. 
followed by this court in The Australia, 120 Fed. 220, 224, 56 C. C. A. 
568, is therefore applicable. The fault of the Crescent City being adé- 
quate to account for the collision, she may not impugn the manage- 
ment of either the Manila or the Maricopa without clear proof of con- 
tributing faults on their part. As was said by the Suprême Court in 
the case of The Victory, 168 U. S. 410, 423, 18 Sup. Ct. 149, 155, 42 
L. Ed. 519, quoted by this court in the case of the steamer Philip 
Minch, 128 Fed. 578: 

"As between thèse vessels, the fault of the Victor belng obvious and Inex- 
cusable, the évidence to establish fault on the part of the Plymothian must 
be clear and convlncing in order to make a case for apportionment" 

Now, the charge against the Manila (sustained by the lower court) 
is that she got into the path of the Crescent City by failing to follow 
her steamer, and that against the Maricopa is that she towed the 
Manila too fast to permit her to get out of the way of the Crescent 
City. But if the Crescent City had no right to take the course she did, 
then the Manila did not get into her path. It was not the path of 
the Crescent City, but that of the Manila, which was infringed. If the 
Crescent City had divided the space between the two tows, she would 
not hâve been against the Manila when the Manila was 200 feet from 
the Trevor. The Crescent City made no complaint of the course of 
the Maricopa, and the proof fails to show that the Manila was not fol- 
lowing the Maricopa as closely as prudent navigation permitted. In 
rounding the bend with the wind ofï the Canadian shore, she may hâve 
tailed some — it may hâve been advisable to hold her up some. But this 
should hâve been foreseen and allowed for by the Crescent City. 
The apparent swing of the Manila's stem into the stream was doubtless 
the resuit partly of her proper navigation in rounding the bend with a 
wind abeam, and partly of the wrongful course of the Crescent City. 
If the Crescent City had been pursuing a course midway between 
the two tows, and parallel with theirs, the stern of the Manila would 
not hâve seemed to swing out into the stream. It is conceded that, 
when the Crescent City was discovered bearing down upon the Manila, 
every précaution was taken on the latter. Her helm was gradually 
ported until hard aport, and, when the Crescent City reached her bow, 
was put hard astarboard. As to the speed of the Maricopa: This 
steamer was proceeding at about 10 miles an hour through the water, 
or 8 by the land. The signal of the Crescent City compelled her to 
take the Canadian side, from which the wind was blowing. It was 
necessary not only to keep close to that side, but to keep her tow there ; 
that is, to keep going at a speed which would prevent the tow from 
drifting. Her master testified that he considered it imprudent to check 
down, for fear the Manila would sag to leeward. Under the rule, the 
proof must satisfy us that the master of the Maricopa was clearly 
wrong in not checking down. It does not. Both as to the Manila and 
the Maricopa, the évidence fails to meet the rule which we hâve 
quoted. In neither case is it so clear and convincing as to establish the 
fault charged. We are not satisfied that the Manila was where she 
had no right to be, nor are we convinced that the Maricopa was tow- 
ing the Manila at too great a speed. 



70 129 FEDBEAL EEPOETER. 

5. The second collision — that between the Trevor and tlie "131" — 
can be disposed of in a few words. The Crescent City, being at fault 
iti the collision with the Manila, must be held responsible for the 
collision with the tovvline between the Trevor and the "131." The sole 
question is whether the Trevor or the "131" neglected to do anything 
that could hâve been done to avert or avoid the collision which took 
place when the Crescent City got out from between them and passed 
on down. We are not satisfied that anything effective could hâve 
been done. The vessels were then in extremis. There was no time for 
either the Trevor to acquire headway, or the "131" to respond to a 
port helm. They were so close together and the time so limited that 
the accident was inévitable. 

The decree of the court below is reversed, and the case remanded, 
with directions to assess the damages and costs against the Crescent 
City. 



NATIONAL SURETY CO. V. UNITED STATES. 

(Circuit Court of Appeals, Eighth Circuit Marcli 21, 1904.) 

No. 1,936. 

1. Bond of Lettee Caeeiee— Liabii,itt of Sukœty— Collecting Lettees to be 

Registeeed. 

Tlie bond of a letter carrier and of his surety for the faithful diseliarge 
of tlie dutles and trusts imposed upon the former as a letter carrier, 
"either by the postal laws of the United States or the rules and régulations 
of the Post-Office Department of the United States," binds the surety for 
the faithful discharge by his principal of the duty of collecting letters and 
packages to be reglstered which was imposed upon the letter carrier by an 
order of the Post-Offlce Department during the term of the bond. 

2. SAMB — CONSTETJCTION— ACCOKDING TO LaWS AND REGULATIONS. 

The parties to a bond for the faithful discharge of the duties of an 
office according to laws and régulations, which the obligée has the right 
and power to change at any time, necessarily contemplate and Intend to 
guaranty thereby the discharge of the duties of the office Imposed upon 
the principal by the subséquent législation or régulation of the obligée 
during the term of the bond, which are within the scope of the office, and 
are germane to, and naturally comiected with, its duties when the bond 
Is made. They do not warrant or Intend to guaranty the discharge of 
duties beyond the scope of the office, disconnected with ita business or 
foreign to its duties at the time of the exécution of the bond. 

3. Samb— DuTï OF Collecting Lbttees to be Registeeed Gbemane to Foemeb 

Duties. 

The duty of collecting letters and packages to be reglstered Imposed 
upon letter carriers by the order of the Postmaster General of December 
5, 1899, is within the scope of the office of a letter carrier, and germane to 
previous duties pertalning to it. 

4. Same— United States mat Recovee of Sukety foe Theft by Peincipal— 

Bailee fob Hike. 

The United States may maintain an action against the surety on the 
bond of a letter carrier who has stolen letters to be reglstered for the value 

T 1. Liabillties of sureties for acts of offlcers under color of office, see note 
to Chandier v. Rutherford, 43 C. C. A. 222. 
If 4. See Bailment, vol. 6, Cent DIg. §§ 98-100, 136. 



NATIONAL SUEETT CO. V. UNITED STATES. 71 

of the contents of the stolen letters, where the contents of no single letter 
exceeded $10 in value, although the owners of the letters hâve made no 
claim against the government for indemnity, and nothing bas been pald 
to them. 

A bailee for hire of services may maintain an action of trespass, trover, 
or conversion for the disturbance of bis possession by a wrongdoer, and 
may recover the vaine of the property as damages. 
(Syllabus by the Court) 

In Error to the District Court of the United States for the District 
of Nebraska. 

Ralph W. Breckenridge (Charles J. Greene and James C. Kinsler, on 
the brief), for plaintiiï in error. 
W. S. Summers and S. R. Rush, for the United States. 

Before SANBORN, THAYER, and HOOK, Circuit Judges. 

SANBQRN, Circuit Judge. On April i, 1899, 79 letter carriers at 
the city of Omaha in the state of Nebraska, as principals, and the Na- 
tional Surety Company, as their surety, gave a bond to the United 
States in the sum of $79,000, conditioned that if each of the principals 
"shall faithfully perform ail the duties and trusts imposed upon him 
as such letter carrier either by the postal laws of the United States or 
the rules and régulations of the post -office department of the United 
States and shall faithfully account for and pay over to the postmaster 
at Omaha, Nebr., ail moneys which shall corne into his hands as such 
letter carrier, and shall, upon the termination of his office, return to 
the proper officer ail property of every kind and description which 
shall be in his possession as such letter carrier," then the obligation 
should be void, but otherwise of force. At the time this bond was 
executed thèse letter carriers were forbidden to collect or receive let- 
ters or packages to be registered, but it was a part of their duties to 
deliver registered mail, and to collect and deliver other letters and 
packages. Postal Laws & Régulations 1893, § 1049. In December, 
1899, the Postmaster General made an order to the effect that letter . 
carriers in the residential districts of certain cities, one of which was 
Omaha, should collect certain letters to be registered. Order No. 762, 
Dec. 5, 1899; Postal Laws and Régulations 1902, § 805. Under this 
order, John Eich, one of the principals in the bond, collected three let- 
ters to be registered, which contained, respectively, $6, $3.50, and 
$1.50, and rifled them of their contents. The United States has made 
no restitution of any of this money to either of the senders or addressees 
of the letters. It has, however, brought this action against the surety 
Company to recover the $11 which the letters contained, and a judg- 
ment for that amount has been entered in its favor, pursuant to a per- 
emptory instruction to the jury that the plaintiff was entitled to their 
verdict. 

The peremptory instruction of the court, and the judgment which 
followed it, are challenged in this court upon two grounds: (i) That 
the imposition of the duty of collecting letters and packages to be 
registered, upon the principal, Eich, after the bond in suit was given, 



72 129 FEDERAL EEPORTBK. 

added to the duties of the office of the letter carrier a new duty and a 
new responsibility, for which the surety was net liable upon its bond; 
and (2) that the United States is entitled to no recovery in any event, 
because it has neither incurred any liability, nor sufifered any loss, by 
the theft of the money by the principal in the bond. 

The agreement of a surety must be strictly construed. His respon- 
sibility may not be extended by implication beyond the terms of his 
bond. An additional liability, which his contract does not clearly show 
to hâve been within the reasonable contemplation and intention of the 
parties to it wlien it was made, cannot be imposed upon him by the 
subséquent action of the obligée or of the principal in the bond. Miller 
V. Stewart, 9 Wheat. 680, 701, 6 L. Ed. 189; U. S. v. Singer, 82 U. S. 
III, 122, 21 L. Ed. 49. 

But the contract of a surety, like ail other contracts, must hâve a 
reasonable construction — an interprétation, which, while it carefuUy 
restricts his responsibility to that which he agreed to undertake, does 
not fail to hold him to that liability which, by the plain terms of the 
agreement, he contracted to assume. The surety in the case in hand 
agreed with the United States to be liable for the faithful discharge 
by its principal, Eich, of ail the duties and trusts imposed upon him 
as a letter carrier either by the postal laws of the United States, or by 
the rules and régulations of the Post-Office Department of the nation. 
When this bond was executed the United States had the right and 
power, by act of Congress, and the Postmaster General had the right, 
by rule or order, to increase, diminish, or modify the duties of the 
principal in this bond, as a letter carrier, at any time they saw fit ; and 
ail the parties to this contract were aware of this fact. The proposi- 
tion has become too well settled to admit of discussion that an obliga- 
tion of a surety for the faithful discharge of the duties of an office 
according to the laws and régulations which prescribe those duties, 
made to one who has the right and power to change such laws and 
régulations at any time, is, in its true interprétation and meanîng, a 
contract for the faithful discharge of the duties of the office according 
'to the laws and régulations, not only as they are at the time when the 
bond is made, but also as they shall subsequently become during the 
term of the bond, provided only that subséquent législation or régula- 
tion adds no new duty or responsibility which is not germane to the 
duties or within the scope of the office at the time of the making of 
the bond. AU duties prescribed by subséquent législation or régula- 
tion which are of the same kind as those previously pertaining to the 
office, which are within its scope and which naturally belong to its busi- 
ness, are within the reasonable contemplation and évident intention of 
the parties to such a contract, because they know the necessity and 
probability of changes in the duties of the office, and the bond binds 
principal and surety alike for their faithful discharge. U. S. v. Singer, 
82 U. S. III, 122, 21 E. Ed. 49; U. S. v. Powell, 81 U. S. 493, 500, 
20 L. Ed. 726; U. S. v. Gaussen, 25 Fed. Cas. 1267, 1269, No. 15,192; 
Postmaster General v. Munger, 19 Fed. Cas. 1099, 1103, No. 11,309; 
Boody v. U. S., 3 Fed. Cas. 860, 864, No. 1,636; White v. Fox, 22 
Me. 341, 347; U. S. v. McCartney (C. C.) i Fed. 104, 106, m ; Chad- 
wick V, U. S. (C. C.) 3 Fed. 750, 755 ; King v. Nichols, 16 Ohio St. 



NATIONAL SmRETT 00. V. UNITED STATES. 73 

82; U. s. V. Cheeseman, 25 Fed. Cas. 414, No. 14,790; Murfree on 
Officiai Bonds, §§ 711, 712, 713. 

When this bond was executed the collection and distribution of let- 
ters and packages which were not registered, and which might never- 
theless coiitain money or other articles of value, and the distribution 
of registered letters and packages, were some of the duties of the prin- 
cipal as a letter carrier. The collection of letters and packages to 
be registered was a duty of the same kind as the duty of the distribu- 
tion of registered letters and packages. It was a duty within the 
scope of and naturally connected with the business of the office. Hence 
the liability of the surety for its discharge falls within the true inter- 
prétation of its obligation to answer for the faithful discharge of the 
duties of its principal according to the laws and régulations which pre- 
scribe them. 

The second objection to the judgment is that the United States has 
neither incurred any liability nor sufifered any loss by the theft of the 
contents of the letters, and hence it cannot maintain an action for dam- 
ages on account of it. In support of this contention, attention is called 
to the fact that section 3926 of the Revised Statutes [U. S. Comp. St. 
1901, p. 2685]' provides that the Postmaster General shall make rules 
under which the owners of first-class registered matter shall be indem- 
nified by the United States for losses thereof through the mails, to 
amounts not exceeding $10 for any one registered pièce; that such 
rules hâve been prescribed ; that thèse rules require that claims for 
indemnity shall be made within one year from the dates of the losses 
(Postal Laws & Régulations 1902, § 900) ; that there is no averment or 
proof that any claim for indemnity for the loss of any of the moneys 
hère in question has ever been made ; and that the government admits 
that it has never paid anything to any one on account of it. The right 
of the nation, however, to a recovery in this action, is not necessarily 
limited by the acts or omissions of the owners of the stolen money since 
the theft. It dépends upon the facts and circumstances when the mon- 
ey was stolen. When this was donc, the money was in the custody^ 
the possession — of the United States under its contract with those who 
had intrusted the letters to its care to safely carry and deliver them to 
their addressees for the valuable considération which it had received 
by virtue of the stamps upon the letters which had been purchased from 
it. The contract between the United States and the owners of the 
letters was a bailment of the class known as "locatio operis mercium 
vehendarum." It was a carrier — a bailee of the letters and their con- 
tents for hire of labor or services. From this carrier or bailee Eich 
took and converted the letters and their contents to his own use. But 
a bailee may maintain an action of trespass, of trover, or of conver- 
sion against a wrongdoer for his disturbance of his possession of the 
property. The Beaconsfield, 158 U. S. 303, 307, 15 Sup. Ct. 860, 39 
L. Ed. 993 ; The New York (D. C.) 93 Fed. 495, 499 ; Shaw v. Kaler, 
106 Mass. 448; Eaton v. Lynde, 15 Mass. 242; Burdict v. Murray, 3 
Vt. 302, 21 Am. Dec. 588. The United States, therefore, was not 
without sufficient interest in the subject-matter to enable it to recover 
of Eich, the letter carrier, the entire value of the property he took, as 
its damages for the conversion of the money. But Eich converted the 



74 129 FEDERAL REPORTER. 

letters and theîr contents when he was in the act of performing his 
duty of coUecting and delivering them to the postmaster at Omaha, 
and when he and the surety company were under an agreement with 
the plaintiff that they would pay ail damages, not exceeding $i,ooo, 
which resulted to it from Eich's failure to discharge his duties faith- 
fully, and to account and pay over to the postmaster ail moneys which 
should come into his hands as a letter carrier. Since the government 
was entitled to recover the value of the letters as its damages for their 
conversion, this value was also the measure of the damages it sus- 
tained under the bond, and a cause of action against the obligors in 
the bond to recover thèse damages arose as soon as the theft of the 
letters was completed. As soon as the conversion was effected, the 
United States had a complète right of action against the obligors upon 
the bond for the value of the property taken by the principal, and each 
of the respective owners of the letters had an indefeasible claim against 
the government for the value of the contents of his letter. The right 
of action of the United States, however, was not conditioned, created, 
released, or affected by the fact that the owners of the letters presented 
or failed to présent their claims for indemnity to the government, and 
this fact constituted no défense to this action. 

The judgment below must accordingly be affirmed, and it is so or- 
dered. 



JOHNSTON V. FAIRMONT MILLS et al. 

(Circuit Court of Appeals, Fourth Circuit February 2, 1904.) 

No. 478. 

1. Sales— CoNTBACT Made throuqh Broker— Reqtjieement of Confiemation 

BY Principal. 

Wliere there was an establislied custom in tlie cotton trade for botli 
buyer and seller to conflrm to each other in writing a sale made by a 
broker, an offer by a broker to sell cotton for future delivery to a cotton 
mill, accepted by the mill company "subject to confirmation" by the seller 
named in the offer, did not create a contract, and the acceptance was sub- 
ject to withdrawal at any t'ime before such confirmation. 

2. S AME— Acceptance of Offeb. 

A proposai to accept an offer for the purehase of cotton on terms varylng 
materially from those offered is a rejection of the offer, and does not create 
a contract binding the purchaser. 

3. Same— Waiveb of Confiematigh. 

Where an offer by a broker to sell cotton for future delivery was ac- 
cepted subject to confirmation by his principal, as customary in the trade, 
and before confirmation the seller became insolvent, a demand for security 
by the intending purchaser was not a waiver of the requirement of con- 
firmation. 

In Error to the Circuit Court of the United States for the District of 
South Carolina. 

For opinion below, see Ii6 Fed. 537. 

ïhis is a writ of error to a judgment of the Circuit Court of the United 
States for the District of South Carolina rendered on the 4th day of Augiist, 

Il 2. See Sales, vol. 43, Cent. Dig. § 47. 



JOHN8TON V. FAIBMONT mUiS. 75 

1902, dtsmlsstng at the cost of the plaintlff a certain action at law Instltuted 
In said court against the défendants. The facts may be brlefly stated as fol- 
lows : The appellant instltuted this action for the recovery against the Fair- 
mont Mills, a corporation of the state of South Carolina, and L. Guy Harris, 
as receiver of said corporation, damages for the breach of two alleged contracts 
entered into between the said Fairmont Mills and himself on or about the lOth 
and 15th days of Octoher, 1900, under whlch the plaintlff contracted to sell and 
deliver to the Fairmont Mills 500 baies of cotton, 100 of said baies to be deliv- 
ered during each of the months of February, March, April, May, and June, 
1901, to be paid for as follows: For the cotton delivered in February, March, 
and April, 1901, 10% cents per pound ; for the remainder, lOi^ cents per pound. 
That after the mailing of said contracts cotton deelined rapidly, and on or 
about Oetober 28, 1900, the Fairmont Mills uotifled the plaintlff that it can- 
celed the contracts, and would not accept, receive, or pay for the cotton. That 
the plaintlff was always ready to carry out the contract on hls part, and was 
prevented from so doing by the action of the défendant. That, owiiig to the 
décline in the price of cotton, plaintlff was prevented from placlng the cotton 
at the price agreed upon, and, as a conséquence, was damaged in the sum of 
$4,687.50. The défendants deny the existence of the contracts, and, while con- 
ceding that there were negotiations through one C. P. Mathews, a cotton broker, 
looking to such contracts, they inslst that the broker dld not submit to the two 
parties the same terms, and never reached an agreement as to the terms, and 
the contracts were never consummated. Défendants further assert that, while 
negotiations were pending, plaintlff became insolvent, 'rt'hereupon they warned 
hlm, unless be furnished a proper guaranty that he could perf orni the contract 
on his part, if eompleted, by uoon of the 27th of Oetober, 1900, they would not 
conclude the same ; that the plaintlff failed to do this, and the défendant mills 
notifled him that the deal was off, and sought cotton elsewhere. 

A jury trial being walved, pursuant to the act of Oongress, the case was sub- 
mitted to the judge of the court below, who, after stating the facts to be : 

"The transaction occurred through the agency of C. P. Mathews. Mr. 
Mathews Is a cotton broker reslding in Spartanburg, South Carolina, doing 
business in the Carolinas, chlefly with cotton mills. On lOth Oetober, 1900, Mr. 
Harris, président of the Fairmont Mills, made an offer to hlm, as such broker, 
to buy cotton, 100 baies for each of the months of February, March, and April, 
at 10% cents. He communicated the offer by telegram to the plaintlff, at Me- 
ridlan, Mississippi, and received by telegram, the same day, authority to accept 
the offer of 300 baies at 10%, shipments named. He communicated by téléphone 
to Mr. Harris the receipt of this authority, and on the next day (llth Oetober) 
wrote Mr. Harris as follows : 

" 'I beg to confirm sale to you of 300 B-C to you at 10% landed Moore's So. 
Ca., for a/c of A. S. Johnston, Meridlan, Mississippi. The cotton to be half 
each, st. and good mid., to be shipped 100 B-0 each in February, March and 
April ; wts. guaranteed wlthin three pounds. Please conflrm sale and oblige, 
" 'Yours truly, 0. P. Mathews.' 

"It does not appear, except by this letter, that Mr. Harris knew who woald 
furnlsh the cotton. On receipt of this letter, Mr. Harris replies : 

" 'I hâve your letter of this date [llth Oetober] conflrming sale to us of 
300 B-C, landed at Moore's, So. Ca. The cotton to be half each st. and good 
mid., and 100 baies delivered each month of February, March and April next, 
wts. guaranteed wlthin three pounds, and hereby accept offer of same subject 
to A. S. Johnston's confirmation. 

" 'Yours truly, W. I., Harris, Près.' 

"On the 15th Oetober, 1900, Mr. Harris made another offer to C. P. Mathews 
for the purchase of 200 baies of cotton at 10%, deliverable 100 baies each in 
months of May and June, 1901. This was communicated also to A. S. Johnston, 
at Meridlan, Miss., by wire, and Johnston, by wire, answered, 'Conflrm sale 
100 baies, each May and June, st. mid. to good mid., 10%.' On its receipt, 
Mathews notifled Harris, and on the next day he wrote a letter identical in 
terms, except as to number of baies and the price, with his former letter. To 
this Harris replies, uslng the same terms as his reply to the former letter, 
varying only as to the number of baies and the price, and ending, as in his 



76 129 FBDEEAL REPORTER. 

former letter, 'sold to us by A. S. Johnston, Meridian, Miss., and snbject to hls 
confirmation.' The usage of the mllls is always to require confirmation by the 
principal of contracts made througli thé brolier, and this confirmation is mad« 
to the purchaser direct — sent either by mail or through the broker. In the 
présent instance, Mathews requested .lohnston to conflrm direct to Harris. Af ter 
the 15th, and between that day and the 25th, of October, unpieasant rumors 
were in circulation as to the solvency of Johnston. Whereupon Mr. Harris, on 
25th October, demanded from Mathews security for the performance of thèse 
contracts by Johnston. Mathews wired this demand to Johnston, who replied, 
referring to C. W. Roblnson and Tohn Kenyon. Mathews telegraphed to thèse 
gentlemen to confirm this, but got no reply. On 27th October, Mathews not fur- 
ilishing the security demanded, Harris canceled the contracts. On the 29th 
October, IftOO, Mathews inclosed to Harris letter of Johnston confirming the 
contract of lOth October, except that the place of delivery was stated to be 
Spartanburg, S. C, instead of Moore's, as stated by Mathews. On or about 
Ist November, 1900, Johnston went to Spartanburg, and, in company with 
Mr. Bozeman, his attorney, and Mr. Gaine, of Mississippi, offered Mr. Gaine 
as his surety for delivery of the cotton as per contracts. Mr. Harris made no 
objection to the character and sufiiciency of the security, but refused to aeeept 
it, as the contracts were canceled. Mr. Mathews says that in this transaction 
he acted merely as agent of each party in making the sale, and assumed no re- 
sponslbillty." 
— Announced his flndings thereon, and conclusions of law, as follows : 

"Findings of ITact. 

"(1) The plaintiff is a citizen and résident of the state of Mississippi, and the 
défendant corporation, the Fairmont Mills, and L. Guy Harris, recelver, are 
citizens and résidents of the state of South Carolina. 

"(2) C. P. Mathews is a cotton broker at Spartanburg, South Carolina, doing 
business in the Carolinas. 

"(3) On lOth October, 1900, negotiations were entered into between W. J. 
Harris, président of Fairmont Mills, and C. P. Mathews, for the purchase of 
three hundred baies of cotton, strict to good middling, at 10% cents per pound, 
dellverable 100 baies each in the months of February, March and April, 1901, 
at Moore's, S. C. And on 15th October, 1900, other negotiations were entered 
into between the same parties for the purchase of 200 baies of cotton at 10% 
cents per pound, dellverable 100 baies each in the months of May and June, 
1901, at Moore's, S. C. 

"(4) Thèse negotiations culminated In a written offer on the part of Mathews, 
acting for A. S. Johnston, the plaintiff, for the delivery of the above-mentioned 
baies of cotton at the priées and terms and place specifled, one-half of each 
delivery to be good, and one-half strict middling, wIth the terms added ; weighta 
guarantied not to lose more than three pounds per baie. 

"(5) Pending thèse negotiations, telegrams had been passed between Mathews 
and johnston, in which the outlines of the proposition were stated. The offer 
o£ Mathews gave the offer in détail, and for the flrst time. 

"(6) The detailed offer of Mathews was accepted by Harris, subject to con- 
firmation by Johnston. This is the usage of the trade In Spartanburg by the 
mllls in purchasing cotton for future delivery. 

"(7) The confirmation by Johnston not having been received, on 27th October, 
1900, Mr. Harris, président of Fairmont Mills, canceled the transaction. 

"Conclusions of Law. 

"The contract between plaintiff and défendant, never having been completed, 
was not binding, and the verdict must be for the défendant" 

C. P. Sanders and S. J. Simpson, for plaintiff in error. 
William M. Jones (Nicholls & Jones, on the brief), for défendants 
in error. 

Before GOFF, Circuit Judge, and WADDII,!, and McDOWEI.1., 
District Judges. 



JOHNSTON V. FAIKMONT MILLS. 77 

WADDILL, District Judge (after stating the facts as above). There 
are a number of assignments of error in this case, but they ail relate, 
in one form or another, to three questions involved: First, whether 
or net valid contracts were ever entered into between the parties, as 
set up in the pleadings; second, whether or not, under the circum- 
stances of this case, the défendant the Fairmont Mills was justified in 
imposing upon the plaintifï the requirement of a guaranty of his ability 
to carry out the alleged contracts, his insolvency being admitted ; and, 
third, what was the efifect of this requirement, as bearing upon the 
question of the existence of the prior contracts ? 

This case turns upon the question of fact as to whether the alleged 
contracts were in fact entered into between the plaintiff and the de- 
fendant the Fairmont Mills. Upon that point the learned judge of the 
lower court decided that they had not, and, after a most careful review 
of the entire évidence, with the light of the arguments of able counsel 
thereon, we hâve reached the same conclusion. 

That the minds of parties must meet, and give mutual assent to ail 
of the essential and material features of a contract, îs elementary. It 
cannot be said that such was the case hère. The transaction was con- 
ducted between the parties through C. P. Mathews, a broker, and he 
clearly did not hâve the right, under the facts of this case, to bind either 
party without their assent; and certainly he had no such authority to 
speak for the défendant the Fairmont Mills. The évidence conclusive- 
ly shows that the custom in the trade was for both buyer and seller to 
each confirm to the other the broker's action in writing. This is 
testified to by the broker himself, who says : 

"When Mr. Harris submitted the offer, I submitted the offer to Mr. Johnston. 
I had no authority until I got authority from Mr. Johnston to confirm the con- 
tract. * * * It was always customary for the mill to confirm to the buyer, 
and the buyer to the mill. I was acting only as intermediary, and each sido 
wanted the contracts confîrmed. « » * There was probably something in 
the offer that Mr. Johnston would confirm the sale by letter. It was under- 
stood that Mr. Harris was to receive written confirmation from Mr. Johnston." 

While sundry letters and telegrams passed between Mathews and 
Johnston, and some between Mathews and Harris, the président of 
the mill, still it is entirely clear from the whole correspondence that 
Harris was to receive written confirmation of the sale from Johnston. 
Mathews' reply to the telegram from Johnston to him confirming the 
sales of February, March, and April, concludes, "Please confirm con- 
tract to W. I. Harris, président, Spartanburg, South Carolina;" and 
Harris' letter of the iith of October acknowledging the receipt of the 
letter from Mathews, relative to confirming the sale concludes, 
"Weights guaranteed within three pounds, and hereby accept ofifer of 
same subject to A. S. Johnston's confirmation." The subséquent let- 
ters written by Johnston direct to Harris, président, but received after 
the cancellation of the contract by Harris, likewise show that Johnston 
was to hâve given a written confirmation. In addition to this, the 
correspondence between Mathews and Johnston also shows that this 
confirmation was to hâve been given, and on the day before the can- 
, cellation of the contract, October 26, 1900, Mathews wrote : 

"If you had only conflrmed .thèse sales promptly, there would hâve been no 
trouble. A lawyer told one of the mills that the only ground he had for getting 



78 129 FEDERAL REPORTER. 

out, would be that you had falled to conflrm the sale. Bven now I hâve never 
been able to get the sales properly confirnied by you. I returned the confirma- 
tions to you on the 17th for correction ; since then I bave not had a Une from 
you." 

And on the 27th of October, the day on which the notice was given 
that the contracts would be canceled if no guaranty was given, Mathews 
wrote Johnston: 

"I wlll say, however, that ail the sales bave been confirmed to me regularly, 
and only awaited your confirmation to the mllls for them to confirm. I do not 
consider you hâve treated me fairly in the matter." 

Johnston thus clearly failed to confirm, in writing, the contracts to 
Harris. But this is not the only particular wherein the transaction 
was not consummated. Their minds never met upon other material 
and essential portions of the undertaking. They agrée as to the quan- 
tity of the cotton and the price, but in other essentials entirely differ. 
Harris understood that the cotton was to be delivered at Moore's, 
S. C. Johnston's confirmation, in so far as it désignâtes a place at ail, 
is at Spartanburg; and it is not entirely clear that he obligated him- 
self to do more than ship the cotton from the place of sale, Meridian, 
Miss., within the time named. Harris prescribed that the cotton was 
to be half each strict and good middling, and emphasized in his second 
letter by stipulating for strict to good middling cotton, one-half each 
grade. Johnston agreed only that the cotton should be strict good 
middling, and not one-half each grade. Harris required the delivery 
of loo baies each for the months of February, March, April, May, and 
June ; weights to be guarantied within three pounds. Johnston gave 
no undertaking as to weight, and, as above stated, had in view mani- 
festly shipments, rather than deliveries — at least, his telegrams and 
letters are liable to this interprétation — which might hâve resulted dis- 
astrously to Harris, but showed clearly that in this, as in other par- 
ticulars, there was an utter failure of the minds of the parties to meet 
on thèse essential features of the undertaking. To bind Harris on his 
offers, it was necessary that the same should be accepted in the identi- 
cal terms in which they were made; otherwise his ofïers imposed no 
obligation upon him ; and a proposai to accept, or an acceptance on 
terms varying from those offered, is a rejection of the offer. 

In Minneapolis Ry. Co. v. Columbus Rolling Mills, 119 U. S. 149. 
7 Sup. Ct. 168, 30 L. Ed. 376, it is said : 

"As no eontract is complète wlthout the mutual assent of the parties, an 
offer to sell imposes no obligation untll it is accepted accordlng to its terms. 
So long as the offer bas been neither accepted nor rejected, the negotiatlon re- 
mains open, and imposes 110 obligation upon either party. The one may décline 
to accept, or the other may withdraw his offer, and either rejection or with- 
drawal leaves the matter as if no offer had ever been made. A proposai to ac- 
cept, or an acceptance upon terms varying from those offered, Is a rejection of 
the offer, and puts an end to the negotiation, unless the party who made the 
original offer renews it or assents to the modification suggested. The other 
party, having once rejected the offer, cannot afterwards revive it by tendering 
an acceptance of It." 

In I Chitty on Contracts (11 Am. Ed.) it is said at page 15 : 

"Where an agreement is sought to be established by means of letters, such 
letters will not constitute an agreement, unless the answer be a sin-nle ac- 
ceptance of the proposai, without the introduction of any new teriu. And 



LAMAR V. HALL & WIMBEELT. 79 

again : "If the original offer leave anythlng to be settled by future arrange- 
ment, It Is merely a proposai to enter Into an agreement. • • * The agree- 
ment Is not complète untll there Is upon the face of the eorrespondence a clear 
accession on both sides to one and the same set of terms." 

In I Parson on Contracts (6th Ed.) p. 476, it is said : 

"The assent must comprehend the whole of the proposition, It must be exactly 
eqnal to its estent and provisions, and it must not qualify them by any new 

matter." 

Applying thèse principles to the facts in this case, it is manifest that 
no valid contracts were entered into between the parties, unless it be 
that Harris' requirement of a guaranty on or before the z/th of Oc- 
tober should be treated as a confirmation of the incomplète contracts 
theretofore existing. This action of Harris clearly should hâve no 
such effect, since it is apparent from the entire évidence that he was 
acting in good faith in what he did. He made the offers as early as 
the loth and I5th of October, which were never accepted, and pending 
this condition of affairs it developed that Johnston had failed in busi- 
ness — his insolvency being admitted, as of the 20th day of October, 
1900 ; and he had the right to withdraw the offer, or otherwise ter- 
minale the transaction, which he did not do in undue haste, but insisted 
that a proper guarantee of the ability of Johnston to perform the con- 
tracts on his part should be given him, designating a day beyond which 
he would not wait. Johnston promised to give this guaranty, and en- 
deavored to do so; but, as is apparent from the eorrespondence be- 
tween himself and Mathews, he was unable to furnish the guaranty, and 
Harris, on the day indicated, declared the transaction at an end. Sev- 
eral days after this date, Johnston was enabled to furnish the guaranty ; 
but Harris then declined to reopen the negotiations, and the transac- 
tion thus ended. Harris was under no obligation to conclude his 
offers, the same never having been accepted; and hence, when there 
was a failure to comply with the condition that he generously made, he 
was legally and morally relieved from any liability to Johnston by rea- 
son of the transactions in question. 

From what has been said, it follows that the action of the lower 
court should be affirmed. 



LAMAR et al. v. HALL & WIMBERLT et al. 

(Circuit Court of Appeals, Fifth Circuit March 1, 1904) 

No. 1,274. 

Teust Fund—Peotection— Compensation. 

One jolntly Interested wIth others In trust funds, who In good faIth 
maintains for himself and others Interested llke hIm necessary Utigation 
to secure or protect them, Is entltled to reimbursement out of the funds 
protected or secured. The principle on which such allowànce Is based 
is that the plaintlfC represented the others for whom he sued. But a 
sollcitor cannot make another person his debtor by renderinç services in 
his behalf wlthout his express or implled assent. 

COEPOBATIONS — DISSOLUTION — EECEIVER9 — ^TeUST FUNDS— ATTOENET'B FEES 

—Allowànce. 

Sults having been brought by lien eredltors against a corporation, and 
a receiver having been appolnted, petltioners, as attorneys for a mlnorits. 



80 129 FEDERAL REPORTER. 

stockholder, flied a blll on hls behalf, and on behalf of ail others slml- 
larly sltnated who should corne in and beconie parties and share In the 
expense of the proceedings, alleging that the former suits had been brought 
in bad faith, etc. The blll contained a prayer for the appointment of a 
receiver to operate the property, pay the debts, and thereafter to turn 
over to the stockholders the property remalning. A co-receiver was ap- 
pointed on sueh pétition, the suits Consolidated, and after trial, in which 
the allégations of fraud of the minority stockholder's bill were not proved, 
the court ordered a sale of the property for the payment of debts. A 
sale was had, and, on petitioners' application, was set aside for inade- 
quacy of price, and another sale ordered, and an upset price flxed, which 
was $40,000 higher than the ainount bid at the previous sale, and the 
property was subsequently sold to the lien creditors for such sum, which 
was insufficient to pay the liens. Held, that the petitioners were not en- 
titled to attorney's fées, payable ont of the proceeds of such sale. 

Appeal from the Circuit Court of the United States for the Southern 
District of Georgia. 

Wm. K. Miller, for appellants. 

Marion Erwin, John I. Hall, and Olin J. Wimberly, for appellees. 

Before FARDEE, McCORMICK, and SHELBY, Circuit Judges. 

SHELBY, Circuit Judge. Hall & Wimberly and Erwin & Calla- 
way, attorneys and solicitors, filed a pétition in the court below pray- 
ing that fées for services rendered by them be fixed and allowed, and 
paid out of a trust fund which was in court for distribution. The pé- 
tition was referred to a spécial master, who made a report adverse to 
it; but, on exceptions filed by the petitioners, the report of the spé- 
cial master was disapproved by the court, the exceptions sustained, 
and a decree entered allowing the petitioners $1,500 as compensation 
for their services as solicitors, and directing that the same be paid 
by the receiver out of the trust funds in court. William Firth 
Co. V. Millen Cotton Mills, 129 Fed. 141. This appeal was taken 
from that decree, and it is assigned that the court erred in sustaining 
the exceptions to the master's report, because the solicitors named vi^ere 
not entitled to hâve their fées paid out of the trust fund in court. 

In order to understand the question to be decided, it is necessary to 
make a statement of the facts : 

Three bills in equity were filed in the court below: 

(i) William Firth Company et al. v. Millen Cotton Mills. This was 
a suit brought January 6, 1902, by creditors having liens upon the 
property of the Millen Cotton Mills, a corporation. The bill described 
the debts and liens, and prayed for their enforcement by a sale of 
the property of the défendant corporation, and a distribution of the 
assets among the lien creditors. There was a prayer, also, for the 
appointment of a receiver of the property of the défendant. The cir- 
cuit court on January 6, 1902, appointed John R. L. Smith receiver, 
who took possession of the property of the défendant corporation. 

(2) C. E. Riley & Co. et al. v. Millen Cotton Mills et al. In this 
suit, brought April 11, 1902, it was asserted that the complainants had 
furnished machinery to the défendant corporation, and the complain- 
ants claimed liens therefor, and sought to enforce them. It was al- 
leged that the court was already in possession of the défendant corpo- 



LAMAR V. HALL & WIMBERLT. SI 

ration's property, and that the complainants' liens were superior to the 
mortgage debts; that défendant corporation was insolvent; and that 
the stockholders had no interest in the property of the défendant cor- 
poration "until they pay or cause to be paid ofï its debts." 

(3) Southern Cotton Mills & Commission Co. v. Milieu Cotton Mills 
et al. The bill beginning this suit was filed on January 23, 1902, after 
a receiver had been appointed under the first bill, and after he had 
taken possession of the property of the défendant corporation. In this 
suit the complainant's solicitors were Hall & Wimberly and Erwin & 
Callaway, the petitioners in the court below, whose compensation is 
involved in the présent appeal. The complainant in this suit, a mi- 
nority stockholder in the Millen Cotton Mills, allèges that the first suit 
was — 

"A part and parcel of a fraudaient and wrongful scheme, purpose, and con- 
spiracy on the part of the défendants herein uaoïed to wreck the said Millen 
Cotton Mills, and cause its properties to be sold and purehased for the ben- 
eflt of the majorlty stockholders of the Millen Cotton Mllls, to the utter de- 
struction of the rights and interest and property of the minorlty stockholders 
therein." 

The third paragraph of the bill is as follows : 

"Your orator, the Southern Cotton Mills & Commission Company, is a mi- 
nority stockholder in said Millen Cotton Mills, and brings this bill against 
the said Millen Cotton Mills and its ofGcers, directors, and majority stock- 
holders, and the other défendants named, colludlng and confederating with 
them ; and your orator brings this as a stockholders' bill, for the beneflt of 
itself and ail other stockholders similarly situa ted who may corne In and be 
made parties hereto, and share the expense and costs of this proceeding." 

The détails of the wrongful scheme are stated, but it is unnecessary 
to repeat them. It is alleged that the mill properly operated could 
reduce and in time pay its indebtedness, and that in that way the 
property could be saved to the stockholders. In brief, the purpose 
of the bill was to prevent the sale of the Millen Cotton Mills, on the 
ground that the suit brought by the William Firth Company and oth- 
ers was a fraudulent scheme between the complainants in that suit 
and the majority stockholders of the défendant corporation, and to 
provide for the payment of its debts by operating the mills. The 
prayer was for the appointment of a receiver or receivers, and that 
the court "may, through its receiver, hold said property until said 
property can be turned over to the stockholders who are not partici- 
pants or guilty of any of the fraudulent acts or wrongs hereinbefore 
complained of." 

This bill was presented to a judge of the court below on January 
21, 1902, and an order was made appointing Tracy I. Hickman and 
John R. L. Smith temporary receivers to take charge of ail the prop- 
erty and assets of the Millen Cotton Mills, and its books and papers, 
"and continue the possession now exercised by John R. L,. Smith as 
temporary receiver." It was further ordered that the receivers in- 
vestigate the condition of the property, and report to the court the 
practicability of operating and paying off the debts, in accordance with 
the "declared purpose of the bill." The défendants named in the sev- 
eral bills filed their several answers. On April 12, 1902, it was ordered 
129 F.— 6 



82 129 FEDERAL REPORTER. 

that "the said several cases [referring- to the three chancery suits] 
be Consolidated and tried as one cause," and that the temporary re- 
ceivers be made permanent receivers. On June 7, 1902, an order was 
made in the cases directing the sale of the property of the Millen Cot- 
ton Mills. It provided that the successful bidder should deposit a 
certified check for $10,000 on account of his bid. The property was 
purchased for $50,000 Isy Joseph R. Lamar, trustée for the lien credit- 
ors. He made the deposit of $10,000 required by the order. The 
sale having been reported to the circuit court, the Southern Cotton 
Mills & Commission Company, represented by Hall & Wimberly and 
Erwin & Callaway, filed objections to the confirmation of the sale. 
Thèse objections were sustained, the circuit court refusing to confirm 
the sale. The circuit court directed the commissioners, who were there- 
tofore ordered to sell the property, to advertise for bids, and to en- 
deavor to procure a bid for it at "an upset price" of $90,000. Under 
this order Joseph R. Lamar, trustée for thé lienholders, increased his 
bid to $90,000, and at that price the sale was confirmed. Lamar, as 
trustée, having deposited $10,000 in court under the order, paid the 
remainder of the purchase money ($80,000) by crediting the amount 
on estabHshed liens against the property. After paying costs and other 
allowances out of the money deposited in court, and applying the bal- 
ance of the purchase money to the lien creditors, there was due to 
them and unpaid $7,888.76. Under the or-der of the circuit court, 
$2,000 of the $10,000 deposited in court was retained in the hands of 
the commissioners to await the décision of the court on the solicitors' 
pétition for fées. 

The single question to be decided is whether or not the solicitor's 
fées due to Hall & Wimberly and Erwin & Callaway for services 
which we hâve described are a proper charge on the trust fund in court. 

We wish to say in the beginning that we do not doubt the distin- 
guished attorneys who hâve made the daim on the trust fund for fées 
hâve done so in good faith and under full conviction ôf the rightful- 
ness of their claim, that the record shows they hâve rendered services 
for which they should be compensated, that the amount claimed by 
them and allowed by the circuit court is not unreasonable, and that 
we would not hesitate to allow the sum to be charged on the trust fund, 
if, under established équitable principles, it were a proper charge on 
that fund. 

It may be stated as a gênerai and unquestioned principle that each 
client should compensate his own solicitor, and that an attorney can- 
not make another person his debtor by voluntarily rendering services 
in his behalf without his express or implied assent. The cases which 
allow compensation to attorneys out of a trust fund are not in con- 
flict with this principle, but are founded upon it, for they dépend on 
the principle of agency; the actual plaintifï being the représentative 
of the beneficiary of the trust. The application of this principle is of 
everyday occurrence in the courts. Executors, administrators, guard- 
ians, receivers, and other trustées, being the agents and légal repré- 
sentatives of the beneficiary or beneficiaries of the trust, are allowed 
crédit for necessary and reasonable charges, including attorney's 



LAMAR T. HALL & WIMBEELT. 83 

fees, incurred by them in the protection and administration of the 
trust fund. The same principle is extended to other cases. One joint- 
ly interested with others in trust property, who in good faith main- 
tains for himself, and others interested Hke him, the necessary litiga- 
tion to save it from waste and to secure its proper application, is 
entitled to the reimbursement of his costs, as between soliciter and 
client, out of the fund to be administered. Trustées v. Greenough, 
105 U. S. 527, 26 L. Ed. 1157; Central Railroad v. Pettus, 113 U. S. 
116, 5 Sup. Ct. 387, 28 L. Ed. 915. In such cases the counsel who is 
employed by certain creditors or other benefîciaries of the trust, and 
who sues for them and others situated as they are, in a sensé represents 
ail of them ; those suing having assumed to retain him for ail. There 
is usually an express promise by the parties plaintifï to pay their so- 
liciter, and, if not, a promise to pay him is implied by the performance 
and the acceptance of the solicitor's services. It seems equally clear 
that the creditors or other benefîciaries of the trust who corne into 
court and accept a part of the proceeds of the property recovered or 
preserved by the litigation are bound by an implied promise to pay out 
of the proceeds of the trust fund received by them their proportion- 
ate part of the rfeasonable compensation allowed the solicitor who 
successfully conducted the litigation. The underlying principle upon 
which those who do not appear as plaintifïs are charged with a pro- 
portionate part of the solicitor's fees, or upon which such fees are 
charged on the fund, is that the plaintifïs represented the others for 
whom they also sued (Farmers', etc.. Trust Co. v. Green, 79 Fed. 
222, 24 C. C. A. 506; Hand v. Railroad, 21 S. C. 162); and this 
agency, and the ratification of the course taken, are usually shown by 
the appearance in court of the other creditors or benefîciaries, and 
their claiming to share in the results of the suit. 

The solicitors whose claim for fees is before the court represented 
minority stockholders in the défendant corporation. Before they filed 
the bill for the minority stockholders, lien creditors of the corporation 
had brought suit to enforce their liens and to hâve a receiver appoint- 
ed, and the court's receiver already had possession of the corporation's 
property. The minority stockholders did not, therefore, by their bill, 
bring the property into court. The purpose of the bill was antagonis- 
tic to the lien creditors, and to the majority stockholders controlling 
the Millen Cotton Mills. In fact, both were charged with a fraudulent 
ocheme to sacrifice the property. This charge was not sustained, and 
we are justifîed in saying that it was unfounded. The property was 
sold pursuant to the prayer of the creditors' bills, and contrary to the 
prayer of the minority stockholder's bill. Thèse facts seem conclusive 
against petitioners' claim on the trust fund. Hobbs v. McEean, 117 
U. S. 567, 6 Sup. Ct. 870, 29 L. Ed. 940. It is true that, by the opposi- 
tion of the minority stockholder to the confirmation of the first sale, the 
bid was increased from $50,000 to $90,000. But at both sales it was 
purchased by the trustée for the lienholders, and at both sales it failed 
to bring enough to pay the lien debts. It made no différence whether 
the property sold for $50,000 or $90,000. It was paid for in either case 
by a crédit on debts which were worthless, so far as any balance was 



Si 120 FKDERAL RErOUTIOll. 

concerned which was left.unpaid after the application of the amount 
of the bid as a crédit. The interposition of the minorit)' stockholder 
was of no benefit to the lien creditors. On the contrary, it was to their 
détriment more than $2,000, the amount of the increased costs of the 
litigation. The appelants should not be required to pay out of the 
fund for services which diminished the fund. Buckwalter v. Whipple, 
115 Ga. 484, 41 S. E. lOio. But if the interposition of the minority 
stockholder had been of incidental advantage to the lien creditors, it 
would not make its attorney's fées a proper charge upon the trust fund. 
Farmers', etc., Trust Co. v. Green, supra. There is no implied prom- 
ise to pay an attorney whom one has not employed, because of inci- 
dental bénefîts derived from his services. Grimball v. Cruse, 70 Ala. 
534, 544; Roselius V. Delechaise, 5 La. Ann. 481. 

But it is urged that after the cases were "consolidated" the solicitors 
for the minority stockholders aided in obtaining the orders to sell 
the property and in the administration of the fund. We think that is 
immaterial. In Hubbard v. Camperdown Mills, 25 S. C. 496, i S. E. 
5, the défendant corporation's property was sold pursuant to the prayer 
of the minority stockholders' bill ; but, the property being insufficient 
to pay the debts, the court held that the fées of the solicitors for the 
minority stockholders were not a proper charge on the trust fund. In 
the case at bar the minority stockholders failed to sustain their bill. 
And it was a bill opposing the sale of the property and charging fraud. 
It imposed on the lien creditors the expense of answering it. We are 
unable to see that it recovered, increased, or protected the trust fund, 
or that it benefited the lien creditors of the corporation, or that the 
minority stockholder, the complainant in the bill, for whom the peti- 
tioners appeared as solicitors, represented in any way the interest of the 
lien creditors. 

The court is of opinion that the claim of the petitioners, the appellees, 
is not within the principle which authorizes compensation for their 
services to be made a charge upon the trust fund in court. The decree 
of the circuit court, therefore, must be reversed, and the cause re- 
manded, with instructions to dismiss the pétition and proceed in con- 
formity to the opinion of this court. 



THORNTON et ux. v. MAYOR, ETC., OF CITY OF NATCHEZ. 

(Circuit Court of Appeals, Fifth Circuit. April 5, 1904.) 

No. 1,253. 

Deeds— Use of Property— Condition Subséquent. 

A deed, for a considération alleged to hâve been nominal, conveying land 
to a city to be used as a burying ground, and forever kept, used, and In- 
closed in a décent and substantial manner, and for no other use or purpose 
wbatsoever, In which the grantors made no record of any Intention on their 
part that the land should ever under any eircumstances revert to them or 
their représentatives, should not be construed as requiring the land to be 
maintained as a public burying place literally lu perpetuity, without re- 
gard to the welfare of subséquent générations ; and hence such provision 
was not a condition subséquent, the breach of which would terminate the 
title of the grantees. 



THOENTON V. MAYOR, ETC., OF CITT OF NATCHEZ. 85 

2. Same— Bill— Demtjereb. 

Where the members of a flrm conveyed land to a clty, to be used as a 
public burying ground forever, a bill by the légal représentatives of the 
members of such flrm to recover the land on the ground that its use had 
been illegally changed, which failed to show that plalntlfCs were entitled 
to the reversion, or that they had any interest or right In the further 
carrying out of the purpose of the grant, was demurrable. 

S. Same— Lâches. 

Lands sued for had been conveyed by plaintiffs' decedenta In 1817 to a 
City for cemetery purposes, and for no other use whatsoever. In 1890 the 
City took up the remains of the bodies previously buried thereln, and de- 
posited them In a mound In a remote portion of the land, marked with a 
plain stone, and thereafter Improved and used the land conveyed as a pub- 
lic park. Held, that slnce the Personal représentatives of the grantees, 
by the exercise of reasonable diligence, could hâve had knovs^ledge of such 
change of use shortly after It occurred, and before 1901, when suit was 
brought to recover the land, they were barred by lâches from malntalnlng 
the same. 

Appeal from the Circuit Court of the United States for the Southern 
District of Mississippi. 

On July 25, 1902, M. E. Thornton and bis wife, averring themselves to be the 
sole surviving légal représentatives of William Butherford and of William 
Rutherford and John P. McNeel, who in the year 1817 composed the commercial 
firm of William Rutherford & Co., filed their bill in the lower court, in which, 
inter alla, they alleged that Rutherford and McNeel in the year 1817, for the 
nominal considération of $500, conveyed to the président and selectmen of the 
clty of Natchez, and to their successors, forever, certain lots In the city of 
Natchez, whicli were then the property of said commercial flrm, to hâve and 
to hold the same "for the uses and purposes of a burying place and so to be 
forever kept, used and enclosed In a décent and substantial manner and to and 
for no other use or purpose whatsoever" ; that the. land contlnued to be used 
for the purposes to which it was dedicated by the grantors until about the year 
1890, wheu the board of mayor and aldermen of the clty of Natchez, without 
the knowledge or consent of complainants, who then resided in North Carolina, 
and without notice to them, contrivlng and intending to defeat the said trust, 
and to couvert the land to another and a différent purpose, but at the same 
time to deceive the complainants, and to préserve the semblance of the trust, 
while defeating the intent of the grantors without an actual, apparent ré- 
pudiation of the trust, eaused the remains of the deceased persons interred 
in said land, with the tombstones, cofflns, and ail other évidences of the use 
of the land as a burying ground, to be dug up and removed, and the land to be 
graded down and leveled and converted into a public park, for the purposes 
of diversion and récréation, for the use of the city of Natchez, and ceased alto- 
gether to use the land for the purpose of a burying ground, but that, for the 
purpose of deceiving complainants, or others who might hâve notlfled them, 
said city authorities eaused an excavation to be dug in a remote part of the 
land, and the remains of some of the deceased persons formerly buried in 
said land to be placed therein, and a small mound of earth to be placed thereon, 
with a plain slab of stone, and then contended and still contend that in so 
doing they are executing the trust in conformity to the terms of the grant ; 
that, by reason of the fraud so attempted to be practiced on them, complainants 
had no notice of the breach of trust and of the fact that the lands had ceased 
to be used for the purpose of a burying place, and had been converted to 
another and entirely différent use, until the year 1901 ; that by the misuser 
and nonuser of the land, which Is of the value of $10,000, the same has re- 
verted to the complainants. The prayer is that the land be decreed to hâve re- 
verted to the complainants, and that the défendants pay rents and revenues 
at the rate of $1,000 per annum from January 1, 1890, or, In the alternative, 
that défendants be perpetually enjolned from further user of the land for any 
other différent purpose than that of a burying place. A demurrer was Inter- 
posed on a number of grounds, among which are the following : Want of equity 



86 129 FEDERAL' BEPOBTEB. 

In the Mil. Want of Jurisdictlon In the court, because the suit Is an action of 
ejectment ; and, 1( It be a bill to remove clouds f rom tltle, it cannot be maln- 
tained, because complalnants are not, and the défendants are, in possession. 
That complalnants do not show that they hâve acquired or hold the interest 
of McNeel In the land. That by the terms of the deed, as shown in the bill, 
the fee passed absolutely and uncondltionally to the city of Natchez, and that 
no provision was made in the deed by which the grantors, their helrs or légal 
représentatives, could be reinvested with the title. That complalnants are 
barred by their lâches. That the suit is barred by the 10-year statute of limi- 
tations. That the bill does not show that complalnants' cause of action was 
fraudulently concealed. That the bill shows that défendants exerclsed such 
public ownership over the land as to render it impossible that complalnants, 
had they exerclsed reasonable diligence, would not hâve known of their rights 
more than 10 years before the filing of this suit. That complalnants' alleged 
want of knowledge will not excuse them from the bar of the statute of limita- 
tions. The demurrer was sustained, the bill was dismissed, and the complain- 
anfs hâve appealed. 

Wade R. Young, for appellants. 
McWillie & Thompson, for appellees. 

Before McCORMICK and SHELBY, Circuit Judges, and PAR- 
LANGE, District Judge. 

PARLANGE, District Judge. We are satisfied, after full considéra- 
tion of the matter, that the grant was not made on condition subséquent. 
Such a condition is not favored in law. 4 Kent's Com. marg. p. 129. 
Even when a provision is stated in terms to be a condition, a court 
will détermine for itself, not from the statement alone, but from 
the whole deed or grant, whether a condition was really intended. In 
this case no condition was stated in terms. A considération of $500 
was paid the grantors, and the grant was not made purely and ex- 
clusively from motives of charity or benevolence. No provision what- 
ever was made for re-entry by or reversion to the grantors or their 
heirs or légal repesentatives. The land was maintained as a public 
burying place for nearly three-quarters of a century. There is noth- 
ing averred in the bill from which we could gather that the grantors 
intended that the land should be maintained as a public burying place 
literally in perpetuity, and without regard to the necessities and welfare 
of ail the générations which were to folio w. In the absence of any 
déclaration of such an intention, and of anything in the grant from 
which it could be reasonably inferred, we are to conclude that the 
grantors meant that the land should be used for the purposes for 
which they desired it to be used, as long as it was right and proper to 
do so, in view of the nature of the grant and of its purposes. 

But, in any event, it is beyond question that the grantors made no 
record of any intention on their part, either expressed or intimated, 
that the land should ever under any circumstances revert to them or to 
their représentatives. The appellants hâve not stated a case entitling 
them to the reversion. They hâve not even shown that they hâve an 
interest or a right in the further carrying out of the purposes of the 
grant. 

The matter in hand was carefully considered in the able opinion in 
Rawson v. Inhabitants of School District No. 5 in Uxbridge, 89 Mass. 
135, 83 Am. Dec. 670. Also sec Greene v. O'Connor (R. I.) 25 Atl. 



BBISTOL r. TJBTTBD STATES. 87 

693, 19 L. R. A. 262 (see notes); Sohier v. Trinîty Churcli, 109 Mass. 
1-19 ; Episcopal City Mission v. Appleton et al., 117 Mass. 326 ; Barker 
et al. V. Barrows, 138 Mass. 578 ; Stanley v. Coït, 6 Wall. 119, 18 L. 
Ed. 502. 

We are furthermore fully satisfied, after considération of the statutes 
of limitations of Mississippi, that the appellants hâve by their lâches 
debarred themselves from prosecuting this action. The conversion of 
a public burying ground into a public park, and the other acts which the 
appellants averred in support of the fraud and concealment alleged by 
them, could not but hâve been open, public, and notorious. Conceal- 
ment of those acts would hâve been impossible. The bill, it îs true, 
avers that the appellants had neither notice nor knowledge. But such 
an allégation, in a matter like the one in hand, is a mère conclusion 
of the pleader, not binding on demurrer, unless facts are stated from 
which the court can détermine for itself whether the conclusion was cor- 
rectly drawn. See Wood v. Carpenter, ici U. S. 135-140, 25 L. Ed. 
807. 

The acts complained of took place in the year 1890. Either the ap- 
pellants knew of those acts prior to the year 1901, or else they could 
hâve had the knowledge by exercising reasonable diligence. The ap- 
pellants, having allowed such a lapse of time to occur before bringing 
their action, cannot be heard to complain at this late hour. In view 
of the statutes of limitations of Mississippi, we do not understand that 
the appellants' counsel contends that the appellants were entitled to 
actual notice. But see Elder v. McClaskey et al., 70 Fed. 529, 17 C. C. 
A. 251. 

There are other matters averred in the demurrer which hâve much 
force. But we deem it sufificient to rest our affirmance of the decree 
appealed from on the two grounds stated. 

The decree of the lower court is affirmed. 



BRISTOL V. UNITED STATES, 

(Circuit Court of Appeals, Seventh Circuit April 12, 1901.) 

L Paupees— Pbosecution of Suits— Common Law. 

St. 11 Hen. VII, c 12, providlng tliat every poor person having a cause 
of action against another shall hâve writs, according to the nature of his 
cause, without payment of fées, and asslgnment of counsel by the court, 
who shall act for him without reward, had référence only to a plaintiff 
prosecuting a civil action, and dld not apply to crimlnal appeals. 

2. Same— Fedeeal Statutes— Ceiminai. Cases— Writs or Eerob. 

Act Cong. July 20, 1892, 27 Stat. 252, c. 209 [U. S. Comp. St 1901, p. 706], 
providlng that any citizen entitled to commence any action or suit in any 
court of the United States may commence and prosecute to conclusion any 
such suit or action vylthout being required to prepay fées or costs, or give 
seeurity therefor, before or after bringing suit or action, does not entitle 
a défendant In a crimlnal case to prosecute a wrlt of error out of the 
Uïilted States Circuit Court of Appeals in forma pau£)eris. such wrlt con- 
stltuting a continuation of the original litlgatlon, and not a commence- 
ment of a new action. 

In Error to the District Court of the United States for the Northern 
District of Illinois. 



88 329 FEDERAL RBPOETER. 

J. J. McCIelIan, for plaintiflf in error. 
S. H. Bethea, U. S. Dist. Atty, 

Before JENKINS, GROSSCUP, and BAKER, Circuit Judges. 

JENKINS, Circuit Judge. The plaintiff in error, having been con- 
victed in the court below upon an indictment charging the use of the 
post-office department for a fraudulent purpose, and thereupon sen- 
tenced to a term of imprisonment, bas sued out a writ of error from 
tbis court, and now moves tbe court, upon a conceded showing of 
poverty, for leave to prosecute sucb writ of error in forma pauperis. 
At the common law no plaintiff bas the right to sue in forma pauperis. 
Any such right must rest upon statute. By ii Hen. VII, c. 12, every 
poor person having a cause of action against another could bave writs 
according to tbe nature of his cause without payment of fées, and 
àssignment of counsel by tbe court, who sbould act for him without 
reward. Tbis statute came to us as part of the common-Iaw existing 
at tbe time of tbe Révolution. It is followed as well by the fédéral 
as tbe State courts, unless tbe matter is otberwise regulated by the 
Congress of tbe United States or by the Législature of tbe respective 
States. It is clear that tbis statute had référence only to a plaintif! 
prosecuting a cause of action. It comprehended only civil actions, 
there being at tbe time of its adoption, and for five centuries tbereafter, 
no review in England of a criminal action. If, then, tbis application 
can be sustained, it must be by force of some statute of tbe United 
States. Section 691, Rev. St., provides for review, by appeal or writ 
of error, of civil actions. Tbis provision was adopted in 1789. i Stat. 
84, c. 20, § 22. No review of a criminal cause, except upon a certifi- 
cate of division of opinion among tbe judges of the Circuit Court (2 
Stat. 159, Rev. St. §§ 651, 697), was allowed until the act of February 
6, 1889, 25 Stat. 656 [U. S. Comp. St. 1901, p. 569], and tben only 
in cases of conviction of a capital crime. United States v. Sanges, 
144 U. S. 310, 321, 12 Sup. Ct. 609, 36 L. Ed. 445. Tbe first act allow- 
ing generally a review in criminal cases is that of Marcb 3, 1891, 26 
Stat. 826, c. 517 [U. S. Comp. St. 1901, p. 549]. Prior to that time 
provision had been made in aid of poor persons indicted for an offense. 
Tbe court was authorized to issue subpœnas for bis witnesses, who 
were to be paid by the government (Act 24th Sept. 1789, i Stat. 91, 
Rev. St. U. S. § 878 [U. S. Comp. St. 1901, p. 668]), and tbe court, 
by virtue of its inhérent power, could appoint counsel to défend tbe 
poor prisoner. Tbe act of July 20, 1892, 27 Stat. 252, c. 209 [U. S. 
Comp. St. 1901, p. 706], provides that any citizen "entitled to com- 
mence any action or suit in any court of tbe United States, may com- 
mence and prosecute to conclusion any sucb suit or action without be- 
ing required to prepay fées or costs or give security tberefor before 
or after bringing suit or action," and upon filing a statement under oatb 
that because of his poverty he is unable so to do, and his belief that 
be is entitled to the redress sought, and setting fortb briefly tbe na- 
ture of bis alleged cause of action. There exists a divergence of opin- 
ion in the fédéral courts wbether tbis act embraces an appea). or writ 
of error in civil causes. First Circuit: Volk v. B. F. Sturdevant, 99 



BRISTOL V. UNITED STATES. SO 

Fed. 532, 39 C. C. A. 646; Sixth Circuit, Reed v. Pennsylvania Com- 
pany, III Fed. 714, 49 C. C. A. 572, upholding that contention, and 
The Presto, 93 Fed. 532, 35 C. C. A. 534, denying it. The first two 
cases hold that proceedings on appeal or writ of error are within the 
spirit of the statute, and are not excluded by the letter, the act au- 
thorizing a poor person to "commence and prosecute to conclusion his 
cause of action." The last case limits the act to the proceeding in 
the court of original jurisdiction. Ail of the cases to which we hâve 
been referred or which we hâve been able to find which construe the 
act are civil causes, where the plaintiff mak«s the application claiming 
to hâve a meritorious cause of action to enforce. We hâve searched 
in vain for any fédéral décision construing this act with référence to 
its application to criminal cases. It is clearly the design to permit a 
poor person who is "entitled to commence any action or suit" to "com- 
mence and prosecute to conclusion" upon a showing of poverty, and 
his belief that he is entitled to the redress sought, and setting forth the 
nature of his alleged cause of action. Can such an act be appHed to a 
défendant in a criminal prosecution? This act does not give him a 
right to défend as a poor person in the court of original jurisdiction. 
He obtains that right from prior law. The statute, then, has no référ- 
ence to criminal cases in the court of original jurisdiction, for the ac- 
tion is not commenced or prosecuted by the défendant, and does not 
involve a cause of action existing in him. If the statute be applicable, 
it can only be applied upon the suing out of a writ of error to review a 
conviction. Is such a writ of error the "commencement of an action 
or suit" within the meaning of the act, or is it not rather the continua- 
tion of the old suit in which he is défendant, and to obtain a new trial 
therein? The office of a writ of error, said Chief Justice Marshall, is 
simply to bring the record into court, and to submit the judgment of 
the inferior tribunal to re-examination. A writ of err^r has been 
called an original writ, because it issued out of a reviewing court and 
was directed to the trial court ; but it acts upon the record rather than 
upon the parties, removing the record into the supervising tribunal. 
The Suprême Court déclares it to be "rather a continuation of the 
original litigation than the commencement of a new action." Nations 
v. Johnson, 24 How. 195, 205, 16 L. Ed. 628; In re Chetwood, 165 
U. S. 443, 461, 17 Sup. Ct. 385, 41 L. Ed. 782. We do not think 
that it can properly be said that a writ of error is a suit or action with- 
in the statute so far as respects a writ of error in a criminal case. 
Were it not for the words "prosecute to conclusion," we doubt if any 
court would hold that the act applied to an appeal or writ of error in a 
civil cause. The applicant by the statute must déclare the nature of 
his cause of action. Surely an erroneous ruling by the trial court can- 
not be held to furnish a "cause of action," as that phrase is commonly 
understood. The statute by that term, in our judgment, refers to a 
légal demand by one against another, not to the rulings of a trial court. 
Under a somewhat similar statute of the state of New York, its Su- 
prême Court, speaking through Judge Cowen, held that the provisions 
of the statute do not extend to writs of error. Moore v. Cooley, 2 
Hill, 412. The law is generous, giving to a poor défendant in a crim- 
inal cause full right of défense, producing in court his witnesses, giv- 



90 129 FEDERAL REPORTER. 

ing him the services of experienced counsel, and that without expense 
to him. It provides for him a full and fair trial before an impartial 
court and jury. If the Congress designed to give him the opportunity 
of a review of that trial at the further expense of the government, it 
should hâve expressed such design in unambiguous terms, 
The motion is denied. 



ONITBD STATES V. DOWNING et al. 

(Circuit Court of Appeals, Second Circuit February 25, 1904.) 

No. 70. 

1. Cttstoms Duties— Classification— Cakbons foe Electeic Lightino— 
Earthy oe Minéral Substances. 

Sticks of carbon Intended and adapted to be used in electric liglitlng, 
but requtplng to be eut Into sborter lengths and to bave tbe ends shaped 
before they are sulted for such use, are dutiable under the provision In 
paragraph 97, Tarife Act July 24, 1897, c. 11, Schedule A, 30 Stat. 156 
[TJ. S. Comp. St. 1901, p. 1633], for "articles and wares composed wholly 
or in chief value of * ♦ ♦ carbon, not speclally provided for, * * * 
if not decorated," and not under paragraph 98 of said act, 30 Stat 156 
[U. S. Comp, St 1901, p. 1633], as "carbons for electric lighting." 

Appeal from the Circuit Court of the United States for the South- 
ern District of New York. 

This is an appeal by the United States from a reversai (120 Fed. 
1014) of a décision of the Board of General Appraisers (G. A. 5,020, 
T. D. 23,353), which affirmed the assessment of duty by the Collector 
of Cust'oms at the port of New York on merchandise imported by 
R. F. Downing & Co. 

D. Frank Lloyd, for appellant. 
Albert Cornstock, for appellees. 

Before WALLACE, LACOMBE, and TOWNSEND, Circuit 
Judges 

WALEACE, Circuit Judge. The question in this case is whether 
the importations in controversy were dutiable as "carbons for elec- 
tric lights," under Tarifï Act July 24, 1897, c. 11, § i, Schedule A, par. 
98, 30 Stat. 156 [U. S. Comp. St. 1901, p. 1633], or as "carbon, not 
specially provided for" under paragraph 97 of that act. They were 
sticks of carbon intended and adapted to be used in electric light- 
ing, but not yet completed for such use when imported. They were 
of différent lengths, but required to be eut into shorter lengths, and 
to hâve the ends pointed or ground, before they could be adapted 
to use in electric hghting. Paragraph 97 reads as follows : 

"97. Articles or wares composed wholly or In chlef value of earthy or min- 
erai substances or carbon not actually provided for in this act if not deco- 
rated in any manner, thirty-flve per centum ad valorem ; if decorated, forty- 
flve per centum ad valorem." 

The Board of General Appraisers were of opinion that the im- 
portations were dutiable under paragraph 98 by similitude, because 
they were not enumerated in paragraph 97. The question was de- 



UNITED STATES V. DOWNING. 91 

cided by this court in United States v. Reisinger, 94 Fed. 1002, 36 
C. C. A. 626, a case where the importations were precisely like those 
now in controversy, and the question arose under the same two par- 
agraphs of the tariiï act. We held that, because it was necessary 
to bestow further labor on them in order to fit them for use in elec- 
tric hghting, they were not included in paragraph 98. We said : 

"Inasmuch as they are not speciflcally provlded îov in paragraph 98, they 
corne within the gênerai phraseology of paragraph 97, belng articles or wares 
composed wholly of carbon. This paragraph, it should be noted, Is changea 
from a similar one in Act Aug. 27, 1894, c. 349, § 1, par. 86, 28 Stat 513, Sched- 
ule B, which was recently considered by us in United States v. Reisinger, 91 
Fed. 112, 33 C. C. A. 395, by the insertion of the word 'carbon.' " 

In the Reisinger Case, previously decided, the court considered 
the question whether carlaon points for arc Hghts were dutiable un- 
der paragraph 86 of the act of 1894, which reads as follows: 

"Ail articles composed of earthen or minerai substances, Including lava tips 
for burners, not specially provided for in this act, if decorated in any man- 
ner, forty per centum ad valorem; if not decorated thirty per centum ad 
valorem." 

In its opinion the court held that carbon points were not enumer- 
ated in this section, because the broad and gênerai phrase "articles 
composed of earthen or minerai substances" should be restricted to 
articles susceptible of décoration, or, more accurately expressed, to 
articles of a class which sometimes are decorated and sometimes 
are not. The court deemed this construction the correct one, be- 
cause of the collocation of paragraph 86 with other paragraphs of 
the schedule, and because otherwise Congress would not hâve 
deemed it necessary to provide specially for "lava tips," as they would 
be included in the gênerai phrase. The majority of the Board of 
General Appraisers in the présent case seem to hâve been misled 
by this décision, and to hâve overlooked the distinction between the 
old provision and the new, created by inserting "or carbon," and to 
which we adverted in the later Reisinger Case. The earlier déci- 
sion was, in effect, that, reading paragraph 97 as though the words 
"or carbon" had been omitted, it would not cover the importations 
in controversy. The later décision was that, reading it as it stands, 
with the words "or carbon" inserted, it covers the importations be- 
cause they are articles made wholly of carbon, not decorated. There 
is no inconsistency in the two décisions, as is clearly shown in the 
opinion of Mr. Appraiser Somerville, dissenting from the décision of 
his colleagues. 

The décision of the court below reversing the décision of the Board 
of General Appraisers is affirmed. 



92 320 FEDERAL ItBl'OIlTER. 

THOMAS, Collector of Customs, v. WANAMAKER. 

(Carcult Court of Appeals, Thlrd Circuit. February 17, 1904.) 

No. 33. 

1. CtrsTOMs Dtjties— Classification— Dress Goods— Embeoidebed Woolen 
Articles— Wearing Appakel. 

Held, that so-caUed wool "dress robes" or "dress patterns," consistlng 
of woœen's dress goods of wool, embroldered witb silk, Imported in single 
patterns in separate lengtbs and pièces, eacb pattern comprising the ma- 
terial for the body and trimming of a dress, are "dress goods," and are 
dutiable under the provision in paragraph 369, TarlfC Act July 24, 1897, 
c. 11, § 1, Schedule K, 30 Stat. 184 [U. S. Comp. St. 1901, p. 1667], for 
"women's * * * dress goods * * * composed wholly or In part 
of wool," which Is limited by tlie expression "uot specially provided for 
in this act," and not under paragraph 371 of said act, c. 11, § 1, Schedule 
K, 30 Stat. 185 [U. S. Comp. St. 1901, p. 1667], which provides, witbout 
such limitation, for "articles embroidered. * * * rnade of wool," nor 
under paragraph 370 of said act, c. 11, § 1, Schedule K, 30 Stat. 184 [U. 
S. Comp. St. 1901, p. 1C67], relating to "articles of wearing apparel of 
every description; • * * manufactured * * * in part, * • * 
composed wholly or In part of wool." 

Appeal from the Circuit Court of tlie United States for the Eastern 
District of Pennsylvania. 

For opinion below, see 123 Fed. 193. 

This appeal was brought by C. Wesley Thomas, Collector of Cus- 
toms at the port of Philadelphia, from an affirmance (123 Fed. 193), 
by the Circuit Court of two décisions of the Board of General Apprais- 
ers covering importations by John Wanamaker, and reversing the as- 
sessment of duty. 

Following is one of the opinions filed by the board, which fully cov- 
ers the issues in the case : 

De Vries, General Appraiser. This merehandise consists of wool robes or 
dress patterns. It was assessed for duty at the rate of 50 cents per pound 
and 60 per cent, ad valorem, under the provisions of paragraph 371. Tariff 
Act July 24, 1897, c. 11, § 1, Schedule K, 30 Stat. 185 [U. S. Comp. St. 1901, 
p. 1607], as "embrolderies" or "articles embroidered by hand or machinery, 
• • * made of wool, or of which wool is a component material." The pro- 
test claims as follows: "We claim that said goods should hâve been assessed 
at 44 cents per pound and 55 per cent, ad valorem under paragraph 308, 369, 
or 366, 30 Stat. pp. 184, 185 (U. S. Comp. St. 1901, pp. 1660, 1067) ; or at 11 
cents per square yard and 55 per cent, ad valorem under paragraph 369; 
or that the appraiser should hâve segregated the values of the plain dress 
goods and the embroidered pièces, and classifled the plain pièces of the dress 
goods at 44 cents per pound and 55 per cent., or at 11 cents per square yard 
and 55 per cent, ad valorem, under the provisions of above paragraphs ; and 
should bave classifled the embroidered pièces at the rate of 50 cents per pound 
and 60 per cent, ad valorem under paragraph 371, or at 60 per cent, ad valorem 
under paragraphs 390 and 339, 30 Stat. pp. 187, 181 (U. S. Comp. St. 1901, pp. 
1670, 1662), or 44 cents per pound and. 55 per cent, ad valorem under para- 
graphs 368, 369, or 366." The protest was submitted without the introduc- 
tion of any évidence in support thereof, and no appearance was made in be- 
half of the importera. The return of the collector recites, among other things : 
"I beg to State that the merehandise in question consists of women's dress 
goods in single patterns, each pattern comprising material for the body of the 
dress and material for trimming the same. In separate lengtbs or pièces. Ail 
of said material, both for the foundatlon or trimming, is embroidered in silk ; 
and the claim that only a portion of the material is embroidered, and should 



THOMAS V. WANAMAKER. 93 

be so assessed, Is wlthout foundatlon." In default of contradictory évidence 
the presumption of correctness attending the retum of the collector prevails. 
We assume for the purpose of décision, therefore, that that return is true. 
The Important fact vvhich it introduçes into this record as true is that the 
whole of the merchandise covered by this protest was embroidered, and that 
with silk. In the case of In re Crowley, 55 Fed. 283, 5 C. 0. A. 109, merchan- 
dise exactly simllar to this was the subject of décision. The paragraph Inter- 
preted by that décision was 398 of the tarife act of 1890 (Act Oct. 1, 1890, a 
1244, § 1, Schedule K, 26 Stat. 597). The gist of the décision was that woolen 
dress patterns embroidered with silk or silk and métal are not dutiable as 
woolen "embroideries," but were dutiable as woolen "dress goods," under para- 
graph 395 of said act (26 Stat. 597). Paragraph 371 of the tarifC act of 1897 
(Act July 24, 1897, c. 11, i 1, Schedule K, 30 Stat. 185 [U. S. Comp. St. 1901. p. 
1667]), is the one corresponding to paragraph 398 of the tarifiC act of 1890. The 
former was enacted sinee the décision cited was rendered, and difCers in im- 
portant particulars from said paragraph 398. Said paragraph 398, so far as 
pertinent, reads : "398. On webbings • * • and embroideries * * * made 
of wool * * * or of whlch wool is the component material, the duty shall 
be * • *." Said paragraph 371 reads as foUows : "371. Webbings, « * * 
embroideries and articles embroidered by hand or machinery, * * * made 
of wool or of which wool is a component material, * » » fifty cents per 
pound and sixty per centum ad valorem." It will be noted that Congress, in 
the act of 1897, bas added the words. "and articles embroidered by hand or 
machine." While it may be true that under the text of paragraph 398, the 
subject of said décision, there may be no escape from the conclusion that only 
woolen embroideries, or embroideries made in part of wool, are meant, and 
while It may be equally true that that meanlng attaches to the word "em- 
broideries" as used in paragraph 371, the addition of the words, "and arti- 
cles embroidered by hand or machinery," therein, présents the question wheth- 
er or not this language is intended to embrace a larger class of merchandise, 
to wit, woolen articles embroidered by whatsoever material the embroidery 
may be composed of, as well as woolen embroideries. Whatever our conclu- 
sion might be on that point, we think this case is concluded by the fact that 
the protestant invokes the application of paragraph 369 of the act of July 
24, 1897, c. 11, § 1, Schedule K, 30 Stat. 184 [U. S. Comp. St. 1901, p. 1667], 
as covering the merchandise in questiou. The language of that paragraph, in 
so far as pertinent, Is : "369. On women's and chlldren's dress goods * * * 
and goods of similar description or character * » * composed whoUy or 
in part of wool, and not speeially provided for In this act, the duty shall be," 
etc., "according to welght, value," etc., thereby asserting the claim that the 
merchandise is properly described as "women's and children's dress goods" 
and dutiable as such under said paragraph. In G. A. 4890 (T. D. 22,893) a 
precisely similar question arose. The issue there was whether or not cer- 
tain articles of wearing apparel were dutiable under said paragraph 371 as 
"articles embroidered by hand or machinery," or paragraph 370 of the tariff 
act of 1897, as "articles of wearing apparel of every description." This board 
held that the said provisions of said paragi-aph 370 were more spécifie than 
the said provisions of paragraph 371. In conformity with the board's décision 
In that case, we hold that the provisions of paragraph 369, relating to "wom- 
en's and children's dress goods," which are descriptive of the merchandise the 
subject of this protest, are more spécifie than the provisions of paragraph 371 
assessing duty upon "articles embroidered by hand or machinery." The con- 
joint provisions of the proviso to paragraph 339 and paragraph 390 of said act 
are a part of protestant's claim. Thèse provisions, however, when read to- 
gether, prescribe merely a minimum rate of duty upon such merchandise, which 
is much less in this case than that prescrlbed by paragraph 369, found appli- 
cable. The protest, therefore, claiming the merchandise properly dutiable 
under paragraph 369, according to the value and the weight thereof, is sus- 
talned. In ail other respects the protest is overruled, and the décision of the 
collector afflrmed. Reliquidation will follow. 

In support of the collector's appeal from the circuit court it was 
argued (i) that the merchandise is not known commercially as "dress 



9^ 129 FEDERAL EEPORTEB. 

goods," but as "dress robes," and is therefore not încluded within the 
enumeration of the former in said paragraph 369 ; (2) that it is dutiable 
under said paragraph 370 as "wearing apparel * * * made up 
* * * in part"; and (3) that, conceding the merchandise to be 
dress goods, within the meaning of paragraph 369, it is specially pro- 
vided for in said paragraph 371 as "articles embroidered," and is there- 
by removed from the former paragraph, which contains the quaHfying 
expression "not specially provided for," and which in this respect differs 
from paragraph 371, which contains no such limitation. 

James B. Holland and Wm. M. Stewart, for appellant. 
Frank P. Prichard and Thomas S. Gates, for appellee. 
Before ACHESON, DAI.LAS, and GRAY, Circuit Judges. 

DALLAS, Circuit Judge. Nothing need be added to the opinion of 
the Board of Appraisers. We think it adequately supports the décision 
made by the board, and the decree of the Circuit Court sustaining that 
décision is therefore affirmed. 



RUTLEDGE v. NEW ORLEANS & N. E. R. CO. 

(Circuit Court of Appeals, Fifth Circuit AprU 5, 1904.) 

No. 1,317. 

1. CAEEIERS— iNJUBIES TO PASSENGEBS— TiME TO ALIGHT. 

Where a train stopped for a passenger to aliglit, and when he was in 
the act of doing so, and wltliout allowing a reasonable time for that pur- 
pose, it was suddenly started with a jerk, whereby he was thrown from 
the car and injured, he was entltled to recover therefor. 

2. SAME— CONTBIBUTOKY NEGLIGENCE— EVIDENCE. 

In an action for injuries to a passenger while attemptlng to allght, there 
belng conflict in the évidence on the issue as to hls alleged contrlbutory 
négligence In stepping off the train wbile it was movlng, it présents a 
question for the jury. 

Pardee, Circuit Judge, dlssentlng. 

In Error to the Circuit Court of the United States for the Southern 
District of Mississippi. 

This action was brought In the state court by William Rutledge, a citizen 
of Mississippi, against the New Orléans & Northeastern Railroad Company, 
a Louisiana corporation, and was, on pétition of the défendant company, re- 
moved to the court below. PlaintlfC clalmed $25,000 damages, alleging that he 
was a passenger on one of the defendant's trains, having pald hls fare from 
Hattlesburg, Miss., to Elllsvllle, Miss., and that the train was scheduled to 
stop at Elllsvllle for passengers to get off, and that It dld stop, or coma prac- 
tlcally to a stop* and that plalntlff was alighting from the train, but that, while 
he was In the act of alighting, the train, by the négligence and carelessness of 
the défendant, through its servants, was suddenly jerked and moved forward, 
whereby the plalntlff was thrown down and under the train, and so Injured 
as to deprlve hlm of an arm and a leg, and cause him much suffering. De- 
fendant pleaded "Not guilty," and, for further plea, alleged that the In- 
juries complained of were brought about by the plalntiff's own négligence. 
There Is no conflict in the évidence that the plalntlff was Injured to the extent 

H 1. See Carriers, vol. 9, Cent. Dig. § 122& 



EXJTLEDGE V. NEW ORLEANS A N. E. R. CO. 95 

of losing his arm. When the car flrst stopped at the station, the plalntlff falled 
to get off. There Is confllct In the évidence as to whether hls fallure to alight 
was caused by the press of other passengers gettlng Into the train, and the 
crowd that was getting off, or whether he unnecessarily delayed alighting. 
The train left the station wlthout hls alighting, and the pivotai question in the 
case Is whether he got off the train while it was moving so as to make his act 
dangerous to hlm, or whether the cars were stopped for the purpose of lettlng 
him off, and started again with a sudden jerk at the Instant that he attempted 
to alight On that subject he testlfied as follows : "Q. And by the time you 
had passed through coach and got to platform, the train had started? A. Xes ; 
the train had started, and I couldn't get off. I wouldn't get off before the 
train stopped. Q. You wouldn't get off till the train stopped again? A. No, sir. 
Then the flagman or some one told me, 'Old man, get off,' and I told hlm I 
wouldn't get off till the train stopped ; and I thought It had stopped, and went 
to step off, and did step, but they gave a sudden jerk, and I fell. Q. Jerked 
what? The train? A. Yes, sir; just as I went to step off, they moved or 
jerked the train, and I fell down. * * * Q. And when It came to a stop 
again, you stepped off, and the train gave a jerk, and you fellî A. The train 
came to a stop, and as it came to a stop I stepped off, and, as I was stepping 
off, the train gave a sudden jerk, whlch threw me down." The plalntlff was 
corroborated by J. E. Sharbrough, who also got off the train at Ellisville. He 
testlfied that, "when we had gotten out and taken a few steps, the train started 
— pulled out— and then the train came to a llttle stop." Several other witnesses 
testlfied that the train did not stop a second time, and that the plalntlff got off 
while the train was moving. The trial court instructed the jury to return a 
verdict for the défendant, and it Is assigned that the court erred In direeting 
the verdict 

A. J. McLaurin, for plaintiff in error, 

Harry H. Hall, John W. Fewell, and Thomas G. Fewell, for défend- 
ant in error. 

Before FARDEE, McCORMICK, and SHELBY, Circuit Judges. 

SHELBY, Circuit Judge, after stating the case as above, delivered 
the opinion of the court. 

If the plaintifï jumped or stepped ofï the train while it was moving at 
such a rate as to make his act obviously dangerous, he was unques- 
tionably guilty of contributory négligence, and would not be entitled 
to recover. 2 Wood on Railroads (Minor's Ed. 1894) § 305 ; Watkins 
V. Birmingham, etc., Company, 120 Ala. 147, 24 South. 392, 43 L,. R. 
A. 297. But if it be true that the train was stopped to let him get off, 
and when he was in the act of getting off, and without being allowed 
a reasonable time for that purpose, it was suddenly started again with 
a jerk, whereby he was injured, he would be entitled to recover. Bar- 
tholomew v. New York Central Railroad Company, 102 N. Y. 716, 
7 N. E. 623 ; Jeffersonville Railroad Company v. Hendricks Adm'r, 26 
Ind. 228-233. We are of the opinion that the évidence in the record 
shows that the question of contributory négligence should hâve been 
submitted to the jury. Nelson v. New Orléans, etc., Railroad, 100 
Fed. 731, 40 C. C. A. 673, and cases there cited; Mexican Central Rail- 
road V. Townsend, 114 Fed. 737, 52 C. C. A. 369. 

The judgment is reversed, and the cause remanded for a new trial. 

FARDEE, Circuit Judge, dissents. 



96 129 FEDERAL KEPOllTEU. 



CHRISTENSBN ENGINEERING CO. v. WESïINGHOUSB AIR 
BRAKE CO. 

(Circuit Court of Appeals, Second Circuit February 13, 1904.) 

No. 64. 

1. CONTEMPT— PEOCEEDINGS FCB VIOLATION OF InTERLOCUTOBT INJTJNCTION— 

Rbview. 

Under the rule laid down by the Suprême Court In the case of In re 
Debs, 158 U. S. 564, 15 Sup. Ot. 900, 39 L. Ed. 1092, an order in an equity 
suit adjudgîng the défendant gullty of contempt for vlolating an inter- 
locutory injunctlon restraining infringement of a patent cannot be re- 
vlewed by the Circuit Court ot Appeals, except upon an appeal from the 
final decree in the cause. 

In Error to the Circuit Court of the United States for the South- 
ern District of New York. 
See 123 Fed. 632 ; 126 Fed. 764. 

Wm. A. Jenner, for plaintiff in error. 
Frédéric H. Betts, for défendant in error. 

Before WALLACE, TOWNSEND, and COXE, Circuit Judges. 

WAIvIvACE, Circuit Judge. This is a writ of error to review an 
order of the court below adjudging the défendant in an equity suit 
brought to restrain the infringement of a patent guihy of contempt 
for violating an interlocutory injunction restraining such infringe- 
ment. 

This court has decided that such an order cannot be re-examined 
hère, unless upon an appeal from a final decree in the cause. If it 
can be reviewed in the court in which it was made at the final hear- 
ing of the cause, it is not a "final décision," within the meaning of 
section 6 of the act conferring jurisdiction upon this court. We 
reviewed such an order in Gould v. Sessions, 67 Fed. 163, 14 C. C. 
A. 366, but that case was decided before the décision of the Su- 
prême Court in Re Debs, 158 U. S. 564, 573, 15 Sup. Ct. 900, 39 L. 
Ed. 1092. After the décision in Re Debs, the question arose again 
in Nassau Electric R. Co. v. Sprague Electric Co., 95 Fed. 415, 37 
C. C. A. 146, and we dismissed the writ of error with this observa- 
tion : "Upon the authority of the Debs Case, we are constrained 
to hold that the order cannot be reviewed, except upon an appeal 
from the final decree in the cause." In Cary Manufacturing Com- 
pany V. Acme Company, 108 Fed. 873, 48 C. C. A. 118, we reviewed 
on writ of error an order imposing a fine upon the défendant in an 
equity suit for the violation of an injunction. The injunction, how- 
ever, was not interlocutory, but was granted by the final decree. 
This circumstance was not referred to in the opinion, but explains 
the apparent confîict between the décision and that in Nassau Elec- 
tric R. Co. V. Sprague Electric Co. The order was final, in the sensé 
that it was a judgment in a criminal case, which was independent 
of and separate from the original suit, and which could not be re- 
viewed on an appeal from the final decree in that suit. Ex parte 
Kearney, 7 Wheat. 38, 5 E. Ed. 391 ; New Orléans v. Steamship 



CHRISTENSEN ENGINEERING CO. V. WESTINGHOUSE A. B. CO. 97 

Co., 20 Wall. 387, 392, 22 L. Ed. 354. In Butler v. Fayerweather, 
91 Fed. 458, 33 C. C. A. 625, 63 U. S. App. 120, the question wheth- 
er an order like the présent could be reviewed by this court was not 
involved. The order reviewed there was made in a cause to which 
the plaintiff in error was not a party, and committed him for his re- 
fusai to answer certain questions propounded to him as a witness ; 
and the décision was placed upon the ground that in such a case the 
aggrieved party "has no opportunity to be heard when the cause is 
before the court at final hearing, and as to him the proceeding is 
finally determined when the order is made." 

Whether the présent order can be re-examined at the final hearing 
of the cause, at which time ail previous interlocutory orders are open 
for review, is a question which we are not now called upon to dé- 
cide. Unless it can, there can, of course, be no review by an appeal 
from the final decree. In Worden v. Searls, 121 U. S. 14, 7 Sup. 
Ct. 814, 30 L. Ed. 853 — an equity cause to restrain the infringement 
of a patent — ^two orders fining the défendant for contempt for the 
violation of a preliminary injunction were reviewed and reversed up- 
on an appeal from the final decree. In that case, however, the court 
regarded the orders as only nominally proceedings in contempt. 

The hardship of compelling a party to wait until he can appeal 
from a final decree to obtain a review, especially in cases in which 
the défendant has been committed and is suffering imprisonment, is 
manifest, and we should be glad to be able to see our way clear to 
départ from our former décision. That décision, however, was con- 
strained by the décision in the Debs Case, and the Debs Case is an 
authority which cannot be disregarded. This was an equity cause in 
which some of the défendants were adjudged guilty of contempt for 
the violation of a preliminary injunction and sentenced to imprison- 
ment. Having been committed to jail, they applied to the Suprême 
Court for a writ of error, and also for one of habeas corpus. The 
court denied the writ of error, and it is stated by the reporter that it 
was denied "upon the ground that the order of the Circuit Court 
was not a final judgment or decree." When the apphcation was 
made, the act establishing Circuit Courts of Appeals (Act March 3, 
1891, c. 517, § 5, 26 Stat. 827 [U. S. Comp. St. 1901, p. 549]) author- 
ized the Suprême Court to review by writ of error convictions in 
cases of infamous crime; and if the déniai had been placed upon 
the ground that the case was not one of a conviction for an in- 
famous crime, and therefore was reviewable only upon a certificate 
of division of opinion, there would hâve been no conflict between 
the décision and that in New Orléans v. Steamship Co., 2 Wall. 387, 
22 L. Ed. 354, in which the court held that contempt of court is a 
criminal offense, and the imposition of a fine is a judgment in a crim- 
inal case. We are not at liberty to assume that the Suprême Court 
overlooked its former décision in New Orléans v. Steamship Ce, 
or that its reporter incorrectly reported the later décision. 

The writ of error is dismissed. 
129 F.— 7 



98 12» FEDERAL RBPORTEB. 

THE DUMPER NO. 8. 
(Circuit Court of Appeals, Second Circuit. January 25, 1904.) 

No. 54. 

1. Salvage— Natubb of Service bt Mastkr and Crew— Eitect of Towage 

conxeact bt owner. 

A contract by an owner of tugs to tow dumpers f rom their dumps in the 
clty to sea and return Imposed no obligation on the master and crew of 
one of the tugs to go to the rescue of a dumper which had been abandoned 
by another tug, and had drlf ted out to sea ; and where they did so, and 
at considérable péril to themselves reseued her, and brought her safely 
to port, the service was voluntary, and they are entitled to compensation 
as salvors. 

2. Same— Amount of Awaed. 

A salvage award of $1,175 to the master and crew of a tug, consisting 
of nine men, for the rescue of a dumper worth $8,000 to $10,000, which 
had become derellct, and drifted 25 miles out to sea in a gale, and would 
probably hâve been a total loss, heU not excessive, where the service was 
entirely successful, and was performed at considérable personal rlslî. 

Appeal from the District Court of the United States for the Eastern 
District of New York. 

This cause cornes hère upon appeal by claimants from a decree of 
the District Court for the Eastern District of New York awarding libel- 
ants salvage to the amount of $1,175. 

Le Roy S. Gove, for appellant. 
Peter S. Carter, for appellee. 

Before LACOMBE, TOWNSEND, and COXE, Circuit Judges. 

TOWNSEND, Circuit Judge. At about half past 10 o'clock on 
the morning of February 8, 1902, the master of the steam tug De Witt 
C. Ivins, having been notified by its owner, Michael Moran, that two 
of claimant's dumpers, which had been in tow of one of Moran's steam 
tugs, were adrift, and in danger, started to rescue them. On arriving 
at Sandy Hook he learned that they had last been seen about 1 1 o'clock. 
After proceeding in an east southeast course for some 25 miles he 
found the two dumpers abandoned by their tug, with no one on board, 
and drifting out to sea. The wind was blowing northwest, 50 or 60 
miles an hour, there was a heavy sea on, and it was freezing weather. 
Dumper No. 8, the one saved by libelants, was covered with ice four 
inches thick ail over her bow and sides. The mate of the Ivins volun- 
teered to go aboard said dumper, provided the tug could be put along 
side of her. The proposed undertaking involved risk to the tug of col- 
lision with the dumper, and risk of drowning to any one attempting to 
board the dumper. The risk was assumed, the undertaking was suc- 
cessfully accomplished, involving damage to the tug to the amount of 
$200, and the dumper was made fast and towed back to New York, 
reaching there the following morning at 7 o'clock. Another tug, the 
Ellis, also belonging to Moran, went down to look for the dumpers, and 

1[ 2. Salvage awards in fédéral courts, see note to The Lamingtou, 30 C. C. 
A. 280. 



THE DtTMPER NO. 8. 99 

found the other one, but her master testified that he was unable to get 
any one aboard of her, on account of the danger involved in rough sea 
and other conditions as stated above. The Ivins was worth $30,000; 
the dumper some $7,000 to $10,000. The owner of the Ivins having 
released the dumper and her owners from any claim of said tug for 
salvage, the court awarded salvage to the libelants as follows : To the 
captain of the vessel, $300; the mate, $200; the two deck hands, $100 
each; the two engineers, $100 each; the two firemen, $100 c ch; the 
steward, $75 — a total of$i,i75. 

There is no question as to the existence of two of the éléments neces- 
sary to constitute a valid salvage claim, namely, a marine péril and suc- 
cess. The claimants rest their appeal on the contention that thèse serv- 
ices were not voluntary, but were included under the contract between 
the claimants and Moran. This contract provided that Moran should 
tow the dumpers from the différent dumps around New York and 
Brooklyn to sea, and return them to the différent dumps, or to the foot 
of Court Street if they needed repairs, for a stated price. Counsel for 
claimants insists that thèse libelants were not volunteers because they 
were only occupied in the usual service for which they were employed 
and paid. There is nothing in the contract to support this contention. 
It was a mère contract of towage. The évidence fails to show any 
obligation resting on Moran, or on the crews of bis tugs, to undertake 
to save a dumper when derelict. When the Ivins reached the dumper, 
under conditions already shown, the sole question was one of a vol- 
untary service on the part of the master and crew. They were under 
no obligation to risk their lives and the safety of the tug in an attempt 
to rescue the dumper. The mate volunteered, the master acquiesced, 
and ail voluntarily participated in the danger incident to the marine 
péril. The rule invoked by counsel for claimants that a master and 
crew thus employed are not volunteers is generally confined to those 
aboard the ship in péril. 3 Parsons, Contracts, 317, and cases noted. 
There it is generally held that the services must be considered as ren- 
dered under contract, because it would be unwise to tempt the sailors 
to let the ship incur périls, and afterwards aliow them compensation 
in the nature of a reward for success in averting such périls. The 
Clara and Clarita, 23 Wall. 1-16, 23 L. Ed. 146. Mr. Justice CHfford 
says: 

"A salvor Is deflned to be a person who, without any particular relation to 
the ship in distress, profîers useful service, and glves it as a volunteer ad- 
venturer, without any pre-existing contract that connected him wlth the duty 
of employlng himself for the préservation of the vessel." Page 16. 

The test as to whether services are voluntarily rendered is whether 
such services are rendered by those who are under no légal obligation 
to render them. Hughes, Admiralty, 129. 

In The Connemara, 108 U. S. 352, 2 Sup. Ct. 754, 27 L. Ed. 75 1, a 
tug was employed to tow a ship, and both came to anchor at night. 
A lire broke out in the night, and the ofScers and crew of the tug 
âssisted in extinguishing the fiâmes, and were âwarded salvage there- 
for. The Suprême Court held that the contract of the towboat and of 
her crew was to tow the ship, and that for such other services as res- 
cued the ship from an unforeseen and extraordinary péril the owner, 



lOO 120 FEDERAL REPORTER. 

ofFicers, and crew of the tug boat were entitled to salvage. We :on- 
clude that the services rendered were the proper subject of a salvage 
award. 

It is further contended that the avi'ard is excessive. Whether the 
amount was determined upon a valuation of the dumper at $8,000 or 
$10,000 is immaterial. The évidence shows that the other dumper 
was never found ; that this one was derelict, and drifting out to sea, 
and would probably hâve been a total loss except for the efforts of 
thèse salvors. We think the award was reasonable. 

The decree of the District Court is affirmed, with interest and costs. 



SAWTER T. ATCHISON, T. & S. F. R. CO. et al. 
(Circuit Court o£ Appeals, Second Circuit. February 25, 1904.) 

No. 29. 

1. RAILKOADS — PEOPIKTY— TeANSFEK— BONDHOLDERS — EQUITT — ReMEDT AT 

Law. 

Where tlie property of a rallroad company was acquired by another 
railroad company under foreclosure proceedings which were void as against 
a holder of bonds guarantied by tlie mortgagor company, such bondholder 
was not entitled to sue the purchasing company in equity to apply the 
assets so transferred to the payment of his bonds, until he had exhaustod 
bis légal remédies against the mortgagor. 

2. Sameï— Recoveby of Bonds — Actions— Joindeb. 

Where a holder of bonds guarantied by a railroad company deposited 
them with a trust company for spécifie uses, and thereafter such company 
wrongfully refused to deliver the bonds on demand, the owner could not 
join an action to reeover them with a suit against another corporation, 
which had acquired the assets of the guarantor company under void fore- 
closure proceedings, to apply such assets in payment of the bonds ; such 
company being in no way responsible for the trust company's withhold- 
ing of the bonds. 

3. Same— Damages— Pkoof. 

Where railroad bonds were deposited for spécifie uses with a trust 
company, whlch afterwards wrongfully refused to return the same on 
demand, the fact that, because the bonds were not dealt In on the ex- 
changes, and were obligations of a corporation which had become prac- 
tically defunet, it was rendered difficult to establish their value, did not 
justify plaintiff in resorting to a court of equity to reeover the same. 

Appeal from the Circuit Court of the United States for the South- 
ern District of New York. 

For opinion below, see 1 19 Fed. 252. 

John Ford, for appellant. 

Alfred Opdyke, for appellee Atchison, T. & S. F. R. Co. 

A. H. Van Brunt, for appellee Central Trust Co. 

Before WALLACE and COXE, Circuit Judges. 

WALLACE, Circuit Judge. _ The material facts set forth in the 
very voluminous bill of complaint in this cause, and the prayers for 
relief, are concisely and adequately summarized in the opinion of the 
court below, and any recapitulation is unnecessary. The propositions 



SAWYER V. ATCHI80N, T. & S. F. R. CO. 101 

of law which control the case are so plain as to require no amplification 
or citation of authority. 

An analysis of the bill shows that the complainant is a creditor of 
the Atchison, Topeka & Santa Fé Railroad Company, by reason of the 
guaranty by that company of the payment of 20 negotiable bonds 
made by the Colorado Midland Railroad Company, the guaranty being 
indorsed upon the bonds; that thèse bonds are in the possession of 
the Central Trust Company, having been placed there by the complain- 
ant for certain spécifie uses, and the trust company wrongfully re- 
tains them and refuses to return them to complainant; and that the 
Colorado Midland Railroad Company and the Atchison, Topeka & 
Santé Fé Railroad Company hâve denuded themselves of ail their 
property, and the same has been acquired by the Atchison, Topeka & 
Santa Fé Railway Company by proceedings which, as against the 
complainant, were a nullity. 

After recovering a judgment against the railroad company, and 
upon the return of his exécution unsatisfied, the complainant will be 
in a position to pursue the property in the hands of the Atchison, 
Topeka & Santa Fé Railway Company, which was formerly the prop- 
erty of the railroad company ; but it has no équitable cause of action 
against the railway company until thèse remédies hâve been exhausted. 
His cause of action is purely a légal one as against the défendants 
the trust company and the railroad company, and he has as yet no 
équitable cause of action against the défendant the railway company. 
His remedy against the trust company is by an action at law in trover 
or replevin, and his remedy against the railroad company is by an ac- 
tion at law upon the guaranty. No action can be maintained against 
the trust company and the railroad company jointly, because the 
latter has taken no part in the conversion of the complainant's bonds, 
and the former is not a party to the guaranty. The fact that it may 
be difficult to prove the value of his bonds or of the guaranty in an 
action against the trust company does not supply a reason for resort- 
ing to a court of equity to recover of the trust company. It is always 
difficult to establish the value of the obligations of an extensive corpora- 
tion which has become practically defunct, because they are not dealt 
in on the exchanges ; but it can be established, and not infrequently is, 
in actions where the question is in controversy. 

The court below properly held that the demurrers of the trust com- 
pany and the railway company upon the grounds of want of equity 
and multifariousness were well taken, and the decree is 

Affirmed, with costs. 



102 129 FEDEEAL HEl^ORTER. 

STAR BRASS WORKS v. GENERAL ELECTRIC CO. 

(Circuit Court o( Appeals, Sixtli Circuit April 2, 1904) 

No. 1,317. 

1. Appeal— Inteklocxjtoet Decbee. Granting Injukction— Advancement of 
Cause. 

A decree on the merits, flndlng Infringement of a patent, awarding a 
permanent injunction, and directing a référence to ascertain damages 
and profits, is an interlocutory decree granting an injunction, appealable 
under section 7 of tlie act creating the Circuit Courts of Appeals (Act 
March 3, 1891, c. 517, 26 Stat. 828), as amended by Act June 6, 1900, c. 
803, 31 Stat. 660 [U. S. Comp. St. 1901, p. 550], and the appeal Is entitled 
to precedence, as provided in said section, and to be advanced on the cal- 
endar for hearing, subject, however, to the rules of the court as to the 
filing of briefs, unless for reasons of exigency shown a spécial order is 
made for an earlier hearingi 

On Motion to Advance Cause. 
See 109 Fed. 950. 

Fred L. Chappell, for appellant. 

Betts, Betts, Sheffield & Betts and Joseph Wilby, for appellee. 

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. 

LURTON, Circuit Judge. This is an appeal from a decree upon the 
merits, finding infringement, awarding a permanent injunction, and 
directing a référence to ascertain damages and profits. It cornes on 
now to be heard upon the motion of the appellant to advance the cause 
under section 7 of the Court of Appeals act (Act March 3, 1891, c. 517, 

26 Stat. 828) as amended June 6, 1900 (31 Stat. 660, c. 803 [U. S. Comp. 
St. 1901, p. 550]). That section, as amended, reads as follows: 

"Sec. 7. That where, upon a hearing in equity in a District Court or in a 
Circuit Court, or by a judge thereof in vacation, an injunction shall be grant- 
ed or continued or a receiver appointed, by an interlocutory order or decree, 
in a cause in which an appeal from a final decree may be taken uiider the 
provisions of this act to the Circuit Court of Appeals, an appeal may be taken 
from such interlocutory order or decree granting or continulng such Injunc- 
tion or appolntlng such receiver to the Circuit Court of Appeals : Provided, 
that the appeal must be taken vrlthin thirty days from the entry of such order 
or decree, and it shall take precedence In the appellate court ; and the proceed- 
ings in other respects in the court below shall not be stayed, unless othervrise 
ordered by that court, or by the appellate court or a judge thereof, during the 
pendency of such appeal : Provided further, That the court below may in Its 
discrétion require as a condition of the appeal an additional bond." 

Although the injunction order appealed from is not a preliminary 
injunction intended to opéra te only imtil a hearing upon the merits, 
it vvas nevertheless an "interlocutory decree," inasmuch as the decree 
was not final in an appealable sensé. This appeal was taken within 
30 days. The cause is therefore one which is entitled to take "pre- 
cedence" upon the calendar of this court. But this does not mean that 

1[1. Review of interlocutory decr^'es granting or continulng injunctions in 
patent cases by Circuit Court of Appeals, see notes to Consolidated Piedmont 
Cable Co. v. Pacific Cable Ry. Co., 3 C. C. A. 572 ; Southern Pac. Co. v. Earl, 

27 C. C. A. 189 ; New York, N. H. & H. R. Co. v. Sayles, 32 C. C. A. 484. 



THE ANSON M. BANGS. 103 

the ruies of the court with référence to the filing of briefs are to be 
ignored. Precedence is given by advancing the cause upon the calen- 
dar over other cases not advanced, so that it may be called when ripe 
for hearing under the rules, or earher if counsel shall choose to expedite 
the préparation of the cause, or upon a spécial order made by the court 
for spécial reasons of exigency made to appear. 

The motion to give this cause precedence is allowed,' and it will be 
set down for hearing as soon as the briefs are due under the rules, 
or so soon as the record shall be printed and the briefs filed, if counsel 
shall by diligence file same before due. 



THE ANSON M. BANGS. 

(Circuit Court of Appeals, Second Circuit March 2, 1904.) 

No. 125. 

1. Collision— Steam Tug and Schoonee. 

A tug held solely in fault for a collision with a sehooner on a crosslng 
course for persisting in her course, on the theory that the sehooner would 
not run out her tack whieh she was privileged to do, with the duty rest- 
ing on the tug to keep out of her way. 

2. Same— Damages— Evidence. 

Hearsay testimony introduced on a hearing before a commissioner to 
détermine the damages caused by collision must be treated as of no pro- 
bative force, although not objected to until the flling of exceptions to the 
commissioner's report, and wUl not warrant a flnding not supported by 
other évidence. 

Appeal from the District Court of the United States for the Eastern 
District of New York. 

Le Roy S. Gove, for appellant. 
Chas. C. Burlingham, for appellee. 

Before WALLACE and COXE, Circuit Judges. 

WAELACE, Circuit Judge. The concise opinion of Judge Thom- 
as in the court hélow covers the facts and the law of the case as 
regards the responsibility of the tug for the collision so adéquate-. 
ly that little further need be said. We hâve carefully examined the 
record and concur in his conclusions. It will not be useful to dis- 
cuss the évidence. The primary fault which led to the collision 
was the persistency of the tug in keeping her course along the 
westward side of the channel upon the theory that the sehooner 
would not run out her starboard tack, when a slight change of her 
course to port at the time she made a slight change of her course 
to starboard would hâve carried her astern Of the sehooner. The 
sehooner was privileged to run out her tack, and it was her duty in 
doing so not to change her course unless required by the exigencies 
contemplated by the twenty-fourth rule of navigation, and it was obli- 
gatory upon the tug as a steam vessel to keep out of the schooner's 

H 2. See Admiralty, vol. 1, Cent. Dig. § 618. 



104 129 FEDEEAL REPORTEE. 

way. Although the schooner held her course for a short time after it 
was apparent that she would strike the tug's hawser or scow unless the 
tug made a décisive change of course, that conduct is not to be deemed 
a fault It was her duty to hold her course until it was plain that 
the tug could not so maneuver as to avert the péril. The absence of 
a lookout on the schooner, or one who was attending to his duty, did 
not contribute in the least to the coUision, as the collision took place 
in thé daylight, and the master of the schooner, who was in charge of 
her navigation, was himself keeping a lookout, was otherwise unoccu- 
pied, and observed the tug vigilantly for the half or quarter of an hour 
which intervened before the risk of collision and actual collision. 

We must assume, from the assignments of error and argument at 
the bar, that the appellants seriously care to contest the award of dam- 
ages. Eliminating the hearsay testimony which was introduced by the 
libelants before the commissioner, the amount of the loss was not suf- 
ficiently established, and, although no objection was taken to this testi- 
mony until exceptions were filed to the report of the commissioner, it 
must be treated as of no probative force. 

The decree will be reversed, without costs in this court, and with in- 
structions to the District Court to ascertain the amount of damages, 
and decree for the libelants, with costs of that court. 



LOPEZ V. COLLIER. 

(Olrcuît Court of Appeals, Fifth Circuit April 5, 1904.) 

No. 1,331. 

1. Appeal — FiNDiNGS OF Teial Cotjbt— Conflicting Evidence— Eeview. 

A flnding of fact by the trial court based on conflicting évidence wlll 
not be reversed on appeal where it is not clearly erroneous. 

Appeal from the District Court of the United States for the Southern 
District of Florida. 

J. M. Phipps and George G. Brooks, for appellant. 

G. Bowne Patterson and Joseph Paxton Blair, for appellee. 

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges. 

PER CURIAM. This is a suit for a balance due for work doue 
upon a naphtha launch belonging to Lopez, défendant in the court be- 
low, and appellant hère, and for materials furnished in the course of 
the work. The total alleged cost of the material, work, etc., was $1,693. 
Payments on account and crédits amounted to $803. The balance 
claimed was $889.61. The défendant claims that it was agreed and 
understood that the work was not to cost more than $1,000; that it was 
not good work; that the payments made, added to the amounts paid 
eut, subséquent to the return of the boat by Collier, to hâve work donc 
which should bave been done by Collier, leave nothing due to libelant. 
There was a decree in favor of the libelant for $604.67, from which this 
appeal is taken. 



BULLOCK ELEC. <fe MFG. CO. V. WESTINGHOUSE ELEC. & MFG. CO. 10") 

The case présents simple questions of fact. The évidence is con- 
flicting. Several witnesses testified for libelant, and proved up his 
case. They were contradicted by several witnesses produced by défend- 
ant to prove up his case. The testimony was ail taken in présence of 
the trial judge, who thus had an opportunity to see the witnesses and 
observe their demeanor while testifying ; and, on the évidence, we are 
not able to say that he reached an erroneous conclusion. 

The decree appealed from is afHrmed. 



BULLOCK ELECTRIC & MFG. 00. v. WESTINGHOUSB ELEC- 
TRIC & MFG. CO. 

(Circuit Court of Appeals, Sixth Circuit March 8, 1904.) 

No. 1,242. 

1. CoNTEMPT— Violation ofInjunction— Nature of Peoceedings to Ptjnish. 

The willful violation of an injunction by a party to the cause is a con- 
tempt of court, which constitutes a criminal misdemeanor, and the pro- 
ceeding to punlsh therefor is in Its nature a criminal proeeeding, entirely 
indépendant and distinct from the suit In whlch the injunction decree 
was entered, and a judgment of conviction therein Is revlewable by writ 
of error, and not by appeal. 

2. SaME— REVIEW— JUEISDICTION OF CiBCUIT COUET OF APPEALS. 

A judgment of a Circuit Court imposing a fine on a party for contempt 
for the violation of an Injunction is a judgment in a criminal case, and 
If unconditlonal and absolute, so that nothing remains but to exécute it, 
Is final and revlewable by the Circuit Court of Appeals on a writ of error. 

3. CONTRIBUTOET INFRINGEMBNT. 

The making and selling of a single élément of a patented combinatlon, 
wlth the purpose and expectation that such élément should be sent to 
a foreign country and be there used in combinatlon with other éléments, 
or in the practice of a method covered by the patent, is not contributory 
infrlngement, Inasmuch as there was no Intent that the élément should 
be put to an infrlnging use; the protection of the patent not exfendlng 
beyond the limlts of the United States. 

4. Patents— Injunction against Infkingement— Acts Constittiting In- 

fringement. 

A preliminary injunction was granted restrainlng the défendant In an 
infrlngement suit from "the making, using, or selling of any apparatus 
embodying the Inventions recited or specifled" in the clalms of three pat- 
ents. The first two covered combinatlons of mechanical éléments, one 
élément in each being a motor which operated by the method of the third 
patent, çpvering such method alone. Pending the suit défendant made 
and shlpped to a customer in Canada the motor of the patent, with the 
expectation and intent that it would be there used in the devices of the 
combinatlon clalms of the first two patents and in the practice of the 
method of the third patent. Held, that défendant was not chargeable 
with infrlngement nor guilty of a violation of the injunction, slnce (1) the 
making or selling of a single élément of a combinatlon Is not an infrlnge- 
ment of a patent covering the combinatlon, but not the éléments sepa- 
rately ; (2) the making or selling of a machine adapted to practice the 
method of the third patent was not an Infrlngement of such patent ; and 
(3) the use of the patented combinatlons, or the practice of the patented 
method, in Canada, was not an Infrlngement of the United States patents, 
and consequently défendant was not chargeable wlth contributory in- 
frlngement 



106 129 FEDERAL REPORTEE. 

In Error to the Circuit Court of the United States for the Southern 
District of Ohio. 

The Westlnghousé Electric & Manufàcturlng Company fllea an original Mil 
agalnst the Bullock Electric & Manufàcturlng Company to restrain the In- 
fringement of certain letters patent granted to NIkola Tesla, belng patents 
Nos. 381,968, 382,279, and 382,280. Upon the pleadlngs and upon certain affl- 
davlts the court below, upon motion and notice, granted an injunction pendente 
lite, restraining the défendant, its offlcers, agents, and servants, "from in- 
frlnging upon claims 1 and 3 of patent 381,968, clalms 1, 2, and 3 of patent 

382.279, and the clalm of patent 382,280, or any of them." The Injunction as 
actually issued and served commanded the défendants to "deslst from making, 
uslng, or selling àny apparatus embodying the inventions recited or specifled 
In claims 1 and 3 of patent 381,968, claims 1, 2, and 3 of patent 382,279, and 
the claim of patent 382,280, or any of them, or in any manner infringing upon 
the rights of the complainant thereûndér." Subséquent to the service of this 
injunction the défendant made and shipped a certain motor to Canada to be 
there used as an élément in the combinatlons covered by the claims involved 
of patents Nos. 381,968 and 382,279, and in the method claim of patent No. 

382.280. Upon a motion supported by affldavits, and upon the admission of 
couasel representing the défendant that the motor complalned of had been 
made and shipped to Canada to be there used in the devices of the patent, and 
that it was installed and so used, the court adjùdged that the claims of the 
patents involved had been thereby infringed and the preliminary injunction 
violated, and that the défendants were in contempt, and ordered to pay a fine 
of $500. A bill of exceptions was allowed, and this writ of error sued out to 
reverse this judgment 

Arthur Stem, George Heidman, and Clarence E. Mehlhope, for plain- 
tiff in error. 

Frédéric H. Betts, Thomas B. Kerr, and C. Hammond Avery, for 
défendant in error. 

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges. 

LURTON, Circuit Judge, after making the foregoing statement of 
the case, delivered the opinion of the court. 

I. The willful violation of an injunction by a party to the cause 
is a contempt of court constituting a spécifie criminal offense. Ex parte 
Kearney, 7 Wheat. 38, 42, 5 L. Ed. 391 ; Crosby Case, 3 Wilson, 188; 
Nevir Orléans v. Steamship Co., 20 Wall. 387, 392, 22 L. Ed. 354; 
Hayes v. Fischer, 102 U. S. 121, 26 h- Ed. 95; 4 Ency. PI. & Pr. 766 
et seq. 

It is immaterial to consider the distinction sometimes noticed be- 
tween criminal and civil contempts, inasmuch as both kinds involve the 
vindication of the authority of the court, whether the remedy inci- 
deiitally inure to the benefit of a party or not. Cyclo. Law & Proc. 6 
et seq. 

The proceeding to punish for a contempt is in its nature a criminal 
proceeding, whether the resuit be partially remediable or not, and the 
same rules prevail which govern in the trial of indictments, the de- 
fendant being entitled to the benefit of any reasonable doubt. Ac- 
cumulator Co. v. Consolidated Electric Co. (C. C.) 53 Fed. 793 ; In re 
Acker (C. C.) 66 Fed. 291 ; Harwell v. State, 10 Lea, 544; 4 Ency. PI. 
& Pr. 768 et seq. ; U. S. v. José (C. C.) 63 Fed. 951. 

Although the contempt consist in the violation of an injunction 
granted by a court of equity, the proceeding for its punishment "is 
a new and distinct proceeding, and is quite independent of the equities 



BULLOCK ELEC. & MFG. CO. V. WESTmaHOTTSE ELEC. & MFG. CO. 107 

of the case on which the decree is founded," and "an appeal is not an 
appropriate remedy for obtaining a review." City of Frankfort v. 
Deposit Bank of Frankfort (decided at February session of this court) 
127 Fed. 812 ; New Orléans v. Steamship Ce, 20 Wall. 387, 392, 22 
L. Ed. 354 ; In re Chetwood, 165 U. S. 443, 17 Sup. Ct. 385, 41 L. Ed. 
782. 

Is it reviewable by a writ of error ? A contempt proceeding is classi- 
fied as a misdemeanor and not as a felony. In re Acker (C. C.) 66 Fed. 
291. Misdemeanors are reviewable by this court upon writ of error 
by virtue of the broad appellate powers conferred by the act of March 
3, 1891, c. 517, 26 Stat. 826 [U. S. Comp. St. 1901, p. 547], estabhshing 
Circuit Courts of Appeal, and defining and regulating the appellate 
powers of United States courts. If, therefore, the imposition of the 
fine complained of "was a judgment in a criminal case" as it is de- 
fined to be in New Orléans v. Steamship Co., 20 Wall. 387, 392, 22 
L. Ed. 354, it was a judgment in a misdemeanor case; for contempts 
are universally classified as misdemeanors, and not félonies. In re 
Acker (C. C.) 66 Fed. 291. If a judgment in a misdemeanor case, 
it is reviewable upon writ of error by this court. This conclusion was 
reached by the Circuit Court of Appeals for the Second Circuit in 
Gould V. Sessions, 67 Fed. 163, 14 C. C. A. 366. But in Nassau Elec- 
tric R. Co. V. Sprague Electric Co., 95 Fed. 415, 37 C. C. A. 146, and 
Christensen Engineering Co. v. Westinghouse Air-Brake Company 
(decided Feb. 15, 1904) 129 Fed. 96, writs of error were dismissed 
upon the authority of In re E)ebs, 158 U. S. 564, 573, 15 Sup. Ct. 
900, 39 E. Ed. 1092. 

In the statement of the Debs Case, at page 573, 158 U. S., and page 
903, 15 Sup. Ct., 39 L. Ed. 1092, it is stated that the défendants in that 
case had "applied to this court for a writ of error, and also one of 
habeas corpus. The former was denied, on the ground that the order 
of the Circuit Court was not a final judgment or decree." The only re- 
port of the décision on the writ of error is found in 159 U. S. 251, 15 
Sup. Ct. 1039, where the statement is, "Pétition denied." 

The Suprême Court had no jurisdiction in respect of writs of error 
in misdemeanor cases, and the writ of error upon this ground was 
necessarily denied. The reporter's statement that it was denied be- 
cause the order "was not a final judgment or decree" is doubtless an 
error. Certainly we do not feel justified in departing from the well- 
settled doctrine, so often enunciated in former cases, in respect of the 
distinctness of a judgment imposing a fine for a contempt from the case 
in which the disobeyed order was made, upon so slender an authority. 
If the judgment, as in this case, was in fact unconditional and- absolute, 
so that nothing remained but to exécute it, it was in every sensé a final 
judgment. 

The claim that a défendant in such circumstances must await the 
final resuit of the cause in which the injunction was granted before he 
can have the judgment inflicting fine or imprisonment reviewed upon 
the theory that the judgment is not final is absolutely unsupportable. 
If it be an independent and distinct proceeding from the residue of 
the case, it will be no more final after that case has reached a final de- 
cree than when the fine was imposed. To say that he may pay his fine 



108 120 FEDERAL REPORTER. 

or endure his imprisonment and review the legality of the matter at 
some indefinite time in the future is to deny, in effect, the right of 
review at ail. The motion to dismiss the writ is denied. 

Was the défendant, on the conceded facts of the case, guilty of con- 
terhpt as matter of law? Upon this writ of error no question as to 
whether the injunction was rightly or wrongly, providently or im- 
providently, issued can arise. The court confessedly had jurisdiction 
of the parties and of the subject-matter, and the bill of exceptions re- 
cites that the temporary injunction was issued upon bilI, answer, ex- 
hibit, affidayits, "and upon the agreement of the défendant." 

Neither is the resuit to turn upon any question of conflicting fact, 
for it is not the province of a reviewing tribunal to weigh the facts 
upon a writ of error. 

The claims which défendant was enjoined from infringing were 
the first and third of patent No. 381,968, granted to Nikola Tesla, 
May I, 1888, and read as follows: 

(1) "Tbe combination, with a motor containing separate or independent cir- 
cuits on the armature or field magnat, or both, of an alternating current gen- 
erator containing Induced circuits eonnected independently to corresponding 
circuits in the motor, whereby a rotation of the generator produces a pro- 
gressive shifting of the pôles of the motor, as herein described." 

(8) "The combination with a motor having an annular or rlng-shaped fleld 
magnat and a cyllndrical or équivalent armature, and independent eoils on the 
field magnet or armature, or both, of an alternating current generator hav- 
ing correspondingly independent coils and circuits including the generator coils 
and corresponding motor coils, in such manner that the rotation of the gene- 
rator causes a progressive shifting of the pôles of the motor in the manner 
set forth." 

The first, second, and third claims of patent No. 382,279, granted 
May i, 1888, to Nikola Tesla, and are in thèse words: 

(1) "The combination, with a motor containing independent induclng or en- 
ergizing circuits and closed induced circuits, of an alternating current gene- 
rator having indiiCed or generating circuits, corresponding to and eonnected 
with the energizing circuits of the motor, as set forth." 

(2) "An electro-magnet motor having its field magnets wound with indé- 
pendant coils and its armature with independent closed coils, in combination 
with a source of alternating currents eonnected to the fleld coils, in combina- 
tion with a source of alternating currents eonnected to the field coils and capa- 
ble of progressively shifting the pôles of the flold magnet, as set forth. 

(3) "A motor construeted with an annular field magnat wound with inde- 
pendent coils and a cyllndrical or disk armature wound with closed colis, in 
combination with a source of alternating currents eonnected with the fleld 
magnet coils, and actlng to progressively shift or rotate the pôles of the field 
as herein sat forth." 

And the single claim of patent No. 382,280, granted May i, 1888, 
to the sanie patentée, which reads as follows : 

"The method herein described of electrically transmltting power, which con- 
sists in producing a continuously progressive shifting of the polaritles oC 
either or both éléments (the armature or field magnet or magnets) of a motor 
by developing alternating. currents In independent circuits, including the mag- 
netizing eoils of either or both éléments, as herein set forth." 

Confessedly the five claims of the first two patents are combination 
claims. The single claim of the third patent is not a mechanical 
claim, but a claim for a method of electrically transmitting power. A 



BULLOCK ELEC. & MFG. CO. V. WESTINGHOTJSE ELEC. & MFG. CO. 109 

inotor constructed according to the spécifications of the patent is one 
of the éléments in each of the combination claims, and the évidence 
tended to show that such a motor must operate by the method of the 
third patent. 

The plaintifï in error was adjudged to be in contempt because, 
pending the injnnction, it made and shipped to a customer in Canada 
the motor of the patent, with the expectation and intent that it would 
be there used in the devices of the combination claims and in the 
practice of the method of transmitting electrical power protected by 
the cîaim of the method patent. Was this, as matter of law, a con- 
tempt of the authority of the court? 

The injunction forbid "the. making, using, or selling of any ap- 
paratus embodying the inventions recited or specified" in the claims 
of the three patents heretofore set out. The monopoly of a patent 
extends to the making or selling, as well as the using, of the patented 
device within the United States. Adams v. Burks, 17 Wall. 453, 456, 
21 L. Ed. 700; Heaton-Peninsular Button Fastener Co. v. Eurêka 
Specialty Co., 77 Fed. 288, 291, 25 C. C. A. 267, 35 L. R. A. 728; 
Dorsey Rake Co. v. Bradley M. Co., 12 Blatchf. 202, Fed. Cas. No. 

4,015- 

While it is true that the monopoly of the plaintiff's patents did not 
extend beyond the limita of the United States, yet it would be no 
défense to say tlu.t the patented article had been made in the United 
States only for the purpose of being sold and used in a country to 
which the protection of the laws of the United States did not extend. 
The patentée is entitled to monopolize the making of his device in 
the United States as well as a monopoly of there selling or using it. 
Dorsey Harvester Co. v. Bradley Co., 12 Blatchf. 202, Fed. Cas. No. 
4,015; Ketchum Harvester Co. v. Johnson Co. (C. C.) 8 Fed. 586; 
Adrian Platt Co. v. McCormack Co. (C. C.) 55 Fed. 288. Gould v. 
Sessions, 67 Fed. 163, 14 C. C. A. 366, is not in conflict, for in that 
case the only question concerned the alleged violation of an injunc- 
tion against the future making, selling, or using of the patented article. 

The articles sold in supposed violation of the temporary injunction 
had been made before the injunction was granted, and pending the 
injunction were shipped to Canada and there sold. There had been, 
iherefore, no violation of the injunction, because there had been no 
making or selling or using of the patented device after the allowance 
of the injunction, within the limits of the United States. But it is 
elementary that neither the making, selling, nor using of one élément 
of a combination is infringement. Prouty v. Ruggles, 16 Pet. 336, 
10 L. Ed. 985; The Corn Planter Patent, 23 Wall. 181, 224, 23 L. 
Ed. 161; Rowell v. Lindsay, 113 U. S. 97, ici, 5 Sup. Ct. 507, 28 
h. Ed. 906. In the corn planter patent Mr. Justice Bradley said: 

"Where a patentée, after describlng a machine, claims as his invention a 
certain combination of éléments, or a certain device, or part of the machine, 
this is an implied déclaration as eonclnsive, so far as that patent Is concerned, 
as if it vs'ere expressed that the spécifie combination or thing clalmed Is the 
only part which the patentée regards as new. True, he or some other person 
may hâve a distinct patent for the portions not covered by this ; but that vrill 
speak for Itself. So far as the patent in question is concerned, the remaining 
parts are old or common and public." 



110 129 FEDERAL EBPOKTER. 

In Rowell v. Lindsay, Mr. Justice Wood said : 

"The patent of the plaintiffs is for a combinatlon only. None of the separate 
éléments of wliich tiie patent is composée! are clairaed as the invention of the 
patentée; therefore none of them, standing alone, are ineluded in the mo- 
nopoly of the patent." 

_It mtist follow, therefore, that, uniess there be something to take 
this case out of the gênerai ruie, the making or selUng or using of a 
single élément of a combination patent does not per se constitute an 
infringement of a combination claim. Neither can it be said, in a 
légal sensé, that any one élément of a combination patent is an "ap- 
paratus embodying the invention," within the meaning of the injunc- 
tion which the défendant is supposed to hâve disobeyed. 

It may be true, as claimed, that the Tesla motor constitutes the 
real essence of the three Tesla inventions covered by the claims of 
the patents in suit. Tesla, however, neglected to claim the motor 
as a separable device. He deliberately elected to claim it only as he 
claimed the other éléments of his combination claims, and thereby 
abandoned any claim to its novelty or to a monopoly of its use, ex- 
cept as a part of one or other of his combination claims. The method 
claim is not for any apparatus at ail. The mère fact that the Bullock 
Company made and sold such a motor does not per se constitute an 
infringement of such a method claim. We are not now dealing with 
the question of contributory infringement for that will be considered 
later. What we décide is that the mère fact that one has made and 
sold an apparatus adapted to be used in following the methods of 
Tesla's method claim does not constitute infringement. He is not 
entitled to extend that claim so as to include apparatus adapted to its 
practice. A licensee thereunder may practice the method with any 
motor adapted to such method, and we see no reason, if the motor 
itself is not patented, why such a licensee might not supply himself 
with a motor adapted to so operate from any manufacturer. 

But the Circuit Court found that after the granting of the injunc- 
tion pendente lite the défendant company made and shipped to one 
John McDougal, of the Caledonia Iron Works, Montréal, Canada, a 
motor made according to the description of the Tesla patents in suit, 
and that this was done with the intent and expectation that the motor 
would be there installed and used in the devices of the patents in suit. 
Judge Thompson held upon thèse facts that the défendants "had not 
only infringed the plaintiff's patents by contributing to the device set 
up in Canada, but directly infringed the claim of patent No. 382,280." 

But did the défendants infringe either of the combination claims, 
or disobey the injunction of the court, by making and sending to Cana- 
da a single élément of those claims with the intention and for the pur- 
pose of being there used in one or other of the combinations of the 
patent. The monopoly of the patents did not extend to Canada. The 
patented devices were open to be there made or sold or used because 
the monopoly of the patent is limited to the United States and its terri- 
tories. Uniess, therefore, the making and selling of a single élément 
of a patented device, within the limits of the United States, with the 
intention that it shall be sent without the United States, and there used 
in association with the other éléments of the combination, constitutes 



BTTLLOCK ELEC, * MFG. OO. V. WE8TINGHOU8E ELEO. <t MFG. CO. 111 

infringement, the défendants did not disobey the order of the court. 
But unless the making and sale of the single élément was with the in- 
tention and purpose of aiding and abetting another to infringe there 
would be no contributory infringement under the well-settled law upon 
that subject. 

No better définition of contributory infringement can be found than 
that given by Judge Taft when speaking for this court in Thomson- 
Houston Electric Co. v. Ohio Brass Works, 80 Fed. 712, 721, 26 C. C. 
A. 107, where that learned judge said: 

"It Is well settled that when one makes and sells one élément of a comblna- 
tlon covered by a patent wlth the Intention and for the purpose of bringing 
about Its use in such a comblnation he Is gullty of contributory infringement, 
and is equally llable to the patentée wlth hlm who in fact organlzes the com- 
plète comblnation. ♦ • * An Infringement of a patent is a tort analogoua 
to trespass or trespass on the case. From the earllest tlmes, ail who take part 
in a trespass, whether by actual participation thereln, or by aiding and abet- 
ting it, bave been held to be jolntly and severally llable for the injury inflicted. 
There must be some concert of action between him who does the injury and 
hlm who is chargea with aiding and abetting, before the latter can be hefd 
liable. When that is présent, however, the joint llability of both the principal 
and accomplice bas been invarlably enforced." 

The intent and purpose that the élément made and sold shall be 
used in a way that shall infringe the comblnation in which it is an 
élément constitutes the necessary concert of action between him who 
furnished the single part and he who actually does the injury by the 
assembling and using of ail the parts in such a way as to be an infringe- 
ment. This principle runs through ail the cases upon contributory 
infringment. Heaton-Peninsular Button Fastener Co. v. Eurêka 
Specialty Co., yy Fed. 288, 297, 25 C. C. A. 267, 35 L. R. A. 728; 
Saxe V. Hammond, Fed. Cas. No. 12,411; Wallace v. Holmes, 9 
Blatchf. 65, Fed. Cas. No. 17,100; Thomson-Houston Co. v. Kelsey 
Electric Co., 75 Fed. 1005, 22 C. C. A. i ; German-American Filter 
Co. V. Loew Filter Co. (C. C.) 103 Fed. 303, afïirmed 107 Fed. 949, 47 
C. C. A. 94. 

In Snyder v. Bunnell (C. C.) 29 Fed. 47, Judge Coxe gave his em- 
phatic approval to the principle laid down by Judge Shipley in Saxe 
V. Hammond, cited above, where it was said that "the mère manufac- 
ture of a separate élément of a patented combination, unless such manu- 
facture be proved to hâve been conducted for the purpose and with 
the intent of aiding infringment, is not in and of itself infringement." 
That the single élément was made and sold was with the intent and 
purpose of aiding another in infringing must appear, or the necessary 
concert of action will be missing. This may be shown presumptively, 
as it is when the article is incapable of any other use than an infringing 
one. If, on the other hand, it be adapted to other uses "the intention 
to assist in infringement must be otherwise shown affirmatively." 
Thomson-Houston Co. v. Ohio Brass Works, 80 Fed. 712, 723, 26 
C. C. A. 107. Thèse principles we think détermine this case. 

The finding that the intent and purpose in making and selling this 
motor was that it should be used in the patented devices in Canada 
is a finding against any infringing purpose. It would not be an in- 
fringement to put the motor to the use intended, because that use was 
beyond the protection of the patent. The défense is as complète as 



112 329 FEDERAL REPORTER. 

if the intent had been to furnish the motor to one havîng a license to 
make, sell, and use. In neither case would there be an intent to assist 
in an infringement, and without such intent the plaintifï in error was 
not infringing the patents or disobeying the order of the court. 

What we hâve said appHes as well to the method patent as to the com- 
bination claims. There must be shown an intent to assist another in an 
infringing use of the patented method. There being no intent to pro- 
vide means by which another might unlawfully use the Tesla method, 
there is no contributory infringement. 

The judgment, for thèse reasons, must be reversed, with directions 
to discharge the rule to show cause. 

Following will be found the opinion of the court below (THOIMP- 
SON, District Judge) : 

This suit was brought to enjoln défendant of letters patent Nos. 381,968, 
382,279, and 382,280 and for an accounting, etc. On the 2d day of August. 
1902, an Injunction was issued pendente lite restralning the défendant, ils ofli- 
cers, etc., "from maklng, using, or selling any apparatus embodying the inven- 
tions reclted or specifled in claims 1 and 3 of patent No, 381,968, claims 1, 2, 
and 3 of patent No. 382,279, and claims of patent No. 882,280, or any of them, or 
in any manner infringing upon the rights of the complainant thereunder." 
Afterwards, to fill an order previously given by John McDoug-al, of Montréal, 
Canada, the défendant made, at its works, in the United States, near Cincin- 
nati, in the state of Ohio, and on the 27th day of April, 1903, shipped to Johu 
McDougal, at Montréal, Canada, a 500 horse power induction motor, 13 feet 
in diameter, with 44 pôles and operated from a "60 cycle, 2,200 volt, 3 phase 
circuit," the factory cost of which was $11,265.20. 

This défendant admits that his motor was made and shipped to McDougal 
for the express purpose of being used in the device of the patents in suit, and 
that it was so used, but insists that the plaintifï's patents were not Infringed 
thereby, because the making of the device took place in Canada. This claim 
is based on the assumption that there can be no making of a combination de- 
vice, within the meaning of the patent laws, until ail its parts are assembled 
and joined together, in aecordance with the teachings of the letters patent, and 
as the assembling of the parts and the completion of the device in question 
took place in Canada, where the patent laws of the United States are inop- 
erative, the patents of the plaintifC are not infringed. If this be true, the 
défendant, in évasion of the patent laws of the United States, may make ail 
the parts of the device in the United States, ship them to Canada, and there 
assemble them and sell the device to its customers in disregard of the plain- 
tiff's rights — may thus appropriate the plaintifC's invention to its owu use 
without making compensation therefor. 

But is this trueî In issuinff the patents in suit the government of the United 
States granted to the plaintifC "the exclusive right to make, use, and vend 
the invention or dlscovery throughout the United States and the territories 
thereof," and any making, use, or sale thereof within the terrltory of the 
United States, agalnst the will of the plaintifC, Is an infringement of its mo- 
nopoly, and a violation of the patent laws of the United States. Neither the 
défendant nor McDougal were licensees of the plaintifC, but, on the contrary, 
joined in appropriating the plaintiff's invention to their own use without the 
plaintifC's consent and agalnst Its will., What the défendant did was done 
in the United States for the express purpose of enabling McDougal to com- 
plète the appropriation In Canada, not as the licensee of the plaintifC, but agalnst 
the plaintiff's çfill, and was an infringement of the plaintiff's patents, and the 
wrong is not lessened by the fact that McDougal is not amenable to the laws 
which the défendant has violated. In making the motor the défendant not 
only infringed the plaintiff's patents by contributing to the device set up in 
Canada, but directly infringed the claim of letters patent No. 382,280, which 
prrovides that "the method herein described of electrically transmittlng power. 



BULIOCK ELEO. <fe MFQ, CO. V. WESTINGHOUSE ELEO. & MTG. CO. 113 

whlch conslsts In producing a contlnnonsly progressive shJftlng of the polarl- 
tles of either or both éléments (the armature or fleW magnet or magnets) of 
a motor by developlng alternatlng currents In Indépendant circuits, Including 
the magnetizlng colis of either or both éléments, as herein set forth." 

The cases of Hobble v. Jennlson, 149 U. S. 355, 13 Sup. Ct. 879, 37 L. Ed. 766, 
and Gould v. Sessions, 67 Fed. 163, 14 C. C. A. 366, clted by the defendant's 
counsel, do not support défendant" s claim. In Hobble v. Jennlson the assignée 
of the patent for Mlchigan sold the patented articles In Mlchlgan, knowing 
that the purchaser Intended to use them in Oonnecticut As assignée of the 
patent for Mlchigan, he had the exclusive right to make, use, and vend the 
patented articles in Mlchlgan wlthout référence to where they mlght after- 
wards be used. The assignment contalned no provision forbiddîng him to sell 
the patented articles to persons who mlght or would use them in other States. 

In Gould V. Sessions, Judge Shipman says: "The record, vchich conslsts 
of the affidavlts, wlthout a flnding of facts, shows that, after the injunctlon 
order had been served upon the plaintlfifs in error, they shlpped to Canada a 
quantlty of the infrlnging articles, whlch had been made before the injunctlon, 
wlthout previously offerlng them for sale, or notifying any one of their wish 
to sell. The goods were followed by one of the défendants, who sold them to 
a trunk dealer in Montréal, who had been a customer of Sessions', and had 
been in the habit of buylng the nonlnfrlnging articles. Upon thls naked state 
of facts, we are of opinion that there was no violation of the injunctlon order. 
The sale was made In Canada, of trunk catches then in Canada, to a Canadian 
trunk manufacturer, to be there placed upon trunks in the ordinary course of 
business, and, so far as is known, no one of the articles was thereafter used 
in the United States." In that case the infrlnging articles were made before 
the injunctlon was issued, and were afterwards shlpped to Canada, and sold 
and used there. They were not sold or used in the United States, and were 
not made in the United States after the injunctlon order was issued. Judge 
Shipman further said: "Inasmuch as the articles were made before the in- 
junctlon, the manufacturer was not in contempt of the court's order, and, as 
no preliminary arrangements for the sale were made in the United States, 
the sale did not corne withln the prohibition. It Is probable that the Circuit 
Court had misgivings in regard to the good faith of the affiants, but, as there 
is no contradiction of their statements, we regard the question as one of law, 
upon a State of facts not in substantlal controversy." 

Hère there is an intimation that if there had been a preliminary arrange- 
ment made In the United States for the sale of the infrlnging articles in Can- 
ada the sale would bave come withln the prohibition of the injunctlon. In 
the case at bar there is évidence whlch would perhaps justify the court In 
finding that the sale of the motor was made In the United States. The order 
for the motor was received by the défendant through Its agent In Canada, but 
the contract was not made untll the order was accepted by the défendant. 

Upon the évidence presented by the affidavlts and Ôie admissions of the 
défendant, through Its counsel, the court flnds that the défendant made the 
motor in violation of the order of Injunctlon, thereby commlttlng a contempt 
of court, for whlch it should be punlshed. 

It is urged in mltigation of the penalty to be Imposed that the défendant 
acted under the advlce of counsel and believed that It mlght lawfully make 
the motor. The défendant, however, made the motor in dellberate disregard 
of the plaintiff's rights. The défendant knew that it was to be used in the 
device of the patents in suit, and made It expressly for that purpose. The 
défendant may bave believed that it was acting outslde of the scope of the 
order of Injunctlon, but did not hesitate to vlolate the rights of the défendant 

The court cannot permit litigants to construe orders of injunctlon to suit 
their own convenience and Interest. If they be In doubt as to what Is required 
of them, they must come to the court for instruction or for such modifications 
or amendments of the order as will make their duty plain. Wrlts of Injunc- 
tlon are issued to meet emergencles and to prevent irréparable Injury, and 
thèse purposes may be defeated if the courts permit them to be trifled with 
or dlsobeyed. It must be understood that the court will require prompt and 
impliclt obédience to such orders. A fine of $500 will be imposed upon th« 
défendant, which must be paid withln 10 days. 

129 F.— 8 



114 129 FEDERAL REPORTEE. 

NATIONAL CASH EEGISTER CO. v. NEW COLUMBUS WATCH CO. et al. 
SAME V. HALLWOOD CASH EEGISTER CO. et al. 

(Circuit Court of Appeals, Sjxth Circuit. March 22, 1904.) 
Nos. 1,220, 1,221. 

1. Patents— Assignment—Insteuments Entitled to Registeation. 

An instrument which does net purport to convey any présent Interest 
In an existing patent, or one for which an application is pending, is not 
an "assignment, grant, or conveyance," wlthln the meaning oï Rev. St. 
U. S. § 4898 [U. S. Comp. St. 1901, p. 3387], and Its registratlon does not 
opéra te as constructive notice to an assignée of a patent subsequently 
applied for, and granted to the person executing the same. 

2. Same— Notice to Assignée of Equitable Rights of Thikd Persons. 

Where the attorney for an inventer, having been requested by com- 
plainant to aseertain whether his client would sell a pending application 
for a patent, bought such application himself, without dlscloslng the fact 
tbat he was acting for any one else, and then resold and assigned the 
same to complainant for more than double the priée he paid, complainant 
was not affected by his knowledge that others had an équitable interest 
therein. 

3. Same— BoNA Fide Purchase without Notice. 

Evidence of a fraudulent purpose, or conduct amounting to moral 
turpitude, Is not necessary to deprive a purchaser of a légal title of the 
advantage of his position. If he is shown to hâve been aware of such 
facts as to put a reasonably prudent man upon inquiry, he is chargeable 
with ail the facts which would hâve been developed if inquiry had been 
prosecuted with reasonable diligence. 

4. Same — Facts to Put Assignée on Inquiry. 

Complainant purchased and took an assignment of an application for 
a patent which had been pending in the Patent Office for some four years. 
Six months before the filing of such application, complainant had been 
in negotiation with the appllcant and two other persons for the purchase 
of prier patents for inventions made by him relating to the same kind of 
rnachines, and issued to the three, and was then informed of an agree- 
ment between them by which, so long as it continued in force, the other 
two persons furnished the capital necessary to perfect and patent ail in- 
ventions made by the inventor relating to such subject-matter, and were 
to hâve an equal interest in the patents therefor. In fact, the applica- 
tion bought by complainant' covered an invention made under such agree- 
ment, and the two persons who furnished the capital were each the équi- 
table owners of a thlrd Interest therein. Held, that the facts were such 
as to put complainant on inquiry, and to charge it with notice of ail that 
might hâve been learned by such inquiry prosecuted with reasonable dili- 
gence, and that it dld not acquiré a title to the patent subsequently issued 
which would support a suit for its infringement. 

Appeal from the Circuit Court of the United States for the South- 
ern j5istrict of Ohio. 

' Edward Réctor, Frank P. Davis, and J. B. Hayward, for appellant. 

Paul A. Staley and Border Bowman, for appellees. 

Before LURTON, SEVERENS, and RICHARDS, Circuit 

Judges.' 

LURTON, Circuit Judge. Thèse bills were brought to restrain 
infringement' of patent No. 599,625, issued to the complainant, as 
assignée of Harry M. Neer, for improvements in cash registers. 



NATIONAL CASH EEGISXEE COi V. NEW COLUMBTJ8 WATCH CO. 115 

The défendants separately pleaded that the complainant was not the 
owner of the entire and complète interest in said patent, and that 
Thos. Reynolds and Oliver W. Kelly were each the owners of an 
undivided one-third interest in the inventions covered by said patent. 
Issue was taken upon the said plea, and the cases heard together 
upon the pleadings and évidence by District Judge Thompson, who 
sustained the pleas and directed the bills to be dismissed. 

The invention involved was completed in July, 1893, and an ap- 
plication for a patent made by the inventer in September, 1893. In 
July, 1897, Neer assigned his pending application to W. H. Chamber- 
lain, and the latter assigned to the complainant, which prosecuted 
the application and obtained a patent in February, 1898. When 
Neer made this invention, and when his appHcation was filed, he 
was associated with Thos. Reynolds and O. M. Kelly under a con- 
tract by which the parties were to develop and finally manufacture 
cash registers and adding machines. Neer was a man of marked 
mechanical ability and inventive genius, but was without money or 
crédit. Kelly and Reynolds obligated themselves to pay ail expenses 
of prosecuting his inventions, including cost of patents, etc., and to 
allow him $10 per week for his individual maintenance. Neer agreed, 
upon thèse considérations, to assign to Kelly a one-third interest 
in every invention he should make while this contract lasted, and to 
Reynolds a like interest. This arrangement seems to hâve orig- 
inated as far back as 1890, and prior to 1893 at least three patents 
had been taken out by Neer for improvements in cash registers ; 
the patents issuing to Neer and to Kelly and Reynolds, assignées, 
of one-third each. To better secure his interest in ail future im- 
provements Reynolds took from Neer, under date of July 22, 1893, 
a document in thèse words : 

"July 22, 1893. 

"Received of Thos. Reynolds $30.00, In considération of which I assign to 
hlm a one-third interest in ail my improvements and inventions in CJash Reg- 
isters or Adding Machines which I hâve been working on and yet uncomplete. 
Those completed, those for which application hâve been made for Pat. or I 
contemplate making application for Patent upon. In short, it is understood 
and agreed that he must be given a % interest in ail such patents conceived 
by me. Harry Neer. 

"Witness, W. M. Wise. 

"Recorded Aug. 2, 1893." 

This was recorded in the Patent Office August 2, 1893. The 
money thus receipted for was on account of expenses incurred by 
Neer in the invention hère involved. 

Neither Reynolds nor Kelly had parted with their équitable in- 
terest in this invention when Neer assigned the application in July, 
1897, and we agrée with the court below in its finding that Kelly 
and Reynolds were each the équitable owners of an undivided inter- 
est in said invention when Neer assigned in 1897, and when the 
patent issued to his assignées in 1898. The controversy turns wholly 
upon the question as to whether the complainant Company was a 
bona fîde purchaser, without knowledge or notice of this équitable 
interest of Kelly and Reynolds. This so-called assignment by Neer 
to Reynolds of July 22, 1893, is undoubtedly valid between the par- 



116 129 FEDERAL EBPOKTBE. 

ties, as an assignaient of a one-thîrd înterest in any future inven- 
tions made by Neer. But it was not an assignment of any existing 
patent or pending application, for Neer had long before assigned a 
one-third interest in each of his inventions to Reynolds, and the 
patents had been issued according to the assignment. Neer having 
by his prior recorded assignments, which did not include improve- 
ments, conveyed to Reynolds the one undivided third in ail existing 
patents, and there being no application pending for any patent, there 
was nothing upon which this document could operate which en- 
titled it to registration as an assignment, grant, or conveyance, un- 
der section 4898, Rev. St. U. S. [U. S. Comp. St. 1901, p. 3387] ; 
Robinson on Patents, §§ 411, 769, 785; Wright v. Randel, 8 Fed. 
591; Carpenter v. Dexter, 8 Wall. 513, 532, 19 L. Ed. 426; Lynch 
V. Murphy, 161 U. S. 247, 16 Sup. Ct. 523, 40 L. Ed. 688. 

That an assignment of a patent, together with any future improve- 
ments thereon, is recordable and operative as a notice to subséquent 
assignées of patents for improvements, may be conceded. Littlefield 
V. Perry, 21 Wall. 205, 22 L. Ed. 577; Aspinwall Co. v. Gill et al. 
(C. C.) 32 Fed. 697. But none of thèse former assignments included 
improvements, so that no question of the effect of such an instru- 
ment upon later assignées £xists. What we décide is that an in- 
strument which was not intended to convey any présent interest in 
any existing patent is not an "assignment, grant, or conveyance," 
within the meaning of the statute, and that its registration did not, 
therefore, operate as constructive notice to the complainant Com- 
pany. 

Neither do we think the complainants are charged with notice 
through the knowledge of Chamberlain. Chamberlain was Neer's 
attorney, and had charge of his application. He was asked to find 
out whether Neer would sell, and at what price. He bought the 
application from his client for himself, not disclosing to his cHent 
that he was buying for complainant, and then assigned the appli- 
cation to complainant at more than double the price he had paid. 
In the whole transaction he was acting in his own interest, and in 
such circumstances there is no presumption that he would disclose 
his information to his ostensible principal. Thomson-Houston Co. 
V. Capitol Electric Co. (C. C.) 56 Fed. 849; Fine Mountain Co. v. 
Bailey, 94 Fed. 258, 36 C. C. A. 229. 

That the complainant did not hâve technical notice of the équi- 
table interest of Kelly and Reynolds in this invention may also be 
conceded. The real contention is that it had information of facts 
which put the company upon inquiry, and that they are therefore 
chargeable with knowledge of ail the facts which inquiry would hâve 
disclosed. Cordova v. Hood, 17 Wall. 8, 21 L. Ed. 587; Jonathan 
Mills Co. v. Whitehurst, 72 Fed. 496, 19 C. C. A. 130. At the date 
of the acquisition of this invention by the National Cash Register 
Company, it had not culminated in a patent. The right to a patent 
was pending upon a mère application. This application was filed 
September 9, 1893, and complainants are undoubtedly chargeable 
with knowledge of the contents of the file bearing upon that appli- 
cation. Mr. Frank J. Patterson, the gênerai manager of the com- 



NATIONAL CASH REGISTER CO. V. NEW OOLUMBUS WATOH CO. 117 

pany, and its vice président, actively represented his corporation, 
and, upon an examination of the application, personally directed its 
purchase. Some steps to this end had been taken by Mr. Rector, 
the gênerai counsel of the company at Chicago, and the opinion of 
local counsel at Dayton was subsequently taken as to the daims, 
and the value of the invention to the complainant ; but neither of 
thèse gentlemen had, or in the course of their connection with the 
matter acquired, any knowledge of facts which would in any degree 
afïect their client. Nor is either of them in the sHghtest degree 
chargeable with any négligence or bad faith to their cHent or any 
one interested in the matter. 

Mr. Patterson was the responsible head of his corporation in 
respect to ail such matters, and was the corporation in ail that he 
said and did about the matter. The resuit must turn upon his 
knowledge of facts, and the sufSciency of the facts known to him 
when he brought this application to cast upon him the duty of 
inquiry. In February and March of 1893 an efifort was made to 
sell to the complainant patents No. 476,295, of June 7, 1892, 490,304, 
January 24, 1893, and No. 491,020, of January 31, 1893, issued to 
Neer and to Kelly and Reynolds, assignées of Neer, for one-third 
each. Mr. Patterson was first approached and the negotiation 
opened in behalf of Neer by Mr. A. W. Cochran, a relative of Neer's. 
Patterson was then distinctly informed that Neer and Kelly and 
Reynolds were associated together for the purpose of devising an 
improved cash register, and also adding machines ; that Neer was 
the inventor, and Kelly and Reynolds the capitalists ; that Neer 
was under an engagement to assign to them an undivided one-third 
interest, each, in ail of his inventions while in their einployment. 
Cochran was greatly interested in securing for Neer a more favor- 
able employment than he had with Kelly and Reynolds, and testifies 
as foUows : 

"I told them my cousin was a poor Inventor, and that Kelly and Reynolds 
had plenty of money, and he was not liable to get his share of his inventions. 
Mr. Patterson asked me why I did not bring the machine. I told him the 
machines were at my house (the two cash registers, one in the metallic case, 
the other in the wooden case, now before us), but that, if he would come to 
Chicago, Harry would show him the machines. I also told hiln that Harry 
would sell with the consent of Kelly and Reynolds, and would come with them 
on a salary, and they could get the beneflt of ail his future inventions, of 
which he bad several now in contemiplation. Mr. Patterson said 'Yes,' he 
could see that Harry would not get as much ont of It as he would if he had 
the money to put in it himself, but, of course, Kelly and Reynolds should 
hâve the beneflts as long as they were furnishing the capital. Q. Did you 
say anythlng at that time as to whether Harry Neer could go with the Na- 
tional Company, and give them the beneiît of his future improvements or in- 
ventions, without the company buying the machine ; and, if so, state what 
you rcmember about tliis? A. I told the Pattersons that Harry could not leave 
Kelly and Reynolds, without thèse machines were sold flrst, and that then 
he would be free to come with them and give them the beneflts of his future 
improvements. Q. Was anythlng said to the Pattersons about Neer's eon- 
tract with Kelly and Reynolds as to inventions that he would make or im- 
provements that he would get up In cash registers? A. Certainly. I aiready 
explained to the Pattersons that so long as he was with Kelly and Reynold.s 
they would get the full beneflt of his inventions, and I wanted them to buy 
this machine in order to get the beneflts of very valuable improvements 



118 129 FBDBBAIi BBPOBTBB. 

which he already had In mînd. I wanted to get them ont of the way com- 
pletely, as we had to get them out of the way before we coxild do anything 
with the Pattersons. Q. Who do you mean by 'them,' vvhen you say you 
wanted to get them eut of the way? A. Kelly and Reynolds, because Harry 
was to them under contract, and could not leave until thèse machines were 
sold, and the Kelly and Iteynolds business was cleaned up." 

As a resuit of this interview, Mr. Frank J. Patterson went to 
Chicago to see the model of the machine madç under thèse three 
patents. Under date of March 8, 1893, he wrote to A. W. Cochran, 
declining to buy, and saying that Neer's machine infringed tlie patents 
of the Company, though he did not then point out wherein. Shortly 
thereafter, and during the same month, the complainant company 
invited a further conférence. For this purpose, Mr. Samuel Coch- 
ran, the father of A. W. Cochran, and an uncle of Neer's, together 
with Neer himself and O. W. Kelly, went to Dayton, and to the 
shops of the complainant company, and there exhibited and operated 
the Neer machine. This negotiation extended through parts of 
three days. Mr. Cochran's principal purpose seems to hâve been 
to secure for Neer an engagement as inventor, and he testifies that 
he told Patterson that he was anxious to get Neer away from Kelly 
and Reynolds, who were paying him only $10 per week. He had 
drawn up a proposed contract between Neer and the complainant, 
by which the complainant was to hâve the exclusive right to ail of 
Neer's improvements and future inventions. This contract, he says, 
was exhibited to and read by Patterson, and aiso certain contracts 
between Neer, Kelly, and Reynolds in respect to the formation of a 
company to make machines. The witness testifies that he told Pat- 
terson that Reynolds and Kelly were to hâve ail the benefits of 
Harry M. Neer's future inventions and improvements in the cash 
register business, and "that the benefits that I had put in their con- 
tract [referring to proposed contract for services of Neer] was the 
same that was in the contract between Kelly, Reynolds, and Neer." 
This contract was only proposed in the event the cash register com- 
pany bought the Neer patents, for Patterson was told that any em- 
ployment of Neer was dépendent upon the .sale of the patents owned 
by the Neer Company. This witness also says that he told Mr. 
Patterson that Neer had quite a number of improvements in cash 
registers, "but that I did not want to let Kelly and Reynolds koow 
of those improvements, because I" knew they would not raise his 
.salary sufïïciently for him to spend his time and remain with them." 
He also says that Neer showed Mr. Patterson certain "small dia- 
grams, drawn on paper, of improvements, and a way by which he 
could get around some of the difficult questions that was raised in 
regard to opening the drawers and raising the tablets." 

The sale of the patents and the employment of Neer were coupled 
together by Mr. Cochran, who demanded for Neer $600 per month, 
and a contract for five years. Representing, as he ostensibly did, 
ail of the owners of the patents, he manifested a willingness to sacri- 
fice the Neer Company, in the price of its patents, in order to secure 
greater advantages for his nephew in the matter of wages, ând lie 
confesses to using arguments of this character. 



NATIONAL CASH REGISTEB OO. V. NEW COLUMBXTS WATOH 00. 119 

Witliout going further into the détails of the conférence and nego- 
tiations for the sale of the earlier Neer patents, it is enough to say 
that, upon the great weight of the évidence, Patterson was during 
those negotiations fully made aware of the relations between Neer 
and Kelly and Reynolds, and of their interest in ail future improve- 
ments Neer might make in cash registers, so long as that association 
should continue. The negotiations came to nothing, Mr. Patterson 
claiming that the Neer automatic drawer and indicator infringed two 
patents owned by his company. 

The évidence estabhshes that, after this failure to sell, Neer at 
once went to work upon an improved cash register which should 
obviate the infringements in respect to the drawer and indicating 
tablets pointed out or claimed by Patterson, and soon produced a 
model of the machine hère involved. This model was sent to Mr. 
W. H. Chamberlain, a patent lawyer at Chicago, in July, 1893, for 
the purpose of preparing spécifications and claims, and an applica- 
tion for a patent was filed September 15, 1893. Ail of the expenses 
incident to this new machine were borne by Kelly and Reynolds. 
This application hung in the Patent Office, and in 1895 an inter- 
férence was declared with a pending application owned by the com- 
plainant in respect to certain claims common to both, in which the 
complainant company won out. This interférence necessarily called 
attention to this new invention. As before stated, this application 
hung along until July, 1897, when, upon the suggestion of Mr. 
Rector, the complainant's gênerai patent solicitor, who had repre- 
sented complainant in the Erlach interférence mentioned above, Mr. 
Patterson examined Neer's new application, and bought it for his 
company, without making any inquiry as to whether Kelly and 
Reynolds had any interest therein or not. The invention which was 
involved in the Neer application did not in express terms assume 
to be an improvement upon his earlier patents. In fact, however, 
it was an improvement by which Neer had attempted to obviate the 
infringement claimed by Patterson in respect to the automatic drawer 
and tablet. The character of the improvement was in itself adapted 
to recall the information he had received when Neer's earlier ma- 
chine was ofïered to him. In addition to this, Mr. Rector, in his 
letter suggesting the purchase of this application, called attention 
to the Neer earlier patents, and suggested that, if "we take the Neer 
application, we had better take the entire lot." 

Mr. Patterson does say that he cannot recall his having read any 
papers in connection with the effort made in 1893 to sell his com- 
pany the three existing Neer patents. He does, however, admit a 
recollection of so much which occurred in that negotiation that it is 
difficult to believe that he had forgotten the relation of Neer to 
Kelly and Reynolds. He admits that he recalls the fact that the 
younger Cochran first came to open the way, that the elder Cochran 
and Neer then came, and that finally he saw the elder Cochran and 
Kelly and Neer on the third visit to his factory. Reynolds, it is 
conceded, had no part in the negotiations which then occurred, 
though Cochran says he explained to Mr. Patterson the reasons for 
his absence. Asked by his counsel to explain what occurred on the 



120 , 129 FEDERAL KJÎPORTER. 

occasion of the vîsit of Neer, Kelly, and tlie elder Cochran at the 
time the machine was exhibited, he says: 

"Thèse gentlemen came to vlsit the factory iipon an invitation from me to 
exhibit their machine, and, as I understood the situation, Mr. Cochran was 
the promotor of the Neer Company. Mr. Neer, the inventer of the machine, 
came to apparently offset any remarlïs virhich might be made, calculated to 
keep Mr. Kelly from Investing any money In their company; and, as Mr. 
Kelly was flnancially able to carry eut any commercial enterprise into which 
he might engage, I endeavored to convince him that this machine t)f Neer's 
could not be made cheap enough or simple enough to ever become a successful 
cash register. I dld not pay any attention to Mr. Neer or to Mr.Cochran, 
as I knew they would not pay any attention to anything I might say deroga- 
tory to their enterprise or machine. From subséquent events, Mr. Kelly de- 
elined to go into the enterprise at ail. The cash register company was appar- 
ently abandoned- Mr. Cochran was very anxious to sell the Neer devlce and 
secure for Neer a good position, but, not being successful, he returned to Chi- 
cago, and I hâve heard nothing from hlm slnce. The détails of ail of thèse 
conversations, it Is not necessary to relate, even If I could remember them. 
Suffice it to say that thèse same kind of interviews are constantly held wlth 
promoters and inventors of cash registering déviées, and for that reason, after 
the interview was over, I do not often retaln more than a casual memory of 
the circumstances." 

While he does say that he has no recollection of ever examining 
any contràcts, or of their contents, or of hearing the name of Reyn- 
olds mentioned, he does not in terms deny that he was then in- 
formed in respect of the engagement between Neer and his asso- 
ciâtes, and of the interest of the latter in his subséquent improve- 
ments. Neither is it claimed by counsel that he had forgotten what 
occurred during the 1893 negotiations. Indeed, the very able and 
frank soliciter for complainant resents the suggestion that he dé- 
fends upon the ground that Mr. Patterson had forgotten in 1897 the 
facts vk'hich he knew in 1893 in respect of Neer's relations to Kelly 
and Reynolds. The contention, on the contrary, presented by the 
briefs, is, first, that complainant had no definite information at any 
time "that Kelly and Reynolds had or were to hâve any interest in 
Neer's future inventions, and that, whatever the character of the 
information possessed in 1893, the subséquent events known to it 
were such as, in the absence of knowledge of facts now disclosed by 
the record, but which were unknown to complainant, to create a 
reasonable presumption, upon which complainant was justified iii 
acting, that four years later, at the time it purchased, in 1897, Neer 
was the sole and exclusive owner thereof." 

We can see no ground for regarding the information possessed 
by Mr. Patterson as either vague or indefinite in respect of the in- 
terest of Kelly and Reynolds in any further improvements which 
Neer should patent in respect to cash register machines. The prin- 
cipal object of the negotiations, so far as they were conducted by 
the two Cochrans, was to secure for Neer with the cash register 
company a better contract than he then had with Kelly and Reyn- 
olds; and, if those witnesses are to be believed, they informed Pat- 
terson fully as to the interest of Kelly and Reynolds in his future 
inventions so long as his existing relations should last. Now, what 
were the "subséquent events" known to Patterson, when he bought, 
which are rehed upon to create a presumption upon which he was 



NATIONAL CASH EEGISTER OO. V. NEW COLtTMBUS WATCH OO. 121 

justified in assuming that the application was the "sole and exclu- 
sive property of Neer"? They are substantially as foUows: (i) 
That tliis application had been on file four years without any as- 
signment to Kelly and Reynolds being filed in the office, whereas 
such an assignment of his earlier patents had been filed either with 
the application or shortly thereafter; (2) that the contract between 
ISieer and associâtes was terminable at will or upon 10 days' notice, 
and the interest of Kelly and Reynolds was only in such improve- 
ments as should be made while those relations lasted; (3) that in 
fact this partnership was terminated soon after the Dayton nego- 
tiations, and that Neer engaged in a différent line of inventions ; (4) 
that in April, 1894, a patent issued to Neer and Cochran upon an 
application filed in April, 1893; (5) that Neer represented that he 
had made no assignment, and so covenanted in his assignment to 
Chamberlain. 

It is to be borne in mind, in giving due weight to the circuni- 
stances mentioned, that Patterson is chargeable with the knowledge 
that the application he was buying had been filed within about six 
months of the close of his negotiations for the purchase of the earlier 
Neer machine. The question he had to ask himself in 1897 was not 
whether the arrangement between Neer and his associâtes had con- 
tinued up to that time, but whether it had not continued up to the 
time of an application for an improvement made, which had been 
filed within six months of the close of his former negotiations. Now, 
he did not know, and could not know, for the fact was otherwise, 
that Neer had ceased to work with and for Kelly and Reynolds whcn 
this application was filed. Neer finished the model for his improved 
machine in July, 1893, with their means, and placed it in the hands 
of an attorney to obtain a patent; the application being filed Sep- 
tember 15, 1893. Some time about the time of this application, Neer 
and associâtes did dissolve, and he took work with the father of O. 
W. Kelly, and took up a new line of inventions. But the actual fact 
that the relations of thèse three men had terminated even in 1897 
was not even then known to Patterson. Ail that he knew 'about the 
abandonment of the cash register business consists in the fact that 
he had heard nothing more about it, and had been told by a Mr. 
Mast, some two or three years after the negotiations of 1893, "that 
he [Mast] was of opinion that Mr. Kelly saw no outcome in the 
cash register, and had decided not to go into the field." This, of 
course, referred to the scheme of getting up a factory to make the 
Neer machines, which was a part of the purpose of the Neer Com- 
pany made known to Patterson in 1893. But counsel frankly do 
not claim that he knew in 1897 that the Neer Company had broken 
up, and modestly only insist that Patterson had a right "to assume 
that it had been abandoned" — a correct assumption if the question 
was as to its continuance up to 1897, but an incorrect one if it be 
an assumption that the relation did not exist when the invention in 
question was made. The assumption that Patterson knew that in 
1894 a patent had issued to Neer and Cochran upon an application 
made within a month after the close of the 1893 negotiations is un- 
authorized. The fact is true. But it does not appear that Patterson 



122 129 FEDERAL REPOKTEB. 

knew ît when he bought the later application. It was in fact a pat- 
ent in wliich Kelly and Reynolds were interested, but it was taken 
out to Cochran and Neer because Cochran was domînating Neer, 
and wished it done to secure him in some advance he had made 
about it. As he was the agent for ail the parties, he held it in trust, 
and so reCOgnized himself as a trustée. That patent was not in the 
line of the title of any of the complainants' patents, and hence there 
is no constructive notice about its issuance. If Patterson did not 
himself know that such a patent had issued to Neer and Cochran, 
it could not mislead him, and could hâve eut no figure whatever in 
leading him to présume the relation of the parties ended when the 
application in question was filed in September of 1893. That he 
knew the contract between Neer and Kelly and Reynolds was to 
endure only so long as the parties wished, must be conceded. But 
why he should assume that an application for a patent, made so soon 
after he had declined to buy the first Neer machine, and which was 
to him manifestly intended to escape the charge of infringement 
which he had brought against the first Neer machine, should be 
the sole property of Neer, is not explained. Reasonably the pre- 
sumption, under the facts known to him, was that such an improve- 
ment would be for the benefit of the partnership; and, in the ab- 
sence of very clear évidence otherwise, he should bave so assumed. 
The représentation by Neer that he had made no assignment, and 
bis covenant to that efïect, is of no importance whatever. He did 
not even represent that no one had any équitable interest in his in- 
vention, and said nothing and was asked nothing about the disso- 
lution of his partnership with Kelly and Reynolds. In view of the 
facts known to Patterson, the natural inquiry would hâve been, not, 
"Hâve you made any assignment?" but, "Are you equitably under 
any obligation to do so by reason of your contract with them? When 
did your agreement to give them an interest in your inventions con\e 
to an end?" But if he had caused thèse questions to be put to 
him, he would hâve acted with great négligence if he had failed to 
inquire of' Kelly and Reynolds as to their claim of interest in this 
particular invention. The assumption that they had no interest in 
this invention, in view of the facts with which Patterson is charge- 
able with knowing, rests at last upon the fact that this application 
had been pending four years, and that no assignment had been re- 
corded of which he was obliged to take constructive notice. In 
actual fact, an assignment, under date of July 22, 1893, had been 
spread upon the registry of the Patent Office, by which he had as- 
signed to Reynolds a one-third interest in ail of his improvements 
and inventions in cash registers which he had been working on, and 
for which he contemplated filing applications. This assignment did 
not operate as a constructive notice, because it was not such a grant 
or conveyance as was entitled to registration. Lynch v. Murphy, 
161 U. S. 247, 16 Sup. Ct. 523, 40 L. Ed. 688; Carpenter v. Dexte'r, 
8 Wall. 513, 532, 19 h. Ed. 426; Prentice v. Duluth Storage Co., 
58 Fed. 437, 7 C. C. A. 293, 302; Robinson on Patents, § 785; 
Wright V. Randel (C. C.) 8 Fed. 591. Neither did it request the 
commissioner to issue any particular patent to an assignée, and the 



NATIONAL CASH REGISTEB CO. V. NEW COLtTMBTJS WATOH 00. 123 

commissioner therefore properly ignored it when he came to issue 
this patent. Rev. St. § 4895; Robinson on Patents, §§ 411, 769, 
785; Wright V. Randel (C. C.) 8 Fed. 591. Neither is it shown 
that Patterson or any of the agents or attorneys of the complainant 
corporation had any actual knowledge of this document. But on 
the other hand, it is not shown that any search of the record was 
ever made to see if any assignment had been recorded. Such an 
actual search would undoubtedly hâve disclosed this assignment. 
There was therefore no actual misleading by the failure of the record 
to disclose any assignment, for the proper place for such an as- 
signment would hâve been upon the registry, and not in the file. 
Rev. St. U. S. § 4895. 

The court below, after an exhaustive examination of ail the facts 
and circumstances of the case, reached the conclusion that the facts 
known to the complainant company at the time of its purchase were 
such as to put it upon inquiry. The facts which the complainant 
must be taken to hâve known pointed plainly to the probable exist- 
ence of a right or title in conflict with that which they were about 
to buy. It became complainant's duty, therefore, to make inquiry 
as to the existence and extent of this probable outstanding équitable, 
but prior, right ; and an inquiry of Neer only was not a reasonable 
compliance with this duty. The failure to make reasonable inquiry 
under such circumstances convicts complainant of a degree of nég- 
ligence inconsistent with the claim to be a bona fide purchaser with ■ 
out notice. The knowledge which its représentative in this trans- 
action had did not consist of vague rumors as to the possible rights 
of another. It was knowledge that tended strongly to show that 
Kelly and Reynolds were interested in the invention he was about 
to buy, and was not materially weakened by any subséquent facts 
known to him at the time he was called upon to act. It may be 
that Mr. Patterson did not hâve at the time any purpose to de- 
liberately shut his eyes to the facts which inquiry might disclose, 
for that would amount to mala fides or fraud, and we do not attribute 
any evil purpose to him. The price he was asked to pay was a 
small one for a great concern, such as that he represented. When 
asked about the extent of his examination of the application before 
buying, he said : 

"I may or may not hâve examined the file wrapper, and cannot state posi- 
tively upon this point. If the case was an important one, I should probably 
hâve an opinion submitted, or read it over luyself. In this case I am under 
the impression that, the amount involved being so small, that I told Mr. Ma- 
caulcy lie might buy the patent if the amount did not exceed $200. That is 
about ail I remember about it." 

Under such circumstances, he may well say, as he does, that he 
at the time had no knowledge that any one beside Mr. Neer owned 
or claimed any interest in the invention. But he did hâve informa- 
tion which made it his duty to inquire whether others did not havc 
an interest in this inchoate property, and this he doubtless would 
hâve donc but for the comparative insignificance of the matter, which 
induced a very négligent method of action, which justly deprives his 
corporation of its claim to be a bona fide purchaser without notice. 
Evidi^nce of a fraudulent purpose or conduct amounting to moral 



124 129 FEDERAL REPORTER. 

turpitude îs not necessary to deprive a purchaser of a légal title of 
(he advantàges of his position. 

The English cases for a time seemed to tend tovvard a rule re- 
quiring évidence indicating a deliberate shutting of the eyes to avoid 
light, and amounting to what some of the judges styled fraud. 2 
Pom. Eq. § 606, and notes, and cases there cited. But the latest 
announcement seems to repudiate this extrême view. Oliver v. Hin- 
ton, 2 L. R. Ch. D. 1889, 264. The test of the American courts has 
not been so extrême. The inquiry has generally been vi'hether the 
facts known were such as to put a reasonably prudent man upon his 
guard, and whether an inquiry has been prosecuted, with reasonable 
diligence. 2 Pom. Eq. § 606, and notes. The latest announcement 
of the Suprême Court of the United States is that found in Stanley 
v. Schwalby, 162 U. S. 255, 276, 16 Sup. Ct. 754, 763, 40 L,. Ed. 960, 
where Justice Gray said : 

"But In order to charge a purchaser with notice of a prlor unreeorded con- 
veyance, he or his agent must eitlier hâve linowledge of the eonveyance, or at 
least of such circuœstances as would, by the exercise of ordinary diligence 
and judgment, lead to that knowledge; and vague rumor or suspicion Is not 
a sufficlent foundatlon upon which to charge a purchaser with knowledge of 
a title in a thlrd person." 

The decree of the court below must be affirmed. 



NATIONAL METBR CO. v. NEPTUNE METER CO. et al. 

(Circuit Court of Appeals, Third Circuit February 22, 1904.) 

No. 14 

1. Patents— Noveltt—Water Metees. 

The Nash patents, No. 527,534 and No. 527.537, for Improvements In 
disk water meters, are vold for lack of novelty, and also because the 
claims of the former are so broad as to cover praetlcally everything In 
the prior art. 

Appeal from the Circuit Court of the United States for the District 
of New Jersey. 

For opinion below, see 122 Fed. 82. 

J. Edgar Bull and Edmund Wetmore, for appellant. 
Alfred W. Kiddle and William A. Redding, for appellees. 

Before ACHESON, DALLAS, and GRAY, Circuit Judges. 

ACHESON, Circuit Judge. This bill was brought to restraîn in- 
fringement of two letters patent, No. 527,534 and No. 527,537, for im- 
provements in disk water meters, granted on October 16, 1894, to the 
National Meter Company (complainant-appellant), as assignée of Lew- 
is Hallock Nash. At the date of the making of the improvements in 
question, water meters of the disk type were old and in successfui use. 
The structure described and shown in and by each of thèse patents, in 
shape, size, constituent parts, arrangement, and mode of opération, 
was old. The form and function of each of the constituent parts of 
the described structure are identical with those which had long been 
in common use prior to the all'eged inventions. Moreover, ail the ma- 



NATIONAL METEK CO. V. NEPTUNE METEK CO. 125 

terials specifically mentioned in thèse patents had previously been em- 
ployed in various combinations in the manufacture of water meters. 
The learned judge below, in the course of his opinion, after particular 
référence to certain prior patents, justifiably said : 

"It will thus be seen that metals and nonmetallic substances of the eharae- 
ter speclfled, for one or the other of the différent parts of a nutating meter, 
hâve been freely suggested and employed by other prior inventors, until there 
is hardly a combination of them which could be devised that would be in any 
respect new." 

Patent No. 527,534 is much the broader of the two patents in suit, 
patent No. 527,537 being merely for one species or a particular form 
of the alleged invention of the other patent. The following explana- 
tory paragraph of the spécification of No. 527,534 sets forth alleged 
advantages possessed by the described structure : 

"The disks of nutating pistons heretofore made hâve been comparatively 
fragile and Ilable to break. By making the disk of métal I altogether avoid 
diffieulty. However, if both piston and case were made entirely of métal, the 
friction and wear oecurrlng would make the structure of little or no value 
as a practical water meter. As the principal friction surfaces are at the bail 
of the piston and its seat In the case, by making thèse parts of différent ma- 
terials — for instance, one of métal and the other of nonmetallic material — the 
friction and wear become very slight. ïhus the maximum strength and the 
minimtim friction and wear are obtained, and a durable and efficient meter 
is made. Such a piston can be used in any suitable case. If the piston, as 
I prefer to make it, hâve a disk of métal and a bail of nonmetallic material, 
it may be used in a case composed of auy material or materials, for but little 
friction and wear will be developed in the hall bearing, even if the seat in 
the case be of the same or similar nonmetallic material^-as, for example, if 
both be made of hard rubber. When the walls of the case as well as the disk 
of the piston are made of métal, while the seat and bail are either both of 
nonmetallic material, or one is of nonmetallic material and the other is of 
métal, the wear on the opposing metallic surfaces, particularly between the 
spherical walls of the case and the rim of the piston, will, other things being 
equal, be faster than at the other parts, and hence the weight of the pistou 
will always be supported on the bail bearing, where friction is least, and fric- 
tion contact between the edge of the piston and the spherical walls of the case 
avoided." 

The spécification contains the further statement: 

"In the claims I employ the words 'coefficient of abrasion' to Indicate the 
rapidity with which wear will take place between opposing surfaces." 

The widest claims of this patent and the ones particularly relied on 
by the complainant are the first and second claims, and those only we 
deem it necessary to quote. They are as follows : 

"(1) In a water meter, a nutating piston, composed of bail and disk, com- 
bined with a case provided with seats for the piston bail, the disk of the pis- 
ton and the spherical walls of the case being composed of substances having 
a larger coefficient of abrasion than the substances composing the bail of the 
piston and its seats in the case. 

"(2) In a water meter, the disk of a nutating piston and the opposing case 
walls, made of similar materials, comblned with the bail of sald piston and 
the bail bearings in the case, made of dissimllar materials." 

The spécification of patent No. 527,537 repeats the statement that : 

"As the principal friction surfaces are at the bail of the piston and its seat 
la the case, by making the bail of métal and its seat in the case of a nonme- 
tallic material the friction and wear become very slight" 



126 129 FEDERAL EBPORTEB. 

The single daim of this patent reads thus : 

"In a water meter, the combination of a piston composed of a bail and disk, 
both made of métal, with a case made of métal and a seat for the bail made 
of nonmetallic materlal." 

The charge of infringement made against the défendants below (the 
appellees) is based upon their manufacture and sale of two shghtly 
différent types of disk water meters, the structures of both of which, 
in form, constituent parts, and method of action, are conformable to 
this art as practiced before the aheged inventions of the patents in 
suit. One of the meters complained of is constructed with an all-metal 
case having all-metal' seats for the bail of the piston, and a métal disk 
having a rubber bail for its journal. The other meter complained of 
is made under the Thomson patent, No. 568,642, of September 29, 
1896, and has for the lower bearing of the metâl bail of the piston a 
skeleton of métal provided with concentric blocks of graphite mounted 
in recesses in the métal socket. The alleged infringement lies in the 
combined use of the materials mentioned. Do thèse constructions, or 
either of them, violate any excltisive rights vested in the complainant 
by virtue of the patents in suit? The conclusion of the Circuit Court 
was adverse to the complainant's pretensions, and we think rightly so. 

According to the explicit statement of both the patents in suit, the 
principal place of friction is at the bail of the piston and its seat in 
the case. Upon this assumption the patents rest. It is the basis of 
the alleged invention. The problem was to secure the minimum of 
friction and wear betvveen the bail of the piston and its seat. That 
being obtained, the invention is realized. The spécification of No. 
527,534 States that by making the bail of the piston and its seat in 
the case "'of différent materials — for instance, one of métal and the 
other of nonmetallic material — the friction and wear become very 
fchght" ; and "thus the maximum strength and the minimum friction 
and wear are obtained, and a durable and efficient meter is made." 
What the patents unmistakably prescribe is an antifriction bearing for 
the bail. But that was an old and common expédient in water-meter 
construction. This is abundantly shown by the évidence. The spéci- 
fications hère do not disclose any new means for reducing friction be- 
tween the bail of the piston and its seat in the case. It was a well- 
knovvn fact that friction and wear between a journal and its bearing 
can be feduced by making thèse parts of dissimilar materials. This 
principle was of common application in machine construction before 
the date of the alleged inventions. The nonmetallic materials spe- 
cifically mentioned in the complainant's patents are lignum vitse, hard 
rubber, and vulcanized fiber. Now, the use of lignum vitje for pre- 
cisely the same purpose is described in Nash's patent. No. 379,805, of 
1888; and the use of hard rubber for a piston bail working in a me- 
tallic seat is described in thé same patent, and also in the Davies 
patent. No. 384,024, of 1888, and the British patent to Davies, No. 
I3>S7I> of 1886. The prior Nash patent above mentioned discloses 
a water meter almost identical with the structure of the patents in suit 
composed of an ah-metal case with an all-metal piston, or of a hard 
riibber case with a hard rubber piston; the bail of the piston, whether 
of métal or hard rubber, having for its lower bearing or seat a plug o£ 



NATIONAL METEB CO. 7. NEFTDKB METEB 00. 127l 

lignum vitae. Upbn a fair review of earlier patents, the judge below 
made the clearly warrantable déduction that the very combination of 
materials suggested in the complainant's patent is to be found in the 
prior art, not as a matter of accident or undesigned, but definitely and 
distinctly indicated and provided for. 

The brief of the appellant puts forward the proposition that "the 
gist of the patents in suit résides in the discovery that the piston can 
be made to maintain automatically the necessary clearance at its rim 
by putting there materials which wear away or abrade faster than 
the materials forming the bail and its socket," and it is said that the 
invention consists in the "paradoxical expédient" of increasing friction 
and abrasion between the edge of the piston and the chamber walls. 
It is difficult, if not impossible, by searching, to find out anything in 
the spécifications tending to support thïs ingénions theory. As we 
hâve already seen, the inventor states that the principal friction sur- 
faces are at the bail of the piston and its seat in the case, and that, by 
making thèse parts of différent materials, the friction and wear be- 
come very slight. "Thus," the spécification goes on to say, "the 
maximum strength and the minimum friction and wear are obtained 
and a durable and eiïicient meter is made," and it is added that "such 
a piston can be used in any suitable case." It is true that further on 
in the spécification occurs the rather obscure statement that: 

"Wlien the walls of the case, as well as the disk of the piston, are made 
of métal, whlle the seat and bail are either both of nonmetallic material, or 
one is of nonmetallic material and the other is of métal, the wear on the op- 
posing metallic surfaces, particularly between the spherlcal walls of the case 
and the rim of the piston will, other things being equal, be faster than at the 
other parts, and hence the weight of the piston will always be supported on 
the bail bearing, where friction is least, and friction contact between the edge 
of the piston and the spherical walls of the case be avoided." 

If, however, friction contact between the edge or rim of the disk 
of the piston and the walls of the case be avoided, there can be no 
automatic clearance by abrasion. There may be friction without abra- 
sion, but there cannot be abrasion without physical contact. This is 
a self-evident proposition. Even the appel'lant's expert assents to this. 

But furthermore we are convinced by the proofs that the theory of 
automatic maintenance of adéquate clearance between the rim of the 
disk of the piston and the walls of the case by abrasion is incapable 
of practical realization. We think that the patents themselves are 
opposed to such theory. As we read the spécifications, the main thing 
to be donc is to minimize the friction and wear between the bail of 
the piston and its seat, to the end that the piston shall "always be sup- 
ported on the bail bearing," and "friction contact between the edge of 
the piston and the spherical walls of the case be avoided." Aside, 
however, from the patents, the clear weight of évidence is against the 
realization, in practice, of the appellant's theory of opération. Mr. 
Thomson, an engineer and a manufacturer of water meters, out of 
his large expérience testifies thus : 

"I do not belleve, nor hâve I ever seen In practice, nor hâve I ever seen a 
practical démonstration in which, once the periphery of the disk is brought 
into contact wlth the spherical wall of the casing, it will then automatically 



128 129 FEDERAL REPORTER. 

produce 'an adéquate clearance.' * *■ * No such resuit would he obtaln- 
able in practlce." 

It îs very significant that the complainant deliberately abandoned the 
construction shown and described in its patent No. 527,537, In its 
catalogue of 1900 it is said : 

"A third plan Is to use an all-metal disk, whlch is a comblnation long ago 
abandoned as being thorougbly unsatisfactory, both as to durabllity and close 
registration." 

Moreover, it appears that the complainant had adopted and exclu- 
sively employs in its manufacture of disk water meters a construction 
in which the meter has an all-metal case, with all-metal sockets, and 
a piston composed of a hard rubber bail and disk, the disk being re- 
enforced with métal embedded in and completely covered by the rub- 
ber, and shaped at its periphery into the form of a knife-edge com- 
posed wholly of rubber. Obviously, this construction is designed to 
diminish friction and wear betwéen the rim of the piston and the 
chamber waîl, not to increase friction and abrasion at that place. It 
wiil be noted that, in this construction, reliance is put upon the me- 
chanical conformation of the periphery of the disk. This construc- 
tion of disk water meters is made under a later patent, No. 527,539, 
granted to the complainant as assignée of Nash. 

The claims of the patents in suit hâve an extraordinary sweep. They 
take in the whole range of substances or materials fit for water-meter 
construction whether heretofore used or not. They also embrace an 
uniimited number of combinations. The compl'ainant's expert ex- 
pressed the opinion that, "where the construction is such that the wear 
between the bail and its seat is less or more retarded than between 
the periphery of the disk and the inside wall casing, the alleged inven- 
tion would be realized." He also expressed the opinion that a water 
meter of the knife-edge form of disk, made under patent No. 527,539, 
falls within the claims of the principal patent in suit, No. 527,534. 
If thèse views, which the appellant urges, be sound, and the défend- 
ants' water meters also are covered by those claims, it is safe to say 
that no practicabl'e disk water meter can be made which could escape 
this monopoly, for an antifriction bearing at the bail of the piston 
is necessary to successful working- — a fact which has always been recog- 
nized in this art. 

We are of opinion that the learned judge below was entirely right 
in dismissing the complainant's bill, and the decree of the circuit court 
is affàrmed. 



McCARTHT v. WESTFIELD PLATE CO. 

(Circuit Court of Appeals, Second Circuit. February 25, 1904.) 

No. 127. 

Patents—Infringement— Casket Handles. 

The McCarthy patent, No. 478,168, for Improvements In casket handles, 
claim 1, construed, and held not infrlnged by the device of the Klein 
patent, No. 559,898, in which the improvement, whlle having the sanie 
gênerai purpose of strengthening the handle, does so by means which op- 
erate on a différent principle. 



m'cabtht V. westfield plate co. 129 

Appeal from the Circuit Court of the United States for the District 
of Connecticut. 
For opinion below, see 124 Fed. 897. 

Howard P. Denison, for appellant. 
Harold Binney, for appellee. 

Before WALLACE, LACOMBE, and TOWNSEND, Circuit 
Judges. 

WALLACE, Circuit Judge. We agrée with the conclusions of 
the court below that the "defendant's coffin handles, made conformably 
with letters patent No. 559,898 (granted to Klein, assignor, May 12, 
1896), do not infringe the complainant's patent; and this being so, it 
will not serve any usefui purpose to consider whether the claim in 
controversy is void for want of patentable novelty, or void because 
the alleged invention had in ail essentials been previously patented by 
the complainant. 

The patent in suit is for an improvement in folding-down handles, 
more particularly burial casket handles, which consists in providing an 
auxiliary support to the handie by means of a relief-bar connected 
with the handle-bar. In a prior patent to the complainant (No. 469,- 
975' granted March i, 1892) a cognate improvement was described and 
claimed, the gênerai nature of which was stated to consist "in provid- 
ing the handie with an auxiliary support or brace which will remove a 
part of the strain from the hinge-pins by which the handie arms are 
connected to the body-plates, and which, in case said pins break, will 
constitute the main support of the casket." The présent patent covers 
a modification of the auxiliary support of the prior patent, and, with- 
out any other référence to the prior art, that patent itself imposes a 
limitation upon the construction of the présent patent which restricts 
the application of the doctrine of équivalents. 

In the folding-down handie in common use previous to either of the 
McCarthy patents the handie was carried by an arm attached to the 
body-plate of the casket by a hinge-pin pivoted in the ears of the 
body-plate. Thèse ears projected from the sides of a recess in the 
body-plate formed to receive and afïord a bearing to the end of the 
arm. The end of the arm was provided with a shoulder extending 
rearwardly beyond the hinge-pin, which when the arm was raised en- 
gaged with the top of a wall at the rear of the recess so as to limit the 
ttpward movement of the handie. The spécification of the patent in 
suit describes the old folding-down handie with an additional recess 
in the body-plate consisting of an elongated slot through its outer face. 
It also describes a supplemental arm, called a relief-bar, which is se- 
cured rigidly or pivotally to the main arm near the handie, and extends 
beneath the main arm to and through the slot in the body-plate, where 
it engages with the inner face of the body-plate. To effect this en- 
gagement, it is provided with a head larger than the width of the slot. 
This bar is arranged and constructed so as to move with the main 
arm, but to hâve independent bearing connections with the body-plate. 
In opération when the handie is moved downwardly the bar will slide 
iinder the body-plate, and when the handie is raised the bar is drawn 
129 F.— 9 



130 129 FEDERAL REPORTER. 

out through the slot until its head engages with the inner face of the 
body-plate. By this engagement the bar relieves the strain on the 
hinge-pin, and if the hinge-pin breaks receives the whole strain and 
supports the casket. Thus the folding-down handle of the patent is 
the old device with an additional handle-arm movably attached to the 
body-plate by a slot and head engagement ; the main arm and its hinge 
attachment to the body-plate are the main arm and attachment of the 
old device, and do their work precisely as they did in j;he old device ; 
and the bar or new arm, and its attachment, do their work precisely 
as they would if the bar was rigidly or pivotally fastened to the hândle 
instead of the main arm and there were no main arm. 

The claim is as follows : 

"The eombination, with the handle, the arm carrying it, and the body-plate 
to which sald arm is hinged, of a relief-bar eonnected to saîd arm and passlng 
through a slot In said plate, and provided on its inner end with a head." 

The only novelty in tlie eombination of the claim résides in the pe- 
culiar organization of the relief-bar and the body-plate, and except in 
this respect it is the same eombination described in the earlier patent 
to complainant. In the earlier McCarthy patent one form of the aux- 
iHary support consists »of an additional arm at one end pivotally eon- 
nected with the handle-arm and at the other end provided with a 
T-shaped head which slides in a T-shaped groove in the body-plate. 
In this construction the supplemental arm moves with the main arm, 
and when the handle is raised to the extent permitted by the hinge 
connection of the main arm it engages in the end of the groove, and 
thus relieves the strain on the hinge-pin, and receives the whole strain 
in case the hinge-pin breaks. 

The defendant's handle contains the parts employed in the old fold- 
ing-down handle, and as therein combined, together with parts which 
re-enforce and strengthen the handle-arm and its bearings at the hinge- 
joint; but it does not contain the relief-bar of the claim, nor the slotted 
body-plate of the claim. Its handle-arm is strengthened throughout 
its entire length by a pièce of sheet steel incorporated within the arm 
which at the body-plate end has a projection which extends beyond the 
pivot and rests upon one of the walls in the recess when the handle is 
raised. In ail the parts except those that were employed in the old 
folding-down handle the defendant's handle difïers so greatly in dé- 
tails of construction from the complainant's handle that it is difficult 
to compare them; but the most accentuated différences are those of 
principle. It contains no parts which relieve the strain upon the hinge- 
pin when the handle is raised, or which provide a support for the casket 
in the event of the breaking of the hinge-pin. Both McCarthy and 
Klein by their several endeavors hâve sought to improve upon the old 
folding-down handle, McCarthy endeavoring to do so by what is prop- 
erly a secondary arm with independent body-plate connections, and 
Klein by strengthening the old arm and its hinge connections. As was 
said in the opinion of the court below by Judge Platt: 

"The former départs in one direction, and the latter in another. The pat- 
ent in suit is the outcome of a struggle to relieve the hinge-pin. The Klein 
patent is the outcome of a struggle to so strengthen the handle as to overcome 
the natural strain at the vital point." 

The decree is affirmed, with costs. 



QEOEGIA FINE TOKPENTINE 00. V. BILFINGEE. 181 

GEORGIA FINE TURPBNTINE CO. V. BILFINGEE et aL 
(Circuit Court, W. D. North Carolina. March 14, 1904) 

1. PatiîI^ts— Suit foe Infkingement— Right op Complainant to Dismiss. 

Complainant, in a suit for infrlngement of a patent, who obtained a pre- 
llminary injunction, will not be permltted to dismiss without préjudice 
after ail the proof s hâve been taken, which show that the charge of Infrlnge- 
ment was wholly unfounded. In such case the défendant is entitled to 
a decree adjudicating the questions at Issue on the merits. 

2. SAME— INFBINGEMENT — APPAEATUS AND PKOCESS FOE WOOD DiSTILI-ATION. 

The Bilflnger patents. No. 658,888, for a wood-distilling apparatus, and 
No. 674,491, for a process of distilling wood for the manufacture of char- 
coal and the savlng of by-products, to be carried on by the use of such 
apparatus, construed, and field not infrlnged. 

In Equity. Suit for infringement of letters patent No. 658,888 for 
a wood-distilling apparatus, and No. 674,491 for a process of distilling 
wood for making charcoal and saving the by-products, granted to Cari 
W. Bilfinger on a division of the same application. On final hearing. 

Dickerson, Brown, Reagener & Binney and R. D. Douglas, for com- 
plainant. 

Schreiter & Mathews, W. P. Bynum, Jr., W. C. Douglass, and Henry 
Schreiter, for défendants. 

BOYD, District Judge. This is a suit in equity, by the Georgia 
Pine Turpentine Company v. the Naval Stores Supply Co. and Cari 
W. Bilfinger, for infringement of letters patent No. 658,888 and No. 
674,491, granted to the défendant Bilfinger for an improved apparatus 
and process for manufacture of charcoal and saving of by-products, 
which said letters patent, the same having been granted in the years 
1900 and 1902, were thereafter, with ail rights and privilèges there- 
under, as alleged in the bill, duly sold, assigned, and transferred to the 
complainant, who, at the commencement of this suit, was the sole owner 
thereof. The further allégation in the bill is that, after complainant 
became the owner of said patents, the défendant Bilfinger organized 
the Naval Stores Supply Company, and in conjunction with the said 
Company, and in violation of plaintifï's rights, was unlawfully using 
the same. Each of the défendants filed a separate answer, denying an 
infringement of the patent owned by plaintiflf, and averring the right 
to hâve and use the apparatus and process connected with their business. 
The pleadings hâve been completed, both parties hâve taken proofs, 
and the case has been set down for final hearing upon the pleadings 
and the proofs. , 

At the final hearing complainant moved to hâve its bill dismissed, 
without préjudice, upon payment of défendants' costs. This motion 
must be denied. It is well settled by authorities that complainant can- 
not dismiss his bill at will after ail proofs are taken and the case is set 
for final hearing. Such motion is addressed to the sound discrétion 
of the court, but will not be granted in a case where "such proceedings 
hâve been taken as entitle the défendant to a decree." Chicago, etc., 

ï 1. See Patents, vol. 38, Cent. Dig. § 551. 



132 129 FEDERAL EEPORTER. 

R. Co. V. Rolling Mill Co., 109 U. S. 702, 3 Sup. Ct. 594, 27 L. Ed. 
1081. In other cases it is held that such motion will not be granted 
where the adverse party would be prejudiced or put to a disadvantage. 
Johnson v. Bailey (C. C.) 59 Fed. 670, Callahan v. Hicks (C. C.) 90 
Fed. 539, and the cases cited there. In this case no reason ï% stated 
why complainant desires to dismiss its bill, except as it appears from 
the proceedings that complainant reahzes the complète failure to make 
ont a case against the défendants, though its proofs cover every fea- 
ture of défendants' apparatus and the process carried on therein, show- 
ing that complainant's counsel and expert witness hâve diligently and 
skillfully exploited every path to that end. On the other side, défend- 
ants establish by their proofs, aflfirmatively, that the apparatus they 
use and the process they carry on in their plants at Biscoe and Aber- 
deen are fundamentally différent from those set forth in the patents 
in suit. Would it, then, be just and équitable hère to grant com- 
plainant's motion now, after défendants hâve been subjected to the 
trouble and expense of defending the suit and bearing the detrimental 
conséquences of the litigation until it could be submitted for final dé- 
cision? Would it be just and équitable to nullify their efforts and ex- 
pense incurred in producing the proofs showing that the charge of in- 
fringement made against them was and is wholly unfounded ? 

Défendants are charged in the bill with infringement of letters pat- 
ent ; they were served with the process of the court, required to appear, 
answer, and to produce proofs in support of their answer. Whether 
complainant commenced this action on misinformation or from error 
of judgment, or for other reasons, the institution of the suit, the charge 
of infringement, the publicity given by the complainant to the pendency 
of the same, to the injunctive orders of the court, and to the proceed- 
ings in this case throughout the entire territory where défendants' 
business extends, must hâve had a detrimental effect on défendants' 
business. This effect is of such nature as would not be removed if 
the bill of complainant herein be merely voluntarily dismissed by 
an order on such motion as complainant now proposes. Such damage 
to défendants' réputation and business standing can only be removed 
by a judgment of the court deciding the controversy on the merits. 

The bill of complainant should not be dismissed, as complainant 
now proposes, also because of the pendency of similar suits in other 
districts, involving the same apparatus, the same process, as in the 
case at bar, and based on thèse same patents. The pendency of at 
least one other suit of this kind (in the Western District of Georgia) 
is shown by the proofs in the case at bar, the fact having been 
brought out by the cross-examination of défendants' witness Bilfinger 
by complainant's counsel. This other suit was commenced after de- 
fendants answered hère, and no proofs bave yet been taken. If this 
suit hère should now be merely dismissed by an order on request of 
complainant, the same issue will be required to be litigated in the other 
case. This procédure may be repeated by complainant as often as it 
may succeed in inducing the courts to dismiss its bills before judg- 
ment, and withbut préjudice after the proofs are taken and the case 
set down for final hearing. Such proceeding would certainly be vexa- 
tious to the utmost, and work irréparable in jury to défendants' inter- 



GEORGIA PINE TTJBPENTINE CO. V. BILFINGEB. 133 

ests. For thèse reasons, complainant's motion is denied, and the case 
will be considered and decided by the court on the proofs, and a judg- 
uient entered therein. 

The first of the two letters patent, No. 658,888, is for improvements 
in wood distilHng apparatus; and the second. No. 674,491, is for a 
process of distilling wood for the manufacture of charcoal, and sav- 
iîig of by-products, to be carried on in the apparatus set forth in the 
fust patent. The second letters patent were granted on a subdivi- 
hional appHcation of the first. Originally only one patent was apphed 
for — for the apparatus and the process ; thereafter, the subject-matter 
of the process was embodied in a subdivisional application, under 
which the second patent (No. 674,491) issued. In the spécification of 
the process patent, the inventer says (page i, line 34) as follows: 

"The objects of my improved process are, first, to décompose wood into (1) 
sollds, (2) volatile and (3) nonvolatile liquids, and (4) gases ; second, to sepa- 
rate thèse ingrédients from each other ; and, third, to prevent décomposition 
of any of the ingrédients in the process of decomposing the raw material." 

The several products shall also be recovered separated from each 
other; the solid ingrédient as charcoal; the volatile and nonvolatile 
liquids as wood turpentine, oils, and tar; the gas as illuminating gas. 
Thus we may say that in thèse particular respects the process of the 
patent difïers from other processes for distilling wood, and the appa- 
ratus for carrying on this process is particularly designed for it. 
This is the apparatus of the Bilfinger patent No. 658,888, and it is 
with respect to this apparatus that the inventor says, at the outset of 
the spécification of his process patent: 

"The apparatus necessary for the carrying on of the process Is more fully 
deseribed in my United States letters patent No. 658,888, granted October 2, 
1900," etc. 

This statement bas an important bearing on thç issue of infringe- 
ment involved in the case at bar. It shows that the inventor realized 
that the process cannot be carried on in any other apparatus except 
the particular apparatus that he specifically sets forth in the other 
patent as an intégral part of his invention. Défendants' exhibit "Bil- 
finger Plans of Défendants' Plants at Biscoe and Aberdeen," and as 
explained in the testimony of the défendant Bilfinger, shows clearly, 
on comparison with the drawings and descriptions of the Bilfinger 
patent No. 658,888, that the apparatus employed in défendants' plants 
at Biscoe and Aberdeen do not contain a solitary feature of that which 
is set forth in the patent as the improvement or invention designed 
for the purpose of carrying on the process, the subject-matter of the 
other Bilfinger patent, No. 674,491. The évidence shows that without 
thèse spécifie means — the sectional flues, dampers, outlets, and valves 
— the process cannot be carried on, or such results obtained as set 
forth in the patent. Défendants' plants comprise apparatus distinct 
from the ordinary wood-distilling plants in several respects, but every 
one of the spécifie features is also wholly différent from what is dis- 
closed in the Bilfinger patent No. 658,888, and thèse improvements, 
embodied in défendants' plants, are the subject-matter of another 
patent (défendants' exhibit, "Bilfinger & Hallock 1903 Patent"). They 



131 129 FEDERAL RBFOBTEB. 

serve for the carrying on of a process wholly différent from tKe pro- 
cess specified in the Bilfinger patent No. 674,491, and producing wholly 
différent results. The fact that the improvements embodied in the 
apparatus of défendants' plants at Biscoe and Aberdeen are covered 
by a subséquent patent is prima facie proof that défendants' plants 
are patentably différent from the apparatus set forth in the patent 
in suit. That they are différent also in every material or substantial 
respect was proved by the testimony for the défendants, and by the 
letters patent introduced in évidence at the close of défendants' proofs. 
Neither the proofs that the improvements embodied in the apparatus 
of défendants' plants at Biscoe and Aberdeen are the subject-matter 
of this patent, nor the proof made by the testimony of défendant Bil- 
finger that thèse apparatuses are differently constructed for a différent 
process, and that, in fact, a vi^holly différent process is carried on in 
défendants' plants at Biscoe and Aberdeen, was contradicted or rebut- 
ted in any manner. It must therefore be accepted as established by 
the proofs : 

(i) That défendants' plants are not constructed according to the Bil- 
finger patent No. 658,888, in suit herein ; and, 

(2) That no such process as set forth and claimed in the Bilfinger 
patent No. 674,491, in suit herein, is carried on in the plants of the 
défendants. 

A decree will be entered for défendants, dismissing the bill of com- 
plaint herein, with costs. 



PERKINS ELECTRIC SWITCH MFG. CO. y. BUCHANAN & CO. 

(Circuit Court, B. D. Pennsylvanla. March 24, 1904.) 

No. 51. 

1, Patents— INFEINGEMENT— Incandescent Lamp Sookets. 

The Perklns patent, No. 626,927, for an Incandescent lamp Bocket, was 
not anticipated, and, while the parts were old, covers a new combinatlon 
of utility, and discloses patentable Invention. Clalms 3, 4, and 9 also held 
Infringed. 

2. SAME— COMBINATION AND AOGBEOATIOH DlSTIROtTISHED. 

Eléments of the patent considered, and held to constltute, not a mère 
aggregation of separate éléments, but a composite construction. In whlch 
the several parts co-operate to produce a common and combined resuit, 
whlch the law accepta and sustains. 

In Equity. Suit for infringement of letters patent No. 626,927, for 
an incandescent lamp socket, granted to Charles G. Perkins June 13, 
1899. On final hearing. 

Howson & Howson, for plaintiffs. 

Marcellus Bailey and Curtis B. Johnson, for défendants. 

ARCHBALD, District Judge.^ The issues in this case are few, and 
comprised within a narrow compass. While infringement is denied in 
the answer, it was not seriously disputed at the argument, and could 

1 Speclallj asslgned. 



PEEKINS ELECTEIC SWITCH MFG. CO. V. BUCHANAN & OO. 135 

not successfully be on the proofs. The socket manufacturée! by the 
défendants, in its gênerai structure, is closely patterned after that of 
the complainants, and, whatever may be the incidental improvements, 
infringes upon it, for which, of course, the patent held by the défend- 
ants covering thèse improvements affords no excuse. Neither, in view 
of this, can they very well question its utility, having copied it. If it 
had no advantage over other existing structures, why not follow them 
instead? 

The novelty of the invention is contested, but the références cited 
against it are few, and, however they may limit, do not otherwise seri- 
ously afjfect, it. The patent held by the complainants was issued to 
Charles G. Perkins June 13, 1899, and is for an incandescent electric 
lamp socket. The claims relied upon in this suit are as follows : 

"(3) In combination in a lamp socket, a cap, a sbell, two blocks of Insulating 
material, wlth recesses arrangea, to form two insulating-chambers, a plate 
wlth a binding-screw located in one of the chambers, and having its ends se- 
cured to the respective blocks, a plate with a binding-screw located in the 
other of the chambers, and having its ends secured to the respective blocks, and 
grooves in the edges of the upper block for the passage of the circuit-wires of 
[to] the respective blnding-screws, substantially as specified. 

"(4) In combination in a lamp socket, a shell, two blocks of insulating ma- 
terial with recesses arrangea to form Insulated chambers, a plate with a bind- 
ing-screw located in one of the chambers, a plate with a binding-screw located 
in the other of the chambers, and a switch-block located in one of the cham- 
bers, and adapted to make contact with the end of the plate in the same cham- 
ber, substantially as specified." 

"(9) In combination in a lamp-socket, a cap, a shell, two blocks of insulating 
material located within the shell, insulated chambers formed by recesses in 
the insulation, and plates bearing outwardly-extending binding-screws located 
in the recesses, and having their ends seeured by screws to the respective in- 
sulating-blocks, substantially as specified." 

But four références are produced from the prior act, and of thèse 
the Snow and the Hubbell patents may be classed together. Both, in 
addition to a cap and shell, are made up of two blocks, or more prop- 
erly disks, of insulating material, secured together by métal plates on 
either side, to which the circuit wires — introduced in the Hubbell 
through grooves on the edge of the upper block — ^are attached by out- 
wardly extending binding-screws. So far there is a correspondence 
with the plaintiffs' device, but there it stops. Between the blocks or 
disks is a large, single, open chamber, in which the key or switch 
mechanism is set, and across which there is an uninterrupted course 
for the electric current in case a short circuit happens in any way to 
be induced, while in the Perkins the two blocks are brought close to- 
gether, and separate contact chambers, insulated from each other, 
carved out of them, to obviate the danger which the others invite. Ad- 
mittedly, this dififerentiates the two constructions, and does so with ef- 
fect. The Wirt socket has little relevancy. It consists of a single 
block — for strength — ^between which and the screw extension for the 
lamp base a large, open chamber is left, to accommodate the switch 
mechanism, the same as in the others mentioned, with the additional 
danger that the bearded ends of the circuit wires may get in contact 
with the métal of the screw extension below, there being nothing in 
between to prevent. The Pass and Seymour — the only one remaining 



136 129 FBDBBAL REPORTEE. 

to be noticed — is porcelain throughout. It is made up of two main 
parts — a base and a body — so assembled and fastened together as to 
leave an arcing chamber between them, in which, side by side, tlie two 
legs of the electric circuits end, separated by a projecting wall or cur- 
tain. It must be confessed that, in the séparation in this way of the 
two contact plates, the device approaches somewhat closely to the one 
in suit. The idea, to a certain extent, may be said to be there; but 
there is a différence, amounting to a distinction, in developing it. In 
the Pass and Seymour the ends of the circuit wires are left in close 
proximity in the same chamber, with nothing but a low and narrow 
rib of porcelain intercepting them, which there is constant danger that 
the frayed strands may bridge over and short-circuit. But in the Per- 
kins this is doubly prevented — fîrst, by locating the contact plates at 
diametrically opposite sides of the blocks; and, second, by giving to 
each a separate recess or chamber therein. It is true that the wall 
between the chambers is slight, and that the imperfect contact of the 
upper and lower blocks leaves à small air space, which divides it ; and 
in a badly fitted socket, like that produced by Mr. Mcintire, this may 
be so great as to do away in great part with the benefit to be derived 
from this construction. But in the ordinary and proper form, made 
in accordance with the patent, the two-chamber feature has an im- 
portant and distinctive function, which is not anticipated by anything 
to be found in the Pass and Seymour, any more than in the rest of the 
preceding art. 

The patentability of the device, however, is questioned. The in- 
ventor, it is said, took a two-block socket, which was old (Hubbell), 
united the blocks with métal contact plates or standards on opposite 
sides, also old (Wirt), and then insulated the plates by an intermediate 
wall of porcelain— an expédient not only common, but expressly em- 
ployed in the prior art (Pass and Seymour). But the merits of the 
invention, and the inventive skill involved, are not to* be written down 
in any such way. The problem of providing an electric lamp socket 
which should be at the same time mechanically strong and easily han- 
dled, electrically safe, and commercially cheap, was by no means easy 
and obvious, as the many attempts at it, which hâve produced more 
than 300 patents in the last 20 years, abundantly show. An entire 
porcelain socket, such as the Pass and Seymour, has certain electrical 
advantages, but is bulky, liable to break when exposed to rough usage, 
and not readily connected up or handled. The use of métal, on the 
other hand, in cap, shell, and screw extension, while conducing to light- 
ness and durability as well as strength and cheapness, detracts from it 
electrically. ïn the device in suit there is apparently a more complète 
solution of thèse difïiculties than in anything which had preceded it, 
and, even though accomplished by the use of known expédients, the 
combination being a novel one, and the bénéficiai resuit obtained a sub- 
stantial gain to the art, it must be regarded as involving the exercise 
of invention, such as the law was designed to protect. If not, then 
not only is this wanting in the other devices which hâve been put in évi- 
dence, which stand on no higher plane, but there would seem to be 
nothing further left that was patentable along existing lines in this 
branch of the electric art ; and improvements therein must be relegated 



GENERAL GASLIGHT CO. V. MATCHLBS8 MFG. (XX 137 

to the unstimulated skill of the common artisan, rather than the genîus 
of the inventer — a conclusion which we should be slow to reach. 

It is further urged that the éléments drawn together in the patent 
amount to a mère aggregation, but this loses sight of that which is 
involved. The object of the invention is the production of an electric 
lamp socket — an important commercial appliance, which, to meet the 
demands upon it, must hâve certain characteristics and qualities. It is 
necessarily made up of différent parts, designed for différent purposes, 
some of which contribute one thing, and some another. The cap, the 
shell, the upper and lower blocks, the insulating chambers, are nothing, 
apart and in themselves; but together they unité to form a complète 
socket, to be taken and used as a whole. This is not an aggregation of 
separate éléments, each acting or standing by itself, but a composite 
construction in which the several parts co-operate to produce a common 
and combined resuit, which the law accepts and sustains. 

Let a decree be drawn in the usual form in favor of the plaintiffs, and 
referring the case to a master to take an account, with costs. 



GENERAL GASLIGHT CO. v. MATCHLBSS MFG. CO. 
(Circuit Court, S. D. New York. February 26, 1904.) 

1. Patents — Invention — Designs. 

Origlnality and the exercise of the inventive faculty are as essential 
to give validity to a patent for a design as for a mechanical Invention. 

2. S AME. 

Whenever ingenuity Is displayed in producing a new design which im- 
parts to the eye a pleasing impression, even though It be the resuit of 
unltlng old forms and parts, such production is patentable. 
-3. Same—Infringement— Design ïob Lamp. 

The Humphrey design patent, No. 35,481, for a cluster gas lamp, shows 
a novel design and discloses Inventioa Also held Infrlnged. 

4. S AME. 

Where it appears that, by uniting old éléments perceivable In other 
lamp designs, a new lamp of difCerent contour and construction Is pro- 
duced, and where the coUocated éléments also Impart an ornamental and 
graeeful appearance, not possessed by prlor lamp designs, the conception 
is beyond what an ordlnarily skilled workman Is able to achieve. 

In Equity. Suit for infringement of letters patent No. 35,481, for 
a design for a gas lamp, granted December 24, 1901, to Alfred H. 
Humphrey. On final herring. 

Dallas Boudeman, W. P. Preble, Jr., and Charles W. Culver, for 
complainant. 

Edward C. Davidson, for défendant. 

HAZEL, District Judge. This is a bill for an alleged infringement 
of design patent No. 35,481, dated December 24, 1901, issued to Alfred 
H. Humphrey, and by him assigned to the complainant corporation. 
The spécifications state that the invention relates to a design for gas 

IT J. See Patents, vol. 38, Cent. Dig. § 33. 



138 129 FEDERAL REPORTEE. 

lamps known as "cluster lights." The défenses chiefly relied upon are 
want of novelty and noninfringement. It is not seriously controverted 
that the design embodies features familiarly known, nearly ail of 
which may in some form be found in pre-existing lamps. The proofs 
do not disclose the prior use of an ornamental lamp similar in design 
to that described in the spécifications. On the contrary, the évidence 
establishes that no lamp having the shape, configuration, or ornamenta- 
tion of the lamp design in suit was previously known to the trade. The 
design patent in question is not for an ornament, pure and simple. The 
shape and configuration of the lamp also permit its classification as a 
useful article of manufacture. According to section 4929 of the Re- 
vised Statutes [U. S. Comp. St. 1901, p. 3398], the design must be a 
new and original invention produced by the industry, genius, efïort, 
and expense of the inventor. Whether the design possesses the char- 
acteristics of originality and newness must largely, if not altogether, 
be determined by the visual impressions resulting from its appearance. 
Matthews & Willard Mfg. Co. v. American Lamp & Brass Co. (C. C.) 
103 Fed. 634 ; Pelouze Scale & Mfg. Co. v. American Cutlery Co., 102 
Fed. 916, 43 C. C. A. 52 ; Smith v. Stewart (C. C.) 55 Fed. 481 ; Unter- 
meyer v. Freund (C. C.) 37 Fed. 342. The shape and configuration 
of the lamp, in its entirety ; the collocation of its mechanical features ; 
the arrangement of the cluster lights and mantels; the contour and 
proportions of the bulbous globe ; the two métal bands, with their twist- 
ed, plaited, and filigree ornamentation — contribute to the création of a 
symmetrical form and pleasing appearance. The défendant contends 
that the prior art discloses substantially similar designs. It is also 
asserted that any additional éléments or substituted features constituting 
complainant's patent accomplish an artistic resuit due solely to an 
assembling of parts obvious to any skilled designer, and not entitled 
to the dignity of invention. This contention is entitled to careful con- 
sidération. It is quite well settled, upon the authority of Smith v. 
Whitman Saddle Co., 148 U. S. 674, 13 Sup. Ct. 768, 37 L. Ed. 606, 
that the law which applies to a mechanical patent does not differ mate- 
rially from that applicable to design patents. Hence originality and 
the exercise of the inventive faculty must be présent in both instances. 
The mère adaptation of that which was old and familiarly known to 
new purposes is not invention, nor would the mère aggregation of 
known parts of other substantially similar designs to produce that un- 
der considération constitute patentability. Perry v. Starrett, 3 B. & 
A. 485; Simpson v. Davis (C. C.) 12 Fed. 144, 20 Blatchf. 413; 
Gorham Co. v. White, 14 Wall. 511, 20 L. Ed. 731. It is quite true 
that the record shows many lamps of ornamental and graceful ap- 
pearance, which were known prior to the conception of the design 
lamp in suit. Furthermore the collocation of différent parts of such 
designs is frequently used to enhance their appearance and salability. 
The caprice of. fashion constantly demands something novel in the 
art under considération. However that may be, the principle, as 
applied to design patents, is unassailable, that whenever ingpnuity is 
displayed in producing something new, which imparts to the eye a pleas- 
ing impression, even though it be the resuit of uniting old forms and 



BBILL T. FECKHAM MTQ. OO. 189 

parts, such production is a meritorious invention and entîtled to pro- 
tection. The évidence establishes beyond doubt that the lamp under 
considération met with immédiate favor from the public on account of 
its artistic construction. It appears from the évidence of the patentée 
that his object was to design a lamp peculiarly appropriate for a gas 
arc lamp of ornate appearance, which would resemble an electric lamp. 
He began his design in August, 1900, completing the same in October 
of that year. No other similar lamp, which when lighted appeared like 
an electric light, was then known. A number of witnesses familiar 
with gas lighting and the sale of gas lamps testified that there were no 
lamps on the market resembling the Humphrey design, which insures 
the illumination of large areas, while its ornate appearance and novel 
shape quickly achieved popularity. I hâve looked in vain through the 
illustrated catalogues submitted in évidence for lamps like that in suit. 
The prior art does not disclose a lamp in its entirety (and that must be 
the test of anticipation) which justifies declaring void the Humphrey 
patent, and thus negativing the presumption of patentability secured to 
the inventor by the issuance of the patent. Every part used in the 
Humphrey design is trimmed and united in its construction with the 
sole object of forming a symmetrical and harmonious whole. This 
object was achieved as a resuit of effort, study, and skill, and it is 
therefore entitled to the dignity of invention. 

The question of inf ringement : The defendant's lamp is apparently 
identical with that of complainant. There are a few minor différences 
in détail, but such différences are thought to be immaterial. Gorham 
Mfg. Co. V. Watson (C. C.) 74 Fed. 418; Whittall v. Lowell Mfg. Co. 
(C. C.) 79 Fed. 787; Sagendorph v. Hughes (C. C.) 95 Fed. 478; Hut- 
ter V. Broome (C. C.) 114 Fed. 655. The configuration, shape, and out- 
line are the same, and only the closest inspection will disclose the sHght 
différence of construction pointed out by the défendant at the argu- 
ment. 

Let a decree be entered for an injunction and accounting as prayed 
for in the complaint, with costs. 



BRILL et al. V. PEOKHAM MFG. CO. 
(Circuit Court, S. D. New York. January 11, 1904.) 

1. Patents— Peeliminaky Injunction against Infeingement— Effect op 

Pbior Décision. 

Where a patent bas been lield valid and infringed by a court of another 
circuit after a coiitested liearing, It is the practice to grant a preliminary 
injunction on sucli décision uniess new évidence is produced which is of 
such charaeter that it may fairly be supposed that it would hâve changed 
the décision If it had been before the court in the prior suit 

2. Same— Street Cad Teuok. 

A preliminary injunction granted against infringement of the Brill 
patents, No. 627,898 and No. 627,900, for a truclî for street cars, on a 
prior décision involving practically the same issues. 

1 1. See Patents, vol. 38, Cent. Dig. § 488. 



1*0 129 FBDBEAL EEPORTEB. 

^" Equity- Suit for infringement of letters patent No. 627,898 and 
No. 627,900, for a truck for electric street cars, granted to George M. 
Brill June 27, 1899. On motion for preliminary injunction. 

Edmund Wetmore, Francis Rawle, and Joseph L,. Levy, for com- 
plainants. 
Chas. H. Duell, for défendant. 

LACOMBE, Circuit Judge. The patents in suit and similar in- 
fringing devices to those complained of were before the Circuit Court 
in the District of New Jersey on final hearing. 124 Fed. 778. Nearly 
ail the prior patents now presented were then submitted, although the 
opinion does not specifically enumerate them. Under such circum- 
stances the practice hère is to inquire, first, whether the record con- 
tains anything not before the New Jersey court, and, if something new 
is found, to inquire whether it is of such a character that it may fairly 
be supposed that such court would hâve reached a différent conclusion 
had it been presented in the earlier case. Badische Anilin &; Soda 
Fabrik v. Klipstein (C. C.) 125 Fed. 543. There is nothing new hère 
except prior patents to Beach and to Davenport and Bridges, and the 
file wrapper and contents. Neither of thèse patents shows the précise 
combination which would anticipate, and the old éléments they show 
were already shown in the patents which were before the court in the 
other cause. It is not thôught that any différent resuit would hâve 
been reached had thèse and the file wrapper been originally put in proof. 
The Circuit Court in New Jersey, however, stayed the issuance of in- 
junction until its décision could be passed upon by the Court of Ap- 
peals, and a similar disposition would seem proper in the case at bar. 
The ordinary injunction order will therefore be signed. Immediately 
upon its entry défendants may take an order suspending opération of 
the injunction upon défendant filing a bond for $20,000 and sworn state- 
ments of bimonthly sales of the infringing trucks; the suspension, 
however, to be limited to the time required to secure décision of appea! 
in the Third Circuit, with provision that in the case of any delay by ap- 
pelants in that case complainants hère may move to vacate the order 
suspending stay. 

An injunction order will be signed in the suit against the old Com- 
pany, Peckham Motor Truck & Wheel Company, but no suspending or- 
der will be granted in that case. 



WESTINGHOUSE ELECTRIC & MANUFACTURING CO. T. STANLEÏ 
INSTRUMENT CO. 

(Circuit Court, D. Massachusetts. Marcli 11, 1903.) 

No. 1,084. 

1, Patents— Anticipation— Electric Motors. 

The Tesla patents, Nos. 511,559 and 511,560, for a method and means 
of operating electric motors, held void for anticipation by the Ferraris 
publication at Milan, on évidence which failed to carry the date of Tes- 
la's Invention back of such publication. 



WILLIAM FIRTH CO. V. MILLEN COTTON MILLS. 141 

In Equity. Suit for infringement of letters patent Nos. Sii,559 and 
511,560, for a method and means of operating electric motors, granted 
to Nikola Tesla, December 26, 1893. On final hearing. 

Kerr, Page & Cooper and Frederick P. Fish, for complainanL 
Mitchell, Bartlett & Brownell, for défendant. 

COLT, Circuit Judge. Upon careful considération of the évidence, 
I hâve reached the conclusion that the complainant has failed to estab- 
lish, by sufficient proofs, the conception by Tesla of the inventions in 
suit prior to April 22, 1888, the date of the Ferraris publication. _ In 
complainant's supplemental brief I find no reasons stated or authorities 
cited which should lead the court to any différent conclusion. 

Since the hearing in the case at bar, the Circuit Court of Appeals for 
the Second Circuit, in a suit, involving the same patents, brought by 
this complainant against the Catskill Illuminating & Power Company, 
upon the same évidence which was before us, has held that the proofs 
were insufficient to establish invention by Tesla prior to April 22, 1888. 
This décision, which was passed down February 26, 1903, renders un- 
necessary an extended opinion by this court, since it would be only a 
répétition of the views so clearly expressed by Judge Townsend in the 
opinion of the court in the Catskill Case, 121 Fed. 831. 

A decree may be entered dismissing the bill, with costs. 



WILLIAM FIRTH CO. v. MILLEN COTTON MILLS. SOUTHEEN 

COTTON MILLS & COMMISSION CO. v. SAME. C. B. 

RILBY & CO. V. SAME."* 

(Circuit Court, S. D. Georgla, N. E. D. May 4, 1903.) 

1, CoKPOEATioNs— Liens— Sale or Assets — Attornbts fob Stockholdees— 



Suit Mving been brought to foreclose liens on a new cotton mlll, the 
property of a corporation, petitioners flled a bill on behalf of certain stock- 
holders, alleging that the suit to sell the property was in aid of a collu- 
sire combination to deprive such stockholders of thelr interest, and prayed 
that the court take charge of the property, and operate the same for the 
payment of the corporation's debts. The bill was Consolidated wlth the 
prior proceedings without objection, and, on petitioners' initiative, an ex- 
pert was appointed, who made a valuable report to the court as to the 
property and the advisabllity of operating the same, after which a decree 
of sale was ordered on the combined bill, at which only $50,000 was bid 
(or property worth $160,000. This sale was set aside on petitioners' ob- 
jection, and a resale ordered at an upset price of $90,000, for which the 
property was sold. Held, that petitioners, having rendered valuable serv- 
ices both to the court and to the creditors, were entitled to a fee of $1,500 
eut of the proceeds of the sale. 

In Equity. Pétition of Erwin & Callaway and Hall & Wimberly, for 
attomey's fées. Exceptions to master's report 

* Reversed on appeal. See 129 Fed. 79. 



142 129 FEDBBAL REPORTER. 

Marion Erwin, Merrel P. Callaway, John I. Hall, and Olin J. Wim- 
berly, for petitioners. 

William K. Miller, for J. R. Lamar, trustée, purchaser. 
E. H. Callaway, for Millen Cotton Mills. 

SPEER, District Judge (orally). The equity of solicitors for the 
appHcant hère is based upon the following facts : There was a bran 
new cotton mill of modem construction, with modem machinery, 
complète and ready for opération. It cost $160,000. Some of its 
directors were also creditors. They were entering into negotiations 
with other creditors for the purpose of bringing about a sale of the 
property at much less than its real value. There can be no doubt 
about thèse facts. One of thèse creditors, namely, the William Firth 
Company, brought an original bill seeking to foreclose certain liens 
and sell the property. The stockholders who had put their means 
in large amount in this venture saw that their ail therein invested 
was threatened, and they brought a separate bill with a view to hâve 
the court take charge of the property, protect it from collusive com- 
binations which threatened to ruin ail except those in the alleged 
combination, and if possible hâve such an investigation made as 
would enable the court to détermine if it could be operated profit- 
ably, and thus work itself out of debt. This bill, without any ex- 
ception from any quarter, was by order of the court consoHdated 
with the original bill for foreclosure, and thereafter the cases pro- 
ceeded together. The sale was had under the Consolidated bills. 
Adéquate compensation, $1,500 in amount, was by the purchasers, 
and through a private agreement of which the court was not ap- 
prised until the hearing, paid the solicitors, who filed the original 
bill. It was stated in judicio by one of the solicitors for the pur- 
chasers, who were also the lienholders, that it was deemed safer to 
pay ofï thèse solicitors than to fight them, but ail compensation is 
refused to Messrs. Hall & Wimberly and Erwin & Callaway, who 
brought the bill intended to conserve the properties, and who now 
apply for an allowance. In addition to thèse proceedings, C. E. 
Riley & Co. filed another bill to foreclose mechanics' liens, and their 
solicitors were paid. It is quite safe to conclude that their fées were 
deducted from the large values thèse purchasers secured by this hti- 
gation ; in other words, from the fund in court. We, however, hâve 
no knowledge of the amount paid thèse gentlemen, who now repre- 
sent the purchasers resisting the claim of Hall & Wimberly and 
Erwin & Callaway. Mr. E. H. Callaway, counsel for the Millen Cot- 
ton Mills, bas also been paid by private understanding, presumabîy 
from the same fund. It is to be observed that his client through 
answer filed by him expressly approved the effort of the soHcitors 
now seeking compensation to save the property by their attempt to 
hâve the receivers work it out of debt. Upon the averments of this 
bill such investigation was made, an expert was appointed, the re- 
ceiver under the original bill of William Firth Company not having 
the requisite technical knowledge, and the expert Mr. Tracy I. Hick- 
man made a careful investigation into the status and character of 



WILLIAM FIBTH CO. V. MILLEN OOTTON MILLS. 143 

the property and the facilities for opération, ànd with the co-receiver 
made a joint report to the court. This report was of undeniable 
value, net only to the court, but to ail of the creditors. The re- 
ceivers, it is true, reached the conclusion that the property could 
not be operated profitably by them, and that, in itself, was a matter 
of very great value to ail the parties at interest, because otherwise 
the court might hâve gone forward in the effort to keep the enter- 
prise a going concern, and might for the lack of information hâve 
entailed greater loss on the creditors. The investigation thus made 
by the receiver appointed under the bill filed by the attorneys mak- 
ing application for counsel fées was generally of great value to the 
court, and his gênerai participation in the management and con- 
servation of this property, he being an experienced mill man, was 
also advantageous to the trust fund. Finally, however, the property 
was brought to sale. It was alleged that the combination had been 
made to sell it for $40,000, and it is signifîcant that the bid as made 
for it, in which the local directors and the other lien creditors were 
interested, was for $50,000, and those parties who were charged as 
combining to sell it in the first instance were in large measure 
intended to be the beneficiaries of this bid. The soUcitors now seek- 
ing compensation filed objections to the price offered, and upon fui! 
hearing the bid was held inadéquate. Thèse gentlemen attended 
the hearing of the motion to confirm the sale, and made a full show- 
ing why it should not be confîrmed. A resale was ordered, and the 
property brought the sum of $90,000, an increase of 44 per cent, 
over the bid originally made. This sale was approved. 

Now, it cannot be questioned that the conduct of thèse solicitors 
was meritorious. They did not succeed in accomplishing ail that 
they set out to do in the first instance, but it seems a just conclusion 
that they contributed to increase the aggregate value of the fund 
in court from $50,000 to $90,000. They appeared at ail the triak 
of the various issues in the cause. Thèse were numerous. Their 
counsel assisted the court in every way possible, they took part in 
ail the efïorts to resuscitate this venture which was earnestly and 
persistently attempted by the court with a view to save the creditors 
and stockholders as well, and to bestow upon the community where 
the mill was situated the great benefits to resuit from the opération 
of such an establishment. 

In the exercise of the équitable discrétion in such cases justified 
by the authorities, it seems justifiable to allow thèse gentlemen com- 
pensation for their services. Besides, there will be no great hard- 
ship on the syndicate of creditors and directors of the Millen Cotton 
Miîls, who, as the resuit of thèse proceedings, hâve obtained a clear 
title to a new mill, with the most modem and costly machinery, 
worth $160,000, for $90,000 of their claims. The actual price they 
paid, reduced to a money basis, is in fact much less. It is apparent 
to the court that but for the action of the solicitors now seeking 
compensation the mill would hâve been sacrifîced .for a little more 
than half this sum, with utter ruin to every interest save the pur- 
chasers thus favored, and leaving $40,000 of liens unpaid, with the 
inévitable delay, litigation, and diminution of the trust fund which 



144 129 FEDEBAIi REFOBTEB. 

must have resulted by the efforts of those parties to recoup them- 
selves. 

We conclude, therefore, that the solicitors before the court asking 
an allowance are entitled to compensation, under the circumstances ; 
and since it is conceded on ail hands that, if entitled at ail, a fee of 
$1,500 will be entirelj- reasonable, that sum will be allowed. 



KALAMAZOO CORSET CO. v. SIMON. 
(Circuit Court, E. D. Wisconsin. March 20, 1903.) 

1. CoNTEACTS— Construction— Usage. 

While proof of a gênerai usage Is admissible to explain a contract, In 
the absence of express stipulations, or where the meaning of the parties 
Is uncertain, from the language used, usage cannot be shown to vary the 
légal Import of the contract as made, or to add new terms thereto. 

2. S AME— Application of Usage. 

Where numerous lots of corsets were offered for sale by letter as a 
"job lot" and as an entirety, the letter stating that "the enclosed stock 
sheet shows the quantity of each style and color," and that "the proportion 
of sizes," as shown, "is nearly perfect," which offer défendant declined, 
but selected and offered to take three of the lots as specified in the stock 
sheet, the acceptance of defendant's offer made a contract based on ex- 
press stipulations, which was not within a usage that, in the purchase of 
job lots, the buyer is not obligated if the variation in the deliveries is con-' 
siderable, and that it rests with the buyer to détermine whether the dis- 
crepancy is reasonable or unreasonable. 

3. Same— Validity — Definiteness. 

A usage that, in sales of job lots of goods, the buyer is not obligated if 
the variation in the quantity delivered is considérable, and that it rests 
with the buyer to détermine whether the discrepancy is reasonable or un- 
reasonable, no deflnite test being recognized, Is invalid for uncertainty, 

4. Same— Pebfokmance or Contract— Subbtantial Variations. 

Where défendant purchased three job lots of corsets, represented on 
plaintiff's stock list as containing 25110/12 doz., 20411/12 doz., and 8O9/12 
doz., and the deliveries offered contained 266% doz., 267i/i2 doz., and 78 
doz., the variance was substantial, and entitled the buyer to refuse ac- 
ceptance. 

5. Same— Question fob Court. 

Where, in an action for breach of a contract of sale, the facts were 
undisputed, and a verdict for plaintiff would be unsupported by testimony 
or legitimate inference from any fact in évidence, it was proper for the 
court to détermine the same without submitting it to the jury. 

6. Same— Waiver. 

Where défendant agreed to purchase certain job lots of corsets accord- 
ing to a stock sheet showing the quantities, he did not waive his right to- 
refuse to accept because of a material variance in the quantities delivered, 
by his mentioning only his own mistake in ordering one of the lots, wben 
he intended to order anothei", which the seller refused to permit him t» 
correct. 

On Motion for New Trial. 

Durant, Price & Cowen, for plaintifï. 

Winkler, Flanders, Smith, Bottom & Vilas, for défendant. 

SEAMAN, District Judge. The suit is for breach of contract of 
purchase, by refusai to accept the goods tendered as a delivery. The 
contract is in writing for the purchase of a large quantity of corsets 



KALAMAZOO COESET CO. V. SIMON. 145 

from the manufacturer, designated in the pleadings as a "job lot" or 
"job lots," and the facts are undisputed. Verdict was directed in fa- 
vor of the défendant upon the ground that the goods tendered for de- 
livery greatly exceeded the terms of the order in two of the lot num- 
bers, and were slightly déficient in the other number. As the goods 
varied in size and color in each lot, and came intermingled, so that 
several days' work was involved in checking and storing, the défend- 
ant was justified in the rejection, if the letter of the contract governs 
the issue. The plaintifï made an offer by letter to close out numerous 
lots of corsets, each bearing a descriptive number, at priées named for 
each, inclosing a "stock sheet," which, the letter stated, "shows the 
quantity of each style and color. You will observe the proportion of 
sizes is nearly perfect." The défendant answered with an offer for 
three of the lots — Nos. 79, 20 and 249 — referring to the stock list, at 
priées named by him, but refusing the others, and this was accepted. 
In the stock list. No. 79 contained 251^°/" doz. ; No. 20 contained 
204^Vi2 doz.; and No. 249, 80^/12 doz. The plaintiff sent instead of 
No. 79, 266y3 doz.; of No. 20, 267 V^^ doz.; and No. 249, 78 doz. 
Under well-settled rules, this tender is not performance of the con- 
tract, unless (l) the contract terms are subject to modification by the 
proof admitted of gênerai custom in respect of job-lot transactions; 
and (2) the performance appears to be within a valid gênerai custom or 
usage applicable thereto. 

1. Proof of a gênerai usage is admissible to explain a contract, either 
"in the absence of express stipulations, or where the meaning of the 
parties is uncertain upon the language used, and where the usage of the 
trade to which the contract relates, or with référence to which it was 
made, may afford explanation and supply deficiencies in the instru- 
ment." Oelricks v. Ford, 23 How. 49, 63, 16 L. Ed. 534, 5 Rose's 
Notes (U. S.) 966. So it may be that référence to a "stock sheet" in a 
simple offer and acceptance of a job lot may thus be open to explana- 
tion where no express stipulations appear to govern the interprétation. 
Nevertheless the rule stated by Mr. Justice Story in The Reeside, 2 
Sumn. 567, Fed. Cas. No. 11,657 — approved in De Witt v. Berry, 134 
U. S. 306, 312, 10 Sup. Ct. 536, 33 L,. Ed. 896— appears to prevail, 
namely, "that it can never be proper to resort to any usage or custom 
to control or vary the positive stipulations in a written contract, and a 
fortiori not in order to contradict them. An express contract of the 
parties is always admissible to supersede or vary or control a usage or 
custom." As stated in De Witt v. Berry, supra, "While paroi évidence 
is sometimes admissible to explain such terms in the contract as are 
doubtful, it is not admissible to contradict what is plain, or to add new 
terms." Usage cannot be shown to vary the légal import of the con- 
tract as made. 27 Am. & Eng. Encyc. 862. In the light of thèse prin- 
ciples I am of opinion that the terms of référence to the stock sheet in 
each of the letters constituting the contract in question exclude the 
custom from considération, even if the custom as shown is otherwise 
applicable to the transaction. 

2. On the other hand, the custom stated by the witnesses cannot af- 
fect the contract for two reasons, at least : (i) Because the transaction 

129 F.— 10 



146 129 FEDERAL REPORTER. 

was not the ordinary job-lot sale to which the testimony of usage re- 
lates ; and (2) because the terms of the usage are either too uncertain 
to admit of its considération, or exclude the case of large excess shown 
in two of thèse lots, (i) The only transaction to which the testimony 
of usage can be deemed applicable is one of simple offer and acceptance 
of a recognized job lot upon the mère exhibition of a stock sheet, usually 
in the hands of a traveling salesman for that purpose. Hère numerous 
lots were ofifered by letter, as a job lot and as an entirety, stating that 
"the enclosed stock sheet shows the quantity of each style and color," 
and that "the proportion of sizes," as shown, "is nearly perfect." The 
défendant declined this offer, but selected and offered to take three of 
the lots as specified in the stock list. Acceptance of this offer made 
the contract upon that basis as one of express stipulations, and not 
within the alleged usage. (2) In any view, however, the testimony con- 
curs in the requirement that the stock sheet must show approximately 
the quantity of goods in the lot offered for sale, the only variations 
being for diminution or increase naturally arising in due course of the 
business before the sale is consummated; and the two disinterested 
witnesses concur in testifying that the buyer is not obligated under 
the custom if the variation is considérable, and that it rests "with the 
buyer to détermine whether the discrepancy is reasonable or unrea- 
sonable," no definite test being recognized. On the last-mentioned ver- 
sion of the custom — shown on legitimate cross-examination, as I un- 
derstand its import — uncertainty in its terms and obligation clearly bars 
it from entering into the alleged sale. Oelricks v. Ford, 23 How. 62, 
16 L. Ed. 534. There was no meeting of the minds of parties upon the 
subject-matter to make an executory contract. It is true that a valid 
contract could be made for a spécifie lot, though the quantity was unde- 
termined ; that it could be made for such quantity as was produced 
or remained on hand at a given time or event. The quantity would 
then be determined by the event. But no such contract is made by 
the alleged usage. No such test is made binding. The question 
whether the quantity conformed to the offer and acceptance was con- 
tingent upon the buyer's view whether the variance was reasonable or 
unreasonable, and in any aspect no definite test was provided. Treated 
as "an absolute contract for a spécifie quantity within a reasonable 
limit" (Cabot v. Winsor, r Allen, 546, 551), it is plain that the variance 
is substantial. The facts being undisputed, the question thereupon was 
rightly determined by the court without submission to the jury. Cabot 
V. Winsor, supra. A verdict contra would be unsupported by testi- 
mony or by legitimate inference from any fact in évidence. 

The contention that the défendant waived this defect by mentioning 
only the mistake made by him in ordering No. 79, when he intended 
No. 179, is not tenable. It is probable that he would hâve waived if 
that correction had been allowed, but it is clear that he did not do so 
when they refused, and he had ascertained the true state of facts. 

The motion for a new trial is denied, and judgment will enter upon 
the verdict. 



CN BE LEWIS. 1^7 

m re LEWIS. 
(District Court, D. Delaware. Aprll 5, 1904.) 

No. 95. 

1. BANKEUPTCT — iNVOLTJNTAKy PETITION — UlSMISSAL. 

An involuntary pétition in bankruptcy, in due form, by three créditons, 
will not be dismissed on the application of two of them, against the objec- 
tion of the ttiird, on the ground merely that the two "désire and consent 
that said pétition and proceedings be dismissed." 
(Syllabus by the Court) 

In Bankruptcy. 

Robert H. Vandyke, for petitioners. 

C. L. Ward, for Champion Mfg. Co., one of original petitioners. 

BRADFORD, District Judge. An involuntary pétition in bank- 
ruptcy, containing the proper averments and in due form, was filed 
March 26, 1904, by the Supplée Hardware Company, Samuel M. Mal- 
lalieu and the Champion Manufacturing Company against Louisa S. 
Lewis. On the same day a receiver of the estate of the alleged bank- 
rupt was appointed, who has since qualified, and entered into posses- 
sion thereof. Process issued pursuant to the prayer of the pétition 
and was served March 28th. Two of the three petitioning creditors, 
namely, the Supplée Hardware Company and Mallalieu, hâve this 
day filed a pétition praying that the pétition in involuntary bank- 
ruptcy in which they joined, and the proceedings thereon, "be dis- 
missed, and that notice be given to the creditors as provided by the 
bankruptcy law." On the présentation of this pétition in open court 
the Champion Manufacturing Company, the remaining original peti- 
tioner, through its counsel, objected to the granting of the prayer 
thereof, and insisted that the case in bankruptcy should not be ar- 
rested. There are several independent objections fatal to the grant- 
ing of the prayer of the pétition for dismissal. It is unnecessary, 
however, to consider in this opinion more than one. The pétition 
wholly fails to state any ground justifying a dismissal as prayed. 
The sole reason assigned is "that your petitioners désire and consent 
that said pétition and proceedings be dismissed." Such a reason is 
palpably insuificient, even were there no other objections to the grant- 
ing of the prayer for dismissal. The pétition does not show how a 
dismissal could inure to the gênerai benefit of the creditors, nor, in- 
deed, does it aver that it would be of such benefit. To dismiss the 
proceedings in bankruptcy on the ground alleged would establish a 
harmful précèdent. In the language employed in another connection 
by Judge Blodgett in the case of In re Heffron, Fed. Cas. No. 6,321, 
decided under the bankruptcy act of 1867, "It would lead to under- 
hand and secret negotiations between the debtor and a portion of the 
creditors, and be a strong incentive for showing favors to a few 
creditors at the expense of the many." Therefore, if it be assumed 
that the pétition for dismissal has not been prematurely presented, no 
list of creditors having been filed in the case, and if it be further as- 
sumed that the court could properly order a dismissal of the proceed- 



148 129 FBDBBAL RSFOBTEB. 

ings in bankruptcy on the application of two of the original petîtioners 
against the protest of the third, and if it be further assumed that the 
prayer for dismissal sufficiently discloses an existing pecuniary inter- 
est on the part of the Supplée Hardware Company and Mallalieu, or 
either of them, in the subject to which it relates, the court would still 
be obliged to deny the présent application. 



SOCIAL REGISTER ASS'N t. MURPHY. 

(Circuit Court, D. Rhode Island. Mnrch 9, 1904.) 

No. 2,617. 

1. Copteioht—Infbingement— Damages Recoverabxe in Equitt. 

In a suit in equity for infringement of copyriglit there can be no re- 
covery In tlie way of damages beyond the gains and profits which the de- 
fendant Is shown to hâve realized from the infringement 

In Equity. On motion for entry of decree. 
See 128 Fed. 116. 

Gifford & Bull, for complainant. 
Matteson & Healy, for défendant. 

BROWN, District Judge. This is a motion for the entry of a de- 
cree for infringement of copyright. The complainant is entitled to an 
account of the profits, gains, and advantages which the défendant has 
received. It is not entitled to damages other than this. The complain- 
ant relies upon section 4964 of the Revised Statutes, which provides 
that an infringer shall "pay such damages as may be recovered in a 
civil action by such proprietor in any court of compétent jurisdiction." 
This does not enlarge the jurisdiction of a court of equity. It is not 
analogous to section 4921, which confers upon the courts power, in 
patent causes, to render a decree for damages in addition to profits to 
be accounted for. The gênerai principles governing courts of equity 
in such matters are explained in Root v. Railway Co., 105 U. S. 189, 
207-215, 26 L,. Ed. 975; Chapman v. Ferry (C. C.) 12 Fed. 693; Cal- 
laghan v. Myers, 128 U. S. 663, 9 Sup. Ct. 177, 32 h. Ed. 547. See, 
also, Stevens v. Gladding, 17 How. 447, 15 L. Éd. 155; 7 Am. & Eng. 
Enc. Law (2d Ed.) 590. This point was not involved in the décision 
of Belford v. Scribner, 144 U. S. 488, 12 Sup. Ct. 734, 36 L. Ed. 514. 
The decree simply awarded profits, and no distinction was made be- 
tween profits and damages. While in some cases the profits to be ac- 
counted for are spoken of as damages, yet in no case that has been pre- 
sented is it held that damages, as distinct from or additional to profits, 
can be decreed in equity in a copyright case, as in patent causes. 
While the word "damages" is used in decrees, it is used synonymously 
with "profits." Confusion can be avoided by omitting the word "dam- 
ages," since the word "profits" is more accurate, and sufficient. The 
waiver of forfeiture removes ail objection to the examination of the 
défendant on the accounting. The only proofs of infringement of 

H 1. See Copyrights, vol. 11, Cent. Dig. §§ 81, 83. 



DAVIS V. KANSAS & TEXAS COAL CO. 149 

Spécifie copyrights that hâve been presented are those contained in the 
complainant's exhibit "Parallel Columns." The decree should be limit- 
ed by striking out ail copyrights other than those referred to in that 
exhibit. Clause 3 should be amended by striking out the words "one 
or more of the copyrights," and inserting a référence to the spécifie 
copyrights which the défendant has infringed as appears by said ex- 
hibit. 

I find no sufficient reason for the déniai of the usual costs to the 
complainant. 

Let a draft decree be prepared accordingly. 



DAVIS V. KANSAS & TEXAS COAL 00. et al. 
(Circuit Court, W. D. Arkansas, Ft Smith Division. April 1, 1904.) 

1. FOEEIQN COEPORATIONS— SeBVICE OF PeOCESS— CONBTITUTIONALITY OF STAT- 

UTE. 

Act Arlv. Feb. 26, 1901 (Acts 1901, p. 52, | 1), which provides that where 
a right of action shall accrue in favor of a résident or citizen of the state 
against a foreign corporation, whether arising on contract or In tort, aW 
such corporation shall not hâve an agent in the state or hâve designated 
a person on whom service may be made, process may be served on the 
Auditor of State, and shall be sufficient to give jurisdiction of the person, 
when construed in connection with previous législation requiring foreign 
corporations doing business in the state to designate agents therein on 
whom process might be served, is constitutional and valid, as applied to 
corporations which were doing business in the state after the passage 
of the act and at the time the cause of action sued on accrued therein In 
favor of a citizen, and a corporation caimot évade service in such case 
by thereafter withdrawlng from the state and canceling the appointment 
of its designated agent. 

On Motion to Quash Service. 

T. B. Pryor, for plaintifî. 

Ira D. Oglesby, for défendants. 

ROGERS, District Judge. This suit was brought in the state 
court, and removed by the défendants to this court. A motion is 
now made by the défendant the Kansas & Texas Coal Company to 
quash the service. The service was made upon the Auditor of State, 
and the motion allèges that the service upon the Auditor was un- 
authorized, illégal, and insufficient, and conferred no jurisdiction to 
render personal judgment against said défendant, because no war- 
rant or authority of law exists for the service of such process upon 
the Auditor ; second, because the service of the process upon the 
Auditor of the state of Arkansas under the act under which the 
service was made is in violation of section 8, art. 2, of the Consti- 
tution of Arkansas, and of the fifth and fourteenth amendments to 
the Constitution of the United States. The provision of the Con- 
stitution of Arkansas referred to is the one which provides that no 
person shall be deprived of life, liberty, or property without due 

1 1. Service of process on foreign corporations, see note to Eldred v. Amer- 
ican Palace Car Co., 45 C. C. A. .3. 



150 129 FEDERAL EEPOETER. 

process of law; being, in substance, the same as article s of the 
fédéral Constitution. 

It was conceded in the argument that, at the time the injury com- 
plained of occurred, the Kansas & Texas Coal Company was doing 
business in the state of Arkan.sas, and in the Ft. Smith division of 
the Western District thereof. It was also conceded that, at the time 
the suit was brought, the Kansas & Texas Coal Company had ceased 
to do business in the state, and had no agent in the state upon 
whom service could be made. It also appears from the record that 
up to the 28th of July, 1902, Thomas R. Tennant was the designated 
agent of the Kansas & Texas Coal Company for the service of sum- 
mons and other process, and that his agency was revoked on the 
28th day of July, 1902, and that prior to the 28th of July, 1902, the 
Kansas & Texas Coal Company had ceased to do business in the 
state of Arkansas, and was not engaged after that time in any busi- 
ness in the state, and that at the time of service of process in this 
case Thomas R. Tennant was not the agent of the Kansas & Texas 
Coal Company, or in any way connected with or employed by it. 
It ,also appears from the record that service had been had upon the 
sSÉÎd Tennant, and had been quashed by the state circuit court, be- 
fore the removal of this case into this court, to which action the 
défendant the Kansas & Texas Coal Company at the time excepted. 
The service was had under the act approved February 26, 1901 (Acts 
1901, p. 52), section i of which is as foUows : 

"In ail cases where cavise of action shall accrue to a résident or citizen of 
the state of Arkansas, by reason of any contract with a foreign corporation, 
or where any liabllity on the part of a foreign corporation shall aecnie in 
favor of any citizen or résident of this state, whether in tort or otherwise. 
and such foreign corporation bas not designated an agent In this state upon 
whom process may be served, or has not an offlcer continuously residing in 
this state upon whom summons and other process may be served so as to au- 
thorize a Personal judgment, service or summons and other process may be 
had upon the Auditor of State, and such service shall be sufficient to give 
jurisdiction of the person to any court in this state having jurlsdiction of the 
subject-matter, whether sitting in the township or county where the Auditor 
Is served, or elsewhere in the state." 

If this act stood alone, the court would be compelled to quash the 
service. Manifestly this statute, standing by itself does not author- 
ize service upon the Auditor, which would be binding upon the de- 
fendant corporation, if it was not doing business in Arkansas at the 
time the cause of action accrued, or vi'here the cause of action grew 
out of a transaction outside of the state. The act is broad enough, 
however, to cover that class of cases. It must be construed, if it 
can be upheld at ail, to apply only to causes of action against cor- 
porations growing out of transactions while such corporations were 
doing business in the state ; and, if this act stood alone, it could 
not be upheld at ail, as against the Kansas & Texas Coal Company, 
but it does not stand alone. The act of the Législature of Arkan- 
sas approved February 16, 1899 (Acts 1899, pp. 18-21), is as foUows : 

"Section 1. Every corporation fornied in any other state, territory or coun- 
try, before it shall be authorized or permitted to transact business in this 
state, or to continue business therein, if already established, sliall by its cer- 
tificate, under the hand of the président and seal of such company or corpo- 



DAVIS V. KANSA8 A TEXAS OOAI. 00. 151 

ration, filed In the office of the Secretary of State of thls state, deslgnate an 
agent, who shall be a citizen of thls state, upon wbom service of snmmons and 
other process may be made. Such certiflcate shall also state the principal 
place of business of such corporation in thls state. Service upon such agent 
shall be suffleient to glve jurisdiction over such corporation to any of the 
courts of thls state. Any corporation so flling such certiflcate in the office 
of the Secretary of State shall pay therefor a fee of one dollar ($1.00) for 
such flling, and a like fee for each subséquent appointment of an agent so 
flled. 

"Sec. 2. Every company or corporation incorporated under the laws of any 
other state, territory or country, now or hereafter doing business in this state, 
shall flle in the office of the Secretary of State of this state, a copy of its 
charter, or articles of incorporation or association ; or, ia case such company 
or corporation is Incorporated merely by a certiflcate of incorporation, duly 
authenticated and certified by the proper authority. The Secretary of State 
shall cause ail such charters, articles of incorporation or association so flled 
to be duly recorded In a book kept for that purpose. And such corporation 
shall be required to pay into the treasury of the state, Incorporating and oth- 
er fées equal to those required of similar corporations formed with and under 
the laws of this state. Upon compllance with the above provisions by said 
corporation, a copy of such charter, or articles of incorporation, or certiflcate 
so flled, properly certifled under the seal of hls office, shall be taken by ail 
the courts of this state as évidence that the said corporation is entltled to 
ail the rights and beneflts of this act And such corporation shall be entltled 
to ail the rights and privilèges, and subject to ail the penalties conferred and 
imposed by the laws of this state upon similar corporations formed and ex- 
isting under the laws of this state : provided, that the provisions of thls act 
requiring copy of original charter, and certiflcate naming an agent, and to 
pay certain fées therefor, shall not apply to railroad or telegraph companies 
which hâve heretofore built their Unes of railroad or telegraph into or through 
this state : provided further, that the provisions of this act are not inteuded 
and shall not apply to 'drummers' or traveling salesmen solicitlng business 
in this state for foreign corporations which are entirely nonresldent. 

"Sec. 3. On and after the going into effiect of this act, any foreign corpora- 
tion, as defined above, which shall refuse or fail to comply with this act, shall 
be subject to a flne of not less than one thousand dollars ($1,000.00), to be 
recovered before any court of compétent iurisdiction ; and it is hereby made 
the duty of the prosecuting attorneys of the différent judicial districts of thls 
state to see to the proper enforcement of this act. Ail such fines so recovered 
shall be pald into the gênerai revenue fund of the county in which the cause 
shall accrue. In addition to which penalty, or after the going Into effect of 
thls act, no foreign corporation, as above defined, which shall fail to comply 
with this act, can maintain any suit or action, either légal or équitable, in 
any of the courts of this state, upon any demand, whether arising ont of con- 
tract or tort 

"Sec. 4. Any foreign corporation that has heretofore engaged in business, 
or made contracts in this state, may wlthin ninety days after the passage 
of this act, flle such copy of articles of incorporation, together with certiflcate 
of appointment of an agent upon whom service of summons and other légal 
process may be had, in the office of the Secretary of State, and pay the req- 
uisite fées thereon, as provided by this act, then ail their contracts made 
before this act goes into efCect are hereby declared as valid as if said arti- 
cles of incorporation and certiflcate, as herein defined, had been flled before 
they began business in this state. 

"Sec. 5. That ail laws and parts of laws in conflict herewith be and the same 
are hereby repealed, and that this act shall take effect and be in force from 
and after its approval." 

By an act approved March i8, 1899 (Acts 1899, pp. 116, 117), it is 
provided : 

"Section 1. That section 1323 be amended so as to read as follows : Before 
any foreign corporation shall begin to carry on business in thls state, It shall, 
by its président and seal of said company filed In the office of the Secretary 



152 129 FEDERAI!. REPORTEE. 

ot State, deslgnate an agent who shall be a citizen of this state, upon whom 
service of summons and other process may be made. Such certiflcate shall 
state the principal place of business of sald corporation In this state, and 
service upon such agent at any place In this state shall be sufBeient service 
to give jurisdlction over such corporation to any of the courts of this state, 
whether the service was had upon said agent withln the county whore the 
suit is brought or Is pending or not. 

"Sec. 2. Ail acts and parts of acts Inconsistent with this act are hereby re- 
pealed, and this act shall take efCect and be in force from and after its pas- 
sage." 

By an act of the Législature of Arkansas (Acts 1899, pp. 305-307), 
section 2 of the act of February 16, 1899, was amended so as to read as 
follows : 

"Section 1. That section two (2) of sald act be and the same is amended so 
as to read as follows : Every Company or corporation incorporated uuder the 
laws of any other state, territory or country, now or hereafter doing business 
in this state, shall flle in the office of the Secretary of State of this state, a 
copy of its charter, or articles of incorporation, or association, or in case such 
Company or corporation is incorporated merely by a certiflcate, then a copy 
of its certiflcate of incorporation, duly authentlcàted, and certified by the 
proper authority. The Secretary of State shall cause ail such charters, arti- 
cles of incorporation, or association, so filed to be duly recorded in a book 
kept for that purpose. And such corporation shall be required to pay into the 
treasury of the state, incorporating and other fées equal to those required 
of similar corporations formed withln and under the laws of this state. Upon 
compliance with the above provisions by said corporation the Secretary of 
State shall cause to be issued to said corporation, a copy of such charter, or 
articles of incorporation, or certiflcate so flled, properly certifled under the 
seal of bis office, and a copy of such charter, or articles of Incorporation or 
certiflcate, certifled to by the Secretary of State shall be taken by ail the 
courts of this state as évidence that the said corporation has complied with 
the provisions of this act, and is entitled to ail the rights and beneflts tberein 
conferred. And such corporation shall be entitled to ail the rights and privi- 
lèges, and subject to ail the penalties conferred and imposed by the laws ot 
this state upon similar corporations formed and existing under the laws of 
this state: provided, that the provisions of this act requlring copy of orig- 
inal articles of incorporation, or charter, and certiflcate naming an agent, 
and to pay certain fées therefor, shall not apply to railroad companies whlch 
hâve heretofore built their lines of railroad into or through this state: pro- 
vided further, that the provisions of this act are not intended and shall not 
apply to 'drummers' or traveling salesmen soliciting business in this state for 
foreign corporations which are entirely non-resident." 

Ail thèse acts must be construed together, so that the provisions of 
each of them may be permitted to stand, and from the whole the pur- 
pose and object of the Législature is to be deduced. It may be noted 
in this connection that as early as the 25th of April, 1873 (Acts 1873, 
p. 258, § 13), the Législature of Arkansas enacted the following stat- 
ute: 

"No Insurance Company, not of this state, nor its agents, shall do business 
in this state, until it has filed with the Audltor of this state a written stipu- 
lation, duly authenticated by the company, agreeing that any légal process 
affècting the company, served on the Audltor or the party designated by him, 
or the agent specifled by said company to reçoive service of process for the 
company, shall hâve the same effect as if served personally on the company 
withln this state. And if such company should eease to maintain such agent 
in this state, so designated, such process may thereafter be served on the 
Audltor ; but so long as any liability of the stipulating company to any rés- 
ident of this state continues, such stipulation can not be revoked, or modlfled, 
except that a new one may be substituted, so as to requlre or dispense with 



©AVIS V. KAN8AS & TEXAS COAL CO. 153 

service at the office of said company within this state, and that snch service, 
accordlng to this stipulation, shall be sufflclent personal service on the Com- 
pany. The term 'process' includes any wrlt, summons, subpœna, or order, 
wliereby any action, suit or proceedings shall be commenced, or which shall 
be issued in or upon any action, suit or proceedings." 

It will be noted that this last statute differs in some important par- 
ticulars f rom the statutes quoted above, which apply to other corpo- 
rations than insurance companies. For instance, by the last statute, 
before an insurance company could legally do business in the state, 
it was required to iîle a written stipulation "agreeing that ail légal 
process affecting the company, served on the Auditor or the party 
designated by him or the agent specifîed by said company to receive 
service of process for the company, shall hâve the same effect as if 
served personally on the company within this state." It is also pro- 
vided that if such company should cease to maintain such agent in 
the state, so designated, such process may thereafter be served on 
the Auditor; and it prohibited the revoking by insurance companies 
of such stipulation, except by substituting a new agent for the ône 
revoked. It is also provided specifically that service on the Auditor 
or such agent according to the stipulation shall be sufficient personal 
service on the company. 

Reviewing thèse several statutes, it appears that by a provision of 
the original Code of this state, which provision is now found in sec- 
tion 5672 of Sandel & Hill's Digest of the Statutes of Arkansas, a 
foreign corporation having an agent in this state, could be brought 
into court by making service upon such agent. Service could not be 
had upon a foreign corporation in this state at that time in any other 
way. It was therefore within the power of a corporation, if it saw 
fit, at any time, to withdraw its agents from the state, and in that 
way avoid suit. Afterwards, by an act of the Législature approved 
April 4, 1887 (Acts 1887, p. 234), incorporated in sections 1323-1325, 
inclusive, of Sandel & Hill's Digest, the Législature sought to cor- 
rect this evil, and provided that, before any foreign corporation shall 
begin to carry on business in the state, it shall, by its certificate under 
the hand of the président and seal of such company, filed in the office 
of the Secretary of State, designate an agent, who shall be a citizen 
of the state, upon whom service of summons and other process may 
be made. Such certiiicate shall also state the principal place of busi- 
ness of such corporation in the state. Service upon such agent shall 
be sufficient to give jurisdiction over such corporation in any of the 
courts of the state. And by such stipulation the failure by such cor- 
poration to comply with this provision rendered ail its contracts with 
ail the citizens of the state void, and the state courts were prohibited 
from enforcing the same in favor of such corporation. Corpora- 
tions doing business in the state were also given 90 days within which 
to comply with the statute. The purpose of this act was manifest. 
It was to prohibit the corporation doing business in the state until 
it had first designated an agent upon whom process might be served 
in favor of any citizen of the state who might hâve a cause of action 
against it. The act of February i6th, quoted supra, was intended to 
carry out the same idea, and also to further regulate the doing busi- 



154 129 PBDBBAIi REPORTEE. 

ness in this state by foreign corporations. The act of March i8th, 
supra, which amends section 1323 of Sandel & HiU's Digest, referred 
to supra, was intended to authorize suit to be brought against foreign 
corporations by service on the designated agent, whether the service 
was had upon said agent within the countv where the suit was brought 
or is pending, or not. The act of May 8th amending the second sec- 
tion of the act of February i6th, supra, in no wise affects the method 
previously provided for service upon corporations. It may be noted 
that the Législature of the state, up to this date, made no provision 
for service upon a foreign corporation, except upon an agent found in 
the state, or a citizen of the state designated as an agent upon whom 
service might be had under the acts above referred to. But the act 
of February 26, 1901, which is now assailed, and under which the 
process in this case was had, went a step f urther, and provided that : 

"In ail cases where cause of action shall accrue to a résident or citizen of 
tbe state of Arkansas, by reason of any contract with a foreign corporation, 
or where any Ilability on the part of a foreign corporation shall accrue in 
favor of any citizen or résident of this state, whether in tort or otherwise, 
and such foreign corporation has not designated an agent in this state upoii 
whom process may be served, or has not an offlcer continuously residing in this 
state upon whom summons and other process may be served so as to author- 
ize a Personal judgment, service of summons and other process may be had 
upon the Auditor of State, and such service shall be sufficient to glve juris- 
dictlon of the person to any court in this state having jurisdiction of the sub- 
ject matter, whether sitting in the township or county where the Auditor is 
served, or elsewhere in the state." 

Up to the passage of this act a foreign corporation doing business 
in the state might, at its pleasure, cease to do business in the state, 
recall its agents, and revoke the authority conferred under the acts 
above referred to upon a citizen of the state upon whom service could 
be made; and, this being done, no suit could be brought against it 
in the state. If the same is true under the provisions of the act of 
February 26th, to which I bave just referred, what was the object 
and purpose of the provision authorizing service to be made upon the 
Auditor? The company could not withdraw the agency of the Au- 
ditor, because that was conferred by the terms of the statute, and 
when it did business in the state after the passage of the act of Feb- 
ruary 26, 1901, that section of the statute became in the nature of a 
contract between the company and the state, to the effect that service 
might be had upon the Auditor of State in ail cases where suits accrued 
against the company while doing business within the state ; and it 
is beyond the power of the défendant company to revoke that pro- 
vision of the statute. If the object of the statute was not that the 
company might be sued after it had ceased to do business in the state, 
and had recalled its agents and revoked the agency of the person 
designated, then what could hâve been the purpose of the Législature 
in designating the Auditor as a person upon whom service might be 
had? It may be said that the object of designating the Auditor as 
a person upon whom process might be ser\'ed was to provide against 
the failure of foreign corporations to designate agents as previous 
statutes required ; but it must be remembered that, by the provisions 
of the previous statutes, foreign corporations were absolutely forbidden 



IN EE BEEINEE. 



165 



to do business in the state at ail until they had designated agents, and 
their contracts had been rendered void, and they themselves subjected 
to criminal prosecution, for their failure to comply with the statutes. 
I think, therefore, it is fair to say that the Législature intended that 
a foreign corporation doing business in the state should not escape 
suit in the state for contracts entered into by it or torts committed 
by it by simply ceasing to do business in the state, recalling its agents, 
and revolîing the authority of the person designated by it under the 
law to receive process. 

I am of the opinion that the principles laid down in the case of 
Collier v. Mutual Reserve Life Association (C. C.) 119 Fed. 617, are 
alike applicable to the case at bar, and that the motion to quash the 
process ought to be overruled. 0£ course, this opinion must be lim- 
ited to the facts before the court, and bas no application whatever to 
contracts entered into or torts committed by corporations not doing 
business within the state at the time the cause of action accrued, Be- 
cause the act of February 26, 1901, is broad enough to cover the acts 
and doings of foreign corporations beyond the territorial limits of 
the state, which never at any time did business within the state, and 
therefore, as to such corporations, is unconstitutional, it does not fol- 
low that the act should be held to be void as to the class of cases 
which arise out of transactions of foreign corporations doing business 
in the state at the time such cause of action accrued. 

The motion to quash the process in this case is overruled. 



In re BREINBR, 
(District Court, N. D. lowa. Aprll 22, 1904.) 

1. BaNKBUPTCT— CONCEALMENT OF ASSETS— DiSCHAEGE. 

Where, at the time of flling a voluntary pétition In bankruptcy, the 
banlirupt knew that he had an interest in his grandfather's estate, and 
knowingly omitted to list the same in his schedules, for the purpose of 
conceallng it from his creditors, and knowingly made a false oath to such 
schedules In expeetation of receiving a discharge from his debts and aft- 
erwards enjoyiiig the property, he was not entitled to discharge. 

2. Same— Amendmekt of Schedules. 

Where a bankrupt knowingly omitted certain assets from his schedules, 
the fact that he listed the property and amended his schedules after his 
attempt to conceal such assets, and after the fact that he had made a 
false oath had been discovered, was Insufflcient to relieve hlm of the con- 
séquences of such acts and entitle hlm to a discharge. 

On Pétition of the Bankrupt for Discharge, and Objections of Cred- 
itors Thereto. 

Kelly & Kelly, for bankrupt. 

E. A. Morling and Geo. B. McCarty, for opposing creditors. 

REED, District Judge. On November 27, 1903, Dallas D. Breiner, 
of Emmetsburg, Palo Alto county, was adjudged a bankrupt upon his 
own pétition, which was fîled November 2Sth, but sworn to by him 

H 1. See Bankruptcy, vol. 6, Cent. Dig. §§ 733, 735, 



156 129 FEDERAL REPORTER. 

November 13, 1903. On December 28th following he filed his péti- 
tion for discharge, and certain of his creditors, within the time allowed 
therefor, hâve filed spécifications of grounds in opposition thereto, 
which are substantially (i) that the bankrupt has concealed, while a 
bankrupt, from his trustée, property belonging to his estate in bank- 
ruptcy ; and (2) that he has made a false oath to his schedules attached 
to his pétition. From the évidence adduced in support of thèse spéci- 
fications it appears that Joseph Breiner, the father of the bankrupt, 
died December 26, 1902; that Francis J. Breiner, father of Joseph 
Breiner, and grandfather of the bankrupt, died testate in McDonough 
county, m, August 18, 1903. On March 9, 1900, the grandfather 
made his will, whereby he devised 80 acres of land and bequeathed cer- 
tain Personal property to one of his daughters, and the remainder of 
his estate, real and personal, in equal shares to six other children (of 
whom Joseph Breiner, the bankrupt's father, was one) and the children 
of a deceased son; thus leaving to the father of the bankrupt one- 
seventh of the remainder of his estate. After the death of the bank- 
rupt's father, and on January 13, 1903, the grandfather made a codicil 
to his will, the material parts of which are as follows : 

"Ist. It is niy will that my former will, executed March 9th, 1900, shall 
stand In ail particnlars except as hereinafter nientioned. Slnce my above will 
was executed, my son Joseph Breiner departed this life. It Is my will, and 
I hereby bequeath said Joseph Bretner's share to the children of sald Joseph 
Breiner, after the death of their mother Hester Breiner. During the natural 
life of said Hester Breiner my executors are directed to pay to said Hester 
Breiner, the income derived from said share, and my executors are directed 
to keep said share invested in some secure manuer for that purpose. 2nd. 
After the death of said Hester Breiner, my executors are directed to pay to 
said children of said Joseph Breiner, their said shares in equal parts share 
and share alike." 

On August 25, 1903, the executors named in the will of the grand- 
father filed the same in the probate court of McDonough county, 111,, 
together with a pétition praying that probate thereof be granted. This 
pétition recites that the deceased (the grandfather of the bankrupt) 
died seised of real estate valued at about $18,000, and possessed of 
certain personal property estimated to be worth about $20,000, and 
names the heirs of the deceased, with their places of résidence; and 
among them is that of the bankrupt. Dallas D. Breiner, his place of 
résidence being given as Emmetsburg, lowa. About August 26th the 
clerk of the probate court of McDonough county, 111., mailed to the 
bankrupt at Emmetsburg, lowa, a certified copy of this pétition, which 
recites that October 5, 1903, has been fixed as the time for the hearing 
proof of said pétition. The bankrupt admits that he received this 
copy through the mails, at Emmetsburg, about September i, 1903 ; and 
it appears that the will and codicil were duly proven and admitted to 
probate October 31, 1903, at a tenn of court which began October 5, 
1903. 

In Schedule B-4, attached to the bankrupt's pétition (which we hâve 
seen was signed and sworn to by him November 13, 1903), under the 
head of "Rights & Powers, Legacies and Bequests," he answers, 
"KTone." The bankrupt testified on January 19, 1904, that he is one 
of nine children or heirs of the said Joseph Breiner, and entitled to 



IN BE BEEINEB. 157 

one-nînth of hîs estate ; that his mother, Hester Breiner, was still Hv- 
ing, and probably 67 or 68 years old ; that he does not know her exact 
âge. He was questioned closely in regard to the above-mentioned 
statement in his schedule, and testified that it was true so far as he 
knew. In answer to questions as to his knowledge of his grandfa- 
ther's will, he says : 

"I supposed lïe left a wlll. Don't know positive that he dld. Supposed that, 
•,Tith the amount he had, probably he did. Q. Haven't you been informed by 
letter from McDonough county, Illinois, that lie did leave a will? A. I had 
a letter from Illinois. I thought it was a letter. I don't know what you 
would call it. I guess it was a pétition. Q. What information did this paper 
give you? A. Well, I couldn't tell you. There was a good deal on that paper. 
I couldn't give you a statement of what was on that paper. * * * i haven't 
received a copy of my grandfather's will. I sent for it, and waited quite a 
while, but dldn't get it. Sent to my uncle, and he said he didn't know what 
a copy would cost. ïhat Is the last I heard of it. * * * Q. Did you not, 
through hlm or some other source, learn that you had an interest in your 
grandfather's estate? A. I don't know as I did. Ali I know about it would 
be that my grandfather died, and left what he had. I supposed it would be 
left to the family. Q. Plaven't you said to parties in this county that you 
had an Interest in that estate, but it was subject to your mother's life estate? 
A. I expect I bave said that probably. I said that, if my mother was to die, 
I supposed, if there was anything left, I would get my share of it. Q. Didn't 
the paper sent you from Illinois inform you that you had an Interest in your 
grandfather's estate? A. Well, I don't know for swe that it did or didn't. 
I told you before I don't know what was ou that paper ; that is, I don't know 
DOW. I think I read the paper I received from Illinois. * * * Q. This 
paper did inform you of the amount of your grandfather's estate? A. Tes, sir ; 
I think it said what it was. I don't recollect what it was. Q. After you re- 
ceived that paper, didn't you know that you had an interest in your grand- 
father's estate? A. I bave forgot how the paper read, but I don't see how 
I could know neither, because I didn't know, from the way that paper read, 
if I understood the paper. I don't say that I understood that paper. I don't 
understand the way it reads myself." 

Further questions in regard to this paper were not freely nor frankly 
answered by the bankrupt, and when requested to produce the paper 
he declined to do so, or at least did not do so (claiming that he had 
left it at home, some six miles distant from where he was being ex- 
amined) until he was ordered by the référée to produce it. In pursu- 
ance of siich order, he later produced a duly certified copy of the péti- 
tion of the executors for the probate of the grandfather's will. It 
gives the estimated value of the estate as hereinbefore stated, is in 
writing and print, and gives the bankrupt's name and address in type- 
writing as one of the heirs of the testator. The envelope in which it 
came to the bankrupt shows that it was received at Emmetsburg Au- 
gust 28, 1903, and he says that he got it within two or three days there- 
after. The bankrupt was then shown a copy of the will and codicil of 
his grandfather, and asked : 

"Are you now willing to amend your schedule in the bankruptcy proceedings, 
and add the legacy herein bequeathed to you, and list It as one of your assets? 
A. Surely, if I hâve a right to. I don't know anything about that paper my- 
self, and don't know if I hâve a right to do such a thing." 

After conferring with his counsel, he was again asked : 

"After having consulted with your attorneys, I will now ask If you wlll pro- 
eeed to amend your schedule, and flle the legacy and expectancy deseribed tn 



158 129 FEDERAL REPORTER. 

the codicil read to you as one of your assets in the bankruptcy proceedings? 
A. Tes, sir, I do. Listed It before if I had known it. Wrote for it, but didn't 
get it. ïhat is what I wrote for, witli tliat intention." 

Cross-examined by his attorneys, he says : 

"Q. State whether or not you endeavored to procure and seeure any Infor- 
mation concerning your grandfather's estate? A. Wliy, only just by sending 
for the will, or sending for a copy of it. I didn't reçoive the copy. Q. You 
may state why you sent for tlie wlll. A. I sent for it with the intention of 
this bankruptcy proceeding. Q. What did you intend to do in the bankruptcy 
proceeding with référence to that will, or your interest, if any you had? A. 
I intended to list it. Q. And how long did you wait from the time you re- 
cel ved this notice untll you comraeuced bankruptcy proceedings? A. The 27th 
of November, I believe, was the day the papers were acknowledged. Q. That 
is, from about the Ist of September until the 27th of November? A. Yes, sir. 
Q. Did you get any information, directly or indirectly, that you had any in- 
terest in the estate of your grandfather? A. Not anything more than what 
was on that pétition. * * * Q. At the time you signed the pétition for 
bankruptcy and ail schedules thereto attached, did you hâve any intention or 
désire to secrète or hide or in any other manner eover up any property in 
which you had an interest? A. No, sir." 

Afterwards, and on January 29, 1904, an amendment to the schedule 
was liled with the clerk as follows : 

Amendment to Schedule B-4. 
Rights & Powers One of the eight or nine legatees who are 

Legacies and Bequests. to inherit their father's share of their 

grandfather's estate, now held and to be 
held for life by petitioner's mother, 
supposed valuation $500.00. 

This amendment was not verified, and no leave was asked or granted 
to file the same. No explanation is made or offered of the failure of 
the bankrupt to list this mterest in his grandfather's estate in his orig- 
inal schedules, unless it be his equivocal Etalements that he did not 
know, when he made such schedules, that he had such interest. 

It satisfactorily appears from this testimony that at the time the 
bankrupt made and filed his pétition he had an interest, as legatee un- 
der his grandfather's will, in the latter's estate. That he knew at 
such time that he had such interest cannot, under his own testimony, 
be doubted. When his attention was first called to its omission from 
Schedule B-4, he says "that his schedule is true, so far as he knows." 
The copy of the pétition for the probate of the will which he produced 
names him as one of the heirs, and he admits having received this 
copy about September ist (six weeks before he signed and swore to 
the pétition). Afterwards, in answer to questions by his attorney, he 
says that he sent for a copy of the will in order to list whatever in- 
terest he might hâve thereunder in this bankruptcy proceeding. This 
is inconsistent with the former part of his testimony, in which he en- 
deavors to maintain that he did not know that he had an interest un- 
der that will. The value of this interest does not appear, except from 
the récital in the pétition for the probate of the will. It is a fair infer- 
ence, however, from the testimony of the bankrupt, that his grand- 
father's estate was of considérable value; and in the amendment to 
his schedules which he has filed he says the supposed value of his in- 
terest in that estate is about $500. The bankruptcy law is designed 
to afi^ord relief to the unfortunate debtor; but to receive the benefîts 



UNITED STATES V. MOOBB. 159 

of that law in a full discharge from hîs liabilities he must lay before 
his creditors ail of his property except such as may be exempt to him 
under the laws of the state in which he lives, and make true oath that 
he has donc so. If he knowingly fails to do this, a discharge from 
such debts will be denied him. The conclusion from the whole testi- 
mony is unavoidable that this bankrupt did know that he had an in- 
terest in his grand father's estate at the time he made and filed his pé- 
tition in bankruptcy ; that he knowingly omitted listing such interest in 
his schedules of his property for the purpose of concealing it from 
his creditors ; and that he knowingly made a false oath to such sched- 
ules in expectation of receiving a discharge from his debts, and after- 
wards enjoying the benefits of this property freed from liability for 
such debts. The fact that he listed the property after his attempt to 
conceal the same and after the making of the false oath by him had 
been discovered will not relieve him from the conséquences of such 
acts; neither will his déniai, then made, of any intent on his part to 
secrète, hide, or otherwise cover up such property. The right to a dis- 
charge is forfeited if the bankrupt knowingly conceals his property, or 
knowingly makes a false oath in the bankruptcy proceedings; and it 
is not restored when his wrongful acts are discovered, or attempts 
frustrated. 

It follows that the pétition for discharge must be denied, and it is so 
ordered. 



UNITED STATES v. MOOEE. 
(District Court, W. D. Missouri, Central Division. March 22, 1904.) 

No. 3,262. 

1. PosT Office— NoNMAiLABLE Matteb — Obscène Lettek— Statutes— Con- 

STBUCTION. 

Rev. St. U. S. § 3893 [D. S. Comp. St. 1901, p. 2658], provides that every 
obscène, lewd, or lasclvious bock, pamphlet, wrlting, or other publication 
of an indécent character shall be nonmailable. Eeld, that where the nec- 
essary inference from the language used in a letter was obscène, and 
tended to offend the sensé of decency, purity, and chastity of society, 
it was Immaterial that the words used were not themselves obscène. 

2. Samb. 

A letter was written by a married man to a married woman, not his 
wife, whom he had never met, suggesting that he hoped the same would 
come to her as "a ray of sunshine on a cloudy day" ; that his attention 
had been called to her "by a friend of ours," and asked her to meet him 
on an afternoon at the house of an old lady who kept rooms to rent "for 
such meetings" ; that his proposition was "ail straight goods," and that 
he would be "a good friend" to her, and, though he had never been at 
such proposed meeting place, he knew others who had been there, and had 
been informed by them that it was "ail O. K." Held, that the purpose 
of such letter was an invitation and solicitatlon to the addressee to meet 
the writer for illicit intercourse, and was therefore obscène, withln Rev. 
St. U. S. § 3893 [U. S. Comp. St. 1901, p. 2658], prohibiting the sending 
of any obscène writlng through the mails. 

Il 1. Obscène matter as nonmailable, see note to Timmons v. United States, 
30 G. C. A. 79. 

See Post Office, vol. 40, Cent. Dig. § 50. 



160 129 FEDERAL BËPOUTEB. 

On Demurrer to Indictment. 

William Warner, U. S. Dist. Atty. 

C. D. Corum and J. G. Slate, for défendant 

PHILIPS, District Judge. The défendant stands îndicted under sec- 
tion 3893, Rev. St. U, S., I Supp. Rev. St. p. 621 [U. S. Comp. St. 1901, 
p. 2658 ] , for writing and placing, or causing to be placed, in the post 
oiifice of the United States at Jefferson City, Mo., an obscène, lewd, 
and lascivious letter, of an indécent character. The letter is in words 
and figures as follows : 

"October 7, 1903. 

"Dear Mrs. Thomas: I know you will be surprised to get this letter but 
I hope It will be a glad surprise. I hope It will corne to you as a ray of sun- 
shine on a eloudy day, I do not know you personally, but I bave heard you 
spoken of by a friend of ours. I hâve been wanting to meet you, but so far 
hâve failed. I bave taken tbis method of trylng to get acquainted wltb you. 
I don't know whether my suggestion vrill meet with your approval or not, 
are whether you will want to meet me or not. If you do and will do as I 
tell you, we can meet each other and no one will ever know It. And we can 
pass some pleasant afternoons together. There is an old lady by the name 
of Mrs. Willard that keeps rooms to rent for such meetings. She lives West 
of Elston House up stairs on the first iloor over the book bindery. Go up 
the stairs between the book bindery and the Saloon. Tell her that you hâve 
a 'gentleman friend' that you want to meet there. Say twice a week and 
that be is alright, and will treat her right. I bave never been at her place 
but I know some parties that go there and they tell me it is ail 0. k. I want 
to meet you there at about 3 o'clock Thursday afternoon. You go about 2 :30 
and talk to the old lady and get on the good side of her. I want you to be 
sitting at the front window with your hat on, so I will know that you are 
there and that you want to see me. I will corne up on the opposite side o( 
the Street and will tip my hat so you will know it is me comming, and you 
<'an meet me at the top of the stairs. This is ail straight goods. And I will 
be a good friend to you. If you cannot go on Thursday afternoon, go Friday. 
But I will look for you Thursday. Will not siga my name. Will tell you 
ail about myself when I see you. A friend. 

"Don't fail me." 

The défendant has demurred to the indictment on the ground that, 
the letter being admitted, it does not come within the purview of the 
statute. Reliance for this contention is predicated of the ruling in 
United States v. Lamkin (C. C.) 73 f éd. 459. The correctness of the 
ruling in that case can be conceded without affecting the validity of this 
indictment. The character of the letters upon which that indictment 
was based is materially différent from the letter in question. But 
the reasoning of the learned judge in his opinion in that case does not 
wholly accord with my view of the statute. The trend of the opinion, 
if I read it aright, is that unless the language employed in the letter 
is per se coarse, obscène, lewd, lascivious, or indécent, although it is 
discernible on the face of the letter that it was written for the immoral 
purpose of inviting and stimulating illicit intercourse with a woman, it 
is not within the denunciation of the statute. It may be conceded that 
the forbidden character of the book, pamphlet, picture, paper, letter, 
etc., is to be found on its face. If the terms employed do not, in and 
of themselves, reasonably convey the suggestion of obscenity, lewdness, 
or lasciviousness, they cannot be cked out by évidence aliunde ; that is to 
say, the court cannot, with strained eyes, read into the letter a hidden 



UNITED STATES V. MOOBE. 161 

purpose its lànguage does not naturally import. But ît is as equally 
true that the obscène, lewd, lascivious, indécent character of the writing 
is not to be made to dépend upon the fact that the lànguage employed 
niust be coarse, blunt, and bald. Lànguage is a vehicle of thought. 
"Chaste words may be applied so as to be understood in an obscène 
sensé by every one who hears them." Edgar v. McCutchen, 9 Mo.- 
768. Words, abstractly considered, may be free from vulgarism, yet 
they may, by reason of the context, manifest to the intelligent appré- 
hension the most impure thoughts, and may arouse a libidinous passion 
more effectually in the mind of a modest woman than the coarse ver- 
îiacular of the bawd and the pimp. The poison of the asp may lie be- 
iieath the honeyed tongue, just as a beautiful flower may contain a 
deadly odor. The statute does not say that every bock, pamphlet, pic- 
ture, paper, letter, writing, etc., containing obscène, lewd, or lascivious 
lànguage, is prohibited to the use of the mails ; but it is the "indécent 
character," obscène, lewd, or lascivious in its nature and import, against 
which the statute is leveled. In other words, it is the efïect of the làn- 
guage employed, conveying obscène, lewd, or lascivious suggestions, 
tainted with immorality and impurity, which is struck at by the statute. 
Judge Thayer, in United States v. Clarke (D. C.) 38 Fed. 732, in dis- 
cussing this statute, when it was directed only against the admission to 
the United States mails of books, pamphlets, pictures, papers, writings, 
and prints, said : 

"ïhe Word 'obscène,' » • • when used, as In the statute, to deseribe 
the character of a book, pamphlet, or paper, means containing Immodest and 
indécent matter, the readlng whereof would hâve a tendeney to déprave and 
torrupt the minds of those Into whose hands the publication mlght fall, whose 
minds are open to such immoral influences." 

In United States v. Harmon (D. C.) 45 Fed. 414, 417, the word "ob- 
scène" was discussed, and, quoting from Chief Justice Cockburn in 
Rex V. Hicklin, L. R. 3 Q. B. 360, "where the tendeney of the matter 
charged as obscène is to déprave and corrupt those whose minds are 
open to such immoral influences, and into whose hands a publication of 
this sort may fall, and where it would suggest to the minds of the 
young of either sex, or even to persons of more advanced years, 
thoughts of the most impure and libidinous character," the court said : 

"Rather is the test, what is the judgment of the aggregate sensé of the 
community reached by it? What is its probable, reasonable effect on the sensé 
of decency, purity, and chastity of soeiety, extending to the family, made up 
of men and women, young boys and girls?" 

In United States v. Martin (D. C.) 50 Fed. 918, the letter in question 
was written by a married man to an unmarried woman, the substance 
of which was a solicitation by him to her to take a trip with him to 
Lynchburg, Va., with a proposition to pay her expenses and $5 besides, 
with the suggestion that, "if you will go, I will promise you a nice 
time," and that she would contribute to his happiness, and would 
never regret it, etc. The court, after adverting to the foregoing cases 
of the United States v. Clarke and United States v. Harmon, said : 

"Taking thèse définitions, and applying them to the letters on which this 
indlctment was found, the court cannot see how any other construction can 
be put upon them, than that they are obscène, wlthin ' the meanlug of the 
129 F.— 11 



l62 129 FEDERAL EBPOBTEB. 

statute. The expressions used In the letters can leave no doubt as to thelr 
lewd and lasclvlous charaeter. It is difficult to concelre what can be more 
shoeking to the modesty of a chaste and pure-minded woman than the prop- 
osition contained in thèse letters. It Is no less than a proposition from a 
marrled man to an unmarried woman, proposing a clandestine trip to the eity 
of Lynchburg for a grossly immoral purpose." 

In Dunlop v. United States, 165 U. S. 486, 500, 17 Sup. Ct. 375, 380, 
41 L,. Ed. 799, it appears that the trial court, in charging the jury, inter 
alia, said : 

"Now, what are obscène, lascivious, lewd, or indécent publications, is large- 
ly a question of your own conscience and your ovvn opinion. * * * it must 
come up to this point: that it must be calculated, with the ordinary reader, 
to déprave hlm, déprave his morals, or lead to impure purposes." 

In passing upon this instruction, Mr. Justice Brown, speaking for 
the court, said : 

"The alleged obscène and indécent matter consisted of advertlsements by 
a woman, soliclting and ofCering inducements for the visits of men, usually 
'reflned gentlemen,' to their rooms, sometimes under the disguise of 'baths' 
and 'massage,' and oftener for the mère purpose of aequaintance. The court 
left it to the jury to say whether it was within the statute, and whether per- 
sons of ordinary Intelligence would hâve any difflculty in divining the inten- 
tion of the advertiser. We hâve no doubt that the flnding of the jury was 
correct upon this point." 

In United States v. Wroblenski (D. C.) 118 Fed. 496, the court said: 

"In either case [that is, of publication or sealed private Istter] the question 
of violation of the statute resta upon the import and presumed motive, and 
not upon the mère terms of the communication. Thus its tendeney dépends 
upon circumstances, and unexceptionable language may convey vicious infor- 
mation within the statute. In the case of a private letter there is no publi- 
cation, and no presuniption arlses of intention to give public! ty, or that it 
wiU be read by others than the addressee. The language or communication 
may be free from the condemnatlon of the statute in one instance, while it 
would clearly fall within it when addressed to other persons. So the Inquiry 
as to the tendeney of the letter must be narrowed to its liabllity to corrupt 
the addressee." 

Turning to the letter in question hère, what is its plain purport? It 
was written by the défendant, admitted to be a married man, to Mrs. 
T., with whom he had never met, with the suggestion that he had hoped 
his missive would come to her as "a ray of sunshine on a cloudy day" ; 
that his attention had been called to her "by a friend of ours." 
He expressed some appréhension lest his advance might not meet with 
approval. He therefore essays to beguile her by suggesting that if 
she will meet him, and "do as I tell you, we can see each other and no 
one will ever know of it ; and we can pass some pleasant afternoons to- 
gether." Indeed, he suggests broadly in the letter an assignation house 
favorable "for such meetings," and enters into détails for signais for 
such clandestine meeting ; that, while he has never been on this "hap- 
py meeting ground," he knows parties who say it is O. K. ; winding up 
with the suggestive assurance that "this is ail straight goods, and I 
will be a good friend to you. I will not sign my name. Will tell you 
about myself when I see you." Can two intelligent minds reach any 
other conclusion on reading this letter than that its purpose was an 
invitation and solicitation to Mrs. T. to meet tlie writer for illicit inter- 



ELLIOTT V. OANADIAN PACIFIC ET, 00. 163 

course? The very secrecy and safety of the method of meetîjig was 
calculated to excite in the mind of the addressee libidinous thoughts 
and indulgence, if there was any such lurking tendency in her character. 
In short, it was a seductive letter — as much so as if the writer had em- 
ployed broader and baider indécent expressions for bringing about adul- 
terous intercourse with this woman. At ail events, it certainly is a 
question for the jury to pass upon, under proper instructions from the 
court. 

The demurrer is overruled. 



ELLIOTT V. CANADIAN PACIFIC RY. CO. 
(Circuit Court, D. Vermont. April 5, 1904.) 

1. Master and Servant— Railroads—Cae Inspectoes — Wrongftil Death— 

Question for Jury. 

In an action for the wrongful killlng of a car Inspector by his being 
run over by a car started by other cars violently switched against the 
same, évidence as to defendant's négligence held to présent a question for 
the jury. 

2. Fellow Employés— Incompetenct. 

Where, in an action for wrongful death of a car Inspector, It was clalm- 
ed that his injuries resulted from the négligence of an incompétent brake- 
man, évidence tendlng to show that the person actlng for défendant in 
employlng such brakeman shortly before the accident was the brakeman's 
cousin, and that he had doubt as to the brakeman's proper command of 
himself when braking cars, he not having been so previously employed, 
was sufficient to justify a flnding that défendant was négligent in em- 
ploylng such brakeman. 

3. Same— CoNTRiBUTOEY Négligence. 

Where, before golng in front of a car to test the knuckle of a coupling, 
a car inspector saw an englne and certain other cars a considérable dis- 
tance away, and if they had been moved at the ordinary speed of cars in 
switchlng they could not hâve reached the car he was inspeeting until 
long after he had accompllshed his object, he was not guilty of contribu- 
tory négligence as a matter of law in placing himself in front of the car, 
whieh might be run against and over hlm. 

4. Same— FEDERAL Courts- Défenses. 

In an action for wrongful death in the fédéral courts, contrlbutory nég- 
ligence is a matter of défense, unless the proof shows an absolute act of 
négligence so plaln that the minds of reasonable men would not differ 

concerning it. 

5. Same— Pleading. 

In an action in the fédéral courts for wrongful death, the déclaration 
need not allège absence of contrlbutory négligence. 

6. Same— Objections after Verdict. 

Where the gist of an action for the wrongful death of a car Inspector 
was the running of several cars without control, by an incompétent brake- 
man, and the déclaration alleg'ed the running of such cars against other 
cars, without any proper control, at a hlgh rate of speed, on a down grade, 
in charge of but one inexperienced and incompétent brakeman, so negll- 
gently, and without proper control, that plalntlff's intestate was suddenly 
thrown violently down under the car which he was so inspeeting, dragged 
for a long distance, and then killed, it was sufficient as against a motion 
in arrest of judgment. 

ï 5. See Death, vol. 15, Cent. Dlg. § 62. 



164 129 FBDBEAI, KEPORTEB. 

7. Same, 

Hev. St. § 954 [TJ. S. Comp. St. 1901, p. 696], proT.ldes that no déclara- 
tion shall be quashed for any defect or want of form, but the court shall 
give judgment according as the rlght shall appear, without regarding 
any such defect, except those specially set down as grounds of demurrer, 
and that the court shall amend every such defect other than those 
specially demurred to, and may at any tlme permit the pleadings to 
be amended. Held, that where no objection was made to the déclara- 
tion until the close of the évidence, and everything that défendant clainied 
should hâve been alleged was proved, and the .iury found the facts in favor 
of the plaintiff, a judgment on the verdict v^fill not be set aside for defects 
In the déclaration. 

At Law. On motions to set aside a verdict in favor of plaintiff 
and in arrest of judgment. Motions denied. 

Max L. Powell and Wilder L. Burnap, for plaintiff. 

Frank E. Alfred and William B. C. Stickney, for défendant. 

WHEELrER, District Judge. The plaintiff 's intestate was a car 
inspector employed in the defendant's yard at Richford, which was 
on an unusual grade for a railroad yard. He went to the lower end 
of one of two cars standing on one of the tracks, and held by a 
brake, for the purpose of testing the knuckle of the coupling, which 
would take but a few seconds. Five heavily loaded cars were sent 
down the same track toward thèse two at a! rapid rate, struck them, 
pushed them along, and ran them over him and killed him. This 
suit is brought for that cause of his death ; and since the verdict the 
défendant has moved to set it aside as against the évidence, and 
moved an arrest of judgment for the insufficiency of the déclaration. 
The ground upon which the plaintiff recovered was the inefFiciency 
of the brakeman on the five cars whereby the death was caused. 

The intestate was entitled to a reasonably safe place in which to 
work, and to reasonably compétent and safe fellow workmen. One 
principal ground for setting aside the verdict relied upon is the lack 
of suffîcient évidence of the incompetency of the brakeman to the 
knowledge of the défendant. The grade of the yard made it a difïi- 
cult place for switching cars in making up trains. Whatever lack 
of safety there was about that would be well known to the intestate, 
who had been employed there for some years ; but the grade of the 
yard, according to the évidence, required a more experienced and 
efficient brakeman than an ordinary yard would. The proof tended 
to show that the brakeman had no proper control of the five cars ; 
that they ran at two or three times the usual speed for cars being 
switched in that way, and drove against the two cars with great 
force, and thereby sent them along the track. This was contra- 
dicted, but the effect of it was for the jury. 

An important requisite was the control of the cars, which would 
include the control by the brakeman of himself. The évidence tend- 
ed to show that one who acted for the défendant in employing this 
brakeman then lately before, was a counsin of the brakeman who had 
not before been employed as such, was acquainted with him, and 
had some doubt as to his proper command of himself when braking 
on the cars. This was a very important matter for a brakeman who 



ELLIOTT V. CANADIAN PACIFIC BT. CO. 165 

was to do what this brakeman was doing at the time when the intes- 
tate was killed. Lack of control of himself would be a very seri- 
ous defect in the ability of a brakeman to properly control cars in 
such connections. The évidence in regard to that seemed at the 
trial to be sufficient to lay before the jury as to the competency 
of the brakeman, and seems so now. The question is not as to how 
the court would find the fact, but as to whether there was enough 
from which the jury might find the fact, and there seems to hâve 
been enough. This brought the defect to the attention of those act- 
ing for the company in employing this brakeman, and tends to show 
that the company was aware of his actual capacity such as it was. 
This is a little différent from what it would hâve been if a compé- 
tent brakeman had grown incompétent. Hère the question was as 
to hiring a suitable brakeman, which would involve proper inquiry 
as to his capacity. There the question would be as to notice of the 
failure of capacity. 

Another question made is as to contributory négligence of the in- 
testate. It is argued that he placed himself at the end of the car, 
which might be run against and pushed over him. Unless this was 
50 plain that there could be no question about it in the minds of 
reasonable men, it would be a question for the jury, and the cir- 
cumstances were such that there might well be such a question. 
The testing of the knuckle would involve so short a time that he 
could easily do it and move away before any cars which were ni 
sight would reach the two cars at the ordinary rate of speed for 
switching cars. ■ If thèse cars were sent at twice the usual speed, 
he would only hâve one-half the usual time; if at three times the 
usual speed, he would hâve only one-third the usual time. The com- 
ing so much quicker than he expected may hâve misled him into 
going there and remaining long enough for testing the knuckle. 
The switch engine and the fîve cars were away up the track. At 
the ordinary speed of cars in switching, according to some witnesses, 
they would move but a few feet — about seven or eight — in a second, 
which would give many more seconds before they would reach there 
than were necessary to accomplish his object. This is a matter of 
défense in this court, which could not be taken from the jury unless 
it was an absolute act of négligence, and could not apparently be 
properly disposed of without being submitted to the jury as it was. 
The motion to set aside the verdict as being against the évidence 
must, according to thèse views, be denied. 

The principal fault found with the déclaration is the lack of allé- 
gations of the incompetency of the brakeman to the knowledge of 
the défendant and without the knowledge of the intestate. As con- 
tributory négligence is in this court a défense, no allégation of wani 
of knowledge or proper conduct on the part of the intestate was 
necessary. It would be sufficient to allège in the proper manner 
the defect in the brakeman, whereby the injury resulting in death 
was caused. The déclaration allèges the running of the five cars 
against the two cars negligently, "without any or proper control, 
at a high rate of speed, on said down grade, alone and free from 
any locomotive or engine, and in charge of an insufficient and of 



166 129 FEDERAL REPORTER. 

but one inexperienced and incompétent brakeman, * * * and 
so negligently, improperly, imprudently, and without control that 
the plaintiff's intestate was suddenly, helplessly, and without fault 
on his part thereby struck, thrown violently down, and thrown un- 
der said car, which lie was so inspecting, and dragged for a long 
distance, to wit, ninety feet, by means whereof he was then and 
there killed." This is not a technical, artiiicial, and apt statement 
of the insufficiency of the brakeman, whereby the intestate was struck. 
The question is not as to the correctness, accuracy, and fullness of 
the averments, but whether in any, even defective, manner, the sub- 
stance of what is necessary to a right of recovery is set out. The 
running of the five cars was, of course, the act of the défendant. 
The running them in charge of an insufficient, inexperienced, and 
incompétent brakeman would involve knowledge of the incompeten- 
cy such as would make the défendant responsible for the act of the 
incompétent man. The gist of the action was the running of the 
five cars without control of any but an incompétent brakeman. What- 
ever charged that was a sufficient charge of that negHgent act, and in 
that view the déclaration seems, upon this motion in arrest of judg- 
ment, to be sufficient to found a judgment upon. 

The statute of jeofailes appHcable (section 954, Rev. St. [U. S. 
Comp. St. 1901, p. 696]) provides that no summons, writ, déclara- 
tion, return, etc., shall be abated, arrested, or quashed for any de- 
fect or want of form, but the court shall give judgment according 
as the right of the cause and matter in law shall appear, without 
regarding any such defect or want of form except those which in 
cases of demurrer the party especially sets down, and the court 
shah amend every such defect and want of form other than those 
the party demurring so expresses, and may at any time permit either 
of the parties to amend any defect in the process or pleadings upon 
such conditions as it may prescribe. 

This saves everything to the party that can be saved. This déc- 
laration was not challenged by any demurrer, spécial or otherwise, 
and no point was made upon it until the close of the évidence in 
the case. It seems to, although in a somewhat defective manner, 
hâve stated sufficient of the grounds of the cause of action to war- 
rant the taking of a verdict. Upon the submission of the case to 
the jury everything that défendant now claims should hâve been al- 
leged was laid before the jury, who hâve found the facts for the 
plaintifï, and judgment on the verdict now would conform to the 
requirements of that statute. 

Motions overruled. Judgment on verdict. 



UNITED STATES V. ONE BLACK HOESB. 167 

UNITED STATES y. ONE BLACK IIORSB et aL 

(District Court, D. Maine. April & 1904.) 

No. 96. 

1. SMUGQLINQ — HORSES AND VeHICLES— FORFEIÏUBES— INTENT OF OWNEB, 

Rev. St § 3061 [U. S. Comp. St 1901, p. 2006], makes it the duty of a 
revenue offlcer to search any vehicle on whlch he suspects there is mer- 
chandise subject to duty, or which bas been introduced Into the United 
States contrary to law, whether by the person In possession or upon such 
vehicle; and, If such merchandise Is found on the vehicle, the offlcer Is 
regulred to seize and secure the same. Section 3062 [U. S. Comp. St 1901, 
p. 2007] provides that such vehicle shall be Uablc to selzure and forfel- 
ture ; and section 3063 [U. S. Comp. St 1901, p. 2007] déclares that vehl- 
cles used by common carriers shall not be subject to forfelture unless It 
shall appear that the agent of the carrier in charge of the vehicle at the 
time of the unlawful importation or transportatlon was a consenting 
party thereto. Helct, that section 3063 should be construed as excludlng 
vehicles other than those used by common carriers from its application, 
and hence a vehicle owned and let by a llveryman, and used wholly with- 
in the United States for the purposes of traasporting llquor lUegalIy 
brought across the Canadian border, was subject to selzure and forfel- 
ture, though the llveryman had no knowledge of the purpose for which 
the team was to be used. 

Isaac W. Dyer, U. S. Dist. Atty. 

Foster & Hersey, for claimant, Wm. E. Foss. 

HALE, District Judge. This case cornes before the court on a 
iibel by information of the United States of America against one 
black horse, one harness, and one wagon, alleged to hâve been 
used by one William Elliott in conveying four bottles of liquor from 
the Province of New Brunswick into the Judicial and Collection 
District of Houlton, in the District of Maine, and to hâve been so 
used at the time of the illégal importation aforesaid. 

William E. Foss, of Houlton, appears as claimant for said horse, 
harness, and wagon. The case is presented on an agreed statement, 
as follows: 

"The followlng facts are agreed upon by eounsel, and are found as facts in 
the case: 

"First The flrst fact found is that the said William Elliott did smuggle the 
four bottles of liquor on the 8th day of August 1903, and that said Elliott has 
stnee been convicted and sentenced for said act of smuggling. 

"Second. That on the said 8th day of August said Elliott hired the horse, 
carrlage, and harness, described in the Information, of William E. Foss, the 
claimant, who was then and there engaged In the business of a llvery stable 
keeper at said Houlton, and in letting horses for hire, 

"Third. That said Foss at the time of letting the team to said Elliott had 
no knowledge or Information that said team was to be used for any violation, 
or to aid in any violation, of the customs revenue laws of the said United States 
by said Elliott 

"Fourth. That said Elliott, having hired the team as aforesaid, did drive 
to a point very near the Une, but on the United States side of It and left the 
team in a shed within the United States, and wlthin the town of Houlton. 
That said Elliott immediately went over the Une, purchased the four bottles 
of liquor, returned. placed them in the carrlage, and started to drive towards 
Houlton village. Before he' had completed his return journey the said four 
bottles of liquor and the said team were seized, as stated In the Information." 



168 129 FEDERAL REPORTEE. 

The statutes of the United States (sections 3061-3063, Rev. St. [U. 
S. Comp. St. 1901, pp. 2006, 2007]) are as follows : 

"Sec. 3061. Search of Vehicles and Persons. Any of the offlcers or persons 
authorized to board or search vessels inay stop, search, and examine, as well 
wlthout as wlthin their respective districts, any vehlcle, beast, or person, on 
which or whom he or they shall suspect there Is merchandise whieh is sub- 
ject to duty, or shall hâve been introduced into the United States in any 
manner contrary to lavs^, whether by the person in possession or charge, or by, 
in, or upon such vehiele or beast, or otherwise, and to search any trunli or 
envelope, v^herever found, in which he may hâve a reasonable cause to sus- 
pect there is merchandise whieh was imported contrary to law ; and if any 
such officer or other person so authorized shall find any merchandise on or 
about any such vehlcle, beast, or person, or in any such trunk or envelope, 
which he shall hâve reasonable cause to belle ve Is subject to duty, or to hâve 
been unlawfully introduced into the United States, whether by the person in 
possession or charge, or by, in, or upon such vehlcle, beast, or, otherwise, he 
shall seize and secure the same for trial. 

"Sec. 3062. Forfeltures. Every such vehlcle and beast, or either, together 
with teams or other motive-power used in conveying, drawing, or propelling 
such vehlcle or merchandise, and ail other appurtenances, including trunks, 
envelopes, covers, and ail means of concealment, and ail the équipage, trap- 
pingB, and other appurtenances of such beast, team, or vehlcle, shall be subject 
to selzure and forfeiture. If any person who may be driving or conductlng, 
or in charge of any such carrlage or vehiele or beast, or any person travelling, 
shall willfuUy refuse to stop and allow search and examlnation to be made 
as hereln provided, when requlred so to do by any authorized person, he shall 
be punishable by a fine of not more than one thousand dollars, nor less than 
flfty dollars. 

"Sec. 3063. Privlty of Owner. No railway car or engine or other vehiele, or 
team, used by any person or corporation, as common carriers, in the trans- 
action of their business as such common carriers, shall be subject to forfeiture 
by force of the provisions of thls tltle unless it shall appear that the owner, 
superlntendent, or agent of the owner in charge thereof at the time of sucli 
unlawful Importation or transportation thereon or thereby was a consenting 
party, or privy to such Illégal Importation or transportation." 

Under the décisions of our courts, this and ail other statutes re- 
lating to forfeitures in revenue cases must be construed fairly and 
reasonably, to arrive at the intention of the lawmaking body. In 
coming to this construction the court must remember that the con- 
struction is made in a civil case in a matter relating to forfeiture of 
property, and not relating to the punishment of an ofïender. It is 
the duty of the court to discover vv^hat was the intention of the 
lawmakers in framing this law. This belongs to a class of cases 
where the Législature might undoubtedly déclare an act criminal 
without respect to the motive of the doer of the act. The courts 
hâve repeatedly decided that in respect to statutory offenses an evil 
intent is not necessarily an ingrédient. It is then necessary for us 
to inquire, not what was the intention of the claimant in this case, 
but what was the intention of the lawmaking power. Where the 
intention is left in any way obscure, the courts hâve repeatedly said 
that the forfeiture of goods for violation of revenue laws would not 
be imposed, unless the owner of the goods or his agent has been 
guilty of an infraction of the law. Peisch v. Ware, 4 Cranch, 347- 
362, 2 ly. Ed. 643 ; United States v. Bags of Kainit (D. C.) 37 Fed. 
326; United States v. Certain Celluloïd, 82 Fed. 627, 27 C. C. A. 
231 ; United States v. Two Barrels of Whiskey, 96 Fed. 479, 37 C. 
C. A. 518; The Lady Essex (D. C.) 39 Fed. 767; Six Hundred and 



tJNITED STATES V. ONE BLACK HOBSE. 169 

Fifty-One Chests of Tea v. United States, Fed. Cas. No. 12,916; 
United States v. Two Horses, Fed. Cas. No. 16,578. In the case of 
United States v. Two Barrels of Whiskey, 96 Fed. 479, 37 C. C. A. 
518, a full examination of authorities is given, and much light is 
thrown upon the gênerai subject of forfeitures in revenue cases. 
That case deals with a statute différent from the statutes in the case 
at bar. In the statutes which were before the court in that case, 
the court found that there was no intention of the Législature to 
forfeit property, except the property of owners, on account of the 
misconduct of Etrangers over whom the owners could hâve no con- 
trol. Such has been the gênerai construction of revenue statutes. 
In Eoyd v. United States, 116 U. S. 616, 6 Sup. Ct. 524, 29 L. Ed. 
746, the court, Mr. Justice Bradley, says : 

"We are clearly of the opinion that proeeedings instituted for the purpose 
of deelaring forfeiture of a man's property by reason of an offense committed 
by him, though they may be civil in form, are by their nature criminal. 
« * * The Information, though technically a civil proceeding, is in sub- 
stance and effect a criminal one. It is bis breach of the law which has to be 
iiroved to establish the forfeiture, and it is his property vrhich is sought to be 
forfeited. • * * Goods, as goods, cannot ofCend, forfeit, unlade, pay du- 
ties, or the like; but men whose goods they are." 

In this case, and in the cases which we hâve cited, the court was 
able to find some language in the statute which enabled it to con- 
strue such statute as implying that the Législature did not intend to 
forfeit the goods, unless knowledge was shown on the part of the 
owners. It is claimed that in the case at bar the court should find 
that thèse statutes above quoted should be so construed as to mean 
that the claimant of goods must be charged with knowledge that 
his property is to be used in a manner offensive to the statutes, and, 
further, that it is not enough for the court to find that the property 
has been used in transporting smuggled property, but that, in order 
to create a forfeiture, the horse, wagon, and harness must be found 
to hâve assisted in the importation itself of the property. By the 
agreed statement it appears clearly that the horse, wagon, and har- 
ness were used in the transportation of the liquors within the United 
States, and not in bringing them over the line; and, further that 
they were used without the knowledge or consent of the owner. 

Now, let us examine the statutes. Section 3061 makes it the duty 
of the revenue officer to search any vehicle on which he suspects 
there is merchandise subject to duty, or which has been introduced 
into the United States contrary to law, whether by the person in 
possession or upon such vehicle; and if the officer shall find mer- 
chandise on such vehicle which he shall hâve reasonable cause to 
believe is subject to duty, or to hâve been unlawfully introduced into 
the United States, whether by the person in charge of the vehicle 
or upon the vehicle, or otherwise, then he, the said officer, shall 
seize and secure the same. The clear intention of Congress in mak- 
ing this law was to provide for the seizure of property which had 
been smuggled into the United States, either by the person in charge 
of it or upon the vehicle. Upon any reasonable and.fair construc- 
tion of the statute, it was clearly the intention of the Législature to 
seize a vehicle which has been used either in the importation or the 



170 129 FEDERAL EBPOBTBB. 

transportation of smuggled property. Indeed, this clear intention 
of the Congress is gathered without recourse to "construction," but 
by a reading of the unambiguous language of the law. Where "there 
is no ambiguity, there is no room for construction." U. S. v. Mor- 
ris, 14 Pet. 464, 10 L,. Ed. 543. The above case is cited with ap- 
proval in the opinion in the Northern Securities Case (just pub- 
lished, by the Suprême Court) 24 Sup. Ct. 436, 48 L. Ed. . 

Section 3062 provides that "such vehicle," namely, a vehicle which 
has been found by an officer to be in use in transporting or convey- 
ing smuggled property, shall be Hable to seizure and forfeiture. 
This statute should be construed, as ail such statutes should be, 
with a view of giving the full force to ail the language of the stat- 
ute, under the principle that words are to be taken in a statute or 
in a contract under the rule of noscitur a sociis. The meaning of 
words is undoubtedly to be derived from the company in which they 
are found; but when this rule is applied in the interprétation of 
thèse statutes, no construction can be arrived at which is favorable 
to the claimant's contention. The duty of the officer in seizing is 
to seize property which is subject to duty, or has been introduced 
into the United States in any nianner contrary to law. This statute 
is not one of the laws where doubt can be found as to the intention 
of holding ofïending property which has been used in smuggling 
without the knovvledge of the owner. In such cases of doubt the 
courts hâve properly given the construction favorable to the clami- 
ant, and hâve imported the claimant's knovvledge into the statute. 
In the statutes which are now before us in the case at bar, the court 
cannot fînd that there is any room left, after an intelligent reading of 
the law, to import such knowledge of the claimant into it. 

Section 3063 provides that, in case of vehicles used by common car- 
riers in the transaction of their business, such vehicles shall not be 
subject to forfeiture, unless it shall appear that such agent of the com- 
mon carrier in charge of the vehicle at the time of such unlawful im- 
portation or transportation was a consenting party to the illégal 
importation or transportation. This section is very important in ar- 
riving at the intention of Congress in référence to the whole law 
before us. It provides distinctly that common carriers should be 
charged with knowledge before their property can be forfeited. The 
Législature has clearly shown that it did not hâve such intention 
with référence to the vehicles of others besides common carriers. 
The rule "Expressio unius, exclusio alterius," is very important in 
the construction of statutes of this nature. The Congress has shown 
clearly in thèse statutes before us that it regards property as of- 
fending when used not only in the importation, but in the trans- 
portation, of smuggled goods. The case at bar is like the case of 
United States v. Two Bay Mules (D. C.) 36 Fed. 84, although the 
statute in this case makes the contention of the government much 
more reasonable than in the Case of the Two Bay Mules. 

The court has well said, in such case, that "Congress has been induced 
to enact very comprehensive, spécifie, and stringent measures for the 
prévention and punishment of frauds" in revenue matters. The law 
which we are construing in the case at bar is much more comprehensive 



THE SOUTHWAEK. 171 

and stringent than the law -which was being enforced in the Case of 

the Two Bay Mules. In this case, as in that, the redress of the inno- 
cent claimant must be from the wrongdoer himself, or by application 
to the officers of the government invested with the authority to remit 
forfeitures. It is the clear duty of the court, although it may seem 
a harsh one, to construe the law reasonably and fairly, giving clear 
effect to the ordinary use of the English language. 

Let a decree of condemnation be drawn in conformity with this 
opinion. 



THE SOUTHWARK. 

(District Court, E. D. Pennsylvania. March 10, 1904.) 

No. 16. 

1. Admiealty— StriT in Rem— Recoveey of Interest and Costs fbom Claim- 

ant. 

The claimant of a ship who eontests a suit in rem against it to recover 
damages, wàether for a maritime tort or for breach of a contract of car- 
riage, is liable for interest and costs, although the damages awarded to 
the libelant, together with the interest, may exceed the amount of the 
stipulation given for the vessel's release; the decree in such case to be 
entered against the stipulators to the extent of their contract liabillty, 
and against the claimant for the remainder of the interest and the costs. 

2. S AME. 

A libelant Is not precluded from as.serting his right to recover Interest 
and costs from the claimant in a suit in rem, in excess of the stipulation 
given, by the fact that hls application for leave to amend his llbei by in- 
serting a claim in personam for the damages sued for was denied on the 
ground of lâches. 

In Admiralty. On motion for entry of decree. 
See 128 Fed. 149. 

Horace L. Cheyney and John F. Lewis, for libelant. 

Biddle & Ward, J. Rodman Paul, and Howard H. Yocum, for re- 

spondent. 

J. B. McPHERSON, District Judge. Unless the présent case 
can be distinguished from The Wanata, 95 U. S. 600, 24 L. Ed. 461, 
I think the libelants are entitled to a decree against the claimants 
for the damages agreed upon, and for interest and costs, even al- 
though the amount of such decree exceeds the sum named in the 
stipulation. The decree against the surety, however — the City Trust, 
Safe Deposit & Surety Company — is to be limited to the principal 
sum for which it agreed to be bound. An effort is made to distin- 
guish the cases, first, on the ground that The Wanata was an action 
for collision, in which the claimant was taking advantage of the stat- 
ute permitting a limitation of liability; and, second, on the ground 
that permission to amend so as to prosecute the présent action 
against the claimants in personam has been refused on the ground 
of undue delay, and therefore that the libelant should not be per- 
mitted to accomplish, by this form of motion, what the court has 
denied him permission to accomplish by another. 

As it seems to me, neither ground is well taken. The reasoning 



172 129 FEDEBAIi REPORTER. 

of the court in The Wanata was intended, I think, to cover other 
actions than those of collision, for there is no eiïort to confine it 
to torts of that class, where the claimant is seeking to limit his lia- 
bility. In that case the damages awarded, $16,000, were precisely 
the amount of the stipulation for value, but the District Court added 
interest and costs thereto in the decree that was entered against the 
offending schooner. No decree was entered in the District Court 
against the stipulators for costs or the stipulators for value, the sign- 
«rs of each stipulation being the same persons, and thèse uniting 
also in an appeal bond for the sum of $2,000. In the Circuit Court, 
on appeal, a decree was entered against the schooner, and at the 
«ame time the court (page 608, 95 U. S., 24 L. Ed. 461) "entered a 
decree against the stipulators for value in the sum of $16,000, and 
against the stipulators in the other stipulation and the sureties in 
the appeal bond in the sum of $1,407.47, the two sums being exactly 
equal to the amount of the decree entered against the schooner, 
which includes the $16,000 recovered as damages in the District 
Court, together with the costs taxed in the District Court, and in- 
terest on the sums recovered in that court to the date of the decree 
entered in the Circuit Court, and the costs taxed in the Circuit 
Court, amounting in ail to the sum of $17,407.47." Thereupon the 
claimants, who were also among the stipulators, appealed to the 
Suprême Court, and one of the positions taken by the libelants^ap- 
pellees — was (page 612, 95 U. S., 24 L. Ed. 461) "that the owners 
defending the suit are liable for costs, even where the damages are 
equal to the stipulated value of the property, and the costs taxed 
exceed the amount of the stipulation for costs fîled when the owners 
appeared in the District Court." The Suprême Court approved this 
position, saying: "Doubtless the rule was so prior to the passage 
of the act of Congress limiting the liability of shipowners. 9 Stat. 
635. Since the passage of that act the question arises whether costs 
can be allowed in such a case, where it appears that the decree for 
damages exhausts the whole amount of the stipulation for value." 
Référence is then made to the British statute upon the subject of 
limiting liability, and to the cases, such as The Volant, i Rob. A. 
383, which hâve held that, where the proceeds of the ship were in- 
sufficient to make good the loss, "the court cannot decree against 
the owner for the excess of damage beyond the proceeds of the 
ship." And it is then said that, although this may be true, "it is 
settled law that the defending owners in such a case are liable for 
costs, even though the damages recovered exhaust the whole amount 
of the stipulation for value." The John Dunn, i Rob. 160. 

Turning to the subject of interest, the court proceed to say (page 
613. 95 U. S., 24 L. Ed. 461) : "Interest in such a case is allowed, 
as well as costs ; and in case of an appeal, the interest is cast upon 
the whole amount of the decree in the court below, including costs, 
as well as the amount of the damage. The Dundee, 2 Hagg. 137." 
Referring further to The Dundee, the court approve the rules there 
laid down by Lord Stowell : 

"Due objection to a decree settled In that form was made In that case ; but 
Lord Stowell held that the allowances were correct, that the cost to which 



THE SOTJTHWARK. 173 

the party la put to recover his Just damages Is a part of his loss, and that 
the costs In such a case are properly added to the damages in the computation 
of interest. Objection was also made in that case to the allowance of inter- 
est, as the damages were equal to the value of the ship ; but the same learned 
judge answered that the sufferer Is entitled to such costs as he shall incur in 
recovering the value of the ship, and to interest if payment Is delayed — mean- 
ing, of course, that the party causing the delay is liable in such a case ; and 
he added that the suffering party is entitled to rémunération for the costs to 
whlch he is driven for recovering his loss, as the costs constitute a part of the 
same ; that the act of Parllament is not gullty of the injustice v^fhich would 
ensue if it exeluded the costs, which are necessary for replacing the sufferer 
In a just State of compensation. Such a party, if he is reinstated in the value 
of the property without litigation, is not entitled to costs ; but if he cannot 
obtain the benefit of the régulation in respect to compensation without being 
driven to the necessity of a suit, the statute would be chargeable with great 
injustice if it did not allow him to recover costs ; and thèse remarks apply 
with equal force to the charge of intervenlng interest arising from delay occa- 
sioned by such litigation. 

"Common-law authorities support the same construction of the act of Par- 
liament referred to, and show to a démonstration that the rule is flrmly es- 
tablished in ail the courts of the parent country. Ex parte Rayne, 1 Gai. & 
Dav. 377 ; Gall v. Laurle, 5 B. & C. 163." 

From this outline of the relevant portions of the opinion in The 
Wanata, I think it will be seen that the court's discussion proceeded 
along gênerai lines, and was not intended to apply solely to the 
class of maritime torts. No principle is perceived that requires the 
rule announced by the court to be so limited. If the libelant has 
been injured, what différence does it make whether the harm has 
been done by sinking his ship, or by breaking a contract to carry 
safely? In either event he has suffered a money loss, and whatever 
rule may exist that seeks to make him whole, so far as possible, in 
the one case, ought also to be applied in the other. 

The second ground of objection, as it seems to me, is also not 
tenable. I refused the motion to amend the libel, because the great 
weight of authority seemed to be in favor of refusai, and I was un- 
willing to départ from a well-estabHshed rule. But the présent ap- 
plication seems to be supported by the highest authority in the land, 
and, while it is true that I hâve a discrétion on this motion also 
(The Maggie J. Smith, 123 U. S. 349, 8 Sup. Ct. 159, 31 L. Ed. 175), 
I am disposed to exercise it in favor of the libelants. The same 
reason that influenced my décision on the pétition to amend, namely, 
that décisive authority is on the side of the appellant, influences me 
now, and supports the position that the libelants should be compen- 
sated in fuU, so far as the power of the court may go, for the loss 
they hâve sustained, and for the cost of carrying the litigation to an 
end. The fact that the libelants will thus obtain by one method 
what they were unable to obtain by another does not seem to me to 
be important. Both remédies were available if the court permitted; 
the remedy by amendment and suit in personam, and the remedy by 
such a decree as is now asked for. Thèse remédies were not dépend- 
ent upon each other, and the considérations that are pertinent upon 
the subject of their allowance are not the same. It is not accurate, 
I think, to say that the libelants ask the court to do indirectly what 
the court has just refused to do directly. Doubtless the same resuit 
will be reached, but it will be reached directly, although by another 



174 129 FEDERAL BEPOETER. 

road than the road of amendment. I can see no reason vvhy thèse 
two remédies may not be successively invoked. 

The following decree will be entered : 

And now, the mandate of the Suprême Court of the United States 
having been fîled, directing a reversai of the decree of this court 
dismissing the libel, and directing a decree to be entered in favor 
of the Hbelants for the amount of damages sustained with costs ; 
and it further appearing, by agreement of the proctors for the par- 
ties fîled of record, that the damage sustained by the libelants for 
the cause of action set forth in said libel amounts to the sum of 
$6,036, with interest thereon from August i, 1894, and that the li- 
belants' costs amount to the sum of $711.16; and it further appear- 
ing to the court that the interest upon the said sum of $6,036 to date 
amounts to the sum of $3,473.72, making the total claim of the libel- 
ants $9,509.72; and it further appearing that the claim was made 
for said steamship Southwark by H. C. Bye, agent of the Interna- 
tional Navigation Company, owner of said steamship, and that an- 
swer to the libel was filed by the said International Navigation Com- 
pany, owner of said steamship, and that the payment of the libelants' 
claim has been contested and resisted by the said International Navi- 
gation Company up to this time : 

Now, upon motion of Horace L. Cheyney and John F. Lewis, 
proctors for the libelants, the damages of the said libelants are here- 
by assessed at the sum of $9,509.72, being the amount of said claim, 
as set forth in the libel, together with interest thereon from August 
I, 1894, to this date; and it is ordered and decreed that Joseph J. 
Martin, Alfred M. Fuller, and Thomas B. Shriver, copartners trad- 
ing as Martin, Fuller & Co., libelants, shall hâve and recover from 
the City Trust, Safe Deposit & Surety Company and H. C. Bye, 
agent of the International Navigation Company, stipulators, the sum 
of $7,500, being the said sum of $6,036 damages, with the sum of 
$1,464, a portion of the interest thereon; and that the libelants shall 
further hâve and recover of the International Navigation Company, 
owner and claimant of said steamship Southwark, the sum of $2,- 
009.72, being the balance of said interest ; and shall further hâve and 
recover of said International Navigation Company their costs, 
amounting to the sum of $711.16. And it is further ordered and de- 
creed that this decree shall bear interest from its date at the rate of 
6 per cent, per annum. 



SAMUEL H. COTTRBLL & SON T. SMOKELESS FUEL CO, 

(Circuit Court, E. D. Virginia. January 16, 1904.) 

Sales— CoNTBACTS— Excuses foe Ii'ailuke to Delivee. 

Where a contract for the sale of sucli eoal as the buyer might need, 
approximating 3,000 tons, during the year from April 17, 1902, to April 
17, 1903, contained a provision that dellveries should be subject to strikes, 
accidents, interruptions to transportation, and other causes beyond the 
seller's control, the existence of a miners' strike did not avoid the con- 
tract, but only suspended its opération during such strike. 



SAMUEL H, COTTRELL A SON V. 8M0KELESS FUEL 00. 1T5 

2. Same—Damages. 

Where défendants agreed to dellver such coal as plalntlff should need 
between April 17, 1902, and Aprll 17, 1903, approximating 3,000 tona, in 
such quantities and at sueh times as plalntlff should direct, except that 
dellveries should be subject to strikes, and by reason of a strike deliveries 
were prevented from June 7, 1902, to March 1, 1903, and plalntlff only 
demanded two car loads after that date, plalntlff could only recover dam- 
ages on such amount 

In Assumpsit for Breach of Contract. 

On the 17th day of Aprll, 1902, the Smokeless Fuel Company entered Into 
a contract with S. H. Cottrell & Son, by which the fuel Company agreed to 
furnish and dellver to Cottrell & Son, at Rlchmond, Va., ail of the New River 
R. O. M. steam coal from Oollins Colliery Company, they mlght need from the 
17th of Aprll, 1902, to April 17, 1903, approximating 3,000 tons, more or less, 
and to ship the same in such quantities and at such times as Cottrell & Son 
might from time to time direct durlng the continuance of sald contract, at 
priées therein mentloned, but subject to the following provision: "Deliveries 
of coal under this contract are subject to strikes, accidents, interruptions to 
transportation, and other causes beyond the control of the party of the first 
part [the fuel company], which may delay or prevent shipment" Cottrell & 
Son called for and received under said contract up to the lOth day of June, 
1902, a total of 563 tons, at the price of $2.57 per ton, the contract price. On 
the 7th day of June, 1902, there was a gênerai strike throughout the mining 
district, including the mines from which the coal under this contract was to 
be sbipped. From that time on no coal was shlpped to Cottrell & Son durlng 
the continuance of the contract, though during the pendency of the strike they 
frequently called for the same; and after it ended, and durlng the running 
of the contract, made one request of two car loads of coal, none of which 
was furnished. This action was brought to recover damages for breach of 
the contract for failure to furnish the undelivered 2,437 tons of coal thereun- 
der, said damage being estimated on the average of ruling priées for such 
coal from November, 1902, to April, 1903, which showed a loss to Cottrell & 
Son of fl.74i/i per ton, as they claim, and for which the verdict of the jury 
was rendered in their favor. 

Henry R. Pollard, for plaintiffs. 
Sands & Sands, for défendant. 

WADDILL, District Judge. This case is now before the court up- 
on a motion to set aside the verdict of the jury rendered herein on the 
2d day of December, 1903, because, among other things, it is contrary 
to the law and the évidence, and unsupported by the évidence. After 
mature considération of said motion, having carefuUy reviewed the 
évidence and heard the arguments of comisel thereon, the conclusion 
reached by the court is that the verdict rendered in favor of the plain- 
tiffs should be set aside, because the same is unsupported by and con- 
trary to the évidence. The crucial point involved is whether or not the 
conditions at the mines of the défendant during the continuance of the 
contract were such as to relieve it from the obligationof the same un- 
der the clause in the agreement known as the "strike clause." In other 
respects the facts may be said to support the finding of the jury. That 
abnormal conditions prevailed durjng the fall of 1902 and the winter of 
1902-3 is a matter of common knowledge, and forms a part of the 
history of the times ; but reliance need not be had upon this, as the 
évidence conclusively establishes that from the 7th of June, 1902, cer- 
tainly for a period of four months, conditions at the mines were such 
that the ordinary and usual opération of them was eut of the question. 



176 129 FEDBKAL REPORTEE. 

Indeed, out of 60 mines in the coal district, comparatively few were 
operated at ail, and those few under the protection of a military force. 
Normal conditions were not resumed until about the ist of March, 
1903. This is established by the évidence of the plaintiffs' own wit- 
ness Mr. Morris O. Brooks, a gentleman of intelligence, who had ample 
opportunity of knowing the conditions existing, and who testified with 
such frankness, fairness, and clearness, and showed such familiarity 
with the entire situation, that none could fail to be impressed by his 
évidence; and as to the conditions mentioned he is fully sustained by 
the évidence of the défendant company. At an early stage of the strike 
little or no coal was mined, but the défendant never discontinued 
work entirely, though conducting its business by means of an armed 
force, employed as well at the mines as in the effort to transport coaî 
therefrom. The output was comparatively small, and produced at 
greatly increased expense ; so muçh so that the coal more than doubled 
in value. Even after the return to normal conditions, the cost of 
mining and the price of coal were never anything approximating those 
existing at the time of entering into the contract. The strike clause ivi 
the contract was manifestly inserted for the purpose that when condi- 
tions existed wliich placed it beyond the control of the party of the first 
part to the contract, the défendant hère, to carry out the same, it shouîd 
operate to relieve it from the provisions thereof. That such conditions 
did exist during the life of this contract which placed the mining and 
transportation of coal in the usual course of business beyond the de- 
fendant's power, is too apparent to admit of serious doubt. Indeed, 
it is the one thing in which the évidence of the plaintiffs and the défend- 
ant concur; and to allow the verdict of the jury to stand based upon 
the failure of the défendant to furnish coal during the strike would, 
in effect, be to annul that important qualification and condition in the 
contract, and to give to it no effect whatever. The language in référ- 
ence to strikes is : "Deliveries * * * are subject to strikes, acci- 
dents, interruptions to transportation, and other causes beyond the 
control of the party of the first part, which may delay or prevent ship- 
ments." The existence of the conditions do not avoid the contract, 
but only suspend the opération of the same during their pendency, 
which in this case was from the 7th of June, 1902, to the ist of March, 
1903. For the failure to deliver coal during that period, no recovery 
should be had, and the plaintiffs can only recover for such coal as they 
called for under their contract, after the restoration of normal condi- 
tions at the mines — that is, after the ist of March, 1903, to the I7th of 
April, 1903 — which, according to the évidence, consisted of two car 
loads ordered by the plaintiffs on the 2d of March, 1903. 

The court's attention has been called to the case of HuU Coal & Coke 
Co. V. Empire Coal & Coke Co., 113 Fed. 256, 51 C. C. A. 213, which 
bears upon the gênerai subject tmder considération, but otherwise 
throws no spécial light on this case, as the same turns entirely upon 
the sufficiency of the évidence adduced to support the.finding of the 
jury. 

The verdict, as rendered, will therefore be set aside, and a new trial 
awarded herein. 



OART BEOS. A HANNON V. MORBISON. 177 

CARY BROS. & HANNON v. MOBRISON. 

tCircuit Court of Appeals, Eighth Circuit. March 18, 1904.) 

No. 1,928. 

1. Explosives— Blasting—Right to Use to Gbade Railroad. 

Blasting by the use of gunpowder or dynamite is an appropriate and 
justifiable mode of removiug rock from the riglit of way of a railroad in 
order to bring it to grade, and a railroad company or its grading con- 
tractors may lawfully employ it, with reasonable care. 

2. Same— Thbowing Rocks upon Neigheoring Pbopebtt— Waening. 

Wtiile a contraetor may lawfully use blasting wIth gunpowder or dyna- 
mite to remove rock in the right of way of a railroad company, he bas 
no right by its use to throw rocks upon persons rightfully occupying or 
using neighboring property. Such an act is a trespass, and it Is his duty 
to give such persons reasonable warning of coming explosions. 

3. Same— Unheeded Waening— Oonteibutoby Négligence. 

It is the duty of one who is lawfully using property near to that upon 
which another is legally engaged in blasting, and who is warned of a 
coming explosion, to use reasonable diligence to escape from danger on 
account of it ; and a failure to exercise such care, which concurs in pro- 
ducing his injury, walves his right of action for the trespass, and const> 
tûtes contributory négligence, which is fatal to his action for damages 
for the injury. 

4. Contributory Négligence— Question for Jury— Exception. 

The question whether or not one is guilty of contributory négligence is 
ordinarily for the jury. It is only when the facts which condition the 
question are stipulated, or are established by testimony which is free from 
substantial conflict, and, the inference from the facts Is so certain that ail 
reasonable men, in the exercise of a (air and impartial judgment, must 
agrée upon it, that the question of contributory négligence may be law- 
fully withdrawn from the jury. 

6. Explosives— Blasting— Contributory Négligence— Question fob Juey. 

The défendants were lawfully engaged in blasting rock out of the right 
of way of a railroad company at a point about 150 feet from a river. The 
décèdent was rightfully walking along the bank of the river a short dis- 
tance below a point opposite the place of blasting, holding the prow of a 
(erryboat away from the bank with a pôle, while the ferryman was walk- 
ing ahead of him, puUing the boat up the stream, in the customary way, 
preparatory to poling it across. The décèdent had engaged his passage 
across the river upon the boat. The custom of the défendants was to 
send men out, shouting "Fire," at short Intervais for a period of 12 or 
15 minutes before explodiug a charge of gunpowder or dynamite, and the 
charges had been so heavy that rocks had fallen ail aroand the place 
where the décèdent and the ferryboat were, and had broken llmbs and 
stripped foliage from the trees of the forest which intervened between 
the right of way and the river, and concealed the boatmen from those en- 
gaged In blasting, who were not aware of their présence before the explo- 
sion. The décèdent had worked for the défendants, and knew thèse facts 
and this custom. Seven witnesses heard the cry of fire 12 to 15 minutes 
before the explosion. Three heard it from 2 to 5 minutes before. When 
the ferryman heard It, he shouted "Don't shoot," and he and the décèdent 
continued to ascend the stream within 200 or 300 feet of the place of 
blasting. The ferryman heard It again, and answered it again, and they 
continued up the river. The ferryman heai-d it a third time, answered 
again, the signal to explode the blast was glven, the charge was fired, 

K 2. See Explosives, vol. 23, Cent Dig. §§ 9, 10. 
129 F.— 12 



178 129 FEDERAL EBPOETEK. 

and a rock fell upon the décèdent and killed hlm. The defendant's wlt- 
nesses testifled that they dld not hear the cry "Don't shoot." 

Held, the question whether or not the décèdent was guilty of contribu- 
tory négligence was for the jury. 

Thayer, Circuit Judge, dissenting. 
(Syllabus by the Court.) 

In Error to the Circuit Court of the United States for the Western 
District of Arkansas. 

G. B. Rose (U. M. Rose and W. E. Hemingway, on the brief), for 
plaintiffs in error. 

Ira D. Oglesby (W. E. Atkinson and Geo. O. Patterson, on the brief), 
for défendant in error. 

Before SANBORN, THAYER, and HOOK, Circuit Judges. 

SANBORN, Circuit Judge. This writ of error questions the pro- 
ceedings at the trial of an action for négligence brought by Mrs. T. 
Jane Morrison, the administratrix of the estate of W. L. Morrison, 
against Cary Bros. & Hannon, a partnership composed of the défendants 
below, which resulted in a judgment against the défendants for $6,000. 
In her complaint the plaintiff alleged that her husband, W. L. Morrison, 
was killed by a blow from a rock which was carelessly thrown from a 
blast by the défendants, who were then engaged in grading the Little 
Rock & Et. Smith Railroad. The défendants denied that they weré 
guilty of négligence, and alleged that the injury and death of Morrison 
were caused by his own carelessness, in that he disregarded warnings 
that the explosion was about to occur, and refused or neglected to 
seek a less dangerous place. At the close of the trial the court, in effect, 
charged the jury that Morrison was free from négligence, and that, if 
they believed that the défendants were guilty of carelessness which 
caused his injuries and death, the plaintiff was entitled to a verdict. 
This instruction is challenged, and its considération nécessitâtes a 
review of the facts disclosed by the évidence at the trial, which were 
thèse : Cary Bros. & Hannon had been engaged at the place where the 
accident occurred in blasting heavy rocks out of the right of way of 
the Little Rock & Ft. Smith Railroad Company for about two weeks. 
At the place where they were at work the right of way ran east and 
west parallel to, and about 150 feet distant from, a river 1,200 feet 
wide. The surface of the ground along the right of way was higher 
than that of the river, and between them was a forest, which, with its 
foliage, made it impossible to see the river from the surface of the 
ground along the right of way, although there was testimony that it 
was visible from a pile of timber and brush some 20 to 90 feet distant 
from the explosion. On the bank of the river, and about 700 feet below 
and east of a point upon the river directly south of the place of the 
blasting, was a landing place for a ferry ; and between thèse two points, 
and about 350 feet from the landing, was a mill. The country was 
sparsely populated, and there was but one house, aside from the mill, 
within 700 feet of the place of the fatal blast. The contractors had 
been using heavy charges of powder, and had thrown rocks in every 
direction, some of them 700 feet from the place of the explosion, but 



CAET BEOS. & HANNON V. MORKISON. 179 

naturally many more had fallen nearer to the place of the blasting 
than at a greater distance. Between the place of the explosion and the 
river much .foliage had been stripped from the trees, and their limbs 
had been broken by falling rocks. The custom of the défendants had 
been and was to send their employés ont 12 or 15 minutes before a 
charge of powder was to be fired, shouting the word "Fire" at short 
intervais, for the purpose of warning ail persons in the vicinity of the 
coming explosion, so that they might retire out of danger. Morrison 
was a laborer, a farmer, and a minister, who earned annually about $100 
by the first, about $300 by the second, and about $75 by the third 
occupation. He had been an employé of the défendants at the place of 
the explosion within two weeks before the accident occurred, had seen 
heavy charges of powder exploded, was aware of their efïeCt, and knew 
how the warning of a coming blast was given, and ail the facts which 
hâve been recited. The customary method of operating the ferry- 
boat at this time was to tow it up the stream, so that the carrent would 
not carry it below the opposite landing, and then to pôle it across the 
river. But the défendants' witnesses testified that they were not aware 
that the ferryboat ever came up along the bank in that way. At a time 
when the défendants had a charge of powder nearly ready for explosion, 
about 2 or 3 o'clock in the afternoon of October 5, 1902, Morrison came 
from the north to the landing place of the boat for the purpose of cross- 
ing the river upon it. When the boat was ready to cross the river, it 
was loaded with a team of mules, a wagon, and one Davis, the owner 
of the mules. Thereupon the ferryman walked up along the north 
bank of the river, and dragged the Ijoat after him by means of a rope 
attached to it, while Morrison walked along the bank behind him, 
and pushed the prow of the boat away from the bank with a pôle. 
When they had arrived at a point above the mill, but below a point 
opposite the place of the blasting, Davis heard the cry of fire, the ferry- 
man shouted "Don't shoot," and they proceeded on their way up the 
river. After a short interval Davis again heard the shout "Fire," and 
the ferryman again cried "Don't shoot," while they continued on their 
way. And after another interval Davis heard the cry of fire again, 
the ferryman again cried "Don't shoot," Davis heard the words "Ail 
right," the explosion occurred "right then," and a rock from the blast 
fell upon Morrison and killed him. The défendants' witnesses testified 
that they did not hear the cry "Don't shoot," did not know that Mor- 
rison and his companions were near their place of work, and that the 
words "Ail right" were addressed to the operator of the battery, and 
constituted the signal for the explosion. The course of proceeding of 
the défendants and their employés up to this time had been this : 
About 12 or 15 minutes before the explosion, men had been sent out, 
crying "Fire," and they continued to repeat the cry at short intervais 
until the explosion occurred. One of the employés of the défendants 
stepped on some logs about 100 feet from the river, faced it, and 
shouted "Fire." After he had donc this he walked 500 feet to the bat- 
tery before the explosion. Seven witnesses testified that they heard the 
cry of fire 12 or 15 minutes before the explosion. Three witnesses 
only, and they were on the opposite side of the river, testified that they 
first heard the cry from 2 to 5 minutes before the explosion. The 



180 129 FEDERAL EEPORTER. 

witness Hihes testified that he was sitting on the north bank of the river, 
opposite the mill, when he first heard the warning; that this was 12 
or 15 minutes before the explosion; that the ferryboat was then no 
more than 200 feet above him (and that would hâve been about 150 
feet below a point opposite the place of the blasting) ; that he heard 
the cry of fire five times, and that after he first heard it he went north 
and east 1,000 feet, in order to get out of danger before the explosion 
occurred. Yandell, another witness, who was on the opposite side of 
the river, and who did not hear the cry until from 2 to 5 minutes of the 
explosion, walked 120 feet away from the river after he heard it, and 
before the explosion, in order to place himself without the range of 
danger. And Prendergast, who was aiso on the other side of the river, 
testified that he heard the cry 15 minutes before the explosion, and went 
under a shed for shelter. Davis was the only one of the men who 
were with the boat at the time of the accident who appeared at the trial, 
and he testified that when he first heard the cry of fire the boat was a 
little below a point opposite the place of explosion, and that the ferry- 
man dragged it up the river two boat lengths, or 90 feet, and commenced 
to roU up his lines to start to cross the river before the blast came. 

In this State of the évidence the court below instructed the jury, 
in effect, that there was no question of contributory négligence for their 
considération, and that, if the défendants were guilty of négligence, 
the plaintifï was entitled to their verdict. It refused to charge, at the 
request of the défendants, that if Morrison was a passenger on the 
ferryboat, but was walking along the bank of the river, pushing the 
boat from the bank, and if he heard the warning, and made no effort 
to get out of danger, but continued to walk along the bank, he was guilty 
of contributory négligence. It also refused the request of the défend- 
ants to instruct the jury that it was the duty of Morrision, when he was 
made aware of the fact that a blast was about to be fired, to use reason- 
able diligence to get out of danger. It charged them that it was not 
the duty of Morrison to abandon the boat in the event that he was Cross- 
ing the river and was a passenger when the warning wa.s given. Thèse 
rulings présent the question to be considered in this case. 

The railroad company and its contractors, the défendants, had the 
right to grade its road along its right of way. The right to accomplish 
a resuit includes the right to use the appropriate means to produce it. 
In a sparsely settled country, blasting by means of gunpowder or dyna- 
mite is a reasonable and justifiable way of removing ledges and rocks 
for the purpose of bringing a railroad to a proper grade, and a corpora- 
tion and its contractors hâve the right to use this method, provided they 
exercise reasonable care to protect others from injury. Dodge v. 
County Commissioners of Essex, 3 Metc. (Mass.) 380, 383 ; Whitehouse 
v. Androscoggin R. Co., 52 Me. 208; Brown v. Providence, etc., R. 
Co., 5 Gray, 35, 40; Blackwell v. Lynchburg, etc., R. Co., m N. C. 
151, 153, 154, 16 S. E. 12, 17 L. R. A. 729, 32 Am. St. Rep. 786; Watts 
V. Norfolk & W. R. Co., 39 W. Va. 196, 205, 19 S. E. 521, 23 L. R. A. 
674, 45 Am. St. Rep. 894; Gates v. Latta, 117 N. C. 189, 190, 23 S. E. 
^7Z> 53 Am. St. Rep. 584; Mitchell v. Prange, iio Mich. 78, Çi-j N. W. 
1096, 34 L. R. A. 182, 64 Am. St. Rep. 329. 

While a railroad company has the right to blast rock from its right 



CAET BEOS. & HANNON V. MOERISON. 181 

of way by means of gunpowder or dynamite, it has no right, without 
warning, to throw rocks upon persons who are lawfully occupying or 
using neighboring property, and such an act is a trespass. Sullivan v. 
Dunham, i6i N. Y. 290, 55 N. E. 923, 47 L. R. A. 715, 76 Am. St. Rep. 
274; Hay V. Cohoes Co., 2 N. Y. 159, 51 Am. Dec. 279; Wright v. 
Compton, 53 Ind. 337; St. Peter v. Denison, 58 N. Y. 416, 423, 17 Am. 
Rep. 258; Colton v. Onderdonk, 69 Cal. 155, 159, 10 Pac. 395, 58 Am. 
Rep. 556. 

It is, however, the duty of one who is lawfully using neighboring 
property, and who is warned of a coming explosion by another, who 
is rightfully engaged in blasting, to use reasonable diligence to escape 
f rom danger from the approaching explosion ; and a failure to exercise 
such care, which concurs in producing his injury, waives the right of 
action for the trespass, constitutes contributory négligence, and is fatal 
to an action for the recovery of damages on account of the injury. 
Sullivan v. Dunham, 10 App. Div. 438, 440, 41 N. Y. Supp. 1083 ; 
Wright V. Compton, 53 Ind. 340, 341 ; Graetz v. McKenzie (Wash.) 
35 Pac. 377, 378 ; Mills v. Wilmington City Ry. Co. (Del. Super.) 40 
Atl. II 15; 2 Shearman & Redfield on Law of Négligence, § 688a. 

In the case at bar, therefore, the défendants had the right to remove 
the ledges and rocks from the right of way of the railroad company by 
explosions of gunpowder or dynamite. The décèdent, Morrison, had 
the right to walk along the bank of the river for the purpose of accom- 
panying the boat to its starting point, and crossing upon it to the oppo- 
site side. It was the duty of the défendants to warn Morrison and 
every other person within the circle of danger of the coming explosion 
they were about to cause. It was the duty of Morrison and of every 
one thus warned to exercise reasonable diligence to escape from the 
danger from the explosion and from the threatened injury, and if they 
failed to exercise this diligence, and their failure contributed to their 
injury, it was fatal to an action for damages on account of it. The 
évidence is conclusive that Morrison was warned of the danger, and 
the conclusion is inévitable that the court below fell into an error when 
it refused to instruct the jury that it was his duty, after he was thus 
warned, to exercise reasonable diligence to escape from the threatened 
injury, unless the necessary déduction from the undisputed évidence 
was such that ail reasonable men, in the exercise of an impartial judg- 
ment, would be compelled to conclude that he exercised reasonable care 
or diligence to escape from the impending danger. The question of 
contributory négligence, like every question of négligence, is ordinarily 
for the jury; and it is only when there is no substantial conflict in the 
évidence which conditions it, and when, from the undisputed facts, ail 
reasonable men, in the exercise of a fair judgment, would be compelled 
to reach the same conclusion, that the court may lawfully withdraw it 
from them. St. Louis, I. M. & S. R. Co. v. Leftwich, 54 C. C. A. i, 
2, 1 17 Fed. 127, 128 ; Railroad Co. v. Jarvi, 3 C. C. A. 433, 53 Fed. 65 ; 
Pyle V. Clark, 25 C. C. A. 190, 192, 79 Fed. 744, 746 ; Railroad Co. v. 
Ives, 144 U. S. 408, 417, 12 Sup. Ct. 679, 36 L. Ed. 485 ; Railroad Co. 
V. Converse, 139 U. S. 469, 11 Sup. Ct. 569, 35 L. Ed. 213. 

In the case at bar neither of thèse conditions existed. The évidence 
which conditions the question of contributory négligence is not free 



182 129 FEDERAL BEPOBTEB. 

from substantial conflict, and, if the view of it most favorable to the 
défendants is taken, as it must be in this case, where the instruction 
which took the question from the jury was for the plaintiff, reasonable 
men might well conclude that the décèdent was net free from négligence 
which contributed to his injury. The crucial fact in the case is the 
time when Morrison first heard the cry of fire. That time is not fixed 
by the testimony of any witness, but it must be found from the évidence 
of the witnesses who heard the cries. No one testifies when Morrison 
first heard them. The great prépondérance of the testimony is that 
the shouts of fire were made at short intervais for a period of from 12 
to 15 minutes before the explosion. Seven witnesses heard them at 
least 12 minutes before the blast was fired. One of thèse witnesses was 
about 200 feet below Morrison, on the same bank of the river, and 
another was on the opposite side of the river, 2,200 feet from the place 
of the explosion. Three witnesses who were on the other side of the 
river testified that they first heard the cry of fire, and the ferryman's 
answer, "Don't shoot," from 2 to 5 minutes before the explosion. The 
natural and rational inference from ail this testimony is that the shouts 
of fire were given for at least 12 minutes before the blast, but that the 
three witnesses on the other side of the river did not hear the earlier 
shouts. Did Morrison first hear the warnings when the seven witness- 
es, many of them farther from the place of blasting than he was, first 
heard them, or when the three witnesses on the other side of the river 
first perceived them? The évidence is certainly ample to sustain a 
finding that Morrison first heard them when the majority of the wit- 
nesses first perceived them, 12 or 15 minutes before the explosion. The 
prépondérance of the évidence points to that conclusion. If he heard 
this warning 12 or 15 minutes before the explosion, ail reasonable 
men would not be compelled, in the exercise of a sound judgment, 
to conclude that remaining within the circle of danger, or advancing 
into greater danger, when he was on the bank of the river and free to 
escape from ail danger, was the exercise of reasonable care or diligence. 
Again, there is sufiicient évidence in this record to warrant a finding 
by the jury that the ferryboat was at least 150 feet below a point oppo- 
site the place where the explosion occurred when the ferryman first 
cried "Don't shoot." Three witnesses testify that this cry was first 
heard by them from 2 to 5 minutes before the explosion. Davis says 
that the ferryman was walking fast, drawing the boat up the river, 
and then rolling up his lines to start across the river, during this time. 
A man walking slowly — walking only 3 miles an hour — travels 528 
feet in 2 minutes ; and the boat sank only 800 feet above the landing, 
and not more than 100 feet above a point opposite the place of blasting. 
Davis testifies that the boat was a little below a point opposite the place 
of the explosion when he first heard the cry of fire. Hines says that it 
was at least 150 feet below that point when he first heard the cry, and 
that he was within 200 feet of it. Davis says that the boat went 
about 90 feet after he first heard the warning, and the testimony of 
two witnesses on the other side of the river is that the boat seemed to 
be about opposite the place of the blasting when they first heard the 
cry "Don't shoot." But Davis' estimâtes of distance were demon- 
strated by the measurements to be erroneous. He thought the dis- 



CAET BROS. A HANNON V. MOBEISON. 183 

tance from the place of the explosion to the point where the boat sank 
was 450 feet. It was 198 feet. He said he heard the first cry of fire 
about 900 feet above the landing. But the distance from the landing 
to the place where the boat sank was only 800 feet. Thus it appears 
that the évidence was substantial and sufficient to sustain a finding 
that the boat was 150 feet below the place of blasting when the ferry- 
man first cried "Don't shoot," and when Morrison must hâve been 
aware of the danger. 

Moreover, wherever the boat may hâve been, there were at least 2 
minutes — time enough for one to go on a slow walk 528 feet, and on 
a brisk walk 700 feet, after the ferryman first cried "Don't shoot," 
and before the explosion occurred. It was only about 700 feet from 
the point on the river opposite the place of blasting to the landing. 
Every step down the river, away from the place of explosion, dimin- 
ished the danger of in jury. Every step towards it increased the dan- 
ger. Would a person of ordinary prudence and diligence under 
such circumstances remain in the imminent danger or advance into 
increasing danger? Or would he flee from the point of greatest dan- 
ger, when every step down the river would diminish the chance of his 
in jury? Some reasonable men might well conclude that a person of 
ordinary prudence and diligence would, under such circumstances, 
move away, instead of advancing toward or remaining near the point of 
greatest danger. That was the course pursued by every person within 
hearing of the warning, except the men about the ferryboat. Five 
of those who thus retired upon hearing the warning were much farther 
away from the place of the explosion than Morrison was, and four of 
them were on the opposite side of the river. Hines, on the same bank, 
200 feet below Morrison, traveled 1,000 feet north and east after he 
heard the cry, and before the explosion occurred. Prendergast, 2,200 
feet away, on the other side, took shelter under a shed. Yandell, 
Pointer, and Travers, on the opposite side of the river, and at least a 
quarter of a mile distant, turned and walked farther away. The ferry- 
man had the care of his boat. Davis had the care of his mules. Morri- 
son had the care of nothing but himself. He was walking on the bank 
of the stream, with no responsibility, care, or duty, save the duty to 
heed the warning and use ordinary care to retire from the impend- 
ing danger. This wfts not a case where the facts which conditioned 
the question of contributory négligence were stipulated, or where 
they were established by undisputed testimony. It was not a case 
where, from the facts which the évidence tended to establish, no rea- 
sonable men could hâve rightfully drawn the conclusion that Mor- 
rison failed to exercise ordinary care and diligence to escape from 
the impending danger after he received the warning of it, and the 
question of his contributory négligence should hâve been submitted 
to the jury. It was a debatable question — one upon which the minds 
of reasonable men might honestly reach opposite conclusions — and 
hence one peculiarly appropriate for the détermination of a jury of 
men of the vicinage, who are necessarily familiar with the methods 
of- life and action in the country where the accident occurred, and 
of the course of action which men of ordinary sagacity usually pursue 
when they are notified that a heavy charge of powder to blast out 



184 129 FEDERAL REPORTER. 

rock, which has been falling from such blasts ail about the place they 
are occupying, is about to be exploded. The facts were not so clearly 
established, nor the inference from them so conclusive, that the court 
below should hâve instructed the jury either that if Morrison was a 
passenger, and was walking along the bank, pushing the beat away 
from thé land with a pôle, when he heard the warning, and made no 
efïort to escape, but continued to walk up the river until the explosion, 
he was guilty of contributory négligence, or that it was not his duty 
to abandon the boat in the event that he was crossing the river and 
was a passenger when the warning was given. The court gave the 
latter instruction. It was erroneous, because the évidence was undis- 
puted that Morrison was not crossing the river when he heard the 
warning, but was walking on its bank, and because, when he heard the 
warning, he owed no duty to the boat, nor to the men about him, which 
was not subordinate to his positive duty to immediately use reasonable 
diligence to decrease, and if possible to entirely avoid, the impending 
danger. 

There are other spécifications of error, but the discussion of those 
which hâve been already considered sufficiently indicates the law appli- 
cable to the case, and détermines the disposition which must be made 
of it in this court. 

The judgment below is accordingly reversed, and the case is remand- 
ed to the Circuit Court, with instructions to grant a new trial. 

THAYER, Circuit Judge (dissenting). The défendants below, who 
are the plaintiiïs in error in this court, requested the trial court to give 
four instructions on the subject of contributory négligence, ail of which 
were refused, and the sole question before this court is whether a ré- 
versible error was committed in refusing thèse instructions, or any of 
them. The first of the four instructions was as f ollows : 

"The évidence shows that at the time of hearing the warning, and until he 
was killed, Morrison was not in the boat, but was wallcing on the bank ; that 
he was a passenger, and under no obligation to loolc ont for the safety of the 
boat or its contents ; and you are instructed that when he heard the alarm it 
was his duty to proceed down the bank In search for a place of safety, and 
that, if he did not do so, he was guilty of contributory négligence which pre- 
cludes of recovery in this case." 

The second and third instructions embodied the same idea, namely, 
that if Morrison heard the alarm of fire while walking along the bank 
ànd poling the ferryboat offshore, and made no effort to get out of 
danger after he heard the alarm, he was guilty of contri|jutory négli- 
gence. 

The fourth instruction was a mère abstract proposition of law, to 
the following effect : 

"The court, in this connection, Instructs you that It was the duty of the dé- 
cèdent, Morrison, when he was made aware of the fact that a blast was to 
be fired, to use reasonable diligence to get out of danger." 

I hâve not been able to conclude that the refusai of either of thèse in- 
structions constitutes a réversible error. The first three of thèse in- 
structions were palpably wrong and misleading, in that they ignored 
material facts which the testimony for the plaintiff below strongly tend- 



CARY BROS. * HANNON V. MOERISON. 185 

«d to establish. This testimony was to the effect that no warning of 
the blast which was about to be fired was given until the ferryboat 
had started on its voyage across the river, and had proceeded upstream 
from 150 to 300 yards above the landing; that, when the alarm of 
fire was given, the captain of the ferryboat immediately hallooed back 
as loud as he could, two or three times, net to fire until the boat got 
away, or "Don't shoot until we get away," and that the reply immediate- 
ly came back from some person in the vicinity of the blast, "Ail right." 
In other words, the testimony for the plaintifï below showed that the 
persons on the ferryboat and alongside of it, including the deceased, 
were led to believe, by the reply "Ail right," which was made to the 
captain's exclamation "Don't shoot," that the firing of the blast would 
be deferred until the boat had got ont of danger. Obviously, then, if 
such was the fact, and the jury had so found, as they might well hâve 
done, under the testimony, it could not be said that the deceased was 
guilty of contributory négligence, as thèse instructions declared, be- 
cause he did not drop his pôle and search for a place of safety imme- 
diately after the alarm of fire was given. The first three instructions 
that were asked on the subject of contributory négligence whoUy ig- 
nored this phase of the testimony, and the trial court properly refused 
thèse requests for that reason. 

The fourth instruction, above quoted, stated merely an abstract 
proposition of law, giving the jury no précise direction as to what 
the deceased's conduct should hâve been on the occasion in ques- 
tion. If the deceased heard the alarm of fire, and also heard the 
captain's exclamation "Don't shoot," and the response "Ail right," 
and understood from such response, as he probably did, that the blast 
would not be fired until the boat was out of danger, no one can say 
that he did not exercise reasonable diligence in acting as he did. On 
the other hand, if he did not hear such response, and was not given to 
understand that the blast would not be fired, the exercise of reasonable 
diligence might, in the estimation of the jury, bave required him to act 
differently than he did. The fault with this instruction, in my judgment, 
was that it was too gênerai in its terms, not adapted to the différent 
phases of the testimony, and was not calculated to give the jury any 
information concerning their duty in the premises. Instructions ought 
always to be adapted to the various hypothèses of fact which may be 
found by a jury, and a judgment ought not to be reversed because the 
trial court fails to give an instruction, as respects some abstract rule 
of law, however accurate it may be, which is not calculated to aid the 
jury in reaching a correct conclusion. There is abundant évidence 
in the record to support the conclusion that the plaintiffs in error were 
guilty of négligence. Indeed, I do not understand that fact to be chal- 
lenged by the majority opinion. The testimony shows that the blasts 
which they were in the habit of firing from this eut were very heavy. 
When fired they showered the surrounding country with rock, and 
put the lives of every one who was within the vicinity in péril. It 
was shown that only a day or two previous to the accident in ques- 
tion a blast had been fired which threw a rock weighing 20 tons en- 
tirely across the river. Under thèse circumstances, it was the duty 
of the défendants below to hâve taken greater care than they appear to 



186 129 FEDERAL REPORTEE. 

have taken to ascertain, before firing- a blast, whether ail persons within 
the danger line had been duly notified of the expected explosion, and 
were in a place of safety, or had been given time to reach a place of 
safety. Certainly such blasts as the one in question ought not to be 
fired in proximity to a ferry landing, and near a public highway, with- 
out taking such précautions as are fully adéquate to protect human life. 
In the présent instance the area of danger was so large that if the 
décèdent, when he first heard the warning cry, "Fire," had dropped his 
pôle and run in any direction, he might not have reached a place where 
he would have been any safer than by remaining where he was ; but, 
conceding it to be true that it was his duty to have made some effort 
to reach a place of safety after he heard the warning cry of fire, yet the 
plaintiffs' évidence, if credited by the jury, was of such a character as 
excused him from making any such effort. I think that no instruction 
on the subject of contributory négligence, such as was requested, ought 
to have been given, and that the record discloses no réversible error. 



HARGROVE et al. v. CHBROKBB NATION. 

(Circuit Court of Appeals, Eighth Circuit February 27, 1904.) 

No. 1,866. 

1. JUDGMENT— PEKSONS BOUND— PUBCHASEB PENDING SUIT. 

In a suit under section 3 of Act June 28, 1898 (30 Stat. 495, c. 517), 
whieh authorizes a suit by a tribe In the Indian Territory to recover lands 
held by those clalming membershlp In the tribe, but whose membership 
or right has been disallowed by the commission or the United States court, 
and the judgment has become final, the gênerai rule applles that a stran- 
ger cannot, by a conveyance or transfer of possession froin the défendant 
pendente llte, acquire any rlghts wbich are not subject to the judgment 
subsequently rendered in the suit, whether or not he Is made a party 
thereto; and where such a purchaser or transférée Is brought in by an 
amended complalnt it Is not neeessary to allège that his membership in 
the tribe has been disallowed. 

2. iNDiANS— Action to Dispossess Intbudeb on Lands or Tbibe— Notice be- 

FOBE Suit. 

Act June 28, 1898 (30 Stat 495, c. 517), provides for the bringing of 
suits by any tribe in the Indian Territory to dispossess intruders on lands 
of the tribe, and authorizes such suit by any member of the tribe where 
the chlef or governor fails or refuses to brlng it Section 5 requlres the 
party bringing such suit to serve notice on the adverse party to leave the 
premises at least 30 days before the suit is conimenced; and by section 
2 it Is provlded that when, in the progress of any civil suit in a court of 
the territory, it shall appear that the property of any tribe Is afCected by 
the Issues, it shall be the duty of the court to make such tribe a party 
by service on the chief or governor. Held that, where a suit to dispos- 
sess an Intruder was orlglnally brought by a member of a tribe who had 
served the requlred notice, such notice was sufficlent, although the Cher- 
okee Nation aftervvard joined, and became the plalntlff in the suit 

8. Same — Damages fob Détention of Pbopbbty. 

Where, In such a suit it appeared that a défendant brought In by an 
amended complalnt by an agreemeut wlth the original défendants, ob- 
talned possession of the premises and Improvements after the bringing 
of the suit and wrongfully wlthheld possession from the tribe, a judgment 
may properly be rendered agalnst him for tte damages caused by his 
wrongful détention, as well as for possession of the property. 



HAEGEOTE V. CHEROKEB NATION. 187 

In Error to the United States Court of Appeals in the Indian Ter- 
ritory. 

For opinion below, see 69 S. W. 823. 

An act of Oongress approved on .Tune 28, 1898, entitled "An act for the pro- 
tection of people of the Indian Territory, and for other purposes" (30 Stat. 
495, c. 517), contains, among others, the followlng provisions: 

"See. 2. That when in the progress of any civil suit, either in law or equity, 
pending in the United States court In any district in said territory, it shall 
appear to the court that the property of any tribe is in any way affected by 
the issues being heard, said court Is hereby authorized and required to make 
said tribe a party to said suit by service upon the chief or governor of the 
tribe, and the suit shall thereafter be conducted and determined as If said 
tribe had been an original party to said action. 

"Sec. S. That said courts are hereby given jurisdiction In thelr respective 
districts to try cases against those who may claim to hold as members of a 
tribe and whose membership is denied by the tribe, but who continue to hold 
said lands and tenements notwithstanding the objection of the tribe ; and if 
it be found upon trial that the same are held unlawtully against the tribe by 
those claiming to be members thereof, and the membership and right are dis- 
allowed by the commission to the Five Trlbes, or the United States court, and 
the judgment has become final, then said court shall cause the parties charged 
vv'ith unlawfully holding said possessions to be removed from the same and 
cause the lands and tenements to be restored to the person or persons or 
nation or tribe of Indians entitled to the possession of the same : provlded al- 
ways, that any person belng a non-citizen in possession of lands, holding the 
possession thereof under an agreement, lease, or improvement contract wlth 
either of said nations or tribes, or any citizen thereof, executed prlor to Jan- 
uary first, eighteen hundred and ninety-eight, may, as to lands not exceedlng 
in amount one hundred and sixty acres, in défense of any action for the pos- 
session of said lands show that he Is and has been In peaceable possession 
of such lands, and that he has, while in such possession made lasting and 
valuable improvements thereon, and that he has not enjoyed the possession 
thereof a sufficient length of tinie to compensate him for such Improvements. 
Thereupon the court or jury trying said cause shall détermine the falr and 
reasonable value of such improvements and the fair and reasonable rental 
value of such lands for the time the same shall bave been occupled by such 
person, and if the improvements exceed in value the amount of rents wlth 
which such persons should be charged the court. In its judgment, shall speclfy 
such time as will, in tlie opinion of tlie court, compensate such person for the 
balance due, and award him possession for such time unless the amount be 
paid by claimant within such reasonable time as the court shall speclfy. If 
the finding be that the amount of rents exceed the value of the improvements, 
judgment shall be rendered against the défendant for such sum, for which 
exécution may issue. 

"See. 4. That ail persons who hâve heretofore made improvements on land 
belonging to any one of the said tribos of Indians, claiming rlghts of cltlzen- 
ship, whose clalms hâve been decided adversely under the Act of Congress 
approved June tenth, eighteen hundred and ninety-six, shall hâve possession 
thereof until and including December thirty-flrst, eighteen hundred and ninety- 
eight ; and may, prlor to that time, sell or dispose of the same to any member 
of the tribe owning the land who desires to take the same in bis allotment: 
provlded, that this section shall not apply to improvements which hâve been 
appraised and paid for or payment tendered by the Cherokee Nation under 
the agreement wlth the United States approved by Congress March third, 
eighteen hundred and ninety-three. 

"Sec. 5. That before any action by any tribe or person shall be commenced 
under section three of this act it shall be the duty of the party brlnging the 
same to notlfy the adverse party to leave the premises for the possession of 
which the action is about to be brought, which notice shall be served at least 
thirty days before commencing the action by leaving a written copy with the 
défendant, or, if he cannot be found, by leaving the same at his last known 
place of résidence or business with any person occupylng the premises over 



188 129 FEDERAL REPORTER. 

the âge of twelve years, or, If hls résidence or business address can not be 
ascertalned, by leaving the same with any person over the âge of twelve years 
upon the premises sought to be reeovered and described in said notice ; and 
it there be no person with whom said notice can be left, then by posting same 
on the premises. 

"Sec. 6. That the summons shall not issue in such action until the ehief or 
governor of the tribe, or person or persons brluging suit in his own behalt', 
shall hâve flled a sworn eomplaint, on behalf of the tribe or himself, with the 
court, which shall, as near as practicable, descrlbe the premises so detained, 
and shall set forth a détention without the consent of the person bringing said 
suit or the tribe, by one whose membership Is denied by it: provided. that 
if the ehief or governor refuse or fall to bring suit in behalf of the tribe then 
any member of the tribe may make eomplaint and bring said suit" 

Pursuant to the provisions of the foregoing act of Congress, one Claude S. 
Shelton, who was an Indian, and a member of the Cherokee tribe of ludiaus, 
appears to hâve brought an action against J. S. Hargrove et al., the plaiutiffs 
in error, Jn which action the Cherokee Nation subsequently joined as a party 
plahitiff. The original eomplaint, which was flled by Shelton, Is not found 
in the présent record, but the action so brought was tried, resulting in a judg- 
ment in favor of the plaintifEs, whereupon the défendants prosecuted an appeal 
to the United States Court of Appeals in the ludian Territory. The latter 
court reversed the judgment of the lower court for reasons fully disclosed in 
its opinion. Vide Hargrove v. Cherokee Nation (Ind. T.) 58 S. W. 007. On 
the return of the record to the lower court, the défendants flled a motion to 
dismiss the action, which motion was overruled. The plaintiffs thereupon 
asked leave to amend the eomplaint by making oue Samuel H. Conklin a 
party défendant, and leave to that efCect was granted. An amended eomplaint 
was thereupon flled, and afterwards a second amended eomplaint, on which 
the judgment now before this court for review was subsequently rendered. 
By the second amended eomplaint Conklin was made a party défendant, and 
with leave of court Shelton's name was stricken out as a party plaintifî, so 
that the action was thereafter prosecuted to final judgment by the Cherokee 
Nation as the sole plaintiff. To this second amended eomplaint the défendants 
below, who are the plaintifïs in error hère, interposed a demurrer on the fol- 
lowlng grounds : First, that the court had no jurisdiction of the person of the 
défendant Conklin, or of the subject of the action as to said défendant Conk- 
lin ; second, that the plaintiff had no légal capacity to sue the défendant 
Conklin ; third, that there was a defect of parties défendant ; and, fourth, that 
the amended eomplaint did not state facts sufBcient to eonstltute a cause of 
action. The trial court overruled the demurrer. The défendants declined to 
plead further, whereupon a judgment was rendered against them, which was 
subseguently afllrmed on a second appeal to the United States Court of Ap- 
peals in the Indian Territory (69 S. W. 823), and the judgment which was so 
afllrmed is before this court for review on a writ of error. 

M. M. Edmiston, for plaintifïs in error. 
James S. Davenport, for défendant in error, 

Before SANBORN, THAYER, and HOOK, Circuit Judges. 

THAYER, Circuit Judge, after stating the case as above, delivered 
ttie opinion of tlae court. 

As tliere was no trial below except on demurrer, and as the record 
contains no bill of exceptions, the questions for considération by this 
court are those which arise on the face of the record, and are in the 
main those which are presented by the demurrer to the second amend- 
ed eomplaint. 

The reason assigned in support of the first ground of demurrer, 
namely, that the court had no jurisdiction of the case as respects the 
défendant Conklin, and no right to render a judgment against him, 



HAKGKOVE V. ClIEKOKEE NATION. 189 

appears to be this : that the amended complaint contains no allégation 
that Conklin's right to the improvements in controversy had been dis- 
allowed by the décision of the commission to the Five Tribes, or a 
judgment of the United States court in the Indian Territory, which 
had become final at the time he was made a party défendant. It is 
urged, in substance, that under the provisions of the third section of 
the act of Congress above quoted, under which the action is brought, 
the court before whom the case was tried had no power to cause Conk- 
lin to be removed, and the premises in controversy to be restored to 
the Cherokee Nation, until his membership in the tribe "and right" had 
been (as the act says) "disallowed by the commission to the Five Tribes 
or the United States court, and the judgment had become final" ; and 
that, as the complaint showed no such disallowance of his member- 
ship and rights by the commission or the United States court, the 
lower court had no jurisdiction over him in this statu tory proceeding. 
This contention is founded, apparently, upon a misconception of the 
reasons which caused the Cherokee Nation to make Conklin a party de- 
fendant. Its second amended complaint alleged that the défendants 
other than Conklin were claimants to citizenship in the Cherokee Na- 
tion, whose claim had been decided advcr.ciy to them by the United 
States courts and the Dawes commission, and that the judgment had 
become final; that said défendants were, at the time of the institution 
of this action, holding the improvements in controversv as claimants 
to citizenship in the Cherokee Nation ; that the défendant Conklin, on 
or about and since the institution of the suit, had taken possession of 
the improvements in controversy jointly with the other défendants — 
that is, with the Hargroves ; that he so took possession under an ar- 
rangement with the other défendants for the purpose of defeating the 
Cherokee Nation of its right to the improvements ; that at the time of 
the institution of the présent action Conklin had a suit pending against 
the other défendants to obtain possession of the identical improvements 
now in controversy; that the Cherokee Nation had filed its interplea 
in said case for the protection of its rights; and that subséquent to 
the filing of such interplea Conklin, through his attorney, had dis- 
missed "his action to recover the improvements from the other défend- 
ants, doing so in pursuance of a combination or agreement with the 
other défendants for the purpose of holding the improvements in con- 
troversy contrary to and against the will of the Cherokee Nation. The 
complaint contained another allégation to the efifect that the défend- 
ants were at the time in unlawful possession of the lands and improve- 
ments in controversy, that they were not the owners thereof or entitled 
to the possession, and that the Cherokee Nation was the absolute own- 
er, and as such entitled to the immédiate possession of the same. 

Fairly construed, thèse allégations of the complaint must be under- 
stood to mean that Conklin acquired such possession as he had sub- 
séquent to the commencement of the présent action against the other 
défendants, who were in possession of the improvement in controversy 
when the suit was instituted, and whose claim and right thereto had 
been disallowed by the commission, and that such possession as he 
had gained was obtained by collusion with the other défendants to pre- 
vent the Cherokee Nation from recovering the possession of the im- 



190 129 FEDERAL EBPOETER. 

provement in thîs action, which was then pending. In view of the 
foregoing averments, it is manifest, we think, that Conklin was named 
as a party défendant to the second amended complaint iipon the theory 
that he could net, by collusion with the Hargroves, take possession of 
the land and improvements in controversy subséquent to the institution 
of the action, and by so doing defeat the purpose of the suit, although 
snch claim to the improvement as he may hâve had had not been dis- 
allowed by the commission or the United States courts. This view 
of the case appears to us to be well founded. It is a gênerai rule of 
law, and one which is absolutelv essential to the effective prosecution 
of an action for the recovery of the possession of real property or to 
enforce a lien against the same, that one who acquires possession of 
property from a person against whom a suit is at the time pending for 
the possession thereof or to enforce a lien against the same takes it 
subject to the outcome of the pending action, and may be dispossessed 
precisely as the person from whom he acquired the possession might 
hâve been dispossessed had he retained the possession, whether such 
intruder is made a party to the suit and has his day in court or not. 
Any other rule would render suits for the recovery of real property in- 
efïectual, as they might be defeated by repeated transfers of possession 
during the pendency of the action. Tilton et al. v. Cofield, 93 U. S. 
163, 168, 23 L. Ed. 858; Whiteside v. Haselton, iio U. S. 296, 301, 4 
Sup. Ct. I, 28 L. Ed'. 152; Burleson v. McDermott, 57 Ark. 229, 21 
S. W. 222 ; Bailey v. Winn, 113 Mo. 155, 165, 20 S. W. 21. See, also, 
Am. & Eng. Ency. of Law, vol. 21 (2d Ed.), p. 595, and cases there 
cited. We perceive no reason why this doctrine should not be held 
applicable to a case like the one at bar, which is an action by the 
Cherokee Nation to recover an intruder's improvement on land belong- 
ing to the nation, although it is a statutory proceeding authorized by 
an act of Congress. The same reasons exist in such a case as in ordi- 
nary cases why an action which is brought by the nation in pursuance 
of the statute to recover an improvement, provided it is brought against 
the parties who are in actual possession at the time the suit is instituted, 
should not be affected, or in any manner interrupted, by a subséquent 
transfer of the possession to a third party. The facts alleged in the 
complaint as against Conklin are fully admitted by the demurrer, and 
inasmuch as it appeared that he acquired possession of the improve- 
ment subséquent to the institution of the suit against the Hargroves, 
he could hâve been ousted by the nation under a judgment against 
them, even if he had not been made a party. VVe are of opinion, there- 
fore, that he has no right to complain because he was made a party 
and given an opportunity to assert his rights if he had any ; and we 
entertain no doubt of the jurisdiction of the court as respects Conklin, 
or of its power to enter a judgment against him for the restoration 
of the land and the improvements thereon to the Cherokee Nation. 

The other objections to the amended complaint, which are specified 
in the demurrer, are that there "is a defect of parties défendant," and 
that "said amended complaint does not state facts sufficient to con- 
stitute a cause of action." The first of thèse objections only chal- 
lenges the right of the plaintiff to make Conklin a party défendant, 
as it saw fit to do. It therefore présents the same question which has 



HAEGROVE V. OHEEOKEE NATION. 191 

already been considered and decided. As Conklîn acquîred possession 
from the other défendants after the suit was brought, we are of opin- 
ion that the Cherokee Nation had the right to make him a party de- 
fendant if it thought proper to do so, and that he has no cause for 
complaint on that ground. 

The next objection — to the sufficiency of the amended complaint — 
raises but one question, and that is whether such a notice was given 
to the défendants as is required by the fifth section of the act of June 
28, 1898, supra. The complaint shows that the original défendants 
were served with the statutory notice by the original plaintifï, C. S. 
Shelton, but it does not aver that the nation itself served or caused 
such a notice to be served on the défendants prior to its becoming a 
party plaintiff; and the question to be determined is whether the no- 
tice which was given by Shelton is sufificient to sustain the action. The 
act of Congress above quoted clearly contemplâtes that actions for the 
recovery of intruder's improvements in the Indian Territory shall be 
brought by the tribe to whom the lands belong, but the proviso to the 
sixth section of the act déclares "that, if the cîiief or governor refuse 
or fail to bring suit in behalf of the tribe, then any member of the tribe 
may make complaint and bring said suit." The fifth section of the 
act in terms permits the party who institutes the suit, whether it be 
the tribe or a member of the tribe, to serve the prescribed notice, and 
the second section of the act makes it the duty of the court, when it 
appears that the property of the tribe is "in any way afïected by the 
issues being heard" in a suit pending before it, "to make said tribe a 
party to said suit." It further déclares that "the suit shall thereafter 
be conducted and determined as if said tribe had been an original 
party to said action." Now, if the original action which was brought 
by Shelton had come to trial before the Cherokee Nation had elected 
to join in the proceeding, it would bave been the duty of the court be- 
fore whom the case was tried, under the second section of the act, to 
hâve made the nation a party, and in that event it could hardly be 
claimed that the nation would hâve been under an obligation to serve 
a second notice before it could hâve been made a party and allowed to 
take part in the prosecution of the suit. Moreover, the notice which 
the fifth section of the act requires to be served is merely intended to 
advise the intruder that his claim is contested, and to give him a fair 
opportunity to abandon his holding before any costs are incurred. One 
notice to this effect, by a person entitled to give it, is certainly as ef- 
fective as many. In view of thèse considérations and the varions pro- 
visions of the act, we feel constrained to hold that, when a member of 
a tribe gives the requisite notice to an intruder, and subsequently brings 
a suit on the strength thereof, and thereafter the nation elects to join 
in the suit, it may do so without giving another notice in its own be- 
half; in other words, we are of opinion that it may properly adopt 
or ratify the action of one of the members of the tribe, who, in bringing 
a suit to dispossess an intruder in the Indian country, really acts in be- 
half of his tribe and for its benefit. We conclude, therefore, that the 
second amended complaint was not fatally defective because it failed to 
show that a notice had been given by the nation itself, and, as the com- 
plaint contains ail the other allégations necessary to the establishment 



192 129 FEDEEAL REPOETEK. 

of a cause of action in'Behalf of the Cherofeee Nation, the demurrer to 
the complaint was properly overruled. 

While the point is not argued in the brief of counsel for the plaintiffs 
in error, yet we hâve considered the question whether the lower court 
acted properly in rendering a judgment against the défendant Conklin 
for the damages occasioned by the unlawful détention of the improve- 
ment as well as for the possession of the property. It may be assumed, 
we think, that this question is fairly raised by tiie demurrer to the sec- 
ond amended complaint, which challenges the jurisdiction of the court 
to render a judgment against Conklin of any kind. After due con- 
sidération of this question, we hâve concluded that the judgment 
against Conklin for damages can be upheld as well as the judgment for 
possession. It stands admitted by the demurrer to the complaint that 
he joined with the other défendants in withholding possession of the 
improvement from the Cherokee Nation, in conséquence of which the 
damages were incurred; and, while the complaint allèges that he en- 
tered into possession of the improvement subséquent to the institution 
of this suit, yet it further avers that his entry was on or about the time 
the action was commenced, from which we must infer that the wrongful 
and collusive entry was almost coïncident with the institution of the 
suit. We are aware of no sufficient reason why one who wrongfully 
intrudes upon the possession of property after a suit to recover it has 
been brought by the true owner should not be held responsible for the 
rents and profits of the property from and after the date of his entry. 
A judgment against such a person for the damages incident to a déten- 
tion of the property, in which he participated, would seem to be as 
proper as a judgment against him for the possession. In the présent 
instance the record discloses that the damages which were awarded 
were assessed by a jury which was called to assess the damages after 
the demurrer to the amended complaint had been overruled, and, as 
there is no bill of exceptions bringing the testimony upon the record, 
we must présume that the assessment rests upon adéquate évidence, and 
is in ail respects correct. 

Finding no error in the proceedings which, in our judgment, would 
warrant a reversai of the judgments below, they are each hereby af- 
firmed. 



BIÎOUGHT et al. v. CHEROKEE NATION. 

(Circuit Court of Appeals, Eighth Circuit. February 27, 1904.) 

No. 1,887. 

1. Indians— Suit to Dispossess Intrudbr on Lands of Tkibe— Paeties. 

A suit under Act Juue 28, 1898 (30 Stat. 495, c. 517), to dispossess an 
intruder ou lands owned by an Indian tribe or nation, altliough brought 
by a uiembor of tbe tribe, as permitted by sucli act, when tlie tribe fails 
or refuses to bring it, is based primarily on tbe right of the tribe, and tlie 
court may properly permit it to be substituted as plaintifC, and to allow 
the name of the original plaintiff to be stricken ont, with his consent. 

2. Same—Pleading— Vérification of Complaint. 

It is sufficient compliance with the requircraent of such act that a "sworn 
complaint" shall be filed if the complaint is verified by the authorized 



BROUGHT V. CHEROKEE NATION. 193 

attorney of the tribe or nation which Is plaintiff, who states that the 
facts allégea are withln his knowledge. 

3. JUDGMENT— CONFOKMITT TO PLEADINGS— EXCESSIVE DAMAGES. 

A judgment for damages In a sum greater than Is alleged or prayed for 
in the complalnt cannot be sustained, although it may be snpported by the 
évidence. 

4. Indians— Suit to Dispossess Intbudbr on Lands— Pleading. 

Where the défendants in a suit by an Indian tribe to dispossess an In- 
truder on its lands and recover damages for wrongful détention do not 
plead the value of their improvements, or ask to recover for the same, the 
court is without authority to set offi such value against the damages 
awarded plaintiff. 

In Error to the United States Court of Appeals in the Indian Terri- 
tory. 

For opinion below, see 69 S. W. 937. 

M. M. Edmiston (W. S. Stanfield, on the brief), for plaintiffs in 
error. 

James S. Davenport, for défendant in error. 

Before SANBORN, THAYER, and HOOK, Circuit Judges. 

THAYER, Circuit Judge. This is an action which was originally 
brought in the United States Court in the Indian Territory on May 
30, 1899, by Andrew McAffrey against C. G. Brought, Mrs. C. G. 
Brought, J. H. Balfour, and J. Reamer, three of whom are the présent 
plaintiffs in error, to recover an intruder's improvement, as authorized 
by the third section of the act of Congress of June 28, 1898 (30 Stat. 
495) c. 517). The case is very similar to the case of Hargrove et al. 
V. The Cherokee Nation, 129 Fed. 186, which has just been decided, 
and référence is hère made to the various provisions of the act of Con- 
gress of June 28, 1898, which are set forth in that opinion. After the 
suit at bar was instituted, leave was obtained to file an amended com- 
plaint making the Cherokee Nation a party plaintiff, and sucli a com- 
plaint, making the nation a party, was thereafter filed in the month of 
November, 1899. The complaint was again amended on February i, 
1901, this latter complaint being the one on which the case was even- 
tually tried. When the complaint was last amended, the name of An- 
drew McAffrey, the original plaintiff, was stricken out by leave of court, 
and the case was thereafter prosecuted by the Cherokee Nation as 
the sole plaintiff. The complaint showed, by proper averments, that 
the défendants proceeded against were intruders in the Indian Terri- 
tory, and were holding and occupying land belonging to the Cherokee 
Nation, on which they had made improvements, which lands were de- 
scribed with sufficient certainty to identify them ; that the commission 
to the Five Tribes had previously reported and decided that the improve- 
ments in question were intruder improvements; that the persons who 
made the same, to wit, C. G. Brought and Mrs. C. G. Brought, had 
been tendered the money for the value of the improvements, but that 
they had declined to accept the tender, and had continued to hold and 
occupy the premises, contrary to the laws of the Cherokee Nation and 
of the United States ; that in conformity with the act of Congress of 
June 28, 1898, a notice had been served upon the défendants to vacate 
129 P.— 13 



194 129 FEDERAL REPORTER. 

the premises, and that more than 30 days had elapsed prior to the bring- 
ing of this action since the notice was served; that, notwithstanding 
such notice, the défendants refused to vacate the premises; that the 
Cherokee Nation was the owner of the land and the improvements there- 
on, and had been since the tender of their value to the défendants and 
their refusai to accept the same; that the plaintifif, the Cherokee Na- 
tion, had been made a party to the action by leave of court ; and that the 
annual rental value of the place was $400 per year, and that the Chero- 
kee Nation had been entitled to the rents and profits of the place since 
the institution of the action. The Cherokee Nation accordingly prayed 
judgment for the possession of the lands and the improvements there- 
on, and for the annual rental value of the same at the rate of $400 
per year until the termination of the action. To the complaint thus 
filed the défendants interposed a demurrer, but the demurrer was over- 
ruled, and, as the défendants elected to stand upon their demurrer, and 
as both parties waived a jury, the case was submitted to the court, which 
rendered a judgment in favor of the Cherokee Nation, which judgment 
is before this court for review on a writ of error. As no bill of excep- 
tions was filed bringing such testimony as may hâve been heard upon 
the record in an authentic form, the questions presented to this court 
for review are those which arise and are presented by the demurrer 
to the complaint. While the complaint on which the case was tried 
was demurred to for several reasons, yet we understand that the 
grounds relied upon to obtain a reversai of the judgment — that is to 
say, the grounds specified in the brief with which we hâve been favored 
— are thèse : That the Cherokee Nation was erroneously substituted as 
plaintiff in place of McAfïrey; that the name of McAfïrey was erro- 
neously stricken out as a party plaintiiï; that the amended complaint 
was not sworn to by the chief or governor of the Cherokee Nation ; 
and that the notice to leave was not served by the nation, but by 
McAfïrey. For ail of thèse reasons, as we understand, the plaintiffs 
in error insist that the demurrer to the amended complaint should hâve 
been sustained, and the action dismissed. 

We hâve already held, however, in Hargrove et al. v. The Cherokee 
Nation, 129 Fed. 186, that when a member of the tribe serves a notice 
upon an intruder to leave the premises which he wrongfully occupies, 
and the improvements thereon, and subsequently sues for the recovery 
of the same, as he is permitted to do by the proviso to section 6 of the 
act of June 28,1898 (30 Stat. 497,0. 517), and the nation thereafter elects 
to join in the action by making itself a partj plaintiff, it need not serve 
a second notice, but may adopt the notice already given by the member 
of the tribe who originally sued. If the nation does not join of its 
own volition in an action by one of its citizens to recover an intruder's 
improvement, it would be the duty of the court, under the second section 
of the act of June 28, 1898, to issue process against it, and make it a 
party, as we pointed out in the case of Hargrove et al. v. The Cherokee 
iVation, supra. We perceive no sufficient reason, therefore, why its 
voluntary appearance without process and making itself a party, should 
not place the nation in the same position which it would hâve occupied 
had the court caused it to be made a party ; and in the latter event the 
act expressly déclares that "the suit shall thereafter be conducted and 



BROUGHT V. CHEROKEE NATION. 195 

determined as if said tribe had been an original party to said action." 
The truth is that suits to recover intruder's improvements are based 
primarily upon the right of the nation to hâve and recover such im- 
provements as hâve been wrongfully erected by an intruder upon its 
land, and aiithority is conferred on individual members of a tribe to 
bring such actions and give the requisite notice because the nation may 
at times be dilatory in the assertion of its rights. We perceive no error, 
therefore, in the action of the trial court in permitting the Cherokee 
Nation to become a party and to proceed with the suit, or in striking out 
the name of the original plaintiff. At ail events, if any one is entitled 
to complain because the original plaintiff was dropped when the nation 
became a party, it would seem to be McAffrey himself, and lie is not 
complaining, and has not appealed. 

Relative to the contention that the amended complaint was not sworn 
to by the chief or governor of the Cherokee Nation, this may be said : 
That the sixth section of the act of June 28, 1898, does not, in terms, 
provide that the complaint filed in such cases shall be sworn to by the 
chief or governor of the tribe in person. The provision of the act is 
that "a sworn complaint" shall be filed ; not that the complaint shall 
be verified by the chief or governor of the tribe in person. The amend- 
ed complaint on which the case was tried was sworn to in due form by 
"one of the attorneys for the Cherokee Nation in this action." The 
affidavit made contains the further statement that the affiant "knows the 
facts contained in the within and foregoing amended complaint, and the 
same are true." We are of opinion that this was a sufficient vérifica- 
tion, it having been made by an agent and authorized attorney of the 
Cherokee Nation to satisfy the requirements of the statute. 

Another point was made by counsel for the plaintiffs in error on tne 
oral argument of the case, although it is not mentioned in the brief ; 
the point being that the trial court erred in entering its judgment in 
awarding damages against the défendants for a greater sum than was 
prayed for in the complaint. This point seems to be well taken, and it 
appears upon the face of the record. The amended complaint alleged 
that the rental value of the premises in controversy was $400 per an- 
num, and that the nation was entitled to the rents and profits "since the 
institution of this suit." The suit was brought on May 30, 1899, and 
the judgment was rendered on February 8, 1901, so that in no event 
was the plaintiff entitled to recover in this action a greater sum than the 
value of the rents and profits for one year eight months and nine days, 
or, in the aggregate, the sum of ^Gyj.yy. The trial court in fact al- 
lowed the plaintiff, as damages, a sum sufficient to cancel the nation's 
indebtedness to the défendants for the appraised value of their im- 
provements, to wit, the sum of $1,344, which sum had been tendered to 
them before the suit was brought, but was not accepted; and it also 
rendered a judgment against the défendants for the sum of $337.50. 
In other words, the trial court appears to hâve awarded damages 
amounting in the aggregate to $1,681.50, and to hâve entered the judg- 
ment in such a form as to cancel and extinguish the defendant's claim 
against the nation for the appraised value of their improvements. A 
judgment to this extent, and having such an effect, was not authorized 
by the pleadings, since a judgment in a légal proceeding for an amount 



196 129 FEDERAL REPORTER. 

greater than is claimed by the plaîntifï in his complaint is erroneotis, 
and will be reversed on appeal, although the judgment may be sustained 
by the évidence. Cauthorn v. Berry, 69 Mo. App. 404, 412; Moore v. 
Dixon, 50 Mo. 424; Wright v. Jacobs, 61 Mo. 19; Armstrong v. City 
of St. Louis, 3 Mo. App. 100, 106; Corning v. Corning, 6 N. Y. 97, 
105. Moreover, as the défendants did not plead the value of the im- 
provements that had been tendered to them by the nation as a counter- 
claim or set-off against the demand for the rents and profits of the 
land, we fail to perceive that the trial court, in the absence of such a 
plea, had any power to allow such a set-off in this proceeding, thereby 
extinguishing the claim of the défendants against the nation for the 
appraised value of their improvements. Because of this error we think 
the existing judgments should be reversed and annulled, and that 
the case should be remanded to the trial court, with directions to that 
court to enter a judgment in favor of the Cherokee Nation for the 
possession of the land and improvements in controversy; also a judg- 
ment in its favor against the défendants for the rental value of the prop- 
erty from May 30, 1899, to February 8, 1901, in the sum of ^ôyy.yy; 
leaving the parties at liberty to adjust the claim for the assessed 
value of the improvements as they may be advised. 

It will be so ordered, and that the costs in this case on appeal be taxed 
against the Cherokee Nation. 



CALLISON V. BRAKB. 

(Circuit Court of Appeals, Fifth Circuit Aprll 8, 1904.) 

No. 1,319. 

1. Weongftjl Death— Action for Damages— Insteuctions. 

Instructions in an action by an adminlstrator to recover damages for 
wrongfnl death under the statute of Florida considered and approved, as 
in conformity with a prior décision of the court. 

2. Statutes— Manner or Enactment— Constittjtionai. Reqtjirejients. 

Where a bill introduced into the Florida Senate was regularly passed 
by a eall of the yeas and nays and referred to the House, where on its 
second reading a substitute w^as Introduced by the judiciary comiulttee, 
regularly passed, and forwarded to the S.enate, the faet that the Senate 
treated the substitute as an amendment of the original bill, and concurred 
In it without the formality of a roll call, did not invalldate the act on the 
ground that It was not passed In conformity with the state Constitution, 
whicb requires the yeas and uays to be taken on the iînal passage of a bill. 

3. Wbongful Death— Action for Damages— Joindeb of Causes of Action 

XTNDEB Différent Statutes. 

Rev. St. Fia. 1892, §§ 2342, 2343, authorize actions for wrongful death 
to be brought, among others named, by the exécuter or administrator of 
the deceased; the measure of damages in such case being the loss to the 
estate. Such sections were supplemented by Laws 1899, p. 114, c. 4722, 
whicb authorlzes an action for the wrongful death of a minor child by the 
father or mother of such child, in which the plaintifC "may recover, not 
only for the Joss of services of such minor child, but, In addition thereto, 
such sum for the mental pain and sufifering of the parent or parents as 

If 3. See Death, vol. 15, Cent. Dig. § 22. 



CALLISON V. BRAKE. 197 

the Jury may assess." Held that, where the father of a mlnor who was 
killed was aiso the administrator, he might sue for the death in both ca- 
pacities in the sanie action, joining counts under each statute in the same 
déclaration. 

In Error to the Circuit Court of the United States for the Southern 
District of Florida. 
For opinion below, see 122 Fed. 722. 

This is an action by the plaintlffl, as administrator o( the estate of Gérard 
H. Brake, deeeased, to recover damages from the défendant for alleged wrong- 
ful aet or acts, or négligence, or default on the part of the défendant, alleged 
to hâve been the cause of death of Gérard H. Brake. The stateuient of the 
piaintIfC's case is set forth In his déclaration in four separate and distinct 
counts ; that Is, each of thèse four separate counts is a statement of a claim 
contended for by plaint! ff against défendant, Callison. In the flrst count, 
plaintIfC allèges in substance that the défendant, as the lessee of county con- 
victs for the county of Alachua and state of Florida, had, in the month of 
November, 1901, Gérard H. Brake, son of the plaintiff, aged at that tlme about 
16 years. In his custody as lessee, said Brake having been committed as a 
prisoner of said county, and that the défendant, as such lessee of the county 
convicts, became obligated to furnish support, care, and maintenance to the 
said Brake, and that the said Brake was during such time sick and aillng, 
and In feeble and inflrm health, ail of which Is alleged to bave been well 
known to the défendant, and that the défendant failed and neglected and re- 
fused to permit décèdent proper opportunlty for rest, and eompelled him to 
toil Immoderately, and failed and neglected to furnish said Brake with neces- 
sary medielne and médical attendance and Personal care, In conséquence 
whereof said Brake langulshed and died, whereby the plaintiff has lost and 
been deprived of the services of the said Brake to the value of $5,000, and that 
the plaintiff and the plaintIfC's wife, niother of the said Brake, bave been 
submitted to great mental pain and sufifering, to thelr damage In the sum of 
$20,000. This count of the déclaration in brief elaims that, by reason of 
the neglect of the défendant to furnish proper clothing, médical attention, and 
tomfortable quarters, and by reason of having eompelled said Brake to work 
immoderately the said Brake died, to the damage of the plaintiff as alleged. 
The third count In substance sets forth substantlally the same facts as were 
set forth In the first count as to the décèdent, Gérard H. Brake, being in the 
custody of the défendant as lessee of the county convicts of the county of 
Alachua, Fia., and then allèges that the said Brake, at the tlme of such im- 
prlsonment by the défendant, was sick and alling, and In feeble and failing 
beaith, and unfit for work, and that the défendant, knowlng said Brake was 
sick and alling, urged and Insisted that the said Brake engage in labor dis- 
proportlonate to his strength, and by way of coerclug the said Brake to labor 
the défendant caused and procured said Brake to be Immoderately beaten and 
bruised upon and about the body and limbs. In conséquence whereof the said 
Brake langulshed and died, to the damage of the plaintiff for loss of services 
of the said Brake of $5,000, and for mental pain and suffering of the plaintiff 
and plaintiff's wife to the sum of $50,000. The second count of the déclara- 
tion, after setting up the same facts as to the imprisonment of Gérard H. 
Brake In the county convict prison of Alachua county, and his custody by the 
défendant as lessee of the said convicts, and after alleging It to be the duty 
of the défendant to furnish support, care, and maintenance to the said Brake, 
and stating that during such Imprisonment the said Brake was sick, alling. 
and in feeble and inflrm health, to the knowledge of the défendant, allèges 
that the said défendant failed and neglected to provide the said Brake with 
comfortable quarters, good bedding and blankets, and wholesome food, and 
also refused to permit Brake to hâve proper rest, and eompelled him to toil 
immoderately, and also failed to furnish décèdent with necessary medicine 
and médical and Personal attendance, in conséquence of which the said Brake 
langulshed and died, to the damage of the plaintiff, as administrator, by the 
loss of earnlngs which the décèdent in his lifetime would hâve made, to the 
estent of $25,000. The fourth count of the déclaration, after setting up the 



198 129 FEDERAL REPORTER. 

facts of the Imprlsonment of Brake aud hls custody as such prîsoner by the 
défendant, then allèges that tlie said Brake, while thus imprisoned, was 
sick, ailing, and In feeble and infirm liealth, and unflt for work, that the de- 
fendant urged and insisted that tbe décèdent engage in labor disproportionate 
to his strength, and by way of coeïclng the said Brake so to labor défendant 
caused and procured Brake to be immoderately beaten and bruised upon and 
about the body and limbs, In conséquence whereof Brake languished and died, 
and by said wrongful acts of the défendant the plaintifC, as administrator, 
suffered great damages by loss of earnings wblch the said Brake in his life- 
time would hâve made, to wit, $25,000. The plaintifC claims as total damages 
for the causes of action set forth in ail counts of the déclaration $75,000. 

The défendant Is charged, therefore, with two classes of torts : First, of- 
fenses of omission, or rather a failure to provide suitable and satisfactory sub- 
sistence, quarters, bedding, and blankets, proper opportunities for rest, neces- 
sary medicine and médical attendance and persoual care. The testimony is 
conclusive of the relations existing betweeu the deceased and the défendant. 
The deceased was a convlct, and the défendant vyas, in accordance with the 
law, the keeper and eustodian of the deceased, aud as such custodian of the 
deceased, and as such custodian and keeper, it was his duty to furnish the 
deceased with ail reasonable means and opportunity for health and welfare, 
as far as the clrcumstances would justify. The défendant cannot be held re- 
spousible for the position of the deceased as a convict. In which he was found ; 
but it was his duty to provide him. suitable quarters, bedding, and blankets, 
necessary medicine, and attendance, such as might be required by the phys- 
ical condition of the convict The foregoing statement of the case we hâve 
adopted from the opening paragraphe of the charge given to the jury by the 
trial judge. 

Bisdee & Bedell, for plaintiff in error. 

Evans Haile, S. Y. Finley, E. P. Axtell, C. D. Rinehart, and Hora- 
tio Davis, for défendant in error. 

Before FARDEE, McCORMICK, and SHELBY, Circuit Judges. 

McCORMICK, Circuit Judge (after stating the facts as above). In 
the opinion of the majority of this court, the judgment of the Circuit 
Court in this case should be afïirmed. We do not deem it necessary 
to notice in détail, and in the order in which they hâve been présentée! 
by the respective counsel, the questions which were raised on tlie trial 
and hâve been stibmitted to us on the hearing of this writ of error. 
We notice only a few of the points, which we deem require some atten- 
tion. 

The trial judge, amongst other things, in the charge which he gave 
the jury on his own motion, instructed them substantially that the lia- 
bility of the défendant, under the déclaration, is based upon two stat- 
utes, under one of which this suit is brought lay the plaintiff as admin- 
istrator, and under which the défendant may be liable for any act of a 
servant, agent, or employé, acting by the authority of the défendant; 
but in such case the damages are limited to the actual injury suffered 
by the plaintiff in such character of administrator — that is, the value 
of the estate. Later on, he instructed further to the effect, substan- 
tially, that under the second and fourth counts of the déclaration the 
défendant would be liable for any act or négligence of any agent or 
employé of his, acting in the line of duty to which he had been ap- 
pointed, or for which he had been employed ; but for such act or nég- 
ligence nothing could be recovered for mental suffering or for the 
services of the deceased before he reached the âge of 21. So, if you 



CALLISON V. BRAKE. 199 

find the défendant liable under thèse counts, the only damages that 
can be given would be such as would be coming to the plaintiff as ad- 
ministrator; that is, the présent worth of what you find the deceased 
would hâve accumulated during his natural life, considering his prob- 
able earnings, expansés, and savings, and the probable length of his 
life. Of thèse matters you are the sole judges according to your best 
judgment. The jury should take into considération the âge, occupa- 
tion, habits, character, and ability, mental and physical, of défendant, 
and the probable continuance of his life, in arriving at this estimate. 

In référence to the other counts under the déclaration, the trial judge 
instructed the jury to the effect that, if you find for the plaintifï upon 
the issues of either of thèse counts, it will be necessary for you to 
détermine the damage that plaintiff has suffered. Under thèse counts 
the défendant can only be held liable for his own personal acts or nég- 
ligence. If you find the death of the deceased was caused by such 
Personal act or négligence, damage may be allowed the plaintiff, as 
parent, for the net services of deceased until he reached the âge of 21 
years, making allowance for ail expansés of his éducation and sup- 
port, and for the mental pain and suffering of his parents. There is no 
rule by which thèse can be determined, except by your own judgment 
under the light of ail the circumstances and the évidence in the case. 
You are to take into considération ail the facts and circumstances, and 
upon the testimony, tested by your own gênerai knowledge of human 
nature, détermine in your own mind what was the distress and an- 
guish of mind, the mental pain and suffering, of thèse parents, caused 
by the death of their son under thèse circumstances; and upon your 
deliberate judgment and individual conscience make such an award as 
you deem just. 

The statutes of Florida, to which the trial judge referred, and under 
which the action was brought, are sections 2342 and 2343 of the Re- 
vised Statutes of the State of Florida of 1892, and chapter 4722, p. 
114, of the Laws of Florida, approved June 3, 1899. The provisions 
of thèse statutes, so far as they affect this case, are as follows : 

"Sec. 2342. Whenever the death of any person in this state shall be caused 
by the wrongful act, négligence, carelessness or default of any individual, 

* * * and the act, négligence, carelessness or default is such as would, if 
death had not ensued, hâve entitled the party injured thereby to maintain an 
action for damages in respect thereof, then, and in every such case, the person 
who would hâve been liable in damages, if death had not ensued, shall be 
liable to an action for damages, notwithstanding that the death shall bave 
been caused under circumstances as would make it in law amount to a felony. 

"Sec. 2343. Every such action shall be brought by, and In the name of, the 
widow or husband, as the case may be, and where there Is neither widow nor 
husband surviving the deceased, then the minor child or children may maintain 
an action ; and where there is neither widow, nor husband, nor minor child 
or children, then the action may be maintained by any person or persons dé- 
pendent upon such person killed for a support; and where [there] is neither 
of the above classes of persons to sue, then the action may be maintained by 
the executor or administrator, as the case may be, of the person so killed, and 
in every such case the jury shall give such damages as the party or parties 
entitled to sue may hâve sustained by reason of the death of the party killed." 

Chapter 4722, § 1. "Whenever the death of any minor child shall be caused 
by the wrongful act, négligence, carelessness, or default of any individual, 

* ♦ * the father of such minor child, or if the father be not living, the 
motber, as the légal représentative of such deceased minor child, may maintain 



200 129 FEDERAL EEPOKTER. 

an action against such indivldual, • • • and may recover, not only for 
the loss o( services of such mmor chlld, but in addition thereto such suni for 
the mental pain and suffering of the parent or parents as the jury may assess." 

In this case the issues which were présentée! and decided by the 
Circuit Court, affecting so much of the action as looks to sections 2342 
and 2343 of the Revised Statutes of Florida of 1892, are substantially 
the same as those which were presented in the case of Sullivan, by 
administrator, v. The Florida Central P. R. Co., which was heretofore 
tried in the same Circuit Court, and brought by writ of error to this 
court under the style of "Florida Central & P. R. Co. v. Sullivan," and 
hère affirmed, as appears from the report of our action thereon in 120 
Fed. 799, 57 C. C. A. 167, 61 L. R. A. 410. In the case we are now 
considering the learned judge of the Circuit Court, who had formerly 
tried the Sullivan Case, followed substantially herein the rulings that 
he made therein, and which we had affirmed, as to the right of the 
administrator to sue, the right to recover under thèse statutes, and the 
measure of damages ; and, as we hâve seen no occasion to change the 
views then expressed, we must, on the authority of that case, hold that, 
as to so much of this case as rests on those sections of the Revised Stat- 
utes, the Circuit Court did not err in its rulings and action. 

The effort herein to recover under the act of June 3, 1899, occasioned 
the présentation of two questions which we ought to notice : 

First, whether that act was constitutionally passed by the Législature 
of Florida? The counsel for the plaintiff in error, assuming, on the 
authority of State v. Hocker, 36 Fia. 358, 18 South. 767, and Ottawa 
V. Perkins, 94 U. S. 260, 24 L. Ed. 154, that this court takes judicial 
notice of the journals of thq, Législature of Florida to ascertain whether 
or not a bill lias been constitutionally passed into a law, prints in his 
brief "extracts from the journals of the Législature of Florida for its 
session of 1899, showing ail the entries relating to the supposed passage 
of chapter 4722, p. 1 14, of the Laws of Florida, the act on which the 
iirst and third counts of the déclaration are based." We bave examined 
thèse journal entries with minute care, and, in connection therewith, 
the décisions of the Suprême Court of Florida in the case of State v. 
Hocker, supra, and State V. Dillon, 42 Fia. 95, 28 South. 781, and we 
conclude that the record of the action of the Législature, read in the 
light of the décisions of the Suprême Court of Florida, does not sup- 
port the objection made by the plaintiff in error to the validity of the 
act in question. 

The other question is whether recovery under both statutes may be 
sought and had by the administrator in his character as légal représenta- 
tive in one action? The later statute is récent, and no décision under 
it is reported. Its language appears to authorize recovery under both, 
when the administrator is the father or the mother of the deceased. 
The damages in each case grow out of the same transaction. The 
proof, in the very nature of the case, must be substantially the same 
in each as to the wrong done and as to the liability of the défendant. 
The action is by one natural person as the légal représentative of one 
intestate décèdent, and against one natural person, to recover damages 
for wrongfully causing the death of the deceased. The later statute 
seems to supplément the earlier one, and to carry the remedy, in the 



BEAKE V. CALLISON. 201 

same direction, farther towards completion. The time, place, and 
circumstances of the wrong alleged to hâve been donc are the same. 
The nature of the relief sought is the same. It seems to us thatto 
conclude and hold that in such suit there is a misjoinder of parties 
plaintiff, or a misjoinder of causes of action, would involve the sur- 
render of our faculties to the duress of distinctions which, in the olden 
time, learned experts in the science of pleading treated as substantial, 
but which in their essence are shadowy and highly technical. 
The judgment of the Circuit Court is afhrmed. 



BRAKE y. CALLISON. 

(Circuit Court of Appeals, Fifth Circuit. April 8, 1904.) 

No. 1,332. 

1. Bankbuptct— AcT or Bankruptcy. 

A conveyance of property by a debtor to creditors cannot be chargea as 
an act of bankruptcy, where he had at the time no other creditors. 

2. Same— Involuntart Peocebdings— Who may Maintain. 

A judgment credltor eamiot maintain a pétition In bankruptcy against 
his debtor on an allégation that the latter made a conveyance of property 
to creditors which constituted an act of bankruptcy before the rendition 
of the judgment, where it does not appear that the demand on which it 
was rendered was one provable in bankruptcy, so as to make hlm a ereditor 
at the time the conveyance was made. 

Pétition for Revision of Proceedings of the District Court of the 
United States for the Southern District of Florida, in Bankruptcy. 

Bisbee & Bedell, for petitioner. 

E. P. Axtell, C. D. Rinehart, and Jno. E. Hartridge, for respondent. 

Before PARDEE, McCORMICK, and SHELBY, Circuit Judges. 

McCORMICK, Circuit Judge, delivered the opinion of the court. 

On May i6, 1903, the respondent, N. A. Callison, for a recited con- 
sidération of $12,000 to him in hand paid, conveyed to H. F. Dutton, 
J. G. Nichols, and W. G. Robinson, as partners, a large amount of real 
and Personal property. The deed was filed for record on the day of 
its date, and recorded May 18, 1903. On May 29, 1903, the pe- 
titioner, William J. Brake, as administrator of the estate of Gérard H. 
Brake, deceased, recovered a judgment at law against the respondent 
in the Circuit Court of the United States for the Southern District 
of Florida, for the sum of $6,000 damages and $189.25 cost, whereupon 
exécution issued out of that court, and the judgment remains in full 
force and effect, unsatisfied, and in no wise reversed or made void. On 
September 9, 1903, the petitioner presented to the District Court, as a 
court of bankruptcy, his pétition against the respondent, making the 
formai allégations necessary to show the jurisdiction of the court, in- 
cluding the averments as to the nature and amount of his claim, as 
substantially recited above, and charging that the respondent is in- 
solvent, and within four months had by his certain deed (above re- 
ferred to) conveyed, transferred, concealed, removed, and permitted to 



202 129 FEDERAL EÉ'PORÎ^EB. 

be concealed and removed, a part of his property, witli the intent to 
hinder, delay, or defraud his creditors, or some of them ; that the re- 
spondent was, on the day of the date of the deed, indebted to the 
grantees therein, and made the conveyance with the intent to prefer such 
creditors over his other creditors ; and that the deed was, in effect, a 
gênerai assignment for the benefit of creditors. To this pétition the 
respondent, by counsel, submitted a demurrer, and for grounds thereof 
alleged : First, it does not appear from the pétition that the respondent, 
on the i6th day of May, 1903, had any creditors, within the meaning 
of the bankrupt act, who are entitled to complain of the transaction 
complained of in the pétition ; second, because it appears from the state- 
ments contained in the pétition that the petitioner was not a créditer 
of the respondent at the time of the transfer complained of, and is not 
entitled to file a pétition in bankruptcy, within the meaning of the bank- 
rupt act (Act July i, 1898, c. 541, § i, 30 Stat. 544, 545 [U. S. Comp. 
St. 1901, p. 3419]). Three other grounds are assigned, but it is not 
necessary that they should be specially considered. The District 
Court sustained the demurrer on each of the grounds above stated, with 
leave to the petitioner to amend as advised. No amendment was 
tendered, and this pétition for review was allowed. 

The counsel for the petitioner submits that the case présents the 
question whether a creditor, having a provable claim, may file a péti- 
tion, irrespective of whether he had such claim at the time of the com- 
mission of the act of bankruptcy complained of. Redacting this propo- 
sition, and dispensing with its abstract features, the case présents 
to us the question whether, under the conditions shown by the petitioner 
at the date of the conveyance by the respondent, his conveyance of his 
property constituted an act of bankruptcy. So far as shown by the 
pétition, the grantees in his deed were his only creditors at that time. 
It could not be an act of bankruptcy as to them. As to the parties to 
that deed, it was manifestly a valid conveyance. It is said in Horbach 
V. Hill, 112 U. S. 144, 5 Sup. Ct. 81, 28 L. Ed. 670 (we quote the sylla- 
bus): 

"A creditor of a grantor of real estate, attacking tlie conveyance as made 
to defraud creditors, should show affirmatively that he was a creditor of the 
grantor when the alleged fraudulent conveyance was made." 

Referring to the grantor in that case, the concluding sentences of the 
opinion are in these words : 

"He had a right to dispose of his property in the ordinary course of business 
for a valuable considération, and the défendant (the grantee) had a right to 
purchase it. The complainant, not showing that he was at the time a cred- 
itor, cannot complain. Bven a voluntary conveyance is good as against sub- 
séquent creditors, unless executed as a cover for future schemes of fraud." 

The pétition to the bankrupt court allèges no facts, other than those 
already stated, showing or tending to show that the conveyance in 
question was executed as a cover for future schemes of fraud. There 
is no allégation that the petitioner had any claim of any kind against the 
respondent prior to the date of the rendering of the judgment which 
he obtained. The allégation is simply that it was a judgment for dam- 
ages, without indicating whether they grew out of a breach of contract, 
express or implied, or were recovered on account of a tort. As de- 



CARET V. BILBT. 203 

fined by the bankriipt act, the term "creditor" încludes any one who 
owns a demand or claim provable in bankruptcy, and the term "debt" 
includes any debt, demand, or claim provable in bankruptcy. It not 
appearing that at the time of the respondent's conveyance there were 
any other creditors than those to whom he conveyed, and it appearing 
expressly that the petitioner was not a creditor of respondent at that 
time, we conclude that the demurrer to the pétition was well taken 
on the first and second grounds. Beers v. Hanlin (D. C.) 99 Fed. 
695 ; In re Brinckmann (D. C.) 103 Fed. 65. As this disposes of the 
case, it is unnecessary to notice the other grounds. 
The pétition for revision is dismissed. 



OAREY V. BILBT et al. (two cases). 

(Circuit Court of Appeals, Eighth Circuit March 7, 1904.) 

Nos. 1,929, 1,930. 

1. TORTS — Joint Toet Feasor— Release of One — Construction — Effect. 

Plalntiff, claimlng a right of action for damages against O. and H. 
jointly for alleged fraudulent misrepresentations In the sale of cattle, ac- 
ceptée a certain amount of money from H., and executed a release dis^ 
charging him from any and ail liability by reason of such misrepresenta- 
tions, and agreeing to Indemnlfy him from being compelled to pay any 
further sum by reason thereof. The release, however, expressly pro- 
vlded that plalntiff did not relinquish or release any action or cause of 
action against C. by reason of the premises, but reserved hls right to sue 
C. or the flrm of O. Bros, on such cause of action. Beld, that such in- 
strument should not be treated as a technical release terminating plain- 
tiff's cause of action against ail the joint tort feasors, but as a covenant 
uot to sue H., and was therefore no défense to an action against C. 

In Error to the Circuit Court of the United States for the District of 

Nebraska. 

John S. Bilby and Russell I. Bilby, the défendants in error In case No. 
1,929, brought an action against John L. Carey, the plalntiff in error, to re- 
cover certain damages for injuries whlch they claimed to hâve sustained In 
conséquence of their being induced by the défendant, Carey, to purchase from 
him certain Texas cattle through false représentations. John S. Bilby and 
John E. Bilby, the défendants in error in case No. 1,930, brought a similar 
action against John L. Carey, plaintIflC in error. The complaints in the two 
cases were substantially alike, except that In case No. 1,929 the damages 
elalmed by the plaintiffs below were $13,611, whereas the damages claimed 
in case No. 1,930 was the sum of $3,809. The complaints stated, in substance, 
that in the month of May, 1897, the défendant, Carey, and one C. J. Hysham 
were the owners of 755 head of cattle, which had been shlpped by them from 
the State of Texas to the clty of St. Joseph, Mo. ; that said Carey and Hy- 
sham offered to sell to the plaintilïs below certain of said cattle, and, to 
induce them to buy, represented that the cattle had been kept durlng ail of 
the preceding wlnter and spring in a part of the state of Texas, which was 
entirely free from, and not Infected with, a certain contagions disease com- 
monly known as "Spanish Fever," and that they had not been driven over 
or in the vicinity of any territory In the state of Texas which was infected 
by said disease, and had not been exposed thereto, but were in a sound and 
healthy condition; that, relying on this représentation, and believing the 
same to be true, they purchased a certain number of the cattle from Carey 

If 1. See Release, col. 42, Cent Dig. §§ 08, 71. 



204 129 FEDERAL HEPOETER. 

and Hysham, and paîd tbem tàerefor; that the represeatations aforesald, 
at the tfme they were made, were known to the vendors of the cattle to be 
untrue ; that they aiso knew that the purchasers of the cattle would pasture 
them on lands in the state of Missouri with a large number of Missouri and 
other native-born nortbern cattle ; that they were so pastured by the vendees, 
after they were purchased, with other northern-bred cattle; that, In consé- 
quence of their being affected with the contagions disease aforesaid, they 
communlcated the disease to other cattle with whom they were herded, 
which belonged to the plalntiffs below, and that in conséquence thereof tlie 
plaintiffs lost a large number of cattle of great value, and that they were 
damaged in the one case to the amount of |15,840 and in the other case to 
the estent of $4,580, in conséquence of the disease in question being communi- 
t-ated to their respective herds. The plaintiffs below further alleged that they 
liad been paid by C. J. Hysham, on account of the damages claimed in case 
No. 1,929, the sum of $2,229, and that they had been paid by C. J. Hysham, 
on account of the damages claimed in case, No. 1,930, the sum of ?771, leaviii? 
a balance of damages due to them in the one case in the sum of $13,611 and 
a balance due to them in the other case In the sum of $3,809. 

Among other allégations contained in the defendant's answer it was ad- 
mitted that the plaintiffs had received from C. J. Hysham the sums of money 
alleged in the complaints, and it was alleged that the sums so paid to the 
plaintiffs by Hysham were received and accepted by said plaintiffs in full 
release, satisfaction, and discharge of the pretended causes of action sued 
upon In said actions, and in full release of said Hysham from ail liability 
thereon. On the trial of the cases the reeeipt which was signed by the plain- 
tiffs when the sums of money were paid to them by 0. J. Hysham was intro- 
duced in évidence, and was of the followlng purport : 

"Whereas, on or about the ■ day of May, 189T, T. J. Hysham actiug 

for 0. J. Hysham or 0. J. Hysham & J. L. Carey, as partners or either of 
them, purchased for said O. J. Hysham or C. J. Hysham & J. L. Carey as 
partners, or either of them, certain cattle of Cîomer Brœ., in the State of 
Texas, and 

"Whereas, said cattle were shipped from the State of Texas and were sold 
and delivered by said C. J. Hysham or O. J. Hysham and J. L. Carey as part- 
ners, or either of them, to J. S. Bilby in St. Joseph, Missouri, on or about 
the day of May, 1897, and 

"Whereas, said J. S. BJlby.flid on the day last above named recelve from 
said C. J. Hysham, or 0. J. Hysham & J. L. Carey as partners, or either of 
them, at St. Joseph, Missouri, about 756 of said cattle, and did at said time 
exécute and deliver to the said C. J. Hysham hls certain promissory note for 
the purchase priée of said cattle, together with a chattel mortgage on said 
cattle thus bought by him securing said note, and 

"Whereas, the said J. S. Bilby bas sinee paid off and discharged said note 
and mortgage, and 

"Whereas, after buying said cattle said Bilby took the same to his farms 
described in said chattel mortgage, and 

"Whereas, after taking said cattle to his farm, the said Bilby claims that 
many cattîe owned by him or others hâve dled, and that many other cattle 
became sickened and impoverished, and 

"Whereas, the said Bilby claims that the said cattle thus dying and the 
others thus becomlng slcfcened and impoverished was caused by reason of 
what is commonly called the Spanlsh or Texas fever, and 

"Whereas, the said Bilby claims the said Spanish or Texas fever was Im 
parted or conveyed by the cattle that he thus bought at St. Joseph, Missouri, 
as aforesaid recited. 

"Now, therefore, in considération of the sum of $3,000.00 to me in hand 
paid by T. J. Plysham and 0. J. Hysham, and the further considération of 
the said T. J. Hysham and O. J. Hysham having assigned to me ail claims 
and causes of action that they, or either of them hâve against the said Corner 
Bros., growlng out of or in any way connected with the said purchase of said 
cattle from said Corner Bros., I, J. S. Bilby, fully release and discharge him, 
the said T. J. Hysham, and the said C. J. Hysham from any and ail liability 
by reason of each, ail and every of the foregoing matters and things, and re- 



CARET y. BILBr. 205 

lease hlm, the sald T. J. Hysham and the sald C. J. Hysham from any and 
ail Uability In any way connected with or growing out of the aforesald mat- 
ters. And I will indemnify, protéct and save harmless the sald T. J. Hysham 
and the said C. J. Hysham from paying any further sum to any person or 
persons whatsoever, on account of any or ail the matters set forth in this 
contract. 

"But it is expressly and specifleally understood in the exécution and de- 
livery of this paper that I do not relinquish or release any action or causes 
of action that I may now or hereafter hâve against him, the said J. L. Carey, 
or them, the said Corner Bros., or either of them by reason of any of the 
matters or things hereinbefore reclted, expressly and specifleally reserve to 
myself the right to malntain in said action or actions against him, tlie said 
J. L. Carey, or them, the sald Corner Bros., or either or ail of them by reason 
of said matters and things or any of them that I now hâve or may hereafter 
hâve. 

"Signed this second day of August 1898. John S. Bilby." 

The trial below resulted in a verdict in favor of the plaintiffs in case No. 
1,929 for the sum of $2,229 and in a verdict in favor of the plaintiffs in case 
No. 1,930 for the sum of $7T1, on which verdicts judgments were subsequently 
entered. The défendant below has brought the cases to this court on writs 
of error. 

John C. Cowin, for plaintiff in errer. 

James W. Hamilton (H. E. Maxwell, on the brief), for défendants 
in error. 

Before SANBORN, THAYER, and HOOK, Circuit Judges. 

THAYER, Circuit Judge, after stating the case as above, delivered 
the opinion of the court. 

At the conclusion of the évidence on the trial below, counsel for the 
défendant requested a peremptory instruction to find a verdict in favor 
of his client. This instruction was asked, as it seems, on the sole 
ground that the release which had been executed by the plaintifï Bilby 
in favor of T. J. Hysham and C. J. Hysham operated as a release of 
the défendant, Carey, although it was not so intended, and that no 
action could be maintained against him in conséquence of the exécu- 
tion of this instrument. The trial court denied the request, holding 
that the release in question did not hâve the effect claimed for it. It 
is conceded by counsel for the plaintifï in error that the only question 
for détermination by this court is whether the trial judge was right 
in his view that the release did not operate as a discharge of the cause 
of action against Carey. 

It is an old and well-established rule of law that the release of a 
cause of action as against one of two or more joint tort feasors or 
joint obligors opérâtes as a release of ail. This is upon the theory that 
when one has received fuU compensation for a wrong, no matter from 
which wrongdoer or from what source, the law will not permit him 
to recover further damages. Lovejoy v. Murray, 3 Wall, i, 17, 18 
L,. Ed. 129. When a release of a cause of action for a tort is given 
by the injured party to one of two or more persons who committed 
the wrong, the release is construed most strongly against the party 
executing it. The law indulges in the presumption that the release 
was given in full satisfaction for the in jury, and upon a suiEcient con- 
sidération, and will not permit the presumption to be overcome by 
oral proof to the contrary. EUis v. Esson, 50 Wis. 138, 6 N. W. 518, 



206 129 FEDERAL REPOETEE. 

520, 36 Am. Rep. 830; Bronson v. Fitzhugh, i Hill, 185, 186. Some- 
times, however, as in the case in hand, a release executed in favor of 
one wrongdoer is accompanied with the réservation of the right to sue 
others who were jointly concerned in the wrong, and in such cases the 
question has frequently arisen, how shall such an instrument be inter- 
preted? Shall the réservation of the right to sue others be ignored, 
and the instrument treated as raising a conclusive presumption that 
full compensation for the wrong has been made, as though it were a 
technical release under seal, or shall the réservation of the right to 
sue others be taken to mean that full compensation has not been re- 
ceived by the injured party, and that he merely intended to agrée with 
the released party not to pursue him further, but without releasing 
his cause of action against the other wrongdoers, or admitting that 
he has received full compensation for the injury? With référence to 
this question the authorities are not in accord. Some courts are dis- 
posed to hold, and hâve held, that when such an instrument contains 
apt words releasing one of the joint wrongdoers, it opérâtes to release 
ail, and that any clause inserted therein reserving a right to sue others 
after one has been released is répugnant to the release, in that it de- 
feats or attempts to defeat, the natural légal effect of the instrument; 
and that it should therefore be ignored. McBride v. Scott et al. 
(Mich.) 93 N. W. 243, 61 L. R. A. 445; Abb v. Northern Pacific Ry. 
Co. (Wash.) 68 Pac. 954, 58 L. R. A. 293, and cases there cited. Other 
courts hold, however, that such an instrument should be given efïect 
according to the obvious intent of the person executing it, and that it 
should not be treated as a technical release operating to destroy his 
cause of action as against ail of the joint tort feasors, but rather as a 
covenant not to sue the party in whose favor the instrument runs. Gil- 
bert V. Finch (N. Y.) 66 N. E. 133, 61 L. R. A. 807; Matthews v. 
Chicopee Mfg. Co., 3 Rob. 712 ; Ellis v. Esson, 50 Wis. 138, 6 N. W. 
518, 36 Am. Rep. 830; Hood v. Hayward, 124 N. Y. i, 16, 26 N. E. 
33 1 ; Sloan v. Herrick, 49 Vt. 327 ; McCrillis v. Hawes, 38 Me. 566 ; 
Miller v. Beck (lowa) 79 N. W. 344, 345 ; Price v. Barker, 4 El. & Bl. 
760, 776, Tjy. 

We are of opinion that the doctrine enunciated in the cases last 
cited is supported by the greater weight of authority, and is founded 
upon the better reasons. It has the merit of giving efïect to the in- 
tention of the party who exécutes such an instrument, which should 
always be done when the intention is manifest and it can be given 
effect without violating any rule of law, morals, or public policy. Be- 
sides, we are not aware of any sufficient reason which should preclude 
a person who has sustained an injury through the wrongful act of 
several persons from agreeing with one of the wrongdoers, who de- 
sires to avoid litigation, to accept such sum by way of partial compen- 
sation for the injury as he may be willing to pay, and to discharge him 
from further liability without releasing his cause of action as against 
the other wrongdoers. The law favors compromises generally, and it 
is not perceived that an arrangement of the kind last mentioned should 
be regarded with disfavor. The release which was read in évidence in 
the case at bar plainly shows that the sum paid by Hysham was not 
accepted by the plaintiffs as full compensation for the injury which 



EIGGS V. UNION LIFE INS. CO. 207 

they had sustained ; that it was not in fact full compensation for the 
injury ; and that they had no intention of releasing their cause of ac- 
tion as against Carey. Why, then, should it be given an effect con- 
trary to the intent of the one who executed it? We perceive no adé- 
quate reason for giving it such effect, and accordingly agrée with the 
lower court that it did not release Carey. 
The judgments below are therefore affirmed. 



RIGGS et al. V. UNION LIFE INS. 00. OF INDIANA. SAME v. AMERICAN 

CENT. LIFE INS. CO. SAME v. FIDELITÏ MUT. LIFE INS. CO. 

SAME V. NOETHWESTERN NAT. LIFE INS. CO. 

SAME V. HARTFORD LIFE INS. CO. 

(Circuit Court of Appeals, Eighth Circuit March 23, 1904.) 

Nos. 1,947-1,951. 

1. Insubance Policy— Feaud— Remedy AT Law befoee Loss— Jtjeisdiction in 

Equitt. 

Before a loss under a policy of Insurance, tbe company whleh issued it 
has no adéquate remedy at law for f raud, f aise représentations, or conceal- 
ments which procured its issue, and a federr.1 court has jurisdiction in 
equity of a suit for tlie surrender and cancellation of the policy. 

2. Same— Remedy at Law aftee Loss. 

After a loss under a policy of Insurance, the company whleh Issued it 
ordinarily has an adéquate remedy at law for fraud, false représentations, 
or false concealments whleh procured its Issue by presenting them as a 
défense to any action that may be brought upon the policy, so that a suit 
In equity for its surrender and cancellation, commenced after the loss, 
cannot be maintained in the fédéral courts in the absence of spécial facts 
or clrcumstances invoking jurisdiction in equity. 

3. Same. 

The fact that the action at law on the policy wlll be brought In a state 
court does not render the remedy of the company at law in the fédéral 
court so inadéquate that a suit In equity to avold the policy, commenced 
after the loss, may be maintained, where the company has the right to 
remove the action at law from the state to the fédéral court 

4. Same. 

Nor does the fact that the license of the company to do business In the 
state in which the action at law Is to be commenced will be revoked if the 
company removes that action to a fédéral court render Its remedy at law 
in the fédéral court so inadéquate as to give that court jurisdiction in 
equity of a suit to cancel the policy. 
(Syllabus by the Judge.) 

Appeals from the Circuit Court of the United States for the Western 
District of Missouri. 

For opinion below, see 123 Fed. 312. 

Kendall B. Randolph and R. A. Hewitt, Jr. (W. H. Ha)mes, James 
T. Blair, and William M. Fitch, on the brief), for appellants. 

W. A. Kerr, Augustin Boice, and Stephen S. Brown (John E. Dol- 
man, on the brief), for appellees. 

Before SANBORN, THAYER, and HOOK, Circuit Judges. 
î 1. See Cancellation of Instruments, vol. 8, Cent. Dig. § 13. 



208 129 FEDBEAL REPORTER. 

SANEORN, Circuit Judge. Thèse are appeals from orders of the 
Circuit Court, which granted to the insurance companies interlocutory 
injunctions against the executors of the last will of Eber B. Roloson 
and others, who were défendants in thèse suits in the court below. The 
injunctions forbid the executors or their codefendants to bring actions 
at law upon or assign their clainis against the insurance companies 
which are based upon poHcies of insurance issued by the latter upon 
the Hfe of Eber B. Roloson, Avho died on February 28, 1903. The bills 
in thèse cases were first exhibited after the death of Roloson. In them 
the complainants, the insurance companies, allège that they are cor- 
porations organized under laws of states other than the state wf Mis- 
souri, that the défendants are citizens of the latter state, that the 
amount in controversy in each of the suits is more than $2,000, that the 
défendants in each case conspired together to procure and did pro- 
cure the çomplainant in that case to issue a policy or policies of in- 
surance which constitute the subject of that suit by fraudulent rep- 
résentations and concealments, that the complainants hâve procured 
their licenses to do business in many of the states upon the condition 
that they will not remove actions or suits brought against them in the 
courts of the states to the courts of the nation, and that the executors 
will, if not enjoined by the court, assign their claims under the policies,^ 
and cause actions to be brought upon them in the courts of some state, 
so that the insurance companies cannot remove thèse actions to the 
fédéral courts without incurring the penalty of a revocation of their 
licenses to do business in that state. No demurrers or answers were 
interposed in thèse suits, and the cases stand upon the bills and upon 
the orders for the injunctions. Thèse orders are challenged by the 
défendants on the ground that the complainants had an adéquate rem- 
edy at law, so that the court below was without jurisdiction of the 
suits in equity, because, if the insurance companies are sued upon the 
policies, they may remove the actions to the fédéral courts, and the 
fraudulent représentations and concealments which induced the issue 
of the policies will constitute perfect défenses to those actions. 

Whatever doubt there may hâve been of the jurisdiction in equity 
of the court below over thèse suits when the learned District Judge 
considered that question and issued the injunctions bas been dispdled 
by the later décision of the Suprême Court in Cable v. U. S. Life Ins. 
Co., 191 U. S. 288, 24 Sup. Ct. 74, 48 L. Ed. 188. Before the loss 
under an insurance policy occurs, a company bas no adéquate remedy 
at law for the fraudulent représentations or concealments which induce 
its issue, because an estoppel from denying its validity may arise in 
favor of third persons who advance their money in reliance upon it, 
and because the time when an opportunity will be ofïered to establish 
the fraud as a défense to an action upon the policy is so remote and 
uncertain that indispensable witnesses and évidence may, and probably 
will, disappear before the opportunity will be offered. Hence a féd- 
éral court sitting in equity has jurisdiction of a suit instituted before 
the loss under a policy occurs to compel its cancellation and surren- 
der on account of fraud or misrepresentation in its procurement, and 
after the court has thus acquired jurisdiction by the commencement 
of the suit before loss it may proceed to a final decree, although the 



THE EDITH L. ALLEN. 209 

loss occurs during the pendency of the suit, and before the final hear- 
ing. Bacon on Benefit Societies and L,ife Insurance, § 285 ; Hamilton 
V. Cummings, i Johns. Ch. 517; Home Ins. Co. v. Stanchfield, 12 
Fed. Cas. 449, No. 6,660; Benefit Ass'n v. Parks, 81 Me. 79, 16 Atl. 
339, 10 Am. St. Rep. 240. 

But the décision of the Suprême Court in Cable v. U. S. Life Ins. 
Co. has placed this proposition beyond doubt or debate: After a loss 
under a policy the remedy of the insurance company at law for fraud, 
false représentations, or concealments which induced its issue by pre- 
senting them as a défense to the action that may be brought upon the 
policy is not inadéquate because that action may be brought in a state 
court, where the défendant will hâve the right to remove it to a féd- 
éral court, although its removal to the latter court may resuit in a 
revocation of the license of the insurance company to do business in 
that State, nor because a défendant has no choice of the time or place 
of the commencement of such an action, and less control of its con- 
duct than the plaintiff, and a suit in equity to cancel the policy and to 
prevent an action at law upon it cannot be maintained in the fédéral 
courts upon thèse grounds. The jurisdiction of the court below in 
equity is invoked for no other reason that is worthy of considération 
or discussion, and the orders which granted the injunctions must be 
reversed, and the cases must be remanded to the Circuit Court for 
further proceedings not inconsistent with the views expressed in this 
opinion, upon the authority of Cable v. U. S. Life Ins. Co., 191 U. S. 
288, 24 Sup. Ct. 74, 48 L. Ed. 188 ; and it is so ordered. 



THE EDITH L. ALLEN. 

(Circuit Court of Appeals, Second Circuit. March 11, 1904.) 

No. 132. 

1. Salvage— Rbscue or Stbanded Schooneb— Réduction or Awabd. 

A salTage award of $6,500 for the rescue of a schooner valued, as saved, 
with her cargo and frelght, at $32,800, which was stranded on the coast 
of New Jersey, reduced on appeal to $4,500 ; It appearlng to hâve been 
Increased to some estent by a misapprehension by the trial judge of the 
facts Bhown by the évidence as to the péril of the stranded vessel. 

Appeal from the District Court of the United States for the South- 
ern District of New York. 

For opinion below, see 122 Fed. 729. 

This cause cornes hère upon appeal from a decree of the district court, 
Southern District of New York, awarding to Neal, as owner of the tug Som- 
ers N. Smith, and to the American Salvage Company, which had a crew on 
board said tug, the sum of $6,500 salvage for pulllng the schooner Edith K 
Allen off the eastern edge of Brigantlne Shoal, on the coast of New Jersey, 
and towlng her to the port of New York. The decree further awarded to Neal 
the sum of $1,700 for damages alleged to hâve been sustained by the tug dur- 
ing the salvage opération. The appellant contends that the court erred in 
awarding anythlng for damages to the tug, and that the amount of salvage 
awarded is excessive. It Is not disputed that salvage service was rendered. 
The value of the schooner, as saved, her cargo and frelght, was $32,800. The 

11 1. Salvage awards In fédéral courts, see note to The Lamlngton, 30 0. G. 
A. 280. 

129 F.— U 



216 129 FEDERAL REPORTER. 

value of the tng, speclally equlpped with the best appllances for wrecklng, 
was $50,000. 

Edward G. Benedict, for appellant 
Henry G. Ward, for appellees. 

Before WALLACE, LACOMBE, and COXE, Circuit Judges. 

LACOMBE, Circuit Judge. The opinion of the District Court will 
befound reported in 133 Fed. 729. It sets forth the facts so fuUy that 
it is not necessary to undertake to restate them hère. It will be under- 
stood that the conclusions of this court are based thereon, with such 
modifications only as are hereinafter set forth. 

While hauling on the schooner, February 3, 1902, the tug struck bot- 
tom, certainly twice, possibly three times. Thèse blows were very sé- 
vère ones. The engineer testified that he was at the throttle, handling 
the engines, at the time, and that the blow came very near throwing 
him down off his feet, and made the tools rattle in the fireroom, and 
also shook the coal bunkers, boilers, and pipes in the engine room. 
There were big swells running at the time, and she struck twice, at 
least, between swells. So they paid out the hawser, and got into 
deeper water. The day before, while near another stranded vessel, and 
before the salvage service of the Allen was undertaken, the tug also 
touched bottom, but that was a very slight contact — phe "just nudged 
the bottom" — whereas, when she struck while hauling on the Allen, "it 
was a barder strike. She came down on something, and it jarred her 
ail over." The tug is a steèl boat, with a double bottom; the spaces 
between the floors being filled up with cément and pig iron, making a 
very solid structure. No leak developed after the blows testified to, and 
no survey of her bottom was made till she was put on dry dock, two 
months later, for her usual spring overhauling. It was then discov- 
ered that her port side was damaged about amidships under the boilers. 
some of the garboard streak plates were bent, and had to be taken oflE 
and renewed, and the vertical floor under the forward fireroom bulk- 
head was bent, buckled, and distorted so that several frames had to 
be straightened. No holes were punched through the plates, but they 
were fractured on the inside and at the rivet holes. The mechanic who 
made the repairs had attended to the tug at her overhauling the 
spring before, and testified that thèse injuries did not then exist. Her 
master testified that he had been by the tug the whole of the time since 
the prior overhauling — "every day, never been off her two hours" — 
and that she never struck bottom during that period, except on the 
occasions above set forth. Upon this uncontradicted évidence, the 
district judge was warranted in finding that the injuries to the tug's 
bottom were sustained during the salvage service, and his award there- 
for was proper. 

The amount awarded for salvage rests usually in the discrétion of the 
court awarding it. Nevertheless, in The Bay of Naples, 48 Fed. 739, 
I C. C. A. 81, we held that: 

"Appellate courts will look to see if that discrétion has been exerclsed by 
the court of flrst Instance In the splrlt of those décisions whlch higher tri- 
bunals hâve recognized and enforced, and will readjust the amount if the 
decree below does not follow in the path of authorty, even though no prin- 
ciple has been violated or mistake made," 



THE EDITH L. ALLEN. 211 

And a readjustment will more readily be made if the award below 
appears to hâve been enlarged through some misapprehension of the 
facts. 

It is apparent that the salvors hâve been awarded a very high per- 
centage of the amount salved. The appellant has submitted a list of 
ail salvage cases found in the Fédéral Reporter down to date (say 
volume 124), where wooden vessels hâve been rescued from a stranded 
situation on the Atlantic Coast. They are given in a note, as a con- 
venient supplément to the list given in the note to The Lamington, 86 
Fed. 675, 30 C. C. A. 271. In the case at bar an important circum- 
stance is the condition of the tide at stranding and until rescue. The 
schooner stranded on the eastern edge of the shoal during a strong 
squall from the northwest (offshore), which blew her headsails to pièces, 
so that she came up to the wind; and, before they could get her off, 
she was ashore. This was on Sunday, February 2d, at about 5 130 p. m. 
The wind had been easterly, but by 1 1 a. m. it had shif ted to the west, 
and blew from the west and northwest until the stranding, increasing 
in violence. It had been blowing hard offshore for certainly four hours 
before the "living gale" in which the master of the schooner sa) s she 
went ashore, with the natural resuit of somewhat flattening the sea 
and holding back the water. There is conflict between the weather rec- 
ords at Atlantic City, six miles distant, and the witnesses from the life- 
saving stations near Brigantine Shoal; but it may fairly be assumed, 
as libelants contend, that during the night of Sunday, and during Mon- 
day and Monday night until near midnight, there was a heavy offshore 
blow. The heaviness of the blow was not an especial péril to the 
schooner, since she was was not far enough offshore for the wind to 
make much of a sea ; and, had she been blown off, she would not hâve 
sunk, because her leaks, as the event showed, were not beyond the con- 
trol of the pumps. This strong offshore wind, however, prevented the 
natural rise of the tide. In conséquence the tug strove in vain to 
haul her off — for two hours at high tide Monday afternoon, and again 
for a like time at the next high tide, early Tuesday moming. There- 
after, however, there came a change in the wind, which ceased to 
operate to hold back the water, and in conséquence the next tide came 
in with an unusual rush; and on the third pull, which began about 
I p. m. Tuesday, February 4th, the schooner came off the shoal about 
2 130 p. m., without any difficulty, and when the tide was only half high. 
If this change in the wind had been one from offshore to onshore, the 
schooner's position would hâve been serions, because, being without 
headsails and heavily iced, as the water lifted her the wind would bave 
driven her aground higher up on the shoal. A change, however, only 
from a heavy to a light breeze, would not tend to produce such resuit, 
and might allow her to get afloat by the use of her own anchor and 
capstan. The évidence is uncontradicted that this was the only change. 
The wind fell to less than six miles an hour, and, although for a brief 
space it backed around to northeast, it remained westerly not only until 
the schooner was pulled off, but during ail the rest of the week. It 
would seem, however, that the district judge was under the impression 
that the wind changed in direction as well as in velocity. He says: 

"There can be little doubt that * * * the schooner was in great danger 
of becoming a total loss, from a change of the wind to the eastward, which 



212 129 FEDERAL KEI'ORTER. 

was Impcndlng, and In fact occnrred before the schooner was floated." And 
again: "The change in the wlnd, which brought a normal state of the tide, 
was, o( course, an extremely Important feature in the proceeding. • • * 
It appears hère that, in ail probability, without the opportune intervention of 
the salvors, the change of wind, with the conséquent increase of depth of 
water, though it might hâve caused the schooner to float temporarily, would 
eventually hâve driven her higher up on the beaeh, and led to her total loss." 

Manifestly this understanding of situation operated to increase the 
award beyond what would otherwise hâve been made, and we think the 
salvage should be reduced from $6,500 to $4,500. 

The decree is reversed, with costs of this court to appellant, and 
cause remanded to the District Court, with instructions to decree in 
accordance with this opinion; costs of district court to Hbelants. 

XOTE. Salvage cases cited on argument, being ail those in the first 124 
volumes of Fédéral Reporter where a wooden vessel bas been rescued from a 
stranded situation on the Atlantic Coast : 

Mary E. Long (D. C.) 7 Fed. 364 4 % 

Maggle Ellen (D. 0.) 19 Fed. 221 5 % 

Andrevr Adams (D. C.) 36 Fed. 205. SSM> % 

Nellie Floyd (D. C.) 36 Fed. 221 6V-, % 

The Eleanor (D. C.) 42 Fed. 54,". 5 % 

Thos. B. Garland (D. C.) 83 Fed. 1018 6% % 

Agnes I. Grâce (D. 0.) 49 Fed. 602 42 % 

The Fenobscot (D. C.) 103 Fed. 205 9 % 

ïhos. L. James (D. C.) 115 Fed. 560 25% 



In re GOLDMAN. 

In re GILBERT. 

(Circuit Court of Appeals, Second Circuit March 10, 1904.) 

No. 188. 

1. Bankruptgy— Reopening Estaxb— Discrétion of Couet. 

While a court of bankruptcy has power to reopen the estate of a bank» 
rupt to permit the trustée to maintain an action to recover concealed as- 
sets, the granting of an application therefor rests to its discrétion, and 
its action vcill not be reversed except for an abuse of discrétion. 

Pétition to Review Order of the District Court of the United States 
for the Southern District of New YOrk. 

J. C. Bushby, for petitioner. 
Nathan D. Stern, for respondent. 

Before WALLACE, LACOMBE, and COXE, Circuit Judges. 

PER CURIAM. We hâve no doubt of the power of the court to 
reopen the estate of the bankrupt or of the right of the trustée to 
maintain action necessary to recover concealed assets. But the motion 
was addressed to the sound discrétion of the District Judge, and we 
are not satisfied that it was not properly exercised, in the interests of 
preventing litigation of insignificant importance. Had the application 
been made by the original creditors it would be regarded with more 
xavor. 



WESTIXGHOUSE ELECTKIC & MFG. CO. V. MUTUAL LIFE INS. CO. 21o 



WBSTINGHOUSB ELECTRIC & MFG. CO. V. MUTtTAL LIFB INS. CO. OF 

Î^EW YORK et al. 

(Circuit Court, W. D. New York. February 9, 1904.) 

No. 188, 

1. Patents— Anticipation— INFRINGEMENT— Electric Motors. 

The Tesla patents, Nos. 511,559 and 511,560, the former covering a 
method, and the latter certain apparatus or means of operating electric 
motors by means of alternating eurrents from a single original source 
known as the "split-phase" System, held not anticipated by the publication 
in Milan of a lecture by Prof. Galileo Farraris April 22, 1888, on évidence 
■which clearly and satisfactorily carries the invention back to September, 
1887. Such patents also held valid, and both claims of the former and 
claims 1 and 2 of tlie latter infringed by the Gutmann recording watt 
meter. 

2. Same— Suit foe Infeingement— Parties. 

An agent is not properly joined with hls principal as a défendant In a 
suit for Infringement because of acts done in his capacity as such agent. 
In the absence of spécial circumstances. 

3. Same— Défenses. 

It is not a défense to a suit for infringement against a user that a de- 
cree has previously been obtained against the maker, from whom the de- 
fendant bought the infringing article. 

In Equity. Suit for infringement of letters patent Nos. 511,559 and 
511,560, relating to electric motors, granted to Nikola Tesla December 
26, 1893. On final hearing. 

Kerr, Page & Cooper, for complainant. 

Martin Carey and Seward Davis (Charles A. Brown, of counsel), for 
défendants. 

HAZEL, District Judge. This suit in equity is brought to establish 
infringement by the défendants of two United States letters patent 
granted to Nikola Tesla, of which complainant is the owner by assign- 
ment. The applications for both patents were filed December 8, 1888, 
but, on account of interférence proceedings in the Patent Office, they 
were not granted until December 26, 1893. Their numbers are 511,- 
559 and 511,560, respectively. The infringements consist in the use 
by the défendants of an alternating split-phase motor in an instrument 
for measuring the amount of electric energy supplied to a consumer. 
The instrument containing the motor is technically known as a "re- 
cording watt meter." The infringing apparatus used by the défend- 
ants in a building at Elmira, N. Y., is the Gutmann meter. The dé- 
fense is want of patentability, noninfringement, and anticipation. Pat- 
ent No. 511,559 has two claims, both of which are said to be infringed. 
They read as follows : 

"(1) The method of operating motors havlng independent energizing circuits, 
as herein set forth, which consists in passing alternating eurrents through both 

If 2. See Patents, vol. 38, Cent. Dig. §§ 459, 471, 



214 120 FEDBKAL REPORTER. 

of the said circuits, and retarding the phases of tlie carrent In one circuit t» 
a greater or less extent than In the other. 

"(2) The method of operating motors having Independent energlzing circuits, 
as herein set forth, which consists in direeting an alternating current from 
a single source through both circuits of the motor, and varying or modifying 
the relative résistance or self-induction of the motor circuits, and thereby pro- 
ducing in the currents différences of phase, as set forth." 

The first daim relates broadly to the method and extent of retar da- 
tion of the phase of the current. The second claim refers specifically 
to the method of accompHshing in the electric currents a différence of 
phase. Infringement is also charged of claims i and 2 of the patent 
No. 511,560, which read as follows: 

"(1) The combination, with a source of alternating currents and a circuit 
from the same, of a motor having independent energlzing circuits connected 
with the said circuit, and means for rendering the niagnetlc efCects due to said 
energlzing circuits of différent phase, and an armature within the influence 
of said energlzing circuits. 

"(2) The combination, with a source of alternating currents and a circuit 
from the same of a motor having independent energlzing circuits connected 
in dérivation or multiple arc with the said circuit, the motor or energlzing 
circuits being of différent electrical character, whereby the alternating currents 
thereln will hâve a différence of phase, as set forth." 

Thèse claims with particularity refer to an apparatus for efFecting 
the object of process patent No. 511,559, and specifying the devices 
constituting the split-phase motor with a single line or circuit. It is 
practically conceded that infringement of either of the claims involves ' 
the complète use of the entire System described in the spécifications. 
The patents in suit are improvements on a séries of five earlier patents 
which are the basic inventions for a class of motors called the poly- 
phasé motors for power transmission, or rotating field alternating mo- 
tors. They are operated by alternating currents of electricity. The 
improvement patents hère considered relate to the split-phase motor. 
It is not intended to discuss the scope of thèse patents in détail, for the 
reason that the claims involved hâve been uniformly construed in one 
form or another in a variety of litigations which hâve followed the 
Tesla polyphasé and the split-phase patents from the time of their 
issuance. The patents in suit especially hâve been attacked with well- 
directed, vigorous, and resolute pertinacity. The fundamental prin- 
ciples upon which a différence of phase in circuits is based hâve been 
set forth with elaborate détail in prior opinions by Circuit Courts and 
Circuit Courts of Appeals, notably by Judge Townsend in the case of 
Westinghouse v. New England Granité Co. et al. (C. C.) 103 Fed. 951, 
which was a suit upon the broad Tesla patents of May r, 1888, Nos. 
381,968, 382,279, and 382,280; by Judge Shipman in the same case 
. for the Circuit Court of Appeals, iio Fed. 753, 49 C. C. A. 151; by 
Judge Brown in Westinghouse Co. v. Royal Weaving Co. (C. C.) 115 
Fed. 733 ; by Judge McPherson in Tesla Electric Co. v. Scott & 
Janney et al. (C. C.) 97 Fed. 558; by Judge Thompson in Westing- 
house Co. v. Dayton Fan & Motor Co. (C. C.) 106 Fed. 724, and in the 
same case by Judge Severens, who wrote the opinion for the Circuit 
Court of Appeals for the Sixth Circuit, 118 Fed. 562, 55 C. C. A. 



WESTINGHOUSE ELECTRIC & MFG. CO. V. MUTUAL LIFE INS. CO. 215 

390; by Judge Lacombe in Westinghouse Co. v. The Catskill Illumi- 
nating Co. (C. C.) iio Fed. 377, and in the same case by Judge Town- 
send for the Circuit Court of Appeals, reversing the décision of the 
Circuit Court, 121 Fed. 831, 58 C. C. A. 167; and recently by Judge 
Coït in Westinghouse Co. v. Stanley Electric Co., and by Judge Arch- 
bald in Westinghouse Co. v. Hiram C. Roberts (C. C.) 125 Fed. 6. It 
would, indeed, be a work of supererogation to hère attempt an analysis 
of the involved claims and their scope, specially in view of the ex- 
tremely technical character of the abstruse questions involved, and their 
previous exhaustive and comprehensive considération by the courts. 
In the Catskill case the Circuit Court, considering the Tesla patents 
in suit and the défenses there raised, sustained their validity, and un- 
qualifiedly concurred in the décisions of Tesla Electric Co. v. Scott & 
Janney et al. and Westinghouse Co. v. Dayton Fan & Motor Co., 
supra. The Circuit Court of Appeals, however, reversed the déci- 
sion upon the ground that the publication of a magazine article on April 
22, 1888, by Prof. Galileo Ferraris, fully described and disclosed the 
System covered by the patents in suit. This publication upon the évi- 
dence in that case vsras found to be prior to the date of the inventions in 
suit, and constituted an anticipation. It is quite apparent that the 
Circuit Court of Appeals did not intend to disaffirm or disapprove the 
conclusion of the Circuit Court upon any other ground, although no 
other issues were expressly discussed. By implication, at least, the 
novelty and validity of the patents Nos. 511,559 and 511,560, as found 
by the Circuit Court, were concurred in and sustained. Upon that 
point the opinion of the Circuit Court of Appeals states : 

"By the method and means therein described, Tesla dispensed wlth one of 
the line circuits, and was able to run the motor by means of alternating cur- 
rents from a single original source. This was accomplished, as appears from 
the foregoing claims, by means which retarded the phases of the current In 
ail circuits, or so varied the relative résistance of the motor circuits as to 
maintain the necessary difCerenee in phase in the currents. Such utilization 
of a single original source by thus splitting a single current into two currents 
was an improvement of great practical value." 

This construction will be adopted by this court. The conclusions 
in patent cases by courts of concurrent jurisdiction, though the parties 
are différent, are in themselves strongly persuasive of their soundness ; 
but, virhen thèse questions hâve been reviewed on appeal and sustained, 
the doctrine of res adjudicata, provided no new évidence upon the sub- 
ject is shown, has undoubted application. 

I am now brought to the question of anticipation. Are patents Nos. 
511,559 and 511,560 invalid because anticipated by the admitted pub- 
lication of Prof. Galileo Ferraris on April 22, 1888, in Turin, Italy? 
It is not controverted that this publication completely described the 
process and method of operating motors, as set out in the spécifications 
and claims in suit. The Tesla split-phase patents, as has been stated, 
were granted December 23, 1893, upon applications filed December 
8, 1888, eight months after the Ferraris publication. Upon careful 
considération of the proofs, I hâve arrived at the conclusion that the 
actual date of the Tesla inventions is prior to this publication, and that 



216 129 FEDB3EAL REPORTER. 

the patents were not void for anticipation. According to tlie évidence, 
Tesla conceived his invention in iiis laboratory. No. 89 Liberty street, 
New York City, and çompleted the same in the month of September, 
J887. He made discïosure thereof to others during the fall of 1887, 
especially to Mr. Brovvn and Mr. NelHs, witnesses for complainant, 
and subsequently in the month of April, prior to the Ferraris pubhca- 
tion, to his solicitor, Mr. Page. The défense of anticipation raises a 
question of much importance. Evidence in support of the claim of 
earlier conception than the date of the application, discïosure of the 
invention, and its actual réduction to practice must be received with 
great caution. Unless such inventions were actually made and per- 
fected before the date of the Ferraris publication, the patents cannot 
be sustained. The burden is upon the complainant, under the cir- 
cumstances, to establish by clear, unequivocal, and convincing proof 
that the anticipation has been anticipated. Westinghouse Co. v. Sara- 
nac Lake Electric Light Co. (C. C.) 108 Fed. 221 ; Thayer v. Hart 
(C. C.) 20 Fed. 693 ; St. Paul Plow Works v. Starling, 140 U. S. 184, 
II Sup. Ct. 803, 35 L. Ed. 404. Has the complainant complied with 
the rule ? Tesla, to sustain an earlier date of invention than the date of 
the application, and as a part of the complainant's prima facie case, 
gives testimony tending to establish the foUoviàng facts : In the au- 
tumn of 1887, assisted by Mr. Szigeti, he was engaged in his laboratory 
at No. 89 Liberty street, New York, in perfecting différent types and 
sizes of alternating current motors. Complainant has been unable to 
locate Szigeti, which tends to explain his failure to corroborate Tesla 
upon this point. In July, 1888, Tesla sold his polyphasé and split- 
phase patents to the complainant corporation, and, entering its employ, 
took up a temporary résidence in Pittsburg, where complainant's fac- 
tory was located. During his absence of one year from New York, 
the laboratory was moved by his assistant from Liberty street, and 
later, after his return to New York, again moved to South Fifth ave- 
nue, where in 1895 i^ was consumed by a fire which destroyed ail his 
motors, except the "Exhibit Tesla Motor." This apparatus had been 
reduced to practical form, according to the évidence, in September, 
1887, and was in the Patent Office at Washington at the time of the 
fire. It had been iised as an exhibit in proceedings in interférence 
with Ferraris, and was produced as new évidence upon the hearing 
of this case. It is shown to be capable of successful opération by two 
wires, as indicated in the spécifications of patent No. 511,560. The 
transaction to which Tesla's narrative relates occurred fully 15 years 
ago. Examination and considération of ail the testimony disclosed by 
the record satisfies me, even after this lapse of time, of its truthfulness 
and its accuracy. The conclusion is not reached without some degree 
of hésitation, solely due, however, to the views expressed by the Cir- 
cuit Court of Appeals of this Circuit, in the Catskill Case, regarding 
the proof there submitted upon this question. This proof constitutes 
a portion of the évidence hère, and will be treated hereafter. The 
standard of proof required, where anticipation has been clearly shown, 
to carry the invention back to a date earlier than the application, has 
been abundantly supplied in the présent record. Hère the testimony 



WESTINGHOUSE ELECTRIC & MFG. CO. V. MUTUAL LIFE INS. CO. ^ll 

of Tesia, emphatically and unequivocally narrated, sufficiently sup- 
ported by other witnesses, as to the spécifie construction of the exhibit 
motor and its operativeness as a split-phase derivative motor in the 
month of September, 1887, impels me to the conclusion that its actual 
invention is prior to the date of the Ferraris pubhcation. In the case 
at bar, the circumstances surrounding the earlier date of invention and 
the subséquent facts indubitably lead to the conclusion that an earlier 
date of invention has been definitely fixed and established. Accord- 
ing to Tesla, the expérimental motor in évidence was one of the earliest 
constructed, and was operated by him almost daily in September, 1887, 
upon the split-phase dérivation System. His description of the way 
in which the two circuits were connected preparatory to securing the 
necessary différence of phase for the opération of the motor is entitled 
to weight, and is fairly corroborated by the testimony of Mr. Brown, 
to whom, with others, the single-wire System of motor opération was 
disclosed and explained. Tesla testifies further that subsequently, and 
early in April, 1888, he disclosed the invention to his solicitor, Mr. 
Page, who was then engaged in preparing an application for an im- 
provement patent upon one of Tesla's earlier inventions. This com- 
munication is corroborated by Mr. Page, who testifies that the subject 
of such application was thereafter fully and frequently discussed. 
The two-wire induction motor was regarded by them as being the 
raost important type of motors, and accordingly was fully described 
in the application filed May 15, 1888, without mentioning the dérivation 
feature. Nellis, witness for complainant, testifies to the practicability 
and operativeness of the Tesla exhibit motor in the years 1887 and 
1888. His testimony is to be received with caution, as he was not 
an electrician. It appears from the proofs that the expérimental mo- 
tor admittedly was capable of use in varions way s, either as a trans- 
former or polyphasé motor, and therefore the testimony of Nellis, 
aside from his observations, which would be entitled to no probative 
effect, ought not to be entirely disregarded. So far as such testimony 
shows an indépendant recollection of facts and détails, it is entitled 
to weight. I am unable to perceive any sufficient reason why his 
narrative of what he saw at particular tinies should not be given cre- 
dence. Certainly his opportunity for observation was enticing; the 
laboratory was guardedly closed to the public and open to few, and 
the experiments of a trained expert in the intricate subject of elec- 
tricity, fascinating to a mechanic, may well hâve made an impression. 
He testifies that he furnished power at night whenever Tesla tested 
his apparatus. It appears that Tesla showed him the method of op- 
erating with two wires the exhibit motor, which the witness says was 
thus revolved and reversed. The testimony leaves an undoubted im- 
pression upon the mind that, however unskilled this witness may hâve 
been shown, he had a clear recollection that the armature was revolved 
and reversed by the manipulation of two wires. Such opération of 
the apparatus, crudely and superficially stated, was substantially the 
discovery described in the Tesla patents in suit. It is argued that Ut- 
ile stress ought to be placed upon this évidence in the absence of facts 
showing that the expérimental motor was capable of opération with- 



218 129 FEDEBAL EEPOETElt. 

out the use of auxilîary devices. As already observed, standing alone 
it would not be entitled to considération, but, when considered witli 
the testimony of Tesla and Brown, it cannot be denied some degree 
of weight. The complainant's witness Brown, by his admission, was 
financially interested in the patents of Tesla, and this fact undoubt- 
edly tends to detract from the force of his testimony, but no sufficient 
reason is apparent to disregard it. He testifies substantially that the 
motors of the derivative split-phase type were first made by Tesla in 
his laboratory in the summer or fall of 1887, and that the exhibit 
"Tesla Motor" was successfully operated many times in his présence. 
He says: 

"It was operated by means of an alternatlng current, from which were 
taken two derlved currents, one passlng through one winding and the other 
through the other. It was operated as an induction motor, or by means of 
putting external résistance in one of the derived circuits." 

The witness had some skill in the practical application of ■ electricity, 
and his description of the apparatus conforms to the appearance of 
the exhibit motor. It was prior to or during September, 1887, that 
Tesla communicated to him the method of effecting a retardation to 
produce a différence in phase by putting an inductive résistance on 
one of the two derived circuits from the main circuit. Tesla also com- 
municated to his soliciter that the rotary field motor was capable of 
direct opération from a single circuit, as well as from two or more 
independent circuits from the current source. To one who had thus 
recently drawn spécifications covering the polyphasé System of motors, 
the communication that such motors were capable of successful opéra- 
tion from a single circuit by a method of "splitting" or "dérivation," 
thereby dispensing with one of the circuits, must hâve been not only 
interesting but surprising. I quite agrée that it was astonishing that 
the disclosure by Tesla to his solicitor was not made earlier; but the 
reason assigned by Mr. Tesla himself deserves more than passing at- 
tention. Upon this point he testifies that he did not wish to apply for 
a patent for the later invention until the patents for his polyphasé 
System were granted, being apprehensive that the later would minimize 
the importance of the earlier. It appears from the évidence of Mr. 
Page that, upon receiving the disclosure early in April, he became 
apprehensive that the applications then filed, and for which patents 
were soon to be granted, were not sufficiently spécifie to include the 
later method. Accordingly, he advised with his associâtes at home, 
and later in Washington, in relation to modifying or amending the 
pending claims, and in devising a future course to protect the later 
invention. The conclusion reached was that an earlier patent covered 
the invention, and hence the delay in not at once filing application. 
Attention is called to a written charge for services rendered by Mr. 
Page, under date of April 27th, upon which stress is laid by complain- 
ant, and to which Judge Archbald, in his opinion in the Roberts Case, 
attached much significance. I do not attach like emphasis to this point. 
In my mind, it is quite probable that the said charge, as well as the 
trip to Washington, may hâve related to the application of May I5th, 
which, as I understand the évidence, had référence to the inductive 



WESTINGHOUSE ELECTRIC & MFG. GO. V. MUTUAL LIFE INS. GO. U19 

split-phase feature, and not to a motor "connectée! in dérivation or 
multiple arc with the circuit." Irrespective, therefore, of tlie entry in 
Mr. Page's lost diary of a charge for services rendered, the resuit of 
ail the évidence establishes the disclosure by Tesla, in the manner and 
at the time stated by him, clearly, directly, and persuasively. This con- 
clusion is strengthened by many other facts and circumstances, disclosed 
by the record, tending to corroborate an earlier date for the invention. 
The testimony of Mr. Stanley, witness for défendant, deserves to be 
noted. On his direct examination he testifies that between May 15 
and June 15, 1888, he had an interview with Mr. Tesla in his laboratory; 
that nothing was said on the subject of a two-wire motor, nor were 
any experiments made by Tesla in his présence. Later, when con- 
fronted with a letter addressed to George Westinghouse, written by 
him under date of June 24, 1888, he admitted the truth of its con- 
tents. The letter states that Tesla spoke of having run the motors 
by one circuit with a retarding coil in one set of circuits, and mention 
is made of the manner in which the resuit is achieved, namely, by 
"changing the lag in one set of circuits, and using the différence in 
phase between direct and indirect magnetization." True, this letter 
was written and the interview took place two months after the Ferraris 
publication, but it is a circumstance which has weight in support of 
complainant's contention. It certainly dissipâtes the argument, based 
upon the witness Darlington's testimony, that when Tesla was in Pitts- 
burg he was ignorant of the dérivation method. Furthermore, Tesla 
has satisfactorily explained his failure to disclose his invention to 
Prof. Anthony, while at the factory of the Mather Electric Company, 
whereby two currents of différent phase could be derived from a single 
source. It appears that he was admonished by Mr. Brown and Mr. 
Peck, both financially associated with him, to remain silent, and later, 
upon the advice of counsel, he again declined to furnish information 
sought regarding his invention. Thèse are ail significant facts, which 
in my judgment supply the definiteness and certainty on the question 
of priority of invention which the court found absent in the Catskill 
Case. For thèse reasons, the date of the inventions in suit is carried 
back to September, 1887. 

As to infringement. It was held by Judge Lacombe in the Cats- 
kill Case, and by Judge Archbald in the Roberts Case, cases in which 
the infringing devices were équivalent, that, inasmuch as the meter 
armature of the defendant's apparatus "rotâtes against the action of 
a permanent magnet, and turns the spindle which opérâtes the regis- 
tering device," the production of some power is necessarily involved, 
and accordingly it was held to be immaterial that the structures of 
the patent involved power transmission Systems, while that of the de- 
fendant involved a meter. The defendant's apparatus in the Roberts 
Case being practically identical with the defendant's device in this case, 
the conclusion and reasoning of the court in that case upon the ques- 
tion of infringement will be followed hère. It is contended by the 
défendant that the disk or armature of its apparatus is rotated as a 
resuit of the energizing out of phase currents acting in unison upon it ; 
that the position of the disk in the defendant's apparatus is horizontal, 



220 129 FBDBEAL KEPOHTER. 

havîng two electro-magnets placed in relation thereto in such a way 
that the magnetism intersects the same on the same radius; that one 
of the magnets located near the disk's edge receives a "shunt" car- 
rent — that is, a current derived from the main circuit — and tlie other 
is energized by the "séries" or main current. It is further contended 
that the said electro-magnets are so arranged in the meter as to pro- 
duce electric currents of differing phase, namely, that the construction 
of tlie shunt magnet and the coils which surround it produces a cer- 
tain amount of self-induction, while, on the other hand, the function 
of the séries magnet, which has little or none of the retarding eflfect 
mentioned, is to create a magnetic force in the plane of the disk, and 
by their joint action cause it to rota te. The rapidity of its rotation, 
according to defendant's view, is "arranged to be proportional to the 
flow of the current employed by the consumer, passing through the 
séries coil, and also proportional to the electrical pressure between the 
mains or the flow of current through the shunt coil." This descrip- 
tion, and the manner of operating defendant's meter, in my opinion 
does not difïerentiate the same from Tesla's primary patents, to which 
références are made in the patents in suit, and which describe a mode 
of opération depending entirely upon a rotation or "whirling field of 
force," in which the magnetic pôle shifts from point to point about the 
])eriphery of the armature, resulting in its rotation. No evidential 
value is attached to the defendant's theory upon this point in view 
of the indisputable proof that the efïect of the achievement by the de- 
fendant's meter practically consists in the utilization of the Tesla 
method of producing a différence of phase in the energizing circuits. 
In the Roberts Case the armature consisted of a hollow vertical cylinder 
having slanting slots, while in the case at bar the armature in the form 
of a horizontal disk has spiral slots, and the pôles of différent phase 
are so constructed in relation thereto, as has already been pointed out, 
as to deflect through the radial slots of the disk the magnetic eft'ect 
produced by the pôles. I concur in tlie analysis of this feature of the 
defendant's apparatus, as stated by Judge Archbald. In referring to 
the eddy curents formed in the armature under the field pôles, he says : 

"The fleld pôles, AA, at one end, are deflected by the slots In the cylinder, 
so as to corne under the Influence of the fleld pôles, BB, of differing phase at 
the other end, and that it is the résultant magnetic efCect of the two that 
causes the rotation of the armature. That it is this résultant effect that is 
sought and obtained is manifest, else why the deflecting slots, the only func- 
tion of which ia to extend the eddy currents from one to the other? Cut this 
off, or dispense with one set of pôles, and you hâve no rotation, or only a most 
feeble one, explainable on other principles." 

The record discloses that the Tesla patents describe armatures as 
disks wherein field pôles are presented radially to their periphery, while 
in the defendant's motor the pôles are perpendicular to the disk. Thèse 
structural différences are immaterial. Other différences hâve been 
pointed out, but it is thought that they are merely a différence in form, 
and not such as affect the merits of the patents in suit. The Gutmann 
meter without the registering attachment, is appropriately described by 
the following diagram prepared by complainant's expert witness Water- 
man: 



WESTINGHOUSE ELECTKIC & MFG. CO. V. MUTUAL LIFE INS. CO. 221 



svTf^AA/a-iiE re/i. 




ÙUTMANH • fl£ T£B 



ttHC/lATOK. 




"D represents a disk of aluminuin, whlch serves as the armature. BB are 
two colis of coarse wire with short iron cores which are placed on opposite 
faces of the disk near Its center, and C Is a magnetic core carrying a fine wire 
coil, A, and having its pôles presented to opposite faces of the disk at a point 
near the edge of the latter. The coarse-wire coils, B, constitute one energiz- 
ing circuit, while the fine-wlre coil, A, Is the other energizing circuit. Thèse 
two circuits form paths through whlch the current proceeding from an alter- 
nating current generator, G, divides, and as the path or branch Includiug the 
coils, B, has but a few turns of coarse wire surroundlng a small amount of 
iron, w^hile the path Including the coil. A, has very many turns of fine wire 
surroundlng a large Iron core, the latter path will hâve a very high self-In- 
duction as compared wlth the first, and hence the current which passes 
through it will be greatly delayed in phase with respect to that in the other 
or coarse-wire path." 

It is wholly unnecessary to comment upon the inventions of Caba- 
nellas, Dumesnil, and others relied on in anticipation, or to again 
construe with greater particularity the claims in suit. This has been 
exhaustively and comprehensively donc in the later adjudications in 
the Circuit Courts, to which attention has been called. Furthermore, 
the distinguishing features described in the alleged anticipatory patents 
hâve often with great particularity been explained by the courts. It is 
enough that it is satisfactorily shown by the proofs that the apparatus 
of the défendant is constructed by a method of applying the energiz- 
ing circuits in différent phases, and that the effective results of the 
armature or disk are achieved in the defendant's motor by the mode 
of opération described by both claims of patent No. 511,559 and claims 
I and 2 of patent No. 511,560. Those claims, therefore, are held to be 
infringed. 

Two other points pressed at the argument, viz., that the défendant 
Mandeville is not a proper party défendant, and that the meters which 
are the subject of this suit were sold to the défendant insurance com- 



222 129 FEDERAL REPORTIOli. 

pany by the Western Electric Company, against which this complain- 
ant has already had a deeree, need to be decided. The first point is 
sustained. The défendant Mandeville, in the absence of spécial cause, 
is net chargeable with infringement in his capacity as agent, especially 
as the real substantial infringer is before the court, and hence the bill 
as to him is dismissed with costs. The second point is overruled on 
the authority of Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ct. 244, 28 
L. Ed. 768; Kelley v. Ypsilanti Mfg. Co. (C. C.) 44 Fed. 19, 10 
L. R. A. 686; Electric Gas-Lighting Co. v. Wollensak (C. C.) 70 
Fed. 790. 

It follows that the patents in suit are valid. The défendant has 
failed to establish any of the grounds upon which complainant's right 
to sue for infringement dépends, and complainant is therefore entitled 
to a deeree in the usual form, with costs and disbursements. 



WATTS et al. V. UNITED STATES. 
(District Court, S. D. New York. April 8, 1904) 

1. Collision— Damages— FiNDiNGS ov Commissioxer. 

The flnding of a commissioner as to the value of a vessel sunk In col- 
lision, made on conflicting évidence, will not be disturbed unless error 
or mistake is clearly apparent. 

2. Same— Suit against United States— Interest. 

A court of admiralty, in a suit brought against the United States, un- 
der a spécial act of Congress, to recover damages for the loss of a Brll- 
Ish vessel through collision vs'ith a naval vessel, has no authority to allovr 
interest as a part of such damages, vi^here the spécial act is sllent on the 
subject; the gênerai rule belng that Interest is not recoverable against 
the government, and such being the statutory rule governing suits in the 
court of claims. 

In Admiralty. On exceptions to commissioner's report. 
See 123 Fed. 105. 

Wing, Putnam & Burlingham, for the exceptions. 
Henry L. Burnett, U. S. Dist. Atty., and Arthur M. King, Asst, U. 
S. Dist. Atty, 

ADAMS, District Judge. The first three exceptions relate to the 
value of the steamship Foscolia. They are: 

"First For that the Commissioner found the value of the Foscolia at the 
time of the collision at only $GO,000 instead of £17,000 ($82,730) or £15,000 
($72,997) as testifled to by the London witnesses, Burgess and Gordon respect- 
Ively ; also that the Commissioner by said valuation rejected in efiCect the 
estimâtes of the three New York witnesses called for the libellants, namely, 
Saunders, who proved a value at £14,538 ($70,654.68), Clark, who showed a 
valuation of £14,500 ($70,542.50), and Garmey, who appraised the ship at $63,- 
611.94. 

Second. For that the Commissioner did not regard, or dld not give due and 
sufflcient weight to, the high rates of freight proved to be prevaillng in May 
1898, which enhanced the earning power of cargo steamers like the Foscolia, 
and necessarily increased the market value thereof. 

î 1. See Collision, vol. 10, Cent. Dig. $ 306. 



WATTS V. TTNITBD STATES. 223 

Thlrd. For that in Us valuatlon the Commlssloner assumed that the Fos- 
colla could as readlly be sold hère as In Bngland, whereas the value of such 
a vessel In her home port, to wlt, In London, is the correct measure of the 
owners' loss." 

The finding of the Commissioner is not in accordance with the esti- 
mate of any one witness but his report shows that he reached his resuit 
through a considération of ail of the testimony. His conclusion was 
arrived at from conflicting évidence and should not be disturbed unless 
error or mistake is clearly apparent — Panama R. Co. v. Napier Shipping 
Co., Ltd., 6i Fed. 408, 9 C. C. A. 553 ; The Elton, 83 Fed. 519, 31 C. C. 
A. 496 — which is not the case hère. On the contrary, the award is a 
conservative one, taking into account the testimony adduced both hère 
and in England and is consistent with the weight of the évidence. 

The following is his report upon this subject, which I adopt: 

"There Is testimony on the part of her owners to the effect that the Fos- 
colia had been a very profitable vessel, and some of the testimony taken by 
them in Bngland on the question of value appears to hâve been largely Influ- 
enced by this fact Libellants' counsel argues that the value of the vessel 
to the owners is a better measure of damages than the estimâtes of experts, 
and quotes from the opinion of Mr. Justice Barnes in the Harmonides, 9 Asp. 
Mar. Cases, 354, in which this vIew Is apparently taken. But the décisions 
of our courts are to the effect that this Is not the proper test, and that In the 
absence of spécial circumstances the amount for which the vessel would hâve 
sold In the open market Is the true lest of value. Nor do I think that because 
of our navigation laws greater weight should be given to the London testi- 
mony than to that taken In New York, since one of the wltnesses examined 
hère stated that the value given by him was that of London, and the other 
New York witnesses dld not take the navigation laws Into considération as 
affecting the value, It being assumed that, for the purposes of the enquiry, 
the Foscolia could be as readlly sold hère as In England. 

The Foscolia was an Iron steamship built at Newcastle, England, In 1879, 
at a contract price of £23,074. Some of the Government witnesses consldered 
this a large sum to pay for her at that time, and it appears that bids w^ere not 
asked for when she was built ; but Mr. Burgess, one of the owners, testifled 
that he knew what values were at that time and believed he got the lowest 
rates, Wltnesses for the owners testifled that iron vessels hâve more en- 
durance than Steel vessels, and this has not been dlsputed by the Government. 
The Foscolia was of the double-deck type, with three tiers of deck beams, had 
one iron deck and one deck partly Iron and partly wood, high forecastle solid, 
bridge and high poop. She had compound engines, and her average speed 
was 9 knots when loaded, on a coal consumption of 12 tons per day. She was 
classed 100 A 1 with a star, in the Britlsh Lloyds, which is the highest class 
and indicates that she was built under a spécial survey. She had retained 
that class from the beginning, passing the periodical surveys, and she was 
entltled to be continued in it as long as her owners complied with the Lloyds 
requirements. Her last survey was In September, 1897, about seven months 
before her loss, and under It the vessel would bave retained her class for 
four years, barrlng accidents. The engines and boilers were the same that 
were originally placed in her, but they had been subject to annual inspection, 
and in September, 1897, were certlfied for 12 months. From the time she 
was built her owners had spent £12,136/9/6 on her in repairs and renewals, 
and the testimony shows that she had been thoroughly kept up. 

To prove value, two witnesses were examined In London on behalf of the 
owners, and one on behalf of the Government, besides the wltnesses who tes- 
tifled hère. Thelr values were given as of May, 1898, when the vessel was 
lost. 

Mr. Burgess, one of the English owners, whose business and expérience 
qualifled him to testlfy on the subject, placed the value at £17,000. This is 
the highest estimate given by any witness, and liis interest in the matter may 



224 129 FEDERAL REPORTER. 

have led Mm to place too great a value on the vesscl. Moreover, thîs appears 
to be hls estimate of her commercial value to his firm, since he says: 'To 
us, a going concern, the steamer was worth at least £17,000.' 

Mr. Gordon, the other London witness for the owners, was an offlcer of a 
Company ownlng a large number of steamsbips, and had a long expérience 
In the purchase, ownership and management of steamships. He valued the 
Foscolla at £15,000. He States that there was a demand for shlps of her 
class at that time, not in England, but from foreigners, who were buying 
largely ; such vessels were well adapted for the Baltic and Black Sea trades, 
but were not then belng built in England. Mr. Gordon had never been aboard 
the vessel, although he had seen her some years before her loss. In explain- 
Ing his method of flxing the value, he said that he took into considération 
his own steamers of similar biiild and âge, their Insured values for that year, 
and their earning capacity. He also States that for this particular year, 
'the earning quality of the boat is an absolute test of value.' Elsewhere, 
however, he disclaimed taking the Insured value into considération as an 
élément, and said that his estimate was based upon hls knowledge of ships 
of similar type and slze. He seems to have been in error as to the âge of 
the vessel, since he refers to her as 'practieally new' In 1892, when In fact 
she was 13 years old. When asked what, under normal conditions, would 
be the percentage of détérioration for a vessel costing £23,074 In 1879, he said 
that he could not answer the question with référence to the Foscolla, since 
she was probably worth nearer £30,000 than £23,000 in 1881, and in the neigh- 
borhood of £29,000 when she was 5 years old, because vessel values Increased 
enormously during that period. 

Mr. Thompson, the London witness examlned on behalf of the Government, 
was not a vessel owner, but was a surveyor and appraiser of vessels, and a 
naval archltect and engineer ; his expérience, extending over some 40 years, 
included superintending the construction of shlps and frequently testifying 
as to ship values in the admiralty courts. He valued the Foscolla at £11,000. 
He says, however, that if the owners had gone into the market in May, 1898, 
to contract for the building of a similar steamer, the cost would, in his judg- 
ment, have been about £23,000. He bas no knowledge of the vessel beyond 
the records in Lloyds' Eegister. He said that in flxing the value, he assumed 
that she was a good dead weight carrier, that she was in a condition for sea, 
that her original boilers were still in her, and that no large structural re- 
pairs had been recently made; he had kept informed as to actual sales, and 
such sales had entered into his computation ; the fact that the vessel's boilers 
had nerver been renewed materially affected his valuation. 

Five witnesses were examined in New York on the question of value. 
Thèse were Herbert B. Saunders, John Garmey and Arthur H. Clark on behalf 
of the owners, and Horace See and Thomas Congdon on behalf of the Gov- 
ernment. Their estimâtes ranged from $70,654.68 to $52,500. 

Mr. Saunders Is a marine appraiser and surveyor for underwriters, and has 
acted in this port about 4 years. His knowledge of the Foscolla was derived 
from Lloyds' Eegister, although he said that he had seen the vessel and 'went 
across her' on one occasion. There is some confusion in his figures, since 
he changea his resuit once or twlce because of inaccurate data on which he 
had made his calculatlons, and errors in Computing, but after making his cor- 
rections he testifled that the value was £14,538, or $70,654.68. He worked 
out this resuit by applying a System of déductions for dépréciation at varions 
stages in the life of the ship. 

Mr. Garmey is superintendent of the Prince Line, which has a large number 
of cargo steamships plying in varions parts of the world, he has bought and 
sold vessels and had occasion to value and appraise them. His knowledge 
of the Foscolla was confined to shipping records and other information brought 
out in the testlmony. He valued her at $63,611.94. His method was to make 
a déduction of a certain percentage from her original cost at the date of each 
of the periodical surveys which she underwent, so that when she passed her 
last survey, in 1897, thèse déductions amounted to 40% of her original cost; 
and flnally, on ascertalning that the vessel had run in the iron ore trade in 
the last years of her existence, he took ofC 10% more, for the wear and tear 
which hè consldered incidental to this rough trade. He said that he ap- 



WATTS V. UNITED STATES. 223 

proached the subject in the attitude of an Intendlng purchaser, and valued 
the vessel at what he would hâve been wilUng to pay for her ; hls estlmate 
had not been influenced In any way because of the fact that the United States 
was at war and was procuring vessels. 

Mr. Clark was at one time a master mariner, but bas been Lloyds' agent 
in New York for the past 8 years ; he was in London from 1877 to 1890 as 
agent for New York and Boston Underwriters, and has also been chief sur- 
veyor to the Record of America and Foreign Shlpping ; he has had to do with 
the valuatlon of vessels in London and keeps posted about vessels in New 
York. He valued the vessel at £14,500 or $70,542.50. He had never seen her, 
but based hls estimate on the surveys and data furnished him. He took the 
original eost of £23,000, which, with the repairs, renewals and other expenses 
amounting to £12,000, made a total of £35,000, which the owners had spent 
on the ship ; but in the £12,000 there were a good many items which, although 
necessary, did not increase the intrinsic value of the ship, such as survey- 
ors' fées and dry docking ; for this reason he rejected 50% of the £12,000, re- 
ducing It to £6,000, which, deducted from £35,000, left £29,000; bearing In 
mind the high class of the vessel, and the fact that her earning capacity was 
not impaired (since she could earn as much money for her owners as a new 
ship of her size and type could) but considering that she was 19 years old, he 
thought it would be fair to strike off half of the amount expended on her, or 
£14,500 ; he was also mlndful of the fact that in 1898 ship property was any- 
where from 25 to 30% more valuable than at présent; he also took into ac- 
count the fact that she had her original bollers, but he found that they did 
not carry a very high pressure of steam, and for that reason they would 
probably outlast boilers carrying a higher pressure ; they had evidently been 
kept in good repair, because they were surveyed every year by Lloyds' Reg- 
ister and still held their highest class as they had originally. 

Mr. See has been a marine engineer and naval constructor for 40 years and 
has been connected with well known ship-buildlng and steamshlp firms as su- 
perlntending and constructing engineer, and from this, and other expérience 
which he set forth, has become famillar with steamshlp construction and 
values, although he sald he never had to do with the actual purchase or sale 
in the market of vessels llke the Foseolia. He placed the market value at 
£10,500, 'or $52,500.' This was based on the surveys, her original eost and 
the amount spent on her upkeep. He did not figure on an annual déprécia- 
tion, but a gênerai dépréciation, taking ail the éléments into considération ; 
the boilers showed a dépréciation which reduced the working pressure from 
CO to 80 Ibs., and that should be considered in relation to the hull, also ; the 
efficiency of the boilers would be impaired, and with the reduced pressure 
and a greater coal consumption she would go slower and it would take longer 
to make the voyage. 

Mr. Congdon has had an expérience as a marine surveyor, extending over 
a perlod of 45 years. Early in Ilfe he went through such training as was nec- 
essary to become eertifled as a shipwright and ship builder, afterwards was 
a Lloyds' surveyor at varions ports in England for many years, and for 21 
years was principal surveyor for Lloyds' Register in the United States. He 
has seen the Foseolia many tunes, and passed her on one of the surveys, which 
he thought was In 1895. He placed the market value at $52,500. He says 
that he worked out the percentage of dépréciation up to the vessel's 13th 
year, at which time he considered her worth from $60,000 to $65,000, and 
added: 'Beyond that I think it is unsafe to go, because I don't think there 
is any scale, or any man's expérience, that will place a percentage of dépré- 
ciation, year by year, for any séries of years over that time on eomparatively 
old vessels. You hâve to fall back tben on what is termed the market value, 
what a vessel would fetch if sold, by comparison with other vessels that hâve 
been sold.' He received circulars containing records of sales of vessels abroad, 
and it was by comparison with thèse and with vessels which he himself 
had valued that he determlned the market value ; he had also considered the 
condition of the freight market at the time and given the vessel the benefit 
of it ; she was a fairly good cargo steamer but there was nothing spécial 
about her ; in flxing the value, he had given her the advantage wherever he 
could, because she was old and not very marketable. 

129 F,— 15 



226 129 FEDERAL KEPORTEK. 

Where there is such a wlde différence among experlenced appralsers, it la 
not unreasonable to assume that some of them were biased to a certain es- 
tent In favor of the parties calling them, and that thelr estimâtes were un- 
consclously influenced more or less by a désire to présent a favorable case for 
their clients. But It will be seen that the lowest estimate of any witness for 
the owners is that of Mr. Garmey, $63,600, and that the highest given by a 
witness for the Government is that of Mr. Thompson, £11,000, or $53,531.50; 
a différence of some $10,000. I am satisfled that the fair market value lies 
somewhere between thèse two estimâtes. In the three years immediately pre- 
cedlng the loss of the Foscolia, Mr. Garmey had an expérience In the actual 
purchase and sale of vessels, which I think gives his testimony a practical 
value beyond that of the other experts examined before me. He testified on 
cross-examinaton as follows: 

'Q. Mr. Garmey, hâve you bought and sold iron vessels? A. Yes, sir. 

'Q. Could you say, roughly, how many? A. Well, between 1895 and 1898, 
for one flrm I bought 7, sold 9 and built 3, ranging from 3,000 tons to 6,000 
tons dead-weight.' 

Under ail the circumstances, I think that $60,000 is a falr value for the 
Foscolia, and I accordingly allow that sum." 

The exception upon which raost stress was laid in the argument 
was the one relating to interest, as follows : 

"Fourth. For that the Commlssioner dld not allow interest upon ail the 
items of the libellants' damages at the rate of six per cent, from the 28th 
day of May, 1898." 

It is contended that the disallowance of interest is unjust and ex- 
cludes the libellants from a full recovery of the damages sustained. 
Such appears to be the fact. Without interest, the recovery is only 
partial but it is too well established to admit of argument that the 
Government is not liable for interest on damage claims in the ab- 
sence of an express statutory provision or stipulation covering it. 
Bunton v. U. S. (C. C.) 62 Fed. 171 ; U. S. v. Sherman, 98 U. S. 
565. 25 L. Ed. 235; Tillson v. U. S., 100 U. S. 43. 25 L- Ed. 543; 
Harvey v. U. S., 113 U. S. 243, 5 Sup. Ct. 465, 28 L. Ed. 987; An- 
garica v. Bayard, 127 U. S. 256, 8 Sup. Ct. 1156, 32 L. Ed. 159; 
U. S. V. North Carolina, 136 U. S. 211, 10 Sup. Ct. 920, 34 L. Ed. 

336. 

Formerly, Congress adjudicated upon private claims against the 
Government, through its Committees, but the great and increasing 
volume of claims necessitated some other method of providing for 
their investigation and the Court of Claims was established for such 
purpose — Act of February 24, 1855, c. 122 (10 Stat. 612) — ^but gên- 
erai authority was never granted to pass upon collision cases, as 
they sounded in tort, and spécial législation remained necessary in 
each case of such character. St. Louis & Miss. Valley Transp. Co. 
V. U. S., 33 Ct. Cl. 251, 265. When Congress acted upon such 
claims, the Court of Claims was usually selected as its instrument 
to ascertain the facts and, in case of liability upon the part of the 
Government, to assess the damages. Interest, however, was ex- 
pressly excluded. Rev. St. p. 200 [U. S. Comp. St. 1901, p. 747] : 

"Sec. 1091. No interest shall be allowed on any clalm up to the time of the 
rendltion of judgment thereon by the Court of Claims, uuless upon a contract 
expressly stipulating for the payment of interest." 



WATTS V. UNITED STATES. 227 

The claimants hère, while conceding that if the matter had been 
referred by Congress to the Court of Claims, interest would not be 
recoverable, urge that as it has been sent to an admiralty court, 
which ordinarily allows interest as part of the damages, interest 
should be granted. The question turns upon the intention of Con- 
gress. It would seem that under the authorities cited, interest is 
not allowable, uniess expressly provided for, and there being a com- 
plète absence of any aUusion to interest in the Act, under which the 
action has been tried hère, it should not be granted. The Commis- 
sioner says in this connection: 

"Libellants elaim Interest on the various sums allowed. The District Attor- 
ney insists that Interest caunot be allowed, slnce the act under which the suit 
was brought did not expressly award interest in the event of recovery by libel- 
lants. 

It is undoubtedly true.that the sovereign cannot be sued without his con- 
sent, and that interest cannot be allowed against the United States where it 
has not manifested its consent that it should be awarded. The act by which 
Congress authorized this suit to be brought does not in express terms author- 
ize the Court to award interest, but libellants' counsel contends that It does 
so by implication, Inasmuch as it provides that the claim of the owners of 
the Foseolia be submitted to this Court 'under and in compllanee with the 
rules of said court sitting as a court of admiralty,' and that if It should ap- 
pear that the fault was with the Columbia, the court should détermine the 
amounts to be paid to the owners of the ship and cargo 'in order to relm- 
burse them for the losses so sustalned.' 

It is argued that the référence to the rules of admiralty may be elther to 
the practice on the instance side of the court or to the procédure in prize 
causes, and that in elther view interest should be allowed. 

Were this a collision suit against an Indlvidual, there Is Ilttle doubt that 
libellants would be entitled to interest under the settled practice in this court; 
and perhaps It would also be so if the procédure In prize causes were followed, 
although the only Instance cited In which Interest was allowed against the 
United States in a prize cause was the Paquete Habana, 189 U. S. 453 [23 
Sup. et. 593, 47 L. Ed. 900], and there, as counsel States, the admission of the 
court that interest was allowable against the Government was only implled. 
In the other cases cited, tlie Government was not a party, and two out of the 
three captures were by prlvateers. 

In regard to that portion of the Act which provides that the libellants shall 
be reimbursed for their losses, I agrée with libellants' counsel that for losses 
which occurred six years ago, it cannot fairly be said that the libellants are 
reimbursed when they recelve the bare principal without the least compensa- 
tion for the loss of the use of their property or its value durlng that period; 
and I should allow interest for that reason, if I thought interest could be al- 
lowed against the United States under an Act which does not expressly award 
it 

Besides a number of décisions of the Suprême Court, the District Attorney 
quotes œany expressions from opinions of the Attorney Gênerais and Comp- 
trollers of the Treasury whleh he contends support his position. Some of the 
opinions of those officiais undoubtedly go so far as to say that the award of 
Interest must be express, that it is never given by construction under an Act of 
Congress, and It seems clear that the practice has long prevalled in the depart- 
ments, of disallowing Interest on clalms presented for payment. I thlnk that 
the Suprême Court has also gone to this extent. It Is true that some of thèse 
cases (as In Tillson v. U. S., 100 U. S. 43 ['25 L. Ed. 543]), are appeals from the 
Court of Clalms, and that the subject of interest on claims prosecuted in that 
court has been regulated by an Act of Congress to the effect that no interest 
shall be allowed on any claim up to the time of the renditlon of the judgment 
thereon by the Court of Claims, uniess upon a contract expressly stipulatlng 
for the payment of Interest. Act March 3, 1863, c. 92, § 7, 12 Stat. 706 [U. S. 
Comp. St 1901, p. 747], But I am referred to no case in which the fédéral courts 



228 129 FEDERAL REPORTEE. 

have allowed Interest against the United States by construction tinder an act 
of Congress, and I have been unable to flnd any and the Suprême Court has 
expressed its views In language so positive that in my opinion an allowance 
of interest under the act which permitted this suit would be unauthorized. 
In Angarica v. Bayard, 127 U. S. 251 [8 Sup. Ct. 1156, 32 L. Ed. 159], which 
was not an appeal from the Court of Claims, the court referred with approval 
to the long line of opinions rendered by the Attorney Gênerais against the 
allowance of interest, including those in which it was stated that interest 
cannot be allowed unless expressly granted by Act of Congress. The Court 
also said: 

'The case, therefore, falls within the well settled princîple, that the United 
States are not llable to pay interest on claims against them, in the absence 
of express statutory provision to that effect. It bas been established, as a gên- 
erai rule, in the practice of the government, that interest is not allowed on 
claims against it, whether such claims origlnate in contract or in tort, and 
whether they arise in the ordinary business of administration or under pri- 
vate acts of relief, passed by Congress on spécial application. The only rec- 
ognized exceptions are where the government stipulâtes to pay interest and 
where interest is given expressly by an act of Congi-ess, either by the name 
of interest or by that of damages.' 

I therefore disallow interest" 

I consider that thèse views are soiind and should not be disturbed. 

Moreover, there is persuasive évidence that Congress intended to 
exclude the recovery of interest. While this matter was pending, 
another claim for the recovery of damages caused by collision with 
a Government vessel was introduced simultaneously in the Senate 
and House of Représentatives. The Senate bill which especially 
provided for the recovery of interest and costs, was fîrst passed. 
When the matter was taken up for considération by the House 
Committee on Claims, a report was made as follows: 

"56th Congress, House of Représentatives. Report 

Ist Session. No. 723 

The Brooklyn Ferry Company of New York. 

March 20, 1900. — Committed to the Committee of the Whole House and or- 
dered to be printed. 

Mr. Otey, from the Committee on Claims, submitted the followlng 

Report. 
(To aecompany H. R. 9499.) 

The Committee on Claims, to whom was referred the bill (H. R. 9499) for 
the relief of the Brooklyn Ferry Company, of New York, report the same 
favorably, and recommend that the same do pass, with an amendment strlking 
out the words 'with costs and interest', on page 2, line 5. 

The claim, amounting to $12,188.04, arises out of a collision which occurred 
in the East River, New York, on the Ist day of August, 1899, between the 
ferryboat New York and the U. S. S. Dolphin, a little after 6 o'clock in the 
morning. The Dolphin was bound through the East River to Newport, R. I., 
and the ferryboat was proceeding from the foot of East Twenty-third street, 
Manhattan, to her Brooklyn slip, at the foot of Broadway. A serious colli- 
sion between the vessels happened off about South Third street, Brooklyn. 
The ferry company allèges that faults on the part of the Dolphin caused the 
disaster in violating a New York law, which Is recognized and enforced by the 
United States courts, requiring steam vessels navigating the East River, when 
not bound to any of the docks or landing places therein, to keep as near as 
possible in the center of the river, and not to be propelled in excess of a rate 
of speed of 8 miles an hour ; also, In violating the United States laws for the 
prévention of collisions in not keeping a proper lookout on the forward part 
of the vessel, in not stopping and backing her engines when danger of collision 
became apparent, in not giving the proper signais with her steam whistle, and 
in not navigating In conformity with those she did give. 



WATTS V. UNITED STATES. 229 

The action of the committee In reporting the blll favorably Is regarded as 
consistent with the policy of Congress, heretofore manifestée! in extending re- 
lief to citizens suffering loss from alleged négligence of Govei-nment's agents 
in this class of cases by giving tliem an opportunity to establish their claims, 
if found to exist, in the United States courts, and as this collision happened 
within the limits of the jurisdlction conferred by law upon the United States 
district court for the eastern district of New York, and as that court has 
had a very large expérience In deallng with cases of collision upon the water, 
it is deemed the proper forum for the détermination of the questions of law 
and faet involved in this case. A further reason for conferring jurisdlction 
iipon that court in this case is found in the légal résidence of the claimant 
wlthin the district. The policy of Congress to permit citizens havlng claims 
agalnst the Government to sue in thelr own districts flnds expression in sec- 
tion 2 of the act of March 3, 1887, entltled 'An act to provide for the bringing 
of sults agalnst the Government of the United States.' " 

After this report, the Senate bill was amended to conform to it, 
by striking out the provision for interest and costs, gid a bill was 
passed by both bouses, of which the following is a copy : 

"56th Congress, 
Ist Session. H. E. 9499. 

(Report No. 723.) 

In the House of Représentatives 

March 12, 1900. 

Mr. Fitzgerald, of New York, Introduced the following bill ; whlch was re- 
ferred to the Committee on Claims and ordered to be printed. 

March 20, 1900. 

Reported with an amendment, committed to the Committee of the Whole 
House, and ordered to be printed. 

(Omit the part struck through.) 
A Bill 

For the relief of the Brooklyn Ferry Company, of New York, ownet of the 
steam ferryboat New York. 
Be it enacted &?/ the Senate and Bouse of Représentatives of the Vnited 

States of America in Congress assemMed, 

That a claim against the United States of the Brooklyn Ferry Company, of 
New York, a corporation organlzed and exlsting under the laws of the State 
of New York, with its principal place of business In the borough of Brooklyn, 
clty of New York, owner of the ferryboat New York, for damages caused by 
collision between the sald ferryboat and the United States steamer Dolphin, 
in the East River, near Brooklyn, on the flrst day of August, eighteen hundred 
and ninety-nine, may be sued for by the said ferry company, in the United 
States district court for the eastern district of New York, sittlng as a court 
of admlralty and acting under the rules governing such court, and sald court 
sball hâve jurlsdiction to hear and détermine such a suit and to enter a judg- 
ment or decree for the amount of such damages, if any shall be found to be 
due, against the United States in favor of the said ferry company, upon the 
same principles and measure of llabllity, with cocto & cd-4r:tsrest as in llke 
cases In admlralty between private parties, and with the same rights of appeal. 

Sec. 2. That such notice of the suit shall be given to the Attorney-General 
of the United States as may be provided by order of the sald court, and it shall 
be the duty of the Attorney-General to cause the United States attorney in 
such district to appear for and défend the United States. 

Sec. 3. That should damages be found to be due the sald ferry company, the 
amount of a final decree therefor shall be pald out of any money in the United 
States Treasury not otherwise appropriated." 

The matter under considération covering the Columbia-Foscolia 
collision, was introduced in the Senate and House of Représenta- 
tives before the one covering the Dolphin-New York collision but 



230 129 FEDERAL EErOETEK. 

was enacted into a law subsequently. The report of the Senate 
Committee on Claims was as foUows: 

"Calendar No. 112. 

56th Congress, Senate. Report 

Ist Session. No. 100. 

British Ship Foscolia. 

January 17, 1900.— Ordered to be printed. 

Mr. Warren, from the Committee on Claims, submitted the following 

Report. 
(To aecompany S. 189.) 
The Committee on Claims, to whom was referred the bill (S. 189) for the 
relief of the owners of the British ship Foscolia and cargo, having carefully 
cousidered the same, submit the f ollowiug report : 

A similar bill to the one now under considération was favorably reported 
by this committee last session and passed the Senate. The Senate bill was 
also favorably reported by the House Committee on Claims. 

As the committee's report (Senate report No. 1625) made last session fuUy 
sets forth the facts in the case, yonr committee adopt said report as thelr re- 
port and recommend the passage of the bill. 
The report is as follows: 

The Committee on Claims, to whom was referred the bill (S. 5000) for the 
relief of the owners of the British ship Foscolia, and cargo, beg leave to rec- 
ommend the passage of the bill for the reasons set forth in the letter of the 
Secretary of the Navy and accompanying papers. 

Navy Department, Washington, January 11, 1899. 

Sir: In response to the committee's request, contaiued in its letter of the 
9th instant, for the vlews and recommendation of the Department in regard 
to the Senate bill 5000, for the relief of the owners of the British ship Fos- 
colia and cargo, I hâve the honor to state that on the 28th of May last, at 
7.30 p. m., the U. S. S. VolumMa, while engaged in patrol duty just outside 
the harbor of New York and about 12 miles southerly and easterly from the 
Fire Island light-ship, came into collision with the British merchant steamer 
Foscolia. The ColumMa was not seriously injured, but the Foscolia suffered 
much damage and sunk nlne hours after the collision. There was no loss of 
life, the offlcers and crew of the Foscolia being taken on board the GolunMa 
and cared for and brought into port, but the Foscolia and her cargo were a 
total loss. 

It appears from the flnding of a naval board of inquiry, convened to inves- 
tlgate and report upon the circumstances attending the collision, that at the 
time it occurred and for an hour and a half prevlously a thick fog had pre- 
valled ; that the vessels were both running at reduced speed on account of the 
fog; that a proper lookout was kept on both vessels; that the Foscolia was 
exhibiting the usual lights and sounding the fog signal, but that the Oolunibia 
had ail her lights screened and was sounding no fog signal. It also appears 
from the finding of the court that no fault is imputed to any of the offlcers 
or men on board the ColumMa, and that, aside from the screening of lights 
and discontinuance of the sounding of fog signais, everything that could hâve 
been done by them to avoid the catastrophe and to minimize its conséquences, 
when it became inévitable, was done. 

The testimony adduced shows that the lookouts on each vessel sighted the 
other at about the same tlme, the two vessels being about 100 yards apart, 
and that the Columbia was so manœuvred that a glancing blow only was re- 
ceived from the Foscolia, and doubtless little Injury would hâve been caused 
either vessel but for the fact that the bow of the merchant steamer was 
caught upon one of the projecting after sponsons of the cruiser. 

Upon careful considération of the facts reported by the naval court of in- 
quiry, above mentioned, the Department is satisfled that there is at least 
reasonable ground for the contention advanced by the owners of the Foscolia 
that the collision might bave been avoided had the ColumUa shown the lights 
and sounded the fog signais usual under such conditions. The lights and 



WATTS V. UNITED STATES. 231 

signais were, however. dispensed with by the Oolwnbia on thls occasion for the 
reason tliat the Spanish fleet under tlie command of Admirai Cervera had not 
at that time been loeated and the «ruiser was then engagea in patrol duty in 
the vicinity of the most important ports of the country, New York and Phila- 
delphia, the points between which she was cruising being Fire Island light- 
ship and Delaware Breakwater, and that it was deemed essential to take ex- 
traordinary précautions, even to the extent of Incurring some hazard, in guard- 
ing against possibilities which might hâve developed at any moment. 

A collision with one o£ our war ships having occurred under such circum- 
stances when, for public reasons deemed sufBcient to justify such action, our 
vessel was disregarding the rules of the road at sea, and a valuable merchant 
steamer and cargo belonging to a friendly power being destroyed, apparently 
without contributory négligence on the part of her ofBcers and erew, it would 
seem proper that the losses incident thereto should not be allowed to rest 
upon the owners of a private vessel, but that such losses should, on the con- 
trary, be borne by the United States, provided, of course, that it shall be ju- 
dlcially determined in the courts of the United States that the facts are as 
hereinbefore outlined. 

Entertaining thèse views, and inasmuch as it appears that the blll (S. 5000) 
provides simply for the submission of ail matters of fact in the case to the 
United States district court for the southern district of New York, sitting as 
a court of admiralty, and for the payment of such amount only as may be 
adjudged to the claimants by decree of such court, the Department recommends 
the bill to the favorable considération of the committee, section 2 of the blll, 
making provision for the prompt payment of the amount which the court may 
find to be due, being deemed proper in view of the fact of the foreign owner- 
ship of the vessel lost and the desirability of avoiding in such a case the delay 
which would resuit from a resubmission of the matter to Oongress for the 
necessary appropriation. 

In this connection I désire to state that, under date of the 21st of June last, 
this Department addressed letters to the Commlttees on Naval Aflfairs of the 
Senate and House of Représentatives, respeetively, reeommendlng favorable 
action in the matter of the claim of the owners of the FoscoUa and cargo. 

The inclosures of your communication are herewith returned. 

Very respectfully, John D. Long, Secretary. 

Hon. H. M. Teller, 

Chairman Senate Committee on Claims, United States Senate. 

Navy Department, Washington, June ZO, X898. 
Gentlemen: Complying with the request contained in your communication 
of the 14th instant, I transmit herewith a press copy of the flndings of the 
court of inquiry which reeently investigated the collision between the U. S. 
S. Columbia and the steamer FoscoUa. The Department's action of this date 
upon the case is as follows : 
'The flndings of the foregoing court of Inquiry are approved. 
'With respect to the claim of the owners of the FoscoUa for damages, the 
Department will request Oongress to authorize the submission of such claim 
to the United States district court for the southern district of New York for 
détermination.' 

Very respectfully, John D. Long, Seoretary. 

Messrs. Cowen, Wing, Putnam & Burlingham, 

45 WilUam Street, New York City. 

Finding, 

On the evening of May 28, 1898, the U. S. S. Columbia, on patrol duty, was 
in latitude 40° 20' north, longitude 73° (?)' west, and about 12 miles southerly 
and easterly from Fire Island light-ship. At 7.30 p. m. the course was S. W. 
Î4 S., and her speed 6 knots per hour. A thick fog had prevalled since 7 p. m. 
and the Columbia had ail her lights screened and was sounding no fog sig- 
nal. The British merchant steamer FoscoUa was at the same time approach- 
ing on a course B, % S., at a speed which had been reduced to 71^ knots on 
account of the fog. At 7.38 p. m. the lookout on the Columbia and the man 
in the forward chains sighted the FoscoUa on the starboard bow. 



232 129 FEDERAL EEPOIITEE. 

The ofBcer 6t the deck o( the Oolùmbia sounded the steam whistle twiee, put 
the helm to starboard, and signaled the englne room for full speed ahead. 
The commanding officer of the GolumWa, coming qulekly from the emergency 
cabin, repeated the order for full speed ahead and sounded the siren, the col- 
lision occurrlng at the same moment. When the Posoolia was slghted the 
two vessels were about 100 yards apôrt. She had her starboard, port, and 
masthead lights set, yet none of thèse were visible to the Oolumbla until al'ter 
the FoscoUa's hull was seen. This is accounted for by the fact that the fog 
was very dense and daylight had not yet entirely disappeared. The FoscoUa 
slghted the Columlna at about the same tlme that she herself was seen. The 
FvncoUa's engines were at once reversed and given full speed astern. Her 
helm was put hard aport for starboard, but the distance was so short that 
lier headway was probably not stopped until the collision oceurred. The Fos- 
coUa struck the Oolmnbia at the aft sponson on the starboard side, her stem 
euttlng into five compartments above the protective deck. A considérable por- 
tion of her stem was left In the Golu'm'bîa's side. 

Measures were promptly taken for the temporary repair of the damages to 
the Golnmbia, and two of the Colwnbia's boats were sent to the assistance of 
the FoscoUa. The Golumbia remalned in the locality nine hoùrs, until the 
FoscoUa sank. There was no loss of life, the crew of the FoscoUa being taken 
on board th& GolwmMa and cared for and brought to port. The damages to 
the FoscoUa, occurring through the collision, caused her to sink. The court 
finds that the fog whistle of the FoscoUa had been sounded for upward of half 
an hour previous to the eollision, and that the whistles wëre not heard on board 
the ColuniMa until after the vessel was sighted. The évidence shovys conclu- 
sively that the captain, officers, and men of the Cohimbia were attentive to 
their duties previoua to and at the time of the collision. The same is true of 
the master, offlcers, and men of the FoscoUa. 

Opinion. 

The court is of the opinion that when the two vessels sighted each other 
the distance between them was so small and their speed and relative positions 
were such that a collision was unavoidable. If the lights of the Golumbia 
had been dlsplayed it is impossible to state positively whether they would 
hâve been visible to the lookouts on the FoscoUa before the Oohimbia's huU 
was in sight, but the court is of the opinion that the huU would hâve been 
flrst discovered. The opinion of the court is, therefore, that the absence of 
the Gohimbia's lights is not an élément in the causes which produced the col- 
lision. Notwithstanding that the fog whistle on board the FosooUa was not 
heard on board the Golumbia, the court is of the opinion that the Gohimbia's 
fog whistle might bave been heard on board the FoscoUa had it been sounded. 
The court cahnot, however, express a positive opinion on the subject, owing 
to well-known instances of sound being diverted under certain atmospheric 
conditions. 

The court having taken into considération the instructions in the case of 
the loss or grounding of a ship of the Navy, as directed by the precept, did 
not consider it necessary to call air the offlcers and crew before it, beeause of 
the fact that there had been no loss or grounding of a navy vessel. Capt. 
James H. Sands, of the Golumbia, had received positive orders from his su- 
perior ofBcer in command of the northern patrol fleet to cruise without lights. 
The object of this order was to conceal the présence of his ship from tlie ves- 
sels of a nation with which the United States was at war. [See article 44.") 
of the United States Navy Régulations.] Captain Sands directed fog signala 
to be suspended for the same purpose. The court is of the opinion that he 
was justifled in so doing. The court is of the opinion that the eollision be- 
tween the Golumbia and the FoscoUa was, under the clrcumstances of war, 
in no respect due to the fault or négligence of any of the offlcers or members 
of the crew of the U. S. S. Golumbia, and therefore It Is of the opinion that no 
further proceedings should be had in the matter. 

William P. McCann. 
Commodore, United States Navy, Retired, Président. 
Douglas Roben, 
Vnited States Navy, Retired, Judge-Advocate." 



MORSE V. ST. PAUL FIRB 4 MARINE INS. CO. .233 

The folbwing is a copy of the bill which was subsequently adopted 
by both houses; 
-SOth Congress, S. 189. 

Ist Session. (Report No. 739.) 

In the House of Représentatives, 

February 22, 1900. 

Referred to the Committee on Clalma. 

March 21, 1900. 

Committed to the Committee of the Whole House and ordered to be printed. 

An Act 

For the relief of the owners of the Brltish shlp Foscolla and cargo. '^ 

Se it enacted J)y the Senate and House of Représentatives of the Vnited 

fêtâtes of America in Congress assembled, 

Thot the claim of the owners of the Brltish steamçhip Foscolla, sunk by 
collision wlth the United States steamship Columbia on the evenlng of May 
twent3'-elghth, elghteen hundred and ninety-eight, near Fire Island light-ship, 
for and on acconnt of the loss of sald vessel and cargo, may be submitted to 
the United States district court for the southern district of New York, under 
iînd in compliance with the rules of sald court sitting as a court of admlralty; 
aod sald court shall hâve jurisdiction to hear and détermine and to render 
judgment thereupon: Provlded, however, That the Investigation of said claim 
shsll be made upon the following basls: First, the said court shall find the 
facts attending the loss of the said steamship Foscolla and lier cargo ; and sec- 
ond, if it shall appear that the responsibillty therefor rests wlth the United 
States steamship Columbia, the court shall then ascertain and détermine the 
amounts which should be paid to the owners respectively, of the Foscolla and 
her cargo, in «rder to reimburse them for the losses so sustained, and shall 
render a decree accordingly : Provided further, That the amounts of the 
losses sustained by the master, officers, and crew of the Foscolla may be in- 
cUided in sùch decree. 

Soc. 2. That should such decree be rendered In favor of the owners of the 
Foscolia and her cargo, the amount thereof may be pald ont of any money In 
the ïreasury and not otherwise appropriated." 

It will be seen that when the provision for interest and costs is 
ptricken out of the Dolphin-New York bill, there is no material 
différence between the two bills with respect to interest. Under such 
circumstances, it is not perceivable how interest can be allowed on 
the Foscolia losses, even though it is apparent to the court that 
strict justice can not be achieved in any other way. It certainly 
was not the intention of Congress to allow interest to foreign own- 
ers, when refused to citizens of this country under somewhat simi- 
lar circumstances. 

The exceptions are overruled, 

[The décision on the merits in this action will be found in 123 Fed. 
105.] 



MORSE et al. V. ST. PAUL FIRE & MARINE INS. 00. 
(Circuit Court, D. Maine. April 25, 1904.) 

No. 27. 

1. Marine iNStmANCE— Unseawoetiiiness— New Tbiai.. 

Where, in an action on a marine pollcy, a new trial was granted after 
verdict in favor of plaintifC on the uncontradicted testimony of two wit- 
nesses who testified that after the loss they made an examination by bor- 
ing through the vessel's waterways Into the ends of the beams between 



234 129 febeSàl reporter. 

the main and fore masts, and found no solld wood, but only mud and 
dirty wood, and on the second trial sucti évidence was again introduced, 
and there was no otlier évidence ofïered tending to obviate Its effect, a 
second verdict in fa ver of plaintiff sbould be set aside, and a new trial 
ordered. 

A. Nathan Williams, for plaintiffs. 

Charles E. Littkfield and Arthur S. Littlefield, for défendant. 

HALE, District Judge. This suit has already been twice before the 
court. It first came before the court on a question raised at a tria! 
before the jury. Judge Putnam rendered an oral décision, which ap- 
pears in 122 Fed. 748. The :case proceeded, and the plaintiffs re- 
covered a verdict. The défendant moved to hâve that verdict set 
aside on the ground that it was against the weight of évidence. Judge 
Putnam, speaking for the Circuit Court, rendered his décision upon 
that question in 124 Fed. 451, granting a new trial. The case then 
went to trial a second time before a jury, and the plaintiffs again re- 
• covered a verdict. The défendant now moves to hâve this second 
verdict set aside, on the ground that it, also, was against the weight 
of évidence. 

The suit is upon an open policy of marine insurance, upon a cargo, 
on a voyage from Calais, Me., to Philadelphia. The only défense sub- 
mitted to the jury was that the vessel was unseaworthy at the time 
the risk was to commence. At the second trial of the case, more tes- 
timony was submitted ; but the language of Judge Putnam, in rela- 
tion to the issues before the jury, and as to the gênerai character of the 
défense, is true, also, with référence to the case at its second trial. 
The court granted a new trial for reasons stated at page 454. After 
referring to the testimony of two men who examined the vessel, the 
court says : 

"What we rest on Is the évidence furnished by them of particular facts of 
a fundamental and serions character, which the plaintiffs made no attempt to 
contradict by proofs, the force of which, also, they hâve not undertali:en to 
obviate at bar, or in the brief which has been submitted to us. One of thèse 
witnesses testifled as f ollows : 'We bpred down through the waterways, strilc- 
ing into the ends of the lower deek beams, and, if I remember aright, into some 
of the timbers, too ; and we couldn't find any Sound wood at ail — nothing but 
mud and rotten wood.' The other one testifled as follows: 'And we bored 
down in the waterway till we struek the end of the beams, and we couldn't get 
any sound wood whatever. It was a kind of mud and dirty wood, that came 
right up into the barrel of the auger, and stayed there. They bored from the 
mainmast to the foremast.' Welay aside the characterization of what came 
up out of the borings, but we are compelled to accept the uncontradicted state- 
ments that the vessel was bored through her waterways, through the ends of 
the beams, and at some points Into the timbers from the mainmast to the fore- 
mast, and that no sound wood was found. We also observe on the fact that 
the record is absolutely lacking in évidence of any other borings made elther 
by the plaintiffs or by the défendant, and we cannot reject the well-known 
considération that this is the ordinàry'and most efficient way of determining 
whether or not a vessel is sound. Notwithstanding the observations we 
jnade with référence to the jury, it will be borne in mind that this évidence, 
as the resuit of boring the vessel, stands uncontradicted and unexplained; 
and, whatever may be the condition of her planking, a vessel with a f rame 
such as was exhlljited by thèse borings cannot be regarded as seaworthy. 
Consequently either the jury failed to properly note this évidence, or to con- 
nect it with the définition of 'seavi'orthiness' as given by us. Public policy 



MOE8B V. ST. PAUL FIRE & MARINE INS. 00. 235 

requlres that courts shall not encourage the navigation of the océan by craft 
in such a condition as this évidence sliows this vessel to liave been in. There- 
fore, on the strength of tlie testimony of thèse two witnesses, disclosing a fact 
vvhieh speaks for itself, and overlaps ail the other facts in the record, and 
which stands absolutely uncontradlcted, either directly, indirectly, or by in- 
ference, we are compelled to grant the defendant's motion. Of course, it is 
to be understood that our décision is based strictly on the case as it now 
stands, bo that on a new trial the proofs which now eontrol us may be di- 
rectly met or avoided in such manner as to put this partlcular portion of it 
beyond the reach of the court on another motion for a new trial, if one is 
made, preeisely as ail the rest of it la beyond such eontrol of the présent 
record." 

The testimony on which the new trial was granted by Judge Putnam 
was that of John W. Cann, a surveyor and inspector, and Alexander 
Fisher, a repairer and builder, of towboats, scows, and yaclits. The 
testimony of thèse witnesses consisted of dépositions, and was the 
same at the second trial as at the first. As will be seen from the quo- 
tation which we hâve made from the former décision of the court, it 
consisted of testimony of Cann and Fisher that they bored through 
the waterways into the ends of the lower deck beams, and into some 
of the timbers from the mainmast to the foremast, and that no sound 
wood was found. They also testified to further examinations at the 
"bottom part of the vessel"; but, confining ourselves only to the tes- 
timony commented upon by the court at the former trial, it is sufficient 
to say that no proofs were submitted at the second trial to contradict or 
explain that testimony, or in relation to the distinct subject-matter upon 
which the new trial was granted. Testimony was offered tending to 
show that the vessel had been new sealed and other repairs had been 
made below her under deck in 1897, and that there had been repairs 
from time to time upon her, and that she had been kept in repair. 
But ail this testimony appears to relate to her condition before the 
examination made by Cann and Fisher; and no proofs are presented 
of any boring into her timbers below her lower deck or near the places 
testified to by thèse gentlemen; so that it still remains true that the 
testimony which is commented on by the court in the first application 
for a new trial is the only testimony relating distinctly and expressly 
to the condition of the vessel's lower beams and to the lower part of 
her frame. The décision of the court in the former trial is the dé- 
cision of a judge not only of great learning in the law, but of great 
expérience in ail matters relating to vessels and maritime aflfairs. He 
found distinctly that "a vessel with a frame such as exhibited by thèse 
borings cannot be regarded as seaworthy." He laid great stress upon 
the condition of the lower part of the vessel, as shown by the testi- 
mony upon which he based his décision. 

After a careful examination of ail the testimony presented to the 
jury at the second trial, we are compelled to décide that the record 
does not show anything relating to the subject-matter on which the 
new trial was granted to materially change the facts which were be- 
fore the court at the former hearing, and which led the court to grant 
a new trial. We must corne to the same conclusion to which the 
court then came. Judge Putnam in his opinion gives a summary of 
the rulings of the court in this circuit with référence to new trials. 
From that summary, and from the current of décisions in the fédéral 



236 129 FEDERAL EEPOETEB. 

courts, it is clear that a court, in order to set aside a verdict— especîallr 
a second verdict — should be without any doubt as to what it ouglit to 
do in the premises. 

In Wright v. Southern Express Co., 80 Fed., at page 91, Judge 
Hammond, speaking for the Circuit Court, said : 

"Notwithstandlng tbere hâve been two verdicts In thls case in favor of the 
plalntiff, the court is constrainedly of the opinion that the jury may be en- 
tirely wrong in its flnding. * • • Unquestionably thls case is not one for 
the direction of a verdict, but, on the contrary, is distlnctly a case wbich 
ought to be submitted to a jury. But It does not follow, because It ought to 
be submitted to a jury, that the court should let the verdict stand, nor even 
two verdicts, possibly not three or more, if at each succeeding trial the proof 
should be preeisely the same, and no stronger for the plalntifC at the last than 
the flrst trial." 

In Felton v. Spiro, 78 Fed., at page 582, 24 C. C. A. 327, Judge Taft, 
speaking for the Circuit Court of Appeals, said : 

"We corne, then, to the question whether a fédéral court In which a jury 
has rendered a verdict bas the power to set aside a verdict, when, in ils 
opinion, it is contrary to the decided or overwhelming weight of the évidence, 
and, in the exercise of a légal discrétion, may properly do so. Upon this 
point we hâve not the slightest doubt In an elaborate and most carefully 
consldered opinion, Judge Lurton, spealîing for the court, points out the dis- 
tinction between that insufficiency in law of évidence to support an issue 
which will justify a peremptory instruction by the court, and that insufficiency 
in fact of évidence, when weighed with opposing évidence, which, while not 
permitting a peremptory instruction, will justify a court lu setting aside a 
verdict based on It, and sending the parties to another trial before another 
jury." * 

He then quotes the opinion of Judge Lurton found in Mt. Adams 
Co. V. Lowery, 74 Fed. 477, 20 C. C. A. 609 : 

"We do not thlnk, therefore, that it is a proper test of whether the court 
should direct a verdict that the court, o^i weighiug the évidence, would, upon 
motion, grant a new trial. A judge mlght, under some circumstances, grant 
one nevi trial and refuse a second, or grant a second and refuse a third. In 
passing on sucb motions, he is necessarily requlred to weigh the évidence, 
that he may détermine whether the verdict was one which might reasonably 
hâve been reached. But In passing upon a motion to direct a verdict, his 
functions are altôjether différent. In the latter case we tblnlc he cannot 
properly undertake to weigh the évidence. His duty is to take that view of 
thè évidence most favorable to the party against whom it is moved to direct 
a verdict, and from that évidence, and the inferenees reasonably and jus- 
tiflably to be drawn therefrom, détermine whether or pot, under the law, a 
verdict might be found for the party having the onus." 

In the case; before us there was much more évidence submitted at 
the second trial than at the first. There was much testimony of ex- 
aminations of the ship and of borings, but at différent parts of the 
ship from that covered by the testimony of Cann and Fisher, upon 
which the new trial was ordered. The new testimony related to ex- 
aminations and borings, but not to the condition of the ship below the 
lower deck, in her lower beams and lower framework. The proof s 
which seemed vital to Judge Putriam hâve not been met by any testi- 
mony offered at the second trial. 

The verdict is set aside. A new trial is ordered. 



iK EE GEISEB. 237 

In re GEISBR. 

In re McGKATH. 

(District Court, D. Montana. Aprll 1, 1904.) 

1. Bankettptct—Constables—Levy— Surplus— Patment. 

A constable, after having sold a debtor's property on exécution, re- 
turned the exécution as satisfied, and alleged tliat he liad returned the 
surplus to the purchaser at tbe sale. The debtor having become bank- 
rupt, his trustée demanded such surplus. The constable, on being cited 
to show cause why he should not pay the money, testified that he had 
never received the same. Held, that if he sold the property on crédit, 
or failed to collect the amount bid, he was prima facie liable for the 
surplus to the exécution debtor, and was therefore properly adjudged to 
pay the same to the trustée. 

In Bankruptcy. 

Sanders & Sanders, for Drake, trustée. 
Davies & Haskins, for McGrath. 

KNOWLES, District Judge. In this case it appears that there was 
a suit brought in the justice's court of Silver Bow township, Silver 
Bow county, Mont., before John Doran, a justice of the peace, by W. 
M. Montgomery & Co., against said George F. Geiser. The com- 
plaint and an affidavit and undertaking in attachment were filed Au-' 
gust 27, 1903, and the summons and writ were duly issued and placed 
in the hands of John McGrath, constable, for service, and he executed 
the writ of attachment by levying the same, and taking into his pos- 
session certain personal property belonging to the said défendant, 
George F. Geiser, consisting of fixtures, tools, and appHances used by 
said défendant in connection with a butcher shop and business, and 
also upon some perishable goods, consisting of fresh and sait méats, 
fisL, etc. During the pendency of this suit and before a judgment was 
entered therein, said McGrath, as constable, sold certain of the prop- 
erty as perishable, and realized $67.50 from the sale thereof. Out 
of the sum realized, he paid $8 as compensation to a keeper of the 
property, and the balance, $59.50, he paid over to Justice Doran, to 
await the final disposition of the suit. On September 2, 1903, a 
judgment was made, given, and entered in favor of said W. M. Mont- 
gomery & Go., plaintiffs in said suit, and against said George F. Geiser, 
défendant, for the sum of $197.49 damages and costs, and on September 

2, 1903, an exécution was duly issued upon said judgment and deliver- 
ed to the said John McGrath, constable, and under it said McGrath 
sold the remaining personal property of the défendant at public sale on 
September 8, 1903, to one À. P. Henningsen, for $400, who was the 
highest and best bidder therefor, and said McGrath delivered said 
property to said Henningsen. Pending the suit one Charles Hartneck 
filed his labor or wage claim under the statute, which claim was al- 
lowed in the sum of $62.50. Out of the moneys realized from said 
sale under said exécution, the said McGrath paid in the sum of $209.19, 
the amount of said judgment, costs, and interest, and retained $19.64 
for his expenses and costs, and paid the labor claim of said Hartneck, 



238 129 FEDBEAL REPORTEE. 

in the sum of $62.50, and returned said exécution as satisfied. The 
total amount of the judgment, costs, interest, accruing costs, and of 
said labor claim was $291.33. This would leave a balance in his hands 
of $176.17, and this amount, in his return made by said McGrath, he 
allèges, was paid back to said A. P. Henningsen. In the meantime, and 
on the 23d day of September, 1903, upon a pétition in involuntary bank- 
ruptcy proceedings fil'ed in this court by certain of his creditors, said 
George F. Geiser was duly adjudged a bankrupt, and Frederick H. 
Drake was on the I2th day of October, 1903, duly appointed as the 
trustée of the estate of said bankrupt, Geiser; and, upon qualifying 
as such trustée, said Drake made demand upon said McGrath for the 
payment to him of the said sum of $176.17, as a part of the estate of 
said bankrupt. Said McGrath failed, neglected, or refused to pay said 
sum, or any part thereof, to said Drake, who made complaint to "Thomp- 
son Campbell, one of the référées in bankruptcy of this court, to whom 
the said bankruptcy matter had been referred; and thereupon said 
Campbell issued an order to show cause, requiring said McGrath to 
appear before him and show cause why he should not pay over and 
surrender to said Drake the balance of $176.17 in his hands as the pro- 
ceeds of his exécution sales. This order was duly served upon said 
McGrath, and he appeared in person and by attorney before the réf- 
érée and answered, and asked to hâve the proceedings on said order 
continued, in order that he might make amendment of his return on 
-said exécution. As to what matters he expected to amend, said return 
does not appear. He seems to hâve had plenty of time in which to 
amend his return, but no amended return was presented to the court. 
Upon the hearing had before the référée, said McGrath was ordered 
to pay said balance to the trustée. He again failed to pay over this 
balance, and thereupon he was adjudged to be in contempt, and the 
matter was certified to this court by said référée. The évidence of 
the défendant shows that he received the sum of $67.50 specified above, 
and that he sold the remainder of the bankrupt's property for $400. 
He dénies, however, that he received this $400, or any part thereof. It 
also appears that he delivered the said property so sold by him to said 
Henningsen. 

A sheriff who fails to collect the amount of a bid made at an exécution 
sale is prima facie liable to the exécution debtor as for a neglect of duty. 
Murfree on Sheriffs, § 999a. If an officer sells the property on crédit, 
without authority, he and his sureties are liable for ail loss. Murfree, 
supra, § 993a. To the same effect is Maddox v. Rader, 9 Mont. 126, 
22 Pac. 386. It appears from thèse authorities that if the défendant in 
this case sold the property to Henningsen on crédit, or in any other 
way than for cash, he made himself liable personally for the amount 
of the bid made by said Henningsen. In fact, he would be estopped, 
under such circumstances, to claim that he never received any money 
for the property. The effect of this would be to place the défendant in 
the same position in which he is found by his return upon the exécution, 
and I am not called upon to détermine whether or not défendant, as 
between himself and the trustée of the bankrupt's estate, was not ab- 
solutely bound by his return. In law, the défendant would be found 



EX PARTE HOUGHTON. 2E9 

to have $176.17 of money in his possession, which, under the statute 
lavv, he is required to account for. He did not pay the same over to 
the bankrupt, Geiser, nor to the justice's court in which the aforesaid 
action was pending, and he has not paid the same over to the trustée 
of the bankrupt's estate. Having been ordered to pay said sum to the 
trustée by Thompson Campbell, Esq., one of the référées in bank- 
ruptcy of this court, and, having failed to do so, adjudged in contempt, 
and the matter certified up to this court. The défendant now urges 
that he should not be punished for contempt, because he is a poor man, 
with a large family, and unable to comply with the orders of the court. 
The defendant's afhdavit upon this point is unsàtisfactory. In his re- 
turn to the exécution he stated that he had paid the money over to Hen- 
ningsen. In his évidence before the référée he swears that he never 
received the money. If he paid this $176.17 over to Henningsen with- 
out any order of court, or if he failed to collect this sum from Henning- 
sen at the sale made to him, he has voluntarily placed himself in a 
position where he cannot comply with the orders of the court, and thus 
beconies liable to its command to perform his duty, See Rapalje on 
Contempts, § 17; Galland v. Galland, 44 Cal'. 475, 13 Am. Rep. 167; 
People V. Salomon, 54 111. 39. It does not appear that the défendant 
cannot collect this money from Henningsen, and there is no reason why 
he should not make some endeavor to do so. Henningsen has no right 
to this money, according to his statement. I think, therefore, the judg- 
ment and order of the référée that the défendant be found guilty of 
contempt must be affîrmed. If at any time it should satisfactorily ap- 
pear that the défendant is absolutely unable to pay over this money, the 
court will consider it. 

It is therefore ordered that the défendant, John McGrath, be, and 
he is hereby, required to pay the said balance of $176.17 to Frederick 
H. Drake, the trustée of the estate of George F. Geiser, bankrupt, 
within live days, or if he shall fail within said time to make such pay- 
ment, that said John McGrath be committed to the custody of the 
United States marshal for the District of Montana, and be imprisoned 
until he shall f ully comply with this order ; and that said McGrath pay 
the costs of this proceeding. 



Ex parte HOUGHTON. 

(Circuit Court, D. Maine. April 9, 1904.) 

No. 162. 

1. Armt and Navt— Enlistment or Minces— Necessitt of Paeents' Con- 

sent. 

Under the làws o( tlie United States a minor cannot lawfully be en- 
listed in any branch of the military or naval service wlthout the consent 
of his parents, and one who has so enlisted by misrepresenting his âge 
will be discharged by writ of habeas corpus at suit of his- parents. 

2. Same— DiscHABGE on Habeas Cobpus— Jxieisdiction or Civil Coubt 

FiEST Attaching. 

Where a pétition for habeas corpus for the discharge of a minor from 
the military service on the ground that he enlisted wlthout the con- 



240 129 FEDEKAL EEPOKTEB. 

sent oî his parents has been served, the court is not deprîvecl of Jurîs- 
dictlon to dlscharge the minor by his subséquent arrest by the mllitary 
authoritles on the charge of fraudulent enlistment 

Habeas Corpus. 

Frank D. Marshall, John C. Stewart, and J. M. Maloney, for peti- 
tioner. 

Isaac W. Dwyer, U. S. Dist. Atty. 

HALE, District Judge. This is a pétition of Patrick Houghton 
for habeas corpus. It is heard on an agreed statement of facts, as 
follows : 

"It Js agreed on behalf of the petitioner and of the United States that Wil- 
liam Houghton was enlisted at Klttery, Maine, June 6, 1903, by Captain R. N. 
Lane, for four years; that at the date of said enlistment he represented bis 
âge to be twenty-one years and six months; that he has been in the service 
of the United States from said 6th day of June, and is now in said service; 
tbat he is the son of Patrick Houghton and Mary T. Houghton, citizens of 
Massachusetts; that said William Houghton was born In Boston, August 10. 
1884; that he enlisted without the consent of his parents or guardian; tbat 
said William Houghton is now under arrest pending charges of fraudulent 
enlistment, and that said arrest was made and charges preferred since the 
service of the pétition for habeas corpus In thèse proceedings." 

The statutes of the United States make it clear that it is the will 
of Congress that minors shall not be enlisted in any branch of the 
service without the consent of their parents. In the case of Mc- 
Nulty and Clément, 2 Low. 270, Fed. Cas. No. 8,917, Judge Lowell, 
in this circuit, held that under the laws of the United States a minor 
cannot be lawfully enlisted in the marine corps without the consent 
of his parents. Under section 11 17, Rev. St. U. S. [U. S. Comp. 
St. 1901, p. 813], Congress requires the written consent of parents 
for the enlistment of minors in the military service. Under the stat- 
utes referred to in Judge Lowell's décision, just cited, Congress has 
made clear its intention that the consent of the parents is necessary 
for the enlistment of minors in any branch of the United States 
military or naval service. The décision of Judge Lowell, which we 
hâve quoted, applies distinctly to the enlistment of minors in the 
marine corps. It appears by the agreed statement in the case at 
bar that the minor, William Houghton, is now under arrest pend- 
ing charges of fraudulent enlistment, and that said arrest was made 
and charges preferred since the service of the pétition for habeas 
corpus in thèse proceedings. This arrest refers clearly to an arrest 
by the military authorities, but it appears afifirmatively that such ar- 
rest was made and the charge preferred since the jurisdiction of 
the United States attached in thèse proceedings. The rule of the 
fédéral courts in this circuit touching this matter of jurisdiction is 
settled by Judge Putnam in Re Carver (C. C.) 103 Fed. 624, where, 
at page 626, Judge Putnam says: 

"True it Is that it seems to be well settled by the décisions, and it is also 
consonant with the ruies of law framed to prevent unseemly confllcts between 
différent judicial tribunals, that, ordinarlly, where charges hâve been pre- 
ferred, and the court-martial having jurisdiction has been ordered, and the 
person charged has been held to answer, the jurisdiction which attaches la 



UNITED STATES V. CLAKK. 241 

favor of the court-martial will exclnde that of a civil tribunal In whlch pro- 
ceedings for a writ of habeas corpus may afterwards be commenced. Under 
such circumstances the civil tribunal must walt until the court-martial has 
eoncluded its proceedings, and even until the sentence, if any, imposed by the 
court-martial, has been worked out." 

But in the case at bar the military authorities did not take any 
action until the jurisdiction of this court under thèse proceedings 
had attached. In the case of George F. Harris, petitioner for writ 
of habeas corpus, recently decided in the Suprême Court of the Dis- 
trict of Columbia, the court found that when Harris, the minor, en- 
listed in the marine corps of the United States, he was a minor 19 
years old, and was living at home with his father; that the arrest 
by the military authorities did not occur until after the service of 
the writ of habeas corpus had been made. The court discharged 
the minor. In the case before us it is clearly the duty of this court 
to exercise its jurisdiction and to grant the prayer of the petitioner. 

The decree must be: Prayer of petitioner granted; writ of ha- 
beas corpus to issue, returnable forthwith. 



UNITED STATES v. CLARK et al. 

(Circuit Court, D. Montana. April 1, 1904.) 

No. 209. 

1. Lands— Entet— Fratjd— Pleading. 

A Mil by the United States alleged that public land in controversy had 
been entered by certain persons, acting in collusion with défendant C, 
for the purpose of obtainlng title to the land and conveylng the same to 
défendants ; that the entries were made by fraud and misrepresentation, 
to whlch C. was a party ; that C. acted for himself and the other défend- 
ant, who well knew, at the time the land was conveyed to hlm by C, ail 
the facts constituting the fraud, and that the land had been entered in 
violation of the laws of Congress, and that the entrymen had entered the 
same for hire, on spéculation, for the purpose of enabling défendants to 
obtaln title in violation of the laws of Congress. Held, that such bill 
stated a sufflcient cause of action against both défendants. 

2. Same— Pabties. 

The entrymen by whom the land had been conveyed to défendants be- 
fore patents issued were not necessary parties to the bill. 

3. Same— MtTLTiFABiousNESS. 

Where several entrymen on public land eonspired with défendant C. to 
make their entries for the benefit of C. and his codefendant, to whom the 
land was subsequently conveyed, a bill to set aside such entries as fraud- 
ulent was not multifarious in that each of such entries was a sépara te 
transaction. 

See 125 Fed. 774, 

P. C. Knox, Atty. Gen., M. C. Burch and F. A. Maynard, Spécial 
Asst. U. S. Attys., and Cari Rasch, U. S. Atty. 

W. M. Bickford and W. A. Clark, Jr., for défendants. 

KNOWLES, District Judge. The United States, as complainant, 
sues the défendants, William A. Clark and Robert M. Oobban, in 
129 F.— 16 



242 129 FBDEEAL REPORTEE. 

this action, to déclare void, and to déclare canceled ahd held for 
naught, certain patents for certain lands situated in the District of 
Montana, and purchased by some 50 persons from the United States 
under the so-called "Timber and Stone Acts"; and also to compel 
the said Clark to release and convey his purchased title, and ail in- 
terest claimed by him in and to said lands, to the United States. 

To the bill of complaint fîled herein the said défendants hâve in- 
terposed separate demurrers, the grounds thereof being substan- 
tially the same, and are : (i) That said bill of complaint does not 
State facts sufficient to constitute a cause of action, either at law 
or in equity in favor of the complainant and against the défendants. 
(2) That there is a want of proper parties défendant to said bill, in 
this : That the said bill charges a joint conspiracy between several 
différent parties, and allèges an agreement and contract with cer- 
tain parties who made entry or entries under a law of the United 
States approved June 3, 1878, 20 Stat. 88, whereby the said parties 
agreed to sell and transfer their lands before making entries of said 
lands under said law. That Susan Alford and 49 others are named 
as parties who entered said lands under said law, and that each com- 
mitted a fraud against the United States in the making of their said 
entries. (3) That the bill is multifarious and improperly confounds 
distinct demands, in that each of the entry men and women men- 
tioned in said bill of complaint made a separate and distinct entry 
of a particular tract of land, which is set forth and described in said 
bill, and that each of the said entries is based upon a separate and 
distinct set of facts, and has no relation to any other entry men- 
tioned in said bill. 

Suiïîcient facts are set forth in the bill to show that the several 
parcels of land entered bythe entry men and women named in the 
bill were procured from the United States by fraud and misrepre- 
sentation, and that the said Cobban was a party to theSe frauds; 
and it is also stated that the said Cobban acted for himself, and for 
the use and benefit of Clark. It is also charged that the défendant 
Clark well knew, in a gênerai way, if not in détail, at the time the 
said conveyances to ail of said lands were made to him by the said 
Cobban, the facts constituting the frauds alleged to hâve been com- 
mitted by the said entry men and women and said Cobban, and 
well knew, and had good cause to know, that the said lands had 
been entered in violation of the laws of Congress under which the 
said entries were made, and that the said several parties had entered 
the same for hire and upon spéculation, and for the purpose of en- 
abling him, the said défendant Clark, through the said Cobban, to 
procure title from the United States to the same by évasion and vio- 
lation of said laws of Congress. Under thèse allégations it would 
appear that there is a good cause of action against both Clark and 
Cobban. Cobban, it appears from the bill, obtained a conveyance 
of the said lands from the entry men and women, and conveyed 
the same to Clark, and it is claimed they were acting together in 
the procuring of title to thèse lands. Considering thèse allégations, 
I hold that the bill does state facts sufficient to constitute a cause of 
action. 



UNITED STATES V. CLARK. 243 

Under the second ground, that there is a want of proper parties 
défendant to the bill, the claim is made that ail the persons who 
made the entries named in the bill should hâve been joined with 
Clark and Cobban as défendants. The bill shows that patents were 
issued to thèse parties, that before patents issued they conveyed the 
lands to Cobban, and that Cobban subsequently conveyed the same 
to Clark. Under and by virtue of the statute law of Montana, the 
title subsequently obtained by thèse parties inured to the benefit of 
Clark. A fraudulent grantor of land, as he has no further interest 
therein, is not deemed a necessary party to a suit brought to set 
aside the conveyance. i Beach, Mod. Eq. Pr. § 72; Dunn v. Wolf 
et al. (lowa) 47 N. W. 887. In the case of Northern Pacific R. R. 
Co. V. Kindred (C. C.) 14 Fed. IJ, an action was brought to set aside 
certain deeds fraudulently obtained for certain lands of the North- 
ern Pacific Railroad Company. In that case it was insisted that the 
parties who first received a conveyance of thèse lands, and after- 
wards conveyed them to Kindred, should hâve been made parties. 
In considering this matter, Judge McCrary said: 

i<« * • ijijjg jjjjjy necessary parties are the persons who hâve some prés- 
ent interest in the controversy, and against whom the complainant has a rigbt 
to decree for relief. The persons who are alleged to hâve been used as the 
instruments of the frauds, and who hâve, in pursuance of the eonspiraey, con- 
veyed to others the title which was once vested in them, are not necessary 
parties." 

See, also, Cherokee Nation v. Hitchcock, 187 U. S. 294, 23 Sup. 
Ct. IIS, 47 Iv. Ed. 183. 

The next point presented is that the bill is multifarious. The 
claim is made that each one of the entries made by each one of the 
parties making the same is a separate and distinct act, based upon 
a separate and distinct set of facts, and has no relation to the other 
entry mentioned in said bill. In the case of Hayden v. Thompson, 
71 Fed. 60, 17 C. C. A. 592, it was held that, where a bill charged 
that separate stockholders of an insolvent national bank had received 
«eparate dividends, they could be charged in a bill in equity by its 
receiver with holding the money each had received in trust for the 
creditors of the bank. In that case each stockholder had received 
a separate dividend upon a separate amount of stock. That, upon 
the facts, would seem to be a stronger case in support of the conten- 
tion of the défendants than the one at bar. The Circuit Court, on 
the argument on the demurrers, held, in favor of the défendants, to 
the eflfect that the bill was multifarious (67 Fed. 273) ; on appeal, 
the décision of the court below was reversed. In N. P. R. R. Co. 
V. Kindred, supra, it was held that, where the bill charged a eon- 
spiraey entered into for the purpose of obtaining the complainant's 
lands for less than their value, through the fraud of its agents, a 
bill was not multifarious because each particular transaction charged 
is several in character and distinct from ail the others. In the case 
at bar a eonspiraey is also charged. In i Beach, Mod. Eq. Pr. § 
134, the author says: 

"There is no such gênerai prlnciple that distinct matters between the same 
parties, and who sue or are sued, cannot properly be united In the same bill. 



244 129 FEDERAL REPORTER. 

On the contrary, there are several cases in whîch It has been held that matters 
of the same nature and between the same parties, although arising out of dis- 
tinct transactions, may be joined in the same suit." 
See, also, Id. § 129. 

The suit in this case is against two défendants, while the transac- 
tions by which title was obtained from the United States were sepa- 
rate; still the cases are ail much alike; the grounds for relief in 
each case are the same, and the uniting of ail of them in one action 
prevents a multiplicity of suits, and I can see no good reason for 
requiring 50 separate suits when one will accomplish the same purpose 
fully. As to multifariousness it is said: "It is almost universally 
declared that every case must be governed by its own circumstances, 
and the question is left to the discrétion of the court." Section 115, 
Beach, supra. 

For the foregoing reasons, the défendants' demurrers must be, 
and the same are hereby, overruled. 



McFARLAND v. STATE SAVINGS BANK et aL 

(Circuit Court, D. Montana. April 1, 1904.) 

No. 225. 

1, Dbcbee Pbo Confesso— Vacation. 

Where a bill was talcen pro confesso on demurrers being treated as 
Insufflcient for failure of the parties to make the affldavit required by eq- 
uity rule 31, but no final decree could hâve been entered in favor of the 
complainants until one of the défendants vrho had not been served had 
been brought in, and défendants' failure to bave the demurrer verifled 
was the resuit of a mistake caused by lack of knowledge as to the proper 
mode of procédure in equity, défendants, on presentlng answers on the 
merits, should be entitled to bave the decree pro confesso vacated on pay- 
ment of the costs of the suit to the date of their application. 

Alex Mackel, for plaintifif. 

McBride & McBride, for défendants. 

KNOWLES, District Judge. The complaînant, G. O. McFarland, 
filed his bill of complaint in this court on October 12, 1903. AU o£ the 
défendants named in the bill, except Lulu F. Largey, were duly served 
with process, and appeared in the case, and filed demurrers to the 
bill, alleging several grounds of objection to the same. The solicitors 
for the appearing défendants certified that, in their opinion, their de- 
murrers so interposed were well founded in point of law ; but no affi- 
davit was made by any of the défendants that said demurrers were not 
interposed for delay, as required under the provisions of equity rule 31 
of the Suprême Court. 

Complainant caused thèse demurrers to be set down for a hearing. 
Subsequently, however, but during the présent term of court, he en.- 
tered an order for taking the bill pro confesso. This action on the 
part of complainant treated the demurrers as of no force, on account 
of the failure of the parties to make the affidavit required by equity 
rule 31, supra. The appearing défendants now ask to be let in to file 
answers to the merits of the suit. 



STATE SAVINGS BANK. 245 

It îs évident from an inspection of the bill that no decree fully de- 
termining ail the rights of ail the parties to this controversy can be 
had until Lulu F. Largey, one of the défendants herein, has been served 
with process. Under thèse circumstances, the complainant, at présent, 
can hâve no final decree as against thèse appearing défendants. 

As to the i,ooo shares of stock which it is charged should be held 
in trust for complainant, it does not appear as to who holds the same, 
be it Liilu F. Largey, Thomas M. Hodgens, or the State Savings 
Bank. It appears that this stock was assigned to Lulu F. Largey, and 
that she was to use the same as collatéral security in obtaining a loan 
of money from the State Savings Bank. Whether it was so used is 
not disclosed by any allégations contained in the bill. Whether the 
State Savings Bank now holds said stock as a pledgee is also not dis- 
closed by the bill. 

There are certain interrogatories propounded in the bill to be an- 
swered by the défendants, but, in the matter of presenting thèse inter- 
rogatories, complainant fails to conform to the requirements of equity 
rule 41. No mémorandum is found at the foot of the bill, requiring 
each of the défendants tb answer any spécifie interrogatories. There 
are a good many other defects in the bill that might be noticed, which 
might cause some confusion in making answer to the same. 

The défendants claim to hâve been surprised and to hâve made a 
mistake on account of rule 1 1 of this court, which requires a demurrer 
to be certified to by counsel, as in equity rule 31, but does not require 
an afiidavit of good faith by one of the parties interposing the de- 
murrer. This rule is placed under the head of common-law rules, and 
should not hâve been confounded by counsel with the rules governing 
equity proceedings. On account of the confusion made by this rule. 
it has been abrogated by the Circuit Court several years ago. Still it 
has been quite a common mistake on the part of attorneys who hâve 
been educated under the code system of pleading to fall into this er- 
rer. In 5 Ency. PI. & Pr. 1014, it is said: "Mère orders pro con- 
fesse are opened, much as a matter of course, upon a showing of sur- 
prise and a meritorious défense." Again, Id. p. 1015 : "A decree pro 
confesso may be opened, and the défendant let in to answer, where his 
failure to appear or answer was due to the négligence of his solicitor." 
Whilst I cannot say in this case that there was any négligence on the 
part of the solicitors for thèse défendants, still there was a mistake, 
by reason of a lack of knowledge as to the proper mode of procédure 
on the equity side of this court, occasioned, perhaps, by the aforesaid 
common-law rule 11 of this court. The défendants hâve presented 
separate answers on the merits, and I think the case ought to be heard 
on the merits. It is a case involving a very considérable amount, and, 
under the circumstances presented, calls for some leniency and liberal- 
ity on the part of the court. Leave is therefore given to the défend- 
ants to file their answers, upon the condition, however, that they pay 
the full amount of the costs thus far incurred in this suit. 



246 



129 FEDERAL REPORTER. 



MIDVALB STEEL CO. v. CAMDBN IRONWORKS. 

(Circuit Court, E. D. Pennsylvanla. March 30, 1904.) 

No. 53. 

1. Pleadino — SnpFiciENCT OF Déclaration— Motion for Judgment. 

A plaintif!: is not entltled to judgment on tbe pleadings for the price 
of articles whieli plaintifC was to manufacture and deliver to défendant. 
where It appears from the face of the letters alleged to constitute the 
contract, which are set out, that the priée was not to be due until a 
certain time after the articles were delivered, and it does not appear that 
they ever were so delivered. 

On Rule for Judgment for Want of a Sufficient Affidavit of Défense. 

Thomas Leaming, for plaintiflf. 

H. Gordon McCouch and R. C. Dale, for défendant. 

J. B. McPHERSON, District Judge. Upon this motion I cannot 
take into account the correspondence that passed betweeti the parties a 
year and a half after the contract was made. It may be compétent 
évidence on the trial for some purpose, but it certainly does not form 
part of the contract itself, and is not properly on the record. Confining 
myself, therefore, to the other writings that are attached to the plaintiff's 
statement, I find an apparently unqualified agreement that the price 
of the forgings was not to be due until 90 days after they were delivered 
f. 0. b. at Cincinnati, Ohio. As it is undisputed that no such delivery 
has been made, the plaintiff's suit seems, therefore, to be prématuré. 
Of course, a différent situation may develop on the trial of the case. I 
am speaking now only of the effect of the two letters dated January 27 
and February 20, 1902, and of the spécifications dated January 25, 
1902. The letters are as follows: 

"Phlladelphla, January 27, 1902. 

"The Camden Ironworks, Camden, N. J. — Gentlemen : Referring to your 
valued favor of the 3rd instant, in which you enclose blue prints of shafta 
and Connecting rods, your Nos. 8314, 8320 and 8301, which are duplicates of 
drawlngs furnished us some time ago, also a duplicate copy of the spécifica- 
tions for shafts and rods, ail as requested by us of your Mr. Lewis. We hâve 
gone carefully over the verbal quotatlon made by our Mr. Bowen, and we now 
submit the foUowing priées : 4 Cranb shafts, finished complète, as per B/P 
0-S301, 13%c. per Ib. 4 1. P., 4 H. P. and 4 L. P. Connecting rods ; finished 
complète as per B/Ps # 8320 and # 8314, 23y8C. per Ib. 



10c. per fb. 



4 Connecting rods, 
24 Piston rods, 
48 Distance rods, 
12 Couplings, 

4 Shafts 'A', 

4 " 'B', 
12 Main crosshead pins, 

4 Air pump crosshead pins, 

"The above priées are for forgings delivered Cincinnati, O. 
"Hoping they wIU warrant you placing your order with us, we are, 

"Very truly yours, The Midvale Steel Co. 

"Terms : Cash 90 days. by Henry D. Booth. 

"Camden Iron Works, 
"Accepted subject to spécifications H. G. H, Jarr." 

accompanyiug this proposai." 



finished 


complète, 


as per 


B/P 0-8297 


** 


" 


n ^i 




8334 


tt 


•* 


t* Il 


1 


8334 


t* 


t( 


** " 


1 


8334 


•• 


II 


tt it 


t 


44/80 


•< 


M 


t» « 




44/80 


II 


It 


It II 


< 


44/81 


13, " 


II 


Il It 




4"V81 



IN EE LINCOLN. 247 

"Order No. 3764. Camaen, N. J. 2/20 1902 

"Midvale Steel Co., Nleetown, Pa. : Please send the followlng wlth a Bill, 
numbered as above : 4-Crank shafts flnished and fltted up complète as per our 
priEt 024-8301 herewith, price $.13% per Ib. F. O. B. Cincinnati, Ohlo. Terms 
cash 90 days after delivery. As per your quotatlon of January 27th, 1902. 
Patterns when used to be the property of 0. I. W. and dellvered Camden Iron- 
works, Camden, N. J. 

"Ail the above to be strlctly In accordance to spécifications. For delivery 
see spécifications. For Camden Ironworks 

"Hamlîn." 

The relevant parts of the spécifications are as follows : 

"The whole of the above to be of flrst-class materlal and workmanship, and 
must be to the complète satisfaction of the Camden Ironworks and the en- 
gineer of the City of Cincinnati or his représentatives. * • * Ail the 
above to be dellvered f. o. b. cars at California Pumping Station, City of Cin- 
cinnati, Ohlo." 

"Accepted accompanying proposai to the Camden Ironv^orks dated January 
27th, 1902, and accepted by Camden Ironworks. 

"Accepted for the Midvale Steel Company, 
"by Henry D. Booth 

"Camden Ironworks, 
"H. G. H. Jarr." 

The rule for judgment for want of a sufficient afRdavit of défense is 
discharged. 



In re LINCOLN. 

(District Court, N. D. California. February 8, 1904.) 

No. 13,216. 

1. Indians— Allotted Lands—Ceimes— State Coixbt— Jubisdiction. 

Where land was allotted to an Indian under Aet Cong. Oct. 1, 1890 (26 
Stat 658), providing for the réduction of the Round Valley Indian Réserva- 
tion, and authorizing the agricultural lands therein to be surveyed and 
allotted to Indians residing thereon in severalty, such allotment did not 
operate to exclude the land from the réservation so as to confer jurlsdic- 
tion on the courts of the state In which It was located to prosecute the 
allottee for a violation of the state's game laws committed on the land 
allotted to him. 

Marshall B. Woodworth, U. S. Atty., for petitioner. 
Pillsbury, Madison & Sutro, for respondent. 

DE HAVEN, District Judge. The petitioner is an Indian ward of 
the government residing upon the Round Valley Indian Réservation, 
situate in the county of Mendocino, in this state. On January g, 1904, 
in the justice's court of Round Valley township, county of Mendocino, 
state of California, he was convicted of the alleged offense of having 
deer méat in his possession on the I4th day of November, 1903, in said 
Round Valley township, contrary to the Pénal Code of this state. It 
is conceded that the alleged offense, if any, was committed at the home 
of the petitioner, on land which has been allotted to him by the govern- 
ment, under the provisions of the act of Congress approved October i, 
1890, entitled "An act to provide for the réduction of the Round Valley 
Indian Réservation, in the state of California, and for other purposes" 
(26 Stat. 658), and that such land was within the boundaries of the 



248 129 FEDEBAL EEPOETEB. 

Round Valley Indian Réservation as they existed at the date of the 
passage of said act. 

The petitioner is a ward of thé government, and tlie légal title to the 
land which has been allotted to him is still in the United States, and the 
act of allotment did not hâve the efïect of excluding such land from the 
limits of the Round Valley Indian Réservation. Such being the facts, 
there can be no doubt that the justice's court was without jurisdiction 
to enter the judgment under which the imprisonment of the prisoner 
is sought to be justified. In re Blackbird (D. C.) 109 Fed. 139; State 
V. Campbell et al., 53 Minn. 354, 55 N. W. 553, 21 L. R. A. 169 ; United 
States V. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228. 

Petitioner discharged. 



HORAN V. HUGHES. 

(District Court, S. D. New York. May 15, 1903.) 

1. CoNTRACTS— Défense of Agenct. 

Défendant, to sustaln the défense against hls contract wîth plalntlfC 
that he was actlng as agent, must prove that he dlsclosed the name of 
his principal. It Is not enough that plaintlff supposed he was aeting for 
some one not disclosed. 

In Admiralty. 

Peter S. Carter, for libelant. 
James J. Macklin, for respondent 

HOLT, District Judge. Hughes made the contract with Horan. 
He is therefore presumably responsible on it. His défense is, in sub- 
stance, that he was aeting as agent for a principal. To maintain such 
a défense, he must prove that he disclosed the name of his principal. 
It is not sufficient that he was aeting as agent, or that the other party 
to the contract supposed he was aeting as agent, if he did not know who 
the principal was. De Remer v. Brown, 165 N. Y. 419, 59 N. E. 129; 
Tew v. Wolfsohn (Court of Appeals) 66 N. E. 934. The évidence in 
this case, in my opinion, preponderates that Hughes either chartered 
Horan's boat himself, or that, if Horan supposed Hughes was aeting 
as agent, he did not know who Hughes' principal was. 

There should be a decree for the libelant for the amount demanded in 
the libel, with costs. 

H 1. See Principal and Agent, vol 40, Cent DIg. §§ 501, 522. 



UNITED STATES V. ORIENTAL AMERICAN CO. 249 

UNITED STATES v. ORIENTAL AMERICAN CO. 

(Circuit Court, D. Oregon. March 5, 1904.) 

No. 2,784. 

1. CusTOMS DuTiEs— Classification— Refined Cocoanut Oïl— Cocoa-Btjt- 

TEKINE. 

As to certain coeoanut cil of tlie melting point of 70° to 75° F., whicli 
bas been purified and rendered suitable for culinary purposes and the 
manufacture of high-grade soaps, and wliicli is not susceptible of the 
same uses as cocoa-butter, held, that the article is not subject to duty 
as "cocoa-butterlne," under paragraph 282, Tariff Act July 24, 1897, c. 
11, § 1, Sehedule G, 30 Stat. 172 [D. S. Comp. St. 1901, p. 1652], but is free 
of duty under paragraph 626 of said act (section 2, Free List, 30 Stat. 
199 [D. S. Comp. St 1901, p. 1685]) as coeoanut oil. 

2. Same— CocoA-BuTTEEiNE. 

Cocoa-butterine, as provided for in paragraph 282, Tarife Act July 24, 
1897, c. 11, § 1, Sehedule G, 30 Stat. 172 [U. S. Comp. St. 1901, p. 1652], 
consists of products made in imitation of cocoa-butter, and adapted for 
use as a substitute therefor. 

Edwin JVIays, for the Government. 

P. L. Willis and Guy G. Willis, for défendant 

BELLINGER, District Judge. The tariff act provides that coeoa- 
nut oil, with other enumerated commodities, "when imported shall 
be exempt from duty." Act July 24, 1897, c. 11, § 2, Free List, par. 
626, 30 Stat. 199 [U. S. Comp. St. 1901, p. 1685]. The défendant im- 
ported 46,912 pounds of refined coeoanut oil, which was so classified 
by the customs officers at this port, but which, after analysis by the 
United States chemist at New York, was reclassified by them, under 
instructions from the Secretary of the Treasury to the Board of Gen- 
eral Appraisers, as "cocoa-butter or cocoa-butterine." Paragraph 282, 
Tariff Act July 24, 1897, c. 11, § i, Sehedule G, 30 Stat. 172 [U. S. 
Comp. St. 1901, p. 1652]. When so reclassified, the marchandise im- 
ported became liable to a duty aggregating $1,641.92, for the recovery 
of which this action is brought. 

Cocoa-butter is produced from the beans of the cacao or chocolaté 
tree ; the word "cocoa," used in this connection, being a corruption of 
the word "cacao." The importation in question is made from the fîeshy 
part of the coeoanut, a product of the cocoa palm. Ail products made 
in imitation of cacao or cocoa-butter, and adapted to its use, are classi- 
fied as cocoa-butterine, and are dutiable. 

It is conceded by the government that the importation in question 
is refined coeoanut oil. The reason given for classifying it otherwise 
is that it is in fact coeoanut oil deodorized and prepared for edible pur- 
poses, that the refining process has rendered it agreeable to the taste 
and edible, and that it is not placed on the market under the name of 
"coeoanut oil," but under varions names indicating a différent product 
and use from coeoanut oil, such as "Mannheim butter," "vegetable but- 
ter," etc. Such is the effect of the report of the United States chemist 
at New York, which has been admitted in évidence on behalf of the 
government. Two cases are cited in this report in support of the con- 



250 129 FEDERAL KEPOETER. 

clusion reached. In one of thèse cases the marchandise in question was 
invoiced as "nucoa butter," an article used chiefly by confectioners as a 
substitute for cocoa-butter. It is described as a hard butter, manufac- 
tured from cocoanut oil by subjecting the oil to hydraulic pressure until 
the soft oils are expressed from it, when the hard oil remaining is re- 
fined by careful washing with steam, according to a patent process. 
The extra-refifted oil resulting is then colored with yellow coloring 
matter, presumably to give it a resemblance to cocoa-butter. The melt- 
ing point of this product is 87° F. It is represented that it is "as good 
and genuine an article for chocolaté thinning as cocoa-butter itself" ; 
that it is successfully used instead of cream in the manufacture of 
caramels, and renders wax and wrappers unnecessary. The Board of 
United States General Appraisers found that this manufacture was iiot 
the cocoanut oil of commerce, but a product of that oil, and dutiable, 
and this décision was affirmed in the Circuit Court of Appeals for the 
Seventh Circuit. Apgar v. United States, 78 Fed. 332, 24 C. C. A. 
113. In the Qther case the article imported was a product of cocoanut 
oil obtained by "eliminating the softer oils and the free fatty acids, thus 
raising the melting point and removing the rancidity found in the 
cocoanut oil of commerce." The Board of General Appraisers held 
that this product had been advanced beyond the condition of an oil, 
and was a substitute for cocoa-butter. Décision of General Appraisers, 
In re Wood, G. A. 5,353 (T. D. 24,495). -A- sample of the merchandise 
which was the subject of this décision (No. 5,353) was procured by the 
attorney for the United States, and is made an exhibit in this case, to- 
gether with a sample of unrefined cocoanut oil, and one of the mer- 
chandise which is the subject of this action. Thèse three samples are 
marked as Exhibits i, 2, and 3, respectively. They were marked by the 
examining chemist as 2,661, 2,662, and 2,663, respectively, and the 
références to them in the testimony are by thèse numbers. Prof. 
Knisely, chemist at the State Agricultural Collège in this state, at the 
instance of the attorney for the United States, made an analysis of thèse 
three products in order to détermine by comparison whether Exhibit 
No. 3 (Chemist's No. 2,663), the merchandise imported, bas been by 
process of manufacture advanced beyond the condition of an oil, so 
as to constitute it a cocoa-butterine, under the décisions of the Board 
of General Appraisers in the cases referred to. Tried by ail of thèse 
tests, some 12 in number, no appréciable déviation was found in the 
imported merchandise from the unrefined oil. The two articles difïered 
equally in character from Exhibit No. i (Chemist's No. 2,661), the arti- 
cle held to be a cocoa-butterine in the later of the two cases upon which 
the report of the chemist at New York is based. 

Mr. Loebell, chemist and manager for the oil mills at Singapore, 
where the importation was refined, testifies as a witness in defendant's 
behalf that his Company manufactures three classes of cocoanut oil, 
designated as No. i, No. 2, and No. 3. The last is an inferior grade 
of oil, and is chiefly used in thè country where manufactured for lighting 
purposes. None of it is exported. No. i is white, free from rancidity, 
smell, and taste, and is used for culinary purposes and for making 
high-grade soap. No. 2 is used for culinary purposes by the Chinese 
and for soap-making. There is only slight variation in the melting 



UNITED STATES V. ORIENTAL AMERICAN CO. 251 

point of thèse three oils, such as will be found in ail cocoanut oils — the 
melting point being from 70° to 75° F., while the melting point of 
cocoa-butter is 85° to 95°. This witness testifies that the No. i cil — 
the oil involved in this action — is not produced by the élimination of 
the softer oils, as was the case with the manufacture involved in the 
cases cited ; that this oil is "the entire cocoanut oil in the same state 
as it is contained in the fresh cocoanut, without any of the lower or 
higher melting parts having been removed" ; that cocoa-butter is made 
from the bean of the cacao or chocolaté tree, by heating it up between 
60 and 80 degrees centigrade, and pressing it under hydraulic pressure, 
thus separating the fat, which comprises 40 to 45 per cent, of the whole, 
from the nonfatty part. The remaining dry substance is ground up and 
sold as cocoa. This vsritness further testifies that he has made experi- 
ments to détermine whether the imported product could be adapted 
to the purposes for which cocoa-butter is used, by trying to raise its 
melting point far enough (some 15° F.) to make it a suitable substitute 
for such butter; that this can only be done by adding certain higher 
melting substances to it, or removing some of the lower melting parts 
from it; that neither of thèse methods is practicable in Singapore, 
since, owing to the high température of that climate, the employment 
of a refrigerating plant would be necessary, while it can be done in 
other countries at ordinary température at a considerably less expense. 
The witness explained the process of separating the high and low melt- 
ing parts of the fats included in the cocoanut oil. He exhibited a 
sample of Cochin oil, a kind of cocoanut oil that comes from Cochin, 
and that cornes in free of duty. He testifies that this is exactly the 
same thing as the merchandise imported by the défendant, with the 
exception of having a little more free fatty acids. 

The élimination of free fatty acids and the softer oils from the cocoa- 
nut oil of commerce adapts it for use as a substitute for cocoa-butter. 
This has been decided. No board or court, so far as I am advised, has 
gone the length of holding that removal of the free fatty acids without 
raising the melting point of the oil adapts it for use as such substitute. 
It renders it edible and adapts it to gênerai culinary use. But edible 
oils are not necessarily butter, or imitations of it; nor is rancidity, 
which is a manifestation of free fatty acids, a characteristic of cocoanut 
oil. The oil made from the fresh nut is free from it, sweet and edible. 
The so-called cocoanut oil of commerce contains it in varying degrees, 
depending on the condition as to cleanness and freshness of the copra, 
or dried kernel of the nut, from which it is made. The refining pro- 
cess, which constitutes what is called the "manufacture" of the oil, 
merely removes from it the impurities due to the manner in which the 
kernel is handled and dried, and to its partial decay. There is no stand- 
ard of purity by which the cocoanut oil of commerce is known. 
That oil, for anything that appears to the contrary, may be a pure and 
edible oil. An edible cocoanut oil is not a butter because it is edible. 
Other vegetable oils, like olive oil and cotton seed oil, are edible, and, 
with butter, are used in cooking as substitutes for the fat of swine. 
The unrefined cocoanut oil is used for culinary purposes by Chinamen 
in the Straits Settlements. It must be assumed that whether an oil 
is an oil or a butterine does not dépend upon the degree of rancidity 



252 129 FEDERAL EBPORTEB. 

it has, by which îts gênerai culinary use is affected. A product, to be 
dutiable as cocoa-butterine, miist be useful as a substitute for cocoa- 
butter. It must be an artificial substitute for cocoa-butter. Such is 
the holding of the Board of General Appraisers. 

As already appears, cocoa-butter is a product of the bean of the 
cacao or chocolaté tree. The oil from cocoanuts, to be classed as 
cocoa-butterine, must be an imitation of this cacao or cocoa butter. 
It must, in other words, be an artificial cocoa-butter. The testimony in 
the case shows a wide différence between the two articles. One of 
the witnesses, a dealer who has sold cocoanut oil of the manufacture 
in controversy for a year and a half, testifies that he never offered it for 
sale, or knew of any one else offering it, as cocoa-butterine ; that it dif- 
fers in appearance from cocoa-butterine ; that there are, of the import- 
ed butterines and those manufactured hère, some 12 or 15 différent 
cocoa-butterines ; that they are ail solids, with a melting point of 
about 90° F., and are usually sold in cakes, wrapped in paper, and 
packed in cases, while the oil in question melts at about 80° completely 
and becomes a liquid, and is sold in hermetically sealed packages; 
that the two products differ in color, in texture, and in the uses to 
which they are applied; that cocoa-butterine is sold to confectioners 
and pharmacists as a substitute for cocoa-butter; that in the pharma- 
ceutical trade the cocoa butter and butterines are largely used for 
suppositories ; that they are similar in color, in texture, in the nature 
of the fracture when broken, and in the degree of melting; that in 
many cases the odor of the cocoa-butter is attempted to be introduced in 
the butterines, not always successfully, but that they are put up in the 
same manner, packed in the same weight of packages, and bear, as near- 
ly as an imitation may bear, ail the characteristics of cocoa-butter ; that 
they are readily recognized by every one in the trade; that confection- 
ers refuse to buy the oil in question because its low melting point makes 
it entirely unsuitable as a substitute for cocoa-butter. The testimony 
of the confectioners is that the importation in question is not used 
as a substitute for cocoa-butter ; that any sweet, clean fat can be used, 
to a limited extent, in thinning chocolaté; that inost fats dissolve at 
a very low degree, while cocoa-butter, because it melts at a higher de- 
gree, is more suitable for thinning chocolaté, "so the chocolaté won't 
dissolve and spread"; and that, in the confectioner's business, cocoa- 
butter is chiefly used for this purpose. Some of thèse witnesses testi- 
fied that they had used the cocoanut oil in question, but it was not suc- 
cessful ; that it was no more suitable for their use than lard or cotton 
seed oil. From the testimony in the case it appears that this cocoanut 
oil is used chiefly for soap-makïng, and that more than three-fourths of 
the importation on account of which this action is brought was pur- 
chased by one manufacturer for such use. 

From thèse facts, I conclude that the merchandise in question is not 
an imitation of, nor a substitute for, cocoa-butter, and that it is not 
dutiable under the tarifï act. 



GRAHAM V. TLAXTEKS' COMFRESS CO. 253 

GBAHAM V. PLANTERS' OOMPEESS CO. 
(District Court, S. D. New York. Aprll 14, 1904.) 

1. ShIPPINO — DeMUBBAGB— LlABILITY OF CONSIGNEE. 

Where a consignée Is Interested in the cargo, and accepta It under a 
charter party made between the vessel and the consignor whlch provides 
for demurrage, he is Ilable therefor in case o£ his default 

2. Same— BiLLS or Lading. 

Where a part of the freight had been paid by the consignor, and the 
consignée was required by the charter party to pay the balance, a pro- 
vision in the bill of lading requirlng the consignée to pay freight at the 
rate agreed on, in accordance with the terms of the charter party, re- 
ferred to freight alone, and did not obllgate the consignée to pay demur- 
rage. 

3. Samb>— Failuee to Accept Cabgo. 

Where, though a consignée was not liable for demurrage under the bilI 
of lading or charter party, he improperJy refused to take part of the 
cargo within a reasonable time after arrivai, he thereby became liable 
for damages arising from the delay. 

Martin A. Ryan, for libellant. 

Simpson, Thacher, Barnum & Bartlett and Graham Sumner, for re- 
spondent 

ADAMS, District Judge. This action was brought by Stephen Gra- 
ham, as owner of the boat Six Brothers, against the Planters' Compress 
Company, to recover a claim for freight, with demurrage and other 
charges, on a quanti ty of hay transported from Montréal to New York 
in August, 1903. The freight, amounting to $185, was admittedly due 
and an offer was made to pay it, with custom house charges, but refused 
and the action was instituted to recover $318.60, which included the 
custom house charges mentioned, amounting to $4.70, towing charges 
in New York Harbor, amounting to $4, demurrage for 32 days at $4 
each, amounting to $128, and wharf âge charges in New York for 31 
days, amounting to $8.90. An ofïer was made on the 22nd of January, 
1904, to allow judgment for $150 and costs to date. 

The dispute arises out of the condition of 51 baies of damaged hay 
and the responsibility therefor, the contention of the libellant being 
that it was the duty of the shipper to furnish proper covering for the 
cargo to protect it from the weather while en route and the damage 
occurred because it did not do so. The respondent claims that the 
damage arose through a leaky condition of the boat and that the 
libellant should be held responsible for it, which would require a dis- 
missal of the libel, in view of the offer to pay. 

The testimony is to the effect that the damage was principally away 
from the side of the boat, where some slight leaks existed. My im- 

1 1. Demurrage, see notes to Harrison v. Smith, 14 C. C. A. 657 ; Eandall 
V. Sprague, 21 C. C. A. 337 ; Hagerman v. Norton, 46 C. C. A. 4. 
See Shipping, vol. 44, Cent. Dig. § 571. 



254 129 FEDERAL REPORTER. 

pression formed on the trial, that in ail probability the damage was 
caused through defective coverings, has not been disturbed but rallier 
confirmed by a penisal of the testimony, in connection with a considéra- 
tion of the improbability of leaks, located as thèse were, damaging the 
cargo. The libellant's claim should, therefore, be sustained, but the 
respondent insists that if such conclusion is reached, the respondent 
being merely a consignée is not liable, and in any event is entitled to $25 
for the détention of 4 Canadian tarpaulins, which the libellant received 
in Montréal and failed to deliver promptly in New York. 

The question of when and how far a consignée is liable for demur- 
rage dépends upon the particular facts in each case. A mère consignée, 
who is not interested in the goods carried, is not liable for demurrage — 
Merritt & Chapman Derrick & Wrecking Company v. Vogeman (D. C.) 
127 Fed. 770 — But where the consignée is interested in the cargo and 
accepts it under a charter party made between the vessel and the 
consigner, which provides for demurrage, he becomes liable in case of 
his default. Sutton v. Housatonic R. Co. (D. C.) 45 Fed. 507. 

In this case a shipment of 5000 half baies of hay was ordered from 
the respondent by Thebaud Bros, of New York. The respondent ob- 
tained the hay at Montréal from the Canadian Baling Company, Ltd. 
and it was forwarded under a charter, of which the following is a 
copy: 

"Charter Party. 

Concluded at Montréal this 30th day of July 1903 

Between 

The Canadian Baling Co. Ltd Merchant of Montréal 

and 

Stephen Graham Captain of boat Six Brothers 
It Is This Day Mutually Agreed: 

1. That said boat Six Brothers belng tlght, staunch, and in every way fltted 
to carry hay, shall be at the port of Montréal Québec on the St. Lawrence 
River, on the day of July Slst 1903, ready to receive a cargo of pressed hay, 
not to exceed what can pass under ail bridges safely, and when loaded shall 
proceed with ail reasonable speed for New York, and there deliver sald cargo 
as ordered by Plantera Compress Co. at the port of New York. 

2. Boat to give, free of charge, elght full working days to load & unload 
said cargo, Sundays and Holidays excepted, after which demurrage shall be 
paid by shipper at the rate of $4.00 per day. -It-i5-ïiîiàsr-StGGd-t-lia^tMs-â8- 
murrago ie payable at point of tihipmont nud oannot bo ooUoatod fpom oon 
s ignoo. 

3. Cargo to be loaded at the expense of The Canadian Baling Co. Ltd Mer- 
chant. 

4. Boat to pay ail canal tolls and towages to New York and one towage 
In New York Harbor within lighterage limits. 

6. Freight to be paid at the rate of Three hundred and ten dollars for the 
full cargo. 

6. Captain to receive, as an advance, when the cargo is loaded, the sum 
of One hundred & twenty flve dollars. 

Balance of freight to be paid by consignée, free of commission, on rlght 
delivery of cargo at New York. 

7. The Company to unload sald cargo at New York. 

8. The boat to allow eight full days for discharging & loading, Sundays 
and Holidays excepted, after which demurrage shall be paid at the rate of 
$4.00 per day ; lay days commencing immediately after Captain enters hIs 
boat at the Custom-house, New York City, and reports to the consignée. 



GEAHAM V. PLANTEES' COMPBESS CO. 255 

9. The Merehant agrée to furnish suffldent tarpaullns to cover the hay on 
deck. 

10. Captain to deliver tarpaullns at point of dlscharglng to the consignée. 

Canadian Ballng Company Ltd. 
per Wm J S Burns, 

Marchant 
Wltness: Stephen Grabam 

B. Brlsebols. Captain." 

(Ëndorsed) 

"Captain to report to 

Plantera Compress Co 
675 West 33rd St. 

New Xork. 
Pler 16 

Prentlce Stores 

Brooklyn.** 

The bill of lading was as follows: 

"Shlpped In good order and condition by Canadian Ballng Co Ltd on board 
the boat Six Brothers Whereof Stephen Graham is master, now lylng at the 
port of Montréal 

No. of Baies. Welght In Pounds 

2686 Hay * 259630 

For Export to Xucatan Ibs. 

to be delivered in llke good order and condition at the port of New York (the 
act of God, fire and every danger and accident of the seas, rivers, canals and 
navigation, of whatsoever klnd excepted), Consigned to Plantera Compress 
Co he or they paying frelght at the rate of as agreed, In accordance wlth 
the terms of the charter party. 

In Wltness Whereof the master of said boat hath signed 3 Bills of Lading, 
ail of thls ténor and date, one of which belng accomplished, the other to stand 
void. 
Dated at Montréal, thls Ist day of August 1903 

Stephen Graham, Master." 
(On margln) 

"Notlfy Planters Compress Co 
675 West 33rd St 
New York 
Planters Compress Co 
New York 
2686 Baies hay 
259630 Ibs 
4 Canadian 

Tarpaullns 
to be retd 
Captain paid $4 70/00 

Customs Charges on Cargo 
F, W. Myers & Co. 
Freight advanced 
$125 00/00 
Captains copy" 
(Endorsed) 

"Captain to report to 

Planters Compress Co 

675 West 33rd St 

New York."- 



256 129 FEDERAL REl'OIlIEE. 

When the boat reacKèd New York, the cargo was taken charge of 
by the respondent, which procee^ed to unload it. As above appears, 
some of the cargo was damaged, without fault on the part of the boat, 
and the testimony of the libellant shows that he was ordered back to 
piers 4 and s, where he had been lying before going to Statçn Island 
to discharge, under a promise f rom the respondent that the balance 
of the hay and the covers would be taken off. But the hay was not re- 
moved and the boat was detained with the covers until the 2ist of 
September, when they were taken possession of by the respondent 
and the libellant was informed that the hay was his. On the 23rd 
of September, he sold it for $15, and gives the respondent crédit 
for that amount. During the period he was detained, the wharfage 
mentioned accrued. 

Bills of lading requiring the consignée to pay the freight, only hold 
him liable for such provision alone. Burrill v. Crossman (D. C.) 65 
Fed. 104; Id., 69 Fed. 747, 750, 16 C. C. A. 318; Crossman v. Burrill, 
179 U. S. 100, 109, 21 Sup. Ct. 38, 45 L. Ed. 106. Hère, $125 of the 
freight were paid by the consigner and the consignée was by the charter 
required to pay the balance. The provision in the bill of lading: 
"in accordânce with the terms of the charter party" evidently referred 
to the freight alone. Imust hold, therefore, that there was no liability 
on the part of the consignée as such, under the charter party. 

If the consignée had been entitled to reject the damaged hay, there 
would be no liability on its part, but as it improperly refused to take 
part of the cargo, the case seems in this respect, to fall under the 
principle that where a consignée fails to take the cargo within a rea- 
sonable time after arrivai, he remains liable for the damages arising 
from undue delay, according to the ordinary rules of law, which govern 
in the absence of a spécifie agreement. Crossman v. Burrill, supra. 

I conclude that the consignée should be held for the delay incident to 
the refusai, including the wharfage necessarily incurred during such 
period, less $15, and unless the parties can agrée upon the amount 
of damages, there will hâve to be a référence to ascertain them. 

Decree for the libellant, with an order of référence. 



SIMPSON V. FIRST NAT. BANK. ?57 

SIMPSON V. FIEST NAT. BANK OF DENVEE, 

FIRST NAT. BANK OF DENVER v. SIMPSON. 

(arcuit Court of Appeals, Eighth Circuit March 22, 1904.) 

Nos. 1,828, 1,829. 

1. APPEAL— ASSIGNMENT OF EeKOES— FiLING BefOEE ALLOWANCE OP APPEAL 

Indispensable. 

The flling of an assignaient of errors before or at the time of the allow- 
ance of an appeal Is Indispensable, under the eleventh ruie of the Circuit 
Courts of Appeals (91 Fed. vi, 32 C. C. A. Ixxxvlli), and the appeal wlll 
be dismissed if the assignment Is not thus filed. 

2. SaME— CONDITIONAL ALLOWANCE. 

An allowance of an appeal on condition that the petltloner give a bond 
In a fixed amount does not become an allowance of the appeal until the 
bond is given and accepted, and the filing of an assignment of errors before 
or at the time of the giving and acceptance of the bond Is a flling wlthln 
the time prescribed by the rule. 

8. Appeal Mattee of Right— Allowance of Weit of Beeoe Mattee fob 
JxjDiciAL Détermination. 

An appeal is a matter oif right, secured by act of Congress upon corn- 
pliance with the statutes relative to security and with the rules of the 
courts. 

The allowance of a writ of error is a matter for judicial détermina- 
tion upon a considération of the sufflcieney of the grounds for the writ 
stated in the pétition and assignment of errors. 

The reason for the rule requiring the filing of an assignment of errors 
before the allowance of an appeal is to give notice to opposlng counsel 
and the appellate court of the questions of law to be discussed. In an 
action at law there is the additional reason that the présentation of an 
assignment of errors to the judge who allows or issues a writ of error is 
essential to his décision of the question whether or not It should be Issued. 

4. Evidence— Accouni'—Each Side Peima Facie Evidence of its Contents. 
The introduction in évidence wlthout qualification of an account con- 
taining débit and crédit Items makes each side évidence of its contents. 

In the absence of ail other évidence, the débits and crédits of such an 
account ofCset each other, and the account proves Its balance only. An 
admission must be taken with Its qualifications as an entirety. 

But where there is other évidence the court or jury is not requlred to 
give equal crédit to each side of the account, to the admissions against 
interest, and to the self-servlng statements contalned in it. They may. 
and they should, détermine the fact for or against the évidence contalned 
in the account as the prépondérance of ail the évidence in the case and the 
rules of law require. 
(Syllabus by the Court.) 

Appeals from the Circuit Court of the United States for the District 
of Colorado. 

See 93 Fed. 309, 35 C. C. A. 306; 115 Fed. 1019, 52 C. C. A. 683. 

Simon M. Simpson exhibited his bill against the First National Bank of 
Denver to procure an accounting from it of the proceeds of certain personal 
property, which he averred that he had pledged to the bank to secure his In- 
debtedness to It. The bank denled that a portion of the goods were pledged, 
and alleged that its cashier had bought and paid for them. A decree to that 
efCect was rendered in the court below, and this suit was dismissed. Upon an 
appeal to this court that decree was reversed, and the case was remanded to 
the court below, with directions to take an account of the proceeds of ail the 
Personal property which the eomplainant clalmed to be pledged. That account 
129 P.— 17 



258 129 FEDEKAL REPOETER. 

has been taken, and a decree bas been rendered upon the accounting. Each 
of the parties to the suit ha« appealed from this decree. 

T. J. O'Donnell, for plaintiff. ; 

Charles J. Hughes, Jr. (Barnwell S. Stuart, on the brief), for défend- 
ant. 

Before SANBORN, THAYER, and HOOK, Circuit Judges. 

SANBORN, Circuit Judge (after stating the facts as above). The 
first question which the record in this case présents is whether or not 
the assignments of error were filed in such time that the merits of the 
case may be reviewed in this court. On June 23, 1902, each of the 
parties to this suit prayed in open court for an appeal from the decree, 
and orders were made that the appeal of the défendant was allowed, 
"but upon the condition, nevertheless, that the respondent give bond 
on such an appeal. in the sum of fifty thousand dollars ($50,000)," and 
that the appeal of the complainant was allowed, "but upon condition, 
nevertheless, that he give bond on said appeal in the sum of iive 
hundred dollars ($500)." On August 15, 1902, the défendant filed an 
assignment of errors, an approved bond in the sum of $50,000, and a 
citation dated on that day. On August 20, 1902, the complainant filed 
an assignment of errors, an approved bond for $500, and a citation dat- 
ed on that day. The bonds were approved and the citations were signed 
by the judge who heard the case and made the conditional orders of 
allowance of the appeals. In this way the question is presented wheth- 
er or not an assignment of errors is filed at or before the allowance of 
the appeal, within the meaning of rule 11 of this court (91 Fed. vi, 32 
C. C. A. Ixxxviii), when it is filed at the time when the judge signs the 
citation and approves the bond which he has made a condition of the 
allowance of the appeal. 

The acts of Congress provide that "there shall be annexed to, and 
returned with any writ of error for the removal of a cause at the day 
and place therein mentioned an authenticated transcript of the record, 
an assignment of errors and a prayer for reversai with a citation to 
the adverse party," and that "appeals * * * shall be subject to 
the same rules, régulations and restrictions as are or may be prescribed 
in law in cases of writs of error." Rev. St. §§ 997, 1012 ; i U. S. 
Comp. St. 1901, pp. 712, 716. Rule 11, so far as it is relevant to the 
question now under considération, reads: 

"The plaintiff In error or appellant shall file with the clerk of the court 
below, with his pétition for the writ of error or appeal, an assignment of er- 
rors which shall specify separately and partieularly each error asserted and 
intended to be urged. No writ of error or appeal shall be allowed until such 
assignment of errors shall hâve been filed." 

The acts of Congress did not require the filing of an assignment of 
errors before the allowance of a writ of error or of an appeal. This re- 
quirement rests upon rule 11 of this court, which is the same in terms 
and in effect as rule 34 of the Suprême Court of the United States. 
There are two reasons for this rule: One is that the judge to whom 
the application for the allowance or issue of a writ of error is presented 
may be informed what the alleged errors are upon which the petitioner 



SIMPSON V. FIE8T NAT. BANK. 259 

relies, so that he may intelligently décide the question whether or not 
the writ should be issued. The other is that opposing counsel and the 
appellate court may be informed by a statement which becomes a part 
of the record what questions of law are presented for their considération 
and détermination. 

The first reason applies to the allowance of a writ of error only. 
It is inapplicable to the allowance of an appeal. The filing of the péti- 
tion for a writ of error, with its accompanying assignment of errors, is 
the institution of a suit in the appellate court. The pétition and the as- 
signment set forth the grounds for the issue of the writ, and the duty 
of deciding whether or not thèse grounds are sufficient to warrant its 
issue, and of issuing or refusing to issue it in accordance with his dé- 
cision of this question, is imposed upon the judge to whom they are 
presented. 

It is not so in the case of an appeal. The right to appeal is an abso- 
lute right granted to thedefeated party by the acts of Congress. No 
court or judge has any jurisdiction or power to condition the allowance 
of an appeal upon his considération or détermination of the question 
whether or not the applicant présents alleged errors which form rçason- 
able grounds for the review of the décision below. That question is 
reserved for the considération of the appellate court exclusively. The 
petitioner has the same right to the allowance of his appeal, in the ab- 
sence of error or of the appearance of it, as when he présents the most 
conclusive reason for the belief that the décision against him was erro- 
neous. The only question for the considération of the court or of the 
judge to whom an application for an appeal is made is the sufiiciency 
of the security offered for the costs and damages, or for the costs alone ; 
and if the petitioner présents satisfactory security, and prays an appeal 
in accordance with the statute and the rules of the courts, the duty of 
the court or judge to whom he présents his application is imperative 
to allow it. Brown v. McConnell, 124 U. S. 489, 490, 8 Sup. Ct. 559, 
31 L. Ed. 495; Pullman's Palace Car Co. v. Central Transp. Co. (C. C.) 
71 Fed. 809. The resuit is that the assignment of errors is not required 
to be filed before an allowance of appeal for the benefit or information 
of the court to whom the application for its allowance is made. The 
only reason for its filing at that time is that the alleged errors upon 
which the petitioner relies may be made a part of the record for the in- 
formation of opposing counsel and of the appellate court ; and that ob- 
ject is as well attained by filing it at any time before the security is 
approved and accepted as by filing it before the order is made which al- 
lows the appeal only upon the giving of the security. 

Again, no formai order of allowance of an appeal is requisite to its 
perfection. The acceptance of security in open court at the same time 
at which the decree challenged is rendered, or the acceptance of security 
and the issue of a citation by the proper court or judge at any proper 
time or place within the period limited for an appeal, in themselves con- 
stitute its allowance, without any other or further order regarding the 
matter. Sage v. Railroad Co., 96 U. S. 712, 715, 24 L,. Ed. 641 ; Draper 
V. Davis, 102 U. S. 370, 371, 26 L. Ed. 121 ; Brandies v. Cochrane, 105 
U. S. 262, 26 L. Ed. 989; National Bank v. Omaha, 96 U. S. 737, 24 
L. Ed. 881. 



260 129 FEDERAL REPORTEE. 

What, theii, in the light of thèse principles and ruies, was the légal 
effect of the orders of the court below, made on June 23, 1902, to 
the eflfect that the appeals of thèse parties should be allowed upon 
condition that they give bonds in the amounts there specified ? That 
court had no jurisdiction or power to détermine whether or not the ap- 
peals of thèse parties should be allowed if the appHcants complied with 
the rules of the court and gave the security required by the acts of 
Congress. If they eflfected this compliance and the court accepted their 
security, its further order allowing or disallowing their appeals would 
b'e utterly futile. Their appeals would be as effective, upon their com- 
pHance with the rules and upon the acceptance of their security, if the 
court made an order that they were disallowed, as they would be if it 
made an order that they were allowed. The only judicial discrétion 
and the only function of the court upon the application for the appeals 
was to détermine the amount and suffîciency of the security which 
the parties were to présent when they took them. This discrétion it 
exercised. It fixed the amounts of the bonds, and it ordered that the 
appeals should be allowed upon the express condition that thèse bonds 
were .given. If the bonds had not been given, that court would not 
hâve lost, and this court would not hâve gained, jurisdiction of this case. 
The appeals would not hâve been perfected, and the case would hâve 
remained in the Circuit Court. Draper v. Davis, 102 U. S. 370, 371, 
26 L. Ed. 121; Aspen Mining & SmeUing Co. v. Billings, 150 U. S. 
31, 35, 14 Sup. Ct. 4, 37 L. Ed. 986. 

The légal effect of the conditional orders of allowance, therefore, 
was exactly the same that the effect of an order that the amounts 
of the bonds for appeals were fixed at $50,000 for the défendant 
and $500 for the plaintiff would hâve been. Under such an order the 
acceptance of the bonds and the issue of the citations would hâve al- 
lowed the appeals, without any order of allowance whatever. Under 
the conditional order actually made the acceptance of the bonds and the 
issue of the citations could hâve no other effect. Thèse acts allowed the 
appeals, and our conclusion is that the appeals were not allowed until 
the bonds were accepted. The orders of allowance were expressly con- 
ditioned upon the giving of the bonds, and until they were given and 
accepted the appeals were not allowed, because, until then, the condi- 
tions of their allowance were not fulfiUëd. As the assignments of error 
were filed before or at the time of the acceptance of the security and the 
issue of the citations, they were filed within the time fixed by rule 11 
of this court and the merits of the cases presented by the appeals are 
open for our considération. 

The cases of Radford v. Folsom, 123 U. S. 725, 727, 8 Sup. Ct. 334, 
31 L. Ed. 292, Brown v. McConnell, 124 U. S. 489, 490, 8 Sup. Ct. 559, 
31 L. Ed. 495, and Hewitt v. Filbert, 116 U. S. 142, 6 Sup. Ct. 319, 
29 L. Ed. 581, hâve been read and considered; but they do not appear 
to us to be inconsistent with the conclusion at which we bave arrived. 
Neither of them présents a conditional order of allowance. It may 
be, as the Suprême Court held in Radford v. Folsom, that, where a 
bond is given and accepted under an order which absolutely allows 
an appeal and fixes the amount of the bond, that the appeal relates 
back to the date of the order of allowance, for the purpose of deter- 



SIMPSON V. FIRST NAT. BANK. 2G1 

mining the term of the appellate court at which the case should be 
docketed. That question is not before us, and its décision either way 
does not détermine the issue whether or not a conditional allow- 
ance becomes an absolute allowance before the condition is fulfilled. 
In Brown v. McConnell and Hewitt v. Filbert the Suprême Court in 
effect held that where an appeal is absolutely allowed and the case is 
docketed in that court, without the taking of security or without the 
issue and service of a requisite citation, that court has the power in its 
discrétion to allow security to be given, or to issue a citation and permit 
it to be served, and then to proceed to hear the case upon the merits. 
But it is not perceived that thèse décisions answer the question whether 
or not an appeal, permitted only upon an express condition, is allowed 
before the condition is complied with. The opinions of this court hâve 
declared, and it is our purpose to adhère strictly to the rule which they 
announce, that rule ii of this court is just and reasonable, that it will 
be enforced, and that under it we cannot consider or décide issues of 
law which are not raised by assignments of error filed before or when 
the writ of error or appeal is allowed. In actions at law the assignment 
of errors must be filed and presented to the judge before the writ of 
error is issued or allowed, because he must détermine, from an ex- 
amination of it and of the pétition for the writ, whether or not they 
set forth any substantial grounds for the issue of the writ. Frame v. 
Portland Gold Min. Co., io8 Fed. 750, 47 C. C. A. 664 ; U. S. v. Good- 
rich, 54 Fed. 21, 22, 4 C. C. A. 160; Union Pac. R. Co. v. Colorado East- 
ern R. Co., 54 Fed. 22, 4 C. C. A. 161 ; City of Lincoln v. Sun Vapor 
Street Light Co., 59 Fed. 756, 759, 8 C. C'. A. 253, 256; Flahrity v. 
Railroad Co., 56 Fed. 908, 6 C. C. A. 167 ; Crabtree v. McCurtain, 61 
Fed. 808, 10 C. C. A. 86. 

The rule applies with equal force to cases brought to this court by ap- 
peal. In Webber et al. v. Mihills, 124 Fed. 64, 59 C. C. A. 578, an appeal 
had been taken in a case in which the allowance was made on November 
19, 1902, was absolute, and there was no claim or suggestion that it was 
not perfected on that day, so far as it could be completed without the 
fîling of an assignment of errors. But the assignment was not filed 
until November 26, 1902. The appeal was dismissed because the assign- 
ment of errors was not filed before the appeal was allowed. The con- 
clusion in the case at bar that the appeals hère were not allowed until 
the conditions on which the court permitted them were fulfilled, and that 
the assignments of error were filed within that time, is consistent with 
the décision in the Webber Case. The opinion in Lockman, Adm'r, 
V. Lang et al. (filed November 30, 1903) 128 Fed. 279, was rendered up- 
on what was then supposed to be a state of facts similar to those present- 
ed in Webber v. Mihills, and the décision followed the conclusion in 
that case. A re-examination of the record in the Lockman Case, how- 
ever, discloses the fact that the order of allowance of the appeal in that 
case contained a condition similar to those in the orders in the case at 
bar. The order of allowance was conditioned upon the giving of the 
bond for $100, and when this bond was presented and accepted by the 
court a pétition for a writ of error to which an assignment of errors 
was attached was filed with the trial court. A motion for a rehearing 
has been made in this court in that case, and the final décision of it 



202 129 FEDERAL REPORTEE. 

will be made to conform to the views which hâve been expressed in 
this opinion. We turn to the considération of the merits of the case. 

Thèse are appeals from the decree of the Circuit Court upon the 
accounting directed by this court in Simpson v. First National Bank, 
93 Fed. 309, 35 C. C. A. 306. In that case we found, from the évidence 
which had then been produced, that on March 2, 1887, Simpson owed 
the bank $33,685.31, and that for the purpose of securing the payment 
of this indebtedness he conveyed and delivered to S. N. Wood, the 
cashier of the bank, and to H. Z. Salomon, its agent, his house and 
three lots in the city of Denver, which were worth about $12,500, his 
stock of cigars, which was worth about $21,000 and was called the 
"cigar store," and his bonded goods, which were worth about $25,000, 
under an agreement with them that they should convert this property in- 
to money, pay the debt he owed to the bank, and return the surplus 
to him. The bank had admitted by its answer and testimony that Wood 
received the bonded goods for the purpose of securing the payment 
of $23,000 of the debt of Simpson to the bank, but it had alleged and 
claimed that Wood bought the house and lots for $7,500, which he 
applied in payment of Simpson's debt, and that he also purchased the 
cigar store for a like amount, which he also applied to the payment of 
the same debt and to the purchase of a certificate of deposit in the 
name of the président of the bank. The claims of the défendant that 
the transactions with Wood constituted a sale to him of the real estate 
and of the cigar store were not sustained by the proof ; but as the com- 
plainant, Simpson, had not alleged that the real estate had been con- 
veyed to secure his debt, and had not asked for an accounting of its pro- 
ceeds, the conveyance of the house and lots to Wood and the réduction 
of the debt of Simpson by the application of the $7,500, which the bank 
alleged that Wood had paid for this real estate, was allowed to stand 
as a sale, and the Circuit Court was directed to take and state an ac- 
count of the proceeds received and of the expenditures made by the 
bank and by its agents, Wood and Salomon, in the management and 
disposition of the store and of the bonded goods. This account bas 
been taken, and the court below has found, and rendered a decree to 
the efïect, that the bank has received from thèse goods $22,061.93 more 
than the sum of its expenditures and of the indebtedness of Simpson 
to it, and that the latter is entitled to recover this amount from the bank, 
with interest from January 19, 1893. Both parties hâve appealed from 
this decree. The alleged errors pfesented for our considération by the 
bank will fîrst be considered. 

The cigar store was operated by Salomon from March 7 to March 
25, 1887, when he gold it for cash and notes from which the bank 
realized $19,541.66. Salomon then proceeded to sell many of the 
bonded goods, which had been at first delivered to Wood by Simp- 
son, and he concluded his relations with this transaction during the 
last days of January, 1888. During this time the bank kept an ac- 
count with him, styled "H. Z. Salomon Cigar Store Account," in which 
Salomon deposited the proceeds of the sale of the store and of the bond- 
ed goods which he handled, and eut of which he drew varions amounts 
by checks or orders upon the bank. During the same time Wood, 
the cashier of the bank, was expending money to pay duties and freight 



SIMPSON V. FIRST NAT. BANK. 263 

upon the bonded goods, and was selling to others and was himself col- 
lecting the proceeds of some of thèse goods. The proceeds which he 
obtained from thèse sales to others than Salomon he deposited in his 
individual account with the bank. Out of this account he checked the 
amounts which he paid for duties, freight, and other expenses incurred 
in disposing of the bonded goods. Thèse two accounts, and much 
testimony concerning many of the items which appear in them and 
concerning the amount and character of the goods in the store and in 
bond, were introduced in évidence at the first hearing for the purpose 
of proving that the cigar store was piedged, but was not sold. In this 
State of the case, and after the décision of this court, the Circuit Court 
on June 8, 1899, ordered the accounting. The seventy-ninth rule in 
equity requires parties accounting to bring in their respective accounts 
in the form of debtor and creditor, and provides that any of the other 
parties to the proceeding who are not satisfied with the account shall 
be at liberty to examine the accounting party in the master's ofSce. 
The burden and duty was therefore upon the bank to bring in an ac- 
count in the form of debtor and creditor, which would show upon its 
face the items which the bank claimed it had received and those which 
it claimed to hâve rightfully expended on account of the store and of the 
bonded goods, together with the respective dates at which it received 
and paid them out. On October 22, 1900, more than a year after the 
accounting had been ordered by the Circuit Court, the bank had pre- 
sented no account whatever to the master. Thereupon counsel for 
Simpson submitted to the master the évidence that had been taken at 
the first hearing, and asked that the accounting might be had upon that 
record. On March 21, 1901, counsel for the bank submitted an account 
upon which two of the items credited to Simpson were : "Balance ret'd 
by S. N. Wood from cigar store, $12,366.40. Collatéral in hands of 
S. N. Wood sold, $26,273.82." 

The items from which thèse balances were derived were not specified 
in the account, but witnesses for the bank by their subséquent testimony 
identified them. This account disclosed a balance due from Simpson 
to the bank of $9,813.17, and its witnesses testified that it was a correct 
statement compiled from its account books of ail the moneys received 
and expended by it or by its agents on account of the store and the 
bonded goods. It had, however, stated in its original answer that Simp- 
son owed the bank only $2,742.98, upon the theory which it then main- 
tained that the store was not piedged, but sold, and that he was entitled 
to a crédit of only $7,500 on account of the store, from which the 
bank actually received $19,541.66. At a later period during the hear- 
ing before the master the bank filed another account, verified by the 
testimony of one of its witnesses, which shows Simpson in debt to the 
bank in the sum of $42,466.67. This account contains an item of $10,- 
500 for goods placed in the cigar store and of $22,230.86 interest, which 
appear hère for the first time. Testimony was introduced which identi- 
fied the items of receipts and expenditures on account of the piedged 
goods which passed through the individual account of Mr. Wood, and 
they stand in the master's report free from exceptions. 

The first spécification of error questions the action of the master and 
of the court below relative to the cigar store account. That account 



264 129 FEDERAL EBFOEXBK. 

practically balances. Some of the items which appear in it to the crédit 
of the cigar store were explained and verified by testimony, and some 
were not. This is also true of the items charged against the cigar 
store in that account. The master, in making the statement of account 
upon which the decree below rests, charged the bank with the unex- 
plained items on the crédit side of that account, which amount to about 
$23,000, on the ground that they were admissions of the bank against 
its interest ; and he ref used to crédit it with the unexplained items on 
the débit side, which amount to about $20,000. Upon this subject he 
said: 

"By the décision of the Court of Appeals Mr. Salomon Is held to be in this 
transaction the agent of the défendant, and this account must therefore be 
considered as the account of the bank ; and the défendant must be charged 
with the entire amount of receipts as shown by the account, and can take crédit 
only for such items of disbursement as are shown to be proper and necessary 
to the exécution of the trust. There can be no reasonable doubt but a portion 
of the disbursements appearing on the account were expenses necessarily In- 
curred in the transaction of the business, but they are not identified, nor the 
purpose of the expenditure shown." 

This décision and action of the master was affirmed by the court be- 
low, and it is the subject of bitter complaint. The cigar store account 
was ofïered in évidence by the complainant upon the accounting as a 
part of ail the évidence taken at the iirst hearing. It was a single ac- 
count, composed of débit and crédit items. There was testimony to 
the effect that Salomon deposited the proceeds of the pledged goods 
in the bank to the crédit of the cigar store in this account, that he 
checked out of this account many thousand dollars to Wood, which the 
latter applied to pay the debt of Simpson, and that he used the moneys 
deposited in this account to run the business of the cigar store. This 
testimony was uncontradicted. This was an account between the bank 
and its agent, Salomon, and it was undoubtedly évidence that the bank 
received from Salomon, on account of the cigar store and on account of 
the bonded goods, the amounts which were credited to the store in that 
account, and that it paid out upon the orders or checks of its agent 
the amounts which are debited to the store therein. Where one 
introduces in évidence an admission, it must be taken in its entirety, 
with the qualifications which hmit or destroy its effect. The whole ad- 
mission, together with the limitations and qualifications it contains, 
must be taken together, because, unless thèse are ail received, the true 
import and meaning of the admission may not be discovered, and 
the truth, which is the great object of the inquiry, may not be ascer- 
tained. • But although the entire admission, including the parts favor- 
able as well as the parts unfavorable to the party who makes it, must 
be received in évidence, they are not ail necessarily equally conclusive 
or worthy of crédit, and it is the province and the duty of the trior 
of the fact, in the light o£ ail the évidence in the case, to détermine how 
much of the entire statement he will believe and how much he will 
discrédit. Greenleaf, Ev. § 201; Bristol v. Warner, 19 Conn. 7, 18; 
Kallman v. His Creditors, 39 La. Ann. 1089, 1090, 3 South. 382. This 
rule applies to statements of account which are introduced in évidence 
without qualification to secure the benefit of the admissions against in- 
terest which they contain. In the absence of ail other évidence, each 



SIMPSON V. FIRST NAT. BANK. 2G5 

side of such an account qualifies and limits the other. Both sides must 
be taken, weighed, and considered together. The items upon one side 
offset the items upon the other, and the account proves its balance 
only. Morris v. Hurst, Fed. Cas. No. 9,832 ; Bell v. Davis, Fed. Cas. 
No. 1,249. 

But, where other évidence relative to the matters referred to in the 
account is presented for the considération of the court or jury, they are 
net required to give equal effect to ail parts of the account — to the 
admissions against interest and to the self-serving statements; but it 
is their province and their duty to consider each side of the account, 
together with ail the other évidence germane to it, and to give to each 
part of it such crédit as they believe it to be fairly entitled to receive. 
Neither side of the account in such a case is conclusive évidence of the 
facts vvhich it discloses. The évidence presented by either side may be 
rebutted and overcome by testimony aliunde, and the triors of the fact 
may and should détermine the question at issue for or against the évi- 
dence contained in the account as in their opinion the prépondérance 
of ail the évidence in the case and the rules of law require. i Jones 
on Law of Evidence, § 295 ; Walden v. Sherburne, 15 Johns. 409, 424; 
Veiths V. Hagge, 8 lowa, 163, 174 ; Gildersleeve v. Landon, 73 N. Y. 
609. The cigar store account, therefore, was prima facie évidence of 
the receipt by the bank, on account of the bonded goods and on ac- 
count of the cigar store, of the items upon its crédit side, and prima 
facie évidence of the payment by the bank, upon the same account, 
of the items on its débit side. But, as there was much other évidence 
upon this subject, it was not conclusive proof of either fact, and neither 
the master nor the court was required to give the same credence and 
effect to the self-serving statements on the débit side that they gave 
to the admissions against interest upon the crédit side of the account. 
The effect of the application of this rule of law to the évidence in this 
case will be considered later in this opinion, after the effect of the other 
spécifications of error which affect the master's statement has been de- 
termined. 

The second spécification of alleged error made by the bank is that 
the master and the court below found that the cigar store was sold for 
$21,000, when the fact was that the selling price was only $19,900. 
This spécification is without foundation in fact, because the account of 
the master shows that the amount charged against the bank on account 
of this sale was only $19,541.66. There was, however, an error in 
the charge, which the master made against the bank, of $817.10 under 
date of March 25, 1887. This item was a check of S. N. Wood to 
Salomon, given to reimburse the latter for the payment of duties upon 
the bonded goods which he had made. This $817.10 is credited to the 
bank by the master in the item of $1.035.8? nnder the same date. The 
charge of the $817.10 offsets the crédit to that amount, and the efïect of 
it is to deprive the bank of any crédit for this amount of $817.10, which 
it paid for duties on the goods. The débit side of the master's ac- 
count should accordingly be reduced by the sum of $817.10. 

The next complaint is that the master and the court below refused 
to crédit the bank with $10,500 on account of imported cigars of that 
value, which the counsel for the bank insisted were placed in the cigar 



266 129 FEDERAL RBPOKTEE. 

Store after ît had been delivered to Salomon and just before he sold 
it. The bank also complains that the master refused, after the testi- 
mony was closed, to permit it to prove that thèse cigars were thus in- 
troduced into the store. The fact, if it be a fact, that thèse cigars were 
placed in the store, and the évidence offered to establish that fact, are 
ahke immaterial, in the absence of any proof, and of any ofifer to prove, 
that thèse cigars were bought by, or were the property of, the bank. 
The décision of this court at the former hearing was that the cigar 
store and the bonded goods were the property of Simpson, and that 
the bank must account for their proceeds. If the bank, or its agent, 
Salomon, bought, paid for, and put into the cigar store, while it was in 
the hands of the latter, more cigars, the bank would undoubtedly be en- 
titled to a crédit for the amount which was realized from the sale of 
those cigars to Hyman, when it produced fair proof of the proportion 
of $19,541.66 which was obtained at the sale that was realized from 
the cigars which it bought and placed in the store. The burden, how- 
ever, would in any event be upon the bank to establish thèse facts, and 
in the absence of proof of them the complainant would be entitled to ail 
the proceeds of the stock. If the bank had purchased and mingled its 
own cigars with Simpson's, it would hâve donc so at its péril. In the 
case as it stands, the proof utterly fails to show that the cigars in ques- 
tion were ever the property of the bank or of Salomon, or that either 
of them ever bought or paid for them. There is neither proof nor 
offer of proof of thèse essential facts. The probability is that, if any 
cigars were ever added to the stock in the cigar store during the in- 
cumbency of Salomon, they were the cigars of Simpson which hâve 
not been otherwise accounted for by the bank, and there was no error 
in the refusai of the master to crédit it with their supposed value, nor 
in his refusai to permit it to prove that such cigars were placed in the 
store, in the absence of évidence that they were the property of the 
bank, or the property of any other person than Simpson. 

On November 6, 1888, Simpson indorsed and dehvered to the bank 
the promissory note of the Only Chance Mining Coinpany for $5,000. 
At a later date such entries were made in the books of the bank as 
strongly indicate that the bank treated this note as paid by the surplus 
above $7,500 which it received from the sale of the real estate it had 
obtained from Simpson. It is assigned as error that no crédit was 
given to the bank for the amount of this note. As the complainant did 
not attack the sale of the real estate to Wood for the sum of $7,500, and 
that transaction stands unimpeached, nothing was ever in fact paid 
upon this note, and crédit for it should be given to the bank. The 
second note for $5,000 made by the Only Chance Mining Company 
was not indorsed by Simpson, and for that reason it was properly 
omitted from the charges against him. 

Other spécifications of error are that the master and the court below 
refused to receive in évidence the bill of sale and other documents and 
testimony which tended to show that the transfer of the cigar store to 
Salomon was a sale, and not a pledge, and that they did not hold that 
inasmuch as the cigar store account appeared to balance, and Wood 
testified that in 1889 he delivered up to Salomon the Only Chance 
Mining Company's notes, a complète and conclusive settlement of the 



SIMPSON V. FIRST NAT, BANK. 267 

transactions between Simpson and tiie bank was thereby effected. But 
tiiere was neither error of law nor mistake of fact in thèse rulings. 
The second hearing below, was not a new trial of the issues which were 
presented at the first hearing. It was not a rehearing of the questions 
whether the transaction between Simpson, the bank and Salomon was 
a sale or a pledge, and whether or not the accounts between them had 
been conclusively settled in 1888 or 1889. Those issues were tried and 
adjudicated by this court upon the appeal from the first decree. That 
adjudication was the law of the case, and the only questions open at the 
second hearing were those involving the state of the account between 
Simpson and the bank and its agents, Wood and Salomon, who took 
and held the cigar store and the bonded goods in trust to pay Simpson's 
debt to the bank and to return the surplus to him. The former adjudi- 
cation determined the issue whether the accounts between thèse par- 
ties had ever been finally rendered and settled. No correct account had 
ever been rendered, because the bank had never given to Simpson crédit 
for more than $7,500, when he was entitled to crédit for $19,541.66 on 
account of the cigar store ; and, even if the question were open for con- 
sidération, the évidence does not satisfactorily sustain the claim that 
any settlement was ever made between thèse parties, even upon the 
erroneous theory upon which the bank originally insisted. 

We turn to the complaints of Simpson. He insists that the charge 
against him of $2,000 for the services of Salomon in handling and sell- 
ing the pledged goods is excessive, and that it ought not to be allowed 
to the crédit of the bank. But Salomon took possession of, and with 
the aid of Simpson sold and collected the proceeds of, property of the 
value of more than $50,000. He did this with the consent and pursu- 
ant to the agreement made by Simpson with the bank. For thèse serv- 
ices the bank has paid him $2,000. The only question hère is whether 
or not the services of Salomon were worth that amount. The master 
and the court below were compétent, upon the disclosure of the facts 
that Salomon had rendered thèse services and that the bank had paid 
him for them, to détermine their reasonable value, and their décision of 
this question should not be disturbed, in the absence of error of law or 
of mistake of fact. There is no évidence of either, and their finding 
upon this subject is affirmed. 

The next complaint is that the bank was credited with the payment 
of $2,000 for the services of its attorney in defending the title to the 
bonded goods against an action brought by one Muro, who claimed to 
be the owner of them. The évidence is conclusive that the action was 
brought, that the bank retained the attorney to défend it, that he did 
défend it, and that his services were worth $2,000. The bank insists 
that on May 17, 1895, it paid the attorney this amount, and Simpson • 
déniés it. The évidence upon the question of payment is not very satis- 
factory. It is such that a finding either way could not be said to be 
without substantial support in the record. The master and the court 
below agrée that the fee was paid, and that finding ought not to be 
disturbed, in view of the state of the évidence upon this issue, and of 
the fact that the issue involves nothing but interest upon the $2,000. It 
involves interest upon the $2,000 only, because, if the bank did not pay 
that amount to its attorney, the évidence conclusively shows that it 



268 129 FEDEEAL REPORTEE. 

incurred the liability to pay it, and Simpson, wlio appeals to this court 
of equity for the proceeds of his property, ought, as a condition of the 
relief he seeks, to pay the liability of his pledgee necessarily incurred 
in defending the title to it. He who seeks equity should do equity. 

The action brought by Muro was settled on January 19, 1893. But, 
according to the report of the master, there was in the coffers of the 
bank a surplus of the proceeds of the pledged property, after the pay- 
ment of the debt of Simpson, at ail times subséquent to the year 1887. 
It is assigned as error that in the statement of the account the bank 
is not charged with any interest upon this surplus from 1887 until the 
settlement of the Muro action on January 19, 1893. This balance, 
however, was derived from the sale of the goods to a large part of 
which Muro claimed the title. If he had succeeded in his action, the 
bank would hâve been required to pay to him the value of thèse pledged 
goods. It would hâve been relieved from paying their proceeds to 
Simpson. It would hâve been entitled to apply those proceeds to satis- 
fy the claim of Muro. It was the surplus which the bank should re- 
ceive after properly administering the trust, after defending the title to 
the pledged goods, and after paying the debt of Simpson, and that sur- 
plus only, which the latter was entitled to receive from the bank. It 
was impossible to détermine whether or not there would be any surplus, 
and, if there should be, how much that surplus would amount to, until 
the action which Muro had brought was determined. Until that time 
nothing became due from the bank to Simpson, no action to recover 
the surplus could be maintained, and consequently no liability to pay 
interest upon the amount which the bank held in trust and had the 
right to retain, at least for a reasonable time, in order to dispose of the 
litigation against it, arose. The spécifications of error regarding the 
interest cannot be sustained. 

Référence has been made to ail the spécifications of error, and the 
resuit is that if the unexplained items on the débit side of the cigar store 
account should be disallowed, as they were by the master and the court 
below, the $22,061.93 which was found by them to be due from the 
bank to Simpson should be reduced by the déduction of $5,817.10 to 
$16,243.83 and interest from January 19, 1893. If> on the other hand, 
those unexplained items should be allowed and credited to the bank, a 
decree should be rendered in favor of the bank and against Simpson, 
because the aggregate of thèse items exceeds $16,243.83 by several 
thousand dollars. We return to the considération of this, the most im- 
portant question in this case. 

The cigar store account was introduced before the master as a part 
of the évidence at the first hearing, from ail of which this court de- 
, duced the finding that on Mardi 2, 1887, Simpson owed the bank $33,- 
685.31, that he paid it $7,500 by the conveyance of his résidence, and 
pledged to it to secure the remainder of his indebtedness bonded goods 
of the value of about $25,000 and a cigar store of the value of about 
$21,000, leaving the bank indebted to him on the face of this finding 
in the sum of about $19,814.69. 93 Fed. 310. The évidence at the 
former hearing, in other words, so strongly indicated that there was 
some amount of money due to Simpson on account of the pledged 
goods that in the opinion of this court it overcame the évidence of thè 



SIMPSON V. FIEST NAT. BANK. 2G9 

débit side of the cigar store account, and induced a finding to the effect 
which has been stated. It necessarily follows that when the counsel 
for the appellee, Simpson, introduced before the master ail the évi- 
dence at the former hearing, he made a prima facie case to the eflfect 
that his client was entitled to recover about $19,000 from the bank, and 
the burden was placed upon the appellant bank to overcome this con- 
clusion by means of the accounting. Does ail the évidence, vs^hen 
fairly considered, establish the fact that the bank was not justly liable 
to pay to the complainant an amount approximating this sum? The 
case imposes upon the court the duty of answering this question, and 
it has been a difficult task to do so satisfactorily. The évidence is not 
so clear that it is possible to state an account with the certainty that 
every item in it is correct. If, however, when ail the évidence is taken 
together, it indicates with reasonable certainty what the gênerai bal- 
ance of the account between thèse parties must hâve been on January 
19, 1893, the court is not relieved of the duty of finding this amount 
and rendering a decree accordingly by minor doubts and uncertainties 
which the record leaves undetermined. If there was any probability 
that more or better évidence could be produced, the case might be re- 
turned to the master for farther testimony ; but the witnesses hâve gen- 
erally testified that they hâve now presented ail the évidence under 
their control. Salomon, the chief actor in the drama, is dead. His 
books and vouchers hâve been destroyed, and there is no hope of a more 
satisfactory record from a prolongation of this litigation. This suit 
has been pending for more than a décade. Its continuance would serve 
only to deprive the ultimate victor of the benefit of the decree, and to 
inflict unnecessary loss upon the defeated. In view of thèse facts, ail 
the testimony, including especially both sides of the cigar store account, 
has been carefully read and thoughtfully considered. Much of the 
évidence has been read many times, and an earnest effort has been made 
to justly détermine the main issue remaining in this case — the issue 
whether the bank is justly indebted to Simpson for an amount ap- 
proximating $16,000, or Simpson is indebted to the bank, as claimed 
by counsel for the latter, for tens of thousands of dollars. The estab- 
lished facts which persuade to the conclusion that has finally been reach- 
ed upon this question will be briefly stated. No attempt will be made, 
however, to itemize the amounts to be mentioned, or to make them ex- 
act, because the significance of the facts is not in the spécifie amounts 
with which they deal, but in their gênerai character and effect. 

Conceding to the débit side of the cigar store account its effect as 
prima facie évidence, the case before the master opened, as we hâve 
seen, with that évidence rebutted and a prima facie case against the bank 
established for the recovery of about $19,000, based upon ail of the évi- 
dence at the first hearing and the finding of this court thereon. When 
the subséquent évidence upon the accounting had been introduced, the 
fact was established, by the cigar store account and by the testimony of 
Simpson and Wood, that Salomon received from the pledged goods 
and deposited with the bank in that account about $55,000, and that 
out of this account he paid to Wood amounts which aggregated $24,- 
766.40 to pay the debt of Simpson, $7,543 to pay a note which Salomon 
gave to the bank when he took the cjgar store, and $2,000 to Salomon 



2T0 129 FEDERAL EEPOETEK. 

for his services in handling the pledged goods, leaving a balance of 
about $20,000, which the débit side of that account shows that Salomon 
had checked eut for other purposes which are not established or indi- 
cated by the record. Now, the only other purpose to which this $20,- 
000 could hâve been legitimately applied was to pay the necessary ex- 
pansés of operating the store, which had a stock of about $20,000, for 
23 days, and the reasonable expansés of selling the bonded goods, which 
were worth about $35,000. The fact that Salomon checked this amount 
of about $20,000 out of the bank through his cigar store account, and 
that it was charged to him in that account, does not seem to us to be 
convincing évidence that it was either reasonable, just, or necessary to 
expend so large an amount to dispose of property which realized only 
about $55,000. It is true that in the foregoing statement of the ac- 
count, which finds the amount realized by Salomon from the goods he 
sold to be $55,000, the cigar store account and the testimony of Simp- 
son that Salomon deposited the proceeds of his goods in that account, 
and that as the money accumulated he gave checks to Wood to apply 
on Simpson's debt and to run the business, has been esteemed sufficient 
proof , in the light of the other évidence in the case, that the unexplained 
items on the crédit side of this account, which amount to about $23,000, 
represent proceeds of the pledged goods received by the bank from 
Salomon, while the débit side of that account is not given sufficient 
probative force to establish the proper expenditure of the unexplained 
items on that side of the account, which amount to about $20,000. But 
there are substantial reasons for this conclusion, derived from the rela- 
tions of the parties and the other évidence in the record. The bank 
held t